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TC Ord. No. 2001-16 Approving the first amendment to the annexation and development agreementTOWN OF AVON ORDINANCE NO.01-16 SERIES OF 2001 AN ORDINANCE APPROVING THE FIRST AMENDMENT (THE "AMENDMENT") TO THE ANNEXATION AND DEVELOPMENT AGREEMENT (THE "AGREEMENT") BETWEEN THE TOWN OF AVON (THE "TOWN") AND TRAER CREEK LLC, A COLORADO LIMITED LIABILITY COMPANY, EMD LIMITED LIABILITY COMPANY, A COLORADO LIMITED LIABILITY COMPANY (COLLECTIVELY THE "OWNER"), AND TRAER CREEK METROPOLITAN DISTRICT, A QUASI- MUNICIPAL CORPORATION AND POLITICAL SUBDIVSION OF THE STATE OF COLORADO (THE "DISTRICT") , CONCERNING THE DEVELOPMENT RIGHTS AND RESPONSIBILITIES OF THE TOWN AND THE OWNER WITH RESPECT TO THE VILLAGE AT AVON; AUTHORIZING AND INSTRUCTING THE MAYOR OF THE TOWN TO SIGN THE AMENDMENT ON BEHALF OF THE TOWN, AND APPROVING A SITE SPECIFIC DEVELOPMENT PLAN ESTABLISHING A VESTED PROPERTY RIGHT PURSUANT TO ARTICLE 68 OF TITLE 24, C.R.S., AS AMENDED. WHEREAS, the Town and the Owner have negotiated the terms and conditions of the First Amendment to the Annexation and Development Agreement ("Amendment"), which is attached hereto ag Exhibit "A" and incorporated herein; and a WHEREAS, as used herein the term "Property" means those lands annexed into Na .the Town by, and described in, Ordinance No. 98-15; and m Ol o m m m N O WHEREAS, the Town gave proper and timely posted notice of the dates and a times of the meetings at which the Town Council considered the Amendment; and ®m WHEREAS, the proposed full text of this Ordinance was duly published by posting in the office of the Town Clerk and in three (3) additional public places within ®N the Town, and said publication also set forth the date and time of the public hearing at ® which the Town Council considered the Amendment; and ®D WHEREAS, Town of Avon Ordinance Number 98-16 establishes the zoning for W the Property pursuant to the terms of a Planned Unit Development (the "PUD"); and ® m ® a ®LL WHEREAS, pursuant to Avon Municipal Code Section 17.14.100, the Town ® Council has agreed to designate the Amendment together with the Preliminary Subdivision Plan for the Property (see Town of Avon Resolution Number 01-09) and Administrative Amendment No. 1 to the PUD as the site specific development plan for the Property; and WHEREAS, it is the intent of the Town Council that approval of said site specific development plan establish vested property rights pursuant to Article 68 of Title 24, C.R.S., as amended; and WHEREAS, approval of the Amendment is in the best interests of the public health, safety and general welfare of the people of the Town; and WHEREAS, the Town Council held a public hearing concerning the Amendment, and by this Ordinance sets forth its findings and conclusions. THE TOWN COUNCIL MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS: The Amendment complies with all applicable laws and regulations of the State of Colorado and the Town, including, without limitation, Article 68 of Title 24, C.R.S. 2. All notices required for the public hearing at which the Town Council considered the Amendment were properly and timely published, posted or mailed in accordance with all applicable laws and regulations of the State of Colorado and the Town. 3. The public hearing held on the Amendment was conducted in accordance with all applicable laws and regulations of the State of Colorado and the Town. 4. The Town has authority to enter into the Amendment pursuant to Sections 24-68-104(2) and 31-15-101, C.R.S., and pursuant to Section 17.14.100 of the Avon Municipal Code. , 5. The Town's approval of and entering into the Amendment is in the best interests of the public health, safety and general welfare of the people of the Town. IIIIIII~IIIII 9IIIIIIIIIII~II =.°90ve9 ua2. Sara J Fiiker Eagle, Co 289 R 100.00 D 0. 00 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, A. The Amendment together with the Preliminary Subdivision Plan for the Property see Town of Avon Resolution Number 01-09) and Administrative Amendment No. 1 for the PUD establishes a site specific development plan for the Property and vested property rights pursuant to Article 68 of Title 24, C.R.S.; as amended. B. The Amendment is hereby approved, and the Town shall enter into it and perform its obligations. C. The Mayor of the Town is hereby directed to sign the Amendment on behalf of the Town. D. Within fourteen (14) days after passage on Second Reading of this Ordinance, the Town Clerk is hereby authorized and directed to: 1. Publish the full text of this Ordinance in a newspaper of general circulation within the Town; and 2. Concurrently with the publication required in Section D.1. above, publish a notice advising the general public that approval of the Amendment pursuant to this Ordinance, together with separate approval of the _ Preliminary Subdivision Plan for the Property, and of Administrative Amendment No. 1 for the PUD, constitutes approval of a site specific development plan establishing a vested property right in accordance with the terms and conditions of the Amendment and pursuant to Article 68 of Title 24, C.R.S., as amended. The effective date of this Ordinance shall be seven (7) days after publication of the notice described in Section D.1. above. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED PUBLISHED this 23rd day of October, 2001 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 13t' day of November 2001, at 5:30 p.m. in the Avon Municipal Complex, 400 Benchmark Road, Avon, Colorado. 779049 12/10/2001 04:32P 111111111111111111111111111111111111111 ill 1111111111111 Page: 3 of 20 Sara J Fisher Ea91e, _C0 289 R 100.00 D 0.00 Town of Avon, Colorado Town Council 0* at .,SEA r U4--;&v y Yode M r INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED, this 13th day of November, 2001. Town of Avon, Colorado Town Council Ift- A TEST:. yKris ash, Town Clerk J 6(y Yoder, a r APPROVED AS TO FORM: Town Attorney I 12 ~90°9, 20 Sara IM~,INIII~I~MflVINll~ll~~l~n~ ® Exhibit A E-1 FIRST AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT This FIRST AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT (this "First Amendment') is made as of November 13 , 2001, by and between TR.AER CREEK LLC, a Colorado limited liability company ("Traer'), EMD LBUTED LIABILITY COMPANY, a Colorado limited liability company ("EMD'), TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District'), and the TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town). RECITALS A. The Town previously executed that certain Annexation and Development Agreement dated as of October 13, 1998, and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on November 25, 1998 (the "Original Agreement' 1. The Original Agreement pertains to certain real property generally known as The Village (at Avon) and more particularly described in Exhibit A attached to the Original Agreement (the "Property). The Property was then owned by EMD, PVRT NOTT I LLC, PVRT NOTT II LLC and PVRT NOTT III LLC (the "Original Parties', each of which was a signatory of the Original Agreement and which, collectively, constituted the "Owner" as that term was used in the Original Agreement. Subsequently, the other entities comprising the original "Owner" were merged into EMD, which became the sole "Owner" as that term is used in the Original Agreement. B. Pursuant to Section 1.4 of the Original Agreement, EMD has specifically granted to Traer, in writing, the right to amend the Original Agreement as to all of the Property except Planning Area M, with respect to which EMD retains the right to amend the Original Agreement. C. The District has been formed in order to finance and construct certain infrastructure improvements and to perform certain other obligations of the Owner under the Original Agreement. Pursuant to Sections 4.4 and 6.9 of the Original Agreement, the District wishes to execute and be a party to this First Amendment in order to assume in writing certain obligations of the Owner under the Original Agreement. D. The Town, Traer, EMD and the District desire to modify certain terms and conditions of the Original Agreement as set forth in this First Amendment. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the Town, Traer, EMD and the District, as more particularly set forth herein, and in consideration of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Town, Traer, EMD and the District covenant and agree as follows: 779049 Page: 5 of 20 492674 12 MLAYER 10141018 04 AM 11111111111111111111111111111111111111111111111 _ 12/10/2001 04:32P Sara J Fisher Eagle, CO 289 R 100.00 D 0.00 1. Defined Terms. Unless otherwise defined in this First Amendment, capitalized terms used herein shall have the meanings ascribed to them in the Original Agreement. 2. Amendments. The Original Agreement is hereby modified as follows: (a) Section 1.1.10 is amended and restated to read in its entirety as follows: District: The Tmer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, which,is one of the Special Districts referred to in Section 4.4. All references to the term "Districts," or to the phrase "one or more of the Districts," shall be construed as a, reference to the Traer Creek Metropolitan District. (b) A new Section 1.1.14(a) is inserted to read in its entirety as follows: EMD: EMD Limited Liability Company, a Colorado limited liability company. (c) Section 1. 1.26 is amended and restated to read in its entirety as follows: Owner: Collectively, ENO, Traer and their respective successors and assigns. With respect to those obligations of Owner which the District has expressly undertaken and assumed pursuant to Sections 4.4 and 6.9, references to the term "Owner" shall be construed to be references to the District only, and not as references to EMD and/or Traer. (d) - Anew Section 1.1.26(a) is inserted to read in its entirety as follows: Phase 1 Improvements: As defined in Section 4.3(b)(i). (e) A new Section 1.1.26(b) is inserted to read in its entirety as follows: Phase 2 Improvements: As defined in Section 4.3(b)(ii). (f) A new Section 1.1.26(c) is inserted to read in its entirety as follows: Phase 3 Improvements: As defined in Section 4.3(b)(iii). (g) A new Section 1.1.26(d) is inserted to read in its entirety as follows: Phase 4 Improvements: As defined in Section 4.3(b)(iv). (h) Section 1. 1.32 is amended and restated to read in its entirety as follows: Public Improvement Companies: As defined in Section 4.4. 11111111111 11111111111111111111111111111 Pa 12/10/220 001 04:32P Sara J Fisher Eagle, CO 289 R 100.00 0 0.00 49267412 MLAYM 10141018.04 AM 2 (i) A new Section 1.1.34(a) is inserted to read in its entirety as follows: PUD Development Plan Administrative Amendment No. 1: As approved by the Town on May 21, 2001, the development plan for the Project which amends in its entirety the Sketch/PUD Development Plan. 0) Section 1. 