TC Ord. No. 2004-01 Approving the lot 61 planned unit development PUD for lot 61 block 2 benchmark at Beaver Creek subdivision TOA eagle county Co868660 l y
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TOWN OF AVON
ORDINANCE NO. 04-01
SERIES OF 2004
AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2,
BENCHMARK AT. BEAVER CREEK SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO.
WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit
Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, the Town and the Owner have negotiated the terms and conditions of the
Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision
("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on January 6, 2004, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
PUD Development Plan; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of
the Town of Avon; and
. WHEREAS, after notices provided by law, this Council held a public hearing on the
1Dt day of , 2004, at which time the public was given an opportunity to
express their opinions r ding the proposed PUD Development Plan; and
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WHEREAS, based upon the evidence, testimony, and-exhibits, and a study of the
Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the Lot 61 PUD Development Plan is consistent with the recently adopted
Town Center Plan, the goals and objectives of the Town's Comprehensive Plan,
and is compatible with surrounding neighborhood and the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the
following conditions:
1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town, as required by Section 17.14. 100 of the
Avon Municipal Code, prior to issuance of a building permit to amend the Town's
Augmentation Plan.
2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is
required to complete subsequent design review approval, which consists of compliance
with the Town Center Design Guidelines and the Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines.
3. Except as otherwise modified by this approval, all material representations made by the
applicant or applicant representative(s) in this application and in public hearing(s) shall
be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this alt-' day of , 2004, and a public hearing shall be held at the
reiaular meeting of the Town Council o e Town of Avon, Colorado, on the ld~ day of..
2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
Town of Avon, Colorado
Town Council
C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
ATTEST:
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Town erk
Mayor
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INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the 10 t day of 2004.
Town of Avon, Colorado
Town Council
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ATTEST:..,
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APPROVED AS TO FORM:
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Toxtn Attorney
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C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files'DI-MOrd 04-01 L61 B2 BMBC PUD.doc
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Exhibit "A" to Ordinance 04-01
DEVELOPMENT AGREEMENT
. FOR
LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION
THIS DEVELOP 4ENT AGREEMENT (this "Agreement") is made and entered into as
of February, 2004 by and between IDG3, LLC, a Limited Liability Company,
its successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal
corporation of the State of Colorado (the "Town").
RECITALS:
A. Owner is a limited liability company, duly organized and in good standing
under the laws of the State of Colorado.
B. Owner owns a parcel of real property generally referred to as "Lot 61" as
more particularly described in Exhibit A attached to this agreement ("Lot
61
C. The Town and the Owner desire to develop Lot 61 as a mixed-use
development consistent with the Avon Town Center Implementation Plan
thereby creating new property lines for Lot 61, development standards, rights-
of-way and a transportation center. This new parcel is referred to as the
"Property".
D. The Property contains specific development standards attached and
incorporated herein as a site-specific development plan entitled "Lot 61 PUD
Development Plan" (Exhibit "B") and as set forth in Article III of this
Agreement.
E. The Town has authority to zone and govern development of the Property in
accordance with this Agreement, the Avon Comprehensive Plan, The Avon
Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61
PUD (as defined herein), and other applicable Town requirements and polices.
F. In order to ensure orderly controlled development by establishing minimum
design standards, including streets and other forms of vehicular and pedestrian
access, drainage, water supply and sanitation improvements to support human
occupation, it is necessary to require subdivision consistent with Title 16,
Avon Municipal Code.
G. The Property includes specific design requirements as set forth by the Town
Center Implementation Plan, which is further defined and supported by the
Town of Avon Residential, Commercial, and Industrial Design Review
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Guidelines. Specifically, the project will comply to the following general
design intentions:
■ Building facades will be stepped to avoid long straight walls. All sides of
the building must receive equal architectural treatment.
■ The building will be designed as a composition of architectural elements
rather than larger single blocks that appear unrelated in form and context.
■ The street-level architecture will activate and enhance pedestrian activity
on Main Street (the mall level), encouraging a lively center of retail
activity year round.
Additionally, the project will comply with the following site-specific
guidelines:
Articulation of building facades:
Building facades shall be articulated with variations in materials and
punctuated with intermediate roof forms and building projections.-Varying
expressions of decks, windows and surface treatments shall be combined
to create a rich texture that will enhance the interest of the facades. The
three primary components of the building's base, body and top shall be
clearly and deliberately expressed. The building's base shall express mass
and support with the use of such materials as stone and architectural
concrete.
The "body" of the building shall begin to erode materials that express
mass to lighter materials and more openings and surface variations such as
decks and changes in wall plane. Roofs shall be proportional to the height
and scale of the various building elevations.
The east end of the primary roof(s) and upper portion of the walls shall be
articulated so as to minimize their visual impact to surrounding properties
which may include the use of decks and the lowering of roof lines.
Roofs at north property line:
In addition to the suggested wall treatments noted above, these roofs shall
be adequately varied to avoid uninterrupted flat roofs. Approximately 50%
of the elevation above 28' above grade shall be articulated through the
introduction of discontinuous roof forms such as gables perpendicular to
the wall plane and variations in roof edges, relative to the setback line.
H. The legislature of the State of Colorado adopted Sections 24-68-101, et seq. of
the Colorado Revised Statutes (the "Vested Property Rights Statute") to
provide for the establishment of vested property rights in order to ensure
reasonable certainty, stability and fairness in the land use planning process
and in order to stimulate economic growth, secure the reasonable investment
backed expectations of landowners, and foster cooperation between the public
and private sectors in. the area of land use planning; said Vested Property
2 1111 Jill 111111111111111111111111 Jill 868660
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Rights Statute authorizes the Town to enter into development agreements with
landowners providing for vesting of property development rights.
1. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the
Municipal Code authorizes the Town to enter into development agreements
with landowners and other qualified applicants providing for the vesting of
property development rights.
J. Development of the Property in accordance with this Agreement will provide
for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he
Comprehensive Plan, the Avon Town Center Implementation Plan, ensure
reasonable certainty, stability and fairness in the land use planning process,
stimulate economic growth, secure the reasonable investment-backed
expectations of Owner, foster cooperation between the public and private
sectors in the area of land use planning, and otherwise achieve the goals and
purposes for which the Vested Property Rights Statute and Chapter 17.14 of
the Municipal Code were enacted. In exchange for these benefits and the other
benefits to the Town contemplated by this Agreement, together with the
public benefits served by the orderly development of the Property, Owner
desires to receive the assurance that it may proceed with development of the
Property pursuant to the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and
the Town agree as follows:
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.0 Definitions. The following terms and references shall have the meaning set forth
below unless the context in which they are used clearly indicates otherwise:
1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the
Planning and Zoning Commission of the Town on November 5, 1996, or any
subsequent duly adopted plans or amendments thereto.
1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD
Development Plan" incorporated herein and further defined in Sections 3.2 of
this Agreement.
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1.3 Effective Date. The effective date of the Town Council Ordinance approving
this Agreement and the recording of the relevant subdivisions referenced
herein with the Clerk and Recorder of Eagle County, Colorado.
1.4 Exhibits. The following are Exhibits to this Agreement, all of which are
incorporated by reference into and made a part of this Agreement:
Exhibit A Legal Description of Lot 61
Exhibit B Lot 61 PUD Development Plan, including Benchmark
Court Right of Way and Transportation Center location
1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any
municipal lodging or accommodations tax imposed by the Town pursuant to
Ch. 3.28, Avon Municipal Code or any similar code provision enacted during
the T erm o f t his A greement u pon a ny s ales o r rental o f t odging w ithin t he
Property.
1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time.
1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code.
1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61
. PUD Development Plan as set forth in Exhibit "B".
1.9 PUD. Planned unit development or PUD, as such terms are defined and used
in Section 17.20.110 of the Municipal Code.
1.10 Sanitation District. Eagle River Water and Sanitation District.
1.1 Subdivision. Means to make a disposition of land or airspace which is
defined as a subdivision, subdivided land, condominium subdivision, estate in
airspace, specially planned area and/or planned unit development subdivision,
minor subdivision, duplex subdivision or time-sharing subdivision consistent
with Title 16, Avon Municipal Code.
1.12 Time-share owner. Means a person vested with legal title to a timeshare
estate in accordance with Section 38-33-110, Colorado Revised Statutes
(2003).
1.13 Time-share unit. Means a unit the title to which is or is to be divided into
interval estates or time-span estates in accordance with Section 38-33-110,
Colorado Revised Statutes (2003).
4
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1.14 Town. The Town of Avon, a municipal corporation of the State of
Colorado.
1.15 Town Council. The Town Council of the Town.
1.16 Lot 61. The real property described in Exhibit A attached hereto.
1.17 Vested Property Rights Statute. As defined in Recital H.
1.18 Zoning. The passing of land use ordinances and regulations authorized
by the Statutes of the State of Colorado and by Article XX of the Colorado
Constitution, and more specifically through the Avon Municipal Code, Title
17, intended to ensure that zoning promotes stated benefits to the citizens of
the Town.
1.19 Zoning Application. The zoning application for the parcel comprising the
Property submitted to the Town on J-UKjr-- Z t> , 2004.
1.20 Avon Town Center Implementation Plan. The plan adopted by the Town
on November 6, 2001 regarding development in the area commonly known as
the Town Center.
ARTICLE II
COVENANTS; THIS AGREEMENT
2.1 Term. In recognition of the size of the development contemplated under this
Agreement, the substantial investment and time required to complete the
development of the Property, and the possible impact of economic cycles and
varying market conditions during the course of development, Owner and the Town
agree that the term of this Agreement and the vested property rights established
under this Agreement shall commence on the Effective Date and shall continue until
the 5th anniversary of the Effective Date. After the expiration of the Term, this
Agreement shall be deemed terminated and of no further force and effect, provided,
however that such termination shall not effect (a) any rights-of-way and uses of
property granted to the Town related to the transportation center, or (b) any right
arising from Town permits, approvals or other entitlements for the Property which
were granted or approved prior to the 5th anniversary of the Effective Date.
2.2 Amendment of Agreement. Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and
Owner in writing following the public notice, public hearing and revised ordinance
procedures required for approval of this Agreement stated in Section 17.20.110
(Planned Unit Development) et al of the Avon Municipal Code. For the purpose of
any amendment to this Agreement, "Owner" shall mean only the Owner as defined
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herein and those parties, if any, to whom such signatories have specifically been
granted, in writing by Owner, the power to enter into such amendments.
2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other
proceeding is commenced by a third party challenging the validity of any provision of
this Agreement or the Development Standards, Owner and the Town agree to
cooperate in defending such action or proceeding and to bear their own expenses in
connection therewith. Unless the Town and Owner otherwise agree, each party shall
select and pay its own legal counsel to represent it in connection with such action or
proceeding.
ARTICLE III
ZONING, VESTED RIGHTS AND EXACTIONS
3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement
and in the respective Development Standards. Complete zoning and site plans are
attached in Exhibit B, the Lot 61 PUD Development Plan.
3.2 Development Standards. The "Development Standards" set forth the zoning for the
Property, and indicate, among other things, setback distances, building height
limitations, site coverage levels, development densities, allowed uses (both
permitted uses by right and those permitted upon special review), parking
requirements and other guidelines and limitations for the development of the
Property and are specifically set forth in Exhibit "B".
(a) Subsequent Final Plan Approval. Pursuant to this Agreement the
Property is now PUD Zoning pursuant to Section 3.4(a). This constitutes a
Site-Specific Development Plan for the purposes of establishing vested
rights. Owner and the Town shall, in a manner which is uniform of the
Town and consistent with the provisions of Section 2.1 and Section 3.4 (d)
further refine the design of the improvements and other details, all
consistent with the Development Standards and this Agreement
collectively, "Subsequent Final Design Review Plan Approval." The
subsequent Final Design Review Plan Approval will consist of compliance
with the Town Center Implementation Plan, Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines, and relevant
portions of the Avon Municipal Code.
(b) Development Approval. Simultaneously with the granting of PUD
Zoning of the Property pursuant to Section 3.4 (a), the Town hereby
approves the Lot 61 PUD Development Plan (Exhibit `B").
3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement. and the
Development Standards and the Lot 61 PUD Development Plan constitute an
approved "site-specific development plan" as defined in the Vested Property Rights
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Statute and Section 17.14.100 of the Avon Municipal Code and subsequent
compliance with Section 17.12.020 of the Avon Municipal Code which the Town
acknowledges and (b) that Owner as the legal owner of the Property shall have
vested property rights to undertake and complete development and use of the
Property as provided in this agreement and the Development Standards. Pursuant to
Section 17.14.050 of the Municipal Code, approval of this Agreement and the
Development Standards constitutes a vested property right pursuant to Article 68 of
Title 24, C.R.S., as amended.
3.4 Property Rights Vested. The rights identified below shall constitute the vested
property rights under this Agreement:
(a) The right to develop plan and engage in land uses with the Property in the
manner and to the extent set forth in and pursuant to this Agreement, the
Development Standards and the Lot 61 PUD Development Plan.
(b) The right to develop, plan and engage in land uses with the Property in
accordance with the densities, physical development standards and other
physical parameters set forth in the Development Standards.
(c) The right to develop the Property in the order, at the rate, and at the time
as in arket c onditions d ictate, s ubj ect t o t he t erms a nd c onditions o f t his
Agreement and the Development Standards.
(d) The right to develop and complete the development of the Property
(including, without limitation, the right to receive all properly applied for
and complete application approvals necessary for the development of the
Property) with conditions and standards determined pursuant to Section
3.2(b) which conform to the regulations and guidelines imposed by the
Town . set forth in this Agreement and the Development Standards,
provided that such conditions, standards and dedications shall not directly
or indirectly have the effect of materially altering, impairing, preventing,
diminishing, delaying or otherwise materially adversely affecting any of
Owner's rights set forth in this Agreement or the Development Standards.
(e) The Town shall not initiate any zoning, land use or other legal or
administrative action that would directly or indirectly have the effect of
materially altering, impairing, preventing, diminishing, delaying or
otherwise adversely affecting any of Owner's rights that do not apply to
other properties in the Town, as set forth in this Agreement or the
Development Standards.
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3.5 Exactions. The following exactions are intended to provide adequate facilities,
pedestrian and vehicular access, and other related improvements for the public
benefit of the Town:
(a) Right-of-Way Dedication. The newly created right-of-way referred to as
"Benchmark Court" will be dedicated to the Town by the approved Final
Plat, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Final
Plat") in accordance with Title 16, Avon Municipal Code
contemporaneously with the approval of this Agreement and the Lot 61
PUD Development Plan.
(b) Drainage. On site drainage facilities for the Property shall be provided by
Owner to handle drainage resulting from the development of the Property.
(c) Building Setbacks and Encroachments. It is the intention of the Town to
provide for necessary at grade and above grade setbacks to allow for the
building and/or structure to encroach as depicted on plans shown in
Exhibit B.
These provisions for allowing the building and/or structure elements over
and on the Town property will be set forth in the Resubdivision of Lot 61,
A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
("Resubdivision") and must be approved contemporaneously with this
Agreement. The Resubdivision contains specific plat restrictions, which
require as-built drawings upon the construction of the Property or the
Resubdivision will be vacated subject to the terms and conditions of
Section 2.1.
(d) Transportation Center. The Final Plat shall also include an easement for a
Transportation Center, including necessary at grade and above grade
setbacks as depicted on Exhibit B.
In the event the Town elects to proceed with construction of the
Transportation Center prior to the commencement of construction of the
Lot 61 PUD Development Plan, then written notice must be provided to
the Owner prior to 180 days of commencement of construction.
The Town agrees to provide mechanical ventilation consistent with the
current building code at the time of building permit application for the
Transportation Center as part of the construction of the Lot 61 PUD
Development Plan. Positive chase and ductwork for the Transportation
Center will be provided by the Owner.
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Noise generated by public transportation vehicles at the proposed
Transportation Center shall be reduced to the maximum extent reasonably
possible and in no case shall it raise the ambient sound level above the No
Impact for Category I or 2 Sites as shown in the following Table 3-1 from
Transit Noise and Vibration Impact Assessment, Final Report April 1995,
prepared by Harris Miller Miller & Hanson, Inc. for the Office of
Planning, Federal Transit Administration, U. S. Department of
Transportation. The existing level of ambient noise, project noise and
allowable noise levels shall be established in accordance with applicable
procedures, methods and criteria conforming to the above referenced
Impact Assessment, Final Report.
The owner of Lot 61 will assume responsibility for the isolation of
vibration transmission to the structure, supporting the residential and
commercial occupancies, from the Transportation Center.
The owner of Lot 61 will assume responsibility for the attenuation of
sound transmission, from the Transportation Center to the residential and
commercial occupancies such as the introduction of acoustic blankets,
resilient suspension devices and the like associated with the base building
construction.
The Town of Avon will assume the responsibility of constructing the
specific Transportation Center shelter and transit administrative office.
They will be designed with sufficient mass and structural isolation to
provide whatever measures needed to attain the acoustic criteria.
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3-4 Transit Noise and Vibration Impact Assessment.
Table 3-1 Noise Levels Derming Impact for Transit Projects
Existing
Project Noi
se Impact Exp
osure; L,q(h) or
L,m (dBA)
Noise
Exposure'
Category 1 or 2 Sites
I
Category 3 Sites
L,„ (h) or L,,,,
I
I
(
Severe
(dBA)
No Impact
Impact
Severe Impact
No Impact
I Impact i
Impact
<43
f
j
<Ambient+l
Ambient +
0
>Ambient+15
<Ambient+15
Ambient +
>Ambient+20
10 to 15
I
15 to 20
43
I <52
52-58
>58
<57
57-63
>63
44
I <52
I 52-58
>58
<57
57-63
>63
45
<52
II 52-58
>58
<57
I 57-63
>63
46
<53
I 53-59
>59
<58
58-64 I
>64
47
I 153
53-59 j
>59
I 158
58-64 1
>64
48
<53
53-59
>59
I <58
58-64
>64
49
<54
54-59
>59
i <59
59-64
>64
50
<54
54-59
>59
<59
i 59-64
>64
51
<54
j 54-60 ;
>60
<59
i
I 59-65
>65
52
<55
55-60
>61)
<60
60-65
>65
53
<55
55-60 i
>60
! <60
60-65
>65
54
<55
55-61
>61
<60
60-66 I
>66
55
<56
56-61 ;
>61
<61
! 61-66
>66
56
<56
I, 56-62 I
>62
I <63
61-67
>67
57 ,
<57
57-62 j
>62
<62
62-67 I
>67
58
<57
57-62
162
<62
62-67
>67
59 '
<58
58-63
>63 I
<63
63-68
>68
60
<58
58-63
>63
<63 (
63-68
:>fi$
61
<59
59-64
>64
<64
64-69
>69
62
<59
I 59-64 1
>64
<64 ;
64-69
>69
63
<60
60-65
>65
<:65 i
65-70
>70
64
<61
j 61-65
>65
<66
66-70
>70
65
<61
61-66
:>66 1
<66 f
66-71
>71
66
<62
I 62-67
>67 I
-c67 (
67-72
>72
67
<63
63-67
>67 I
68 {
68-73 I
>72
68
<63
63-68
>68
<68 i
68-73 I
>73
69
<64
64-69 ~
>69
<69
69-74 j
>74
70
(
<65
65-69
>69
<70 i
70-74 j
>74
71
<66
66-70
>70
<71
71-75
>75
72
<:66
66-71
X71
<71
71-76
>7fi
73
<66
66-71
>71 I
<71
71-76 j
>7,6
74
<66
66-72
>72 I
f
<71
71-77 I
>77
75
<66
I 66-73
.
>73
<71
71-78 (
>74.
76 I
<06
66-74
>74
<71
71-79
>74)
77
<66
I 66-74
>74
<-71
71-79 I
>79
>77 j
<66
66-75
>75
<71 I
71-80 !
>St3
I, is used for l
and use where n
ighttime sensitivity is
a factor.- L., du
ring the hour of r
u ximum transit noise exposure
is used for land use involving only daytime activities.
(e) Transit Administrative Office: A minimum of 400 square feet of floor area
on the ground level adjacent to the Town Transportation Center for typical
administrative purposes including rough-in plumbing for public restroom
facilities associated with transportation must be dedicated upon
construction of the Transportation Center by the Town and/or with design
review approval for Lot 61.
(f) Water Rights: The developer will be responsible for the acquisition of
additional water rights and their subsequent dedication to the Town if
necessary to amend the Town's Augmentation Plan based upon the
specific proposal applied for.
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. 1111111111111111111111111111111111111111111111111111111 Teak J Simonton Eagle: CO 289 R 126.02/23D 0000 4:54P
(g) Timeshare Amenities Fee: Commencing as of the effective date of this
Agreement, and continuing in perpetuity, the timeshare ownership
association formed to manage the timeshare ownership project located on
Lot 61 is obligated to collect from each timeshare owner and remit to the
Town a Timeshare Amenities Fee. The Owner is exempt from the
obligation for the timeshare amenities fee until the first-time sale of a
timeshare interval. The provisions for the obligation for each timeshare
owner to pay shall be a covenant running with the land and reflected
accordingly on the Resubdivision Plat and association covenants. Prior to
the formation of any timeshare ownership association, the Owner shall be
obligated to collect and remit any and all Timeshare Amenities Fee.
