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TC Council Packet 03-26-2013TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013 MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM TODD GOULDING COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT - COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. ACTION ITEMS 4.1. Approval of Minutes from February 26, 2013 4.2. Request to Transfer Town of Avon Radio License to Eagle County per Letter to Federal Communication Commission (Lt. Greg Daly) 4.3. Wildridge Point Subdivision (Jared Barnes, Planner I) 4.3.1. Resolution 13-11, Series of 2013, Resolution Approving a Variance for Lots 33 and 34, Block 4, Wildridge Subdivision 4.3.2. First Reading of Ordinance 13-05, Series of 2013, Ordinance Approving A Minor PUD Amendment and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge Subdivision 4.4. Resolution 13-09, Series of 2013, Resolution to Amend the 2013 Avon Capital Projects Fund Budget, 2013 Supplemental Budget Amendment (Scott Wright, Finance Director) 4.5. Village at Avon Settlement implementation (Eric Heil, Town Attorney) 4.5.1. Update on Settlement Implementation 4.5.2. Resolution No. 13- 10, Series of 2013, Resolution Approving the Asphalt Overlay Escrow Account Agreement 4.5.3. Approval by Motion of Revocable License Agreement for Snow Storage 4.5.4. Motion to Continue to April 9 the Public Hearing for Second Reading of Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek Metropolitan District Service Plan 4.5.5. Motion to Continue to April 9 the Public Hearing for Second Reading of Resolution No. 13-03, Series of 2013, Approving Amendments to The Village Metropolitan District Service Plan 5. WORK SESSION 5.1. Planning and Zoning Commission Appointments: Update on Upcoming PZC Appointment Process (Matt Pielsticker, Planner II) 5.2. Hahnewald Barn Report–Historic Status and Relocation Plan (Matt Pielsticker, Planner II) 5.3. Committee Meeting Updates: Councilors and Mayor 5.4. Council Comments TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013 MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET 5.5. Mayor Report 5.5.1. Future Agenda Items 5.6. Financial Matters – Sales and Accommodations Tax January 2013 (Report Only,Kelly Huitt, Budget Analyst) 6. ADJOURNMENT FUTURE COUNCIL AGENDA FOR APRIL 9, 2013 & PROPOSED TOPICS: VILLAGE AT AVON SETTLEMENT DOCUMENTS; REPORT ON 1ST QUARTER STRATEGIC PLAN IMPLEMENTATION TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 1 of 7 CALL TO ORDER AND ROLL CALL Mayor Pro Tem Todd Goulding called the meeting to order at 4:05 PM. A roll call was taken and Council members present were Dave Dantas, Jennie Fancher, Buz Reynolds and Jake Wolf. Rich Carroll was initially absent, but arrived at 4:20 PM. Councilor Chris Evans was absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager/Town Clerk Patty McKenny, Finance Director Scott Wright, Planners Matt Pielsticker and Jared Barnes, as well as other staff members and the public. APPROVAL OF AGENDA It was noted that there would be WORK SESSION a) MEET WITH PLANNING AND ZONING COMMISSION: PZC members present included Chris Green, Scott Prince, Phil Struve, Paul Anderson, John Minervini, Timothy Losa, and Jim Clancy. The topics reviewed at the meeting are listed and the 2013/2014 Strategic Plan was reviewed; PZC requested an opportunity to review the work plan at their next meeting.  PZC Roles & Responsibilities.  TOA 2013/2014 Strategic Plan and Work Plan by Quarter  Schedule Next Joint Meeting for Tuesday, August 27, 2013 A TOWN RECEPTION WAS HELD FROM 5:30 PM UNTIL 6 PM FOR RETIRING OFFICER SANTIAGO (JIM) PEREZ IN RECOGNITION OF HIS YEARS OF SERVICE WITH THE AVON POLICE DEPARTMENT. PUBLIC COMMENT There were no public comments at this time. ACTION ITEMS a) RESOLUTIONS i) Resolution No. 13-05, Series of 2013, Resolution in Appreciation of Police Officer Santiago Perez’s Years of Service Chief Ticer presented an award to Officer Perez for his years of service and role as a master police officer. Mayor Carroll read Resolution No. 13-05 thanking Officer Perez for his service. Councilor Dantas moved to approve Resolution No. 13-05, Series of 2013, Resolution in Appreciation of Police Officer Santiago Perez’s Years of Service. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans absent). ii) Resolution No. 13-06, Series of 2013, Resolution In Appreciation of Recreation Director Meryl Jacobs’ Years of Service Mayor Carroll read Resolution No. 13-06 thanking Recreation Director Meryl Jacobs for her service. Mayor Pro Tem Goulding moved to approve Resolution No. 13-06, Series of 2013, Resolution In Appreciation of Recreation Director Meryl Jacobs’ Years of Service. Councilor Reynolds seconded the motion and it passed unanimously by those present (Councilor Evans absent). EXECUTIVE SESSION At 6:30 pm, Mayor Pro Tem Goulding moved to convene to an Executive Session to discuss the following: 1) Discussion to determine positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. §24-6-402(2)(e) related to TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 2 of 7 economic development The motion was seconded by Councilor Wolf. Prior to meeting in executive session, Michael Cacioppo, Avon resident, provided the following comments about the executive session agenda language:  The Vail Daily advertisement in newspaper font is too small; requested larger font size.  He expressed that he did not think the Executive Session language was transparent enough for the public to understand the topic to be discussed and requested that the town reveal the details to be discussed. At that time, Town Attorney Eric Heil noted that the language was legally appropriate on the agenda and there was no need to explain anything more specifically at this time. The Town Council then met in Executive Session. Mayor Carroll noted that the executive session adjourned at 7:15 pm and they were now reconvened in regular session. He asked if any Town Council member believed that any discussion in executive session was inappropriate and not related to the topic and purpose of the executive session to please state the objections at this time; there were no objections. b) CONSENT AGENDA i) Minutes from February 12, 2013 Councilor Reynolds moved to approve the minutes; Mayor Pro Tem Goulding seconded the motion and it passed unanimously by those members voting (councilor Evans absent). Mayor Carroll presented the Lot 61 Wyndham Vacation Club Development Application noting the following two items be considered by the Town Council at this time on second reading. He noted that both ordinances were approved on first reading on February 12, 2013. Some introductory comments were made summarizing what would be considered with the ordinances and applications. c) LOT 61 WYNDHAM VACATION CLUB DEVELOPMENT i) Public Hearing on Second Reading on Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership ii) Public Hearing on Second Reading on Ordinance No. 13-03, Series of 2013, Ordinance Approving a Rezoning Application from the Planned Unit Development (PUD) Zone District to the Town Center (TC) Zone District, for Lot 1, a Resubdivision of Lot 61, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County; Approving a Major Development Plan Application; Approving an Alternative Equivalent Compliance Application; and Approving a Development Agreement for “Wyndham – Lot 61”, located on lot 1, a Resubdivision of 61, Block 2, Benchmark at Beaver Creek. Jared Barnes, Planner I, presented Ordinance No. 13-02, the code text amendment in response to issues brought forth at the December 18th, 2012 Planning and Zoning Commission meeting with regard to the legality of timeshare uses within the Town Center zone district. It was noted that Ordinance 13-02 proposed Code Text Amendments that would amend the following portions of Title 7, Development Code: Chapter 7.08, Definitions; Section 7.24.040, Table of allowed uses; Table 7.24-1, Table of allowed uses; Section 7.24.050, Use-specific regulations; and, Section 7.24.060, Special review uses. He noted that there were no changes to the ordinance from first reading and the proposed legislation addressed the following items:  an amendment to AMC Chapter 7.08, Definitions, is to establish definitions for “Hotel, Motel, and Lodge” and “Vacation Club”. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 3 of 7  an amendment to AMC Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, is to establish a use type of “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club Ownership” and its allowance within each zone district.  an amendment to AMC Section 7.24.050, Use-specific regulations, is to establish specific limitation and conditions for “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”)”.  an amendment to AMC Section 7.24.060, Special review uses, is to establish a special review use process for any conversion of an existing dwelling to a “timeshare” use. Mayor Carroll opened the public hearing, no comments were made, and the hearing was closed. Mayor Pro Tem Goulding moved to approve Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership. Councilor Wolf seconded the motion and it passed with a six to one vote by those present (Councilor Reynolds – nay; Councilor Evans absent). Mayor Pro Tem Goulding move to waive the application fee for the Code Text Amendment application. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans absent). Mayor Carroll presented the next agenda item, Ordinance No. 13-03, and noted that the staff report summarized the development application components related to “Wyndham - Lot 61” and that all would be considered as one ordinance. He explained that the owner of the lot, Wyndham Vacation Resorts, Inc. (“Owner”) was seeking approval of a fifty-eight (58) unit timeshare project, with supporting retail space. In addition, he noted that the Ordinance was drafted to include all items relevant to the project such as the Rezoning, the Major Development Plan, the Alternative Equivalent Compliance (“AEC”) application (collectively the “Application”), and related Development Agreement for Lot 61. Dominic Mauriello, Mauriello Planning Group, noted that there were no additional comments; he did provide some slides that showed a revised site plan, revised Level 1 plan, revised parking level plan, and revised west elevation slide. There was a summary of how the trash containers would be on the lower level and trash will be removed in the underground parking area and around the building; smaller truck would remove the trash. Matt Pielsticker provided an update on the following items which were reviewed at the February 12, 2013 meeting and required some follow-up, information provided in staff memo: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. Staff Response: This condition has been verified in both the Development Agreement and the Development Plan. The widened path and trash truck exhibit have been removed from the Development Plan drawings (Attachment A). This condition is also made abundantly clear in Section 6.1(b) of the Development Agreement. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. Staff Response: This has been demonstrated in both documents. Staff will continue to coordinate the construction in this area prior to a certificate of occupancy for the project. 3. Applicant shall agree to provide a mock-up of exterior materials, which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. Staff Response: This condition has been added to Ordinance 13-03. Staff is comfortable facilitating the successful implementation of this condition with PZC if the project moves forward. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 4 of 7 4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. Staff Response: After learning more about the timing and frequency that the generator(s) behind the louvers would be utilized, the Council was comfortable with the location of the louvers (near the transit stop underneath the sales center) as long as it was called out in the approval. The Development Agreement now includes language verifying that the generator will be tested no more than once per month. 5. The Development Plan shall be amended to define location and type of bench. Staff Response: The location of the “Landscape Forms, Chase Park Bench in Olive Powder Coat finish” is now indicated on the attached (revised) Landscape Plan. See Page 70 of the attached (revised) Landscape Plan in Attachment A. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. Staff Response: The Town Council requested clarification on the predicted collections for real estate transfer tax, based on the model that was presented jointly by the Applicant and Scott Wright, Finance Director, at the last hearing. This issue is that the percent of interests sold in the timeshare project total more than 100%. For example, in year 3 it is anticipated that 70% of the interest (points) would be sold and then in year 4 there is another 50% being sold, for a total of 120%. As the Applicant indicated at the meeting and now verified by Wyndham, this is due to the anticipation of points that are returned to Wyndham due to foreclosures and similar returns (i.e. voluntary returns). Those interests are then resold by Wyndham and thus, in some cases, trigger another taxable event. Staff is comfortable with the model as presented and feels that it reasonably predicts this particular revenue stream, based on Wyndham’s professional experience with this product type. Eric Heil, Town Attorney, noted revisions to the development agreement as follows: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. [Applicant added language in Section 6.1(b) which is acceptable]. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. [Language has been revised in Sections 5.2(b) and (c) and Sections 6.1(b) and (c) to incorporate this direction.] 3. Applicant shall agree to provide a mock-up of exterior materials which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. [This provision is addressed in the Ordinance as a condition]. 4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. [Applicant added language in Section 6.3. The proposed language provides flexibility to test generator outside of established timeframes when Owner for emergencies, equipment failure and other events determined by Owner. The language is acceptable to me because I believe such a provision practically only establishes a guideline, some flexibility must be allowed for emergencies and unforeseen circumstances and strict enforcement would be difficult.] 5. The Development Plan shall be amended to define location and type of bench. [This provision is addressed in the Development Plan]. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. [This provision is addressed in Town Staff memorandum]. There were additional revisions addressed by the Town Attorney that were noted in the council packet memo provided. Mayor Carroll opened the public hearing. He noted that there were letters included in the materials as follows: 1) Ticino owner Charles Frey dated October 29, 2012, and 2) Johnson & Repucci LLP from Eben Clark dated 12/13/12 representing Avon Center at Beaver Creek. No other comments were heard that evening and the hearing was closed. TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 5 of 7 There were some additional Council comments that addressed the following:  Councilor Reynolds expressed a need for more retail for the project especially in that area and was concerned about setting a precedent in that area about not having retail.  Councilor Dantas also requested more retail on the main floor, but expressed concerned about the ability for the business to be sustainable.  Councilor Wolf didn’t want to deter the project from happening and suggested asking the group to sponsor events in the mall area to generate the synergy.  Both Mayor Pro Tem Goulding and Councilor Fancher were supportive of the project.  Mayor Carroll praised the applicant and staff who worked so diligently to complete the application and move through the process. Mayor Pro Tem Goulding moved to approve Ordinance No. 13-03, Ordinance Approving a Rezoning Application from the Planned Unit Development (PUD) Zone District to the Town Center (TC) Zone District, for Lot 1, a Resubdivision of Lot 61, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County; Approving a Major Development Plan Application; Approving an Alternative Equivalent Compliance Application; and Approving a Development Agreement for “Wyndham – Lot 61”, located on lot 1, a Resubdivision of 61, Block 2, Benchmark at Beaver Creek. . Councilor Dantas seconded the motion. At this time Town Manager Virginia Egger noted that a site walk was completed by staff and that the width of lettuce shed lane might be better served with benches and pedestrian amenities. She suggested that the town would redesign the walkway to create a more attractive area. She suggested language that might address this in the development agreement. Dominic Mauriello noted that the applicant would be favorable as long as there were no impacts to the east side of the project since it was currently in the design phase. It was suggested that the language be included in Section 5.2 with some lettering revisions. Dominic Mauriello noted that he wasn’t certain about having to go through the process again; he would prefer that the design changes not have to come back to the town council. Mayor Pro Tem Goulding amended his motion to include the following language in Section 5.2: Town and Owner agree that areas A, B and C may be redesigned to include seating and other pedestrian amenities. Town will be responsible for recommending at its option, to Owner in a timely manner such changes and upon Owner’s agreement the redesign shall proceed to PZC for design approval. Councilor Wolf seconded the amendment to the motion and both passed with a five to one vote by those members present (Councilor Reynolds – nay; Councilor Evans absent). Councilor Reynolds left the meeting at 8 pm. d) VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION i) Public Hearing on Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek Metropolitan District Service Plan – Action to continue to the regular Council Meeting of March 12, 2013 ii) Public Hearing on Resolution No. 13-03, Series of 2013, Approving Amendments to The Village Metropolitan District Service - Action to continue to the regular Council Meeting of March 12, 2013 Eric Heil, Town Attorney, presented an update regarding the many settlement documents pending final review and execution per the memo update in the council packet. Mayor Carroll opened the public hearing on Resolution No. 13-02, no comments were made, and the hearing was closed. Mayor Pro Tem Goulding moved to continue the public hearing for the Amendments to the Traer Creek Metropolitan District Service Plan to March 26, 2013. Councilor Fancher seconded the motion and it passed unanimously by those present. (Councilor Evans and Councilor Reynolds absent). TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 6 of 7 Mayor Carroll opened the public hearing on Resolution No. 13-03, no comments were made, the hearing was closed. Mayor Pro Tem Goulding moved to continue the public hearing for the Amendments to the Village Metropolitan District Service Plan Amendments to March 26, 2013. Councilor Fancher seconded the motion and it passed unanimously by those present. (Councilor Evans and Councilor Reynolds absent). e) Public Hearing on Second Reading of Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments (Virginia Egger, Town Manager) Virginia Egger, Town Manager, presented Ordinance No. 13-04 noting that there would be further review of whether or not a Public Works Director would be hired in light of thorough analysis of how each of the divisions operate. She welcomed any council input on the topic. There was a request to review the number of employees reporting to a manager so as not to get out of line with that ratio. Mayor Carroll opened the public hearing, no comments were made and the hearing was closed. Councilor Dantas moved to approve Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments. Mayor Pro Tem Goulding seconded the motion and it passed with a four to one vote by those present (Councilor Wolf – nay; Councilor Evans and Councilor Reynolds absent). f) Action on Resolution No. 13-07, Series of 2013, Resolution Adopting the Town of Avon Strategic Statement and 2013 Strategy developed at the January 14th Council Retreat (Rich Carroll, Mayor) Mayor Carroll noted the final paragraph of the resolution to include a more flexible review schedule. There was strong support for the strategic plan and Mayor Pro Tem Goulding moved to approve Resolution No. 13- 07, Series of 2013, Resolution Adopting the Town of Avon Strategic Statement and 2013 Strategy developed at the January 14th Council Retreat with the addition in the last “Whereas paragraph” as follows: WHEREAS, the Town Council has committed to timely review of the 2013-14 Strategic Plan and 2013 Work Plan, with an opportunity for the Avon Town Council to meet during the 3rd quarter of 2013, or as may be determined, to evaluate and amend these plans accordingly. Councilor Dantas seconded the motion and it passed unanimously by those present (Councilor Evans and Councilor Reynolds absent). g) Action on Amendment to Town Manager Employment Agreement (Virginia Egger, Town Manager) Town Manager Virginia Egger noted that the amendment to the town manager agreement was drafted as a result of council retreat. There was some discussion about the timing of the review which would determine if it were an “outgoing” or an “incoming” town council. Council addressed numerous topics during the discussion as follows:  Timing of the manager’s review  What type of review will occur  How long with the review process take  When will the rest of the organization be reviewed  How does this coincide with the budget process TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET Avon Town Council Meeting February 26, 2013 Page 7 of 7 After this discussion, there was consensus to revise Section 5.0 Performance Review and a motion was made by Mayor Pro Tem Goulding to approve the “Amendment to Town Manager Employment Agreement with Virginia Egger” with revision to the language as follows: 5.0 PERFORMANCE REVIEW. The Town Council shall review the performance of Manager during the week of July 8, 2013 and thereafter during the first week of October second week of November of each calendar year. The Town Council also may require a performance evaluation at any time a majority of the Council deems a review is necessary. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans and Councilor Reynolds absent). h) Action on Performance Evaluation Process and Criteria for Town Manager (Rich Carroll, Mayor) Mayor Carroll presented this topic. There was clarification about the use of the “ad hoc” committee in that the meaning includes the “organizers of the process”. There was consensus to think about the information and talk about it again on March 12th. WORK SESSION - CONTINUED b) Committee and Board Meeting Updates i) Meeting with Chris Romer, Vail Valley Partnership (Councilor Fancher) Virginia Egger met with Chris Romer and became very informed about the group and the kinds of programs they oversee. ii) Meeting with Ceil Folz, Vail Valley Foundation (Councilor Fancher & Councilor Reynolds) Councilor Fancher provided an update on the meeting with VVF which addressed many topics, such as the town’s role with 2015, how the town can identify opportunities, etc. It was noted that town staff would be meeting about this topic as well. c) Financial Matters (Kelly Huitt, Budget Analyst) Memo Only MAYOR REPORT 1) Future Agenda Items were discussed noting that March 12th would include meeting with Eagle County Commissioners and March 26th would include Village at Avon Service Plans. There being no further business to come before the Council, the regular meeting adjourned at 9 PM. RESPECTFULLY SUBMITTED: _________________________________ Patty McKenny, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Todd Goulding ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Lt. Greg Daly Date: Wednesday, March 26, 2013 Agenda Topic: Request to Transfer Ownership/ Management of Town of Avon Radio License - Call Sign WPRG237. Background Information: The Town of Avon (TOA) is a subscriber and user of Eagle County’s 800 MHZ Radio System (800 MHZ System). Three Town of Avon departments, Police, Transit and Road and Bridge, rely on the system. The 800 MHZ System was developed originally for first responders and emergency services, but has expanded to also include transportation, the school district and the water and sanitation districts. The primary County- wide users are the Fire, Police and Ambulance services. The 800 MHZ System is also part of the State-wide digital radio system. There are eight (8) radio tower sites owned, managed and maintained by Eagle County as part of the 800 MHZ System. In addition, Eagle County employs a radio technician, who maintains the radio infrastructure. These costs are funded through an annual subscriber’s fee, which are calculated primarily upon the number of subscriber radios and percentage timed used by each subscriber entity. TOA, as a subscriber, has been charged $41,800 for 2013, based upon a previous two year running average. The total budget for the 800 MHZ System is $530,000. The 800 MHZ System is governed by the subscribers (users) of the system, with oversight responsibility for the management and maintenance of the 800 MHZ System. Eagle County manages the collection of fees and expenditures payments. Lieutenant Greg Daly sits on the governing board on behalf of TOA. When the system was being implemented, the TOA applied for an 800 MHZ Radio License, titled the “AVON, TOWN OF”, Call Sign WPRG237, (“License”) to operate the Dowd Junction radio site. This is one of many licenses used on the County-wide system. Action before Council is to transfer this License to Eagle County. The primary benefit of transferring the License is to allow central management of all the County licenses by the Eagle County Emergency Manager, rather than coming to the Town of Avon for minor administrative changes within the License. The license is not of financial value to the Town as it is integrated into the County-wide system, and functionally TOA Police, Road and Bridge and Transit Departments cannot operate without use of all of the other County-wide frequencies and licenses. There is no adverse financial implication for the Town of Avon. Staff Recommendation(s): Council pass a motion authorizing the Mayor to sign the attached letter addressed to the Federal Communications Commission, which will allow for the transfer of the AVON, TOWN OF”, Call Sign WPRG237 License from the Town of Avon, Colorado, to Eagle County, Colorado, in order to streamline management of the County-wide system. Attachments, if any: Letter to the Federal Communications Commission Post Office Box 975 1 Lake Street Avon, CO 81620 970-748-4000 970-949-9139 Fax 970-845-7708 TTY March 26, 2013 Federal Communication Commission Public Safety Bureau 445 12th Street SW, Washington, DC 20554 Ladies/Gentlemen: The Town of Avon desires to assign their frequency license currently in the name “AVON, TOWN OF”, call sign WPRG237, to “EAGLE, COUNTY OF”, Colorado. In doing so, we ask that the Avon’s Federal Communications Commission (FCC) Registration Number (FRN) (13989843) be removed and the Eagle County FCC Registration Number FRN (1620285) be entered in its place. Henceforth, Eagle County will be managing and updating this license. For the Town or Avon: ___________________________ ____________________ Rich Carroll Date Town Mayor Attest: ____________________________ Patty McKenny Town Clerk For Eagle County: On behalf of Eagle County, Colorado, We accept the assignment of License, call sign WPRG237, from the Town of Avon, Colorado and we agree to the FRN change to our FRN #1620285. ___________________________ ____________________ Barry Smith Date Eagle County Radio System Manager TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Jared Barnes, Planner I Date: Friday, March 22, 2013 Agenda Topic: Resolution 13-11, Approving A Variance Request for Lots 2 and 3, Wildridge Point Subdivision; and, First Reading of Ordinance 13-05, Approving A Minor PUD Amendment and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge Subdivision Summary of Requests The Applicant, Dominic Mauriello of Mauriello Planning Group, representing the owner, Mountain C.I. Holdings LTD, has submitted a Minor PUD Amendment, Minor Subdivision, and Variance Applications (“the Application”). The Application requests a Minor Amendment to the Wildridge PUD to modify two (2) duplex lots, Lots 33 & 34, Block 4, Wildridge Subdivision (“the Property”), into three (3) single-family lots, Lots 1-3, Wildridge Point Subdivision. Included with this report are a Vicinity Map (Attachment A), Application Materials dated January 28th, 2013 (Attachment B), Public Comment (Attachment C), Revised Application Materials dated February 25th, 2013 (Attachment D), Revised Application Materials dated March 19th, 2013 (Attachment E), PZC Findings of Fact, Record of Decision, and Recommendation (Attachment F), Applicant’s Appeal Letter dated March 18th, 2013 (Attachment G), Resolution 13-11 (Attachment H), and Ordinance 13-05 (Attachment I). Application Process (§7.16.020, AMC) Public Notification In order to comply with the Public Hearing and pertinent noticing requirements, a mailed notice was provided to all property owners within 300’ of the property. In addition, a notice was published in the Vail Daily newspaper on Friday, March 15, 2013. Public Hearings Each of the separate requests within the Application has different review criteria. The Planning and Zoning Commission (PZC) is responsible for review and rendering a decision on the Variance Application. The PZC reviews the PUD Application and provides a recommendation to the Town Council after conducting a public hearing, as discussed below. The Minor Subdivision is reviewed and acted upon by the Town Council after holding a public hearing. The PZC held a public hearing at their February 5th, 2013 meeting and continued the item to the March 5th, 2013 meeting. The PZC made a recommendation on the Minor PUD Amendment with conditions affecting the Minor Subdivision to the Town Council for Final Action, which is included as Attachment F, and will be discussed later in this report. PUD Process In the fall of 2012, the Applicant approached the Town inquiring about the process for a Minor PUD amendment for parcels within the Wildridge Subdivision. The Town produced a letter for the applicant stating that such request would be processed under Section 7.16.060(h), Amendments to a Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 2 Final PUD. This section refers to Section 7.16.020(g), Minor Amendments, which is allowed so long as the application does not result in a change to the housing mix. This section also allows the Community Development Director to render a decision on a Minor Amendment so long as there is not a material change to the approved development application. Staff determined that the proposed Application did not result in a change to the housing mix, but did result in a material change to the approved development Application, and as such, the Director referred the Application to both the PZC and Town Council for public hearings. Background Benchmark Properties created the Wildridge Subdivision in 1979, shortly after the incorporation of the Town of Avon on February 28, 1978. The Plat was amended a few times with the most recent version being “Wildridge Replat No. 2”. According to the Wildridge Final Plat for Wildridge and Wildwood Subdivisions (currently Mountain Star PUD and Subdivision), the overall development concept was for “abundant open space recreation areas around lots” with a density of “barely one dwelling unit per acre”. Proposed Application The Application proposes to convert two (2) duplex lots into three (3) single-family lots. In order to process this request, Town Staff determined that three (3) separate applications are required as follows: (1) a Minor PUD Amendment application; (2) a Minor Subdivision application; and, (3) a Variance application. The Minor PUD Amendment and Minor Subdivision are required to change the zoning of the two (2) existing lots and plat three (3) new lots, while the Variance is required to allow for development on slopes in excess of forty percent (40%) and to allow for a building envelope to include area in excess of thirty percent (30%). Each of these requests will be discussed as a whole in the forthcoming sections of this memo. PZC Review The PZC held two (2) public hearings for the proposal on February 5th, 2013 and March 5th, 2013. They discussed the proposed Application with respect to the existing zoning, impacts on the property, public input, and compliance with the applicable codes. At their February 5th, 2013 meeting, the PZC ultimately requested additional information regarding building footprint sizes and illustrations representing the potential development from Wildridge Road. The Applicant provided revised drawings to respond to the PZC comments and a response to the Colorado Geologic Survey’s (CGS) concerns in their resubmission dated February 25th, 2013 and attached to this memo as Attachment D. The PZC also requested additional information regarding the intent of the Steep Slopes section, when discussed during the Development Code adoption by Town Council. Staff reviewed the minutes of those meetings and was unable to determine the exact discussion, but generally speaking the Town Council viewed amendments to the Wildridge PUD as a resubdivision not a new subdivision, but failed to address the PUD or Zoning Amendment aspect of the applicability section, as discussed later in this report. Staff recommended the PZC act on a Variance request through one (1) of two (2) draft resolutions; a denial as recommended by Staff; or, approval as the PZC directed Staff to prepare. Through their review, the PZC determined that a Variance was not warranted because the Application was a re-subdivision and not a new subdivision, therefore, it did not meet the applicability criteria. Ultimately the PZC approved a “Findings of Fact, Record of Decision, and Recommendation” (Attachment F) with twelve (12) Findings and two (2) conditions. The conditions are as follows: Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 3 1. The Building footprint on Lot 2 shall be limited to 3,000 gross sq. ft. (including garage) and the building footprint on Lot 3 shall be limited to 2,500 gross sq. ft. (including garage) and, 2. The above mentioned condition shall be included on the Final Plat for the Wildridge Point Subdivision as a plat note. PZC Variance Review The Variance Application was one of the more intensely discussed aspects of this Application and pertains to the following sections of the Municipal Code, §7.28.100(a), Steep Slopes, §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes. Each of these sections discuss how to develop on lots that contain areas in excess of thirty (30) or forty (40) percent slope. The Steep Slopes section prohibits all development on natural slopes exceeding forty percent (40%), as well as provides limitations on changing these natural grades. The Buildable Area section requires all lots to contain a buildable area less than forty percent (40%) that is of a size large enough to be consistent with the minimum lot size for the governing zone district. The Building Envelopes section requires a platted building envelope for all lots that contain slopes steeper than thirty percent (30%). The Applicant states in Attachment B that the proposal is solely a resubdivision and addition of a lot line and should not be subject to the above-referenced regulations. Section 7.28.100(a)(2), Applicability, requires the standards of the Steep Slopes section (§7.28.100(a)) of the Natural Resources Chapter (§7.28.100) to apply to “any new subdivision, PUD or zoning amendment when any portion of the lot contains naturally occurring slopes of thirty percent (30%) or greater”. The PZC discussed this request and agreed with the Applicant that the proposal is a resubdivision, not a new subdivision. They also made the determination that the PUD zone district classification is not changing therefore the Application is not a zoning amendment. These determinations are formalized through Findings #4 and #6 of Attachment F. Section 7.32.020(e)(1), Applicability, requires the standards of §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes, to apply to “all new lots, replats of lots, tracts and blocks, with the exception of condominium and duplex subdivisions that are in conformance with their preliminary plan.” Staff has determined that these code sections do apply to this Application since the Application is a replat of a lot. The PZC determined, through Findings #8 and #9, the Application either does comply with these standards or doesn’t need to comply with the standards. With regard to the Building Envelope Section (§7.32.020(e)(7)), the PZC determined that platting of non- developable areas and inclusion of maximum building footprint sizes creates a de facto building envelope thus complying with the intent of this section. The PZC determined that the Buildable Area Section (§7.32.020(e)(6)) should not apply because the property is already permitted to develop on areas exceeding forty percent (40%). In the preparation of actions on the Application for Council consideration, Staff concluded based on the above discussion, PZC made accurate Findings with regard to the applicability for §7.28.100(a), Steep Slopes. The PZC did not adequately consider the requirements of §7.32.020(e)(7), Building Envelopes, or §7.32.020(e)(7), Buildable Area, which prohibit lots from containing slopes in excess of thirty percent (30%) and forty percent (40%) respectively. Therefore, a Variance approval is required. The Applicant agrees with the Staff determination that a Variance is needed and has appealed the PZC’s lack of action on the Variance Application to the Town Council to act upon. This will allow the Application to be heard by Council on March 26th versus the Variance being re-noticed for a PZC action. As illustrated in Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 4 Attachment F, Findings#8 and #9, the PZC had clearly supported the requested Variance for §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes. As such, Staff has prepared Resolution 13-11 (Attachment H) to approve the Variance request pursuant to the discussion and Findings made by the PZC during their review. Planning Analysis The original Wildridge “Specially Planned Area” (now considered a “PUD” by default) and the accompanying Subdivision plat were established with a specific purpose and intent: to offer a diverse range of housing types and options to serve a diverse local population. As such, the housing types in the Wildridge PUD and Plat are diverse: single-family homes, duplexes, triplexes, four-plexes, and other forms of multi- family structures because the housing needs of the local population were, are, and continue to be diverse. At their February 5th, 2013 meeting, the PZC discussed the purpose of the Wildridge PUD and the intent of the accompanying plat were discussed. The PZC determined the proposed PUD Amendment would not significantly alter the housing types provided for in the original PUD and Plat due to the location of the property along with the anticipated development pattern that would occur on the site. When a multi-family structure, or a duplex, gets “down-zoned” to separate single-family houses, the corresponding site disturbance with such a configuration increases proportionally with each newly separated-out unit (individual excavation for each