1.43 is amended and restated to read in its entirety as follows: Sketch/PUD Development Plan: The Village (at Avon) PUD Development/Sketch Plan for the Project, prepared by Peter Jamar Associates, Inc., and submitted to the Town on July 10, 1998, as approved by the Town and as amended in its entirety by the PUD Development Plan Administrative Amendment No. 1 and any approved future amendments thereto. Unless the context clearly indicates otherwise, all references to the term "Sketch/PUD Development Plan" shall be construed as a reference to the PUD Development Plan Administrative Amendment No. 1 and any approved future amendments thereto. (k) A new Section 1.1.43(a) is inserted to read in its entirety as follows: Special Districts: Traer Creek Metropolitan District and The Village Metropolitan District. (1) A new Section 1.1.48(a) is inserted to read in its entirety as follows: Traer: Traer Creek LLC, a Colorado limited liability company. N (m) Section 4.2 is amended and restated to read in its entirety as follows: M a e 4.2 I-70 Improvements and Development Limitations. The District Cn o 0,6! shall diligently pursue obtaining the necessary Permits to facilitate the establishment and "C construction of the Interstate 70 Improvements, consisting of (i) a full diamond r- N interchange on Interstate 70 (the "Interstate 70 Interchange') serving the proposed road 10 EL m that will cross Interstate 70, as such road is depicted in the PUD Development Plan ®m Administrative Amendment No. 1, and (ii) a road designed, in accordance with the road standards set forth in Section I.5 of the PUD Guide, to connect the Interstate 70 Interchange to Highway 6 as depicted in the PUD Development Plan Administrative Amendment No. 1 (the "Highway 6 Connector Road', which Highway 6 Connector ®N Road shall include, subject to obtaining all required permits and approvals, a roundabout ® at the intersection of Highway 6 and such Highway 6 Connector Road. The Town will ® cooperate (without any obligation to incur any out-of-pocket expenses to third parties o that are not reimbursed by the District) with the District to cause completion of construction of the Interstate 70 Improvements by a target date of June 15, 2003 (the ®W "Interstate 70 Completion Date'). At or prior to the time that CDOT so requires, the ® L A District shall provide to CDOT security in the form of a completion bond or in such ® LL other form acceptable to CDOT to ensure that adequate funds are available for ® L completion of the Interstate 70 Interchange. The District shall deliver to the Town ®N quarterly reports of the status of the permitting process. Development within the 492674 12 M"M 10/4/01 8.04 AM 3 ® • Property prior to completion of the Interstate 70 Improvements shall be subject to the following provisions: (a) Prior to the District completing construction of the Interstate 70 Improvements, Owner shall be entitled to apply for and receive from the Town building permits and certificates of occupancy for forty percent (40%) of the Dwelling Units permitted under the Development Plan and three hundred fifteen thousand (315,000) square feet of Commercial Space. If the Interstate 70 Improvements are not completed by the Interstate 70 Completion Date, then the Town shall have no. obligation to issue building permits for development in excess of the foregoing numbers after the Interstate 70 Completion Date until the Interstate 70 Improvements have been completed. However, if the Town issues a building permit which, upon completion of construction, will result in more than two hundred sixty thousand (260,000) square feet of constructed Commercial Space, cumulatively, within the Property, then the District shall have commenced construction of the Interstate 70 Interchange prior to the Town being obligated to issue any certificate of occupancy which will result in the occupancy of more than two hundred sixty thousand (260,000) square feet of constructed Commercial Space, cumulatively, within the Property. (b) Except as described in subparagraph (a) of this Section 4.2, the Town shall have no obligation to issue building permits or certificates of occupancy for Dwelling Units or Commercial Space until construction of the Interstate 70 Improvements is completed. If (A) construction of any Dwelling Units or Commercial N Space other than that described in subparagraph (a) of this Section 4.2 has been e commenced but has not been completed on the Interstate 70 Completion Date, and N m 0) (B) the Interstate 70 Improvements have not been completed by such Interstate 70 o~m m* m Completion Date, then, upon receiving written notice from the Town, the Owner shall tD N 0) cease construction of such Dwelling Units or Commercial Space, as the case may be. CL Notwithstanding the foregoing, upon written request of Owner, the Town may consent to issue building permits in excess of the restrictions set forth above and permit m construction on projects in progress to continue to completion, and issue certificates of occupancy, past the Interstate 70 Completion Date, which consent shall not be o unreasonably withheld or delayed. N (n) Section 4.3(b) is amended and restated to read in its entirety as follows: ® (b) Subject to timely obtaining the necessary rights-of-way and permits, the District shall cause East Beaver Creek Boulevard to be connected to the ®R western boundary of the Property and extended through the Property to the Highway 6 W Connector Road (the "East Beaver Creek Boulevard Improvements'l. The Town will timely obtain and make available to the District all property and rights-of-way required ®LL for the East Beaver Creek Boulevard Improvements and the out-of-pocket costs incurred by the Town in purchasing or otherwise obtaining such property and rights-of-way shall N be reimbursed by the District. Construction of the East Beaver Creek Boulevard Improvements shall occur in phases, as set forth below:. 492674 12 MLAYU 10/4/018'04 AM 4 0 (i) Phase 1 of the East Beaver Creek Boulevard Improvements (the "Phase 1 Improvements') shall consist of the construction of a temporary, non-public extension of an all-weather surface (dust free) service road (portions of the paved surface of the abandoned airport runway may be used) from the western boundary of the Property to the Highway 6 Connector Road. Such extension shall be used for construction traffic only, which construction traffic on the non-public service road shall not be subject to the Town's ordinances pertaining to vehicular weight restrictions. Construction traffic shall be subject to the Town's ordinances pertaining to vehicular weight restrictions upon issuance of the first certificate of occupancy (temporary or final) issued for an improvement within Planning Areas K or L. Subject to the Town's timely issuance of the requisite permits, the District shall employ commercially reasonable efforts to cause completion of the Phase 1 Improvements prior to commencement of any vertical construction within Planning Area K or Planning Area L. (ii) Phase 2 of the East Beaver Creek Boulevard Improvements (the "Phase 2 Improvements') shall consist of (A) converting the Phase 1 Improvements to a two (2) lane paved temporary surface, and (B) a M two (2) lane paved temporary surface connecting Chapel Place to the N m Phase 1 Improvements. Subject to the Town's timely issuance of the Oy `o ®m requisite permits, the District shall complete the Phase 2 Improvements by o► N o not later than the date on which the Town issues the first certificate of a occupancy for Commercial Space within Planning Area K or Planning a Area L. (iii) Phase 3 of the East Beaver Creek Boulevard Improvements (the "Phase 3 Improvements') shall consist of the following improvements ® to the segment of East Beaver Creek Boulevard between the western ®N terminus of Beaver Creek Place and the western boundary of The Village ® (at Avon): (A) construction of a two-lane roadway with a third auxiliary lane at intersections and access points; (B) streetscape improvements to the segment between the western terminus and the eastern terminus of Beaver Creek Place; which improvements shall be in general conformance ®W with the East Beaver Creek Boulevard Streetscape Improvement Plans dated April 2000, prepared' by Inter-Mountain Engineering, Ltd. for the Town of Avon; and (C) streetscape improvements to the segment between - - the eastern terminus of Beaver Creek Place and the western boundary of A The Village (at Avon), which improvements shall be in general conformance with the streetscape improvements within Planning Area A. Subject to the Town's timely issuance of the requisite permits, the District shall commence the Phase 3 Improvements by April 15, 2005, and shall employ commercially reasonable efforts to cause completion of the Phase 3 Improvements on or before December 31, 2005; provided, however, that in the event of an earlier re-subdivision of any area within Planning Areas A through F, inclusive, within The Village (at Avon) 492674 12 MLAYn 10/4/01 8:04 AM 5 • Filing No. 1, the District shall commence the Phase 3 Improvements by April 15, and shall employ commercially reasonable efforts to cause completion thereof by December 31, of the year immediately following the recordation of any final subdivision plat which re-subdivides any such area. (iv) Phase 4 of the East Beaver Creek Boulevard Improvements (the 'Phase 4 Improvements') shall consist of converting the Phase 2 Improvements from temporary to permanent by the construction of (A) a permanent extension from the east terminus of Beaver Creek Place to the Highway 6 Connector Road in accordance with the road standards set forth in Section 1.5 of the PUD Guide, and (B) final design and construction of a connection to Chapel Place. The District shall cause the Phase 4 Improvements to be commenced and completed in accordance with the subdivision process involving Planning Areas A through J, inclusive. (o) Section 4.3(c) is amended and restated to read in its entirety as follows: N (c) Subject to all necessary permits and approvals having been N issued for the following described roadway improvements, which permits and approvals ,..o ID the District shall diligently pursue, the District shall construct a two-lane paved general Qy m m m circulation road with grades not exceeding ten, percent (10%) and otherwise in N accordance with the road standards set forth in Section I-5 of the PUD Guide, which road IM ~ shall extend easterly from the point where Swift Gulch Road terminates in Planning Area a ~ m RMF-2 to the road designed to pass under Interstate 70 and serve Planning Areas RAF-1, m RMF-3 and Residential Lot 1 and Lots 6-96 (the "Swift Gulch Road Improvements'. ®W The Swift Gulch Road Improvements shall be completed at the time of completion of the ® Interstate 70 Improvements, and shall include six foot (6') wide paved shoulders on both ®m sides, or, in lieu thereof, if mutually agreed upon by the District and the Town, a ten foot N (10) wide paved bike / pedestrian path on one side of the road, which shall be separated from the roadway. Within sixty (60) days after receipt of an itemized statement and C supporting documentation for such costs, the Town shall reimburse the District for the full cost of paving the six foot wide shoulders, based on the unit cost of asphalt paving for the Swift Gulch Road Improvements. IV W m w (p) Section 4.3(d) is amended and restated to read in its entirety as follows: (d)_ _ --Within thir_ty_(30) days after the Town's issuance of the ®a first certificate of occupancy (temporary or final) for any improvement within Planning Areas K or L, Owner shall convey to the Town a parcel of land which is described as "Lot 5, The Village (at Avon) Filing 1" in the final plan submittal package which Owner submitted to the Town on June 2 9 , 2001. Upon Owner's determination of the location and subsequent to the recordation of a final plat for the relevant Planning Area, Owner shall convey to the Eagle River Fire Protection District a parcel of land to be used exclusively for construction and operation of a fire protection facility, which shall consist of approximately one buildable acre in a location designated by Owner, and which may 492674 12 MLAYER 10/4/01 9 04 AM 6 i be located within Planning Area N or an "OS" or "P" Planning Area. The foregoing dedications constitute, collectively, the "Public Works Dedication." Construction and operation of the public works facility and the fire protection facility shall comply with the terms of the Development Plan and architectural standards and design guidelines established by the Design Review Board. In compliance with any such design guidelines, but at least ninety (90) days prior to commencing construction of any improvements on any such site or sites, the Town or the Eagle River Fire Protection District, as applicable, shall deliver to the Design Review Board copies of plans for such improvements. 