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TC Res. No. 2007-07 MODIFYING A MILESTONE FOR COMPLETION OFTOWN OF AVON, COLORADO
RESOLUTION NO. 07-07
A RESOLUTION MODIFYING A MILESTONE FOR COMPLETION OF
CONSTRUCTION OF THE GATES ON BEAVER CREEK, FORMERLY THE
CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS, Ordinance 05-12, finally adopted December 13, 2005, approved
an amendment to the Chateau St. Claire Planned Unit Development upon the application of
CSC Land, LLC ("the Owner"), on certain conditions including that an Amended and
Restated Development Agreement ("the Agreement") be entered into, a copy of which
agreement is attached hereto as Exhibit "A"; and
WHEREAS, Exhibit A to the Agreement sets forth a Construction Schedule,
including the Milestone Event of Completion of Roofing by March 10, 2007; and
WHEREAS, Section 4.3 of the Agreement provides that, should the Owner
be delayed, hindered or prevented from proceeding in accordance with the schedule of
deadlines set forth in said Exhibit A to the Agreement for any reason, the Owner shall,
within thirty days after commencement of the delay, provide the Town with written notice
of the delay, the reason therefor and an estimate of the expected duration of the delay; and
WHEREAS, said Section 4.3 further provides that the Town shall approve or
disapprove the delay and, if it is approved, the period thereof, in its sole and absolute
discretion; and
WHEREAS, said Section 4.3 further provides that in no event shall any
delays approved by the Town permit the schedule to be extended past the Completion
Deadline of December 14, 2008; and
WHEREAS, on February 16, 2007, the Owner, provided written notice that it
had been delayed, hindered or prevented from completing roofing by the Milestone Event
date of March 10, 2007; and
WHEREAS, the reason for the delay stated therein is that:
The delays to commencement in roof top work shall force the roofing
subcontractor to perform a large percentage of work during March and
April, historically two months with the most inclement weather. As a
responsible contractor and in order of [sic] portray the most realistic
scenario, CFC has incorporated one lost day per week for the duration of
the roof schedule due to weather conditions; and
WHEREAS, the stated estimate of the duration of such delay is a period of
time requiring an extension Milestone Event date of July 6, 2007.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
1. A delay is approved, and the Milestone Event of Completion of Roofing
by March 10, 2007, is extended to March 13, 2007, subject to the condition that at the
meeting of the Council on March 13, 2007, the Owner shall submit a proposed amendment
to the Agreement, recommended for approval by Town staff, that addresses the following:
a. An amenities fee that is applicable to whole-ownership units.
b. An additional contribution to employee housing.
c. The amount or use of the restoration bond.
d. Additional milestones to be imposed on construction.
e. Joint access to the Owner's property with the property to the east,
commonly known as the Folson parcel.
f. Owner's waiver of any claims against the Town.
g. The costs incurred by the Town with respect to the delay shall be paid by
the Owner.
Resolution No. 07-07 the Gates Milestones
Page 2 of 3
2. As a further condition hereof, Owner shall acknowledge on the record
that neither the adoption of this Resolution nor the consideration by Council of an
amendment to the Agreement shall constitute a waiver of the strict enforcement of the
Agreement by the Town.
ADOPTED the 27`x' day of February, 2007.
V:
1 Ronald C. Wolfe, Mayor
Y
ATTEST: tI
Pa Mc nny cj Clerk
11 ~
Resolution No. 07-07 the Gates Milestones
Page 3 of 3
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Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
Front: Eric Heidemann, Community Development
Date: February 22, 2007
Re: Resolution 07-07, Lots 1 & 2, Chateau St. Claire Subdivision
Summary:
CSC Land, LLC, the property owner of the Gates on Beaver Creek, is requesting to
extend the upcoming March 1e, 2007 milestone date, which requires the completion
of roofing for the entire building, to July 6t', 2007. The property owner has provided a
letter (exhibit B) which describes the reason for the delay and the estimated impact
to the remaining construction schedule.
The property owner claims that the delay is due in large part to the "challenges of
installing a roof during the winter", . along with other minor construction delays.
According to their letter, the final milestone date for Certificate of Occupancy of July
31 st, 2008 would remain unchanged through the re-sequencing of their construction
activities.
As the Council will recall, the Town previously approved an amendment to their
development agreement on December 13th, 2006 through Ordinance 05-12 (exhibit
A) which essentially extended the development agreement and provided for a
construction completion deadline. The revisions to the development agreement
specifically provided for a new construction schedule with milestones for completion
and benchmark dates "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, and the extension of
the vesting period and completion date of the project.
It is also important to note that on October 3"d, 2006 the Planning and Zoning
Commission approved a request by CFC Construction, the general contractor for he
Gates on Beaver Creek, to allow them to stage on the adjacent Folson property.
