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TC Ord. No. 2005-12 Approving an amendment to the Chateau St.Claire planned unit development PUD for lots 1&2 Chateau St.Claire subdivision TOA Eagle County CoTOWN OF AVON, COLORADO ORDINANCE NO. 05-12 SERIES OF 2005 AN ORDINANCE APPROVING AN AMENDMENT TO THE CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT (PUD) FOR LOTS 1 & 2, CHATEAU ST. CLAIRE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, CSC Land, LLC, has applied for an amendment to the existing Chateau St. Claire PUD and Development Agreement, as more specifically described in the application dated October 11, 2005 and the terms outlined in the approved Development Agreement attached to this ordinance and referenced herein as "Exhibit A"; and WHEREAS, the application proposes to amend Ordinance 04-20 and the associated Development Agreement in order to extend the current project completion date; 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 November 1, 2005, 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 Amendment; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendation for conditional approval on the PUD application to the Town Council of the Town of Avon through Resolution 05-13; and WHEREAS, after notices provided by law, this Council held a public hearing on the ~3= day of C,~1Qf, , 2005, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Amendment; and 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 PUD and Development Agreement are consistent with 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 Amendment to the Chateau St. Claire PUD and Ordinance 04-20, as more specifically described in the application dated October 11, 2005 is hereby approved, subject to the following conditions: 1. The ordinance will be effective January 10, 2006, if and only if the Town has received proof of funding of the proposed loan by U.S. Bank, the proof to be in the form of a copy of a recorded mortgage or deed of trust securing a loan in at least the amount of $36,179,397. 2. Funding must include completion bond running in favor of the lender, U.S. Bank. 3. The amended and restated development agreement be satisfactory to the Town Attorney and attached and incorporated into the ordinance by reference. 4. The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD allowed uses, a new Impact Fee will be assessed. 5. In no event will the building permit or construction schedule be extended past December 14, 2008. INTRODU7D, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this day of 6vamREf, . , 2005, and a public hearing shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the ~3; day of, 2005, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Ordinance No. 05-12 L1&2 CSC PUD Page 2 of 2 Town of Avon, Colorado -41 C. Mayor ATTEST: a To OnCl rk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the 13~' day of 2005. Town of Avon, Colorado Tow cil Mayor ATTEST: P~5~~ To~n Cle k APPROVED AS TO FORM: Town Attorney Ordinance No. 05-12 L1&2 CSC PUD Page 3 of 3 AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE GATES ON BEAVER CREEK (formerly Chateau St. Claire) THIS DEVELOPMENT AGREEMENT (this "Agreement") was originally made and entered into as of the Effective Date (defined below) by and between CSC Land, LLC, a Colorado Limited Liability Company (as more specifically defined below, the "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and is hereby amended and restated in its entirety by the Owner and the Town as of 11 , to remain effective as of the Effective Date. 'zCO1p 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 described as Lots 1 and 2, FINAL PLAT OF CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat thereof filed June 18, 1987 in Book 729 at Page 742, Eagle County, Colorado the Property"). C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and Development Standards for the Property were approved, subject to the condition that deed-restricted affordable housing or employee units be included in the development in an amount equal to ten percent of the hotel, residential or timeshare units. D. Building Permit No. C-BP-2002-17, reissued on March 5, 2004 ("the Building Permit"), contained the conditions that 1) a Deed Restriction and Employee Housing Agreement be submitted for approval prior to issuance of a Certificate of Occupancy and 2) a letter of credit in the amount of $60,000 be retained by the Town until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. F. Owner deposited cash in the amount of $60,000, in lieu of a letter of credit, which, in addition to a prior deposit of $40,000, such total $100,000 deposit has been accepted and will be retained by the Town to be used as a credit toward the Employee Housing Impact Fee hereinafter provided for. G. By Ordinance No. 04-20, Series of 2004, the Town deleted the affordable housing condition from Ordinance No. 98-6, the PUD Development Plan and Development Standards and from the Building Permit, in exchange for Owner's agreement to certain exactions and other conditions, hereinafter set forth. DMWEST #6314188 v4 H. The Owner has deposited cash [or provided an acceptable letter of credit] in the amount of $250,000 for site restoration, which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. 1. The Town is willing to extend the term of this Agreement, the period of Vesting Property Rights and the outside date for completion of the Project. The Town is further willing to accept an amended schedule of construction and active building permits. G. The legislature of the State of Colorado adopted Sections 24-68-101, et se q. 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 Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. H. 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. 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_1 Association. Timeshare ownership association formed to manage the timeshare ownership project located on the Property. 1.2 Effective Date. The effective date of the Town Council ordinance amending Ordinance No. 98-06, December 14, 2004. 1.3 Municipal Code. The Town's Municipal Code, as in effect from time to time. DMWEST #6314188 v4 2 1_4 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.5 Resubdivision Plat. A plat approved by the Town authorizing a resubdivision, condominium resubdivision, planned unit development resubdivision, or time- sharing subdivision consistent with Title 16 of the Municipal Code. 1.6 Certificate of Occupancy. Certification pursuant to the Town's building codes that the premises have been completed and comply with the provisions thereof. "Certificate of Occupancy" includes any temporary certificate of occupancy. 1.7 Time-share owner. A person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes. 1.8 Time-share unit. A unit, the title to which is divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes. 1.9 Time-share Amenities Fee. A consensual fee intended to mitigate the impact of a time-share subdivision, including the cost of transportation and of recreational facilities. 1.10 Employee Housing Impact Fee. A consensual fee intended to mitigate the impact of a condominium subdivision and associated facilities on employee housing needs. ARTICLE II WAIVER OF CONDITIONS The affordable housing condition contained in Ordinance No. 98-6, Series of 1998, and the Building Permit is deleted by the Town as of the Effective Date. The condition of maintaining an active building permit contained in Ordinance No. 04-20 in accordance with the original Development Agreement (and construction schedule incorporated therein) shall be waived, amended and restated by the Town, by adoption of an amending ordinance authorizing the execution of this amended and restated Agreement and Owner's compliance with the requirement of Section 3.4 below. ARTICLE III EXACTIONS The following exactions are intended to provide adequate facilities for the public benefit of the Town: DMWEST #6314188 v4 3 3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and continuing in perpetuity, the Association is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee in the amount of $140.10 per year per fractional interest (defined as a 1/10 'h (five- week) undivided interest or timespan estate in a time-share unit), or the equivalent of $28.02 per year per weekly fractional interest if conveyed in some fractional interest other than a 1/10th interest. The Owner is exempt from the obligation for the Timeshare Amenities Fee until the earlier to occur of the first-time sale of a fractional interest or December 14, 2009 (or one year after the completion deadline, should it be changed). 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 assignment of this Agreement to the Association pursuant to Section 6.9 hereof, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fees. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare fractional interests per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the $140.10 fee (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, 2006, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage change from the prior year 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 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 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 demand of the amount due and deliver or mail the same to the office of the Association. The amount properly DMWEST #6314188 v4 4 determined to be owing shall bear interest 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 Association such written demand will be delivered to the Owner. 3.2 Assignment of Association Assessments and Lien. Owner, on behalf of the Association assigns and grants a continuing security interest in the Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Timeshare Amenities Fee. Upon default of the Association in collection and/or remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 3.3 Employee Housing Impact Fee. Owner has paid to the Town the sum of $40,000 which, together with the $60,000 already deposited with the Town, is accepted by the Town in full satisfaction of the Employee Housing Impact Fee and any other exaction intended to mitigate the impact of the project for which the building permit has been issued, including the timeshare ownership on employee housing needs, excluding the Timeshare Amenities Fee The total amount so deposited shall be unrestricted funds of the Town, and the Town shall have no obligation to account for or to refund them in the event of the termination or amendment of this Agreement; nor shall they apply to any future project authorized on the Property. 3.4 Restoration Bond. Owner shall deposit with the Town cash [or provide the Town with an acceptable letter of credit] no later than three (3) banking days after adoption of an amending ordinance authorizing the execution of this amended and restated Agreement (subject to the condition of receipt of such cash or letter of credit), in the amount of $250,000 for site restoration ("Restoration Bond"), which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. ARTICLE IV TERM OF AGREEMENT 4.1 Term of Agreement. 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, unless sooner terminated pursuant to Article V hereof, until December 14, 2008 ("the Completion Deadline"). If a Certificate of Occupancy has not been issued by that date or if this Agreement is terminated pursuant to Article V hereof, this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be DMWEST #6314188 v4 5 permitted under existing approvals. The Employee Housing Impact Fee shall be nonrefundable and the Owner (including any successor or assign) shall have no right to seek reimbursement or repayment therefor. If a Certificate of Occupancy has been issued by that date or if this Agreement is terminated pursuant to Article V hereof, the Restoration Bond shall be released to the Owner and this Agreement shall continue in effect until amended or terminated by mutual agreement of the parties. 4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall maintain an active building permit pursuant to the current provisions of Title 15, Municipal Code, as shown by meeting the scheduled deadlines attached hereto as Exhibit A, subject to any delays approved pursuant to Section 4.3 provided that in no event shall any approved delays permit the schedule to be extended past the Completion Deadline. 4.3 Delays. Should the Owner be delayed, hindered or prevented from proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for any reason Owner shall, within thirty (30) days after the commencement of the delay, provide the Town Department of Community Development (with a copy to the Town Attorney) with written notice of the delay, the reason therefore and an estimate of the expected duration of such delay. The Town shall approve or disapprove the delay and, if it is approved, the period thereof, in its sole and absolute discretion. If the delay is approved by the Town, Owner shall thereafter use all commercially reasonable efforts to minimize its impact and duration. Delays approved by the Town may permit the milestone dates on Exhibit A to be extended, but in no event shall any delays approved by the Town permit the schedule to be extended past the Completion Deadline. Nor many any delays approved by the Town be utilized to claim an extension of the term of this Agreement or the term of the vested property rights established under this Agreement. ARTICLE V DEFAULTS AND REMEDIES 5.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 5.2 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. 5.3 Notices of Default. In the event of a default by either party under this Agreement, other than a failure by Owner to meet a scheduled deadline, together with any extension for any approved delay the non-defaulting party shall deliver written notice to the defaulting party of such default, at the DMWEST #6314188 v4 6 address specified in Section 6.8, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is a monetary default by Owner, Owner shall have ten (10) days 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. 5.4 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 enforcement of its rights granted by Section 3.2 hereof, including foreclosure of its lien, and/or an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover all amounts owing hereunder, including any damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. (b) If any of the Scheduled Deadlines on Exhibit A, together with any approved delays, is not met or a Certificate of Occupancy is not issued on or before the Completion Deadline, or if Owner defaults under this Agreement and the default is not cured, this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals, all of which approvals shall be deemed void. 5.5 Default Under Article IV. Any default under Article IV shall not be subject to the cure provisions hereinabove contained and shall primarily be remedied as set forth in said Article. ARTICLE VI MISCELLANEOUS 6.1 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Municipal Code. DMWEST #6314188 v4 7 6.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. 6.3 Expenses. Within ten (10) days of receiving an invoice from the Town, Owner shall reimburse to the Town the costs and expenses, including attorney's fees associated with the preparation of, implementation of and enforcement of the terms of this Agreement. If any invoice is not paid within such ten (10) day period, interest will accrue at one and one-half (1.5) percent per month. 6.4 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. 6.5 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare of the Town. 6.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 6.7 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. 6.8 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 DMWEST #6314188 v4 8 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 with copy to: Town Attorney Attn: John Dunn, Esq. John W. Dunn & Associates, LLC P.O. Box 7717 Avon, Colorado 81620 If to Owner: CSC Land, LLC c/o Tim Barton One Hickory Centre 1800 Valley View Lane Dallas, Texas 75234 6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that subsequently acquires a fee simple interest of record in any portion of the Property as a transferee, grantee, assignee or successor of CSC Land, LLC. Notwithstanding the foregoing, the term "Owner" will not include (1) purchasers of condominium units, timeshare units, fractional interests or any other interest therein, except and to the extent that CSC Land, LLC or any of its assigns separately acquires any such unit or units or any interest therein (including any bulk purchase thereof) or (2) holders of a security interest in the Property or a portion thereof, except and to the extent that a holder of a security interest acquires any such unit or units or any interest therein through foreclosure. Following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, the Owner shall assign all remaining obligations hereunder to the Association (which shall then be deemed to be the "Owner"). 6.10 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, time-share owners, 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 transfer providing for express DMWEST #6314188 v4 9 assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall relieve Owner of any further obligations under this Agreement with respect to the matter so assumed. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. The Town approves of the assignment to and assumption by the Association of all of Owner's obligations under this Agreement following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, and the Owner shall be relieved of all liabilities and obligations hereunder upon recordation of such assignment and assumption. 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. 6.11 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. 6.12 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 effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 6.13 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or give to, any legal person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the parties will be for the sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere with the agreements of the parties with third parties. 6.14 Prior Recorded Document. Upon recording in the real property records of Eagle County, Colorado, this Agreement is intended to supersede, restate and replace in its entirety the document recorded at Reception No. 901428 on December 22, 2004. DMWEST #6314188 v4 10 IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above to take effect as of the Effective Date. TOWN OF AVON, a municipal corporation of the State of Colorado of ~ ATTEST r~~ P-)G. Tov(n Clerk APPROVED AS TO FORM: To Attorney STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) Mayor pr'"CO.coaro-~.,i7 ctiy\. 