'Owner or the District may at its sole option and at its sole expense, upgrade all or any portion of the exteriors of such improvements. (q) Section 4.36) is amended and restated to read in its entirety as follows: 6) The District shall include in its first bond issue proceeds of no less than the amount reasonably estimated by the District to be the cost of constructing the interstate 70 Interchange, which proceeds shall be dedicated to paying the costs of constructing such Interstate 70 Interchange. If, at the time of the District's first bond issue, it is not reasonably anticipated by the District and the Town that the Interstate 70 Interchange will be completed within three (3) years, the District may, with the approval of the Town, delay issuance of the Interstate 70 Interchange portion of such issue to avoid adversely affecting the federal income tax exemption of interest on the bonds, but only until such time as completion of the Interstate 70 Interchange is reasonably anticipated by the District and the Town to occur within N three (3) years. Such bond proceeds shall be deposited into an escrow account to, among other n things, ensure to the Town that, if the District fails to apply such bond proceeds toward purchase N ,..Go of a CDOT completion bond or as other security to CDOT as contemplated in Section 4.2, or JM omm m otherwise towards construction of the Interstate 70 Interchange, the Town will have access to N ~ m ~ such proceeds for such purposes. The Town acknowledges, however, that if the District provides to CDOT the completion bond or other security acceptable to CDOT with respect to completion of the Interstate 70 Interchange as contemplated by the last sentence of Section 4.2, the District ®m shall have no obligation to also provide separate security to' the Town with respect to completion of the Interstate 70 Interchange. (r) Section 4.4 is amended and restated to read in its entirety as follows: m ®N 4.4 Public Facilities. Owner has created two public improvement companies having as members all property owners within the Project (collectively, the "Public Improvement Companies") and two special districts (collectively, the "Special Districts') to facilitate financing and development of the infrastructure improvements and ® W public facilities of the Project, including, without limitation, development of the road and ® utility improvements contemplated by the Development Plan. Owner reserves the right to create such additional public improvement companies and/or special districts as may be necessary or desirable from time to time, and the Town shall reasonably cooperate ®y with Owner with respect to the creation of such additional entities. The formation documents of the Public Improvement Companies and the Special Districts, together with contracts entered into by and between the Public Improvement Companies and the Special Districts, require the Public Improvement Companies and the Special Districts to honor their obligations under this Agreement, including the obligation of the Public 492674 12 MLAM 10/4101 9*04 AM 7 Improvement Companies to remit to the Special Districts the portion of the Project Fees equal to the corresponding Town tax. Accordingly, the Public Improvement Companies have established the mechanisms for imposing and collecting within the Property the Project Fees as contemplated in Section 4.5. The District will provide public facilities and services that the Town might otherwise have to provide, and has entered into contractual arrangements with the Public Improvement Companies with respect to the performance and financing of such obligations. The Town shall cooperate with the operation of the Special Districts, and with the implementation of the financing, development and maintenance of the public facilities for the Project. Pursuant to Section 4.11, the Public Improvement Companies shall keep sufficient records with respect to assessment and collection of the Project Fees, and shall require the filing of returns by the appropriate business or person with respect thereto, to ensure that there will be an adequate audit trail with respect to the matters addressed in this Section 4.4 and in Section 4.5. If the Public Improvement Companies are unable to collect any portion of the Project Fees due to delinquency, deficiency, or failure to file, the Public Improvement Companies may promptly notify the Town in writing, and the Town shall institute the procedures authorized under the Municipal Code to enforce and collect the corresponding Town tax, interest, penalties and costs. The Town shall then remit such tax revenues to the Public Improvement Companies or to the District, subject to the following conditions: (a) the Town shall retain an amount equal to its costs incurred in enforcing its collection of taxes under the Municipal Code, as well as an administrative fee equal to [20%] of any tax and/or penalty actually collected; (b) the obligation is subject to any prior lien on such Town taxes securing the Town's sales tax revenue bonds outstanding as of the date of the Original Agreement; (c) the Town will n m have no responsibility to collect any increment of the Project Fees,which is in excess of Cn o m the corresponding Town tax or which is assessed against any transaction that is exempt 0 N o from the corresponding Town tax under the Municipal Code as then in effect; and (d) the 0) ® Town does not guarantee or insure that it will be able to collect any delinquent or a deficient Project Fees. Under no circumstances shall the Town be subject to any legal liability to the Public Improvement Companies or to the Special Districts on account of the Town's failure to collect some or all of the delinquent or deficient Project Fees on °C behalf of such entities. o The Town acknowledges that if the person or entity which failed to timely ® C4 pay such Project Fee subsequently remits such Project Fee to the Public Improvement Company, such payment shall result in the application of a simultaneous credit against such person or entity's tax obligation, which credit shall fully satisfy any corresponding tax liability to the Town. -The Town shall nevertheless be entitled to recover from the W Public Improvement Company the administrative fee and any costs incurred in the ®L enforcement and recovery of such Project Fees. ~m ® 0 (s) The initial three sentences of Section 4.5 are amended and restated to read in their entirety as follows (all other sentences of Section 4.5 being unaffected hereby): N The applicable Public Improvement Company may assess a sales and/or use fee on certain transactions occurring, and products used or consumed, within the 49267412 MLAYU 10/4/01 8.04 AM Project, including any retail sales occurring and/or building materials used within the Project (such sales and/or use fees constituting, collectively, the "Retail Sales Fee'), and a real estate transfer fee on certain transfers of real property within the Project (the "Real Estate Transfer Fee"), and an accommodations/ lodging fee on certain lodging accommodations transactions within the Project (the "Accommodations/Lodging Fee"). The portion of the proceeds of such Retail Sales Fee, Real Estate Transfer Fee and any Accommodations/Lodging Fee which is equal to the corresponding Town tax shall be pledged and remitted to one or more of the Districts, and any portion if such fees which exceeds the amount of the corresponding Town tax may be retained by the applicable Public Improvement Company, in either case to be applied toward payment of infrastructure and public facilities costs for ongoing operation, maintenance. and administrative expenses of the Project, including, without limitation, , contractual obligations of such Districts to the Town. Subject to the provisions set forth below, so long as the Public Improvement Company imposes such Retail Sales Fee, Real Estate Transfer Fee and/or Accommodations/Lodging Fee, in consideration therefor and for the remittance and application of proceeds from such Project Fees toward payment of the costs of providing and maintaining infrastructure improvements and public -facilities for the Project as provided herein, the Town shall waive with respect to transactions occurring within the Project imposition of the corresponding retail sales taxes, use taxes, real estate transfer taxes and accommodations/lodging taxes otherwise applicable within the Town, except any sales or accommodations tax increases duly adopted by the Town after the date of this Agreement, the proceeds of which increases are dedicated to specific projects identified in connection with such adoption. N a Cn o ®m (t) Section 4.10(a)(iii) is amended and restated to read in its entirety as 4 * N follows: C N (iii) The Property is included within the boundaries of, and is subject to property tax assessment for, the Eagle River Fire Protection District. Accordingly, the Town shall not include within any Municipal Services Invoice, and neither Owner nor the District shall have any obligation to the Town for, any assessment of cost for regional fire protection services. m (u) Section 4. 1 0(a)(vi)(B) is deleted in its entirety. (v) Section 4.10(a)(vii) is amended and restated to read in its entirety as follows: ® m ®W (vii) the sum of all charges_ described in clauses (i) through ®t (vi) above with respect to a particular Municipal Services Invoice shall constitute the total amount due to the Town from the Project and the Property with respect to the Town's provision of the Municipal Services for the applicable year (each, a "Required Municipal Services Payment''). 492674 12 M AYM 10/4!01 8:04 AM 9 (w) The introductory sentence of Section 4.13 and subparagraph (a) of Section 4.13 are amended and restated to read in their entirety as follows (subparagraph (b) of Section 4.13 being unaffected hereby): 4.13 Design Review. Owner shall establish a design review board to review for conformity with the PUD Guide and applicable covenants, conditions and restrictions development proposals for the Property or any portion of the Property (the "Design Review Board'). (a) The Design Review Board shall consist of not more than five (5) members, one (1) of whom shall be a member of the Town's Planning and Zoning Commission designated by the Town from time to time, and the remainder of whom shall be appointed as provided in the, governing documents of the Design Review Board. . (x) A new Section 4.14(f) is inserted to read in its entirety as follows: (f) If the District becomes liable for payment to the Town of the applicable annual shortfall as described above because either Wal-Mart or City Market, or both, have vacated their respective present sites within the Town and, relocated to a site within the Property, and if either Wal=Mart or City Market, or both, subsequently cease for any reason to operate in a site within the Property, then the applicable District shall thereupon be relieved from any further obligation or liability to the'Town with respect to any further payment of the applicable annual shortfall even though such vacated space within the Property may later be occupied by a business that is substantially similar to Wal-Mart or City Market, as the case may be, but is unrelated to such entity; provided, however, that regardless of any change in ownership or change in the trade name used for the business, neither Wal-Mart nor City Market will be considered to have ceased to operate within the Property for so long as the business operation continues in a substantially similar form to that operated by Wal-Mart or City Market, as applicable, if such operation is conducted under the same or another name by an affiliate, parent or subsidiary of Wal-Mart and/or City Market, respectively. (y) Pursuant to the terms of Section 6.8, the parties hereby designate the following addresses for notice or communication , in substitution of the addresses originally set forth in Section 6.8 (the substantive provisions of Section 6.8 being unaffected hereby): I 111111111111111111111111111111111 11111111111 Sara J Fisher Easle, CO 289 R 100 779@49 Page: 14 cf 20 12%10/2001 04:32P 00 D 0.00 49267412 MLAM 10/4/019-04 AM 10 E If to Town: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Manager With a copy to: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Attorney If to Owner by mail delivery: Traer Creek LLC EMD Limited Liability Company P.O. Box 640 Vail, Colorado 81658 Attn: William J. Post, Esq. a N M N ~ o..m cr)"W ra m m N O ~ mm P- Im h- a ~ m m ®m m ® N ®o ® V W ®t ®LL a N Or, for delivery other than by mail: Traer Creek LLC EMD Limited Liability Company 0322 East Beaver Creek Blvd. Avon, Colorado 81620 Attn: William J. Post, Esq. With a copy to: E Often, Johnson, Robinson, Neff & Ragonetti, P.C. 95017th Street, Suite 1600 Denver, Colorado 80202 Attn: Thomas J. Ragonetti, Esq. Munsey L. Ayers, Esq. If to the District: Traer Creek Metropolitan District c/o McGeady Sisneros, P.C. 1675 Broadway, Suite 2100 Denver, Colorado 80202 Attn: Darlene Sisneros, Esq. 492674.12 MLAYM 10/4/01 9 04 AM 11 0 0 3. District's Assumption of Obligations; Release. By its execution of this First Amendment, and subject to the limitations set forth below, the District ratifies and assumes each and every obligation of the District and/or Districts as set forth and described in any provision of the Original Agreement, as contemplated in Sections 4.4 and 6.9 of the Original Agreement. The Town acknowledges that, pursuant to Section 6.9 of the Original Agreement, the District's foregoing express assumption of such obligations operates to relieve EMD and Traer of any further obligations under the Original Agreement, as modified by this First Amendment, with respect to those matters which the District has assumed. The Town further acknowledges that the District's assumption of such obligations is subject to annual budget and appropriation, and is subordinate to any bonds issued by the District. 4. Effect of Amendment. Except as expressly modified by this First Amendment, the Original Agreement is unmodified, and is hereby ratified and affirmed, and shall remain in full force and effect in accordance with its terms. If there is any inconsistency between the terms of the Original Agreement and the terms of this First Amendment, the provisions of this First Amendment shall govern and control. 