The request was approved subject to providing the Town with a letter of credit in the
amount of $61,535.55 which is necessary to restore the Folson property to its
original condition or better. Staff raises this point only because an additional
condition placed on this approval triggers the restoration of the Folson property
within 30-days of any default in the milestone dates set forth in the Gates
development agreement.
• Discussion:
Staff recalls the prior discussions between the property owner and the Town leading
up to the approval of the prior amendment to the development agreement in 2006
were based on assurance by the developer that the milestone dates, proposed by
the owner, were realistic and conservative because they accounted for unexpected •
delays.
Although the property owner has recently made significant progress with the
construction activity relative to previous years, staff sees no reason or rationale for
approving an extension to the milestone dates. However, if the Town Council is
inclined to approve the request, staff would recommend a condition of approval for
the provision of a shared access easement between the Gates and Folson
properties.
Staff has historically requested this shared access easement between the two
properties and has been unsuccessful in getting the two property owners to agree.
However, with the potential development that may occur on the Folson site, it is
imperative the this shared access easement be secured to improve circulation of the
two site and mitigate the current left out turning movement that may be subject to
elimination, as stated in the Gates current CDOT permit. Staffs primary concern
with the left out is safety and the relative proximity of this left out to the Hwy 6/Avon
Road roundabout.
Staff has approached both property owners over the last several months and the
idea has been well received by the Folson group, but less receptive from the Gates
owners.
Staff Recommendation: •
Staff is recommending approval of Resolution 07-07, approving the extension of the
March10t', 2007 milestone date, which requires the completion of roofing for the
entire building, to July 6th, 2007 subject to the following conditions:
1. CSC Land,,LLC, the property owner, no later than April 1, 2007, shall obtain
and record a non-exclusive easement for ingress and egress over and
across the property located to the east and generally described as the
"Folson Annexation Parcel," the terms and conditions thereof to be
satisfactory to the Town Engineer and Town Attorney.
2. The property owner shall further meet any and all requirements of Town staff
and the Colorado Department of Transportation so that there is joint access
from both parcels to U.S. Highway 6.
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• Page 2 February 27, 2007 Town Council Meeting • Chateau St. Claire PUD Amendment
1/
• Town Manager Comments:
Exhibits:
A. Ordinance 05-12
B. Letter dated February 16"', 2007 from CSC Land LLC and CFC Construction
C. Approval letter dated October 10, 2006 permitting temporary staging on the Folson
property.
D. Resolution 07-07
E. The Gates site plan
•
•
9 Page 3 February 27, 2007 Town Council Meeting 0 Chateau St Claire PUD Amendment
EXHIBIT A
TOWN 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
11
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
1S~-- day of Q 1Q . , 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.
0
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
i 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 6/ , 2005, and a public hearing shall be held at the
regular meeting of the Town Council of the Town of Avon, Colorado, on the k3-= day of,
Q)P-r~ REX-- , 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
6
Town of Avon, Colorado
Mayor
ATTEST:
~
--b f
11
To
Cl
rk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the 1'2t day of , 2005.
Town of Avon, Colorado
To cil
JMayor
ATTEST:
T Cle k
APPROVED AS TO FORM:
Town Attorney
Ordinance No. 05-12 L 1 &2 CSC PUD
Page 3 of 3
V
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 l 1 , ?5, to remain effective as of the Effective Date.
7-ODIp
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
0 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.
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DMWEST #6314188 v4
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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
with landowners and other qualified applicants providing for the vesting of
property development rights. 0
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 •
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1_4 PUD. Planned unit development or PUD, as such terns 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:
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DMWEST #6314188 v4
a
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 I l l e (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
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DMWEST #6314188 v4 4
\1D
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
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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
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DMWEST #6314188 v4 6
0 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.
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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 Findini s. 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
\A
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
\,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.
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DMWEST 06314188 v4 10
\V
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.
ATTEST
To Clerk
APPROVED AS TO FORM:
4,-
To Attorney
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE )
TOWN OF AVON, a municipal corporation
of the State of Colorado
BY
Mayor
z~
Subscribed before me this 11 day of Jul . =05, 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: 14, S l otv
•
DMVVEST #6314188 v4 11
My Commission Expires 04/0WOOg
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 er
By:
mothy . Barton, ger
STATE OF TEXAS )
O A `%-A s )ss.
