TC Council Packet 09-25-2012MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL
HELD SEPTEMBER 11, 2012
A regular meeting of the Town of Avon, Colorado was held at the Avon Town Hall, One Lake Street,
Avon, Colorado in the Council Chambers.
Mayor Carroll called the meeting to order at 5:50 PM. A roll call was taken and Council members
Present were Dave Dantas, Chris Evans, Kristi Ferraro, Todd Goulding, Amy Phillips and Buz Reynolds.
Also present were Town Attorney Eric Heil, Acting Town Manager Patty McKenny, Town Advisor Larry
Brooks, Finance Director Scott Wright, Director PW&T Jenny Strehler, Deputy Town Clerk Catherine
Mythen, as well as other staff members and the public.
APPROVAL OF AGENDA
Mayor Carroll added two items to the Community and Citizen Input as follows: (A) Melissa Rewold
Thuon, Principal from Avon Elementary School, and (B) Update on the Eagle Valley Land Exchange.
COMMUNITY & CITIZEN INPUT
Melissa Rewold–Thuon, Principal, noted that Avon Elementary school was recognized by the
National Blue Ribbon Schools program as a school of excellence in America.
Scott Turner introduced himself as a candidate running for District Attorney in the fifth Judicial
District.
Jeff Layman introduced himself as running for Eagle County Commissioner in the November
election.
Mayor Carroll gave a brief update on the Eagle Valley Land Exchange noting that the open space
advisory committee met and recommended that the Eagle County Commissioners fund up to $5.3
Million for the land transactions. He noted that the Town Council would be considering the
approvals of some exchange documents in the near future.
CONSENT AGENDA
a. Minutes from August 28, 2012
Mayor Carroll asked for a motion on item (a) on the Consent Agenda. Councilor Evans moved to
approve the minutes from August 28 2012; Councilor Reynolds seconded the motion and it passed
unanimously by those present. (Goulding abstained)
b. Agreement to Release Second Deed of Trust and Replace Amended and Restated Promissory Note
with Second and Amended and Restated Promissory Note (Eric Heil, Town Attorney) Revised
paperwork related to Housing Down payment Assistance Program
Mayor Carroll asked for a motion on item (b) on the consent agenda. Councilor Dantas moved to
approve the Agreement to Release Second Deed of Trust and Replace Amended and Restated
Promissory Note with Second and Amended and Restated Promissory Note; Councilor Phillips seconded
the motion and it passed unanimously by those present.
RECOMMENDATIONS OF PLANNING & ZONING COMMISSION
a. Public Hearing on a Preliminary PUD Application for the Brookside Park PUD (Jared Barnes,
Planner I) Owner Riverview Park Associates application submittal for a request to modify the list
of permitted uses for Lot 1, Brookside Park PUD, to permit up to twenty‐four (24) residential
dwelling units in place of existing office uses.
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Jared Barnes, Planner I, presented the preliminary PUD application for the Brookside Park PUD. The
applicant requested to modify the list of permitted uses for Lot 1, Brookside Park PUD, to permit up to
twenty‐four (24) residential dwelling units in place of existing office uses. He gave a brief review on
the application. He noted that the proposed PUD Amendment to allow for potential conversion of the
Brookside Center building from commercial to residential is in compliance with both the intent and
regulations of the Avon Town of Avon Development Code and the Town of Avon Comprehensive Plan.
Frank Navarro, owner representing Riverview Park Associates, gave a presentation on the preliminary
PUD amendment application. The review criteria were outlined in the memo and there was some
discussion about “public benefit”; it was noted that the applicant satisfied this criteria with its original
application. There was some concern from council members about the elimination of the commercial
spaces in the project. Mayor Carroll opened the public hearing, no comments were heard and the
hearing was closed.
Councilor Reynolds moved to approve the Preliminary PUD Application for the Brookside Park PUD
Councilor Evans seconded and the motion failed. (Reynolds, Evans, Goulding ‐ yea; Carroll, Ferraro,
Dantas, Phillips ‐ nay). Further dialogue ensued about public benefit, and several councilors asked the
applicant to address this concern. Councilor Ferraro moved to continue the public hearing on the
Preliminary PUD Application for the Brookside Park PUD to September 25th, with a request that the
applicant work with town staff to include some public benefits for the project; Councilor Phillips
seconded the motion and it passed with a four to three vote (Carroll, Dantas, Ferraro, Phillip ‐ yea)
(Evans, Reynolds, Dantas ‐‐ nay).
a. Public Hearing on Ordinance No. 12‐10, Series of 2012, First Reading, Ordinance Implementing
Settlement Term Sheet to Resolve Pending Litigation on 2008 CV 385 and 2010 CV 316;
Approving the Consolidated and Restated Annexation and Development Agreement; Approving
an Amendment to Village (at Avon) PUD; Approving Amendments to Chapter 18 of Avon
Municipal Code; and Taking such other Actions as Set Forth Herein to Implement the
Settlement Term Sheet
(The topic for review includes the PUD Guide v16, the Final PUD Application for a Mixed Use Development
known as the Village at Avon related to Implementation of the Settlement Term Sheet dated October 7, 2011
entered into by Town of Avon, BNP Paribas, Traer Creek Metropolitan District, Traer Creek LLC, Traer Creek‐
RP LLC, Traer Creek Plaza LLC, EMD Limited Liability, Traer Creek‐HD LLC and Traer Creek‐WMT LLC)
Eric Heil, Town Attorney, gave a brief overview of the process noting that there would be a
presentation from Town staff, presentation by the applicant, presentation by the school district, some
discussion and then a public hearing. The following people commented:
Marcus & Michael Lindholm, Traer Creek LLC, spoke on behalf of the project.
Harvey Robertson of RMT Architects, representing the applicant gave a brief presentation on
planning areas A & D.
Brandi Caswell, Faegre Baker Daniels, representing BNP Parribas Bank, introduced Ford Frick with BBC
Research & Consulting who made some comments.
Ford Frick, Managing Director of BBC Research & Consulting, spoke about resort development
economics, and the benefits of development to the community, etc.
Tom Braun, Braun and Associates, representing the Eagle county School District gave a
presentation about the proposed school dedication and future student projections. There was a
request to wait until a future date to make decisions about school land dedication in light of the
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Minutes 12.09.11
district not yet needing land and the fact that there are so many other project issues facing the
town council.
Mayor Carroll opened the Public Hearing and the following comments were heard:
Marcus and Michael Lindholm, developers, noted that they want to continue working with the
neighbors, and that an email was sent to the residents on Hurd Lane addressing the issue regarding
planting trees along the road.
Tamera Underwood, resident, read a letter from Howard Levitt an Avon resident who was not
present. She also commented on the following topics related to the Staff Reports, PUD Guide, the
Subdivision Code, Master Developer, Commercial Uses, Industrial Uses, and Commercial Density.
Mike Cassioppo, resident, commented on his support of the developer and the project and that the
town needed to settle and commit to the earlier obligations made with the developer.
Bette Todd commented that the process must continue to include the citizens, and that everyone
needs to understand the documents.
Walter Dandy, resident, had concerns with building heights.
Carol Kruger, resident, addressed an email that was sent from Avon residents that was not in favor
of the PUD guide and development of the project as written.
Paul Maloney spoke about some concerns related to the fact that the plan is ambiguous
Kristen Texler, resident, spoke about the need to support settling the disputes.
Mary Bochain, resident, concerned about the lawsuits, and supports development, but need to
understand what business will become part of the project
Neil Masters, resident, spoke about the need to move forward
Roger Wilkensen, resident, concerned about uses and heights
Ron Wolfe, resident, spoke about confusion with the process
The public hearing was closed. The council members made some comments and reiterated the need to
have a complete package of final documents. There were some comments related to the need to have
a package that only mirrors the settlement term sheet. The Mayor thanked the public for its input.
The schedule was also reviewed for the next few meetings. Councilor Reynolds moved to approve
continuing the Public Hearing on Ordinance No. 12‐10, Series of 2012, First Reading, Ordinance
Implementing Settlement Term Sheet to Resolve Pending Litigation on 2008 CV 385 and 2010 CV 316;
Approving the Consolidated and Restated Annexation and Development Agreement; Approving an
Amendment to Village (at Avon) PUD; Approving Amendments to Chapter 18 of Avon Municipal Code;
and Taking such other Actions as Set Forth Herein to Implement the Settlement Term Sheet to the
September 25th Town Council meeting. Councilor Phillips seconded the motion and it passed
unanimously. The public hearing was continued until the next meeting.
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Minutes 12.09.11
There being no further business to come before the Council, the regular meeting adjourned at 10:35
PM.
RESPECTFULLY SUBMITTED:
_________________________________
Catherine Mythen, Deputy Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Kristi Ferraro ________________________________
Todd Goulding ________________________________
Amy Phillips ________________________________
Albert “Buz” Reynolds ________________________________
1001679.141001679.15 0809/3107/12
CONSOLIDATED, AMENDED AND RESTATED
ANNEXATION AND DEVELOPMENT AGREEMENT
FOR THE VILLAGE (AT AVON)
THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND
DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to
time, this “Development Agreement”) is made and entered into as of __________________,
2012 (“Execution Date”) by and among the Parties and the Limited Parties, and with the consent
of the Developer Affiliates, BNP and Lenders.
RECITALS
This Development Agreement is made with reference to the following facts:
A. Initially capitalized words and phrases used in this Development Agreement have
the meanings set forth in Exhibit G, which definitions are incorporated herein.
B. Pursuant to the Original Agreement, the Town and the Original Owners set forth
the terms and conditions upon which the land legally described in Exhibit A of the Original
Agreement would be annexed into and developed under the jurisdiction of the Town, such legal
description having been updated to reflect the Recording of various subdivision plats subsequent
to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the
“Property”).
C. Subsequent to the Original Effective Date, Town Council approved the Service
Plans and the formation of TCMD and VMD for the general purposes contemplated by the
Original Agreement and more specifically described in the Service Plans.
D. Subsequent to the Original Effective Date: (i) the other entities comprising the
Original Owner were merged into EMD, which became the sole Original Owner; and (ii)
pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in
writing, the right to amend the Original Agreement as to all of the Property except Planning Area
M as designated in the Original PUD Guide and the Original Agreement (now re-designated
Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the right to
amend the Original Agreement.
E. As of the Effective Date, the current fee owners of the real property comprising
the Property are, as their respective interests appear of Record: TC-RP; EMD; TC Plaza;
TC-WMT; TC-HD; Alkali Company, a Colorado limited partnership; TCMD; the District
Directors; the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation;
Buffalo Ridge II LLLP, a Colorado limited liability limited partnership; Eagle River Fire
Protection District, a quasi-municipal corporation; Eagle County Health Service District, a
quasi-municipal corporation; and Department of Transportation, State of Colorado.
F. Other than EMD, each of the Developer Affiliates and other Landowners referred
to in Recital E acquired title to the portion of the Property it owns subject to the terms and
conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original
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Agreement. None of the conveyances referred to in Recital E were accompanied by a specific
written grant of the power to amend the Original Agreement as provided in Section 1.4 of the
Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being
parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original
Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted any power to
consent or object to any amendment of the Original Agreement. As provided in Section 1.4 of
the Original Agreement, no person or entity other than the Town, EMD, TCMD and TCLLC is
required or has a right to execute or acknowledge this Development Agreement as a condition of
this Development Agreement being legally effective and binding on all parties to the Original
Agreement and all Landowners.
G. For ease of administration and in recognition of the fact the ownership of the
Property has and will continue to become diverse as the Project develops, the Developer
Affiliates have designated Master Developer to act on their behalf for all purposes in connection
with this Development Agreement, including but not limited to negotiation and execution of this
Development Agreement and any future amendments hereto.
H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and
other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV
316 (collectively, consolidated as Case No 2008 CV 385, the “Litigation”) and the parties to the
Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the
uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the
uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered
into that certain Settlement Term Sheet made and entered into the 7th day of October, 2011, by
and between the Town, BNP, TCMD, TCLLC, TC-RP, TC Plaza, EMD, TC-HD LLC and
TC-WMT (the “Settlement Term Sheet”).
I. In accordance with the terms and conditions of the Settlement Term Sheet, the
Parties have entered into this Development Agreement to implement pertinent terms of the
Settlement Term Sheet, to effect a full and final settlement of all disputes pertaining to the
Original Agreement which were the subject of the Litigation, and to resolve other potential
disputes related to development entitlements, interpretation of Original Agreement, equitable
allocation of responsibilities and rights, and other matters which are addressed in this
Development Agreement and related documents. The Town’s final non-appealable approval of
this Development Agreement establishes and implements specific terms and conditions of the
Settlement Term Sheet and shall be binding on the Parties hereto and also shall be binding on all
parties to the Settlement Term Sheet.
J. Various circumstances and changed conditions require mutual execution and
approval of this Development Agreement in order to: (i) clarify and implement the intent of the
parties to the Original Agreement to promote development of the Property; (ii) amend and restate
the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate
dismissal of the Litigation with prejudice and minimize the potential for future legal disputes.
K. During the period between the Original Effective Date and the Execution Date
and in reliance on the revenue sharing and infrastructure financing arrangements established by
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the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer
Affiliates have made large investments in Public Improvements located both within the Property
and outside of the Property. The foregoing has resulted in:
(1) Full satisfaction of the following obligations of TCMD under the terms
and conditions of the Original Agreement, with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a) Construction of the Interstate 70 Interchange and the Highway 6
Connector Road as defined in § 4.2 of the Original Agreement;
(b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of
the Original Agreement, in the amount of $100,000;
(c) Construction of the Phase 1 Improvements and the Phase 2
Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement;
(d) Construction of the Swift Gulch Road Improvements as defined in
§ 4.3(c) of the Original Agreement;
(e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of
the Original Agreement; and
(f) Those obligations set forth in § 4.3(j) of the Original Agreement.
(2) Partial satisfaction of the following obligation of TCMD under the terms
and conditions of the Original Agreement, with performance of the remaining obligations
waived pursuant to the Settlement Term Sheet and the provisions establishing such
obligation accordingly deleted from this Development Agreement:
(a) Payment of nine (9) installments, in the amount of $200,000 each,
of the ten (10) such installments comprising the East Avon Exaction as defined in
§ 4.3(a)(i) of the Original Agreement, the obligation to make the final installment
being extinguished by this Development Agreement as contemplated in the
Settlement Term Sheet.
(3) Full satisfaction of the following obligations of Original Owners under the
terms and conditions of the Original Agreement, with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a) The two property conveyances comprising the Public Works
Dedication as defined in § 4.3(d) of the Original Agreement;
(b) Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L. Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
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will require substantial additional investments by the Districts, the PICs, Master Developer, the
Developer Affiliates and/or other Landowners. All such completed and to be constructed Public
Improvements will serve the needs of the Project and the Town. Such prior and future
investments can be supported only if there are assurances that development of the Project will be
permitted to proceed to ultimate completion as contemplated in this Development Agreement
and the PUD Guide.
M. The Vested Property Rights Statute and the Municipal Code authorize the Town
to enter into development agreements which provide for the vesting of property development
rights with a term of greater than three (3) years.
N. Town Council has determined that granting Vested Property Rights for the
duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land
use planning process, 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 and development.
O. Town Council specifically finds that this Development Agreement provides
public benefits including but not limited to the following specific public benefits: (i)
development of the Property in accordance with the applicable development standards in the
Development Plan and, to the extent not controlled by the Development Plan, the Municipal
Code (as amended from time to time); (ii) economic development through construction
anticipated to occur in connection with development of the Project; (iii) economic development
through the development of various commercial and residential uses that enhance, complement
and reinforce the Town’s existing economy, commercial base and ad valorem property tax base;
(iv) development of housing to meet the needs of the Avon community; (v) development of
significant property within the Town’s municipal boundaries which promotes economies of scale
in the provision of public services; and (vi) establishment of a public-private cooperative
arrangement that promotes the availability of capital for Public Improvements and promotes the
competitiveness and viability of private development within the Town and the Project.
P. In exchange for these benefits and the other benefits to the Town contemplated by
this Development Agreement, together with the public benefits served by the orderly
development of the Property, this Development Agreement and the Vested Property Rights
established herein are intended to provide assurance to Master Developer, EMD, the Developer
Affiliates, other Landowners, the Districts, lenders providing financing for development of the
Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued
or to be issued by the Districts that development of the Property pursuant to the terms and
conditions of the Development Plan and the Approved SSDPs can occur without impediment or
impairment of the Vested Property Rights.
Q. The Limited Parties have executed this Development Agreement only for the
limited purposes expressly set forth herein and with the express understanding that the Limited
Parties shall not be construed to have any rights, duties, obligations or remedies arising under
this Development Agreement except to the extent expressly set forth herein with respect to each
Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited
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Party shall be strictly limited to those expressly set forth in this Development Agreement as a
right, duty, obligation or remedy of such Limited Party.
R. Lenders have executed this Development Agreement for the sole purpose of
evidencing their respective consent and subordination to the Recording of this Development
Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any
obligation or acquiring any enforcement right or remedy arising under this Development
Agreement.
S. BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s approval of the Financing Plan and related matters
addressed in this Development Agreement. Additionally, BNP is an Intended Beneficiary with
respect to BNP’s right to enforce certain provisions of this Development Agreement, including
but not limited to BNP’s right to participate on the AURA board of directors with respect to any
urban renewal plans for any portion of the Property.
T. As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105, and
such Parties intend their respective obligations hereunder to be enforceable by specific
performance and/or other equitable remedies in addition to any remedies otherwise available at
law.
U. As between the Town, Master Developer, EMD, Developer Affiliates and other
current or future Landowners, this Development Agreement constitutes a development
agreement granting Vested Property Rights for a period in excess of three (3) years in
accordance with Section 24-68-104(2) of the Vested Property Rights Statute.
V. The Parties intend this Development Agreement to amend and restate in its
entirety the Original Agreement by consolidating the original document and subsequent
amendments thereto into a single document for ease of reference, and additionally by
incorporating the amendments necessary and desirable to implement applicable terms and
conditions of the Settlement Term Sheet.
AGREEMENT
NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth
in this Development Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 Incorporation of Recitals. The Recitals are incorporated into and made
substantive provisions of this Development Agreement.
1.2 Effectiveness and Recording of Development Agreement. This Development
Agreement shall be effective as of the Effective Date. Any delay or failure to Record this
Development Agreement shall not negate or impair the effectiveness of this Development
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Agreement as between the Parties and any other parties having notice of this Development
Agreement. The effectiveness and/or Recording of this Development Agreement shall not be
construed to negate the effectiveness of any approvals granted by Town Council prior to the
Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other
Landowner taken in connection with development of the Project prior to the Effective Date. All
such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the
Settlement Term Sheet shall be construed to be of no further force or effect, its terms and
conditions having been incorporated into and implemented by this Development Agreement, the
PUD Guide, the Tank Agreement, the TCMD Reissue Documents and/or otherwise performed in
full. As of the Effective Date, the obligations of each party to the Original Agreement to any
other party to the Original Agreement are expressly discharged, terminated and of no further
force or effect except to the extent such obligations are expressly incorporated and set forth in
this Development Agreement.
1.3 Covenants. Upon Recording, the provisions of this Development Agreement shall
constitute covenants and servitudes that touch, attach to and run with the land comprising the
Property and, except as otherwise provided in Section 1.5 with respect to amendments to this
Development Agreement, the burdens and benefits of this Development Agreement shall bind
and inure to the benefit of all estates and interests in the Property and all successors in interest to
the Parties, the Developer Affiliates and any other Landowners as of the Effective Date.
1.4 Vesting Term; Term of Development Agreement. Phased development of the
Project as contemplated under this Development Agreement and the Development Plan involves
significant acreage and density which will require substantial investment and time to complete.
(a) Vesting Term. Due to the size and phasing of the Project, the potential for
development of the Project to be affected by economic and financial cycles, the effect of
national and statewide markets with regard to retailers, accommodations industry and
builders, and the limitation of absorption rates by the local market conditions, the term of
the Vested Property Rights established pursuant to Section 2.4 shall continue through and
including October 20, 2039 (“Vesting Term”) On October 21, 2039, the Vested Property
Rights shall be deemed terminated and of no further force or effect; provided, however,
that such termination shall not affect:
(i) annexation of the Property to the Town;
(ii) any common-law vested rights obtained prior to such termination;
(iii) any right arising from Town building permits, development
approvals or other zoning entitlements for the Property or the Project which were
granted or approved prior to expiration of the Vesting Term; or,
(iv) any obligation of a Party under this Development Agreement that
has not been fully performed as of the date on which the Vesting Term expires.
(b) Term of Development Agreement. Notwithstanding expiration of the
Vesting Term, the term of this Development Agreement and the Parties’ obligations
hereunder (the “Term ”) shall commence onupon the Effective Date and shall continue in
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full force and effect until the date on which, pursuant to Section 6.1(b), all District Debts
have been paid in fullexpire upon the later of: (i) January 2, 2040 (January 1, 2040 being
the last date upon which TCMD may issue Supplemental Bonds, notwithstanding that
District Debt other than Supplemental Bonds may have been paid in full prior to January
2, 2040); or (ii) such later date upon which payment in full of the District Debts occurs.
Upon expiration of the Term, the Town is entitled under the terms of this Development
Agreement to terminate the Tax Credit. Notwithstanding the foregoing, the Town may
elect to extend the Term of the Agreement in accordance with Section 6.1(d). In no event
shall the Term expire before the Town’s obligation to maintain the Tax Credit in effect
has terminated as provided in Section 6.1(b).
(c) Obligation to Maintain Tax Credit. Without limitation of the foregoing,
the Town’s obligation to maintain the Tax Credit in effect pursuant to Sections 4.2(a) and
6.1(b) shall survive expiration of the Vesting Term and shall continue in full force and
effect until the conditions set forth in Section 6.1(b) have been fully satisfied.
1.5 Amendment of Development Agreement. This Development Agreement may be
amended or terminated only by mutual written consent of the Town, TCMD and Master
Developer (but not by their respective successors or assigns or by any non-Party Landowner)
following the public notice and public hearing procedures required for approval of this
Development Agreement; provided, however:
(a) Specific Grant of Amendment Rights. For purposes of this Section 1.5
only, the term “Master Developer” means TCLLC, EMD and those additional parties, if
any, to whom TCLLC or EMD has specifically granted, in writing, the power to enter
into such amendments. No entity to whom TCLLC or EMD has granted the power to
enter into such amendments may further assign or grant such power to another entity
except to the extent expressly stated in the grantee’s original grant from TCLLC or EMD.
(b) Limited Parties. The written consent of a Limited Party (other than EMD
in its capacity as Master Developer, as otherwise set forth in this Section 1.5) shall not be
required except to the extent the proposed amendment directly and expressly modifies a
provision of this Development Agreement that establishes a right, obligation or remedy
of such Limited Party.
(c) BNP. The Parties acknowledge that until the obligations under the TCMD
Reissue Documents have been fully performed, TCMD’s agreement to any future amendment to
the provisions of Article 4, Article 6 or 6.1 of this Development Agreement is subject to BNP’s
Paribas’ (or any successor or assignee of BNP Paribas pursuant to Section 8.11) prior written
consent.
1.6 Cooperation in Defending Legal Challenges. If, after the Effective Date, any
legal or equitable action or other proceeding is commenced by a third party challenging the
effectiveness of the ordinance approving this Development Agreement and/or the Development
Plan, the effectiveness of this Development Agreement and/or the Development Plan, or the
validity of any provision of this Development Agreement and/or the Development Plan, the
Parties shall in good faith cooperate in defending such action or proceeding and shall each bear
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their own expenses in connection therewith. Unless the Parties otherwise agree, each Party shall
select and pay its own legal counsel to represent it in connection with such action or proceeding.
The Parties acknowledge that the obligations of the Town and TCMD pursuant to this Section 1.6
are subject to compliance with the requirements of Section 20 of Article 10 of the Colorado
constitution. Accordingly, the Town and TCMD shall in good faith take such steps as may be
available to them in response to the filing of any action or proceeding addressed above to set
aside, hold and irrevocably pledge adequate present cash reserves to fund the reasonably
anticipated costs of defending such action or proceeding; provided, however, if either the Town
or TCMD is not in a position to fund from present cash reserves all or any portion of the
reasonably anticipated costs of defending such action or proceeding, such Party’s obligation
pursuant to this Section 1.6 shall be subject to annual appropriation.
1.7 Role of Master Developer. For the reasons described in Recital G, the Developer
Affiliates have designated Master Developer to act on behalf of themselves and their respective
successors in interest with respect to and for all purposes of this Development Agreement. The
Developer Affiliates may designate a replacement Master Developer from time to time, or may
terminate the role of the Master Developer, by delivery of written notice thereof to the Town and
to TCMD which is signed by a majority of the Developer Affiliates owning any part of the
Property as of the date of such notice. Any replacement Master Developer must be an entity that
is a Developer Affiliate. The designation of a replacement Master Developer or termination of
the role of Master Developer by the Developer Affiliates shall not require an amendment to this
Development Agreement and shall not require the consent of the Town, TCMD or BNP.
1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries.
(a) Limited Parties. As more particularly described in Recital Q, each
Limited Party is executing this Development Agreement solely with respect to a limited
obligation of such Limited Party. With respect to each Limited Party, such obligations, rights
and remedies are expressly limited as follows:
(i) AURA. AURA’s obligations arising under this Development
Agreement are limited to those set forth in Section 4.3. AURA’s rights and remedies
arising under this Development Agreement are as set forth in Section 7.7(c)(i).
(ii) EMD. EMD’s obligations arising under this Development
AgreementsAgreement are limited to those set forth in Section 5.4. EMD’s rights and
remedies arising under this Development Agreement are as set forth in Section 7.7(c)(ii).
(iii) The Commercial PIC. The Commercial PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Commercial PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iii).
(iv) The Mixed Use PIC. The Mixed-Use PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Mixed-Use PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iv).
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(b) Intended Beneficiaries. Except to the extent an Intended Beneficiary
undertakes obligations as an Applicant in connection with the development of a Site and/or
execution of a Public Improvement Agreement as provided in this Development Agreement, no
Intended Beneficiary is subject to any obligation arising solely under this Development
Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set
forth in Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy
arising solely under this Development Agreement.
ARTICLE 2
ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS
2.1 Annexation. Annexation of the Property was accomplished in accordance with
the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.) as in effect in 1998. Consistent with the foregoing and in
implementation of the Settlement Term Sheet, this Development Agreement ratifies annexation
of the Property.
2.2 PUD Zoning. Planned unit development (PUD) zoning of the Property was
accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in
implementation of the Settlement Term Sheet, this Development Agreement ratifies the PUD
zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each
formal amendment to the PUD Guide and/or PUD Master Plan accomplished prior to the
Effective Date, and ratifies all development that has occurred within the Property pursuant to the
Original PUD Guide. Concurrently with Recording of this Development Agreement, the Parties
caused Recording of the PUD Guide. Accordingly, the Property is zoned PUD pursuant to and as
set forth in the PUD Guide. [Notwithstanding expiration of the Vesting Term or expiration of the
Term, the PUD Guide shall continue to be the effective zoning of the Property and the effective
development standards for the Property unless and until amended in accordance with applicable
law, rules, regulations and procedures; provided, however, the Property shall then be subject to
all general powers and authority of the Town concerning zoning, rezoning, planned unit
development, subdivision, land use regulation, building regulation and other general regulation
of the Town to the extent not in conflict with any express terms of the Development Plan
including, but not limited to, applicable rules, regulations and procedures regarding amendment
of the PUD Guide. . Note: Bracketed, italicized language is not an STS matter and is not in
the Original Agreement. Developers are willing to consider the Town’s request for
inclusion of this language subject to satisfactory resolution of other open issues. EH is
expected to propose additional language.]
2.3 Vesting of Property Rights. The Original Agreement and the Original PUD Guide
were Site Specific Development Plans with respect to which the Town granted Vested Property
Rights for a term of thirty-five (35) years from the Original Effective Date. Consistent with the
foregoing and in implementation of the Settlement Term Sheet, this Development Agreement
ratifies the Vested Property Rights established by the Original Agreement and, as described in
Section 1.4(a), extends the term of such Vested Property Rights (including with respect to future
amendments to any such Site Specific Development Plan) through and including October 20,
2039.
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Approval of the Development Plan constitutes a vested property right
pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter
16, of the Avon Municipal Code as amended.
2.4 Property Rights Vested. The rights identified below (collectively, the “Vested
Property Rights”) are expressly ratified, granted and approved by Town Council:
(a) The right to develop, plan and engage in land uses within the Property and
the Project in the manner and to the extent set forth in and pursuant to the Development
Plan and other Approved SSDP (if any).
(b) The right to develop, plan and engage in land uses within the Property and
the Project in accordance with the densities, physical development standards and other
physical parameters set forth in the PUD Guide and other Approved SSDP (if any).
(c) The right to develop the Project in the order, at the rate and at the time as
the applicable Developer determines appropriate given market conditions and other
factors, subject to the terms and conditions of the Development Plan and other Approved
SSDP (if any).
(d) The right to develop and complete the development of the Project
including, without limitation, the right: (i) to receive all Town approvals necessary for
the development of the Project which comply with applicable standards and criteria for
review; (ii) the right to Town approvals with conditions, standards and dedications which
are no more onerous than those imposed by the Town upon other developers in the Town
on a uniform, non-discriminatory and consistent basis, and subject only to the exactions
and requirements set forth in the Development Plan and other Approved SSDPs (if any);
and (iii) that such conditions, standards and dedications shall not directly or indirectly
have the effect of materially and adversely altering, impairing, preventing, diminishing,
imposing a moratorium on development, delaying or otherwise adversely affecting any of
Master Developer’s, EMD’s, Developer Affiliates’ or any other Landowner’s rights set
forth in the Development Plan or other approved SSDP (if any).
(e) The right to prevent (by mandamus, mandatory or prohibitory injunction
or other form of legal or equitable remedy) the application to the Property or the Project
of any Town or citizen initiated zoning, land use or other legal or administrative action
that would directly or indirectly have the effect of materially and adversely altering,
impairing, preventing, diminishing, imposing a moratorium on development, delaying or
otherwise adversely affecting any of Master Developer’s, EMD’s, Developer Affiliates’
or any other Landowner’s rights set forth in the Development Plan and/or other Approved
SSDP (if any). Section 7.1 of the Town’s Charter precludes citizen-initiated measures
regarding certain matters, including the zoning or rezoning of property. In accordance
with Section 7.1 of the Town’s Charter, no initiated measure shall be permitted that would
have the effect of modifying or negating the Town ordinance by which Town Council
approved implementation of the Settlement Term Sheet, or any instrument implementing
the Settlement Term Sheet as approved in such Town ordinance, including but not limited
to the Development Plan.
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(f) Notwithstanding any additional or contrary provision of the Municipal
Code (as in effect on the Effective Date or as amended from time to time), the Vesting
Term with respect to the Development Plan and other Approved SSDPs (if any) shall not
expire, be deemed forfeited, or otherwise limited or impaired prior to October 21, 2039.
For the avoidance of doubt and notwithstanding any contrary provision of the Municipal
Code (as in effect on the Effective Date or as amended from time to time), the scope of
Vested Property Rights established by this Development Plan specifically includes the
right that all amendments to the Development Plan or other Approved SSDP (if any)
approved by the Town shall be and remain vested through and including October 20,
2039, and includes the right to retain and enjoy the remaining period of the Vesting Term
for any amendment to the Development Plan or other Approved SSDP (if any).
Accordingly, Town Council (or other final decision-maker of the Town) shall not
condition approval of any future amendment to the Development Plan or other Approved
SSDP (if any) on, nor shall Town Council (or other final decision-maker of the Town)
make any such approval subject to the Applicant’s, Landowner’s or Master Developer’s
consent to, a reduction of the then-remaining Vesting Term.
2.5 No Obligation to Develop.
(a) Master Developer; Other Landowners. Neither Master Developer, EMD
nor any Landowner shall have any obligation arising under this Development Agreement to
develop all or any portion of the Project, nor shall Master Developer, EMD or any Landowner
have any liability to the Town or any other party arising under this Development Agreement for
not developing all or any part of the Project. The Parties contemplate that the Project will be
developed in phases as generally driven by market conditions as they exist from time to time.
Neither Master Developer, EMD nor any Landowner shall have any obligation arising under this
Development Agreement to develop all or any portion of any such phase, notwithstanding the
development or non-development of any other phase, and neither Master Developer, EMD nor
any Landowner shall have any liability to the Town or any other party arising under this
Development Agreement for not developing all or any portion of any such phase of the Project.
(b) Districts. The Districts’ Service Plans establish the scope of the Districts’
authorized activities and shall not be construed to constitute an obligation of the Districts to
cause the development of any particular Public Improvements, or to provide any particular
services or to perform any other function for which the Districts have authorization, nor shall
such Service Plans be construed to create any obligation of Master Developer, EMD or any
Landowner to provide any Public Improvements, any services or to otherwise pay any monies or
perform any actions on behalf of or for the benefit of the Districts. No District shall have any
obligation arising under this Development Agreement to develop all or any portion of the Public
Improvements, nor shall any District have any liability to the Town or any other party arising
under this Development Agreement for not developing all or any part of the Public
Improvements. The Parties contemplate that the Project will be developed in phases as generally
driven by market conditions as they exist from time to time. No District shall have any
obligation arising under this Development Agreement to develop all or any portion of the Public
Improvements pertinent to any such phase, notwithstanding the development or
non-development of any Public Improvements for any other phase, and no District shall have any
liability to the Town or any other party arising under this Development Agreement for not
12 1001679.14 08/311001679.15 09/07/12
developing all or any portion of the Public Improvements pertinent to any such phase of the
Project. The foregoing shall not be construed to relieve any District of any obligation established
pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a
District as contemplated in Section 3.3(a).
(c) Construction and Interpretation. For purposes of this Section 2.5
references to Master Developer, EMD, Landowners and the Districts shall be construed to
include their respective employees, agents, members, officers, directors, shareholders,
consultants, advisors, successors, assigns and similar individuals or entities.
2.6 Compliance with General Regulations. Except as otherwise provided in
the Development Plan, the establishment of Vested Property Rights under this Development
Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town
ordinances and regulations of general applicability (including, but not limited to, building, fire,
plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Effective
Date or as amended from time to time), and other Town rules and regulations) or the application
of state or federal regulations, as all of such regulations existed on the Effective Date or may be
enacted or amended after the Effective Date; provided, however, that in construing the effect of
the foregoing together with the other provisions of this Article 2, Town ordinances and
regulations newly enacted or amended after the Original Effective Date shall not be applied
within the Property without Master Developer’s and the applicable Landowner’s prior written
consent to the extent such application would directly or indirectly have the effect of adversely
altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying
or otherwise adversely affecting any Landowner’s Vested Property Rights. No Landowner shall
be deemed to have waived its right to oppose the enactment or amendment of any such
ordinances and regulations.
ARTICLE 3
PUBLIC IMPROVEMENTS; DEVELOPMENT STANDARDS; EXACTIONS
3.1 Permitted Uses/Design Standards. The permitted uses of the Property, the density
and intensity of use, the maximum height, bulk and size of proposed buildings, design standards,
road profiles and sections, provisions for reservation or dedication of land for public purposes,
the general location of roads and trails, the ability of an Applicant to relocate roads, trails and
improvements, and other terms and conditions of development applicable to the Property and the
Project shall be those set forth in the PUD Guide and in this Development Agreement.
3.2 Design Review. As contemplated by the Original Agreement and as more
particularly described in the PUD Guide, the Design Review Board has been established (and, as
required by the Original Agreement, includes a member designated by the Town’s Planning and
Zoning Commission), the Design Covenant has been Recorded and the Design Review
Guidelines have been promulgated. The Design Covenant shall govern matters related to use
and development of all or any part of the Property. Where any conflict between the Design
Review Covenant and the Development Plan may occur, the most restrictive provision shall
govern. The Design Review Board shall refer to the Town’s Planning and Zoning Commission,
for comment only and not for approval or disapproval: (i) all development proposals submitted
to the Design Review Board for portions of the Property located south of Interstate 70 and all
13 1001679.14 08/311001679.15 09/07/12
portions of the Property located north of Interstate 70 other than Planning Areas K and RMF-1
(with respect to which the Design Review Board shall have no obligation to refer to the Town’s
Planning and Zoning Commission); and (ii) any revisions to the Design Review Guidelines that
are proposed after the Effective Date. At Master Developer’s option, one or more separate
design review board(s) may be established with respect to such Planning Areas RMF-1 and K.
Such design review board(s) shall not be required to include any Town official as a member.
3.3 Allocation of Public Improvement Obligations. Except as otherwise expressly set
forth in this Development Agreement, the timing of the design, construction and financing of the
Public Improvements, as well as the designation of the specific entity responsible for such
design, construction and financing, will be addressed in the applicable Public Improvement
Agreement(s) as development of the Project takes place in conjunction with the processing of the
applicable Development Application (which may or may not be a subdivision application). The
Public Improvement obligations described in this Development Agreement are intended to be
allocated among, as applicable, the Districts, Master Developer, a Developer and/or an Applicant
based on the relationship between the particular Public Improvement(s), the Site owned by the
particular Developer and/or Applicant, and the nature of the development occurring on the Site.
This Development Agreement does not specifically allocate such Public Improvement
obligations, it being the Parties’ intent that the allocation will be set forth in a Public
Improvement Agreement executed in connection with the processing and approval of the
applicable Development Application. Public Improvements for which a District does not
undertake to finance the design, construction, maintenance and operation shall be undertaken by
the applicable Developer and/or Applicant. All such Public Improvements, whether undertaken
by a District or undertaken by a Developer and/or Applicant, shall be undertaken and provided in
accordance with the terms and conditions of the applicable Public Improvement Agreement
executed in connection with approval of the pertinent Development Application.
(a) Role of Districts. Subject to the availability of funds therefor, District
board of directors authorization, the terms and conditions of this Development Agreement, the
Districts’ respective Service Plans and state law, and in consideration of the Town’s performance
of its obligations under this Development Agreement (specifically including but not limited to
the Financing Plan), the Districts may from time to time (without obligation to do so arising
under this Development Agreement) undertake to finance the design, construction, maintenance
and operation, as applicable, of the Public Improvements as and when reasonably needed to
support development of the Project. References to Master Developer, EMD, Developer
Affiliates, Developers, Landowners or Applicants in the context of the Public Improvement
obligations addressed in this Development Agreement will be construed to mean and include by
reference the applicable Districts to the extent particular Districts have undertaken such
obligations pursuant to the terms of a Public Improvement Agreement as contemplated in this
Development Agreement. This Development Agreement will not be construed as creating an
implied obligation for the Districts to finance or construct any particular Public Improvements
prior to such District’s execution of a Public Improvement Agreement pursuant to which the
applicable District undertakes specific obligations regarding specific Public Improvements. Any
obligation undertaken by a District pursuant to this Section 3.3 shall not be construed to
constitute a multiple fiscal year obligation of such District, but shall be subject to annual budget
and appropriation unless otherwise agreed to in writing by such District.
14 1001679.14 08/311001679.15 09/07/12
(b) Assurance of Completion. The Applicant for any Development
Application submitted after the Effective Date will provide an improvement guarantee assuring
completion of the Public Improvements as required by the Municipal Code as then in effect (to
the extent not inconsistent with an express provision of this Development Agreement or the PUD
Guide), and as more particularly described in the applicable Public Improvement Agreement to
be executed in connection with future Development Application approvals. If all or any portion
of the Public Improvements required pursuant to a Public Improvement Agreement are being
constructed by or for a District, and notwithstanding any provision of the Municipal Code (as in
effect on the Effective Date or as amended from time to time) to the contrary, the Town will
accept for the assurance of completion under such Public Improvement Agreement the District’s
budgeted and appropriated present cash reserves designated specifically for such purpose
(whether to be completed in the current or any future fiscal year) in accordance with terms and
conditions to be set forth in the applicable Public Improvement Agreement.
(c) Warranty Period. All Public Improvements Dedicated to and Accepted by
the Town shall be subject to a two (2) year Preliminary Acceptance warranty period (or any
shorter warranty period that may be set forth in the Municipal Code as in effect from time to
time), and otherwise shall be subject to the procedures for Town Acceptance as set forth in the
Municipal Code (as amended from time to time) to the extent not in conflict with the terms and
conditions set forth in the definitions of Preliminary Acceptance, Final Acceptance or
Acceptance contained in Exhibit G.
3.4 Public Roads and Access.
(a) General. Access, ingress and egress to, from and within the Project shall
be provided as generally described in the Development Plan. As generally described in Recital
K, prior to the Execution Date TCMD has fully performed all road construction obligations
specifically required pursuant to the Original Agreement. The PUD Master Plan graphically
depicts the alignments of existing permanent roads, the alignments of existing temporary roads,
and potential conceptual alignments of some future roads. Subject to the availability of District
Revenues not pledged or otherwise encumbered by the obligations of the Districts as set forth
herein or under any debt instruments contemplated herein, one or more of the Districts may (as
contemplated by and subject to the conditions described in Section 3.3(a)) undertake to finance
and/or construct the public roads within the Project. All public roads, whether constructed by or
on behalf of a District or a Developer, shall be constructed in accordance with the standards set
forth in the PUD Guide and shall be Dedicated to and Accepted by the Town in accordance with
clause (b) below. Nothing set forth in the preceding sentence shall prohibit or limit a
Landowner’s right to construct and maintain private roads, or to construct and Dedicate public
roads to the Town or to a District (subject to the availability of sufficient District Revenues to
maintain such public roads).
(b) Dedication; Acceptance and Maintenance of Public Roads and Rights-of-
Way . Subject to the specific terms and conditions set forth in Article 4 and Article 6:
[Note: Town wants its Code to apply regarding dedication of future rights of way.
This is under discussion and pending proposed language from EH]
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(i) Existing Public Roads. Contemporaneously with the Effective
Date, TCMD conveyed to the Town all of TCMD’s right, title and interest in and to the
existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder
Avenue), together with the road improvements, streetscape improvements, landscape
improvements and drainage improvements located within such rights-of-way. The Town
granted Final Acceptance of all such roadways and related improvements for
maintenance without reservation or condition, whether related to warranty periods or
otherwise, and released all warranty collateral related thereto. [Note: Need to track this
and assure it occurs.]
(ii) Main Street. As of the Effective Date, the temporary alignment
and road surface of East Beaver Creek Boulevard within Lot 1 (redesignated in the PUD
Guide as Main Street) is located within the easement established by the Easements with
Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8,
2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as
each pertinent phase of the final alignment thereof is completed as more specificall y set
forth in the PUD Guide. Dedication of each phase of the permanent alignment of Main
Street shall be accomplished pursuant to clause (iii) below. During the period prior to
Dedication of each phase of the permanent alignment of Main Street, the Town is and
shall remain responsible for snow removal, road maintenance, streetscape maintenance
and landscape maintenance within the current East Beaver Creek Boulevard easement (it
being acknowledged that no streetscape or landscape improvements are located therein as
of the Effective Date, but that the Town shall maintain such improvements, if any, that
may be installed after the Effective Date); provided, however, asphalt overlays shall not
be required prior to Dedication and, as set forth in Section 4.2(d), the Town shall
undertake responsibility for asphalt overlays only after Dedication. From and after
Dedication of each phase of the permanent alignment of East Beaver Creek
Boulevard/Main Street, the terms and conditions of clause (iii) below shall apply to such
Dedicated phase.
(iii) Future Public Roads and Right-of-Ways . Future public road
rights-of-way and improvements located therein (including future phases of the
permanent alignment of Main Street) shall be Dedicated to the Town by special warranty
deed in the form attached as Exhibit B of this Development Agreement upon generally
the same terms and conditions as the conveyances referenced in clause (i) above.
Concurrently with the Dedication, the Town shall grant Preliminary Acceptance of the
pertinent property interests and Public Improvements. Upon expiration of the warranty
period and resolution of any warranty matters that might arise during the Preliminary
Acceptance period, the Town shall grant Final Acceptance. With respect to the primary
road providing access to Planning Area K, the Town and Master Developer acknowledge
it is intended that the road will be a public road from the Post Boulevard roundabout
located north of Interstate 70 to a point approximately adjacent to the northwest corner of
Lot 73 as indicated on the PUD Master Plan in effect as of the Effective Date, and will be
a private road from that point through the remaining area of Planning Area K. The final
point of demarcation will be established at the timing of final subdivision plat. The Town
shall have no maintenance or snow removal responsibility for the portion of such road
that is private.
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(iv) Sidewalk Snow Removal. The Town’s obligation pursuant to this
Development Agreement to remove snow from sidewalks shall be limited to Post
Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment
existing as of the Effective Date and the future final Main Street alignment), Swift Gulch
Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along public
roads shall be in accordance with generally applicable standards set forth the Municipal
Code (as amended from time to time) and applied uniformly throughout the Town.
(c) Phased Road Improvements. All roads, including Main Street and East
Beaver Creek Boulevard (as such roads are identified on the PUD Master Plan), may be
developed in phases in accordance with the road standards set forth in Exhibit F of the
PUD Guide and as warranted based on the applicable traffic study. Without limiting the
generality of the foregoing, construction of the final alignment of Main Street shall
consist of converting the existing alignment and road surface from temporary to
permanent by the phased construction thereof in accordance with the road standards set
forth in Exhibit F of the PUD Guide.
3.5 Municipal Water; Water Rights Dedications. Pursuant to and as more particularly
described in the Tank Agreement: (i) TCMD has conveyed to the Town, and the Town has
thereafter conveyed to the Authority, certain water rights that are specifically allocated to serve
development within the Property and the Project, including those water rights decreed in Case
No. 97CW306 (together with additional water rights, if any, Dedicated to the Town or to the
Authority for such purposes after the Effective Date pursuant to Section 3.5(b), the “Water
Rights”); (ii) the Water Rights conveyed to the Authority as of the Effective Date equate to
180.6 acre feet of consumptive use as set forth in Case No. 97CW306; and (iii) as of the
Effective Date, the Authority is legally obligated to issue taps and to provide that number of
single family equivalents (SFE) of water service to the Project which is equivalent to 180.6 acre
feet of consumptive use (as of the Effective Date, estimated to be approximately 2,800 SFE,
more or less). Additionally, the Tank Agreement provides that the Town has certain obligations
with respect to providing municipal water service to the Project under circumstances where the
Authority fails to provide such services due to dissolution or otherwise. The Water Rights that
have been conveyed to the Authority as of the Effective Date are irrevocably allocated for use
within the Property, and may not be re-allocated to serve development outside of the Property
without the prior written consent of BNP (for so long as so long as there are outstanding
obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding
of such bonds), Master Developer and TCMD. Accordingly: [Note: This Section is subject to
final review by TCMD’s water counsel. Also, Town Council members and EH had
comments/questions regarding the basis and timing of allocation of water rights, having
water tied to the property, etc., with objective being that any property that is conveyed to
have adequate water rights to support anticipated development. Further note that water
allocation/tracking is not a requirement of the STS, nor is it carried forward from the
Original Agreement. Therefore, it is unclear whether it should be eliminated based on
Town Council’s general direction to eliminate matters not literally required by the STS.
For purposes of this submittal, most of this Section has been removed pending further
discussion with and direction from the Town.]
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(a) Water Bank. Master Developer and the Town shall establish and jointly
maintain a cumulative written record (the “Water Bank”) that documents: (i) the total Water
Rights; (ii) the specific allocations of Water Rights to particular Sites; and (iii) the Water Rights
remaining available to be allocated for use within the Property. In connection with each final
subdivision plat for a Site (whether processed administratively or formally) or building permit (if
no Water Rights, or insufficient Water Rights, have previously been allocated for such Site), and
subject to Subsection 3.5(c), Master Developer shall designate the portion of Water Rights that is
allocated for development of the Site, and concurrently with approval of the final subdivision
plat (or issuance of the pertinent building permit(s)) the Water Bank shall be updated to reflect
such allocation and to reflect the corresponding reduction in the Water Rights available for use
within the Property. The amount of water rights required to service development shall be based
on consumptive use of the particular Site as determined in accordance with the generally
applicable rules and regulations of the Town and the Authority, as modified by the Tank
Agreement if applicable.
(b) Return of Water Rights to Water Bank. If the amount of Water Rights
allocated for any particular Site exceeds the amount of Water Rights actually required to serve
the Site based upon actual development and final build-out thereof (such actual Water Rights
demand to be determined in accordance with applicable requirements of the Authority), the
excess and unused Water Rights shall be returned to the Water Bank and the Water Bank shall be
revised to reflect that such excess and unused Water Rights are available for allocation and no
longer allocated to the original Site. Excess and unused Water Rights returned to the Water
Bank shall be available for allocation in accordance with Section 3.5(a) as though such Water
Rights previously had not been allocated from the Water Bank to serve a particular Site.
(c) Additional Water Rights.
(i) For the Property. Full build-out of the Project as contemplated by
the Development Plan may require in excess of 180.6 acre feet of consumptive
use. If the aggregate total Water Rights is insufficient to support full development
of the Project in accordance with the PUD Guide and all available Water Rights
have been allocated to Sites (whether developed or undeveloped) such that there
are no Water Rights remaining in the Water Bank, no further development may
occur within the Property unless and until, with respect to the Water Rights
required to support such further development: (A) additional water rights are
Dedicated and added to the Water Rights available for allocation pursuant to the
Water Bank; or (B) payment is made of fees in lieu of additional water rights
Dedication; or (C) previously allocated but unused Water Rights are re-allocated
from the original Site and returned to the Water Bank in accordance with Section
3.5(b).
(ii) For a Specific Site. If the Water Rights allocated to a Site in
connection with a Development Application are not sufficient to serve the level of
development proposed in the Development Application, the Applicant shall cause
either the Dedication of such additional water rights or payment of such fees-in-
lieu of water rights Dedication as may be required to fully satisfy the Water
Rights requirement for the Development Application. Under such circumstances,
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the additional water rights Dedication or payment of fees-in-lieu shall be a
condition precedent to, as applicable, issuance of the building permit or
Recording of the final subdivision plat.
(iii) Under the circumstances addressed in the foregoing clause (i) and
clause (ii), which provisions shall be strictly construed against precluding
development, the Town shall have no obligation to Record a final subdivision plat
or issue a building permit with respect to a particular Site unless the requisite
additional Water Rights obligation is satisfied in accordance with this Section
3.5(c). The determination of whether Dedication of additional water rights or
payment of fees in lieu shall be in accordance with generally applicable rules and
regulations of the Authority and the Town. Dedications of water rights, if
required, shall be made in accordance with generally applicable Town rules,
regulations and agreements with the Authority as in effect from time to time, it
being acknowledged that the Town’s generally applicable rules, regulations and
agreements with the Authority in effect as of the Effective Date require
Dedication to the Town and conveyance of such water rights by the Town to the
Authority.
(d) Building Permits; Moratoria. The Town shall not withhold issuance of
building permits, certificates of occupancy or processing/approval of Development Applications,
nor shall the Town impose or enforce any moratorium on development within the Project, on the
basis of insufficient Dedication of Water Rights for development which does not exceed the
consumptive use of the Water Rights that have been Dedicated at such time; provided, however,
that: (i) allocation of Water Rights shall be tracked in the manner set forth in Sections 3.5(a) and
3.5(b); and (ii) issuance of building permits and Recording of final subdivision plats may be
withheld or conditioned in accordance with the express terms and conditions of Section 3.5(c).
(e) Additional Water Tanks. If TCMD, any Applicant or any other party
undertakes to construct one or more water storage tanks at an elevation higher than the water
storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any contrary
provision of the Municipal Code (as in effect on the Effective Date or as amended from time to
time), the Town shall not require the Applicant to seek a 1041 permit and shall not require the
tank site to be a legally subdivided parcel (provided the owner of the water storage tank has an
easement for the operation and maintenance thereof, and further provided that the Town may
require the tank site easement area to be platted at such time as the lot(s) or tract(s) adjacent to
the tank site is platted). If construction of any such water storage tank is undertaken independent
and in advance of development of the portion of the property to be served by the water storage
tank, the Town shall not require execution of a Public Improvement Agreement or monetary
collateral (cash escrow, letter of credit or similar mechanism) for assurance of completion of the
water storage tank; provided, however, that the Town may require a bond for the purpose of
ensuring erosion control, mitigation of safety hazards, fencing and other matters related to
properly securing the site if construction is discontinued indefinitely prior to completion. If
construction of any such water storage tank is undertaken as a condition of approval of a
Development Application for development of a Site with respect to which service will be
required to be provided from the to be constructed water storage tank, the Town may require
construction of the water storage tank and assurance of completion thereof pursuant to the terms
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and conditions of a Public Improvement Agreement as otherwise provided in this Development
Agreement. The Town shall have no obligation to issue a temporary or final certificate of
occupancy for a habitable structure within any Site with respect to which water service cannot be
provided without such water storage tank becoming operational until such time as the pertinent
water storage tank becomes operational. The foregoing shall not preclude the Town from issuing
a building permit prior to completion of such a water storage tank if the Town determines such
action to be consistent with public health, safety and welfare under circumstances then pertaining
(for example, the water storage tank is reasonably anticipated to be operational prior to
completion of the improvements for which the building permit is issued and the issuance of the
building permit is conditioned on the water storage tank becoming operational prior to issuance
of a temporary or permanent certificate of occupancy). [Note: This provision implements STS
Schedule 3 obligations that “new 1041 regulations” will not apply.]
(f) Tap Fees. The Town expressly disclaims any right, title or interest in or to
any tap fees payable in connection with development within the Property, and acknowledges that
all such tap fees constitute District Revenues and are the property of, and shall be due and
payable to, TCMD. The Town shall remit monthly to TCMD 100% of all water tap fees
collected by the Town with respect to providing water service to any user of the Property.
Alternatively, the Town may direct that all such users remit water tap fees directly to TCMD.
[Note: Town Council and EH raised questions regarding the tap fee arrangement. It is
carried forward from the Original Agreement and is consistent with other existing water
agreements. EH is expected to provide proposed language.]
(g) Town Obligations Upon Assuming Authority Obligations. If the Town
undertakes to provide water service to the Property in connection with dissolution of the
Authority or otherwise, the Town shall charge water tap fees (subject to Section 3.5(f)) and
usage charges to users within the Property on a uniform, non-discriminatory basis with other
users within the Town. [See above comment to clause (f).]
3.6 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary
sewer service to the Project. The topography of Planning Area K, the size of the lots contained
in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and
from the facilities of the Sanitation District, together with the comparative ease of servicing
Planning Area K with individual septic tank and leach field systems, render all or designated
areas within Planning Area K appropriate for exclusion from the Sanitation District.
Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all
or any part of Planning Area K, whether initiated by Master Developer or the Developer of such
portion of Planning Area K. [Note: Town Council members questioned this provision. It is
carried forward from the Original Agreement.]
3.7 Drainage Plans; Stormwater Management. Drainage plans and stormwater
management plans required in connection with the processing of any Development Application
shall be in accordance with the terms and conditions of the PUD Guide.
3.8 Land Dedications. As generally described in Recital K, prior to the Execution
Date the pertinent Landowner fully performed certain land Dedication obligations specifically
required to be performed pursuant to the Original Agreement, and all such Dedications shall be
20 1001679.14 08/311001679.15 09/07/12
deemed to have been granted Final Acceptance. This Section 3.8 sets forth the sole unperformed
and/or additional obligations of Master Developer, EMD, the Developer Affiliates, or any
pertinent Landowner to Dedicate land, and the assumptions underlying the Finance Plan are
expressly based upon and reliant on the specific land Dedication requirements set forth in this
Section 3.8. Accordingly, except as otherwise set forth below, during the Term and
notwithstanding any current or future provision of the Municipal Code to the contrary, the Town
shall not impose any land Dedication requirement, impact fee requirement or development
exaction of any sort, except for the following, the performance of which together with prior land
dedications and related exactions fully satisfies and extinguishes any dedication, impact fee
and/or development exaction obligations pertaining to or in connection with development of the
Project:
(a) School Site Dedication. The Original Agreement set forth certain
requirements regarding the Dedication of land or cash in lieu thereof to address the
impact of the Project on the school system. Pursuant to the Settlement Term Sheet, the
school site provision of the Original Agreement has been modified as set forth in this
Section 3.8(a) and, as of the Effective Date, Ordinance No. 06-17 and all conditions and
restrictions set forth therein are rendered legally inoperative, void and of no further force
or effect. [Note: The Ordinance approving the Development Agreement should
contain a specific provision that expressly repeals 06-17. ]
(i) Parcels to be Conveyed. The following conveyances (collectively,
the “School Site Dedication”) shall constitute full satisfaction of all requirements under
the Municipal Code (as in effect on the Effective Date or as amended from time to time)
and other current or future Town regulations with respect to mitigation of the Project’s
impact on the school system:
(A) Concurrently with the Effective Date, TC-RP conveyed to
the Town the approximately 3.536 acre Site designated on the PUD Master Plan
as Planning Area E (i.e., Lot 3, The Second Amended Final Plat, Amended Final
Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the
Effective Date)). Neither TC-RP, Master Developer nor TCMD, TCMD , any
Developer Affiliate or any Landowner (other than the Town or an educational
entity to which the Town has conveyed such Site) shall have any obligation with
respect to provision of any Public Improvements or other on-site or off-site
improvements for Planning Area E, all such obligations being the sole
responsibility of the Town. Accordingly, the Town hereby grants Final
Acceptance with respect to Dedication of Planning Area E. [Note: Foregoing is
per the STS. The Town has requested additional acreage. EH is further
reviewing the easements affecting this parcel, and is expected to provide
proposed language. Also, subsequent to the request for additional acreage in
PA -E, EH proposed an alternative arrangement to satisfy the School Site
Dedication obligation, but which is directly at odds with the STS. Developers
are considering both alternatives, but note that any alternative will
potentially affect the administrative plat that creates PA-E and would need to
be resolved very quickly. For present purposes, the School Site Dedication
provisions have not been revised.]
21 1001679.14 08/311001679.15 09/07/12
(B) EMD (or the Landowner at the pertinent time), shall
Dedicate to the Town an approximately 3.764 acre Site within Planning Area I
upon Recording of the initial final subdivision plat within Planning Area I.
Neither EMD (or the then-Landowner), TCLLC, TCMD, any Developer Affiliate,
or any other Landowner (other than the Town or an educational entity to which
the Town has conveyed such Site) shall have any obligation with respect to
provision of any Public Improvements for the approximately 3.764 acre Site
within Planning Area I. Accordingly, the Town shall grant Final Acceptance with
respect to Dedication of the Planning Area I Site concurrently with Recording of
the conveyance documents and no Acceptance, assurance of completion
requirement or warranty period requirements shall apply. Access to the Planning
Area I Site from a public street and extension of utilities and other Public
Improvements shall be addressed through the final subdivision plat process, and
the related Public Improvement Agreement may provide for reimbursement of the
cost of shared Public Improvements that benefit the Planning Area I Site and other
Sites within PA-I on an equitable pro rata basis.
(ii) Use Restriction. Notwithstanding anything to the contrary set forth
in the Municipal Code (as in effect on the Effective Date or as amended from time to
time) or any other statute, ordinance, regulation or the like, use of the School Site
Dedication parcels shall be restricted to state authorized [need to confirm whether this
is the appropriate word to replace “licensed” as requested by ECSD] education
facilities serving grades K through 12 (or any portion of such grades); provided, however,
that prior to construction of school facilities permitted hereunder, the Town may use the
School Site Dedication parcels for outdoor recreation, parks or open space purposes and
for no other use or purpose (including other municipal purposes, snow storage, equipment
storage or similar purposes) without the Town having first obtained Master Developer’s
or EMD’s written consent, as applicable, which consent may be given or withheld in
Master Developer’s or EMD’s sole discretion. Each special warranty deed conveying a
School Site Dedication parcel shall incorporate the foregoing use restriction, which use
restriction shall be independently enforceable as a deed restriction and not merged into or
construed to preclude enforcement of the use restriction imposed by this Section
3.8(a)(ii); provided, however, that the scope of the use restriction as stated in the
applicable deed shall control over any broader or narrower scope set forth herein.
(iii) Form of Conveyance. Conveyance of the Planning Area I School
Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B
to this Development Agreement, shall be without any reversionary clause, subject to all
matters of Record other than monetary liens, and shall contain an express use restriction
consistent with the foregoing Section 3.8(a)(ii). Conveyance of the Planning Area E
School Site Dedication parcel was effected by Recording of a special warranty deed in
the form attached as Exhibit B to this Development Agreement, without any reversionary
clause, subject to all matters of Record other than monetary liens, and containing an
express use restriction consistent with the foregoing Section 3.8(a)(ii).
22 1001679.14 08/311001679.15 09/07/12
(iv) Additional Conditions.
(A) Any use undertaken and any improvements constructed or
installed within the School Site Dedication parcels shall comply with the terms of
the Development Plan and shall be subject to review and approval by the Design
Review Board. Prior to development of the School Site Dedication parcels for
school purposes, the Town shall be responsible for installing and maintaining all
improvements to be made within the School Site Dedication parcels and for
controlling all noxious weeds within the School Site Dedication parcels.
(B) If Eagle County School District demonstrates a need for a
school site within the Project based on the impact of development within the
Project, the Town, Master Developer and EMD shall use best efforts to combine
the park land dedications contemplated in Section 3.8(d) with the Planning Area I
School Site Dedication parcel to create a consolidated site of sufficient size to
meet the reasonable needs of the Eagle County School District. The preceding
sentence shall not be construed to have the effect of: (i) creating a legal right of
Eagle County School District to obtain a school site within Planning Area I or any
other area of the Property; (ii) creating any legal obligation of the Town, EMD,
Master Developer or any Landowner or Applicant to provide a school site on
Planning Area I or any other area of the Property to the Eagle County School
District; or (iii) creating a legal obligation of the Town, EMD, Master Developer,
any Landowner or any Applicant to combine the park land Dedication with the
Planning Area I School Site Dedication parcel. Eagle County School District
shall not be construed to be, and the Parties expressly intend that Eagle County
School District shall not be, an Intended Beneficiary.
(C) The Town may lease or convey such School Site
Dedication parcels to educational districts or organizations upon such terms as the
Town determines in its sole discretion provided that: (i) such lease or conveyance
shall be for nominal consideration; and (ii) such lease or conveyance shall be
expressly subject to the use restriction established pursuant to Section 3.8(a)(ii)
and the applicable deed restriction as contemplated by Section 3.8(a)(iii).
(D) Pursuant to the PUD Guide and prior to construction of a
school facility on such parcel, the Town shall administratively process and
approve subdivision re-platting of either or both the Planning Area E School Site
Dedication parcel or the Planning Area I School Site Dedication parcel to adjust
the boundaries of such parcels in connection with final development of an
adjacent Planning Area or Site. The Town shall not unreasonably deny, condition
or delay final action with respect to a Development Application to
administratively re-plat the School Site Dedication parcels as provided herein.
(b) Dedication of Planning Area B. Concurrently with the Effective Date,
TC-RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD
Master Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended
Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the
23 1001679.14 08/311001679.15 09/07/12
Effective Date)). Neither TC-RP, Master Developer, TCMD nor TCMDany Landowner
(other than the Town) shall have any obligation with respect to provision of any Public
Improvements or other on-site or off-site improvements for Planning Area B, all such
obligations being the sole responsibility of the Town and not of AURA. Accordingly, the
Town hereby grants Final Acceptance with respect to Dedication of Planning Area B.
Any construction of buildings or facilities or landscaping improvements on Planning
Area B, or any Public Improvements required in connection with the Town’s
development of Planning Area B, shall be subject to prior approval by the Design Review
Board. The Town may create a plan for the development and use of Planning Area B,
which may be adopted by the Design Review Board, and which shall then serve as a
guide for review of uses and development of Planning Area B by the Design Review
Board. Any use or plan for use of Planning Area B shall allow and incorporate the ability
to construct for storage and/or augmentation purposes a water feature which can provide
at least 2 acre feet of water storage (which shall not exceed a total surface area of .6
acres, including inflow and outflow on Planning Area B). Notwithstanding the preceding
sentence, the Town shall have the right to maintain and operate as public open space all
or a portion of Planning Area B which is not yet developed in accordance with this
Section. Pursuant to the PUD Guide, the Town shall administratively process and
approve subdivision re-platting of Planning Area B to adjust the boundary of Planning
Area B in connection with final development of an adjacent Planning Area. The Town
shall not unreasonably deny, condition or delay final action with respect to a
Development Application to administratively re-plat Planning Areas B as provided
herein. Until such time as Planning Area B is developed or improvements are
constructed thereupon that preclude use of Planning Area B for snow storage, the Town,
Master Developer and TCMD shall have the right to use Planning Area B for snow
storage in accordance with the terms of the Revocable License Agreement. The Public
Improvement Agreement(s) for Planning Areas adjacent to Planning Area B may provide
for reimbursement of the cost of shared Public Improvements that benefit the Planning
Area B and adjacent Planning Areas on an equitable pro rata basis.[Note: Town Council
has raised several issues. (1) Re the proposed access easement, the Town wants a 50’
wide easement rather than a 40’ wide easement. An easement is not
specifically/literally required by the STS. (2) The Town requested cost sharing for
utilities and other public improvement extensions, but Town Council objected to
bilateral cost sharing, which it viewed as “double dipping.” Cost sharing is not
required by the STS, and the provision has been removed. (3) Town Council
discussed whether it wanted Phase I or other environmental investigation. This is
not in the STS. The access easement is not a literal requirement of the STS. While
not addressed in this provision, it is noted that the landowner’s agreement to
provide an access easement is contingent on resolution of other matters, specifically
including the Town’s commitment to provide legal access for the road to access PA-I.
Resolution of this issue may require conforming revisions to the plat that is creating
PA -B. Revisions to the sentences here and in the School Site Dedication provisions
regarding allocation of responsibility for site improvements have been clarified. In
particular, note that the STS states that improvements to PA-B are to be at the
Town’s cost – not AURA’s cost.]
24 1001679.14 08/311001679.15 09/07/12
(c) Planning Areas OS-5 and OS-6. EMD (or the Landowner at the pertinent
time) shall convey Planning Areas OS-5 and OS-6 to the Town concurrently with
Recording of the initial final subdivision plat for Planning Area I. Neither EMD (or the
then-Landowner), Master Developer nor TCMD shall have any obligation with respect to
provision of any Public Improvements for Planning Areas OS-5 and OS-6. Accordingly,
the Town shall grant Final Acceptance with respect to Dedication of Planning Areas OS-5
and OS-6 concurrently with Recording of the conveyance documents and no Preliminary
Acceptance or warranty period requirement shall apply. Such conveyance shall be by
special warranty deed in the form attached as Exhibit B to this Development Agreement,
and shall reserve to grantor (or its assigns, including a District) the right to construct a
vehicle/pedestrian bridge crossing across Planning Areas OS-5 and/or OS-6 including the
ability to construct and maintain bridge abutments and appurtenant roadways. Planning
Areas OS-5 and OS-6 shall be conveyed without any reversionary clause, subject to all
matters of Record other than monetary liens. The deed shall contain an express use
restriction limiting use of the sites to open space and no other purposes (except those uses
reserved to grantor as provided above). The Town shall be responsible for installing and
maintaining all improvements to be made within the open space parcels (other than those
improvements grantor may cause to be installed per the reservation described above), and
for controlling all noxious weeds within the open space parcels. Any improvements to be
located within Planning Areas OS-5 and/or OS-6 shall be subject to Design Review
Board review and approval.