5. Authority to Amend; Vesting of Property Rights. In accordance with the terms and conditions of Section 1.4 of the Original Agreement, the Town's approval of this First Amendment is subject to the public notice and public hearing procedures required for approval of the Original Agreement. Because the Original Agreement constitutes a site specific development plan which established statutory vested property rights pursuant to Article 68 of Title 24, C.R.S., as amended, and because this First Amendment is an amendment thereto, the Town shall adopt an ordinance ratifying this First Amendment and shall cause publication of the notice'described in Section 24-68-103(1), C.R.S., as amended. Pursuant to Section 17.14.050 of the Municipal Code: Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 6. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. 7. Counterparts. This First Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same instrument. 779049 Page: 16 of 20 12/10/2001 04:32P Sara J Fisher Eagle, CO 289 R 100.00 D 0.00 49W412 W AYM 10/4/018 04 AM 12 i IN WITNESS WHEREOF, the Town and Owner have executed this First Amendment as of the day and year first above set forth OWNER: TRAER CREEK LLC, a Colorado limited liability company N e: Magn Lindholm Title: Manager EMD LRv=-D L_ IABILITY COMPANY, a Colorado limited liability company By: LAVA CORPORATION, a Colorado corporation, its Manager By = N agn indholm Title: President ATTEST: By: N )El1 AT Title: Secretary THE DISTRICT: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: i liam J. Pos Title: President 111111111111111111 I~I~IRIflI~INl~n~l~l -sms-:a. Sara j Fisher Eagle, CO 289 R 100.00 D S. 09 492674 12 MLAYM 10/4/018:04 AM . 13 0 THE TOWN: 0 TOWN OF AVON, a municipal corporation of the State of Colorado Nam Title: Mayor _ - Approved as to legal form by: A41--L~ - Name:;s;:,-t Title: Town Attorney 779049 Page: 18 of 20 12/10/2001 04:32P Sara J Fisher Eagle, CO 289 R 100.00 D 0.00 492674.12 MLAYM 10/4!01 8.04 AM 14 STATE OF COLORADO ) ss: COUNTY OF E-1^UE ) The foregoing instrument was acknowledged before me this I !VP^ day of albs Pw&oY , 2001, by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: STATE OF COLORADO ) ss: COUNTY OF Pt11VE. ) The foregoing instrument was acknowledged before me this 11^ day of ~v owJ, a,r , 2001, by Magnus Lindholm, as President of LAVA Corporation, a Colorado corporation, as Manager of EMD Limited Liability Company, a Colorado limited liability company. Witness my hand and official seal. My commission expires: MIYIIYIYIIIIII1I~ Page: 9009 » 1111111111111111111111111111' Sara J Fisher Eagle, CO 289 R 492674.12 MLAYM 10/4/018-04 AM 1$ STATE OF COLORADO ) ss: COUNTY OF EpM~ ) The foregoing instrument was acknowledged before me this 1141%- day of NWlrAj7"-- , 2001, by William J. Post as President of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: 4 Z c z~ Notary Public °i e. y X ~ 'Ali b!, a l STATE OF COLORADO ) I*cw t% ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 13 day of 2001, by Judy Yoder as Mayor of the Town of Avon, a municipal corporation of the State of Colorado. Witness my hand and official seal. My commission expires: Public 30 OF COLOP 111111111J111111111111111111111111111111111 20 Sara ~IIflIININI ,~°;:9,,m Easle, CO 289 R 166. 00 492674.12 MLAYM 10/4/01 9:04 AM 16 A S TOWN OF AVON ORDINANCE NO.01-16 SERIES OF 2001 AN ORDINANCE APPROVING THE, FIRST AMENDMENT (THE "AMENDMENT") TO THE ANNEXATION AND 'DEVELOPMENT AGREEMENT (THE "AGREEMENT") BETWEEN THE TOWN OF AVON (THE "TOWN") AND TRAER CREEK LLC, A COLORADO LIMITED LIABILITY COMPANY, _ EMD LIMITED LIABILITY COMPANY, A COLORADO LIMITED LIABILITY COMPANY (COLLECTIVELY THE "OWNER"), AND TRAER CREEK METROPOLITAN DISTRICT, A QUASI- MUNICIPAL CORPORATION AND POLITICAL SUBDIVSION OF THE STATE OF COLORADO (THE "DISTRICT") CONCERNING THE DEVELOPMENT RIGHTS AND RESPONSIBILITIES OF THE TOWN AND THE OWNER WITH RESPECT TO THE VILLAGE AT AVON; AUTHORIZING AND INSTRUCTING THE MAYOR OF THE TOWN TO SIGN THE AMENDMENT ON BEHALF OF THE TOWN, AND APPROVING A SITE SPECIFIC DEVELOPMENT PLAN ESTABLISHING A VESTED PROPERTY RIGHT PURSUANT TO ARTICLE 68 OF TITLE 24, C.R.S., AS AMENDED. ' WHEREAS, the Town and the Owner have negotiated the .terms and conditions of the First' Amendment to the Annexation and Development Agreement ("Amendment'), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, as used herein the term "Property" means those lands annexed into the Town by, and described in, Ordinance No. 98-15; and WHEREAS, the Town gave proper and timely posted notice of the dates and times of the meetings at which the Town Council considered the Amendment; and WHEREAS, the proposed full text of this Ordinance was duly published by posting in the office of the Town Clerk and in three (3) additional public places within the Town, and said publication also set forth the date and time of the public hearing at which the Town Council considered the Amendment; and WHEREAS,, Town of Avon Ordinance Number 98-16 establishes the zoning for the Property pursuant to the terms of a Planned Unit Development (the "PUD"); and WHEREAS, pursuant to Avon Municipal Code Section 17.14.100, the Town Council has agreed to designate the Amendment together with the Preliminary Subdivision Plan for the Property see Town of Avon Resolution Number 01-09) and Administrative Amendment No. 1 to the PUD as the site specific development plan for the Property; and WHEREAS, it is the intent of the Town Council that approval of said site specific development plan establish vested property rights pursuant to Article 68 of Title 24, C.R:S., as amended; and WHEREAS, approval of the Amendment is in the best interests of the public health, safety and general welfare of the people of the Town; and WHEREAS, the Town Council held a public bearing concerning the Amendment, and by this Ordinance sets forth its findings and conclusions. THE TOWN COUNCIL MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS: 1. The Amendment complies with all applicable laws and regulations of the State of Colorado and the Town, including, without limitation, Article 68 of Title 24; C.R.S. 2. All notices required for the public hearing at which the Town Council considered the Amendment were properly and timely published,, posted or mailed in accordance with all applicable laws and regulations of the State of Colorado and the Town. 3. The public hearing held on the Amendment was conducted in accordance with, all applicable laws and regulations of the State of Colorado and the Town. 4. The Town has authority to enter into the Amendment pursuant to Sections 24-68-104(2) and 31-15-101, C.R.S., and pursuant to Section 17.14.100 of the Avon Municipal Code. 5. The Town's approval of and entering into the Amendment is in the best interests of the public health, safety and general welfare of the people of the Town. 2 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, A. The Amendment together with the Preliminary Subdivision Plan for the Property see Town of Avon Resolution Number 01-09) and Administrative Amendment No. 1 for the PUD establishes a site specific development plan for the Property and vested property rights pursuant to Article 68 of Title 24, C.R.S., as amended. B. The Amendment is hereby approved, and the Town shall enter into it and perform its obligations. C. The Mayor of the Town is hereby directed to sign the Amendment on behalf of the Town. D. Within fourteen (14) days after passage on Second Reading of this Ordinance, the Town Clerk is hereby authorized and directed to: 1. Publish the full text of this Ordinance in a newspaper of general circulation within the Town; and 2. Concurrently with the publication required in Section D.1. above, publish a notice advising the general public that approval of, the Amendment pursuant to this Ordinance, together with separate approval of the Preliminary Subdivision Plan for the Property, and of Administrative Amendment No. 1 for the PUD, constitutes approval of a site specific development plan establishing a vested property right in accordance with the terms and conditions of the Amendment and pursuant to Article 68 of Title 24, C.R.S., as amended. The effective date of this Ordinance shall be seven (7) days after publication of the notice described in Section D.1. above. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED PUBLISHED this 23rd day of October, 2001 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 13t' day of November 2001, at 5:30 p.m. in the Avon Municipal Complex, 400 Benchmark Road, Avon, Colorado. Town of Avon, Colorado Town Council ATTEST: Kris Nash, Town Clerk Judy Yoder, Mayor INTRODUCED, - PASSED ON SECOND READING, APPROVED AND ORDERED POSTED, this 13th day of November, 2001. Town of Avon, Colorado Town Council ATTEST: Kris Nash, Town Clerk Judy Yoder, Mayor l APPROVED AS TO FORM: Town Attorney FIRST AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT This FIRST AMENDMENT TO ANNEXATION AND. DEVELOPMENT AGREEMENT (this "First Amendment") is made as of , 2001, by and between TR.AER CREEK LLC, a Colorado limited liability company ("Traer"), EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company ("BMD"), TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"), and the TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town"). RECITALS A. The Town previously executed that certain Annexation and Development Agreement dated as of :October 13, 1998, and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on November 25, 1998 (the "Original Agreement"). The Original Agreement pertains to certain real property generally known as The Village (at Avon) and more particularly described in Exhibit A attached to the Original Agreement (the "Property). The Property was then-owned by EMD, PVRT NOTT I LLC, PVRT NOTT II LLC and PVRT NOTT III LLC (the "Original Parties"), each of which was a signatory of the Original Agreement and which, collectively, constituted the "Owner" as that term was used in the Original Agreement. Subsequently, the other entities comprising the original "Owner" were merged into EMD, which became the sole "Owner" as that term is used in the Original Agreement. B. Pursuant to Section 1.4 of the Original Agreement, EMD has specifically granted to Traer, in writing, the right to amend the Original Agreement as to all of the Property except Planning Area M, with respect to which EMD retains the right to amend the Original Agreement. C. The District has been formed in order to finance and construct certain infrastructure improvements and to perform* certain other obligations of the Owner under the Original Agreement. Pursuant to Sections 4.4 and 6.9 of the Original Agreement, the District wishes to execute and be a party to this First Amendment in order to assume in writing certain obligations of the Owner under the Original Agreement. D. The Town, Traer, EMD and the District desire to modify certain terms and conditions of the Original Agreement as set forth in this First Amendment. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the Town, Traer, EMD and the District, as more particularly set forth herein, and in consideration of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Town, Traer, EMD and the District covenant and agree as follows:. 492674.12 MLAYER 11/8101 12:13 PM 1. Defined Terms. Unless otherwise defined in this First Amendment, capitalized terms used herein shall have the meanings ascribed to them in the Original Agreement. 2. Amendments. The Original Agreement is hereby modified as follows: (a) Section 1.1.10 is amended and restated to read in its entirety as follows: District: The Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, which is one of the Special Districts referred to in Section 4.4. All references to the term "Districts," or to the phrase "one or more of the Districts," shall be construed as a reference to the Traer Creek Metropolitan District. (b) A new Section 1.1.14(a) is inserted to read in its entirety as follows: EMD: EMD Limited Liability Company, a Colorado limited liability company. (c) Section 1. 1.26 is amended and restated to read in its entirety as follows: Owner: Collectively, EMD, Traer and their respective successors and assigns. With respect to those obligations of Owner which the District has expressly undertaken and assumed pursuant to Sections 4.4 and 6.9, references to the term "Owner" shall be construed to be references to the District only, and not as references to EMD and/or Traer. (d) A new Section 1.1.26(a) is inserted to read in its entirety as follows: Phase 1 Improvements: As defined in Section 43(b)(i). (e) A new Section 1.1.26(b) is inserted to read in its entirety as follows: Phase 2 Improvements: As defined in Section 4.3(b)(ii). (f) A new Section 1.1.26(c) is inserted to read in its entirety as follows: ' Phase 3 Improvements: As defined in Section 4.3(b)(iii). (g) A new Section 1.1.26(d) is inserted to read in its entirety as follows: Phase 4 Improvements: As defined in Section 4.3(b)(iv). (h) Section 1. 