47 z~ Subscribed before me this 11 day of Ju'L , ZDOS, by Ron Wolfe as Mayor and Patty McKenny as Town Clerk of Town of n, a municipal corporation of the State of Colorado. My Commission Expires: blic . NA OFB O~OPP My Commission Expires 04108/2006 L" S l olp DMWEST #6314188 v4 I I CSC LAND, LLC, a Colorado limited liability company By:JMJCSC LP, a Texas limited partnership, its Manager By:JMJ129 West LLC, a Texas limited liability company, its Ge ner By: lmothy . Barton, ger STATE OF TEXAS ) OA`L Ps )ss. COUNTY OF H ) Subscribed before me this day of 2005, by Timothy L. Barton, as Manager of JMJ129 West LLC, a Texas limited liability company, as General Partner of JMJCSC LP, a Texas limited partnership, as Manager of CSC Land, LLC, a Colorado limited liability company. My Commission Expires: 24Y)a Notary Public MELISSA LYNN MENA MYCOMMISSIONEXPIRES September 7, 2008 DMWEST #6314188 v4 12 Exhibit A to Amended and Restated Development Agreement Construction Schedule Milestone Event Scheduled Deadline CDOT Approved Access Permit April 27, 2006 (including any required easements) Verification of Structural Steel Order April 27, 2006 (deposit and shop drawings) Approval of Final Design May 31, 2006 (including on-site mock up and remaining design issues listed in Avon letters dated Dec. 8, 2004 and June 22, 2005) Complete Steel Erection November 30, 2006 Completion of Roofing March 10, 2007 Complete Exterior Stucco Installation July 6, 2007 Complete Hardware Installation April 11, 2008 Call for Town Final Inspection June 27, 2008 Final certificate of occupancy issued July 31, 2008 DMWEST #6314188 v4 13 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Tambi Katieb, Community Development Matt Pielsticker, Community Development Date: November 16, 2005 Re: First Reading of Ordinance 05-12, Lots 1 & 2, Chateau St. Claire Subdivision - PUD Amendment (PUBLIC HEARING) Summary: CSC Land, LLC is proposing an amendment to the Chateau St. Claire PUD. This application was directed by Council as a condition of the Memo of Understanding agreed to on September 26, 2005. The proposed amendment would extend the vesting period and final completion date of the project. In the current agreement, as approved as exhibit to Ordinance 04-20, a Certificate of Occupancy must be issued no later than the second anniversary date of approval or no later than December 14, 2006. Since the project will not be complete by December 14, 2006 an extension to the development agreement and associated construction completion deadline is required. At the September 13, 2005 Council meeting the applicant was directed to revise the development agreement to "reflect excusable delays and adjustments to the project construction schedule." A strikethrough Development Agreement, new construction schedule with milestones for completion and benchmark dates, and an explanation to the excusable delays during construction is attached to this memo. Discussion: There were at least five discussion items agreed to by way of the Memo of Understanding including: confirmation of complete financial backing, a new construction schedule with benchmark dates of progress "without the allowance of exceptions", confirmation of the payment of the $100K employee housing impact fee, acceptance of a $250K restoration bond to be retained until certificate of occupancy, clarification of the unit mix of the project, timeshare amenity fee clarification, and the extension of the vesting period and completion date of the project. At their November 1, 2005 meeting, The Planning and Zoning Commission recommended approval of the PUD amendment through Resolution 05-13 subject to the following modifications: (1) The proposed schedule address the submittal of the following milestones: a. CDOT approved access permit, including any required easements Deadline of March 30, 2006; b. Verification of structural steel order (deposit and shop drawings) Deadline of March 30, 2006; c. Submittal of final design application (revised on-site mock up and remaining design review approval conditions) Deadline of April 30, 2006; (2)The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD allowed uses, a new Impact Fee may be assessed; (3) The development agreement language is amended to the satisfaction of the Town Attorney; (4) A performance and payment bond for project completion must be in place and complete financial backing must be demonstrated to the Town no later than December 13, 2005 or this recommended action will expire. At the Planning and Zoning Commission meeting there was lengthy discussion on the lack of financial proof for the backing of the project to date. Also discussed was the timing for a design review submittal, as proposed by staff, and the subsequent approval of a new design review application. Public input was received and explanation was given for the consequences of not meeting the benchmark dates included within the construction schedule. Attached to this memo is Resolution 05-13 forwarded to you by the Planning and Zoning Commission for review, the staff report to Planning & Zoning Commission that reviews the application proposed, the Memo of Understanding, as well as the Council Meeting Minutes from the September meetings. Also attached to this memo is a strikethrough version of the Development Agreement which includes some of the Planning and Zoning Commission's recommendations as well as the current PUD approval (Ordinance 04-20) for reference. Available Actions: The following options are available for action on this application after holding the public hearing as required: 1/ Approve First Reading of Ordinance 05-12 2/ Deny First Reading of Ordinance 05-12 3/ Table on First Reading of Ordinance 05-12. Page 2 First Reading Ordinance 05-12 (PUBLIC HEARING) November 22, 2005 Town Council Meeting Chateau St. Claire PUD Amendment v Staff Recommendation: Staff is concerned with respect to the progress of the applicant in satisfying the conditions of the Memorandum of Understanding between CSC Land, LLC and the Town, including the requirement that CSC guarantee funding sufficient to cover all expenses necessary to complete the project. Also, there is a concern whether there is sufficient information available to permit Stan Bernstein to determine whether there is a need to recalculate the Timeshare Amenities Fee based upon unit mix and projected financial impacts of the project. However, staff has no choice at this time but to recommend to Council that Ordinance 05-12 be adopted on first reading. Because the MOU extends the reinstatement of the building permit to December 13, 2005, it is necessary that Council be able to consider the ordinance on second reading on that date so as to comply with the MOU. The alternative of deferring first reading and having to consider a further extension is not recommended by staff. It is emphasized that adoption of any ordinance on first reading is no indication whatsoever of the position of Council as to the merits of the ordinance. Town Manager Comments: Attachments: A. Ordinance 05-12 B. Planning and Zoning Commission Resolution 05-13 C. Staff Report to the Planning & Zoning Commission dated October 25, 2005 D. Memo of Understanding, dated September 26, 2005 E. Summary of Proposed Changes as part of October 11, 2005 application submittal F. Ordinance 04-20 G. Revised (strikethrough) Development Agreement H. September 13, 2005 & September 26, 2005 Council Meeting Minutes 1. December 8, 2004 & June 22, 2005 Design Review Letters Page 3 November 22, 2005 Town Council Meeting First Reading Ordinance 05-12 (PUBLIC HEARING) Chateau St. Claire PUD Amendment A Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Eric Heidemann, Senior Planner f1t Tambi Katieb, Community Development Direct ; Date: October 18, 2005 Re: First Reading of Ordinance 05-12, Lot C PUD Amendment (Public Hearina) Summary & Background: The applicant, Points of Colorado Inc., has requested an amendment to the Planned Unit Development ("PUD") for Sheraton Mountain Vista - Lot C. The Sheraton Mountain Vista is a partially built project that borders "Main-Street" to the south, and West Beaver Creek Boulevard to the north. The Lot C PUD is a mixed-use project that includes residential, office and commercial land uses. The developed portion of the project includes 20 employee-housing units, 85 two-bedroom time-share units, and approximately 17,450 square feet of office/retail space. The undeveloped uses include additional timeshare units, general office and retail, restaurant, and the inclusion of a 125-room hotel. The build-out of the project occurs in three phases: Phases 1A, 1B and 11C. The portion of the timeshare and commercial space along with the employee housing has been built in accordance with Phase 1A and 1B with the majority of ground-level retail and hotel/restaurant occurring in the last phase (Phase 1C). The amendment request applies to Phase 1C and the inclusion of an additional Phase 1D, these being the final phases of the project. Phase 1C has a proposed occupancy date of December 1, 2007 and Phase 1D has an occupancy date of December 1, 2011. Phase 1C is currently entitled 48 timeshare units, 5,500 square feet of commercial/retail, 4,800 square feet of restaurant, and a 125-room hotel. The amendment request would eliminate the hotel and restaurant, reduce the amount of commercial square footage, and increase the number of time-share units. Staff recommended DENIAL on the application to the Commission, and after three public hearings over a period of several months, the Commission is forwarding a recommendation of DENIAL through Resolution #05-10. The public hearings before the Commission included lengthy discussions regarding the merits of the application, including two tabling requests by the applicant to refine the proposal based on the Commission's direction. The Commission noted that the proposal did not adequately respond to design compatibility with the immediate environment, neighborhood, and adjacent properties relative to architectural design, scale, bulk, and building height. They were also extremely concerned with the parking ratio proposed. Prior to approving the motion to deny the project, the Commission offered the applicant the option of further continuing the dialogue on the application, however the applicant requested the Commission make a recommendation to Town Council because they were at an impasse with the concerns expressed by the Commission and unwilling to significantly change the proposal as requested. Discussion: Staff has provided the report and subsequent memos to the Planning and Zoning Commission for your review, and will provide you with a brief overview of the proposal. Also included are the meeting minutes and all correspondence between the applicant and staff. The applicant has now requested this item be tabled or remanded back to the Commission for further consideration. This is a substantial departure from the request made before the Planning and Zoning Commission just several weeks ago. Staff does not support remanding this application back to the Commission for several reasons. First, staff has afforded the applicant leeway is submitting the required strikethrough version of the existing development agreement. The applicant has stated form the beginning that the intent in the application is to "negotiate" the terms of the agreement with Town Council. However, it is unclear to staff to what degree the applicant is willing to respond to the Commissions concerns without knowing the extent to which the development agreement will be amended. Staff finds continuing this process to be an unproductive use of staff time and limiting if not disregarding the role of the Commissions review of this land use application. Moreover, if the applicant is interested in garnering feedback form the Council and the responding to the Commission review concerns, then staff would suggest the applicant hold a joint work session with Council and the Commission prior to the next application-something that cannot occur during active application review. This opportunity was strongly suggested and offered to the applicant prior to submitting the applicant but was declined. Recommendation: Staff recommends that the applicant either withdraw the application, or the Council approve Resolution 05-45 denying the proposed application. We find little value in 0 Page 2 October 25, 2005 Town Council Meeting First Reading Ordinance 05-12, Lot C PUD Amendment continuing what we believe to be a 'piecemeal' approach to the public review process that will only serve to confuse what is being applied for. Available Actions: The following options are available for action on this application: 1/ Deny on First Reading, approving denial of the application through Resolution 05- 45 provided. 2/ Approve First Reading of Ordinance 05-12 3/ Table on First Reading of Ordinance 05-12. 4/ Remand the application back to the Planning and Zoning Commission. Proposed Motion: "I move to approved Resolution 05-45, denying the application for a PUD Amendment to the Lot C PUD, Sheraton Mountain Vista Subdivision, submitted May 10, 2005" Town Manager Comments: Attachments: A. Resolution 05-45 recommending denial B. Ordinance 05-12 recommending approval C. Planning and Zoning Commission Resolution 05-10 D. Staff Memo dated September 29th, 2005 E. Staff Report dated July 25th, 2005 F. Planning and Zoning Commission meeting minutes dated October 4th, 2005 G. Public Comment 0 Page 3 October 25, 2005 Town Council Meeting First Reading Ordinance 05-12, Lot C PUD Amendment Memo CSC Land LLC To: Patty McKenny From: Linda Stewart Date: December 19 2005 RE: Amended and Restated Development Agreement Dear Patty: Enclosed you will find the Amended and Restated Development Agreement for The Gates on Beaver Creek please execute. Any questions regarding this document please contact me. Thanks Best Regards Linda Stewart 972-385-9934 18001 'alleu t iew Lane Suite 150, LB 4 Dallas, Texas US4 75234 PHONTE (972) 385-9934 FAX (972) 241-44,34 wiT iniiholdi gs.com • Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Tambi Katieb, Community Developme Date: December 1, 2005 Re: Second Reading of Ordinance 05-12, Lots 1 & 2, Chateau St. Claire Subdivision - PUD Amendment (PUBLIC HEARING) Summary: CSC Land, LLC is proposing an amendment to the Chateau St. Claire PUD in order to extend the vesting period and final completion date of the project. This application was directed by Council as a condition of the Memo of Understanding agreed to on September 26, 2005, wherein the existing default status of the project was temporarily waived in order to review this PUD application. Under the current development agreement a Certificate of Occupancy must be issued no later than the second anniversary date of approval or no later than December 14, 2006. The proposed agreement extends the vesting by 2 years to December 14, 2008. The delay in the project completion was reportedly a result of financial difficulty, and approval of the new development agreement is predicated of absolute resolution of financing to complete the project. At the November 22, 2005 meeting, Council approved this Ordinance on first reading, adding several conditions to the Ordinance that require verification of funding to be in place prior to the Ordinance being effective (January 10, 2006). Background: There were at least five discussion items agreed to by way of the Memo of Understanding including: confirmation of complete financial backing, a new construction schedule with benchmark dates of progress "without the allowance of exceptions", confirmation of the payment of the $100K employee housing impact fee, acceptance of a $250K restoration bond to be retained until certificate of occupancy, clarification of the unit mix of the project, timeshare amenity fee clarification, and the extension of the vesting period and completion date of the ® project. At their November 1, 2005 meeting, The Planning and Zoning Commission recommended approval of the PUD amendment through Resolution 05-13 subject to the following modifications: (1) The proposed schedule address the submittal of the following milestones: a. CDOT approved access permit, including any required easements Deadline of March 30, 2006; b. Verification of structural steel order (deposit and shop drawings) Deadline of March 30, 2006; c. Submittal of final design application (revised on-site mock up and remaining design review approval conditions) Deadline of April 30, 2006; (2)The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD allowed uses, a new Impact Fee may be assessed; (3) The development agreement language is amended to the satisfaction of the Town Attorney; (4) A performance and payment bond for project completion must be in place and complete financial backing must be demonstrated to the Town no later than December 13, 2005 or this recommended action will expire. At the Planning and Zoning Commission meeting there was lengthy discussion on the lack of financial proof for the backing of the project to date. Also discussed was • the timing for a design review submittal, as proposed by staff, and the subsequent approval of a new design review application. Public input was received and explanation was given for the consequences of not meeting the benchmark dates included within the construction schedule. Discussion: The financial revenue model and analysis has been completed and reviewed by staff and the Town Manager and the changes to the project (i.e. from timeshare to whole ownership) remain consistent with the existing PUD development standards and acceptable from _a revenue/expense model perspective. As discussed with the Town Attorney, the applicant has suggested further changes to the completion milestones as a result of the discussion with Council, however staff recommends that you approve the development agreement as currently drafted - which allows for your consideration and extension of any in er mi ml el of ne or a delay which, in your cons) eration, you deem excusable. Finally, the recommendation to approve this Ordinance on second reading is conditioned on the proposed loan closing and the recorded mortgage or deed of trust being evidenced to the Town. Should this not occur before the January 10, 2006 Council meeting, the ordinance and action on this agreement will be void. • Page 2 December 13, 2005 Town Council Meeting Second Reading Ordinance 05-12 (PUBLIC HEARING) Chateau St. Claire PUD Amendment I)r 0 Available Actions: The following options are available for action on this application after holding the public hearing as required: 1/ Approve Second Reading of Ordinance 05-12, however conditioned that the effective date of the Ordinance be January 10, 2006 pending complete loan funding. 2/ Deny Second Reading of Ordinance 05-12. 3/ Table on Second Reading of Ordinance 05-12. Staff Recommendation: Staff recommends approval of Ordinance 05-12 on second reading with conditions as noted. Town Manager Comments: Attachments: A. Ordinance 05-12 (inc. Exhibit A- Amended and Restated Development Agreement) B. Planning and Zoning Commission Resolution 05-13 C. Staff Report to the Planning & Zoning Commission dated October 25, 2005 D. Memo of Understanding, dated September 26, 2005 E. Summary of Proposed Changes as part of October 11, 2005 application submittal F. Ordinance 04-20 G. Draft (strikethrough) Development Agreement H. September 13, 2005 & September 26, 2005 Council Meeting Minutes 1. December 8, 2004 & June 22, 2005 Design Review Letters Page 3 December 13, 2005 Town Council Meeting Second Reading Ordinance 05-12 (PUBLIC HEARING) Chateau St. Claire PUD Amendment TOWN OF AVON ORDINANCE NO. 05-12 SERIES OF 2005 AN ORDINANCE APPROVING AN AMENDMENT TO THE CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT (PUD) FOR LOTS 1 & 2, CHATEAU ST. CLAIRE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, CSC Land, LLC, has applied for an amendment to the existing Chateau St. Claire PUD and Development Agreement, as more specifically described in the application dated October 11, 2005 and the terms outlined in the approved Development Agreement attached to • this ordinance and referenced herein as "Exhibit A"; and WHEREAS, the application proposes to amend Ordinance 04-20 and the associated Development Agreement in order to extend the current project completion date; 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 November 1, 2005, 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 Amendment; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendation for conditional approval on the PUD application to the Town Council of the Town of Avon through Resolution 05-13; and WHEREAS, after notices provided by law, this Council held a public hearing on the • day of , 2005, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Amendment; and A 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 PUD and Development Agreement are consistent with 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 Amendment to the Chateau St. Claire PUD and Ordinance 04-20, as more specifically described in the application dated October 11, 2005 is hereby approved, subject to the following conditions: 1. The ordinance will be effective January 10, 2006, if and only if the Town has received proof of funding of the proposed loan by U.S. Bank, the proof to be in the Is form of a copy of a recorded mortgage or deed of trust securing a loan in at least the amount of $36,179,397. 