The number of units shall be calculated at the time of time-share
subdivision. The fee shall be paid to the Town semi-annually and will be
based upon the following schedule:
Number of Units Constructed
Per Timeshare Week*
125 -149 Timeshare Units
$ 58.35
150 -174 Timeshare Units
$ 48.52
175 - over Timeshare Units
$ 41.51
* Timeshare Week is defined as seven (7) consecutive days constituting a
maximum of fifty-two (52) intervals per calendar year.
The amount of the semi-annual payments will be calculated according to
the following formula:
Number of existing or newly deeded timeshare interests per semiannual
period (January- June, calculated as of June 1, and July-December
calculated as of December 1), multiplied by the appropriate fee based
upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as
defined below), divided by 2.
The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2005, and on the first day of each year thereafter, the
amount of the fee shall be increased by the prior years average consumer
price index for All Urban Consumers for the Denver-Boulder-Greeley
metropolitan area as published semiannually and appearing in the January
and July issues of the CPI Detailed Report published by the Bureau of
Labor Statistics (the "CPI-U").
It shall be the duty of the timeshare association to keep and preserve such
records as are necessary to determine the amount of fees due hereunder.
11 ; - - - - - 868660
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Teak J Simonton Eagle; CO 289 R 126.00 D 0.00
Such records shall be preserved for a period of three y ears and shall be
open for inspection by representatives of the Town during regular business
hours. Prior to the formation of the timeshare association, the Owner shall
have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written determination of the
amount due and deliver or mail the same to the office of the condominium
timeshare association. The amount properly determined to be owing shall
be from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the timeshare
association such written determination will be delivered to the Owner.
3.6 Timing on Development. In the event the Owner obtains a building permit and
complies with all other relevant rules and regulations governing development on the
Property consistent with the Lot 61 PUD Development Plan, then the Owner must
provide written notice 180-days prior to commencement of construction to the Town
of the development schedule.
There is no phasing proposed or contemplated for the development of this Property.
The Owner and the Town agree to cooperate in construction staging and
development to allow for orderly and safe construction of the Property.
3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property
and shall have no liability to the Town for its failure to develop the Property. The
Town shall have no obligation to permit the Owner to construct under the dedicated
road right-of-way or transportation center after 5 years from the Effective Date of
the Agreement, and shall have no liability to the Owner or any other party for its
failure to develop all or any part of the Property. In the event an amended
Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
based upon as-built drawings is not recorded, then the Resubdivision will be vacated
subject to the terms and conditions of Section 2.1.
3.8 Compliance with General Regulation. Except as otherwise provided in this
Agreement or the Development Standards, the establishment of vested property
rights under this Agreement shall not preclude the application, on a uniform and
non-discriminatory basis, of Town regulations of general applicability (including,
but not limited to design review, building, fire, plumbing, electrical and mechanical
codes, the Municipal Code, and other Town rules and regulations) or the application
of state or federal regulations, as all of such regulations exist on the date of this
Agreement or may be enacted or amended after the date of this Agreement,
provided that such newly enacted or amended Town regulation shall not directly or
indirectly have the effect of materially altering, impairing, preventing, diminishing,
delaying or otherwise adversely affecting any of Owner's rights set forth in this
12 868660
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Teak J Simonton Eagle, CO 289 R 126.00 D 0.00
Agreement or the Development Standards. Owner does not waive its rights to
oppose the enactment or amendment of any such regulations inconsistent with other
properties in Town.
ARTICLE IV
DEFAULTS, REMEDIES, AND TERMINATION
4.0 Default by Town. A "breach" or "default" by the Town under this Agreement shall
be defined as: (a) any zoning, land use or other action or inaction, direct, indirect or
pursuant to an initiated measure, taken without Owner's consent, that materially
alters, impairs, prevents, diminishes, delays or otherwise materially and adversely
affects any development, use or other rights of Owner under this Agreement or the
Development Standards or PUDs; or (b) the Town's failure to fulfill or perform any
material obligation of the Town contained in this Agreement.
4.1 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's
failure to fulfill or perform any material obligation of Owner contained in this
Agreement.
4.2 Notices of Default. In the event of a default by either party under this Agreement,
the non-defaulting party shall deliver written notice to the defaulting party of such
default, at the address specified in Section 5.7, and the defaulting party shall have
thirty (30) days from and after receipt of such notice to cure such default: If such
default is not of a type which can be cured within such thirty (30) day period and
the defaulting party gives written notice to the non-defaulting party within such
thirty (30) day period that it is actively and. diligently pursuing such cure, the
defaulting party shall have a reasonable period of time given the nature of the
default following the end of such thirty (30) day period to cure such default,
provided that such defaulting party is at all times within such additional time period
actively and diligently pursuing such cure.
4.3 Remedies.
(a) If any default under this Agreement is not cured as described above, the
non-defaulting party shall have the right to enforce the defaulting party's
obligation hereunder by an action for any equitable remedy, including
injunction and/or specific performance, and/or an action to recover
damages. Each remedy provided for in this Agreement is cumulative and
is in addition to every other remedy provided for in this Agreement or
otherwise existing at law, in equity or by stature.
(b) In the event of default by the Owner, notwithstanding other available
remedies s et forth h erein, t he T own i s u rider n o o bligation t o i ssue a ny
13 868660
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land use approvals, including but not limited to design review and building
permits for the Property.
(c) The Town acknowledges that since this Agreement and the Development
Standards constitute a development agreement which confers rights
beyond those provided by the three (3) year statutory vesting approach
described in the Vested Property Rights Statute, in the event of a breach or
default by the Town, in addition to any of the foregoing remedies, Owner
shall be entitled to:
(i) recover from the Town any damages that should have been
specifically available to Owner as contemplated in
Colorado Revised Statutes Section 24-68-105(1)(c) as in
effect on the Effective Date, plus any other and additional
damages provable at law.
ARTICLE V
MISCELLANEOUS
5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with
the laws of the State of Colorado and the relevant portions of the Avon Municipal
Code..
5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this Agreement shall be
constructed as making Town and Owner joint venturers or partners.
5.2 Expenses. Except as otherwise provided in a separate written agreement, Owner
and the Town shall each bear their respective costs and expenses associated with
implementing and enforcing the terms of this Agreement. .
5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a
waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
5.4 Town Findings. The Town hereby finds and determines that execution of this
Agreement is in the best interests of the public health, safety, and general welfare,
and the provisions of this Agreement, the PUD, Development Standards, and
vesting agreements contained herein are consistent with the Avon Comprehensive
Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations
and policies of the Town.
5.5 Severability. If any t erm, p rovision, c ovenant or c ondition o f t his A greement i s
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
14 868660
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Teak J Simonton Eagle, CO 289 R 126.00 D 0.00
remaining provisions of this Agreement shall continue in full force and effect so
long as enforcement of the remaining provisions would not be inequitable to the
party against whom they are being enforced under the facts and circumstances then
pertaining.
5.6 Further Assurances. Each party shall execute and deliver to the other all such other
further instructions and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other party the full and complete
enjoyment of its rights and privileges under this Agreement.
5.7 Notices. Any notice or communication required under this Agreement between the
Town and Owner must be in writing, and may be given either personally or by
registered or certified mail, return receipt requested. If given by registered or
certified mail, the same shall be deemed to have been given and received on the
first to occur of (i) actual receipt by any of the addresses designated below as the
party to whom notices are to be sent, or (ii) five days a registered or certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in the
United States mail, if personally delivered, a notice shall be deemed to have been
given when delivered to the party to whom it is addressed. Any party hereto may at
any time, by giving written notice to the other party hereto as provided in this
Section designate additional persons to whom notices or communications shall be
given, and designate any other address in substitution of the address to which such
notice or communication shall be given. Such notices or communications shall be
given to that parties at their addresses set forth below:
If to Town: Town of Avon Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
If to Owner: IDG 3 LLC
c/o C. Philip Smiley
P.O. Box 5000
Avon, CO 81620
5.8 Assignments. This Agreement shall be binding upon and except as otherwise
provided in this Agreement, shall inure to the benefit of the successors in interest or
the legal representatives of the parties hereto. Except as specifically set forth herein,
Owner shall have the right to assign, delegate or transfer all or any portion of its
interests, rights or obligations under this Agreement to third parties acquiring an
interest or estate in the Property, including, but not limited to, purchasers or long
term ground lessees of individual lots, parcels, or of any improvements now or
hereafter located within the Property. Provided that the Town's approval of the
assignee or transferee is first obtained, an assumption or transfers providing for
express assumption of any of Owner's obligations under this Agreement by its
assignee or transferee shall be relieved of any further obligations under this
Agreement with respect to the matter so assumed. The Town's obligations
868660
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Teak J Simonton Eagle: CO 289 R 126.00 D 0.00
hereunder may not be assigned or delegated without Owner's written consent, and
any attempted assignment or delegation by the Town not in compliance herewith
shall be null and void. The Town's approval of any such assignee or transferee shall
not be unreasonably withheld or delayed.
5.10 Counterparts. This Agreement shall be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5.11 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement, nor consent to any departure here from, shall in any event be elective
unless the same shall be in writing and signed by the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the
date first written above.
TOWN:
ATTEST YJ
Qtcl
TowwCl k
TOWN OF AVON, a municipal corporation
of the State of C~ploradb'N
% % OF ad+p B
°Mayor
SEAL
STATE OF COLORADO )
)ss.
COUNTY OF 4c+q~ )
Subscribe before me this 19' day of
al_g T fl . 'fie na 6c as
municipal corporation he State of Colorado.
My Commission Expires: 4118 I o L,
18ra 8660
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02/23/2004 04:54P
Teak J Simonton Eagle. CO 289 R 126.00 D 0.00
-+ccJy_ , 2004, by
yor Avon, a
A~q
a 01
'9~~ ~BL~,.PPO
Op coo
My Commission Expires 0410812006
STATE OF COLORADO )
)ss.
COUNTY OF EaCi I~ )
Qz~~:~~U' - M'-
Notar Pub is
Subscribed before me this / 9-4+ day of i-v CZ , 2004, by
"el A4 e -e nn~ as Town Clerk f Avon, a municipal
corpo ar on of the State of Colorado.
My Commission Expires:
ATTES'YCOMInWM EXPIres IV16=7
STATE OF COLORADO )
)ss.
COUNTY OF ~e. )
Notary Public
OWNER:
By:G,
/LGPi6l~'
i,lA~v3
Subscribed before me this day of r , 2004, by
M'P ~ p~7 Ct r Cas 177e,, iJ! I- Z D C, 3 Lt-(Z__
°°OT°A FlY '/5
1.4 0 .*0
♦ : QO
9%
Commission Expires: /
ary Public
My GQmq*g n Ezp w 12/712004
l~ 868660
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02/23/2004 04:54F
Teak J Simonton Eagle: CO 289 R 126.00 D 0.00
•
Exhibit "A" To Lot 61 PUD Development Agreement
Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final
Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in
Book 274 at Page 701 as Reception No. 171107, County of Eagle, State of
Colorado.
868660
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02/23/2004 04:54P
Teak J Simonton Eagle, CO 289 R 126.00 D 0.00
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Page: 22 of 25
1 a~ 02/23/2004 04:54P
tJ R 126.00 D 0.00
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A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RIGHTS,
LEGAL ADVICE SHOUt.D BE OBTAINED IN THE DRAFTING OF
ANY POWER OF ATTORNEY
POWER OF ATTORNEY
KNOW ALL MEN BY WIESE PRESENTS:
THAT, L C. PHfLTP SMILEY, reposing special trust and confidence in MICHAEL A. HAZARD, have
made, constituted and appointed, and by those prosents do make, constitute and appoint the said MICHAEL A.
HAZARD, to be my true and lawful attorney in fact, to act for me and in my stead, and to rof lance, hypothecate,
and give a deed of trust affecting the following property;
A RESIIBDIVISiON OF REPLAT OF LOT 61, RLOM 2, BENCHMARK AT BEAVER CRFEK,
TOWN OF AVON
COUNTY OF EAGLE
sTAT E; OF COLORADO
My agent is hereby authorized to sign, seal and deliver, as my act and deed any contract, deed, deed of trust,
promissory note, of other instrument in execution of any agreement for reflnance made by me or my agent in such
manner that thb ostaty and interest in said land may be effecmally and alsaurcd to the Public Trustee of the County
In which thin above dxsc6bed'property is situate, or to such other persou or emtty as my agent may name or
appoint; and 1 herelty dealm that any and all of the contracts, deeds, receipt, notes, plats or matters, and things
which shall bo by my, said agent given, made or done far the afaresalid purposes shall be as good, valid, and
effectual as if they had been signed, sealed and delivered by me in my own proper person; and 11icra1ay undertake
at all times to ratify whatsoever my said agent shall lawfully do or cause to bo done in or concerning the ,premises
by virtue of these presents.
IN WTTnSS WDEREOF, I have hereunto *set my hand and seal this 0day of 200
C PHILIP
STATE OF Co CO
VNTY OF The foreeong inetru ent was ackilowlodged before me
This 7 20*10y C, rF-I' UP
SMTLBY
} Dawn R Anderson
}s9. Notary Public
} State of Colorado
Commission cxp' C6 ~?M~
Witn my Ii$nd lcial Seal.
Notary blir.
868660
Page: 25 of 25
Teak J Simonton Eagle; Co 289 R 126.00 D 0000 4:54P
/23
A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RI4HTS,
LEGAL ADVICE SHOULD BE OBTAINED IN THE DRAFTING OF
ANY POWER OF ATTORNEY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
THAT, 1, C. PHILiP SMi EZY, repaying Vecial trust and confidence in MICHAEL A.1RAZARD, have
made, constituted and appointed, and by these presents do make, constitute and appoint the said MICHAEL A.
HAZARD, to be my true and lawful attamcy in fact, to act for me and in my stead, and to roflvance, hypothecate,
and give a deed of trust affecting the following property;
A RESUBDi V ISION OF REPLAT OF LOT 61,11 LOCK 2, BENCHMARK AT BEAVER CREEK,
TOWN OF AVON
COUNTY OF EAGLE
STATE OF COLORADO
My agent is hereby authorized to sign, seal and deliver, as my act and deed any contract, deed, deed of trust,
promissory note, or orhor instrument in execution of any agreement for refinance made by me or my agent in such
mann?,T that the astata and interest in said land may be effectually and maured to the Public Tru$tee of the County
in which tho above described* property is situate, or to such other person or ettthy as my agent may name or
appoint; and T hereby declare that any and all of the contracts, deeds, receipts, notaa, plats or matters, and things
which shall be by my said agent given, made or done for the aferrsatid purposes shall be as good, valid, and
effectual as if they had been signed, sealed and delivered by me in my own proper pmon; and 1 hcmby undortake
at all times to ratify whatsoever my said agent shall lawfully do or cause to bo dona in or concerning the ,promises
by virtue of these presents.
IN WiT"SS WREREOF, I have hereunto'set my hand and seal this I0day of C4vu~i2ppg
ti __7.
C P147LTP
STA'> IM OF C4 ORAbO '
COUNTY OF r
} Dawn R Anderson
}ss, Notary Public
} State of Colorado
The foreing insiru ent was acknowledged before me
;his 13 - u„i . v, 20* 'q C, PHILIP
SMTLFY
r
Commission cxpi '
Witn s my nand s; tcial Seal.
Notary blir.
868660
Page: 25 of 25
02/23/2004 4
Teak J Simonton Eagle, Co 289 R 126.00 D0.00 '54P
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J
STATE OF COLORADO
COUNTY OF EAGLE) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO ADOPTED ON THE 10TH DAY OF FEBURAY 2004 THE FOLLOWING
ORDINANCES:
ORDINANCE NO. 04-01, SERIES OF 2004, AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK
SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO
A copy of said Ordinances are attached hereto, and are also on file at the office of the Town Clerk,
and may be inspected during regular business hours.
This notice is given and posted by order of the Town Council of the Town of Avon, Colorado
TOWN OF AVON, COLORADO
BY: Patty McKenny
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
FEBRUARY 13, 2004
✓ AVON MUNICIPAL BUILDING, MAIN LOBBY
✓ ALPINE BANK, MAIN LOBBY
✓ AVON RECREATION CENTER, MAIN LOBBY
✓ CITY MARKET, MAIN LOBBY
TOWN OF AVON
ORDINANCE NO. 04-01
SERIES OF 2004
AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2,
BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO.
WHEREAS, the Owner, IDG3 LLC, has applied for. approval of a Planned Unit
Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, the Town and the Owner have negotiated the terms and conditions of the
Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision
("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on January 6, 2004, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
PUD Development Plan; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of
the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
V day of , 2004, at which time the public was given an opportunity to
express their opinions r ding the proposed PUD Development Plan; and
CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc
l
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the Lot 61 PUD Development Plan is consistent with the recently adopted
Town Center Plan, the goals and objectives of the Town's Comprehensive Plan,
and is compatible with surrounding neighborhood and the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the
following conditions:
1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town, as required by Section 17.14. 100 of the
Avon Municipal Code, prior to issuance of a building permit to amend the Town's
Augmentation Plan.
2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is
required to complete subsequent design review approval, which consists of compliance
with the Town Center Design Guidelines and the Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines.
3. Except as otherwise modified by this approval, all material representations made by the
applicant or applicant representative(s) in this application and in public hearing(s) shall
be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this a day of , 2004, and a public hearing shall be held at the
regular meeting of the Town Council o e Town of Avon, Colorado, on the 1(3'- day of,
2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
Town of Avon, Colorado
Town Council
CADocuments and Settings\pmckenny\Local Settingffemporary Intemet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
Mayor
ATTEST:
nc- I
Town erk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the 10tt day of `R , 2004.
Town of Avon Colorado
y r,
ATTEST:"`
V\~i~` .y Ali. .fir
)C.
To C rk
Town Council
n
Mayor
APPROVED AS TO FORM:
i ,
To Attorney
C:\Documents and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
STATE OF COLORADO
® COUNTY OF EAGLE ) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE
10T" DAY OF FEBRUARY, AT THE TOWN OF AVON MUNICIPAL BUILDING
FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE
FOLLOWING ORDINANCE:
Ordinance No. 04-01, Series Of 2004, An Ordinance Approving
The Lot 61 Planned Unit Development (Pud) For Lot 61, Block
2, Benchmark At Beaver Creek Subdivision, Town Of Avon,
Eagle County, Colorado.
A copy of said Ordinance is attached hereto, and is also on file.at the office of
the Town Clerk, and may be inspected during regular business hours.
Following this hearing, the Council may consider final passage of this
Ordinance. This notice is given and posted by order of the Town Council of
the Town of Avon, Colorado
TOWN OF AVON, COLORADO
BY: Px~jd
Patty McK n y -
Town Clerk,
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF
AVON ON January 30, 2004
✓ AVON MUNICIPAL BUILDING, MAIN LOBBY
✓ ALPINE BANK, MAIN LOBBY
✓ AVON RECREATION CENTER, MAIN LOBBY
✓ CITY MARKET, MAIN LOBBY
0
1
TOWN OF AVON
ORDINANCE NO. 04-01
SERIES OF 2004
AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2,
BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO.
WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit
Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, the Town and the Owner have negotiated the terms and conditions of the
Development Agreement for Lot 61,-Block 2, Benchmark at Beaver Creek Subdivision
("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on January 6, 2004, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
PUD Development Plan; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the Lot 61 PUD Development Plan 'to the Town Council of
the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
10A day of , 2004, at which time the public was given an opportunity to
express their opinions r ding the proposed PUD Development Plan; and
•
C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc
^ WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
® Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the Lot 61 PUD Development Plan is consistent with the recently adopted
Town Center Plan, the goals and objectives of the Town's Comprehensive Plan,
and is compatible with surrounding neighborhood and the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the
following conditions:
1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town, as required by Section 1.7.14.100 of the
® Avon Municipal Code, prior to issuance of a building permit to amend the Town's
Augmentation Plan.
2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is
required to complete subsequent design review approval, which consists of compliance
with the Town Center Design Guidelines and the Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines.
3. Except as otherwise modified by this approval, all material representations made by the
applicant or applicant representative(s) in this application.and in public hearing(s) shall
be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this a day of , 2004, and a public hearing shall be held at the
regular meeting of the Town Council o Town of Avon, Colorado, on the 1(3'- day of,
2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
Town of Avon, Colorado
Town Council
n
U
CADocuments and Settings\pmckennyU ocal SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
ATTEST:
3 n,
Town erk
L Z)"j,
Mayor
;11<
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the day of , 2004.