1.32 is amended and restated to read in its entirety as follows: Public Improvement Companies: As defined in Section 4.4. 492674.12 MLAYU 11/8/01 12.13 PM 2 (i) A new Section 1.1.34(a) is inserted to read in its entirety as follows: PUD Development Plan Administrative Amendment No. 1: As approved by the Town on June 2001, the development plan for the Project which amends in its entirety the Sketch/PUD Development Plan. 0) Section 1. 1.43 is amended and restated to read in its entirety as follows: Sketch/PUD Development Plan: The Village (at Avon) PUD Development/Sketch Plan for the Project, prepared by Peter Jamar Associates, Inc., and submitted to the Town on July 10, 1998, as approved by the Town and as amended in its entirety by the PUD Development Plan Administrative Amendment No. 1 and any approved future amendments thereto. Unless the context clearly indicates otherwise, all references to the term "Sketch/PUD Development Plan" shall be construed as a reference to the PUD Development Plan Administrative Amendment No. 1 and any approved future amendments thereto. (k) A- new Section 1.1.43(a) is inserted to read in its entirety as follows: Special Districts: Traer Creek Metropolitan District and The Village Metropolitan District. (1) A new Section 1.1.48(a) is inserted to read in its entirety as follows: Traer: Traer Creek LLC, a Colorado limited liability company. (m) Section 4.2 is amended and restated to read in its entirety as follows: 4.2 I-70 Improvements and Development Limitations. The District shall diligently pursue obtaining the necessary permits to facilitate the establishment and construction of the Interstate 70 Improvements, consisting of (i) a full diamond interchange on Interstate 70 (the "Interstate 70 Interchange") serving the proposed road that will cross interstate 70, as such road is depicted in the PUD Development Plan Administrative Amendment No. 1, and (ii) a road designed, in accordance with the road standards set forth in Section 1.5 of the PUD Guide, to connect the Interstate 70 Interchange to Highway 6 as depicted in the PUD Development Plan Administrative Amendment No. 1 (the "Highway, 6 Connector Road"), which Highway 6 Connector Road shall include, subject to obtaining all required permits and approvals, a roundabout at the intersection of Highway 6 and such Highway 6 Connector Road. The Town will cooperate (without any obligation to incur any out-of-pocket expenses to third parties that are not reimbursed by the District) with the District to cause completion of construction of the Interstate 70 Improvements by a target date of June 15, 2003 (the "Interstate 70 Completion Date"). At or prior to the time that CDOT so requires, the District shall provide to CDOT security in the form of a completion bond or in such other form acceptable to CDOT to ensure that adequate funds are available for completion of the Interstate 70 Interchange. The District shall deliver to the Town quarterly reports of the status of the permitting process. Development within the 492674.12 MLAYER 11/8/01 12.13 PM 3 Property prior to completion of the Interstate 70 Improvements shall be subject to the following provisions: (a) Prior to the District completing construction of the Interstate 70 Improvements, Owner shall be entitled to apply for and receive from the Town building permits and certificates of occupancy for forty percent (40%) of the Dwelling Units permitted under the Development Plan and three hundred fifteen thousand (315,000) square feet of Commercial Space. If the Interstate 70 Improvements are not completed by the Interstate 70 Completion Date, then the Town shall have no obligation to issue building permits for development in excess of the foregoing numbers after the Interstate 70 Completion Date until the Interstate 70 Improvements have been completed: However, if the Town issues a building permit which, upon completion of construction, will result in more than two hundred sixty thousand (260,000) square feet of constructed Commercial Space, cumulatively, within the Property, then the District shall have commenced construction of the Interstate 70 Interchange prior to the Town being obligated to issue any certificate of occupancy which will result in the occupancy of more than two hundred sixty thousand (260,000) square feet of constructed Commercial. Space, cumulatively, within the Property. (b) Except as described in subparagraph (a) of this Section 4.2, the Town shall have no obligation to issue building permits or certificates of occupancy for Dwelling Units or Commercial Space until construction of the Interstate 70 Improvements is completed. If (A) construction of any Dwelling Units or Commercial Space other than that described in subparagraph (a) of this Section 4.2 has been commenced but has not been completed on the Interstate 70 Completion Date, and (B) the Interstate 70 Improvements have not been completed by such Interstate 70 Completion Date, then, upon receiving written notice from the Town, the Owner shall cease construction of such Dwelling Units or Commercial Space, as the case may be. Notwithstanding the foregoing, upon written request of Owner, the Town may consent to issue building permits in excess of the restrictions set forth above and permit construction on projects in progress to continue to completion, and issue certificates of occupancy, past the Interstate 70 Completion Date, which consent shall not be unreasonably withheld or delayed. (n) Section 4.3(b) is amended and restated to read in its entirety as follows: (b) Subject to timely obtaining the necessary rights-of-way and permits, the District shall cause East Beaver Creek Boulevard to be connected to the western boundary of the 'Property and extended through the Property to the Highway 6 Connector Road (the "East Beaver Creek Boulevard Improvements"). The Town will timely obtain and make available to the District all property and rights-of-way required for the East Beaver Creek Boulevard Improvements and the out-of-pocket costs incurred by the Town in purchasing or otherwise obtaining such property and rights-of-way shall be reimbursed by the District. Construction of the East Beaver Creek Boulevard Improvements shall occur in phases, as set forth below: 492674.12 MLAYER 11/6/01 12:13 PM 4 (i) Phase 1 of the East Beaver Creek Boulevard Improvements (the "Phase 1 Improvements") shall consist of the construction of a temporary, non-public extension of an all-weather surface (dust free) service road (portions of the paved surface of the abandoned airport runway may be used) from the western boundary of the Property to the Highway 6 Connector Road. Such extension shall be used for construction traffic only, which construction traffic on the non-public service road shall not be subject to the Town's ordinances pertaining to vehicular weight restrictions. Construction traffic shall be subject to the Town's ordinances pertaining to vehicular weight restrictions upon issuance of the first certificate of occupancy (temporary or final) issued for an improvement within Planning Areas K or L. Subject to the Town's timely issuance of the requisite permits, the District shall employ commercially reasonable efforts - to cause completion of the Phase 1 Improvements prior to commencement of any vertical construction within Planning Area K or Planning Area L. (ii) Phase 2 of the East Beaver Creek Boulevard Improvements (the "Phase 2 Improvements') shall consist of (A) converting the Phase 1 Improvements to a two (2) lane paved temporary surface, and (B) a two (2) lane paved temporary surface connecting Chapel Place to the Phase 1 Improvements. Subject to the Town's timely issuance of the requisite permits, the District shall complete the Phase 2 Improvements by not later than the date on which the Town issues the first certificate of occupancy for Commercial Space within Planning Area K or Planning Area L. (iii) Phase 3 of the East Beaver Creek Boulevard Improvements (the "Phase 3 Improvements") shall consist of the following improvements to the segment of East Beaver Creek Boulevard between the western terminus of Beaver Creek Place and the western boundary of The Village (at Avon): (A) construction of a two-lane roadway with a third auxiliary lane at intersections and access points; (B) streetscape improvements to the segment between the western terminus and the eastern terminus of Beaver Creek Place, which improvements shall be in general conformance with the East Beaver Creek Boulevard Streetscape Improvement Plans dated April 2000, prepared by Inter-Mountain Engineering, Ltd. for the Town of Avon; and (C) streetscape improvements to the segment between the eastern terminus of Beaver Creek Place and the western boundary of The Village (at Avon), which improvements shall be in general conformance with the streetscape improvements within Planning Area A. Subject to the Town's timely issuance of the requisite permits, the District shall commence the Phase 3 Improvements by April, 15, 2005, and shall employ commercially reasonable efforts to cause completion of the Phase 3 Improvements on or before December 31, 2005; provided, however, that in the event of an earlier re-subdivision of any area within Planning Areas A through F, inclusive, within The Village (at Avon) 492674 12 MLAYU 11/8/01 12.13 PM 5 Filing No. 1; the District shall commence the Phase 3 Improvements by April 15, and shall employ commercially reasonable efforts to cause completion thereof by December 31, of the year immediately following the recordation of any final subdivision plat which re-subdivides any such area. (iv) Phase 4 of the East Beaver Creek Boulevard Improvements (the "Phase 4 Improvements") shall consist of converting the Phase 2 Improvements from temporary to permanent by the construction of (A) a permanent extension from the east terminus of Beaver Creek Place to the Highway 6 Connector Road in accordance with the road standards set forth in Section 1.5 of the PUD Guide, and (B) final design and construction of a connection to Chapel Place. The District shall cause the Phase 4 Improvements to be commenced and completed in accordance with the subdivision process involving Planning Areas A through J, inclusive. (o) Section 4.3(c) is amended and restated to read in its entirety as follows: (c) Subject to all necessary permits and approvals having been issued for the following described roadway improvements, which permits and approvals the District shall diligently pursue, the District shall construct a two-lane paved general circulation road with grades not exceeding ten . percent (10%) and otherwise in accordance with the road standards set forth in Section I-5 of the PUD Guide, which road shall extend easterly from the point where Swift Gulch Road terminates in Planning Area RMF-2 to the road designed to pass under Interstate 70 and serve Planning Areas RMF-1, RMF-3 and Residential Lot 1 and Lots 6-96 (the "Swift Gulch Road Improvements"). The Swift Gulch Road Improvements shall be completed at the time of completion of the Interstate 70 Improvements, and shall include six foot (6') wide paved shoulders on both sides, or, in lieu thereof, if mutually agreed upon by the District and the Town, a ten foot (10') wide paved bike / pedestrian path on one side of the road, which shall be separated from the roadway. Within sixty (60) days after receipt of an itemized statement and supporting documentation for such costs, the Town shall reimburse the District for the full cost of paving the six foot wide shoulders, based on the unit cost of asphalt paving for the Swift Gulch Road Improvements. (p) Section 4.3(d) is amended and restated to read in its entirety as follows: (d) Within thirty (30) days after the Town's issuance of the first certificate of occupancy (temporary or final) for any improvement within Planning Areas K or L, Owner shall convey to the Town a parcel of land which is described as "Lot 5, The Village (at Avon) Filing 1" in the final plan submittal package which Owner submitted to the Town on June , 2001. Upon Owner's determination of the location and subsequent to the recordation of a final plat for the relevant Planning Area, Owner shall convey to the Eagle River Fire Protection District a parcel of land to be used exclusively for construction and operation of a fire protection facility, which shall consist of approximately one buildable