(d) Park Site Within Planning Area I, J and/or K. As determined by Master
Developer in its sole discretion, Master Developer shall cause the pertinent Developer
Affiliate to Dedicate, or EMD (or the Landowner at the pertinent time) shall Dedicate, 5.8
acres of park land to be located within Planning Area I, J and/or K. Neither the
then-Landowner, Master Developer nor TCMD shall have any obligation with respect to
provision of any Public Improvements for such park land acreage. Accordingly, the
Town shall grant Final Acceptance with respect to Dedication of the park land acreage
concurrently with Recording of the conveyance documents and no Preliminary
Acceptance or warranty period requirement shall apply. The foregoing obligation may be
accomplished by one or more conveyances totaling not less than 5.8 acres in the
aggregate, provided that each such parcel must comply with the applicable criteria set
forth in the PUD Guide (size and related characteristics). Such conveyance(s) shall be by
special warranty deed in the form attached as Exhibit B to this Development Agreement,
without any reversionary clause, subject to all matters of Record other than monetary
liens. The deed(s) shall contain an express use restriction limiting use of the site(s) to, as
applicable to the particular site, public park, trail heads, trail connections, dog park, or
natural park (i.e., wetland/natural resource protection area, hillside slopes, view planes,
streambed/buffer and similar natural condition preservation areas) and no other purposes.
The Town shall be responsible for installing and maintaining all improvements to be
made within the park site(s), and for controlling all noxious weeds within the park site(s).
[Town Council has expressed some concern with this provision, although EH has
acknowledged the PUD Guide incorporates park criteria from the Town’s Code. It
is unclear whether an issue exists.]
25 1001679.14 08/311001679.15 09/07/12
(e) Landscaping/Visual Mitigation for Heard Lane/Eagle Bend. [Note: This
has been added as a placeholder for the proposed landscaping that Master
Developer may install on Town ROW, which proposal is not required or
contemplated by the STS and which is currently under discussion. Provision may
be added or removed depending the result of discussions and direction from Town
Council. If included, it would be contemplated that a landscaping plan might be
attached as an exhibit to define the scope of the commitment, and the provision
would address timing of the installation by Master Developer, and the Town’s
assumption of maintenance, provision of irrigation water, and tree replacements.]
3.9 Exactions, Fees and Payments. As generally described in Recital K, prior to the
Execution Date development exactions, fees and payments required to be performed and/or made
pursuant to the Original Agreement were fully or partially performed and, to the extent partially
performed are hereby waived and extinguished pursuant to the Settlement Term Sheet and this
Development Agreement. This Section 3.9 sets forth the sole and exclusive obligations and
requirements with respect to exactions, impact fees and payments required in connection with
development of the Project during the Term, and the assumptions underlying the Finance Plan
are expressly based upon and reliant on the specific land Dedication requirements set forth in this
Section 3.8. Accordingly, and notwithstanding any current or future provision of the Municipal
Code, the Town shall not impose exactions or fees upon development within the Property for
impacts related to schools, fire protection, emergency services, municipal facilities, public
transit, municipal parks or open space which are in addition to the exactions, fees and payments
described in this Development Agreement and/or the PUD Guide, or which have been previously
paid or performed under the Original Agreement (such exactions, fees and payments fully
satisfying and extinguishing any impact fee and/or development exaction obligations in
connection with development of the Project). [Note: EH has indicated this provision needs to
be reconciled with § 6.16(e). The basis of the concern is unclear and requires further
discussion.]
3.10 Other Generally Applicable Taxes, Assessments and Fees. All current and future
taxes, and all current and future assessments and fees (other than the exactions, development
impact fees and payments addressed by Section 3.9), imposed by the Town on a uniform and
non-discriminatory basis within the Town and not expressly addressed in this Development
Agreement or in the PUD Guide shall apply in the same manner and to the same extent within
the Property as within the rest of the Town.
3.11 Prioritized Capital Projects. The Parties have identified the subset of Public
Improvements set forth in Exhibit D (the “Prioritized Capital Projects”) as having particularly
high value in supporting and encouraging the types of development within the areas of the
Project that would produce relatively greater District Revenue and Municipal Payment revenues,
at relatively less Public Improvement cost, and at a relatively earlier point in the development
sequence. It is the Parties’ intent that, subject to market conditions and the terms and conditions
of this Development Agreement (including but not limited to Sections 2.5 and 3.3(a)), a
non-legally binding priority will be placed on supporting and encouraging investment in the
Prioritized Capital Projects in order to support and encourage development to occur within
Planning Areas A, C, D, F and J such that the Supplemental Bond capacity available pursuant to
the Financing Plan is utilized to encourage development that has a relatively greater probability
26 1001679.14 08/311001679.15 09/07/12
of producing relatively greater increases in District Revenue and Municipal Payments. [The
Town has expressed its desire that the Prioritized Capital Projects be in some sense
“binding.” That is not required by the STS. EH has acknowledged the Town’s approval of
the form of Exhibit D.]
ARTICLE 4
MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA
4.1 Municipal Services. The Town shall have the ongoing responsibility and
obligation to provide all municipal services to the Property and the Project including, without
limitation, police protection, snow removal and road maintenance, maintenance (including repair
and replacement) of streetscape improvements and landscaping within public road rights-of-way,
bus transportation services, asphalt overlay of public roads, building code enforcement and other
administrative services equivalent (except as expressly modified or qualified by Sections 3.4(b),
3.5, 4.2(c) and 4.2(d) ) [Note: Foregoing to be further evaluated to ensure a complete list] to
those services provided to any other area of the Town on a uniform and non-discriminatory basis
(collectively, the “Municipal Services”). The Town provides public transit services as part of
the Municipal Services based on a variety of factors including demand, the Town’s transit
planning policies, funding availability and similar considerations and, accordingly, does not
provide public transit service within all areas of the Town or make a representation or
commitment regarding when and to what extent the Town may provide public transit service
within the Property. As such, the Town agrees that no Development Application shall be denied
based on a lack of transit services or the inability of the Town to provide transit services, and no
approval of a Development Application shall be conditioned upon any party or entity other than
the Town providing transit services. The Town’s receipt of Municipal Payments during the Term
as generally described in Section 6.5, together with the additional revenues described in Section
6.16, is in consideration of the Town’s providing Municipal Services. The Municipal Payments
and additional revenues described in Section 6.16 shall be conclusively deemed and construed to
fully offset the Town’s cost of performing its Municipal Services obligations pursuant to this
Development Agreement, such that no Party shall assert or claim that such revenues are either
inadequate or excessive, no Party shall assert or claim any right to an increase in or a reduction
of such revenues, and the Town shall not withhold, suspend or terminate the provision of any of
the Town’s Municipal Services obligations pursuant to this Development Agreement. After
expiration of the Term, the Town shall continue to provide Municipal Services in accordance
with the Town’s general obligation to provide municipal services throughout the Town.
4.2 Town Obligations. Without limiting or negating any Town obligation set forth in
another Article of this Development Agreement or narrowing by implication the Town’s
obligations pursuant to Section 4.1, the Town shall perform the following obligations:
(a) Tax Credit. As contemplated by the Original Agreement and codified at
Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the Effective
Date), the Town has established the Tax Credit. During the Term, the Town shall not take any
action to modify, reduce, terminate, suspend or otherwise prevent the Tax Credit from attaching
to Taxable Transactions occurring within the Project, including but not limited to enacting any
amendment to Sections 3.08.035, 3.12.065 and/or 3.28.075, or to any other provision of the
Municipal Code, that would have such effect.
27 1001679.14 08/311001679.15 09/07/12
(b) Cooperation in Implementation of Add-On RSF. As more particularly set
forth in Section 6.5(d), the Town will cooperate with the PICs to effect the
implementation of the Add-On RSF with respect to existing and future retail businesses
within the Project, including but not limited to: (i) assisting in the coordination and
implementation of reporting forms; (ii) participating with the PICs in meetings with
representatives of such retailers regarding the nature and purpose of the Add-On RSF;
and (iii) such other steps and actions as the PICs may request from time to time.
(c) Assumption of TCMD Maintenance Obligations. From and after the
Effective Date, the Town shall assume and be responsible for the performance of all of
TCMD’s current and future maintenance, repair and replacement obligations with respect
to Public Improvements (including but not limited to all Dedicated and Accepted public
road right-of-way landscaping, Nottingham Dam (it being acknowledged that the other
Parties have no expectation of the Town upgrading Nottingham Dam, maintenance and
repair to be as and when the Town determines appropriate), Nottingham-Puder Ditch (it
being acknowledged parties other than the Town and TCMD have an interest in
Nottingham-Puder Ditch, and that other agreements or arrangement may be in place from
time to regarding such parties’ participation in any maintenance), irrigation systems and
water wells, the wet well located within PA-F, tree replacements (to be accomplished in
phases as determined by the Town, and to be completed prior to the seventh anniversary
of the Effective Date) and, subject to Section 3.4(b)(iv)), snow removal. Notwithstanding
the forgoing, TCMD shall retain responsibility to cause the following obligations to be
performed utilizing District Revenues available to it for such purposes: [Note: The
Town requested clarification regarding tree replacement, and responsive revisions
have been proposed even though this level of detail is not required by the STS.
There was discussion regarding the Town’s obligations regarding Nottingham Dam,
but it is not clear whether there is any need to revise the language, as it already
makes clear that Town has discretion regarding maintenance and related matters.]
(i) Parking Structures. Maintenance of the existing Traer Creek Plaza
public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1,
Recorded on May 8, 2002, at Reception No. 795007 (identified as “Unit 1” or the
“Parking Unit” in the Condo Plat Map Recorded on the Effective Date) and, except to the
extent TCMD and the Town otherwise agree in writing, any additional public parking
facilities or structures that TCMD or another District may construct in the future.
(ii) Lot 2 Internal Landscaping. Any landscaping maintenance
obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on
May 8, 2002, at Reception No. 795007 to the extent arising from TCMD’s status as
owner of the Traer Creek Plaza public parking structure located therein (identified as
“Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date).
(iii) Tract E. Maintenance of the park and flag pole located within
Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at
Reception No. 795007.
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(d) Asphalt Overlays. Subject to the terms and conditions of the Asphalt
Overlay Agreement and Section 6.6, the Town shall perform asphalt overlays for all
Dedicated public roads located in the Project subject to the following terms and
conditions:
(i) Prior to Termination of Joint Funding. Until the shared funding
contributions terminate pursuant to Section 6.6(b):
(A) The Town shall commence overlays on Dedicated roads
within the Project at such time as jointly determined necessary by the Town and
TCMD.
(B) As more particularly set forth in the Asphalt Overlay
Agreement (including but not limited to Section 5(b) thereof [Note: Need to
confirm cross reference in final version of overlay agreement] regarding
deemed consent under certain facts), TCMD, Master Developer and the Town
each must provide written approval prior to the release of any funds from the
Asphalt Overlay Account.
(C) The Town’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay Account.
(D) The Town’s obligation to deposit funds into the Asphalt
Overlay Account shall be limited to the portion of the Municipal Payments the
Add-On RSF Collection Agent deposits on behalf of the Town pursuant to Section
5.2(c), and the Town shall have no obligation to contribute funds from any other
source.
(ii) After Termination of Joint Funding. From and after the date upon
which the shared funding contributions terminate pursuant to Section 6.6(b):
(A) The Town shall be solely responsible for all costs of asphalt
overlays for Dedicated public roads in the Project.
(B) The Town shall schedule and perform such asphalt overlays
in a manner materially consistent and commensurate with other public roads in
the Town having similar characteristics in terms of traffic volume, age of road
surface and similar factors.
(e) Easement for Access to Planning Area I. As of the Effective Date, the
Town is undertaking to acquire fee title to the Forest Service Village Parcel. Within three (3)
business days after acquiring Record title to the Forest Service Village Parcel, but in any event
prior to permitting the Recording of a conservation easement or similar instrument limiting
potential development within the Forest Service Village Parcel or any other conveyance by the
Town of the Forest Service Village Parcel or any interest therein, the Town shall execute and
deliver the Relocatable Roadway Easement Agreement to EMD (or to the then-Landowner of
Planning Area I). The Relocatable Roadway Easement Agreement shall be Recorded as a prior
interest to any conservation easement or similar instrument, and any such subsequent
29 1001679.14 08/311001679.15 09/07/12
conveyance or grant by the Town shall be expressly subject to the Relocatable Roadway
Easement Agreement. Should the Town not have acquired the Forest Service Village Parcel
prior to such time as access is needed to commence the process for constructing an access road to
Planning Area I, the Town shall reasonably cooperate with Master Developer regarding, and
shall not oppose or obstruct Master Developer’s efforts with respect to, obtaining a legal right of
access over the Forest Service Village Parcel. [Town Council has indicated it will not provide
an easement or other form of legal access because it does not view that as required by the
STS. This is contrary to EH’s representations that the access may be addressed/provided
in the transactional documents for the acquisition rather than in the contemplated
relocatable easement. This is a significant issue and is contrary to applicants’ view of what
the STS requires. Without a legal right of access, the STS provision regarding this topic is
illusory. See related discussion regarding access easement to PA-B.]
(f) Service Plans. The Town has adopted Ordinance No. [Insert #] which
amends Chapter 18 of the Municipal Code to state that certain that provisions concerning
material modification do not apply to TCMD and VMD. During the Term, the Town shall
maintain the foregoing amendment to Chapter 18 of the Municipal Code in effect without
modification, shall not take any action to explicitly or implicitly repeal, reinstate, alter or re-
impose those provisions of Chapter 18 of the Municipal Code from which TCMD and VMD
were exempted by operation of Ordinance No. [Insert #], and shall not impose other regulations
which would have the effect of establishing definitions, requirements or procedures concerning
the determination of material modification as applied to TCMD and VMD that are inconsistent
with, more rigorous than or otherwise expand the scope of such determination as set forth in
Colorado statues as may be amended from time to time. [Town Council has directed that
references to VMD be removed, which is contrary to EH’s rational response that both
Districts should be treated the same. Town Council’s position apparently is that the STS
does not mention VMD. It is noted that VMD was not a party to the STS, which is why
VMD wasn’t mentioned.]
(g) Urban Renewal. If it is determined that Lot 1 will be included within an
urban renewal area, the Town shall, utilizing all authority legally available to it as a home rule
municipality under Colorado law, take such steps as may be necessary to assure compliance with
the conditions set forth in Section 6.7.
4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban
renewal area, AURA shall take such steps as may be necessary to assure compliance with the
conditions set forth in Section 6.7 and the related obligations set forth in Section 6.17.
ARTICLE 5
OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND
DEVELOPER AFFILIATES
5.1 Obligations of TCMD. Without limiting or negating any TCMD obligation set
forth in another Article of this Development Agreement, TCMD shall perform the following
obligations:
30 1001679.14 08/311001679.15 09/07/12
(a) Asphalt Overlay. TCMD shall perform its obligations with respect to
funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section
6.6(a)(iii).
(b) Notice of Financings. TCMD shall give to the Town forty-five (45) days’
prior written notice of its intent to finance and/or construct any Capital Projects utilizing
Supplemental Bonds and/or Additional Developer Advances.
(c) Add-On RSF. TCMD shall cooperate with the PICs to the extent
reasonably necessary and appropriate in the imposition and administration of the Add-On RSF.
TCMD will cooperate with the PICs to effect the implementation of the Add-On RSF with
respect to existing and future retail businesses within the Project, including but not limited to: (i)
assisting in the coordination and implementation of reporting forms; (ii) participating in meetings
with representatives of such retailers regarding the nature and purpose of the Add-On RSF; and
(iii) such other steps and actions as the PICs may request from time to time. During the Term
and provided the Town is performing its obligation to maintain the Tax Credit in effect, TCMD
shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On
RSF from attaching to applicable retail sales transactions occurring within the Project.
(d) Utilization of Credit PIF Revenues. During the Term, TCMD shall utilize
Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a) and shall apply
Credit PIF Revenues in the priority set forth in Sections 6.9(b) and 6.9(c).
5.2 Obligations of PICs.
(a) Credit PIF. During the Term, the PICs shall take no action to modify,
terminate, suspend or otherwise interfere with TCMD’s right to receive and utilize the Credit PIF
Revenues.
(b) Add-On RSF. Concurrently with the Effective Date, the board of directors
of each PIC has caused the Recording of an amendment to the respective PIF Covenants having
the effect of imposing the Add-On RSF. In order to effectuate the Parties’ intent regarding the
collection and remittance of the Add-On RSF Revenues, each PIC, Master Developer, the Town
and the Add-On RSF Collection Agent have executed and legally entered into an Add-On RSF
Collection Services Agreement. During the Term and provided the Town is performing its
obligation to maintain the Tax Credit in effect, each PIC shall:
(i) Collection of Add-On RSF. Pursuant to its authority under and in
accordance with the terms and conditions of the PIF Covenants, continue to impose the
Add-On RSF and undertake to cause the collection and remittance of the Add-On RSF
Revenues by or to the Add-On RSF Collection Agent for disposition in accordance with
the applicable Add-On RSF Collection Services Agreement and the terms and conditions
of this Development Agreement.
(ii) Remittance of Municipal Payments.
(A) Undertake to cause the Add-On RSF Collection Agent to
remit to the Town all Municipal Payments as and when due pursuant to the terms
31 1001679.14 08/311001679.15 09/07/12
and conditions of the applicable Add-On RSF Collection Services Agreement and
this Development Agreement.
(B) Take no action to modify, terminate, suspend or otherwise
interfere with the Town’s right to receive and utilize the Municipal Payments in
the manner and for the purposes authorized pursuant to this Development
Agreement and the applicable Add-On RSF Collection Services Agreement.
(c) Asphalt Overlay Account. As more particularly set forth in the Add-On
RSF Collection Services Agreement, the PICs (jointly with the Town) shall cause the Add-On
RSF Collection Agent to deposit Municipal Payments into the Asphalt Overlay Account on a
monthly basis on behalf of the Town as follows:
(i) Initial Five Years. Commencing in 2013 and continuing through
and including November 1, 2017, the Add-On RSF Collection Agent shall deposit into
the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY
THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF
Collection Agent.
(ii) Subsequent Years. Commencing in 2018 and continuing through
and including the date on which termination occurs pursuant to Section 6.6(b), the Add-
On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first
$75,000.00 SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually
received by the Add-On RSF Collection Agent.
(iii) Post-Termination. From and after the date on which termination
occurs pursuant to Section 6.6(b), the PICs (jointly with the Town) shall cause the Add-
On RSF Collection Agent to remit all Municipal Payments directly to the Town as
otherwise provided in the Add-On RSF Collection Services Agreement and in accordance
with the terms and conditions of Section 5.2(b).
5.3 Obligations of Master Developer. Without limiting or negating any Master
Developer obligation set forth in another Article of this Development Agreement, Master
Developer shall perform the following obligations:
(a) Asphalt Overlay. Master Developer shall perform its obligations with
respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions
of Section 6.6(a)(iv).
(b) Conveyance of Park Site in Planning Areas I, J and/or K. Pursuant to
Section 3.8(d), Master Developer shall cause the then-current Landowner to convey to the Town
such sites within Planning Areas I, J and/or K as may be determined necessary or desirable in
satisfying such obligation.
(c) Add-On RSF. Master Developer shall cooperate with the PICs to the
extent reasonably necessary and appropriate in the imposition and administration of the Add-On
RSF. Master Developer will cooperate with the PICs to effect the implementation of the Add-On
RSF with respect to existing retail businesses within the Project, including but not limited to
32 1001679.14 08/311001679.15 09/07/12
assisting in the coordination and implementation of reporting forms, meetings with
representatives of such retailers regarding the nature and purpose of the Add-On RSF and such
other steps and actions as the PICs may request from time to time. During the Term and
provided the Town is performing its obligation to maintain the Tax Credit in effect, Master
Developer shall not take any action to modify, reduce, terminate, suspend or otherwise prevent
the Add-On RSF from attaching to applicable retail sales transactions occurring within the
Project.
(d) Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will
be included within one or more urban renewal areas, Master Developer shall take such steps, and
cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely
and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s),
subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be
construed to constrain any Landowner from pursuing any property tax appeal proceeding or
change in tax classification of any portion of the Property, nor shall it be construed to require any
Landowner to cause or consent to a change in tax classification of any portion of the Property.
5.4 Obligations of EMD. Without limiting or negating any EMD obligation set forth
in another Article of this Development Agreement, EMD shall perform the following
obligations:
(a) Conveyance of School Site in Planning Area I. Pursuant to Section
3.8(a)(i)(B), EMD or the then-current Landowner shall convey to the Town an approximately 3.3
acre Site within Planning Area I for school purposes.
(b) Potential Combination of Park and School Sites. EMD or the then-current
Landowner shall undertake the efforts contemplated pursuant to Section 3.8(a)(iv)(B) regarding a
potential consolidated school/park Site within Planning Area I.
(c) Conveyance of OS Tracts. Pursuant to Section 3.8(c), EMD or the
then-current Landowner shall convey to the Town the parcels designated in the PUD Master Plan
as OS-5 and OS-6.
(d) Conveyance of Park Site in Planning Area I. Pursuant to Section 3.8(d),
EMD or the then-current Landowner shall convey to the Town such sites within Planning Area I
as may be determined necessary or desirable in satisfying such obligation.
ARTICLE 6
FINANCING PLAN
6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD
to finance and construct Capital Projects, to repay the District Debts and to be utilized for other
Permitted Uses. The Tax Credit is granted in consideration of the above-stated uses of the Credit
PIF.
(a) Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit
PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit.
The PICs have pledged the Credit PIF Revenues to TCMD and the Credit PIF Collection
33 1001679.14 08/311001679.15 09/07/12
Agent collects the Credit PIF Revenues on TCMD’s behalf pursuant to the Credit PIF
Collection Services Agreement.
(b) Expiration of Term; Termination of Town Tax Credit. Except as
otherwise provided in Section 6.1(d), TCMD’s right to receive Credit PIF Revenues, the
Town’s right to receive Municipal Payments, and the Town’s obligation to maintain the
Tax Credit in effect each shall terminate, and the Term shall expire, upon the later of: (i)
January 2, 2040 (January 1, 2040 being the last date upon which TCMD may issue
Supplemental Bonds, notwithstanding that District Debt other than Supplemental Bonds
may have been paid in full prior to January 2, 2040); or (ii) such later date upon which
payment in full of the District Debts occurs concurrently with expiration of the Term.
Upon expiration of the Term and termination of the Town’s Tax Credit, the Town shall
be entitled to impose, receive and retain all Town taxes applicable to Taxable
Transactions.
(c) Termination of Right to Municipal Payments. The Town’s right to receive
the Municipal Payments shall terminate concurrently with expiration of the Term and the
termination of the Town’s obligation to maintain the Tax Credit as set forth in Section
6.1(b). If the Declarant (as defined in the PIF Covenants) elects to continue the
imposition of the Add-On RSF, in whole or in part, after discontinuation of the PICs’
obligation to remit the Add-On RSF Revenues to the Town, then the Add-On RSF
Revenues may be used for any purpose permitted under the PIF Covenants.
Notwithstanding expiration of the Term, the Town shall be entitled to receive Municipal
Payments amounts resulting from application of the Add-On RSF to Taxable
Transactions that occurred prior to the date upon which expiration of the Term occurs,
such amounts to be collected and remitted in accordance with the terms and conditions of
the Add-On RSF Collection Services Agreement. Notwithstanding that the Term shall
expire upon full payment of the District Debts, the terms and conditions of this Section
6.1(c) shall survive the expiration of the Term.
(d) Continuation of Town Tax Credit. If, after all District Debts are paid in
full, the Town delivers written notice to the PICs that the Town is precluded from
terminating the Tax Credit, and the Town has in good faith pursued and failed to
accomplish legally available alternatives for terminating the Tax Credit, then for so long
as the Tax Credit remains in effect the PICs shall continue to impose the Credit PIF and
shall remit to the Town on a monthly basis all Credit PIF Revenues actually collected,
less the costs and expenses incurred by the PICs in connection with collecting such Credit
PIF Revenues. In such event, the Town shall have no right or interest in any Add-On
RSF Revenues, and neither the PICs, TCMD nor Master Developer shall have any
obligation to cause any Municipal Payments to be remitted to the Town. The terms of
this Section 6.1(d), if applicable, shall survive termination of this Development
Agreement until such time as the Town terminates the Tax Credit.
6.2 Tax Credit; Use of Credit PIF Revenues. As contemplated by the Original
Agreement and to partially offset the impact of the Credit PIF, the Town has established the Tax
Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the
Credit PIF to each Taxable Transaction During the Term, the Town shall maintain the Tax Credit
34 1001679.14 08/311001679.15 09/07/12
in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In implementation
of the Settlement Term Sheet, the following terms specify uses of Credit PIF Revenues:
(a) Permitted Uses. During the Term, TCMD may utilize Credit PIF
Revenues to pay the Cap Amounts and the Non-Cap Amounts (collectively, the “Permitted
Uses”) and for no other purpose.
(b) Credit PIF Cap; Cap Amounts. Subject to reduction by not more than
$10,000,000 (Ten Million Dollars) in accordance with Section 6.7, the amount of the
following obligations to which Credit PIF Revenues can be pledged is $96,000,000
(NINETY SIX MILLION DOLLARS) (the “Credit PIF Cap”). Only Net Proceeds shall
be counted against the Credit PIF Cap, whether such Capital Project Costs represent the
stated amount of any Past Developer Advance or Additional Developer Advance, or the
Net Proceeds from any TCMD municipal bond issues other than the TCMD Bond
Reissue (as qualified in clause (i) below). Bond Requirements and interest payable on
Past Developer Advances and Additional Developer Advances incurred in connection
with the principal amountsCapital Project Costs comprising the Cap Amount are
Non-Cap Costs that are payable from Credit PIF Revenues, but such Bond Requirements
and interest costs do not count against the Credit PIF Cap. The following (collectively,
the “Cap Amounts”) shall count against the Credit PIF Cap: [Note: Town Council has
directed that it wants the cap defined in terms of the par amount of bonds, and not
the Net Proceeds. The STS uses the term “principal” and does not use the term
“par amount.” The principal amount of Additional Developer Advances (a form of
Supplemental Bonds) is what counts against the Credit PIF Cap, such that only the
Capital Project Costs financed through Additional Developer Advances count
against the Credit PIF Cap. Other forms of Supplemental Advances (i.e.,
traditional municipal bonds) should produce the same result – i.e., only the Capital
Project Costs financed through municipal bonds count against the Credit PIF Cap.
Net Proceeds equate to the Capital Project Costs. Using “par amount” would not
only be contrary to the STS’s plain language, it would produce the result that the
two forms of Supplemental Bonds would be treated differently for Credit PIF Cap
purposes. That disparate treatment would effectively require, as a practical matter,
that only Additional Developer Advances be utilized to finance the Supplement
Bond capacity. This would result in the use of a higher interest rate financing
mechanism rather than a lower interest rate financing mechanism, thereby
extending the Term and reimbursing developers at 8% for an extended time period.
No revisions have been made, but further discussion is required to resolve this
issue.]
(i) The Net Proceeds of the TCMD Bond Reissue (for purposes of the
Credit PIF Cap and Cap Costs, $52,100,000 (FIFTY TWO MILLION ONE
THOUSAND DOLLARS), which is the original principal amount of the TCMD
bonds refunded pursuant to the TCMD Bond Reissue, shall be attributed as the
Net Proceeds of the TCMD Bond Reissue notwithstanding that the actual Net
Proceeds of the TCMD Bond Reissue may be a lower amount due to TCMD’s
prior payment of a portion of the principal amount of the bonds refunded pursuant
to the TCMD Bond Reissue).
35 1001679.14 08/311001679.15 09/07/12
(ii) The Net Proceeds of the Tank Project Bonds in the approximate
amount of $9,000,000 (the precise amount to be established at the time the Water
Tank Bonds are issued).
(iii) The principal amount of Past Developer Advances for Capital
Project Costs in the amount of $12,047,736 (which amount excludes: (i) amounts
advanced to enable TCMD’s performance and/or payment of its operations,
maintenance and administrative costs including, but not limited to, landscaping
snow removal and similar operations/maintenance functions; and (ii) amounts
advanced to enable TCMD’s payment of municipal services and sales tax shortfall
obligations under the Original Agreement). [Note: The adjustment
contemplated in the parenthetical has not been agreed to by the Town and is
not reflected in the amount currently stated above. The rationale for the
proposed adjustment is the Credit PIF Cap is intended to address a top-side
amount of Capital Project Costs. Therefore, the applicants have requested
that on the Capital Project Costs portion of the Past Developer Advances be
counted against the Credit PIF Cap.]
(iv) To the extent issued on or before January 1, 2040, Supplemental
Bonds (other than Supplemental Bonds that are Non-Cap Costs pursuant to
Section 6.2(c)), whether in the form of Additional Developer Advances (principal
amount, including Master Developer contributions to the Asphalt Overlay
Account only to the extent reimbursable from TCMD using Credit PIF Revenues)
or in the form of other District obligations (Net Proceeds).
(v) Capital Project Costs that TCMD funds directly from Credit PIF
Revenues budgeted and appropriated for such purpose.
(c) Non-Cap Amounts. The following costs (collectively, the “Non-Cap
Amounts”) are payable from Credit PIF Revenues but do not count against the Credit PIF Cap:
(i) Payments of interest and other Bond Requirements incurred with
respect to Cap Amounts.
(ii) The principal amount and other Bond Requirements of any
refunding bonds or other debt instruments issued to repay, refund and/or defease,
in whole or in part, the Cap Amounts.
(iii) The Avon Receivable and any refunding thereof.
(iv) The principal amount and interest of Town cure payments, if any,
pursuant to Section 6.12, and any refunding thereof.
(v) Deferred Fees and Deferred Amortization, and any refunding
thereof.
(vi) TCMD’s contributions to the Asphalt Overlay Account.
36 1001679.14 08/311001679.15 09/07/12
(vii) Subject to Section 6.2(d), the Base O&M Costs.
(viii) The principal amount and other Bond Requirements of any
Supplemental Bonds issued to defease Replacement Bonds.
(d) Minimum Non-Credit PIF District Revenues During the Term. The
Parties recognize and acknowledge that during the Term TCMD may pledge VMD property tax
revenues and other non-Credit PIF Revenues for the payment of District Debts in order to
facilitate and obtain the best financing terms available. The Parties further recognize and
acknowledge that TCMD’s ability to comingle various revenue sources in its general fund
provides financial advantages and efficiencies. Therefore, for the purpose of allowing TCMD
financially advantageous flexibility while at the same time insuring that the Town’s Tax Credit
obligation does not become additionally encumbered by TCMD’s obligations in excess of the
District Debts and Credit PIF Cap, during the Term, TCMD and the VMD shall raise revenue
from sources other than the Credit PIF in an amount at least equal to the Base O&M Costs for
each year. Such sources may include, but are not limited to revenue raised from the VMD’s mill
levy or a future TCMD mill levy, tap fees or other fees imposed by TCMD or the VMD;
provided however, that such revenue is not required to be spent on Base O&M Costs (for
example, this obligation shall be met if the Annual Debt Service Pledge Amount equals or
exceeds the Base O&M Costs and is paid from VMD property tax revenue). [Note: Although
not required by the STS, Developer has provisionally agreed to this,previously indicated it
would consider this provision contingent on satisfactory resolution of other matters.
Because it is not required or contemplated by the STS, it has been removed for purposes of
this revision.]
6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as
contemplated in the Original Agreement, the PICs have imposed and shall continue for the
duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance
with the terms and conditions of the PIF Covenants and applicable provisions of this
Development Agreement. Pursuant to the PIF Covenants and in implementation of the
Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to
impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms
and conditions of the PIF Covenants and applicable provisions of this Development Agreement.
(a) Town Real Estate Transfer Tax. In full settlement of any and all claims
that could be raised or asserted regarding whether the Town’s real estate transfer tax and the
PICs’ Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart
occupy their present locations within the Project as of the Effective Date or to apply to any
extension(s) of such leases: [Note: Town Council has directed that the HD/WM issue be
removed from the Development Agreement. Again, based on its narrow view of what the
STS requires. Town Council represented that this issue will be addressed separately, but
declined to represent anything about the timing and manner in which it would be
addressed. Developers do not agree that this issue is outside the scope of the STS and have
not made any revisions to this provision. Further discussion is required.]
(i) Existing Wal-Mart and Home Depot Leases. The Town’s real
estate transfer tax shall not be construed to apply to the leases pursuant to which
37 1001679.14 08/311001679.15 09/07/12
Home Depot and Wal-Mart occupy their present locations within the Project as of
the Effective Date or to apply to the election of lessee to exercise its rights to
extend such leases in accordance with the terms of the respective original lessees.
(ii) Waiver of Claims. Accordingly, the Town hereby fully and
irrevocably waives any and all claim or right to impose its real estate transfer tax,
and the Commercial PIC hereby fully and irrevocably waives any and all claim or
right to impose the Real Estate Transfer Fee, upon the existing leases (together
with extensions and options to extend thereunder) for Wal-Mart and Home Depot.
(iii) Applicability of Municipal Code. Concurrently with the Effective
Date, the Town has adopted Ordinance [insert number] pursuant to which it has
amended Chapter 3.12 of the Municipal Code to clarify various matters relating to
the circumstances under which a long term lease constitutes a Taxable
Transaction for purposes of triggering an obligation to pay the Town’s real estate
transfer tax. During the Term, imposition and collection of the Real Estate
Transfer Fee shall be administered based Chapter 3.12 of the Municipal Code as
amended by Ordinance [insert number] and in effect on the Effective Date.
Transactions subject to the Town’s real estate transfer tax shall be subject to the
Real Estate Transfer Fee, and payment of the Real Estate Transfer Fee shall result
in the automatic and simultaneous application of the Tax Credit. The Real Estate
Transfer Fee shall not be construed to be part of the Taxable Transaction, and the
Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If,
notwithstanding the foregoing, the Town is legally required pursuant to state
statute to impose and collect its Real Estate Transfer Tax on the Real Estate
Transfer Fee during the Term, the Town shall remit to TCMD 100% of the Real
Estate Transfer Tax revenues actually collected. During the Term, no amendment
to Ordinance [insert number] or to Chapter 3.12 of the Municipal Code shall
apply to real estate transactions occurring within the Property except with the
prior written consent of Master Developer. [Note: Town’s draft amendment to
the RETT ordinance is under review.]
(iv) Applicability to Lease Amendments. The exemption and waivers
of applicability of the Town’s real estate transfer tax to long term leases executed
prior to the Effective date also shall apply to any amendment to a long term lease
that is executed after the Effective Date that has the effect of extending the term
of such lease or establishing new or additional rights to extend the term of such
lease. [Note: Revision reflects Developer’s position that existing leases should
be exempt from any RETT/RETF. Town has not agreed to this.]
6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term
Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF
Covenants, which require such rates to be set from time to time during the Term at:
(a) Credit PIF Rates:
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(i) Retail Sales Fee. The same rate as the corresponding Town sales
tax rate as in effect from time to time. As of the Effective Date, the Town sales tax and
the Retail Sales Fee each are set at the rate of 4.0%.
(ii) Real Estate Transfer Fee. The same rate as the corresponding
Town real estate transfer tax rate as in effect from time to time. As of the Effective Date,
the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the rate
of 2.0%.
(iii) Accommodations/Lodging Fee. The same rate as the
corresponding Town accommodations/lodging tax rate as in effect from time to time. As
of the Effective Date, the Town accommodations/lodging tax and the
Accommodations/Lodging Fee each are set at the rate of 4.0%.
(iv) Use Tax. If the Town imposes any use tax on building materials
during the Term that is not in effect as of the Effective Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in Exhibit
G without the need of any formal action by the Town. The PICs may establish and
impose a building materials use fee, which shall be included in the definition of Credit
PIF, corresponding to such use tax and applying to the same transactions and at the same
rate as such use tax. The Town may amend its Municipal Code to reflect the automatic
Tax Credit for use tax as set forth in this sub-section, but such an amendment shall not be
required to implement the automatic Tax Credit. The Parties and any party obligated to
pay, collect or remit such use tax shall be entitled to rely and act upon the Tax Credit
being applied to such transactions in order to offset the effect of the Credit PIF in the
same manner and to the same extent as the Tax Credit applies to retail sales transactions,
real estate transfer transactions and accommodations/lodging transactions. Prior to
adopting any such use tax, the Town shall coordinate with the PICs and other Parties
regarding the implementation of any such use taxes and application of the Tax Credit
thereto. The Credit PIF imposed and collected on such Taxable Transactions shall not be
deemed to be part of such Taxable Transaction and shall not be subject to application of
the corresponding Town use tax.
(b) Add-On RSF Rate. As of the Effective Date, the PICs have set the
Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are
Taxable Transactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF
Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of
any other adjustments to such revenues as set forth in this Development Agreement and/or the
Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from
imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions
shall constitute the Municipal Payments. If the Town increases the Town’s retail sales tax rate
above 4.0 % during any period for which Municipal Payments are to be remitted to the Town, the
portion of the Add-On RSF Revenues which will be construed to be Municipal Payments shall be
reduced in the same degree as any Town sales tax rate increase above 4.0%. For example, if the
Town increases its retail sales tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-
On RSF Revenues construed to be Municipal Payments shall be that amount equivalent to a
reduction of 0.25% in the Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather
39 1001679.14 08/311001679.15 09/07/12
than the revenue realized from a rate of 0.75%). As of the Effective Date, the PICs have not
imposed an Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF required
pursuant to this Section 6.4(b). To the extent the PICs at any time after the Effective Date
impose an Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions and/or at a rate higher than the Add-On RSF rate, the resulting Add-On PIF
Revenues shall not be construed to constitute Add-On RSF Revenues or Municipal Payments.
Any Add-On PIF Revenues that do not constitute Municipal Payments pursuant to this Section
6.4(b) may be utilized as set forth in Section 6.5(b)(ii). [Town Council objected to the
mechanism of a reduction to the 0.75% corresponding to any future tax increase even
though it is specifically required by Paragraph 2.b. of the STS. Because it is required by
the STS, this provision has not been revised.]
6.5 Add-On PIF. In implementation of the Settlement Term Sheet, and in
consideration of the Town’s performance of its obligation to provide Municipal Services in
accordance with Section 4.1 and the Town’s performance of its obligations pursuant to Section
4.2 and this Article 6:
(a) Collection and Remittance. During the Term, the PICs shall collect, or
cause the Add-On RSF Collection Agent to collect, the Add-On RSF Revenues. In accordance
with the terms and conditions of the Add-On RSF Collection Services Agreement, the Add-On
RSF Collection Agent shall:
(i) Separate Account. Maintain Add-On RSF Revenues in a separate
account from Credit PIF Revenues.
(ii) Remittance of Municipal Payments. Calculate that portion of Add-
On RSF Revenues received during each calendar month which comprises Municipal
Payments, and after calculating that portion of the Municipal Payments required to be
deposited into the Asphalt Overlay Account:
(A) Deposit the required amount of Municipal Payments into
the Asphalt Overlay Account; and
(B) Remit any remaining Municipal Payments to the Town.
(b) Uses.
(i) Municipal Payments. During the Term, the Municipal Payments
shall be utilized first to satisfy the Town’s Asphalt Overlay Account funding obligations
as set forth in Section and thereafter may be utilized by the Town for any lawful purpose.
(ii) Additional Add-On PIF Revenues. To the extent the PICs continue
to impose and collect the Add-On RSF on retail sales transactions that are Taxable
Transactions after expiration of the Term and/or there are from time to time during the
Term Add-On PIF Revenues, including any Add-On RSF Revenues, in excess of the
Municipal Payments (for example, due to a reduction in such Municipal Payments
pursuant to Section 6.4(b) or due to imposition of an Add-On PIF on transactions other
40 1001679.14 08/311001679.15 09/07/12
than retail sales that are Taxable Transactions), the PICs may retain and utilize such
additional Add-On PIF Revenues for any lawful purpose permitted under the terms and
conditions of the PIF Covenants. The Town shall have no right or claim to any such
Add-On PIF Revenues, including any Add-On RSF Revenues, that do not constitute
Municipal Payments.
(c) Duration. The Town’s right to receive the Municipal Payments generated
through the PICs’ imposition of the Add-On RSF shall terminate concurrently with the
termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(c) of
this Development Agreement.
(d) Implementation Period. [Note – PIC Covenant amendments have been
delivered for Town review and will be Recorded when escrow breaks. The Parties will
need to discuss the logistics and timing of implementing the Add-On RSF with respect to
existing retailers within the Project. The Town’s cooperation/assistance will be needed.
EH is consulting with Town’s finance department. Need to insert agreed upon language.]
(e) Effect of Expiration of Term. Except to the extent otherwise set forth in
the applicable PIF Covenants, expiration of the Term shall not have the effect of terminating the
Add-On RSF or the Add-On PIF and, to the extent the PICs continue to impose the Add-On RSF
and/or the Add-On PIF and to collect the Add-On RSF Revenues or any other Add-On PIF
Revenues after expiration of the Term, all such Add-On PIF Revenues may be utilized as set
forth in Section 6.5(b)(ii).
6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the
Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD, Master
Developer and [First Bank], Avon Branch, have legally delivered and entered into the Asphalt
Overlay Agreement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement,
the Town has established with [First Bank, Avon Branch – EH needs to provide corrected
information], a restricted, segregated account (the “Asphalt Overlay Account”) into which the
Master Developer, the Town and TCMD shall deposit funds in the amounts and at the times set
forth below. Such funds shall be used exclusively to finance asphalt overlays of public roads
located in the Project Dedicated to the Town as described in Section 4.2(d). The Asphalt Overlay
Account shall be subject to and administered in accordance with the terms and conditions of the
Asphalt Overlay Agreement and the following terms and conditions:
(a) Joint Funding Obligations. Commencing on the Effective Date and
continuing until terminated pursuant to Section 6.6(b), Master Developer, the Town and TCMD
each shall contribute funds to the Asphalt Overlay Account as follows:
(i) Due Dates. All payments are due and payable on or before
November 1 of each year commencing in 2013.
(ii) Town Contribution. Utilizing Municipal Payments to be deposited
into the Asphalt Overlay Account in accordance with Sections 6.5(a)(ii)(A) and 6.5(b)(i):
41 1001679.14 08/311001679.15 09/07/12
(A) For calendar years 2013 through 2017, the Town shall
contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS)
per year.
(B) For calendar years 2018 through and including the date on
which termination occurs pursuant to Section 6.6(b), the Town shall contribute
$75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year.
(iii) TCMD Contribution. Such contributions being Non-Cap Amounts
and using available District Revenues:
(A) For calendar years 2013 through 2017, TCMD shall
contribute $40,000.00 (FORTY THOUSAND DOLLARS) per year.
(B) For calendar years 2018 through and including the date on
which termination occurs pursuant to Section 6.6(b), TCMD shall contribute
$75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year.
(iv) Master Developer Contribution. Such contributions being Cap
Amounts only to the extent reimbursable from TCMD using Credit PIF Revenues (and
therefore qualifying as Additional Developer Advances):
(A) For calendar years 2013 through 2017, Master Developer
shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year.
(B) Notwithstanding any continuing obligation of the Town and
TCMD to contribute funds to the Asphalt Overlay Account after calendar year
2017, Master Developer shall not have any obligation to contribute funds to the
Asphalt Overlay Account after satisfying the obligation set forth in the foregoing
clause (A).
(b) Termination of Joint Funding Obligations. The joint funding obligations
of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the Town and
TCMD with respect to the Asphalt Overlay Account shall terminate upon the occurrence of the
earlier of: (i) 80,000 square feet of additional commercial (as defined in the PUD Guide)
development have been issued a temporary or permanent certificate of occupancy; or (ii) the total
annual Taxable Transactions have increased by at least $20,000,000 over the actual total annual
Taxable Transactions in 2011. From and after the date that the joint funding obligations
terminate as provided herein: (A) the Town shall be and remain solely responsible for
performing and funding asphalt overlays for all public roads within the Project Dedicated to the
Town; (B) Master Developer and TCMD shall have no further obligation with respect to funding
of asphalt overlays within the Project; (C) the obligations of Master Developer and TCMD to
provide such funding shall not be reinstated upon any subsequent reduction of commercial
occupancy or reduction of total annual Taxable Transactions; and (D) the expenditures and
appropriations by the Town for asphalt overlays in excess of the amounts deposited in the
Asphalt Overlay Account shall not be counted against the Credit PIF Cap.
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6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In
implementation of the Settlement Term Sheet, the Master Developer and the Landowner(s) of the
affected Sites within Lot 1 shall provide their timely, full and reasonable cooperation in assisting
the Town and AURA in the creation of an urban renewal plan for Lot 1 in accordance with the
terms and conditions of this Section 6.7; provided, however, that Master Developer and any
other Landowner(s) shall not be required to cooperate in the creation or implementation of such
urban renewal plan unless Master Developer has provided its written consent to all terms and
conditions of the urban renewal plan prior to its adoption. Master Developer and any other
Landowner(s) shall have the right to oppose any urban renewal plan for Lot 1 (or any other area
of the Property) that does not include a provision that expressly prohibits the Town or AURA
from exercising eminent domain powers or, unless Master Developer has provided its written
consent to such urban renewal plan for Lot 1 as contemplated herein, for any other reason
permitted under the laws of the State of Colorado. Master Developer or any Landowner(s) of a
Site within Lot 1shall have no obligation to cooperate with the formation of an urban renewal
plan area for Lot 1 if Master Developer has not provided prior written consent as required above
or if the Town and/or AURA fails to adhere to the following terms and conditions.
(a) Limited to Lot 1. The area included within the urban renewal plan is
limited to Lot 1 or a portion thereof.
(b) Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN
MILLION DOLLARS) of Net Proceeds of AURA bonds or other financial obligation (whether
in the form of bonds, direct payments, redevelopment agreement(s) and/or cooperation/funding
agreement(s)) issued or incurred to pay Cap Amounts may be counted against and thereby reduce
the remaining Credit PIF Cap; provided, however, that the cost of improvements to or servicing
Town-owned properties (by way of example and not limitation, improvements located within,
utilities extensions servicing and/or access to and from Planning Area B, Planning Area E, or
park/open space areas Dedicated to the Town ), whether financed utilizing TIF Revenues or
other revenues of the Town or AURA, shall not result in a reduction of the Credit PIF Cap.
(c) AURA Board Positions. Prior to or concurrently with the effective date of
any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an
urban renewal plan therefore, the Town and AURA shall take action to appoint an individual
designated by Master Developer and shall take action to appoint an individual designated by
BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA
board. The Master Developer and BNP board members shall be full members of the AURA
board with equal rights, duties and responsibilities as other AURA board members with respect
to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the
redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof)
and all AURA activities of any nature that directly or indirectly involve the establishment,
implementation and administration of any urban renewal area including or any urban renewal
plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with
statutory requirements regarding conflicts of interest. If the AURA board for activities affecting
Lot 1 is constituted as a separate board from that which operates within other areas of the Town,
such BNP and Master Developer board members shall be full members for all purposes having
equal standing with other board members. If the AURA board is not constituted as a separate
board from that with operates within other areas of the Town, the BNP and Master Developer
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board members shall have no authority or standing to participate in AURA board activities
pertaining to areas of the Town other than Lot 1, and shall recuse themselves from all such
proceedings. BNP’s right to have a member on the AURA board shall expire and terminate at
such time as there are no outstanding obligations to BNP under the TCMD Reissue Documents
or any subsequent reissue or refunding of such bonds.
(d) TCMD and VMD Taxes. The urban renewal plan for any urban renewal
area that includes Lot 1 (or any portion thereof), and all related governing and implementing
documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the
property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD
and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem
Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1
(or any portion thereof) within the urban renewal area. No portion of the property tax increment
revenues resulting from the Districts’ mill levies shall be retained or utilized by AURA for any
purpose, and shall specifically not be pledged or utilized by AURA for repayment of any bonds
issued or other financial obligations entered into by AURA.
(e) TIF Revenues; Uses. The urban renewal plan(s) shall not contain any
provision for capturing the increment of municipal sales taxes, and shall be expressly limited to
capturing the increment of property taxes within the urban renewal area (subject to Section
6.7(d)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s)
containing all or any part of Lot 1 solely within the Project. Improvements undertaken or
financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and
approval of the Design Review Board where applicable.
(f) Funding Agreement(s) with Districts. AURA may enter into enforceable
multiple fiscal year cooperation/funding agreements with a District providing that the TIF
Revenues will be assigned to the District for the purpose of financing, through the District’s
issuance of bonds or otherwise, eligible Capital Projects.
(g) Priority of Use of TIF Revenues. The priority of AURA’s use of TIF
Revenues generated from within the urban renewal plan area(s) established within the Property
pursuant to this Section 6.7 are: [Town Council objects to what it characterized as a
restriction on the priority of use of TIF. This provision does not restrict the Town’s
discretion, but instead states a condition of Master Developer’s cooperation being required.
It is noted that Schedule 3 of the STS states that “Improvement of Planning Areas B and C
will be at TOA’s cost and will be subject to prior review and approval by Village DRB.”
Because improvement of PA-B is “at TOA’s cost” and not at AURA’s cost, the following
priority of TIF Revenue use is consistent with the STS, is consistent with the Town’s focus
on the Prioritized Capital Projects, is consistent with the Town’s objective to accelerate the
time when the Term expires and reduce the demand on Credit PIF Revenues, and is
appropriate to state as a condition of the plan that would trigger the cooperation
obligation. Given that AURA is a separate legal entity from the Town, and that the STS
states PA-B improvements are at “TOA’s cost” (and not AURA’s), a strict literal reading
of the STS would, in fact, preclude AURA’s use of TIF Revenues for improvements to PA-
B, although it is recognized that Paragraphs 10.b.ii. does refer to use of TIF Revenues for
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PA-B. Thus, the STS provisions, at a minimum, require reconciliation and the proposal
below addresses that need.]
(i) First, until the Credit PIF Cap reduction contemplated by Section
6.7(b) has been accomplished, to fund Prioritized Capital Projects.
(ii) Second, to the extent there are sufficient TIF Revenues remaining
after satisfaction of clause (i) above, to fund any Prioritized Capital Projects
remaining to be financed and completed, any other Capital Projects that result in a
reduction of the Credit PIF Cap pursuant to the terms and conditions of Section
6.7(b) (which, for avoidance of doubt, may include structured parking within Lot
1 to provide shared public parking for private improvements and public
improvements constructed within Planning Area B (which are otherwise the sole
obligation of the Town and not of AURA) and other areas of Lot 1, and may
include improvements to Town-owned property within Lot 1).
6.8 Tank Agreement. Prior to the Effective Date and in implementation of the
Settlement Term Sheet, certain parties thereto legally delivered and entered into the Tank
Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge
Agreement has been executed and delivered. As more specifically set forth in the Tank
Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i)
TCMD is obligated to remit the Annual Debt Service Pledge Amount to the Authority; and (ii)
the Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service
Pledge Amount revenues to pay debt service on the Tank Project Bonds. As of the Effective
Date, BNP has provided the original letters of credit securing payment of the TCMD Bond
Reissue, consented to this Development Agreement and consented to the Tank Agreement in
reliance on the Town’s performance of its obligation to maintain the Tax Credit in effect as
required pursuant to this Development Agreement, and on the remedies provided for herein for
the Town’s breach of its obligation to maintain the Tax Credit.
6.9 TCMD Bond Reissue; Priority Use of District Revenues. In implementation of
the Settlement Term Sheet:
(a) TCMD Bond Reissue. Concurrently with the Effective Date and with the
consent of BNP and Master Developer, TCMD has caused the TCMD Bond Reissue to be
effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in
reliance on the Town’s performance of its obligations pursuant to this Development Agreement
(specifically including but not limited to the Town’s obligation to maintain the Tax Credit in
effect during the Term), and on the remedies provided for herein for the Town’s breach of its
obligations under this Development Agreement (including but not limited to the right to obtain
an order requiring specific performance of the Town’s obligation to maintain the Tax Credit).
The TCMD Reissue Documents encumber and, consistent with the Settlement Term Sheet,
establish the terms and conditions of TCMD’s utilization of District Revenues. Prior to the
Effective Date, the Town reviewed and approved the TCMD Reissue Documents for consistency
with this Development Agreement.
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(b) Priority of Use of District Revenues. District Revenues are to be utilized
to meet TCMD obligations in the following priority:
(i) Annual Debt Service Pledge Amount. To the Authority, for the
Annual Debt Service Pledge Amount, from such sources, in the amounts and at such
times required by the Pledge Agreement.
(ii) Other Allowed O&M Expenses. Provided there is no continuing
default with respect to its obligations pursuant to the TCMD Bond Documents, to TCMD
in the amount of the Base O&M Amount and TCMD’s contributions to the Asphalt
Overlay Account.
(iii) TCMD Bond Reissue. To TCMD (or the trustee for the TCMD
Bond Reissue) for principal repayment or reimbursement and Bond Requirements related
to the TCMD Bond Reissue as required by the TCMD Reissue Documents, which
includes, without limitation, establishment and, as necessary, replenishment of the
required reserve of $3,000,000, and any refunding bonds issued to repay or defease the
TCMD Bond Reissue.
(iv) Deferred BNP Letter of Credit Fees and Deferred Amortization.
To pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization.
The prepayment or refinancing of the TCMD Bond Reissue shall require payment in full
of, or other extinguishment in full of the payment obligation with respect to, any such
Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be
applied in inverse order of maturity.
(v) Use of Excess Revenues.
(A) Prepayment of TCMD Bond Reissue. In any year in which
any District Revenues remain after the payment of the items set forth in
subsections (i)-(iv) above and the Debt Service Coverage Ratio is less than
150%, such excess revenues shall be applied to early payment of principal
of the TCMD Bond Reissue in inverse order of maturity.
(B) Other Obligations of TCMD. In any year in which any
District Revenues remain after the payment of the items set forth in
subsections (i)-(iv) above and the Debt Service Coverage Ratio is 150% or
greater:
1. Supplemental Bonds. To the extent Supplemental
Bonds have been issued (whether in the form of Additional
Developer Advances or municipal bonds), for principal repayment
or reimbursement and payment of interest and other Bond
Requirements related to such Supplemental Bonds in accordance
with the terms and conditions thereof and any refunding bonds
issued to repay or defease any such Supplemental Bonds.
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2. Cure Payments. To the extent the Town has
exercised any cure rights pursuant to Section 6.11 to cure a
deficiency in payment of principal or the Bond Requirements of
the Tank Project Bonds or the TCMD Bond Reissue, to reimburse
the Town for the amount of such payments and interest thereon at
the non-default interest rate commensurate with the interest paid to
bondholders at the time of the cure payment.
3. Past Developer Advances and Avon Receivable. To
satisfy TCMD’s payment obligations with respect to the Past
Developer Advances (including amounts payable to Buffalo Ridge
Affordable Housing Corporation) and the Avon Receivable,
subject to the following:
I. The Past Developer Advances (including
any Replacement Bonds issued to repay or defease all or a
portion of the Past Developer Advances) and the Avon
Receivable shall be paid in the order in which TCMD
incurred the obligations, with the oldest obligation to be
paid first, except to the extent such priority of payment
conflicts with the priority and terms of the instrument
creating the obligation in which case such priority and
terms shall control. With respect to the Past Developer
Advances, the obligations shall be deemed to have been
incurred as of the dates set forth in the instruments creating
the obligations. With respect to the Avon Receivable, the
obligation shall be deemed to have been incurred as of the
dates on which payments were due under the terms of the
Original Agreement and/or any Municipal Service Invoice
(as the Original Agreement defined such term). The Past
Developer Advances, the Avon Receivable, and the dates
on which such obligations were incurred are more
particularly described in Exhibit E.
II. Simple interest shall accrue on the principal
amount of the Avon Receivable commencing on October 7,
2011, at the rate of 8% per annum until the Effective Date.
Commencing on the Effective Date and continuing until the
expiration of the Term or payment in full, whichever first
occurs, simple interest shall accrue on the principal amount
of the Avon Receivable at the rate of 1.5%. The interest
accrued at 8% prior to the Effective Date shall not be
construed to be a principle amount of the Avon Receivable
that is subject to accrual of further interest after the
Effective Date. . [Note: Although not in the STS,
Developers and TCMD have provisionally agreed to the
foregoingpreviously stated they’d consider the Town’s
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request for 8% interest on the Avon Receivable, subject
to satisfactory resolution of other matters. For
purposes of this revision, the provision has been deleted
because it is not in the STS.]
III. Except to the extent stated in this clause 3,
the interest rate applicable to the Past Developer Advances
shall be as stated in the instruments creating such
obligations. Notwithstanding the foregoing or any contrary
provision of the instruments creating such obligations, the
interest rate on certain Past Developer Advances payable to
Master Developer or any Developer Affiliate shall: (A)
with respect to a principal amount equal to the principal
amount of the Avon Receivable be limited to 1.5% simple
interest per annum, commencing on the Effective Date; and
(B) such reduced interest rate shall be applied first to the
principal balance of the latest (i.e., most recently executed)
such instrument and then to each subsequent (i.e., next
most recently executed) instrument until a principal amount
equal to the principal amount of the Avon Receivable is
obtained.
IV. The rate of interest and priority of payment
with respect to that portion of the Past Developer Advances
payable to Buffalo Ridge Affordable Housing Corporation
shall be as set forth in the document creating such
obligation, shall not be modified in any manner by the
terms and conditions of this Development Agreement, and
shall remain in full force and effect in accordance with the
existing terms except to the extent as may be modified by
mutual agreement of TCMD, Master Developer and
Buffalo Ridge Affordable Housing Corporation. Such
agreement to modify the interest rate, priority of payment
or other terms is expressly not a condition of this
Development Agreement.
(C) Direct Payment of Capital Project Costs. After the
obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A) and (v)(B) are fully
satisfied and to the extent not expressly precluded by any provision of this
Development Agreement, that portion of available Credit PIF Revenues
shall be deposited to an escrow account to be used exclusively for direct
payment of Capital Project Costs.
(c) Other Legally Permissible Uses of District Revenues. Subject to the
limitations in the Service Plans, the Tank Project Bonds documents and the TCMD Reissue
Documents, nothing herein shall be construed as prohibiting the Districts from utilizing District
Revenues for any other uses not enumerated above or from imposing a mill levy and retaining
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the revenues derived therefrom for the purpose of paying theirfor Capital Project Costs and/or of
paying the Districts’ operation, maintenance and administrative expenses to the extent that such
costs exceed the Allowed O&M Expenses and/or capital costs of Public Improvements. The
uses of that; provided, however, that the portion of District Revenues comprising Credit PIF
Revenues shall be those useslimited solely to the Permitted Uses as set forth in Section 6.2(d)
and as otherwise limited in this Development Agreement. a). [Note: This provision has been
revised in response to questions from Town Council and EH, with the intent of further
clarifying that Credit PIF Revenues are limited to Permitted Uses. The incorrect cross
reference to § 6.2(d) has been revised to correctly cross reference § 6.2(a).]
(d) Continuation of Priority of Use. If TCMD issues any form of replacement
or refunding bonds for the TCMD Bond Reissue and/or issues Supplemental Bonds, TCMD shall
cause the pertinent documentation executed in connection therewith to incorporate the general
prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve
such documentation for the limited purpose of confirming conformance with the general
prioritization set forth in Section 6.9(b).
6.10 Supplemental Bonds. If TCMD issues Supplemental Bonds on or before January
2, 2040, TCMD shall continue to receive Credit PIF Revenues until the Tax Credit terminates
upon satisfaction of the full Credit PIF Cap. If TCMD has not issued Supplemental Bonds prior
to January 2, 2040: (i) the Town shall have no further obligation with respect to satisfaction of
the full Credit PIF Cap; (ii) the Tax Credit shall be maintained in effect until all District Debts
payable from Credit PIF Revenues as set forth in Section 6.2(d) and outstanding as of January 2,
2040 are fully paid; and (iii) TCMD shall be entitled to retain and utilize all Credit PIF Revenues
it has received prior or subsequent to January 2, 2040 to be used for servicing District Debts.
Supplemental Bonds shall not be issued with interest rates that exceed market rates. The market
rate of interest for Supplemental Bonds shall not exceed the Municipal Market Data rate for Baa
investment grade bonds plus one point five percent (1.50%) (“Supplemental Bond Interest Rate”.
To the extent the District intends to issue bonds with an interest rate that exceeds or could exceed
of the Supplemental Bond Interest Rate, the District will obtain the prior written consent of the
Parties to this Agreement. The market rate of interest for Additional Developer Advances shall
be eight percent (8%) simple interest until paid in full.[Note: EH has flagged this provision,
along with §§ 6.11, 6.21 and 6.23 as requiring further discussion. The reason for this, and
the relationship among these provisions is unclear. Further discussion is required.
Additionally, it is noted that the STS simply states that Supplemental Bonds are to have
“interest at market rates.” The foregoing deleted provisions were considered and
previously added at the Town’s request on the theory that it would be mutually beneficial
to have a mutual understanding of what is meant by “market rates.” Strict adherence to
the literal terms of the STS would dictate removing these artificial upper limits on what
“market rates” would be at any given point in time. For purposes of this revision, language
tracking the STS has been left and language supplementing the STS has been deleted.]
6.11 Replacement Bonds. Subject to any applicable terms and conditions of the
TCMD Reissue Documents, on or after the Effective Date, TCMD shall have the ongoing right
to issue bonds payable with District Revenues other than Credit PIF Revenues to extinguish,
replace, refund or defease Past Developer Advances (“Replacement Bonds”). The principal
amount of the Replacement Bonds shall not exceed $12.4 million without the Town’s prior
49 1001679.14 08/311001679.15 09/07/12
written approval, and the interest rate of such Replacement Bonds shall bear a lower interest rate
than such Past Developer Advances. For the purposes of determining the maximum allowable
interest rate of Replacement Bonds, the interest rate of Past Developer Advances which are
extinguished, replaced, refunded or defeased with Replacement Bonds (but excluding from such
calculation those Past Developer Advances with respect to which the interest rate has been
reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.III) shall be averaged with regard to the
respective interest rate and amount of principal to determine the net effective interest rate. The
interest rate of Past Developer Advances (excluding those Past Developer Advances with respect
to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.III) shall be
as determined by this Development Agreement on the Effective Date. The amount of such
Replacement Bonds, or any bonds issued to defease such Replacement Bonds in whole or in part,
shall not count against the Credit PIF Cap to avoid counting the amount of the Past Developer
Advances more than once which have already been applied to the Credit PIF Cap. To the extent
the accrued and unpaid interest payable under the terms of the Past Developer Advance
documents is not capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid
interest shall be carried forward as an accrued and unpaid interest obligation under the terms of
the Past Developer Advance documents, the unpaid interest obligation shall not bear any interest,
and the unpaid interest obligation shall not be discharged until paid in full. [Note: EH has
flagged this provision, along with §§ 6.10, 6.21 and 6.23 as requiring further discussion.
The reason for this, and the relationship among these provisions is unclear. Further
discussion is required.]
6.12 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the
Town shall have the right, but not the obligation, to cure any TCMD payment default under the
Tank Project Bonds, the TCMD Reissue Bonds or any Supplemental Bonds and to receive
reimbursement of any such cure payments in accordance with the terms and conditions of
Section 6.9(b)(v)(B)2.
6.13 Town Funding of Credit PIF Cap. At any time after the TCMD Bond Reissue
obligations have been fully satisfied, the Town shall have the right, but not the obligation, to pay
off all or a portion of the then-outstanding District Debt and/or satisfy the Town’s obligation
with respect to funding the full Credit PIF Cap as follows:
(a) Full Funding of Credit PIF Cap. The Town shall have the right to fully
fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debt; and (ii) remitting
to TCMD the principal amount of any remaining Supplemental Bonds capacity which has not yet
been issued as of the date of payoff. The total obligation to TCMD shall not exceed the Credit
PIF Cap. For example, if the sum of the principal amount of previously retired TCMD Bond
Reissue obligations and other District Debt retired by the Town totals $80 million, the principal
amount of unissued Supplemental Bonds to be paid by the Town to TCMD would be $16 million
[$96 million - $80 million = $16 million]. Upon remitting the funds to fully fund the payoff
amounts pursuant to the foregoing terms and conditions, the Town shall be entitled to terminate
the Tax Credit. Simultaneously with Town’s exercise of its right to terminate the Tax Credit, the
PICs’ obligation to cause the Municipal Payments to be remitted to the Town pursuant to the
terms and conditions of this Development Agreement, and all right or claim of the Town to
receive any portion of the Add-On RSF Revenues imposed after the date which Town exercises
50 1001679.14 08/311001679.15 09/07/12
its right to terminate the Tax Credit, shall automatically and without the requirement of further
action terminate, be of no further force or effect, and be forever extinguished.
(b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debt but not to advance the funds required to fund the
unissued Supplemental Bond capacity remaining available to TCMD. In such event and as
otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for
the duration of the Term, the PICs shall continue to impose the Credit PIF and cause the
collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal
Payments to be remitted to the Town. All Credit PIF Revenues available to TCMD (for
example, not otherwise encumbered by and required to service debt on Supplemental Bonds
issued after the date of the Town’s payoff) shall be placed in escrow by TCMD and applied from
time to time toward Supplemental Bonds and/or direct payment of Capital Project Costs. The
Credit PIF Revenues placed into escrow shall be subject to an agreement which grants the Town
the right to enforce, restrict and limit the use of such escrow funds for payment of Capital Project
Costs.
6.14 Internet, Mail Order and Similar Remote Taxable Transactions. The Parties
intend that retail sales transactions effected remotely should be subject to the Credit PIF and the
Tax Credit whether such remote transactions are effected via the internet, by mail order or
otherwise delivered into the Project such that the transaction is a Taxable Transaction. However,
due to logistical and practical impediments to causing the Credit PIF and the Tax Credit to attach
to such transactions or otherwise tracking and allocating such revenues, it has not heretofore
been possible to effect the Financing Plan with respect to such remote transactions. From and
after the Effective Date, by not later than March 1 of each year during the Term, the Town shall
on an annual basis provide to TCMD, BNP and Master Developer a written accounting of the
aggregate sales taxes received by the Town during the prior calendar year as a result of such
remote transactions. Concurrently with delivery of the written accounting, the Town shall remit
to TCMD a proportionate share of such remote sales tax receipts in an amount equal to the ratio
of residential dwelling units within the Project to the total residential dwelling units within the
Town pursuant to the following formula: [(total residential dwelling units within the Project /
total residential dwelling units within the Town) x sales tax receipts from remote transactions =
amount payable to TCMD]. If the Parties identify a more precise and equitable method of
implementing the intent of this Section 6.14 (for example, causing the Property to be established
as an independent and separate zip code from the rest of the Town to enable precise tracking of
sales taxes generated from remote Taxable Transactions effected within the Property), such
method may be implemented by amendment to this Development Agreement in accordance with
Section 1.5. [Note: Town has not agreed to this provision. BNP is considering its position.