foundation, impervious surfaces, roof forms, site retaining, etc). The Colorado Geologic Survey (CGS) commented on the potential for increased site disturbances in their public comment (Attachment C). The Applicant responded to these concerns through their proposed revisions in Attachment D. These revisions show potential designs of limited building footprint sizes ranging from 2,500 to 3,500 square feet. These building footprint limitations also show potential driveway locations and preliminary grading and site retention for the driveways. As stated earlier, the PZC analyzed these options and recommended a 3,000 sq. ft. cap for Lot 2 and a 2,500 sq. ft. cap for Lot 3. Over the years, there have been amendments wherein development rights have been altered and replatted through the PUD and Subdivision process. The most recent amendment was for the Dry Creek PUD in Block 2 of the Wildridge subdivision, wherein a four-plex lot was converted to three (3) single-family residences. This PUD amendment was also predicated on approval of a subdivision variance, and reduced the number of dwelling units by one (1) and limited the maximum site coverage allowed per lot. Other PUD Amendment approvals include: Western Sage PUD in Block 4; Point View PUD in Block 1; Wildridge Acres in Block 2; and, Lots 42 & 43 in Block 4. Each of these examples provided multiple public benefits including, but not limited to: loss of at least a single development right; platted non-developable areas; capped unit size; and/or, maximum footprint size. In each case, these PUDs were approved prior to the inclusion of the Public Benefit Criteria being added to the PUD review criteria and prior to the adoption of the Avon Development Code. The Property, as platted and zoned today, can be developed with either two (2) duplex structures, two (2) single-family structures, or one (1) duplex structure and one (1) single-family structure. The Application proposes to amend these development rights by creating a new PUD and Subdivision within the Wildridge PUD, called “Wildridge Point”. As is exhibited on page 8 of Attachment B, the new lots will meet the Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 5 minimum lot size standards for the Residential Low Density (RLD) zone district and the Wildridge Subdivision. Page 3 of the proposed Final Plat (Exhibit A to Ordinance 13-05 (Attachment I)) shows the topographic map, shading areas that exceed forty percent (40%) in slopes. As seen on this survey, a majority of Lot 34 is developable with areas less than forty percent (40%) slope, while a majority of Lot 33 contains areas exceeding forty percent (40%) slope. Upon further review of the survey, some of the area that exceed forty percent (40%) slope approaches sixty percent (60%) slope within the proposed developable area, with some of the areas exceeding seventy percent (70%) slope in the proposed “non- developable” area. In summary, a vast majority of Lot 33 is extremely steep. The Wildridge Point subdivision will also plat “non-developable” areas on each new lot. The proposed “non-developable” areas encompass the downhill portions of the lots and likely areas that would not be affected by the existing or proposed style of development, due to the existence of a thirty foot (30’) wide utility easement. Previously, Staff raised concerns about Plat Note #4 which set forth the types of development that cannot occur in “non-developable” areas by limiting it to “buildings, fences, signs, and roads”. The Applicant has addressed this issue with a revised Final Plat and limited all forms of development from the non-developable areas unless approved by the Town. The proposed subdivision also includes a no-build/view easement on proposed Lot 1. This easement is for the benefit of the neighboring property to the west: Lot 35, Block 4, Wildridge. It is governed by Plat Note #5 and states that berming and landscaping may occur in this area only with written approval from the owner of Lot 35. Through the PZC review a recommendation was made to limit the building footprints on Lots 2 and 3 to 3,000 gross sq. ft. and 2,500 gross sq. ft. respectively, inclusive of garage area. The applicant has agreed to this restriction and included it as Plat Note #6. Additional Staff analysis will be included in the Staff response to each individual review criteria. Review Criteria - PUD Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the PZC and Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a PUD plan: (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 Application is to modify existing platted lots within the Wildridge PUD. The Application states that the proposed no-build zone, reduction in density, development pattern ensuring light and air between the structures, and smaller building footprints are a public benefit as stated on pages 17-18 of Attachment B. Staff agrees with this determination in light of the revisions provided in Attachment D. The reduction in density coupled with the limitation on maximum building footprint size will likely reduce the impacts on the land by not allowing the lots be developed with side-by-side or “coast-to-coast” structures. The inclusion of non-developable areas and limitations on building Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 6 footprint sizes create a de facto building envelope, but afford the property owner some flexibility in the location of the structures once detailed access design and building design are pursued. These limitations also ensure that the proposed increase in light and air between structures will be achieved. The Applicant has agreed to the PZC recommended limitations for maximum building footprint sizes of 3,000 sq. ft. for Lot 2 and 2,500 sq. ft. for Lot 3. Staff is of the opinion that these sizes are suitable for the subject lots and based on the potential development pattern, illustrated in Attachment D, the proposed public benefits can be achieved. The Application does not ensure that the total size of the structures will be of a smaller size than duplex structures or that they will utilize less water rights (SFEs) than duplexes, but the inclusion of maximum building footprint sizes will provide a clearer understanding of the maximum bulk of the structures on Lots 2 and 3. Ultimately the public comments (Attachment C) by the Eagle River Water and Sanitation District (ERWSD) will need to be addressed if a building permit is requested for a structure exceeding 3,000 sq. ft. or the equivalent square footage of an SFE at the time. (ii) The PUD rezoning will promote the public health, safety, and general welfare; Staff Response: The current allowed development rights and the proposed development rights will create the same ongoing impacts, with respects to this criterion, for the immediate neighborhood and Wildridge as a whole. (iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b); Staff Response: The proposed PUD amendment appears to generally comply with the Avon Comprehensive Plan. The Application complies with the Future Land Use Plan by modifying the zoning to a development pattern, single-family residences, which is allowed within the RLD zone district. Furthermore, the proposed average density of one and a quarter (1.24) complies with the maximum allowed in the RLD zone district. The following policies of the Comprehensive Plan are identified where the Application is not in strict compliance with the Comprehensive Plan. Policy B.2.3: Encourage cluster style development in areas of less density to promote creative and efficient site design that avoids impacts on environmental resources and augments open space Staff Comment: Although the Application proposes “non-developable” areas and building footprint limitations, it is not clear that these areas will further cluster development. However they do ensure, with the revisions provided, that impacts of development will avoid the steepest slopes. By restricting the non-developable areas from all forms of development, the Applicant has provided areas that will visually appear as open space, although public access will not be allowed. Policy H.2.1: Avoid development in environmental hazard areas such as floodplains, steep slopes, areas with geologic hazards, wildfire hazard areas, and areas with erosive soils. Staff Comment: The existing platted lots would allow development on these steep lots and development is proposed within areas of steep existing topography. Although the Application does not avoid all development on steep slopes, it does help further this policy of the Comprehensive Plan by providing building footprint limitations on Lots 2 and 3, where the steeper slopes occur. This provision will ensure that the buildings are limited in their impact on the steep slopes, which cannot be ensured under the current zoning. Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 7 Based on the discussions the PZC meetings, the Application meets all of the eligibility criteria as outlined in §7.16.060(b). Most notably, §7.16.060(b)(5), Public Benefit, states: “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 Review Criteria #1, above, and stated throughout this report, Staff does believe the Application proposes public benefits that would otherwise be infeasible or unlikely under the current zoning. The inclusion of building footprint limitations and non-developable areas ensure that the development pattern that will occur on the property will be responsive to the natural environment and will provide increased access to light and air. The Application, as proposed, does ensure that the public benefits, as presented by the applicant, would be better achieved through this rezoning than would be achieved by the existing zoning. (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: As proposed, the PUD amendment will have little to no effect on most services. As mentioned previously in this report, the future development may create the need for additional water rights (SFEs) due to the un-capped size of units, even though the building footprints will be limited. This need will be mitigated through a surcharge applied to each building at the time of Building Permit issuance if required. (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 originally zoned and platted as a “Specially Planned Area” and therefore does not have an underlying zoning. When the proposed PUD Amendment is compared to the existing Wildridge PUD, there is evidence that the proposal will reduce the impacts on the natural environment. The proposed three (3) single-family structures, and associated lots, with building footprint limitations and platted non-developable areas will ensure a reduced impact on the existing topography and natural environment that cannot be achieved with the development of two (2) duplexes as the current zoning permits. (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 discussed in the previous review criteria, the uncertain pattern of existing and the more certain pattern of proposed development will likely reduce the impact the other properties in the vicinity. Due to the limitation on maximum building footprint size for Lots 2 and 3 and the non- developable area, the project could experience reduced aesthetic impacts by ensuring light and air and limitations on the structures “growing” down the hillside. These limitations will also likely reduce the need for additional site retention on the steeper slopes that exist on the southern and southeastern portions of the property. The proposed massing studies included in Attachment D illustrate potential visual impacts of these structures next to the existing single-family residence on Lot 35 as viewed from the properties along Wildridge Road East above. Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 8 (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: The single-family residential use provides an efficient, workable relationship with surrounding uses and activity, as does the duplex land use. There is a mix of single-family and duplex buildings in close proximity to these lots. Review Criteria - Subdivision Pursuant to §7.16.070(f), Final Plat Review Criteria, AMC, the Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a Minor Subdivision: (f) Final Plat Review Criteria. After approval of a preliminary plan, the applicant may submit an application for a final plat. The following criteria shall apply to review of a final plat subdivision application: (1) The Town Engineer shall compare the legal description of the subject property with the County records to determine that: (i) The property described contains all contiguous single ownership and does not create a new or remaining unrecognized parcel of less than thirty-five (35) acres in size; (ii) The lots and parcels have descriptions that both close and contain the area indicated; and (iii) The plat is correct in accordance with surveying and platting standards of the state. (2) The final plat conforms to the approved preliminary plan and incorporates all recommended changes, modifications, and conditions attached to the approval of the preliminary plan; (3) The final plat conforms to all preliminary plan criteria; (4) The development will substantially comply with all sections of the Development Code; (5) The final plat complies with all applicable technical standards adopted by the Town; and, (6) Appropriate utilities shall provide an ability to serve letter including, but not limited to, water, sewer, electric, gas, and telecommunication facilities. Staff Response: The Town Engineer has reviewed the proposed Final Plat and has deemed that it is accurate in describing the property and complies with the technical requirements of the Development Code, with the exception of the two previously discussed code sections, §7.32.020(e)(7), Building Envelopes , and §7.32.020(e)(6), Buildable Area, that limit building envelopes and buildable area to areas in excess of thirty percent (30%) and forty percent (40%) in slope respectively. A Preliminary Plan for Subdivision is not a requirement of a Minor Subdivision process; therefore review criteria 2 and 3 should not apply. Review Criteria - Variance Pursuant to §7.16.110(c), Review Criteria, AMC, the Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a Variance: (c) Review Criteria. The PZC shall use the following review criteria as the basis for a decision on an application for a variance: (1) The degree to which relief from the strict or literal interpretation and enforcements of a specified regulation is necessary to achieve compatibility and uniformity of treatment among Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 9 sites in the vicinity, or to attain the objectives of the Development Code without grant of special privilege; (2) The effect of the requested variance on light and air, distribution of population, transportation and traffic facilities, public facilities and utilities, and public safety; (3) Such other factors and criteria related to the subject property, proposed development, or variance request as the decision-making body deems applicable to the proposed variance. Staff Response: Staff has provided an analysis of this process in the PZC Variance Review section above. Council Action: If the Council is satisfied with the PZC recommendations and Application, they should take two courses of action. 1. First, approve Resolution No: 13-11. 2. Second, approve the First Reading of Ordinance No: 13-05 and, schedule a public hearing and Second Reading of Ordinance No: 13-05 on April 9th, 2013. Attachments: A: Vicinity Map B: Application Materials dated January 28th, 2013 C: Public Comment D: Revised Application Materials dated February 25th, 2013 E: Revised Application Materials dated March 19th, 2013 F: PZC Findings of Fact, Record of Decision, and Recommendation G: Applicant’s Appeal Letter dated March 18th, 2013 H: Resolution 13-11 I: Ordinance 13-05 W I L D R I D G E R D E LONGSUN L N Source: Esri, i-cubed, USDA, USGS, AEX, GeoEye, Getmapping,Aerogrid, IGN, IGP, and the GIS User Community Lots 33 & 34, Blk 4, Wildridge 0 16080 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: JKoenig, Date: 03/20/13ILots 33 and 34 Property Boundaries Lot 33 Lot 34 Attachment A 1 Submitted:     November  21,  2012 Rev.  Dec  31,  2012 Rev.  January  28,  2013 Minor  PUD  Amendment Minor  Subdivision Variance A  Resubdivision  of  Lots  33  and  34,  Block  4,  Wildridge  Subdivision WILDRIDGE POINT Attachment B T ABLE  OF  C ONTENTS A.  Introduction  3 B.  Background  4 C.    Precedent  and  Other  Similar  Applications  6 D.  Zoning  Analysis  8 E.  Criteria  for  Review  -­‐  Minor  Subdivision  9 F.  Criteria  for  Review  -­‐  Final  Plat  15 G.  Criteria  for  Review  -­‐  Variance  16 H.    Criteria  for  Review  -­‐  Planned  Unit  Development  17 I.  Adjacent  Addresses  23 J.  Appendices  24 1.    Proposed  Final  Plat  and  Topo  Survey  of  Wildridge  Point 2.    1981  Wildridge  Final  Plat 3.    Letter  from  Staff  9/19/12 4.    Title  Reports 2 Attachment B A.  I NTRODUCTION The  applicant,  Mountain  C.I.  Holdings  LTD,  represented  by  Mauriello  Planning  Group,  is   requesting  a  Minor  Amendment  and  Minor  Subdivision  for  Lots  33  and  34,  Block  4,  Wildridge   Subdivision.    In  addition,  the  applicant  is  requesting  a  variance  from  the  standards  of   Sections  7.28.100.a.  and  7.32.020.e.6.  Lots  33  and  34  are  duplex  lots,  allowing  for  a  total  of  4   units  on  the  site.    The  applicant  is  requesting  to  create  Lots  1,  2,  and  3  of  Wildridge  Point   Subdivision,  which  would  be  single-­‐family  lots,  therefore  reducing  the  total  to  3  dwelling   units  on  the  site.    Because  the  lots  are  located  within  the  Wildridge  PUD,  a  minor   amendment  and  a  minor  subdivision  are  required.    The  proposed  final  plat  is  included  in  the   Appendix.    Below  is  a  portion  of  the  plat,  indicating  the  lot  line  to  be  vacated  and  the  new   proposed  lot  lines  creating  Lots  1,  2,  and  3.     By  reducing  the  density  and  allowing  for  3  smaller  lots,  the  overall  building  mass  and   footprints  are  reduced  in  overall  scale.    The  three  units  are  appropriately  spaced  and  allow   for  views,  light,  and  air  between  the  homes,  giving  a  feeling  of  more  openness.    The   drawings  that  follow  give  an  example  of  the  perception  of  open  space  as  viewed  from  the   roadway  vs.  the  duplex  format. Lot  line  to  be   vacated. Lot  lines  to  Lot  lines  to  be   created. 3 Attachment B B.  B ACKGROUND The  Town  of  Avon  was  incorporated  in  1978,  and  Benchmark  Properties  created  the   Wildridge  and  Wildwood  Subdivisions  shortly  thereafter.    Subsequently,  the  Wildridge   Subdivision  was  completely  replatted  in  1981.    The  Wildridge  PUD  and  Subdivision  are  unique   in  comparison  to  more  recent  PUDs  created  in  the  Town  of  Avon.    In  general,  the   requirements  of  the  PUD  are  provided  on  the  1981  plat  of  Wildridge.    It  is  this  plat  that   includes  all  of  the  allowable  land  uses,  building  heights,  setbacks,  etc.,  which  are  regulated   by  the  Town.    Along  with  these  standards,  the  1981  plat  provides  the  “developable  area”  of   certain  lots  within  the  subdivision.    The  developable  area  is  indicated  in  the  following   manner: Lots  33  and  34  do  not  include  any  non-­‐developable  area,  as  indicated  on  the  1981  plat: 4 Duplex  Format Single-­‐Family  Format Attachment B As  a  result,  Lots  33  and  34  are  entirely  developable  and  the  requirements  of  Sections   7.28.100.a.  and  7.32.020.e.6  are  therefore  not  applicable  since  this  PUD  specifically  allows  for   developable  areas  and  is  a  resubdivision  of  existing  platted  lots.    A  variance  application  has   been  submitted  to  vary  from  standards  that  are  “applicable  to  a  new  subdivision.”    