2. Funding must include completion bond running in favor of the lender, U.S. Bank. 3. The amended and restated development agreement be satisfactory to the Town Attorney and attached and incorporated into the ordinance by reference. 4. The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD allowed uses, a new Impact Fee will be assessed. 5. In no event will the building permit or construction schedule be extended past December 14, 2008. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this day of , 2005, 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, , 2005; at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council i Mayor ATTEST: Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the day of , 2005. Town of Avon, Colorado Town Council Mayor ATTEST: Town Clerk APPROVED AS TO FO Town Attorney • 0 Exhibit A - Ordinance No. 05-12 AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE GATES ON BEAVER CREEK (formerly Chateau St. Claire) THIS DEVELOPMENT AGREEMENT (this "Agreement") was originally made and entered into as of the Effective Date (defined below) by and between CSC Land, LLC, a Colorado Limited Liability Company (as more specifically defined below, the "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and is hereby amended and restated in its entirety by the Owner and the Town as of , 2005, to remain effective as of the Effective Date. 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 described as Lots 1 and 2, FINAL PLAT OF CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat thereof filed June 18, 1987 in Book 729 at Page 742, Eagle County, Colorado the Property"). C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and Development Standards for the Property were approved, subject to the condition that deed-restricted affordable housing or employee units be included in the development in an amount equal to ten percent of the hotel, residential or timeshare units. D. Building Permit No. C-BP-2002-17, reissued on March 5, 2004 ("the Building Permit"), contained the conditions that 1) a Deed Restriction and Employee Housing Agreement be submitted for approval prior to issuance of a Certificate of Occupancy and 2) a letter of credit in the amount of $60,000 be retained by the Town until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. F. Owner deposited cash in the amount of $60,000, in lieu of a letter of credit, which, in addition to a prior deposit of $40,000, such total $100,000 deposit has been accepted and will be retained by the Town to be used as a credit toward the Employee Housing Impact Fee hereinafter provided, for. G. By Ordinance No. 04-20, Series of 2004, the Town deleted the affordable housing condition from Ordinance No. 98-6, the PUD Development Plan and Development Standards and from the Building Permit, in exchange for Owner's agreement to certain exactions and other conditions, hereinafter set forth. DMWEST #6314188 v2 H. The Owner has deposited cash [or provided an acceptable letter of credit] in • the amount of $250,000 for site restoration, which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. 1. The Town is willing to extend the term of this Agreement, the period of Vesting Property Rights and the outside date for completion of the Project. The Town is further willing to accept an amended schedule of construction and active building permits. G. The legislature of the State of Colorado adopted Sections 24-68-101, et seg. 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 Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. H. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the Municipal Code authorizes the Town to enter into development agreements is with landowners and other qualified applicants providing for the vesting of property development rights. 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 1.1 Association. Timeshare ownership association formed to manage the timeshare ownership project located on the Property. 1.2 Effective Date. The effective date of the Town Council ordinance amending Ordinance No. 98-06, December 14, 2004. .1_3 Municipal Code. The Town's Municipal Code, as in effect from time to time. 0 DMWEST #6314188 v2 2 D 1_4 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.5 Resubdivision Plat. A plat approved by the Town authorizing a resubdivision, condominium resubdivision, planned unit development resubdivision, or time- sharing subdivision consistent with Title 16 of the Municipal Code. 1.6 Certificate of Occupancy. Certification pursuant to the Town's building codes that the premises have been completed and comply with the provisions thereof. "Certificate of Occupancy" includes any temporary certificate of occupancy. 1.7 Time-share owner. A person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes. 1.8 Time-share unit. A unit, the title to which is divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes. 1.9 Time-share Amenities Fee. A consensual fee intended to mitigate the impact of a time-share subdivision, including the cost of transportation and of recreational facilities. 1.10 Employee Housing Impact Fee A consensual fee intended to mitigate the impact of a condominium subdivision and associated facilities on employee housing needs. ARTICLE II WAIVER OF CONDITIONS The affordable housing condition contained in Ordinance No. 98-6, Series of 1998, and the Building Permit is deleted by the Town as of the Effective Date. The condition of maintaining an active building permit contained in Ordinance No. 04=20 in accordance with the original Development Agreement (and construction schedule incorporated therein) shall be waived, amended and restated by the Town, by adoption of an amending ordinance authorizing the execution of this amended and restated Agreement and Owner's compliance with the requirement of Section 3.4 below. ARTICLE III EXACTIONS The following exactions are intended to provide adequate facilities for the public benefit of the Town: DMWEST #6314188 v2 3 3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and • continuing in perpetuity, the Association is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee in the amount of $140.10 per year per fractional interest (defined as a 1/101h (five- week) undivided interest or timespan estate in a time-share unit), or the equivalent of $28.02 per year per weekly fractional interest if conveyed in some fractional interest other than a 1/10`h interest. The Owner is exempt from the obligation for the Timeshare Amenities Fee until the earlier to occur of the first-time sale of a fractional interest or December 14, 2009 (or one year after the completion deadline, should it be changed). 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 assignment of this Agreement to the Association pursuant to Section 6.9 hereof, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fees. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare fractional interests per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the $140.10 fee (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, 2006, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage change from the prior year 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 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 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 demand of the amount due and • deliver or mail the same to the office of the Association. The amount properly DMWEST #6314188 v2 4 ~O determined to be owing shall bear interest 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 Association such written demand will be delivered to the Owner. 3.2 Assignment of Association Assessments and Lien. Owner, on behalf of the Association assigns and grants a continuing security interest in the Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Timeshare Amenities Fee. Upon default of the Association in collection and/or remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 3.3 Employee Housing Impact Fee. Owner has paid to the Town the sum of $40,000 which, together with the $60,000 already deposited with the Town, is accepted by the Town in full satisfaction of the Employee Housing Impact Fee and any other exaction intended to mitigate the impact of the project for which the building permit has been issued, including the timeshare ownership, on employee housing needs, excluding the Timeshare Amenities Fee. The total amount so deposited shall be unrestricted funds of the Town, and the Town shall have no obligation to account for or to refund them in the event of the termination or amendment of this Agreement; nor shall they apply to any future project authorized on the Property 3.4 Restoration Bond. Owner shall deposit with the Town cash [or provide the Town with an acceptable letter of credit] no later than three (3) banking days after adoption of an amending ordinance authorizing the execution of this amended and restated Agreement (subject to the condition of receipt of such cash or letter of credit), in the amount of $250,000 for site restoration ("Restoration Bond"), which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. ARTICLE IV TERM OF AGREEMENT 4.1 Term of Agreement. 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, unless sooner terminated pursuant to Article V hereof, until December 14, 2008 ("the Completion Deadline"). If a Certificate of Occupancy has not been issued by that date or if this Agreement is terminated pursuant to Article V hereof, this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be DMWEST #6314188 v2 5 permitted under existing approvals. The Employee Housing Impact Fee shall be nonrefundable and the Owner (including any successor or assign) shall have no right to seek reimbursement or repayment therefor. If a Certificate of Occupancy has been issued by that date or if this Agreement is terminated pursuant to Article V hereof„ the Restoration Bond shall be released to the Owner and this Agreement shall continue in effect until amended or terminated by mutual agreement of the parties. 4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall maintain an active building permit pursuant to the current provisions of Title 15, Municipal Code, as shown by meeting the scheduled deadlines attached hereto as Exhibit A, subject to any . delays approved pursuant to Section 4.3 provided that in no event shall any.approved delay permit the schedule to be extended past the Completion Deadline 4.3 Delays. Should the Owner be delayed, hindered or prevented from proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for any reason„ Owner shall, within thirty (30) days after the commencement of the delay. provide the Town Department of Community Development (with a copy to the Town Attorney) with written notice of the delay, the reason therefor and an estimate of the expected duration of such delay. The Town shall approve or disapprove the delay and, if it is approved, the period thereof, in its sole and absolute discretion. If the delay is approved by the Town, Owner shall thereafter use all commercially reasonable efforts to minimize its impact and duration. Delays approved by the Town may permit the milestone dates on Exhibit A to be extended, but in no event shall any delay approved by the Town permit the schedule to be extended past the Completion Deadline, Nor may any delays approved by the Town be utilized to claim an extension of the term of this Agreement or the term of the vested property rights established under this Agreement. ARTICLE V DEFAULTS AND REMEDIES 5.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 5.2 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. 5.3 Notices of Default. In the event of a default by either party under this Agreement, other than a failure by Owner to meet a scheduled deadline, together with any extension for any approved delay the non-defaulting party shall deliver written notice to the defaulting party of such default, at the 40 DMWEST #6314188 V2 6 address specified in Section 6.8, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is a monetary default by Owner, Owner shall have ten (10) days 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. 5.4 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 enforcement of its rights granted by Section 3.2 hereof, including foreclosure of its lien, and/or an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover all amounts owing hereunder, including any damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. (b) If any of the Scheduled Deadlines on Exhibit A , together with any approved delays, is not met or a Certificate of Occupancy is not issued on or before the Completion Deadline, or if Owner defaults under this Agreement and the default is not cured, , this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals, all of which approvals shall be deemed void. 5.5 Default Under Article IV. Any default under Article IV shall not be subject to the cure provisions hereinabove contained and shall primarily be remedied as set forth in said Article. ARTICLE VI MISCELLANEOUS 6.1 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Municipal Code. • DMWEST #6314188 v2 7 6.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. 6.3 Expenses. Within ten (10) days of receiving an invoice from the Town, Owner shall reimburse to the Town the costs and expenses, including attorney's fees associated with the preparation of, implementation of and enforcement of the terms of this Agreement. If any invoice is not paid within such ten (10) day period, interest will accrue at one and one-half (1.5) percent per month 6.4 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. 6.5 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare of the Town. 6.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 6.7 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. 6.8 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 DMWEST #6314188 v2 8 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 with copy to: Town Attorney Attn: John Dunn, Esq. John W. Dunn & Associates, LLC P.O. Box 7717 Avon, Colorado 81620 If to Owner: CSC Land, LLC c/o Tim Barton One Hickory Centre 1800 Valley View Lane Dallas, Texas 75234 6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that subsequently acquires a fee simple interest of record in any portion of the Property as a transferee, grantee, assignee or successor of CSC Land, LLC. Notwithstanding the foregoing, the term "Owner" will not include (1) purchasers of condominium units, timeshare units, fractional interests or any other interest therein, except and to the extent that CSC Land, LLC or any of its assigns separately acquires any such unit or units or any interest therein (including any bulk purchase thereof) or (2) holders of a security interest in the Property or a portion thereof, except and to the extent that a holder of a security interest acquires any such unit or units or any interest therein through foreclosure. Following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, the Owner shall assign all remaining obligations hereunder to the Association (which shall then be deemed to be the "Owner"). 6.10 Assi ng ments. 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, time-share owners, 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 transfer providing for express DMWEST #6314188 v2 9 \6 assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall relieve Owner of any further obligations under this Agreement with respect to the matter so assumed. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. The Town approves of the assignment to and assumption by the Association of all of Owner's obligations under this Agreement following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, and the Owner shall be relieved of all liabilities and obligations hereunder upon recordation of such assignment and assumption. 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. 6.11 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. 6.12 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 effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 6.13 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or give to, any legal person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the parties will be for the sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere with the agreements of the parties with third parties. 6.14 Prior Recorded Document. Upon recording in the real property records of Eagle County, Colorado, this Agreement is intended to supersede, restate and replace in its entirety the document recorded at Reception No. 901428 on December 22, 2004. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above to take effect as of the Effective Date. TOWN OF AVON, a municipal corporation of the State of Colorado • DMWEST #6314188 v2 10 • BY: ATTEST Town Clerk APPROVED AS TO FORM: Town Attorney STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) Mayor Subscribed before me this day of , 2005, by Ron Wolfe as Mayor and Patty McKenny as Town Clerk of Town of Avon, a municipal corporation of the State of Colorado. My Commission Expires: Notary Public DMWEST #6314188 Q 11 CSC LAND, LLC, a Colorado limited liability company By:JMJCSC LP, a Texas limited partnership, its Manager By: JMJ 129 West LLC, a Texas limited liability company, its General Partner By: STATE OF TEXAS ) )ss. COUNTY OF HARRIS ) Timothy L. Barton, Manager Subscribed before me this day of , 2005, by Timothy L. Barton, as Manager of JMJ 129 West LLC, a Texas limited liability company, as General Partner of JMJCSC LP, a Texas limited partnership, as Manager of CSC Land, LLC, a Colorado limited liability company. My Commission Expires: Notary Public DMWEST #6314188 v2 12 Exhibit A to Amended and Restated Development Agreement Construction Schedule Milestone Event Scheduled Deadline CDOT Approved Access Permit March 30, 2006 (including any required easements) Verification of Structural Steel Order March 30, 2006 (deposit and shop drawings) Approval of Final Design (including on- April 30, 2006 site mock up and remaining design issues listed in Avon letters dated Dec. 8, 2004 and June 22, 2005) Complete Steel Erection August 16, 2006 Completion of Roofing December 8, 2006 Complete Exterior Stucco Installation April 6, 2007 Complete Hardware Installation December 14, 2007 Call for Town Final Inspection February 29, 2008 Final certificate of occupancy issued March 30, 2008. DMWEST #6314188 v2 13 : EXHIBIT B TOWN OF AVON PLANNING & ZONING COMMISSION RESOLUTION NO. 05-13 A RESOLUTION RECOMMENDING APPROVAL OF A PUD AMENDMENT APPLICATION AMENDING THE CHATEAU ST. CLAIRE PUD, LOTS 1 & 2, FINAL PLAT OF CHATEAU ST. CLAIRE SUBDIVISION, AS MORE SPECIFICALLY. DESCRIBED IN THE APPLICATION DATED OCTOBER 11, 2005. WHEREAS, CSC Land, LLC has filed an application to amend the existing Planned Unit Development ("PUD") and Development Agreement for the Chateau St. Claire PUD; and WHEREAS, the proper posting, publication and public notices for the hearings before the • Planning and Zoning Commission of the Town of Avon were provided as required by law; and wHEREAS, the Planning and Zoning Commission of the Town of Avon held a public hearing on November 1, 2005 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 and Development Agreement; and WHEREAS, following such public hearing, the Planning and Zoning Commission forwarded its recommendation for approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 05-13; WHEREAS, said application appears to comply with the following PUD review criteria set forth in Section 17.12.110 of the Avon Municipal Code, including the following: Conformance with the Town of Avon Comprehensive Plan's Goals and Objectives has been met as required by 17.20.110H (1). b. The overall design concept of this PUD Amendment conforms to the design theme of the Town, and Design Guidelines as required by 17.20.110H(2) FAPlanning & Zoning Commission\Resolutions\2005\Res 05-13 Chateau St. Claire amendment.doc O c. The project is compatible with the immediate scale and character of existing properties in the vicinity. 