TC Res. No. 2007-13 FURTHER MODIFYING A MILESTONE FOR COMPLETION OFTOWN OF AVON, COLORADO
RESOLUTION NO. 07-13
SERIES OF 2007
A RESOLUTION FURTHER MODIFYING A MILESTONE FOR COMPLETION OF
CONSTRUCTION 'OF THE GATES ON BEAVER CREEK, FORMERLY THE
CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS, on February 16, 2007, CSC Land, LLC ("CSC") provided
written notice that it had been delayed, hindered or prevented from completing roofing by
the Milestone Event date of March 10, 2007, and requested that the Town approve an
extension of the Milestone Evernt to July 6, 2007, pursuant to the Amended and Restated
Development Agreement between'it and the Town; and
WHEREAS, Resolution 07-07, adopted February 27, 2007, approved a
delay in the Milestone Event of Completion of Roofing by Match 10, 2007, to March 13,
2007, subject to certain conditions; and
WHEREAS, Resolution 07-09, adopted March 13, 2007, approved a
delay in the Milestone Event of Completion of Roofing by March 10, 2007, to March 27,
2007; subject to certain conditions; and
WHEREAS,. representatives of the Town and CSC have agreed on a draft
Memorandum of Understanding to be submitted to the Town Council for approval, a
copy of which is attached hereto; and
WHEREAS, the Memorandum of Understanding will be incorporated into
a Second`Amended and Restated Development Agreement pursuant to the Town's zoning
amendment process.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, as follows:
1. The Memorandum of Understanding, a copy of which is attached hereto,
is approved.
2. Extension of the Milestone Event of Completion of Roofing until July 6, 2007, is
approved, effective upon adoption of this Resolution, upon condition that a) the Memorandum of
Understanding be signed, b) CSC submit an application for approval of the Second Amendment no
later than May 1, 2007, and c) CSC diligently pursue such application for purpose of seeking the
Town's final approval and enter into the Second Amended and Restated Development Agreement,
if approved by the Town.
ADOPTED the 27th day of March 2007.
(1-1
1 _a RJ-,Z-
Ronald C. Wolfe, Mayor
ATTEST: ^J(. •'~N ~ ii,
X
Mc-
Patty,~ - cK y, T lerk A•, • a `
Resolution No. 07-13 the Gates Milestone3
Page 2 of 2
MEMORANDUM OF UNDERSTANDING
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 y~,~lr~ 2007;
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"), which PUD was later amended by Ordinance No. 98-
06, Ordinance No. 04-20 and Ordinance No. 05-12.. In connection with Ordinance No. 05-12 ("the
Ordinance"), CSC and the Town further approved and executed an Amended and Restated
Development Agreement for the Project (the "Agreement"), which Agreement included a
Construction Schedule with Milestone Events. On February 16, 2007, CSC provided'written notice
that it had been delayed, hindered or prevented from completing roofing by the Milestone Event
date of March 10, 2007.
At regular meeting of the Town Council on February 27; 2007, Resolution
No. 07-07 was adopted, approving an extension in the Milestone Event for completion of
.roofing to March 13; 2007, subject to the condition that at the meeting of the Council on
March 13 2007, CSC 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."
At the regular meeting 'of the Town Council on March 13; 2007, Resolution
No. 07-09 was adopted, approving an extension in the Milestone Event for completion of
roofing to March 27, 2007
Representatives of the parties have met and have tentatively agreed as is hereinafter
set forth; which agreements shall be contained in a Second Amended,and Restated Development
Agreement. for the Project.
UNDERSTANDING OF THE PARTIES
1. CSC will file an application for amendment of the PUD and the Ordinance,
which application will include a proposed Second Amended and Restated Development Agreement
("the Second Amendment"). That application will be.processed by the Town in the normal course,
pursuant to provisions of the Avon Municipal Code; as amended and:shall take into consideration
the input of the Planning and Zoning Commission, the Town Council and the public and will be
entered into in the discretion of the Town Council exercised in accordance with .the applicable
provisions of the Avon Municipal Code. The Second Amendment shall amend and restate.the
Agreement and shall include but not necessarily be limited to the following:
a. Implementation of the requirement of Ordinance No. 98-06 for access
between CSC's property and the property to the east, commonly, known as the Folson
parcel. CSC shall prepare and record an easement for joint access, prior to July 6, 2007, the
description and terms of which shall'be agreed to between CSC and the Town. Use thereof
as joint access shall become effective upon the Town's acquisition of a corresponding joint
access agreement on the Folson parcel with the owner of that parcel being responsible for
all reasonable costs of accomplishing the joint access, as approved by the Town. CSC shall
not be held responsible by the Town for any costs associated with acquiring the joint access
agreement on the Folson parcel or accomplishing the joint access.