The   Applicant  disagrees  that  these  standards  were  ever  intended  to  apply  to  an  amended  plat  or   a  Minor  PUD  amendment  but  has  applied  for  the  variance  in  deference  to  the  staff  opinion.     The  variance  request  is  reviewed  by  the  Planning  and  Zoning  Commission,  and  the  review   can  be  called-­‐up  by  the  Town  Council. Various  amendments  within  the  PUD  have  occurred  within  the  subsequent  30  years.    These   amendments  have  been  in  various  forms:  amendments  to  the  PUD,  new  PUDs  within  the   PUD,  etc.    However,  with  the  recently  adopted  Avon  Development  Code,  the  process  has   been  simplified  to  a  minor  amendment  (Section  7.16.020): (g)  Minor  Amendment.  The  applicant  may  apply  to  the  Director  for  minor  amendments  to  an   approved  development  application.  Minor  amendments  to  an  approved  development  application   may  be  approved,  approved  with  conditions,  or  denied  administratively  by  the  Director.  The   Director  is  authorized  to  approve  minor  amendments  only  if  the  development  approval,  as  so   amended,  complies  with  the  standards  of  the  Development  Code.  The  Director  may  refer  a  minor   amendment  to  the  decision-­‐making  body  that  was  responsible  for  the  original  approval  if  the   Director  determines  the  amendment  may  result  in  a  material  change  to  the  approved  development   application.  Proposed  amendments  to  an  approved  development  application  which  are  determined   by  the  Director  to  not  be  a  minor  amendment  shall  be  reviewed  and  processed  in  the  same  manner   as  would  be  required  under  this  Development  Code  for  the  original  application  for  which  the   amendment  is  sought  and  shall  include  full  application  fees. Minor  amendments  shall  consist  of  any  of  the  following: (1)  Any  change  to  any  permit  or  other  form  of  approval  that  was  originally  subject  only  to   administrative  review  and  was  approved  by  the  Director,  provided  such  change  would  not  have   disqualified  the  original  application  from  administrative  review  under  this  Development  Code   had  it  been  requested  at  that  time;  and  provided  that  the  minor  amendment  does  not  result  in   an  increase  of  more  than  ten  percent  (10%)  in  the  amount  of  square  footage  of  a  land  use  or   structure  and  does  not  result  in  a  change  in  the  types  of  uses  in  the  project. (2)  Correction  of  any  errors  caused  by  mistakes  that  do  not  materially  alter  the  substance  of  the   development  plan  or  plat  as  represented  to  the  Council. (3)  A  change  to  an  approved  design  which  results  in  a  ten  percent  (10%)  or  less  increase  to  lot   coverage;  ten  percent  (10%)  or  less  increase  to  building  height;  adjustments  to  building   footprints,  access  and  parking  configurations  which  are  less  than  ten  (10)  feet;  alterations  to  the   landscaping  plan  or  drainage  plan  which  substantially  comply  with  the  original  approval;  and,   changes  to  doors,  windows,  roofs,  or  building  articulation  which  are  less  than  two  (2)  feet  and   which  do  not  alter  or  diminish  the  overall  design  character  as  approved;  as  are  all  determined  by   the  Director. (4)  Changes  to  an  approved  development  application  which  do  not  result  in: (i)  An  increase  in  the  approved  number  of  dwelling  units; (ii)  An  increase  in  the  amount  of  square  footage  of  a  non-­‐residential  land  use  or  structure; (iii)  A  change  in  the  housing  mix  or  use  mix  ratio;  or, (iv)A  change  in  the  character  of  the  development. 5 Attachment B In  this  case,  the  Planning  Staff  interpreted  that  the  change  from  two  duplex  residences  to   three  single  family  residences  does  not  constitute  a  change  in  the  housing  mix  and  that  this   application  will  be  reviewed  as  a  Minor  Amendment  since  today  the  property  can  either  be   developed  with  2  single  family  houses  or  2  duplexes  (4  units).    However,  Staff  is  referring  the   application  to  both  the  Planning  and  Zoning  Commission  and  the  Town  Council  for  public   hearings.    The  letter  of  this  determination  by  staff  is  included  in  the  Appendix. In  addition  to  the  Minor  Amendment  process,  the  proposal  is  reviewed  as  a  minor   subdivision,  which  is  described  as  follows: (2)  Minor  Subdivisions.  Minor  subdivisions  include  all  subdivisions  which  would  create  less  than  four   (4)  separate  parcels  of  land,  subdivisions  which  do  not  require  or  propose  public  improvements,   subdivisions  which  consolidate  two  (2)  or  more  lots  into  a  single  lot  in  a  previously  recorded   subdivision  plat,  and  subdivisions  which  move  any  lot  lines  by  more  than  two  (2)  feet;  but  shall  not   include  subdivisions  which  are  administrative  subdivisions.  Condominium  and  timeshare   subdivisions  more  than  four  (4)  units  which  do  not  propose  public  improvements  shall  be  processed   as  minor  subdivisions. Because  the  proposal  creates  3  lots  from  2  existing  lots,  the  application  is  reviewed  as  a   Minor  Subdivision.    As  such,  the  Wildridge  Point  Subdivision  is  reviewed  only  by  the  Town   Council  and  the  Planning  and  Zoning  Commission  has  no  review  authority  over  the  Minor   Subdivision.     C.    P RECEDENT  AND  O THER  S IMILAR  A PPLICATIONS Similar  projects  have  been  approved  by  the  Town  of  Avon  in  the  past.    For  example,  the   following  plat  shows  a  resubdivision  of  Lot  10  and  11,  Block  2,  Wildridge  approved  by  the   Town  of  Avon  in  2002.    This  plat  took  2  existing  duplex  lots  and  re-­‐platted  them  as  3  single-­‐ family  lots,  a  reduction  of  one  dwelling  unit.     6 Attachment B In  2005,  the  Western  Sage  PUD  allowed  for  3  triplex  lots  and  1  duplex  lot  to  be  re-­‐platted   into  8  single-­‐family  homes,  a  reduction  of  3  dwelling  units  for  the  site. The  Dry  Creek  PUD,  approved  in  2006,  was  another  similar  approval  by  the  Town  of  Avon.     The  Dry  Creek  PUD  allowed  for  Lot  44  which  was  permitted  4  units  to  be  re-­‐platted  into  3   single-­‐family  lots,  a  reduction  of  one  dwelling  unit.     While  these  examples  were  processed  in  different  ways  (PUD  within  a  PUD,  amendment  to  a   PUD,  etc.)  the  recently  adopted  Avon  Development  Code  provides  a  clear  process  for  minor   amendments  to  an  existing  PUD,  simplifying  the  approval  process  for  applications  such  as   these. 7 Attachment B D.  Z ONING  A NALYSIS Current:   Standard Lot  33 Lot  34 Total Lot  Size  (acres)1.34 1.07 2.41 Units  Allowed 2.00 2.00 4.00 Density  (du/acre)1.49 1.87 1.66 Lot  Frontage 142  ft.88  ft.230  ft. Proposed: Standard Lot  1 Lot  2 Lot  3 Total Lot  Size  (acres)1.037 0.572 0.809 2.41 Units  Allowed 1.00 1.00 1.00 3.00 Density  (du/acre)0.96 1.75 1.24 1.24 Lot  Frontage 70  ft.83  ft.77  ft.230  ft. There  are  no  changes  to  any  other  standards  of  the  Wildridge  PUD,  with  setbacks  and  height   remaining  as  outlined  on  the  plat.    Front  setbacks  are  25  ft.  while  side  and  rear  setbacks  are   10  ft.    The  maximum  height  limitation  is  35  ft. 8 Attachment B E.  C RITERIA  FOR  R EVIEW  -­‐  M INOR  S UBDIVISION The  Avon  Development  Code  provides  the  criteria  for  review  for  a  Minor  Subdivision  as   follows: (2)  Minor  Subdivision.  Minor  subdivisions  shall  require  final  plat  review  and  approval  only  where  no   public  improvements  are  proposed;  however,  the  review  criteria  for  a  preliminary  plan  shall  apply  to   review  of  minor  subdivision  final  plats  in  addition  to  the  review  criteria  for  a  final  plat.  The  Town   Council  shall  render  the  final  decision  on  a  minor  subdivision  application  after  conducting  a  public   hearing.  Minor  subdivisions  shall  be  approved  by  resolution  or  ordinance  of  the  Town  Council. As  a  result,  the  criteria  for  a  preliminary  plan  are  provided  below,  along  with  the  criteria  for   final  plat  review: (1)The  proposed  subdivision  shall  comply  with  all  applicable  use,  density,  development,  and   design  standards  set  forth  in  this  Development  Code  that  have  not  otherwise  been   modified  or  waived  pursuant  to  this  Chapter  and  that  would  affect  or  influence  the  layout   of  lots,  blocks,  and  streets.  Applicants  shall  not  create  lots  or  patterns  of  lots  in  the   subdivision  that  will  make  compliance  with  such  development  and  design  standards   difficult  or  infeasible; Applicant  Response:  Because  the  proposal  is  a  minor  subdivision  of  2  lots  into  3  lots,   with  a  reduction  in  density  from  4  units  to  3  units,  this  criterion  is  not  applicable.    The   subdivision  complies  with  all  use,  density,  development  and  design  standards  and  has   no  affect  on  the  layout  of  other  lots,  blocks  or  streets.     (2)The  subdivision  application  shall  comply  with  the  purposes  of  the  Development  Code; Applicant  Response:  The  purpose  of  the  Development  Code  is  provided  in  Section   7.04.030  Purposes  of  the  Avon  Development  Code: The  Development  Code  is  intended  to  promote  and  achieve  the  following  goals  and  purposes  for   the  Avon  community,  including  the  residents,  property  owners,  business  owners  and  visitors:   (a)  Divide  the  Town  into  zones,  restricting  and  requiring  therein  the  location,  erection,   construction,  reconstruction,  alteration  and  use  of  buildings,  structures  and  land  for  trade,   industry,  residence  and  other  specified  uses;  regulate  the  intensity  of  the  use  of  lot  areas;   regulate  and  determine  the  area  of  open  spaces  surrounding  such  buildings;  establish  building   lines  and  locations  of  buildings  designed  for  specified  industrial,  commercial,  residential  and   other  uses  within  such  areas;  establish  standards  to  which  buildings  or  structures  shall   conform;  establish  standards  for  use  of  areas  adjoining  such  buildings  or  structures;   (b)  Implement  the  goals  and  policies  of  the  Avon  Comprehensive  Plan  and  other  applicable   planning  documents  of  the  Town;   (c)  Comply  with  the  purposes  stated  in  state  and  federal  regulations  which  authorize  the   regulations  in  this  Development  Code;   (d)  Avoid  undue  traffic  congestion  and  degradation  of  the  level  of  service  provided  by  streets   and  roadways,  promote  effective  and  economical  mass  transportation  and  enhance  effective,   attractive  and  economical  pedestrian  opportunities;   9 Attachment B (e)  Promote  adequate  light,  air,  landscaping  and  open  space  and  avoid  undue  concentration   or  sprawl  of  population;   (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;   (g)  Prevent  the  inefficient  use  of  land;  avoid  increased  demands  on  public  services  and   facilities  which  exceed  capacity  or  degrade  the  level  of  service  for  existing  residents;  provide   for  phased  development  of  government  services  and  facilities  which  maximizes  efficiency  and   optimizes  costs  to  taxpayers  and  users;  and  promote  sufficient,  economical  and  high-­‐quality   provision  of  all  public  services  and  public  facilities,  including  but  not  limited  to  water,  sewage,   schools,  libraries,  police,  parks,  recreation,  open  space  and  medical  facilities;   (h)  Minimize  the  risk  of  damage  and  injury  to  people,  structures  and  public  infrastructure   created  by  wild  fire,  avalanche,  unstable  slopes,  rock  fall,  mudslides,  flood  danger  and  other   natural  hazards;   (i)  Achieve  or  exceed  federal  clean  air  standards;   (j)  Sustain  water  sources  by  maintaining  the  natural  watershed,  preventing  accelerated   erosion,  reducing  runoff  and  consequent  sedimentation,  eliminating  pollutants  introduced   directly  into  streams  and  enhancing  public  access  to  recreational  water  sources;   (k)  Maintain  the  natural  scenic  beauty  of  the  Eagle  River  Valley  in  order  to  preserve  areas  of   historical  and  archaeological  importance,  provide  for  adequate  open  spaces,  preserve  scenic   views,  provide  recreational  opportunities,  sustain  the  tourist-­‐based  economy  and  preserve   property  values;   (l)  Promote  architectural  design  which  is  compatible,  functional,  practical  and  complimentary   to  Avon's  sub-­‐alpine  environment;   (m)  Achieve  innovation  and  advancement  in  design  of  the  built  environment  to  improve   efficiency,  reduce  energy  consumption,  reduce  emission  of  pollutants,  reduce  consumption  of   non-­‐renewable  natural  resources  and  attain  sustainability;   (n)  Achieve  a  diverse  range  of  attainable  housing  which  meets  the  housing  needs  created  by   jobs  in  the  Town,  provides  a  range  of  housing  types  and  price  points  to  serve  a  complete  range   of  life  stages  and  promotes  a  balanced,  diverse  and  stable  full  time  residential  community   which  is  balanced  with  the  visitor  economy;   (o)  Promote  quality  real  estate  investments  which  conserve  property  values  by  disclosing   risks,  taxes  and  fees;  by  incorporating  practical  and  comprehensible  legal  arrangements;  and   by  promoting  accuracy  in  investment  expectations;  and   (p)Promote  the  health,  safety  and  welfare  of  the  Avon  community.   As  demonstrated  by  this  document  and  the  plans  submitted,  the  proposal  is  consistent   with  and  in  substantial  compliance  with  the  purpose  of  the  Development  Code  by   reducing  the  number  of  units,  providing  for  greater  open  space  and  reducing  building   footprints  within  an  existing  subdivision. (3)The  subdivision  application  shall  be  consistent  with  the  Avon  Comprehensive  Plan  and   other  community  planning  documents; 10 Attachment B Applicant  Response:    The  Avon  Land  Use  Map  indicates  the  property  as  Residential  -­‐   Low  Density  as  indicated  on  the  map  below: The  Comprehensive  Plan  defines  “Residential-­‐Lot  Density”  as  follows: Areas  designated  for  residential  low  density  are  intended  to  provide  sites  for  single-­‐family,   duplex,  and  multi-­‐family  dwellings  at  a  density  no  greater  than  7.5  dwelling  units  per  acre. As  indicated  in  zoning  analysis  of  Section  D  of  this  submittal,  the  proposed  minor   subdivision  complies  with  the  density  as  recommended  by  the  Comprehensive  Plan. (4)The  land  shall  be  physically  suitable  for  the  proposed  development  or  subdivision; Applicant  Response:    As  indicated  on  the  1981  Wildridge  Plat,  the  Wildridge  PUD   establishes  that  the  entirety  of  the  area  of  the  proposed  lot  is  “developable.”    As  the   guiding  document  for  this  PUD,  the  land  has  been  previously  determined  to  be   physically  suitable  for  development.    In  addition,  the  proposal  is  actually  a  reduction  in   allowable  density,  making  the  impact  on  the  land  less  than  is  currently  allowed. (5)The  proposed  subdivision  shall  be  compatible  with  surrounding  land  uses; Applicant  Response:    As  indicated  in  the  map  below,  surrounding  land  uses  include   Town  of  Avon-­‐owned  open  space  to  the  south,  east  and  southwest  of  the  property.     Directly  to  the  north  and  east  are  residential  uses.    The  current  land  use  allowed  on  the   site  is  residential,  as  the  site  is  currently  permitted  4  dwelling  units.    The  proposed   minor  subdivision  would  allow  for  3  dwelling  units,  a  reduction  of  one  unit  for  this  site.     11 Attachment B Because  there  is  no  change  to  the  proposed  land  use  (residential)  but  there  is  a  net   reduction  in  density,  this  subdivision  is  compatible  with  the  surrounding  land  uses.     Open  Space Residential (6)There  are  adequate  public  facilities  for  potable  water  supply,  sewage  disposal,  solid  waste   disposal,  electrical  supply,  fire  protection  and  roads  and  will  be  conveniently  located  in   relation  to  schools,  police,  fire  protection  and  emergency  medical  services; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application.    As  a  reduction  in  allowable  density,  there  is   less  need  for  these  public  facilities  and  a  new  increase  in  water  rights  by  the  return  of   one  SFE  to  the  Town. (7)The  proposed  utility  and  road  extensions  are  consistent  with  the  utility’s  service  plan  and   are  consistent  with  the  Town  of  Avon  Comprehensive  Plan  &  Comprehensive   Transportation  Master  Plan; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application.    No  utility  or  road  extensions  are  necessary. (8)The  utility  lines  are  sized  to  serve  the  ultimate  population  of  the  service  area  to  avoid   future  land  disruption  to  upgrade  under-­‐sized  lines; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application.    Because  this  proposal  reduces  the   allowable  density,  there  will  be  less  demand  on  utilities  and  utility  lines  are  sized   appropriately  for  the  current  allowable  density.     12 Attachment B (9)The  subdivision  is  compatible  with  the  character  of  existing  land  uses  in  the  area  and  shall   not  adversely  affect  the  future  development  of  the  surrounding  area; Applicant  Response:    The  proposed  subdivision  is  compatible  and  consistent  with  the   character  of  the  existing  land  uses  in  the  area.    As  indicated  previously,  surrounding  land   uses  are  Town-­‐owned  open  space  tracts  and  other  residential  uses.    The  map  below   provides  an  analysis  of  the  residential  lots  nearby  as  a  comparison  to  the  proposed   subdivision: As  indicated  in  the  analysis,  the  proposed  lot  sizes  are  similar  to  those  in  the  area  and  are   compatible  with  the  existing  land  uses.    The  surrounding  residential  lots  are  all  currently   developed,  but  this  subdivision  will  not  affect  the  future  redevelopment  of  these  sites.     Photos  of  the  surrounding  properties  are  provided  below: SFR SFR SFR Duplex Duplex Duplex Duplex 1.1  ac .79  ac .61  ac .78  ac 1.15  ac .89  ac Lot  11.04  ac Lot  2.57ac Lot  3.81  ac .49  ac 13 Attachment B (10)A  proposed  subdivision  for  an  existing  PUD  shall  be  consistent  with  the  relevant  PUD   Master  Plan  as  reflected  in  the  approval  of  that  PUD; Applicant  Response:    The  Wildridge  PUD  is  unique  in  that  the  PUD  Plan  is  generally   outlined  on  the  1981  Wildridge  Plat.    