Town of Avon, Colorado
Town Council
Mayor
ATTEST:
•
Town Clerk
APPROVED AS TO FORM:
Town Attorney
CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
•
Exhibit "A" To Lot 61 PUD Development Agreement
Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final
Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in
Book 274 at Page 701 as Reception No. 171107; County of Eagle, State of
Colorado.
4)
•
13
•
17-~
,,A
•
Ordinance 04-01
Exhibit "A"
DEVELOPMENT AGREEMENT
FOR
LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of January , 2004 by and between IDG3, LLC, a Limited Liability Company, its
successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal
corporation of the State of Colorado (the "Town").
RECITALS:
A. Owner is a limited liability company, duly organized and in good standing
under the laws of the State of Colorado.
B. Owner owns a parcel of real property generally referred to as "Lot 61" as
more particularly described in Exhibit A attached to this agreement ("Lot
61").
C. The Town and the Owner desire to develop Lot 61 as a mixed-use
development consistent with the Avon Town Center Implementation Plan
thereby creating new property lines for Lot 61, development standards, rights-
of-way and a transit center. This new parcel is referred to as the "Property".
D. The Property contains specific development standards attached and
incorporated herein as a site-specific development plan entitled "Lot 61 PUD
Development Plan" (Exhibit "B") and as set forth in Article III of this
Agreement.
E. The Town has authority to zone and govern development of the Property in
accordance w ith t his A greement, t he A von C omprehensive P Ian, T he A von
Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61
PUD (as defined herein), and other applicable Town requirements and polices.
F. In order to ensure orderly controlled development by establishing minimum
design standards, including streets and other forms of vehicular and pedestrian
access, drainage, water supply and sanitation improvements to support human
occupation, it is necessary to require subdivision consistent with Title 16,
Avon Municipal Code.
G. The Property includes specific design requirements as set forth by the Town
Center Implementation P lan, w hich i s f urther d efined and s upported b y t he
® Town of Avon Residential Commercial and Industrial Design Review
Guidelines.
1
1A
H. The legislature of the State of Colorado adopted Sections 24-68-101, et se q. of
the' Colorado Revised Statutes (the "Vested Property Rights Statute") to
provide for the establishment of vested property rights in order to ensure
reasonable certainty, stability and fairness in the land use planning process
and in order to stimulate economic growth, secure the reasonable investment
backed expectations of landowners, and foster cooperation between the public
and private see tors in the area of land use planning; said Vested Property
Rights Statute authorizes the Town to enter into development agreements with
landowners providing for vesting of property development rights.
1. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the
Municipal C ode a uthorizes t he T own t o e nter i nto d evelopment a greements
with landowners and other qualified applicants providing for the vesting of
property development rights. -
J. Development of the Property in accordance with this Agreement will provide
for o.rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he
Comprehensive Plan, the Avon Town Center Implementation Plan ensure
reasonable certainty, stability and fairness in the land use planning process,
stimulate economic growth, secure the reasonable investment-backed
expectations of Owner, foster cooperation between the public and private
sectors in the area of land use planning, and otherwise achieve the' goals and
purposes for which the Vested Property Rights Statute and Chapter 17.14 of
the Municipal Code were enacted. In exchange for these benefits and the other
benefits to the Town contemplated by this Agreement, together with the
public benefits served by the. orderly development of the Property, Owner
desires to receive the assurance that it may proceed with development of the
Property pursuant to the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and
the Town agree as follows:
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.0 Definitions. The following terms and references shall have the meaning set forth
below unless the context in which they are used clearly indicates otherwise:
1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the
Planning and Zoning Commission of the Town on November S, 1996, or any
subsequent duly adopted plans or amendments thereto.
2
~U
1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD
Development Plan" incorporated herein and further defined in Sections 3.2 of
this Agreement.
1.3 Effective Date. The effective date of the Town Council Ordinance approving
this Agreement and the recording of the relevant subdivisions referenced
herein with the.Clerk and Recorder of Eagle County, Colorado.
1.4 Exhibits. The following are Exhibits to this Agreement, all of which are
incorporated by reference into and made a part of this Agreement:
Exhibit A Legal Description of Lot 61
Exhibit B Lot 61 PUD Development Plan, including Benchmark
Court Right of Way and Transportation Hub location
1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any
municipal lodging or accommodations tax imposed by the Town pursuant to
Ch. 3.28, Avon Municipal Code-or any similar code provision enacted during
the Term o f this Agreement upon any s ales o r rental o f lodging within the
Property.
1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time.
1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code.
1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61
PUD Development Plan as set forth in Exhibit "B".
1.9 PUD. Planned unit development or PUD, as such terms are defined and used
in Section 17.20.110 of the Municipal Code.
1.10 Sanitation District. Eagle River Water and Sanitation District.
1.11 Subdivision. Means to make a disposition of land or airspace which is
defined as a subdivision, subdivided land, condominium subdivision, estate in.
airspace, specially planned area and/or planned unit development subdivision,
minor subdivision, duplex subdivision or time-sharing subdivision consistent
with Title 16, Avon Municipal Code.
1.12 Time-share owner. Means a person vested with legal title to a timeshare
estate in accordance with Section 38-33-110, Colorado Revised Statutes
(2003).
0
3
1.13 Time-share unit. Means a unit the title to which is or is to be divided into
interval estates or time-span estates in accordance with Section 38-33-110,
Colorado Revised Statutes (2003).
1.14 Town. The Town of Avon, a municipal corporation of the State of
Colorado.
1.15 Town Council. The Town Council of the Town.
1.16 Lot 61. The real property described in Exhibit A attached hereto.
1.17 Vested Property Rights Statute. As defined in Recital H.
1.18 Zoning. The passing of land use ordinances and regulations authorized
by the Statutes of the State of Colorado and by Article XX of the Colorado
Constitution, and more specifically through the Avon Municipal Code, Title
17, intended to ensure that zoning promotes stated benefits to the citizens of
the Town.
1.19 Zoning Application. The zoning application for the parcel comprising the
Property submitted to the Town on , 2004.
1.20 Avon Town Center Implementation Plan. The plan adopted bythe Town
on November 6, 2001 regarding development in the area commonly known as
the Town Center.
ARTICLE II
COVENANTS; THIS AGREEMENT
2.1 Term. In recognition of the size of the development contemplated under this
Agreement, the substantial investment and time required to complete the
development of the Property, and the possible impact of economic cycles and
varying market conditions during the course of development, Owner and the Town
agree that the term of this Agreement and the vested property rights established
under this Agreement shall commence on the Effective Date and shall continue until
the 5th anniversary of the Effective Date. After the expiration of the Term, this
Agreement shall be deemed terminated and of no further force and effect, provided,
however that such termination shall not effect (a) any rights-of-way and uses of
property granted to the Town related to the transportation center, or (b) any right
arising from Town permits, approvals or other. entitlements for the Property which
were granted or approved prior to the 5th anniversary of the Effective Date.
2.2 Amendment of Agreement. . Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and
Owner in writing following the public notice, public hearing and revised ordinance
4
ki
® procedures required for approval of this Agreement stated in Section 17.20.110
(Planned Unit Development) et al of the Avon Municipal Code. For the purpose of
any amendment to this Agreement, "Owner" shall mean only the Owner as defined
herein and those parties, if any, to whom such signatories have specifically been
granted, in writing by Owner, the power to enter into such amendments.
2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other
proceeding is commenced by a third party challenging the validity of any provision of
this Agreement or the Development Standards, Owner and the Town agree to
cooperate in defending such action or proceeding and to bear their own expenses in
connection therewith. Unless the Town and Owner otherwise agree, each party shall
select and pay its own legal counsel to represent it in connection with such action or
proceeding.
ARTICLE III
ZONING, VESTED RIGHTS AND EXACTIONS
3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement
and in the respective Development Standards. Complete zoning and site plans are
attached in Exhibit B, the Lot 61 PUD Development Plan.
3.2 Development Standards. The "Development Standards" set forth the zoning for the
Property, and indicate, among other things, setback distances, building height
limitations, site coverage levels, development densities, allowed uses (both
permitted uses by right and those permitted upon special review), parking
requirements and other guidelines and limitations for the development of the
Property and are specifically set forth in Exhibit "B".
K. Subsequent Final Plan Approval. Pursuant to this Agreement.the Property is
now PUD Zoning pursuant to Section 3.4(a). This constitutes a Site-Specific
Development Plan for the purposes of establishing vested rights. Owner and
the Town shall, in a manner which is uniform of the Town and consistent with
the provisions of Section 2.1 and Section 3.4 (d) further refine the design of
the improvements and other details, all consistent with the Development
Standards and this Agreement collectively, "Subsequent Final Design Review
Plan Approval." The subsequent Final Design Review Plan Approval will
consist of compliance with the Town Center Implementation Plan, Town of
Avon Residential, Commercial, and Industrial Design Review Guidelines, and
relevant portions of the Avon Municipal Code.
(a) Development Approval. Simultaneously with the granting of PUD
Zoning of the Property .pursuant to Section 3.4 (a), the Town hereby
approves the Lot 61 PUD Development Plan (Exhibit "B".).
•
5
kR
3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the
Development Standards and the Lot 61 PUD Development Plan constitute an
approved "site-specific development plan" as defined in the Vested Property Rights
Statute and Section 17.14.100 of the Avon Municipal Code and subsequent
compliance with Section 17.12.020 of the Avon Municipal Code which the Town
acknowledges and (b) that Owner as the legal owner of the Property shall have
vested property rights to undertake and complete development and use of the
Property as provided in this agreement and the Development Standards. Pursuant to
Section 17.14.050 of the Municipal Code, approval. of this Agreement and the
Development Standards constitutes a vested property right pursuant to Article 68 of
Title 24, C.R.S., as amended.
3.4 Property Rights Vested. The rights identified below shall constitute the vested
property rights under this Agreement:
(a) The right to develop plan and engage in land uses with the Property in the
manner and to the extent set forth in and pursuant to this Agreement, the
Development Standards and the Lot 61 PUD Development Plan.
(b) The right to develop, plan and engage in land uses with the Property in
accordance with the densities, physical development standards and other
physical parameters set forth in the Development Standards.
(c) The right to develop the Property in the order, at the rate, and at the time
as market conditions dictate, subject to the terms and conditions o f this
Agreement and the Development Standards.
(d) The right to develop and complete the development of the Property
(including, without limitation, the right to receive all properly applied for
and complete application approvals necessary for the development of the
Property) with conditions and standards determined pursuant to Section
3.2(b) which conform to the regulations and guidelines imposed by the
Town set forth in this Agreement and the Development Standards,
provided that such conditions, standards and dedications shall not directly
or indirectly have the effect of materially altering, impairing, preventing,
diminishing, delaying or otherwise materially adversely affecting any of
Owner's rights set forth in this Agreement or the Development. Standards.
(e) The Town shall not initiate any zoning, land use or other legal or
administrative action that would directly or indirectly have the effect of
materially altering, impairing, preventing, diminishing, delaying or
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otherwise adversely affecting any of Owner's rights that do not apply to
other properties in the Town, as set forth in this Agreement or the
Development Standards.
3.5 Exactions. The following exactions are intended to provide adequate facilities,
pedestrian and vehicular access, and other related improvements for the public
benefit of the Town:
(a) Right-of-Way Dedication. The newly created right-of-way referred to as
"Benchmark Court" will be. dedicated to the Town by the approved
Resubdivision Plat of Lot 61, Block 2, Benchmark at Beaver Creek
("Final Plat") in accordance with Title 16, Avon Municipal Code
contemporaneously with the approval of this Agreement and the Lot 61
PUD Development Plan. .
(b) Drainage. On site drainage facilities for the Property shall be provided by
Owner to handle drainage resulting from the development of the Property.
(b) Building Setbacks and Encroachments It is the intention of the Town to
provide for necessary at grade and above grade setbacks to allow for the
building and/or structure to encroach as depicted on plans shown in
Exhibit B.
These provisions for allowing the building and/or structure elements over,
and on the Town property will be set forth in the Resubdivision of Tract G
and Re-subdivided Lot 61, Block 2, Benchmark at Beaver Creek
("Resubdivision") and must be approved contemporaneously with this
Agreement. The Resubdivision contains specific plat restrictions, which
require as-built drawings upon the construction of 'the Property or the
Resubdivision will be vacated subject to the terms and conditions of
Section 2.1.
(c) Transportation Hub. The Final Plat shall also include an easement for a
Transportation Hub, including necessary at grade and above grade
setbacks as depicted on Exhibit B.
In the event the Town elects to proceed with construction of the
Transportation Hub prior to the commencement of construction of the Lot
61 PUD Development Plan, then written notice must be provided to the
Owner prior to 180 days of commencement of construction.
The Town agrees to provide mechanical ventilation consistent with the
current building code at the time of building permit application for the
Transportation Hub as part of the construction of the Lot 61 PUD
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Development Plan. Positive chase and ductwork for the Transportation
Hub will be provided by the Owner. 0
(d) Transit Administrative Office: A minimum of 400 square feet of floor area
on the ground level adjacent to the Town Transportation Hub for typical
administrative purposes including rough-in plumbing for public restroom
facilities associated with transportation must be dedicated upon
construction of the Transportation Hub by the Town and/or with design
review approval. for Lot 61.
(e) Water Rights: The developer will be responsible for the acquisition of
additional water rights and their subsequent dedication to the Town if
necessary to amend the Town's Augmentation Plan based upon the
specific proposal applied for.
(g) Timeshare Amenities Fee: Commencing as of the effective date of this
Agreement, and continuing in perpetuity, the timeshare ownership
association formed to manage the timeshare ownership project located on
Lot 61 is obligated to collect from each timeshare owner and remit to the
Town a Timeshare Amenities Fee. The Owner is exempt from the
obligation for the timeshare amenities fee until the first-time sale of a
timeshare interval. The provisions for the obligation. for each timeshare
owner to pay shall be a covenant running with the land and reflected
accordingly on the Resubdivision Plat and association covenants. Prior to
the formation of any timeshare ownership association, the Owner shall be
obligated to collect and remit any and all Timeshare Amenities Fee.
The number of units shall be calculated 'at the time of time-share
subdivision. The fee shall be paid to the Town semi-annually and will be
based upon the following schedule:
Number of Units Constructed
Per Timeshare Week*
125 - 149 Timeshare Units
$ 58.35
150 - 174 Timeshare Units
$ 48.52
175 - over Timeshare Units
$ 41.51
* Timeshare Week is defined as seven (7) consecutive days constituting a
maximum of fifty-two (52) intervals per calendar year.
The amount of the semi-annual payments will be calculated according to
the following formula:
Number of existing or newly deeded timeshare interests p er semiannual
period (January- June, calculated as of June 1, 'and July-December
calculated as of December 1), multiplied by the appropriate fee based
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upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as
defined below), divided by 2.
The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2005, and on the first day of each year thereafter, the
amount of the fee shall be increased by the prior years average consumer
price index for All Urban Consumers for the Denver-Boulder-Greeley
metropolitan area as published semiannually and appearing in the January
and July issues of the CPI Detailed Report published by the Bureau of
Labor Statistics (the "CPI-U").
It shall be the duty of the timeshare association to keep and preserve such
records as are necessary to determine the amount of fees due hereunder.
Such records shall be preserved for a period of three years and shall be
open for inspection by representatives of the Town during regular business
hours. Prior to the formation of the timeshare association, the Owner shall
have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written determination of the
® amount due and deliver or mail the same to the office of the condominium
timeshare association. The amount properly determined to be owing shall
be from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the timeshare
association such written determination will be delivered to the Owner.
3.6 Timing on Development. In the event the Owner obtains a building permit and
complies with all other relevant rules and regulations governing development on the
Property consistent with the Lot 61 PUD Development Plan, then the Owner must
provide written notice 180-days prior to commencement of construction to the Town
of the development schedule.
There is no phasing proposed or contemplated for the development of this Property.
The Owner and the Town agree to cooperate in construction staging and
development to allow for orderly and safe construction of the Property.
3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property
and shall have no liability to the Town for its failure to develop the Property. The
Town shall have no obligation to permit the Owner to construct under the dedicated
road right-of-way or transportation center after 5 years from the Effective Date of
the Agreement, and shall have no liability to the Owner or any other party for its
failure to develop all or any part of the Property. In the event an amended
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Resubdivision for Tract G and Lot 61 based upon as-built drawings is not recorded, •
then the Resubdivision will be vacated subject to the terms and conditions of Section
2.1.
3.7 Compliance with General Regul~ ation. . Except as otherwise provided in this
Agreement or the Development Standards, the establishment of vested property
rights under this Agreement shall not preclude the application, on a uniform and
non-discriminatory basis; of Town regulations of general applicability (including,
but not limited to design review, building, fire, plumbing, electrical and mechanical
codes, the Municipal Code, and other Town rules and regulations) or the application
of s tate o r f ederal regulations, a s a 11 o f s uch r egulations e xist o n t he d ate o f t his
Agreement or may be enacted or amended after the date of this Agreement, provided
that such newly enacted or amended Town regulation shall not directly or indirectly
have the effect of materially altering, impairing, preventing, diminishing, delaying
or otherwise adversely affecting any of Owner's rights set forth in this Agreement or
the Development Standards. Owner does not waive its rights to oppose the
enactment or amendment of any such regulations inconsistent with other properties
in Town.
ARTICLE IV
DEFAULTS; REMEDIES, AND TERMINATION
4.0 Default by Town. A "breach" or "default" by the Town under this Agreement shall
be defined as: (a) any zoning, land use or other action or inaction, direct, indirect or
pursuant to an initiated measure, taken without Owner's consent, that materially
alters, impairs, prevents, diminishes, delays or otherwise materially and adversely
affects any development, use or other rights of Owner under this Agreement or the
Development Standards or PUDs; or (b) the Town's failure to fulfill or perform any
material obligation of the Town contained in this Agreement.
4.1 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's
failure to fulfill or perform any material obligation of Owner contained in this
Agreement.
4.2 Notices of Default. In the event of a default by either party under this Agreement,
the non-defaulting party shall deliver written notice to the defaulting party of such
default, at the address specified in Section 5.7, and the defaulting party shall have
thirty (30) days from and after receipt of such notice to cure such default. If such
default is not of a type which can be cured within such thirty (30) day period and
the defaulting party gives written notice to the non-defaulting party within such
thirty (30) day period that it is actively and diligently pursuing such cure, the
defaulting party shall have a reasonable period of time given the nature of the
default following the end of such thirty (30) day period to cure such default,
provided that such defaulting party is at all times within such additional time period
actively and diligently pursuing such cure.
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4.3 Remedies.
(a) If any default under this Agreement is not cured as described above, the
non-defaulting party shall have the right to enforce the defaulting party's
obligation hereunder by an action for any equitable remedy, including
injunction and/or specific performance, and/or an action to recover
damages. Each remedy provided for in this Agreement is cumulative and
is in addition to every other remedy provided for in this Agreement or
otherwise existing at law, in equity or by stature.
(b) In the event of default by the Owner, notwithstanding other available
remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny
land use approvals, including but not limited to design review and building
permits for the Property.
(b) The Town acknowledges that since this Agreement and the Development
Standards constitute a development agreement which confers rights
beyond. those provided by the three (3) year statutory vesting approach
described in the Vested Property Rights Statute, in the event of a breach or
® default by the Town, in addition to any of the foregoing remedies, Owner
shall be entitled to:
(i) recover from the Town any damages that should have been
specifically available to Owner as contemplated in
Colorado Revised Statutes Section 24-68-105(1)(c) as in
.effect on the Effective Date, plus any other and additional
damages provable at law.
ARTICLE V
MISCELLANEOUS
5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with
the laws of the State of Colorado and the relevant portions of the Avon Municipal
Code..
5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this Agreement shall be
constructed as making Town and Owner joint venturers or partners.
5.2 Expenses. Except as otherwise provided in a separate written agreement, Owner
® and the Town shall each bear their respective costs and expenses associated with
implementing and enforcing the terms of this Agreement.
11
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5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a
waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
5.4 Town Findings. The Town hereby finds and determines that execution of this
Agreement is in the.best interests of the public health, safety, and general welfare,
and the provisions of this Agreement, the PUD, Development Standards, and
vesting agreements contained herein are consistent with the Avon Comprehensive
Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther applicable r egulations
and policies of the Town.
5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Agreement shall continue in full force and effect so
long as enforcement of the remaining provisions would not be inequitable to the
party against whom they are being enforced under the facts and circumstances then
pertaining.
5.6 Further Assurances. Each party shall execute and deliver to the other all such other
further instructions and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other party the full and complete .
enjoyment of its rights and privileges under this Agreement.