It is at issue in the litigation and should be resolved.]
6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose,
collect, receive, retain, expend or utilize Town taxes imposed upon PIC fees as described herein.
In the event that the Town is legally required by municipal, state or federal law to impose the
Town’s tax on a PIC fee as described herein, the Town shall remit the full amount of the Town
tax imposed upon the PIC fee to TCMD and such revenues shall be included with and be subject
to the same terms, conditions and restrictions as Credit PIF Revenues.
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(a) Use Tax. In the event that the Town enacts and imposes a use tax on
building materials, the Town shall not impose such Town use tax on any Use Fee.
(b) Real Estate Transfer Tax. The Town’s real estate transfer tax shall not
apply to the Real Estate Transfer Fee.
(c) Accommodations Tax Applied to PIF. The Accommodations/Lodging
Fee shall not be construed to be part of the Taxable Transaction. The Accommodations/Lodging
Fee shall not be subject to the Town’s accommodations tax. [Note: The Town requested this
provision be included in Section 6.16. The STS does not contemplate Town imposing or
retaining this tax, and Developers have therefore relocated it to Section 6.15. ]
6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain,
expend and utilize for any lawful Town purpose in the Town’s discretion the following tax
revenues: [General Note: Sections 6.15 and 6.16 require re-evaluation if Town Council
adheres to the literalist/minimalist STS approach. Various of these matters are at issue in,
or implicated by, the litigation, but the STS does not literally require this.]
(a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF
added to each retail sales transaction shall be included in the Taxable Transaction. The Retail
Sales Fee and Add-On RSF shall be subject to the Town’s municipal sales tax and the Town is
entitled to collect, receive, retain, expend and utilize such sales tax revenues.
(b) Accommodations Tax Applied to PIF. The Accommodations/Lodging
Fee shall be included in the Taxable Transaction. The Accommodations/Lodging Fee shall be
subject to the Town’s accommodations tax. The Town’s sales tax and accommodations tax shall
be cumulatively applied to the Retail Sales Fee, the Add-On RSF and the
Accommodations/Lodging Fee and the Town is entitled to collect, receive, retain, expend and
utilize such combined sales and accommodations tax revenue. [Note: Developers have not
agreed to this provision, which is not in the STS. It should be revised accordingly and
moved to § 6.15.]
(b) (c) Town Ad Valorem Taxes. The Town is entitled to collect, receive,
retain, expend and utilize all ad valorem property tax revenues resulting from imposition of the
Town’s property tax mill levy within the Project.
(c) (d) Town Share of Eagle County Sales Taxes. The Town is entitled to
collect, receive, receive, expend and utilize any portion of Eagle County’s sales revenues
generated by transactions occurring within the Project to which the Town is entitled to receive
pursuant to any agreements with Eagle County in effect from time to time.
(d) (e) Future Taxes, Assessments and Fees. The Town is entitled to collect,
receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees
imposed by the Town and not addressed in this Development Agreement which are imposed
uniformly and non-discriminately throughout the Town. [Note: EH has indicated this
provision needs to be reconciled with § 3.9. The basis of the concern is unclear and
requires further discussion.]
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6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall
maintain adequate books and records to accurately perform and account for their respective
obligations under this Development Agreement. Each such Party shall, upon request of any
other such Party, permit representatives of such requesting entity reasonable access during
normal business hours to review and, at the requesting entity’s expense, audit such books and
records in order to permit such requesting entity to determine compliance with the terms of this
Development Agreement or the accuracy of any information contained in any statement, notice,
invoice or report required to be provided under this Development Agreement. All such Parties
shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any
such statement, notice, invoice or report or in such requesting entity’s review or audit of the
applicable books and records. For so long as BNP is providing a Letter of Credit to secure the
TCMD Bond Reissue or any amounts are due and owing to BNP in connection with the TCMD
Bond Reissue, BNP shall have the same right to reasonable access to review and audit books and
records to determine compliance with the terms of this Development Agreement or the accuracy
of any information as set forth above with respect to the Town, AURA, the PICS and the
Districts.
6.18 Cooperation Regarding Delinquent Credit PIF RevenuesPublic Improvement
Fees. If the PICs are unable to collect any portion of the Credit PIF RevenuesPublic
Improvement Fees due to delinquency, deficiency, or failure to file, the PICs may promptly
notify the Town in writing, and the Town shall institute the procedures authorized under the
Municipal Code to enforce and collect the corresponding Town tax, interest, penalties and costs.
The Town shall then remit such tax revenues to the PICs or to the District, subject to the
following conditions: (a) the Town shall retain an amount equal to its costs incurred in enforcing
its collection of taxes under the Municipal Code, as well as an administrative fee equal to 20% of
any tax and/or penalty actually collected; (b) the obligation is subject to any prior lien on such
Town taxes securing the Town’s sales tax revenue bonds outstanding as of the date of the
Original Agreement; (c) the Town will have no responsibility to collect Add-On RSF
RevenuesPublic Improvement Fees which are in excess of the corresponding Town tax or which
are assessed against any transaction that is exempt from the corresponding Town tax under the
Municipal Code as then in effect; and (d) the Town does not guarantee or insure that it will be
able to collect any delinquent or deficient Credit PIF RevenuesPublic Improvement Fees. Under
no circumstances shall the Town be subject to any legal liability to the PICs or to the Districts on
account of the Town’s failure to collect some or all of the delinquent or deficient Credit PIF
RevenuesPublic Improvement Fees on behalf of such entities. The Town acknowledges that if
the person or entity which failed to timely remit such Credit PIF RevenuePublic Improvement
Fees subsequently remits such Credit PIF RevenuePublic Improvement Fees to the applicable
PIC, such payment shall result in the application of a simultaneous creditthe Tax Credit (if
applicable) against such person or entity’s corresponding tax obligation (if any), which creditTax
Credit shall fully satisfy any corresponding tax liability to the Town. The Town shall
nevertheless be entitled to recover from the PICs the administrative fee and any costs incurred in
the enforcement and recovery of such Credit PIF Revenues.Public Improvement Fees. [Note:
Revisions to this provision have been made to make it more directly consistent with the
corresponding provision in the Original Agreement, replacing the term “Credit PIF
Revenues” with the term “Public Improvement Fees” and including related language from
the Original Agreement.]
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6.19 Creation of Additional PICs and/or Districts. Master Developer reserves the right
to create such additional PICs as may be necessary or desirable from time to time. With the prior
written consent of BNP (for so long as there are outstanding obligations to BNP under the
TCMD Reissue Documents or any subsequent reissue or refunding of such bonds) and Master
Developer, the applicable Landowner(s) may petition for the creation of additional Districts to
provide services and/or Public Improvements and/or other forms of improvements benefiting all
or any portion of the Property. The Town shall reasonably cooperate with Master Developer and
such Landowners, as applicable, with respect to the creation of such additional PICs and/or
Districts.
6.20 Operation of PICs and Districts. The formation documents of the PICs and the
Districts, together with contracts entered into by and between the PICs and the Districts, require
the PICs and the Districts to honor their obligations under this Development Agreement,
including the obligation of the PICs to cause the Credit PIF Revenues and the Add-On RSF
Revenues to be imposed, collected, remitted and utilized as required by the terms of this
Development Agreement. The Town shall cooperate with the operation of the Districts, and with
implementation of the Financing Plan.
6.21 Dissolution of Districts. Unless Master Developer requests in writing that the
Town to do so earlier, the Town shall not initiate or pursue any proceeding to dissolve any
District prior to expiration of the Termuntil after the earlier to occur of either: (a) the twenty-
fifth (25th) anniversary of the first issuance of bonds by either District; or (b) such time as all
infrastructure improvements and public amenities contemplated in the service plans for the
Districts have been constructed and no issued general obligations or revenue obligations of the
Districts remain outstanding with respect thereto. Any dissolution of any District shall be
conducted in accordance with the provisions and procedures set forth in Colorado Revised
Statutes §§ 32-1-701, et seq. as may be amended from time to time. [Note: The Town has not
approved the initial sentence, which is under discussion but has been deleted and replaced
with the corresponding initial sentence from the Original Agreement (§ 4.7). Town Council
and EH object to this sentence, in part, on the basis that the STS does not require it. Note:
EH has flagged this provision, along with §§ 6.10, 6.11 and 6.23 as requiring further
discussion. The reason for this, and the relationship among these provisions is unclear.
Further discussion is required.]
6.22 Restrictive Covenant Regarding Relocation of City Market. As of the Effective
Date, a City Market grocery store is located within an area of the Town that is not within the
Property and the City Market is a significant sales tax generator for the Town. A relocation
during the Term of the City Market from its existing location as of the Effective Date to the
Property would potentially result in a significant sales tax loss to the Town. Therefore, during
the Term this Section 6.22 shall constitute a restrictive covenant precluding any Landowner from
consummating the sale or lease of any portion of the Property to the existing City Market
(including for purposes hereof its successors and assigns) for purposes of relocating the existing
City Market from its current location to a location within the Property without the Parties having
first executed, with the prior written consent of BNP (for so long as there are outstanding
obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding
of such bonds), an amendment to this Section 6.22 which sets forth the terms and conditions
upon which BNP (for so long as so long as there are outstanding obligations to BNP under the
54 1001679.14 08/311001679.15 09/07/12
TCMD Reissue Documents or any subsequent reissue or refunding of such bonds), the Parties
and the pertinent Landowner have agreed to permit such relocation of the City Market from its
current location to a location within the Property. The foregoing restrictive covenant shall not be
construed to apply to a City Market locating with the Property following the closure and
cessation of business operations of the existing City Market for a period of twenty-four
consecutive months. [Note: Developers have provisionallypreviously agreed to consider the
foregoing deleted language, dependent on satisfactory resolution of other open matters,
including but not limited to, what counts against the Credit PIF Cap, additional
commercial density in the PUD and access to PA-I. EH has proposed additional provisions,
which the other Parties are reviewing. The STS expressly states that sales tax indemnity is
replaced by the Municipal Payments, so this provision, in any form, would be contrary to
the STS. For present purposes, it has been deleted for that reason.]
6.23 Relationship to TCMD Service Plan and VMD Service Plan. The obligations and
rights of the Districts set forth in this Development Agreement and their performance and
exercise thereof, if and to the extent in conflict with any provisions of the TCMD Service Plan or
the VMD Service Plan, respectively, are hereby approved by the Town and shall not be
interpreted or construed as violations or material modifications to the service plans. [The Town
objects to the inclusion of this provision. Applicant’s view this provision as important to
retain because it addresses a matter the Town placed at issue in the litigation. It is further
noted that VMD was not a party to the STS, and for that reason was not addressed in the
STS. Note: EH has flagged this provision, along with §§ 6.10, 6.11 and 6.21 as requiring
further discussion. The reason for this, and the relationship among these provisions is
unclear. Further discussion is required.]
ARTICLE 7
DEFAULT; REMEDIES
7.1 Default by Town. A “breach” or “default” by the Town shall be defined as: (i)
any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated
measure, taken without Master Developer’s and the affected Landowner’s or Landowners’
consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays
or otherwise adversely affects any development, use or other rights of the Landowners under this
Development Agreement or the Development Plan; or (ii) the Town’s failure to fulfill or perform
any obligation of the Town that is expressly set forth in this Development Agreement.
7.2 Default by TCMD. A “breach” or “default” by a TCMD shall be defined as
TCMD’s failure to fulfill or perform any obligation of TCMD that is expressly set forth in this
Development Agreement.
7.3 Default by Master Developer. A “breach” or “default” by Master Developer shall
be defined as Master Developer’s failure to fulfill or perform any obligation of Master Developer
that is expressly set forth in this Development Agreement.
7.4 Default by Limited Party. A “breach” or “default” by a Limited Party shall be
defined as such Limited Party’s failure to fulfill or perform any obligation of such Limited Party
that is expressly set forth in this Development Agreement.
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7.5 No Cross-Defaults. No default by a Party or a Limited Party that is asserted or
judicially determined to exist under this Development Agreement shall be construed to constitute
a default of any other Party or Limited Party under this Development Agreement. No default of
a Party or a Limited Party that is asserted or judicially determined to exist under this
Development Agreement shall be construed to constitute a default of such Party or Limited Party
under any other agreement to which such Party or Limited Party is a party. No default of a Party
or a Limited Party that is asserted or judicially determined to exist under another agreement to
which such Party or Limited Party is a party shall be construed to constitute a default by such
Party or Limited Party under this Development Agreement.
7.6 Notices of Default. In the event of a default by a Party under this Development
Agreement, the non-defaulting Party shall deliver written notice to the defaulting Party of such
default, at the address specified in Section 8.12, and the defaulting Party shall have 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 30-day period and the defaulting Party gives written notice to the
non-defaulting Party within such 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 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.
7.7 Remedies.
(a) General. If any default under this Development Agreement is not cured
as described in Section 7.6, any non-defaulting Party and/or any non-defaulting Limited
Party shall, except to the extent otherwise limited by an express provision of this
Development Agreement, be entitled to enforce the provisions and any remedy provided
in this Development Agreement at law or in equity, and relief in the nature of injunctive
relief, mandamus, specific performance or damages or a combination may be awarded.
The remedies available shall include, but not be limited to, ex parte applications for
temporary restraining orders, preliminary injunctions and permanent injunctions and
actions for specific performance of the defaulting Party’s or defaulting Limited Party’s
obligations and/or damages. All of the remedies permitted or available under this
Development Agreement, at law, by statute or in equity shall be cumulative and not in the
alternative, and invocation of any such right or remedy shall not constitute a waiver or
election of remedies with respect to any other permitted or available right or remedy. For
the avoidance of doubt and in order to clarify the effect of the foregoing as it relates to
the Financing Plan,: (i) the Town hereby forever waives and relinquishes any claim or
right to terminate the Tax Credit for so long as any District Debts remain outstanding.
Additionally,; and (ii) in consideration of this Development Agreement constituting an
intergovernmental agreement by and among the Town, AURA, TCMD and VMD
pursuant to C.R.S. §§ 29-1-204 and 29-20-105, each such governmental or quasi
governmental entity expressly acknowledges that the Town, AURA, TCMD and VMD
each shall have standing to enforce this Development Agreement, including specific
performance, and affirms its intent that the obligations of each such governmental or
quasi-governmental entity are to be enforced in accordance with their terms and each
such entity expressly waives any right to object to or assert any defense against the entry
of an order requiring specific performance (or other mandatory or prohibitory injunctive
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relief) of such obligations. [Note: The Town requested the addition of a waiver of
right to offset. There is no requirement in the STS to provide for the waiver of the
right of offset. If Developers were to consider including it, a clause (iii) might be
added as follows: “to the extent any Party could be construed to have a right of
offset against the Municipal Payments under any legal or equitable theory, such
Party expressly waives any such right of offset.” However, the provision has not
been revised at this time pending further discussion on the general topic of the scope
of STS obligations and satisfactory resolution of remaining open issues.]
(b) Impairment of Vested Property Rights. The Town acknowledges that this
Development Agreement and the Development Plan constitute a development agreement which
confers rights beyond those provided by the three (3) year statutory vesting approach described
in the Vested Property Rights Statute. In the event of an uncured breach or default by the Town,
in addition to any other remedies, Master Developer and any affected Landowner shall be
entitled to:
(i) recover from the Town the Past Developer Advances and any other
damages that would have been specifically available pursuant to C.R.S. §
24-68-105(1)(c) as in effect on the Effective Date, plus any other and additional
damages provable at law.
(ii) cause the Property, or any portion thereof designated by Master
Developer and the pertinent Landowner, to be disconnected from the Town.
(c) Limited Parties. The Limited Parties’ remedies shall be as follows:
(i) AURA. AURA shall have no rights arising under this
Development Agreement to enforce any obligation of any other Party or to obtain any
remedy against any Party.
(ii) EMD. EMD shall all rights and remedies available to Master
Developer.
(iii) The Commercial PIC. The Commercial PIC’s rights arising under
this Development Agreement to enforce any obligation of any other Party or to obtain
any remedy against any Party shall be limited to the following rights and remedies:
(A) Pursuant to Sections 4.2(a) and 6.1(b), the right to enforce
the Town’s obligations to maintain the Tax Credit in effect.
(B) Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C) Pursuant to Sections 6.3(a) through (c), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee.
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(D) Pursuant to Section 6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
(iv) The Mixed Use PIC. The Mixed-Use PIC’s rights arising under
this Development Agreement to enforce any obligation of any other Party or to obtain
any remedy against any Party shall be limited to the following rights and remedies:
(A) Pursuant to Sections 4.2(a) and 6.1(b), the right to enforce
the Town’s obligations to maintain the Tax Credit in effect.
(B) Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C) Pursuant to Sections 6.3(a) through (c), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee.
(D) Pursuant to Section 6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
(d) Intended Beneficiaries. Each of the following Intended Beneficiaries shall
have the right to enforce specified provisions of this Development Agreement, as described
below.
(i) BNP. For so long as so long as there are outstanding obligations to
BNP under the TCMD Reissue Documents (or any subsequent reissue or refunding of
such bonds), BNP shall have all rights and remedies available to a Party with respect to
enforcement of the following Town and/or AURA and/or other expressly identified
obligations:
(A) Generally, the obligations set forth in Article 4 and Article
6.
(B) Pursuant to Sections 4.2(a) and 6.1(b), the Town’s
obligation to maintain the Tax Credit in effect.
(C) Pursuant to Section 6.7(c), BNP’s right to participate on the
AURA board of directors for with respect to any urban renewal plans for any
portion of the Property.
(D) To specific enforcement of the restrictive covenant
imposed pursuant to Section 6.22.
(ii) VMD.
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(A) Pursuant to Section 6.7(d), VMD’s right with respect to any
urban renewal plans for any portion of the Property located within VMD’s service
area to enforce the obligations of AURA and the Town with respect to VMD’s ad
valorem property taxes and the uses of all tax increment revenues collected by
AURA.
(B) Pursuant to Section 4.2(f), VMD’s right to enforce the
Town’s obligation regarding waiver of Chapter 18.01 of the Municipal Code (as
in effect on the Effective Date or as amended from time to time).
(iii) Developer Affiliates and Landowners. Each Developer Affiliate
and each Landowner shall have all rights and remedies available to Master Developer.
[Note: Per 8/24 meeting, discussion regarding the applicability of C.R.S. 31-
20-105 as a potential remedial option regarding the Municipal Payments is
continuing, as well as consideration of further definition as to the means of
assessment/apportionment. While DeveloperThe STS does not believe the
STS requiresrequire or contemplate the creation of a special remedy, .
Developer has previously indicated it is willing to discuss this issue further to
understand the Town’s concerns (as part of an overall resolution of open
issues). Direction is needed from the Town as to whether this discussion will
be further pursued. Developer is generally opposed to any proposed
remedial provision that would shift the risk (as bargained for by the Town in
the STS) to other parties to the STS (who bargained in the STS not to have
that risk). It is noted that the Town, in the STS, bargained to eliminate what
is currently a 100% risk of non-payment from TCMD under the terms of the
Original Agreement and accepted what is a very theoretical and low
probability risk associated with the Municipal Payments mechanism. The
Town’s non-STS request is a material change.]
ARTICLE 8
MISCELLANEOUS
8.1 Applicable Law. This Development Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado.
8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this Development Agreement shall be
construed as making Town and Owner joint venturers or partners.
8.3 Expenses. Except as otherwise provided in this Development Agreement, Master
Developer, EMD, TCMD, each Developer Affiliate, each Limited Party, each Intended
Beneficiary and the Town shall each bear their respective costs and expenses associated with
entering into, implementing and enforcing the terms of this Development Agreement.
8.4 Waiver. No waiver of one or more of the terms of this Development Agreement
shall constitute a waiver of other terms. No waiver of any provision of this Development
Agreement in any instance shall constitute a waiver of such provision in other instances.
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8.5 Town Findings. Town Council hereby finds and determines that execution of this
Development Agreement provides a public benefit to the Town and its citizens, is in the best
interests of the public health, safety, and general welfare, and the provisions of this Development
Agreement are consistent with all applicable development laws, regulations and policies of the
Town. Town Council further specifically finds: (i) while Town Council is acting in a legislative
capacity in granting the Vested Property Rights, it is acting in a proprietary capacity in approving
the Financing Plan (and binding the Town to maintain the Tax Credit in effect during the Term);
(ii) the Financing Plan and the Town’s agreement to forego the collection of sales tax revenues,
real estate transfer tax revenues and accommodations/lodging tax revenues by maintaining the
Tax Credit in effect during the Term do not constitute the creation of a multiple-fiscal year direct
or indirect debt or other financial obligation of the Town, and do not constitute a new tax, tax
rate increase or tax policy change directly causing a net tax revenue gain to the Town; and (iii)
nothing in this Development Agreement constitutes (A) a pledge of the Town’s credit, (B)
special legislation under Article V, section 25 of the Colorado constitution, or (C) a grant in aid
under Article XI, sections 1 and 2 of the Colorado constitution.
8.6 Severability. If a final order issued by a court of competent jurisdiction holds any
term, provision, covenant or condition of this Development Agreement to be invalid, void or
unenforceable, the remaining provisions of this Development Agreement shall, unless amended
or modified as provided in Section 1.5, continue in full force and effect so long as enforcement
of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom
they are being enforced of a material benefit of the bargain under this Development Agreement
or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then
pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain
the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a
determination that the Town’s right to receive the Municipal Payments, is invalid, void,
unenforceable or that the remedy of specific performance is not available with respect to the
Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal
Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties
of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited
Parties; and (ii) this Development Agreement shall be deemed void and of no further effect
unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner
that the Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s
right to receive Municipal Payments, as applicable, can be materially performed and complied
with by alternative means. Unless amended or reformed as provided herein, entry of a final
order holding the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable
shall entitle Master Developer and affected Landowners to entry of an order enforcing the
remedy set forth in Section 7.7(b)(ii).
8.7 Further Assurances. Each Party shall undertake such actions and shall execute
and deliver to the other all such other further instruments and documents as may be reasonably
necessary to carry out this Development Agreement in order to provide and secure to the other
Party the full and complete enjoyment of its rights and privileges under this Development
Agreement.
60 1001679.14 08/311001679.15 09/07/12
8.8 TCMD Obligations. All obligations of TCMD under this Development
Agreement are subject to annual budget and appropriation, and are subordinate to any bonds
issued by TCMD.
8.9 Complete Agreement. This Development Agreement constitutes the final,
complete and exclusive statement of the terms of the agreement among the Parties pertaining to
the subject matter of this Development Agreement and supersedes all prior and contemporaneous
understanding or agreements of the Parties. This Development Agreement may not be
contradicted by evidence of any prior or contemporaneous statements or agreements, including
but not limited to the Settlement Term Sheet, the Original Agreement and any oral or written
communications exchanged during the public review process leading to approval of this
Development Agreement.
8.10 Construction. Each Party has participated fully in the review and revision of this
Development Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply to interpreting this Development Agreement.
The language in this Development Agreement shall be interpreted as to its fair meaning and not
strictly for or against any Party.
8.11 Assignment. This Development Agreement shall be binding upon and, except as
otherwise provided in this Development Agreement, shall inure to the benefit of the successors
in interest or the legal representatives of the Parties. Master Developer shall have the right to
assign or transfer all or any portion of its interests, rights or obligations under this Development
Agreement to third parties acquiring an interest or estate in the Property, including, but not
limited to, purchasers or long term ground lessees of individual lots, parcels, or of any
improvements now or hereafter located within the Property, provided that to the extent Master
Developer assigns any of its obligations under this Development Agreement, the assignee of
such obligations shall expressly assume such obligations. The express assumption of any of
Master Developer’s obligations under this Development Agreement by its assignee or transferee
shall thereby relieve Master Developer of any further obligations under this Development
Agreement with respect to the matter so assumed. BNP Paribas shall provide written notice to
the Parties of any successor or assignee entity that assumes BNP’s rights and obligations
pursuant to this Development Agreement.
8.12 Notices. All approvals, consents, notices, objections, and other communications
(a “Notice” and, collectively, “Notices”) under this Development Agreement shall be in writing
and shall be deemed properly given and received when personally delivered, or sent by overnight
courier, or by email (pdf), or by registered or certified United States mail, postage prepaid,
addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective
addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered,
when actually given and received; or (ii) if by overnight courier service, on the next business day
following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent
before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain
Time; or (iv) if by registered or certified United States mail, postage prepaid, three (3) business
days after mailed. All Notices shall be addressed as follows (or to such other address as may be
subsequently specified by Notice given in accordance herewith):
61 1001679.14 08/311001679.15 09/07/12
To the Town:
Town of Avon
P.O. Box 975
400 Benchmark Road
Avon, Colorado 81620
Attention: Town Manager
Telephone:
Email:
With a required copy to:
Town of Avon
P.O. Box 975
400 Benchmark Road
Avon, Colorado 81620
Attn: Town Attorney
Telephone: (303) 975-6120
Email: ericheillaw@gmail.com
To TCMD :
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 897-0835
Email: ljacoby@sdmsi.com
With a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Telephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
Telephone: (970) 949-6776
Email: marcuslindholm@traercreek.com
62 1001679.14 08/311001679.15 09/07/12
With a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Limited Parties:
Avon Urban Renewal Authority
P.O. Box 975
400 Benchmark Road
Avon, Colorado 81620
Attention: Town Manager
Telephone:
Email:
With a required copy to:
Avon Urban Renewal Authority
P.O. Box 975
400 Benchmark Road
Avon, Colorado 81620
Attn: Town Attorney
Telephone:
Email:
EMD Limited Liability Company
c/o Lava Corporation
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Michael Lindholm, President
Telephone: (970) 949-6776
Email: michaellindholm@traercreek.com
With a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 303.825.8400
Email: munsey@ottenjohnson.com
The Village (at Avon) Mixed-Use Public Improvement Company
63 1001679.14 08/311001679.15 09/07/12
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 897-0835
Email: ljacoby@sdmsi.com
With a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 303.825.8400
Email: munsey@ottenjohnson.com
The Village (at Avon) Commercial Public Improvement Company
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 897-0835
Email: ljacoby@sdmsi.com
With a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Intended Beneficiaries:
BNP Paribas, an International Bank
787 Seventh Avenue, 9th Floor
New York, NY 10019
Attn: Barbara Eppolito
Telephone: 212.841.3607
Email: Barbara.eppolito@americas.bnpparibas.com
With a required copy to:
Faegre Baker Daniels
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203-4532
Attn: Brandee Caswell
Telephone: (303) 607-3826
64 1001679.14 08/311001679.15 09/07/12
Email: Brandee.Caswell@faegrebd.com
Developer Affiliates
c/o Traer Creek LLC
[Utilizing the Master Developer contact information set forth above.]
The Village Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 897-0835
Email: ljacoby@sdmsi.com
With a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Telephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
8.13 Counterparts. This Development Agreement may 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.
65 1001679.14 08/311001679.15 09/07/12
IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this
Development Agreement as of the Execution Date, with the intent that this Development
Agreement shall be legally binding on each such signatory and legally attach to and encumber
the Property upon the occurrence of the Effective Date.
PARTIES:
TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited liability
company
By:
Name: Marcus Lindholm
Title: Manager
66 1001679.14 08/311001679.15 09/07/12
LIMITED PARTIES:
AURA:
THE AVON URBAN RENEWAL AUTHORITY, a
body corporate duly organized and existing as an
urban renewal authority under the laws of the State
of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
EMD:
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
67 1001679.14 08/311001679.15 09/07/12
COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
68 1001679.14 08/311001679.15 09/07/12
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as __________________ of THE TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
Notary Public
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by Marcus Lindholm as Manager of TRAER CREEK LLC, a Colorado limited liability
company.
69 1001679.14 08/311001679.15 09/07/12
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as _____________________ of THE AVON URBAN
RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal
authority under the laws of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager
of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
70 1001679.14 08/311001679.15 09/07/12
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
71 1001679.14 08/311001679.15 09/07/12
ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representative of BNP Paribas, an international bank (as defined in the
foregoing Tank Agreement, “BNP”), in its capacity as the issuer of irrevocable direct pay
letter(s) of credit securing the Traer Creek Metropolitan District Variable Rate Revenue Bonds,
Series 2002, and the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series
2004, hereby acknowledges and consents to the foregoing Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon).
BNP:
BNP PARIBAS, an international bank
By:
Name:
Title:
Date:
[Do we need a California form of notarization here?]
72 1001679.14 08/311001679.15 09/07/12
ACKNOWLEDGEMENT AND CONSENT OF LENDER
The undersigned lien holder hereby consents to the recording of the foregoing Consolidated,
Amended and Restated Annexation and Development Agreement for The Village (at Avon).
The lien[s] of the undersigned lien holder against the portions of the Property (as legally
described therein), Recorded on _________________, 20____ at Reception No. ____________[,
and ___________, 2009 at Reception No. ____________], of the official records of Eagle
County, Colorado, shall be subordinate to the foregoing Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon).
Approved by mortgagee/holder of deed of trust:
[Insert Lender Name]
By:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
2010, by , as of [Insert Lender Name].
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
A-1 1001679.14 08/311001679.15 09/07/12
EXHIBIT A
Legal Description of the Property
Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the
plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under
Reception No. 795007;
Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1,
according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and
Recorder under Reception No. 898173;
Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon)
Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No. 796831;
Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof
recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No.
882776; and
Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts
B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado,
Clerk and Recorder under Reception No. 200712166.
TOGETHER WITH THE FOLLOWING PARCEL (OS5):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line,
described as follows:
Beginning at the N 1/4 corner of said Section 17; thence S89°23'36"E 526.76 feet, along the
northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad; thence, departing said northerly line of Section 17, the following two
courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said
northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing
railroad tracks: (1) S80°36'27"W 267.66 feet; (2) 263.93 feet along the arc of a curve to the right,
having a radius of 2486.03 feet, a central angle of 06°04'58", and a chord which bears
S83°38'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N00°20'55"W
78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (OS6):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and
north of the centerline of the Eagle River, described as follows:
Beginning at the Northeast corner of said Section 17; thence S01°41'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
A-2 1001679.14 08/311001679.15 09/07/12
easterly line, S01°41'49"E 73.07 feet, to the centerline of said Eagle River; thence the following
four courses along said centerline (Filum aquce): (1) N89°24'49"W 1037.9 feet; (2) N86°07'49"W
472.00 feet; (3) N89°29'49"W 538.00 feet; (4) S82°33'11"W 595.15 feet, to the westerly line of said
NE 1/4; thence N00°20'55"W 49.18 feet, along said westerly line to the southerly right-of-way line
of the Denver & Rio Grande Western Railroad; thence, departing said westerly line of Section 17,
the following five courses along the southerly right-of-way line of the Denver & Rio Grande Western
Railroad, said southerly right-of-way line being parallel with and 50 feet southerly of the centerline
of the existing railroad tracks: (1) 279.72 feet along the arc of a curve to the left, having a radius of
2586.03 feet, a central angle of 06°11'51", and a chord which bears N83°42'23"E 279.58 feet; (2)
N80°36'27"E 350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of
3171.27 feet, a central angle of 12°24'07", and a chord which bears N86°48'31"E 685.10 feet; (4)
S86°59'25"E 1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a radius of
2549.33 feet, a central angle of 02°31'46". and a chord which bears S85°43'31"E 112.53 feet, to
the True Point of Beginning, containing 5.28 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL):
Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as a whole as follows:
Beginning at the Northwest corner of said Section 8; thence the following four courses along the
northerly line of said Section 8: (1) N88°40'41"E 1379.49 feet, to the W 1/16 corner of said
Section 8 and Section 5 of said Township and Range; (2) N88°40'41"E 1379.49 feet, to the 1/4
corner of said Sections 8 and 5; (3) N88°42'58"E 1385.36 feet, to the E 1/16 corner of said
Sections 8 and 5; (4) N88°42'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and
Section 4 of said Township and Range; thence the following four courses along the northerly
line of said Section 9: (1) N83°29'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and
4; (2) N83°29'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N83°24'12"E
1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4) N83°24'12"E 1386.30 feet, to the
corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the
following two courses along the northerly line of said Section 10: (1) N86°39'24"E 1381.29 feet,
to the W 1/16 corner of said Sections 10 and 3; (2) N86°39'24"E 1299.94 feet; thence, departing
said northerly line, S01°34'07"W 2699.66 feet, to the east-west centerline of said Section 10;
thence, along said east-west centerline, S86°32'23"W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S01°32'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of
said Section 10, to the SW 1/16 corner of said Section 10; thence S86°32'47"W 1384.91 feet,
along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9;
thence S77°10'15"W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said Section
9, to the SE 1/16 corner of said Section 9; thence S01°33'02"W 1475.32 feet, along the easterly
line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and Section
16 of said Township and Range; thence S72°20'31"W 1450.43 feet, along the southerly line of
said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N01°34'18"E 1601.52
feet, to the CS 1/16 corner of said Section 9; thence S86°07'30"W 1378.19 feet, along the
southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said Section 9;
thence S01°33'13"W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section
9, to the W 1/16 corner of said Sections 9 and 16; thence N89°55’04”W 1371.96 feet, along the
southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9, 16, and 17 of
A-3 1001679.14 08/311001679.15 09/07/12
said Township and Range; thence N01°32’00”E 3.82 feet, along the westerly line of Section 9,
to the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said northerly
right-of-way line being parallel with and 50 feet northerly of the centerline of the existing railroad
tracks; thence the following two courses along said northerly right-of-way line: (1) 104.48 feet
along the arc of a curve to the left, having a radius of 2649.33 feet, a central angle of 02°15’34”,
and a chord which bears N85°51’36”W 104.47 feet; (2) N86°59’25”W 1213.28 feet, to the
westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00°51’07”E 1337.77 feet, along
said westerly line, to the SE 1/16 corner of said Section 8; thence N89°54'54"W 1333.58 feet,
along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to the CS 1/16 corner of said
Section 8; thence N89°58'35"W 1366.46 feet, along the southerly line of the NE 1/4 SW 1/4 of
said Section 8, to the SW 1/16 corner of said Section 8; thence S00°01'37"E 919.47 feet, along
the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the northerly right-of-way line of
Interstate Highway No. 70, as described in the deed recorded in Book 223 at Page 982 in the
office of the Eagle County, Colorado, Clerk and Recorder; thence the following ten courses
along said northerly right-of-way line: (1) N65°30'20"W 249.79 feet; (2) N78°47'50"W 317.2 feet;
(3) N83°08'20"W 506.7 feet; (4) 772.2 feet along the arc of a curve to the right, having a radius
of 1462.0 feet, a central angle of 30°15'52", and a chord which bears N54°57'56"W 763.3 feet;
(5) N34°37'50"W 331.1 feet; (6) N34°44'20"W 368.5 feet; (7) 804.9 feet along the arc of a curve
to the left, having a radius of 1812.0 feet, a central angle of 25°27'04", and a chord which bears
N51°29'50"W 798.3 feet; (8) N68°24'50"W 399.7 feet; (9) N49°47'20"W 213.6 feet; (10)
N70°20'50"W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7; thence the
following two courses along said northerly line: (1) N89°50'40"E 1194.46 feet, to the CE 1/16
corner of said Section 7; (2) N89°50'40"E 1378.25 feet, to the 1/4 corner of said Sections 7 and
8; thence the following two courses along the westerly line of said Section 8: (1) N00°10'53"W
1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N00°10'53"W 1369.10 feet,
to the point of beginning.
EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in
the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776.
Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3
area subtracted.
B-1 1001679.14 08/311001679.15 09/07/12
EXHIBIT B
Form of Special Warranty Deed for Conveyances to Town
SPECIAL WARRANTY DEED
[STATUTORY FORM – C.R.S. § 38-30-115]
[TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado] (“Grantor”), whose street address is [141 Union
Boulevard, Suite 150, c/o Special District Management, Lakewood, CO 80228-1898, County of
Jefferson], State of Colorado, for the consideration of Ten and 00/100 Dollars ($10.00) and
other good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN
OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose
street address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of
Colorado (“Grantee”), the real property that is described on Exhibit A attached hereto and made
a part hereof, with all its appurtenances, and warrants the title to the same against all persons
claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a
part hereof.
[TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado]
By:
Name:
Title:
STATE OF ___________ )
) ss:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of
____________________, 200__, by _________________________ as ________________ of
_____________________________, a ____________________.
Witness my hand and official seal.
My commission expires:
Notary Public
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EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
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EXHIBIT B
TO SPECIAL WARRANTY DEED
Restrictions and/or Reservations
Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to
the following restrictions, which restrictions shall be binding on Grantee and all successors and assigns of
Grantee, and which Grantor and its successors and assigns shall have the right to enforce by an action for
specific performance, mandamus, mandatory or prohibitory injunction or other equitable or legal remedy:
1. [insert applicable use/other deed restrictions or state non applicable]
Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to
Grantor’s reservation of the following rights with respect to the Property:
1. [insert applicable reservations or state non applicable]
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EXHIBIT C
Form of Planning Area I Relocatable Roadway Easement Agreement
[Pending further communication/direction from the Town regarding the timing and terms
of the FS Village Parcel acquisition arrangement]
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EXHIBIT D
Prioritized Capital Projects
Prioritized Capital Projects List
Budgetary Cost Estimates
Item Lot 1
East Beaver
Creek Blvd.
Lot 1
Main Street
Lot 1
North/South
Roads (2)
Planning Area
J
(east)
East/West
Road
General
Conditions
750,000 715,000 560,000 280,000
Demolition 39,825 1,726,900 166,650 266,675
Earthwork 1,108,275 119,685 123,390 187,440
Roadway 1,630,990 1,349,930 393,310 719,465
Utilities 894,300 1,129,900 227,600 356,800
Erosion Control 27,000 27,000 16,600 9,500
Landscaping 340,238 311,890 128,800 180,050
Electrical &
Lighting
347,280 289,400 115,760 185,216
Roundabouts 000 2,000,000 000 000
Subtotal 5,137,908 7,669,705 1,732,110 2,185,146
20% Contingency 1,027,582 1,533,941 346,422 437,029
Total 6,200,000 9,200,000 2,100,000 2,600,000
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EXHIBIT E
Schedule of Past Developer Advances and Avon Receivable
[Under evaluation; requires input from Town on Avon Receivable]
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EXHIBIT F
Form of Public Improvement Agreement
[Proposed form inserted below (provided by Town) is pending other Parties’ review and
subject to comment and approval of the other Parties]
[INSERT NAME OF SUBDIVISION OR PROJECT]
PUBLIC IMPROVEMENTS AGREEMENT
THIS AGREEMENT, made and entered into this ________ day of _______, 201___, is by
and among ___________________________________ (“Owner” [“District” shall be
substituted for Owner when applicable]), and the Town of Avon, a Colorado home rule
municipality, by and through its Council (“Town”).
RECITALS
WHEREAS, the Owner, in connection with the approval [describe approval by Town] for
the _______________________, consisting of _______ acres, ____________________, Town
of Avon, Eagle County, Colorado (“Project”), desires to enter into a Public Improvements
Agreement (“Agreement”) with the Town as provided for by Section 7.32.100 of the Avon
Municipal Code, as may be amended from time to time (“Municipal Code”); and
WHEREAS, pursuant to the Municipal Code, the Town desires to make reasonable
provisions for completion of certain public improvements (“Public Improvements”) as
depicted on the plans approved by the Town for the _______________, dated
________________, (“Approved Plans”) and as set forth in Exhibit A: Approved Plans
attached hereto and incorporated herein by reference, together with minor changes approved by
the Town Engineer; and
WHEREAS, the Owner is responsible for the completion of the Public Improvements.
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants, conditions
and promises, the parties hereby agree as follows:
1. Completion of Work.
(a) Performance. Owner agrees to furnish all equipment, labor and material necessary
to perform and complete, in a good and workmanlike manner, all Public
Improvements and work incidental thereto (“Work”) as depicted on the Approved
Plans and as set forth in Exhibit A: Approved Plans. Owner further agrees that
Owner will be responsible for all costs of Public Improvements as assigned. Said
Work shall be performed in accordance with the Approved Plans.
(b) Time for Completion of Public Improvements. Owner agrees to complete Public
Improvements within two (2) years of the date of this Agreement. Owner agrees to
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commence construction of Public Improvements prior to the issuance of a building
permit for any improvements in the subdivision and to complete the Public
Improvements prior to the issuance of a Certificate of Occupancy for any building on
any lot in the Subdivision served by the Public Improvements. Commencement of
construction of Public Improvements shall be deemed to mean the award and
execution of contracts for the construction of the Public Improvements as depicted on
Exhibit A: Approved Plans.
(c) Inspection Procedures. All Work shall be done under the inspection procedures and
standards established by the Town and Holy Cross Energy, Eagle River Water and
Sanitation District, Excel Energy, Qwest Communications, Comcast or any other
utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of
the Town and applicable Utilities. All Work shall not be deemed complete until the
reasonable approval and acceptance of the Public Improvements by the Town and/or
the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner
or Owner’s agents from any responsibility or obligation to assure that all Work is
completed in conformance with all standards, plans and specifications as submitted to
and previously approved by the Town and Utilities.
(d) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an
independent third party inspector, shall be paid by the Owner and subject to the
limitations set forth in Paragraph 5 below.
(e) Notice of Non-Compliance. In the event that the Town through its inspectors
reasonably determines that the Public Improvements are not in compliance with the
Approved Plans, it shall give written notice of such non-compliance (“Notice of Non-
Compliance”) to the Owner. The Notice of Non-Compliance shall include a
narrative describing the unsatisfactory construction work with specific reference to
the applicable construction plans and specifications. The Notice of Non-Compliance
must be provided to the Owner within three (3) working days of the date of the
inspection.
2. Guarantee for Public Improvements.
(a) Form of Guarantee. The Owner shall provided financial security to the Town to
secure the completion of the Public Improvements in this Agreement in accordance
with the acceptable methods of providing a guarantee set forth in Section
7.32.100(e)(1) of the Municipal Code (“Guarantee”). The form of Guarantee is
attached hereto as Exhibit C: Form of Guarantee.
(b) Amount of Guarantee for Completion of Public Improvements. Owner shall
deliver to the Town a Guarantee in an amount equal to one hundred percent (100%)
of the amount of the cost estimate for the Public Improvement as approved by the
Town Engineer plus a percentage of the estimated costs as an overrun allowance as
set forth in Section 7.32.100(d) of the Municipal Code.
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(c) Partial Release of Guarantee. The amount of Guarantee may be reduced
periodically upon completion of itemized Public Improvements for which cost
estimates have been set forth in Exhibit B: Cost Estimates and upon receipt of the
Certifications as specified in Paragraph 9 below verifying that itemized portions of
the Public Improvements have been completed provided that Owner is not in default
under this Agreement and provided that the remaining amount of Guarantee shall be
at least one hundred and ten percent (110%) of the estimated costs of completion of
all remaining Public Improvements. The Town shall release the remaining Guarantee
amount less the amount described in Paragraph 3 below for security during the
warranty period within five (5) business days of (i) completion of all Work related to
the Public Improvements and (ii) acceptance by the Town and Utilities of the Public
Improvements, provided that the Owner is not in default under this Agreement.
(d) Default by Owner. In the event of a default in whole or in part by Owner in the
performance of this Agreement, the Town shall be authorized to draw on the
Guarantee for the purpose of undertaking completion or remediation work on the
Public Improvements or otherwise curing Owner’s default hereunder after providing
thirty (30) days’ advance written notice of default and providing an opportunity
during such period for Owner to cure the default. The Town shall be entitled to draw
on the Guarantee after adoption of a resolution of the Town Council stating (i) that
Owner is in default and describing the nature of the default, and (ii) that funds are
required to complete or correct the Work on the Public Improvements or to otherwise
cure Owner’s default.
3. Warranty Period. The Public Improvements shall be warranted to be free from defects in
workmanship or quality for a period of two (2) years after acceptance of all the Work by the
Town. In the event of any such defect, the Town may require Owner to correct the defect in
material or workmanship. The Town shall retain a portion of the Guarantee as a financial
security during the warranty period. The amount of the Guarantee during the warranty
period shall be a percentage of the total actual cost of completion of Public Improvements in
the amount set forth in Section 7.32.100(i) of the Municipal Code. In the event any
corrective work is performed during the two (2) year warranty period then the warranty on
such corrected work shall be extended for two (2) years from the date on which the corrected
work is completed. Guarantee equal to one hundred and ten percent (110%) of the cost of
any corrected work, as estimated by the Town Engineer, shall be retained by the Town or
immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in
accordance with Section 7.32.100(i), for a period of two (2) years from the date of
completion of the corrected work.
4. Engineering Certification. Upon completion of portions of the Public Improvements,
Owner will cause Owner’s engineers (who shall have been actively engaged in observing the
construction of the Public Improvements and shall be registered engineers in the State of
Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based
upon on-site observation, review of sufficient construction-observation reports, field test
reports and material test reports and certifications by qualified personnel, the installation of
the Public Improvements, or portions thereof as may be completed from time to time, have
been completed, to the best of their knowledge and professional judgment, in conformance
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with all standards, plans and specifications as submitted to and previously approved by the
Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection
reports, test results, as-constructed plans and other supporting documentation shall be
submitted with the certification. The as-constructed plans shall be submitted on paper and in
one of the following digital formats: AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
5. Inspection Fees. Fees for inspections, if any, shall be paid by the Owner within thirty (30)
days after delivery of written invoice for such fees to cover the cost of inspections by the
Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an
administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event
will the total amount of such inspection fees exceed five percent (5%) of the actual costs for
Public Improvements.
6. No Obligation of Town to Complete Improvements. Owner agrees that in the event
Owner shall fail to perform its obligations as set forth herein, the Town shall be under no
obligation to complete any of the said Public Improvements or to issue permits for
development served by the Public Improvements.
7. Non-Liability of Town; Indemnification. The Town shall not, nor shall any officer, agent,
or employee thereof, be liable or responsible for any accident, loss or damage related to the
Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee
thereof, be liable for any persons or property injured by reason of the nature of said Work.
To the extent permitted by law, Owner hereby agrees to indemnify and hold harmless the
Town, and any of its officers, agents and employees against any losses, claims, damages or
liabilities to which the Town or any of its officers, agents or employees may become subject,
because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise
out of, or are based upon, any acts or omissions in the performance of the obligations of
Owner, as hereinbefore stated. Furthermore, the Owner shall reimburse the Town for any
and all legal or other expenses reasonably incurred by the Town in connection with
investigating or defending any such loss or claim.
8. Rights of Town in Event of Default. In the event that Owner defaults in whole or in part in
the performance of this Agreement, and after the expiration of thirty (30) days after having
given written notice to Owner of such default during which period of time the Owner fails to
correct said default, the Town may, at its sole discretion, proceed with the construction or
completion of the Public Improvements specified on Exhibit A: Approved Plans. All costs
paid by the Town to correct or complete the Public Improvements, including cost of
personnel, equipment, materials, studies, legal and other amounts expended by the Town to
perform the Public Improvement construction responsibilities of Owner, together with an
administrative fee in the amount of fifteen percent (15%) of the total costs incurred by Town
shall be paid by Owner. Any such costs relating to the Public Improvements, which have not
been reimbursed by Owner, shall be a debt of Owner. In addition to other remedies stated in
this Agreement, if the Owner is in default of this Agreement, the Town may withhold the
acceptance or processing of development applications and may withhold the approval of
development permits for or on any property which would be served by the Public
Improvements until such time as the Public Improvements are completed.
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9. Letter Certifying Completion and Final Acceptance of Improvements. When all Public
Improvements have been completed and accepted by the Town, or the pertinent utility
supplier, and the Warranty Period has expired and provided that Owner is not in default
under any of its obligations to the Town under this Agreement, the Town agrees that it will
issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable
form, certifying that all obligations of Owner under this Agreement have been satisfied.
10. Non-Liability of Town for Indirect or Consequential Damages or Lost Profits. The
Parties agree that the Town shall not be liable for indirect or consequential damages,
including lost profits, which result or arise from the Town’s declaration that Owner is in
default of the Agreement, so long as the Town acts in good faith.
11. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits,
applications, or documents referenced in this Agreement shall be incorporated in this
Agreement for all purposes. In the event of a conflict between any incorporated exhibit and
this Agreement, the provisions of this Agreement shall govern and control.
12. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or
benefits set forth in this Agreement shall not be assigned by Owner without the express
written consent of the Town Council of the Town. Any written assignment shall expressly
refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or
benefits so assigned, and shall not be effective unless approved by resolution or motion of the
Town Council of the Town. No assignment shall release the Owner from performance of any
duty, obligation, or responsibility unless such release is clearly expressed in such written
document of assignment.
13. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall
create a contractual relation with, cause of action in favor of, or claim for relief for, any third
party, including any agent, sub-consultant or sub-contractor of the Owner. Absolutely no
third party beneficiaries are intended by this Agreement. Any third-party receiving a benefit
from this Agreement is an incidental and unintended beneficiary only.
14. Amounts Past Due. Any amounts due to the Town of Avon under this Agreement which are
past due shall bear interest at the rate set forth in Chapter 3.32 of the Municipal Code.
15. Applicability of Municipal Code. All references to the Municipal Code shall mean the
Municipal Code as in effect as of the date of entering into this Agreement. Any amendments
to sections of the Municipal Code which are referenced in this Agreement and which are
adopted after the date of entering into this Agreement shall not be applicable to this
Agreement.
16. Amendments. This Agreement may be amended from time to time, provided that such
amendment is in writing and signed by all parties hereto.
17. Covenants Running with the Land. This Agreement and the obligations hereof shall be
deemed to be covenants running with the land and shall be binding on the successors and
assigns of the parties hereto.
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18. Venue. Venue for any litigation arising out of this Agreement shall be in the District Court
for Eagle County, Colorado.
[Signature Page
Follows]
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THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE
FIRST ABOVE
WRITTEN.
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TOWN OF AVON
BY:_____________________________ ATTEST:____________________________
Mayor Town Clerk
APPROVED AS TO FORM:
___________________________
Town Attorney
OWNER
BY:__________________________
Owner
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EXHIBIT A (to Form of Public Improvement Agreement): APPROVED
PLANS
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APPROVED PLANS:
______________________________
Construction Drawings
__________________, Town of Avon, Colorado
_______________, 20__
Sheets 1 through __
Release Date: _______________, 20__
Prepared by:
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EXHIBIT B (to Form of Public Improvement Agreement): COST
ESTIMATE
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PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE
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EXHIBIT C (to Form of Public Improvement Agreement): FORM OF
GUARANTEE
[Insert Form of Guarantee]
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EXHIBIT G
Definitions
1. Accept(ed)/Acceptance means the Town’s acceptance of Dedicated real property interests
and Public Improvements located therein for purposes of ownership and maintenance, consisting
of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with
the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect on the Effective
Date or as amended from time to time) as modified and or exempted by the Development Plan;
subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays.
2. Accommodations/Lodging Fee means the Credit PIF imposed pursuant to the PIF
Covenants on accommodations/lodging transactions occurring within the Project which, subject
to application of the Tax Credit, are Taxable Transactions. The Accommodations/Lodging Fee
shall not be construed to be part of a Taxable Transaction, and shall not be subject to the Town’s
tax on accommodations/lodging transactions.
3. Additional Developer Advances means funds advanced after the Effective Date for
Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner to
or on behalf of TCMD or another District (whether the corresponding Capital Projects is
undertaken directly by such District or acquired by such District after construction by the party
entitled to reimbursement for the costs thereof), which advances are subject to reimbursement by
such District utilizing Credit PIF Revenues, together with simple interest at the rate of 8% per
annummarket rates, and which are secured by such District’s issuance of an instrument (note,
bond, funding/reimbursement agreement or similar form of instrument) evidencing such
District’s financial obligation to repay such advances; provided, however, that Master
Developer’s contributions to the Asphalt Overlay Account pursuant to Section 6.6(a)(iv) shall be
construed to be Additional Developer Advances only to the extent reimbursable from a District
using Credit PIF Revenues. [Note: The STS states “interest at market rates.” It does not
state what “market rates” are or how they are to be determined. Prior discussions with
Town staff recognized that establishing now what “market rates” are to be would be of
utility. Upon further consideration of this issue in response to Town Council’s direction
regarding strict literal adherence to the STS, Developers have revised to track the STS
language.]
4. Add-On PIF means that portion of the Public Improvement Fees with respect to which
the Tax Credit does not apply or attach. As of the Effective Date, the Add-On PIF consists only
of the Add-On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the
future to impose the Add-On PIF on other types of transactions and/or at a rate in excess of the
Add-On RSF rate required by this Development Agreement.
5. Add-On PIF Revenues means the gross revenues actually collected from imposition of
the Add-On PIF in accordance with the PIF Covenants, which may consist of Add-On RSF
Revenues, Municipal Payments and other revenues derived from imposition of the Add-On PIF
on transactions other than retail sales that are Taxable Transactions or at rates in excess of the
Add-On RSF rate.
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6. Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions
that are Taxable Transactions at the rate set forth in Section 6.4(b) and in accordance with the
terms and conditions of the Financing Plan.
7. Add-On RSF Collection Agent means Special District Management Services, Inc., or any
successor entity engaged from time to time, to administer the collection and distribution of the
Add-On RSF Revenues on behalf of the PICs.
8. Add-On RSF Collection Services Agreement(s) means one or more agreements entered
into from time to time by and between the PICs, the Town, Master Developer and the Add-On
RSF Collection Agent providing for the administration, collection and distribution of the Add-On
RSF Revenues.
9. Add-On RSF Revenues means the gross revenues actually collected from imposition of
the Add-On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments
to be remitted to the Town during the Term as set forth in Section 6.5 and the remainder of which
(including any such revenues the PICs continue to collect after the Term) shall be utilized for
other lawful purposes otherwise authorized by the PIF Covenants.
10. Allowed O&M Expenses means the amount of District Revenues to be remitted to and
retained by TCMD in each calendar year during the Term for payment of: (i) TCMD’s annual
contribution to the Asphalt Overlay Account; (ii) the Annual Debt Service Pledge Amount; and
(iii) the annual Base O&M Amount. For each full calendar year during the Term, the Allowed
O&M Expenses shall be: (A) for calendar years 2013 through 2017, $1,000,000 (One Million
Dollars); (B) for calendar year 2018 and each subsequent calendar year including the calendar
year in which the Town assumes sole responsibility for all costs of asphalt overlays in
accordance with Section 6.6(b), $1,025,000 (One Million Twenty-Five Thousand Dollars); and
(C) for each calendar year after the year in which the Town assumes sole responsibility for all
costs of asphalt overlays in accordance with Section 6.6(b), $950,000 (Nine Hundred Fifty
Thousand Dollars) per year.
11. Annual Debt Service Pledge Amount has the meaning and is subject to the terms,
conditions, restrictions and requirements set forth in the Tank Agreement.
12. Applicant means the Landowner of the real property comprising the Site for which a
Development Application is submitted, or an individual or entity whom the Landowner has
designated in writing as its authorized representative for the purpose of representing the
Landowner and/or acting upon any Development Application or submittal for development of the
pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple
ownership of the Site or portion thereof with the fee owner’s written consent to any such
application or submittal, or which may be an owners’ association for a Condominium project or
like common interest ownership project). Notwithstanding any additional or conflicting
provision of the Municipal Code (whether as in effect on the Effective Date or as amended from
time to time), the definition of “Applicant” shall not be construed to mean any person or entity
owning, holding or possessing an easement interest, a leasehold interest, a license, a security
interest or any other form of interest in the Site, whether possessory or otherwise, other than fee
G-3 1001679.14 08/311001679.15 09/07/12
simple ownership of the Site as reflected in the official records of the Eagle County Tax
Assessors office.
13. Approved SSDP(s) means, individually or collectively: (i) the Development Agreement;
(ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date,
Town Council approves (or otherwise approved by the Town including, for example, an
administratively approved final plat, an administratively approved amendment to the PUD Guide
or similar previously approved Site Specific Development Plan) and designates as a Site Specific
Development Plan that establishes Vested Property Rights, together with amendments (if any) to
such approved Development Applications.
14. Article refers to a numbered Article of the Development Agreement, unless otherwise
stated.
15. Asphalt Overlay Agreement means that certain Asphalt Overlay Escrow Account
Agreement [identify title & date] entered into concurrently with the Effective Date by and
among the Town, TCMD, Master Developer and [insert escrow agent] and which establishes
the terms and conditions upon which funds shall be deposited into, held in escrow, and disbursed
from the Asphalt Overlay Account as generally provided in Section 6.6.
16. Asphalt Overlay Account means a restricted escrow account established pursuant to the
Asphalt Overlay Agreement into which Master Developer, the Town and TCMD shall deposit
funds for asphalt overlays of public roads in the Project in accordance with the terms and
conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii) and 6.6.
17. AURA means the Avon Urban Renewal Authority, a body corporate duly organized and
existing as an urban renewal authority under the laws of the State of Colorado.
18. Authority means the Upper Eagle Regional Water Authority, a quasi-municipal
corporation and political subdivision of the State of Colorado, together with any successor water
service provider (whether pursuant to dissolution of the Authority or otherwise).
19. Avon Receivable means TCMD’s past due payment obligation to the Town in the
principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO
THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with
interest thereon as provided in Section 6.9(b)(v)(B)3.II (such principal amount inclusive of
$98,798.46 of expenses incurred by the Town in connection with design work for the East
Beaver Creek Boulevard Phase 3 obligation as defined in the Original Agreement, which East
Beaver Creek Boulevard Phase 3 obligation is extinguished by this Development Agreement).
20. Base O&M Amount means the amount of District Revenues available each year for
TCMD’s payment of ongoing operation, maintenance, administrative and other legally
authorized costs, which amount shall be equal to that portion of the total Allowed O&M
Expenses which is the remainder of the total Allowed O&M Expenses for such year after
subtracting: (i) the Annual Debt Service Pledge Amount; and (ii) TCMD’s contribution to the
Asphalt Overlay Account.
21. BNP means BNP Paribas, an international bank, together with its successors and assigns.
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22. Bond Requirements means the interest payments on, and related reasonable and
necessary costs incurred in connection with, any bonds, including, without limitation, payments,
reimbursements, or replenishments with respect to interest, prepayment premiums, reserve funds;
surplus funds; sinking funds; costs of issuance; payments related to any credit enhancement
(including, without limitation, the Deferred Fees, if any); arbitrage payments, if any; fees and
expenses of any bond trustee, bond registrar, paying agent, authenticating agent, rebate analyst or
consultant, calculation agent, remarketing agent, provider of credit enhancement, and any other
amounts required or permitted to be paid by the documents governing the issuance of repayment
of and security for such bonds, including, without limitation, any bond indenture, interest rate
cap, or swap agreement or reimbursement agreement; provided however that Bond Requirements
on the Water Tank Bonds shall be limited as provided in the Water Tank Bonds Pledge
Agreement.
23. Cap Amounts has the meaning set forth in Section 6.2(b).
24. Capital Project Costs means all costs and expenses incurred in connection with the design
and construction of Capital Projects, including but not limited to design, engineering, surveying,
soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant
fees, and application and permit fees related thereto, but not including Bond Requirements, if
any, incurred in connection with the long-term financing of such Capital Projects.
25. Capital Projects means: (i) Public Improvements required by the Town as a condition of
approving a Development Application (for example, public streets; wet utilities such as water,
sewer, storm drainage; related grading and landscaping, etc.), and specifically including the
Prioritized Capital Projects; and (ii) even if not specifically required as a condition of approving
a Development Application, Public Improvements that serve or benefit the Project and which are
eligible to be financed by TCMD and/or AURA under applicable laws.
26. Commercial PIC means The Village (at Avon) Commercial Public Improvement
Company, a Colorado non-profit corporation.
27. Credit PIF means, collectively, the Real Estate Transfer Fee, the
Accommodations/Lodging Fee and the Retail Sales Fee with respect to each of which the Tax
Credit applies and attaches in accordance with Section 6.1, as implemented by Sections 3.08.035
(with respect to sales tax), 3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with
respect to public accommodations tax) of the Municipal Code (as in effect on the Effective
Date), and a building materials use fee if adopted in accordance with Section 6.4(a)(iv).
28. Credit PIF Cap has the meaning set forth in Section 6.2(a).
29. Credit PIF Collection Agent means Special District Management Services, Inc., or any
successor entity engaged from time to time, to administer the collection and distribution of the
Credit PIF Revenues on behalf of the PICs.
30. Credit PIF Collection Services Agreement(s) means one or more agreements between the
Credit PIF Collection Agent, the PICs, Master Developer and TCMD providing for the
administration, collection and distribution of the Credit PIF Revenues.
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31. Credit PIF Revenues means the gross revenues actually collected from imposition of the
Credit PIF.
32. Debt Service Coverage Ratio means, for any calendar until there are no outstanding
obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding
of such bonds, the Net Revenue received by or on behalf of both Districts during such period
divided by Debt Service for such year. For the purposes of calculating the Debt Service
Coverage Ratio:
(a) “Net Revenue” means, for each such calendar year, that portion of the total of all
District Revenues received by the Districts which is the remainder of the total of all such District
Revenues received in such year minus: (i) TCMD’s annual contribution to the Asphalt Overlay
Account; (ii) the annual Base O&M Amount; (iii) proceeds from Additional Developer
Advances; and (iv) Net Proceeds from Supplemental Bonds (other than Additional Developer
Advances).
(b) “Debt Service” means, for any such calendar year, the sum of the amounts to be
paid or deposited for the purpose of paying, pursuant to the requirements of the documents under
which such obligations are issued: (i) principal, interest and any other Bond Requirements due
in such year on (A) the TCMD Bond Reissue and (B) Supplemental Bonds; plus (ii) the Annual
Debt Service Pledge Amount; plus (iii) the Deferred Amortization and Deferred Fee amounts
due in such year (which shall be a cumulative total of the Deferred Amortization and Deferred
Fee due from prior years, if any, and the current year).
33. Dedicate(d)/Dedication means the conveyance, whether by plat or by special warranty
deed in the form attached as Exhibit B, to the Town or other appropriate governmental or quasi-
governmental entity of real property for a specified purpose, together with Public Improvements
installed thereupon, if any, free and clear of all monetary liens and those non-monetary
encumbrances that are not materially inconsistent with the purpose(s) for which Town or other
governmental or quasi-governmental entity is acquiring the real property and related Public
Improvements.
34. Deferred Amortization means, (i) in any year until there are no outstanding obligations to
BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such
bonds, the difference between the principal amount due on the TCMD Bond Reissue and the
principal amount that was due in that year under the financing documents governing the TCMD
Variable Rate Revenue Bonds, Series 2002 or the TCMD Variable Rate Revenue Bonds, Series
2004, as applicable; and (ii) as of any date of computation, the sum of all amounts determined as
set forth in (i), for years prior to and including (but not subsequent to) the date of computation,
that have not been paid as of that date.
35. Deferred Fees means, until there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds, any Facility Fees (as
defined in the Reimbursement Agreement between TCMD and BNP entered into in connection
with the TCMD Bond Reissue) that are not required to be paid when accrued in accordance with
the terms of the Reimbursement Agreement, including interest thereon calculated at the rate of
2.5% per annum.
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36. Design Covenant means the Declaration of Master Design Review Covenants For The
Village (at Avon) dated May 8, 2002 and Recorded on May 8, 2002 at Reception No. 795011, as
amended by the First Amendment to Declaration of Master Design Review Covenants For The
Village (at Avon) dated June 4, 2008 and Recorded on June 10, 2008 at Reception No.
200812112 and by the Second Amendment and Ratified First Amendment to Declaration of
Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and
Recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended
from time to time.
37. Design Review Board means The Village (at Avon) Design Review Board as appointed
or elected in accordance with the Design Covenant.
38. Design Review Guidelines means the sole and exclusive architectural design, landscape
design, urban design and Site design and use standards applicable within the Property as set forth
in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011,
together with any amendment(s) the Design Review Board may approve after providing notice
thereof in accordance with Section 3.2, as prepared, approved and promulgated by the Design
Review Board from time to time.
39. Developer(s) means, with respect to any Site, the individual or entity which is causing the
development of infrastructure and/or or vertical improvements within such Site to be performed.
40. Developer Affiliate(s) means, individually or collectively as the context dictates, TC-RP,
TC Plaza, TC-HD and TC-WMT, together with any other entity with respect to which TCLLC or
EMD is the managing member and which acquires title to any portion of the Property after the
Effective Date.
41. Development Agreement has the meaning set forth in the initial paragraph of the
Consolidated, Amended and Restated Annexation and Development Agreement for The Village
(at Avon) to which this Exhibit G is attached and incorporated into.
42. Development Application means any form of application or submittal to the Town for
review and approval of any form of development within the Property, including but not limited to
an application or submittal regarding an amendment to the PUD Guide, an amendment to the
PUD Master Plan, a preliminary subdivision plan, a final subdivision plat, a grading permit, a
building permit or similar matters.
43. Development Plan means, collectively:
(a) the Development Agreement; and
(b) the PUD Guide.
44. District(s) means, individually or collectively as the context dictates, TCMD, VMD and
any additional metropolitan district(s) that may be formed subsequent to the Effective Date for
the purpose of providing services and/or Public Improvements and or other forms of
improvements benefiting all or any portion of the Property.
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45. District Debts means, collectively, the following financial obligations of TCMD (and any
refunding of thereof accomplished in accordance with the Development Agreement), the full
payment of which shall result in expiration of the Term (unless the Town elects to continue the
Tax Credit pursuant to Section 6.1(d)): (i) the Annual Debt Service Pledge Amount; (ii) the
principal amount and Bond Requirements of the TCMD Bond Reissue and any Supplemental
Bonds issued as municipal bonds; (iii) the Deferred Fees; (iv) the Deferred Amortization; and
(v) principal of and interest on Past Developer Advances and Additional Developer Advances.
46. District Director(s) means, individually or collectively, the individuals who from time to
time hold a seat on the board of directors of a District.
47. District Revenues means, collectively, the Credit PIF Revenues, the Project Ad Valorem
Taxes (and related specific ownership taxes), Net Proceeds of Supplemental Bonds, proceeds
from Additional Developer Advances and any other lawful revenues of the Districts, including
but not limited to revenues from service charges, development fees, impact fees (net of amounts
required to be remitted to Eagle-Vail Metropolitan District), tap fees or similar sources of
revenue to the Districts, if any.
48. Effective Date means the date on which the Development Agreement is Recorded.
49. EMD means EMD Limited Liability Company, a Colorado limited liability company.
50. Execution Date has the meaning set forth in the initial paragraph of the Development
Agreement.
51. Exhibit means the following exhibits to the Development Agreement, all of which are
incorporated by reference into and made a part of the Development Agreement:
Exhibit A - Legal Description of Property
Exhibit B - Form of Special Warranty Deed for Conveyances to the Town
Exhibit C - Form of Planning Area I Relocatable Roadway Easement Agreement
Exhibit D - Prioritized Capital Projects
Exhibit E - Schedule of Past Developer Advances and Avon Receivable
Exhibit F - Form of Public Improvement Agreement
Exhibit G - Definitions
52. Final Acceptance means the Town’s undertaking of full responsibility for all operations
maintenance, repair, and capital replacement obligations (including but not limited to
maintenance and snow removal of roadways, water and sewer lines, storm drainage
improvements, maintenance of streetscape improvements within the Dedicated rights-of-way,
management of noxious weeds and similar matters in accordance with Town’s generally
applicable procedures and standards) with respect to Dedicated Public Improvements upon
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expiration of the warranty period and resolution of any warranty matters arising during the
period of Preliminary Acceptance; subject, however, to the terms and conditions of Section
4.2(d) regarding asphalt overlays.