Based  on  this  plat  (included  in  the  Appendix),  the   proposal  is  consistent  with  the  PUD. (11)Appropriate  utilities,  including  water,  sewer,  electric,  gas  and  telephone  utilities,  shall   provide  an  “conditional  capacity  to  serve”  letter  for  the  propose  subdivision; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application. (12)That  the  general  layout  of  lots,  roads,  driveways,  utilities,  drainage  facilities,  and  other   services  within  the  proposed  subdivision  shall  be  designed  in  a  way  that  minimizes  the   amount  of  land  disturbance,  minimize  inefficiencies  in  the  development  of  services,   maximizes  the  amount  of  open  space  in  the  development,  preserves  existing  trees/ vegetation  and  riparian  areas,  protects  critical  wildlife  habitat,  and  otherwise   accomplishes  the  purposes  of  this  Development  Code; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application. (13)Evidence  that  provision  has  been  made  for  a  public  sewage  disposal  system  or,  if  other   methods  of  sewage  disposal  are  proposed,  adequate  evidence  that  such  system  shall   comply  with  state  and  local  laws  and  regulations; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application. (14)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  these  areas  are  compatible  with  such   conditions  or  that  adequate  mitigation  is  proposed; Applicant  Response:    As  a  minor  subdivision  of  existing,  platted  lots  within  Wildridge,   this  criterion  is  not  applicable  to  this  application. (15)The  subdivision  application  addresses  the  responsibility  for  maintaining  all  roads,  open   spaces,  and  other  public  and  common  facilities  in  the  subdivision  and  that  Town  can   afford  any  proposed  responsibilities  to  be  assumed  by  the  Town; Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application. (16)If  applicable,  the  declarations  and  owners’  association  are  established  in  accordance  with   the  law  and  are  structured  to  provide  adequate  assurance  that  any  site  design  standards   14 Attachment B required  by  this  Development  Code  or  conditions  of  approval  for  the  proposed   subdivision  will  be  maintained  or  performed  in  a  manner  which  is  enforceable  by  the   Town;  and, Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application.    The  Wildridge  Covenants  remain  in  effect.     (17)As  applicable,  the  proposed  phasing  for  development  of  the  subdivision  is  rational  in   terms  of  available  infrastructure  capacity  and  financing. Applicant  Response:    As  a  minor  subdivision  of  existing  platted  lots  within  Wildridge,  this   criterion  is  not  applicable  to  this  application. F.  C RITERIA  FOR  R EVIEW  -­‐  F INAL  P LAT The  review  criteria  for  a  final  plat  are  provided  below: (1)  The  Town  Engineer  shall  compare  the  legal  description  of  the  subject  property  with  the   County  records  to  determine  that: (i)  The  property  described  contains  all  contiguous  single  ownership  and  does  not  create  a   new  or  remaining  unrecognized  parcel  of  less  than  thirty-­‐five  (35)  acres  in  size; (ii)  The  lots  and  parcels  have  descriptions  that  both  close  and  contain  the  area  indicated;   and (iii)  The  plat  is  correct  in  accordance  with  surveying  and  platting  standards  of  the  state. Applicant  Response:    The  proposed  minor  subdivision  meets  the  above  criteria. (2)The  final  plat  conforms  to  the  approved  preliminary  plan  and  incorporates  all   recommended  changes,  modifications,  and  conditions  attached  to  the  approval  of  the   preliminary  plan; Applicant  Response:    As  a  minor  subdivision,  no  preliminary  plan  is  required. (3)The  final  plat  conforms  to  all  preliminary  plan  criteria; Applicant  Response:    The  proposed  minor  subdivision  meets  the  above  criteria  and  a   review  has  been  provided  above. (4)The  development  will  substantially  comply  with  all  sections  of  the  Development  Code; Applicant  Response:    The  proposed  minor  subdivision  substantially  complies  with  all   sections  of  the  Development  Code. (5)The  final  plat  complies  with  all  applicable  technical  standards  adopted  by  the  Town;  and, 15 Attachment B Applicant  Response:  The  proposed  minor  subdivision  complies  with  all  applicable   technical  standards  adopted  by  the  Town. (6)  Appropriate  utilities  shall  provide  an  ability  to  serve  letter  including,  but  not  limited  to,   water,  sewer,  electric,  gas,  and  telecommunication  facilities. Applicant  Response:    The  proposed  minor  subdivision  is  already  served  by  utilities. G.  C RITERIA  FOR  R EVIEW  -­‐  V ARIANCE Section  7.28.100.a.  Natural  Resource  Protection,  provides  regulations  for  development  on   steep  slopes.      The  standards  of  this  section  apply  to  the  following: Applicability.  The  standards  in  this  section  shall  apply  to  any  new  subdivision,  PUD,  or  zoning   amendment  when  any  portion  of  the  lot  contains  naturally-­‐occurring  slopes  of  thirty  percent  (30%)   or  greater. Staff  has  interpreted  that  this  application  is  subject  to  this  section.    This  section  was  written   to  apply  to  “any  new  subdivision”  but  in  this  case  the  subdivision  is  a  resubdivision  of   existing  platted  lots  within  a  existing  platted  subdivision  within  an  existing  PUD.  In  addition,   Section  7.32.020.e.6  requires  that  buildable  area  cannot  include  areas  with  40%  slopes.    Due   to  the  existing  40%  slopes  encompassing  a  significant  portion  of  the  existing  platted  lots,   this  regulation  in  not  possible  to  comply  with,  and  is  not  a  requirement  of  the  Wildridge   PUD.    Due  to  the  strict  requirements  of  this  Section  of  the  Avon  Development  Code  (which   would  not  have  allowed  Wildridge  to  be  platted  today)  the  applicant  is  requesting  a  variance   from  Section  7.28.100.a.  “Steep  Slopes”  and  Section  7.32.020.e.6.  “Buildable  Area”.    The   review  criteria  for  a  variance  are  provided  below: (1)The  degree  to  which  relief  from  the  strict  or  literal  interpretation  and  enforcements  of  a   specified  regulation  is  necessary  to  achieve  compatibility  and  uniformity  of  treatment   among  sites  in  the  vicinity,  or  to  attain  the  objectives  of  the  Development  Code  without   grant  of  special  privilege; Applicant  Response:    The  proposed  request  is  a  reduction  in  density  for  this  property,   reducing  the  number  of  units  from  4  dwelling  units  to  3  dwelling  units.    Applying  the   requirements  of  Sections  7.28.100.A.  and  7.32.020.e.6  to  this  resubdivision  of  existing   platted  lots  would  render  the  property  undevelopable,  contrary  to  what  has  been   defined  as  undevelopable  in  the  Wildridge  PUD.    This  would  unfairly  apply  criteria  for  a   “new  subdivision”  to  a  resubdivision,  treating  this  property  differently  than  all  other   similar  lots  within  the  Wildridge  subdivision.    As  a  result,  the  granting  of  this  variance   would  not  be  a  grant  of  special  privilege  and  is  necessary  to  achieve  compatibility  and   uniformity  of  treatment  among  sites  in  this  existing  platted  subdivision. (2)The  effect  of  the  requested  variance  on  light  and  air,  distribution  of  population,   transportation  and  traffic  facilities,  public  facilities  and  utilities,  and  public  safety; 16 Attachment B Applicant  Response:    As  a  reduction  in  density,  this  variance  will  improve  the  light  and   air.    The  construction  of  3  units  vs.  4  units  will  increase  the  feeling  of  openness  and  green   space  for  this  property.    In  addition,  as  a  reduction  in  allowable  density  and  therefore  a   reduction  in  population,  there  is  a  reduction  of  impacts  on  all  transportation  facilities,   public  facilities,  and  utilities.     (3)Such  other  factors  and  criteria  related  to  the  subject  property,  proposed  development,  or   variance  request  as  the  decision-­‐making  body  deems  applicable  to  the  proposed  variance. Applicant  Response:    These  code  sections  are  clearly  intended  to  apply  to  new   subdivisions  within  Avon,  not  on  the  resubdivision  of  existing  platted  lots  within  an   existing  subdivision.    The  application  of  these  standards  to  minor  lot  line  adjustments   that  actually  serve  to  reduce  density  creates  a  situation  where  even  “administrative   subdivisions”  would  be  required  to  comply  with  these  same  requirements.    This  is  not   possible  within  a  subdivision  that  was  platted  long  before  these  regulations  were   enacted.     H.    C RITERIA  FOR  R EVIEW  -­‐  P LANNED  U NIT  D EVELOPMENT Staff  has  requested  that  this  submittal  include  a  section  reviewing  the  Review  Criteria  for  a   new  Planned  Unit  Development  as  outlined  in  Section  7.16.060.e.4,  which  states: Review  Criteria.  The  PZC  and  Town  Council  shall  consider  the  following  criteria  as  the  basis  for  a   recommendation  or  decision  to  rezone  a  property  to  PUD  Overlay  and  approve  a  preliminary  PUD   plan. While  the  applicant  is  not  proposing  a  new  PUD  but  rather  is  proposing  to  amend  the   existing  Wildridge  PUD  to  allow  two  duplex  lots  to  be  converted  to  three  single-­‐family  lots,   we  have  provided  responses  to  the  PUD  review  criteria  which  are  really  intended  for  a  new   PUD.    The  criteria    are  addressed  below: (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  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. Applicant  Response:  The  Town  of  Avon  was  incorporated  in  1978  and  Benchmark   Properties  created  the  Wildridge  and  Wildwood  Subdivisions  shortly  thereafter.    The   Wildridge  PUD  and  Subdivision  are  unique  in  comparison  to  more  recent  PUDs  created  in   the  Town  of  Avon.    It  was  the  original  Wildridge  PUD  which  met  the  above-­‐referenced   criteria  and  this  proposed  minor  amendment  has  no  adverse  effect  on  the  originally   approved  Planned  Unit  Development  and  all  of  the  public  benefits  it  provided  to  the   17 Attachment B community  including  things  like  open  space  and  the  increased  choice  of  housing  and   living  environments.    In  this  particular  situation,  the  entirety  of  the  subject  property  is   buildable  under  the  original  PUD.    The  proposal  protects  areas  of  the  proposed  lots  as  a   no-­‐build  zone,  protecting  slope  area  in  excess  of  40%.    The  lot  configuration  allows  for   development  to  occur  in  such  a  way  as  to  provide  more  light  and  air  and  green  space   than  could  be  developed  currently  without  the  proposed  minor  amendment.   Furthermore,  as  a  reduction  in  density,  there  is  a  public  benefit  by  reducing  traffic   impacts,  reducing  water  demand,  lessening  demand  for  public  services  such  as  police   and  fire,  reducing  impacts  to  the  school  system,  etc.     (2)The  PUD  rezoning  will  promote  the  public  health,  safety,  and  general  welfare; Applicant  Response:    As  a  reduction  in  allowable  density  and  the  corresponding   reduction  in  traffic  and  demand  on  public  utilities  and  services,  the  streets  of  Wildridge   will  be  safer  than  under  the  current  allowance.    While  there  is  no  PUD  rezoning   associated  with  this  application,  the  proposal  will  promote  the  public  health,  safety,  and   general  welfare.         (3)The  PUD  rezoning  is  consistent  with  the  Avon  Comprehensive  Plan,  the  purposes  of  this   Development  Code,  and  the  eligibility  criteria  outlined  in  §7.16.060(b);   Applicant  Response:    The  Avon  Land  Use  Map  indicates  the  property  as  Residential  -­‐  Low   Density  as  indicated  on  the  map  below: 18 Attachment B The  Comprehensive  Plan  defines  “Residential-­‐Lot  Density”  as  follows: Areas  designated  for  residential  low  density  are  intended  to  provide  sites  for  single-­‐family,   duplex,  and  multi-­‐family  dwellings  at  a  density  no  greater  than  7.5  dwelling  units  per  acre. As  indicated  in  zoning  analysis  of  Section  D  of  this  submittal,  the  proposed  minor   subdivision  complies  with  the  density  as  recommended  by  the  Comprehensive  Plan   with  an  overall  density  of  1.24  units  per  acre  proposed. The  purpose  of  the  Development  Code  is  provided  in  Section  7.04.030  Purposes  of  the   Avon  Development  Code: The  Development  Code  is  intended  to  promote  and  achieve  the  following  goals  and  purposes  for   the  Avon  community,  including  the  residents,  property  owners,  business  owners  and  visitors:   (a)  Divide  the  Town  into  zones,  restricting  and  requiring  therein  the  location,  erection,   construction,  reconstruction,  alteration  and  use  of  buildings,  structures  and  land  for  trade,   industry,  residence  and  other  specified  uses;  regulate  the  intensity  of  the  use  of  lot  areas;   regulate  and  determine  the  area  of  open  spaces  surrounding  such  buildings;  establish  building   lines  and  locations  of  buildings  designed  for  specified  industrial,  commercial,  residential  and   other  uses  within  such  areas;  establish  standards  to  which  buildings  or  structures  shall   conform;  establish  standards  for  use  of  areas  adjoining  such  buildings  or  structures;   (b)  Implement  the  goals  and  policies  of  the  Avon  Comprehensive  Plan  and  other  applicable   planning  documents  of  the  Town;   (c)  Comply  with  the  purposes  stated  in  state  and  federal  regulations  which  authorize  the   regulations  in  this  Development  Code;   (d)  Avoid  undue  traffic  congestion  and  degradation  of  the  level  of  service  provided  by  streets   and  roadways,  promote  effective  and  economical  mass  transportation  and  enhance  effective,   attractive  and  economical  pedestrian  opportunities;   (e)  Promote  adequate  light,  air,  landscaping  and  open  space  and  avoid  undue  concentration   or  sprawl  of  population;   (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;   (g)  Prevent  the  inefficient  use  of  land;  avoid  increased  demands  on  public  services  and   facilities  which  exceed  capacity  or  degrade  the  level  of  service  for  existing  residents;  provide   for  phased  development  of  government  services  and  facilities  which  maximizes  efficiency  and   optimizes  costs  to  taxpayers  and  users;  and  promote  sufficient,  economical  and  high-­‐quality   provision  of  all  public  services  and  public  facilities,  including  but  not  limited  to  water,  sewage,   schools,  libraries,  police,  parks,  recreation,  open  space  and  medical  facilities;   (h)  Minimize  the  risk  of  damage  and  injury  to  people,  structures  and  public  infrastructure   created  by  wild  fire,  avalanche,  unstable  slopes,  rock  fall,  mudslides,  flood  danger  and  other   natural  hazards;   (i)  Achieve  or  exceed  federal  clean  air  standards;   (j)  Sustain  water  sources  by  maintaining  the  natural  watershed,  preventing  accelerated   erosion,  reducing  runoff  and  consequent  sedimentation,  eliminating  pollutants  introduced   directly  into  streams  and  enhancing  public  access  to  recreational  water  sources;   19 Attachment B (k)  Maintain  the  natural  scenic  beauty  of  the  Eagle  River  Valley  in  order  to  preserve  areas  of   historical  and  archaeological  importance,  provide  for  adequate  open  spaces,  preserve  scenic   views,  provide  recreational  opportunities,  sustain  the  tourist-­‐based  economy  and  preserve   property  values;   (l)  Promote  architectural  design  which  is  compatible,  functional,  practical  and  complimentary   to  Avon's  sub-­‐alpine  environment;   (m)  Achieve  innovation  and  advancement  in  design  of  the  built  environment  to  improve   efficiency,  reduce  energy  consumption,  reduce  emission  of  pollutants,  reduce  consumption  of   non-­‐renewable  natural  resources  and  attain  sustainability;   (n)  Achieve  a  diverse  range  of  attainable  housing  which  meets  the  housing  needs  created  by   jobs  in  the  Town,  provides  a  range  of  housing  types  and  price  points  to  serve  a  complete  range   of  life  stages  and  promotes  a  balanced,  diverse  and  stable  full  time  residential  community   which  is  balanced  with  the  visitor  economy;   (o)  Promote  quality  real  estate  investments  which  conserve  property  values  by  disclosing   risks,  taxes  and  fees;  by  incorporating  practical  and  comprehensible  legal  arrangements;  and   by  promoting  accuracy  in  investment  expectations;  and   (p)Promote  the  health,  safety  and  welfare  of  the  Avon  community.   As  demonstrated  by  this  document  and  the  plans  submitted,  the  proposal  is  consistent   with  and  in  substantial  compliance  with  the  purpose  of  the  Development  Code  by   reducing  the  number  of  units,  providing  for  greater  open  space  and  reducing  building   footprints  by  adding  a  lot  line  and  the  required  setbacks  it  creates  within  an  existing   subdivision. Finally,  Section  7.16.060(b)  provides  the  Eligibility  Criteria  for  a  property  to  be  eligible  for   PUD  approval.    These  criteria  are  as  follows: (1)  Property  Eligible.  All  properties  within  the  Town  of  Avon  are  eligible  to  apply  for  PUD   approval. (2)  Consistency  with  Comprehensive  Plan.  The  proposed  development  shall  be    consistent  with   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). (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. (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. (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. (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   20 Attachment B permitted  uses  in  the  PUD  projects,  and  to  ensure  compatibility  between  uses  and  the   surrounding  neighborhood. As  demonstrated  by  this  document  and  the  plans  submitted,  the  proposal  is  consistent   with  and  in  substantial  compliance  with  the  these  reducing  the  number  of  units,   providing  for  greater  open  space,  and  reducing  building  footprints  within  an  existing   subdivision.    The  property  is  located  within  the  Town  of  Avon;  the  property  is  consistent   with  the  Comprehensive  plan  as  indicated  above  with  a  development  density  of  1.24   units  per  acre  and  with  a  residential  use  proposed;  the  proposal  is  consistent  with  the   PUD  intent  as  indicated  above;  the  proposal  is  consistent  with  adjacent  residential  uses   as  indicated  below;  the  proposed  amendment  does  not  change  the  public  benefits  it   received  when  the  Wildridge  PUD  was  originally  created  in  1978  and  additionally  the   addition  of  no  build  zones,  the  additional  provision  of  light  and  air,  and  the  reduction  in   impacts  from  the  reduction  in  density  all  provide  recognizable  and  material  benefit  to   the  residents  and  the  Town;  the  preservation  of  site  features  through  the  establishment   of  a  no  build  zones;  and  the  proposal  has  demonstrated  sufficient  land  area  for  the   proposed  uses. (17)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; Applicant  Response:  The  proposed  minor  subdivision  is  already  served  by  utilities.    As  a   reduction  in  density,  there  will  be  less  demand  on  these  utilities. (18)Compared  to  the  underlying  zoning,  the  PUD  rezoning  is  not  likely  to  result  insignificant   adverse  impacts  upon  the  natural  environment,  including  air,  water,  noise,  storm  water   management,  wildlife,  and  vegetation,  or  such  impacts  will  be  substantially  mitigated; Applicant  Response:    There  is  no  underlying  zoning  and  no  rezoning  associated  with  this   application.    As  a  reduction  in  allowable  density,  any  impacts  that  were  associated  with   the  existing  allowable  density  will  be  reduced.     (19)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   Applicant  Response:    There  is  no  underlying  zoning  and  no  PUD  rezoning  associated  with   this  application.    As  a  reduction  in  density,  any  possible  impacts  of  development  on  this   property  will  be  reduced.     (20)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. Applicant  Response:    The  proposed  subdivision  is  compatible  and  consistent  with  the   character  of  the  existing  land  uses  in  the  area.    As  indicated  previously,  surrounding  land   21 Attachment B uses  are  Town-­‐owned  open  space  tracts  and  other  residential  uses.    The  map  below   provides  an  analysis  of  the  residential  lots  nearby  as  a  comparison  to  the  proposed   subdivision: As  indicated  in  the  analysis,  the  proposed  lot  sizes  are  similar  to  those  in  the  area  and  are   compatible  with  the  existing  land  uses.    The  surrounding  residential  lots  are  all  currently   developed,  but  this  subdivision  will  not  affect  the  future  redevelopment  of  these  sites.     Photos  of  the  surrounding  properties  are  provided  below: SFR SFR SFR Duplex Duplex Duplex Duplex 1.1  ac .79  ac .61  ac .78  ac 1.15  ac .89  ac Lot  11.04  ac Lot  2.57ac Lot  3.81  ac .49  ac 22 Attachment B I.  A DJACENT  A DDRESSES   (within  300  Feet) 1943-­‐354-­‐01-­‐002 1943-­‐351-­‐01-­‐001 TOWN  OF  AVON PO  BOX  975   AVON,  CO  81620 1943-­‐351-­‐03-­‐002 WORK  FAMILY  US  REAL  PROPERTY  TRUST 3240  RIVER  RD  RR5   N0A1E0  CAYUGA  ONTARIO   CANADA 1943-­‐351-­‐03-­‐004 ALLEN,  TERENCE  C. 468  GLEN  RD   SPARTA,  NJ  07871 1943-­‐351-­‐03-­‐026 STRANDJORD,  DAVID PO  BOX  9669   AVON,  CO  81620 1943-­‐351-­‐03-­‐027 HARRY  S.  GREENBERG  RESIDENCE  TRUST   AGREEMENT  #1  -­‐  ETAL 2611  WYLIE  RD   DEXTER,  MI  48130-­‐9781 1943-­‐351-­‐03-­‐007 BACA,  BRUCE  A.  &  SUSAN  S. PO  BOX  2033   AVON,  CO  81620 1943-­‐351-­‐02-­‐020 SCHWARTZ,  ROBERTA  A.  &  JONATHAN  M.D. PO  BOX  1120   AVON,  CO  81620 1943-­‐351-­‐03-­‐024 REISINGER  FAMILY  TRUST 8170  E  KALIL  DR   SCOTTSDALE,  AZ  85260 1943-­‐351-­‐03-­‐025 ZUMBO,  PAUL,  JR  &  MARIE  A. 3029  SHORE  DR   MERRICK,  NY  11566 1943-­‐351-­‐03-­‐023 GERRITY,  MICHAEL  J.  &  JUDY  -­‐  ETAL 2202  N  ROGERS   OLATHE,  KS  66062 1943-­‐351-­‐03-­‐022 BAUMANN,  BARBARA  M.  &  FREDERICK  J. 110  EUDORA  ST   DENVER,  CO  80220 1943-­‐351-­‐03-­‐021 KARSH,  BRICE  W. 53  GLENMOOR  WAY   ENGLEWOOD,  CO  80113-­‐7120 1943-­‐351-­‐03-­‐020 DECKER,  MICHAEL  GEORGE  -­‐  KRAJICEK,  CATHERINE   LEE 4238  CANARY  ISLE  CT   KATY,  TX  77450 23 Attachment B J.  A PPENDICES 1.    Proposed  Final  Plat  and  Topo  Survey  of  Wildridge  Point 2.    1981  Wildridge  Final  Plat 3.    Letter  from  Staff  9/19/12 4.    Title  Reports 24 Attachment B 1.  Proposed  Final  Plat  and  Topo  Survey  of   Wildridge  Point Attachment B Attachment B Attachment B Attachment B 2.  1981  Wildridge  Final  Plat Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B 3.  Letter  from  Staff  9/19/12 Attachment B At t a c h m e n t B At t a c h m e n t B 4.Title  Reports Attachment B Schedule A Our Order No. Cust. Ref.: 1. Effective Date: 2. Policy to be Issued, and Proposed Insured: 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: 4. Title to the estate or interest covered herein is at the effective date hereof vested in: 5. The Land referred to in this Commitment is described as follows: Property Address: VB50033720-2 A L T A C O M M I T M E N T 5091 WILDRIDGE RD. AKA LOT 33 BLK 4 WILDRIDGE SUB AVON, CO 81620 May 25, 2012 at 5:00 P.M. "ALTA" Owner's Policy 06-17-06 Proposed Insured: MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION $436,500.00 A Fee Simple WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY LOT 33, BLOCK 4, WILDRIDGE ACCORDING TO THE FINAL SUBDIVISION PLAT, RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78, COUNTY OF EAGLE, STATE OF COLORADO. First American Title Insurance Company Attachment B The following are the requirements to be complied with: (Requirements)Our Order No. A L T A C O M M I T M E N T Schedule B - Section 1 VB50033720-2 1. 2. 3. 4. Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit: Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable. Item (d) Additional requirements, if any disclosed below: EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF AVON TRANSFER TAX HAVE BEEN SATISFIED. RELEASE OF DEED OF TRUST DATED MAY 29, 2007 FROM WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE USE OF MILLENIUM BANK TO SECURE THE SUM OF $377,300.00 RECORDED JUNE 04, 2007, UNDER RECEPTION NO. 200714292. MODIFICATION AGREEMENT IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED MAY 12, 2011 UNDER RECEPTION NO. 201108610. EVIDENCE SATISFACTORY TO THE COMPANY THAT MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION IS AN ENTITY CAPABLE OF ACQUIRING TITLE TO SUBJECT PROPERTY. WARRANTY DEED FROM WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY TO MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION CONVEYING SUBJECT PROPERTY. NOTE: AFFIDAVIT/STATEMENT OF AUTHORITY RECORDED DECEMBER 27, 2011 UNDER RECEPTION NO. 201124071 DISCLOSES DAVID DANTAS AS MEMBER(S) WHO MAY ACQUIRE, CONVEY, ENCUMBER, LEASE OR OTHERWISE DEAL WITH INTERESTS IN REAL PROPERTY FOR WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY. THE FOLLOWING DELETIONS/MODIFICATIONS ARE FOR THE OWNER'S POLICY. Attachment B The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: (Exceptions)Our Order No. A L T A C O M M I T M E N T Schedule B - Section 2 VB50033720-2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. Any and all unpaid taxes, assessments and unredeemed tax sales. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. RIGHTS OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES, AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 23, 1949, IN BOOK 134 AT PAGE 524. RESERVATION OF ALL THE COAL AND OTHER MINERALS IN THE LAND TOGETHER WITH THE RIGHT TO PROSPECT FOR MINE AND REMOVE THE SAME PURSUANT TO THE PROVISIONS AND LIMITATIONS OF THE ACT OF DECEMBER 29, 1916 AS RESERVED IN DOCUMENT RECORDED NOVEMBER 23, 1949 IN BOOK 134 AT PAGE 524. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED SEPTEMBER 14, 1982, IN BOOK 345 AT PAGE 844. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE WILDRIDGE SUBDIVISION FINAL PLAT RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78. Attachment B Schedule A Our Order No. Cust. Ref.: 1. Effective Date: 2. Policy to be Issued, and Proposed Insured: 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: 4. Title to the estate or interest covered herein is at the effective date hereof vested in: 5. The Land referred to in this Commitment is described as follows: Property Address: V50033531-2 A L T A C O M M I T M E N T 5081 WILDRIDGE ROAD EAST AKA LOT 34 BLK 4 WILDRIDGE AVON, CO 81620 May 09, 2012 at 5:00 P.M. "ALTA" Owner's Policy 06-17-06 Proposed Insured: MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION $685,000.00 A Fee Simple MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST LOT 34, BLOCK 4, WILDRIDGE ACCORDING TO THE FINAL SUBDIVISION PLAT, RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78, COUNTY OF EAGLE, STATE OF COLORADO. First American Title Insurance Company Attachment B The following are the requirements to be complied with: (Requirements)Our Order No. A L T A C O M M I T M E N T Schedule B - Section 1 V50033531-2 1. 2. 3. Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit: Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable. Item (d) Additional requirements, if any disclosed below: EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF AVON TRANSFER TAX HAVE BEEN SATISFIED. CERTIFIED COPY OF RESOLUTION OF THE GOVERNING BOARD OF MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION (AUTHORIZING THE PURCHASE OF THE SUBJECT PROPERTY AND THE EXECUTION OF NECESSARY DOCUMENTS) AND RECITING THAT THE BOARD HAS BEEN DULY AUTHORIZED IN THE PREMISES BY THE CORPORATION. SAID RESOLUTION MUST BE PROPERLY CERTIFIED BY AN OFFICER OF THE CORPORATION. SAID RESOLUTION MUST BE SUBMITTED TO AND APPROVED BY LAND TITLE GUARANTEE COMPANY BUT NEED NOT BE RECORDED. WARRANTY DEED FROM MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST TO MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION CONVEYING SUBJECT PROPERTY. THE FOLLOWING DELETIONS/MODIFICATIONS ARE FOR THE OWNER'S POLICY. NOTE: ITEMS 1-3 OF THE GENERAL EXCEPTIONS ARE HEREBY DELETED. UPON THE APPROVAL OF THE COMPANY AND THE RECEIPT OF A NOTARIZED FINAL LIEN AFFIDAVIT, ITEM NO. 4 OF THE GENERAL EXCEPTIONS ON THE OWNER'S POLICY WILL BE AMENDED AS FOLLOWS: ITEM NO. 4 OF THE GENERAL EXCEPTIONS IS DELETED AS TO ANY LIENS OR FUTURE LIENS RESULTING FROM WORK OR MATERIAL FURNISHED AT THE REQUEST OF MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST. FIRST AMERICAN TITLE INSURANCE COMPANY SHALL HAVE NO LIABILITY FOR ANY LIENS ARISING FROM WORK OR MATERIAL FURNISHED AT THE REQUEST OF MOUNTAIN Attachment B (Requirements)Our Order No. Continued: A L T A C O M M I T M E N T Schedule B - Section 1 V50033531-2 C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION. NOTE: ITEM 5 OF THE GENERAL EXCEPTIONS WILL BE DELETED IF LAND TITLE GUARANTEE COMPANY CONDUCTS THE CLOSING OF THE CONTEMPLATED TRANSACTION(S) AND RECORDS THE DOCUMENTS IN CONNECTION THEREWITH. NOTE: UPON PROOF OF PAYMENT OF ALL TAXES, ITEM 6 WILL BE AMENDED TO READ: TAXES AND ASSESSMENTS FOR THE YEAR 2012 AND SUBSEQUENT YEARS. Attachment B The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: (Exceptions)Our Order No. A L T A C O M M I T M E N T Schedule B - Section 2 V50033531-2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. Any and all unpaid taxes, assessments and unredeemed tax sales. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. RIGHTS OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES, AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 23, 1949, IN BOOK 134 AT PAGE 524. RESERVATION OF ALL THE COAL AND OTHER MINERALS IN THE LAND TOGETHER WITH THE RIGHT TO PROSPECT FOR MINE AND REMOVE THE SAME PURSUANT TO THE PROVISIONS AND LIMITATIONS OF THE ACT OF DECEMBER 29, 1916 AS RESERVED IN DOCUMENT RECORDED NOVEMBER 23, 1949 IN BOOK 134 AT PAGE 524. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED SEPTEMBER 14, 1982, IN BOOK 345 AT PAGE 844. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE WILDRIDGE SUBDIVISION FINAL PLAT RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78. Attachment B 1 Jared Barnes From:Tug Birk <dbirk@erwsd.org> Sent:Monday, January 14, 2013 9:25 AM To:Jared Barnes Subject:RE: Wildridge Point PUD Referral Jared,    Thanks for the referral.  I see only a couple of potential issues.  The first potential issue is the ability of the developer to  keep construction debris out of the easement. The second  is that there are a total of 4 SFE’s associated with these two  properties and these 4 SFE’s cannot be exceeded by the 3 new lots without water rights becoming an issue.  Please let  me know if you have any questions for me.    Thanks,      Tug Birk Development Review Coordinator  Eagle River Water and Sanitation District  970‐477‐5449  tbirk@erwsd.org        From: Jared Barnes [mailto:jbarnes@avon.org] Sent: Friday, January 04, 2013 3:19 PM Subject: Wildridge Point PUD Referral   Hello,  Pursuant to the Town of Avon’s development code, I am providing you with a referral request for the proposed  Wildridge Point PUD and Subdivision.  Attached is a summary of the request as well as a link to the Town of Avon’s  website, where the application documents are stored.    Thank you in advance for your time and please feel free to contact me with any questions you may have.  If you could  also provide me with any comments you have no later than February 4, 2013 at 5:00pm, I can make sure they are  presented at the public hearing the following day.    Regards,    Jared Barnes Planner I Community Development Town of Avon PO Box 975 Avon, CO 81620 970-748-4023   Attachment C EA-13-0006_1 Wildridge Point PUD and Subdivision 3:20 PM, 02/05/2013 February 5, 2013 Karen Berry Acting State Geologist Jared Barnes Town of Avon Community Development P.O. Box 975 Avon, CO 81620 Location: SW¼ NE¼ Section 35, T4S, R82W of the 6th P.M. Subject: Wildridge Point PUD and Subdivision Application Case #s PUD12004, SUB12005, and VAR13001; Eagle County, CO; CGS Unique No. EA-13-0006 Dear Jared: Colorado Geological Survey has completed its site visit and review of the above-referenced project. I understand the applicant proposes to convert two duplex lots within the Wildridge subdivision into three single family lots of approximately 0.5 to one acre each. The applicant seeks a variance to exempt the proposed PUD and subdivision from complying with minimum lot size requirements and steep slope development limitations. With this referral, I received a Final Plat (Peak Land Consultants, October 24, 2012), and a Wildridge Point Minor PUD Amendment, Minor Subdivision, and Variance application document (Mauriello Planning Group, December 31, 2012). No geologic or geotechnical information was provided. No description of how the applicant intends to achieve site grading necessary for driveways and building pads was provided. According to available geologic mapping (Tweto et al, 1978, Geologic map of the Leadville 1° x 2° quadrangle, northwestern Colorado: U.S.G.S., Miscellaneous Investigations Series Map I-999, scale 1:250,000), the site is underlain by the Eagle Valley Formation, consisting of "siltstone, shale, sandstone, carbonate rocks, and local lenses of gypsum." The shale and siltstone fractions are often associated with slope instability, and the carbonate and gypsum fractions are often associated with hydrocompaction (collapse under wetting), and dissolution features such as subsurface voids and sinkholes. CGS opposes approval of the variance request. All but approximately 4000 sq. ft. of existing Lot 33 contains very steep slopes of 50% to 60%. It appears that insufficient attention may have been given during the original Wildridge platting process to the existing slope conditions on Lot 33, corresponding to proposed Lots 2 and 3. Regardless of their designation at platting in 1981, we disagree with the applicant's statement (page 5) that "Lots 33 and 34 are entirely developable." The proposed resubdivision would result in one of the proposed lots (Lot 3) containing virtually no area with slopes less than 50%. Some combination of very large, retained fills and/or substantial cuts and retaining walls would be required to develop proposed Lots 2 and 3. The retaining walls would require extensive site characterization, analysis, and design. Slope stability analysis would be required to verify that temporary cuts would be stable during retaining wall construction. Stability analysis would be required to determine the potential impact on slope stability of large fill(s) and structures placed at the head (upper portion) of the slope below proposed lots 2 and 3. Eagle County geologic hazard mapping indicates that potentially unstable slopes are a concern in this area, so it is possible that the steep slope on and below proposed Lots 2 and 3 would be destabilized as a result of changes to the existing slope, loading and drainage configuration. COLORADO GEOLOGICAL SURVEY 1313 Sherman Street, Room 715 Denver, Colorado 80203 Phone 303.866.2611 Fax 303.866.2461 Attachment C Jared Barnes January 5, 2013 Page 2 of 2 EA-13-0006_1 Wildridge Point PUD and Subdivision 3:20 PM, 02/05/2013 Slope movement or failure could result in disruption (damming) and subsequent flooding or catastrophic release of water in Metcalf Creek below the site. It appears that the lower slope and Metcalf Creek are located within Town of Avon open space. CGS recommends that the town require, at a minimum and in support of its deliberations regarding the requested slope variance, (1) conceptual grading and drainage plans that reflect all of the grading (driveways, building pads, etc.), retaining walls and drainage that will be needed for development of the lots as proposed, and (2) that the feasibility and long-term stability of proposed cuts, fills and retaining walls be evaluated by a qualified geotechnical engineer. CGS looks forward to reviewing any grading plans or additional documentation provided by the applicant. Thank you for the opportunity to review and comment on this project. If you have questions or need clarification of issues identified during this review, please call me at (303) 866-2611 ext. 8316, or e-mail jill.carlson@state.co.us. Sincerely, Jill Carlson, C.E.G. Engineering Geologist Attachment C February 25, 2013 Jared Barnes, Town Planner Town of Avon PO Box 975 Avon, Colorado 81620 RE: Wildridge Point Dear Jared: The applicant is submitting this letter as a formal response to the comments of the Avon Planning and Zoning Commission, along with some of the comments from staff and referral agencies. At the previous hearing, the Planning and Zoning Commission recommended a limitation on building footprints on Lots 2 and 3. It was stated at the hearing that Lot 1 should not be restricted at all. We have submitted some studies indicating footprint limitations of 2,500 sq. ft., 3,000 sq. ft., and 3,500 sq. ft. As you can see from the studies, these footprints can be accommodated on the lots with the impact of grading relatively the same in each square footage study. We believe that a footprint limitation of 3,000 sq. ft. for Lot 2 and 2,500 sq. ft. for Lot 3 will accommodate an appropriate amount of development while allowing for adequate open space and minimizing site disturbance to a reasonable degree. The applicant is acceptable to a condition placed on the PUD amendment as stated above. In addition to the studies for building footprints, we have provided conceptual view analyses for the buildings from Wildridge Road East to better understand how the proposed development will be viewed from the public road. As you can see, the development is consistent with the neighborhood and will be advantageous to the Wildridge subdivision. We would like to take this opportunity to respond to the February 13, 2013, letter from the Colorado Geological Survey. There were some inaccuracies in the letter which are addressed below: 1. The letter states: “we disagree with the applicant's statement (page 5) that ‘Lots 33 and 34 are entirely developable.’” While understanding that the CGS Geologist may have some concern about the process to develop the property, as existing platted lots within the Wildridge Subdivision, these lots are developable under existing zoning and building code requirements. When originally platted, the Wildridge Subdivision did identify certain portions of lots as “undevelopable,” however, these lots do no include this designation. As a result, the existing Lots 33 and 34 are entirely developable per Avon regulations. In recognition of this, the proposed plat for Wildridge Point designates the steepest areas of the lot as undevelopable and improves the current situation for these properties. Mauriello  Planning  Group                                      MPGVail.com   P.O.  