acre in a location designated by Owner, and which may 492674 12 MLAYER 11/8/01 12.13 PM 6 be located within Planning Area N or an "OS" or "P" Planning Area. The foregoing dedications constitute, collectively, the "Public Works Dedication." Construction and operation of the public works facility and the fire protection facility shall comply with the terms of the Development Plan and architectural standards and design guidelines established by the Design Review Board. In compliance with any such design guidelines, but at least ninety (90) days prior to commencing construction of any improvements on any such site or sites, the Town or the Eagle River Fire Protection District, as applicable, shall deliver to the Design Review Board copies of plans for such improvements. Owner or the District may at its sole option and at its sole expense, upgrade all or any portion of the exteriors of such improvements. (q) Section 4.3(i) is amended and restated to read in its. entirety as follows: 0) The District shall include in its first bond issue proceeds of no less than the amount reasonably estimated by the District to be the cost of constructing the Interstate 70 Interchange, which proceeds shall be dedicated to paying the costs of constructing such Interstate 70 Interchange. If, at the time of the District's first bond issue, it is not reasonably anticipated by the District and the Town that the Interstate 70 Interchange will be completed within three (3) years, the District may, with the approval of the Town, delay issuance of 'the Interstate 70 Interchange portion of such issue to avoid adversely affecting the federal income tax exemption of interest on the bonds, but only until such time as completion of the Interstate 70 Interchange is reasonably anticipated by the District and the Town to occur within three (3) years. Such bond proceeds shall be deposited into an escrow account to, among other things, ensure to the Town that, if the District fails to apply such bond proceeds toward purchase of a CDOT completion bond or as other security to CDOT as contemplated in Section 4.2, or otherwise towards construction of the Interstate 70 Interchange, the Town will have access to such proceeds for such purposes. The Town acknowledges, however, that if the District provides to CDOT the completion bond or other security acceptable to CDOT with respect to completion of the Interstate 70 Interchange as contemplated by the last sentence of Section 4.2, the District shall have no obligation to also provide separate security to the Town with respect to completion of the Interstate 70 Interchange. (r) Section 4.4 is amended and restated to read in its entirety as follows: 4.4 Public Facilities. Owner has created two public. improvement companies having as members all property owners within the Project (collectively, the "Public Improvement Companies") and two special districts (collectively, the "Special Districts") to facilitate financing and development of the infrastructure improvements and public facilities of the Project, including, without limitation, development of the road and utility improvements contemplated by the Development Plan. Owner reserves the right to create such additional public improvement companies and/or special districts as may be necessary or desirable from time to time, and the Town shall reasonably cooperate with Owner with respect to the creation of such additional entities. The formation documents of the Public Improvement Companies and the Special Districts, together with contracts entered into by and between the Public Improvement Companies and the Special Districts, require the Public Improvement Companies and the Special Districts to honor `their obligations under this Agreement, including the obligation of the Public 492674.12 MLAYM 11/8/01 12 13 PM 7 Improvement Companies to remit to the Special Districts the portion of the Project Fees equal to the corresponding Town tax. Accordingly, the Public Improvement Companies have established the mechanisms for imposing and collecting within 'the Property the Project Fees as contemplated in Section 4.5. The District will provide public facilities and services that the Town might otherwise have to provide, and has, entered into contractual arrangements with the Public Improvement Companies with respect to the performance and financing of such obligations. The Town shall cooperate with the operation of the. Special Districts, and with the implementation of the financing, development and maintenance of the public facilities for the Project. Pursuant to Section 4.11, the Public Improvement Companies shall keep sufficient records with respect to assessment and collection of the Project Fees, and shall require the filing of returns by the appropriate business or person with respect thereto, to ensure that there will be an adequate audit trail with respect to the matters addressed in this Section 4.4 and in Section 4.5. If the Public Improvement Companies are unable to collect any portion of the Project Fees due to delinquency, deficiency, or failure to file, the Public Improvement Companies may promptly notify the Town in writing, and the Town shall institute the procedures authorized under the Municipal Code to enforce and collect the corresponding Town tax, interest, penalties and costs. The Town shall then remit such tax revenues to the Public Improvement Companies or to the District, subject to the following conditions: (a) the Town shall retain an amount equal to its costs incurred .in enforcing its collection of taxes under the Municipal Code, as well as an administrative fee equal to [20%] of any tax and/or penalty actually collected; (b) the obligation is subject to any prior lien on such Town taxes securing the Town's sales tax revenue bonds outstanding as of the date of the Original Agreement; (c) the Town will have no responsibility to collect any increment of the Project Fees which is in excess of the corresponding Town tax or which is assessed against any transaction that is exempt from the corresponding Town tax under the Municipal Code as then in effect;, and (d) the Town does not guarantee or insure that it will be able to collect any delinquent or deficient Project Fees. Under no circumstances shall the Town be subject to any legal liability to the Public Improvement Companies or to the Special Districts on account of the Town's failure to collect some or all of the delinquent or deficient Project Fees on behalf of such entities. The Town acknowledges that if the person or entity which failed to timely pay such Project Fee subsequently remits such Project Fee to the Public Improvement Company, such payment shall result in the application of a simultaneous credit against such person or entity's tax obligation, which credit shall fully satisfy any corresponding tax liability to the Town. The Town shall nevertheless be entitled to recover from the Public Improvement Company the administrative fee and any costs incurred in the enforcement and recovery of such Project Fees. (s) The initial three sentences of Section 4.5 are amended and restated to read in their entirety as follows (all other sentences of Section 4.5 being unaffected hereby): The applicable Public Improvement Company may assess a sales and/or use fee on certain transactions occurring, and products used or consumed, within the 492674 12 MLAYU 1118/01 12 13 PM 8 Project, including any retail sales occurring and/or building materials used within the Project (such sales and/or use fees constituting, collectively, the "Retail Sales Fee"), and a real estate transfer fee on certain transfers of real property within the Project (the "Real Estate Transfer Fee"), and an accommodations/lodging fee on certain lodging accommodations transactions within the Project (the "Accommodations/Lodging Fee"). The portion of the proceeds of such Retail Sales Fee, Real Estate Transfer Fee and any Accommodations/Lodging Fee which is equal to the corresponding Town tax shall be pledged and remitted to one or more of the Districts, and any portion of such fees which exceeds the amount of the corresponding Town tax may be retained by the applicable Public Improvement Company, in either case to be applied toward payment of infrastructure and public facilities costs for ongoing operation, maintenance and administrative expenses of the Project, including, without limitation, contractual obligations of such Districts to the Town. Subject to the provisions set forth below, so long as the Public Improvement Company imposes such Retail Sales Fee, Real Estate Transfer Fee and/or Accommodations/Lodging Fee, in consideration therefor and for the remittance and application of proceeds from such Project Fees toward payment of the costs of providing and maintaining infrastructure improvements and public facilities for the Project as provided herein, the Town shall waive with respect to transactions occurring within the Project imposition of the corresponding retail sales taxes, use taxes, real estate transfer taxes and accommodations/lodging taxes otherwise applicable. within the Town, except any sales or accommodations tax increases duly adopted by the Town after the date of this Agreement, the proceeds of which increases are dedicated to specific projects identified in connection with such adoption. (t) Section 4.10(a)(iii) is amended and restated to read in its entirety as follows: (iii) The Property is included within the boundaries of, and is subject to property tax assessment for, the Eagle River Fire Protection District. Accordingly, the Town shall not include within any Municipal Services Invoice, and neither Owner nor the District shall have any obligation to the Town for, any assessment of cost for regional fire protection services. (u) Section 4. 1 0(a)(vi)(B) is deleted in its entirety. (v) Section 4.10(a)(vii) is amended and restated to read in its entirety as follows: (vii) the sum of all charges described in clauses (i) through (vi) above with respect to a particular Municipal Services Invoice shall constitute the total amount due to the Town from the Project and the Property with respect to the Town's provision of the Municipal Services for the applicable year (each, a "Required Municipal Services Payment"). 492674 12 MLAYER 11/8/01 12 13 PM 9 (w) The introductory sentence of Section 4.13 and subparagraph (a) of Section 4.13 are amended and restated to read in their entirety as follows (subparagraph (b) of Section 4.13 being unaffected hereby): 4.13 Design Review. Owner shall establish a design review board to review for conformity with the PUD Guide and applicable covenants, conditions and restrictions development proposals for the Property or any portion of the Property (the "Design Review Board"). (a) The Design Review Board shall consist of not more than five (5) members, one (1) of whom shall 'be a member of the Town's Planning and Zoning Commission designated by the Town from time to time, and the remainder of whom shall be appointed as provided in the governing documents of the Design Review Board. (x) A new Section 4.14(f) is inserted to read in its entirety as follows: (f) If the District becomes liable for payment to the Town of the applicable annual shortfall as described above because either Wal-Mart or City Market, or both, have vacated their respective present sites within the Town and relocated to a site within the Property, and if either Wal-Mart or City Market, or both, subsequently cease for any reason to operate in a site within the Property, then the applicable District shall thereupon be relieved from any further obligation or liability to the Town with respect to any further payment of the applicable annual shortfall even though such vacated space within the Property may later be occupied by a business that is substantially similar to Wal-Mart or City Market, as the case may be, but is unrelated to such entity; provided, however, that regardless of any change in ownership or change in the trade name used for the business, neither Wal-Mart nor City Market will be considered to have ceased to operate within the Property for so long as the business operation continues in a substantially similar form to that operated by Wal-Mart or City Market, as applicable, if such operation is conducted under the same or another name by an affiliate, parent or subsidiary of Wal-Mart and/or City Market, respectively. (y) Pursuant to the terms of Section 6.8; the parties hereby designate the following addresses for notice or communication in substitution of the addresses originally set forth in Section 6.8 (the substantive provisions of Section 6.8 being unaffected hereby): 492674 12 WAYER 11/8/01 12 13 PM 10 If to Town: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Manager With a copy to: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Attorney If to Owner by mail delivery: Traer Creek LLC EMD Limited Liability Company P.O. Box 640 Vail, Colorado 81658 Attn: William J. Post, Esq. Or, for delivery other than by mail: Traer Creek LLC - EMD Limited Liability Company 0322 East Beaver Creek Blvd. Avon, Colorado 81620 Attn: William J. Post, Esq. With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Thomas J. Ragonetti, Esq. Munsey L. Ayers, Esq. If to the District: Traer Creek Metropolitan District c/o McGeady Sisneros, P.C. 1675 Broadway, Suite 2100 Denver, Colorado 80202 Attn: Darlene Sisneros, Esq. 492674.12 MLAYER 11/8/01 12.13 PM 11 3. District's Assumption of Obligations; Release. By its execution of this First Amendment, and subject to the limitations set forth below, the District ratifies and assumes each and every obligation of the District and/or Districts as set forth and described in any provision of the Original Agreement, as contemplated in Sections 4.4 and 6.9 of the Original Agreement. The Town acknowledges that, pursuant to Section 6.9 of the Original Agreement, the District's foregoing express 'assumption of such obligations operates to relieve EMD and Traer of any further obligations under the Original Agreement, as modified by this First Amendment, with respect to those matters which the District has assumed. The Town further acknowledges that the District's assumption of such obligations is subject to annual budget and, appropriation, and is subordinate to any bonds issued by the District. 