17.20.110H(3) d. This PUD Amendment application is responsive and compatible to the existing surrounding land-uses. 17.20.110H (4) e. This PUD Amendment application has created functional open space that is responsive to existing views and buffers to open space. 17.20.110H(8) WHEREAS, this PUD Amendment provides evidence of compliance with the public purpose provisions outlined in Section 17.28.085 of the Municipal Code N OW, THEREFORE, BE IT RESOLVED, that the Planning and Zoning Commission hereby recommends approval to the Town Council for the amendment of the Chateau St. Claire PUD, Lots 1 & 2, Final Plat of the Chateau St. Claire Subdivision, application dated October 11, 2005 with the following conditions: 1. The proposed schedule address the submittal of the following milestones: a. CDOT approved access permit, including any required easements Deadline of March 30, 2006. b. Verification of structural steel order (deposit and shop drawings) Deadline of March 30, 2006. C. Submittal of final design application (revised on-site mock up and remaining design review approval conditions) Deadline of April 30, 2006. 2. The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD, allowed uses, a new Impact Fee may be assessed. 3. The development agreement language is amended to the satisfaction of the Town Attorney. RAPlanning & Zoning Commission\Res0lutions\2005\Res 05-13 Chateau St. Claire amendment.doc i 4. A performance and payment bond for project completion must be 'in place and complete financial backing must be demonstrated to the Town no later than • December 13, 2005 or this recommended action will expire. 5. Except as otherwise modified by this permit 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. ADOPTED THIS 1st DAY OF NOVEMBER, 2005 Signed. Date: i I S Chris Evans, Chair Attest Date: Phil Struve, Secretary r FAPlanning & Zoning Commission\Resolutions\2005\Res 05-13 Chateau St. Claire amemlment.doc ~1 _Y EXHIBIT C i Staff Report PUD Amendment AVON C O L O R A D O November 1, 2005 Planning & Zoning Commission meeting Report date October 25, 2005 Project type PUD Amendment Legal description Lots 1 & 2, Chateau St. Claire Subdivision "Gates at Beaver Creek" Current zoning PUD Address 38374 Hwy 6 & 24 Introduction The applicant, Chris Payne, representing the owners of the property (also known as the Gates on Beaver Creek) is proposing an amendment to the Chateau St. Claire PUD. The proposed amendment to the PUD is focused primarily on a redrafting of the development agreement at the direction of Council, and does not contemplate any changes to the physical design or construction of the building. This application and agreement was directed by the Town Council at their September 13, 2005 meeting, and was later accepted by the owner and Town with a Memo of Understanding (Exhibit A) on September 26, 2005. At a regular meeting of the Town Council on September 13, 2005 a motion was passed to re- instate the building permit for a period of 90 days provided that no construction was to occur under the permit until guaranteed funding to complete the project was demonstrated, and an amendment to the Development Agreement is agreed to by way of a zoning amendment application. A formal zoning application is the only means to amend the Development Agreement; therefore, this application is an exercise to review the revised agreement, revised construction schedule, and a guaranteed funding source for the project's completion. The Memo of Understanding clearly set the expectations of this application and the anticipated areas of discussion or clarification. Staff would encourage the Planning and Zoning Commission's input be incorporated into a recommendation to the Town Council by way of a resolution. Staff has attached a proposed resolution with recommended conditions to this report for your review and consideration. Current Approvals & Recent Activity In December of 2004, the Town approved a development agreement and PUD Amendment with the developer through Ordinance 04-20 (Exhibit B) which included: (1) payment of an in-lieu fee (impact fee) of $100,000 to the Town of Avon's Affordable Housing Program in place of 6 on- site employee units; (2) establishment of a time share amenity fee; and (3) an agreement that should a certificate of occupancy not be issued by the second anniversary of the effective date (December 14, 2006), the Town will retain a $60,000 cash deposit, the building permit would be cancelled and no further development would be permitted under the existing approvals (i.e. all approvals will be null and void, including the PUD and the Design Review approvals). Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 2 of 9 After receiving approval of a development agreement and the formal PUD Amendment application, construction commenced on the property. The early part of 2005 was busy with construction of the footings and foundation walls. As part of the current approvals, the final footing inspection was to be inspected approved no later than June 30, 2005. After approval of the final footing inspection by the Building department on June 13, all construction activity ceased and construction equipment was removed from the site in the following weeks. After two months of inactivity on the property, the Community Development Department produced a letter stating that the project was in default and all approvals were to be void. The applicant requested reconsideration of the default determination, and the decision was remanded to the Town Council at their September 13, 2005 meeting. The Memo of Understanding was later agreed to between the land owner and the Town on September 26, 2005. Annexation & Zoning History for the Property February 1996 - Chateau St. Claire LLC petitioned to the Town for annexation and PUD zoning and development plan approval. The proposed project was a 4-story building with 72,000 sq. ft. devoted to office, retail and restaurant. No residential use was included. September 24, 1996 - Council approved the Annexation (Ordinance 96-16) and PUD zoning and Development Plan (Ordinance 96-17) with the condition that the parcel be subdivided into two lots: a 2.42-acre development lot ("lot 1 and a 3.38-acre Public Open Space lot'("lot 2"). Lot 2 is to be dedicated to the Town. July 1997 - Applicants received a building permit. This permit eventually lapsed due to a lack of progress- no construction occurs on site. August 5, 1998 - The PUD for the project was amended to include the addition of accommodation units (hotel, timeshares, fractional) and residential units to the 'uses by right' (Ordinance 98-6). The permitted uses were expanded with this amendment, not the design of building. September 5, 2000 - Revised Final Design plan was submitted and approved for a 6- story, 118,000 sq. ft. building including 54 condominium units and a restaurant. The condominium units were proposed as a mix of interval ownership, fee simple ownership and employee housing. This revised design submittal is similar in height and massing to the original design approved in 1996. September 26, 2000 - Town issues a_ grading permit to clear debris and topsoil from the site. All work pertaining to this permit was completed October 12, 2000. August 2001 - Town issues a foundation, excavation, and retaining wall permit and retained a $60,000 surety to ensure restoration of the site pending issuance of a complete building permit. June 2002 - Building permit is issued, which consisted of 52 timeshare/interval ownership units, employee housing units, a restaurant and spa. Town expires building permit due to lack of construction activity on the site. The owner/developer is required by the Town to pay half of the building permit fee again to extend the building permit (allowed under the 1997 UBC) by the Building Official. Town of Avon community Development (970) 748-4030 Fax (970) 949-5749 ` 1 Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 3 of 9 December 10. 2002 - The Town issues a new building permit (C-BP2002-17) with specific conditions for construction and development. Based on this revised permit, owner/developer was required to commence construction no later than May 10, 2003 and pay a recreational amenity fee in the amount of $58,808 and a school impact fee in the amount of $11,415.81 for a total of $70,223.81. All fees were collected by the Town. Inspections performed under C-BP2002-17• May 8. 2003 - Site Preparation Inspection approved by Town. May 9, 2003 - Soils Report/Open Soils report accepted by the Town. July 15. 2003 - Planning and Zoning approves revised Final Design drawings. July 30. 2003 - Soil Nail Wall accepted by special inspector. No activity beyond this point for 180 days will cause permit to expire on February 18, 2004. January 27, 2004: Ownership approached Council at regular meeting, asks for an extension and explains financial difficulties resulted in lack of progress. A 180-day extension granted by Council pending satisfactory funding and footing inspection. No activity occurred until August date. August 4. 2004: Town Attorney determines funding in place after meeting with owners and lender. August 11. 2004: Inspection performed on shared and partial footing. Permit will expire in 180 days (Feb.7th, 2005) with no substantial resumption of activity. No activity occurs on the site after this inspection. December 14. 2004: Council approves Ordinance 04-20, replacing employee housing units with 6 fractional units. Still, no activity occurs on site since as a result of approval of ordinance, causing applicant to seek an extension of the building permit from Council in February 2005. February 8. 2005: Council extends building permit with conditions, including a June 30, 2005 inspection deadline for final footing and noted that the building activity must meet the dates as outlined in the construction schedule. Community Development sends approval letter confirming Council action and the required conditions of the agreement, noting that the key dates submitted by CFC in the construction schedule will constitute the construction schedule per the default provisions. February - August 12, 2005: Building Inspectors perform several inspections on footing and foundation completion, including June 13, 2005 inspection for final footing. On June 14, 2005, CSC Land requests release of $210,000. of surety in accordance with approved development agreement. Release occurs in the next week. June 20. 2005: Town Manager and Community Development Director informed by CFC Construction representative that they will pull all equipment and personnel off site during the week. June 22. 2005: All activity ceases on site, equipment pulled by CFC Construction. 0 June 29. 2005: Certified mail sent by Community Development Director providing notice of potential default condition as a result of all construction activity ceasing, noting that i own of Avon uommunity Uevelopment (970) 748-4030 Fax (970) 949-5749 4i Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 4 of 9 significant activity such as the form and pour of east foundation walls, must resume within. the next 30 days or project will be considered in default. July 18, 2005: JMJ Development confirms receipt of notice of default by Community Development Director with email letter. August 9, 2005: After 30 days of no construction activity on site, several CFC workers mobilize to form the east foundation wall and call for inspection. August 9, 2005: Town issues inspection with condition noting that the inspection does not affect the construction schedule or terms of the default, and the permit is cancelled. Inspection passed for steel (forms not in place) with re-inspect conditions prior to pour to check forms. August 12, 2005: Re-inspect called again by CFC. Inspection request denied. August 16, 2005: Review of legal status with Town Attorney and Town Manager. August 18, 2005: Certified letter sent to CSC Land by Community Development notifying them of default condition, cancellation of permit and approvals. August 18, 2005: Letter sent to Town Attorney by Chris Payne, owner's legal representative, requesting reconsideration of inspection and default condition by Council. August 22, 2005: Letter sent by CSC Land (Tim Barton) requesting reconsideration and discussion at the August 23, 2005 Council meeting. September 13, 2005: At a regular meeting of the Town Council a motion was passed re- instating the building permit for a period of 90 days; provided, no construction shall occur under the permit until guaranteed funding to complete the project is demonstrated and an amendment to the Development Agreement is agreed to by way of a zoning amendment application. October 11. 2005: Zoning amendment application was received by Community Development. Proposed Amendments Attached to this report is a summary of the requested amendments (Exhibit C) to the current Development Agreement as prepared by the applicant. The major amendments include: • Extension of the period of vested rights to the fourth anniversary of the 2004 Amendment application, or to December 14, 2008. • Clarification on the surety bond to be furnished in the amount of $250,000. • Revised construction timetable with benchmark dates for completion. In addition to the benchmark dates in the construction schedule, staff has identified additional benchmarks that should be included in this agreement. Perhaps most important to the Planning and Zoning Commission would be the addition of a drop dead date for resolution or submittal of all outstanding design related issues with the project. A strikethrough version of the development agreement is currently being reviewed by the Town Attorney and a copy (Exhibit E) is also attached to this report. The guarantee of funding for the project is required to be in place by December 13, 2005 and no evidence has been provided to Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 i' Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 5 of 9 Community Development. Town staff has requested that the applicant provide the complete build out costs estimate and any evidence of funding to complete the project with enough time for review prior to the December 13, 2005 Council meeting. PUD Design Criteria According to the Town of Avon Zoning Code, Section 17.20.110(h), 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 consistent with the public interest has been achieved. Where the PUD is being requested in connection with the review of a development agreement pursuant to Chapter 17.14, not all design criteria . may be applicable, as determined by the Community Development Department. The following design criteria shall be used as the principal criteria in evaluating this application: 1. Conformance with the Town of Avon Comprehensive Plan's Goals and Objectives. The fundamental reason for having a Comprehensive Plan is to communicate where and how land uses may and will occur in the Town. The land use plan is based upon these goals and polices. Implementation is through annexation, subdivision and zoning regulations. This proposed PUD Amendment appears to comply with the following goals and polices of the Town Comprehensive Plan based upon the following: Policy A1.1 - Development and redevelopment will be of a scale and intensity appropriate for the neighborhood in which it is located. The proposed PUD amendment will not alter the land use intensity or density of the project. 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. The Chateau project could help maintain Avon's tourism base with more 'hotbeds' in the coming years of continued growth. Policy B3.1 - Promote development of facilities and activities which strengthen the Town's year-round tourism base, and relationship to the resort community. Given the project's location immediately adjacent to the entrance of Beaver Creek Resort, this development can strengthen the Town's year round tourism base. Goal B3 - Maintain a balanced, diverse economic base that provides employment opportunities for residents and a sustainable tax base for the Town. The timeshare amenity fee system proposed with this project would guarantee a continued tax base for the Town. Town of Avon community Development (970) 748-4030 Fax (970) 949-5749 d~\ Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 6 of 9 2. Conformity and compliance with the overall design theme of the town, the sub-area design recommendations and design guidelines of the Town. . 0 There are several design issues that must be addressed prior to construction commencing at the site. In order to fulfill a condition of approval for a Minor Design Modification (modifications to final design approval) an on-site mockup was reviewed by the Planning and Zoning Commission on June 21, 2005. Staff would recommend that the issues brought up by the Commission during the mockup review be addressed prior to the project moving forward. Some of the concerns brought up by the Planning and Zoning Commission include the following: • Replacement of the 7/16" Hardy board fascia with a minimum 3/4" textured fascia. • Presentation of a secondary roof material. • All deck material to be rough-sawn. • Water-based stain concerns. • Bronze downspouts and gutters to be bronze in place of copper. • The yellow color on the bottom of the mock-up is not approved. The design theme of the project is in general compliance with the design theme of the Town; however, the details mentioned above must be addressed prior to construction. In addition to the mentioned comments on the on-site mockup several design related items remain unresolved for the project. Some of these outstanding issues include: (1) Revised Landscape Plan, (2) Revised grading plan, (3) Master Sign Program submittal, (4) Revised Lighting Plan to conform to Outdoor Lighting Ordinance, (5) Execution of an access agreement with neighboring property (Folson). For an all inclusive list of outstanding design issues please refer to the attached letters from staff dated December 8, 2004 and June 22, 2005 (Exhibit D). Staff believes that there should be a set benchmark date added to the new Development Agreement's construction schedule for resolution or submittal of a design application to address all of the remaining design issues. Some of the remaining design items could affect ordering schedules and the timeframe for completion of the project. 