Box  4777                                                                                                                                                dominic@mpgvail.com Eagle,  CO  81631                                                                                                        970-­‐376-­‐3318 Attachment D 2.The CGS Geologist noted concerns about site grading for driveways and building pads. In response, we have provided conceptual designs for driveways and building sites. At building permit, the required technical studies and reports needed for development will be provided and reviewed by the Town Staff, as is the process for development on any site in Wildridge and the Town of Avon. 3.The CGS Geologist states that “the applicant seeks a variance to exempt the proposed PUD and subdivision from complying with minimum lot size requirements.” This statement is inaccurate as there is no request to vary from the minimum lot size requirements. Thank you for your time and consideration on this matter. Should you have any additional questions or concerns, please do not hesitate to contact me at 970.376.3318 or by email at dominic@mpgvail.com. Sincerely, Dominic F. Mauriello, AICP Principal 2 Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:19 PM FP-1 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 2 " = 1 ' - 0 " 1 2, 5 0 0 S . F . B U I L D I N G F O O T P R I N T S T U D Y LO T S 2 A N D 3 2 5 0 0 S . F . F O O T P R I N T 2500S.F. FOO T PRINT 74'3"4 %73'6" 4% 73 ' 5% 72 ' 6 " 70 ' 70 ' 70 ' 8% 5% 69 ' 6 " 7 5 ' U P P E R L E V E L 7 0 ' G A R A G E L E V E L 6 5 ' M A I N L E V E L 5 3 ' L O W E R L E V E L 7 3 ' T . O . W A L L 6 8 ' B T M W A L L 6 6 ' T . O . W A L L 6 0 ' B T M W A L L 7 0 ' T. O . W ALL 66 ' BTM WALL 64 ' T. O . W AL L 59 ' BTM WALL 8 0 ' U P P E R L E V E L 7 0 ' M A I N / G A R A G E L E V E L 5 8 ' L O W E R L E V E L 71'9" 4% 71'4% 3% 3 %70 '70 '6 9 '9 " 7 0 ' B T M W A L L 7 2 ' T . O . W A L L Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:26 PM FP-2 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 2 " = 1 ' - 0 " 1 3, 0 0 0 S . F . B U I L D I N G F O O T P R I N T S T U D Y LO T S 2 A N D 3 3 0 0 0 S . F . F O O T P R I N T 3000S.F. FOO T PRINT 74'3"4 %73'6" 4% 73 ' 5% 72 ' 6 " 70 ' 70 ' 70 ' 8% 5% 69 ' 6 " 7 5 ' U P P E R L E V E L 7 0 ' G A R A G E L E V E L 6 5 ' M A I N L E V E L 5 3 ' L O W E R L E V E L 7 3 ' T . O . W A L L 6 8 ' B T M W A L L 6 6 ' T . O . W A L L 6 0 ' B T M W A L L 7 0 ' T. O . W ALL 66 ' BTM WALL 64 ' T. O . W AL L 59 ' BTM WALL 8 0 ' U P P E R L E V E L 7 0 ' M A I N / G A R A G E L E V E L 5 8 ' L O W E R L E V E L 71'9" 4% 71'4% 3% 3 %70 '70 '6 9 '9 " 7 0 ' B T M W A L L 7 2 ' T . O . W A L L Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:32 PM FP-3 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 3 5 0 0 S . F . F O O T P R I N T 3500S.F. FOO T PRINT 74'3"4 %73'6" 4% 73 ' 5% 72 ' 6 " 70 ' 70 ' 70 ' 8% 5% 69 ' 6 " 7 5 ' U P P E R L E V E L 7 0 ' G A R A G E L E V E L 6 5 ' M A I N L E V E L 5 3 ' L O W E R L E V E L 7 3 ' T . O . W A L L 6 8 ' B T M W A L L 6 6 ' T . O . W A L L 6 0 ' B T M W A L L 7 0 ' T. O . W ALL 66 ' BT M WAL L 8 0 ' U P P E R L E V E L 7 0 ' M A I N / G A R A G E L E V E L 5 8 ' L O W E R L E V E L 71'9" 4% 71'4% 3% 3 %70 '70 '6 9 '9 " 7 0 ' B T M W A L L 7 2 ' T . O . W A L L 1 2 " = 1 ' - 0 " 1 3, 5 0 0 S . F . B U I L D I N G F O O T P R I N T S T U D Y LO T S 2 A N D 3 Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:39 PM RD-1 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 - 3 D V i e w f r o m r o a d # 1 ( n o r t h b o u n d ) Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:44 PM RD-2 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 - 3 D V i e w f r o m r o a d # 2 ( n o r t h b o u n d ) Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:48 PM RD-3 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 - 3 D V i e w f r o m r o a d # 3 ( n o r t h b o u n d ) Attachment D Project number Date PO Box 1587, Eagle, CO 81631 www.martinmanleyarchitects.com Sheet 2/21/2013 3:59:54 PM RD-4 1225 Wildridge Point 02-21-13 Wildridge Road East Avon, CO 81620 PROGRESS SET 1 - 3 D V i e w f r o m r o a d # 1 ( s o u t h b o u n d ) Attachment D March 19, 2013 Avon Town Council C/O Jared Barnes, Town Planner P.O. Box 975 Avon, CO 81620 Re: Wildridge Point Subdivision and Minor Amendment Application Dear Town Council members: Thank you for your consideration on the Wildridge Point Subdivision and Minor Amendment application for Lots 33 and 34, Block 4, Wildridge Subdivision. As you may be aware, the Planning and Zoning Commission recommended approval of the Minor Amendment request at their March 5, 2013, hearing. At that time, the Planning and Zoning Commission was also reviewing a variance request for the project, but ultimately decided that the variance was unnecessary for the project. The Minor Subdivision request is only acted upon by the Town Council. This letter is intended to provide you with some background for the Planning and Zoning Commission’s decision on the variance. We submitted applications to the Town of Avon for the Minor PUD Amendment and Minor Subdivision on November 21, 2012. The proposal is to add a lot line to create three single family lots from two duplex lots, thereby reducing number of units by one. This is not the subdivision of unplatted land, but is a simple replat. Based on our understanding of the Avon Development Code, the code sections which deal with slopes did not apply to this project as Section 7.28.100 provides the following: Applicability. The standards in this section shall apply to any new subdivision, PUD, or zoning amendment when any portion of the lot contains naturally--occurring slopes of thirty percent (30%) or greater. Because our application was not a new subdivision, PUD, or zoning amendment, this section of the Avon Development Code was not applicable to our proposal for a minor subdivision of existing platted lots within an existing PUD. Furthermore, the Wildridge PUD identifies non- developable areas of lots and neither of the lots included any area identified as non- developable. However, during staff’s completeness review, the staff determined that a variance application would be required prior to scheduling the applications for a public hearing. Though we did not agree to this requirement, we submitted the associated application and fee of $500.00 so that the application would be allowed to move forward in the process. Mauriello  Planning  Group                                            MPGVail.com   P.O.  Box  4777                                                                                            dominic@mpgvail.com Eagle,  CO  81631                                                      970-­‐376-­‐3318 Attachment E The Planning and Zoning Commission reviewed the proposal on February 5, 2013, then again on March 19, 2013. At the meetings, there was a great deal of discussion regarding the applicability of Section 7.28.100 of the Avon Development Code, due to staff’s interpretation of the applicability of this section, along with the staff recommendation of denial of the variance. Ultimately, the Planning and Zoning Commission found that a variance from Section 7.28.100 was not necessary as the proposal did not fall into the application types which would make it applicable and that specifically in this case the variance was not warranted. The P&Z supports the proposed application because of the additional limitations proposed by the applicant including non-buildable areas and building footprint restrictions. We believe that the P&Z would have voted in favor of the variance had they determined that the standard had been applicable given the specific circumstances of these properties. The application before you today includes the Minor Subdivision to add the additional lot line and the Minor PUD Amendment (Planning and Zoning Commission recommended approval). Because the Planning and Zoning Commission found that the variance was not applicable to this project, no action was taken on the variance request, and no further action is required by the Town Council. Thank you for your consideration on this matter. Sincerely, Dominic F. Mauriello, AICP Principal 2 Attachment E At t a c h m e n t F At t a c h m e n t F At t a c h m e n t F March 18, 2013 Avon Town Council C/O Jared Barnes, Town Planner P.O. Box 975 Avon, CO 81620 Re: Appeal and Waiver of Notice Dear Town Council: In order to remedy a potential procedural flaw whereby the Planning and Zoning Commission determined that no variance was required for the Wildridge Point project, I, as the applicant’s representative, hereby appeal the decision by the Commission and waive my right to notice as provided for in the Avon Municipal Code. This was done to ensure that the Town Council will be able to take final action on the proposed applications without the need for remand back to the Commission. Thank you for your consideration on this matter. Sincerely, Dominic F. Mauriello, AICP Principal Mauriello  Planning  Group                                            MPGVail.com   P.O.  Box  4777                                                                                            dominic@mpgvail.com Eagle,  CO  81631                                                      970-­‐376-­‐3318 Attachment G TOWN OF AVON RESOLUTION NO. 13-11 Series of 2013 A RESOLUTION CONDTIONALLY APPROVING A VARIANCE FROM SECTIONS 7.32.020(e)(6) and 7.32.020(e)(7) FOR LOTS 2 AND 3, WILDRIDGE POINT, A RESUBDIVISION OF LOTS 33-34, BLOCK 4, WILDRIDGE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, the Town of Avon (“Town”) adopted Ordinance No. 10-14 adopting the Avon Development Code (“ADC”); and WHEREAS, the ADC includes provisions for Natural Resource protection through steep slope, buildable area, and building footprint requirements; and WHEREAS, Mountain C.I. Holdings LTD, the owner of properties in the Town described as 5081 & 5091 Wildridge Road E., Avon, CO 81620, or Lots 33 & 34, Block 4, Wildridge Subdivision has submitted a Variance application through its authorized representative Dominic Mauriello, Mauriello Planning Group LLC, (“Applicant”) ; and WHEREAS, the Variance application requests exemption from Section 7.28.100(a), Steep Slopes, and Section 7.32.020(e)(6), Buildable Area, and Section 7.32.020(e)(7), Building Envelopes, to allow the Wildridge Point Subdivision and PUD to permit development on Lots 2 and 3 for two (2) single-family residences in areas over forty percent (40%) slope and to not be required to plat specific building envelopes for those lots; and WHEREAS, the Planning and Zoning Commission held public hearings on February 5, 2013 and March 5, 2013 after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided; and WHEREAS, the Planning and Zoning Commission did not act on the Variance application after discussing the applicability of Section 7.28.100(a), Steep Slopes, and determining that the application was: (a) not a zoning amendment due to the zoning classification, PUD, remaining the same; and, (b) a resubdivision and not a new subdivision, which would have required a Variance, and, therefore, did not discuss or apply the requirements of Section 7.32.020(e), Lots; and WHEREAS, the Applicant acknowledges that the Community Development Director has interpreted the code that a Variance application is required to be acted upon in order to permit development on these lots and for procedural purposes the Applicant has requested Town Council to consider the Variance application pursuant to the appeals procedures in Sections 7.16.110(b) and 7.16.160 of the ADC; and Attachment H WHEREAS, the Town Council reserves the authority to render a final decision on all decisions rendered under the ADC; and WHEREAS, the Town Council of the Town of Avon held a public hearing for Variance review on the 26th day of March, 2013, after posting notice as required by law, considered all comments, testimony, evidence and staff reports provided by the Town staff prior to taking any action on the Variance application; and WHEREAS, the Town Council has examined the review criteria set forth in Section 7.16.110(c); and WHEREAS, the Town Council of the Town of Avon has made the following findings regarding the Variance Application: 1. The granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same district because the Property is unique in its topography, site characteristics and accessibility from the adjacent roadway and the Property has an existing right to develop a similar or greater density with a similar or greater site disturbance without the requested variance. 2. The granting of the variance will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity because the variance does not increase the overall site density or potential site disturbance. 3. The variance is warranted because the strict, literal interpretation and enforcement of the specified regulation would result in practical difficulty or unnecessary physical hardship inconsistent with the objectives of the Development Code by limiting the development of the Property to two duplex structures which may require more site disturbance and less design flexibility on steep slopes than three single family structures; and, there are exceptional or extraordinary conditions on the Property, particularly steep slopes, that do not apply generally to other properties in the same zone. 4. The Property is allowed to develop on areas exceeding forty percent (40%) slope under existing zoning and the resubdivision of the Wildridge Point Subdivision and should be allowed to develop in the same manner; therefore, Lots 2 and 3, Wildridge Point Subdivision should not be subject to Section 7.32.020(e)(6), Buildable Area. 5. The Wildridge Point Subdivision through the platting of non-developable areas and inclusion of maximum building footprint limitations are platting a de facto building envelope thus complying with the intent of Section 7.32.020(e)(7), Building Envelope. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Variance application for Lots 2 and 3, Wildridge Point Subdivision, A Resubdivision of Lot 33 and 34, Block 4, Wildridge Subdivision, Town of Avon, Eagle County Colorado, is hereby approved by the Town of Avon, subject to the following conditions: 1. The Variance is approved and effective only upon approval of Ordinance 13-05. Attachment H ADOPTED THIS DAY OF , 2013. TOWN COUNCIL TOWN OF AVON, COLORADO Rich Carroll, Mayor ATTEST: Patty McKenny Town Clerk Attachment H Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 1 of 4 TOWN OF AVON, COLORADO ORDINANCE 13-05 SERIES OF 2013 AN ORDINANCE APPROVING A MINOR PUD AMENDMENT AND MINOR SUBDIVISION FOR WILDRIDGE POINT ON LOTS 33-34, BLOCK 4, WILRIDGE SUBIDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and WHEREAS, Dominic Mauriello, Mauriello Planning Group (the “Applicant”) on behalf of Mountain C.I. Holdings LTD (the “Owner”) has submitted a Minor PUD amendment, Minor Subdivision, and Variance Application (collectively, the “Application”) to modify the platted development rights to allow for the construction of three (3) single family residences on the subject property; and WHEREAS, the Planning and Zoning Commission held public hearings on February 5, 2013 and March 5, 2013 after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking action; and WHEREAS, the Planning and Zoning Commission recommended to the Town Council approval of the Application through the Planning and Zoning Commission Findings of Fact, Record of Decision, and Recommendations dated March 12, 2013; and WHEREAS, pursuant to Section 7.16.060(e)(4), Review Criteria, and Section 7.16.070(f), Final Plat Review Criteria, Avon Municipal Code, the Town Council has considered the applicable review criteria for the Application; and WHEREAS, the Town Council held public hearings on March 26, 2013 and April 9, 2013 after posting notice of such hearing in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking action; and WHEREAS, the Town Council finds that the health, safety and welfare of the Avon community will be enhanced and promoted by the adoption of this Ordinance; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance. Attachment I Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 2 of 4 NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Wildridge Point Minor PUD Amendment. The Wildridge Point Minor PUD Amendment application for Lots 33 and 34, Block 4, Wildridge Subdivision is hereby approved as follows: A. The Wildridge PUD and Replat No. 2 (Exhibit A) is amended for Lots 33 and 34, Block 4, Wildridge Subdivision to modify the allowable maximum density of “2 Units Each” for each lot to a total of three (3) single family for the newly platted Lots 1-3, Wildridge Point Subdivision. Section 3. Wildridge Point Minor Subdivision. The Final Plat for the Wildridge Point Subdivision, A Resubdivision of Lots 33 and 34, Block 4, Wildridge Subdivision, Town of Avon, County of Eagle, State of Colorado is hereby approved. Section 4. Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross-reference, or other errors which may be discovered in any documents associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents. Section 5. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 6. Effective Date. This Ordinance shall take effect thirty days after final adoption in accordance with Section 6.4 of the Avon Home Rule Charter. Section 7. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and Attachment I Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 3 of 4 welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 8. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title at the Avon Town Hall, Avon Recreation Center and Avon Public Library, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section 7.16.140(d)(2) of the Avon Municipal Code. Section 9. Final Action. Approval and final adoption of this Ordinance on second reading constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum seeking reconsideration of the decision of the Town Council with respect to this Ordinance and matters approved hereby in accordance with Section 7.16.020(f)(5) of the Avon Municipal Code and in accordance with Chapters VI and VII of the Avon Home Rule Charter. [EXECUTION PAGE FOLLOWS] Attachment I Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 4 of 4 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on March 26, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on April 9, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. ____________________________ Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least seven days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Patty McKenny, Town Clerk Eric Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on 9th day of April, 2013. ____________________________ Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: __________________________ Patty McKenny, Town Clerk Attachment I Exhibit A to Ordinance 13-05 Exhibit A to Ordinance 13-05 Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Implementation Update DATE: March 21, 2013 Summary: This memorandum provides an update on the settlement implementation for the Village (at Avon) litigation. Attached is the latest document list with notes used by the respective attorneys. Amendments to the Traer Creek Metropolitan District and The Village Metropolitan District Service Plans: The Town received a revised draft of the proposed amendments to the Service Plans for the Traer Creek Metropolitan District and The Village Metropolitan District Service on March 1, 2013. I provided comments and proposed revisions on March 19, 2013, and subsequently met with representatives of the Metropolitan Districts and discussed proposed amendments with representatives of Traer Creek LLC this week. At this time I cannot estimate the timeframe for completing revisions to the Service Plans except to say that I do not believe it will by March 29, 2013 in time to submit materials to Council ten days in advance of a regular Council meeting. Therefore, I suggest that Council consider continuing the public hearing on the Service Plans to the April 23, 2013 meeting. The Add-On Retail Sales Fee Collection Services Agreement: I understand that the minor comments I submitted on behalf of the Town are acceptable and that a final version of this document will be produced within the next week. Amendments to the Mixed-Use and Commercial Declarations: I understand that a final version of this document responsive to comments I provided will be produced within the next week. Various Conveyance Documents: The title insurance commitments have been updated and appear to be on track to finalize in a form acceptable to Town in the next couple weeks. Other conveyance documents, namely the Nottingham Dam Easement Agreement and Wet Well Easement Agreement are slowly making progress. Receipt and Closing Escrow Agreement: We are waiting for Developer’s review of the latest revised Receipt and Closing Escrow Agreement. Review of Bond Documents: I understand that drafts of bond documents may be available for review in the next couple weeks. Status Conference with Court: A Status Conference was held on Thursday, March 21 2013. Although I and other parties reported that the parties are making progress and working cooperatively, I did express concern that the process was taking longer than desired and that we had missed an opportunity to combine the water storage tank bonds with another bond issuance by the Upper Eagle River Water Authority and save funds. The Judge stated that he would resume status conferences every other week and scheduled the next status conference for Monday, April 8, 2013 at 1:00 p.m. Requested Action: No Council action is requested at this time. Thank you, Eric M EMORANDUM & PLANNING, LLC Heil Notes March 21, 2013 CLOSING ESCROW RECORDING ORDER WORKSHEET Green = Done Blue = Document subject to further review and/or execution by Town Gray = recording not applicable Document or Instrument to be Deposited Signed By Date Recd (notes re status) 1. Ordinance No. 12-10 (approving Development Agreement, PUD, Lot 1 Re- Plat, Traer Creek Plaza, acceptance and conveyance of water rights, acceptance of real property and equipment, amendments to AMC Ch.18) Town Done 2. Consolidated, Amended and Restated Annexation and Development Agreement for The Village (At Avon) (“Development Agreement”) Town, TCMD, TCLLC, AURA, EMD, Mixed Use PIC, Commercial PIC, and VMD, BNP and lenders as limited parties (BoW?) EH sent revised version with correction of typos on 3/20 3. Resolution Approving CARADA with Conditions TCMD Done 4. Amended and Restated PUD Guide for The Village (At Avon) (“PUD”) n/a Done 5. Condominium Plat/Map Town, TC Plaza, BoW Done 6. Traer Creek Plaza Condominium Declaration TC Plaza, BoW Done 7. Subordination to Condo Plat by BoW BoW This doc can either be eliminated (per M. Repucci) or changed to a subordination agreement 8. Quit Claim Deed to TCMD for Parking Unit TC Plaza Done. Executed? 