5.7 Notices. Any notice or communication required under this Agreement between the
Town and Owner must be in writing, and may be given either personally or by
registered or certified mail, return receipt requested. If given by registered or
certified mail, the same shall be deemed to have been given and received on the
first to occur of (1) actual receipt by any of the addresses designated below as the
party to whom notices are to be sent, or (ii) five days a registered or certified letter
containing such notice, properly addressed, with postage prepaid,. is deposited in the
United States mail, if personally delivered, a notice shall be deemed to have been
given when delivered to the party to whom it is addressed. Any party hereto may at
any time, by giving written notice to the other party hereto as provided in this
Section designate additional persons to whom notices or communications shall be
given, and designate any other address in substitution of the address to which such
notice or communication shall be given. Such notices or communications shall be
given to that parties at their addresses set forth below:
If to Town: Town of Avon Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
If to Owner: IDG 3 LLC
c/o C. Philip Smiley
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P.O. Box 5000
Avon, CO 81620
5.8 Assignments. This Agreement shall be binding upon and except as otherwise
provided in this Agreement, shall inure to the benefit of the successors in interest or
the legal representatives of the parties hereto. Except as specifically set forth herein,
Owner shall have the right to assign, delegate or transfer all or any portion of it
interests, rights or obligations under this Agreement to third parties acquiring an
interest or estate in the Property, including, but not limited to, purchasers or long
term ground lessees of individual lots, parcels, or of any improvements now or
hereafter located within the Property. Provided that the Town's approval of the
assignee or transferee is first obtained, an assumption or transfers providing for
express assumption of any of Owner's obligations under this Agreement by its
assignee or transferee shall be relieved of any further obligations under this
Agreement with respect to the matter so assumed. The Town's obligations
hereunder may not be assigned or delegated without Owner's written consent, and
any attempted assignment or delegation by the Town not in compliance herewith
shall be null and void. The Town's approval of any such assignee or transferee shall
not be unreasonably withheld or delayed.
5.10 Counterparts. This Agreement shall be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5.11 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement, nor consent to any departure here from, shall in any event be elective
unless the same shall be in writing and signed by the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
IN WITNESS WHEREOF, Owner and, the Town have executed this Agreement as of the
date first written above.
TOWN:
TOWN OF AVON, a municipal corporation
of the State of Colorado
BY:
Mayor
® ATTEST
13
•
Town Clerk
STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this day of , 2004, by
as Mayor of Town of Avon, a
municipal corporation of the State of Colorado.
My Commission Expires:
Notary Public
STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this day of , 2004, by
as Town Clerk of Avon, a municipal
corporation of the State of Colorado.
My. Commission Expires: _
Notary Public
OWNER:
By:
ATTEST
•
14
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STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this
My Commission Expires:
O
STATE OF COLORADO
® COUNTY OF EALGE
TOWN OF AVON
SS
day of
as
2004, by
Notary Public
15
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NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLORADO AT ON
THE DAY OF , AT THE MUNICIPAL BUILDING
FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO.
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TOWN OF AVON
ORDINANCE NO. 04-01
SERIES OF 2004
AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2,
BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO.
WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit
Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, the Town and the Owner have negotiated the terms and conditions of the
Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision
("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on January 6, 2004, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
PUD Development Plan; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of
the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
11A day of , 2004, at which time the public was given an opportunity to
express their opinions r ding the proposed PUD Development Plan; and
CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the Lot 61 PUD Development Plan is consistent with the recently adopted
Town Center Plan, the goals and objectives of the Town's Comprehensive Plan,
and is compatible with surrounding neighborhood and the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the
following conditions:
1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town, as required by Section 17.14. 100 of the
Avon Municipal Code, prior to issuance of a building permit to amend the Town's
Augmentation Plan.
2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is
required to complete subsequent design review approval, which consists of compliance
with the Town Center Design Guidelines and the Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines.
3. Except as otherwise modified by this approval, all material representations made by the
applicant or applicant representative(s) in this application and in public hearing(s) shall
be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this a`~ day of , 2004, and a public hearing shall be held at the
regular meeting of the Town Council o Town of Avon, Colorado, on the I(Sk day of,
2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
Town of Avon, Colorado
Town Council
CADocuments and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc
L
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Mayor
ATTEST:
3 n,~
Town erk
OF F
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the 10t day of 2 , 2004.
Town of Avon, Colorado
Town Council
1VQ~H OF q~,®
,3rti
ATTEST:
6 n nw .
To C rk
Mayor
APPROVED AS TO FORM:
-Z llA'_
To 4n Attorney
CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc
Exhibit. "A" to Ordinance.04-01
DEVELOPMENT AGREEMENT
FOR
LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION
THIS DEVELLOOPMMEENT AGREEMENT (this "Agreement") is made and entered into as
of February , 2004 by and between IDG3, LLC, a Limited Liability Company,
its successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal
corporation of the State of Colorado (the "Town").
RECITALS:
A. Owner is a limited liability company, duly organized and in good standing
under the laws of the State of Colorado.
B. Owner owns a parcel of real property generally referred to as "Lot 61" as
more particularly, described in Exhibit A attached to this agreement ("Lot
61"
C. The. Town and the Owner desire to develop Lot 61 as a mixed-use
development consistent with the Avon Town Center Implementation Plan
thereby creating new property lines for Lot 61, development standards, rights-
of-way and a transportation center. This new parcel is referred to as the
"Property"
D. The Property contains specific development standards attached and
incorporated herein as a site-specific development plan entitled "Lot 61 PUD
Development Plan" (Exhibit "B") and as set forth in Article III of this
Agreement.
E. The Town has authority to zone and govern development of the Property in
accordance with this Agreement, the Avon Comprehensive Plan, The Avon
Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61
PUD (as defined herein), and other applicable Town requirements and polices.
F. In order to ensure orderly controlled development by establishing minimum
design standards, including streets and other forms of vehicular and pedestrian
access, drainage, water supply and sanitation improvements to support human
occupation, it is necessary to require subdivision consistent with Title 16,
Avon Municipal Code.
G. The Property includes specific design requirements as set forth by the Town
Center Implementation Plan, which is further defined and supported by the
Town of Avon Residential, Commercial and Industrial Design Review
1
Guidelines. Specifically, the project will comply to the following general
design intentions:
■ Building facades will be stepped to avoid long straight walls. All sides of
the building must receive equal architectural treatment.
■ The building will be designed as a composition of architectural elements
rather than larger single blocks that appear unrelated in form and context.
■ The street-level architecture will activate and enhance pedestrian activity
on Main Street (the mall level), encouraging a lively center of retail
activity year round.
Additionally, the project will comply with the following site-specific
guidelines:.
Articulation of building facades:
Building facades shall be articulated with variations in materials and
punctuated with intermediate roof forms and building projections. Varying
expressions of decks, windows and surface treatments shall be combined
to create a rich texture that will enhance the interest of the facades. The
three primary components of the building's base, body and top shall be
clearly and deliberately expressed. The building's base shall express mass
and support with the use of such materials as stone and architectural
concrete.
The "body" of the building shall begin to erode materials that express
mass to lighter materials and more openings and surface variations such as
decks and changes in wall plane. Roofs shall be proportional to the height
and scale of the various building elevations.
The east end of the primary roof(s) and upper portion of the walls shall be
articulated so as to minimize their visual impact to surrounding properties
which may include the use of decks and the lowering of roof lines.
Roofs at north property line:
In addition to the suggested wall treatments noted above, these roofs shall
be adequately varied to avoid uninterrupted flat roofs. Approximately 50%
of the elevation above 28' above grade shall be articulated through the
introduction of discontinuous roof forms such as gables perpendicular to
the wall plane and variations in roof edges, relative to the setback line.
H. The legislature of the State of Colorado adopted Sections 24-68-101, et se . of
the Colorado Revised Statutes (the "Vested Property Rights Statute") to
provide for the establishment of vested property rights in order to ensure
reasonable certainty, stability and fairness in the land use planning process
and in order to stimulate economic growth, secure the reasonable investment
backed expectations of landowners, and foster cooperation between the public
and private sectors in the area of land use planning; said Vested Property
2
Rights Statute authorizes the Town to enter into development agreements with
landowners providing for vesting.of property development rights.
I. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the
Municipal Code authorizes the Town to enter into development agreements
with landowners and other qualified applicants providing for the vesting of
property development rights.
J. Development of the Property in accordance with this Agreement will provide
for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he
Comprehensive Plan, the Avon Town Center Implementation Plan, ensure
reasonable certainty, stability and fairness in the land use planning process,
stimulate economic growth, secure the reasonable investment-backed
expectations of Owner, foster cooperation between the public and private
sectors in the area of land use planning, and otherwise achieve the goals and
purposes for which the Vested Property Rights Statute and Chapter 17.14 of
the Municipal Code were enacted. In exchange for these benefits and the other
benefits to the Town contemplated by this Agreement, together with the
public benefits served by the orderly development of the Property, Owner
desires to receive the assurance that it may proceed with development of the
Property pursuant to the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and
the Town agree as follows:
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.0 Definitions. The following terms and references shall have the meaning set forth
below unless the context in which they are used clearly indicates otherwise:
1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the,
Planning and Zoning Commission of the Town on November 5, 1996, or any
subsequent duly adopted plans or amendments thereto.
1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD
Development Plan" incorporated herein and further defined in Sections 3.2 of
this Agreement.
3
1.3 Effective Date. The effective date of the Town Council Ordinance approving
this Agreement and the recording of the relevant subdivisions referenced
herein with the Clerk and Recorder of Eagle County, Colorado.
1.4 Exhibits. The following are Exhibits to this Agreement, all of which are
incorporated by reference into and made a part of this Agreement:
Exhibit A Legal Description.of Lot 61
Exhibit B Lot 61 PUD Development Plan, including Benchmark
, Court Right of Way and Transportation Center location
1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any
municipal lodging or accommodations tax imposed by the Town pursuant to
Ch. 3.28, Avon Municipal Code or any similar code provision enacted during
the T erm o f t his A greement a pon a ny s ales o r rental o f t odging w ithin t he
Property.
1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time.
1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code.
1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61
PUD Development Plan as set forth in Exhibit "B".
1.9 PUD. Planned unit development or PUD, as such terms are defined and used
in Section 17.20.110 of the Municipal Code.
1.10 Sanitation District. Eagle River Water and Sanitation District.
1.11 Subdivision. Means to make a disposition of land or airspace which is
defined as a subdivision, subdivided land, condominium subdivision, estate in
airspace, specially planned area and/or planned unit development subdivision,
minor subdivision, duplex subdivision or time-sharing subdivision consistent
with Title 16, Avon Municipal Code.
1.12 Time-share owner. Means a person vested with legal title to a timeshare
estate in accordance with Section 38-33-110, Colorado Revised Statutes
(2003).
1.13 Time-share unit. Means a unit the title to which is or is to be divided into
interval estates or time-span estates in accordance with Section 38-33-110,
Colorado Revised Statutes (2003).
4
1.14 Town. The Town of Avon, a municipal corporation of the State of
Colorado.
1.15 Town Council. The Town Council of the Town.
1.16 Lot 61. The real property described in Exhibit A attached hereto..
1.17 Vested Property Rights Statute. As defined in Recital H.
1.18 Zoning. The passing of land use ordinances and regulations authorized
by the Statutes of the State of Colorado and by Article XX of the Colorado
Constitution, and more specifically through the Avon Municipal Code, Title
17; intended to ensure that zoning promotes stated benefits to the citizens of
the Town. .
1.19 Zoning Application. The zoning application for the parcel comprising the
Property submitted to the Town on JbKr-.. 2- 3-.,, 2004.
1.20 Avon Town Center Implementation Plan. The plan adopted by the Town
on November 6, 2001 regarding development in the area commonly known as
the Town Center.
ARTICLE II
COVENANTS; THIS AGREEMENT
2.1 Term. In recognition of the size of the development contemplated under this
Agreement, the substantial investment and time required to complete the
development of the Property, and the possible impact of economic cycles and
varying market conditions during the course of development, Owner and the Town
agree that the term of this Agreement and the vested property rights established
under this Agreement shall commence on the Effective Date and shall continue until
the 5th anniversary of the Effective Date. After the expiration of the Term, this
Agreement shall be deemed terminated and of no further force and effect, provided,
however that such termination shall not effect (a) any rights-of-way and uses of
property granted to the Town related to the transportation center, or (b) any right
arising from Town permits, approvals or other entitlements for the Property which
were granted or approved prior to the 5th anniversary of the Effective Date.
2.2 Amendment of Agreement. Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and
Owner in writing following the public notice, public hearing and revised ordinance
procedures required for approval of this Agreement stated in Section 17.20.110
(Planned Unit Development) et al of the Avon Municipal Code. For the purpose of
any amendment to this Agreement, "Owner" shall mean only the Owner as defined
5
herein and those parties, if any, to whom such signatories have specifically been
granted, in writing by Owner, the power to enter into such amendments.
2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other
proceeding is commenced by a third party challenging the validity 'of any provision of
this Agreement or the Development Standards, Owner and the Town agree to
cooperate in defending such action or proceeding and to bear their own expenses in
connection therewith. Unless the Town and Owner otherwise agree, each party shall
select and pay its own legal counsel to represent it in connection with such action or
proceeding.
ARTICLE III
ZONING, VESTED RIGHTS AND EXACTIONS
3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement
and in the respective Development Standards. Complete zoning and site plans are
attached in Exhibit B, the Lot 61 PUD Development Plan.
3.2 Development Standards. The "Development Standards" set forth the zoning for the
Property, and indicate, among other things, setback distances, building height
limitations, site coverage levels, . development densities, allowed uses (both
permitted uses by right and those permitted upon special review), parking
requirements and other guidelines and limitations for the development of the
Property and are specifically set forth in Exhibit "B".
(a) Subsequent Final Plan Approval. Pursuant to this Agreement the
Property is now PUD Zoning pursuant to Section, 3.4(a). This constitutes a
Site-Specific Development Plan for the purposes of establishing vested
rights. Owner and the Town shall, in a manner which is uniform of the
Town and consistent with the provisions of Section 2.1 and Section 3.4 (d)
further refine the design of the improvements and other details, all
consistent with the Development Standards and this Agreement
collectively, "Subsequent Final Design Review Plan Approval." The
subsequent Final Design Review Plan Approval will consist of compliance
with the Town Center Implementation Plan, Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines, and relevant
portions of the Avon Municipal Code.
(b) Development Approval. Simultaneously with the granting of PUD
Zoning of the Property pursuant to Section 3.4 (a), the. Town hereby
approves the Lot 61 PUD Development Plan (Exhibit `B").
3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the
Development Standards and the Lot 61 PUD Development Plan constitute an
approved "site-specific development plan" as defined in the Vested Property Rights
6
Statute and Section 17.14.100 of the Avon Municipal Code and subsequent
compliance with Section 17.12.020 of the Avon Municipal Code which the Town
acknowledges and (b) that Owner as the legal owner of the Property shall have
vested property rights to undertake and complete development and use of the
Property as provided in this agreement and the Development Standards. Pursuant to
Section 17.14.050 of the Municipal Code, approval of this Agreement and the
Development Standards constitutes a vested property right pursuant to Article 68 of
Title 24, C.R.S., as amended.
3.4 Property Rights Vested. The rights identified below shall constitute the vested
property rights under this Agreement:
(a) The right to develop plan and engage in land uses with the Property in the
manner and to the extent set forth in and pursuant to this Agreement, the
Development Standards and the Lot 61 PUD Development Plan.
(b) The right to develop, plan and engage in land uses with the Property in
accordance with the densities, physical development standards and other
physical parameters set forth in the Development Standards.
(c) The right to develop the Property in the order, at the rate, and at the time
as in arket c onditions d ictate, s ubj ect t o t he t erms a nd c onditions o f t his
Agreement and the Development Standards.
(d) The right to develop and complete the development of the Property
(including, without limitation, the right to receive all properly applied for
and complete application approvals necessary for the development of the
Property) with conditions and standards determined pursuant to Section
3.2(b) which conform to the regulations and guidelines imposed by the
Town set forth in this Agreement and the Development Standards,
provided that such conditions, standards and dedications shall not directly
or indirectly have the effect of materially altering, impairing, preventing,
diminishing, delaying or otherwise materially adversely affecting any of
Owner's rights set forth in this Agreement or the Development Standards.
(e) The Town shall not initiate any zoning, land use or other legal or
administrative action that would directly or indirectly have the effect of
materially altering, impairing, preventing, diminishing, delaying or
otherwise adversely affecting any of Owner's rights that do not apply to
other properties in the Town, as set forth in this Agreement or the
Development Standards.
7
3.5 Exactions. The following exactions are intended to provide adequate facilities,
pedestrian and vehicular access, and other related improvements for the public
benefit of the Town:
(a) Right-of-Way Dedication. The newly created right-of-way referred to as
"Benchmark Court" will be dedicated to the Town by the approved Final
Plat, A Replat of Lot 61, Block 2; Benchmark at Beaver Creels ("Final
Plat") in accordance with Title 16, Avon Municipal Code
contemporaneously with the approval of this Agreement and the Lot 61
PUD Development Plan.
(b) Drainage. On site drainage facilities for the Property shall be provided by
Owner to handle drainage resulting from the development of the Property.
(c) Building Setbacks and Encroachments. It is the intention of the Town to
provide for necessary at grade and above grade setbacks to allow for the
building and/or structure to encroach as depicted on plans shown in
Exhibit B.
These provisions for allowing the building and/or structure elements over
and on the Town property will be set forth in the Resubdivision of Lot 61,
A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
("Resubdivision") and. must be approved contemporaneously with this
Agreement. The Resubdivision contains specific plat restrictions, which
require as-built drawings upon the construction of the Property or the
Resubdivision will be vacated subject to the terms and conditions of
Section 2.1.
(d) Transportation Center. The Final Plat shall also include an easement for a
Transportation Center, including necessary at grade and above grade
setbacks as depicted on Exhibit B.
In the event the Town elects to proceed with construction of the
Transportation Center prior to the commencement of construction of the
Lot 61 PUD Development Plan, then written notice must be provided to
the Owner prior to 180 days of commencement of construction.
The Town agrees to provide mechanical ventilation consistent with the
current building code at the time. of building permit application for the
Transportation. Center as part of the construction of the Lot 61 PUD
Development Plan. Positive chase and ductwork for the Transportation
Center will be provided by the Owner.
8
Noise generated by public transportation vehicles at the proposed
Transportation Center shall be reduced to the maximum extent reasonably
possible and in no case shall it raise the ambient sound level above the No
Impact for Category 1 or 2 Sites as shown in the following Table 3-1 from
Transit Noise and Vibration ImRact Assessment, Final Report April 1995,
prepared by Harris Miller Miller & Hanson, Inc. for the Office of
Planning, Federal Transit Administration, U. S. Department of
Transportation. The existing level of ambient noise, project noise and
allowable noise levels shall be established in accordance with applicable
procedures, methods and criteria conforming to the above referenced
Impact Assessment, Final Report.
The owner of Lot 61 will assume responsibility for the isolation of
vibration transmission to the structure, supporting the residential and
commercial occupancies, from the Transportation Center.
The owner of Lot 61 will assume responsibility for the attenuation of
sound transmission, from the-Transportation Center to the residential and
commercial occupancies such as the introduction of acoustic blankets,
resilient suspension devices and the like associated with the base building
construction.
The Town of Avon will assume the responsibility of constructing the
specific Transportation Center shelter and transit administrative office.
They will be designed with sufficient mass and structural isolation to
provide whatever measures needed to attain the acoustic criteria.
9
3-4 Transit Noise and Vibration Impact, Assessment
Table 3-1 Noise Levels Defining Impact for. Transit Projects
Existing
Project'Nuise
dmpact Expos
ure,- [,rq(h)>.or
Lq,m (dBA)
Noise
Exposure`
i
Category 1 or 2 Sites
Category 3 Sites
L,(h) or L,,,,
i
j Severe
(dBA)
No Impact
Impact Se
vere Impact
No Impact
Impact
f
Impact
<43
<Pmbient 4
Ambient +
Q :>Amtiiant+l5.
<ArnbierJt+75
Ambient +
{ `Arzbient+20
110-to 15
15 to 20
43
<52
52-58
>58 i
-57
.57-63
, 163
44
1 <52
52-58,
>58
<57
57-63
>63
45
<52
52-58 $
>58
<57
57-63
>63,
46
<53
I 53-59 '
>59
<58,
58-64
>64
47
, <53
53.-5.9
>59
<58
>8-64
>64
48
( <53
53-59
>59
<58'
58-64,
>64
49
I 154
54.59
>59
<59
59-64
>64
50
<54
54-59
>59
<59
59-64
>G4
51
<54
j 5460
>60 (
<59
1 59-65
=s65
52
<55.
I 55-60 !
>60'
160
1 60-65
>65
53
I <55
55-60
>60
X60
60-65
>65
54
<55
55-61
>61
<60
60-66
>66
55
1 <56;
56-6'1
>61
<61
I 61-66
56
I <.56
56-62
>62
<61
i 61-67
>67
,57
<57
57-62
>62
T=62
62-67
I >67
SR
<57
57-62' I
>62
<62
62-67
>67
59
<58
58-63'
>63
<63'
f 63-68
:>68
60
<58
58-63.
>63
<63
63-68
:>68
61.