b. Formation by CSC of a metropolitan district. The district will impose a
mill levy sufficient to generate revenues in the amount of $40,000 annually (annually
adjusted for inflation) which shall be paid to the Town for its use in its sole and absolute
'discretion. The' Second Amendment shall contain milestones for i) filing of a service plan
for approval by the Town Council, ii) filing of a petition for organization of the district with
the district court, iii) tender of a decree for organization of the district to the district court
and iv) certification of a milllevy to the board of county commissioners, which certification
.shall occur prior to issuance of a certificate of occupancy or December 15, 2008, whichever
is earlier, subject to delays caused by the Town or the court entirely beyond the control of
CSC. In no event shall any unit be conveyed to a purchaser prior to certification of the mill
levy.
c. Revised Milestone Events to be imposed on construction and formation
of the metropolitan district.
d. An amendment to the agreement providing: i) in the event CSC fails to
meet any milestone, at its option it may elect to be assessed liquidated damages of $1,000
per day (which amount the parties agree to be fair and reasonable and not a penalty); ii) the
penalty so assessed, if not paid within 30 days, shall be deducted from the cost restoration
bond; iii) the amount deducted shall be replenished within 30 days of the deduction; and
iv) upon failure of CSC to replenish the cost restoration bond, the Town may proceed as
though it has disapproved a request by t'SC for an extension of the particular milestone
event.
e. Representation by CSC that.it is aware.of no claims against the Town..
existing as of March 27, 2007, and that it therefore has no present intention to bring any
claims against the Town and that, upon approval of the Second Amendment, it will waive
any and all claims against the Town arising out of the request by CSC for an extension- of
the Milestone Event for completion of roofing.
MOU the Gates 2007
Page 2 of 3
f. Reimbursement to the Town of staff time in the amount of $3,000.00.
2. The Milestone Event for completion of roofing shall be extended to July 6; 2007
by Resolution'to be adopted on and effective as of March 27, 20.07, upon condition that a) the
parties sign this, Memorandum of Understanding, b) CSC submit an application for. approval of the .
Second Amendment no later than May 1, 2007, and c) CSC diligently pursue such application for
purpose of seeking the Town's final approval and enter into the Second Amendment, if approved
by the Town.
I. The consideration by Council of.an amendment to the Agreement shall
not constitute a waiver of,the strict enforcement of the Agreement by the Town.
i
TOWN OF A
By:
b°
ATTEST
o ler
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 general partner
By:
Timothy L. Barton, manager
MOU the Gates 2007
Page 3 of 3
•
0
f. Reimbursement to the Town of staff time in the amount of $3,000.00.
2. The Milestone Event for completion of roofing shall be extended to July 6, 2007
by Resolution to be adopted on and effective as of March 27, 2007, upon condition that a) the
parties sign this Memorandum of Understanding, b) CSC submit an application for approval of the
Second Amendment no later than May 1, 2007, and c) CSC diligently pursue such application for
purpose of seeking the Town's final approval and enter into the Second Amendment, if approved
by the Town.
3. The consideration by Council of an amendment to the Agreement shall
not constitute a waiver of the strict enforcement of the Agreement by the Town.
TOWN OF AVON
By:
ATTEST
Town Clerk
CSC LAND LLC, a Colorado limited liability company
By: JMJCSC LP, a Texas limited partnership, its manager
By: JMJ129 West, LLC, a Texas
liability company, it eral I
By:
Memo
CSC Laond . LLC
To: John Dunn .
From: Linda Long on behalf of Tim Barton
:Date: Wednesday, April 04, 2007
RE: MOU
Please find enclosed the MOU'with Mr. Barton's original signature (signed on 3/29/07).