53. Financing Plan means the arrangements, obligations and rights set forth in Article 6 with
respect to the financing of Capital Projects and other Public Improvements in the manner and for
the purposes described in the Development Agreement.
54. Forest Service Village Parcel means that parcel of land located between Planning Areas I
and J which, as of the Effective Date, is owned by the U.S. Forest Service.
55. Intended Beneficiary(ies) means, as more particularly described in and subject to the
terms and limitations of Section 1.8(b), BNP, VMD, Developer Affiliates and Landowners other
than those who are Parties. No other party or entity shall be construed to be an intended
beneficiary or to have any legal right to enforce or rely on any provision, obligation, term or
condition of the Development Agreement.
56. Landowner(s) means the fee owner of any real property comprising the Property or any
portion thereof.
57. Lender(s) means those entities having a security interest in any portion of the Property as
of the Effective Date and which have executed the Acknowledgement and Consent form attached
to and incorporated within the Development Agreement.
58. Limited Party(ies) means, individually or collectively as the context dictates and as more
particularly described in and subject to the terms and limitations of Section 1.8(a), AURA, EMD,
the Commercial PIC and the Mixed-Use PIC.
59. Litigation has the meaning set forth in Recital H.
60. Lot 1 means Lot 1, Amended Final Plat, The Village (at Avon) Filing 1, according to the
plat thereof Recorded at Reception No. 898173, and amended by The Second Amended Final
Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded
on the Effective Date).
61. Master Developer means EMD (with respect to Planning Area I only) and TCLLC (in all
other respects), which entities (or any successor entities), as more specifically described in
Section 1.7, are designated and authorized to act on behalf of all Developer Affiliates.
62. Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company,
a Colorado non-profit corporation.
63. Municipal Code means the Town’s municipal code in effect on the Effective Date unless
otherwise stated in the Development Agreement.
64. Municipal Payment(s) means, as more particularly described in Sections 6.4(b) and 6.5
and in implementation of the Settlement Term Sheet, that portion of the Add-On RSF Revenues
(net of the costs of collection as set forth in the Add-On RSF Collection Services Agreement)
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derived from application of the Add-On RSF to retail sales transactions only (and not to any
other Taxable Transactions) which the Town requires to provide a reliable revenue source with
growth potential to compensate the Town, and which the Town is entitled to receive, for: (i)
providing Municipal Services (whether prior to or after the Effective Date); (ii) releasing TCMD
(and all other parties to the Litigation) from the sales tax indemnity obligations (as such
obligations were set forth in the Original Agreement); and (iii) assuming TCMD’s maintenance
obligations pursuant to Section 4.2(c).
65. Municipal Services has the meaning set forth in Section 4.1.
66. Net Proceeds means, for any bond issuance (including the Water Tank Bonds), the
amount of bond proceeds available for payment of Capital Project Costs.
67. Non-Cap Amounts has the meaning set forth in Section 6.2(c).
68. Original Agreement means that certain Annexation and Development Agreement
executed by and between the Town and the Original Owners as of October 13, 1998 and
Recorded on November 25, 1998 at Reception No. 67774, as amended by: (i) pursuant to
Ordinance 01-16, the First Amendment to Annexation and Development Agreement dated as of
November 13, 2001, and Recorded on December 10, 2001 at Reception No. 779049; (ii)
pursuant to Ordinance 03-08, the Second Amendment to Annexation and Development
Agreement dated as of May 27, 2003, and Recorded on July 30, 2003 at Reception No. 842248;
and (iii) pursuant to Ordinance 04-17, the Third Amendment to Annexation and Development
Agreement dated as of October 26, 2004, and Recorded on December 22, 2004 at Reception No.
901429.
69. Original Effective Date means October 13, 1998.
70. Original Owners means EMD, PVRT NOTT I LLC, a Colorado limited liability
company, PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III
LLC, a Colorado limited liability company, which entities owned the Property as of the
execution date of and were defined as “Owners” in the Original Agreement (TCLLC being the
successor entity to the PVRT entities as described in the Third Amendment of the Original
Agreement).
71. Original PUD Guide means The Village (at Avon) PUD Guide dated October 13, 1998
and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at
Reception No. 677744, as amended by: (i) PUD Development Plan Administrative Amendment
No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real
property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439; (ii)
PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the real
property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254; (iii)
PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real
property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806; (iv)
PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real
property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805; and (v)
Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25, 2007,
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and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at
Reception No. 200705491.
72. Party(ies) means, individually or collectively as the context dictates, the Town, TCMD
and Master Developer.
73. Past Developer Advance(s) means, collectively and as more specifically set forth in
Exhibit E, the following TCMD obligations incurred prior to the Effective Date: (i) the principal
balance of $10,500,000 (TEN MILLION FIVE HUNDRED THOUSAND DOLLARS) payable
to certain of the Developer Affiliates, together with interest thereon at the rate set forth in the
documents creating such obligations; and (ii) the principal balance of $1,500,000 (ONE
MILLION FIVE HUNDRED THOUSAND DOLLARS) payable to the Buffalo Ridge
Affordable Housing Corporation, together with interest thereon at the rate set forth in the
documents creating such obligation [Confirm amounts after Exhibit E completed.]
74. Permitted Uses has the meaning set forth in Section 6.2(a).
75. PIC(s) means, individually or collectively as the context dictates, the Commercial PIC
and/or the Mixed-Use PIC and/or any other public improvement company established for the
Property from time to time.
76. PIF Covenants means, collectively and as amended from time to time, the Declaration of
Covenants for The Village (at Avon) Commercial Areas Recorded May 8, 2002 at Reception No.
795012 and the Declaration of Covenants for The Village (at Avon) Mixed Use Areas Recorded
May 8, 2002 at Reception No. 795013. [modify to reflect amendments recorded at Effective
Date]
77. Planning Area(s) means the portion(s) of the Property described in the PUD Guide and
depicted in the PUD Master Plan as “Planning Areas” or identified therein as “PA-[x].”
78. Pledge Agreement has the meaning set forth in the Tank Agreement.
79. Preliminary Acceptance means the Town’s Acceptance of ownership of Dedicated Public
Improvements (including real property interests and/or improvements constructed thereupon)
and undertaking of full responsibility for all operations maintenance, repair and capital
replacement obligations (including but not limited to maintenance and snow removal of
roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape
improvements within the Dedicated rights-of-way, management of noxious weeds and similar
matters in accordance with Town’s generally applicable procedures and standards) with respect
to Dedicated Public Improvements, subject to a two (2) year warranty period (or any shorter
period set forth in the Municipal Code as in effect from time to time) and the applicable
Developer’s or District’s resolution of any warranty matters arising during such period of
Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d)
regarding asphalt overlays.
80. Prioritized Capital Projects has the meaning set forth in Section 3.11.
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81. Project means the mixed-use project proposed to be developed on the Property with the
uses, densities and development standards more particularly described in the Development Plan.
82. Project Ad Valorem Taxes means the tax revenues resulting from imposition of the
respective mill levies of TCMD and VMD, net of the costs of collection retained by the Eagle
County treasurer.
83. Property has the meaning set forth in Recital B.
84. Public Improvement(s) has the meaning ascribed to such term in the PUD Guide, and
includes but is not limited to all such improvements specifically or generally described in the
Service Plans.
85. Public Improvement Agreement(s) means a public improvement agreement (as such term
generally is used in Section 7.32.100 of the Municipal Code (as in effect on the Effective Date or
as amended from time to time), subject to the terms and conditions of the Development Plan
modifying and/or exempting application of said Section 7.32.100) that is executed, either prior or
subsequent to the Effective Date, in connection with the proposed development of a portion of
the Property.
86. Public Improvement Fee(s) means the Credit PIF, the Add-On RSF and any future
Add-On PIF, which are privately imposed fees (and not taxes) imposed on Taxable Transactions
(and such other transactions as may be set forth in the PIF Covenants from time to time) in
accordance with the terms and conditions of the PIF Covenants and the Development
Agreement.
87. PUD Master Plan means The Village (at Avon) P.U.D. Development Plan/Sketch Plan
dated __________, 2012, attached as Exhibit B of the PUD Guide, as amended from time to
time, which constitutes the approved sketch plan and master plan for development within the
Property.
88. PUD Guide means the Amended and Restated PUD Guide for the Property (and all
exhibits thereto, including but not limited to the PUD Master Plan) dated [insert approval date],
as amended from time to time.
89. Real Estate Transfer Fee means the Credit PIF imposed pursuant to the PIF Covenants on
real estate transfer transactions occurring within the Project which, subject to application of the
Tax Credit, are Taxable Transactions. The Real Estate Transfer Fee shall not be construed to be
part of a Taxable Transaction, and shall not be subject to the Town’s tax on real estate transfer
transactions.
90. Recital(s) means, individually or collectively as the context dictates, the information set
forth in the provisions of the “Recitals” section of the Development Agreement.
91. Record(ed/ing) means to file, having been filed or appearing in the real property records
of the Eagle County Clerk and Recorder’s office.
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92. Replacement Bonds means bonds that TCMD may issue after the Effective Date for the
purpose of extinguishing, replacing, refunding or defeasing all or portions of the Past Developer
Advances which: (i) bear a lower effective interest rate than the effective interest rate of the Past
Developer Advances, (ii) are not secured by (and cannot be paid from) Credit PIF Revenues; and
(iii) unless otherwise agreed to by the Town in writing, do not exceed a par value of $12.4
million in principal; and (iv) do not result in an increase of, or count against, the Credit PIF Cap.
93. Retail Sales Fee means the Credit PIF imposed pursuant to the PIF Covenants on retail
sales transactions occurring within the Project which, subject to application of the Tax Credit, are
Taxable Transactions and, pursuant to Section 6.4(a)(iv), shall be imposed on the use of building
materials within the Project to the extent the Town in the future enacts a municipal use tax on
building materials.
94. Revocable License Agreement means that certain Revocable License Agreement for
Snow Storage executed concurrently with the Effective Date by and among the Town, Master
Developer and TCMD, with respect to the rights and obligations of the parties thereto regarding
the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat,
The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)) for
snow storage.
95. Sanitation District means the Eagle River Water & Sanitation District.
96. School Sites Dedication has the meaning set forth in Section 3.8(a).
97. Section refers to a numbered section of the Development Agreement, unless otherwise
stated.
98. Service Plan(s) means, individually or collectively as the context dictates and as may be
amended from time to time, the Service Plan for TCMD and VMD, each dated August 11, 1998,
and approved by the Town Council in accordance with Part 2, Article 1, Title 32, C.R.S., together
with any other service plan(s) that Town Council may approve for such additional District(s) as
may be organized for the Project in the future.
99. Settlement Term Sheet has the meaning set forth in Recital H.
100. Site has the meaning ascribed to such term in the PUD Guide.
101. Site Specific Development Plan means a “site specific development plan” as defined in
the Vested Property Rights Statute, but for avoidance of doubt shall not be construed to include a
preliminary plat, a grading permit, a building permit, or the continuation of a temporary use
beyond the term contemplated therefore in the approval.
102. Supplemental Bonds means additional financial obligations of TCMD (including bonds
issued by TCMD and/or Additional Developer Advances) issued at any time during the period
commencing on the Effective Date and continuing through and including January 1, 2040: (i)
which are payable in whole or in part from Credit PIF Revenues; and (ii) the proceeds of which
are utilized to finance Capital Projects and/or (in the case of TCMD bonds) to defease
Replacement Bonds.
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103. Tank Agreement means that certain Traer Creek Water Storage Tank and Water Service
Agreement made and entered into as of [insert effective date] by the Authority, the Town,
TCMD, Master Developer and certain “Limited Parties” as defined therein.
104. Tank Project has the meaning set forth in the Tank Agreement.
105. Tank Project Bonds has the meaning set forth in the Tank Agreement.
106. Tax Credit means the Town’s obligation to provide tax credits to offset the effect of the
Public Improvement Fees as described in Section 4.2(a) and in Article 6, which obligation is
implemented by and codified in the Municipal Code (as in effect on the Effective Date) at
Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and
3.28.075 (with respect to public accommodations).
107. Taxable Transaction(s) means a retail sales transaction, a real estate transfer transaction,
or an accommodations/lodging transaction occurring within the Property which, subject to
application of the Tax Credit as set forth in the Development Agreement, is subject to the
Town’s sales tax, the Town’s real estate transfer tax or the Town’s accommodations/lodging tax.
If the Town imposes any use tax on building materials during the Term that is not in effect as of
the Effective Date such use tax shall be automatically and without the need of any formal action
incorporated into the foregoing definition.
108. TC-HD means Traer Creek-HD LLC, a Colorado limited liability company
109. TCLLC means Traer Creek LLC, a Colorado limited liability company.
110. TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
111. TCMD Bond Reissue means bonds issued by TCMD on or prior to the Effective Date to
refund its Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds,
Series 2004, in implementation of the Settlement Term Sheet.
112. TCMD Reissue Documents means the indenture, the custodial agreement and related
documentation executed in connection with closing of the TCMD Bond Reissue and which
establish, inter alia, the priority of uses for which District Revenues can be utilized.
113. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company.
114. TC-RP means Traer Creek-RP LLC, a Colorado limited liability company.
115. TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company.
116. Term has the meaning set forth in Section 1.4(b).
117. TIF Revenues means the net revenues actually received by AURA from the property tax
increment resulting from creation of one or more urban renewal area(s) including all or any part
of Lot 1. For purposes hereof, the term “net revenues” means the revenues remaining available
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for use by AURA after remitting: (i) to the Districts, 100% of the tax increment revenues
resulting from the Project Ad Valorem Taxes; and (ii) to any other taxing authorities having
territory within the Property, such portions of the tax increment revenues resulting from the mill
levies of the other taxing authorities as AURA may be required to remit pursuant to the terms of
separate agreements with such taxing authorities, if any.
118. Town means the Town of Avon, a home rule municipal corporation of the State of
Colorado.
119. Town Council means the Town Council of the Town.
120. Vested Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the
Original Effective Date.
121. Vested Property Rights has the meaning set forth in Section 2.4.
122. Vesting Term has the meaning set forth in Section 1.4(a).
123. VMD means The Village Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
124. Water Bank has the meaning set forth in Section 3.5.
125. Water Rights has the meaning set forth in Section 3.5.
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September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 1 | Page
Staff Report
September 25, 2012 Avon Town Council Meeting
Report Date September 20, 2012
Application Final Planned Unit Development (PUD)
File No. PUD12004
Zoning Planned Unit Development
Prepared By Matt Pielsticker, AICP, Planner II
Introduction
The Applicant, Harvey Robertson of RMT Architects, representing the owners of the Village at Avon
property, has submitted a Final PUD Application (“the Application”). The Application includes an
Amended and Restated PUD Guide (“PUD Guide”) Version 16 (Exhibit A), Amended PUD Map (“PUD
Master Plan”) Version 11, and a Subdivision application (“the Plat”). Accompanying the Application is a
Project Narrative and Written Statement (Exhibit B).
The Application is intended to implement certain provisions of the Settlement Term Sheet (“STS”) –
made and entered into on October 7, 2011 by and between the Town, Traer Creek LLC, Traer Creek‐RP
LLC, Traer Creek Plaza LLC, EMD Limited Liability, Traer Creek‐HD, LLC, Traer Creek‐WMT, LLC, BNP
Paribas, and Traer Creek Metropolitan District.
Submittal of the Application followed the approval of a Preliminary PUD application by the Town Council
on July 10, 2012. The Planning and Zoning Commission (“PZC”) reviewed the Application and
recommended that the Town Council approve nine (9) of the eleven (11) STS land use matters, but deny
the application overall. The PZC findings of fact and recommendations were distributed to Council at
the last public hearing. All application materials are available for review on the Town’s website at
www.avon.org/referral.
Executive Summary
The Application proposes a number of PUD amendments to the approved zoning control documents for
the property, ranging from minor changes and clarifications to major amendments to development
standards and related processes. Since the Preliminary PUD was approved by the Town Council, there
have been additional modifications to the PUD Guide, and it should be noted that the PUD Master Plan
is unchanged since Preliminary PUD.
On July 17, 2012, Town Staff sent a redline strikethrough version of the PUD Guide to the Applicant in an
attempt to narrow the review to STS items. There were a number of items from previous PUD Guide
versions that were not supported by Staff or Council. The exercise in producing a strikethrough PUD
Guide was intended to communicate a detailed iteration that not only implemented matters of the STS,
but included some mutually beneficial matters for all parties.
On July 24, 2012 the Applicant submitted another redline strikethrough of Staff’s recommended version
of the PUD Guide. It has become clear that there are some outstanding differences in opinion and/or
interpretation that exist. Additionally, the applicant acknowledged that numerous matters that “require
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 2 | Page
further discussion”. Additional changes were incorporated into the Application that have neither been
discussed nor explained in that cover Memorandum.
During PZC review, it became clear that PZC would not be able to adequately review the entire
application. Instead the PZC focused on the STS items as directed by Council. On August 27, 2012 the
Applicant addressed the mandatory review criteria with a letter addressed to PZC (Exhibit C). That
analysis, along with all public comments distributed to Council through the life of the Application,
provide valuable input for Council’s consideration.
This application was submitted on August 31, 2012, after which Town Staff provided a similar
strikethrough iteration of the PUD Guide to compare with the existing PUD Guide and address STS
matters.
Throughout the application process, Staff, public, PZC, and Council have expressed concern to the
apparent lessening of Town regulations. The root issue is the diminished authority of current (or future
as may be amended) regulations contained in the AMC. When the property was annexed and originally
zoned, the Municipal Code was defined “as in effect from time to time.” There are defined regulations
or processes frozen (i.e. vesting, design review); however, including a PUD exhibit devoted to exclusions
from the AMC is neither fully understood nor appropriate given the complexity of the project and the
long range of the contemplated vesting term.
Staff is unable to support the Application as presented, as there are conflicts with the PUD review
criteria for a number of the amendments. Additionally, no clear rationale or justification has been
provided by the Applicant for amendments not included in the STS.
_____________________________________________________________________________________
Contents
A. PUD Amendments
Permitted Density…………………………………………………………………………………….3
Development Standards…………………………………………………………………………..4
Special Review Use & Temporary Use…….………………………………………………..5
Subdivision……………………..………………………………………………………………………..5
Amendment Procedures…………..………………………………………………………………6
Supplemental Regulations………………………………………………………………………..6
Exhibits …………………………………………………………………………………………………….9
B. PUD Master Plan Amendments…………………………………………………………………………………….12
C. Subdivision Plat
Engineering Summary………..……………………………………………………………………12
Recommendation……………………………………………………………………………………13
D. Review Criteria……………………………………………………………………………………………………………..14
E. Recommendation…………………………………………………………………………………………………………21
Findings of Fact……………………………………………………………………………………….22
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Village at Avon ‐ Final PUD 3 | Page
A. PUD Amendments
To organize Council’s review, this section of the report is structured with PUD amendments in order of
their appearance in the Amended PUD Guide. Pertinent PUD Guide sections and headings are
referenced. Staff recommendations are contained throughout this section, and all recommendations
are collated later in this report.
A.4(g)(i) Street Alignments
This section was amended to reference road designations on the PUD Master Plan as being permanent,
temporary, or conceptual. Per Staff’s direction, this section was amended to clarify that preliminary
engineered road design plans must be provided if/when portions of “Main Street” are to be constructed.
This would ensure proper phasing and connectivity of future phases. During the review process with
PZC, there was expressed concern that temporary pedestrian facilities should be provided, connecting
East Avon with Post Boulevard due to safety concerns with the existing conditions.
A.4(g)(ii) Planning Area Boundaries
Currently, Planning Area boundaries run to the Right‐of‐way boundary line when such boundaries abut
streets. There is new language stating that planning area boundaries would be to the middle of roads
when abutting streets. The net effect of this modification is not fully understood, but could result in
more density on less land. For example, Planning Area A contains approximately 2,100’ of Main Street
ROW frontage. If the future ROW area (approximately 4 acres) is carved out, and the density per/acre is
retained for the remaining developable portions of Planning Area A, it would result in approximately 100
dwelling units (25 dwelling units/acre) on 39 acres instead of 43 acres. Not included in this example are
the E. Beaver Creek Boulevard and north‐south streets indicated on the PUD Master Plan. This
amendment is not rationalized by the applicant, and Staff does not recommend approving this change.
B. Total Permitted Density
1(a) Commercial Uses. The consolidated gross square footage has been increased from 650,000 sq. ft.
to 950,000 sq. ft. There was no justification provided by the Applicant for the increased commercial
density, and Staff does not recommend approval of any increase without a corresponding public benefit.
The PUD Guide does not address additional exactions (i.e. affordable housing) or dedications to mitigate
the additional impacts of potential density increases. Additional impacts such as traffic are not currently
understood.
B.2. Planning Area I Density. New section to include proposed commercial space and dwelling unit
density assignment for Planning Area I. These numbers were recommended by Staff during Preliminary
PUD review and are based upon acreage and Dwelling Units/ per acre calculations compared to other
planning areas. This density is in addition to the cumulative density permitted in all other areas of the
PUD.
B.4. Density Calculations. New section to clarify that actual density per acre could exceed that for a
portion of a planning area as long as total density for the planning area is maintained. This language
coupled with the size of the planning areas would allow for higher concentrations of dwelling units in
each planning area. While the ultimate density for each planning area as a whole would be maintained,
it is difficult to understand where concentrations of density may occur and Staff’s preference is to
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Village at Avon ‐ Final PUD 4 | Page
regulate density on a lot by lot basis. If development is proposed before a planning area is subdivided,
then the area of the individual project should provide the baseline for density calculations.
While this density computation method is generally accepted in the planning field for zoning on a
property‐by‐property basis (i.e. 1 acre property is permitted 25 dwelling units per acre and therefore all
25 of the permitted dwelling units could be built on one half of the site), large tracts of land such as PA‐
A, PA‐I, or PA‐K, present physical constraints and could lead to a disproportionate amount of
development in more sensitive areas. Staff does not support this language as it provides no certainty to
adjacent properties or future constructed developments as to where density or intensity of
development will occur.
B.6. Commercial/Residential Ratios. This is a carry‐over from the existing PUD Guide. Within the
Regional Commercial Planning Areas (now referred to as F, G, H), the residential/commercial ratio mix is
currently 80% minimum commercial. In the proposed PUD this ratio is removed for these commercially
oriented planning areas allowing potential for all residential. Staff does not recommend this
modification as it would not ensure mixed‐use development.
B.8. Dwelling Unit Calculations. This section is taken from the definition section of the 1998 PUD for
“Dwelling Unit” and re‐inserted and amended. The notable changes include changing the
Primary/Secondary definition to count as one (1) dwelling unit instead of two (2), and the
accommodation units definition was modified such that the average square footage of the units would
not be limited to 600 sq. ft. The change in Primary/Secondary definition was discussed in length during
the PZC review of the Application and the PZC ultimately recommended against this modification due to
its implications on the hillside residential area and possible negative impacts experienced with such an
increase in potential density. Staff is in agreement with the Planning Commission’s recommendation, as
this change was not contemplated in the STS and may result in a disproportionate amount of residential
development in the hillside area. The modification to the PUD Master Plan indicates additional estate
lots, and additional acreage for the multi‐family area (RMF‐1 as proposed). These two changes are
acceptable, but the changes to the definition of Dwelling Unit are not supported.
D. Development Standards within the Village (at Avon) PUD.
Please refer to the Planning Area by Planning Area comparison chart (Exhibit D) to identify all of the
proposed changes to each Planning Area. Generally speaking, Staff is supportive of a number of the
changes but would like to submit the following comments for Council’s consideration:
1. Previous Staff Comments. The Town Attorney provided the applicant and Council with
comments and strikethrough/additions of the proposed PUD Guide. Planning Staff is supportive
of the strikethrough (“Version 16‐E”) for this section of the PUD Guide, as directed by Town
Council.
2. Purpose Statements. These were removed from each planning area and no rationale was
provided. These intent statements provide valuable guidance to the Director when providing
determinations for similar uses to those listed in the permitted categories.
3. 65,000 sq. ft. cap. The Application proposes an increase in permitted single‐use tenant for
Planning Area A. Staff does not recommend increasing this cap at this time.
4. 950,000 sq. ft. Commercial. This proposed change to the overall commercial square footage
cap was not contemplated by the STS and no offsetting affordable housing has been provided to
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Village at Avon ‐ Final PUD 5 | Page
mitigate such impacts. Staff does not recommend approval of changes to commercial density
until either a need is demonstrated or the increase is properly mitigated elsewhere in the PUD.
5. Telecommunications Equipment. These uses are not specifically addressed in the 1998 PUD
Guide. Consistent with the AMC for all zone districts in Town, Staff would recommend that this
particular use, which includes freestanding facilities, towers, etc., be listed as an SRU in all
proposed planning areas.
6. Outdoor Storage. The Application proposes to add Outdoor Storage as a use by right. Outdoor
Storage is defined as “any equipment, good, junk material, merchandise or vehicles in the same
place for more than 24 hours in any area other than a roof structure.” This use is more
appropriately listed in the SRU category for all Planning Areas to ensure proper screening.
E. Special Review Use
The criteria for review, recommendation, and approval of SRU permits are modified with the addition of
two (2) review criteria from the AMC related to mitigating any potential adverse impacts of a proposed
use, all the while maintaining adequate levels of service. The amendment section was expanded to
mirror the AMC, and would allow PZC to authorize the Director to approve expansions to SRU permits.
Staff supports all of the amendments to Section G and this is seen as an improvement to conform to the
current AMC regulations regarding SRU permits. While not part of the STS, this is viewed as a mutually
beneficial modification.
F. Temporary Uses and Structures
This is a new section to address the Town’s temporary use (or structure) process in the AMC. An
applicant would be able to apply to the Town for uses listed in §7.24.080 Temporary Uses and
structures, AMC, with the prior written approval of the Village DRB. Examples of temporary uses include
outdoor sales, temporary parking, and outdoor special events or festivals. The inclusion of this section is
appropriate and provides clarity for this particular codified Town process. The review criteria must be
considered for temporary uses on private and public property, such as Planning Area B.
G. Subdivision
Section G‐ Subdivision. The intent of subdivision regulations are to create individual lots for sale, ensure
that there are adequate public improvements to serve the lots, and certify that the lots are in
conformance with all applicable regulations. The subdivision process occurs concurrently with a PUD
approval or, in the case of the Village (at Avon) after the PUD approval process. Essentially, the
subdivision process implements the development plan outlined in the PUD and is a technical
Engineering exercise. Section G of the PUD replaces the subdivision procedures, review criteria, and
exceptions in the AMC for Planning Areas A, B, C, D, E, F, and J. The STS contemplates an administrative
approval for subdivisions, meaning subdivisions will be approved by the Director of Community
Development but not a new procedures, review criteria, and exceptions in the PUD Guide.
Incorporating subdivision procedures, review criteria, and exceptions in the proposed PUD will prevent
changes to the subdivision process without the consent of the Master Developer for the duration of the
PUD Guide, and subsequently the property owner following the vesting period. This is different than
AMC where the subdivision standards can change based on the Town’s or other entities requirements
over time. If Town Council supports these procedures in the PUD, it is recommended that they have a
sunset date that coincides with the vesting period.
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There are four exceptions to the Subdivision process in addition to what is in the AMC, including: (1)
dedication of right‐of‐way; (2) correction of a legal description in a prior conveyance; (3) any transfer by
operation of law or bequest, leaseholder interests for any period of time; and, (4) division of land
created by the foreclosure, or provision of deed‐in‐lieu of foreclosure, of a lien, mortgage, deed of trust
or any other security instrument. Of particular concern in the additional exceptions is the dedication of
right‐of‐way. It is important that the dedication of rights‐of‐way occur through the platting process as it
exists throughout the Town.
The proposed PUD lists submittal requirements for a subdivision application, while the AMC defers to
the Director of Community Development to determine submittal requirements. The limitation of the
application submittal requirements is a concern because it is impossible to develop a list of submittal
requirements for a subdivision application of unknown scope. The proposed list is focused solely on
road construction and does not include many items that are typically required such as utility plans or
retaining wall plans and does not contain the flexibility to require plans to address specific site
constraints or construct unique improvements such as a lake or recreation trail. It would be more
appropriate to default to the AMC or change the Application Submittal requirements to include all
construction documents and supporting reports for all public improvements within the subdivision.
The proposed PUD also includes ten review criteria for approval that focus on the technical adequacy of
the Final Plat, adequate public facilities and compliance with the PUD Master Plan. These criteria act in‐
lieu of the 23 review criteria listed in the AMC. Staff recommends following the review criteria in the
AMC because it is more comprehensive and will ensure that the subdivision will have adequate
infrastructure; sufficient financing; proper phasing of roads and utilities; utilities will have ability to serve
the subdivision, and that road layouts are designed to minimize disturbances and maximizes efficiencies.
Section G.3., Material Modifications of Certain Street Extensions or Alignments, is intended to provide a
mechanism that requires any major changes to the road network to be reviewed and approved by Town
Council, as determined by the Director. This list was a collaborative effort between the Applicant and
Staff. Road connections would be required for Main Street at Chapel Place and Post Blvd and for East
Beaver Creek Blvd. at the existing East Beaver Creek Blvd near City Market and Post Blvd at Fawcett
Road. If the Developer desires to modify these connection locations in the future , the Subdivision
application would require Town Council approval.
H. Development Plan Amendment Procedures
1. General. The existing and proposed PUD both allow the Director of Community Development to
determine which process, administrative or formal, amendments will be processed. New language was
added to this section to require the Director (or Council) to notify the applicant of the intent to reject or
deny an application to allow for time to amend applications. This is standard practice when Town staff
reviews any development or zoning application, and the added language does not appear to be
necessary.
3. Administrative Amendments. The list of eligible administrative amendments is similar to the existing
PUD. While the existing PUD allows for amendments up to 10% for dwelling units, the Application
proposes to carry this measured amount (up to 10% of affected area) forward for planning area
boundary modifications. At Staff’s request, language was added to prevent the possibility of relocating
an entire planning area from one location in the PUD to another under the administrative amendment
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Village at Avon ‐ Final PUD 7 | Page
procedures. Appeal procedures have been added to this section to allow Town Council review if
requested by an applicant. All of the proposed modifications to this section are acceptable to Staff.
4. Modifications Not Requiring Amendment. Reference to Planning Area K building envelopes is not
necessary as the language correctly points out that any building envelope created or modified will be
through the formal subdivision process.
I. Supplemental Regulations.
1. Interim Uses. This is a new section to formally consent to the land uses that have occurred from
time to time on the Property. Staff is comfortable with listing these uses as proposed.
2. Solid Fuel Burning Devices. Staff supports repealing this section and deferring to the codified Town
of Avon regulations in the AMC. The existing regulations are similar to the Town regulations; the
primary difference being that the AMC version requires EPA‐listed devices.
3. Signs. This section was amended to articulate the Town’s review authority for signage and
improvements within public rights‐of‐way. In previous versions of the PUD guide there were references
to billboard advertisement possibilities in portions of the PUD fronting Interstate‐70. As drafted, the
Town would have no purview over such signage type. Staff would recommend additional language to
clarify that the Town is the permit authority for all signs, and that “billboard” or similar type signs are
prohibited on the Property.
6. Drainage Requirements. This is an entirely new section, and is intended to implement portions of the
STS by incorporating the “David Johnson Drainage Study”. The David Johnson Study analyzed the
vegetative cover on the slopes north of I‐70 and indicated that there is more vegetative cover than what
was assumed in the Town’s Drainage Master Plan. An increase in the amount of vegetative cover
dramatically decreases the amount of runoff generated from the slopes north of I‐70 so has significant
consequences for several drainages.
Staff agrees that the assumptions were overly conservative in the Drainage Master Plan and they should
be re‐visited. Staff’s primary concern at this point is that it has not completed a full review of the Study,
and it is rash to incorporate the study without proper review. Given the timing of this agreement and
the inability to perform an updated Study in the timeframe required to address this term, Staff does not
recommend approving the language in this section as drafted.
8. Alternative Equivalent Compliance (“AEC”) and Variances. Currently, there is a subsection within
the Design and Improvement Standards section of the PUD Guide that allows the Town to consider
variances from these particular AMC standards at a Preliminary Plan review stage. The standards for
which these variances could be considered include things such as maximum road grade, minimum
driving surface width, cul‐de‐sac standards, and drainage provisions. The “variances” are limited to
Engineering Standards found in Section 16.40 of the AMC; this is a now‐retired AMC section limited to
street engineering and design standards.
As proposed, the concept for reviewing developments that do not meet the literal language of a finite
code section would be extended to allow a discretionary review process for all Development Code (Title
7) standards and requirements that may be applicable to the property – including engineering
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Village at Avon ‐ Final PUD 8 | Page
standards. Staff does believe that is the intent of this section as drafted, and would recommend that
the section be modified to clarify that the AEC process is limited to code sections specified in
§7.16.120(a), AMC. The AEC provisions are currently limited to the following sections elsewhere in
Town: §7.20.100, Employee Housing Mitigation; §7.28.040, Mobility and Connectivity; §7.28.050,
Landscaping; §7.28.060, Screening; §7.28.070, Retaining Walls; §7.28.080, Fences; §7.28.090, Design
Standards; and §7.32.040, Paved Trail Design.
9. Supplemental Design Standards: Planning Areas A & D. This is a new section to address concerns
expressed by neighboring property owners who abut PA‐A and PA‐D. During Preliminary PUD review
concerns were expressed with the back sides of buildings along Main Street and the possibility of less
architectural attention. This section carries forward the supplemental design standards for Hotels in PA‐
J to mixed‐use and commercial buildings in PA‐A and PA‐D. Carbon copying these standards to other
commercial projects adjacent to established neighborhoods appears to be appropriate.
10. Supplemental Design Standards: PA‐J Hotel, Motel and Lodge. These standards were identified in
the STS as a priority. The 1996 Comprehensive Plan calls out this area of the PUD as Subarea 19: I‐70
North District. The Plan states that when developed attention must be given to visual quality and
gateway treatments. Specifically, the Plan recommends that “detailed guidelines and requirements for
design considerations for a possible I‐70 interchange” be developed. The Plan is sensitive to the high
visibility and arid nature of this property.
After discussions with PZC, the standards were modified several times before the final version proposed
in the Application. PZC recommended language from the AMC be incorporated concerning earth tone
colors, but this language was not incorporated in the final Application. Staff agrees with PZC’s
recommendation.
13. Natural Resource Protection. This is a new section to clarify that certain improvements will be
permitted in the Village on slopes in excess of thirty percent (30%) slope, and road improvements could
be on slopes in excess of fifty percent (50%). This matter is discussed later in this report.
14. Residential Fire Suppression Systems. This section was modified to clarify that fire suppression
systems in the hillside area (RFM‐1 & K) must meet Eagle River Fire Protection District regulations, as
may be amended. It explains further that the Town may enforce such regulations but may not adopt
more stringent regulations. At subdivision, the available water supply for suppression systems must be
verified as recommended by the Fire District.
17. Provision of Certain Amenities.
The existing PUD requires the construction of 50% of the community park be located in Planning Area N
commence prior to the date of the 601st certificate of occupancy for a residential dwelling unit. The
remaining 50% of the community park will commence upon the issuance of the 1,201st residential
dwelling unit certificate of occupancy. The pocket park and bike trail improvements must commence
with development immediately adjacent parcels. Currently a community center is planned in Planning
Area B, with the first phase required when the 601st certificate of occupancy and the second phase when
the 1,201st certificate of occupancy is issued. An ice skating/events center is required for Planning Area
C with the certificate of occupancy for 200,000SF of commercial space in Planning Area A.
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In Lot 1, the old Planning Area B and C (now B) will be combined into one Lot and transferred to the
Town as part of the process. The terms of the STS transfer the obligation for constructing park
improvements from the Master Developer and TCMD to the Town of Avon for Planning Area B.
Typically, the Town pays for capital improvements with the real estate transfer tax, but in the PUD those
revenues would go to pay for the bonds so the Town does not have a revenue stream other than the
Avon Urban Renewal Authority (AURA) to construct such improvements. The old Planning Area N‐
South, (now Planning Area J West) land use will be changed from Parkland to commercial development.
The 5.8 acres of Parkland will be relocated to Planning Areas A, C, D, I, J, K, and/or widening of P1, at
Developer’s discretion. Unless waived by the director, the future dedication(s) must meet the following
minimum requirements: 1) ¼ Acre minimum, 2)Centrally located within or adjacent to neighborhoods
served, 3)sited to provide public surveillance form adjacent or nearby streets, 4)Accessible from the
surrounding neighborhoods by sidewalks and/or trails, and 5) Unless dedicated for linear park purposes
(i.e. bike path), at least fifty (50%) percent of the dedicated parkland shall be well drained and level.
PZC recommended that Council approve the zoning change for N‐South to commercial with the
condition that the displaced 5.8 acres be “materially equal to the usability of the current site” to ensure
an equal trade of land. The standards mentioned above could result in comparable parkland and it
would be determined in the future during platting.
The effect may result in the 5.8 acres being dedicated as pocket parks rather than a large community
park, adding a level of uncertainty to how the parks will be developed in the PUD. This approach to park
planning may not improve the ultimate dedications but it is difficult to understand until the time of
platting. The Council must consider the review criteria that seeks improvements to open space
provisions (§7.16.060(e)(4)(i), Review Criteria, AMC).
Exhibit D. Wildlife Mitigation Plan
The existing PUD includes a Wildlife Mitigation Plan focused on areas north of Interstate 70. The
Mitigation Plan acknowledges the loss of critical wildlife habitat and regulates the PUD with an identified
critical migration corridor. The Wildlife Mitigation Plan includes provisions for bear proof trash
receptacles, regulates hours for construction activity, and includes the requirement to establish a
wildlife mitigation fund among other things. Some of the requirements such as construction hours are
above and beyond the Town’s codified regulations.
Substantively, there have been no changes to the proposed PUD with respect to the Wildlife mitigation
Plan. References to lot numbers for setbacks or wildlife corridors were updated as were the Open Space
tract references. It must be noted that the Colorado Parks and Wildlife (CPW) provided comments and
suggested that additional density (and roads) north of I‐70 should have corresponding wildlife
protection measures. The CPW comments also state that a double wide cattle guard should be added
due to the fact that the new interchange opened up an entrance for wildlife and the double wide cattle
guards have proven effective elsewhere.
In written correspondence from the Applicant to PZC, it was stated that the Applicant “will coordinate
with DOW with respect to the use of a double wide cattle guard at the I‐70 interchange at Planning Area
J”. Staff recommends adding this language to the Wildlife Mitigation Plan, Exhibit D, to make this
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Village at Avon ‐ Final PUD 10 | Page
recommendation binding prior to any further development north of I‐70. No other specific
recommendations were provided by the CPW.
Exhibit E. Minimum Design Guideline Standards
During PZC review of the Application, this Exhibit was discussed as it is referenced in the Supplemental
Design Standards for Hotel, Motel, and Lodge uses in PA‐J. While outside the scope of review, PZC
recommended that the current (2011) Design Review Guidelines replace the ones currently carried
forward (1998), as the ones in Exhibit E did not appear to be comprehensive enough to serve as a
baseline set of Guidelines.
Exhibit F. Street Standards
The STS stipulates that the PUD Guide be amended to “depict narrowed E. B.C. Blvd., and allow E. B.C.
Blvd. to be developed in phases as determined by Developer provided that E. B.C. Blvd. is improved as
necessary to provide access to subdivide or developed property.” Also contemplated with the STS is the
dedication of certain easements and ROW sections to the Town (Exhibit F to this report)
The Application is requesting new road standards, cross‐sections, and layouts. Page F‐1 shows the new
proposed layout for the PUD and the proposed street classifications. The new layout proposes two (2)
east‐west connections, one from Chapel Place to Yoder Avenue named Main Street, and the second
from East Beaver Creek Blvd to Fawcett Road named East Beaver Creek Blvd. Main Street is proposed to
have an 80‐foot wide ROW in the central segment, a 50‐foot wide ROW through the western and
eastern segments. Instead of approving conceptual cross sections as outlined in Section F, PZC
recommended minimum performance standards to allow flexibility. PZC recommended: 1) 50’
minimum ROW in all cases, 2) 6’ minimum wide center islands or 6’ landscaping strips on either side of
roads, 3) 5’ minimum sidewalks, 4) Turn lanes be reviewed on as‐needed basis, and 5) pedestrian
facilities must be constructed with each phase.
East Beaver Creek Blvd is proposed to be classified as a rural local road which will have a 50‐foot wide
ROW consisting of a 22‐foot wide drive surface, two‐foot shoulders and the remaining area be used for
drainage and snow storage. Swift Gulch Road is proposed to be extended to Planning Area I and will
include a detached recreation path. The road to Planning Area K would be a local rural road and
generally follows the alignment in the previous PUD. All of the road layouts are conceptual in nature
and can potentially change as the project is designed.
The proposed road layout on Lot 1 is an improvement over the previous PUD because it follows a simple
grid pattern and is more intuitive. The road cross sections for Main Street are adequate for the
expected land uses fronting the road. East Beaver Creek Blvd and Road D are proposed to have high
density land uses and pedestrian facilities should be added along these roads to support the
development and address PZC’s concerns. It is not appropriate to include the curve radius and site
distance standards in the PUD since they are dependent on numerous parameters including grade,
design speed and land use. The standards should clearly state that they are not intended to replace the
technical standards for road construction.
Exhibit G. Municipal Code Provisions Not Applicable to the Village (at Avon) PUD
Exhibit G is a new Exhibit that includes a number of exceptions to codified regulations and procedures.
This list includes a number of process, use, and design requirements. While the STS did contemplate
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Village at Avon ‐ Final PUD 11 | Page
that some level of exceptions to be identified, this analysis touches on the provisions that were not
specifically enumerated.
First off, some of the provisions listed in Exhibit G are acceptable to Staff given the structure of the
existing PUD because there is merit to including a clear, concise list of enumerated exceptions; however,
a number of the listed provisions fall within the category of “generally applicable” regulations suitable
for all properties in Town. For example §7.24 Use Regulations, AMC, includes a number of regulations
that are not contained in the PUD that provide compatibility throughout Town – such as Home
Occupation, Group Living, or Accessory Structure standards. Removing requirements that limit
development to areas less than 40% slope (§7.28.100(a)(3), AMC) is inconsistent with the intent of
language in existing PUD and should also be universally applied throughout the Town. Outdoor Lighting
(§15.30, AMC) is another example of a regulation that was enacted to ensure uniform lighting
throughout Town to avoid light pollution and ensure compliance with the Dark Sky Ordinance.
Planning Staff does not support exceptions in addition to those agreed during the STS process. There
has not been any rationale provided for additional exceptions, and in some cases clearly conflicts with
the mandatory review criteria. The PUD review criteria require consistency with the Avon
Comprehensive Plan and the purposes of the Development Code, including but not limited to
§7.104.020 (f) “Provide a planned and orderly use of land, protection of the environment and
preservation of viability, all to conserve the value of the investments of the people of the Avon
community and encourage a high quality of life and the most appropriate use of land throughout the
municipality.” In order to provide for the orderly use and protection of the environment, Exhibit G
should be removed, or amended as suggested elsewhere in this report. There has been no rationale
demonstrated by the Applicant of the benefit to excluding numerous provisions.
B. PUD Master Plan Amendments
Aside from the general reorganizing, renaming, and resizing of most planning areas, as is further
described in the Planning area by Planning Area comparison chart (Exhibit D), there are some proposed
modifications to the PUD Master Plan (referred to as “Formal Amendment Two – Version 11 DRAFT”)
that warrant further explanation.
Notes
All of the notes from the existing PUD Master Plan (referred to as “Formal Amendment Number One”)
have been removed, and the note regarding the vested property right was updated and reinserted. A
note has been added to reaffirm language in the PUD Guide that stipulates a maximum density of 280
Dwelling Units for PA‐I until secondary road access to Planning Area I. Other notes were added
concerning Planning Area K minimum Open Space requirements and the “conceptual, non‐binding”
nature of other map depictions such as bridges, lot layouts on the hillside, and street layouts.
Roads and Hydrology
Road classifications are proposed to differentiate between constructed, temporary, or conceptual road
types. The Nottingham Puder Ditch was also added to the Plan as it provides a static reference point.
The ditch provides insight to the proposed locations of PA‐P1 and PA‐B.
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Village at Avon ‐ Final PUD 12 | Page
Open Space & Parkland
The total for all existing and proposed acreage of Open Space and Parkland, at build out, would be as
follows:
Existing PUD Master Plan Proposed PUD Master Plan
Open Space 499.9 acres 539 acres
Parkland 44.7 acres 24.8 acres
TOTALS: 544.6 acres 563.8 acres
Please refer to the attached maps (Exhibit E) Staff produced to better understand existing and proposed
open space and parkland areas and locations within the PUD. The existing PUD Master Plan includes a
total of 44.7 acres of parkland; comprised of 15.7 acres of small “pocket” parks (P1‐P6) on the valley
floor and a 29‐acre Community Park, referred to as Area N, on the north side of the Interstate. The PUD
also includes 499.9 acres of Open Space, which is split between eleven (11) separate areas scattered
throughout the development with the majority located on the northern hillside areas.
Through this amendment process there have been several iterations of the PUD Master Plan Map
produced by the Town’s GIS person. Per Staff’s direction, subsequent plat approvals, and STS
agreements for areas north of the interstate, the map has been amended. Some of these changes have
implications with the open space and park numbers. For example, areas of the Community Park were
converted to Public Facility sites in response to subdivision platting for Filing 3 to create a site for the
Ambulance District (PF2 ‐ 1 acre) and Fire District (PF3 – 1 acre). The same area was modified by
converting from Community Park to Open Space due to naturally existing conditions such as the Traer
Creek drainage, and steep topography on both side of Swift Gulch Road. These changes coupled with
the STS agreement to change “N‐South” to a commercially designated planning area, have resulted in a
net reduction in Community Park area. It must be noted that some former park areas (i.e. P6 between
interstate and railroad tracks east of Lot 5 Town site) were converted to Open Space as they are not
conducive to park use with steep topography and isolated location.
The proposed PUD Master Plan includes a total of 19 acres of parkland; comprised of three (3) different
areas: 1) P1: Linear 4 acre park following the Nottingham Puder ditch, 2) P2: 2‐acre “flagpole” park lot
between big box stores, and 3) P3: 13‐acre site (formerly N) north of Swift Gulch Road. With an
additional 5.8 acres of parkland dedicated in the future pursuant to the PUD Guide and CARADA, the
application proposes a total of 24.8 acres of parkland. The Open Space tracts areas have been
consolidated into seven (7) separate planning areas totaling 155 acres. The total amount of proposed
Open Space is 539 acres and would be comprised of the OS1‐OS7 areas and at least 29.5% of PA‐K,
which equates to 384 acres within PA‐K. The Proposed map (Exhibit E) is somewhat deceptive given the
fact that the future open space within PA‐K are undefined until the time(s) of platting for that particular
area.
C. Subdivision Plat
The Applicant has submitted the Second Amended Final Plat, Amended Final Plat, The Village (at Avon)
Filing 1, a Resubdivision of Lot 1, Town of Avon, Eagle County, Colorado for the purposes of creating two
new lots for a future park and school. According to §7.16.070 of the Avon Municipal Code (AMC), this
application qualifies as a Minor Subdivision application because it creates less than 4 separate parcels of
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 13 | Page
land and does not require or propose public improvements. The Town Council renders the final decision
on a Minor Subdivision application after conducting a public hearing and shall be approved by either
resolution or ordinance. In this case, the approval would be contingent upon all other approvals and
would be incorporated into Ordinance 12‐10.
As seen in the Staff Recommended Conditions of Approval below, there is concern over the numbering
of the lots. Currently the applicant is referring to the Park Site as Lot 2 and the School site as Lot 3, but
these lot numbers conflict with the already platted parcels for the Traer Creek Plaza building (Lot2) and
Wal‐Mart (Lot 3). Staff recommends that these lots be renumbered Lots 6 and 7. Furthermore, Staff is
concerned with the dedication of associated easements. The proposed plat references the reception
number of the previous plat but since this plat is intended to rescind the previous plat and recreate a
new plat the referencing is not adequate. Staff recommends that the plat be modified to clearly state
that this plat is dedicating associated easements and not reference the reception number. The proposed
Development Agreement states that the single‐family equivalents (SFEs) shall be dedicated and assigned
to each parcel on the Final Plat. The Plat needs to be modified to assign SFEs to each lot created.
Lot 2, the park site, is 4.10 acres and has access from East Beaver Creek Blvd (or “Main Street” as in the
future) through a 20‐foot wide access easement as required in §7.32.020(e)(8) of the AMC. The
necessary access and associated improvements would not fit in a 20‐foot wide access easement as
proposed. Therefore, Staff recommends the easement be widened to 50‐feet and its language be
modified to include drainage and utility improvements. Currently, no utilities serve the property and
they will have to be installed in order to develop the park. Although, the lack of utilities available at the
property boundary is not in conformance with the AMC, it was acknowledged as part of the STS.
Lot 3, the 4.47 acre school site, is also accessed from East Beaver Creek Blvd and is served by all major
utilities from the same ROW area. The Final Plat is in general conformance with Title 7, Development
Code, of the AMC, with the exception of the seven conditions outlined below. Staff is recommending
that the Final Plat be approved, subject to the following conditions:
1. Lot 2 and Lot 3 shall be renamed Lot 6 and Lot 7.
2. A purpose statement added to the Final Plat stating that the purpose of this plat is to
create two new lots, Lot 6 and Lot 7.
3. A note added stating that East Beaver Creek Blvd and Chapel Place are temporary
road easements.
4. The note regarding a vested property right shall be removed from the Final Plat
because it is not necessary.
5. The Plat shall be modified to state the associated easements are dedicated by this
plat and not the reception number of the previous plat that is to be rescinded.
6. The access easement to Lot 6 shall be increased to 50 feet wide.
7. As proposed in the Development Agreement, there should be an assignment of SFEs
for the three lots on this plat.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 14 | Page
D. Review Criteria
Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the Council shall consider the following review
criteria when evaluating this application.
(i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or
incorporates creative site design such that it achieves the purposes of this Development Code and
represents an improvement in quality over what could have been accomplished through strict
application of the otherwise applicable district or development standards. Such improvements in
quality may include, but are not limited to: improvements in open space provision and access;
environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and
other utilities and services; or increased choice of living and housing environments.
Staff Response: The stated purposes of §7.04, Development Code, AMC, and §7.16.060, PUD, AMC,
include statements regarding the implementation of the Comprehensive Plan; regulating intensity of
use; regulating and determining the area of open spaces; establishing building lines; avoiding
increased demands on public services and facilities; providing for phased development of
government services; minimizing adverse environmental impacts of development; provide for
compatibility with the surrounding area; preservation of natural features; minimize adverse
environmental impacts; and promoting sufficient, economical and high quality provision of all public
services and public facilities.
PUD zoning, by nature of its composition, inherently affords opportunities to provide creative site
design and planning. Flexibility and improved quality of development is the basis for PUD zoning;
however, the amount of flexibility proposed is substantial, without providing assurance that an
improvement in quality over the existing PUD will be realized, or improvements to open space
provisions and access. There is concern with the lack of certainty with where open space will be
provided and whether or not environmental protection is achieved when some of the AMC
provisions enacted to protect these very resources would be relinquished with the Application. All
of the Natural Resource Protection Standards (§7.28.100, AMC) should govern the property to ensure
environmental protection. No justification was provided for exempting the sections of code that limit
development of roads to areas less than 50% slope or excessive changes to natural grade. As
requested in the Application, these exemptions could violate the purposes of the Development Code.
However, approving the PUD commensurate with the STS and addressing Staff’s concerns expressed
in this report is recommended.
Concerning the provision of streets and roads, it must be noted that the road network in the
proposed PUD Master Plan is an improvement over the existing PUD. Additionally, the language
regarding essential street connections (Section G.3, PUD Guide) is important to maintain adequate
street connectivity within the PUD and to other established networks.
The Town Council must determine whether the Application confers a substantial benefit and/or
incorporates creative site design to achieve the some of the purposes of the Development code cited
above. The size of the PUD makes it difficult to understand the effects of eliminating select AMC
sections that were enacted to be universally applied, and amended periodically.
This review criteria mentions that an increased choice of housing is a desired improvement in quality;
consistent with the Comprehensive Plan goals and policies. The housing mix and number of
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 15 | Page
affordable housing options remains the same as the current PUD despite an increase in commercial
square footage. It is difficult to find that an increase in commercial space, without mitigation, is an
improvement in quality or substantial benefit to the Town, and as noted elsewhere in this report
Staff does not recommend over 650,000 sq. ft. of commercial space.
(ii) The PUD rezoning will promote the public health, safety, and general welfare;
Staff Response: The Community Development Department recognizes the need to plan for the
protection of the public's health, safety and welfare. When evaluating this application it became
apparent that the list of PUD amendments must be reviewed both individually and collectively in
order to realize the big picture of the changes. Understanding the cumulative effects of the
proposed amendments is extremely difficult given the long‐range consequences and potential
impacts on public health and welfare.
Public welfare is broad and inclusive and is often most accurately reflected in the goals and policies
contained in the Town’s Comprehensive Plan and AMC purpose statements. As noted, Staff is
concerned with most of the proposed exceptions from the AMC, as these regulations were enacted
to promote the public health, safety, and general welfare. Staff has also illustrated potential negative
impacts with other Supplemental regulations proposed.
The Applicant has argued that implementation of the STS and approval of the PUD application will
result in an increase in tax base available to the Town to fund municipal services, and ending the
Town’s expenditure of limited resources on litigation. Implementing the STS will undoubtedly reduce
the Town’s legal expenditures, but approving the PUD application, as submitted, is not merited due
to the number of changes outside the scope of the STS.
(iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of the
Development Code, and the eligibility criteria outlined in §7.16.060(b);
Comprehensive Plan
In addition to the Goals and Policies from the Comprehensive Plan (“the Plan”), there was a level
of awareness that the Village (at Avon) could be annexed and developed; therefore, some
additional policy direction can be found in the Plan. For example, the Plan highlights the
potential for a new interchange, and goes a step further by identifying developable areas such
as PA‐I. The Plan contains an Overall Land Use plan which indicated large areas of Open Space
and limited residential opportunities, loosely based on topographical lines for the northern
hillside area.
The Plan acknowledges the developable nature of the “Nottingham Ranch south of I‐70 (Stolport
Property). The development of this parcel will have a significant impact on the Town and is
discussed in detail in the Land Use Plan (p. 21).”
The Land Use Plan, Figure 4.3, indicates a Town Center area in the vicinity of proposed PA‐A.
Also, “Urban Village” is called out for the rest of Lot 1 and the valley floor. The Plan envisions
Town Center to include the most intensely development part of Town, clearly more urban in
context. The Plan speaks heavily to mixed‐use, pedestrian friendly development for the entire
valley floor areas. Open space and trail linkages are also stressed for the “Stolport” property to
link the project east‐west with other networks.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 16 | Page
The Plan breaks the Town into subareas and the valley floor is referred to as Subarea 20:
Stolport East District. An excerpt from the Plan with specific recommendations follows:
Pursuant to the PUD approval documents, the PUD is subject to review of the 1996
Comprehensive Plan. One of the fundamental reasons for implementing the Plan is to clearly
communicate where and how land uses may occur and to promote and protect the health,
safety, and welfare of the residents and visitors of the Town by using goals and policies that
result from a community review process. Following is a list of Goals and Policies from the Plan
to consider in light of this Application:
Goal A1. 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.
Staff Response: The amendments can accommodate a mixed use theme (i.e. permitting mixed‐
use in Planning Area A) with a large residential component and mixed‐use opportunities.
Regional commercial uses are maintained and PA‐J refocuses some of the regional commercial
activities to the I‐70 interchange area, which appears to be an appropriate location for these
types of auto‐oriented activities to strengthen regional commerce. There is a general shift in
allowed uses from residential to mixed‐use in some other areas of the valley floor.
Policy A1.3. Flexible zoning such as Planned Unit Developments (P.U.D.) should be encouraged
where it results in more effective use of the land. However, such flexible zoning will only be
allowed where it provides a benefit to the community and is compatible with surrounding
development. Variations from standard zoning must be clearly demonstrated, and will be
permitted only as needed to achieve effective development.
Staff Response: The Application would afford the maximum level of flexibility to the property,
and a number of the changes do not demonstrate any clear benefit to the community. As
noted, the premise of PUD zoning is to permit creative land development patterns. Planning
Staff has consistently expressed concern with the extensive list of exceptions to various
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 17 | Page
Municipal Code provisions listed in Exhibit G to the PUD Guide. A number of the listed
variations do not appear to be necessary to achieve “effective” development, and result in little
or no assurance that the 1996 Comprehensive Plan will be reflected in the final product.
Policy A1.4. Service and light industrial uses, including warehousing and light manufacturing,
should be directed to terrain that supports effective vehicular access and circulation, and
allows effective screening from adjacent uses and public ways.
Staff Response: Light industrial land uses are limited to PA‐I, and heavy industrial uses are
prohibited.
Policy A1.6. Land for open space should be preserved throughout the community, particularly
on steep slopes and other environmentally sensitive areas.
Staff Response: The existing PUD includes areas of open space, albeit largely within private lots
or steep hillside areas. The Application results in open space areas that are less defined but
would be required in the future, at the time of platting, by the Wildlife Mitigation Plan and PUD
Master Plan notations. Staff’s primary concern with this policy is the exceptions from the
Natural Resource Protection standards related to steep slope development.
Policy A1.7. The community should include sufficient land for public uses such as schools,
community facilities, and government services.
Staff Response: Even though there is no immediate need for the proposed community facility
or school sites, these dedications are included in the STS and provide tangible, immediate
benefits. In most instances, educational and other community facilities should be located
centrally in the community and be combined whenever possible (i.e. there is a symbiotic
relationship between educational facilities and parks). For example, Nottingham Park is
anchored by Avon Elementary and the Recreation Center and Municipal Building and the land‐
uses prove to be compatible.
In addition to the size and locational considerations, the physical constraints of the sites must be
understood. PA‐B in its current form is isolated, with no relationship to existing or potential
future adjacent land uses. In its current form, the land is largely undevelopable without
substantial effort between the Town and the developer to place controlled fill in the site to
achieve the desired public benefit of a park and possible water feature as an amenity. The
CARADA includes the additional stipulated details for providing an augmentation pond.
Goal A3. Maintain a compact urban form that respects and preserves the natural beauty of
the valley, river and surrounding mountains, and maintains distinct physical and visual
separations between Avon and surrounding communities.
Staff Response: The changes in areas of open space may negatively impact this Goal if lower
portions of Planning Area K are disturbed and/or developed. Staff has few concerns with
development in the valley floor portion of the PUD as this is the most developable and readily
available area for contiguous development patterns. The western boundary of the PUD appears
to match up well with the planned “East Avon” circulation and physical development patterns.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 18 | Page
The proposed density calculation methods (planning area wide instead of per acre) are not
supportable by Staff given the level of uncertainty with where the permitted density within
planning areas would ultimately be developed. As proposed, the density could all be located in
one small portion of a planning area which could impair the natural qualities of areas such as
PA‐K or PA‐I.
Policy A3.5. Since undeveloped land in the Town Center is scarce, it will be developed at
higher density, including a vertically integrated mix of commercial and residential uses, and
rely primarily on underground and/or structured parking.
Staff Response: Like other portions of the Town Center, it is envisioned that the valley floor and
especially PA‐A will be developed as mixed‐use, likely with on‐street parking and structured
parking. This particular policy is pertinent to the Application, and the commercial/residential
mixed‐use ratio standards would continue to reinforce this planning policy.
Policy A3.7. Steep slopes in and around the community should be designated and preserved as
open space wherever possible.
Staff Response: The stated purpose of the Natural Resource Protection standards in the AMC is
to “protect the public by preventing or regulating development in locations with steep slopes.”
This application directly conflicts with this Plan policy with Natural Resource Protection
deviations.
Policy B1.1. Residential neighborhoods should be maintained to a high standard of quality
through effective maintenance of streets, utilities, parks and other public facilities, and
through consistent application of design standards.
Staff Response: The STS stipulates that the Town will accept responsibility for performance of
the Village at Avon Metro District’s existing maintenance obligations. These obligations include
maintenance of existing right‐of‐way landscaping, repaving, Nottingham Dam, irrigation
systems, and snow removal. This policy is addressed through the CARADA and has been
modeled to ensure that the Town will be able to provide the high standard of quality consistent
with other areas of Town.
Goal B4. Create a strong sense of community based on awareness and participation by
residents and businesses in achieving Avon’s vision for the future.
Staff Response: The application was amended to keep all current community participation
processes (i.e. formal amendments, SRU), and now acknowledges the Temporary Use process
that the Town codified recently.
Policy C2.2. Wherever possible, affordable housing will be integrated with, rather than be
separate from, the rest of the community.
Staff Response: Half of the proposed 500 affordable housing units are already constructed in
RMF‐2 with 244 units in the Buffalo Ridge project. This existing arrangement is by no means
integrated into the community. While pedestrian bridges would be allowed, the bridge
graphical representation was removed from the PUD Master Plan map, and no justification was
provided for such change.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 19 | Page
Purposes of the Development Code
The Purposes of the Development Code are broad, extensive, and enumerated in §7.04.030,
AMC. Many of the stated purposes of the Development Code mimic those of the PUD Section of
the Development Code, including: dividing the Town into zones and restricting improvements
within each zone, regulating intensity of use and areas of open spaces, implementing the
Comprehensive Plan, avoiding sprawl of population, protecting the watershed, providing a
diverse range of housing types, and promoting sufficient public services.
Given the fluid nature of the planning area boundaries, road locations, and subsequent
improvements within planning areas, the amount of flexibility proposed for the Project is
substantial. The level of flexibility would exceed that of the existing PUD and in some ways
result in less certainty with where different types of uses or density can occur. As mentioned
above, Section B.2 of the PUD Guide renders the density per/acre calculations for each planning
area nearly inconsequential. As proposed, densities within portions of planning areas can be far
less or greater than the intended density per/are allowances.
Open space is less defined, and undefined for the 5.8 acres of displaced parkland from Planning
Area N‐South. Additionally, any increase in density for the hillside area of the project directly
conflicts with the state purposes of the Development Code.
Eligibility Criteria outlined in §7.16.060(b) of the AMC
This criterion is to some degree a moot point since the property is already zoned. At any rate,
Staff finds recognizable public benefits, and there appears to be sufficient land area for the
proposed uses.
(iv) Facilities and services (including roads and transportation, water, gas, electric, police and fire
protection, and sewage and waste disposal, as applicable) will be available to serve the subject
property while maintaining adequate levels of service to existing development;
Staff Response: The Application provides or accommodates the Town’s ability to serve the property,
all the while maintaining adequate levels of service. As mentioned elsewhere in this report, the
Town would assume several service and maintenance responsibilities in addition to those already
provided (i.e. police, permitting). The property is served by utilities, and the Water Tank is being
handled separately through the CARADA and separate agreement.
(v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse
impacts upon the natural environment, including air, water, noise, storm water management,
wildlife, and vegetation, or such impacts will be substantially mitigated;
Staff Response: The property was annexed and zoned PUD without any underlying zone districts.
Throughout this report Staff has compared the Application with the existing PUD to address this
criterion. In many cases the resulting changes are difficult to weight given the remaining
undeveloped acreage of the property. Potential development scenarios will be determined in large
part by the DRB without any other development review.
There is clear potential for adverse impacts to the natural environment such as steep slope
development. The utmost concern is limited oversight by the Town to ensure that any such impacts
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 20 | Page
would be substantially mitigated. As a result, the DRB and Master Developer retain the majority of
the review control, with limited Town review. It is recognized that PUD zoning is intended to be
flexible but only when it can be demonstrated that there is creative planning approaches to land
development. Any less oversight for a PUD of this size and scale owes future review and
enforcement of AMC regulations to ensure compliance with environmental and other regulations,
such as the Dark Sky Ordinance.
(vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon other property in the vicinity of the subject tract; and
Staff Response: As mentioned, some of the proposed uses by right, and building height increases via
the SRU process, could result in adverse impacts to other properties. The Planning Area comparison
chart demonstrates that some areas may experience increased intensity of use and/or include a
substantial list of new proposed uses by right. Additionally, some areas would be allowed increased
height (80’ hospital use or 135’ hotel use) via the SRU process. The Town will likely be receptive to
zoning amendments (i.e. building height) if there is a site specific development plan to respond to.
Handling building height increases through the SRU process is not the proper mechanism to ensure
that massing implications of a building over 100’ tall. The SRU process is intended to address uses
and not traditional zoning standards such as height or setbacks.
(vii) Future uses on the subject tract will be compatible in scale with uses or potential future uses on
other properties in the vicinity of the subject tract.
Staff Response: As proposed, the Application raises questions of compatibility. There are examples of
zoning standards (i.e. 135’ hotel) or changes in the allowable uses/standards of properties, or new
processes. For example, opening the AEC process to any standard or requirement of the
Development code could open the door to future interpretation conflicts. This particular process is
limited to select standards of the Development Code and is not intended to be a general waiver as it
is presented in Section I.8 of the PUD Guide. Staff would recommend that the AEC/Variance section
(I.8) of the PUD Guide be modified to clarify that AEC is only eligible to the Sections allowed by
§7.16.120(a), Alternative Equivalent Compliance Applicability, AMC.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 21 | Page
E. Staff Recommendation
There are a number of amendments that Staff supports in the Application; however, as submitted,
concerns with various amendments lead to Staff’s overall recommendation that Council DENY the
application. The difficulty with recommending denial is the known financial implications and impeding
litigation if such action were taken. While Staff is not in complete support of all the STS listed land use
issues, the resulting benefits with approving the strict STS amendments and settling the lawsuit would
profit all parties involved and open opportunities for successful development of the PUD as we move
forward.
Staff has fundamental concerns with the following specific amendments (as outlined throughout this
report), and could offer support if the following recommendations were addressed:
1. A.4 (g)(ii) Planning Area Boundaries. Staff recommends that the language in this section be
amended such that “wherever a planning area abuts a street, the boundary is the abutting
right‐of‐way line of such street.”
2. B. 1(a) Total Permitted Density. Staff recommends maintaining 650,000 sq. ft. maximum of
commercial space.
3. B.4. Density Calculations. Staff recommends that this section be amended such that Dwelling
Units per acre may not exceed the maximum number of Dwelling Unit per acre within a final
plat and/or site.
4. B.6. Residential/Commercial Ratios. Staff recommends that the maximum residential
percentage permitted in PA‐F, G, and H be 20%, and not 100% as proposed.