<59
I 59-64
>64
<64
64-69
>6~)
62
<59
59-64
>64
<64
i, 64-69
>69
63
<60
60-65 }
>65
<65
05.70
=>70
64 I
, <61
j 611-65
>65
<66
i 6fi-70
>70
65 1
<61
61=(i6
>66
<66
' 66-71
>71
66
<62
62-67
:>67 {
<67
67-92
>772
67
<,63
63-67
>67 !
='.68
68-72
~ >72
68
<63
63-63 j
>68
«8
68-73
>73
69'
<64
64-69
>69,
<69
69-74
>74
70
<65
65-69
>69'
<70'
70-74
i >74:
71
<6G
66-70
>70
<77
71-75
I >75'
72
<66.
66-71
>7'1 )
<71
71-76
>76
73
<66
66-71
>71
<71
71=76
j >'7+6
74
<66
66-72
>72
<:7'1 '
71-77
' >T7
75
='66
I 66-73
>73
<71.
71-78
I >78
76 (
<66
66-74
>74
<71
71-79
I >79
77 1
<66
66-74
>74 j
<71
71-79
>719
>77 ~
<66
! 66-75
!
>75 I
<71
~ 7I-80
~ >St7
L~ is used, for
land use where
nighttime sensitiyitg is i
factor; I. ,duri
ng'the haucpF'
nximum transi
t noise expOsUT
is used for land
-use involving only daytime activities.
(e) Transit Administrative Office: A minimum of 400 square feet of floor area
on the ground level adjacent to the Town Transportation Center for typical
administrative purposes including rough-in plumbing for public restroom
facilities associated with transportation must be dedicated upon
construction of the Transportation Center by the Town and/or with design
review approval for Lot 61.
(f) Water Rights: The developer will be responsible for the acquisition of
additional water rights and their subsequent dedication to the Town if
necessary to amend the Town's Augmentation Plan based upon the
specific proposal applied for.
10
(g) Timeshare Amenities Fee: Commencing as of the effective date of this
Agreement, and continuing in perpetuity, the timeshare ownership
association formed to manage the timeshare ownership project located on
Lot 61 is obligated to collect from each timeshare owner and remit to the
Town a Timeshare Amenities Fee. The Owner is exempt from the
obligation for the timeshare amenities fee until the first-time sale of a
timeshare interval. The provisions for the obligation for each timeshare
owner to pay shall be a covenant running with the land and reflected
accordingly on the Resubdivision Plat and association covenants. Prior to
the formation of any timeshare ownership association, the Owner shall be
obligated to collect and remit any and all Timeshare Amenities Fee.
The number of units shall be calculated at the time of time-share
subdivision. The fee shall be paid to the Town semi-annually and will be
based upon the following schedule:
Number of Units Constructed
125 - 149 Timeshare Units
150 - 174 Timeshare Units
175 - over Timeshare Units
Per Timeshare Week*
$ 58.35
$ 48.52
$ 41.51
* Timeshare Week is defined as seven (7) consecutive days constituting a
maximum of fifty-two (52) intervals per calendar year.
The amount of the semi-annual payments will be calculated according to
the following formula:
Number o f e xisting o r n ewly d ceded t imeshare i nterests p er s emiannual
period (January- June, calculated as of June 1, and July-December
calculated as of December 1), multiplied by the appropriate fee based
upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as
defined below), divided by 2.
The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2005, and on the first day of each year thereafter, the
amount of the fee shall be increased by the prior years average consumer
price index for All Urban Consumers for the Denver-Boulder-Greeley
metropolitan area as published semiannually and appearing in the January
and July issues of the CPI Detailed Report published by the Bureau of
Labor Statistics (the "CPI-U").
It shall be the duty of the timeshare association to keep and preserve such
records as are necessary to determine the amount of fees due hereunder.
11
J
Such records shall be preserved for a period of three years and shall be
open for inspection by representatives of the Town during regular business
hours. Prior to the formation of the timeshare association, the Owner shall
have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written determination of the
amount due and deliver or mail the same to the office of the condominium
timeshare association. The amount properly determined to be owing shall
be from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the timeshare
association such written determination will be delivered to the Owner.
3.6 Timing on Development. In the event the Owner obtains a building permit and
complies with all other relevant rules and regulations governing development on the
Property consistent with the Lot 61 PUD Development Plan, then the Owner must
provide written notice 180-days prior to commencement of construction to the Town
of the development schedule.
There is no phasing proposed or contemplated for the development of this Property.
The Owner and the Town agree to cooperate in construction staging and
development to allow for orderly and safe construction of the Property.
3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property
and shall have no liability to the Town for its failure to develop the Property. The
Town shall have no obligation to permit the Owner to constrict under the dedicated
road right-of-way or transportation center after 5 years from the Effective Date of
the Agreement, and shall have no liability to the Owner or any other party for its
failure to develop all or any part of the Property. In the event an amended
Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
based upon as-built drawings is not recorded, then the Resubdivision will be vacated
subject to the terms and conditions of Section 2.1.
3.8 Compliance with General Regulation. Except as otherwise provided in this
Agreement or the Development Standards, the establishment of vested property
rights under this Agreement shall not preclude the application, on a uniform and
non-discriminatory basis, of Town regulations of general applicability (including,
but not limited to design review, building, fire, plumbing, electrical and mechanical
codes, the Municipal Code, and other Town rules and regulations) or the application
of state or federal regulations, as all of such regulations exist on the date of this
Agreement or may be enacted or amended after the date of this Agreement,
provided that such newly enacted or amended Town regulation shall not directly or
indirectly have the effect of materially altering, impairing, preventing, diminishing,
delaying or otherwise adversely affecting any of Owner's rights set forth in this
12
Agreement or the Development Standards. Owner does not waive its rights to
oppose the enactment or amendment of any such regulations inconsistent with other
properties in Town.
ARTICLE IV
DEFAULTS, REMEDIES, AND TERMINATION
4.0 Default by Town. A "breach" or "default" by the Town under this Agreement shall
be defined as: (a) any zoning, land use or other action or inaction, direct, indirect or
pursuant to an initiated measure, taken without Owner's consent, that materially
alters, impairs, prevents, diminishes, delays or otherwise materially and adversely
affects any development, use•or other rights of Owner under this Agreement or the
Development Standards or PUDs; or (b) the Town's failure to fulfill or perform any
material obligation of the Town contained in this Agreement.
4.1 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's
failure to fulfill or perform any material obligation of Owner contained in this
Agreement.
4.2 Notices of Default. In the event of a default by either party under this Agreement,
the non-defaulting party shall deliver written notice to the defaulting party of such
default, at the address specified in Section 5.7, and the defaulting party shall have
thirty (30) days from and after receipt of such notice to cure such default. If such
default is not of a type which can be cured within such thirty (30) day period and
the defaulting party gives written notice to the non-defaulting party within such
thirty (30) day period that it is actively and diligently pursuing such cure, the
defaulting party shall have a reasonable period of time given the nature of the
default following the end of such thirty (30) day period to cure such default,
provided that such defaulting party is at all times within such additional time period
actively and diligently pursuing such cure.
4.3 Remedies.
(a) If any default under this Agreement is not cured as described above, the
non-defaulting party shall have the right to enforce the defaulting party's
obligation hereunder by an action for any equitable remedy, including
injunction and/or specific performance, and/or an action to recover
damages. Each remedy provided for in this Agreement is cumulative and
is in addition to every other remedy provided for in this Agreement or
otherwise existing at law, in equity or by stature.
(b) In the event of default by the Owner, notwithstanding other available
remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny
13
land use approvals, including but not limited to design review and building
permits for the Property.
(c) The Town acknowledges that since this Agreement and the Development
Standards constitute a development agreement which confers rights
beyond those provided by the three (3) year statutory vesting approach
described in the Vested Property Rights Statute, in the event of a breach or
default by the Town, in addition to any of the foregoing remedies, Owner
shall be entitled to:
(i) recover from the Town any damages that should have been
specifically available to Owner as contemplated in
Colorado Revised Statutes Section 24-68-105(1)(c) as in
effect on the Effective Date, plus any other and additional
damages provable at law.
ARTICLE V
MISCELLANEOUS
5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with
the laws of the State of Colorado and the relevant portions of the Avon Municipal
Code..
5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this, Agreement shall be.
constructed as making Town and Owner joint venturers or partners.
5.2 Expenses. Except as otherwise provided in a separate written agreement, Owner
and the Town shall each bear their respective costs and expenses associated with
implementing and enforcing the terms of this Agreement.
5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a
waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
5.4 Town Findings. The Town hereby finds and determines that execution of this
Agreement is in the best interests' of the public health, safety, and general welfare,
and the. provisions of this Agreement, the PUD, Development Standards, and
vesting agreements contained herein are consistent with the Avon Comprehensive
Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations
and policies of the Town.
5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
14
remaining provisions of this Agreement shall continue in full force and effect so
long as enforcement of the remaining provisions would not be inequitable to the
party against whom they are being enforced under the facts and circumstances then
pertaining.
5.6 Further Assurances. Each party shall execute and deliver to the other all such other
further instructions and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other party the full and complete
enjoyment of its rights and privileges under this Agreement.
5.7 Notices. Any notice or communication required under this Agreement between the
Town and Owner must be in writing, and may be given either personally or by
registered or certified mail, return receipt requested. If given by registered or
certified mail, the same shall be deemed to have been given and received on the
first to occur of (1) actual receipt by any of the addresses designated below as the
party to whom notices are to be sent, or (ii) five days a registered or certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in the
United States mail, if personally delivered, a notice shall be deemed to have been
given when delivered to the party to whom it is addressed. Any party hereto may at
any time, by giving written 'notice to the other party hereto as provided in this
Section designate additional persons to whom notices or communications shall be
given, and designate any other address in substitution of the address to which such
notice or communication shall be given. Such notices or communications shall be
given to that parties at their addresses set forth below:
If to Town: Town of Avon Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
If to Owner: IDG 3 LLC
c/o C. Philip Smiley
P.O. Box 5000
Avon, CO 81620
5.8 Assignments. This Agreement shall be binding upon and except as otherwise
provided in this Agreement, shall inure to the benefit of the successors in interest or
the legal representatives of the parties hereto. Except as specifically set forth herein,
Owner shall have the right to assign, delegate or transfer all or any portion of its
interests, rights or obligations under this Agreement to third parties acquiring an
interest or estate in the Property, including, but not limited to, purchasers or long
term ground lessees of individual lots, parcels, or of any improvements now or
hereafter located within the Property. Provided that the Town's approval of the
assignee or transferee is first obtained, an assumption or transfers providing for
express assumption of any of Owner's obligations under this Agreement by its
assignee or transferee shall be relieved of any further obligations under this
Agreement with respect to the matter so assumed. The Town's obligations
15
hereunder may not be assigned or delegated without Owner's written consent, and
any attempted assignment or delegation by the Town not in compliance herewith
shall be null and void. The Town's approval of any such assignee or transferee shall
not be unreasonably withheld or delayed.
5.10 Counterparts. This Agreement shall be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5.11 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement, nor consent to any departure here from, shall in any event be elective
unless the same shall be in writing and signed by the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the
date first written above.
TOWN:
OF OZ,
SEAL
TOWN OF AVON, a municipal corporation
of the State of Colorado
BY.
Mayor
ATTEST t0
P
Tow Clerk
STATE OF COLORADO )
)ss.
COUNTY OF `tom L.rL )
Subscribed before me this day of
0.L ~ T fl . CL as
municipal corporation o the State of Colorado.
My Commission Expires: '-I 18 a L.
2004, by
✓1 von, a
6T A
OF COLO
16 My Commission Expires 0410612006
Notary ubl
STATE OF COLORADO )
)ss.
COUNTY OF
Subscribed before me this day of I-e-4,3 , 2004, by
Pa f ec e_ r"o, as Town Clerk o Avon, a municipal
corporation o the State of Colorado.
My Commission Expires:
WONAMM
ATTEST
STATE OF COLORADO )
)ss.
COUNTY OF~'Q.j )
Notary Public
Subscribed before rrle this day of i7e-- in r Lkck , 2004, by
m \C ~,-Q f(~ as M M0b Cr C 0---) LL~
My Commission Expires: t "1.
0
0
LAG. O
~~F COQ-APP
My CoMMMM Expires 1212004
17
Exhibit "A" To Lot 61 PUD Development Agreement
Lot 61, Block 2, Benchmark.at Beaver Creek, according to the.Final -
Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in
Book 274.at Page 701 as Reception No. 1711.07, County of Eagle, State of
Colorado.
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A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RIGHTS,
LEGAL ADVICE SHOULD BE OBTAmm IN. THE DRAPTING OF
ANY POWER OF ATTORNEY
PO'VYM OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS.,
THAT, t, C. PHILIP S1v11LEY, repestng special trust and confidenre in NvITCHAEL A. HAZARD, havo
made, constituted and appointed, and by these presents do make, constitute and appoint the said MTC14ARL A,
HAZARD, to be my true and lawful attorney in fact, to act for me and in my stead, and to refinance, hypothecate,
and give a dood of trust affecting the following property:
'REPLAT OF LOT 61, BLOCK 2, BENCHMARK AT BRAVER CREEK,
TOWN OF AVON
COUNTY OF EAGLE
STATE OF COLORADO
My agent is hereby authorized to sign, seal and dolivtr, as my act and deed any contract, deed, deed of trust,
promissory note, or other instrument in execution of any agreement for retimmoo,made by me or my agent in such
manner that the estate and Interest In said land may be e5c tually and assured to the Public Trusree of the County
in which the above describad prop" is situate, or to such other person or endLy as my agent may name or
appoint; and T hereby declare that any and all of the contracts, deeds, rocotpts, notes, plats or matters, and things
which shall be by my said agent given, made or done for the aforesaid purposes shall be as good, valid, and
effectual as if they had boon signed, sealed and delivered by me in my own proper Person; and I hereby undertake
at all times to ratify wha aver my said agent shall lawfully do or cause to be done in or concerning the premises
by virtue of these presonla, %
IN WITNESS WHEREOIF', T have hereunto set my hand and seal this - / day of~ 20 Of-
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STATE OF-COLORADO
COUNTY OF
} Dawn R Anyson
} Notary PubllGGc
State of Colorado
The fore gp-ng m9truumpt was acknowladged hofum me
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Memo
To: Honorable Mayor and Town Council
From: Tambi Katieb - Community Developme
Norman Wood- Town Engineer
Date February 4, 2004
Re: Second Reading of Ordinance No. 04-01 approving the Lot 61 PUD
Development. Plan and Development Agreement (PUBLIC HEARING)
Summary:
IDG3 LLC, the Owner of Lot 61, Block 2, Benchmark at Beaver Creek Subdivision has
been working with staff over the last year on finalizing a new PUD Development Plan
for Lot 61 as part of an extension of the original PUD development rights. This new
PUD plan establishes a reconfigured development site, a dedication of right-of-way to
the Town (Benchmark Court), provisions for a Transportation Hub and development
standards specifying new densities and permitted uses.
At your last meeting on January 27, 2004, the Lot 61 PUD application was approved
on first reading. Accompanying this PUD application are two subdivision applications:
one which approves the new surface lot configuration and Right-of-Way dedication,
and the other which defines the below and above grade buildable areas.
Council approved the original Lot 61 PUD in 1999 through Ordinance 99-16. In 2001,
the Town adopted a sub-area plan entitled the Town Center Implementation Plan,
which established specific goals of development for this critical part of Town as it
relates to long-term public improvements.
The new PUD Development Plan and accompanying development agreement set
forth basic development objectives that Town staff and the applicant have concluded
as mutually beneficial. The proposed development standards reflect a thorough
analysis by the Town's financial consultant (Stan Bernstein and Associates), and set
both minimums and maximums of development consistent with these financial
projections.
On January 6, 2004 the Planning & Zoning Commission recommended approval of the
Lot 61 PUD Development Plan with conditions as set forth in Resolution 04-03.
This process has been a groundbreaking endeavor between the Owner and the Town
to create a development plan and agreement, which include both private and public
benefits.
The Owner is receiving a greatly enhanced development package and the Town is
receiving an expanded transportation center location and improved road and
circulation system. The PUD Development Plan is consistent with the goals of
vitalizing Town Center, enhancing the Town transportation system and physically
achieving a logical and desired connectivity to the Confluence site.
Recommendation:
Staff recommends approval of Ordinance 04-01 on second reading. This approval
should only be in conjunction with approval of the two accompanying subdivision
applications.
Recommend Motion:
" I move to approve Ordinance 04-01 on second reading, approving the Lot 61 PUD
Development Plan and Development Agreement for Lot 61, Block 2, Benchmark at
Beaver Creek Subdivision".
Town Manager Comments:
J.
Exhibits:
A. Staff Report to Planning & Zoning Commission (January 6, 2004 hearing)
B. Planning & Zoning Commission Resolution 04-03
C. Town Council Ordinance 04-01 approving the Lot 61 PUD Development Plan
and Development Agreement.
D. Letter from Mark Donaldson dated January 13, 2004
E. Letter from Johnson & Repucci LLP dated January 12, 2004
F. Letter from IDG 3 LLC dated January 22, 2004
G. Letter from Mark Davis dated January 29, 2004 (new)
Lot 61 PUD, Lot 61, Block 2, BMBC Subdivision
Second Reading of Ordinance 04-01, February 10, 2004 (PUBLIC HEARING)
2
Staff Report
• PUD.
wy~
A 'R 4
VO N
r n i n n. n n
January 6, 2004 Planning & Zoning Commission meeting
Report date
Project type
Legal description
Current zoning
Address
Introduction
December 28, 2003
Lot 61 PUD
Lot 61, Block 2, Benchmark at Beaver Creek
Subdivision
Planned Unit Development
75 Benchmark Road
The purpose of the Lot 61 PUD Development Plan (herein referred to as "Lot 61 PUD") is to
formalize the new building area, including development standards for Lot 61 and.the
corresponding road alignments and transit center. The PUD for Lot 61 has been extended twice
to allow time to evaluate development opportunities for implementation of the Town Center Plan
between the Town and the developer. The current Lot 61 PUD is valid until February 3, 2004.
On December 16, 2003 this application was tabled to allow additional time for staff and
applicant to work through the development standards, development agreement and finalize the
plans. There are a few remaining issues regarding the development standards and the revised
application received on January 31, 2004.
The most significant elements contained in the new development plan benefiting the Town are as
follows:
• 50'0" right-of-way dedication.for the new Benchmark Road alignment to the Town of
Avon.
• Transit center to accommodate five (5) buses at a time with a 300 sq.ft.
administrative/visitor center.
• Enhanced pedestrian and vehicular circulation.
• Implementation of significant master plan concepts of the Town Center Plan.
In exchange, Lot 61 is receiving the following:
• Timeshare as a use-by-right.
• Increased building height, setbacks, site coverage, and.density.
The history of the zoning approval for Lot 61, Block 2, BMBC submitted by the developer,
IDG3 LLC is as follows:
1978 Lot 61 zoned Town Center.
1991 Town Center zoning modified.
•
Town of Avon Community Development (970) 748-4030
Fax (970) 949-5749
- ...b ..v1111-bbivu meeting Page 2 of 8
1999 Lot 61 applied for PUD zoning as set forth in Ordinance 99-16 (July 27, 1999)
which had a 3-year approval.
2002 Town Center Implementation Plan was adopted on January 8, 2001 (Resolution
02-01). ,
2002 PUD extension for a 6-month time period was granted to explore planning and
development of the Town Center Plan on July 23, 2002 (Ordinance 0247).
2003 In January, a PUD extension for one year was granted to allow the developer time
to pursue implementation of the Town Center Plan on January 28, 2003
(Ordinance 03-01).
2003 In July, Council authorized funds be allocated to begin initial studies for the new
property boundaries and road alignment.
Over the past few months, staff has met with the developer and its representatives, including the
Community Development Committee to.arrive at a development plan that includes the
im
plementation of the Town Center Plan in accordance with the existing PUD approval. The
development plan -A=-th2t accomModatesliP-40 five (5) buses,
preserving pedestrian connections with the Confluence, and a new 50'0" right of way for
Benchmark Road.
On December 9, 2003 Town Council reviewed the initial fiscal analysis of the Lot 61
development agreement prepared by Stan Bernstein, the Town's financial consultant. Of utmost
importance was the implication of timeshare as a use-by-right, including the imposition of a
recreational amenity fee to offset the impact of timeshare units. Council endorsed moving
forward with the process, including the refinement of the financial model to reflect the
contemplated land entitlements.
PUD Design Criteria
According to the Town of Avon Zoning Code, Section 17.20.110, the following shall be used as
the principal criteria in evaluating a PUD. It shall be the burden of the applicant to demonstrate
that submittal material and the proposed development plan comply with each of the following
design criteria, or demonstrate that one or more of them is not applicable, or that a particular
development solution is consistent with the public interest.