1800 Valley View Lane
Suite 150, LB 4
Dallas, Texas USA 7523.4
PHONE (972) 385-9934 FAX (972) 241-4484 www.imiholdings.com
Message
Patty McKenny
From: John Dunn Bdunn@jwdunnlaw.com]
Sent: Tuesday, April 03, 2007 4:05 PM
To: Frank Visciano
Cc: Patty McKenny
Subject: The Gates
Page 1 of 1
Frank, the MOU has been signed for the Town. Are you sending me the page with Tim's original signature?
I will begin work on drafts of the easement and the amended development agreement.
John W. Dunn
John W. Dunn & Associates, LLC
Attorneys At Law
P. O. Box 7717
Avon, Colorado 81620
(970) 748-6400 Telephone
(970) 748-8881 Fax
jdunn@jwdunnlaw.com
Privileged/Confidential Information may be contained in this message and any related attachments. If you are not
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4/3/2007
MEMORANDUM
TO: TOWN COUNCIL
FROM: TOWN ATTORNEY
RE: THE GATES
DATE: March 27, 2007
At Council meeting on February 27, 2007, Resolution No. 07-07 was adopted
modifying a milestone for completion of roofing in connection with construction of The Gates
project to March 13, 2007, on the following conditions:
a. Imposition of an amenities fee that is applicable to whole-ownership
units.
b.
Consideration of an additional contribution to employee housing.
c.
Reconsideration of the amount or use of the restoration bond.
d.
Consideration of Additional milestones to be imposed on construction.
e.
Implementation of joint access to the Owner's property with the
property to the east, commonly known as the Folson parcel, which joint access was
required by Ordinance 98-06, which ordinance initially approved The Gates project.
f.
Owner's waiver of any claims against the Town.
g.
Reimbursement of costs incurred by the Town.
On March 13, 2007, Council adopted a resolution further extending the
milestone for completion of roofing until March 27 to permit further negotiation between
the Town and CSC Land, LLC, owner of The Gates project
Since that meeting representatives of the Town and CSC have concluded
negotiation of a Memorandum of Understanding which will substantially meet the
conditions above, which MOU is on the Council agenda. The Town attorney
recommends that the Council approve the MOU as drafted. CSC's attorney has approved
the form of it.
Also on the Council agenda is a resolution which will partially implement
the terms of the MOU by extending the milestone for completion of roofing until July 6,
2007, the date originally requested by CSC.
JWD:ipse
TOWN OF AVON, COLORADO
RESOLUTION NO. 07-13
A RESOLUTION FURTHER MODIFYING A MILESTONE FOR COMPLETION OF
CONSTRUCTION OF THE GATES ON BEAVER CREEK, FORMERLY THE
CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS, on February 16, 2007, CSC Land, LLC ("CSC") provided
written notice that it had been delayed, hindered or prevented from completing roofing by
the Milestone Event date of March 10, 2007, and requested that the Town approve an
extension of the Milestone Event to July 6, 2007, pursuant to the Amended and Restated
Development Agreement between it and the Town; and
WHEREAS, Resolution 07-07, adopted February 27, 2007, approved a
delay in the Milestone Event of Completion of Roofing by March 10, 2007, to March 13,
2007, subject to certain conditions; and
WHEREAS, Resolution 07-09, adopted March 13, 2007, approved a delay
in the Milestone Event of Completion of Roofing by March 10, 2007, to March 27, 2007,
subject to certain conditions; and
WHEREAS, representatives of the Town and CSC have agreed on a draft
Memorandum of Understanding to be submitted to the Town Council, a copy.of which is
attached hereto.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, as follows:
1. The Memorandum of Understanding, a copy of which is attached hereto,
is approved.
v
2. Extension of the Milestone Event of Completion of Roofing until July 6,
2007, is approved, effective upon adoption of this Resolution.
ADOPTED the 27`h day of March 2007.