5. B.8. Dwelling Unit Calculations. Staff recommends no changes to the Dwelling Unit
Calculations. Dwelling Unit calculation for “Primary/Secondary” should read two (2) dwelling
units and not one (1) dwelling unit. Additionally, Staff recommends that the average square
footage of accommodation units be limited to 600 sq. ft. as currently defined.
6. D. Development Standards. Staff recommends that this section be amended to match the
strikethrough/additions provided to Council (Exhibit G to this report). Additionally, Staff
recommends that Outdoor Storage and Telecommunications be listed in the SRU category in
all Planning Areas.
7. G. Subdivision. Staff recommends that Section G of the PUD Guide be amended to state that
all subdivisions within Planning Areas A, B, C, D, E and J qualify for the Administrative
Subdivision procedures as outlined in §7.16.070(b)(3), Administrative Subdivisions, AMC, and
§7.16.070(d)(3), Administrative Subdivisions, AMC. Further, all other requirements for
subdivision shall be in accordance with §7.16.070, Subdivision, AMC.
8. I.3 Signs. Staff recommends that this section be amended to clarify that the Town of Avon
retains permit authority for all signs, and that billboards or other similar highway‐orientated
signage and advertisements be prohibited in the PUD.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 22 | Page
9. I.6. Drainage. Staff recommends that the David Johnson Vegetative Cover Study be
incorporated into future drainage studies, with the condition that prior to acceptance by the
Town a thorough evaluation of the Study be conducted and approved by Engineering Staff.
10. I.8. Alternative Equivalent Compliance & Variances. Staff recommends that the language be
expanded to clarify that the AEC process is only eligible to sections of the Development Code
enumerated in §7.16.120(a), Alternative Equivalent Compliance Applicability, AMC.
Additionally, the Variance process is only eligible for standards enumerated in §7.16.110,
Variances, AMC.
11. I.10. Supplemental Design Standards. PZC and Staff recommend that Section 10(a)(2) of the
PUD be modified with insertion of following language “Indigenous natural or earth tones such
as brown, tan, grey, green, blue, or red in muted, flat colors..”
12. Exhibit D. Wildlife Mitigation. Staff recommends that Exhibit D, Wildlife Mitigation Plan, be
amended to require a double‐wide cattle guard be installed prior to any further development
north of Interstate‐70.
13. Exhibit G. AMC Exceptions. Staff recommends that the following code sections be removed
from Exhibit G of the Amended PUD Guide:
§7.24.050 Use‐Specific Regulations
§7.24.060 Use‐Specific Regulations for Special Review Uses
§7.24.070(e) Standards for Specific Accessory Uses and Structures
§7.28.070(2) & (3) Retaining Walls
§7.28.100(a)(3)(v), (x), (xiii)(E) Natural Resource Protection
§15.28 Sign Code
§15.30 Outdoor Lighting
§7.32.101(c)(2) & (6) Engineering Improvement Standards
§7.32.040(c) Paved Trail Design Minimum Width
§7.32.040(e) Paved Trail Design: Grades
Staff recommends that Council consider the following Findings of Fact for incorporation into an
Ordinance:
A. Mandatory Review Criteria
The Avon Town Council has considered all public input, PZC recommendations, Matt
Pielsticker’s September 20, 2012 Staff Report, and reviewed the Application against the
review criteria outlined in §7.16.060(e)(4), Review Criteria, AMC.
B. School Site Dedication.
The Application proposes approximately 3.6 acres in what is now referred to as Planning
Area E (or Lot 3 according to the Amended Final Plat Application) and the remaining 3.7
acres will be satisfied through future conveyance in Planning Area I. Planning Area E is
encumbered by utility easements which bisect the usable acreage of the site. The PZC
cited concerns with locating a school facility within 500’ of gas utility transmission lines,
mentioning safety concerns and citing best practice studies.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 23 | Page
The Stone Creek Charter School provided correspondence dated June 5, 2012 and June
13, 2012 which states that the utility easements and encumbrances limit the ability of
the school to fully utilize the property. The Eagle County School District (ECSD) provided
written comments on May 29, 2012 and has on multiple occasions provided oral
comments objecting to the split school site proposal. At the September 11, 2012
Council meeting the ECSD acknowledged that no current need exists for a school site,
and recommended that Council delay any action on the school site in order to move
forward with other STS items and address school dedication at a future date.
After future investigation of the easements, they do not appear to encumber the
usability of the property. As proposed, Planning Area E is suitable for a school site. A
future 3.7 acre site in Planning Area I co‐located with park use is in compliance with
Policy A1.7 of the Comprehensive Plan by preserving land for school use. The split
school site proposal promotes “flexibility that will encourage innovative and imaginative
approaches in land development”, consistent with Purpose Statement (1) of the
Development Code.
C. Extension to Vested Property Rights
The PZC recommended approval of a six year extension of vested property rights along
with reasons and conditions stated in the PZC Final PUD Findings and
Recommendations. The six year extension is warranted in light of all relevant
circumstances, including but not limited to size of development, response to the
economic downturn, and market conditions. The extension complies with the
mandatory review criteria and is in compliance with the Comprehensive Plan;
specifically, Goal D.1 is to ensure cost effective development of public facilities and
services to support the health, safety, and welfare (§7.16.060(e)(4)(ii), Review Criteria,
AMC) of all residents in the Town of Avon. Additional time will make up for lost
development opportunities during litigation.
D. Planning Area N‐South/Parkland Dedication
The application proposes changing a portion of the Community Park in existing Planning
Area N (PA‐N South) situated adjacent to the northwest corner of the I‐70/Post
Boulevard interchange side from park use to commercial zoning (proposed Planning
Area J) to specifically allow hotel/lodging, commercial uses such as gas station,
convenience retail, restaurant and other similar uses. Due to the construction of the
Post Boulevard interchange and Swift Gulch road, existing Planning Area N has become
bifurcated by Swift Gulch road which negatively impacts the functionality of Planning
Area N as a cohesive regional park site. The location of existing Planning Area N‐South
adjacent to the I‐70 interchange reduces the utility and attractiveness of this area for
outdoor park uses. The application proposes to relocate the 5.8 acres park land in
proposed Planning Area I, J, and/or K to be determined at the discretion of the
developer. The PUD Guide also provides the ability for the Developer to dedicate any or
all of the 5.8 acres within Planning Areas A, C and/or D, or enlarging PA‐P1.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 24 | Page
PZC recommended approval of the change of use of existing Planning Area N‐South from
park land to commercial in the PZC Final PUD Findings and Recommendation with the
condition that the displaced 5.8 acres of park land be detailed by the applicant and
materially equal to the usability of the current N‐South land. Section 3.8(d) of the
CARADA sets forth details requiring Master Developer and/or the Developer Affiliates to
dedicate 5.8 acres in the aggregate within Planning Areas I, J, and/or K to ensure that
the displaced park land will be transferred to the Town in the future.
The application includes minimum requirements for park land dedications (i.e. minimum
¼ acre, centrally located in neighborhoods). The dedication requirements proposed in
Section I.17 of the Amended PUD Guide may or may not ensure that the net useable
acreage of future conveyed parkland will equal that of the existing Planning Area N‐
South area. The displaced PA‐N South parkland could be located within low density
neighborhoods within PA‐K that are less convenient for the majority of Avon residents,
or all in the valley floor connecting mixed‐use neighborhoods.
E. Hotel Use and Design Standards for Planning Area J.
Hotel use adjacent to or in close proximity to the I‐70/Post Boulevard interchange is
likely to be a viable commercial use. Development of PA‐J would be visible from I‐70,
which presents both opportunities for marketability and commercial viability as well as
concerns about design and character of the Town of Avon’s primary eastern gateway.
The Comprehensive Plan includes the interchange area as Subarea 19: I‐70 North
District, and also recognizes that while the area provides for future development,
“attention should be given to 1‐70 corridor treatments, visual quality, and gateway
treatments.” The PUD Guide includes Supplemental Hotel Design Standards in addition
to other applicable design standards.
The PZC reviewed the Supplemental Design Standards over the course of two public
meetings. The Final PUD Application incorporates the PZC recommended Supplemental
Design Standards. The Standards will ensure a higher design standard for any potential
hotel‐oriented hotel(s); and require the Town of Avon Director to confirm compliance
prior to building permits being issued. The Supplemental Design Standards further the
policy recommendation in the Comprehensive Plan which suggests minimum design
standards for the highly visible portions of the development near the I‐70/Post
Boulevard interchange.
F. Road Access to Proposed Planning Area I (current Planning Area M). Planning Area I is
currently isolated and surrounding by steep topography, the Eagle River and the Union
Pacific Rail Road line. Viable alignments for the construction of a road to access PA‐ I
are limited and complicated by property ownership patterns. Construction of a road
across the Forest Service Village Parcel (situated between proposed PA‐ J and proposed
Planning Area I) will be highly visible from I‐70 and other locations. The amount of cut
and fill required for construction of an access road can be reduced by reducing the
minimum required road width profile and by constructing a pedestrian/recreation path
separately from the road in a manner similar to the Swift Gulch road construction.
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 25 | Page
The PZC recommended that the Council approve the map depiction of a road crossing
the USFS property to access PA‐I with the condition that access be prioritized as follows:
1) Bridge over the Eagle River to I be first priority, 2) “Lower” road as indicated on the
PUD Master Plan be second priority, and 3) Upper road concept studied by Alpine
Engineering is not an option for access to PA‐ I.
A “Conceptual” road access is indicated on the PUD Master Plan, Version 11, to cross
through Planning Area J and the USFS parcel to access Planning Area I. This conceptual
road access, and associated road profile design in Exhibit F of the PUD Guide, will allow
for the potential access to Planning Area I in the future.
G. Water Allocation Calculation and Tracking. The water rights are described as Single
Family Equivalent, which does not conform with the description of consumptive use
credits in the Traer Creek Water Storage Tank Agreement, 1997 Water Service
Agreement, and the 1999 First Amendment to Water Service and Tap Fee Agreement.
The proposed on‐going control and approval of water rights allocation by the Master
Developer presents unique implications for the administration of the build‐out of the
Project.
H. Hillside Density (Proposed Planning Areas K and RMF‐1). The existing PUD Guide and
PUD Master Plan permit 91 Single‐Family units (each with a primary/secondary
configuration), 1 caretaker unit on Lot 1, and 98 Multi‐Family units totaling 190
“Dwelling Units” as defined by the PUD Guide (or 280 residential units). The Final PUD
Application proposes up to 280 “Dwelling Units” on the hillside area. PZC recommended
that Council approve the increase in density for the hillside area with the condition that
there are no modifications to the Primary/Secondary definition in the PUD Guide. The
PUD Master Plan indicates additional Primary/Secondary lots in PA‐K. The PUD Guide
modifies the Dwelling Unit definition for Primary/Secondary to count as one (1) Dwelling
Unit instead of two (2) dwelling units currently. This definition change would allow for
up to 560 residential units in the hillside, which is inconsistent with PZC’s
recommendation, and not contemplated with STS implementation.
I. Commercial Density Increase. The application proposes an increase of 300,000 sq. ft.
for “Commercial” land uses, as defined in the PUD Guide. Potential impacts of
increasing the maximum commercial density from 650,000 sq. ft. to 950,000 sq. ft. will
result in impacts to uses or potential future uses on other property in the vicinity of the
PUD. In response to the increase in Commercial square footage, there have been no
compensating amendments. The lack of mitigation conflicts with §7.16.060(e)(4)(i),
Review Criteria, AMC, by not providing increased housing options. The proposal
increases commercial square footage and dwelling unit allowances in the PUD, without
any subsequent update to the Affordable Housing Plan (Section J.15, PUD Guide). The
potential increase in commercial square footage is not addressed with the quantity
and/or timing of affordable housing. This position is consistent with the Comprehensive
Plan’s housing strategies which seek a diverse range of housing options
September 25, 2012 Town Council Meeting – PUBLIC HEARING
Village at Avon ‐ Final PUD 26 | Page
J. Municipal Code Exceptions. The application proposes Exhibit G, which itemizes specific
sections of the Avon Municipal Code (AMC) that would not apply to the PUD. Exhibit G
establishes a new regulatory format along with changes to the Vested Property Rights
language and the change to utilize the AMC as exists on the “Effective Date” as defined
in the CARADA. The exceptions related to design standards already governed by the
Village Design Guidelines such as Landscaping are appropriate to avoid any potential
future conflicts between the Town and Developer because these standards and design
review process are already established in the existing PUD. Processes including Special
Review Use and Design Review provide clarity given the current PUD structure which
governs such processes. No clear rationale is provided for carving out sections including
§15.40, Outdoor Lighting, AMC, as these regulations were enacted to protect the health,
safety, and general welfare of residents and visitors of the Town. Protecting the health,
safety, and welfare is the foundation of the development code and Final PUD review
criteria in §7.16.060(e)(4)(ii), Review Criteria, AMC.
K. Wildlife Mitigation Plan. The Town received comments from Colorado Parks & Wildlife
(“CPW”) which may not accurately assess the potential wildlife impacts of the
application. The CPW comments recommended that a double‐wide cattle guard be
utilized on the north side of Interstate‐70, as similar wildlife mitigation efforts on other
state highways have proven effective. In light of increased development potential
north of Interstate‐70, and in order to fully comply with §7.16.060(e)(4)(v) this measure
must be incorporated into the Wildlife Mitigation Plan.
L. Subdivision. The PUD Guide proposes administrative subdivision procedures for
Planning Areas A, B, C, D, E, F and J. The Application proposes significant changes to the
applicable subdivision review criteria and procedures that limit the Town’s ability to
review. Proposed changes to subdivision submittal requirements, exemptions, and
review criteria do not appear to promote the health, safety, or welfare of the Town
(§7.16.060(e)(4)(ii), Review Criteria, AMC). Assurance that public improvements are
designed and constructed to current standards is not being provided, and the proposed
Subdivision review criteria do not allow for adequate analysis of the sustainability and
adequacy of subdivisions. Land subdivisions would not be required to demonstrate
adequacy of the land, compliance with the AMC requirements (as may be amended
from time to time) or Comprehensive Plan policies.
Exhibits
A‐PUD Guide, Version 16
B‐Project Narrative and Written Statement
C‐August 27, 2012 Letter from Kim Martin
D‐Planning Area Comparison Chart (1998 vs. Version 16)
E‐Open Space and Parkland Maps
F‐Easement and ROW dedication Maps
G‐Staff recommended Strikethrough of Section D, Development Standards, Amended PUD Guide
999369.16
The Village
(at Avon)
Amended and Restated
PUD Guide
[Insert Approval Date]
Pursuant to Section 7.16.140(d) of the Development Code:
Approval of this plan constitutes a vested property right pursuant to
Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter 16 of the Avon
Municipal Code as amended.
Exhibit A
TABLE OF CONTENTS
Page
999369.16 -i-
A. PURPOSE/GENERAL PROVISIONS .............................................................................. 1
1. Defined Terms ....................................................................................................... 1
2. Purpose ................................................................................................................... 1
3. Vested Property Rights .......................................................................................... 2
4. General Provisions ................................................................................................. 2
5. Applicability of Other Regulations ........................................................................ 5
6. Conflict .................................................................................................................. 6
7. Expiration of Vested Property Rights Term .......................................................... 6
B. TOTAL PERMITTED DENSITY ..................................................................................... 6
C. GENERAL LAND USE DESIGNATIONS ...................................................................... 9
1. Designations ........................................................................................................... 9
2. Permitted Uses ..................................................................................................... 10
D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD .......... 10
1. General ................................................................................................................. 10
2. Planning Area A - Village Center Mixed Use Project ......................................... 11
3. Planning Area B - Community Facilities ............................................................. 15
4. Planning Areas C and D - Village Residential Mixed Use Projects .................... 16
5. Planning Area E - School ..................................................................................... 19
6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects ....... 21
7. Planning Area J – Regional/Neighborhood Commercial and Residential
Mixed Use Projects .............................................................................................. 25
8. Planning Area K - Hillside Residential ................................................................ 27
9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family ......................... 30
10. Planning Areas P1-P3: Parkland ......................................................................... 32
11. Planning Areas OS1 – 0S7: Natural Open Space ............................................... 33
12. Planning Areas PF-1 – PF-3: Public Facility ..................................................... 35
E. SPECIAL REVIEW USE ................................................................................................ 36
1. Special Review Use Permit .................................................................................. 36
2. Application Filing and Processing ....................................................................... 37
3. Submittal Requirements for Special Review Use ................................................ 37
Exhibit A
TABLE OF CONTENTS
(continued)
Page
999369.16 -ii-
4. Criteria for Review, Recommendation, and Approval of Special Review
Uses ...................................................................................................................... 38
5. Amendments to Special Review Use Permit ....................................................... 38
F. TEMPORARY USES AND STRUCTURES .................................................................. 39
G. SUBDIVISION ................................................................................................................ 39
1. General ................................................................................................................. 39
2. Final Plat .............................................................................................................. 40
3. Material Modification to Certain Street Connections .......................................... 43
H. DEVELOPMENT PLAN AMENDMENT PROCEDURES........................................... 43
1. General ................................................................................................................. 43
2. Formal Amendments ............................................................................................ 44
3. Administrative Amendments ............................................................................... 44
4. Modifications Not Requiring Amendment .......................................................... 47
I. SUPPLEMENTAL REGULATIONS ............................................................................. 47
1. Interim Uses ......................................................................................................... 47
2. Solid Fuel Burning Devices ................................................................................. 48
3. Signs ..................................................................................................................... 48
4. Parking Requirements .......................................................................................... 48
5. Surface Parking Landscaping Requirements ....................................................... 49
6. Drainage Requirements ........................................................................................ 49
7. Sidewalk and Trail Standards .............................................................................. 49
8. Alternative Equivalent Compliance and Variances ............................................. 49
9. Supplemental Design Standards: Planning Areas A and D ................................ 50
10. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge
Requirements ....................................................................................................... 50
11. Wildlife Mitigation Plan ...................................................................................... 51
12. Design Review Guidelines ................................................................................... 51
13. Natural Resource Protection ................................................................................ 52
14. Residential Fire Suppression Systems ................................................................. 52
15. Park, Recreation and Trail Access ....................................................................... 52
16. Affordable Housing Plan ..................................................................................... 53
Exhibit A
TABLE OF CONTENTS
(continued)
Page
999369.16 -iii-
17. Provision of Certain Amenities ............................................................................ 55
EXHIBIT A Legal Description ................................................................................................... 1
EXHIBIT B PUD Master Plan ................................................................................................... 1
EXHIBIT C The Village (at Avon) Parking Regulations........................................................... 1
EXHIBIT D Wildlife Mitigation Plan ........................................................................................ 1
EXHIBIT E Minimum Design Guideline Standards .................................................................. 1
EXHIBIT F Street Standards ..................................................................................................... 1
EXHIBIT G Municipal Code Provisions Not Applicable to The Village (at Avon) PUD ............ 1
EXHIBIT H Definitions.............................................................................................................. 1
Exhibit A
999369.16
The Village
(at Avon)
Amended and Restated
PUD Guide
[Insert Approval Date]
A. PURPOSE/GENERAL PROVISIONS.
1. Defined Terms. Capitalized words and phrases used in this PUD Guide have the
meanings set forth in Exhibit H of this PUD Guide. Words and phrases which are not defined in
Exhibit H of this PUD Guide but are defined in the Development Code shall have the meaning
as defined in the Development Code. Where any word or phrase defined in Exhibit H of this
PUD Guide is the same or substantially similar to a word or phrase defined or used in the
Development Code, the word or phrase defined in Exhibit H of this PUD Guide shall be the sole
and exclusive definition of such word or phrase. Any words or phrase which is not defined in
Exhibit H of this PUD Guide and not defined in the Development Code, but is defined
elsewhere in the Municipal Code, shall not be presumed to have the specific meaning given such
word or phrase in the Municipal Code unless expressly stated herein.
2. Purpose.
(a) The Village (at Avon) PUD encompasses the Property, which is a large
parcel of land under unified development control of the Master Developer (together with and on
behalf of the Developer Affiliates) as of the Effective Date. This PUD Guide (including each
Exhibit attached hereto) shall control the zoning, Uses, Development Standards, development
application review procedures for the Property to the extent set forth in this PUD Guide, pursuant
to Section 7.16.060 Planned Unit Development (PUD) of the Development Code, adopted
pursuant to C.R.S. §24-67-104 and pursuant to the Avon’s Home Rule Authority, which
implements the Planned Unit Development Act of 1972, Sections 24-67-101 et seq., C.R.S.
(b) In accordance with the terms and conditions of that certain
SETTLEMENT TERM SHEET made and entered into the 7th day of October, 2011, by and
between the Town of Avon, BNP Paribas, Traer Creek Metropolitan District, Traer Creek LLC,
Traer Creek-RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer
Creek-HD LLC, and Traer Creek-WMT LLC (the “Settlement Term Sheet”), the Town’s final
non-appealable approval of this PUD Guide establishes and implements specific terms and
conditions of the Settlement Term Sheet and shall be binding on all parties to the Settlement
Term Sheet.
Exhibit A
999369.16 2
(c) The Original PUD Guide previously was amended by and includes
(collectively, the “Prior Amendments”):
(i) PUD Development Plan Administrative Amendment No. 1
(amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real
property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439.
(ii) PUD Guide Administrative Amendment No. 2, dated February 13,
2002, and recorded in the real property records of Eagle County, Colorado, on
February 29, 2002 at Reception No. 786254.
(iii) PUD Guide Administrative Amendment No. 3, dated May 15,
2002, and recorded in the real property records of Eagle County, Colorado, on May 15,
2001 at Reception No. 795806.
(iv) PUD Guide Administrative Amendment No. 4, dated May 15,
2002, and recorded in the real property records of Eagle County, Colorado, on May 15,
2002 at Reception No. 795805.
(v) Formal Amendment Number One to The Village (at Avon) PUD
Guide, dated January 25, 2007, and recorded in the real property records of Eagle
County, Colorado, on March 2, 2007 at Reception No. 200705491.
(d) The purpose of this PUD Guide is to amend and restate in its entirety the
original PUD Guide, including the incorporation into a single document of the Prior
Amendments and the amendments contemplated in the Settlement Term Sheet, for ease of
reference and to implement the terms and conditions of the Settlement Term Sheet. Accordingly,
this PUD Guide expressly replaces and supersedes the Original PUD Guide and the Prior
Amendments and any additional or conflicting provisions of the Municipal Code with respect to
the subject matter contained herein.
3. Vested Property Rights. The Vested Property Rights approved for the
Development Plan are as set forth in Article 2 of the Development Agreement.
4. General Provisions.
(a) Control Over Use, Location and Bulk. The Development Plan shall
control the Use, location and bulk of Buildings and Structures from and after the Effective Date,
and subject to compliance with the Development Standards set forth in the Development Plan for
the affected Planning Area and any additional or more restrictive standards and requirements set
forth in the Design Review Guidelines or the Design Covenant:
(i) For any new Building or Structure, and any parcel of land or Site;
and
(ii) For any changes or extensions of Use of any existing Building,
Structure, parcel of land or Site; and
Exhibit A
999369.16 3
(iii) The Design Review Board shall, in conformance with the
Development Plan, establish the final location, Use and bulk of all future Buildings,
Structures and improvements; and
(iv) Any existing Building or Structure may be enlarged, reconstructed,
structurally altered, converted or relocated for any purpose or Use permitted or required
by the provisions of this PUD Guide that is applicable to the Site in which such Building,
Structure, Site or parcel of land is located, and for no other purposes or Uses.
(b) Incorporation of PUD Master Plan. The PUD Master Plan, together with
everything shown thereon and all amendments thereto approved by the Town subsequent to the
Effective Date, is hereby incorporated by reference into this PUD Guide as Exhibit B.
(c) Comprehensive Plan. The Comprehensive Plan applies to the Village at
(Avon), and no amendments to the Comprehensive Plan approved by the Town subsequent to the
Effective Date shall apply to The Village (at Avon).
(d) Design Covenant. The Property is encumbered by and subject to the
Design Covenant, which governs matters related to Uses and development of all or any portion
of the Property. Where any conflict between the Design Covenant and the Development Plan
may occur, the more restrictive provision shall govern.
(e) Design Review Board. As contemplated by the Design Covenant, the
Design Review Board has been organized to administer and enforce the Design Covenant and
Design Review Guidelines. In accordance with the Design Covenant, the Design Review Board
shall have authority to review and the sole and exclusive authority to approve the architectural
design, landscape design, urban design and site design within the Property, subject to the Town
Council’s right of enforcement the Design Review Guidelines as set forth in Section I.12(c). The
Design Review Board shall (i) refer to the Planning and Zoning Commission, for comment only
and not for approval, ratification or disapproval, all development proposals submitted to the
Design Review Board for portions of the Property located south of Interstate 70 and all portions
of the Property located north of Interstate 70 other than Planning Areas K and RMF-1 (with
respect to which the Design Review Board shall have no obligation to refer development
proposals to the Planning and Zoning Commission); and (ii) give prior written notice to the
Director, or his designee, of each meeting of the Design Review Board at which the Design
Review Board shall initially consider any submitted development proposal(s), which notice shall
include the date, time, location and general subject matter of the meeting. At Master
Developer’s option, one or more separate design review board may be established with respect to
such Planning Areas RMF-1 and K. Such design review board(s) shall not be required to include
any Town appointed representative as a member. The Town’s approval of any building permit
within the Property is conditioned upon the Town’s prior receipt of a certificate of approval
executed by the President of the Design Review Board.
(f) Design Review Guidelines. Pursuant to the Design Covenant, Design
Review Board has prepared, approved and promulgated the Design Review Guidelines to
supplement and complement this PUD Guide. Where any conflict may occur between the
Exhibit A
999369.16 4
Design Review Guidelines and the Development Plan, the more restrictive provision shall
govern.
(g) Planning Areas and Boundaries, Road Alignments, Lot Lines.
(i) The street and road alignments depicted on the PUD Master Plan
are either designated thereon as either permanent, temporary (not permanent and intended
to be replaced in the future) or conceptual alignments. Notwithstanding any contrary
provision of this PUD Guide, until such time as made permanent or temporary in
connection with an approved and executed Public Improvements Agreement, the
conceptual alignments are non-binding and provided only for illustrative purposes to
show one of various potential alignments and vehicular ingress and egress between
Planning Areas. The alignment of future temporary and permanent streets shall be
subject to review and approval by the Town in connection with subdividing the
applicable portion of the Property and submittal by the Applicant of engineered road
design plans, as set forth in Section G of this PUD Guide. The Applicant shall be required
to submit engineered road design plans for, and shall be required to construct, only the
portion of a street that is necessary to serve the phase and property subject to the
applicable Application. Notwithstanding the foregoing, if such street is depicted on the
PUD Master Plan to extend and continue further than such phase and property subject to
the Application and connect to existing or future planned street(s), such Applicant shall
submit as a part of its Application Preliminary Engineering for the planned extension and
continuation of the subject street which is sufficient to demonstrate that the alignment
and grade of the construction of a portion of the street shall be adequately designed to
allow extension and continuation of the subject street in compliance with applicable road,
utility and drainage standards.
(ii) Planning Area boundaries shall be construed as follows:
(i) whenever a Planning Area abuts an exterior boundary of the Property, the Planning
Area shall be construed to coincide with such exterior boundary of the Property;
(ii) wherever a street abuts a Planning Area as shown in the PUD Master Plan, the
Planning Area boundary shall be construed to coincide with the center line of such
abutting street; and (iii) wherever a Planning Area contains or otherwise does not abut a
street or the exterior boundary of the Property, the Planning Area boundary shall be as
shown in the PUD Master Plan.
(h) Issuance of Building Permits; Design Review Board Certification.
(i) Provided an Application for issuance of a building permit (or
grading permit, etc.) complies with the Town’s Building Code (as defined in the
Development Code) and the Development Plan, the Town shall issue such building
permit (or grading permit, etc.) for any construction, improvements or alterations of a
Building, Structure or other form of development requiring a building permit (or grading
permit, etc.) for which the plans, specifications and details have been reviewed and
approved by the Design Review Board as defined herein. A certificate of approval
executed by the President of the Design Review Board shall be affixed to the plans and
specifications made a part of each building permit, grading permit, temporary certificate
Exhibit A
999369.16 5
of occupancy, permanent certificate of occupancy, etc. Application prior to the Town’s
approval thereof. To facilitate efficient review and approval of building permits (grading
permits, etc.), the Town’s building department may accept for processing a building
permit (or grading permit, etc.) concurrently with such Applicant’s submittal of plans,
specifications and details to the Design Review Board for review and approval of such
permit; provided, however, the Town shall not approve any Application for a building
permit (or grading permit, etc.) or temporary or permanent certificate of occupancy
unless a certificate of Design Review Board approval is affixed thereto as required by this
Section A.4(h)(i), such issued certification of Design Review Board approval being an
express condition precedent to the Town’s approval of any Application for a building
permit (or grading permit, etc.) or temporary or permanent certificate of occupancy.
(ii) Additionally, the Design Review Board certification shall
affirmatively state the Design Review Board’s confirmation, and the Director shall
confirm, an Application’s compliance with the supplemental design and improvement
standards set forth in Section I.9 prior to issuing a building permit for construction of a
Building designated for Hotel, Motel and Lodging Uses within Planning Area J.
5. Applicability of Other Regulations.
(a) General. Except as otherwise expressly provided in the Development
Plan, the establishment of Vested Property Rights pursuant to the Development Agreement shall
not preclude the application on a uniform, non-discriminatory and consistent basis of Town
regulations of general applicability (including, but not limited to, building, fire, plumbing,
electrical and mechanical codes, the Municipal Code, and other Town rules and regulations), or
the application of state or federal regulations, as all of such regulations existed on the Original
Effective Date or may be enacted or amended after the Original Effective Date; provided,
however that such newly enacted or amended Town regulations shall not directly or indirectly
have the effect of materially and adversely altering, impairing, preventing, diminishing,
imposing a moratorium on development, delaying or otherwise adversely affecting any of Master
Developer’s, Developer Affiliates’ or other Landowners’ substantive or procedural rights set
forth in the Development Agreement, this PUD Guide or any approved Final Plat for any portion
of the Property. Neither Master Developer, Developer Affiliates nor any Landowner waive their
right to oppose the enactment or amendment of any such regulations.
(b) Modifications and Exceptions. As set forth in Sections F through I of this
PUD Guide, certain provisions of the Municipal Code either are superseded in their entirety by
this PUD Guide or apply within The Village (at Avon) but are subject to the modifications set
forth in such sections. Additionally, the provisions of the Municipal Code which are set forth in
Exhibit G of this PUD Guide are, without limiting any other present or future regulations or
provisions of the Municipal Code which have similar effect from being similarly excepted,
specifically identified as provisions that directly or indirectly have the effect of materially and
adversely altering, impairing, preventing, diminishing, imposing a moratorium on development,
delaying or otherwise adversely affecting Master Developer’s, Developer Affiliates’ or other
Landowners’ rights (whether Vested Property Rights or other right) set forth in the Development
Agreement, this PUD Guide or any approved Final Plat for any portion of the Property, and
therefore shall not be applicable within The Village (at Avon) PUD.
Exhibit A
999369.16 6
6. Conflict. The Development Standards and other terms, conditions and criteria set
forth in the Development Plan shall prevail and govern the development of The Village
(at Avon). Where the Development Plan does not address a specific subject, the applicable
provisions of the Municipal Code shall, to the extent such Municipal Code provisions are not in
conflict or otherwise inconsistent with any provision of the Development Plan, control the
development of The Village (at Avon). Additionally, application of such Municipal Code
provisions shall not directly or indirectly have the effect of materially altering, impairing,
preventing, diminishing, imposing a moratorium on development, delaying, or otherwise
materially adversely affecting any of Master Developer’s, Developer Affiliates’ or other
Landowners’ Vested Property Rights set forth in the Development Plan. Provisions of the
Design Review Guidelines which are more restrictive than either the Development Plan or the
Municipal Code shall prevail in any instance where there is a conflict. The interpretation,
priority and application of this PUD Guide in relationship to the Municipal Code shall be
governed by [Section 2.6(b)] of the Development Agreement.
7. Expiration of Vested Property Rights Term. Upon and after expiration of the
term of the Vested Property Rights pursuant to [Section 1.4] of the Development Agreement, this
PUD guide and any amendments thereto shall continue to be the zoning for the Property,
provided that the Town shall have the authority, if any, to amend this PUD guide without the
consent of the Master Developer or any other owner of the Property, or any portion thereof, in
accordance with applicable law.
B. TOTAL PERMITTED DENSITY. The total permitted density for The Village (at
Avon) PUD shall not exceed:
1. Planning Areas A, C, D, E, F, G, H, J, K, RMF 1 and RMF 2 shall not exceed:
(a) Commercial Uses.
950,000 consolidated Gross Square Footage of Commercial Space.
(b) Dwelling Units.
2,400 Dwelling Units. Five hundred of the 2,400 Dwelling Units shall be
constructed as affordable housing, pursuant to the Affordable Housing
Plan.
2. The permitted Commercial Use and Dwelling Unit densities within Planning
Area I shall be determined in the future pursuant to the formal amendment procedures set forth in
Section H of this PUD Guide, provided however that the permitted Commercial Space for
Planning Area I shall not be less than 196,970 consolidated Gross Square Footage (which shall
be in addition to the 950,000 square feet of permitted Commercial Space stated above in
Section B.1(a)) and that the permitted Dwelling Units shall not be less than 750 Dwelling Units.
The Town acknowledges that Planning Area I is entitled to be developed as mixed-use
development, and Uses may include Residential Uses, Commercial Uses, and public and
institutional uses at densities in addition to those set forth above as approved by the Town. Until
such time as a secondary access road is constructed, no non-Residential Uses shall be allowed
and the maximum density of Dwelling Units shall not exceed 280 Dwelling Units.
Exhibit A
999369.16 7
3. Density calculations, as applicable, for development of Dwelling Units within all
Planning Areas where Residential Uses are permitted shall be based on the gross acreage within
the applicable Planning Area as reflected in the land use table contained in the PUD Master Plan.
Density calculations shall be on a Planning Area by Planning Area basis rather than on a Final
Plat by Final Plat basis or on a Site by Site basis.
4. Subject to the requirement that the maximum number of Dwelling Units within
any particular Planning Area, as applicable, shall not exceed that permitted under the terms and
conditions of this PUD Guide, as applicable, the actual number of Dwelling Units per acre within
a particular Final Plat or Site within the affected Planning Area may exceed the maximum
number of Dwelling Units per acre based on the acreage within such Final Plat or Site. By way
of example, in a Planning Area containing 20 acres and subject to a maximum residential density
of 18 Dwelling Unit per acre (i.e., a total of 360 Dwelling Units), a 10 acre Site within that
Planning Area would be permitted to be developed with 300 Dwelling Units (i.e., 30 Dwelling
Units per acre) but the remaining 10 acres could be developed with no more than 60 Dwelling
Units, with the resulting density within such Planning Area in the aggregate being 18 Dwelling
Units per acre (i.e., (300 + 60 = 360 Dwelling Units) / 20 acres = 18 Dwelling Units per acre).
5. Density calculations for development of Residential Uses within Planning Areas
A through I, RMF 1 and RMF 2 shall exclude areas with slopes exceeding 40%.
6. At final build-out of the particular Planning Area, the following minimum and
maximum ratios of consolidated Gross Square Footage of Commercial Space and consolidated
Gross Square Footage of Residential Uses, stated as a percentage of the aggregate Gross Square
Footage the Planning Area [e.g., Gross Square Footage of Commercial Space ÷ (Gross Square
Footage of Commercial Space + consolidated Gross Square Footage of Residential Uses) =
percentage of Gross Square Footage of Commercial Space], shall apply within the following
Planning Areas:
Planning Area Residential Commercial
Min% Max% Min% Max%
Planning Area A 30% 80% 20% 70%
Planning Areas C and D 90% 100% 0% 10%
Planning Areas F, G. and H 0% 100% 0% 100%
7. Although classified as a Commercial Use, Accommodations Units (including
those within Bed and Breakfasts, Extended Stay Hotels, Hotel, Motel and Lodge, Temporally
Divided Dwelling Units, Vacation Homes and similar Commercial Uses) are considered
Dwelling Units for purposes of Dwelling Unit calculation and tracking and are considered
Residential Uses for purposes of Section B.6.
8. In calculating the number of Dwelling Units within The Village (at Avon):
(a) Each Single-family Dwelling shall be counted as one (1) Dwelling Unit.
Exhibit A
999369.16 8
(b) Each Duplex Dwelling shall be counted as two (2) Dwelling Units.
(c) Each Multi-family Dwelling shall be counted as one (1) Dwelling Unit.
(d) Each Accommodation Unit within a Hotel, Motel and Lodge shall be
counted as one-third (1/3) of a Dwelling Unit.
(e) Each Primary/Secondary Structure or Structures situated on the same Lot
shall be counted as one (1) Dwelling Unit.
(f) Each guest bedroom within a Bed and Breakfast shall be counted one-third
(1/3) of a Dwelling Unit.
(g) Temporally Divided Dwelling shall be counted as one (1) Dwelling Unit.
(h) Vacation Club shall be counted as one (1) Dwelling Unit.
(i) Group Home shall be counted as one (1) Dwelling Unit.
9. The President of the Design Review Board shall submit a Dwelling Unit and
Commercial Space report to the Town along with its certificate of Design Review Board
approval for each development proposal approved by the Design Review Board. This report
shall be a detailed statement by Planning Area of the number of Dwelling Units and amount of
Gross Square Footage of Commercial Space within The Village (at Avon) to ensure that the total
permitted density for The Village (at Avon) PUD is not exceeded.
10. Commercial Space is any Building which is intended to be used, rented or leased
for a Commercial Use, except as expressly excepted in Sections B.10(a) and B.10(b) below.
(a) The following Uses shall not considered Commercial Space:
(i) Lodging Uses, including without limitation, Bed and Breakfast,
Hotel, Motel and Lodge, Accommodation Units, Extended Stay Hotel, Temporally
Divided Dwelling and Vacation Club;
(ii) Residential Uses;
(iii) Group Home;
(iv) Short term rentals;
(v) Employee housing;
(vi) Hospitals, long-term care facilities and other medical facilities
including, but not limited to clinics, group and congregate care facilities, independent and
assisted living facilities and nursing homes; and
(vii) Uses which the Director determines to be similar.
Exhibit A
999369.16 9
(b) For purposes of calculating the total amount (in square feet) of
Commercial Space permitted pursuant to this PUD Guide, Commercial Space shall be Gross
Square Footage that is available for leasing to a tenant, with the following additional
qualifications:
(i) The following types of facilities operated for public activities shall
not constitute Commercial Space: (1) schools, and (2) except to the extent such facilities
exceed an aggregate of 200,000 consolidated Gross Square Footage, unless the Town has
consented to construction of such excess Gross Square Footage, Religious Facilities,
skating arenas, cultural and community centers and facilities, and recreational centers and
facilities.
(ii) In office and retail Buildings, hallways, lobby and reception areas,
stairwells, elevator areas, landings and entranceways, mechanical areas, public restrooms,
permanently designated corridors, public lobbies, and common mall areas shall not
constitute Commercial Space for purposes of calculating the total amount (in square feet)
of Commercial Space permitted pursuant to this PUD Guide unless actually leased to an
individual tenant.
(iii) In Lodging Uses, hallways, lobby and reception areas, stairwells,
elevator areas, public restrooms, permanently designated corridors, landings,
entranceways, meeting and banquet rooms and facilities, sundries shops, breakfast shops
and other shops intended to cater primarily to Lodging Uses guests shall not constitute
Commercial Space for purposes of calculating the total amount (in square feet) of
Commercial Space permitted pursuant to this PUD Guide, but retail areas intended to
cater primarily to non-Lodging Use guests and full-service Restaurants shall constitute
Commercial Space for such purposes.
(iv) In any Building, parking areas and Parking Structures shall not
constitute Commercial Space for purposes of calculating the total amount (in square feet)
of Commercial Space permitted pursuant to this PUD Guide.
C. GENERAL LAND USE DESIGNATIONS.
1. Designations. The following list identifies Planning Areas within The Village (at
Avon) PUD and their respective general land use designations:
(a) Planning Area A: Village Center Mixed-Use Projects
(b) Planning Area B: Community Facilities
(c) Planning Areas C and D: Village Residential Mixed-Use Projects
(d) Planning Area E: School
(e) Planning Areas F, G, H and I: Regional Commercial Mixed Use
Projects
Exhibit A
999369.16 10
(f) Planning Area J: Regional/Neighborhood Commercial and Residential
Mixed Use Projects
(g) Planning Area K: Hillside Residential
(h) Planning Areas RMF-1 and RMF-2: Multi-Family Residential
(i) Planning Areas OS1 through OS7, inclusive: Natural Open Space
(j) Planning Areas P1 through P3, inclusive: Parkland
(k) Planning Areas PF-1 through PF-3, inclusive: Public Facilities
2. Permitted Uses. Notwithstanding the generality of the foregoing land use
designations, Uses and Use Categories permitted within each Planning Area are set forth in
Section D (Development Standards), Section F (Temporary Uses and Structures) and Section I
(Supplemental Regulations) of this PUD Guide, and certain of such Uses and Use Categories are
defined in Exhibit H of this PUD Guide.
D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD.
1. General.
(a) The following Development Standards shall govern development of the
referenced Planning Areas. Uses permitted within The Village (at Avon) include all Use
Categories and all Uses within each Use Category, together with Accessory Uses, Primary
Structures and Accessory Structures relating to such Uses. Within each individual Planning
Area, such Uses are designated as Uses by Right, Special Review Uses or Prohibited Uses. A
Use by Right within a particular Planning Area includes all Uses within the specified Use
Category except to the extent specifically designated as a Special Review Use or a Prohibited
Use.
(b) Where particular Uses within a Use Category are listed as Uses by Right
within a particular Planning Area and the Use Category also is listed as a Use by Right, such
particularly listed Uses shall be construed as examples and clarifications of the Use Category and
not as limitations on other Uses within the Use Category being developed as Uses by Right.
Where particular Uses within a Use Category are listed as Uses by Right with a particular
Planning Area but the Use Category is not listed as a Use by Right, then such particularly listed
Uses shall be construed as Uses by Right that are exceptions to the Use Category and the
remainder of Uses with the Use Category shall be interpreted to not be Use(s) by Right.
(c) Temporary Uses may be permitted in The Village (at Avon) in accordance
with the Development Code, even though such Uses otherwise may be within a Use Category
that is not permitted within the applicable Planning Area.
(d) Uses not identified as a Use by Right, Special Review Use, Temporary
Use or Interim Use shall be a Prohibited Use unless determined by the Director that the proposed
use is substantially similar to a Use by Right, Special Review Use, Temporary Use, or Interim
Exhibit A
999369.16 11
Use. The listing of Prohibited Uses for each Planning Area is not exhaustive and shall not limit
the interpretation of Uses by Right, Special Review Uses, Temporary Uses or Interim Uses stated
in the preceding sentence.
(e) In all Planning Areas, Architectural Projections may project ten (10) feet
or less beyond the applicable Building Envelope with the prior written consent of the Design
Review Board. Architectural Projections may project greater than ten (10) feet beyond the
applicable Building Envelope with the prior written consent of the Design Review Board and the
Town.
2. Planning Area A - Village Center Mixed Use Project.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.2(b) below or specifically prohibited in Section D.2(c) below, the following
Primary Uses and Accessory Uses:
(i) Commercial Uses; provided, however, no single retail business
shall occupy more than 65,000 of consolidated Gross Square Footage.
(ii) Animal Boarding (excluding outdoor Animal Boarding) as an
Accessory Use to another Commercial Use only, and subject to review and written
approval by the Design Review Board authorizing such Use.
(iii) Kennels (excluding outdoor Kennels) as an Accessory Use to
another Commercial Use only, and subject to review and written approval by the Design
Review Board authorizing such Use.
(iv) Convenience Retail (without fuel).
(v) Restaurants (without drive-through window service).
(vi) Financial institutions (without drive-through window service).
(vii) Residential Uses.
(viii) Mixed Use Projects; provided, however, (a) no Uses specifically
prohibited in Section D.2(c) below shall be included in such Mixed Use Project, and
(b) no Uses specifically identified as Special Review Uses in Section D.2(b) below shall
be included except pursuant to the review and approval processes set forth in Section E
below.
(ix) Educational facilities including, but not limited to public and
private schools, universities, and colleges.
(x) Cabled Telecommunications Equipment, Cabled
Telecommunications Facilities and Cabled Telecommunications Services.
Exhibit A
999369.16 12
(xi) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(xii) Dry Utilities.
(xiii) Infrastructure.
(xiv) Indoor recreation and/or entertainment facilities.
(xv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xvi) Parks and Open Space.
(xvii) Tramways, gondolas and lifts.
(xviii) Outdoor Storage, only as an Accessory Use to a retail Use.
(xix) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xx) Agricultural Use (as an Interim Use only).
(xxi) Rodeo and ancillary carnival (as an Interim Use only).
(xxii) Recycling Facility (as an Interim Use only).
(xxiii) Snow storage (as an Interim Use only).
(xxiv) Mobile Home office/storage Use and community garden (as an
Interim Use only).
(xxv) Driving course and accessory hospitality services related to
automobile demonstrations, promotions and sales, not to exceed 10 days in the aggregate
in a calendar year (as an Interim Use), provided that such Use exceeding 10 days in the
aggregate in a calendar year shall be a Temporary Use.
(xxvi) Additional Uses which the Director determines to be similar to
uses by right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Single retail businesses occupying more than 65,000 of
consolidated Gross Square Footage.
(ii) Automobile Repair Shop (Minor).
Exhibit A
999369.16 13
(iii) Outdoor entertainment facilities that include the use of amplified
music.
(iv) Heliport, only as an Accessory Use to a Hospital or other medical
facility, including but not limited to a clinic.
(v) Hotel Uses (including without limitation, hotel Uses comprising a
portion of a Mixed Use Project) which exceed 80 feet in Building Height.
(vi) Car wash.
(vii) Drive-in Uses.
(viii) Religious Facility.
(ix) Service Station (for the sale of only electric form of fuel for
motorized vehicles).
(x) Restaurants (with drive-through window service).
(xi) Financial institutions (with drive-through window service).
(xii) Recycling Facilities (except as permitted in Section D.2(a) above).
(xiii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Animal Boarding (outdoor).
(ii) Automobile Repair Shop (Major).
(iii) Family Child Care Home.
(iv) Group Home.
(v) Industrial Uses.
(vi) Kennels (outdoor).
(vii) Mobile Homes.
(viii) Medical Marijuana Businesses.
(ix) Nude Entertainment Establishments.
(x) Outdoor Storage (except as expressly allowed as a Use by Right in
Section D.2(a)).
Exhibit A
999369.16 14
(xi) Recycling Processing Facility.
(xii) Service Station (except as specifically identified as a Special
Review Use in Section D.2(b)).
(xiii) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Southerly and Westerly boundaries of Planning Area A: 20
feet.
(2) All others: None, except as may be necessary to
accommodate utilities, drainage, access, fire and building code regulations and the
flood plain of live streams.
(ii) Maximum Building Height:
(1) Portions of Planning Area A located less than 250 feet from
the southerly boundary of Planning Area A: 55 feet.
(2) Portions of Planning Area A located 250 or more feet from
the southerly boundary of Planning Area A: 80 feet, provided that hotel Uses
(including without limitation, hotel Uses comprising a portion of a Mixed Use
Project) exceeding 80 feet shall be permitted up to a maximum Building Height of
135 feet as a Special Review Use as specifically identified in Section D.2(b).
(iii) Maximum Site Coverage:
(1) Portions of Planning Area A located less than 250 feet from
the southerly boundary of Planning Area A: 80%
(2) Portions of Planning Area A located 250 or more feet from
the southerly boundary of Planning Area A: 100%
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 25 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
Exhibit A
999369.16 15
3. Planning Area B - Community Facilities.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.3(b) below or specifically prohibited in Section D.3(c) below, the following
Primary Uses and Accessory Uses:
(i) Parks and Open Space.
(ii) Community Facilities and related amenities as may be mutually
approved by the Town and the Design Review Board.
(iii) Agricultural Use (as an Interim Use only).
(iv) Infrastructure.
(v) Dry Utilities.
(vi) Snow storage (as an Interim Use only).
(vii) Water storage and water resource management facilities.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Outdoor entertainment facilities that include the use of amplified
music.
(c) Prohibited Uses:
(i) Commercial Uses.
(ii) Residential Uses.
(iii) Industrial Uses.
(iv) Mixed Use Projects (except as specifically included as a Use By
Right in Section D.3(a) above).
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks: 25 feet from the adjacent road
right-of-way. 20 feet from property line abutting Planning Area A. None from property
line abutting Main Street. There shall be no other setback requirements except as may be
necessary to accommodate utilities, drainage, access, fire and building code regulations
and flood plain of live streams.
(ii) Maximum Building Height: 60 feet.
(iii) Maximum Site Coverage: 20%
Exhibit A
999369.16 16
(iv) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations, and as
provided therein, parking requirements may be satisfied by provision of off-site parking,
including without limitation, off-site shared parking, in accordance with the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
4. Planning Areas C and D - Village Residential Mixed Use Projects.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.4(b) below or specifically prohibited in Section D.4(c) below, the following
Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Commercial Uses; provided, however, no single retail business
shall occupy more than 5,000 of consolidated Gross Square Footage.
(iii) Agricultural Use (as an Interim Use only).
(iv) Community Facilities.
(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(vi) Mixed Use Projects (provided, however, no Uses specifically
prohibited in Section D.4(c) below shall be included in such Mixed Use Project, and no
Uses specifically identified as Special Review Uses in Section D.4(b) below shall be
included except pursuant to the review and approval processes set forth in Section E
below).
(vii) Commercial Parking, Private Parking and Public Parking,
including but not limited to Parking Structures, Bus Stops, Bus Shelters, tramways,
gondolas and lifts.
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (subject to review and written
approval of such Use by the Design Review Board).
(ix) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (subject to
review and written approval of such Use by the Design Review Board).
Exhibit A
999369.16 17
(x) Infrastructure.
(xi) Dry Utilities.
(xii) Indoor recreation and/or entertainment facilities.
(xiii) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xiv) Parks and Open Space.
(xv) Minor Home Occupations.
(xvi) Planning Area D Only:
(1) Recycling Facility and accessory trash facility (as an
Interim Use only).
(xvii) Accessory Uses and Structures customarily appurtenant to the
foregoing Uses by Right.
(xviii) Additional Uses which the Director determines to be similar to the
foregoing Uses by Right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Single retail businesses occupying more than 5,000 of consolidated
Gross Square Footage.
(ii) Hospitals, Long-term Care Facilities and other medical facilities
including, but not limited to clinics, independent and assisted living facilities (including
cafeteria and food preparation areas), group and congregate care facilities and nursing
homes exceeding a Building Height of 48 feet, provided that any such Use shall be
located 250 or more feet from the southerly boundary of Planning Area D.
(iii) Heliport, only as an Accessory Use to a Hospital or other medical
facility, including but not limited to a clinic.
(iv) Churches, museums, libraries and public buildings.
(v) Outdoor Storage, only as an Accessory Use to a retail Use.
(vi) Car wash.
(vii) Drive-in Uses.
(viii) Religious Facility.
Exhibit A
999369.16 18
(ix) Convenience Retail (with fuel).
(x) Restaurants (with drive-through window service).
(xi) Financial institutions (with drive-through window service).
(xii) Major Home Occupations.
(xiii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(xiv) Within Planning Area C only:
(1) Mixed Use Projects (provided, however, no Uses
specifically prohibited in Section D.4(c) below shall be included in such Mixed
Use Project).
(2) Hotel, Motel and Lodge.
(xv) Within Planning Area D only in areas having frontage on Main
Street only:
(1) Automobile Repair Shops (Minor).
(2) Educational facilities including, but not limited to public
and private schools, universities, and colleges.
(3) Outdoor entertainment facilities that include the use of
amplified music (subject to review and written approval by the Design Review
Board authorizing such Use).
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
(ii) Animal Boarding (outdoor).
(iii) Industrial Uses.
(iv) Kennels (outdoor).
(v) Mobile Homes.
(vi) Medical Marijuana Businesses.
(vii) Nude Entertainment Establishments.
(viii) Outdoor Storage, except as specifically identified as a Special
Review Use in Section D.4(b).
Exhibit A
999369.16 19
(ix) Recycling Processing Center.
(x) Service Stations.
(xi) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Front: 25 feet
(2) Side: None
(3) Rear: 10 feet
(4) Southerly boundary of Planning Area D: 20 feet
(ii) Maximum Building Height:
(1) Hospitals, Long-term Care Facilities and other medical
facilities including, but not limited to clinics, independent and assisted living
facilities (including cafeteria and food preparation areas), group and congregate
care facilities and nursing homes: 80 feet, as specifically identified as a Special
Review Use in Section D.4(b).
(2) All other Uses: 48 feet.
(iii) Maximum Site Coverage: 80%
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 18 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
5. Planning Area E - School.
(a) Purpose: To mitigate the impact of the Residential Uses proposed for
development within The Village (at Avon) by providing land for school needs generated by the
Residential Uses proposed for development within The Village (at Avon) directly for the benefit
of the children of the Town as reasonably necessary to serve The Village (at Avon) and future
residents thereof.
Exhibit A
999369.16 20
(b) Uses by Right: The following Primary Uses and Accessory Uses:
(i) Educational uses, limited to use as a state [authorized] educational
facility serving grades K-12 (or any portion of such grades).
(ii) Agricultural Use (as an Interim Use only).
(iii) Subject to prior written approval from the Design Review Board
authorizing such Uses, the following education-related Uses:
(1) Child Care Facilities.
(2) Pre-school facilities.
(3) Community/adult educational facilities.
(4) Cultural and/or art classes.
(5) Recreational facilities.
(6) Museums.
(iv) Infrastructure.
(v) Dry Utilities.
(vi) Such other cultural/community service oriented Uses and facilities
as the Design Review Board may authorize in writing.
(c) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Front: 25 feet
(2) Side: 7.5 feet
(3) Rear: 10 feet
(ii) Maximum Building Height: 35 feet.
(iii) Maximum Site Coverage: 80%
(iv) Minimum Lot Area: Not applicable.
(d) Parking Requirements: As set forth in the Parking Regulations.
(e) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
Exhibit A
999369.16 21
(f) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.6(b) below or specifically prohibited in Section D.6(c) below, the following
Primary Uses and Accessory Uses:
(i) Commercial Uses.
(ii) Residential Uses.
(iii) Mixed Use Projects (provided, however, no Uses specifically
prohibited in Section D.6(c) below shall be included in such Mixed Use Project, and no
Uses specifically identified as Special Review Uses in Section D.6(b) below shall be
included except pursuant to the review and approval processes set forth in Section E
below).
(iv) Agricultural Uses (as an Interim Use only).
(v) Educational facilities including, but not limited to public and
private schools, universities, and colleges.
(vi) Community Facilities.
(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing being subject
to review and written approval of such Use by the Design Review Board).
(viii) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
foregoing being subject to review and written approval of such Use by the Design
Review Board).
(ix) Infrastructure.
(x) Dry Utilities.
(xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(xii) Churches, museums, libraries and public buildings.
(xiii) Indoor recreation and/or entertainment facilities that do not include
the use of amplified music.
(xiv) Outdoor entertainment facilities that include the use of amplified
music (subject to review and written approval of such Use by the Design Review Board).
Exhibit A
999369.16 22
(xv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xvi) Parks and Open Space.
(xvii) Child Care Center.
(xviii) Animal Boarding (excluding outdoor Animal Boarding), subject to
review and written approval by the Design Review Board authorizing such Use
(xix) Kennels (excluding outdoor Kennels), subject to review and
written approval by the Design Review Board authorizing such Use.
(xx) Construction staging (as an Interim Use only).
(xxi) Planning Areas F and I Only:
(1) Recycling Facility.
(2) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(xxii) Planning Area I Only:
(1) Pedestrian and vehicular bridges, bridge abutments and
improvements reasonably related thereto.
(2) Automobile Repair Shops (Major and Minor).
(3) Light Industrial Uses.
(xxiii) Additional Uses which the Director determines to be similar to the
foregoing Uses by Right.
(xxiv) Accessory Uses and Structures customarily appurtenant to the
foregoing Uses by Right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Service Station.
(ii) Animal Boarding (outdoor), subject to review and written approval
by the Design Review Board authorizing such Use
(iii) Kennels (outdoor), subject to review and written approval by the
Design Review Board authorizing such Use.
Exhibit A
999369.16 23
(iv) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(v) Planning Areas G and H Only:
(1) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic (subject to review and written
approval by the Design Review Board authorizing such Use).
(vi) Planning Areas F, G and H Only:
(1) Animal Boarding (outdoor).
(2) Kennels (outdoor).
(vii) Planning Area I Only:
(1) Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) which exceed 48 feet in Building
Height.
(c) Prohibited Uses:
(i) Heavy Industrial Uses.
(ii) Medical Marijuana Businesses.
(iii) Nude Entertainment Establishments.
(iv) Planning Areas F, G and H Only:
(1) Automobile Repair Shops (Major).
(2) Family Child Care Home.
(3) Group Home.
(4) Mobile Homes.
(5) Recycling Processing Center.
(6) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Commercial Uses:
Exhibit A
999369.16 24
a. Front: 25 feet
b. Side: None
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(2) Industrial and Residential Uses:
a. Front: 25 feet
b. Side: 7.5 feet.
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(3) Vertically-integrated Mixed Use Projects:
a. Front: 25 feet
b. Side: None
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(ii) Maximum Building Height:
(1) Commercial Uses:
a. Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) exceeding 48 feet shall be
permitted up to a maximum Building Height of 135 feet as specifically
identified as a Special Review Use in Section D.6(b).
b. Hospitals, Long-term Care Facilities and other
medical facilities including, but not limited to clinics, independent and
assisted living facilities (including cafeteria and food preparation areas),
group and congregate care facilities and nursing homes: 80 feet.
c. All other Commercial Uses: 48 feet.
(2) Industrial Uses: 48 feet.
Exhibit A
999369.16 25
(3) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(4) Vertically-integrated Mixed Use Projects (except as set
forth in Section D.6(d)(ii)(1) with respect to hotels comprising a portion of a Mixed
Use Project): 48 feet.
(iii) Maximum Site Coverage: 80%.
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Areas F, G and H: 18 Dwelling Units per acre.
(ii) Planning Area I: 15 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
7. Planning Area J – Regional/Neighborhood Commercial and Residential
Mixed Use Projects.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.7(b) below or specifically prohibited in Section D.7(c) below, the following
Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Commercial Uses.
(iii) Mixed Used Projects; provided, however, (a) no Uses specifically
prohibited in Section D.7(c) below shall be included in such Mixed Use Project, and
(b) no Uses specifically identified as Special Review Uses in Section D.7(b) below shall
be included except pursuant to the review and approval processes set forth in Section E
below.
(iv) Automobile Repair Shops (Minor).
(v) Community Facilities.
Exhibit A
999369.16 26
(vi) Agricultural Use (as an Interim Use only).
(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services.
(viii) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(ix) Infrastructure.
(x) Dry Utilities.
(xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(xii) Recreational facilities.
(xiii) Parks and Open Space.
(xiv) Additional uses which the Director determines to be similar to
Uses by right.
(xv) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Churches, museums, libraries and public buildings.
(ii) Child Care Center.
(iii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
(ii) Medical Marijuana Businesses.
(iii) Nude Entertainment Establishments.
(iv) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Building Setback Requirements:
(1) Residential Uses:
Exhibit A
999369.16 27
a. Front: 20 feet (except as provided below).
b. Side: 10 feet (except as provided below).
c. Rear: 10 feet (except as provided below).
(2) Commercial Uses:
a. Front: 20 feet (except as provided below).
b. Side: None (except as provided below).
c. Rear: 10 feet (except as provided below).
(3) Notwithstanding the foregoing, the minimum Building
Setback abutting the Interstate 70 right-of-way shall be 20 feet.
(ii) Maximum Building Height:
(1) Commercial (excepting Hotel, Motel and Lodge Uses) and
Light Industrial Uses: 48 feet.
(2) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(3) Vertically-integrated Mixed Use Projects: 48 feet.
(4) Hotel, Motel and Lodge Uses: 55 feet.
(iii) Maximum Site Coverage: 80%
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 18 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
8. Planning Area K - Hillside Residential.
Exhibit A
999369.16 28
(a) Uses by Right: Except as specifically prohibited in Section D.8(b) below,
the following Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Agricultural Use (as an Interim Use only).
(iii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing subject to
review and written approval of such Use by the Design Review Board).
(iv) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
foregoing subject to review and written approval of such Use by the Design Review
Board).
(v) Infrastructure.
(vi) Dry Utilities.
(vii) Recreational facilities.
(viii) Parks and Open Space.
(ix) Public Facilities.
(x) Community Facilities.
(xi) Homeowner association facilities including, but not limited to, a
caretaker unit (as a Secondary Structure), clubhouse and restaurant, community meeting
facilities, recreational facilities, and other similar facilities and amenities.
(xii) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xiii) Additional uses which the Director determines to be similar to
Uses by Right.
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Commercial Uses.
(ii) Industrial Uses.
Exhibit A
999369.16 29
(d) Building Envelope Requirements: The layout, location, size and number
of Lots within Planning Area K as depicted on the PUD Master Plan are conceptual, non-binding
and provided only for illustrative purposes only. The precise layout, location, size and number
of Lots and the precise location of the Building Envelope for each Lot within Planning Area K
will be as established by and reflected in the Final Plat creating the Lot, and shall be based on
various site specific features of the Lot such as the topography, grade, natural vegetation and
similar matters, but shall generally comply with the following requirements unless such
compliance is determined to be impractical or unreasonable.
(i) Minimum Building Setbacks:
(1) Front: 25 feet (except as set forth below).
(2) Side: 20 feet (except as set forth below).
(3) Rear: 20 feet (except as set forth below).
(4) For conceptual Lot 1 (as depicted on the PUD Master
Plan): 20 feet from the property line, except as otherwise required to accommodate
utilities, drainage, access, fire and building code regulations, and the flood plain of
live streams.
(ii) Maximum Building Height:
(1) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(2) Homeowner association amenities and Community
Facilities: 35 feet.
(iii) Maximum Site Coverage:
(1) Single-Family Residential Uses: the lesser of (a) 1 acre of
the applicable Lot; or (b) 80% of the applicable Lot, provided that the final Site
coverage shall be the Building Envelope for each Lot on the Final Plat creating the
applicable Lot, provided further that, in any event, such Building Envelope shall
comply with the requirements of this Section.
(2) All other Uses: the final Site coverage shall be the
Building Envelope for each Lot on the Final Plat creating the applicable Lot,
provided further that, in any event, such Building Envelope shall comply with the
requirements of this Section.
(iv) Minimum Lot Area: 1 acre.
Exhibit A
999369.16 30
(e) Residential Density Maximum: Building permits may be issued for no
more than 280 Dwelling Units in the aggregate for Planning Area K and Planning Area RMF-1
(provided that Primary/Secondary Dwelling Units situated on the same Lot in Planning Area K
or the same Lot in Planning Area RMF-1 shall be considered one Dwelling Unit).
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family.
(a) Uses By Right: The following Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Community Facilities.
(iii) Agricultural Use (as an Interim Use only).
(iv) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(v) Infrastructure.
(vi) Dry Utilities.
(vii) Recreational facilities.
(viii) Temporary real estate offices and construction offices.
(ix) Residential management office.
(x) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xi) Additional uses which the Director determines to be similar to
Uses by Right.
(xii) Planning Area RMF-2 Only:
(1) Pedestrian bridges.
(b) Special Review Uses:
Exhibit A
999369.16 31
(i) Preschool, nursery school, in-home child care, and Child Care
Center.
(ii) Group Home.
(iii) Commercial Parking, Private Parking and Public Parking.
(iv) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(v) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing subject to
review and written approval of such Use by the Design Review Board).
(vi) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
foregoing subject to review and written approval of such Use by the Design Review
Board).
(vii) Planning area RMF-1 Only:
(1) Rock and gravel crushing operations related to rock and
gravel materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Commercial Uses (except as specifically included in
Sections D.9(a) or D.9(b)).
(ii) Industrial Uses.
(iii) Mobile Homes.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: 20 feet from Interstate-70 right-
of-way, provided there shall be no other setback requirements except as may be necessary
to accommodate utility improvements, lines and mains, facilities, services and buildings.
(1) Front: 20 feet.
(2) Side: 10 feet.
(3) Rear: 10 feet.
(ii) Maximum Building Height:
(1) Single-family Dwellings and Duplex Dwellings: 35 feet.
(2) Multi-family Dwellings: 48 feet.
Exhibit A
999369.16 32
(3) Commercial: 48 feet.
(iii) Maximum Site Coverage: 80%.
(iv) Minimum Landscaped Area: 20%.
(v) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Area RMF-2: 12 Dwelling Units per acre.
(ii) Planning Area RMF-1: 6 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
10. Planning Areas P1-P3: Parkland.
(a) Uses By Right: Except as specifically prohibited in Section D.10(b)
below, the following Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Community Facilities (subject to review and written approval of
such Uses by the Design Review Board).
(iii) Equestrian, pedestrian and bicycle trails.
(iv) Landscape improvements.
(v) Indoor and outdoor, sports, training and recreation facilities.
(vi) Lakes, ponds, reservoirs and irrigation ditches.
(vii) Parks, picnic facilities and temporary entertainment for special
events.
(viii) Open Space
(ix) Infrastructure.
(x) Dry Utilities.
Exhibit A
999369.16 33
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Residential Uses.
(ii) Commercial Uses.
(iii) Industrial Uses.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: No minimum except must be
sufficient to accommodate utilities, drainage, access, fire and building code regulations
and flood plain of live streams.
(ii) Maximum Building Height: 35 feet.
(iii) Maximum Site Coverage: Not applicable.
(iv) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
11. Planning Areas OS1 – 0S7: Natural Open Space.
(a) Uses By Right: Except as specifically identified as Special Review Uses
in Section D.11(b) below or specifically prohibited in Section D.11(c) below, the following
Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Equestrian, pedestrian and bicycle trails.
(iii) Landscape improvements.
(iv) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services.
Exhibit A
999369.16 34
(v) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(vi) Infrastructure.
(vii) Dry Utilities.
(viii) Snow storage.
(ix) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings; provided,
however, such uses which are located in Planning Area OS6 shall be oriented on a
generally north-south axis.
(x) OS1 – 0S5 and OS7:
(1) Lakes, ponds, reservoirs and irrigation ditches.
(2) Park and picnic facilities and related parking.
(xi) OS5 and OS6 (subject to review and written approval of such Uses
by the Design Review Board):
(1) Community Facilities.
(2) Recreational Uses including public river access.
(3) Pedestrian and vehicular access, roads, bridges, bridge
abutments and improvements reasonably related thereto.
(xii) OS3:
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(ii) OS6 only: The following Uses shall be permitted pursuant to the
review and approval processes set forth in Section E below:
(1) Lakes, ponds, reservoirs and irrigation ditches.
(2) Park and picnic facilities and related parking (subject to
review and written approval of such Uses by the Design Review Board).