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 massing and scale of the building was approved through the original PUD approval process in 1998 and has remained unchanged since that time. The architectural details (i.e. removal of canvas awning on north elevation, stucco texture) and use of materials (i.e. roof material, window heads/sills from wood to stucco detail), however, has changed by way of design modification applications. As stated above, the design concerns brought up by the Planning and Zoning Commission during the on-site mockup review must be addressed prior to proceeding with the project. A letter (Exhibit D) highlighting the Commission's concerns was forwarded to the project's architect, Mike Stornello, shortly after the mockup review and no response has been received by staff to date. 4. Uses, activity, and density provide a compatible, efficient, and workable • relationship with surrounding uses and activity. Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 7 of 9 No information was included in the application to clarify the uses and/or unit mix for the project, as requested with the Memo of Understanding (see Recitals #3). The applicant has instead proposed that the unit mix will be consistent with the PUD approved zoning, which allows for whole ownership and timeshare units, and will be driven by the available financing options the owner can secure. This may be clarified with the funding information that the Town is awaiting. 5. Identification and mitigation or avoidance of natural and/or geologic hazards that affect the property upon which the PUD is proposed. This criteria does not apply to the current application. 6. Site plan, building 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. This criteria does not apply to the current application. 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 permit issued by the Colorado Department of Transportation (CDOT) has expired and must be renewed prior to commencing building construction or construction of the permanent access on Highway 6 & 24. 8. Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. This criteria does not apply to the. current application under review. 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. The sole purpose of this application is to review the revised development agreement and associated (extended) construction/phasing plan. Also, the 90 day extension on the building permit was granted in order to give the owner(s) a change to guarantee funding to cover all expenses necessary to complete the project. No guarantee of funding or cost estimate of construction has been verified by the applicant. 10. Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire .protection. The current approval was guaranteed public services and the upper portion of the property (Lot 2) was dedicated to the Town as Open Space as part of the original PUD approval in 1996. There are no anticipated increases in demands for services. 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. After discussion, the CDOT access permit must be reinstated with any easement requirements or agreements executed prior to construction. 0 Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 Lot 1, ChSteau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 8 of 9 12. That the PUD Amendment requested provides evidence of substantial compliance with the,following public purpose provisions, as outlined in Section 17.28.085 of the Avon Municipal Code: A. The application demonstrates a public purpose which the current zoning entitlements cannot achieve. The current entitlements, and more specifically the deadline for a Certificate of Occupancy for the project (December 14, 2006), is unachievable at this point in time. The applicant is providing a revised development agreement and additional surety that the project will be completed with a new construction schedule. B. Approval of the zoning application provides long term economic, cultural or social community benefits that are equal to or greater than potential adverse impacts as a result of the changed zoning rights. The application seeks to amend an existing development agreement to finally construct a project or remove all zoning rights from the property. Finality of this project through construction would provide a community benefit. C. The flexibility afforded in approval of the zoning application will result in better siting of the development, preserving valued environmental and cultural resources, and increasing the amount of public benefit consistent with the community master plan documents. This project is supported by the Comprehensive Plan, and there are no proposed changes to the siting of the development. Discussion Though the application does not propose to change the physical appearance or entitlements of the PUD as it is primarily focused on requested revisions to the Development Agreement, the Commission is required to review the agreement proposed and provide a recommendation to Council on the proposed amendment. In order to address all previous design related conditions from previous Planning and Zoning Commission reviews, staff is recommending that a final design submittal date be added to the construction schedule to ensure that all issues are addressed in a timely manner. Staff has relied upon the Town Attorney to review the legal aspects of this proposal, but we are recommending approval of the agreement with several conditions that we feel will finalize the design review of the proposal that has been pending for some time now. We feel the construction schedule has generous amounts of time built into the proposed milestones, but also believe that should the project order and erect structural steel by August 2006, it is highly unlikely that the site will be abandoned by the lender. Staff Recommendation Staff recommends conditional approval of Resolution 05-13. Recommended Motion "I move to approve Resolution 05-13, recommending to the Town Council to approve the amendment to Chateau St. Claire PUD (Ordinance No. 04-20) and Development Agreement, Lots 1 & 2, Chateau St. Claire Subdivision, Town of Avon, Eagle County, Colorado, as more specifically described in the application dated October 11, 2005 with the following conditions` Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 V • n Lot 1, Chateau St. Claire Subdivision, "Gates on Beaver Creek" PUD Amendment November 1, 2005 Planning & Zoning Commission meeting Page 9 of 9 1. The proposed schedule address the submittal of the following design milestones: a. CDOT approved access permit, including any required easements Deadline of March 30, 2006. b. Verification of structural steel order (deposit and shop drawings) Deadline of March 30, 2006. C. Submittal of final design application (revised on-site mock up and remaining design review approval conditions) Deadline of April 30, 2006. 2. The Employee Housing Impact Fee collected is fully dedicated to the Town irrespective of the project outcome, however, should the applicant seek an increase in density or future amendment to the PUD allowed uses, a new Impact Fee may be assessed. 3. The development agreement language is amended to the satisfaction of the Town Attorney. 4. Except as otherwise modified by this permit 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. 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. Cordially, 10 Matt Pielstic r Planner Report Attachments: A. Memo of Understanding with land owner, dated September 26, 2005 B. Ordinance 04-20 (amending ordinance 98-17) with current Development Agreement C. Summary of proposed changes as part of October 11, 2005 application submittal D. Design Approval Letters to architect dated December 8, 2004 & June 22, 2005 E. Strikethrough Development Agreement F. September 13, 2005 & September 26, 2005 Town Council Meeting Minutes i own of Avon Community Development (970) 748-4030 Fax (970) 949-5749 4\ • ;a V/ EXHIBIT D A MEMORANDUM OF UNDERSTANDING `v THIS MEMORANDUM OF UNDERSTANDING is entered into between TOWN OF AVON ("the Town"), a municipal corporation, and CSC LAND, LLC ("CSC'), a Colorado limited liability company as of Sop ato , 2005; RECITALS In 1996, the Town Council of the Town adopted Ordinance No. 96-17 establishing Planned Unit Development zoning and development standards ("PUD") for a project now known as The Gates at Beaver Creek ("the Project'j, which PUD was later amended by Ordinance No. 98- 6 and by Ordinance No. 04-20. In connection with Ordinance No. 04-20 (the "Ordinance'), CSC and the Town further approved and executed a Development Agreement for the Project (the "Agreement'). On August 18, 2005, CSC was notified by the Town that a default occurred under the Agreement as a result of failure of CSC to maintain an active building permit on a schedule that would result in issuance of a certificate of occupancy within two years of the effective date of the Ordinance. CSC was further notified of cancellation of the building permit for the Project. At regular meeting of the Town Council on September 13, 2005, a motion was passed temporarily reinstating the building permit for a period of 90 days; provided, no construction shall occur under the permit until guaranteed funding to complete the Project is demonstrated and an amendment to the Agreement is agreed to by way of zoning amendment. In connection with the amendment of the Agreement, the areas which will be under discussion include: 1) agreement to a new construction schedule with significant benchmarks and milestones of progress, including the erection of steel, without the allowance of exceptions; 2) confirmation of payment of a separate $100,000 Employee Housing Impact Fee to mitigate the Project's impact on employee housing needs, apart from a $250,000 cash restoration bond or letter of credit, the latter bond or letter of credit to be posted upon approval of the zoning amendment by the Town Council and the same to remain posted until issuance of a certificate of occupancy; 3) clarification of the type of unit mix (timeshare, fractional ownership and whole ownership; 4) any need for recalculation of the Timeshare Amenities Fee, based upon the unit mix and projected financial impacts of the Project; and 5) extension of the vesting period and deadline for completion of the Project. UNDERSTANDING OF THE PARTIES I . CSC will file an application for amendment of the PUD and the Ordinance, which application will include a summary of the changes it and the Town desire to the Agreement. That application will be processed by the Town in the normal course, pursuant to provisions of the Avon Municipal Code, as amended. 2. At the, same time, the parties will enter into negotiation of an amendment to the Agreement, as it relates to the Project, which negotiations will take into consideration the input of the Planning and Zoning Commission, the Town Council and the public and will be entered into at • the sole and absolute discretion of the Town Council. An amendment to that Agreement will not DMWEST #8150827 0 be entered into unless and until the Town Council is satisfied as to deposit of a $250,000 cash restoration bond, the guarantee of funding sufficient to cover all expenses necessary to complete the Project and the revised terms of a PUD amendment and adopts an ordinance amending the PUD and the Ordinance, including those items listed above in the Recitals. 3. If the foregoing conditions are not met within 90 days or by December 13, 2005, the building permit shall expire. Such 90-day period may be extended in the sole and absolute discretion of the Town-CMkie l to accommodate delays in the normal course of processing the application during the upcoming holiday season. 4. The Town will reinstate the building permit during the 90-day period (as and if extended), subject to the condition that no new construction shall occur under the permit until guaranteed funding to complete the Project is demonstrated and an amendment to the Agreement is agreed to by way of zoning amendment. CSC may complete the foundation work required to satisfy express conditions in the building permit per the last inspection and to backfill.the entire site with soil to a depth sufficient to protect the already placed footings from frost. 5. CSC will reimburse the Town all costs incurred by the Town in association with the above, including but not limited to legal fees charged by the Town Attorney and any charges for financial modeling, the same to be paid on an ongoing basis within 30 days of receipt of an invoice and no less frequently than at the time of filing of the application for amendment and, if the amendment is approved, before resumption of construction and each inspection. TOWN OF ON sy:. ATTEST Y To 1 k APPROVED AS TO F ' • 4 ` C ~riiAV~ ~ Torn Attorney IS DMWEST #6150827 v3 ® CSC LAND LLC, a Colorado limited liability company By: JMJCSC LP, a Texas limited partnership, its manager By: JMJ129 West, LLC, a Texas limited liability company, its gener r By: imoth anon, r; er STATE OF TEXAS ) COUNTY OF DALLAS ) The foregoin instrument was acknowledged before me on thisday of 2005 by Timothy L. Barton, as manager of JMJ129 West, LLC, a Texas mite liability company, as general partner of JMJCSC LP, a Texas limited partnership, as manager of CSC Land LLC, a Colorado limited liability company. [SEAL] 4.(L., No Public, State of Texas via My Commisalon E~inea r~ U JOANN nuuuw S~MtTH Notary Public Seta of Tiraa Juh 18, 20pQ [Signature Page to Memorandum of Understanding] OMWEST #6150927 Q EXHIBIT E ATTACHMENT TO APPLICATION FOR PUD AMENDMENT Gates on Beaver Creek, Lots 1 & 2, Chateau St. Claire Subdivision 1. Extension of the term of the Agreement, period of vested property rights, and outside date for issuance of a certificate of occupancy. 2. Clarification and confirmation of payment Property o e Employee Housing Impact housing needs. in the amount of $100,000 to mitigate the impact of the on employee of th 3. Clarification and confirmation of posting a separate assurance of financial bond, letter of redit ore Property in the amount of $250,000 in the form of a cash bond, other form of assurance acceptable to the Town; which assurance shall be pis ted a of a approval of the PUD amendment by the Town Council and shall remain posted certificate of occupancy. 4. Clarification of significant milestones ble for delays. Excusable delays, without right to extend the completion of such milestones for excus Ys not' limitation: (a) shall not include delays arising from failure of the event of delay tol the permit indefinite extensions; and (c) shall require prompt notice " Town. 5. Clarification of events of "breach" and "default" under the Agreement. Clarification of cure rights and remedies. 6. Clarification of the type of unit mix (timeshare, fractional l ownership and whole ownership) and any need for recalculation of the Timeshare Am Fee. 18) DMWEST #6153956 A EXHIBIT F TOWN OF AVON ® ORDINANCE NO. 04-20 SERIES OF 2004 AN ORDINANCE PROVIDING FOR THE AMENDMENT OF ORDINANCE 98-69 AMENDING THE CHATEAU ST. CLAIRE PUD DEVELOPMENT PLAN AND DEVELOPMENT STANDARDS, LOT I AND 29 CHATEAU ST. CLAIRE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, CSC Land, has filed an application to amend the existing Planned Unit Development ("PUD') and Development Standards for the proposed Chateau St. Claire development; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 1 and 2, Chateau St. Claire Subdivision and ("Agreement'D, 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 November 16, 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 amendment; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendation for approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 04-2.6; and 901428 Page: 1 of 18 12/22/2004 01:44F Teak J 51aontan Egla. CO 289 R 00,00 D 0.00 Ordinance No. 04-20 Chateau St. Claire PUD Amend Page I of 3 V WHEREAS, after notices provided by law, this Council held a public hearing on the day of a R&Z , 2004, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Development Plan amendment; and Is 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 PUD Plan is consistent with 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 Chateau St. Claire PUD Amendment is hereby approved, subject to the following: 1. The PUD amendment is contingent upon a valid Development Agreement between CSC Land, LLC, and the Town of Avon being approved; 2. Eliminate requirement #3 (Ordinance 98-6) for employee housing to be replaced by three fractional ownership units; 3. Payment of a $100,000 fee to the Town of Avon to mitigate Employee Housing requirements prior to the issuance of Temporary Certificate of Occupancy; 4. Payment of a Time-Share Amenity Fee to offset additional costs for transportation and recreation; 5. Failure to obtain a Certificate of Occupancy within two years of the effective date of the Amending PUD Ordinance shall automatically terminate all permits and no further development shall be permitted under existing approvals. 6. Except as otherwise modified by this permit 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. 901428 Poo@: 2 of 13 004 Taak J 6lnronton Eaola, CO ygp R 60 "12/22/2e 0e 1 :441 Ordinance No. 04-20 Chateau St. Claire PUD Amend Page 2 of 3 ,_~R INTRODU CED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 92~ day of f)r&rkTkX- , 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, Zt.,L ? t.4- , 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. ATTEST: Pte, 3 it OF Ap-jR L Eo-iiii, Town Town Tom Avon, Colorado ~ncil 1 Ronald C. Wolfe, Mayor INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the 1Lft"= day of ~t o~,rfrlB, 2004. Town of Avon, Colorado OF A ~y ATTEST: P3 SEAL ORA Ronald C. Wolfe, Mayor ~wn erk 901428 page: 3 of 13 T.ak J onton e..l., CO 289 R 6e x32/220/ e0N 3:44F APPROVED AS TO FORM: • To Attorney Ordinance No. 04-20 Chateau St. Claire PUD Amend Page 3 of 3 6(L>\ DEVELOPMENT AGREEMENT FOR THE GATES ON BEAVER CREEK . (formerly Chateau St. Claire) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of ~WP4\.gt.e. N , 2004 by and between CSC Land, LLC, a Colorado Limited Liability Company (as more specifically defined below, the "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 described as Lots 1 and 2, FINAL PLAT OF. CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat thereof filed June 18, 1987 in Book 729 at Page 742, Eagle County, Colorado the Property"). C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and Development Standards for the Property were approved, subject to the condition that. deed-restricted affordable housing or employee units be included in the development in an amount equal to ten percent of the hotel, residential or timeshare units. D. Building Permit No. C-BP-2002-17, reissued on March 5, 2004 ("the Building Permit'), contained the conditions that 1) a Deed Restriction and Employee Housing Agreement be submitted for approval prior to issuance of a Certificate of Occupancy and 2) a letter of credit in the amount of $60,000 be retained by the Town until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. E. Owner has deposited cash in the amount of $60,000, in lieu of a letter of credit, which deposit has been accepted and will be retained by the Town to be used either for site restoration or as a credit toward the Employee Housing Impact Fee hereinafter provided for. F. The Town is now willing to delete the affordable housing condition from Ordinance No. 98-6, the PUD Development Plan and Development Standards and from the Building Permit, in exchange for Owner's agreement to certain exactions and other conditions, hereinafter set forth. G. The legislature of the State of Colorado adopted Sections 24-68-101, g Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights in order to ensure reasonable 901428 Pape : 4 of 13 12/22/2004 01:441 Task J Simonton Eaels, CO 265 R Be. so D 0.00 0 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 Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. H. 