4. Effect of Amendment. Except as expressly modified by this First Amendment, the Original Agreement is unmodified, and is hereby ratified and affirmed, and shall remain in full force and effect in accordance with its terms. If there is any inconsistency between the terms of the Original Agreement and the terms of this First Amendment, the provisions of this First Amendment shall govern and control. 5. Authority to Amend; Vesting of Property Rights. In accordance with the terms and conditions of Section 1.4 of the Original Agreement, the Town's approval of this First Amendment is subject to the public notice and public hearing procedures required for approval of the Original Agreement. Because the Original Agreement constitutes a site specific development plan which established statutory vested property rights pursuant to Article 68 of Title 24, C.R.S., as amended, and because this First Amendment is an amendment thereto, the Town shall adopt an ordinance ratifying this First Amendment and shall cause publication of the notice described in Section 24-68-103(1), C.R.S., as amended. Pursuant to Section 17.14.050 of the Municipal Code: Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 6. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. 7. Counterparts. This First Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same instrument. 492674 12 MLAYER 11/8/01 12.13 PM 12 IN WITNESS * WHEREOF, the Town and Owner have executed this First Amendment as of the day and year first above set forth. OWNER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Magnus Lindholm Title: Manager EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: LAVA CORPORATION, a Colorado corporation, its Manager By: _ Name: Magnus Lindholm Title: President THE DISTRICT: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: William J. Post Title: President ATTEST: By: Name: Title: Secretary 492674 12 W AYU 11/8/01 12.13 PM 13 THE TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado Name: Title: Mayor Approved as to legal form by: Name: Title: Town Attorney 492674.12 MLAM 11/8/01 12 13 PM 14 STATE OF COLORADO COUNTY OF ss: The foregoing instrument was acknowledged before me this day of 2001, by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO COUNTY OF ss: The foregoing instrument was acknowledged before me this day of , 2001, by Magnus Lindholm, as President of LAVA Corporation, a Colorado corporation, as Manager of EMD Limited Liability Company, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public l 492674 12 MLAYER 11/8/01 12.13 PM 1 STATE OF COLORADO COUNTY OF ss: The foregoing instrument was acknowledged before me this day of , 2001, by William J. Post as President of Traer Creek Metropolitan District; a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2001, by as Mayor of the Town of Avon, a municipal corporation of the State of Colorado. Witness my hand and official' seal. My commission expires: Notary Public 492674 12 MLAYER 1118/01 12.13 PM 16 Memo To: Honorable Mayor and Town Council Yhru: Bill Efting, Town Manager From: Norm Wood, Town Engineer Ruth Borne, Director of Community Development Date October 4, 2001 Re: First Amendment to Annexation and Development Agreement between Traer Creek LLC ("Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon Summary: The purpose of this memo is to outline the changes from the original Annexation and Development Agreement ("Original Agreement') dated October 13, 1998 and the proposed First Amendment to Annexation and Development Agreement ("First Amendment") for the Village at Avon. The document is being revised to reflect the different development scenarios that have occurred. In any areas where the, First Amendment is not modifying the Original Agreement, then the Original Agreement will remain in force and effect. Parties to the Agreement: The Original Agreement was between EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II LLC, PVRT NOTT III LLC, collectively known as the Owner and the Town of Avon. The First Amendment indicates that the other entities were merged into EMD Limited Liability Company, which has become the sole Owner. In addition, EMD has specifically granted the right to Traer Creek LLC ("Traer") to amend the Original Agreement as to all of the Property with the exception,of Planning Area M, which is comprised of approximately 47 acres for "regional commercial development. Traer Creek Metropolitan District has been created to finance and construct infrastructure improvements, including public facilities consistent with the terms of the Original Agreement. All references to the term District shall now be construed to apply to Traer Creek Metropolitan District. PUD Development Plan: The Original Agreement referred to the Sketch/PUD Development Plan dated October 9, 1998, which has been amended by PUD Development Plan Administrative Amendment No. 1 to indicate the appropriate street alignments and planning areas. The First Amendment appropriately references the changes to the PUD. 1-70 Improvements: The Original Agreement, Section 4.2 required the 1-70 Interchange to be completed within four (4) years after the date of either the issuance of the first building permit for construction or six (6) months after date of Final Approval, whichever occurred first. That date was April 13, 2003. The First Amendment requires the Traer Creek Metropolitan District ("District") to complete construction of the 1-70 improvements by June .15, 2003, which is now referred to as "Interstate 70 Completion Date". Both the Original Agreement and the First Amendment require the District to provide CDOT with security in the form of a completion bond or in such other form acceptable to CDOT to ensure that adequate funds are available for completion of the 1-70 Interchange. Both agreements also require quarterly reports of the status of the permitting process be provided to the Town. The Original Agreement further permitted the Owner to complete construction of up to 40% of the dwelling units and 40% (260,00 square feet) of the commercial space prior to completing construction of the 1-70 Interchange. The First Amendment allows the Owner to receive building permits for 40% of the dwelling units and 315,000 square feet of commercial space until the Interstate 70 Completion date of June 15, 2003. No certificate of occupancy will be issued.for commercial space in excess of 260,000 sq. ft. if construction for the 1-70 Improvements has not commenced. East Beaver Creek Boulevard Improvements: The First Amendment has broken down the East Beaver Creek Boulevard Improvements into phases. The phasing of the improvements was not addressed in the Original Agreement. Phase 1 consists of a temporary (non-public) service road for construction traffic only which will connect at the Highway 6 Connector Road. The Phase 1 improvements should be completed prior to vertical construction in Planning Areas K and L (big box pad sites). Phase 2 Improvements consist of paving the two-lane temporary road and connecting a paved temporary road to Chapel Place. The Phase 2 improvements should be completed no later that the issuance of the first certificate of occupancy for Planning Areas K and L. Phase 3 Improvements include constructing a two=lane road and streetscape improvements to connect Beaver Creek Place and East Beaver Creek Boulevard consistent with the Town's East Beaver Creek Streetscape Improvements Plans. The District must commence these improvements by April 15, 2005 and complete by December 31, 2005. The Phase 3 Improvements must be completed earlier in the event there is any further subdivision in Planning Areas A-F. Phase 4 Improvements shall consist of converting the Phase 2 improvements to permanent roads. 0 Page 2 Swift Gulch Road Improvements: The Original Agreement allowed for a one lane gravel or paved road until the 1-70 Interchange was completed. After the Interstate 70 Improvements were substantially completed, then the Council could notify the Owner that the road be either an emergency access road or a two-lane paved general circulation road. There is no language regarding reimbursement for any of these costs. The First Amendment requires the Swift Gulch Road Improvements be completed at the time of completion of the 1-70 Improvements which include a two lane paved general circulation road with either six (6"0") wide paved shoulders on each side or a separated ten (107) wide paved bike/pedestrian path one side of the road. The Town is required to reimburse the District for the cost of the paved shoulder upon receipt of proper documentation. Public Works Site: The Original Agreement required the Owner or the District to convey when required for use by the Town up to three (3) parcels resulting in an aggregate of four- (4) buildable acres south of 1-70 for a public works facility and fire station site. No single parcel was greater than two (2) buildable acres. The First Amendment requires the District to convey the public works site, which is four (4) total acres and known as Lot 5, Filing 1 within thirty days after issuance of the first certificate of occupancy for any improvements within Planning Areas K and L. Fire Station and Fire Protection: The First Amendment references the creation of the Eagle River Fire Protection District ("ERFPD") and recognizes that the District is no longer liable to the Town for fire protection services. ERFPD will also receive one acre for fire station facilities in addition to the 4-acre Public Works site. Security of Bond Issue Proceeds for 1-70 Interchange: The Original Agreement required an IGA between the Town, the Owner, and CDOT to ensure completion of the 1-70 Interchange. The First Amendment does not require an IGA but does continue to require adequate assurance of the bond proceeds to cover the 1-70 Interchange improvements. The assurances include a construction performance completion bond for the contractor for labor and materials; the sale of bonds will go into escrow and administered by CDOT; and there is a liquidated damages clause in the event work on the 1-70 Improvements is not satisfactorily completed within the contract time. Collection of Delinquent Fees: According to the First Amendment, the Public Improvement Company may request the Town to assess delinquent Project Fees (tax, interest, penalties and costs). The Town retains the costs for enforcing the collection of taxes as well as an administrative fee equal to 20%. This provision was not addressed in the Original Agreement. Retail Sales Fee, Real Estate Transfer Fee and Accommodation/Lodging Fee: This provision has been amended to allow for the portion of proceeds of Retail Sales Fee, Real Estate Transfer Fee and Accommodation/Lodging Fee which is equal to 0 Page 3 the Town tax to be pledged to District(s). Any portion of such fees that exceed the Town tax will be remitted to the Public Improvement Company for payment of infrastructure and public facilities. Initially the proceeds were only remitted to one or more of the Districts. Use Tax/Fee: The First Amendment now incorporates a provision, which accommodates the possibility of