(c) Prohibited Uses: All Uses other than Uses by Right and Special Review
Uses specifically listed above.
Exhibit A
999369.16 35
(d) Building Envelope Requirements:
(i) Building Setback Requirement: Not applicable.
(ii) Maximum Building Height: Not applicable.
(iii) Maximum Site Coverage: Not applicable.
(iv) Minimum Lot Area: Not applicable.
(v) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
12. Planning Areas PF-1 – PF-3: Public Facility.
(a) Uses By Right: Except as specifically identified as Special Review Uses
in Section D.12(b) below or specifically prohibited in Section D.12(c) below, the following
Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Public Facilities.
(iii) Landscape improvements.
(iv) Infrastructure.
(v) Dry Utilities (subject to review and written approval of such Use
by the Design Review Board).
(vi) Within Tract E, Final Plat, The Village At Avon Filing 3 (Planning
Area PF-3), and Tract F, Final Plat, The Village At Avon Filing 3 as amended (Planning
Area PF-2), in accordance with and subject to the terms and conditions of Ordinance
No. 06-16:
(1) emergency services facilities such as ambulance, fire
protection; and
(2) similar uses and services as determined by the Director.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
Exhibit A
999369.16 36
(i) Lakes, ponds, reservoirs and irrigation ditches.
(ii) Park and picnic facilities and related parking.
(c) Prohibited Uses: All Uses other than Uses by Right and Special Review
Uses specifically listed above.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: Not applicable.
(ii) Maximum Building Height:
(1) Planning Area PF-1: 48 feet.
(2) Planning Areas PF-2 and PF-3: 35 feet.
(iii) Maximum Site Coverage: Not applicable.
(iv) Minimum Landscaped Area: 20%.
(v) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
E. SPECIAL REVIEW USE.
1. Special Review Use Permit.
(a) A Special Review Use shall require a special review use permit prior to
the issuance of a building permit or the commencement of the use identified as a Special Review
Use in the Development Standards.
(b) A Special Review Use shall not be considered a Use by Right without
review and approval, as set forth in Section E.2 below, nor shall a Special Review Use be
permitted unless the Design Review Board approves a development plan for the applicable Site.
(c) The procedural and substantive requirements set forth in this Section E
constitute the sole and exclusive special review use regulations applicable within The Village (at
Avon) PUD and expressly supersede any additional or conflicting provisions of the Municipal
Code.
Exhibit A
999369.16 37
2. Application Filing and Processing.
(a) An Application with required materials (see Section E.3 below) shall be
filed with Community Development. Only complete submittals shall be accepted.
(b) Staff shall review the Application in accordance with the criteria
established in this section and present the Application at a public hearing before the Planning and
Zoning Commission in accordance with Section 7.16.020(e) of the Development Code, as
amended.
(c) Developments and uses granted by special review use permit shall be
developed or established in accordance with the timeframe provided in the approved special
review use permit, or within two years of the date of approval if the timeframe is not established
in the approved special review use permit. Subject to extension in accordance with
Section E.5(b) below, failure to develop or establish such development or Uses in accordance
with the timeframe established on the permit (or two years from the date of approval if no
timeframe is established on the permit) shall result in the expiration of the permit.
(d) A special review use permit is valid as long as conditions of approval are
maintained by the Applicant, unless a specific time limit for the use is set forth as part of the
approval. Subject to extension in accordance with Section E.5(b) below, if an approved Use
ceases operation for any reason for a period of one year, the special review use permit shall be
deemed expired.
(e) If the conditions of a permit become the responsibility of a person or
entity other than the Applicant, Community Development shall be notified in writing, identifying
the new person or entity responsible for maintaining the conditions of the approval/permit. Until
such notice is received, the Applicant shall remain responsible. Such notice shall be attached to
the permit on file at Community Development.
(f) If conditions of approval are not maintained, it shall be considered a
violation of the Development Plan and the special review use permit shall be subject to
revocation proceedings in accordance with the applicable provisions of the Municipal Code, the
Design Review Guidelines and the Design Covenant.
3. Submittal Requirements for Special Review Use. Only complete submittals
shall be accepted. No Application shall be deemed complete unless the Applicant has submitted
to Community Development any or all of the following materials which are, in the opinion of the
Director, relevant to the particular permit being requested:
(a) A complete special review use permit Application and required fee;
(b) A legal description of the parcel;
(c) A site plan showing proposed Uses and structures on the property;
(d) Scaled elevations and/or perspective drawings of any proposed structures;
Exhibit A
999369.16 38
(e) A proposed development schedule indicating:
(i) Date of the beginning of the Use and/or construction;
(ii) Phases in which the project may be developed and the anticipated
rate of development;
(iii) The anticipated date of completion of the project;
(f) Any agreements, provisions or covenants to be recorded;
(g) Restoration or reclamation plans shall be required for all Uses requiring
extensive grading, for extractive Uses, and may be required for other Uses as necessary;
(h) A statement regarding any provisions for proper ongoing maintenance of
the Use and site;
(i) Any additional materials, which, in the opinion of the Director, are
necessary to adequately review the Application.
4. Criteria for Review, Recommendation, and Approval of Special Review Uses.
The staff and the planning and zoning commission shall consider the following criteria when
evaluating an Application for a special review use permit:
(a) Whether the proposed Use otherwise complies with all requirements
imposed by the Development Plan;
(b) Whether the proposed Use is compatible with adjacent uses. Such
compatibility may be expressed in appearance, architectural scale and features, site design, and
the control of any adverse impacts including noise, dust, odor, lighting, traffic, safety and other
similar Development Standards;
(c) Any significant adverse impacts (including but not limited to, hours of
operation, traffic generation, lighting, noise, odor, dust, and other external impacts) anticipated to
result from the use shall be mitigated or offset to the maximum extent practicable; and
(d) Facilities and services (including sewage and waste disposal, water, gas,
electricity, police and fire protection and roads and transportation, as applicable) shall be
available to serve the subject property while maintaining adequate levels of service for existing
development.
5. Amendments to Special Review Use Permit.
(a) No approved Special Review Use may be modified, structurally enlarged
or expanded in ground area, unless such modification, enlargement or expansion receives the
prior approval of the Planning and Zoning Commission, which shall be obtained by repetition of
the granting procedures provided in this Section E or the Planning and Zoning Commission
expressly authorizes modifications, enlargement or expansions of the Special Review Use in the
Exhibit A
999369.16 39
prior approval of the Special Review Use. The Planning and Zoning Commission may authorize
administrative approval of modifications, enlargement and expansion of Special Review Uses
and may define a percentage or other parameter change to square footage of such Use, hours of
operation, traffic or other aspects of the approved Special Review Use.
(b) At least thirty (30) days prior to the expiration date of a special review use
permit due to cessation of an approved Special Review Use for any reason for a period of one
year, due to failure to develop or establish an approved Special Review Use in accordance with
the timeframe established on the permit (or two years from the date of such approval if no
timeframe is established on the permit) as provided for in Section E.2 above, or due to expiration
of a term established in the Special Review Use approval, an Applicant may request, in writing,
approval of an extension of such expiration date. The Director may administratively approve up
to a one-year extension of an approved Special Review Use. The Planning and Zoning
Commission may approve an extension of the Special Review Use for longer than one year in
accordance with the procedures and criteria for review established in this Section F.
F. TEMPORARY USES AND STRUCTURES. Temporary Uses and Structures shall be
allowed in accordance with the substantive and procedural requirements of the Development
Code, as amended from time to time; provided, however, no Temporary Use or Structure shall be
permitted unless the Design Review Board approves a development plan for the applicable Site
as evidenced by the issuance of a certificate of Design Review Board approval affixed to the
Application.
G. SUBDIVISION.
1. General.
(a) The procedural and substantive requirements set forth in this Section G
constitute the sole and exclusive subdivision regulations for Planning Areas A, B, C, D, E, F and
J (collectively, the “Administrative Subdivision Areas”) and expressly supersede any
additional or conflicting provisions of the Municipal Code with respect to such Planning Areas.
Subdivision within all Planning Areas excepting the Administrative Subdivision Areas shall be
in accordance with Section 7.16.070 of the Development Code, except as otherwise expressly set
forth in this Section G.
(b) Except as set forth in Subsection 1 below, subdivisions, subdivision
amendments and re-subdivisions within the Administrative Subdivision Areas (including without
limitation, any amendments to or re-subdivisions of Lot 1, Final Plat of The Village (at Avon)
Filing 1) shall require Final Plat review and approval only (no Preliminary Plan approval shall be
required), which review and approval shall be administrative with an administrative decision
rendered on such Final Plat by the Director.
(c) Notwithstanding any provision of this Section G, subdivision review and
approval shall not be required for any division of land within The Village (at Avon) for any of
the following:
(i) Creation of a lien, mortgage, deed of trust or any other security
instrument;
Exhibit A
999369.16 40
(ii) Creation of any interest in an investment entity;
(iii) Creation of cemetery lots;
(iv) Creation of an interest or interests in oil, gas, minerals or water that
are severed from the surface ownership of real property;
(v) Acquisition of an interest in land in the name of a husband or wife
or other persons in joint tenancy, or as tenants in common of such interest, and any
interest in common owned in joint tenancy shall be considered a single interest;
(vi) Dedication of land for right-of-way or other public use, or
conveyances relating to the vacation of land designated for public use;
(vii) Correction of a legal description in a prior conveyance;
(viii) Any transfer by operation of law or bequest;
(ix) Lease of property (granting of leasehold interests) for any period of
time;
(x) Division of land created by the foreclosure, or provision of deed-
in-lieu of foreclosure, of a lien, mortgage, deed of trust or any other security instrument.
2. Final Plat.
(a) Application Filing and Processing.
(i) An Application with required materials (see Subsection (b) below)
shall be filed with Community Development. Only complete submittals shall be
accepted.
(ii) Subject to Subsection 1 below, staff and the Director shall review
the application in accordance with the criteria established in this section and the Director
shall administratively render a decision on the Final Plat in accordance with the criteria
for review and approval of this section. Public hearings shall not be required except as
may be requested by the Applicant.
(iii) As set forth in Section I.8 of this PUD Guide, requested variances
and/or alternative equivalent compliance approvals shall be considered by the Town.
(iv) Except as set forth in Subsection 1 below, the sole public notice
requirement applicable to the processing and approval of Final Plats within The Village
(at Avon) shall be the provision of posted notice by the Town in the designated official
places of posting by the Town and mailed notice by the Town (at the expense of the
Applicant) by first-class mail to all real property owners within 300 feet of the property
which is the subject of the applicable Final Plat Application, as measured from the
boundary of the subject property. Notice shall be posted, and mailed notice shall be
Exhibit A
999369.16 41
postmarked, at least 11 days prior to the Director rendering a decision on the Final Plat
Application. The content of the posted and mailed notice shall include those matters set
forth in Section 7.16.020(d)(3) of the Development Code.
(v) Prior to the Director rendering a decision to reject or deny a Final
Plat Application, the Director shall give the Applicant prior written notice of the
Director’s intent to reject or deny such Application, which notice shall include a good
faith detailed accounting of the reasons for such intended rejection or denial and
proposed recommendation(s) for satisfactorily addressing such deficiencies, and the
Applicant shall have an opportunity to amend such Application prior to the Director
finally rejecting or denying the Final Plat.
(vi) The Director shall render a decision on the Final Plat Application
and the Town shall post such decision in the same manner as the posting of Town
ordinances. The Director’s decision on the Final Plat Application may be appealed by a
party with standing to the Town Council pursuant to Section 7.16.160 of the
Development Code. The date of the Director’s decision shall be the final approval date
for purposes of any appeal of or legal challenge to such decision.
(vii) The approved Final Plat shall be recorded within 90 days from the
date of approval, unless a later time is set forth in the Director’s approval. If the Final
Plat is not recorded in such timeframe, the approval shall be deemed voidable in the
discretion of the Director. If the Director gives written notice that the Final Plat is void
pursuant to this section, such Final Plat shall not thereafter be recorded; provided that if a
fully executed and, as applicable, notarized, Final Plat is recorded after 90 days from the
date of approval (after any such later deadline for recordation as may be set forth in the
Director’s approval), such recordation shall be conclusive evidence that the Final Plat is
not void and is in full force and effect.
(b) Application Submittal Items. Only complete submittals shall be accepted.
No Application shall be deemed complete unless the Applicant has submitted to Community
Development any or all of the following materials which are, in the opinion of the Director,
relevant to the particular Final Plat Application:
(i) A complete Final Plat application and required fee;
(ii) A legal description of the parcel;
(iii) Title commitment;
(iv) Survey plat;
(v) SFE water allocation assigned to the property, as applicable;
(vi) Utility approval and verification form;
(vii) Final plat;
Exhibit A
999369.16 42
(viii) Public Improvements Agreement, as applicable;
(ix) Transportation impact study;
(x) Drainage study; and
(xi) Street plan and profiles.
With respect to any submittal item, if the Applicant disagrees with the determination of the
Director with respect to the required substance or quality of such submittal item, the Town and
the Applicant shall jointly appoint a third party having experience in engineering and subdivision
matters to review the Application and decide upon the appropriateness of the required substance
and quality of such submittal item. Such third party’s determination as to the required substance
or quality of such submittal item shall be binding upon the Town and the Applicant.
(c) Criteria for Review and Approval. The Director shall consider the
following criteria when evaluating an Application for Final Plat approval:
(i) The proposed subdivision shall comply with all applicable Use,
density and dimensional standards set forth in the Development Plan that would affect the
layout of Lots, blocks and streets;
(ii) There are adequate public facilities for potable water supply,
sewage disposal (or if other methods of sewage disposal are proposed, adequate evidence
that such system shall comply with state and local laws and regulations), solid waste
removal, electrical supply, fire protection and streets;
(iii) The proposed road extensions are materially consistent with the
matters set forth in Subsection 1 below as depicted on the PUD Master Plan;
(iv) Appropriate utilities, including water, sewer, electric, gas and
telephone utilities, have provided “capacity to serve” letters for the proposed subdivision;
(v) Evidence that all areas of the proposed subdivision that may
involve soil or topographical conditions presenting hazards or requiring special
precautions have been identified by the applicant and that the proposed use of such areas
is compatible with such conditions or adequate mitigation is proposed;
(vi) The subdivision application addresses the responsibility for
maintaining all streets, open spaces, and other public and common facilities in the
proposed subdivision;
(vii) The legal descriptions of all Lots and other parcels within the
proposed subdivision close and contain the entirety of the area indicated;
(viii) The Final Plat is correct in accordance with surveying and platting
standards of the State of Colorado;
Exhibit A
999369.16 43
(ix) The Final Plat substantially complies with all generally applicable
technical standards adopted by the Town, except where (a) modified or superseded by
this PUD Guide; (b) alternative equivalent compliance has been granted as contemplated
in Section I.8; (c) a variance has been granted in accordance with the provisions of the
Development Code; or (d) otherwise waived by the Director; and
(x) The Final Plat does not result in any contiguous land in common
ownership (with the ownership of the land subject to the applicable Final Plat) of less
than 35 acres.
3. Material Modification to Certain Street Connections.
(a) If there is any express or implied conflict between the terms and
conditions of the Development Plan and the terms and conditions of the Transportation Master
Plan, the Development Plan shall control.
(b) If an Application for an Administrative Subdivision Area proposes an
elimination of one or more of the following street connections (the “Required Street
Connections”), the Director may, in the Director’s sole discretion, determine that such
Application shall not be subject to administrative approval and may direct that such Application
be submitted to Town Council for review and decision:
(i) Main Street connection to Chapel Place;
(ii) Main Street connection to Post Boulevard roundabout;
(iii) East Beaver Creek Boulevard connection at northern boundary of
Planning Area A to existing East Beaver Creek Boulevard adjacent to the Property;
(iv) East Beaver Creek Boulevard connection at Post Boulevard
connecting to Fawcett Road; and
(v) Connection from westernmost roundabout on Main Street to East
Beaver Creek Boulevard.
(c) For any Application for an Administrative Subdivision Area submitted to
Town Council pursuant to Section G.3(b), Town Council shall render a decision on the
Application after conducting a public hearing, and public notice of the Town Council hearing on
such Application shall be given in accordance with Section 7.16.020(d) of the Development
Code.
H. DEVELOPMENT PLAN AMENDMENT PROCEDURES.
1. General.
(a) Amendments to this PUD Guide may be processed by the Town either
formally or administratively, with the determination of the applicable procedure to be made in
strict compliance with the terms and conditions of this Section H.
Exhibit A
999369.16 44
(b) During the term of the Vested Property Rights, no amendment to or
variance from the terms of the Development Plan, and no application for rezoning of all or any
part of the property included within The Village (at Avon) PUD, shall be accepted for
processing, or approved or undertaken by the Town without the prior written consent of the
Master Developer.
(c) Any such amendment shall contain the statement required pursuant to
Section 7.16.140(d) of the Development Code, shall be processed and otherwise implemented in
compliance with the terms and conditions set forth in Section A.3 above, and shall create Vested
Property Rights for the duration of the term set forth in Section A.3 above. No such amendment
shall divest, limit or otherwise impair any Vested Property Right set forth in Section A.3 above.
(d) Prior to the Director or Council, as applicable, rendering a decision to
reject or deny an Application for an amendment to the Development Plan, the Director or
Council, as applicable, shall give the Applicant prior written notice of the Director’s, or
Council’s, as applicable, intent to reject or deny such Application, which notice shall include a
detailed accounting of the reasons for such intended rejection or denial and proposed
recommendation(s) for satisfactorily addressing such deficiencies, and the Applicant shall have
an opportunity within the timeframes afforded by the Development Code to amend such
Application prior to the Director or Council, as applicable, finally rejecting or denying the
Application.
2. Formal Amendments. Amendments to this PUD Guide which do not qualify for
the administrative amendment process described in Section H.3 below shall follow the formal
amendment process set forth in Section 7.16.060 of the Development Code, as amended, except
that the provisions of Section H.1 above shall apply to all formal amendments of this PUD
Guide. Nothing herein shall be deemed to prevent an Applicant from voluntarily choosing to
apply for a formal amendment, or from appealing to Council or the courts the Director’s
determination of eligibility for administrative amendment and/or denial of a request for an
administrative amendment.
3. Administrative Amendments.
(a) Intent; Determination of Applicable Amendment Procedure. The intent
of this Section H.3 is to provide a simplified amendment procedure for minor modifications to
this PUD Guide. As used herein, the term “minor modifications” means an Application meeting
the criteria stated Section H.3(b)(i) through H.3(b)(iv) below, which shall be processed as an
administrative amendment application, and an Application meeting the criteria stated in
Section H.3(b)(vi) below, which may be processed as an administrative amendment application
in the discretion of the Director.
(b) Qualifying Administrative Amendments. An Application for
administrative amendment that complies with (I) the specific criteria for approval set forth in
Sections H.3(b)(i) through H.3(b)(v) below, as applicable, shall be processed and approved
administratively, and shall be entitled to a presumption of compliance with the general criteria
for approval set forth in Section H.3(b)(vi) below; or (II) the general criteria for approval set
forth in Section H.3(b)(vi) below may be processed and approved administratively:
Exhibit A
999369.16 45
(i) Density Allowance. Provided the aggregate number of Dwelling
Units within Planning Areas A, C, D, F, G, H, J, K, RMF 1 and RMF 2 does not exceed
2,400, a ten percent (10%) increase in the number of Dwelling Units allowed within any
Planning Area stated herein.
(ii) Road Alignments. Changes to public or private street locations,
internal circulation design/pattern (including without limitation, the Required Street
Connections) or traffic capacity of the overall road network within the Property that may
require a confirming amendment to this PUD Guide shall be processed and approved
administratively.
(iii) Public Improvements. Amendments to the Development
Agreement, if any, that affect the scope of Public Improvements may require a
conforming administrative amendment to this PUD Guide, if the revision affects
Development Standards for a particular Site or Planning Area.
(iv) Subdivision Related Changes Affecting Development Plans. If
the Town approves any Preliminary Plan or Final Plat that incorporates any subdivision
related element that is inconsistent or conflicts with any Development Standard or other
element of this PUD Guide, including without limitation, any modifications to street
extension(s) and/or street alignment(s) as described in Section G.1 of this PUD Guide
(including without limitation, the Required Street Connections), any conforming
amendment to this PUD Guide that may be required shall be processed and approved
administratively. Examples of subdivision related elements that may require a
conforming amendment to this PUD Guide include, without limitation, lot line locations,
right-of-way locations, internal public or private roadway locations, emergency access
locations, utility locations, vacations, Planning Area boundaries, Building Envelope
locations and/or areas, and other similar elements. Such conforming amendments shall
apply only to the specific Lot(s) or Planning Area(s) affected by the Preliminary Plan or
Final Plat the approval of which necessitated the conforming amendment.
(v) Planning Area Boundaries and Lot Lines. With the written
consent of the Master Developer, an Applicant may amend the PUD Master Plan to
increase or decrease the size of any Planning Area to conform the PUD Master Plan to an
approved Final Plat or Application therefor that is being processed concurrently with
such PUD Master Plan amendment. In addition, with the consent of the Master
Developer, an Applicant may amend the PUD Master Plan to relocate or otherwise
modify Lot lines and Planning Area boundaries and locations due to site planning or
engineering considerations that are not directly associated with an approved or in-process
Final Plat or other Application. The foregoing PUD Master Plan amendments and any
other conforming amendments to this PUD Guide (to the extent that such modifications
are necessary or desirable in connection with such PUD Master Plan amendments) shall
be processed and approved administratively so long as the size of largest affected
Planning Area is not increased or decreased by more than 10 percent. [e.g., if Planning
Area X is 30 acres and Planning Area Y is 10 acres and abuts Planning Area X, Planning
Area X (being the larger of the two planning areas) may be increased by three acres (30
acres X 10% = 3 acres) and Planning Area Y may be decreased by the corresponding
Exhibit A
999369.16 46
three acres, and such amendment to the PUD Master Plan shall be administratively
approved.] The relocation of an entire Planning Area to another location within The
Village (at Avon) PUD shall follow the formal amendment process.
(vi) Compatible and Adequately Mitigated Modifications. In addition
to the specific criteria for approval set forth in Sections H.3(b)(i) through H.3(b)(v)
above, the Director may approve Applications that request modifications to Development
Standards which comply with the following general criteria for approval:
(1) are not materially incompatible with immediately adjacent
Uses; and
(2) are not fundamentally inconsistent with the Development
Standards set forth in this PUD Guide other than the specific Development
Standard addressed by the requested amendment; and
(3) incorporate measures which adequately address significant
impacts, if any, to immediately adjacent Uses.
(c) Procedure.
(i) Applicants must meet with the Director or his or her designated
representative prior to submittal of an administrative amendment request (unless waived
by the Director) in order to obtain input into the appropriateness of the request and the
materials required to be submitted with the request.
(ii) Upon a complete submittal of the required materials, the Director
shall determine, within fifteen (15) days after submittal of the request, the completeness
of the request and whether it qualifies to be processed administratively.
(iii) If the administrative amendment request complies with
Sections H.3(b)(i) through H.3(b)(vi) above, as applicable, it shall be processed
administratively and the Director is authorized to approve the request. If the request does
not comply with Sections H.3(b)(i)(b)(i) through H.3(b)(vi), as applicable, Section H.2
above shall apply to the request.
(iv) The Applicant may appeal any action or decision of the Director
with respect to an administrative amendment request to Council by filing a written
request for such appeal with the Town Clerk by not later than 5:00 p.m. on the 30th day
following the action or decision being appealed. Such appeal may request a review of the
Director’s determination of an Application’s eligibility for administrative processing
and/or the Director’s decision to deny or approve with conditions an administrative
amendment Application.
(v) Upon approval of an administrative amendment, the Applicant
shall submit to Community Development a revised PUD Guide, or applicable portion
thereof. Such revised documentation shall be signed by the Master Developer, the
Exhibit A
999369.16 47
owner(s) of record and the Director, will be kept on file at Community Development, and
shall be recorded in the real property records for the County of Eagle, State of Colorado.
4. Modifications Not Requiring Amendment.
(a) No amendment (formal or administrative) to the Development Plan, or
applicable component thereof, shall be required to modify the following Development Standards:
(i) Maximum and Minimum Development Standards. No
amendment shall be required for (x) reductions to density allowance, maximum Building
Height, square footage allowance and Site Coverage Development Standards, or
(y) increases to minimum Building Setback, Lot Area and parking requirements.
(ii) Planning Area K Building Envelopes. No PUD Guide
amendment shall be required with respect to the establishment of the final Building
Envelope of a Lot or Site within Planning Area K, it being the intent of this PUD Guide
that Building Envelopes within Planning Area K shall be established only pursuant to a
Final Plat as otherwise set forth in this PUD Guide.
(b) If a modification to this PUD Guide does not require an amendment
pursuant to this Section H.4, the Applicant shall submit to Community Development a revised
PUD Guide setting forth such modification. Such revised documentation shall be signed by the
Master Developer and the owner(s) of record, will be kept on file at Community Development,
and shall be recorded in the real property records for the County of Eagle, State of Colorado.
I. SUPPLEMENTAL REGULATIONS.
1. Interim Uses. Interim Uses shall be permitted within The Village (at Avon) PUD
as follows:
(a) The following Uses or structures, in existence from time to time prior to
development of the applicable portion of The Village (at Avon) PUD, shall be considered
approved Interim Uses without the requirement of further action, but subject to approval,
modification and/or termination as provided above in connection with Design Review Board
processing of applications therefor in accordance with the Design Review Guidelines and Design
Covenant:
(i) Agricultural Uses within undeveloped portions of The Village (at
Avon) PUD generally.
(ii) The rodeo and ancillary carnival use within Planning Area A to the
extent of such use for the last three years including a maximum 20% expansion of the
square footage of the existing rodeo area and related parking and expansion of seasonal
timeframe of operations (expansion in excess of 20% or expansion of hours of operation
shall require a Temporary Use permit).
(iii) Driving course and accessory hospitality services related to
automobile demonstrations, promotions and sales in Planning Area A, not to exceed 10
Exhibit A
999369.16 48
days in the aggregate in a calendar year, provided that such Use exceeding 10 days in the
aggregate in a calendar year shall require a Temporary Use permit.
(iv) Recycling Facility and trash drop-off within Planning Areas A and
D existing as of the Effective Date.
(v) Snow storage within undeveloped portions of The Village (at
Avon) PUD generally.
(vi) The Mobile Home office/storage Use existing as of the Effective
Date and community garden within Planning Area A.
(b) Agricultural and snow storage Uses (unless specifically designated as an
Prohibited Use within the applicable Planning Area) shall be permitted on undeveloped land
within all Planning Areas until such time as the Town approves an initial building permit
Application for construction of a Building on the applicable Site, provided that such Uses may
continue on the portion of the applicable Planning Area for which a building permit Application
has not been approved by the Town.
2. Solid Fuel Burning Devices. Development within The Village (at Avon) PUD
shall comply with Chapter 15.24, Solid Fuel Burning Devices, of the Municipal Code.
3. Signs. Signs shall be permitted in all Planning Areas within The Village (at
Avon) PUD provided they are in conformance with Design Review Guidelines, the terms and
requirements of which comprise the sole and exclusive sign regulations within the Village (at
Avon) PUD and expressly supersede any sign regulations set forth in the Municipal Code. All
signage and streetscape improvements, including any future modifications to built signage and
streetscape improvements, located within public rights-of-way within The Village (at Avon) shall
be in conformance with the Manual of Uniform Traffic Control Devices for Streets and
Highways. Except as otherwise provided in this Section I.2, the Design Review Board is the sole
and exclusive authority for approval of signs within The Village (at Avon) PUD. The Town has
approval authority with respect to confirming that signs and landscaping approved by the Design
Review Board in the public rights-of-way within The Village (at Avon) PUD relating to safety
and traffic control comply with the Manual of Uniform Traffic Control Devices for Streets and
Highways.
4. Parking Requirements. Parking within The Village (at Avon) shall be in
conformance with Parking Regulations set forth in Exhibit C to this PUD Guide, which shall be
the sole and exclusive parking regulations applicable within The Village (at Avon) PUD and
which expressly supersede any parking regulations set forth in the Municipal Code, including
without limitation, any additional or conflicting such provisions. Notwithstanding the foregoing,
parking within The Village (at Avon) shall comply with the requirements of the American with
Disabilities Act and any other applicable federal regulation as may be amended and as may be
applicable in accordance with the provisions of such federal regulations.
5. Surface Parking Landscaping Requirements. A 10’ wide perimeter landscape
buffer shall be installed and maintained for all outdoor surface parking lots within The Village
(at Avon) PUD, except for points of ingress and egress to the parking lot, and except for those
Exhibit A
999369.16 49
portions of the perimeter that abut existing or planned outdoor surface parking areas. The
landscaping plan for such landscape buffers shall comply with applicable provisions of the
Design Review Guidelines, and shall be subject to prior approval of the Design Review Board.
6. Drainage Requirements.
(a) In addition to the Town’s drainage provisions, the following provisions
shall also apply to drainage:
(i) Floodplains that are a result of manmade structures can be
eliminated by enlarging the existing drainage conveyance facilities such that excessive
backwater/floodplains would be diminished, but in no event shall such enlargement of
existing facilities cause an increase in the 100-year flood level elevation on adjacent or
downstream properties.
(ii) If demonstrated that the release of flows directly into the Eagle
River does not result in an increase of the 100-year flood level elevation of the Eagle
River, such developed releases shall be allowed. This determination shall be based upon
analysis of the Eagle River basin hydrograph and the site-developed hydrograph being
combined.
(b) In processing any Application for development within the Property, the
Town shall incorporate the assumptions of the drainage study prepared by David Johnson for the
Property (the “Johnson Study”) with respect to reducing the calculated stormwater flows,
management and detention requirements based on the mitigating effect of vegetation within the
Property. The assumptions set forth in the Johnson Study shall govern and control over any
conflicting provisions or assumptions in the Town’s drainage master plan; provided, however, if
the Town amends its drainage master plan, which amendment results in less restrictive or less
burdensome provisions than set forth in the Johnson Study, such less restrictive or less
burdensome provisions in the Town’s drainage master plan shall apply to the Property.
7. Sidewalk and Trail Standards. The minimum sidewalk and trail width
standards shall be as follows:
(a) Sidewalk: Except as set forth in Exhibit F, 4’ minimum width for local
streets and 6’ minimum width for collector and arterial streets.
(b) Multi-use trails: 8’ minimum width.
8. Alternative Equivalent Compliance and Variances. Deviations from strict
application of a standard or requirement of the Development Code shall be considered by the
Town on a case by case basis in accordance with (a) Section 7.16.120 (alternative equivalent
compliance) of the Development Code; or (b) Section 7.16.110 (variances) of the Development
Code.
9. Supplemental Design Standards: Planning Areas A and D. The supplemental
design standard set forth in this Section I.9 shall apply to any Building developed for
Commercial Use(s) or as a Mixed-Use Project constructed on a Site abutting the southerly
Exhibit A
999369.16 50
boundary of Planning Area A or Planning Area D and having the rear of such Building facing the
southerly boundary of Planning Area A or Planning Area D, as applicable (“Affected
Building”). Any Affected Building shall utilize architecture and exterior materials on the rear of
such Affected Building that is consistent in quality and finish with the architecture and exterior
materials utilized on the front of the Building. The foregoing design standard shall be in addition
to other applicable design standards set forth in this PUD Guide, including without limitation, the
Minimum Design Guideline Standards. Compliance with this Section I.9 shall be confirmed by
the Design Review Board and the Director prior to issuance of any building permit for any
Affected Building. Deviations from this design standard may be considered and approved in
accordance with Section 7.16.120 (alternative equivalent compliance) of the Development Code.
10. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge
Requirements. The following supplemental design and improvement standards shall apply to
any Hotel, Motel and Lodge Uses developed within Planning Area J (“Supplemental Hotel
Design Standards”) in addition to other applicable design standards set forth in this PUD Guide,
including without limitation, the Minimum Design Guideline Standards. Compliance with these
Supplemental Hotel Design Standards shall be confirmed by the Design Review Board and the
Director prior to issuance of any building permit for a Building designated for Hotel, Motel and
Lodging Uses. Deviations from these Supplemental Hotel Design Standards may be considered
and approved in accordance with Section 7.16.120 (alternative equivalent compliance) of the
Development Code. The Supplemental Hotel Design Standards are as follows:
(a) Exterior Building Materials and Color.
(i) Requirements
(1) A minimum of 20% of the vertical surfaces on each side of
the exterior building elevation shall be comprised of stone, brick, precast concrete
or cast stone.
(2) Colors shall have a LRV (Light Reflective Value) of sixty
(60) or less.
(3) All window frames shall be metal clad or alloy extrusions.
(ii) Prohibited
(1) Colors shall not have a LRV greater than sixty (60).
(2) Asphalt siding, imitation brick, asbestos cement shingles or
siding, imitation log siding, aluminum or vinyl siding and exterior insulated
finishing system (EIFS) are not permitted.
(3) Reflective glass shall not be permitted.
(b) Roofs.
(i) Pitched
Exhibit A
999369.16 51
(1) All pitched roofs shall be no less than a four-to-twelve
(4:12) slope.
(2) Roof materials shall be unglazed concrete tiles, slate,
copper, zinc, standing seam pre-patina metal (CorTen or equivalent) or synthetic
shakes. Solar and thermal collectors are permitted.
(3) Overhangs are required. Buildings two (2) stories or less
shall have an overhang of no less than eighteen (18) inches, measured from the
point where the wall meets the roof. Three (3) to four (4) story Buildings shall
have an overhang of no less than twenty-four (24) inches, measured from the point
where the wall meets the roof.
(ii) Flat. Flat roofs shall have concrete pavers or stone ballast. Grass
roofs and solar and thermal collectors are permitted.
(c) Screening. All mechanical, communications and electrical equipment
(wall and roof mounted) shall be screened from view of the adjacent street level with siding
and/or roofing materials consistent with the Structure. All vent terminations, flashings, flues,
safety apparatus and similar features shall utilize adjacent materials.
(d) Articulation. Walls shall not span more than fifty (50) feet horizontally
without a minimum of two (2) feet variation in the horizontal wall plane. Walls shall not span
more than thirty (30) feet on any floor level without a minimum of one (1) architectural element.
11. Wildlife Mitigation Plan. Development within The Village (at Avon) PUD shall
comply with the Wildlife Mitigation Plan attached as Exhibit D to this PUD Guide, which is and
shall constitute the sole and exclusive wildlife mitigation measures required for The Village (at
Avon) PUD and expressly supersedes any wildlife mitigation regulations set forth in the
Municipal Code.
12. Design Review Guidelines.
(a) The Master Developer previously has prepared, and the Design Review
Board previously has adopted, a Design Review Guidelines which the Design Review Board
utilities and shall utilize for review of all development proposals within The Village (at Avon).
For portions of the Property south of Interstate 70 and all portions of the Property north of
Interstate 70 other than Planning Area RMF-1 and Planning Area K, the Design Review
Guidelines shall contain, among other matters, requirements and standards that meet or exceed
the Minimum Design Review Standards.
(b) The Master Developer or the Design Review Board may, in accordance
with the terms and conditions of the Design Covenant and the Design Review Guidelines, as
applicable, amend the approved and adopted Design Review Guidelines. Amendments to the
Design Review Guidelines that do not conflict with any term of or are more stringent than any
Development Standard established by this PUD Guide shall not require an amendment to this
PUD Guide, and shall not require review by the Town. Amendments to the Design Review
Guidelines which are less stringent than any Development Standard established by this PUD
Exhibit A
999369.16 52
Guide may require an amendment to this PUD Guide which, in the discretion of the Director,
may be processed formally or administratively pursuant to Section H of this PUD Guide.
(c) The Design Review Board shall have primary responsibility for enforcing
the Design Review Guidelines. If Council determines in good faith at a public hearing after
notice to the Design Review Board (which notice shall be in writing and given no later than
twenty (20) days prior to the date of such hearing by certified mail addressed to the President of
the Design Review Board) that the Design Review Board is not properly enforcing the Design
Review Guidelines, Council shall provide written notice to the Design Review Board of such
determination. Such notice shall state with particularity the alleged failure and Council’s factual
findings supporting such determination. If the Design Review Board fails to correct the stated
deficiency within thirty (30) days after receipt of such notice, Council may, but shall not be
obligated to, enforce the Design Review Guidelines with respect to the matters addressed in the
notice.
(d) Nothing in this Section I.12 shall be deemed to prevent Master Developer
and/or the Design Review Board from appealing to the courts the disapproval of the Design
Review Guidelines by the Town or enforcement of the Design Review Guidelines, or from
pursuing in the courts any remedy otherwise available at law or in equity.
13. Natural Resource Protection. Development within The Village (at Avon) PUD
shall comply with Section 7.28.100 of the Development Code, except as set forth in this section
or expressly exempted in Exhibit G to this PUD Guide. Notwithstanding any contrary provision
of the Municipal Code, as in effect from time to time, development within The Village (at Avon)
PUD may occur on slopes of thirty percent (30%) or greater for public improvements, other
infrastructure improvements, streets, drive lanes, driveways, utilities and similar improvements.
14. Residential Fire Suppression Systems. All single-family and multi-family
residential structures constructed in Planning Area RMF-1 and in Planning Area K shall include
fire suppression systems as required by applicable Eagle River Fire Protection District
regulations, as may be amended from time to time and applied on a uniform and
nondiscriminatory basis within the Town. With Respect to Planning Area RMF-1 and Planning
Area K, the Town may enforce the applicable Eagle River Fire Protection District regulations but
may not adopt or apply any residential fire suppression system regulations which are more
stringent or inconsistent with residential fire suppressions system regulations adopted by the
Eagle River Fire Protection District for Planning Area RMF-1 and Planning Area K.
15. Park, Recreation and Trail Access. All parks, recreation and trails facilities the
construction, maintenance and operation of which the “Districts” (as described in Exhibit G of
the Development Agreement) finance shall be open, on a uniform and nondiscriminatory basis,
to all residents of the Town at such times and subject to such rules and regulations as the
Districts shall prescribe. Additionally, the Master Developer shall facilitate, but shall have no
obligation to construct or install, non-motorized access through the Property to off-site trail
systems as follows, which obligations shall constitute the sole and exclusive off-site trail
connection requirements for The Village (at Avon) PUD and expressly supersede any off-site
trail connection regulations set forth in the Municipal Code:
Exhibit A
999369.16 53
(a) Master Developer previously has provided a public trail head location in
Planning Area RMF-2, connected by a trail to United States Forest Service property located
north of Planning Area OS1, and Master Developer’s obligations with respect to public trail
connectivity between Planning Area RMF-2 and Planning Area OS1 have thereby been fully
satisfied as of the Effective Date; and
(b) Master Developer shall facilitate, but shall not have the obligation to
construct, a trail, sidewalk and/or road to be oriented on a generally east-west axis, and which
shall cross the Property solely through Planning Areas I, J, P4, RMF-2 and the most southerly
quarter section of Planning Area K. Master Developer shall determine in its sole discretion the
location within the Property of such trail, sidewalk and/or road.
16. Affordable Housing Plan. Master Developer will provide for affordable housing
within the Property at locations determined by Master Developer in its sole discretion and in
accordance with the following terms, conditions and requirements set forth in this Section I.16.
The obligations set forth in this Section I.16 shall constitute the sole and exclusive affordable
housing requirements for The Village (at Avon) PUD and expressly supersede any affordable
housing regulations set forth in the Municipal Code.
(a) Master Developer will provide a total of 500 affordable housing units, or
assure that the same are supplied by others, as set forth below. As of the Effective Date, Master
Developer has provided 244 affordable housing units, and, therefore, Master Developer’s
obligation after the Effective Date is to provide the remaining 256 affordable housing units [500
– 244 = 256].
(b) Priority in the sale and rental of the units will first go to people employed
in the Property, second to people employed in the Town outside of the Property, and third to
people employed in Eagle County outside of the Town; provided, however, that within Planning
Area RMF-2 the priority in the rental of units qualified as required affordable housing units will
first go to people employed in the Town and second to people employed in Eagle County outside
of the Town.
(c) For-sale units will be targeted to households earning 80% - 120% of the
Eagle County Median Family Income (the “ECMFI”) as determined by the Department of
Housing and Urban Development guidelines or by the Town in the event such guidelines cease
to be maintained by the Department of Housing and Urban Development. Not more than fifty
percent (50%) of such units may be targeted for sale to households earning 120% of the ECMFI.
(d) For-sale units shall be deed restricted to require the following:
(i) The sale of units shall be restricted to “Qualified Buyers,” defined
as follows:
(1) An owner who occupies the unit as his or her primary place
of residence;
(2) An owner who is a full time employee working at least
thirty hours per week in the Town or Eagle County, or a retired person who has
Exhibit A
999369.16 54
been a full time employee in the Town or Eagle County a minimum of four years
immediately prior to his or her retirement, or a person having a medical disability
who has been a full time employee in the Town or Eagle County a minimum of two
years immediately prior to his or her determination of disability, or the spouse or
dependent of any such persons who resides with them;
(3) An owner whose household income does not exceed 120
percent of the ECMFI; and
(4) An owner whose total current family net assets are not in
excess of $225,000.00 ($337,500.00 for a retired person) or whose total current
family net assets have not been in excess of $225,000 ($337,500 for a retired
person) during the two years preceding if the same were transferred or disposed of
to confer eligibility hereunder. The foregoing limitations shall annually be
adjusted for inflation on the basis of the applicable Consumer Price Index (the
“CPI”). For purposes of this subparagraph (4), the CPI shall mean Series ID:
CUUSA433SA0 (All Urban Consumers; Not Seasonally Adjusted; Denver-
Boulder-Greeley, CO; All items; Base Period 1982-84=100; 1st half of 1998 =
160.5).
(ii) An annual price appreciation cap of 3%, or such higher percentage
as the Town Council may approve from time to time, will be established.
(iii) If and when an owner moves out of his or her unit, he or she will
be required to sell his or her unit to Master Developer (which unit shall be resold or
rented by Master Developer in accordance with this deed restriction) or a Qualified
Buyer.
(iv) The rental units will be targeted to households earning between
50% - 80% of the ECMFI. Rents shall not exceed 30% of the tenant’s monthly income,
adjusted for household size, including utilities, for which allowances are determined
annually by the Colorado Housing Finance Agency.
(v) Capital improvements to a for-sale unit may be made up to ten
percent (10%) of the original purchase price of the unit every ten (10) years. No
restrictions on capital improvements shall be placed on rental units.
(vi) In addition to the annual price appreciation, real estate
commissions not to exceed three percent (3%) and closing costs shall be allowed for
re-sales of for-sale units after the initial sales of such for-sale units by the Master
Developer.
(vii) First time home buyers shall be exempt from Real Estate Transfer
Fees as set forth in the Development Agreement.
17. Provision of Certain Amenities.
(a) Community Park (Planning Area P3).
Exhibit A
999369.16 55
(i) Construction of the initial fifty percent (50%) of the community
park shall be commenced prior to the date that the Town’s obligation arises to issue a
certificate of occupancy for the Dwelling Unit constituting the 601st Dwelling Unit within
the Property that otherwise is eligible to receive a certificate of occupancy.
(ii) Construction of the second fifty percent (50%) of the community
park shall be commenced prior to the date that the Town’s obligation arises to issue a
certificate of occupancy for the Dwelling Unit constituting the 1200th Dwelling Unit
within the Property that otherwise is eligible to receive a certificate of occupancy.
(iii) Once commenced, construction of the improvements contemplated
in (i) and (ii) above shall be prosecuted with due diligence in accordance with sound
construction practices.
(b) Pocket Parks (Planning Areas P1 and P2):
(i) As of the Effective Date, the Master Developer and the Developer
Affiliates have fully satisfied all obligations with respect to provision of a pocket park
within Planning Area P2.
(ii) The Master Developer and/or Developer Affiliates shall dedicate to
the Town a pocket park generally comprising Planning Area P1 contemporaneously with
the Town’s approval of the first Final Plat within Planning Area C, provided that any and
all improvements to and within Planning Area P1 shall be the sole responsibility of the
Town.
(c) Additional Parkland Dedication. As and when set forth in
[Section 3.8(d)] of the Development Agreement, Master Developer and/or the Developer
Affiliates shall dedicate certain additional parkland to the Town comprising 5.8 acres in the
aggregate within Planning Areas K, J and I; provided however, Master Developer and/or the
Developer Affiliates may, in their sole discretion, dedicate any or all of such additional parkland
in Planning Areas A, C and/or D, which dedicated parkland may be adjacent to Planning Area P1
resulting in the enlargement or widening of Planning Area P1. Unless waived by the Director,
such parkland shall comply with the following minimum requirements:
(i) Minimum one quarter (1/4) acre in size;
(ii) Centrally located within, adjacent or to neighborhoods served;
(iii) Sited to provide for public surveillance from adjacent or nearby
streets;
(iv) Accessible from the surrounding neighborhoods by sidewalks
and/or trails; and
(v) Unless dedicated for linear park purposes (i.e., multi-use trails,
bikepaths, etc.), at least fifty percent (50%) of the dedicated parkland shall be well-
drained and level.
Exhibit A
999369.16 56
(d) Planning Area B.
(i) Contemporaneously with the Effective Date and as contemplated
by the Settlement Term Sheet, the Town has approved a Final Plat for Planning Area B
and Traer Creek-RP has executed and delivered to the Town a special warranty deed for
the purpose of conveying to the Town fee simple ownership of Planning Area B, subject
to the terms and conditions set forth in the special warranty deed and further subject to
compliance with all applicable terms, conditions, regulations and requirements of this
PUD Guide and the Design Covenant.
(ii) At such time as the Town determines desirable, the Town shall be
responsible for the cost of all design, construction, operation and maintenance of
improvements within or upon Planning Area B. All such Uses and improvements within
or upon Planning Area B shall be subject to review and written approval of the Design
Review Board.
(iii) As and when Master Developer determines it to be necessary or
desirable in connection with development within Planning Areas that abut or are adjacent
to Planning Areas B and upon submittal of an Application for such purposes, the
boundaries of Planning Area B shall be modified pursuant to the administrative platting
procedures set forth in Section G of this PUD Guide, subject to the following conditions:
(1) The Town has not previously constructed improvements
within or upon Planning Area B that make such modifications impossible or that
would cause such modifications to unreasonably interfere with the Town’s
operation and use of such previously constructed improvements;
(2) Such modifications shall not result in a reduction in the
aggregate acreage of Planning Area B without the Town’s written consent;
(3) Concurrently with recording such Final Plat, the Town and
the Applicant(s) shall exchange special warranty deeds conveying the applicable
modified areas to the appropriate grantee, subject to matters of record and deed
restrictions, if any, reasonably acceptable to the applicable grantee; and,
(4) Such modifications may be accomplished as part of an
Final Plat that establishes Lots or Blocks with respect to the adjacent or abutting
Planning Area(s), in the discretion of the Applicant.
Exhibit A
999369.16 A-1
EXHIBIT A
Legal Description
Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the
plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under
Reception No. 795007;
Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1,
according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and
Recorder under Reception No. 898173;
Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon)
Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No. 796831;
Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof
recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception
No. 882776; and
Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts
B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado,
Clerk and Recorder under Reception No. 200712166.
TOGETHER WITH THE FOLLOWING PARCEL (OS5):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line,
described as follows:
Beginning at the N 1/4 corner of said Section 17; thence S8923'36"E 526.76 feet, along the
northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad; thence, departing said northerly line of Section 17, the following two
courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said
northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the
existing railroad tracks: (1) S8036'27"W 267.66 feet; (2) 263.93 feet along the arc of a curve to
the right, having a radius of 2486.03 feet, a central angle of 0604'58", and a chord which bears
S8338'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N0020'55"W
78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (OS6):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line
and north of the centerline of the Eagle River, described as follows:
Exhibit A
999369.16 A-2
Beginning at the Northeast corner of said Section 17; thence S0141'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
easterly line, S0141'49"E 73.07 feet, to the centerline of said Eagle River; thence the following
four courses along said centerline (Filum aquce): (1) N8924'49"W 1037.9 feet;
(2) N8607'49"W 472.00 feet; (3) N8929'49"W 538.00 feet; (4) S8233'11"W 595.15 feet, to the
westerly line of said NE 1/4; thence N0020'55"W 49.18 feet, along said westerly line to the
southerly right-of-way line of the Denver & Rio Grande Western Railroad; thence, departing said
westerly line of Section 17, the following five courses along the southerly right-of-way line of the
Denver & Rio Grande Western Railroad, said southerly right-of-way line being parallel with and 50
feet southerly of the centerline of the existing railroad tracks: (1) 279.72 feet along the arc of a
curve to the left, having a radius of 2586.03 feet, a central angle of 0611'51", and a chord which
bears N8342'23"E 279.58 feet; (2) N8036'27"E 350.86 feet; (3) 686.44 feet along the arc of a
curve to the right, having a radius of 3171.27 feet, a central angle of 1224'07", and a chord which
bears N8648'31"E 685.10 feet; (4) S8659'25"E 1216.38 feet; (5) 112.54 feet along the arc of a
curve to the right, having a radius of 2549.33 feet, a central angle of 0231'46". and a chord which
bears S8543'31"E 112.53 feet, to the True Point of Beginning, containing 5.28 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL):
Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as a whole as follows:
Beginning at the Northwest corner of said Section 8; thence the following four courses along the
northerly line of said Section 8: (1) N8840'41"E 1379.49 feet, to the W 1/16 corner of said
Section 8 and Section 5 of said Township and Range; (2) N8840'41"E 1379.49 feet, to the 1/4
corner of said Sections 8 and 5; (3) N8842'58"E 1385.36 feet, to the E 1/16 corner of said
Sections 8 and 5; (4) N8842'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and
Section 4 of said Township and Range; thence the following four courses along the northerly
line of said Section 9: (1) N8329'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and
4; (2) N8329'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N8324'12"E
1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4) N8324'12"E 1386.30 feet, to the
corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the
following two courses along the northerly line of said Section 10: (1) N8639'24"E 1381.29 feet,
to the W 1/16 corner of said Sections 10 and 3; (2) N8639'24"E 1299.94 feet; thence, departing
said northerly line, S0134'07"W 2699.66 feet, to the east-west centerline of said Section 10;
thence, along said east-west centerline, S8632'23"W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S0132'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of
said Section 10, to the SW 1/16 corner of said Section 10; thence S8632'47"W 1384.91 feet,
along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9;
thence S7710'15"W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said
Section 9, to the SE 1/16 corner of said Section 9; thence S0133'02"W 1475.32 feet, along the
easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and
Section 16 of said Township and Range; thence S7220'31"W 1450.43 feet, along the southerly
line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N0134'18"E
1601.52 feet, to the CS 1/16 corner of said Section 9; thence S8607'30"W 1378.19 feet, along
the southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said
Section 9; thence S0133'13"W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of
Exhibit A
999369.16 A-3
said Section 9, to the W 1/16 corner of said Sections 9 and 16; thence N89°55’04”W 1371.96
feet, along the southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9,
16, and 17 of said Township and Range; thence N01°32’00”E 3.82 feet, along the westerly line
of Section 9, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad,
said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the
existing railroad tracks; thence the following two courses along said northerly right-of-way line:
(1) 104.48 feet along the arc of a curve to the left, having a radius of 2649.33 feet, a central
angle of 02°15’34”, and a chord which bears N85°51’36”W 104.47 feet; (2) N86°59’25”W
1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00°51’07”E
1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8; thence
N8954'54"W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to
the CS 1/16 corner of said Section 8; thence N8958'35"W 1366.46 feet, along the southerly line
of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence
S0001'37"E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the
northerly right-of-way line of Interstate Highway No. 70, as described in the deed recorded in
Book 223 at Page 982 in the office of the Eagle County, Colorado, Clerk and Recorder; thence
the following ten courses along said northerly right-of-way line: (1) N6530'20"W 249.79 feet;
(2) N7847'50"W 317.2 feet; (3) N8308'20"W 506.7 feet; (4) 772.2 feet along the arc of a curve
to the right, having a radius of 1462.0 feet, a central angle of 3015'52", and a chord which
bears N5457'56"W 763.3 feet; (5) N3437'50"W 331.1 feet; (6) N3444'20"W 368.5 feet;
(7) 804.9 feet along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle
of 2527'04", and a chord which bears N5129'50"W 798.3 feet; (8) N6824'50"W 399.7 feet;
(9) N4947'20"W 213.6 feet; (10) N7020'50"W 765.1 feet, to the northerly line of the SE 1/4 of
said Section 7; thence the following two courses along said northerly line: (1) N8950'40"E
1194.46 feet, to the CE 1/16 corner of said Section 7; (2) N8950'40"E 1378.25 feet, to the 1/4
corner of said Sections 7 and 8; thence the following two courses along the westerly line of said
Section 8: (1) N0010'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence
N0010'53"W 1369.10 feet, to the point of beginning.
EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in
the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776.
Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3
area subtracted.
All of the above-described Property containing 1,780 acres, more or less.
Exhibit A
999369.16 B-1
EXHIBIT B
PUD Master Plan
[to be inserted]
Exhibit A
K
I
2
OS1
A
J
C
D F
RMF2
H
1
H
103
97
RMF1
110
104
P3
101
87
102
108
107
98
OS3
OS2
86
91
109
J
81 82
88
G
95
93
94
E
106
B
76
105
100
79
92
96
K 122
OS2
90
78
113
99
85
84
83
89 114
77
119120
75
121
112
111
53
31
6
PF1
41
3
4
118
16
5
115
18
116
117
9
73
32
78
80
40 72
42
37
39 62
11
25
61
33
38
14
48
13
28
70
36
64
60
2729
7151
12
30
23
OS7
P1
OS6
OS4
15
20
67
17
35
19
5649
66
P2
65
68
5747
22
21
63
74
43
10
50 55
34
5946
24
69
44
5854
52
26
45
PF3
PF2
OS5
This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 05/24/12
The Village (at Avon) PUD Master PlanFormal Amendment Two - Version 11 DRAFTTown of Avon, Colorado
TOWN CERTIFICATE (PUD MAP AMENDMENT)
WITNESS MY HAND AND SEAL OF THE TOWN OF AVON
BY MAYOR:
_________________________________
ATTEST: TOWN CLERK
_________________________________DRAFT
DRAFTA - Village Center Mixed Use Project
B - Community Facilities
C - Village Residential Mixed Use Project
D - Village Residential Mixed Use Project
E - School
F - Regional Commercial Mixed Use Project
G - Regional Commercial Mixed Use Project
H - Regional Commercial Mixed Use Project
I - Regional Commercial Mixed Use Project
J - Regional/Neighborhood Commercial and Residential Mixed Use Project
K - Hillside Residential
RMF1 - Residential Multi Family
RMF2 - Residential Multi Family
OS - Natural Open Space OS1 - OS7
P1 - Parkland
P2 - Parkland
P3 - Parkland
PF1 - Public Facility
PF2 - Public Facility
PF3 - Public Facility
Constructed Roads
Temporary Roads
Conceptual Roads
Nottingham Puder Ditch
Parks, Open Space and Public Facilities
Roads and Hydrology
Planning Areas
--------------------------------------------------------------------------SUBTOTAL 180
155
4
--------------------------------------------------------------------------SUBTOTAL 0
LAND USE
Acres
43
------------------------------------------------------------------------------------------------------------SUBTOTAL 1599
24
---------------------------------------------------------------------------------------------------PROJECT TOTAL 1779
16
13
4
26
57
38
USFS
USFS
1303
27
39
1
1
NOTES
1. Until such time as a secondary road access to Planning Area I is constructed and open for use, (a) building permits may be issued for no more than 280 dwelling units in Planning Area I, provided that "Primary/Secondary Dwelling Units" (as defined in The Village (at Avon) PUD Amended and Restated PUD Guide) situated on the same lot shall be considered one dwelling unit; and (b) no building permits may be issued for Commercial Uses or Industrial Uses. 2. Pursuant to Section 7.16.140(d) of the Avon Municipal Code: “Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended and Title 7, Chapter 16 of this Municipal Code, as amended.”
3. A minimum of 29.5% of the acreage of Planning Area K shall be reserved and maintained as open space, and such open space shall be subject to the development standards for open space planning areas as set forth in Section E.14 of The Village (at Avon) PUD Amended and Restated PUD Guide.
4. The street and road alignments depicted hereon are either designated as either permanent, temporary (not permanent and intended to be replaced in the future) or conceptual alignments. Until such time as made permanent or temporary in connection with an approved final plat, the conceptual alignments are non-binding and provided only for illustrative purposes to show one of various potential alignments, general circulation patterns, vehicular ingress and egress to and from planning areas and traffic connectivity to adjacent property outside of The Village (at Avon).
5. The layout, location, size and number of lots within Planning Area K as depicted hereon are conceptual, non-binding and providedonly for illustrative purposes. The precise layout, location, size and number of lots and the precise location of the building envelopefor each lot within Planning Area K will be as established by and reflected in the final plat creating the lot, and shall be based on varioussite specific features of the lot such as the topography, grade, natural vegetation and similar matters, but shall generally comply with thebuilding envelope requirements set forth in Section E.11(c) of The Village (at Avon) PUD Amended and Restated PUD Guide unless suchcompliance is determined to be impractical or unreasonable.
6. The layout and location of the Future Bridge and the Future Pedestrian Path as depicted hereon are conceptual, non-binding and provided for illustrative purposes only. There shall be no obligation to construct the Future Bridge or the Future Pedestrian Path, provided that if the Future Bridge and/or the Future Pedestrian Path shall be constructed, the precise layout and location of the same will be established by the building permit and/or construction plans, as applicable, approved by the Town of Avon for such construction.
7. See Exhibit F of The Village (at Avon) PUD Amended and Restated PUD Guide for street types and standards applicable to the roads depicted hereon.0 1,200600Feet
ROW
ROW
4
5
Acres
2
13
4
ROW
K
FutureBridge
Eagle River
Future PedestrianPath
999369.16 C-1
EXHIBIT C
The Village (at Avon) Parking Regulations
Exhibit A
999369.16 C-2
Exhibit A
999369.16 C-3
Exhibit A
999369.16 C-4
Exhibit A
999369.16 C-5
Exhibit A
999369.16 C-6
Exhibit A
999369.16 C-7
Exhibit A
999369.16 D-1
EXHIBIT D
Wildlife Mitigation Plan
1. Introduction. This Wildlife Mitigation Plan was developed to avoid, minimize,
and mitigate wildlife impacts resulting from The Village (at Avon) development proposal. The
specifics contained herein have evolved from existing wildlife information, results of field
surveys, discussions, meetings, and site visits with Colorado Division of Wildlife (“CDOW”)
representatives, and meetings and discussions with staff and professionals representing owners.
2. Wildlife Mitigation Plan. The Master Developer and Developer Affiliates, their
respective successors or assigns, including the possibility of one or more homeowners or
property owner association(s), and/or one or more public improvement companies (any of which
shall be referred to as an “Association”), which have been or may be formed and which may
undertake the Master Developer’s and Developer Affiliates’ responsibilities under this
Agreement, hereby agree to the following stipulations in conjunction with The Village (at Avon)
PUD.
3. Winter Range Compensation.
(a) To compensate for the Elk Winter Range habitat loss associated with the
development, a private The Village (at Avon) Wildlife Trust Fund (“Fund”) shall be established
at or before the issuance of the first building permit associated with residential development
north of I-70. Interest generated by this Fund shall be spent only in Game Management Unit 36
or 35 to benefit animals in the herd actually affected by winter range loss north of I-70.
Furthermore, interest generated by this Fund shall only be used to actually implement
enhancement efforts. The Fund shall not be used to pay for Fund administration, consultants,
and other incidental expenses. Disbursement and use of funds shall be overseen by an
Association. CDOW participation shall be requested at meetings where habitat enhancement is
being considered. Fund disbursement may include payments to the CDOW or a similar trust
fund (e.g., the Colorado Wildlife Heritage Foundation) to allow the CDOW to coordinate
enhancement efforts in the Eagle Valley. This approach should help maintain the functional
value of the affected winter range,
(b) Fund principal shall be based on winter range losses associated with the
development. At full build-out, The Village (at Avon) development would encroach upon 155
acres of native habitat on the property designated elk winter range. Compensation is based on
(a) the loss of 155 acres of winter range; (b) the need to treat (via aerial fertilization) 1.57 acres
of habitat once every three years in perpetuity to offset each 1.0 acre of habitat affected;
(c) current fertilization costs of $65.00/acre (in 1998 dollars); and (d) an interest rate of 5%,
which would require $5,275.98 to implement the enhancement in 1998. Fund principal required
to generate this amount of interest every three years would require a one-time payment of
principal totaling $105,519.70 (in 1998 dollars). This amount shall be deposited into the Fund
upon the Fund’s establishment.
4. Setbacks.
Exhibit A
999369.16 D-2
(a) A 100-foot setback from the closest edge of Building Envelopes of
conceptual Lots 76, 78, 80, 81, 82, 86, 87, 96, 97, 109, 110, 119 and 120 adjacent to U.S. Forest
Service lands along the northern property boundary of Planning Area K to both buffer residential
activities from public lands and public activities (e.g., principally hunting and other recreational
uses) from the adjacent residences shall be provided.
(b) The stream setback provisions set forth in Section J.13 of The Village (at
Avon) PUD shall apply to The Village (at Avon). Impacts to jurisdictional wetlands shall be
protected by the Clean Water Act.
5. Building Envelopes.
(a) Building envelopes and rules governing the location and distribution of all
structures, surrounding yards, and all disturbance to native vegetation, with the exceptions of
utilities, driveways, etc., for single-family Residential Uses north of I-70 are set forth in
Section D (Development Standards) of The Village (at Avon) PUD and are governed by The
Village (at Avon) PUD. It is the intent that Building Envelopes in Planning Area K be clustered
to concentrate disturbance areas and leave large blocks of undeveloped habitat. This measure
helps insure that development follows a design minimizing habitat losses and facilitating
continued wildlife movements through, and use of, the Property. No vegetative manipulation
shall be permitted outside of designated Building Envelopes except as allowed by the PUD
Guide and/or where manipulation is required as part of any valid wildlife enhancement program,
as authorized to reduce wildfire potential, or for access roads, driveways, parking areas and
utility installation. The objective of this measure is to minimize the amount of natural habitat
loss and maintain existing vegetation buffering visual and acoustic disturbances from sensitive
adjacent habitats. Homeowners shall be educated to appreciate and maintain the existing
vegetative community, particularly forests and shrubby areas which provide critical wildlife
cover and forage values.
(b) Upon conceptual Lots 90-113 any required tree/shrub clearing for wildfire
mitigation shall be contained within the designated envelope.
(c) The area of fertilized, irrigated landscaping each Dwelling Unit is
permitted to have shall be restricted to ≤ 5,000 square feet. Residents shall also be educated to
recognize that they have moved into wildlife habitat, that some wildlife shall have strong
compulsions to eat what homeowners plant, and that the CDOW shall not be liable for wildlife
damage to landscaping.
6. Open Space.
(a) Approximately 483 acres (OS-1 and a portion of Planning Area K as set
forth on the PUD Master Plan) north of I-70 have been designated as Open Space. These areas
include some of the most valuable winter range, migration corridors, and other important wildlife
habitat on the Property. It is the intention that OS-1 and at least 384 acres of Planning Area K
function primarily as wildlife habitat. Other subdivision uses may occur in these areas, however,
these areas shall be preserved primarily in their undeveloped condition and managed to further
enhance wildlife values.
Exhibit A
999369.16 D-3
(b) In addition, the portion of Planning Area K that shall be located within
future Lots for single family Residential Use but outside of the future designated Building
Envelopes of those Lots shall function as private Open Space. To facilitate habitat management
and enhancement on these Lots and as an additional measure precluding development outside of
envelopes, areas on all such Lots outside of designated Building Envelopes and easements north
of I-70 shall be protected as Open Space under provisions of The Village (at Avon) protective
covenants to be recorded in connection with future subdivision of Planning Area K.
7. Main Deer Movement Corridor. The Village (at Avon) agrees to maintain a deer
movement corridor of a minimum width of 800 feet between the western edge of the Building
Envelope for conceptual Lots 112 and 113 and the eastern edge of the Building Envelopes for
conceptual Lots 108, 110 and 111 as depicted on the PUD Master Plan. No amendment to the
location of these Building Envelopes shall be permitted that results in any encroachment into this
800’ wide designated movement corridor.
8. Roads North of Interstate Highway 70.
(a) Road design and use through portions of The Village (at Avon) has the
potential to disrupt migratory elk movements, local elk movements, and affect habitat use. The
posted speed limit (25 mph) is generally slow enough to avoid most wildlife mortality; however,
residents, guests, and contractors frequently exceed posted speed limits in similar, adjacent
residential developments. The Village (at Avon) roads shall be designed to incorporate features
requiring low vehicle speeds to reduce road-kill mortality and facilitate migratory movements
across roads.
(b) Road widths shall be as set forth in Exhibit E (Street Standards) to the
PUD Guide to force slower operating speeds and adjusted to the number of residences being
served by the road. There shall be no bike lanes or paved road shoulders beyond conceptual Lot
84. Cut and fill slopes in the vicinity of the main migration corridor and along gulches may
require additional grading or design to facilitate wildlife movements. Any necessary guard rails
installed along road sections within wildlife corridors shall be designed to allow wildlife
movements. Standard guard rails restrict wildlife movements and can increase wildlife-vehicle
collisions. Signage providing for restricted access to all single family Residential Uses within
Planning Area K shall be installed.
9. Trails.
(a) With the exception of public access through the Property along an existing
trail through OS-1, there shall be no public access through the Property to U.S. Forest Service
lands to the north. Public access and access for The Village (at Avon) along the trail through
OS-1 shall be limited to foot traffic only. Seasonal restrictions shall be associated with this trail
to ensure use is compatible with important wildlife use on and adjacent to the Property (see
below).
(b) No other trails shall be developed within the Protected Wildlife Habitat
(defined below in Section 10) on the Property without the agreement of the CDOW, except for
Exhibit A
999369.16 D-4
an access trail/path/emergency vehicle access connecting Planning Area RMF-2 to OS-2 and P-
3.
10. Seasonal Use Restrictions. Seasonal use restrictions shall be imposed and
enforced on homeowners, guests, employees, and the public to optimize wildlife use on and
adjacent to the Property.
(a) General Protected Wildlife Habitat Restrictions. Recreational uses of OS-
1 and the Open Space areas of Planning Area K (hereinafter “Protected Wildlife Habitat” or
“PWH”) shall be restricted during the winter range occupancy period extending from
December 15 to April 15. Recreational use, including nordic skiing, hiking, bicycling,
equestrian use, etc., within these areas should be restricted from the above defined PWH from
December 15 to April 15.
(b) Additional Restrictions Within the Main Deer Movement Corridor.
(i) In addition to the seasonal, winter range-related restrictions
presented above in Section 10(a), road and home construction activities east of Traer
Creek, within the designated 800’ wide main deer movement corridor, shall be restricted
to reduce conflicts with deer migration. Road construction within the designated 800’
wide corridor is prohibited during the spring (May 1 to June 15 [dates inclusive]) and fall
(October 1 to December 1 [dates inclusive]) migration periods. The purpose of this
measure is to eliminate disturbances (i.e., human activity) and barriers (e.g., incomplete
cut and fill slopes) within the migration corridor that could alter movements.