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. 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 • 1I. Association. Timeshare ownership association formed to manage the timeshare ownership project located on the Property. 1.2 Effective Date. The effective date of the Town Council Ordinance amending Ordinance No. 98-6, Series of 1998. 1.3 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.4 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.5 Resubdivision Plat A plat approved by the Town authorizing a resubdivision, condominium resubdivision, planned unit development resubdivision, or time- sharing subdivision consistent with Title 16 of the Municipal Code. 1.6 Certificate of Occupancy. Certification pursuant to the Town's building codes that the premises have been completed and comply with the provisions thereof. "Certificate of Occupancy" includes any temporary certificate of occupancy. Page: 5 of 13 901428 1111111111111111111111111111 • Tuk J [Itill /22/20004 01:44F Ea111 e, .90 0 CO lei R 801 12 00 2 A 1.7 Time-share owner. A person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes. 1.8 Time-share unit. A unit, the title to which is divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes. 1.9 Time-share Amenities Fee. A consensual fee intended to mitigate the impact of a time-share subdivision, including the cost of transportation and of recreational facilities. 1.10 Employee Housing Impact Fee. A consensual fee intended to mitigate the impact of a condominium subdivision and associated facilities on employee housing needs. ARTICLE II WAIVER OF CONDITION The affordable housing condition contained in Ordinance No. 98-6, Series of 1998, and the Building Permit shall be deleted by the Town, by adoption of an amending ordinance, such amending ordinance to be effective upon occurrence of the Effective Date and Owner's compliance with the requirements of Article III hereof. ARTICLE III EXACTIONS The following exactions are intended to provide adequate facilities for the public benefit of the Town: 3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and continuing in perpetuity, the Association is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee in the amount of $140.10 per year per fractional interest (defined as a 1/10th (five- week) undivided interest or timespan estate in a time-share unit), or the equivalent of $28.02 per year per weekly fractional interest if conveyed in some fractional interest other than a 1/10th interest. The Owner is exempt from the obligation for the Timeshare Amenities Fee until the first-time sale of a fractional interest. 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 assignment of this Agreement to the Association pursuant to Section 6.9 hereof, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fees. ll~l~~uY~~'IuI I~~III209 u IIp:I~ 90048,.+ \V\-e The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare fractional interests per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the $140.10 fee (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, 2006, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage change from the prior year 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 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 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 demand of the amount due and deliver or mail the same to the office of the Association. The amount properly determined to be owing shall bear interest 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 Association such written demand will be delivered to the Owner. 3.2 Assianment of Association Assessments and Lien., Owner, on behalf of the Association assigns and grants a continuing . security interest in the Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Timeshare Amenities Fee. Upon default of the Association in collection and/or remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 13 Employee Housing Impact Fee. Owner shall pay to the Town, on or before issuance of a Certificate of Occupancy, the sum of $40,000, which, together with the $60,000 already deposited with the Town, shall be accepted by the 4 Too ~~Il~lllw~l~Ul~l~„~II~RI~»90 e:'.ea8i:.« Town in full satisfaction of the Employee Housing Impact Fee and any other exaction intended to mitigate the impact of the Property and the timeshare ownership project on employee housing needs, excluding the Timeshare Amenities Fee. ARTICLE IV TERM OF AGREEMENT 4.1 Term of Agreement. 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, unless sooner terminated pursuant to Article V hereof, until the second anniversary of the Effective Date. If a Certificate of Occupancy has not been issued by that date, this Agreement shall terminate, the Town shall be entitled to retain the cash deposit in the amount of $60,000, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. If a Certificate of Occupancy has been issued by that date, this Agreement. shall continue in effect until amended or terminated by mutual agreement of the parties. 4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall maintain an active building permit pursuant to the current provisions of Title 15, Municipal Code, on a schedule that will result in issuance of a Certificate of Occupancy in accordance with the above provisions. Failure to maintain the permit and schedule will constitute a default under the provisions of this Agreement, causing its termination and the same consequences as are contained in Section 4.1. ARTICLE V DEFAULTS AND REMEDIES 5.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 5.2 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. 5.3 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 6.8, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured 901428 Page: 3 or 13 5 Task J Simonton Eagle, CO 299 R Ga.ee ~~22DZe ee 1:44F 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 peri od to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 5.4 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 enforcement of its rights granted by Section 3.2 hereof, including foreclosure of its lien, and/or an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover all amounts owing hereunder, including any damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. (b) In the event of default by the Owner prior to issuance of a Certificate of Occupancy, which default is not cured as described above, this Agreement shall terminate, the Town shall be entitled to retain the cash deposit in the amount of $60,000, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. 5.5 Default Under Article IV. Any default under Article IV shall not be subject to the cure provisions hereinabove contained and shall primarily be remedied as set forth in said Article. ARTICLE VI MISCELLANEOUS 6.1 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Municipal Code. 6.2 No Joint Venture or Partnershiy. 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. 6.3 Expenses. Owner shall reimburse to the Town the costs and expenses, including attorney's fees associated with the preparation of, implementation of and enforcement of the terms of this Agreement. 901428 P896: 0 of 12 12/22/2004 01:44F Took J Simonton Eagle, CC 490 R 00,00 D 0.00 6 A5 6.4 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. 6.5 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare of the Town. 6.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 6.7 Further Assurances. Each party shall execute and deliver to the other all such other further instructions and documents as may be reasonably necessary to cant' 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. 6.8 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: CSC Land, LLC c/o Tim Barton 70 Benchmark Road, Suite 102 P.O. Box 5570 , 901428 Page: 10 of 13 12/22/2004 01:441 7 Took J Simonton Eagle, CO 289 R so. of D 0.00 I Avon, CO 81620 With Notice to:The Law Offices of Amber L. Severtson, P.C. Attention: Amber L. Severtson 16901 North Dallas Parkway, Suite 103 Addison, Texas 75001 6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that subsequently acquires a fee simple interest of record in any portion of the Property as a transferee, grantee, assignee or successor of CSC Land, LLC. Notwithstanding the foregoing, the term "Owner" will not include (1) purchasers of condominium units, timeshare units, fractional interests or any other interest therein, except and to the extent that CSC Land, LLC or any of its assigns separately acquires any such unit or units or any interest therein (including any.bulk purchase thereof) or (2) holders of a security interest in the Property or a portion thereof, except and to the extent that a holder of a security interest acquires any such unit or units or any interest therein through foreclosure. Following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, the Owner shall assign all remaining obligations hereunder to the Association (which shall then be deemed to be the "Owner"). 6.10 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, time-share owners, 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 transfer providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall relieve Owner of any further obligations under this Agreement with respect to the matter so assumed. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. The Town approves of the assignment to and assumption by the Association of all of Owner's obligations under this Agreement following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, and the Owner shall be relieved of all liabilities and obligations hereunder upon recordation of such assignment and assumption. 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. 901428 Page: 11 of 13 12/22/2004 01:44F o Took J Slnwntan Eavle, CC 269 R 66.00 0 0.00 A 6.11 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. 6.12 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 el-ffective 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. 6.13 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or give to, any legal person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the parties will be for the sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere with the agreements of the parties with third parties. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above to take effect as of the Effective Date. A ATTEST cwt To Jerk APPROVED AS TO FORM: f. To Attorney 9 TOWN OF AVON, a municipal corporation of the State of Colorado BY: Mayor ~IYIW,II~IIOW~IIOdIM1I2N1l~N141"9 ap~«~e~'w a~ i EXHIBIT G AMENDED AND RESTATED ® DEVELOPMENT AGREEMENT FOR THE GATES ON BEAVER CREEK (formerly Chateau St. Claire) THIS DEVELOPMENT AGREEMENT (this "Agreement") was originally made and entered into as of the Effective Date (defined below) by and between CSC Land, LLC, a Colorado Limited Liability Company (as more specifically defined below, the "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and is hereby amended and restated in its entirety by the Owner and the Town as of , 2005, to remain effective as of the Effective Date. 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 described as Lots 1 and 2, FINAL PLAT OF CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat thereof filed June 18, 1987 in Book 729 at Page 742, Eagle County, Colorado the Property"). C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and Development Standards for the Property were approved, subject to the condition that deed-restricted affordable housing or employee units be included in the development in an amount equal to ten percent of the hotel, residential or timeshare units. D. Building Permit No. C-BP-2002-17, reissued on March 5, 2004 ("the Building Permit"), contained the conditions that 1) a Deed Restriction and Employee Housing Agreement be submitted for approval prior to issuance of a Certificate of Occupancy and 2) a letter of credit in the amount of $60,000 be retained by the Town until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. F. Owner deposited cash in the amount of $60,000, in lieu of a letter of credit, which, in addition to a prior deposit of $40,000, such total $100,000 deposit has been accepted and will be retained by the Town to be used as a credit toward the Employee Housing Impact Fee hereinafter provided for. G. By Ordinance No. 04-20, Series of 2004, the Town deleted the affordable housing condition from Ordinance No. 98-6, the PUD Development Plan and Development Standards and from the Building Permit, in exchange for Owner's agreement to certain exactions and other conditions, hereinafter set • forth. DMWEST #6314188 v4.2 H. The Owner has deposited cash [or provided an acceptable letter of credit] in i the amount of $250,000 for site restoration, which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. 1. The Town is willing to extend the term of this Agreement, the period of Vesting Property Rights and the outside date for completion of the Project. The Town is further willing to accept an amended schedule of construction and active building permits. G. The legislature of the State of Colorado adopted Sections 24-68-101, et se 4. 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 Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. H. 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. 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 1.1 Association. Timeshare ownership association formed to manage the . timeshare ownership project located on the Property. 1.2 Effective Date. 1.3 Municipal Code. The Town's Municipal Code, as in effect from time to time. • DMWEST #6314188 v~2 2 01, ® 1_4 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.5 Resubdivision Plat. A plat approved by the Town authorizing a resubdivision, condominium resubdivision, planned unit development resubdivision, or time- sharing subdivision consistent with Title 16 of the Municipal Code. 1_6 Certificate of Occupancy. Certification pursuant to the Town's building codes that the premises have been completed and comply with the provisions thereof. "Certificate of Occupancy" includes any temporary certificate of occupancy. 1_7 Time-share owner. A person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes. 1.8 Time-share unit. A unit, the title to which is divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes. 1.9 Time-share Amenities Fee A consensual fee intended to mitigate the impact of a time-share subdivision, including the cost of transportation and of recreational facilities. ® 1.10 Employee Housing_Iml - 2act Fee A consensual fee intended to mitigate the impact of a condominium subdivision and associated facilities on employee housing needs. ARTICLE II WAIVER OF CONDITIONS The affordable housing condition contained in Ordinance No. 98-6, Series of 1998, and the Building Permit is deleted by the Town as of the Effective Date. The condition of maintaining an active building permit contained in Ordinance No. 04-20 in accordance with the original Development Agreement (and construction schedule incorporated therein) shall be waived, amended and restated by the Town, by adoption of an amending ordinance authorizing the execution of this amended and restated Agreement and Owner's compliance with the requirement of Section 3.4 below. ARTICLE III EXACTIONS The following exactions are intended to provide adequate facilities for the public benefit of the Town: • DMWEST #6314188 v4.2 3 3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and • continuing in perpetuity, the Association is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee in the amount of $140.10 per year per fractional interest (defined as a 1/10`h (five- week) undivided interest or timespan estate in a time-share unit), or the equivalent of $28.02 per year per weekly fractional interest if conveyed in some fractional interest other than a 1/10`h interest. The Owner is exempt from the obligation for the Timeshare Amenities Fee until the first-time sale of a fractional interest. 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 assignment of this Agreement to the Association pursuant to Section 6.9 hereof, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fees. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare fractional interests per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the $140.10 fee (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, 2006, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage change from the prior year 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 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 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 demand of the amount due and deliver or mail the same to the office of the Association. The amount properly determined to be owing shall bear interest from the due date of the remittance DMWEST #6314188 V42 at the rate of one and one-half percent per month until paid. Prior to ® formation of the Association such written demand will be delivered to the Owner. • 3.2 Assignment of Association Assessments and Lien. Owner, on behalf of the Association assigns and grants a continuing security interest in the Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Timeshare Amenities Fee. Upon default of the Association in collection and/or remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 3.3 Employee Housing_ Impact Fee. Owner has paid to the Town the sum of $40,000 which, together with the $60,000 already deposited with the Town, is accepted by the Town in full satisfaction of the Employee Housing Impact Fee and any other exaction intended to mitigate the impact of the Property and the timeshare ownership project on employee housing needs, excluding the Timeshare Amenities Fee. 3.4 Restoration Bond. Owner shall deposit with the Town cash [or provide the Town with an acceptable letter of credit]_no later than three (3) banking days p after adoption of an amending ordinance a„rhnr;~,~ rhP PYP~„+•on of this amended and restated Agreement (subject to the condition of receipt of such ~Z~ I 3 cash or letter of credit), in the amount of $250,000 for site restoration ("Restoration Bond"), which deposit shall be held [or such letter of credit shall be remain posted] until such time as the site is restored to the Town's 2- / I ~O satisfaction or a Certificate of Occupancy is issued. )Fvie ARTICLE IV TERM OF AGREEMENT 4.1 r: Term of Agreement. 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, unless sooner terminated pursuant to Article V hereof, until the fourth anniversary of the Effective Date. If a Certificate of Occupancy has not been issued by that date, this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. The Employee Housing Impact Fee shall remain fully satisfied and the Owner (including any successor or assign) shall have no right to seek reimbursement or repayment therefor. If a Certificate of Occupancy has been issued by that date, the Restoration Bond shall be released to the Owner and this Agreement shall DMWEST #6314188 v-2 5 ~i . i continue in effect until amended or terminated by mutual agreement of the parties. 