COUNTY OF S )
Subscribed before me this 4:h day of :1) '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- 2409
Notary Public
MEUSSA LYNN MMA
F MY COMMISSION EXPIRES
° SePWW er7.2008
DMWEST.#6314188 v4 12 •
A
•
•
•
Exhibit A
to
Amended and Restated
Development Agreement
Construction Schedule
Milestone Event
CDOT Approved Access Permit
(including any required easements)
Verification of Structural Steel Order
(deposit and shop drawings)
Approval of Final Design
(including on-site mock up and remaining
design issues listed in Avon letters dated
Dec. 8, 2004 and June 22, 2005)
Complete Steel Erection
Completion of Roofing
Complete Exterior Stucco Installation
Complete Hardware Installation
Call for Town Final Inspection
Final certificate of occupancy issued
DMWEST #6314188 v4
Scheduled Deadline
April 27, 2006
April 27, 2006
May 31, 2006
November 30, 2006
March 10, 2007
July 6, 2007
April 11, 2008
June 27, 2008
July 31, 2008
13
EXHIBIT B
CSC LAND, LLC
•
February 16, 2007
Town of Avon
Department of
Community Development RECEIVED
Eric Heidemann
P.O. Box 975 FEB 2 0 2007
Avon, Colorado 81620
Community QevVIgp #nt
RE: The Gates Roof Completion Date
Dear Eric,
this letter serves as our written notice to " inform the Department of Community
Development, the Town Manager, and the Town Attorney that we have been delayed,
hindered and will be prevented from completing the Project roofing. by the date of
March 10, 2007 (as stated in Exhibit A to the Amended and Restated Development
Agreement for the Project), due to several minor construction delays and the
challenges of installing a roof during the winter season. Attached is supporting letter
from CFC Residential Constructors, Inc. identifying the delay and estimated impact on
the construction schedule. Under Article IV, section 4.3, the Development Agreement
states the Owner shall provide written notice of the expected delay in a timely manner.
We are requesting that the Town of Avon consider and approve an extension date of i
July 6, 2007 for the revised roof completion deadline. We ensure that the team is
doing everything possible to minimize the duration of this delay. This extension will not
affect any of the future milestone deadlines as stated in Exhibit A, nor will it affect the
final completion deadline for the Project.
The progress made in the construction of the Gates has been monumental and we are
excited to see how far the project has come. We are committed to the completion of
this project and look forward to working closely with the Town of Avon to get back on
schedule.
If you would like to contact m cis this matter further, please do not hesitate to
call. _ )
Sincerely,
CSC Land, L.L.C.
CC: Town Manager
Town Attorney
Wins Design Group
Colorado Residential Constructors
•
One Hickory Centre, 1800 Valley View Lane, Suite 150 LB4, Dallas, TX US 75234
Phone (972) 385-9934 Fax (972) 241-4484 www.jmjholdings.com
V
L!KCFC
Friday, February 16, 2007
Mr. Timothy Barton
CSC Land, LLC
1800 Valley View Lane RECEIVED
Suite 150, LB4
Dallas, TX 75234
FEB 2 0 2001
RE: Revised Roof Completion Milestone Community Development
The Gates-56001
Dear Mr. Barton,
Please consider this letter as CFC Construction's supporting documentation to CSC Land's request to
revise the roof completion milestone date in CSC Land's Development Agreement with the Town of Avon
for the Gates Project. CFC believes that the revised milestone date request of July 6, 2007 is both
justified and feasible for-the. following reasons:
One: Overall project completion date is to remain unchanged. Despite the many delays the project has
encountered to date, CFC's current construction schedule continues to forecast a finish date prior to the
Final C of O date in the development agreement of July 31, 2008.
Two While CSC Land is requesting that the roof completion date be extended, forecast roof dry in date
for the West half of the building is still in March 2007, thereby enabling electrical rough in and drywall
installation to commence as originally planned. The revised milestone date of July 6, 2007 is for
completion of the fragile roof tiles and delicate copper roof shingles. The roof dry in completion is a'
critical path activity whereas the completion of roof finishes is more of an aesthetic milestone.
Three: The delays to commencement in roof top work shall force the roofing subcontractor to perform a
large percentage of work during March and April, historically two months with the most inclement weather.
As a responsible contractor and inorder of portray the most realistic scenario, CFC has incorporated one
lost day per week for the duration of the roof schedule due to weather conditions.
l=our: CSC Land and the Town of Avon should consider that through an exhaustive schedule
resequencing process, the Exterior Stucco milestone will be accelerated by one month. CFC currently
anticipates completion of Building Exterior on or about June 4, 2007 v. the July 6 dictated by the
development agreement. This will assist the project team in completing interior build out activities on
schedule.
In summary CFC believes that because of the aforementioned issues, extending the roof completion
milestone date to July 6, 2007 is both a reasonable and achievable goal. As stated above, CFC also
believes that the approval of the proposed roof completion date, shall not impair CFC Construction's nor
CSC Land's ability to complete the project ahead of the final milestone date of July 31, 2008
Thank you for your consideration of this matter. You may contact me directly should you have any
questions regarding this issue.