1. Conformance with the Town of Avon Comprehensive Plan's Goals and Objectives.
The proposed PUD now complies with the Town Center Plan and conforms to the following
goals and polices of the Town Comprehensive Plan:
Policy A 1.3 Flexible zoning such as PUD should be encouraged where it results in
more effective use of land
The planning process with staff and the developer for Lot 61 is a new
process for the Town and incorporatesllexible zoning to benefit both
public and private sectors.
Policy A3.5 Since undeveloped land in the Town Center is scarce, it will be developed
at higher density, included vertically integrated mix of commercial and
residential uses, and rely primarily on underground and/or structured
parking
•
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
A
LVL V 1, 1 L, 171Y117t, -Ouivls]on, Lot bI PUD 2004
January 6, 2004 Planning & Zoning Commission meeting Page 3 of 8 .
The underground parking structure for this project extends under the
Town right of way to allow for more parking and does not preclude the
opportunity for a private/public partnership for parking improvements and
includes a higher density mixed -use development.
Goal B 1 Enhance the Town's role as a principal, year-round residential community
and regional commercial center
This development plan will help vitalize Town Center with a more efficient
transit hub to encourage year-round use of mass transit. and pedestrian
circulation for its citizens, which is further reinforced by the following
policy B1.2.
Policy B 1.2 Commercial areas will be supported through creation and maintenance of
effective vehicle access and parking, transit services, all-season pedestrian
and non-motorized vehicle access, and consistent application of design
Goal B2 Establish the Town Center Area as an inviting, vibrant and safe-pedestrian
. oriented cultural, retail and entertainment hub
The purpose of the Town Center Plan is to further enhance a vibrant hub
in Town Center, which has been implemented in the Lot.61 development
plan.
Policy B2.2 Encourage a range of uses in the Town Center, including retail, offices,
hotels, recreation, tourism, and entertainment
• The Lot 61 development plan will include a range of uses and special
review uses.
Policy B2.4 Encourage joint development of structured parking, pedestrian and
landscape improvements, and promotion of activities and events in the
Town Center
This is a joint development, which benefits both the developer and the
Town to help synergize Town Center.
Policy B3.2 Promote effective transit and access with Beaver Creek and Arrowhead
Resorts, including gondola connections, trails, and pedestrian connections
The revised property lines and pedestrian connections will promote transit
and access to include potential opportunities for accessing the Confluence
site and gondola.
Policy E1.6 All new development and redevelopment should include or otherwise
provide for effective transit, pedestrian and bicycle facilities
This new development plan includes plans for effective transit, and
enhances pedestrian circulation.
Policy E2.1 Joint development of a structured parking facility in Town Center to
support private and public uses should be pursued to the extent possible
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
.5
January 6, 2004 Planning & Zoning Commission meeting Page 4 of 8
The joint planning for Lot 61 includes structured parking on the Town
right-of-way and does not preclude the potential for a shared parking
facility. At a minimum, the Town and developer are moving forward in a ,
joint effort to support Town Center development.
Goal E3 Promote the development of an enhanced transit system for the Town
The revised transit plan accommodates more buses and will improve'the
effectiveness of mass transit in the Town
Policy E3.2 Maintain the existing regional and Town-wide bus system, and enhance as
necessary to provide services to the community as it grows
The new transit hub contained on the Lot 61 development plan
accommodates the existing service demands for the ECO bus system as
well as the Town-wide system.
2. Conformity and compliance with the overall design theme of the town, the sub area
design recommendations and design guidelines of the Town.
The development plan for Lot 61 is limited in scope and defines building setback, density,
heights and new property boundaries. Previously, management indicated concerns that the
development standards provided too much flexibility to recommend the proposal to
constitute a site-specific development plan without complying with the financial model. As a
.result, staff has refined the development standards to ensure the proposed uses are specific
enough to constitute a site-specific development plan consistent with the financial model.
In addition, design guidelines are set forth in the Town Center Plan, which must be fulfilled
as the project moves through the design review process. These additional considerations
include: active street frontages, suggested access points, required pedestrian walkways
(which have been provided for), and other site planning and architectural considerations.
3. Design compatibility with the immediate environment, neighborhood, and adjacent
properties relative to architectural design, scale, bulk, building height, buffer zones,
character, and orientation.
The new property boundaries for Lot 61 include criteria established in the Town Center Plan,
such as 10'0" minimum sidewalks, new Benchmark Road alignment, requirements for
stepping the building as it increases in height, clearances to accommodate a transit center
while maintaining effective pedestrian movement in exchange for increased height, new
development standards, and effective orientation on the site.
4. Uses, activity, and density provide a compatible, efficient, and workable relationship
with surrounding uses and activity.
The new development standards for this mixed-use project combined with the new transit
center will enhance the vitality and efficiency of Town Center.
5. Identification and mitigation or avoidance of natural and/or geologic hazards that
affect the property upon which the PUD is proposed.
There are no known natural and/or geologic hazards on Lot 61 at this time. A Subdivision
Improvement Agreement may be required to ensure there are no unforeseen natural or
Town of Avon Community Development (970) 748-4030
Fax (970) 949-5749
iwt vi, yiva.n c, uiTiaa%, ououlv151011, Lot W PUD 2UU4
January 6, 2004 Planning 13-Zoning Commission meeting Page 5 of 8
geologic hazards, specifically at it relates to infrastructure improvements such as water,
sewer, and/or drainage associated with this development.
• 6. Site plan, building design and location and open space provisions designed to produce a
functional development responsive and sensitive to natural features, vegetation and
overall aesthetic quality of the community.
The proposed development plan for Lot 61 is more responsive to improving the aesthetic
quality of Town Center. The Planning & Zoning Commission will further clarify the
building design through implementation of the Town Center design guidelines, and design
review.
7. A circulation system designed.for both vehicles and pedestrians addressing on and off
site traffic circulation that is compatible with the Town Transportation Plan.
The Town Center Plan and the Town Transportation Plan have been considered and
implemented in this development plan and improves the circulation for pedestrians, mass
transit, and v
8. Functional and aesthetic landscaping and open space in order to optimize and preserve
natural features, recreation, views and function.
Specific provisions for allowing the building to encroach onto Town right-of-way and in
other areas to step back from pedestrian ways have been carefully considered and
implemented with this development plan to optimize and preserve views and overall
function.
9. Phasing plan or subdivision plan that will maintain a workable, functional,.and efficient
• relationship throughout the development of the PUD. The phasing plan shall clearly
demonstrate that each phase can be workable, functional and efficient without relying
upon completion of future project phases.
There is no phasing plan proposed by this PUD. There will be timing requirements set forth
in the development agreement to allow the developer and/or the Town time to exercise their
rights for construction.
10. Adequacy of public services such as sewer, water, schools, transportation systems,
roads, parks, and police and fire protection.
IDG3 LLC will be responsible for the acquisition of additional water rights and their
subsequent dedication to the Town if needed to amend the Town's Augmentation Plan.
11. That the existing streets and roads are suitable and adequate to carry anticipated
traffic within the proposed PUD and in the vicinity of the proposed PUD.
The new 50'0" road right-of-way alignment and transit center provisions improve the overall
adequacy, carrying capacity, and mobility patterns of Town Center.
12. Development Standards
The Development Standards including lot area, site dimensions, setbacks, height, density
control, site coverage, landscaping and parking are being modified with this proposal and are
proposed as follows:
•
1 own of Avon -pnonunny --ropment (970) 7484030
Fax (970) 949-5749
January 6, 2004 Planning & Zoning Commission meeting Page 6 of 8
a. Uses by-right:
• Retail stores
• Specialty shops .
• Restaurants, excluding drive-thru windows
■ Cocktail lounges
■ Personal service shops
■ Timeshare, interval ownership, and fractional fee ownership above grade
with the condition that recreational amenity fees are paid - Of- terms.and .
conditions of which will be negotiated with the development agreement.
Staff recommends a minimum of 150-timeshare, interval ownership, or
fractional fees units with a minimum of 900 net sq. ft each to comply with
the premise of the financial analysis. The applicant is seeking a minimum
o 125-units
■ Hotel/accommodation units on floors above grade. Staff is recommending
a minimum of200 accommodation units and the applicant is seeking to
limit the minimum to 180 units.
■ Condominiums on floors above grade. Staff is recommending a minimum
of125 units @ 1,250 net sq.ft. to comply with the financial model and the
applicant is seeking a minimum of 90-condominium units 1,250 net sq ft.
■ Indoor recreation and/or entertainment facilities
■ Theaters
Public transportation facilities including 300 S.F. transit/administrative
office at grade, immediately adjacent to transit center. Staff is
recommending that these transportation facilities include public restroom
facilities.
■ A minimum of 17,000 square feet of commercial/retail space. Staff is
recommending an additional requirement that this minimum not include
personal service shops to ensure tax revenues on the minimum
requirement on the commercial/retail space. The revised application
dated 12131103 does not comply with this recommendation.
b. Special Review Uses:
Conference/convention facilities
Above ground public utility installations
Professional offices on grade.
Public parking facilities
Medical Facilities
Financial Institutions
Additional uses to be determined similar to the allowed uses in accordance
with the same zone district. As this is a PUD with no specific uses, staff
would prefer to restrict the development standards to the enumerated uses.
Town of Avon Community uevelopment (970) 748-4030 Fax (970) 949-5749
Q
Lot 61, Block 2, BMBC Subdivision, Lot 61 PUD 2004
January 6, 2004 Planning & Zoning Commission meeting Page 7 of 8
c. Development Standards
Lot Area 1.07 Acres
Projections such as columns, roofs, unenclosed floors and decks may
encroach into setbacks and/or right of ways with specific Town of
Avon design review approval
Building Height A height, as defined by The Town of Avon Title 17,
Chapter 17.08, Section 160, of 108.5'. This height
shall be to the top of roof structures over enclosed,
habitable space. Elevator penthouses, chimneys,
parapets and similar appurtenances shall be allowed
to exceed this datum
Maximum Density:
Commercial /retail 40,000 sq.ft.
Condominium 330,000 sq.ft.
Timeshare/Interval 330,000 sq.ft.
Accommodation Units 375 units
Landscape/Hardscape Coverage: Shall be determined during the design
review process.
d. Parkin : All parking shall comply with the Lot 61 PUD Development Agreement.
Staff has consistently requested the Avon Municipal Code parking standards be
• implemented. The applicant is still seeking rebates and a reduction in parking
under the Development Agreement.
e. Provisions for stepping back the building as it increases in height on the Town
Center (north elevation). There are also encroachments authorizing the building
over the transit center (south elevation) and over the new Benchmark Road right-
of-way alignment enhancing the density and architectural interest for IDG3 LLC as
set forth in the Lot 61 PUD Development Plan.
Staff Comments & Recommendation
Although some outstanding issues remain with the revised application associated with the
development standards and corresponding development agreement for the Lot 61 PUD
Development, it is staff's position these are policy and legislative decisions, which rests with the
Avon Town Council. Therefore, staff recommends approval of Resolution 04-03 for the Lot 61
PUD Development Plan, subject to the following conditions:
The new Benchmark Road alignment (50'0" Benchmark Court Right-of Way) must
be conveyed by subdivision plat prior to approval of the Lot 61 PUD Development
Plan.
2. Development Standards shall be as follows:
A minimum of 150-timeshare, interval ownership, and fractional fee
ownerships units @ 900 net sq.ft. above grade including a recreational
amenity fees.
Town of Avon Community Development . (970) 748-4030
Fax (970) 949-5749
A
January b, 1uu4 riannmg at Lonmg Commission meeting Page 8 of 8
• A minimum of 125 condominium units above grade @ 1,250 net sq.ft.
• A minimum of 200 hotel/accommodation units above grade
• Public transportation facilities including 300 S.F. transit/administrative
offices and public restroom facilities at grade, immediately adjacent to
transit center.
• A minimum of 17,000 square feet of commercial/retail space, which does
not include personal service shops.
• All parking shall comply with the Avon Municipal Code parking
standards.
3. A requirement that the developer will be responsible for the acquisition of additional
water rights and their subsequent dedication to the Town if necessary to amend the
Town's Augmentation Plan prior to issuance of a building permit.
4. Failtife obtain final design app, val, inelt! g compliatwe v6th the
Town Center design guidelines of the site-specific development plan by January 31,
2012 shall automatically terminate these development standards and conditions.
5. This PUD is contingent upon a valid Development Agreement between IDG3 LLC
and the Town of Avon being approved.
6. Except as otherwise modified by this approval, all material representations made by
the applicant or applicant representative(s) in this application and in public hearing(s)
shall be adhered to and considered binding conditions of approval.
Recommended Motion i
"I hereby approve Resolution 04-03 recommend approval of the Lot 61 PUD Development Plan
subject to the conditions contained therein."
If you have any questions regarding this project or any planning matter, please call me at 748-
4030, or stop by the Community Development Department.
Respectfully submitted,
Ruth O. 'B'orne, Director
Community Development
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
\0
C]
TOWN OF AVON
PLANNING & ZONING COMMISSION
RESOLUTION NO. 04-03
SERIES- OF 2004
A RESOLUTION RECOMMENDING TO THE TOWN COUNCIL OF THE TOWN OF
AVON APPROVAL OF A PUD DEVELOPMENT PLAN FOR LOT 61, BLOCK 2,
111 1, 1, "1 111 11 1 1 11 111 -01
7 9 kGLE
COUNTY, COLORADO
WHEREAS, the Applicant., IDG3 LLC has applied for approval of the Lot 61 PUD
Development Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, after notices required by law, a public hearing on said application was held by
the Planning,.& Zoning Commission of the Town of Avon; and
WHEREAS, said application is consistent with all legal requirements.
NOW, THEREFORE, BE IT RESOLVED that the Planning and Zoning Commission hereby
recommends approval to.the Town Council of the Town of Avon for the Lot 61 PUD.
Development Plan dated January 2, 2003 with the following conditions:
1. The new Benchmark Road alignment (50'0" Benchmark Court Right-of Way) must be
conveyed by subdivision plat prior to approval of the Lot 61 PUD Development Plana
2. Development Standards shall be as follows:
• A minimum of 150-timeshare, interval ownership, and fractional fee ownerships
units @ 900 net sq.ft. above grade including a recreational amenity fees.
• A minimum of 125 condominium units above grade @ 1,250 net sq.ft.
• A minimum of 200 hotel/accommodation units above grade.
• Public transportation facilities including 300 S.F. transit/administrative offices
and public restroom facilities at grade, immediately adjacent to transit center.
i • A minimum of 17,000 square feet of commercial/retail space, which does not
include personal service shops.
• All parking shall comply with the Avon Municipal Code parking standards. .
3. This PUD Amendment is contingent upon a valid Development Agreement between
IDG3 LLC and the Town of Avon being approved.
4. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town prior to issuance of a building permit to
amend the Town's Augmentation Plan.
5. Failure to develop and obtain final design approval, including compliance with the Town
Center design guidelines of the site-specific development plan by January 31, 2012 shall
automatically terminate these development standards and conditions.
6.: Except as otherwise modified by this approval, all material representations made by the
applicant i an in public hearing(s). s 1511
be adhered to and considered binding conditions of approval.
Adopted this 6th day of January, 2003
Signed.
Date:
Chris.Evans, Chairman
Attest:
Date:
Terry Smith, ecretary
•
Nil.*'
TOWN OF AVON
ORDINANCE NO. 04-01
SERIES OF 2004
AN ORDINANCE APPROVING THE LOT 61 PLANNED
UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2,
BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO.
WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit
Development ("PUD') Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and
WHEREAS, the Town and the Owner have negotiated the terms and conditions of the
• Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision
("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on January 6, 2004, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
PUD Development Plan; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of
the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
day of , 2004, at which time the public was given an opportunity to
express their opinions regarding the proposed PUD Development Plan; and
FACounci1\0rdinances\2004\0rd 04-01 L61 B2 BMBC PUD.doc
\y'
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
1. The hearings before the Planning &Zoning Commission and the ,
Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the Lot 61 PUD Development Plan is consistent with the recently adopted
Town Center Plan, the goals and objectives of the Town's Comprehensive Plan,
and is compatible with surrounding neighborhood and the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the
following conditions:
If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights
and their subsequent dedication to the Town, as required by Section 17.14. of the.
Avon Municipal Code, prior to issuance of a building permit to amend the Town's
Augmentation Plan.
2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is
required to complete subsequent design review approval, which consists of compliance
with the Town Center Design Guidelines and the Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines.
3. Except as otherwise modified by this approval, all material representations made by the
applicant or applicant representative(s) in this application and in public hearing(s) shall
be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this day of , 2004, and a public hearing shall be held at the
regular meeting of the Town Council of the Town of Avon, Colorado, on the day of,
2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
Town of Avon, Colorado
Town Council
•
FACounci1\0rdinances\2004\0rd 04-01 L.61 B2 BMBC PUD.doc
\A
Mayor
ATTEST:
Town Clerk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the day of .2004.
Town of Avon, Colorado
Town Council
Mayor
ATTEST:
•
Town Clerk
APPROVED AS TO FORM:
Town Attorney
•
FACounci1\0rdinances\2004\0rd 04-01 L61 B2 BMBC PLJD.doc
\ "a
•
•
\lp
. . Exhibit "A" to Ordinance 04-01
DEVELOPMENT AGREEMENT
FOR
LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of January , 2004 by and between IDG3, LLC, a Limited Liability Company, its
successors and/or ssigns (hereinafter "Owner") and the Town of Avon, a municipal
corporati6if ofd . , ,,Ve of Colorado (the "Town").
RECITALS:
A. Owner is a limited liability company, duly organized and in good standing
under the laws of the State of Colorado.
B. Owner owns a parcel of real property generally referred to as "Lot 61" as
more particularly described in Exhibit A attached to this agreement ("Lot
61"
C. The Town and the Owner desire to develop Lot 61 as a mixed-use
development consistent with the Avon Town Center Implementation Plan
thereby creating new property lines for Lot 61, development standards, rights-
of-way and a transportation center. This new parcel is referred to as the
"Property"
D. The Property contains specific development standards attached and
incorporated herein as a site-specific development plan entitled "Lot 61 PUD
Development Plan" (Exhibit "B") and as set forth in Article III of this
Agreement.
E. The Town has authority to zone and govern development of the Property in
accordance w ith t his A greement, t he A von C omprehensive P Ian, T he A von
Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61
PUD (as defined herein), and other applicable Town requirements and polices.
F. In order to ensure orderly controlled development by establishing minimum
design standards, including streets and other forms of vehicular and pedestrian
access, drainage, water supply and sanitation improvements to support human
occupation,. it is necessary to require subdivision consistent with Title 16,
Avon Municipal Code.
G. The Property includes specific design requirements as set forth by the Town
Center Implementation Plan, which is further defined and supported by the
Town of Avon Residential, Commercial, and Industrial Design Review
1
Guidelines. Specifically, the project will comply to the. following general
design intentions:
■ Building facades will be stepped to avoid long straight walls. All sides of
the building must receive equal architectural treatment.
■ The building will be designed as a composition of architectural elements
rather than larger single blocks that appear unrelated in form and context.
■ The street-level architecture will activate and enhance pedestrian activity
on Main Street (the mall level), encouraging a lively center of retail
activity year round.
Additionally, the project will comply with the following site-specific
guidelines:
Articulation of building facades:
Building facades should be articulated with variations in materials and
punctuated with intermediate roof forms and building projections. Varying
expressions of decks, windows and surface treatments should be combined
to create a rich texture that will enhance the interest of the facades. The
three primary components of the building's base, body and top should be
clearly and deliberately expressed. The building's base should express
mass and support with the use of such materials as stone and architectural
concrete.
The "body" of the building should begin to erode materials that express
mass to lighter materials and more openings and surface variations such as
decks and changes in wall plane. Roofs should be proportional to the
height and scale of the various building elevations.
The east end of the primary roof(s) and upper portion of the walls shall be
articulated so as to minimize their visual impact to surrounding properties
which may include the use of decks and the lowering of roof lines.
Roofs at north property line:
In addition to the suggested wall treatments noted above, these roofs
should be adequately varied to avoid uninterrupted flat roofs.
Approximately 50% of the elevation above 28' above grade shall be
articulated through the introduction of discontinuous roof forms such as
gables perpendicular to the wall plane and variations in roof edges,
relative to the setback line.
H. The legislature of the State of Colorado adopted Sections 24-68-101, et sea. of
the Colorado Revised ,Statutes (the "Vested Property Rights Statute") to
provide for the establishment of vested property rights in order to ensure
reasonable certainty, stability and fairness in the land use planning process
and in order to stimulate economic growth, secure the reasonable investment
backed expectations of landowners, and foster cooperation between the public
2
I'Q
and private sectors in the area of land use planning; said Vested Property
Rights Statute authorizes the Town to enter into development agreements with
landowners providing for vesting of property development rights.
I. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the
Municipal C ode a uthorizes t he T own t o e nter i nto d evelopment a greements
with landowners and other qualified applicants providing for the vesting of
property development rights.