imposing a use tax or fee. Indemnity for Lost Tax Revenues for Wal-Mart and City Market: The First Amendment clarifies the Original Agreement to protect the Town in the event either City Market or Wal Mart , an affiliate, parent or subsidiary of these companies relocates to the Village. The sales tax revenue is lost if either Wal Mart or City Market relocates to a location other than the Village. Attachment: First Amendment to Annexation and Development Agreement • Page 4 Memo To: Honorable Mayor and Town Council Thru: Bill Efting, Town Manager Front: Norm Wood, Town Engineer Ruth Borne, Director of Community Development Date October 4, 2001 Re: First Amendment to Annexation and Development Agreement between Traer Creek LLC ("Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon Summary: The purpose of this memo is to outline the changes from the original Annexation and Development Agreement ("Original Agreement") dated October 13, 1998 and the proposed First Amendment to Annexation and Development Agreement ("First Amendment") for the Village at Avon. The document is being revised to reflect the different development scenarios that have occurred. In any areas where the First Amendment is not- modifying,the Original Agreement, then the Original Agreement will remain in force and effect. Parties to the Agreement: The Original Agreement was between- EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II LLC, PVRT'NOTT III LLC, collectively known as the Owner and the Town of Avon. The First Amendment indicates that the other entities were merged into EMD Limited Liability Company, which has become the sole Owner. In addition, EMD has specifically granted the right to Traer Creek LLC ("Traer") to amend the Original Agreement as to all of the Property with the exception of Planning Area M, which is comprised of approximately 47 acres for regional commercial development. Traer Creek Metropolitan District has been created to finance and construct infrastructure improvements; including public facilities consistent with the terms of the Original Agreement. All references to the term- District shall now be construed to apply to Traer Creek Metropolitan District. PUD Development Plan: The Original Agreement referred to the Sketch/PUD Development Plan dated October 9, 1998, which has been amended by PUD Development Plan Administrative Amendment No. 1 to indicate the appropriate street alignments and planning areas. The First Amendment appropriately references the changes to the PUD. 1-70 Improvements: The Original Agreement, Section 4.2 required the 1-70 Interchange to be completed within four (4) years after the date of either the issuance of the first building permit for construction or six (6) months after date of Final Approval, whichever occurred first. That date was April 13, 2003. The First Amendment requires the Traer Creek Metropolitan District ("District") to complete construction of the 1-70 improvements by June 15, 2003, which is now referred to as "Interstate 70 Completion Date". Both the Original Agreement and the First Amendment require the District to provide CDOT with security in the form of a completion bond or in such other form acceptable to CDOT to ensure that adequate funds are available for completion of the 1-70 Interchange. Both agreements also require quarterly reports of the status of the permitting process be provided to the Town. The Original Agreement further permitted the Owner to complete construction of up to 40% of the dwelling units and 40% (260,00 square feet) of the commercial space prior to completing construction of the 1-70 Interchange. The First Amendment allows the Owner to receive building permits for 40% of the dwelling units and 315,000 square feet of commercial space until the Interstate 70 Completion date of June 15, 2003. No certificate of occupancy will be issued for commercial space in excess of 260,000 sq. ft. if construction for the 1-70 Improvements has not commenced. East Beaver Creek Boulevard .Improvements: The First Amendment has broken down the East Beaver Creek Boulevard Improvements into phases. The phasing of the improvements was not addressed in the Original Agreement. Phase 1 consists of a temporary (non-public) service road for construction traffic only which will connect at the Highway 6 Connector Road. The Phase 1 improvements should be completed prior to vertical construction in Planning Areas K and L (big box pad sites). Phase 2 Improvements consist of paving the two-lane temporary road and connecting a paved temporary road to Chapel Place. The Phase 2 improvements should be completed no later that the issuance of the first certificate of occupancy for Planning Areas K and L. Phase 3 Improvements include constructing a two-lane road and streetscape improvements to connect Beaver Creek Place and East Beaver Creek Boulevard consistent with the Town's East Beaver Creek Streetscape Improvements Plans. The District must commence these improvements by April 15, 2005 and complete by December 31, 2005. The Phase 3 Improvements must be completed earlier in the event there is any further subdivision in Planning Areas A-F. Phase 4 Improvements shall consist of converting the Phase 2 improvements to permanent roads. X Page 2 Swift Gulch Road Improvements: The Original Agreement allowed for a one lane gravel or paved road until the 1-70 Interchange was completed. "After the Interstate 70 Improvements were substantially completed, then the Council could notify the Owner that the road be either an emergency access road or a two-lane paved general circulation road. There is no language regarding reimbursement for any of these costs. The First Amendment requires the Swift Gulch Road Improvements be completed at the time of completion of the 1-70 Improvements which include a two lane paved general circulation road with either six (6"0") wide paved shoulders on each side or a separated ten (10'0") wide paved bike/pedestrian path one side of the road. The Town is required to reimburse the District for the cost of the paved shoulder upon receipt of proper documentation. Public Works Site: The Original Agreement required the Owner or the District to convey when required for use by the Town up to three (3) parcels resulting in an aggregate of four (4) buildable acres south of 1-70 for a public works facility and fire station site. No single parcel was greater than two'(2) buildable acres. The First Amendment requires the District to convey the public works site, which is four (4) total acres and known as Lot 5, Filing 1 within thirty days after issuance of the first certificate of occupancy for any improvements within Planning Areas K and L. Fire Station and Fire Protection: The First Amendment references the creation of the.Eagle River Fire Protection District ("ERFPD") and recognizes that the District is no longer liable to the Town for fire protection services. ERFPD will also receive one acre for fire station facilities in addition to the 4-acre Public Works site. Security of Bond Issue Proceeds for 1-70 Interchange: The Original Agreement required an IGA between the Town, the Owner, and CDOT to ensure completion of the 1-70 Interchange. The First Amendment does not require an IGA but does continue to require adequate assurance of the bond proceeds to cover the 1-70 Interchange improvements. The assurances include a construction performance completion bond for the contractor for labor and materials; the sale of bonds will go into escrow and administered by CDOT; and there is a liquidated damages clause in the event work on the 1-70 Improvements is not satisfactorily completed within the contract time. Collection of Delinquent Fees: According to the First Amendment, the Public Improvement, Company may request the Town to assess delinquent Project Fees (tax, interest, penalties and costs). The Town retains the costs for enforcing the collection of taxes as well as an administrative fee equal to 20%. This provision was not addressed in the Original Agreement. Retail Sales Fee, Real Estate Transfer Fee and Accommodation/Lodging Fee: This provision has been amended to allow for the portion of proceeds of Retail Sales Fee, Real Estate Transfer Fee and Accommodation/Lodging Fee which is equal to M Page 3 the Town tax to be pledged to District(s). Any portion of such fees that exceed the Town tax will be remitted to the Public Improvement Company for payment of infrastructure and public facilities. Initially the proceeds were only remitted to one or more of the Districts. Use Tax/Fee: The First Amendment now incorporates a provision, which accommodates the possibility of imposing a use tax or fee. Indemnity for Lost Tax Revenues for Wal-Mart and City Market: The First Amendment clarifies the Original Agreement to protect the Town in the event either City Market or Wal Mart, an affiliate, parent or subsidiary of these companies relocates to the Village. The sales tax revenue is lost if either Wal Mart or City Market relocates to a location other than the Village. Attachment: First Amendment to Annexation and Development Agreement X Page 4 Memo To: Honorable Mayor and Town Council Thru: Bill Efting, Town Manager Norm Wood, Town Engineer i From: Ruth Borne, Director of Community Development SJ.' Date November 8, 2001 Re: Second Reading of Ordinance 01-16 Approving the First Amendment to the Annexation and Development Agreement between Traer Creek LLC ("Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon (PUBLIC HEARING) Summary: The original Annexation and Development Agreement ("Original Agreement') dated October 13, 1998 was approved contemporaneously with the Annexation, Final Plat and PUD Development Plan for the Village at Avon. The First Amendment to Annexation and Development Agreement ("First Amendment") for the Village at Avon reflects the legal, fiscal and ownership issues associated with the revisions to the Preliminary Plan for Filing 1 and Administrative Amendment No.1 to the PUD. These development scenarios are more definitively described in the Memo dated October 4, 2001 which is attached hereto for your review. Recommendation: Staff recommends that the Town Council approve Ordinance 01-16, Approving the First Amendment to the Annexation and Development Agreement between Traer Creek LLC ("Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon. Alternatives 1. Approve 2. Approve with conditions 3. Table 4. Deny the Ordinance 01-16 Proposed Motion: "I move to approve on second reading Ordinance 01-16, Approving the First Amendment to the Annexation and Development Agreement between Traer Creek LLC Traer), EMD Limited Liability Company ("EM D"), Traer Creek. Metropolitan District and the Town of Avon. Town Manager Comments Attachment: Ordinance 0,1- Exhibit "A" - First Amendment to Annexation and Development Agreement Memo to Council dated October 4, 2001 I:\Fngineenng\Avon Village\Agreements\Ord Amend Amex Dev Agrmt-Menm-3.Doce Page 2 Memo To: Honorable Mayor and Town Council Thm: Bill Efting, Town Manager Prom: Norm Wood, Town Engineei%&j Ruth Borne, Director of Community Development Date _ October 17, 2001 Re: First Reading of Ordinance 01-16 Approving the First Amendment to the Annexation and Development Agreement between Traer Creek LLC ("Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon Summary: The original, Annexation and Development Agreement ("Original Agreement") dated October 13, 1998 was approved contemporaneously with the Annexation, Final Plat and PUD Development Plan for the Village at Avon. The First Amendment to Annexation and Development Agreement ("First Amendment") for the Village at Avon reflects the legal, fiscal and ownership issues associated with the revisions to the Preliminary Plan for Filing 1 and Administrative Amendment No.1 to the PUD. These development scenarios are more definitively described in the Memo dated October 4, 2001 which are attached hereto for your review. - Recommendation: Staff recommends that the Town Council approve Ordinance 01-16; Approving the First Amendment to the Annexation and Development Agreement. between Traer Creek LLC CTraer), EMD Limited Liability Company ("EMD'),.Traer Creek Metropolitan District and the Town of Avon. Altematives 1. Approve 2. Approve with conditions 3. Table 4. :Deny the Ordinance 01-16 Proposed Motion: "I move to approve on first reading Ordinance 01-16, Approving the FirstAmendment to the Annexation and Development Agreement between Traer Creek LLC (`Traer), EMD Limited Liability Company ("EMD"), Traer Creek Metropolitan District and the Town of Avon. Town Manager Comments Attachment: Ordinance 1-16 Exhibit "A"- First Amendment to Annexation and Development Agreement Memo to Council dated October 4, 2001 % Page 2