(ii) Home construction on conceptual Lots 105-112 could occur
throughout the year, however, daily outdoor construction periods on individual lots
(excluding construction worker travel (i.e., arrival and departure) shall be restricted to the
period between 6:30 a.m. and 5:30 p.m. hours during spring migration (defined above)
and 7:30 a.m. and 4:15 p.m. hours during fall migration (defined above). This shall
facilitate the largely nocturnal and crepuscular migration to occur through the existing
corridor with reduced human disturbance.
(c) Access Restrictions to U.S. Forest Service Lands. To protect spring deer
migration and elk winter range, migration, and calving values on U.S. Forest Service lands north
of The Village (at Avon), the public trail running through OS-1 shall be closed to all use from
December 15 to June 30, dates inclusive.
(d) Enforcement. These seasonal/areal restrictions shall be enforceable by the
Master Developer, the Developer Affiliates and/or Association(s), as applicable. Homeowners
shall also be educated about these closures on and adjacent to the Property via a “Living with
Wildlife” homeowners book. Furthermore, because these conditions are part of The Village (at
Avon) PUD, the Town, CDOW, and U.S. Forest Service may also enforce these restrictions,
within their respective jurisdictions.
11. Reclamation/Landscaping.
Exhibit A
999369.16 D-5
(a) Native wildlife habitats disturbed by construction activity outside of
Building Envelopes in PWH should be reseeded or replanted with those native plant species
originally present. Where service access is required, the re-planting of trees could be prohibited
from utility corridors. Re-planting along road shoulders can exclude trees and shrubs to
maximize vertical and horizontal sight-distances and reduce the probability of road-killed
wildlife. Vehicle speeds within the development on roads north of I-70 should be slow enough
that road shoulders could be reseeded with plants palatable to big game without increasing the
probability of road-kills.
(b) Homeowners are strongly encouraged to landscape with native plant
species to avoid wildlife damage. The CDOW shall not be liable for wildlife damage to
landscaping. The Design Review Board shall provide a list of suitable landscaping materials,
their maintenance and protection, to homeowners.
12. Dogs and Pet Control.
(a) Owners of each residential lot shall be permitted to harbor up to two dogs
and offspring up to three months old. Residents shall be prohibited from harboring dogs outside
on their property unless they have adequate facilities (i.e., a fenced yard, dog run, or kennel) to
contain the animals. Enclosed runs must be located immediately adjacent to the home, within
the applicable Building Envelope, and shall not exceed 1,000 square feet. Homeowners are
encouraged to completely cover runs (including tops) to protect dogs from possible mountain
lion predation. If facilities are inadequate to contain the resident’s dog(s), the animals shall be
immediately removed from the subdivision until adequate structures can be built.
(b) At no time are dogs to be allowed to run freely anywhere on the Property.
When dogs move beyond their owner’s property line, the dog must be controlled by a leash of no
more than 12 feet in length, under the direct control of its owner or authorized representative.
Visitors shall be discouraged from bringing dogs on-site.
(c) The Master Developer, Developer Affiliates and/or Association(s), as
applicable, shall be responsible for enforcing the dog and pet covenants set forth herein. Stray
dogs may also be controlled by the Town and CDOW. Homeowners not in compliance with
these dog restrictions shall be responsible for any and all costs incurred by the Master Developer,
Developer Affiliates, Association(s), the County of Eagle and/or CDOW for enforcing these
provisions.
(d) Homeowners should be educated that they should not feed dogs and other
pets outside their homes, including decks, to avoid attracting nuisance wildlife or predators.
(e) Contractors shall be prohibited from bringing dogs onto the Property, even
if they would be kept inside vehicles.
13. Fencing.
(a) Fencing within The Village (at Avon) north of I-70 shall be restricted to
facilitate local and migratory wildlife movements, optimize habitat availability, and reduce
wildlife mortality. Fencing approval shall be under the purview of the Design Review Board.
Exhibit A
999369.16 D-6
Homeowners shall be permitted a 6’ high privacy fence to enclose up to 2,500 square feet,
provided it is immediately adjacent to the house and it is entirely within the designated Building
Envelope, unless specifically approved by the Design Review Board. All other fencing shall be
prohibited. Where fencing is required to be installed to restrict domestic livestock on adjacent
properties, it shall be compatible with wildlife movements and conform to the following
specifications:
(i) Wildlife compatible fencing is permitted to a maximum of 3
strands of wire (smooth wire preferred) or 3 rails. Rails shall not be more that 4 inches
tall.
(ii) The top rail or wire strand shall not be higher than 42 inches above
mean ground level. With the exception of a split rail design, a rail fence shall not have a
top rail oriented horizontally whose width perpendicular to the ground exceeds 1 inch.
This measure is to prevent snow accumulation on the top rail from restricting big game
movements.
(iii) The middle wire strand shall be no higher than 30 inches above
mean ground level, providing a 12 inch kickspace below the top strand.
(iv) The bottom rail or wire strand shall be at least 18 inches above
mean ground level, to provide sufficient clearance for passage of elk calves, deer fawns,
and other wildlife.
(b) Fencing may be subject to more restrictive provisions as stated in the
Design Guidelines.
14. Bears and Mountain Lions/Trash Removal/Nuisance Wildlife.
(a) Bear and Related Issues. The following measures shall be required to
reduce potential bear problems:
(i) There shall be no outside storage of any trash or garbage, no matter
how briefly (e.g. overnight), at any Dwelling Unit or anywhere within the development,
unless it is contained within individual bear-proof containers which meet North American
Bear Society, CDOW or U.S. National Park Service specifications.
(ii) Prior to disposal, any refuse that might attract bears should be kept
within the garbage in a suitable receptacle with a tight-fitting lid. Refuse should not be
kept within detached garages or sheds because these structures are more likely to be
broken into by bears. Trash containers should be taken to the collection points (e.g., the
end of the driveways) the morning of collection and not put out the night before.
(iii) There shall be no dumps or underground disposal of refuse within
The Village (at Avon). Buried garbage may attract bears.
(iv) Residents should be discouraged from using a garden compost pile,
unless the compost pile is bear-proof, meeting North American Bear Society, CDOW or
Exhibit A
999369.16 D-7
U.S. National Park Service specifications. Residents shall also be educated that
household and garden waste contributions to compost piles compose the materials that
can attract bears and other nuisance wildlife (e.g. skunks), creating conflicts. Composted
yard waste consisting of leaves, grass, small branches, etc. do not usually attract bears.
(v) Pets shall not be fed outside. Bowls of pet food left on the back
deck may attract bears and other predators (e.g., coyotes) and nuisance species (e.g.,
skunks) of wildlife. Some of these wildlife species may carry diseases that can be
transmitted to pets.
(vi) With the exception of bird feeders, the feeding, baiting, salting, or
other means of attracting wildlife to individual yards is illegal and shall be prohibited
within the Property.
(vii) Homeowners shall be educated about bears and other local wildlife
via the CDOW’s brochure entitled “Living with Wildlife in Bear Country.” One copy of
the brochure shall be provided to each homeowner at closing.
(b) Mountain Lions.
(i) All residents and perspective residents shall receive a copy of the
CDOW’s brochure entitled “Living with Wildlife in Mountain Lion Country.” One copy
of the brochure shall be provided to each homeowner at closing.
(ii) With the exception of bird feeders, the feeding, baiting, salting, or
other means of attracting wildlife to individual yards is illegal and shall be prohibited
within the Property.
15. Horses. Except as may be permitted in the PUD Guide and except for pre-
existing uses, there shall be no boarding of horses or other livestock, including but not limited to
llamas, on individual Lots or community facilities within the Property. Any horses owned by
residents of the Village (at Avon) shall be boarded off-site. Residents of The Village (at Avon)
shall not be permitted a temporary “saddle-up” area, corral, or other fenced areas to allow horses
to be kept overnight, over a weekend, or for any length of time on their Lot.
16. Wildlife Mortality on Local Roads.
(a) Posted vehicle speed limits on proposed roads within The Village (at
Avon) north of I-70 shall be as set forth in Exhibit E (Street Standards) to the PUD Guide. To
reduce road mortality associated with speeding, road design is recommended (see Section 7
above) to force motorists to obey the speed limit.
(b) The Village (at Avon) is also accessed by high speed roads, including I-70
and Highway 6, where moderate numbers of deer and elk are killed by vehicles each year.
Obeying posted speed limits would not only reduce wildlife mortality, but would also reduce the
risks of damage to personal property and injury to motorists. The Village (at Avon) residents
should be educated about avoiding wildlife mortality on roads in any educational information
that is developed.
Exhibit A
999369.16 D-8
17. Hunting. Hunting is the primary management tool the CDOW uses to balance
wildlife populations with available habitat. Inadequate hunter access and/or hunter harvest shall
allow populations to grow, increasing game damage on the Property and adjacent properties.
Hunting by authorized residents of The Village (at Avon) or guided guests, could continue on the
Property as long as safely allowed. However, it is required that all prospective hunters must
receive written permission to hunt a specified area by the Master Developer or its designee.
Secondly, the Master Developer shall decide what type and level of hunting, if any, is compatible
with development, what areas may be safely hunted, and when all hunting on the Property shall
be terminated as the Property builds out.
18. Educating Residents. Homeowners shall be educated about wildlife issues within
the Property by providing each homeowner one copy of this Wildlife Mitigation Agreement at
the time of closing and copies of the CDOW bear and mountain lion brochures. Other wildlife-
related education sources could include a “Living with Wildlife” book similar to that prepared
for other surrounding subdivisions located in sensitive wildlife habitats.
Exhibit A
999369.16 E-1
EXHIBIT E
Minimum Design Guideline Standards
Exhibit A
999369.16 E-2
Exhibit A
999369.16 E-3
Exhibit A
999369.16 E-4
Exhibit A
999369.16 E-5
Exhibit A
999369.16 E-6
Exhibit A
999369.16 E-7
Exhibit A
999369.16 E-8
Exhibit A
999369.16 E-9
Exhibit A
999369.16 E-10
Exhibit A
999369.16 E-11
Exhibit A
999369.16 E-12
Exhibit A
999369.16 F-1
EXHIBIT F
Street Standards
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Exhibit A
999369.16 F-2
Exhibit A
999369.16 F-3
Exhibit A
999369.16 F-4
Exhibit A
999369.16 F-5
Exhibit A
999369.16 F-6
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Exhibit A
999369.16 G-1
EXHIBIT G
Municipal Code Provisions
Not Applicable to The Village (at Avon) PUD
1. Development Code Provisions:
(a) § 7.16.060(i) Lapse of a Final PUD
(b) §§ 7.16.060(j)(1)(ii) & (iii) Revocation of a Final PUD
(c) § 7.16.090 Design Review
(d) § 7.16.100 Special Review Use
(e) § 7.16.140(b)(2) Vested Property Rights Created (only the second sentence
reading, “Amendments to any site specific development plan shall be subject to
this Chapter and shall have a new vested property right as determined by the
Town Council.”)
(f) § 7.16.140(g) Forfeiture of Vested Property Rights
(g) § 7.20.100 Employee Housing Mitigation
(h) Select sections of Chapter 7.24, specifically listed as follows: § 7.24.040,
§ 7.24.050, § 7.24.060, § 7.24.070(e)
(i) §§ 7.28.020(b)(4) & (5) Applicability and Location: Location and Ownership
(j) § 7.28.020(e) Off-Street Parking
(k) § 7.28.020(g) Computation of Parking and Loading Requirements
(l) § 7.28.020(h) Off-Site Parking
(m) § 7.28.050 Landscaping
(n) § 7.28.060 Screening
(o) § 7.28.070(2) & (3) Retaining Walls
(p) § 7.28.090 Design Standards, provided that subsection (c)(5) shall apply
(q) §§ 7.28.100(a)(3)(v), (x), (xiii)(D) & (xiii)(E) Natural Resource Protection
(r) Chapter 15.30 (Outdoor Lighting Standards) of the Development Code
(s) §§ 7.32.010(c)(2) & (6) Engineering Improvement Standards: Standards and
Specifications
Exhibit A
999369.16 G-2
(t) § 7.32.030(l) Engineering Improvement Standards: Streets; Grades, Curves, and
Sight Distances
(u) § 7.32.030(m) Engineering Improvement Standards: Streets; Cul-de-sacs
(v) § 7.32.040(c) Paved Trail Design: Minimum Width
(w) § 7.32.040(e) Paved Trail Design: Grades
(x) § 7.32.080 School Site Dedication (Pursuant to [Section 3.8(a)] of the
Development Agreement, Section 7.32.080 of the Development Code with respect
to school site dedications)
(y) § 7.32.090 Park Land Dedication
(z) § 7.40 1041 Regulations
2. Other Municipal Code Provisions:
(a) Chapter 3.40 Impact Fees
(b) Chapter 8.32 Wildlife Protection
(c) Chapter 15.28 Sign Code
(d) Chapter 15.30 Outdoor Lighting Standards
(e) Impact fees enacted or adopted after the Effective Date, the impacts of The
Village (at Avon) being adequately mitigated by, among other matters, the
payment of the impact fees set forth in [Section 3.9] of the Development
Agreement.
(f) Pursuant to Section I.16 of this PUD Guide, any affordable housing, attainable
housing and/or employee workforce housing provisions of the Municipal Code.
3. Any other provision of the Municipal Code expressly superseded in whole or in part
pursuant to any other provision of this PUD Guide.
Exhibit A
999369.16 I-1
EXHIBIT H
Definitions
The definitions of words and phrases set forth in this Exhibit H expressly supersede any
additional or conflicting definitions of the same words or phrases or same general intent as set
forth in the Municipal Code and constitute the sole and exclusive definitions for the purpose of
this PUD Guide and the interpretation, application and enforcement of this PUD Guide and
related components of the Development Plan. When not inconsistent with the text, words used
in the present tense include the future, words used in the singular number include the plural,
words in the plural include the singular, and the masculine includes the feminine. The words
“will” or “shall” are mandatory, and the word “may” is permissive.
Accessory Building, Structure or Use means a subordinate Building, Structure or Use located on
the same Lot (or on a contiguous Lot in the same ownership) on which the main Building,
Structure or Use is situated, which is customarily incidental to that of the main Building or to the
main Use of the Site, and which is reasonably necessary and incidental to the conduct of the Use
of such Building, Structure or main Use.
Administrative Subdivision Areas has the meaning set forth in Section G.1(a) of this PUD Guide.
Accommodation Unit(s) means any room or group of rooms used primarily for transient lodging
and accessible from common corridors, walks, or balconies without passing through another
Accommodation Unit.
Affected Building has the meaning set forth in Section I.9 of this PUD Guide.
Affordable Housing Plan means the sole and exclusive affordable housing requirements for The
Village (at Avon) PUD, as set forth in Section I.16 of this PUD Guide, which expressly
supersede any additional or conflicting provisions of the Municipal Code.
Agricultural Use means those agricultural activities commonly pursued in Eagle County
including but not limited to the planting, cultivation and harvesting of crops, trees, grasses and
similar crops used for production of hay and other animal feedstock, and the grazing of livestock;
provided, however, that Animal Boarding, cultivation in connection with operation of a Medical
Marijuana Business and large contained animal feeding operations (feed lots) and/or slaughter
houses shall not be construed as an Agricultural Use.
Animal Boarding means the operation of an establishment, excluding the operation of Kennels,
in which domesticated animals other than household pets are housed, groomed, bred, boarded,
trained or sold. Animal Boarding shall not be construed to be an agricultural Use eligible for
being designated an approved Interim Use.
Applicant means the Landowner of the real property comprising the Site for which an
Application is submitted, or an individual or entity whom the Landowner has designated in
writing as its authorized representative for the purpose of representing the Landowner and/or
acting upon any application or submittal for development of the pertinent Site (which may be a
contract purchaser or owner of an option to purchase fee simple ownership of the Site or portion
Exhibit A
999369.16 I-2
thereof with the fee owner’s written consent to any such application or submittal, or which may
be an owners’ association for a Condominium project or like common interest ownership
project). Notwithstanding any additional or conflicting provision of the Municipal Code, the
definition of “Applicant” shall not be construed to mean any person or entity owning, holding or
possessing an easement interest, a leasehold interest, a license, a security interest or any other
form of interest in the Site, whether possessory or otherwise, other than fee simple ownership of
the Site as reflected in the official records of the Eagle County Tax Assessors office.
Application means any form of application or submittal to the Town for review and approval of
any form of development within The Village (at Avon), including but not limited to an
application or submittal regarding an amendment to this PUD Guide, a Preliminary Plan, a Final
Plat, a grading permit, a building permit or similar matters.
Appurtenances means the visible, functional, or ornamental objects accessory to and part of a
building.
Arcade means a series of arches or similar architectural features supported on piers or columns.
Architectural Projection means a building element (i.e., Appurtenance, Arcade, Awning,
Balcony, tower, steeple, portico, chimney, cupola and similar non-habitable features) which
physically projects beyond the plane of a required limitation (i.e., height, setback, etc.).
Automobile Repair Shop (Major or Minor) means an establishment that does not sell fuel,
gasoline or petroleum products which is primarily engaged in the service, repair or maintenance
(including but not limited to paint, body and fender, major and minor engine and engine part
overhaul, muffler, upholstery work, tire repair and change, lubrication, tune ups and transmission
work, vehicle washing, detailing polishing similar services) of:
(i) with respect to Major Uses, commercial and heavy truck oriented motor vehicles,
trailers and similar large mechanical equipment; and
(ii) with respect to Minor Uses, passenger and light truck oriented motor vehicles,
trailer and similar mechanical equipment.
Awning means a roof-like cover (whether canvas, metal, masonry or other material) that extends
in front of or over a doorway, window, deck, Balcony or entryway to provide protection from the
sun, rain or snow.
Balcony means that portion of a Structure that is essentially open and outward from the main
Building with a floor and a railing, with or without a ceiling or other form of cover, and higher
than four (4) feet above ground level.
Bed and Breakfast means an establishment operated in a private residence or portion thereof that
provides temporary accommodations to overnight guests for a fee and which is occupied by the
operator of such establishment.
Exhibit A
999369.16 I-3
Block means a unit of land designated as a “block” on a recorded Final Plat and which contains
within its boundaries a group of individually platted Lots as designated on such recorded Final
Plat.
Building means any permanent Structure constructed for the shelter or enclosure of persons,
animals, chattels or property of any kind, which is permanently affixed to the land and has one
(1) or more floors and a roof.
Building Envelope means the physical boundaries within which Buildings, Structures or other
above-ground improvements may be constructed on a particular Site, being a three
(3) dimensional volume circumscribed by:
(i) the applicable Building Setback requirements;
(ii) the applicable Building Height requirements;
(iii) the applicable Site Coverage requirements; and
(iv) the applicable Lot Area requirements.
(v) building envelopes as depicted on approved Final Plats for Lots in Planning Area
K as contemplated by Section D.8(d) of this PUD Guide.
Notwithstanding the foregoing, the following improvements are permitted outside of the
Building Envelope: Sidewalks, Drive Aisles, Driveways, landscape features, Infrastructure and
Dry Utilities.
Building Height means the distance measured vertically from the reference elevation (defined
below) to the top of a flat roof or mansard roof or to the highest ridgeline of a sloping roof (also
referred to as the parallel slope method and depicted by diagram in Section __________ of the
Development Code), but excluding from the calculation of Building Height any non-habitable
Architectural Projections. The “reference elevation” shall be:
(i) within Planning Areas I, K, RMF-1 and RMF-2, the Natural Grade
(ii) within all other Planning Areas, the Finished Grade
Building Setback means the distance from a specified Site boundary line, a creek or a stream
measured horizontally to a line or location within the Site which establishes the permitted
location of Uses, Structures, or Buildings on the Site. The location within a Site of Sidewalks,
Drive Aisles, Driveways, landscaping features and fences required pursuant to applicable Town
or other governmental ordinances, regulations and requirements (i.e., fence enclosures for
swimming pools) are not restricted by the Building Setback requirements.
Bus Stop means a facility for the loading and discharging of passengers by publicly or privately
operated buses.
Exhibit A
999369.16 I-4
Cabled Telecommunication Equipment means any equipment used to provide Cabled
Telecommunication Service, but which is not affixed to or contained within a Cabled
Telecommunication Facility, but is instead affixed to or mounted on an existing Building or
Structure the Primary Use of which is not for the provision of Cabled Telecommunications
Services. Cabled Telecommunication Equipment also includes a ground mounted base station
used as an Accessory Structure that is connected to an antenna or dish mounted on or affixed to
an existing Building.
Cabled Telecommunication Facility means any freestanding facility, Building, pole, tower or
other Structure used to provide only Cabled Telecommunication Services, and which consists of,
without limitation, antennae, equipment, storage and other Accessory Structures used to provide
Cabled Telecommunications Services.
Cabled Telecommunication Service means services providing for the transmission through Dry
Utilities facilities of analog or digital communications of any form and any similar services
transmitted by or through fiber optic or other forms of below or above ground cabling, including
but not limited to cable television, high speed data, telephony, and satellite television systems
providing services to a Multi-family Dwelling, a collection of Single-family Dwellings, or a
collection of Buildings within a Mixed Use Project.
Child Care Center means a facility, however named or denominated (for example, day-care
centers, day nurseries, nursery schools, preschools, play groups, day camps, summer camps,
centers for developmentally disabled, dependent and/or neglected children, but specifically
excluding Family-care Homes), which is maintained, for the whole or part of a day, for the care
of:
(i) five (5) or more children under the age of sixteen (16) years who are not related to
the owner, operator or manager of such facility, whether operated with or without
compensation for such and with or without stated education purposes; or
(ii) children under the age of six (6) years with stated education purposes which are
operated in conjunction with a public, private or parochial educational facility, except for
a kindergarten maintained in connection with a public, private or parochial elementary
school system of at least six (6) grades so long as the school system is not also providing
extended day care services.
Commercial Parking means a surface parking lot or Parking Structure that does not provide
accessory parking to a specific Building or Use, is available for parking by the general public for
a fee, may include reserved parking spaces, and which is owned by a private, non-governmental
entity.
Commercial Space means, as more particularly described and qualified in Section B.10 of this
PUD Guide, the square footage of a Building developed for Commercial Uses.
Commercial Use(s) means the following Uses:
(a) Accommodations Units;
Exhibit A
999369.16 I-5
(b) Animal Boarding;
(c) Automobile Repair Shop (Major or Minor);
(d) bakeries;
(e) bar and tavern;
(f) barber and beauty shops;
(g) Bed and Breakfast;
(h) beverage stores, coffee shops;
(i) Bus Stop;
(j) business and professional offices;
(k) Cabled Telecommunications Equipment;
(l) Cabled Telecommunications Facilities;
(m) Cabled Telecommunications Services;
(n) car wash (as the Principal Use);
(o) Child Care Center;
(p) Churches;
(q) cinema;
(r) clinic, intermediate medical care facility (i.e., out-patient services only);
(s) clothing stores;
(t) Community Facilities;
(u) commercial offices;
(v) Commercial Parking;
(w) Convenience Retail;
(x) department stores;
(y) Drive-in Uses;
(z) employment agency
Exhibit A
999369.16 I-6
(aa) Extended Stay Hotel;
(bb) Family Child Care Home;
(cc) Grocery Store;
(dd) Financial institutions;
(ee) fitness centers and health clubs;
(ff) furniture stores;
(gg) hardware stores;
(hh) Hotel, Motel and Lodge;
(ii) Home Occupations, Minor and Major;
(jj) Hospitals, long-term care facilities and other medical facilities including, but not
limited to clinics, group and congregate care facilities, independent and assisted living
facilities and nursing homes;
(kk) indoor entertainment facility;
(ll) indoor storage;
(mm) Kennels;
(nn) laboratory;
(oo) landscaping and snow removal services;
(pp) laundromat/dry cleaning;
(qq) Medical Marijuana Businesses;
(rr) medical and dental offices;
(ss) meeting facility;
(tt) newspaper and commercial printing shops;
(uu) Nude Entertainment Establishments;
(vv) nursery or garden supply;
(ww) Outdoor Storage;
Exhibit A
999369.16 I-7
(xx) pet shop (for the sale of pets, pet supplies and/or for domesticated animal
grooming)
(yy) professional offices;
(zz) real estate sales offices;
(aaa) photocopy and blueprint businesses;
(bbb) Public Facilities;
(ccc) Private Parking;
(ddd) Public Parking;
(eee) Recycling Facility;
(fff) Recycling Processing Facility;
(ggg) repair shops, small electronics repair;
(hhh) Restaurants;
(iii) Retail sales, specialty and gift shops; ski tuning; bike assembly
(jjj) service and social clubs;
(kkk) Service Stations;
(lll) Studios (music, dancing, photography, movie, art and broadcasting)
(mmm)tailor, seamstress, clothing alterations
(nnn) tattoo parlor, body piercing
(ooo) Temporally Divided Dwelling
(ppp) theaters;
(qqq) trade schools and colleges;
(rrr) Transit Shelter;
(sss) Wireless Telecommunications Equipment;
(ttt) Wireless Telecommunications Facilities;
(uuu) Wireless Telecommunications Services;
(vvv) Vacation Clubs;
Exhibit A
999369.16 I-8
(www) Uses which the Director determines to be similar.
Community Development means the Town of Avon Department of Community Development.
Community Facility means a publicly or privately owned facility, Building or Structure which is
primarily intended to serve the recreational, educational, cultural administrative or entertainment
needs of the community as a whole and is operated on a non-commercial, not for profit, non-
profit or similar basis.
Comprehensive Plan means the Town of Avon Comprehensive Plan, effective as of date the
Town approved the Original PUD.
Condominium means any group of Condominium Units developed as a unitary project within a
Site on which one or more Buildings are located.
Condominium Unit means an individual air space unit (as defined in C.R.S. § 38-33-103(4))
together with the interest in the common elements (as defined in C.R.S. § 38-33-103(3)) of the
Condominium appurtenant to such unit. For purposes of Dwelling Unit calculation, only
Condominium Units which are designated for Residential Use shall be counted as Dwelling
Units.
Convenience Retail means a retail store containing less than five thousand (5,000) square feet of
gross floor area which sells everyday good and services, which may include, without limitation,
ready-to-eat food products, groceries, over-the-counter drugs and sundries.
Design Covenant means the Declaration of Master Design Review Covenants For The Village
(at Avon) dated May 8, 2002 and recorded on May 8, 2002 at Reception No. 795011, as
amended by the First Amendment to Declaration of Master Design Review Covenants For The
Village (at Avon) dated June 4, 2008 and recorded on June 10, 2008 at Reception
No. 200812112 and by the Second Amendment and Ratified First Amendment to Declaration of
Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and
recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended
from time to time.
Design Review Guidelines means The Village (at Avon) Design Review Guidelines dated
March 15, 2011, as may be further amended and/or supplemented from time to time, and as
prepared, approved and promulgated by the Design Review Board and which establish the sole
and exclusive architectural design, landscape design, urban design and site design standards
applicable within The Village (at Avon).
Design Review Board means The Village (at Avon) Design Review Board as appointed or
elected in accordance with the Design Covenant.
Developer Affiliates means, collectively, together with their respective successors and assigns
and together with any other entity with respect to which Traer Creek LLC is the managing
member and which acquires title to any portion of the Property after the Effective Date, Traer
Creek-RP LLC, EMD Limited Liability Company, Traer Creek Plaza LLC, Traer Creek-HD LLC
and Traer Creek-WM LLC.
Exhibit A
999369.16 I-9
Development Agreement means the Consolidated, Amended and Restated Annexation and
Development Agreement for The Village (at Avon) concerning the Property dated as of
_________________, 2012, as amended from time to time.
Development Code means Title 7 of the Municipal Code, as in effect on the Effective Date
unless otherwise stated.
Development Plan means, as referenced in Section A.4(b) of this PUD Guide, collectively,
(i) this PUD Guide (together with each Exhibit hereto), as amended from time to time; and
(ii) the Development Agreement.
Development Standards means the planning requirements and regulations governing the
development of the Property as set forth in Sections D and I of this PUD Guide.
Director means the Director of Community Development.
Drive Aisle means the lane(s) within a parking lot or facility devoted to the passage of vehicles,
as opposed to the parking stalls, and does not include lanes used only or primarily for drive-in
customer service.
Drive-in Use means an establishment which by design, physical facilities, service or packaging
procedures encourages or permits customers to receive services, obtain goods or be entertained
while remaining in their motor vehicles.
Driveway means a constructed vehicular access serving one (1) or more properties and
connecting directly to a public or private road.
Dry Utilities means, excluding Infrastructure, conduit and sleeving for, and the installations
contained therein, telephone, cable, fiberoptic and similar “dry” utilities intended to be privately
owned, maintained and/or operated.
Duplex Dwelling means a single architecturally integrated Structure that contains two separate
and independent residences intended to be occupied by two (2) families (or groups of people)
living independently of one another, but does not encompass Primary/Secondary Structures. For
purposes of the Dwelling Unit calculation, each residence within a Duplex Structure counts as a
separate Dwelling Unit, thereby counting as two Dwelling Units per Duplex Structure. If the Site
on which a Duplex Structure is constructed is subsequently subdivided into two separate Lots,
each of the Lots and Dwelling Units can be owned separately as fee simple estates and
ownership can then be conveyed or transferred independently.
Dwelling means a Building or portion thereof the occupancy of which is exclusively for
Residential Use as a Single-family Dwelling, Duplex Dwelling, Multi-family Dwelling
(including Condominium Units designated for Residential Use), Primary/Secondary Dwelling or
Major or Minor Home Occupation.
Dwelling Unit(s) means one or more rooms which is designed, occupied or intended for
occupancy as separate living quarters for the exclusive use of a single family (or group of
people) or individual independently from any other family or group of people and having not
Exhibit A
999369.16 I-10
more than one (1) primary indoor kitchen (i.e., butler kitchens, catering kitchens, bar kitchens
and the like shall not be deemed to be primary kitchens) and at least one (1) bathroom.
Effective Date means ____________________, 2012, and is intentionally distinguished from
Original Effective Date.
Extended Stay Hotel means a Hotel/Motel/Lodge with Accommodation Units that have complete
kitchen and bathroom facilities intended and utilized primarily for transient or semi-transient
occupancy.
Family Child Care Home means a facility for Child Care in a place of residence of a family or
person for the purpose of providing less than twenty-four (24) hour care for children under the
age of eighteen (18) years who are not related to the head of such home, and may include any
such other types of family Child Care homes as may be designated by rules of the State
Department of Social Services pursuant to C.R.S. § 26-9-106(2)(p).
Final Plat means a final subdivision plat for the Property, or any portion thereof, including any
replats thereof or amendments thereto, approved by the Town pursuant to Section G of this PUD
Guide and/or Section 7.16.070 of the Development Code, as applicable.
Finished Grade means the final elevation of the ground surface after development.
Grocery Store means a retail establishment which primarily sells food for home consumption,
beverages and other convenience and household goods.
Gross Square Footage means the total floor area designed for occupancy and use, including
basements, mezzanines, stairways and upper floors, if any, expressed in square feet and
measured from the interior surface of joint partitions and exterior surface of outside walls.
Group Home means a Structure within which a state licensed facility for the care and/or housing
of developmentally disabled persons, mentally ill persons, sex offenders, parolees or similar
distinct groups of individuals is undertaken.
Home Occupation, Major means an occupation or business activity which results in a product or
service and is conducted in whole or in part in a Dwelling Unit and does not qualify as a Minor
Home Occupations because it: produces noise audible outside the Dwelling Unit; causes or
requires customers, delivery persons, employees or any person to enter the property on or within
which the Dwelling Unit is located; requires alteration to the Dwelling Unit to satisfy applicable
fire, building or health codes or regulations; requires or allows any signs to be visible from the
outside of the property on or within which the Dwelling Unit is located; and/or changes the
appearance or residential character of the Structure.. A Major Home Occupation Use shall be
considered a Commercial Use.
Home Occupation, Minor means any occupation, profession or other activity (including any
activity associated with a non-profit group) that takes place entirely within a Dwelling Unit and
which does not: produce noise audible outside the Dwelling Unit; cause or require customers,
delivery persons, employees or any person to enter the property on or within which the Dwelling
Unit is located; require alteration to the Dwelling Unit to satisfy applicable fire, building or
Exhibit A
999369.16 I-11
health codes or regulations; require or allow any signs to be visible from the outside of the
property on or within which the Dwelling Unit is located; or change the appearance or residential
character of the Structure. A Minor Home Occupation shall be considered a Residential Use.
Hospital means an institution providing health services primarily for human inpatient medical or
surgical care for the sick or injured and including related facilities such as laboratories, out-
patient departments, cafeteria and food preparation areas, training and central services facilities
and staff offices.
Hotel, Motel and Lodge means a Building, including an Extended Stay Hotel but excluding a
Bed and Breakfast, containing three (3) or more Accommodation Units and which may include
Accessory Use facilities such as offices, laundry facilities, recreation facilities, lobbies, lounges,
kitchen and dining facilities, meeting rooms, retail and other similar accessory uses commonly
associated with hotels, motels and lodges.
Industrial Use(s), Heavy or Light means:
(i) with respect to Heavy Industrial Uses, those uses engaged in the basic processing
and manufacturing of material or products predominately from extracted or raw
materials, or a use engage in storage of, or manufacturing processes using flammable or
explosive materials, or storage or manufacturing process that potentially involve
hazardous conditions. Heavy Industrial Uses shall also mean those uses engaged in the
operation, parking and maintenance of vehicles (but specifically excluding Automobile
Repair Shops), cleaning of equipment or work processes involving solid waste or sanitary
waste transfer stations, recycling establishments, and transport terminals (truck terminal,
public works yard, container storage).
(ii) with respect to Light Industrial Uses, those uses engaged in the manufacturing,
predominantly from previously prepared materials, of finished products or parts,
including processing, fabrication, assembly, treatment, packaging, incidental storage,
sales or distribution of such products. Further Light Industrial Uses shall mean uses such
as the manufacture of electronic instruments, preparation of food products,
pharmaceutical manufacturing, research and scientific laboratories or the like. Light
Industrial Uses shall not include uses such as mining and extracting industries, petro-
chemical industries, rubber refining, primary metal, or related industries.
Infrastructure means, excluding Dry Utilities, those man-made structures which serve the
common needs of the population and are generally intended to be dedicated to, owned by and
maintained by the Town, another governmental or quasi-governmental entity and/or a public
utility provider, including but not limited to potable water systems; wastewater disposal systems;
solid waste disposal sites or retention areas; storm drainage systems; electric, gas or other
utilities; bridges; roadways; bicycle paths or trails; pedestrian sidewalks, paths or trails; and
transit stops.
Interim Use means a Use that is permitted on a case-by-case basis within a particular Planning
Area or on a specific Site during the period prior to or during development of a Site upon an
Applicant’s receipt of written approval from the Design Review Board (as applicable) in
Exhibit A
999369.16 I-12
accordance with Section I.1 of this PUD Guide; provided, however, that Agricultural Uses as an
Interim Use shall be construed to be a Use by Right within all Planning Areas without the
requirement of written approval from the Design Review Board.
Kennel means a facility licensed to house dogs, cats or other household pets and/or where
grooming, breeding, boarding, training or selling of animals is conducted as a business.
Landowner means the owner(s) of fee simple title to a Block, Lot, Tract or other parcel of real
property as reflected in the official records of the Eagle County Tax Assessor. Notwithstanding
any additional or conflicting provision of the Municipal Code, the definition of “Landowner”
shall not be construed to mean any person or entity owning, holding or possessing an easement
interest, a leasehold interest, a license, a security interest or any other form of interest, whether
possessory or otherwise, other than fee simple ownership as reflected in the official records of
the Eagle County Tax Assessors office.
Landscaped Area means that portion of a parcel of land with any combination of living plants,
such as trees, shrubs, vines, groundcover, flowers, or lawns; natural features and nonliving
groundcover such as rock, stone and bark; and structural features, such as fountains, reflecting
pools, art works, screen walls, fences and benches; but shall not include parking areas.
Lot(s) means a parcel of real property as shown with a separate and distinct “lot” number or
letter on a Final Plat.
Lot Area means the gross area contained within the external boundary lines of a Lot, expressed
in acres or in square feet.
Main Street means, as described and conceptually depicted in Exhibit F of this PUD Guide, the
primary east-west roadway connecting Post Boulevard to Chapel Place.
Manufactured Home means a Single-family Dwelling which is: partially or entirely
manufactured in a factory; at least twenty-four (24) feet wide and thirty-six (36) feet long;
permanently affixed to and installed on an engineered permanent foundation; covered by a
pitched or cosmetically equivalent roof and brick or wood exterior siding; in compliance with
HUD or UBC standards, as applicable, or meets or exceeds equivalent requirements and
performance engineering standards.
Master Developer means EMD Limited Liability Company, a Colorado limited liability company
(with respect to Planning Area I only) and Traer Creek LLC, a Colorado limited liability
company (in all other respects), which entities (or any successor entities) are designated and
authorized to act on behalf of all Developer Affiliates. The Developer Affiliates have designated
the Master Developer to act on behalf of themselves and their respective successors in interest
with respect to and for all purposes of this PUD Guide. The Developer Affiliates may designate
a replacement Master Developer from time to time, or may terminate the role of the Master
Developer, by delivery of written notice thereof to the Town and to Traer Creek Metropolitan
District, its successors or assigns, which is signed by a majority of the Developer Affiliates
owning any part of the Property as of the date of such notice. Any replacement Master
Developer must be an entity that is a Developer Affiliate. The designation of a replacement
Exhibit A
999369.16 I-13
Master Developer or termination of the role of Master Developer by the Developer Affiliates
shall not require an amendment to this PUD Guide and shall not require the consent of the Town.
Medical Marijuana Business means the Use of a Site, or portion thereof, for the cultivation,
manufacture, production, distribution, acquisition or sale of marijuana, including for Medical
marijuana Centers, manufacturing of Medical Marijuana-Infused Products, or Optional Premises
as such terms are defined by C.R.S. § 12-43.3-104, as may be amended, regardless of whether
such Use is for profit or not for profit.
Minimum Design Guideline Standards means the minimum design guideline standards for The
Village (at) Avon set forth in Exhibit E of this PUD Guide.
Mobile Home means a Single-family Dwelling partially or entirely manufactured in a factory,
built on a permanent chassis, which is designed to be transported on streets to the place where it
is to be occupied as a Dwelling Unit, and is: at least twenty-four (24) feet wide and thirty-six
(36) feet long; permanently affixed to and installed on an engineered permanent perimeter
foundation; covered by a pitched or cosmetically equivalent roof and brick or wood exterior
siding; in compliance with HUD or UBC standards, as applicable, or meets or exceeds equivalent
requirements and performance engineering standards.
Mixed Use Project means the development of a Site, Building or Structure with two or more
different Uses in accordance with the Development Standards and which is designed, planned
and constructed as a unified project. Mixed Use Projects may be horizontally integrated or
vertically integrated, or both.
Multi-family Dwelling means a Building containing three or more Dwelling Units, whether such
Dwelling Units are for sale or for lease (including Condominium Units designated for
Residential Use).
Municipal Code means the Town’s Municipal Code, as in effect on the Effective Date unless
otherwise stated.
Natural Grade means the elevation of the ground surface in its natural state, before man-made
alterations.
Nude Entertainment Establishments means establishments open for business to the public in
which persons appear in a state of nudity for the purpose of entertaining the patrons of such
establishments, as more particularly described in Chapter 8.26 of the Municipal Code.
Off-street Parking Area means all off-street areas and spaces designed, used, required or
intended to be used for the parking, storage or operation of motor vehicles, including Driveways
or access ways in and to such areas, but not including any Outdoor Storage area used principally
for storage of recreational vehicles, landscaping materials or other bulk items, or public streets
and rights-of-way.
Open Space means any land or water area with its surface open to the sky which serves specific
Uses of providing park and recreation opportunities, conserving natural areas and environmental
resources, structuring urban development form, and protecting areas of agricultural,
Exhibit A
999369.16 I-14
archeological or historical significance, but shall not be construed to mean vacant or
undeveloped land that is zoned for development.
Original Effective Date means October 13, 1998, and is intentionally distinguished from
Effective Date.
Original PUD Guide. The version of this PUD Guide originally approved by the Town on
October 13, 1998 and recorded in the real property records of Eagle County, Colorado, on
November 25, 1998 at Reception No. 677744, as amended by the Prior Amendments.
Outdoor Storage means the storage of any equipment, good, junk material, merchandise or
vehicles in the same place for more than twenty-four (24) hours in any area other than within a
roofed Structure.
Parking Regulations means, as set forth in Exhibit C to this PUD Guide, the sole and exclusive
Development Standards regulating parking within The Village (at Avon) PUD, which expressly
supersede any additional or conflicting provisions of the Municipal Code (including but not
limited to the parking standards set forth in Chapter 7.28 of the Development Code, as amended
from time to time), including without limitation, any additional or conflicting such provisions.
Parking Structure(s) means an above ground or below ground Structure of one or more levels
containing Drive Aisles and parking stalls, which may be a stand-alone Structure or be integrated
into or within a Structure as an Accessory Use or Accessory Structure, and which may provide
Commercial Parking, Public Parking or Private Parking.
Planning and Zoning Commission means the Town’s Planning and Zoning Commission.
Planning Area means an area indicated as a planning area on the PUD Master Plan, the Use and
development of which shall be regulated by and be undertaken in accordance with the
Development Plan.
Planning Department means the Town’s Planning Department.
Preliminary Engineering means the following submittals in connection with certain future street
improvements within The Village at (Avon) as described in Section A.4(g) of the PUD Guide:
utilities locations (excluding utility sizing), preliminary drainage report, preliminary grading plan
and street cross sections, including transitions between any different cross sections.
Preliminary Plan means a preliminary subdivision plat for the Property, or any portion thereof,
approved by the Town pursuant to Section G of this PUD Guide and/or Section 7.16.070 of the
Development Code, as applicable.
Primary/Secondary Structure means a structure that consists of two Dwelling Units within a
single fee simple estate: one primary unit (containing the Principal Use) and one secondary unit
(i.e, a “mother-in-law suite, carriage house or caretaker’s quarters). The primary unit must be a
Single-family Dwelling. Within all Planning Areas, the secondary unit can be no more than 40%
of the floor area of the primary unit. The secondary structure may attached to or detached from
the primary unit; provided that the two units cannot be subdivided or separately conveyed or
Exhibit A
999369.16 I-15
transferred in ownership and the secondary unit may not be leased or subject to a leasehold
interest separate from the primary unit. The Residential Use of the Secondary Structure shall be
construed to be an Accessory Use to the Principal Use of the Primary Structure. For all purposes
under this PUD Guide, the primary unit and secondary unit, whether attached or detached, shall
be counted as two Dwelling Units; provided, however, any primary unit and secondary unit,
whether attached or detached, located in Planning Area K on any Lot east of Lot 73 (as depicted
on the PUD Master Plan) shall be counted as one Dwelling Unit in the aggregate.
Principal Use means the primary or main Use of a Site or Structure as distinguished from a
subordinate or Accessory Use.
Prior Amendments has the meaning set forth in Section A.2(c) of this PUD Guide.
Private Parking means a surface parking lot or Parking Structure that provides accessory parking
to a specific Building or Use, is available for parking by the owners, tenants and/or customers of
the Building or Use, may include reserved parking spaces, and which is owned by a private,
non-governmental entity such as an owners association.
Prohibited Use means a Use which is specifically not permitted within a particular Planning
Area, as distinguished from a Use by Right, a Special Review Use, a Temporary Use or an
Interim Use.
Property means the real property commonly known as The Village (at Avon) PUD, the
boundaries of which are legally described in Exhibit A to this PUD Guide.
Property Line means the boundary of any Lot, Block, Tract, Site or other parcel of land as the
same is described in the pertinent Final Plat or instrument of conveyance to the Landowner, as
applicable.
Public Improvement(s) means any drainage ditch, storm water improvement, potable water line,
sanitary sewer line, similar utility extension, roadway, parkway, sidewalk, pedestrian way, tree
lawn, landscaped Open Space, Off-street Parking area, Lot improvement or similar facility or
improvement which benefits the public, is required by the Town to be provided by or on behalf
of the Applicant and assurance of completion to be provided as a condition of any development
approval, and is documented in a Public Improvements Agreement. Public Improvements may
include and generally will be comprised of Infrastructure and/or Dry Utilities, but may include
types of improvements other than Infrastructure and Dry Utilities or exclude certain types of
improvements that are Infrastructure or Dry Utilities.
Public Improvements Agreement means an agreement to be entered into between the Town and
the party responsible for constructing public infrastructure in connection with the applicable
Application as contemplated by Section 7.32.100 of the Development Code, which agreement
shall be in the form set forth in Exhibit F to the Development Agreement, or as otherwise
mutually agreed upon by the Master Developer and the Town.
Public Improvement Company means, collectively, The Village (at Avon) Commercial Public
Improvement Company and The Village (at Avon) Mixed-Use Public Improvement Company,
Exhibit A
999369.16 I-16
which the Master Developer has created in accordance with and for the purposes stated in the
Development Agreement.
Public Facility(ies) means constructed facilities that are owned by the Town, a District or another
governmental or quasi-governmental entity, including but not limited to: transportation systems
or facilities; water systems or facilities; wastewater systems or facilities; storm drainage systems
or facilities; fire, police and emergency services systems or facilities; electric, gas,
telecommunications utilities or facilities; and other publicly owned buildings or facilities.
Public Parking means a surface parking lot or Parking Structure that is available for parking by
the general public and which is owned by the Town, a quasi-governmental entity (specifically
including Traer Creek Metropolitan District and Village Metropolitan District and any other
quasi-governmental entity or urban renewal authority approved by the Town after the Effective
Date and having all or any part of its boundaries or service area located within The Village (at
Avon)).
PUD Guide means this The Village (at Avon) Amended and Restated PUD Guide dated
__________________, 2012, and all exhibits attached hereto.
PUD Master Plan means The Village (at Avon) P.U.D. Master Plan attached hereto as Exhibit B
and incorporated herein. The PUD Master Plan depicts, among other things, Planning Areas and
permanent, temporary and conceptual road alignments for the development of The Village (at
Avon).
Recycling Facility means a facility, which may be either contained and conducted within a
Structure or conducted outside of a Structure so long as all materials are stored within an
enclosed container, for the collection and temporary storage (prior to relocating to a Recycling
Processing Center) of empty beverage containers, aluminum, glass, paper, cardboard, clothing or
other materials for recycling purposes.
Recycling Processing Center means a facility in which recycling materials received from a
Recycling Facility or from other sources are processed for subsequent use or distribution.
Religious Facility means a Building containing a hall, auditorium or other suitable room or
rooms used for the purpose of conducting religious worship or other services or meetings of the
occupants of such structure, including churches, synagogues, mosques or the like, but excluding
any Buildings used for commercial endeavors.
Residential Use means the Use of a Building (or applicable potion thereof) for purposes of a
Single-family Dwelling, Duplex Dwelling, Multi-family Dwelling, Minor or Major Home
Occupation (portion of the Building not used for Commercial or Industrial Uses),
Primary/Secondary Structure or Group Home.
Restaurant(s) means an establishment engaged in the Use or Accessory Use of a building or
structure for the sale of foods and beverages to the customer in a ready-to consume state, and in
which the design or principal method of operation includes the following characteristics:
Exhibit A
999369.16 I-17
(i) With respect to “drive-through” Restaurants, allows for or beverages to be served
directly to the customer in a motor vehicle without the need for the customer to exit the
motor vehicle.
(ii) With respect to “fast food” Restaurants:
(a) Food and beverages are usually served in paper, plastic or other disposable
containers;
(b) The consumption of food and beverages is encouraged or permitted within
the Restaurant building, within a motor vehicle parked upon the premises or at
other facilities on the premises outside the restaurant building, or for carry-out;
and
(c) Drive-through facilities are allowed, subject to Design Review Board
review and approval of Site-internal traffic patterns, Site-internal vehicle stacking
areas, and entrance and exit locations.
(iii) With respect to “standard” Restaurants, which may but are not required to include
as an Accessory Use the on-premises production of fermented (alcoholic) malt beverages
and/or malt, special malt or vinous and spirituous liquors:
(a) Customers are served their food and/or beverages by a restaurant
employee at the same table or counter at which the items are consumed; and/or
(b) Customers are served their food and/or beverages by means of a cafeteria
type operation where the food or beverages are consumed within the Restaurant
building.
Required Street Connections has the meaning giving it in Section G.3(b) of this PUD Guide.
Service Station(s) means a facility equipped for the sale of gasoline, diesel, electricity or other
forms of fuel for motorized vehicles, and which may but is not required to include as an
Accessory Use Convenience Retail, fast food Restaurants, drive-through Restaurants, and/or
automated or self car washes.
Settlement Term Sheet has the meaning set forth in Section A.2(b) of this PUD Guide.
Single-family Dwelling means a Building designed exclusively for occupancy by one (1) family
(or individual or group of individuals living independently as a unit), but expressly excluding a
Mobile Home.
Site means a specifically described area of land which is the subject of a development
Application, and which may be a Lot, an aggregation of Lots within a Mixed Use Project or any
other form of designation or combination of designations of specifically described areas of land
that are otherwise eligible to be developed under the terms of this PUD Guide and applicable
law.
Exhibit A
999369.16 I-18
Site Coverage means the ratio, expressed as a percentage, of the area of a Site which is rendered
impermeable by Buildings compared to the Lot Area (or in the case of an assemblage of Lots, the
gross area contained with the entire Site).
Special Review Use means a Use or Uses permitted to be developed or conducted within The
Village (at Avon) PUD only upon further Town review and approval of such Use in accordance
with and subject to compliance with the terms and conditions of Section E of this PUD Guide.
Any such Special Review Uses are further subject to compliance with the applicable
Development Standards, the Design Review Guidelines, the Subdivision Regulations and
approval by the Design Review Board, and issuance of a building permit in accordance with
Section A.4(h) above and any applicable Town use permit or business permit in accordance with
applicable requirements of the Municipal Code, as superseded or modified by the Development
Plan.
Stream Setback Provisions means the provisions and requirements set forth in Section I.13 of
this PUD Guide.
Structure means a combination of materials to form a construction for Use, occupancy or
ornamentation whether installed on, above or below the surface of land or water.
Subdivision Regulations means Section 7.16.070 of the Development Code, as modified and/or
superseded by the provisions of Section G of this PUD Guide.
Supplemental Hotel Design Standards has the meaning given it in Section I.10 of this PUD
Guide.
The Village (at Avon) PUD means the zone district authorized for the Property by the Town, and
which constitutes the sole and exclusive zoning regulations applicable within the Property and
expressly supersedes any additional or conflicting provisions of the Municipal Code, as
superseded or modified by the Development Plan.
Temporally Divided Dwelling means any Dwelling with respect to which more than four
(4) persons (or entities), whether by fee interest, leasehold or contractual right, are entitled to the
use, occupancy or possession of such Dwelling according to a fixed or floating time schedule
occurring periodically over any period of time (the use, occupancy or possession by each person
being exclusive of that by the others. Temporally Divided Dwelling includes but is not limited
to a timeshare estate as defined in C.R.S. § 38-33-110, any form of interval ownership, any form
of fractional fee ownership, and any form of vacation club or similar venture. For purposes of
this definition, the Use of the Dwelling rather than the form of ownership of the Dwelling (i.e.,
whether owned in fee by a single owner, a corporate entity engaged in the business of providing
services to those entitled to the use, occupancy or possession of a Temporally Divided Dwelling,
or similar forms of ownership) shall be determinative of whether a Dwelling is a Temporally
Divide Dwelling; provided, however that ownership of an interest in joint tenancy by two
(2) persons shall be considered one (1) person.
Temporary Use means any Use that is not classified as a Permitted Use, Special Review Use or
Interim Use with respect to the applicable Planning Area.
Exhibit A
999369.16 I-19
Town means the Town of Avon, a municipal corporation of the State of Colorado.
Town Council means the Town Council of the Town.
Tract means a parcel of real property as shown with a separate and distinct “tract” number or
letter on a Final Plat.
Transit Shelter means a Structure which provides protection from the weather to persons who are
waiting to board a publicly or privately operated bus or other form of mass transit.
Transportation Master Plan. The Transportation Master Plan adopted by the Town, as amended
from time to time.
Use(s) means the primary or principal purpose for which land or a building or structure is
designated, arranged, or intended, or for which it either is or may be occupied or maintained.
Use(s) by Right means a Use or Uses permitted to be developed or conducted within The Village
(at Avon) PUD without the requirement of further Town review or approval, subject to
compliance with the applicable Development Standards, the Design Review Guidelines, the
Subdivision Regulations and approval by the Design Review Board, and with respect to which a
building permit shall be issued in accordance with Section A.4(h) of this PUD Guide and/or any
applicable Town use permit or business permit in accordance with applicable requirements of the
Municipal Code, as superseded or modified by the Development Plan.
Use Category means one of the following general categories of Use that may be permitted within
The Village (at Avon) on a Planning Area by Planning Area basis:
(i) Residential Uses.
(ii) Commercial Uses.
(iii) Industrial Uses.
(iv) Interim Uses.
(v) Mixed Use Projects.
(vi) Public Facilities.
Vacation Club means a corporate entity that is the record owner, as reflected in the records of the
Eagle County Tax Assessor, of a Temporally Divided Dwelling which Dwelling it makes
available to its members and/or guests of its members for their accommodation on a periodic
basis in consideration of such members’ interest or membership in the entity.
Vested Property Right(s) has the meaning set forth in [Section 2.4] of the Development
Agreement.
Vested Property Rights Regulations means Section 7.16.140 of the Development Code, as
modified by this PUD Guide.
Exhibit A
999369.16 I-20
Vested Property Rights Statute means Sections 24-68-101 et seq. of the Colorado Revised
Statutes as in effect on October 13, 1998.
Wildlife Mitigation Plan means, as set forth in Exhibit D to this PUD Guide, the sole and
exclusive Development Standards for wildlife mitigation measures applicable within The Village
(at Avon) PUD, and which expressly supersedes any additional or conflicting provisions of the
Municipal Code.
Wireless Telecommunication Equipment means any equipment used to provide Wireless
Telecommunication Service, but which is not affixed to or contained within a Wireless
Telecommunication Facility, but is instead affixed to or mounted on an existing Building or
Structure the Primary Use of which is not for the provision of Wireless Telecommunications
Services. Wireless Telecommunication Equipments also includes a ground mounted base station
used as an Accessory Structure that is connected to an antenna mounted on or affixed to an
existing Building.
Wireless Telecommunication Facility means any freestanding facility, Building, pole, tower or
other Structure used to provide only Wireless Telecommunication Services, and which consists
of, without limitation, antennae, equipment, storage and other Accessory Structures used to
provide Wireless Telecommunications Services.
Wireless Telecommunication Service means services providing for the transmission of wireless
communications utilizing frequencies authorized by the Federal communications commission for
paging systems, enhanced specialized wireless telecommunication, persona communication
services, cellular telephone service and any similar services provided by means other than
Cabled Telecommunication Services.
Exhibit A
1019858.1
Final PUD Application
The Village (at Avon)
Amended and Restated PUD Guide and PUD Master Plan
Project Narrative
Traer Creek, LLC (“Applicant”) submits the enclosed application for a final PUD (“PUD”),
including The Village (at Avon) Amended and Restated PUD Guide (“PUD Guide”) and PUD
MasterPlan (“PUD Map”). Applicant submits the PUD on behalf of the “Owners” as defined in
the existing The Village (at Avon) PUD Guide dated October 13, 1998, as amended (“Existing
PUD”), for the purpose of implementing certain provisions of the “Settlement Term Sheet,” as
more specifically discussed and defined below.
In accordance with the terms and conditions of that certain Settlement Term Sheet made and
entered on October 7, 2011, by and between the Town of Avon (“Town”), Traer Creek LLC,
Traer Creek-RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer
Creek-HD LLC, Traer Creek-WMT LLC (collectively, the “Developer Entities”), BNP Paribas
and Traer Creek Metropolitan District (the “Settlement Term Sheet”), the Developer Entities
agreed to submit, and the Town agreed to process and decide upon, the PUD (and a final PUD)
for the purposes of implementing certain land use related matters as follows:
Extension of the vested property rights period;
Dedication of a school site;
Allowing commercial as a permitted use on (existing) Planning Areas N South and
RMF-1, including hotel and lodging uses (subject to objective minimum design
requirements reviewable by the Town at the time of building permit application);
Modified street standards for access to (existing) Planning Area M;
Increased density and development standards for the “hillside residential”;
Modified street width and phased development for Main Street;
Application of the “David Johnson Study” regarding drainage requirements for the
hillside residential; and
Administrative subdivision processing for certain portions of The Village (at Avon).
In addition to the above-referenced land use matters that have been incorporated into the PUD,
certain additional modifications to the Existing PUD are proposed. A “redlined” comparison of
the proposed PUD Guide against the Existing PUD Guide is included with this application for
the PUD to facilitate a more efficient review of the proposed modifications. Certain of the
proposed modifications include changes to the uses permitted in certain planning areas
(including providing for a more specific definition of “Commercial Uses,” removal of the overall
density limitations for the project for commercial and residential uses, allocation and tracking of
water rights to serve development of the project, incorporation of the temporary use permit
provisions of the Development Code, provision of street standards applicable to the project,
revisions to the parking regulations governing all parking uses within the project and
clarification regarding certain provisions of the Development Code and Municipal Code that do
not apply to the project).
Exhibit B
1019858.1 2
Consist with the terms of the Existing PUD, proposed PUD Guide, existing “Annexation and
Development Agreement” (as defined in the Existing PUD) and proposed Consolidated,
Amended and Restated Annexation and Development Agreement for The Village (at Avon)
(“Agreement”) submitted to the Town concurrently with the PUD, upon approval, the PUD
(including the PUD Guide and the PUD Map) shall each be a “site specific development plan”
and have vested property rights under state statute and the Town Development Code
(“Development Code”), as modified by the terms of the Agreement and PUD Guide, for the
remainder of the term prescribed in the Agreement and PUD Guide. The appropriate vesting
language is provided on the cover page of the PUD Guide.
The Applicant submits the most current draft of the PUD Map (version 8) produced and
disseminated by the Town as a part of the application for this PUD. However, the Applicant
notes that the PUD Map requires further revision with respect to the planning area boundaries as
the same relate to rights-of-way that bisect planning areas, consistent with the provisions set
forth in Section A.4(f) of the PUD Guide.
Pursuant to Section 7.16.070(e)(4) of the Town Development Code (“Development Code”), the
Planning and Zoning Commission and Town Council shall consider certain criteria as the basis
for a recommendation or decision, respectively, to rezone a property to the planned unit
development zone district and to approve a PUD. As noted above, the PUD is an amendment to
the Existing PUD previously approved by the Town for The Village (at Avon); however, in
accordance with the Development Code, the approval process with respect to such amendments
are the same as for the original approval. The following are the review criteria set forth in
Section 7.16.070(e)(4) of the Development Code, and describe how the PUD satisfies such
review criteria, to the extent applicable.
1. The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or
incorporates creative site design such that it achieves the purposes of the Development Code and
represents an improvement in quality over what could have been accomplished through strict
application of the otherwise applicable district or development standards. Such improvements in
quality may include, but are not limited to: improvements in open space provision and access;
environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and
other utilities and services; or increased choice of living and housing environments.
The PUD provides for a large-scale, master-planned mixed-use development that would
not otherwise be possible under the Town Euclidian zone districts. The uses, dimensional
limitations and development standards, among other matters, set forth in the PUD Guide will
provide for flexibility in the development of The Village (at Avon) and will encourage
innovative and coordinated development and design, consistent with Section 7.16.060 of the
Development Code. The PUD provides for a mix of integrated uses and public facilities and
amenities, including natural open space, community and pocket parks, trail and pedestrian
connectivity, a diverse housing mix and retail and commercial services for The Village (at Avon)
and the Town as a whole. A Declaration of Master Design Review Covenants for The Village
(at Avon) and The Village (at Avon) Design Review Guidelines provide for high quality design
with respect to the built environment and preservation of open space and existing vegetation.
2. The PUD rezoning will promote the public heath, safety and general welfare.
Exhibit B
1019858.1 3
As discussed in response no. 1 above and response no. 5 below, the PUD, together with
the Agreement (and the existing Annexation and Development Agreement), provide for public
amenities, development and design standards and development review processes to ensure
development of The Village (at Avon) as contemplated by the PUD will promote the public
health, safety and general welfare of the owners and residents within The Village (at Avon) and
the residents of the Town.
3. The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of the
Development Code and the eligibility criteria outlined in Section 7.16.060(b) of the Development
Code.
The eligibility criteria applicable to the PUD (see Section 7.16.060(b) of the
Development Code) are addressed in the Written Statement submitted as a part of the application
for the PUD. It is the Applicant’s position that the current Avon Comprehensive Plan does not
apply to The Village (at Avon) as the Existing PUD was approved under a prior comprehensive
plan and the Exhibit PUD is a “site specific development plan” and has vested property rights.
Notwithstanding the foregoing, the Applicant submits that the PUD is consistent with the
following (among other) policies of the Avon Comprehensive Plan: A.1.5, B.1.1, B.1.3, B.1.5,
B.1.6, B.1.8, B.2.1, B.2.3, B.3.1, B.3.4, C.1.2, C.1.3, C.1.5, C.1.6, C.1.8, C.2.1, C.2.2, C.2.3,
C.3.1, C.3.2, C.4.3, C.5.1, C.5.2, C.5.3, D.1.1, D.1.2, D.1.4, D.2.2, D.2.5, D.2.6, D.3.1, D.3.4,
E.1.2, E.3.8, E.3.10, F.1.1, F.1.2, F.2.1, F.2.3, F.2.4, F.2.8, G.1.1, G.1.4, G.1.7, G.1.9, G.1.12,
G.1.15, H.1.3, H.2.1, H.2.2, H.4.2, I.1.1, I.1.4, V.2.2, and V.2.3.
4. Facilities and services (including roads and transportation, water, gas, electric, police
and fire protection, and sewage and waste disposal) will be available to serve the subject
property while maintaining adequate levels of service to existing development.
The PUD Guide sets forth certain development limitations and standards specific to each
planning area within the PUD Map, including limitations on site coverage, landscape
requirements (as applicable) and appropriate setback and building height limitations, which will
result in appropriate uses and building envelopes for each site developed within The Village (at
Avon) to facilitate the provision of adequate facilities (including roads) and utility services. The
PUD is consistent with the Town Transportation Master Plan, providing for adequate
transportation facilities and connectivity to abutting properties. The Village (at Avon) includes,
among other public facilities and services, fire protection and ambulance service uses.
5. Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon the natural environment, including air, water, noise, storm water
management, wildlife, and vegetation, or such impacts will be substantially mitigated.
The PUD, together with the Agreement (and the existing Annexation and Development
Agreement), provide, and have provided for, mitigation of impacts of the proposed development
of The Village (at Avon), including the prior provision of certain impact fees, public dedications,
public facilities, natural open space and roads. A wildlife mitigation plan is included as a part of
the PUD Guide. Section C of the PUD Guide sets forth certain requirements for allocation of
water rights to serve The Village (at Avon). A significant portion of The Village (at Avon) will
be maintained as natural open space. Further, a comprehensive storm drainage study has been
Exhibit B
1019858.1 4
produced for The Village (at Avon). The development of the subject property as contemplated
by the PUD will not result in any significant adverse impacts upon the natural environment,
including air, water, noise, storm water management, wildlife or vegetation.
6. Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon other property in the vicinity of the subject tract.
For the reasons provided in response no. 5 above, and because the PUD is compatible in
scale with other uses or potential future uses on other adjacent properties as discussed in
response no. 7 below, the PUD is not likely to result in significant adverse impacts upon other
property in the vicinity of The Village (at Avon).
7. Future uses on the subject tract will be compatible in scale with uses or potential future
uses on the other properties in the vicinity of the subject tract.
The uses, densities and dimensional limitations set forth in the PUD Guide are
compatible internally with respect to abutting planning areas within the project and allow for a
mix of uses and densities, while providing for a reasonable transition among abutting planning
areas, generally providing for more dense development on the valley floor, less dense
development north of I-70 and within the “hillside residential” portion of the PUD as depicted on
the PUD Map and more intense uses immediately north of I-70. The most adjacent development
to the Village (at Avon) is the Town Center to the west of The Village (at Avon). The uses,
densities and dimensional limitations of Planning Area A as depicted on the PUD Map, which
abuts the Town Center, are generally consistent and complementary to the uses, densities and
dimensional limitations applicable to the Town Center.
Exhibit B
1019859.1
Final PUD Application
The Village (at Avon)
Amended and Restated PUD Guide and PUD Master Plan
Written Statement
Pursuant to Section 7.16.070(b) of the Town Development Code, the following are the eligibility
criteria for a property to be eligible to apply for PUD approval. A response describing how the
application for a final PUD (the “PUD”), including The Village (at Avon) Amended and
Restated PUD Guide (the “PUD Guide”) and PUD Master Plan (the “PUD Map”), satisfies such
eligibility criteria, to the extent applicable, follows each eligibility criteria.
1. Property Eligible: All properties within the Town of Avon are eligible to apply for PUD
approval.
The property subject to the PUD, The Village (at Avon), is wholly within the
jurisdictional boundaries of the Town of Avon (“Town”).
2. Consistency with Comprehensive Plan: The proposed development shall be consistent
with the Avon Comprehensive Plan.
Please see response no. 3 of the project narrative submitted with the application for the
PUD, which addresses the Avon Comprehensive Plan.
3. Consistent with PUD Intent: The proposed development shall be consistent with the
intent and spirit of the PUD purpose statement in §7.16.060(a).
As discussed in the project narrative submitted with the application for the PUD, the
PUD provides for a large-scale master-planned mixed use development that would not otherwise
be possible under the Town Euclidian zone districts. The uses, dimensional limitations and
development standards, among other matters, set forth in the PUD Guide will provide for
flexibility in the development of The Village (at Avon) and will encourage innovative and
coordinated development and design, consistent with the intent and spirit of Section 7.16.060 of
the Development Code. The PUD provides for a mix of integrated uses and public facilities and
amenities, including community facilities to be constructed by the Town on Planning Area B (as
depicted on the PUD Map), preservation of natural open space, community and pocket parks,
trail and pedestrian connectivity, school sites, a diverse housing mix (including affordable
housing) and retail and commercial services for The Village (at Avon) and the Town as a whole.
Existing and planned roads and utilities are contemplated to facilitate convenient and efficient
extension of such services to comprehensively serve The Village (at Avon). A Declaration of
Master Design Review Covenants for The Village (at Avon) and The Village (at Avon) Design
Review Guidelines provide for high quality design with respect to the built environment and
preservation of natural features and open space and existing vegetation. The Village (at Avon)
includes, among other public facilities and services, fire protection and ambulance service uses.