J. Development of the Property in accordance with this Agreement will provide
for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he
Comprehensive Plan, the Avon Town Center Implementation Plan, ensure
reasonable certainty, stability and fairness in the land use planning process,
stimulate economic growth, secure the reasonable investment-backed
expectations of Owner, foster cooperation between the public and private
sectors in the area of land use planning, and otherwise achieve the goals and
purposes for which the Vested Property Rights Statute and Chapter 17.14 of
the Municipal Code were enacted. In exchange for these benefits and the other
benefits to the Town contemplated by this Agreement, together with the
public benefits served by the orderly development of the Property, Owner
desires to receive the assurance that it may proceed with development of the
Property pursuant to the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and
the Town agree as follows:
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.0 Definitions. The following terms and references shall have the meaning set forth
below unless the context in which they are used clearly indicates otherwise:
1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the
Planning and Zoning Commission of the Town on November 5, 1996, or any
subsequent duly adopted plans or amendments thereto.
1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD
Development Plan" incorporated herein and further defined in Sections 3.2 of
this Agreement.
3
1.3 Effective Date. The effective date of the Town Council Ordinance approving
this Agreement and the recording of the relevant subdivisions referenced
herein with the Clerk and Recorder of Eagle County, Colorado.
1.4 Exhibits. The following are Exhibits to this Agreement, all of which are
incorporated by reference into and made a part of this Agreement:
Exhibit A Legal Description of Lot 61
Exhibit B Lot 61 PUD Development Plan, including Benchmark
Court Right of Way and Transportation Center location
1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any
municipal lodging or accommodations tax imposed by the Town pursuant to
Ch. 3.28, Avon Municipal Code or any similar code provision enacted during
the T erm o f t his A greement u pon a ny s ales o r rental o f t odging w ithin t he
Property.
1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time.
1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code.
1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61
PUD Development Plan as set forth in Exhibit "B".
1.9 PUD. Planned unit development or PUD, as such terms are defined and used
in Section 17.20.110 of the Municipal Code.
1.10 Sanitation District. Eagle River Water and Sanitation District.
1.11 Subdivision. Means to make. a disposition of land or airspace which is
defined as a subdivision, subdivided land, condominium subdivision, estate in
airspace, specially planned area and/or planned unit development subdivision,
minor subdivision, duplex subdivision or time-sharing subdivision consistent
with Title 16, Avon Municipal Code.
1.12 Time-share owner. Means a person vested with legal title to a timeshare
estate in accordance with Section 38-33-110, Colorado Revised Statutes
(2003).
1.13 Time-share unit. Means a unit the title to which is or is to be divided into
interval estates or time-span estates in accordance with Section 38-33-110,
Colorado Revised Statutes (2003).
4
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1.14 Town. The Town of Avon, a municipal corporation of the State of
Colorado.
1.15 Town Council. The Town Council of the Town.
1.16 Lot 61. The real property described in Exhibit A attached hereto.
1.17 Vested Property Rights Statute. As defined in Recital H.
1.18 Zoning. The passing of land use ordinances and regulations authorized
by the Statutes of the State of Colorado and by Article XX of the Colorado
Constitution, and more specifically through the Avon Municipal Code, Title
17, intended to ensure that zoning promotes stated benefits to the citizens of
the Town.
1.19 Zoning Application. The zoning application for the parcel comprising the
Property submitted to the Town on ; 2004.
1.20 Avon Town Center Implementation Plan. The plan adopted by the Town
on November 6, 200 regarding development in the area commonly known as
the Town Center.
ARTICLE II
COVENANTS; THIS AGREEMENT
2.1 Term. In recognition of the size of the development contemplated under this
Agreement, the substantial investment and time required to complete the
development of the Property, and the possible impact of economic cycles and
varying market conditions during the course of development, Owner and the Town
agree that the term of this Agreement and the vested property rights established
under this Agreement shall commence on the Effective Date and shall continue until
the 5th anniversary of the Effective Date. After the expiration of the Term, this
Agreement shall be deemed terminated and of no further force and effect, provided,
however that such termination shall not effect (a) any rights-of-way and uses of
property granted to the Town related to the transportation center, or (b) any right
arising from Town permits, approvals or other entitlements for the Property which
were granted or approved prior to the 5th anniversary of the Effective Date.
2.2 Amendment of A geement. Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and
Owner in writing following the public notice, public hearing and revised ordinance
procedures required for approval of this Agreement stated in Section 17.20.110
(Planned Unit Development) et al of the Avon Municipal Code. For the purpose of
any amendment to this Agreement, "Owner" shall mean only the Owner as defined
5
a\
herein and those parties, if any, to whom such signatories have specifically been
granted, in writing by Owner, the power to enter into such amendments.
2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other
proceeding is commenced by a third party challenging the validity of any provision of
this Agreement or the Development Standards, Owner and the Town agree to
cooperate in defending such action or proceeding and to bear their own expenses in
connection therewith. Unless the Town and Owner otherwise agree, each party shall
select and pay its own legal counsel to represent it in connection with such action or
proceeding.
ARTICLE III
ZONING, VESTED RIGHTS AND EXACTIONS
3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement
and in the respective Development Standards. Complete zoning and site plans are
attached in Exhibit B, the Lot 61 PUD Development Plan.
3.2 Development Standards. The "Development Standards" set forth the zoning for the
Property, and indicate, among other things, setback distances, building height
limitations, site coverage levels, development densities, allowed uses (both
permitted uses by right and those permitted upon special review), parking
.requirements and other guidelines and limitations for the development of the
Property and are specifically set forth in Exhibit "B".
(a) Subsequent Final Plan Approval. Pursuant to this Agreement the
Property is now PUD Zoning pursuant to Section 3.4(a). This constitutes a
Site-Specific Development Plan for the purposes of establishing vested
rights. Owner. and the Town shall, in a manner which is uniform of the
Town and consistent with the provisions of Section 2.1 and Section 3.4 (d)
further refine the design of the improvements and other details, all
consistent with the Development Standards and this Agreement
collectively, "Subsequent Final Design Review Plan Approval." The
subsequent Final Design Review Plan Approval will consist of compliance
with the Town Center Implementation Plan, Town of Avon Residential,
Commercial, and Industrial Design Review Guidelines, and relevant
portions of the Avon Municipal Code.
(b) Development Approval. Simultaneously with the granting of PUD
Zoning of the Property pursuant to Section 3.4 (a), the Town hereby
approves the Lot 61 PUD Development Plan (Exhibit `B").
3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the
Development Standards and the Lot 61 PUD Development Plan constitute an
approved "site-specific development plan" as defined in the Vested Property Rights
6
Statute and Section 17.14.100 of the Avon Municipal Code and subsequent
compliance with Section 17.12.020 of the Avon Municipal Code which the Town
acknowledges and (b) that Owner as the legal owner of the Property shall have
vested property rights to undertake and complete development and use of the
Property as provided in this agreement and the Development Standards. Pursuant to
Section 17.14.050 of the Municipal Code, approval of this Agreement and the
Development Standards constitutes a vested property right pursuant to Article 68 of
Title 24, C.R.S., as amended.
3.4 Property Rights Vested. The rights identified below shall constitute the vested
property rights under this Agreement:
(a) The right to develop plan and engage in land uses with the Property in the
manner and to the extent set forth in and pursuant to this Agreement, the
Development Standards and the Lot 61 PUD Development Plan.
(b) The right to develop, plan and engage in land uses with the Property in
accordance with the densities, physical development standards and other
physical parameters sefforth in the Development Standards.
(c) The right to develop the Property in the order, at the rate, and at the time
as in arket c onditions d ictate, s ubject t o t he t erms and c onditions o f t his
Agreement and the Development Standards.
(d) The right to develop and complete the development of the Property
(including, without limitation, the right to receive all properly applied for
and complete application approvals necessary for the development of the
Property) with conditions and standards determined pursuant to Section
3.2(b) which conform to the regulations and guidelines imposed by the
Town set forth in this Agreement and the Development Standards,
provided that such conditions, standards and dedications shall not directly
or indirectly have the effect of materially altering, impairing, preventing,
diminishing, delaying or otherwise materially adversely affecting any of
Owner's rights set forth in this Agreement or the Development Standards.
(e) The Town shall not initiate any zoning, land use or other legal or
administrative action that would directly or indirectly have the effect of
materially altering, impairing, preventing, diminishing, delaying or
otherwise adversely affecting any of Owner's rights that do not apply to
other properties in the Town, as set forth in this Agreement or the
Development Standards.
7
3.5 Exactions. The following exactions are intended to provide adequate facilities,
pedestrian and vehicular access, and other related improvements for the public
benefit of the Town:
(a) Right-of-Way Dedication. The newly created right-of-way referred to as
"Benchmark Court" will be dedicated to the Town by the approved Final
Plat, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Final
Plat") in accordance with Title 16, Avon Municipal Code
contemporaneously with the approval of this Agreement and the Lot 61
PUD Development Plan.
(b) Drainage. On site drainage facilities for the Property shall be provided by
Owner to handle drainage resulting from the development of the Property.
(c) Building Setbacks and Encroachments. It is the intention of the Town to
provide for necessary at grade and above grade setbacks to allow for the
building and/or structure to encroach as depicted on plans shown in
Exhibit B.
These provisions for allowing the building and/or structure elements over
and on the Town property will be set forth in the Resubdivision of Lot 61,
A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
("Resubdivision") and must be approved contemporaneously with this
Agreement. The Resubdivision contains specific plat restrictions, which
require as-built drawings upon the construction of the Property or the
Resubdivision will be vacated subject to the terms and conditions of
Section 2.1.
(d) Transportation Center. The Final Plat shall also include an easement for a
Transportation Center, including necessary at grade and above grade
setbacks as depicted on Exhibit B.
In the event the Town elects to proceed with construction of the
Transportation Center prior to the commencement of construction of the
Lot 61 PUD Development Plan, then written notice must be provided to
the Owner prior to 180 days of commencement of construction.
The Town agrees to provide mechanical ventilation consistent with the
current building code at the time of building permit application for the
Transportation Center as part of the construction of the Lot 61 PUD
Development Plan. Positive chase and ductwork for the Transportation
Center will be provided by the Owner.
8
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Noise generated by public transportation vehicles at the proposed
Transportation Center shall be reduced to the maximum extent reasonably
possible and in no case shall it raise the ambient sound level above the
median between the No Impact and the Impact Levels for Category 1 or 2
Sites as shown in the following Table 3-1 from Transit Noise and
Vibration Impact Assessment Final Report April 1995, prepared by Harris
Miller Miller & Hanson, Inc. for the Office of Planning, Federal Transit
Administration, U. S. Department of Transportation. The existing level of
ambient noise, project noise and allowable noise levels shall be
established in accordance with applicable procedures, methods and criteria
conforming to the above referenced Impact Assessment, Final Report.
3-4 Transit Noise and Vibration Impact Assessment
Table 3-1 Noise Levels Defining Impact for Transit Projects
Existing
Project Noise Impact Exposure; L,a(h) or
L, (dBA)
Noise
~
Exposure'
I
Category 1 or 2 Sites
Category 3 Sites
L«(h) or Le.
I
I
. Severe
(dBA)
No Impact
Impact Severe Impact
No Impact
Impact
Impact
<43
ii
i <Ambient+10
Ambient +
>Ambient+l5
<Ambient+15
Ambient r I
i >Ambienbt-20
10 to 15
i
15 to 20
43
<52
52-58
>58
<57
57-63 I
>63
44
!
! <52
52-58
158
<57
57-63
>63
45
<52
52-58 i
>58
<57
57-63
>63
46
<53
I 53-59 '
>59 I
<58
1 58-G4 I
>64
47
<53
j 53-59
>59 j
<58
1 58-64 1
>G4
48
<53
I 53-59
>59 I
<58
58-64 j
>64
49
I <54
54-59
>59
<59
59-64
>64
50
<54
54-59
>59
<59
j 59-64
>64
51
<54
j 54-60
I
>60
<59
59-65
>65
52
I <55
I 55-60
>60
<60
60-65
>65
53
I <55
55-60
>60
<60
l 60-65 j
>65
54
I <55
55-61
>61
<60
i 60-66
>66
55
j <56
56-61
>61
<61
I 61-66
>66
56
I <56
I
56-62 1
>62
'
<61
I 6)-67 j
>67
I
57
<57
I
57-62
r
>62
<62
I 62-67 I
>67
58 i
<57
57-62
>62 j
<62
62-67 !
>67
59
<58
58-63
>63 j
<63 1
63-68
>68
60
<58
I
58-63
>63
<63
63-68
>68
61
<59
I
59-64
>64 I
<64 1
64-69
>69
62
<59
I
59-64
>64
<64 j
64-69
>69
63
<60
60-65 >
>65
<65 i
65-70
>70
64 I
<61
61-65
>65
<66 i
66-70
>70
65
<61
61-66
>66
<66 I
66-71
>71
66 j
<62
62-67
>67 I
<67 (
67-72
>72
67
<63
I
63-67
>67 r
<68
68-72 I
>72
68 I
<63
63-68
>68
<68 ?
68-73 !
>73
69 I
<64
64-69
>69
<69
69-74
>74
70
<65
65-69 a
>69
<70 I
70-74 j
>74
71 I
<66
66-70
>70
<71
71-75
>75
72
<66
66-71
X71 I
<71
71-76
>76
73
<66
66-71
>71 I
<71
71.76
>76
74
<66
I 66-72
>72
<71
71-77 I
>77
75
<66
1 66-73
>73
<71 l
71-78 '
>78
76 I
<66
1 66-74
>74
<71
71-79
>79
77
<66
I 66-74 11
>74
<71
71-79
>79
>77 j
<66
66-75
>7j I
<71
71-80
>80
L,,„ is used for l
and use where n
ighttime sensitivity is a
factor; L,,, during the hour of t
roaximum transit noise exposure
is used for land
use involving o
nly daytime activities.
9
(e) Transit Administrative Office: A minimum of 400 square feet of floor area
on the ground level adjacent to the Town Transportation Center for typical
administrative purposes including rough-in plumbing for public restroom
facilities associated with transportation must be dedicated upon
construction of the Transportation Center by the Town and/or with design
review approval for Lot 61.
(f) Water Rights: The developer will be responsible for the acquisition of
additional water rights and their subsequent dedication to the Town if
necessary to amend the Town's Augmentation Plan based upon the
specific proposal applied for.
(g) Timeshare Amenities Fee: Commencing as of the effective date of this
Agreement, and continuing in perpetuity, the timeshare ownership
association formed to manage the timeshare ownership project located on
Lot 61 is obligated to collect from each timeshare owner and remit to the
Town a Timeshare Amenities Fee. The Owner is exempt from the
obligation for the timeshare amenities fee until the first-time sale of a
timeshare interval. The provisions for the obligation for each timeshare
owner to pay shall be a covenant running with the land and reflected
accordingly on the Resubdivision Plat and association covenants. Prior to
the formation of any timeshare ownership association, the Owner shall be
obligated to collect and remit any and all Timeshare Amenities Fee.
The number of units shall be calculated at the time of time-share
subdivision. The fee shall be paid to the Town semi-annually and will be
based upon the following schedule:
Number of Units Constructed
Per Timeshare Week*
125 - 149 Timeshare Units
$ 58.35
150 - 174 Timeshare Units
$ 48.52
175 - over Timeshare Units
$ 41.51
* Timeshare Week is defined as seven (7) consecutive days constituting a
maximum of fifty-two (52) intervals per calendar year.
The amount of the semi-annual payments will be calculated according to
the following formula:
Number o f existing or newly deeded timeshare interests p er s emiannual
period (January- June, calculated as of June 1, and July-December
calculated as of December 1), multiplied by the appropriate fee based
upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as
defined below), divided by 2.
10
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The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2005, and on the first day of each year thereafter, the
amount of the fee shall be increased by the prior years average consumer
price index for All Urban Consumers for the Denver-Boulder-Greeley
metropolitan area as published semiannually and appearing in the January
and July issues of the CPI Detailed Report published by the Bureau of
Labor Statistics (the "CPI-U").
It shall be the duty of the timeshare association to keep and preserve such
records as are necessary to determine the amount of fees due hereunder.
Such records shall be preserved for a period of three years and shall be
open for inspection by representatives of the Town during regular business
hours. Prior to the formation of the timeshare association, the Owner shall
have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written determination of the
amount due and deliver or mail the same to the office of the condominium
timeshare association. The amount properly determined to be owing shall
be from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the timeshare
association such written determination will be delivered to the Owner.
3.6 Timing on Development. In the event the Owner obtains a building permit and
complies with all other relevant rules and regulations governing development on the
Property consistent with the Lot 61 PUD Development Plan, then the Owner must
provide written notice 180-days prior to commencement of construction to the Town
of the development schedule.
There is no phasing proposed or contemplated for the development of this Property.
The Owner and the Town agree to cooperate in construction staging and
development to allow for orderly and safe construction of the Property.
3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property
and shall have no liability to the Town for its failure to develop the Property. The
Town shall have no obligation to permit the Owner to construct under the dedicated
road right-of-way or transportation center after 5 years from the Effective Date of
the Agreement, and shall have no liability to the Owner or any other party for its
failure to develop all or any part of the Property. In the event an amended
Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek
based upon as-built drawings is not recorded, then the Resubdivision will be vacated
subject to the terms and conditions of Section 2.1.
11
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3.7 Compliance with General Regulation. Except as otherwise provided in this
Agreement or the Development Standards, the establishment of vested property
rights under this Agreement shall not preclude the application, on a uniform and
non-discriminatory basis, of Town regulations of general applicability (including,
but not limited to design review, building, fire, plumbing, electrical and mechanical
codes, the Municipal Code, and other Town rules and regulations) or the application
of s tate o r federal regulations, a s all o f s uch regulations e xist o n the d ate o f this
Agreement or may be enacted or amended after the date of this Agreement, provided
that such newly enacted or amended Town regulation shall not directly or indirectly
have the effect of materially altering, impairing, preventing, diminishing, delaying
or otherwise adversely affecting any of Owner's rights set forth in this Agreement or
the Development Standards. Owner does not waive its rights to oppose the
enactment or amendment of any such regulations inconsistent with other properties
in Town.
. ARTICLE IV
DEFAULTS, REMEDIES, AND TERMINATION
4.0 Default by Town. A "breach" or "default" by the Town under this Agreement shall
be defined as: (a) any zoning, land use or other action or inaction, direct, indirect or
pursuant to an initiated measure, taken without Owner's consent, that materially
alters, impairs, prevents, diminishes, delays or otherwise materially and adversely
affects any development, use or other rights of Owner under this Agreement or the
Development Standards. or.PUDs; or (b) the Town's failure to fulfill or perform any
material obligation of the Town contained in this Agreement.
4.1 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's
failure to fulfill or perform any material obligation of Owner contained in this
Agreement.
4.2 Notices of Default. In the event of a default by either party under this Agreement,
the non-defaulting party shall deliver written notice to the defaulting party of such
default, at the address specified in Section 5.7, and the defaulting party shall have
thirty (30) days from and after receipt of such notice to cure such default. If such
default is not of a type which can be cured within such thirty (30) day period and
the defaulting party gives written notice to the non-defaulting party within such
thirty (30) day period that it is actively and diligently pursuing such cure, the
defaulting party shall have a reasonable period of time given the nature of the
default following the end of such thirty (30) day period to cure such default,
provided that such defaulting party is at all times within. such additional time period
actively and diligently pursuing such cure.
12
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4.3 Remedies.
(a) If any default under this Agreement is not cured as described above, the
non-defaulting party shall have the right to enforce the defaulting party's
obligation hereunder by an action for any equitable remedy, including
injunction and/or specific performance, and/or an action to recover
damages. Each remedy provided for in this Agreement is cumulative and
is in addition to every other remedy provided for in this Agreement or
otherwise existing at law, in equity or by stature.
(b) In the event of default by the Owner, notwithstanding other available
remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny
land use approvals, including but not limited to design review and building
permits for the Property.
(c) The Town acknowledges that since this Agreement and the Development
Standards constitute a development agreement which confers rights
beyond those provided by the three (3) year statutory vesting approach
described in the Vested Property Rights Statute, in the event of a breach or
default by the Town, in addition to any of the foregoing remedies, Owner
shall be entitled to:
(i) recover. from the Town any damages that should have been
specifically available to Owner as contemplated in
Colorado Revised Statutes Section 24-68-105(1)(c) as in
effect on the Effective Date, plus any other and additional
damages provable at law.
ARTICLE V
MISCELLANEOUS
5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with
the laws of the State of Colorado and the relevant portions of the Avon Municipal
Code..
5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this Agreement shall be
constructed as making Town and Owner joint venturers or partners.
5.2 Expenses. Except as otherwise provided in a separate written agreement, Owner
and the Town shall each bear their respective costs and expenses associated with
implementing and enforcing the terms of this Agreement.
13
Z~
5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a
waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
5.4 Town Findings. The Town hereby finds and determines that execution of this
Agreement is in the best interests of the public health, safety, and general welfare,
and the provisions of this Agreement, the PUD, Development Standards, and
vesting agreements contained herein are consistent with the Avon Comprehensive
Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations
and policies of the Town.