0 4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall maintain an active building permit pursuant to the current provisions of Title 15, Municipal Code, on the schedule attached hereto as Exhibit A, subject to excusable delays as contained in Section 4.3 provided that in no event shall excusable delays permit the schedule to be extended past the fourth anniversary of the Effective Date. 4.3 Excusable Delays. Should the Owner be delayed, hindered or prevented from proceeding in accordance with the schedule attached hereto as Exhibit A by reason of strikes, inability to procure labor or materials, failure of power, changes to governmental regulations (other than changes to Tow Municipal Code or related regulations) occurring from and after the date first stated above, terrorism, severe weather, or other reasons of like nature which are beyond the reasonable control of the Seller (except for inability to pay any monetary sum due to the Town or any third party. which shall not be excused hereunder) (each an "Excusable Delay"), then the scheduled deadlines for each milestone event shown Exhibit A shall be extended for a period equivalent to the period of such Excusable Delay. In the event the Owner believes an event of Excusable Delay has occurred, Owner, shall promptly provide the Town Building Department of Community Development (with a copy to the Town Attorney) with written notice of such event, expressly describing the Excusable Delay event and an estimate of the expected duration of such Excusable Delay. Owner shall thereafter use all commercially reasonable efforts to minimize the impact and duration of such Excusable Delay. Excusable Delays may permit the milestone dates on Exhibit A to be extended, but in no event shall Excusable Delays permit the schedule to be extended past the fourth anniversary of the Effective Date, Excusable Delays may not be utilized to claim an extension of the term of this Agreement or the term of the vested property rights established under this Agreement. ARTICLE V DEFAULTS AND REMEDIES 5.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 5.2 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. E DMWEST #6314188 v~2 6 5.3 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 6.8, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non-defaulting party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 5.4 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 enforcement of its rights granted by Section 3.2 hereof, including foreclosure of its lien, and/or an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover all amounts owing hereunder, including any damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. (b) If a Certificate of Occupancy is not issued on or before fourth anniversary of the Effective Date, this Agreement shall terminate, the Town shall be entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the Town's satisfaction, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. 5.5 Default Under Article IV. Any default under Article IV shall not be subject to the cure provisions hereinabove contained and shall primarily be remedied as set forth in said Article. ARTICLE VI MISCELLANEOUS 6.1 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Municipal Code. 6.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. • DMWEST #6314188 v42 7 6.3 menses. Owner shall reimburse to the Town the costs and expenses, including attorney's fees associated with the preparation of, implementation of • and enforcement of the terms of this Agreement. 6.4 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. 6.5 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare of the Town. 6.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 6.7 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. 6.8 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 • DMWEST #6314188 v-42 V 8 , 16 If to Owner: CSC Land, LLC c/o Tim Barton One Hickory Centre 1800 Valley View Lane Dallas, Texas 75234 6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that subsequently acquires a fee simple interest of record in any portion of the Property as a transferee, grantee, assignee or successor of -CSC Land, LLC. Notwithstanding the foregoing, the term "Owner" will not include (1) purchasers of condominium units, timeshare units, fractional interests or any other interest therein, except and to the extent that CSC Land, LLC or any of its assigns separately acquires any such unit or units or any interest therein (including any bulk purchase thereof) or (2) holders of a security interest in the Property or a portion thereof, except and to the extent that a holder of a security interest acquires any such unit or units or any interest therein through foreclosure. Following the Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy, and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and payable, the Owner shall assign all remaining obligations hereunder to the Association (which shall then be deemed to be the "Owner"). 6.10 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, time-share owners, 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 transfer providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall relieve Owner of any further obligations under this Agreement with respect to the matter so assumed. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. The Town approves of the assignment to and assumption by the Association of all of Owner's obligations under this Agreement following the Effective Date, upon formation of the Association, issuance of a Certificate of • Occupancy, and payment of the Employee Housing Fee and all Timeshare DMWEST #6314188 v42 9 Amenities Fees then due and payable, and the Owner shall be relieved of all liabilities and obligations hereunder upon recordation of such assignment and assumption. 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. 6.11 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. . 6.12 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 effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 6.13 No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or give to, any legal person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the parties will be for the sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere with the agreements of the parties with third parties. 6.14 Prior Recorded Document, non recording in the real property record Eagle County, Colorado, this Agreement is intended to supersede-, restate and replace in its entirety the document recorded at Receplion No. 901428 on December 22, 2004, IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above to take effect as of the Effective Date. TOWN OF AVON, a municipal corporation of the State of Colorado BY: Mayor ATTEST Town Clerk 0 DMWEST #6314188 v~2 10 ( q 0 APPROVED AS TO FORM: Town Attorney • • DMWEST #6314188 v42 11 STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) Subscribed before me this day of , 2994;M by Ron Wolfe as Mayor and Patty McKenny as Town Clerk of Town of Avon, a municipal corporation of the State of Colorado. My Commission Expires: Notary Public • l.._J DMWEST #6314188 42 12 ~J CSC LAND, LLC, a Colorado limited liability company By:JMJCSC LP, a Texas limited partnership, its Manager By: JMJ 129 West LLC, a Texas limited liability company, its General Partner • STATE OF TEXAS ) )ss. COUNTY OF HARRIS ) By: Timothy L. Barton, Manager Subscribed before me this day of , 2005, by Timothy L. Barton, as Manager of JMJ129 West LLC, a Texas limited liability company, as General Partner of JMJCSC LP, a Texas limited partnership, as Manager of CSC Land, LLC, a Colorado limited liability company. My Commission Expires: Notary Public • DMWEST #6314188 V42 13 r Exhibit A to Amended and Restated Development Agreement Construction Schedule Milestone Event Scheduled Deadline CDOT Aunroved Access Permit March 30 (including any required easements) Verification of Structural Steel Order March 30, 2006 (deposit and shop drawings) Submittal of Final Design Application Apri130, 2006 (including on-site mock up and remaining design issues listed in Avon letters dated Dec. 8, 2004 and .Tune 22= Complete Steel Erection August 16, 2006 Completion of Roofing December 8, 2006 Complete Exterior Stucco Installation April 6, 2007 Complete Hardware Installation December 14, 2007 Call for Town Final Inspection February 29, 2008 DMWEST #6314188 v4-2 14 \P • • LJ t1 EXHIBIT H 0 MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD SEPTEMBER 13, 2005 A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road, Avon, Colorado in the Council Chambers. Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council members present were Debbie Buckley, Kristi Ferraro, Mac McDevitt, Amy Phillips, Brian Sipes and Tamra Underwood. Also present were Town Manager Larry Brooks, Town Attorney John Dunn, Town Clerk Patty McKenny, Assistant Town Manager Jacquie Halburnt, Finance Director Scott Wright, Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works / Transit Director Bob Reed, and Community Development Director Tambi Katieb, as well as members of the press and public. Approval of Agenda Mayor Wolfe asked that the following items be added to Unfinished Business (from the work session agenda): update on the Eagle River Enhancement Project and River In-channel Diversions. Disclosure of Potential of Conflict of Interest Town Attorney John Dunn noted that it was not necessary to discuss this topic. Citizen and Community Input Presenters Jeanne McQueeney and Sharon Thompson addressed the Council with regard to M the Eagle County Early Childhood Initiative that was sponsored by seed money from Eagle County. They noted the mission of the initiative and a meeting taking place on 9/23/05 to provide another update to the community and that an action plan would be reviewed next spring. John Evans, representative from East West Partners, submitted a letter addressing their comments related to Ordinance No. 05-11, amending Title 17 of Avon's Code. Their main concern is that no properties are likely to be built that would fit the proposed definition of an "accommodation unit", (in terms of the square footage) and the exclusion of the "cook top", yet allowing for a "hot plate". He expressed several reasons why they would prefer the square footage of a unit to be closer to 6.00 sq. ft. as related to the market demanding larger units, and the difficulty to obtain financing for projects that include the smaller units. Ordinances Community Development Director Tambi Katieb presented Ordinance No. 05-11, Series Of 2005, on first reading, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments. He reviewed the memo included in council's packet and noted that in their staff review, these amendments to the zoning code were drafted to try to address outdated or unclear zoning definitions. He explained how these amendments would impact density calculations. He presented the recommendations made by the Planning & Zoning Commission, i.e. reduction of the maximum size of the accommodation unit to 400 sq. ft from 600 sq. ft, and the exclusion of the use of a cook top from efficiency kitchen. Town Attorney John Dunn noted that these definitions would only be used in Title 17 related to zoning. Mayor Wolfe opened the public hearing. No further comments were made from the public other than above comment made during citizen input from John Evans. The public hearing was closed. Further council deliberation took place on the density calculation and how it impacts zoning, the use of a "cook top", definition of "kitchen and efficiency kitchen", the allowable s.. r square footage and water rights calculations based on the density calculations; several scenarios and the impacts of these definitions were outlined and discussed. Mayor Wolfe moved to approve on first reading Ordinance No. 05-11, Series Of 2005, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments with the following revisions: ✓ Specifically allow for 600 sq. ft. in the definition of "accommodation unit", ✓ Definition of "efficiency kitchen" means a portion of a room, that may contain a sink, refrigerator, dishwasher, microwave oven, cook top, wet bar or similar facility but expressly not a stove, or oven, within an accommodation unit or dwelling. Stub outs for natural gas, propane or 200V electric hook ups are not allowed. Councilor Buckley seconded the motion and it passed unanimously with a roll call vote. Resolutions Town Engineer Norm Wood presented Resolution No. 05-33, Series of 2005, A Resolution Approving and Accepting the Traer Creek Metropolitan District Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1 and Establishing Warranty Period for District Portion of the Public Improvements, Village at Avon, Filing 1, Acceptance of Improvements and Beginning of Warranty Period. He noted that Traer Creek Metro District has submitted all required documentation for approval and acceptance of the District Improvements required by the SIA for the Village at Avon, Filing 1. The improvements consisted of all streets, roads, bridges, walkways, drainage facilities and utilities required to access & serve Filing 1. It was noted that this resolution approves and accepts the District improvements and establishes the warranty period in conformance with the SIA as well as allows the release of collateral required during construction with any warranty work on the District's improvements secured by an existing Maintenance Bond dated July 20, .2004, issued to TCMD in the amount of $885,000 in accordance with the SIA. Discussion ensued about the different types of bonds / escrows held on this project. Mayor Pro Tem Underwood continued to have difficulty accepting the engineer's opinion of project conformity; a point that has been discussed at earlier meetings, again it was noted that the language is acceptable within the engineering profession. Councilor Buckley moved to approve Resolution No. 05-33, Series of 2005, A Resolution Approving and Accepting the Traer Creek Metropolitan District Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1 and Establishing Warranty Period for District Portion of the Public Improvements, Village at Avon, Filing 1, Acceptance of Improvements and Beginning of Warranty Period. Councilor Phillips seconded the motion and it passed unanimously with a roll call vote. Town Engineer Norm Wood presented Resolution No. 05-34, Series Of 2005, A Resolution Approving the Amended Final Plat for Lot 15, Block 4, A Resubdivision of Lots 13, 14, 15, Wildridge, Town of Avon, Eagle County, Colorado, 5684 Wildridge Road East. He noted that this amended plat was a minor request in order to vacate a utility and drainage easement that extends through the center of the subject property. Councilor Sipes moved to approve Resolution Approving the Amended Final Plat for Lot 15, Block 4, A Resubdivision of Lots 13, 14, 15, Wildridge, Town of Avon, Eagle County, Colorado. Councilor McDevitt seconded the motion and it passed unanimously with a roll call vote. New Business Transit Director Bob Reed presented an Intergovernmental Agreement with the Town of Minturn for Vehicle Maintenance. He noted that this agreement runs through the end of 2005 and will need to be renewed at this time, and with a renewal may include a new shop rate. Councilor Regular Council Meeting Page 2 of 5 September 13, 2005 • • Buckley moved to approve this agreement with the Town of Minturn. It was noted that this motion requires a 2/3 vote of the Council for approval. Councilor Sipes seconded the.motion and it passed unanimously with a roll call vote. Other Business Community Development Director Tambi Katieb presented the request from two Planning & Zoning members, Jim Buckner and Christy D'Agostino who are moving away from Avon, to continue their tenure on the commission. Discussion ensued about the pros and cons of releasing these two members or not based on the ability to recruit new people quickly, and if new people were able to become quickly acquainted with all the pending projects before the P&Z Commission. A review of the recently adopted criteria was made and some members suggested waiting to replace the members until next May. Councilor Buckley moved to immediately recruit two new members to the P&Z Commission with the appropriate skills that live within the Town limits, and only extend the current members until that can be done, with registered electors has the first priority. Councilor McDevitt seconded the motion and it failed with a three to four vote (Buckley, McDevitt, Phillips yea; Ferraro, Sipes, Underwood, Wolfe nay). Councilor Ferraro moved to permit Jim Buckner & Christy D'Agostino to stay on P&Z Commission until Council interviewed new candidates in May 2006, and encouraged them to apply at that time. Councilor Sipes seconded the motion and it passed with a four to two vote (Buckley, McDevitt nay). Mayor Wolfe asked that Community Development Director Katieb relay their message to the two members, thanking them for the participation and skills they bring to the commission. Unfinished Business • Town Attorney John Dunn presented the topic for discussion related to the Gates *at Beaver Creek. It was noted that CSC Land, LLC, developer of the Gates project, was in default of the Development Agreement entered into in December 2004, for failure to maintain an active building permit on a schedule that would result in issuance of a certificate of occupancy within two years of the "Effective Date" of the agreement, or two years after the effective date of Ordinance No. 04.20, approving the agreement, finally adopted on 12/14/04. He noted that at the 8/23/05 Council meeting, Tim Barton, CSC, Land, LLC, asked Council to direct staff to reissue the foundation wall inspection report, confirming that the building permit has not been cancelled and the Development Agreement was not in default. Council directed staff to then schedule the topic for consideration for this meeting, with a request to the developer to provide financial information as to the present condition of CSC and submit a new construction schedule that would result in issuance of a certificate of occupancy within the time period required by the Development Agreement. The financial information was reviewed at the Executive Session held earlier that day; a new construction schedule was not submitted, but rather the attorney requested a "reasonable" extension to the Development Agreement "to reflect excusable delays and adjustments to the project construction schedule". Dunn noted that an extension would require an amendment to the Development Agreement; such an amendment would have to be.a part of an amendment to the existing PUD approval. CSC Land, LLC representatives at the meeting included once again Tim Barton, and representing attorney, Christopher Payne with Ballard Spahr Andrews & Ingersoll, LLP as well as a number of investors of the project, including primary investor Pieter Van Der Hammen. Christopher Payne addressed the Council reiterating the request on behalf of CSC Land, LLC and noting the following three assurances as follows: 1.. Financial commitment to proceed with construction commitment • 2. Offer to provide additional restoration assurances, $250K cash bond, letter of credit 3. Proceeding with a proposal to amend the development agreement with the construction schedule, through a PUD amendment Regular Council Meeting Page 3 of 5 September 13, 2005 ~Q ~i Discussion ensued about they type of assurances the Council would require prior to reinstating • the building permit. A dialogue took place on how the timing of the activities needs to roll out and interact with each other, approval of funding, application for a PUD amendment, etc. Mayor Wolfe suggested that continued discussion evolve into some business points of what council wants to accomplish, such as the following: ✓ Plan to reinstate the building permit for "x" days contingent on 2) & 3) ✓ Demonstrate binding financing for 100% of the financing, and contingent on 3) ✓ Submit a revised / amended PUD & Development agreement with the following elements, new completion date, clarification of units to built and applicable amenities fees involving financial analysis, clarification o the $100K affordable housing impact, pay for any additional legal & financial costs related to those revisions, post an additional $250K restoration bond, and require construction schedule that outlines deadlines for certain milestones for construction. ✓ Outline realistic communication strategies between the two parties At this time Council Sipes called to question shall we entertain an extension of the Gates project?" With a polling of the Council by Mayor Wolfe, four members stated yes (Buckley, Phillips, Sipes, McDevitt), two members stated no (Ferraro, Underwood). Further discussion ensued on the suggested business points above and how the PUD rolls out.