Impact fees and public dedications previously have been provided to mitigate development
Exhibit B
1019859.1 2
impacts of The Village (at Avon), and certain future public dedications are contemplated as
discussed in the project narrative submitted with the application for the PUD.
4. Compatibility with Existing Uses: The proposed development shall not impede the
continued use or development of surrounding properties for uses that are permitted in the
Development Code or planned for in the Avon Comprehensive Plan.
As discussed in response no. 7 of the project narrative submitted with the application for
the PUD, the uses, densities and dimensional limitations set forth in the PUD Guide for The
Village (at Avon) are compatible internally with respect to abutting planning areas within the
project and allow for a mix of uses and densities, while providing for a reasonable transition
among abutting planning areas, generally providing for more dense development on the valley
floor, less dense development north of I-70 and within the “hillside residential” portion of the
PUD as depicted on the PUD Map and more intense uses immediately north of I-70. The Town
Center is adjacent to and west of The Village (at Avon). The uses, densities and dimensional
limitations of Planning Area A as depicted on the PUD Map, which abuts the Town Center, are
generally consistent with and complementary to the uses, densities and dimensional limitations
applicable to the Town Center. The roads as constructed within The Village (at Avon) and as
conceptually set forth on the PUD Map are consistent with the Town Transportation Master Plan.
5. Public Benefit: A recognizable and material benefit will be realized by both the future
residents and the Town as a whole through the establishment of a PUD, where such benefit
would otherwise be infeasible or unlikely.
As discussed in response no. 3 above, in response no. 6 below and in the project narrative
included as a part of the submittal of the PUD, many substantial public benefits have been and
will be provided in connection with the establishment of the PUD, including dedications for
public facilities (such as fire and ambulance facilities), school sites, community facilities, trail
connections to public lands and natural open space. Substantial natural open space will be
preserved by the establishment of the PUD.
6. Preservation of Site Features: Long-term conservation of natural, historical,
architectural, or other significant features or open space will be achieved, where such features
would otherwise be destroyed or degraded by development as permitted by the underlying zoning
district.
A significant portion of The Village (at Avon) will be preserved as natural open space.
As contemplated by the Settlement Term Sheet (as defined in the project narrative for the
application for the PUD), certain open space parcels within The Village (at Avon) will be
dedicated to the Town. Planning Area B (as depicted on the PUD Map) will be conveyed to the
Town for community facilities, including the construction of a natural amphitheater and
preservation and development of a water body, along with other complementary public
amenities. Trail connections to off-site public lands will be provided as set forth in the PUD
Guide. Cluster development is anticipated for the “hillside residential” lots (Planning Area K as
depicted on the PUD Map), preserving open space and steep slope features.
Exhibit B
1019859.1 3
7. Sufficient Land Area for Proposed Uses: Sufficient land area has been provided to
comply with all applicable regulations of the Development Code, to adequately serve the needs
of all permitted uses in the PUD projects, and to ensure compatibility between uses and the
surrounding neighborhood.
The Village (at Avon) comprises nearly 1780 acres, including land designated for
residential (including affordable housing), commercial, industrial, mixed use, open space, parks,
school sites, public facilities and other public amenities. The PUD, Declaration of Master
Design Review Covenants for The Village (at Avon) and The Village (at Avon) Design Review
Guidelines provide for a comprehensive, master-planned mixed use development with
appropriate development and design standards to provide for a high quality development and to
adequately serve the needs of all uses contemplated within The Village (at Avon). Development
of The Village (at Avon) will comply with the density and dimensional limitations set forth in
the PUD Guide. As discussed in response no. 4 above, the PUD provides for compatibility
between uses within The Village (at Avon) and with adjacent properties.
Exhibit B
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Page 1 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
EXISTING/PROPOSED PLANNING AREA COMPARISON TABLES
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area A N/A A
Acres 33 N/A 43
Max
Density
25 DU/Acre N/A 25 DU/Acre
Allowed
Uses
Single retail use
less than 60,000sf
Residential
Lodging
Transportation
facilities
Churches
Museums
Libraries
Public buildings
Indoor/Outdoor
recreation
Entertainment
facilities
Parks and Open
space
Day care
Temporary real
estate offices
Commercial
uses: Retail stores;
Professional offices
and businesses;
Banks and financial
institutions; Personal
services; Food and
beverage
establishments; Clubs
and recreation;
Entertainment uses.
N/A Single retail uses less than 65,000 sf.
Convenience retail (without fuel)
Restaurants (without drive-through window service)
Financial institutions (without drive-through window service)
Residential uses
Mixed use projects (unless use is listed as prohibited or SRU)
Educational facilities
Cabled telecommunication equipment, facilities, and services
Wireless telecommunication equipment, facilities, and services
Dry utilities
Infrastructure
Indoor recreation/entertainment facilities
Outdoor recreation/entertainment facilities without amplified music
Parks and Open space
Tramways, gondolas, and lifts
Accessory uses & structures
Additional uses as determined by Director
Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber
and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Bus stop;
Business and professional offices; Child care center; Churches; Cinema; Clinic,
Intermediate medical care facility (i.e., out-patient services only); Clothing
stores; Community facilities; Commercial offices; Commercial parking;
Convenience retail; Department stores; Domesticated animal grooming; Drive-in
uses; Employment agency; Extended stay hotel; Grocery store; Financial
institutions; Fitness centers and health clubs; Furniture stores; Hardware stores;
Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long-
term care facilities and other medical facilities including, but not limited to
clinics, group and congregate care facilities, independent and assisted living
facilities and nursing homes; Indoor entertainment facility; Indoor storage;
Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning;
Medical and dental offices; Meeting facility; Newspaper and commercial
printing shops; Nursery or garden supply; Outdoor storage; Professional offices;
Real estate sales offices; Photocopy and blueprint businesses; Public facilities;
Private parking; Public parking; Recycling facility; Repair shops, Small
electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning;
Bike assembly; Service and social clubs; Studios (music, dancing, photography,
movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally
divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation
clubs; Uses which the Director determines to be similar.
Exhibit D
Page 2 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
SRUs Medical facilities
Education
Emergency
heliport
Outdoor
entertainment
N/A Single use retail over 65,000 sf.
Automobile repair shop (minor)
Outdoor entertainment with amplified sound
Heliport only as an accessory use to a hospital or medical facility
Hotel uses which exceed 80 feet in building height
Car wash
Drive-in uses
Religious facility
Service station for electric vehicles
Restaurants (with drive-through window service).
Financial institutions (with drive-through window service)
Recycling facilities (excepted as permitted in uses by right)
Rock and gravel crushing
Accessory
Uses
N/A N/A Animal boarding/Kennel (excluding outdoor)
Outdoor storage
Heliport for hospital or other medical facility
Interim
Uses
N/A N/A Agricultural
Rodeo and ancillary carnival
Recycling facility
Snow storage
Mobile home office and storage
Driving course and accessory hospitality services related to automobile
demonstrations, promotions and sales, not to exceed 10 days/year
Prohibited
Uses
N/A N/A Animal boarding/Kennels (outdoor)
Automobile repair shop (major)
Family child care home
Group home
Industrial uses
Mobile homes
Medical marijuana businesses
Nude entertainment establishments
Outdoor storage (except as allowed under Use-by-right)
Recycling processing facility
Service station (except as allowed under SRU)
Tattoo parlor, body piercing
Height 80’ north of E
Beaver Creek Blvd
55’ south of E
Beaver Creek Blvd
N/A 80’ if located more than 250 feet from the southerly boundary of PA-A
135’ north of Main St. (Hotel Only)
55’ if located less than 250 feet from the southerly boundary of PA-A
Setbacks 20’ from E Beaver
Creek Blvd & N, S,
and W boundaries of
area
N/A 20’ from West and South Boundaries
Site
Coverage
N/A N/A 80% if located less than 250 feet from the southerly boundary of PA-A
100% if located more than 250 feet from the southerly boundary of PA-
A
Exhibit D
Page 3 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area B, C B, C B
Acres 4.1 combined N/A 4.1
Max
Density
14 Dwelling Units
Maximum
N/A N/A
Allowed
Uses
Cultural,
Recreational, and
Educational
including:
Performing arts,
outdoor
amphitheaters;
Museums and
galleries; Community
meeting facilities;
Classrooms;
Libraries; Accessory
Retail; Day Care
Accessory
employee housing
Temporary real
estate offices
Public/Private
roads & utilities
C only: Ice
skating
Work with
TCMD for
pond/
impoundment
water feature
for water
augmentation
purposes
Parks and Open space
Community facilities
Infrastructure
Dry utilities
Water storage and water resource management facilities
SRUs None N/A Outdoor entertainment with amplified sound
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural Use
Snow storage
Prohibited
Uses
N/A N/A Commercial uses
Residential uses
Industrial uses
Mixed use projects (except as allowed under Use-by-right)
Height 60’ + Architectural
Projections
N/A 60 feet
Setbacks 20’ from E. Beaver
Creek Blvd & N,S,
and W boundaries of
area
N/A 25’ from adjacent road right-of-way
20’ from Planning area A
Site
Coverage
Not Defined N/A 20%
Exhibit D
Page 4 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area D, E, F N/A C, D
Acres 28.2 combined N/A 39 combined
Max
Density
18 DUs/Acre N/A 18 DUs/Acre
Allowed
Uses
Residential uses
Temporary real
estate offices
Public/Private
transportation
Bus, rail,
tramways, gondola
Public/Private
utilities
Indoor/Outdoor
recreation/
entertainment
facilities
Parks and Open
space
Accessory uses
E&F if fronting
E. Beaver Creek
Blvd: Commercial
uses: Retail stores;
Professional offices
and businesses;
Banks and financial
institutions; Personal
services; Food and
beverage
establishments; Clubs
and recreation;
Entertainment uses.
D only:
Pedestrian bridges
D only: Lodging
N/A Residential uses
Single retail uses under 5,000 SF
Community facilities
Ben and breakfast, vacation club, temporally divided dwellings and
short-term rentals
Mixed use projects (unless use is listed as prohibited or SRU)
Commercial parking, private parking, public parking including but not
limited to parking structure, bus stops, bus shelters, tramways, gondolas
and lifts
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Indoor recreation and entertainment facilities
Outdoor recreation and entertainment facilities without amplified sound
Parks and Open space
Minor home occupations
Accessory uses and structures
Additional uses as determined by Director
Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber
and beauty shops; Beverage stores/Coffee shops; Business and professional
offices; Child care center; Churches; Cinema; Clinic, Intermediate medical care
facility (i.e., out-patient services only); Clothing stores; Community facilities;
Commercial offices; Commercial parking; Convenience retail; Department
stores; Domesticated animal grooming; Drive-in uses; Employment agency;
Extended stay hotel; Family child care home; Grocery store; Group home;
Financial institutions; Fitness centers and health clubs; Furniture stores;
Hardware stores; Hotel, motel and lodge; Home occupations, minor and major;
Hospitals, long-term care facilities and other medical facilities including, but not
limited to clinics, group and congregate care facilities, independent and assisted
living facilities and nursing homes; Indoor storage; Laboratory; Landscaping and
snow removal services; Laundromat/dry cleaning; Medical and dental offices;
Meeting facility; Newspaper and commercial printing shops; Nursery or garden
supply; Professional offices; Real estate sales offices; Photocopy and blueprint
businesses; Public facilities; Recycling facility; Repair shops, Small electronics
repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike
assembly; Service and social clubs; Studios (music, dancing, photography,
movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally
divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation
clubs; Uses which the Director determines to be similar.
SRUs E&F:
Lodging
Medical
Educational
N/A Single retail uses over 5,000 SF
Hospitals, long-term care facilities and other medical facilities up to a
maximum of 80 feet of building height
Heliport if accessory to hospital or other medical facility
Exhibit D
Page 5 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
facilities
Churches
Museums
Heliport
Outdoor
entertainment
Churches, museums, libraries and public buildings
Outdoor Storage (as accessory use)
Car wash
Drive-in uses
Religious facilities
Convenience retail (with fuel)
Restaurants (with drive-through window service)
Financial institutions (with drive-through window service)
Major home occupations
C only: Mixed use projects (unless use is listed as prohibited)
C only: Hotel, motel, lodge
D only with Main street frontage: Automobile repair shops (minor)
D only with Main street frontage: Educational facilities
D only with Main street frontage: Outdoor entertainment with amplified
sound
Accessory
Uses
N/A N/A Outdoor storage if accessory to retail use
Interim
Uses
N/A N/A Agricultural use
D only: Recycling facility and accessory trash facility
Prohibited
Uses
N/A N/A Automobile repair shops (major)
Outdoor Animal boarding/Kennels
Industrial uses
Mobile homes
Medical marijuana businesses
Nude entertainment establishments
Outdoor storage (except as allowed by SRU)
Recycling processing center
Service stations
Tattoo parlor, body piercing
Height 48 feet N/A 48 feet, but Hospitals and other medical facilities up to 80 feet as allowed
but SRU
Setbacks 25’ Front
0’ Side
10’ Rear
N/A 25’ Front
0’ Side
10’ Rear
20’ from southerly boundary of PA-D
Site
Coverage
Not Defined N/A 80%
Exhibit D
Page 6 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area G I, M E, I (school site dedication only, see I for additional standards)
Acres 7.3 3.6 (I), 3.7
(M)
4 (3.52 according to Plat + Balance in Planning Area I)
Max
Density
N/A N/A N/A
Allowed
Uses
Educational
Recreational
Public/Private
roads/utilities
Parks and Open
space
Day care facilities
I only:
Stone Creek
Charter
school
M only:
Educational
facility
serving K-
12 or portion
of such
grades
Pre-
school, day
care,
community
educational,
cultural,
and/or art
classes,
museum, or
recreational
Educational uses
Child care facilities
Pre-school facilities
Community facilities
Adult educational facilities
Cultural and/or art classes
Recreational facilities
Museums
Infrastructure
Dry utilities
Other cultural/community service oriented uses and facilities
SRUs N/A N/A N/A
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A N/A
Height 35 feet +
Architectural
Projections
N/A 35 Feet
Setbacks 25’ Front
7.5’ Side
10’ Rear
N/A 25’ Front
7.5’ Side
10’ Rear
Site
Coverage
Not Defined N/A 80%
Exhibit D
Page 7 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area H, J, K N/A F, G, H
Acres 41.5 N/A 41
Max
Density
15 DUs/Acre N/A 18 DUs/Acre
Allowed
Uses
Residential
Public/Private
transit/parking
Public/Private
roads/utilities
Churches,
museums, libraries
Public buildings
Indoor/Outdoor
recreation
Parks and Open
space
Temporary real
estate offices
Entertainment
facilities
Commercial uses:
Retail stores;
Professional offices
and businesses;
Banks and financial
institutions; Personal
services; Food and
beverage
establishments; Clubs
and recreation;
Entertainment uses.
J&K: Lodging,
no more than 2
retail stores not to
exceed 60,000sf
K only: Service
commercial uses
N/A Residential uses
Mixed use projects (unless use is listed as prohibited or SRU)
Educational facilities
Community facilities
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Bus stops, shelters, tramways, gondolas, and lifts
Churches, museums, libraries, and public buildings
Indoor recreation and entertainment facilities without amplified sound
Outdoor entertainment facilities with amplified sound
Outdoor recreation and entertainment facilities without amplified sound
Parks and Open space
Child care center
Indoor Animal boarding/Kennels
F only: Recycling Facility
F only: Heliport if accessory to a hospital or other medical facility
Accessory uses and structures
Additional uses as determined by Director
Commercial uses: Accommodations units; Automobile repair shop (minor);
Bakeries; Bar and tavern; Barber and beauty shops; Bed and breakfast; Beverage
stores/Coffee shops; Business and professional offices; Car wash (as the principal
use); Child care center; Cinema; Clinic, Intermediate medical care facility (i.e.,
out-patient services only); Clothing stores; Community facilities; Commercial
offices; Commercial parking; Convenience retail; Department stores;
Domesticated animal grooming; Drive-in uses; Employment agency; Extended
stay hotel; Family child care home; Grocery store; Group home; Financial
institutions; Fitness centers and health clubs; Furniture stores; Hardware stores;
Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long-
term care facilities and other medical facilities including, but not limited to
clinics, group and congregate care facilities, independent and assisted living
facilities and nursing homes; Indoor storage; Laboratory; Landscaping and snow
removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting
facility; Newspaper and commercial printing shops; Nursery or garden supply;
Outdoor storage; Professional offices; Real estate sales offices; Photocopy and
blueprint businesses; Private parking; Public parking; Recycling facility; Repair
shops, small electronics repair; Restaurants; Retail sales, specialty and gift shops;
Ski tuning; Bike assembly; Service and social clubs; Service stations; Studios
(music, dancing, photography, movie, art and broadcasting); Tailor, seamstress,
clothing alterations; Temporally divided dwelling; Theaters; Trade schools and
colleges; Transit shelter; Vacation clubs; Uses which the Director determines to
be similar.
Exhibit D
Page 8 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
SRUs Medical facilities
Educational
Emergency
heliport
Amplified sound
H only: Lumber
sales and yard,
service, auto repair,
car wash
J only: Service
commercial uses
N/A Service station
Outdoor Animal boarding/Kennels
Rock and gravel crushing
G and H only: Heliport only as an accessory use to a hospital or
medical facility
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Construction staging
Prohibited
Uses
N/A N/A Heavy industrial uses
Medical marijuana businesses
Nude entertainment establishments
Automobile repair shops (major)
Family child care home
Group home
Mobile home
Recycling processing center
Tattoo parlor, body piercing
Height 48’
35’ SF/ Duplex
H Only: 42’
N/A 80’ Hospital
48’ Commercial/MF Residential/Mixed-Use/Industrial
135’ for Hotel subject to SRU approval
35’ SF/Duplex
Setbacks 25’ Front
7.5’ Side
10’ Rear
20’ adjacent to
Railroad
N/A 25’ Front
0’ Side (Commercial/Mixed use projects); 7.5’ Side
(Industrial/Residential)
10’ Rear
20’ abutting I70 or Railroad ROW
Site
Coverage
Not Defined N/A 80%
Exhibit D
Page 9 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area M M I
Acres 47.7 N/A 57
Max
Density
15 DUs/Acre N/A 15 DU/acre; but not less than 196,970 GSF of commercial and 750 DUs,
but no commercial and a maximum of 280 DUs until a second access is
constructed
Allowed
Uses
Residential
Public/Private
transit/parking
Public/Private
roads/utilities
Churches,
museums, libraries
Public buildings
Indoor/Outdoor
recreation
Entertainment
facilities
Commercial uses:
Retail stores;
Professional offices
and businesses;
Banks and financial
institutions; Personal
services; Food and
beverage
establishments; Clubs
and recreation;
Entertainment uses.
Portion or
all of 5.8
acre park
land from N-
South used
for park,
trail head,
trail
connections,
dog park,
natural park
PUD Plan
amended to
depict road
access to
Planning
Area M.
Road to be
narrowed
two lane
profile with
ability to
construct
separated
pedestrian/
recreational
trail
Residential uses
Mixed use projects (unless use is listed as prohibited or SRU)
Educational facilities
Community facilities
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Bus stops, shelters, tramways, gondolas, and lifts
Churches, museums, libraries, and public buildings
Indoor recreation and entertainment facilities without amplified sound
Outdoor entertainment facilities with amplified sound
Outdoor recreation and entertainment facilities without amplified sound
Parks and Open space
Child care center
Indoor Animal boarding/Kennels
Recycling Facility
Heliport if accessory to a hospital or other medical facility
Pedestrian and vehicular bridges, bridge abutments and related
improvements
Automobile repair shops (major and minor)
Light industrial uses
Accessory uses and structures
Additional uses as determined by Director
Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber
and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Business
and professional offices; Car wash (as the principal use); Cinema; Clinic,
Intermediate medical care facility (i.e., out-patient services only); Clothing
stores; Commercial offices; Commercial parking; Convenience retail;
Department stores; Domesticated animal grooming; Drive-in uses; Employment
agency; Extended stay hotel; Family child care home; Grocery store; Group
home; Financial institutions; Fitness centers and health clubs; Furniture stores;
Hardware stores; Hotel, motel and lodge; Home occupations, minor and major;
Hospitals, long-term care facilities and other medical facilities including, but not
limited to clinics, group and congregate care facilities, independent and assisted
living facilities and nursing homes; Indoor storage; Laboratory; Landscaping and
snow removal services; Laundromat/dry cleaning; Medical and dental offices;
Meeting facility; Newspaper and commercial printing shops; Nursery or garden
supply; Outdoor storage; Professional offices; Real estate sales offices;
Photocopy and blueprint businesses; Public facilities; Private parking; Public
parking; Recycling processing facility; Small electronics repair; Restaurants;
Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and
social clubs; Service stations; Studios (music, dancing, photography, movie, art
Exhibit D
Page 10 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
and broadcasting); Tailor, seamstress, clothing alterations; Tattoo parlor, body
piercing; Temporally divided dwelling; Theaters; Trade schools and colleges;
Transit shelter; Vacation clubs; Uses which the Director determines to be similar.
SRUs Medical facilities,
emergency heliport,
educational
Amplified sound
N/A Service station
Outdoor Animal boarding/Kennels
Rock and gravel crushing
Hotel Uses exceeding 80 feet in building height
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Construction staging
Prohibited
Uses
N/A N/A Heavy industrial uses
Medical marijuana businesses
Nude entertainment establishments
Height 48’
35’ SF/Duplex
N/A 135’ Hotel uses subject to SRU approval
80’ Hospital
48’ Commercial/MF Residential/Mixed-Use/Industrial
35’ SF/Duplex
Setbacks 25’ Front
7.5’ Side
10’ Rear
N/A 25’ Front
0’ Side (Commercial/Mixed use projects); 7.5’ Side
(Industrial/Residential)
10’ Rear
20’ abutting I70 or Railroad ROW
Site
Coverage
Not Defined N/A 80%
Exhibit D
Page 11 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area RMF-1 /
N-South
RMF-1/
N-South
J
Acres 35.1 / 5.8
(40.9 combined)
N/A 37
Max
Density
6 DUs/Acre /
N/A
N/A 18 DUs/Acre
Allowed
Uses
RMF-1
Residential
Professional
office
Personal service
Food and
beverage
Recreational
facilities
Temporary real
estate office
Public/Private
roads
Parks and Open
space
Commercial uses:
Retail stores;
Professional offices
and businesses;
Banks and financial
institutions; Personal
services; Food and
beverage
establishments; Clubs
and recreation;
Entertainment uses.
N-South
Trails
Landscaping
Indoor/Outdoor
recreation
Lakes, ponds,
reservoirs
Parks, picnic
facilities
Public/Private
roads
Commercial
zoning
Hotel
Lodging
Gas station
Convenience
retail
Restaurant
Similar uses
Portion or all
of 5.8 acre
park land from
N-South used
for park, trail
head, trail
connections,
dog park,
natural park
Residential uses
Mixed use projects (unless use is listed as prohibited or SRU)
Automobile repair shops (minor)
Community facilities
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Bus stops, shelters, tramways, gondolas, and lifts
Recreational facilities
Parks and Open space
Accessory uses and structures
Additional uses as determined by Director
Commercial uses: Accommodations units; Animal boarding; Bakeries; Bar
and tavern; Barber and beauty shops; Bed and breakfast; Beverage
stores/Coffee shops; Business and professional offices; Car wash (as the
principal use); Churches; Cinema; Clinic, Intermediate medical care facility
(i.e., out-patient services only); Clothing stores; Community facilities;
Commercial offices; Commercial parking; Convenience retail; Department
stores; Domesticated animal grooming; Drive-in uses; Employment agency;
Extended stay hotel; Family child care home; Grocery store; Group home;
Financial institutions; Fitness centers and health clubs; Furniture stores;
Hardware stores; Hotel, motel and lodge; Home occupations, minor and major;
Hospitals, long-term care facilities and other medical facilities including, but
not limited to clinics, group and congregate care facilities, independent and
assisted living facilities and nursing homes; Indoor entertainment facility;
Indoor storage; Kennels; Laboratory; Landscaping and snow removal services;
Laundromat/dry cleaning; Medical and dental offices; Meeting facility;
Newspaper and commercial printing shops; Nursery or garden supply; Outdoor
storage; Professional offices; Real estate sales offices; Photocopy and blueprint
businesses; Public facilities; Private parking; Public parking; Recycling
facility; Recycling processing facility; Repair shops, Small electronics repair;
Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly;
Service and social clubs; Service stations; Studios (music, dancing,
photography, movie, art and broadcasting); Tailor, seamstress, clothing
alterations; Temporally divided dwelling; Theaters; Trade schools and
colleges; Transit shelter; Vacation clubs; Uses which the Director determines
to be similar.
SRUs RMF-1
Churches
Museums
N/A Churches, museums, libraries and public buildings
Child care center
Rock and gravel crushing
Exhibit D
Page 12 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Libraries
Day Care
N-South – N/A
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A Automobile repair shops (major)
Medical marijuana businesses
Nude entertainment establishments
Tattoo parlor, body piercing
Height RMF-1
48’
35’ SF/Duplex
N-South – 35’
N/A 48’ Commercial/MF Residential/Mixed-Use/Industrial
35’ SF/Duplex
55’ Hotel, Motel , Lodge
Setbacks RMF-1
20’ Front
10’ Side/Rear
Adjacent to I-70:
20’
N-South – N/A
N/A 20’ Front
0’ Side (Commercial); 10’ Side (Residential)
10’ Rear
20’ abutting I70 ROW
Site
Coverage
Not Defined Adjustable
by Traer
appropriate for
this site
Design
requirements
enforced at
building
permit
80%
Exhibit D
Page 13 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area Res - SF Hillside
area
K
Acres 916.4 N/A 1,302
Max
Density
91 Primary
91 Secondary
1 Caretaker on Lot
1
98 Multi-family
maximum
No minimum lot
area
Amended
to increase to
maximum
amount of
units allowed
on cul-de-sac
Supersede
TOA
standards
from 2011
280 DUs for Planning Area K and RMF-1 (Primary/Secondary DUs
are considered 1 DU)
Minimum lot area is 1 acre
Allowed
Uses
Lot 1:
HOA, clubhouse,
recreational facilities
Public/Private
roads/utilities
Temporary real
estate office
Lots 6-96:
SF residential
Primary/secondary
structure
Temporary real
estate office
Portion or
all of 5.8 acre
park land
from N-South
used for park,
trail head,
trail
connections,
dog park,
natural park
Residential uses
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Recreational facilities
Parks and Open space
Public facilities
Community facilities
Homeowner association facilities
Accessory uses and structures
Additional uses as determined by Director
SRUs N/A N/A Rock and gravel crushing
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A Commercial Uses
Industrial Uses
Height 35’ + Non-habitable
Architectural
Projections
N/A 48’ MF residential
35’ SF/Duplex/HOA amenities and Community facilities
Setbacks 20’ for Lot 1 only
70% of footprint
within building
envelope
N/A 25’ Front
20’ Side
20’ Rear
20’ for Lot 1 only
Site
Coverage
Not Defined N/A SF: Lesser of 1 acre of lot or 80% of lot
Other uses: building envelope
Exhibit D
Page 14 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area OS1-11 OS9-10 Open Space
Acres 499.9 OS9-10
dedicated to
Town at time
of platting
Area M
539 (155 from OS-1 – OS-7 and 384 Minimum from K)
Max
Density
N/A N/A N/A
Allowed
Uses
Equestrian,
pedestrian and
bicycle trails
Landscape
improvements
Public/private
roads/ utilities,
except in OS10
shall be generally
n/s axis
OS1-OS9 –
Lakes, ponds,
reservoirs,
irrigation ditches,
park and picnic
facilities
Open
space
purposes
Easement
allowing
construction
of bridge and
bridge
abutments
Equestrian, pedestrian and bicycle trails
Landscape improvements
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Infrastructure
Dry utilities
Snow storage
Public or private roads and utilities
OS1-5,7 only: Lakes, ponds, reservoirs and irrigation ditches
OS1-5,7 only: Park and picnic facilities and related parking
OS5-6 only: Community Facilities
OS5-6 only: Recreational uses including public river access
OS5-6 only: Pedestrian and vehicular access, roads, bridges, bridge
abutments, and related improvements
SRUs OS-10: Lakes,
ponds, reservoirs
Park/Picnic
facilities
Public/Private
roads/utilities
N/A Rock and gravel crushing
OS6 only: Lakes, ponds, reservoirs and irrigation ditches
OS6 only: Park and picnic facilities and related parking
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A All uses not allowed by right or SRU
Height N/A N/A N/A
Setbacks N/A N/A N/A
Site
Coverage
Not Defined N/A N/A
Exhibit D
Page 15 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area N, L N/A PF1-3
Acres varies N/A 4 (PF1), 2 (PF2), and 13 (PF3)
Max
Density
N/A N/A N/A
Allowed
Uses
Area N-
Community park
uses
Regional
commercial uses
N/A Community facilities
Equestrian, pedestrian and bicycle trails
Landscape improvements
Sports, training, and recreation facilities (indoor/outdoor)
Lakes, ponds, reservoirs and irrigation ditches
Parks, picnic facilities, temporary entertainment of special events
Open space
Infrastructure
Dry utilities
SRUs Medical facilities
Educational
facilities
Emergency
heliport
Outdoor
entertainment
N/A Rock and gravel crushing
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A Residential uses
Commercial uses
Industrial uses
Height Area N – 35’ +
Projections
Area L – 48’
N/A 35 feet
Setbacks N/A N/A N/A
Site
Coverage
Not Defined N/A N/A
Exhibit D
Page 16 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area RMF-3 N/A RMF-1
Acres 16.3 N/A 27
Max
Density
6 DUs/Acre N/A 6 DUs/Acre
Allowed
Uses
Residential
Child care
Residential
facilities
Residential
management office
Temporary real
estate office
Public/Private
roads/utilities
Accessory uses
N/A Residential uses
Community facilities
Bed and breakfast, vacation club, temporally divided dwellings and
short-term rentals
Infrastructure
Dry utilities
Recreational facilities
Temporary real estate offices and construction offices
Residential management office
Accessory Uses and structures
Additional uses as determined by Director
SRUs N/A N/A Preschool, nursery school, in-home child care, child care center
Group home
Commercial parking, private parking, and public parking
Bus Stops, shelters, tramways, gondolas, lifts
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Rock and gravel crushing
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A Commercial uses except as allowed by right or SRU
Industrial uses
Mobile homes
Height 48’ Multi-family
35’ SF/Duplex +
Arch Projections
N/A 48 feet (Commercial/MF Residential)
35 feet (SF/duplex)
Setbacks 20’ from I-70 ROW N/A 20’ Front
10’ Side
10’ Rear
Site
Coverage
Not Defined N/A 80%
Minimum landscaped area: 20%
Exhibit D
Page 17 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide
Current Settlement
Term Sheet
Proposed (Version 16)
Planning
Area RMF-2 N/A RMF-2
Acres 43.6 N/A 39
Max
Density
12 DUs/Acre N/A 12 DUs/Acre
Allowed
Uses
SF, Duplex,
Multi-family
Child care
Recreational
facilities
Residential
management offices
Temporary real
estate offices
Public/Private
roads/utilities
N/A Residential uses
Community facilities
Bed and breakfast, vacation club, temporally divided dwellings and
short-term rentals
Infrastructure
Dry utilities
Recreational facilities
Temporary real estate offices and construction offices
Residential management office
Accessory Uses and structures
Additional uses as determined by Director
Pedestrian bridges
SRUs N/A N/A Preschool, nursery school, in-home child care, child care center
Group home
Commercial parking, private parking, and public parking
Bus Stops, shelters, tramways, gondolas, lifts
Cabled telecommunication equipment, facilities, and services
Wireless telecommunications equipment, facilities, and services
Accessory
Uses
N/A N/A N/A
Interim
Uses
N/A N/A Agricultural use
Prohibited
Uses
N/A N/A Commercial uses except as allowed by right or SRU
Industrial uses
Mobile homes
Height 35’ SF or Duplex
48’ Other Uses
N/A 48 feet (Commercial/MF Residential)
35 feet (SF/duplex)
Setbacks 20’ from I-70 ROW N/A 20’ Front
10’ Side
10’ Rear
Site
Coverage
Not Defined N/A 80%
Minimum landscaped area: 20%
Exhibit D
0 2,0001,000
Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 09/20/12Existing PUD Open Space and Parkland I
Parkland - 45AC
Open Space - 500AC
The Village at Avon - Other Planning Areas
Constructed Roads
Temporary Roads
Lakes and Rivers
Ex
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0 2,0001,000
Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 09/20/12Proposed PUD Open Space and Parkland I
Open Space - 155AC/ 539AC at Build Out
Parkland - 19AC/24.8AC at Build Out
The Village at Avon - Other Planning Areas
Constructed Roads
Temporary Roads
Lakes and Rivers
i. “5.8 acres of additional parkland to be dedicated to the Town within Planning Areas A, C, D, I, J, K, I, and/or widening P1”ii. “In addition to Planning Areas OS-1-OS-7, at least 29.5% (384 acres) of PA-K to be designated as Open Space.”Ex
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0 800400
Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 08/31/12Easements to be Transferred to Town of Avon
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Lakes and Rivers
Easements to be Transferred
Railroad
25' Irrigation Easement
Eagle
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Road Access Easement
Nottingham Gulch Dam
Energy Dissapater
Water Well Easement
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This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 08/29/12Aerial: September 2011. (c) 2010 Microsoft Corporation and its data suppliers
Public Road Tracts for the Village (at Avon)0 680340
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Town of Avon Boundary
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999369.16 – V16-E 12
(c) Temporary Uses may be permitted in The Village (at Avon) in accordance
with the Development Code, even though such Uses otherwise may be within a Use Category
that is not permitted within the applicable Planning Area.
(d) Uses not identified as a Use by Right, Special Review Use, Temporary
Use or Interim Use shall be a Prohibited Use unless determined by the Director that the proposed
use is substantially similar to a Use by Right, Special Review Use, Temporary Use, or Interim
Use. The listing of Prohibited Uses for each Planning Area is not exhaustive and shall not limit
the interpretation of Uses by Right, Special Review Uses, Temporary Uses or Interim Uses stated
in the preceding sentence.
(e) In all Planning Areas, Architectural Projections may project ten (10) feet
or less beyond the applicable Building Envelope with the prior written consent of the Design
Review Board. Architectural Projections may project greater than ten (10) feet beyond the
applicable Building Envelope with the prior written consent of the Design Review Board and the
Town.
2. Planning Area A - Village Center Mixed Use Project.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.2(b) below or specifically prohibited in Section D.2(c) below, the following
Primary Uses and Accessory Uses:
(i) Commercial Uses; provided, however, no single retail business
shall occupy more than 65,00060,00019 of consolidated Gross Square Footage.
(ii) Animal Boarding (excluding outdoor Animal Boarding) as an
Accessory Use to another Commercial Use only, and subject to review and written
approval by the Design Review Board authorizing such Use.
(iii) Kennels (excluding outdoor Kennels) as an Accessory Use to
another Commercial Use only, and subject to review and written approval by the Design
Review Board authorizing such Use.
(iv) Convenience Retail (without fuel).
(v) Restaurants (without drive-through window service).
(vi) Financial institutions (without drive-through window service).
(vii) Residential Uses.
(viii) Mixed Use Projects; provided, however, (a) no Uses specifically
prohibited in Section D.2(c) below shall be included in such Mixed Use Project, and
(b) no Uses specifically identified as Special Review Uses in Section D.2(b) below shall
19 This tracks language in 1998 PUD.
Exhibit G
999369.16 – V16-E 13
be included except pursuant to the review and approval processes set forth in Section E
below.
(ix) Educational facilities including, but not limited to public and
private schools, universities, and colleges.
(x) Cabled Telecommunications Equipment, Cabled
Telecommunications Facilities and Cabled Telecommunications Services.
(xi) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(xii) Dry Utilities.
(i) Infrastructure. Public or private transportation, transit or parking
facilities including, but not limited to bus, rail stations, tramways,
gondolas and lifts.
(xiii)(x) Public or private roads and utilities including but not
limited to utility improvements, lines and mains, facilities, services and buildings.
(xiv)(xi) Indoor recreation and/or entertainment facilities.
(xv)(xii) Outdoor recreation and/or entertainment facilities that do
not include the use of amplified music.
(xvi)(xiii) Parks and Open Space.
(xvii) Tramways, gondolas and lifts.
(xviii)(xiv) Outdoor Storage, only as an Accessory Use to a retail Use.
(xix)(xv) Accessory Uses and Structures customarily appurtenant to
Uses by Right.
(xx)(xvi) Agricultural Use (as an Interim Use only).
(xxi)(xvii) Rodeo and ancillary carnival (as an Interim Use only).
(xxii)(xviii) Recycling Facility (as an Interim Use only).
(xxiii)(xix) Snow storage (as an Interim Use only).
(xxiv)(xx) Mobile Home office/storage Use and community garden
(as an Interim Use only).
(xxv)(xxi) Driving course and accessory hospitality services related to
automobile demonstrations, promotions and sales, not to exceed 10 days in the aggregate
Exhibit G
999369.16 – V16-E 14
in a calendar year (as an Interim Use), provided that such Use exceeding 10 days in the
aggregate in a calendar year shall be a Temporary Use.
(xxvi)(xxii) Additional Uses which the Director determines to be
similar to uses by right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Educational facilities including, but not limited to public and
private schools, universities, and colleges.20
(ii) Hospitals and medical facilities, but not limited to clinics, group
and congregate care facilities, nursing homes and hospitals.21
(i)(iii) Single retail businesses occupying more than 65,000 of
consolidated Gross Square Footage.22
(ii)(iv) Automobile Repair Shop (Minor).
(iii)(v) Outdoor entertainment facilities that include the use of amplified
music.
(iv)(vi) Heliport, only as an Accessory Use to a Hospital or other medical
facility, including but not limited to a clinic.
(v)(vii) Hotel Uses (including without limitation, hotel Uses comprising a
portion of a Mixed Use Project) which exceed 80 feet in Building Height.
(vi)(viii) Car wash.
(vii)(ix) Drive-in Uses.
(viii) Religious Facility.
(ix)(x) Service Station (for the sale of only electric form of fuel for
motorized vehicles).
(x)(xi) Restaurants (with drive-through window service).
(xi)(xii) Financial institutions (with drive-through window service).
(xii)(xiii) Recycling Facilities (except as permitted in Section D.2(a)
above).
20 This tracks language in1998 PUD.
21 This tracks language in 1998 PUD.
22 1998 PUD did not allow single retail use over 60,000 sq.ft. by Special Review Use.
Exhibit G
999369.16 – V16-E 15
(xiii)(xiv) Rock and gravel crushing operations related to rock and
gravel materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Animal Boarding (outdoor).
(ii) Automobile Repair Shop (Major).
(iii) Family Child Care Home.
(iv) Group Home.
(v) Industrial Uses.
(vi) Kennels (outdoor).
(vii) Mobile Homes.
(viii) Medical Marijuana Businesses.
(ix) Nude Entertainment Establishments.
(x) Outdoor Storage (except as expressly allowed as a Use by Right in
Section D.2(a)).
(xi) Recycling Processing Facility.
(xii) Service Station (except as specifically identified as a Special
Review Use in Section D.2(b)).
(xiii) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Southerly and Westerly boundaries of Planning Area A: 20
feet.
(2) All others: None, except as may be necessary to
accommodate utilities, drainage, access, fire and building code regulations and the
flood plain of live streams.
(ii) Maximum Building Height:
(1) Portions of Planning Area A located less than 250 feet from
the southerly boundary of Planning Area A: 55 feet.
Exhibit G
999369.16 – V16-E 16
(2) Portions of Planning Area A located 250 or more feet from
the southerly boundary of Planning Area A: 80 feet, provided that hotel Uses
(including without limitation, hotel Uses comprising a portion of a Mixed Use
Project) exceeding 80 feet shall be permitted up to a maximum Building Height of
135 feet as a Special Review Use as specifically identified in Section D.2(b).23
(iii) Maximum Site Coverage:
(1) Portions of Planning Area A located less than 250 feet from
the southerly boundary of Planning Area A: 80%
(2) Portions of Planning Area A located 250 or more feet from
the southerly boundary of Planning Area A: 100%
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 25 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
3. Planning Area B - Community Facilities.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.3(b) below or specifically prohibited in Section D.3(c) below, the following
Primary Uses and Accessory Uses:
(i) Parks and Open Space.
(ii) Community Facilities and related amenities as may be mutually
approved by the Town and the Design Review Board.
(ii) Accessory retail uses and commercial uses, food and beverage
establishments. 24
(iii) Day care facilities.25
(iii) Agricultural Use (as an Interim Use only).
(iv) Infrastructure.
23 This provision was not in the 1998 PUD Guide or in the Settlement Term Sheet.
24 This provision is consistent with language in 1998 PUD Guide for Planning Area C.
25 This provision is consistent with language in 1998 PUD Guide for Planning Area C.
Exhibit G
999369.16 – V16-E 17
(v) Dry Utilities.
(iv) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.26
(vi)(v) Snow storage (as an Interim Use only).
(vii)(vi) Water storage and water resource management facilities.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Outdoor entertainment facilities that include the use of amplified
music.
(c) Prohibited Uses:
(i) Commercial Uses.
(ii) Residential Uses.
(iii) Industrial Uses.
(iv) Mixed Use Projects (except as specifically included as a Use By
Right in Section D.3(a) above).
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks: 25 20 feet from the adjacent road
right-of-way. 20 feet from property line abutting Planning Area A. None from property
line abutting Main Street. There shall be no other setback requirements except as may be
necessary to accommodate utilities, drainage, access, fire and building code regulations
and flood plain of live streams.
(ii) Maximum Building Height: 60 feet.
(iii) Maximum Site Coverage: 20%27
(iv)(iii) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations, and as
provided therein, parking requirements may be satisfied by provision of off-site parking,
including without limitation, off-site shared parking, in accordance with the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
26 This is the language in the 1998 PUD Guide.
27 This provision is not the 1998 PUD Guide.
Exhibit G
999369.16 – V16-E 18
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
4. Planning Areas C and D - Village Residential Mixed Use Projects.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.4(b) below or specifically prohibited in Section D.4(c) below, the following
Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Commercial Uses; provided, however, no single retail business
shall occupy more than 5,000 of consolidated Gross Square Footage that have frontage on
Main Street.28
(iii) Agricultural Use (as an Interim Use only).
(iv) Community Facilities.
(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(vi) Mixed Use Projects (provided, however, no Uses specifically
prohibited in Section D.4(c) below shall be included in such Mixed Use Project, and no
Uses specifically identified as Special Review Uses in Section D.4(b) below shall be
included except pursuant to the review and approval processes set forth in Section E
below).
(vii) Commercial Parking, Private Parking and Public Parking,
including but not limited to Parking Structures, Bus Stops, Bus Shelters, tramways,
gondolas and lifts.
(iv) Public or private transportation, transit or parking facilities
including, but not limited to bus, rail stations, tramways, gondolas
and lifts.
(viii) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.29
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (subject to review and written
approval of such Use by the Design Review Board).
28 This language is consistent with the 1998 PUD Guide.
29 This language is consistent with the 1998 PUD Guide.
Exhibit G
999369.16 – V16-E 19
(ix) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (subject to
review and written approval of such Use by the Design Review Board).
(x) Infrastructure.
(xi)(ix) Dry Utilities.
(xii)(x) Indoor recreation and/or entertainment facilities.
(xiii)(xi) Outdoor recreation and/or entertainment facilities that do
not include the use of amplified music.
(xiv)(xii) Parks and Open Space.
(xv) Minor Home Occupations.
(xiii) Planning Area C Only:
(1) pedestrian bridges and lodging facilities including, but not
limited to hotel, motel, and bed and breakfast.30
(xvi)(xiv) Planning Area D Only:
(1) Recycling Facility and accessory trash facility (as an
Interim Use only).
(xvii)(xv) Accessory Uses and Structures customarily appurtenant to
the foregoing Uses by Right.
(xviii)(xvi) Additional Uses which the Director determines to be
similar to the foregoing Uses by Right.
(b) Special Review Uses:31 The following Uses shall be permitted within
Planning Area D in areas that have frontage on Main Street pursuant to the review and approval
processes set forth in Section E below:
(i) Lodging facilities including, but not limited to hotel, motel, and
bed and breakfast.
(ii) Medical facilities including, but not limited to offices, clinics,
group and congregate care facilities, nursing homes and hospitals.
(iii) Educational facilities including, but not limited to public and
private schools, universities, colleges and day care.
30 This is consistent with 1998 PUD Guide.
31 These language changes are consistent with the 1998 PUD Guide.
Exhibit G
999369.16 – V16-E 20
(iv) Churches, museums, libraries and public buildings.
(v) Emergency heliport.
(vi) Outdoor entertainment facilities that include the use of amplified
music.
(i) Single retail businesses occupying more than 5,000 of consolidated
Gross Square Footage.
(ii) Hospitals, Long-term Care Facilities and other medical facilities
including, but not limited to clinics, independent and assisted living facilities (including
cafeteria and food preparation areas), group and congregate care facilities and nursing
homes exceeding a Building Height of 48 feet, provided that any such Use shall be
located 250 or more feet from the southerly boundary of Planning Area D.
(iii) Heliport, only as an Accessory Use to a Hospital or other medical
facility, including but not limited to a clinic.
(iv) Churches, museums, libraries and public buildings.
(v) Outdoor Storage, only as an Accessory Use to a retail Use.
(vi) Car wash.
(vii) Drive-in Uses.
(viii) Religious Facility.
(ix) Convenience Retail (with fuel).
(x) Restaurants (with drive-through window service).
(xi) Financial institutions (with drive-through window service).
(xii)(vii) Major Home Occupations.
(xiii)(viii) Rock and gravel crushing operations related to rock and
gravel materials excavated within The Village (at Avon) PUD.
(xiv) Within Planning Area C only:
(1) Mixed Use Projects (provided, however, no Uses
specifically prohibited in Section D.4(c) below shall be included in such Mixed
Use Project).
(2) Hotel, Motel and Lodge.
Exhibit G
999369.16 – V16-E 21
(xv) Within Planning Area D only in areas having frontage on Main
Street only:
(1) Automobile Repair Shops (Minor).
(2) Educational facilities including, but not limited to public
and private schools, universities, and colleges.
(3) Outdoor entertainment facilities that include the use of
amplified music (subject to review and written approval by the Design Review
Board authorizing such Use).
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
(ii) Animal Boarding (outdoor).
(iii) Industrial Uses.
(iv) Kennels (outdoor).
(v) Mobile Homes.
(vi) Medical Marijuana Businesses.
(vii) Nude Entertainment Establishments.
(viii) Outdoor Storage, except as specifically identified as a Special
Review Use in Section D.4(b).
(ix) Recycling Processing Center.
(x) Service Stations.
(xi) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Front: 25 feet
(2) Side: None
(3) Rear: 10 feet
(4) Southerly boundary of Planning Area D: 20 feet
Exhibit G
999369.16 – V16-E 22
(ii) Maximum Building Height:
(1) Hospitals, Long-term Care Facilities and other medical
facilities including, but not limited to clinics, independent and assisted living
facilities (including cafeteria and food preparation areas), group and congregate
care facilities and nursing homes: 80 feet, as specifically identified as a Special
Review Use in Section D.4(b).
(2)(1) All other Uses: 48 feet.32
(iii) Maximum Site CoverageMinimum Landscaped Area: 33 8020%
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 18 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
5. Planning Area E - School.
(a) Purpose: To mitigate the impact of the Residential Uses proposed for
development within The Village (at Avon) by providing land for school needs generated by the
Residential Uses proposed for development within The Village (at Avon) directly for the benefit
of the children of the Town as reasonably necessary to serve The Village (at Avon) and future
residents thereof.
(b) Uses by Right: The following Primary Uses and Accessory Uses:
(i) Educational uses, limited to use as a state [authorized]authorized
or accredited educational facility serving grades K-12 (or any portion of such grades).
(ii) Agricultural Use (as an Interim Use only).
(iii) Subject to prior written approval from the Design Review Board
authorizing such Uses, the following education-related Uses:
(1) Child Care Facilities.
(2) Pre-school facilities.
32 48’ is consistent with 1998 PUD Guide.
33 This change is consistent with the 1998 PUD Guide.
Exhibit G
999369.16 – V16-E 23
(3) Community/adult educational facilities.
(4) Cultural and/or art classes.
(5) Recreational facilities.
(6) Museums.
(iv) Infrastructure.
(v) Dry Utilities.
(iv) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.34
(vi)(v) Such other cultural/community service oriented Uses and facilities
as the Design Review Board may authorize in writing.
(c) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Front: 25 feet
(2) Side: 7.5 feet
(3) Rear: 10 feet
(ii) Maximum Building Height: 35 feet.
(iii) Maximum Site Coverage: 80%35
(iv)(iii) Minimum Lot Area: Not applicable.
(d) Parking Requirements: As set forth in the Parking Regulations.
(e) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(f) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects.
34 This language is consistent with the 1998 PUD Guide.
35 The 1998 PUD Guide did not have a maximum site coverage for the school Planning Area.
Exhibit G
999369.16 – V16-E 24
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.6(b) below or specifically prohibited in Section D.6(c) below, the following
Primary Uses and Accessory Uses:
(i) Commercial Uses, provided that no retail store occupied by a
single retail business shall exceed 60,000 sq.ft. of Commercial Space on the southern 3.2
acres of Planning Area F.36
(ii) Residential Uses.
(iii) Mixed Use Projects (provided, however, no Uses specifically
prohibited in Section D.6(c) below shall be included in such Mixed Use Project, and no
Uses specifically identified as Special Review Uses in Section D.6(b) below shall be
included except pursuant to the review and approval processes set forth in Section E
below).
(iv) Agricultural Uses (as an Interim Use only).
(v) Educational facilities including, but not limited to public and
private schools, universities, and colleges.
(vi) Community Facilities.
(vii) Public or private transportation, transit or parking facilities
including but not limited to bus and rail stations.
(viii) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing being subject
to review and written approval of such Use by the Design Review Board).
(viii) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
foregoing being subject to review and written approval of such Use by the Design
Review Board).
(ix) Infrastructure.
(x) Dry Utilities.
(xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
36 This incorporates the language from the 1998 PUD Guide which placed the 60,000 sq.ft. limitation on existing
Planning Area H (now southern part of PA-F) and I (now PA-E) but not on existing Planning Area J (now northern
part of PA-F).
Exhibit G
999369.16 – V16-E 25
(xii)(ix) Churches, museums, libraries and public buildings.
(xiii)(x) Indoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xiv)(xi) Outdoor entertainment facilities that include the use of
amplified music (subject to review and written approval of such Use by the Design
Review Board).
(xv)(xii) Outdoor recreation and/or entertainment facilities that do
not include the use of amplified music.
(xvi)(xiii) Parks and Open Space.
(xvii)(xiv) Child Care Center.
(xviii)(xv) Animal Boarding (excluding outdoor Animal Boarding),
subject to review and written approval by the Design Review Board authorizing such Use
(xix)(xvi) Kennels (excluding outdoor Kennels), subject to review
and written approval by the Design Review Board authorizing such Use.
(xx)(xvii) Construction staging (as an Interim Use only).
(xxi)(xviii) Planning Areas F and I Only:
(1) Recycling Facility.
(2) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(xxii)(xix) Planning Area I Only:
(1) Pedestrian and vehicular bridges, bridge abutments and
improvements reasonably related thereto.
(2) Automobile Repair Shops (Major and Minor).
(3) Light Industrial Uses.
(xxiii)(xx) Additional Uses which the Director determines to be
similar to the foregoing Uses by Right.
(xxiv)(xxi) Accessory Uses and Structures customarily appurtenant to
the foregoing Uses by Right.
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
Exhibit G
999369.16 – V16-E 26
(i) Hospitals and medical facilities including, but not limited to
offices, clinics, group and congregate care facilities, nursing homes and hospitals.
(ii) Educational facilities including, but not limited to public and
private schools, universities, colleges and day care.
(i)(iii) Service Station.
(ii)(iv) Animal Boarding (outdoor), subject to review and written approval
by the Design Review Board authorizing such Use
(iii)(v) Kennels (outdoor), subject to review and written approval by the
Design Review Board authorizing such Use.
(iv)(vi) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(v) Planning Areas G and H Only:
(1) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic (subject to
review and written approval by the Design Review Board
authorizing such Use).37
(vi)(vii) Planning Areas F, G and H Only:
(1) Animal Boarding (outdoor).
(2) Kennels (outdoor).
(vii)(viii) Planning Area I Only:
(1) Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) which exceed 48 feet in Building
Height.
(c) Prohibited Uses:
(i) Heavy Industrial Uses.
(ii) Medical Marijuana Businesses.
(iii) Nude Entertainment Establishments.
(iv) Planning Areas F, G and H Only:
(1) Automobile Repair Shops (Major).
37 This is consistent with 1998 PUD Guide which only allowed hospital use as Special Review Use.
Exhibit G
999369.16 – V16-E 27
(2) Family Child Care Home.
(3) Group Home.
(4) Mobile Homes.
(5) Recycling Processing Center.
(6) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Commercial Uses:
a. Front: 25 feet
b. Side: None7.5 feet
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(2) Industrial and Residential Uses:
a. Front: 25 feet
b. Side: 7.5 feet.
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(3) Vertically-integrated Mixed Use Projects:
a. Front: 25 feet
b. Side: None
c. Rear: 10 feet
d. Abutting Interstate 70 or railroad right-of-way: 20
feet
(ii) Maximum Building Height: 48 feet. Single-family or duplex
residential structures shall not exceed 35 feet. Non-habitable architectural features such
Exhibit G
999369.16 – V16-E 28
as chimneys, towers, steeples and similar features shall be excluded from the calculation
of building height.38
(1) Commercial Uses:
a. Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) exceeding 48 feet shall be
permitted up to a maximum Building Height of 135 feet as specifically
identified as a Special Review Use in Section D.6(b).
b. Hospitals, Long-term Care Facilities and other
medical facilities including, but not limited to clinics, independent and
assisted living facilities (including cafeteria and food preparation areas),
group and congregate care facilities and nursing homes: 80 feet.
c. All other Commercial Uses: 48 feet.
(2) Industrial Uses: 48 feet.
(3) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(4)(1) Vertically-integrated Mixed Use Projects (except as set
forth in Section D.6(d)(ii)(1) with respect to hotels comprising a portion of a Mixed
Use Project): 48 feet.
(iii) Maximum Site CoverageMinimum Landscaped Area: 8020%.
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Areas F, G and H: 18 Dwelling Units per acre.
(ii) Planning Area I: 15 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
38 This is the language in the 1998 PUD Guide.
Exhibit G
999369.16 – V16-E 29
7. Planning Area J – Regional/Neighborhood Commercial and Residential
Mixed Use Projects.
(a) Uses by Right: Except as specifically identified as Special Review Uses
in Section D.7(b) below or specifically prohibited in Section D.7(c) below, the following
Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Commercial Uses.
(iii) Mixed Used Projects; provided, however, (a) no Uses specifically
prohibited in Section D.7(c) below shall be included in such Mixed Use Project, and
(b) no Uses specifically identified as Special Review Uses in Section D.7(b) below shall
be included except pursuant to the review and approval processes set forth in Section E
below.
(iv) Automobile Repair Shops (Minor).
(v) Community Facilities.
(vi) Agricultural Use (as an Interim Use only).
(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services.
(viii) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(ix) Infrastructure.
(x) Dry Utilities.
(xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(vii) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
(xii)(viii) Recreational facilities.
(xiii)(ix) Parks and Open Space.
(xiv)(x) Additional uses which the Director determines to be similar
to Uses by right.
(xv)(xi) Accessory Uses and Structures customarily appurtenant to
Uses by Right.
Exhibit G
999369.16 – V16-E 30
(b) Special Review Uses: The following Uses shall be permitted pursuant to
the review and approval processes set forth in Section E below:
(i) Churches, museums, libraries and public buildings.
(ii) Child Care Center.
(iii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
(ii) Medical Marijuana Businesses.
(iii) Nude Entertainment Establishments.
(iv) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Building Setback Requirements:
(1) Residential Uses:
a. Front: 20 feet (except as provided below).
b. Side: 10 feet (except as provided below).
c. Rear: 10 feet (except as provided below).
(2) Commercial Uses:
a. Front: 20 feet (except as provided below).
b. Side: None (except as provided below).
c. Rear: 10 feet (except as provided below).
(3) Notwithstanding the foregoing, the minimum Building
Setback abutting the Interstate 70 right-of-way shall be 20 feet.
(ii) Maximum Building Height: 48 feet. Single-family or duplex
residential structures shall not exceed 35 feet. Non-habitable architectural features such
as chimneys, towers, steeples and similar features shall be excluded from the calculation
of building height.
Exhibit G
999369.16 – V16-E 31
(4) Commercial (excepting Hotel, Motel and Lodge Uses) and
Light Industrial Uses: 48 feet.
(5) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(6) Vertically-integrated Mixed Use Projects: 48 feet.
(7) Hotel, Motel and Lodge Uses: 55 feet.
(ii)(iii) Maximum Site CoverageMinimum Landscaped Area: 8020%
(iii)(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum: 18 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
8. Planning Area K - Hillside Residential.
(a) Uses by Right: Except as specifically prohibited in Section D.8(b) below,
the following Primary Uses and Accessory Uses:
(i) Residential Uses.Single family residential dwelling.
(ii) Primary/Secondary structure.
(ii)(iii) Agricultural Use (as an Interim Use only).
(iv) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
(iii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing subject to
review and written approval of such Use by the Design Review Board).
(iv) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
Exhibit G
999369.16 – V16-E 32
foregoing subject to review and written approval of such Use by the Design Review
Board).
(v) Infrastructure.
(vi) Dry Utilities.
(vii)(v) Recreational facilities.
(viii)(vi) Parks and Open Space.
(ix) Public Facilities.
(x) Community Facilities.
(xi)(vii) For Lot 1 only, Hhomeowner association facilities
including, but not limited to, a caretaker unit (as a Secondary Structure), clubhouse and
restaurant, community meeting facilities, recreational facilities, and other similar
facilities and amenities.
(xii)(viii) Accessory Uses and Structures customarily appurtenant to
Uses by Right.
(xiii)(ix) Additional uses which the Director determines to be similar
to Uses by Right.
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Commercial Uses.
(ii) Industrial Uses.
(d) Building Envelope Requirements: The layout, location, size and number
of Lots within Planning Area K as depicted on the PUD Master Plan are conceptual, non-binding
and provided only for illustrative purposes only. The precise layout, location, size and number
of Lots and the precise location of the Building Envelope for each Lot within Planning Area K
will be as established by and reflected in the Final Plat creating the Lot, and shall be based on
various site specific features of the Lot such as the topography, grade, natural vegetation and
similar matters, but shall generally comply with the following requirements unless such
compliance is determined to be impractical or unreasonable.
(i) Minimum Building Setbacks:
(1) Front: 25 feet (except as set forth below).
Exhibit G
999369.16 – V16-E 33
(2) Side: 20 feet (except as set forth below).
(3) Rear: 20 feet (except as set forth below).
(4) For conceptual Lot 1 (as depicted on the PUD Master
Plan): 20 feet from the property line, except as otherwise required to accommodate
utilities, drainage, access, fire and building code regulations, and the flood plain of
live streams.
(ii) Maximum Building Height:
(1) Residential Uses:
a. Single-family Dwellings and Duplex Dwellings: 35
feet.
b. Multi-family Dwellings: 48 feet.
(2) Homeowner association amenities and Community
Facilities: 35 feet.
(iii) Maximum Site Coverage:39
(1) Single-Family Residential Uses: the lesser of (a) 1 acre of
the applicable Lot; or (b) 80% of the applicable Lot, provided that the final Site
coverage shall be the Building Envelope for each Lot on the Final Plat creating the
applicable Lot, provided further that, in any event, such Building Envelope shall
comply with the requirements of this Section.
(2) All other Uses: the final Site coverage shall be the
Building Envelope for each Lot on the Final Plat creating the applicable Lot,
provided further that, in any event, such Building Envelope shall comply with the
requirements of this Section.
(iv) Minimum Lot Area: 1 acre.
(e) Residential Density Maximum: Building permits may be issued for no
more than 280 Dwelling Units in the aggregate for Planning Area K and Planning Area RMF-1
(provided that Primary/Secondary Dwelling Units situated on the same Lot in Planning Area K
or the same Lot in Planning Area RMF-1 shall be considered one Dwelling Unit).40
(f) Parking Requirements: As set forth in the Parking Regulations.
39 This method of maximum site coverage and building envelope determination is superior to the existing definition
and was requested by Town staff. With Council direction to narrowly implement the Settlement Term Sheet, the
Applicant may prefer the 1998 PUD Guide definition. If such is the case I do not object or recommend against re-
including the building envelop definition in the 1998 PUD Guide.
40 The 1998 PUD Guide counts Primary/Secondary Dwelling Units as 2 Dwelling Units.
Exhibit G
999369.16 – V16-E 34
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family.
(a) Uses By Right: The following Primary Uses and Accessory Uses:
(i) Residential Uses.
(ii) Community Facilities.
(iii) Preschool, nursery, in-home child care and child care.
(iii)(iv) Agricultural Use (as an Interim Use only).
(iv)(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(vi) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
(v) Infrastructure.
(vi)(vii) Dry Utilities.
(vii)(viii) Recreational facilities.
(viii)(ix) Temporary real estate offices and construction offices.
(ix)(x) Residential management office.
(x)(xi) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xi)(xii) Additional uses which the Director determines to be similar
to Uses by Right.
(xii)(xiii) Planning Area RMF-2 Only:
(1) Pedestrian bridges.
(b) Special Review Uses:
(i) Churches, museums, libraries and public buildings.
Exhibit G
999369.16 – V16-E 35
(i)(ii) Preschool, nursery school, in-home child care, and Child Care
Center.
(ii)(iii) Group Home.
(iii)(iv) Commercial Parking, Private Parking and Public Parking.
(iv) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(v) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (each of the foregoing subject to
review and written approval of such Use by the Design Review Board).
(vi)(v) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services (each of the
foregoing subject to review and written approval of such Use by the Design Review
Board).
(vii)(vi) Planning area RMF-1 Only:
(1) Rock and gravel crushing operations related to rock and
gravel materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Commercial Uses (except as specifically included in
Sections D.9(a) or D.9(b)).
(ii) Industrial Uses.
(iii) Mobile Homes.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: 20 feet from Interstate-70 right-
of-way, provided there shall be no other setback requirements except as may be necessary
to accommodate utility improvements, lines and mains, facilities, services and buildings.
(1) Front: 20 feet.
(2) Side: 10 feet.
(3) Rear: 10 feet.
(ii) Maximum Building Height:
(1) Single-family Dwellings and Duplex Dwellings: 35 feet.
(2) Multi-family Dwellings: 48 feet.
Exhibit G
999369.16 – V16-E 36
(3) Commercial: 48 feet.
(iii) Maximum Site Coverage: 80%.
(iv)(iii) Minimum Landscaped Area: 20%.
(v)(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Area RMF-2: 12 Dwelling Units per acre.
(ii) Planning Area RMF-1: 6 Dwelling Units per acre.
(f) Parking Requirements: As set forth in the Parking Regulations.
(g) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(h) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
10. Planning Areas P1-P3: Parkland.
(a) Uses By Right: Except as specifically prohibited in Section D.10(b)
below, the following Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Community Facilities (subject to review and written approval of
such Uses by the Design Review Board).
(iii) Equestrian, pedestrian and bicycle trails.
(iv) Landscape improvements.
(v) Indoor and outdoor, sports, training and recreation facilities.
(vi) Lakes, ponds, reservoirs and irrigation ditches.
(vii) Parks, picnic facilities and temporary entertainment for special
events.
(viii) Open Space
(ix) Infrastructure.
(x) Dry Utilities.
Exhibit G
999369.16 – V16-E 37
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(c) Prohibited Uses:
(i) Residential Uses.
(ii) Commercial Uses.
(iii) Industrial Uses.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: No minimum except must be
sufficient to accommodate utilities, drainage, access, fire and building code regulations
and flood plain of live streams.
(ii) Maximum Building Height: 35 feet.
(iii) Maximum Site Coverage: Not applicable.
(iv) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
11. Planning Areas OS1 – 0S7: Natural Open Space.
(a) Uses By Right: Except as specifically identified as Special Review Uses
in Section D.11(b) below or specifically prohibited in Section D.11(c) below, the following
Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Equestrian, pedestrian and bicycle trails.
(iii) Landscape improvements.
(iv) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
Exhibit G
999369.16 – V16-E 38
(iv) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services.
(v) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(vi) Infrastructure.
(vii) Dry Utilities.
(viii)(v) Snow storage.
(ix)(vi) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings; provided,
however, such uses which are located in Planning Area OS6 shall be oriented on a
generally north-south axis.
(x)(vii) OS1 – 0S5 and OS7:
(1) Lakes, ponds, reservoirs and irrigation ditches.
(2) Park and picnic facilities and related parking.
(xi)(viii) OS5 and OS6 (subject to review and written approval of
such Uses by the Design Review Board):
(1) Community Facilities.
(2) Recreational Uses including public river access.
(3) Pedestrian and vehicular access, roads, bridges, bridge
abutments and improvements reasonably related thereto.
(xii)(ix) OS3:
(b) Special Review Uses:
(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(ii) OS6 only: The following Uses shall be permitted pursuant to the
review and approval processes set forth in Section E below:
(1) Lakes, ponds, reservoirs and irrigation ditches.
(2) Park and picnic facilities and related parking (subject to
review and written approval of such Uses by the Design Review Board).
Exhibit G
999369.16 – V16-E 39
(c) Prohibited Uses: All Uses other than Uses by Right and Special Review
Uses specifically listed above.
(d) Building Envelope Requirements:
(i) Building Setback Requirement: Not applicable.
(ii) Maximum Building Height: Not applicable.
(iii) Maximum Site Coverage: Not applicable.
(iv) Minimum Lot Area: Not applicable.
(v) Minimum Lot Area: Not applicable.
(e) Parking Requirements: As set forth in the Parking Regulations.
(f) Supplemental Regulations: All development is further subject to the
supplemental regulations set forth in Section I below.
(g) Street Requirements: Streets are subject to the standards set forth in
Exhibit F of this PUD Guide.
12. Planning Areas PF-1 – PF-3: Public Facility.41
(a) Uses By Right: Except as specifically identified as Special Review Uses
in Section D.12(b) below or specifically prohibited in Section D.12(c) below, the following
Primary Uses and Accessory Uses:
(i) Agricultural Use (as an Interim Use only).
(ii) Public Facilities.
(iii) Landscape improvements.
(iv) Public or private roads and utilities including but not limited to
utility improvements, lines and mains, facilities, services and buildings.
(iv) Infrastructure.
(v) Dry Utilities (subject to review and written approval of such Use
by the Design Review Board).
(vi)(v) Within Tract E, Final Plat, The Village At Avon Filing 3 (Planning
Area PF-3), and Tract F, Final Plat, The Village At Avon Filing 3 as amended (Planning
41 This is a new Planning Area designation which I and Town staff asked the Applicant to create to treat certain lots
dedicated to public entities differently.
Exhibit G