0
i
J
a
Respectfully,
s' Construct , I
Peter Gemmill
Project Manager
CC: Pieter Van Der Hammen, CSC Land
Ron Wood, SCM
Steve Heinen, IDG
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AV 7wwpwF 0 N
C 0 L.0 R A D U
October 10, 2006
EXHIBIT C
Pete Gemmill
CFC Construction
1819 Denver West Drive, Suite 100
Golden, CO 80401
VIA FACSIMILE: 970.845.7134 (HARDCOPy TO FOLLOW)
RE: TEMPORARY STAGING AREA - APPROVED BY PLANNING COMMISSION
FOLSON ANNEXATION PROPERTY / Hwy 6 & 24
Pete:
At their October 3, 2006 meeting, the Planning and Zoning Commission approved
your staging request at the above-mentioned property for the Gates on Beaver Creek
project subject to the following conditions:
•
1. The staging area shall be restored to its original condition prior to the issuance of
a TCO (Gates on Beaver Creek) based on the plans and conditions provided;
and
2. No material shall be removed from or imported to the site; and
3. CFC Construction shall provide a letter of credit in the amount of $61,535.55 as
security to restore the site; and
4. In the event the Gates on Beaver Creek project defaults any milestone set forth in
the Development Agreement the staging area shall be restored to its original
condition or better within 30 days.'
Thanks for your attendance and patience at the hearing Pete. Please feel free to,
call me if you have any questions regarding your approval at 970.748.4030.
Kind Regards,
Matt Pielstic er
Planner I
-Irur .tlulriL•illLrl <~r~l
1'L)sI Ullil L• liar !r
970-74-N-4001
Q17()-949-9139 1 (ty
".T0-N45-'-()\ 77-}
File (C-BP2002-17)
VIA E-MAIL: PETE. GEMMILL p@CFCC. COM
F.• Planning & Zoning CommissionlMeeting Leners-'200611003061Folson Gates Staging Approval doc
VD~~
EXHIBIT D
TOWN OF AVON, COLORADO
RESOLUTION NO. 07-07
SERIES OF 2007
A RESOLUTION WAIVING A MILESTONE FOR COMPLETION OF
CONSTRUCTION OF THE GATES ON BEAVER CREEK, FORMERLY
THE CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS, Ordinance 05-12, finally adopted December 13, 2005, approved
an amendment to the Chateau St. Claire Planned Unit Development upon the application of
CSC Land, LLC ("the Owner"), on certain conditions including that an Amended and
Restated Development Agreement ("the Agreement") be entered into, a copy of which
agreement is attached hereto as Exhibit "A"; and
WHEREAS, Exhibit A to the Agreement sets forth a Construction Schedule,
including the Milestone Event of Completion of Roofing by March 10, 2007; and
WHEREAS, Section 4.3 of the Agreement provides that, should the Owner 0
be delayed, hindered or prevented from proceeding in accordance with the schedule of
deadlines set forth in said Exhibit A to the Agreement for any reason, the Owner shall,
within thirty days after commencement of the delay, provide the Town with written notice
of the delay, the reason therefor and an estimate of the expected duration of the delay; and
WHEREAS, said Section 4.3 further provides that the Town shall approve or
disapprove the delay and, if it is approved, the period thereof, in its sole and absolute
discretion; and
WHEREAS, said Section, 4.3 further provides that in no event shall any
delays approved by the Town permit the schedule to be extended past the Construction
Deadline; and
WHEREAS, on February 16, 2007, the Owner provided written notice that it 0
2~k
• had been delayed, hindered or prevented from completing roofing by the Milestone Event
date of March 10, 2007; and
WHEREAS, the reason for the delay stated therein is that:
The delays to commencement in roof top work shall force the roofing
subcontractor to perform a large percentage of work during March and
April, historically two months with the most inclement weather. As a
responsible contractor and inorder of [sic] portray the most realistic
scenario, CFC has incorporated one lost day per week for the duration of
the roof schedule due to weather conditions; and
WHEREAS, the stated estimate of the duration of such delay is a period of
time requiring an extension Milestone Event date of July 6, 2007.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
1. The delay is approved, and the Milestone Event of Completion of
0 Roofing by March 10, 2007, is extended to July 7, 2007, subject to the following
conditions:
a. CSC Land, LLC, the property owner, no later than April 1, 2007, shall record a non-
exclusive easement for ingress and egress which shall allow joint access to U.S. Highway 6 with
the property to the east generally described as the "Folson Annexation Parcel," the terms and
conditions thereof to be satisfactory to the Town Engineer and Town Attorney.
b. The property owner shall further meet any and all requirements of Town staff and the
Colorado Department of Transportation so that, upon development of the Folson parcel, there is
joint access from both parcels to U.S. Highway 6, the cost of which shall be allocated to the owner
of the Folson Parcel as a condition to approval of any development of that parcel.
2. In no event will the building permit or construction schedule be extended
0 past July 31, 2008. .
P
ADOPTED the 27`" day of February, 2007.
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
•
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