- It was agreed that some of the above items be outlined in a Memo of Understanding ("MOU"), specifically identifying the business points for consideration between the two parties to be added to the next Council meeting agenda. Councilor Sipes moved to extend the building permit for the project, otherwise known as the Gates at Beaver Creek, for 90 days, during that period no construction is allowed to commence until several business points, as discussed earlier, are outlined and these business points will • be outlined in a memo of understanding ("MOU") to be discussed and agreed to at the next regularly scheduled council meeting. Should that "MOU" not get ratified or any of those points outlined in it, not get ratified, the building permit will again expire immediately. Councilor Buckley seconded the motion. Also included in the motion, per the Town Attorney, is that CSC Land, LLC be current with respect to reimbursement to the Town of costs & expenses, including attorney's fees associated with the ongoing implementation of this agreement without regard to the outcome of what is going on. Councilor Sipes agreed to include this condition in the motion; Councilor Buckley seconded. A roll call vote was taken and the motion passed with a five to one vote (Underwood nay). Unfinished Business Mayor Wolfe presented an update to the Eagle River Enhancement Project, status of applying for a river in-channel diversion. The recommendation from the group of water attorneys who met was to work in a consolidated fashion with Eagle County. Discussion ensued about the timing of filing an application (this year or waiting to see court results on other applications), how this type of endeavor would be paid for and how much (estimated at $300K), and who would participate in the application process. It was also noted that the majority of the design work has been completed on the Bob the Bridge portion of the water park. Suggestions were made to join two groups committed to water issues, i.e. NWCCOG's water quality group as well as the Colorado Water Education Foundation. In summary, there was consensus on the following items to inform the Eagle County Commissioner's of Avon's action as follows: Complete engineering with Riverrestoration.org ✓ Budget monies to file RICD, either alone or with the County, if the County agrees to move forward with a RICD as well, unless there is a new viewpoint the Colorado Water . Conservation Board. ✓ Request that County's engineering selection be contingent upon that engineering group Regular Council Meeting Page 4 of 5 v~ September 13, 2005 ® agreeing to incorporate Avon's engineering work, and not to reject the work that has already been completed ✓ And finally., confirmation from the Town's Water Attorney to move forward with the RICD application this year or not. Town Manager Report Town Manager Larry Brooks presented his memo addressing the Buffalo Ridge Affordable Housing Project. After reviewing the documents and all information related to this topic, and for the record he recommended that the Town do nothing to intervene in this situation. He noted that the housing developer was currently working on options to resolve the cash flow problems. Some discussion ensued about the financials included in the packet and the allocations used between the non-profit units vs the market units. Jamie Fitzpatrick, Corum Real Estate Group, answered questions related ad'ustment of $15K would be made foeBRAHC adjusted based on the prorata share of the units, so an 1 Town Attorney Report Town Attorney John Dunn noted that Jackson & Company had filed suit against the Town for the recently adopted ordinance related to short term rentals in Wildridge. A hearing date had not yet been set. Consent Agenda Mayor Wolfe asked for a motion on the Consent Agenda below. Councilor Sipes moved to adopt the consent agenda; Councilor Ferraro seconded the motion and it passed unanimously. a. Minutes from August 23, 2005 Regular Council Meeting 8 Liquor Board Meeting b. Renewal of 3.2% Beer Retail License (Off premises) for Suncor Energy Sales, Inc. d/b/a Phillips 66, 0046 Nottingham Road c. Renewal of 3.2% Beer Retail License (Off premises) for City Market #26, 0260 Beaver Creek Place d. Renewal of 3.2% Beer Retail License (On-Premise) for Pizza Hut of Avon, 40 Nottingham Road There being no further business to come before the Council, the meeting adjourned at 8:45 PM. RE"TFULL ED: Pat APPROVED: Debbie Buckley Kristi Ferraro Mac McDevitt Amy Phillips Brian Sipes Tamra Underwood Ron Wolfe Page 5 of 5 V\ Regular Council Meeting September 13, 2005 as MINUTES OF THE SPECIAL (REGULAR) MEETING OF THE AVON TOWN COUNCIL • HELD SEPTEMBER 26, 2005 A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road, Avon, Colorado in the Council Chambers. Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council members present were Kristi Ferraro, Mac McDevitt, Amy Phillips, Brian Sipes and Tamra Underwood. Debbie Buckley was absent. Also present were Town Manager Larry Brooks, Town Attorney John Dunn, Town Clerk Patty McKenny, Assistant Town Manager Jacquie Halburnt, Finance Director Scott Wright, Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works / Transit Director Bob Reed, and Community Development Director Tambi Katieb, as well as members of the press and public. Approval of Agenda Mayor Wolfe asked that the request for funding from the Vail Valley Foundation be moved to citizen input and the items related to Roundabout 4 on the consent calendar be moved to "unfinished business". Disclosure of Potential of Conflict of Interest .Town Attorney John Dunn noted that it was. not necessary to discuss this topic. Citizen and Community Input Ceil Folz, VVF, presented their request for funding for both the Birds of Prey, World Cup event to be held the first week of December and the STARS program sponsored by the Vilar Center. Ordinances Community Development Director Tambi Katieb presented Ordinance No. 05-11, Series Of 2005, on second reading, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments. He reviewed the memo included in council's packet and noted that in their staff review, these amendments to the zoning code were drafted to try to. address outdated or unclear zoning definitions. A few comments were made and discussed. related to the definition of accommodation unit & dwelling unit. Mayor Wolfe opened the public hearing. No further comments were made from the public. The public hearing was closed. Councilor Ferraro moved to approve on second reading Ordinance No. 05-11, Series Of 2005, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments with the following revisions: ✓ Section 2 "Accommodation Unit" - An accommodation unit may include only an efficiency kitchen. Each accommodation unit shall be counted as one-third (1/3) of a dwelling unit for purposes of calculation allowable units per acre accept as set forth in Section 17.08.270. Councilor Sipes seconded the motion and it passed unanimously with a roll call vote (Buckley absent). Resolutions Jacquie Halburnt, Asst. Town Manager, presented Resolution No. 05-35, Series of 2005, A Resolution supporting the Eagle County November ballot issue prohibiting smoking in all enclosed public places, including bars and restaurants. She noted that this legislation supports ® Eagle County's November ballot issue regarding smoking in public places; and that if Eagle County's ballot issue passes, and the majority vote in the Avon precinct is in favor of the ban, Avon will enact similar legislation. Discussion ensued about whether or not to encourage the Avon voter to vote in support of the measure. Mayor Pro Tern Underwood moved to approve Resolution No. 05-35, Series of 2005, A Resolution supporting the Eagle County November ballot issue prohibiting smoking in all enclosed public places, including bars and restaurants with the following change: 1. Bottom paragraph, first page - sentence ends with "qualified electors to vote on the measure. Councilor Phillips seconded the motion and it passed unanimously with a roll call vote (Buckley absent). Police Chief Jeff Layman presented Resolution No. 05-36, Series of 2005, Resolution to Designate the National Incident Management System (NIMS) as the basis for all Incident Management in the Town of Avon. Allows Town of Avon and other public agencies to communicate effectively in the event of a disaster, a common doctrine to policies, procedures, and terminology. He noted that other jurisdictions have adopted the plan and he made a brief review of what happens in the event of a disaster. Councilor Ferraro moved to approve Resolution No. 05-36, Series of 2005, Resolution to Designate the National Incident Management System (NIMS) as the basis for all Incident Management in the Town of Avon. Councilor Sipes seconded the motion and it passed unanimously with a roll call vote (Buckley absent). Unfinished Business Town Attorney John Dunn presented the Memo of Understanding ("MOU") between the Town and CSC Land, LLC. He reviewed the document, noting some of the history and what the parties agreed to and that the PUD application has not yet been submitted. Discussion ensued on several topics related to the following: ✓ At what time the $250K Bond would be required to be paid to the Town, now or later ✓ Exactly what happens to the site at this time ✓ What does the $100K apply to, the affordable housing element or site restoration ✓ The fee related to the PUD application covering staff review time ✓ Whether or not to include the winterization site work specifications in the "MOU" There was some discussion about asking the Town Attorney to make the changes and then forward to Council via email. However, after a voice vote and some further staff comments, it was decided a roll call vote would be in order at this time. Councilor Sipes moved to approve the Memorandum of Understanding between the Town of Avon and CSC Land, LLC with the following amendments to be made to the "Understanding of Parties" section: 1. Paragraph 2, include "agreement entered into at the sole and absolute discretion of the Town Council", 2. Paragraph 2, include "what critical items need to be satisfied, i.e. the sureties in place, guarantee of funding, modified PUD has been approved by the Town Council", 3. Paragraph 4, include, per the last inspection and backfill the entire site with soil to protect the footings from winter conditions", 4. Paragraph 5, include "make payment to the town attorney within 30 days of invoicing", Mayor Wolfe seconded the motion and it passed with a three to two vote (McDevitt, Phillips, • Sipes yea; Ferraro, Underwood nay; Buckley absent). Regular Council Meeting Page 2 of 4 D` September 26, 2005 Tambi Katieb, Community Development Director, presented a synopsis of the Main Street • Public Improvements Project - Financial & Market Overview "Check In". Design Workshop representatives present were Don Ensign and Chris Kiley. Council comments made addressed some of the following topics: ✓ Consultants should approach council as "venture capitalists", or as the developer, ✓ What does the critical mass look like? ✓ Identify the assumptions and themes of the project, and explain why, ✓ What is the retail potential? ✓ Draft a pro forma of the project Don Ensign provided overview comments related to the planning process, and Chris Kiley reviewed the content areas of the business plan. Further discussion ensued and Design Workshop was asked to return to the next meeting with a "scope of work" focused on understanding the retail, critical mass and composition of the development, before continuing any further work on the design of the project. New Business 1\ Norm Wood presented a Proposal for Redesign of Roundabout 4 from Ourston Roundabout Engineering and a Mapping Proposal from Inter-Mountain Engineering, Ltd. Mayor Pro Tern Underwood agreed that an update on the mapping is in order, but would request that further research be conducted on maximizing pedestrian capacity and connectivity throughout this area. Underwood indicated that designing this area is of the utmost importance and vital to Avon's future. Council indicated that they would prefer not to move forward on either item, and asked staff to re-address this topic, taking into consideration people / pedestrians as more of a focus. It was noted that the Comprehensive Plan includes completing this type of study as a priority; it was indicated that it was budgeted in 2006. The new pedestrian streetlight was • currently being installed at this time. Town Attorney Report Town Attorney John Dunn presented an update on the status of lawsuit regarding the Wildridge short-term rentals, hearing set for October 7th. He also introduced his associate, Elizabeth Pierce - Durance, who will serve as the prosecuting attorney for Avon's Municipal Court (replacing Inga Causey). And finally he reminded everyone of the Public Utilities Commission hearings taking place the next two days addressing the request for two new at-grade crossing to connect the confluence with Avon. Future Agenda Items: Suggestions were made from Mayor Wolfe to schedule discussions about two topics, 1) Possible NWCCOG Presentation of County Demographics and 2) Possible Review of Accessory Dwelling Units and Lock-offs. Council was amicable to those discussions in the near future. Councilor Ferraro asked that Council revisit the Resolution supporting Referendum C&D. Councilor Ferraro moved to pass a resolution, that both Eagle County & CIVIL have adopted, to support Referenda C&D. Discussion ensued about whether or not unanimous approval would be required. Comment was made that the Charter did not require a unanimous vote on items. Councilor Sipes seconded the motion. Mayor Wolfe presented reasons why not to support this ballot measure & Councilor Ferraro provided reasons why the voters should support the measure. The motion passed unanimously with a roll call vote (Buckley absent). Regular Council Meeting Page 3 of 4 September 26, 2005 Consent Agenda Mayor Wolfe asked for a motion on the Consent Agenda below. Councilor Sipes moved to adopt the consent agenda; Councilor McDevitt seconded the motion and it passed unanimously (Buckley absent). a. Minutes from September 13, 2005 Regular Council Meeting b. Service Agreement with Western Eagle County Ambulance District There being no further business to come before the Council, the meeting adjourned at 8:30 PM. RE"ECTF L Y SUBMITTED: G Patty c nny, n Clerk APPROVED: Debbie Buckley Kristi Ferraro Mac McDevitt Amy Phillips Brian Sipes Tamra Underwood Ron Wolfe • Regular Council Meeting Page 4 of 4 September 26, 2005 n AVON C o L o R A D 0 December 8`h, 2004 Michael Stornello Parkill-lvins 1480 Humboldt St. Denver, CO. 80218 i EXHIBIT= RE: LOT 1, CHATEAU ST. CLAIRE SUBDIVISION 38390 Hwy. 6 & 24 FINAL DESIGN MODIFICATIONS CONDITIONALLY APPROVED Michael: Posy Uffrc-e Box 975 4W Benchmark Road Avon. Colorado 81620 970-748-40M 0 970.949-9139 FtLV 970-845-7708 77Y On December 7s', 2004 the Town of Avon Planning and Zoning Commission approved your design modification ("Minor Project") application for the `L'Auberge on Beaver Creek' project on Lot 1, Chateau St. Claire Subdivision with the following conditions: 1. The Commission-will separately approve materials and colors after review of an on-site mock up no later than April 2004. • 2. A revised landscaping plan that providers adequate detail on irrigated area and irrigation operation will be submitted to staff for final approval. Additionally, any landscaping and associated irrigation proposed on or adjacent to the walls needs to be reviewed and approved by the Engineer of Record. 3. A revised site and grading plan (legible) will be submitted that clarifies finished grading. Two-foot contour lines must be provided. 4. A signed and recorded access easement for neighboring property owner's access must be supplied to the Town with permission to grade and perform construction on the property prior to submittal of revised site/grading plan. Please refer to all comments on Memo (dated 12/2/04) from Anne Martens. 5. A Master Sign Program must be approved by the Commission prior to the issuance of any Temporary Certificate of Occupancy. 6. The engineer of record must certify that the shotcrete walls and exterior walls correlate and were constructed per the Engineer design and in their approved locations. 7. Lighting is not approved. A complete lighting plan shall be provided at the time of on-site mockup and must comply with the Town's Lighting Ordinance. 8. Colored elevations indicating the areas of proposed color and material applications must be provided no later than January 4, 2004. N1 otherwise modified by this permit approval, all material representations 9. Except as application and in made by the applicant or applicant representative(s) in this conditions of public hearing(s) shall be adhered to and considered binding approval. t hesitate to call us at 970.748.4030 of further assistance, please do no If we maybe Cordially, Matt Pielstic er Community Development Cc: File: M-DR2004-59 • F: (Planning d Zoning CommisslonNeeting Letierlk2004lll l6041L1 Chateau Sub FD Modifications tablid-doc i ) N ~ TRIM MI C O L O R A D O June 22nd, 2005 Ivans Design Group Attn: Mike Stornello 1480 Humboldt Street Denver, CO 80218 RE: Conditional Approval for Modification to Final Design of Lot 1, Chateau St. Claire Subdivision Post Office Box 975 400 Benchnuirk Ruud Avon, Colorado 81620 970-748-4000 970-949-9139 Fctr 970-545-7708 77Y Mike: On June 21st, 2005, the Town of Avon Planning and Zoning Commission reviewed the on-site moch-up for the above referenced project. As you will recall, this was a condition of approval to the approved final design. The following items are concerns and/or recommended changes requested by the Commission to the material and color as depicted on the moch-up. Prior to proceeding with any of the approved changes, you must first address the concerns of the Commission. • Replace the 7/16" Hardyboard fascia with a minimum of 3/" textured fascia; • Provide a secondary roof material, one suggestion was the use of metal; • Roof fascia and soffit a minimum of scored Hardyboard; • All wood deck material to be rough-sawn; • Concerns with water-base stain; • All copper down spouts and gutters to be bronze; • Yellow color on bottom not approved, proved alternative color to approved at a later date. Should you have any questions or would like additional information please don't hesitate to contact me directly at 970.748.4009. Kind Regards, ric Heidemann Senior Planner Cc: File • •