5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Agreement shall continue in full force and effect so
long as enforcement of the remaining provisions would not be inequitable to the
party against whom they are being enforced under the facts and circumstances then
pertaining.
5.6 Further Assurances. Each party shall execute and deliver to the other all such other
further instructions and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other party the full and complete
enjoyment of its rights and privileges under this Agreement.
5.7 Notices. Any notice or communication required under this Agreement between the
Town and Owner must be in writing, and may be given either personally or by
registered or certified mail, return receipt requested. If given by registered or
certified mail, the same shall be deemed to have been given and received on the
first to occur of (i) actual receipt by any of the addresses designated below as the
party to whom notices are to be sent, or (ii) five days a registered or certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in the
United States mail, if personally delivered, a notice shall be deemed to have been
given when delivered to the party to whom it is addressed. Any party hereto may at
any time, by giving written notice to the other party hereto as provided in this
Section designate additional persons to whom notices or communications shall be
given, and designate any other address in substitution of the address to which such
notice or communication shall be given. Such notices or communications shall be
given to that parties at their addresses set forth below:
If to Town: Town of Avon Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
If to Owner: IDG 3 LLC
c/o C. Philip Smiley
P.O. Box 5000
Avon, CO 81620
14
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5.8 Assignments. This Agreement shall be binding upon and except as otherwise
provided in this Agreement, shall inure to the benefit of the successors in interest or
the legal representatives of the parties hereto. Except as specifically set forth herein,
Owner shall have the right to assign, delegate or transfer all or any portion of its
interests, r ights o r o bligations u nder t his A greement t o t hird p arties a cquiring a n
interest or estate in the Property, including, but not limited to; purchasers or long
term ground lessees of individual lots, parcels, or of any improvements now or
hereafter located within the Property. Provided that the Town's approval of the
assignee or transferee is first obtained, an assumption or transfers providing for
express assumption of any of Owner's obligations under this Agreement by its
assignee or transferee shall be relieved of any further obligations under this
Agreement with respect to the matter so assumed. The Town's obligations
hereunder may not be assigned or delegated without Owner's written consent, and
any attempted assignment or delegation by the Town not in compliance herewith
shall be null and void. The Town's approval of any such assignee or transferee shall
not be unreasonably withheld or delayed.
5.10 Counterparts. This Agreement shall be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5.11 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement, nor consent to any departure here from, shall in any event be elective
unless the same shall be in writing and signed by the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the
date first written above.
TOWN:
TOWN OF AVON, a municipal corporation
of the State of Colorado
BY:
Mayor
ATTEST
15
2)\
Town Clerk
STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this
day of , 2004, by
as Mayor of Town of Avon, a
municipal corporation of the State of Colorado.
My Commission Expires:
STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this
Notary Public
day of , 2004, by
as Town Clerk of Avon, a municipal
corporation of the State of Colorado.
My Commission Expires:
ATTEST
Notary Public
OWNER:
By:
16
3a
STATE OF COLORADO )
)ss.
COUNTY OF )
Subscribed before me this
day of
My Commission Expires:
STATE OF COLORADO
COUNTY OF EALGE
TOWN OF AVON
SS
as
2004, by
Notary Public
17
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NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLORADO AT
ON
THE DAY OF , AT THE MUNICIPAL BUILDING
FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO.
F:\Council\Agreements\L61 B2 BMBC DevAgmmtv.2.doc
18
34
•
Exhibit "A" To Lot 61 PUD Development Agreement
Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final
Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in
Book 274 at. Page 701 as Reception No. 171107, County of Eagle, State of
Colorado.
0
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Jan-13-04 11:57am From-VICTOR DARK DONALDSON 9709495205 T-589 P.01/03 F-331
N 0048 E SEAVER CREEK E
SUITE
BOX
AV~O V CO E
870. 949 •
vmda@ vmda
FAX • 949.5
LETTER OF TRANSMITTAL
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WE ARE SENDING YOU VIA _8FAX
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❑ SHOP DRAWINGS
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❑ ATTACHED C3 EMAIL
THE FOLLOWING ITEMS.-
0 PRINTS ❑ PRODUCT INFORMATION ❑ CHANGE ORDER
❑ COPY OF LETTER ❑ADDENDA ❑ OTIMR
DESCRIPTION
~V! S~~ SEGZlOa7S
THESE ARE TRANSMITTED AS CHECKED BELOW.-
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❑ FOR YOUR APPROVAL ❑ REVIEWED BY VMDA VAS REQUESTED
❑ FOR YOUR USE ❑ FURNISH AS CORRECTED ❑ REJECTED
❑ REVISE AND SUBMIT ❑ _ COPIES ❑ FOR REVIEW AND COMMENT
❑ PRINTS RETURNED AFTER LOAN TO US
REMARKS
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Jan-13-04 11:57am From-VICTOR MARK DONALDSON
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9709495205 T-568 P.02/03 F-331
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Jan-13-04 11:57am From-VICTOR MARK DONALDSON
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Johnson & Repucci LLP
. Attorneys and Counselors at Law
2521 Broadway
RECEIVED Suite A
Boulder, Colorado 80304
JAN 1 2 2004 (303) 442-1900
Fax: (303) 442-0191
FACSIMILE COVER SHEET Community Development BOULDFR
FACSINUI/E NUMBER: (303) 442-0191 WINTER PARK
DATE: January 12, 2004 FROM: Michael J. Repucci
TIME:
CLIENT NO.:
To: Name
Company/Firm
Facsimile No.
Town Council
Town of Avon
(970) 949-9139
Geor a Pakozdi
(905 522-0100
Pete Lan dorf
303) 796-9176
Ski l~ornseif
(970 949-7757
Keith Elliott
314) 962-9255
MESSAGE: Please see the attached letter dated January 12, 2004 regarding Lot 61.
PUD Development Plan Amendment.
NUMBER OF PAGES FOLLOWING THIS COVER SHEET: 10
IF YOU NEED A CONFIRMATION OR ANY OF THE PAGES RE-SENT,
PLEASE CALL OUR OFFICE AT THE FOLLOWING NUMBER: (303) 442-1900
IF YOU DO NOT CALL WITHIN 15 MINUTES, WE WILL ASSUME YOU HAVE RECEIVED THE
PAGES SATISFACTORILY. SENT BY: Tami
OUR FACSIMILE NUMBER: (303) 442-0191
CONFIDENTIALI'T'Y NOTE:. The information contained in this facsimile transmittal sheet and
document(s) that follow are for the exclusive use of Elie addressee and may contain confidential, privileged
and nondisclosable information. If the recipient of this facsimile is not the addressee, or a person
responsible for delivering this facsimile to the addressee, such recipient is strictly prohibited from reading,
photocopying, distributing or otherwise using this facsimile transmission, or its contents, in any way. If the
recipient has received this facsimile transmission in error,.please call us immediately and return the
facsimile transmission to us via the United States Postal Service. Thank you.
a`
JtIIY-1 C-0004 nun UG - GU rl1 Jars LLr rMA IYU. 3UJ44i 1 X71 F. UJ/ 1 1
Town of Avon Town Council
January 12, 2004
Page: 2
Design Criteria of Section 17.20.110(H) of the Zoning Code and the referenced Staf..f.
Reports, as follows:
1. Conformity with the Avon Comprehensive Plan foals and objectives.
The Association has reviewed the careful analysis of the goals and policies of
the Avon Comprehensive Plan employed by the Planning and Zoning
Commission, and the Association agrees that certain aspects of the
development proposed, by the applicant's Lot 61. PUD Amendment fulfill the
goals and policies described in the January 6, 2004 Staff Report. However,
various goals and policies of equal importance to the Town are not satisfied
by the current proposal.
Goal Al Ensure a balanced system of land uses that maintains and
enhances Avon's identity as a residential community, and as
a regional commercial, tourism and entertainment center.
Policy A. 1.1 Development and redevelopment will be of a scale and intensity
appropriate for the neighborhood in which it is located.
The scale and intensity of the new development contemplated by
the Lot 61 PUD Amendment is inappropriate for the Avon Town
Center. The scale and intensity of the proposed development
ci recommended for approval by the Planning and Zoning
Commission far exceed those that currently characterize the
Avon Town Center neighborhood or that are contemplated by the
Iti~ Towns Comprehensive Plan, Implementation Plan and Design
i Review Guidelines.
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Policy AL3 Flexible zoning such as Planned Unit Developments (P. UD.)
should he encouraged where it results in more effective use of the
4l} land. However, such flexible zoning will only be allowed where
j5 it provides a benefit to the community and is compatible with
surrounding development. Variations from standard zoning must
be clearly demonstrated, and will he permitted only as needed to
achieve effective development.
The Association concurs with the Planning and Zoning
Commission's assessment that the development of Lot 61 can
and should benefit from flexible zoning entitlements. However,
as more particularly discussed below, the Lot 61 PUD
Amendment is not compatible with the surrounding development
14667/aeon
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Town of Avon Town Council
January 12, 2004
Page 4
Square as a single unified parcel, including maximizing the view corridor
through the development parcel. As shown on the conceptual drawing of Lot
61 and the Avon Town Square, the Implementation Plan conte plates
multiple buildings on Lot 61, allowing for a view corridor to th mountains
and a pedestrian connection from the center of Lot 61 to the Av n Town
Square Parcel. In contrast, the proposed Lot 61 PUD Amendmint
contemplates development of only one building on the site with little or no
setbacks from adjacent property and rights-of-way. Furthermo , the
proposed Lot 61 PUD Amendment contemplates that multiple building
projections, such as columns, roofs, unenclosed floors and decks, be permitted
to encroach. into setbacks and/or rights-of-way. Contrary to the design intent
expressed in the Implementation Plan, the view corridor through Lot 61 will
be entirely eliminated, and pedestrian traffic impeded, if the proposed Lot 61
PUD Amendment is approved in its current form.
As part of the Design Philosophy of the Town, the Design Review Guidelines
provide:
The Town should continue to be perceived as a contemporary mountain
town, complementary to the natural landscape and unbuilt environs. The
Town should appear as a cohesive unit comprised of sitnple building
forms, subdued colors, and predominantly pitched roofs , . Form, scale,
proportion, and materials should support the natural environs and reinforce
those characteristics that uniquely identify a neighborhood's built environ
as it relates to the Town.
To that end, Section 5A of the Design Review Guidelines recommends: "The
site and its relationship to other structures, scenic values, views, and climatic
orientation should be the dominant factors in the design and sighting of
buildings." To satisfy this objective, Section 5A requires that "(s)ite layout
and proposed improvements shall consider the use of passive and active solar
use, and the retention of neighboring properties `view corridors'."
The proposed Lot 61 PUD Amendment fails to comply with any of the
referenced recommendations and requirements of the Design Review
Guidelines. Specifically, the height and bulk of the proposed building are not
characteristic of a contemporary mountain town and do not complement the
natural landscape and environment. In addition, the proposed building will
stand out conspicuously from existing structures rather than become part of a
cohesive unit of development in the Avon Town Center. Finally, the proposed
Lot 61 development plan seemingly ignores the unambiguous direction
expressed in the Design Review Guidelines that the use of passive and active
14667/aeon
~17
Town of Avon Town Council
January 12, 2004
Page 6
14667/avon
5. Identification and mitigation or avoidance of natural and/or geologic hazards
that affect the property upon which the PUD is proposed.
The Association concurs with the Planning and Zoning Commission's
recommendation that a Subdivision Improvements Agreement be required to
ensure no unforeseen natural or geologic hazards impact the Lot 61
development or adjacent properties.
6. Site plan building design and location and open space provisions designed to
produce a functional development responsive and sensitive to natural features,
vegetation and overall aesthetic quality of the community.
The Association understands that the building design will, be further clarified
during the design review process. Nevertheless, as described above, the
features of the development contemplated by the proposed Lot 61 PUD
Amendment are not responsive and sensitive to the natural features and
overall aesthetic quality of the community.
Section 5B of the Design Review Guidelines identifies solar access as primary
importance within the Town core. Specifically, the Design Review
Guidelines recognize the importance of solar access studies showing the effect
on adjacent buildings and outdoor spaces. The Association is concerned that
the height of the proposed building will shade the Avon Mall and future Main
Street, producing a cold, dark, windy and inhospitable pedestrian corridor.
Therefore, the Association urges the Town Council to require the developer to
provide solar studies prior to approving any amendment of the existing Lot 61
PUD Amendment to ensure that solar exposure is maximized in the Town
Center Area_
7. A circulation system designed for both vehicles and pedestrians addressing
on- and off-site traffic circulation that is compatible with the Town
transportation plan.
The Association has serious concerns about the revised traffic circulation
design contemplated by the Implementation Plan. The Town's outdated diesel
buses traveling on the new Main Street will pass within ten (10) yards of the
Condominiums, emitting nauseating, noxious exhaust fumes that will
permeate the Condominiums, creating an unsafe and unhealthy living
environment. Moreover, the proximity of the bus traffic to the Condominiums
will greatly increase traffic noise audible within the Condominiums. Since the
Condominiums do not have central air conditioning, owners are required to
open their windows during the warm weather months, thereby further
OA
7
Town of Avon Town Council
January 12, 2004
Page 8
11.
The Association is familiar with the long-term plans for the Benchmark Road
extension and the construction of Main Street. However, the Association is
unaware of the schedule of completion of these projects vis-a-vis occupation
of the proposed development of Lot 61. The existing streets and roads are
clearly inadequate for the substantial increase in traffic that will be generated
by the Lot 61. PUD Amendment, and the Association is concerned that even
the proposed road expansion may be insufficient to handle increased traffic
flows.
Section 17.20.110(1) of the Zoning Code directs the Town Council to determine
the development standards of a PUD including lot area, site dimensions, setbacks, height,
density controls, site coverages, landscaping and parking based upon compliance with the
above design criteria. The Association has reviewed the development standards
recommended by the Planning and Zoning Commission listed in the January 6, 2004
Staff Report, and has the following comments thereto:
a. Uses Bv-Right: The Association notes that the uses by-right recommended by
Town Staff and the Planning and Zoning Commission are even more intense
than those requested by the Lot 61 developer. The Association believes that
many of these uses are much too intense for the site and incompatible with the
character of the Avon Town Center_
h. Special Review Uses: The Association -has no further comments on these
uses.
Development Standards. As previously explained, the proposed height and
density contemplated by the proposed Lot 61 PUD Amendment greatly
exceeds the height and density that characterizes the Avon Town Center. This
increased height and density will result in numerous negative effects as
described above.
d. Parkin . The January 6, 2004 Staff Report recommends that the Avon
Municipal Code parking standards be implemented. The off-street parking
14667/avon
"\f
Lot 61 PUD Amendment. Furthermore, the Association is concerned that the
reported $3 million plus cost to construct the new Main Street in order to
implement the Lot 61 PUD Amendment, is not a fiscally responsible use of
limited Town funds.
1
Town of Avon Town Council
January 12, 2004
Page 10
Association requests that the Lot 61 PUD Amendment be tabled pending completion of
further evaluation and studies including, without limitation, traffic impact studies, solar
access and view studies, and evaluations of the impacts of the reconm-fended densities on
the character of the Avon Town Center area,
On behalf of the Association, we thank you for the opportunity to comment and
be heard on this matter.
Very truly yours,
Michael r. ucci
cc: George Pakozdi (by facsimile)
Pete Langdorf (by facsimile)
Skip Dornseif (by facsimile)
Keith Elliott (by facsimile)
Jon Grantham (by email)
Michael Smith (by email)
Tom Crosbie (by email)
Bob Roman (by email)
Stuart Borne (by email)
Steve MacDonald (by email)
14667/avon
t-lxf 1l4 ll
IDG 3 ILILC
O. Box 1068
ail, Colorado
81658
970.949.4958
F. 970
949.4838
mha@vail.net
January 21, 2004
The Avon Town Council
P.O. Box 975
Avon, CO 81620
Re.: Lot 61 proposed PUD Ordinance 01-04
Block 2
Benchmark @ Beaver Creek
Amendment 4
Avon, Colorado
Dear Mayor Council Members,
In preparing for our return to Council on the 27`s of January, we wanted to address the
• issues you listed, for which we are responsible:
Building Setbacks
in reviewing the concerns for setback, we have decided to revise our setbacks on
both the southeast and southwest property lines. We are no longer proposing
building limits over the Benchmark Road right of way but instead will be
bounded by either property line. We are asking to be able to build to our
permitted height along this elevation so that we may be able to relegate the
majority of the highest portions of our structure to the south of the property thus
permitting more substantial reductions in height along the north property line
where adverse shading to the Mall and adjacent properties would be
objectionable. We would also suggest that any concerns for the severity of the
perceived height and treatment of facades, along this elevation, be addressed in
the Design Review stage. As a further consideration to our neighbors we have
increased the horizontal step, along our north property line to 70' (versus 25') as
illustrated in our revised PUD drawings.
Height
As you know, we have worked with you, staff and the Planning Commission to
adopt the principles of the Town Center Plan as they affect Lot 61. In this process
we have relinquished a 50' right of way plus a 10' setback along our west
property line. In return we have requested the ability to build above this right of
• way and in doing so must maintain an 18.5' clearance for vehicles. With the need
for approximately 3.5' of structure, mechanical space and finishes this places our
first finished floor elevation at approximately 22' above the proposed finished
grade of the road below. With the projected grade at the north edge of our 80'
wide building limit of 7445.5 This would place our first finished floor level, above grade at
7467.5. or 7.5' higher than our current first finished floor elevation of 7460.0' Please see the
attached exhibit A to this letter.
We are simply requesting that we maintain our net, usable residential height of
81.5'. We were asked to state our height, according to the definition of height
prescribed by the Town Code, namely as a fixed distance above the grade, below.
Given that we foresee the highest portion of the structure above the sites lowest
grade of 7443 we had to state the height as 108'
We would be willing to revise the height to 105' with an absolute cap to be set at
a datum of 7548.0' that is 98' above the finished pavement elevation of 7450.0' at
the Mall. As you will see we are not gaining any effective height and any further
reduction in height would cause us to loose a floor which could likely amount to a
loss of 18,200 S.F. (325' x 70' x 80% (efficiency factor of gross to net area)) of
net residential area which at $275/S. F. could amount to over $5,000,000 in sales
or $100,000 in transfer taxes.
Massing
We are preparing some computer base massing analyses to address two concerns..
It will illustrate the massing, currently approved and show the minor increase in
height that we are seeking. It will also serve to illustrate the maximum proposed
density relative to the constraints of the building envelope.
Transit Center
We would like the Town to understand that we and our prospective developers
have acknowledged the potential benefits of a transit center designed within the
established criteria.
Parking
As stated, our PUD is bound to provide parking according to the current Town
code. The minimum allowable density would render a requirement the following
parking:
125 Timeshare @ 1.5/Unit x 85% 160 Spaces
17,000 Retail @ 5.511,000 S.F. x 85% 80 Spaces
240 Spaces
Our current development plan illustrated that 158 spaces could be parked per full
level. With the required additional required guest parking we can attain our
requirements on 2 levels of parking. Thanks to the slope of our side the first level
would be at grade with Benchmark Road and thus our lower level of parking
would be only 10' below the elevation of The Mall, to the north.
C
C
h'i
• After nearly eight months of working cooperatively with staff, the Council and The
Planning Commission on this most recent proposal, we are intent in bringing this
process to a successful conclusion for all the proverbial "win-win". We trust that
you will agree that in all our work on this parcel over the last five years, our
partnership has always worked fairly and openly to achieve positive, working
entitlements that will play a major role for the future of Avon.
We look forward to moving this project to its next phase and set the nucleus for The
Town Center and Avon.
Sincerely,
•
•
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80' Air Rights over
Benchmark Court
Exhibit A
Site Section
T/Flr. = 7445.5'
194.45'
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Calculations: Slope of Road= 7.4' Rise/ 194.45 Run= 3.8% slope (.038)
Rise to N. Edge of Air Rights =.038 x 80' Run = 3.04' Rise
6R
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Mark W. Davis
1267 Pilgrim Ave
Birmingham, MI 48009
(248) 642-8878
January 29, 2004
Town of Avon
400 Benchmark Road
PO Box 975
Avon, Colorado 81620
To whom it may concern:
I have learned that you are planning on developing Lot 61 as well as developing
a bus turnaround very close to the building where my condominium is. At my
time of purchase years ago, I never anticipated writing such a letter that I would
have to be a part of a team trying to keep our building a top notch complex. I am
concerned that what you are attempting to do will drop my property value by
hampering the view and adding pollution to a beautiful setting. This area of Avon
is known for being out of the way and a great place to come and relax. Added
bus traffic is against what this part of Avon is all about.
Please do not go forward with this proposal.
Than u.
ark W. Davis
Avon Center, Unit 806 Owner
RECEIVED
B 00 2 2004.
Community Development
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