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
1-9
MEMORANDUM OF UNDERSTANDING
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 , 2007;
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'), which PUD was later amended by Ordinance No. 98-
06, Ordinance No. 04-20 and Ordinance No. 05-12. In connection with Ordinance No. 05-12 ("the
Ordinance'), CSC and the Town further approved and executed an Amended and Restated
Development Agreement for the Project (the "Agreement'), which Agreement included a
Construction Schedule with Milestone Events. On February 16, 2007, CSC provided written notice
that it had been delayed, hindered or prevented from completing roofing by the Milestone Event
date of March 10, 2007.
At regular meeting of the Town Council on February 27, 2007, Resolution
No. 07-07 was adopted, approving an extension in the Milestone Event for completion of
roofing to March 13, 2007, subject to the condition that at the meeting of the Council on
March 13, 2007, CSC 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."
At the regular meeting of the Town Council on March 13, 2007, Resolution
No. 07-09 was adopted, approving an extension in the Milestone Event for completion of
roofing to March 27, 2007
Representatives of the parties have met and have tentatively agreed as is hereinafter
set forth, which agreements shall be contained in a Second Amended and Restated Development
Agreement for the Project.
UNDERSTANDING OF THE PARTIES
1. CSC will file an application for amendment of the PUD and the Ordinance,
which application will include a proposed Second Amended and Restated Development Agreement
("the Second Amendment'). That application will be processed by the Town in the normal course,
pursuant to provisions of the Avon Municipal Code, as amended and shall take into consideration
the input of the Planning and Zoning Commission, the. Town Council and the public and will be
entered into in the discretion of the Town Council exercised in accordance with the applicable
provisions of the Avon Municipal Code. The Second Amendment shall include but not necessarily
be limited to the following:
.4. Implementation of the requirement of Ordinance No. 98-06 for access
between CSC's property and the property to the east, commonly known as the Tolson
parcel. CSC shall prepare and record an easement for joint access, prior to July 6, 2007, the
description and terms of which shall be agreed to between CSC and the Town. Use thereof
as joint access shall become effective upon the Town's acquisition of a corresponding joint
access agreement on the Folson parcel with the owner of that parcel being responsible for
all reasonable costs. of accomplishing the joint access, as approved by the Town. CSC shall
not be held responsible for any costs associated with acquiring the joint access agreement
on the Folson parcel or accomplishing the joint access.
b. Formation by CSC of a metropolitan district having transportation
powers. The district will impose a mill levy sufficient to generate revenues in the amount
of $40,000 (annually adjusted for inflation) which shall be paid to the Town for its use in its
sole and absolute discretion. The Second Amendment shall contain miles I tones.for i) filing
of a service plan for approval by the Town Council, ii) filing of a petition for organization
of the district with the district court, iii) tender of a decree for organization of the district to
the district court and iv) certification of a mill levy to the board of county commissioners,
which certification shall occur prior to issuance of a certificate of occupancy or December
15, 2008, whichever is earlier, subject to delays caused by the Town or the court-entirely' .
beyond the control of CSC. In no event shall any unit be conveyed to, a purchaser prior to
certification of the mill levy..
c. Revised milestones to be imposed on construction and formation of the
metropolitan district.
d. An amendment to the agreement providing: i) in the event"CSC fails to
meet any milestone, at its option it may elect to be assessed a penalty of $1.,000 per day; ii)
the penalty so assessed shall be deducted from the cost restoration bond; iii) the amount of
the cost restoration bond shall be replenished within 30 days of the deduction; and iv) upon
failure of CSC to replenish the cost restoration bond, the Town may proceed as though it
has disapproved a request by CSC for an extension of the particular milestone event.
e. Representation by CSC that it is aware of no claims against the Town
existing as,of March 27, 2007, and that it therefore has no present intention to bring any
claims, against the Town and that, upon approval of the Second Amendment, it will waive
any and all claims against the Town arising out of the request by CSC for an extension of
the Milestone Event for'completion of roofing.
f. Reimbursement to the Town of staff time in the amount of $
2. The Milestone Event for completion of roofing shall be extended to July 6, 2007
by Resolution to be adopted on and effective as of March 27, 2007.
3. The consideration by Council of an amendment to the Agreement shall
not constitute a waiver of the strict enforcement of the Agreement by the Town.
TOWN OF AVON
By:
ATTEST
Town Clerk
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 general partner
By:
Timothy L. Barton, manager
1R