9. Re-Plat of Lot 1 Town, TC-RP Done 10. Release of Deed of Trust as to Lot 2 (PA-B) BoW EH forwarded form of release to D. Thatcher. 11. Special Warranty Deed Conveying Lot 2 (PA-B) to Town TC-RP Form of deeds is finalized; Avon wants to see DOT releases (item 10). Goal date to finalize is 3/15. 12. Access Easement to PA-B TC-RP, Town, BoW Form is finalized 13. Release of Deed of Trust as to Lot 3 (PA-E) BoW EH forwarded form of release to D. Thatcher. 14. Special Warranty Deed Conveying Lot 3 (PA-E) to Town TC-RP Form of deed is finalized; Avon wants to see #13 Goal date to finalize is 3/15. 15. Subordination Agreements BoW, Alpine, Laramie, RBS All lenders will have to subordinate their interests to…[the CARADAand revised Plat?] Developer to meet with lenders. 16. Covenant and Temporary Easement (to Planning Area I) Town EMD Exhibit to CARADA: Done 17. Resolution Concerning Water Service to Traer Creek(Rescinding Water Service Moratorium) Authority Done; signed copy sent to BC & MS Heil Notes March 21, 2013 2 Document or Instrument to be Deposited Signed By Date Recd (notes re status) 18. Special Warranty Deed Conveying Water Rights to Town TCMD Done 19. Special Warranty Deed Conveying Water Rights to Authority Town Done 20. Water Rights Opinion PF Opinion is Done. 21. Water Storage Tank Special Warranty Deed TC-RP, Authority Form agreed upon but not executed 22. Title Commitment to Tank Site n/a E. Jorgenson will need an update when Implementation Date is set. Only outstanding item is subordination agreement by Laramie (see below). 23. Subordination to Tank Site by Laramie Laramie Approval by Sandy? Approval by Laramie? 24. Easement Agreement for Tank Site access road TC-RP, Authority Repucci working with Jorgenson. Title issue 25. Special Warranty Deed to Town for Public Road Tracts & Detention Pond (Tract D) TCMD Executed by District (Done) 26. Special Warranty Deed to Town for Public Road Tract G TC-RP Executed by District 27. Special Warranty Deed to Town for Raw Water TCMD EH has final form, doesn’t think any changes will be needed. 28. Raw Water System O&M Agreement TCMD, Town Water Bank doc will probably address water use issues. MS to add reference to O&M agreement 29. Partial Assignment of Amended and Restated Conveyance of Roadways and Easements (Conveying easement rights pertinent to E. Beaver Creek and Chapel Place to Town) TCMD Executed by District 30. Second Amendment to Commercial PIF Covenants Traer Creek-RP, Commercial PIC K. Martin to add cross-reference to CARADA EH sent additional revisions 2/24. Developer going through now. 31. Amendment to Mixed-Use PIF Covenants Traer Creek-RP, Mixed-Use PIC K. Martin to add cross-references to CARADA EH sent additional revisions 2/24. Developer going through now. 32. Asphalt Overlay Escrow Agreement 1st Bank, TCMD, Town Done and ready to be re-adopted and re- signed. 33. Resolution No. _________ (approving Asphalt Overlay Agreement) Town Will be re-done. EH to provide Res. No. 34. Bill of Sale to Town for Wet Well TCMD Executed by District (Done) 35. Wet Well Easement Agreement TC-RP, Town, BoW EH to provide additional revisions 36. Bill of Sale to Town for Water Dissipater TCMD Executed by District (Done) 37. Bill of Sale to Town for Road Improvements TCMD Executed by District (Done) 38. Amended and Restated Nottingham Dam Easement and Assignment Agreement Town, District, TC-RP EH and Developer to finalize based on recent comments and revisions 39. Memorandum of Termination of Parking Facility Easement Agreement TCMD, TCP Developer to send to Repucci. Waiting on BoW? Executed by District. Heil Notes March 21, 2013 3 Document or Instrument to be Deposited Signed By Date Recd (notes re status) 40. Memorandum of Termination of Common Easement Agreement TCMD, TCP Developer to send to Repucci. Waiting on BoW? Executed by District. 41. Add-On RSF Collection Services Agreement Commercial PIC, Mixed Use PIC, SDMS, Town Close to done. EH sent minor comments. 42. Revised Point-Of-Sale Placards SDMS Done. 43. Revised PIF Return Forms, Instructions and Notice to Retailers SDMS Done 44. Pledge Agreement (Water Storage Tank Project) BNP, TCMD, Authority, VMD Done 45. Purchase and Sale Agreement (qualifying BNP representative to TCMD and VMD Boards) ALK, BNP Draft was sent to BNP on 3/21 46. Resolution Appointing BNP to TCMD Board TCMD Drafted. MS to send to BC 47. Resolution Appointing BNP to VMD Board VMD Drafted. MS to send to BC 48. Repayment Agreement – Operations TCMD, VMD, TCLLC District waiting for comments from Developer 49. Repayment Agreement – Capital TCMD, VMD, TCLLC District waiting for comments from Developer 50. Amendment to TCMD Service Plan/Approving Resolution by Town Town EH provided comments on 3/19 51. Amendment to VMD Service Plan/Approving Resolution by Town Town EH provided comments on 3/19 52. Revocable License Agreement for Snow Storage Town, TCLLC Done and ready for execution. TCMD removed as a party. 53. Stipulated Motion to Dismiss Litigation BNP, Town, TCMD, County, TCLLC, TC-RP, TC-HD, TC-WMT, TC Plaza, EMD BNP circulated 54. First Amendment to Amended & Restated Conveyance of Roadways, Parkland & Easements TCMD, TC-RP Done; executed by District 55. First Amendment to Conveyance of Roadway Tract TCMD, TC-RP Done; executed by District 56. Bill of Sale to TC-RP (shallow utilities) TCMD Executed by District (done) 57. Plat for Tank Site Done Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Implementation Documents DATE: March 15, 2013 Summary: This memorandum presents two documents to Town Council for review and approval which are required for implementation of the Village (at Avon) Settlement. A memorandum providing an update on the status of other documents required to fully implement the Village (at Avon) Settlement will be provided separately in the March 26, 2013 Avon Town Council regular packet. Town Staff has prepared charts depicting various agreements and documents related to the Village (at Avon). This material is included with this memorandum for Council’s information. Although this document is primarily an internal Town Staff resource, specific slides will likely be referenced for explanation to Council when other remaining settlement implementation documents are presented to Council. Asphalt Overlay Escrow Account Agreement: The Town Council previously approved the Asphalt Overlay Escrow Account Agreement on December 11, 2012 by Resolution No. 12-30 by and among the Town of Avon, Traer Creek Metropolitan District, the Master Developer and First Bank as the escrow agent. Subsequent to the Town’s approval, the Master Developer asked to be removed from the Asphalt Overlay Escrow Account Agreement as a party. The Asphalt Overlay Escrow Account Agreement has been revised to remove the Master Developer as a party. The attached Version 11 is compared to the prior Version 9 which Council previously approved on December 11, 2012 by Resolution No. 12-30. The removal of the Master Developer as a party to the Asphalt Overlay Escrow Account Agreement does not affect the Master Developer’s obligations in the Development Agreement (aka “CARADA”) to contribute to the Asphalt Overlay Escrow Account. The Asphalt Overlay Escrow Account Agreement only establishes rights and obligations of the Escrow Agent and of the Town and TCMD to request release of funds for asphalt overlay projects. Therefore, the removal of the Master Developer as a party to the Asphalt Overlay Escrow Account Agreement does not nor diminish any rights that the Town has to enforce payment contributions for asphalt overlays from the Master Developer and TCMD. Section 6.6 of the Development Agreement will be revised to reflect that the only parties entering into the Asphalt Overlay Escrow Account Agreement. A new resolution has been prepared to repeal Resolution No. 12-30 and re- approve the Asphalt Overlay Escrow Account Agreement, which is attached to this memorandum. Requested Town Council Action: Approve Resolution No. 13-x. Revocable License Agreement for Snow Storage: Section 3.7(b) of the Development Agreement requires the Town to provide a “Revocable License Agreement” to allow snow storage on Lot 2 (Planning Area B). Specifically, Section 3.7(b) of the Development Agreement states, “Until such time as Planning Area B is developed or improvements are constructed thereupon that preclude the 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.” As defined in the Development Agreement, “Revocable License Agreement means that certain Revocable License M EMORANDUM & PLANNING, LLC Avon Town Council Village (at Avon) Settlement Implementation Documents March 15, 2013 Page 2 of 2 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.” Traer Creek Metropolitan District has requested to be removed as a party from the Revocable License Agreement because they do not anticipate utilizing Lot 2 for snow storage. The Master Developer has requested that that the Revocable License Agreement designate Traer Creek-RP, LLC and EMD-CM LLC (aka Trees of Colorado) as licensees. Section 8.11 of the Development Agreement allows for assignment of Master Developer’s rights to other parties, which is acknowledged in Section 2.4 of the Revocable License Agreement. The snow storage has been depicted in a graphic attached as Exhibit B to the Revocable License Agreement. Practically, it is very unlikely that Lot 2 would actually be used for snow storage because Traer Creek dumps snow on the east side of the large hole and the snow storage area on Lot 2 is the west side of the hole. Section 3.2 defines Hazardous Materials in a standard legal ease language which references the definitions established by federal environmental law. Section 3.3 allows the Town to summarily suspend the Snow Storage License if the Licensees dump or release Hazardous Materials in excess of incidental snow removal operations. Section 3.5 of the Revocable License Agreement states that the Licensees shall repair any damage to Lot 2 resulting from dumping or release of Hazardous Materials. Actual enforcement of restoration of any environmental damage would be complicated and very expense to pursue, particularly with multiple parties utilizing the area for snow storage; therefore, it is more important practically that the Town monitor any snow dumping activities to prevent release of Hazardous Materials before any such practice causes significant environmental damage. Typical snow storage and snow dumping activities have minimal risk of releasing Hazardous Materials. Section 10.0 of the Revocable License Agreement clarifies that Town’s general permitting and licensing requirements still apply for any snow dumping and trucking activities. Requested Town Council Action: Approve the Revocable License Agreement for Snow Storage by motion. NOTE: The affirmative concurring vote of four Council members is required to approve a contract. Without TCMD as a party, this Revocable License Agreement for Snow Storage is not an intergovernmental agreement, therefore, a super-majority vote is not required. Attachments: • Version 11 Compared to Version 9 of Asphalt Overlay Escrow Account Agreement • Resolution No. 13-x with Exhibit A: Version 11 of Asphalt Overlay Escrow Account Agreement • Revocable License Agreement for Snow Storage, Feb. 27, 2013 version • Village Document Flow Charts, dated March 15, 2013. Thanks, Eric   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 1 of 15   ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT (“Asphalt Overlay Agreement”) is made and entered into as of January 22March 26, 2013, with an Effective Date of _______________________ [insert Implementation Date as defined in Receipt and Escrow Agreement] by and between FirstBank Escrow Services, LLC (“Escrow Agent”); the Town of Avon, a home rule municipal corporation of the State of Colorado (“Town”);”) and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”); and Traer Creek LLC, a Colorado limited liability company (“Master Developer”) (individually referred to as “Party” and collectively as “Parties”). RECITALS A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the Consolidated, Amended and Restated Annexation and Development Agreement for the Village (at Avon) (“Development Agreement”). B. Master Developer, Town and TCMD seek to enter into this Asphalt Overlay Agreement in order to duly satisfy all provisions in the Development Agreement concerning the establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of the Development Agreement. C. Master Developer, Town and TCMD are entering into this Asphalt Overlay Agreement with Escrow Agent in order to establish a restricted escrow account (as required by and defined in the Section 6.6 of the Development Agreement, the “Asphalt Overlay Account”) for the purpose of the deposit, administration and disbursement of their respective shares of certain funds (“Funds”) to be deposited, held and disbursed in accordance with the terms and conditions of this Asphalt Overlay Agreement. D. In consideration of the payment of its fees and the performance of the respective obligations of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay Agreement, to administer the Asphalt Overlay Account and to perform its duties and obligations as set forth herein. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing, the Parties’ performance of their respective obligations hereunder, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties agree as follows: 1. Asphalt Overlay Account. (a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay Account, which is a restricted non-interest bearing internal escrow account compliant with C.R.S. §24-75-601.1 regarding investment of public funds, at FirstBank, Avon Branch, located at 11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow Services, LLC, Asphalt Overlay Account No. _________________.   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 2 of 15   (b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town, TCMD and Master DeveloperTraer Creek, LLC (“TC-LLC”) to be used by the Town exclusively for asphalt overlay of constructed public roads in the Project which have been dedicated to and accepted by the Town in accordance with the terms of the Development Agreement. (c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this Asphalt Overlay Agreement. (d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non- interest bearing, internal escrow account in the name of Town, entitled “Village (at Avon) Asphalt Overlay Escrow Account,” which shall be segregated from other escrow accounts or assets held by the Escrow Agent. (e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt overlays for certain public roads dedicated to the Town in the Village (at Avon) as described in the Development Agreement. 2. Fees. Master Developer, Town and TCMD agree to pay the Escrow Agent’s fees and to reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree that such fees will be deducted from Funds upon commencement of the Escrow Account and on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be deducted from the Funds upon issuance of each check. 3. Contributions. The Master DeveloperTC-LLC, Town and TCMD will deposit their individual contribution as required by Section 6.6 of the Development Agreement, which contributions shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance with the terms of the Development Agreement. The Parties’ individual contributions of TC-LLC, Town and TCMD are defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent shall not be liable for the failure of any PartyTC-LLC, Town and/or TCMD to contribute their respective contribution to the Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall not be construed to modify the Parties’ respective obligations of TC-LLC, Town and/or TCMD pursuant to the Development Agreement, shall not be used as parole evidence with respect to any dispute among the parties to the Development Agreement, and shall not be construed to impose any obligation on PartyTC-LLC, Town and/or TCMD with respect to the timing or amount of any Party’s obligation of TC-LLC, Town and/or TCMD to cause the deposit of its respective share of Funds (it being the intent of the foregoing only to describe the Parties’ obligations of TC-LLC, Town and TCMD pursuant to the Development   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 3 of 15   Agreement and not to create nownew or additional obligations arising solely pursuant to this Section 3.). 4. Standard of Care and Liabilities. During the Term the Escrow Agent shall have the following standard of care and liabilities: (a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent. This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent and the other parties hereto in connection with the subject matter of the Funds placed into escrow, and no other agreement entered into between the parties, or any of them, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be referred to herein or deposited with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow Agent’s rights and responsibilities shall be governed solely by this Asphalt Overlay Agreement. (b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not incur any such liability with respect to (i) an action taken or omitted in good faith upon advice of its counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including written notices provided for herein, not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or for the identity of authority of any person executing or depositing such subject matter. (c) The Escrow Agent shall hold Funds in trust for the benefit of the Town, TCMD and the Master DeveloperTCMD, and has a fiduciary duty to preserve and account for all Funds in the Asphalt Overlay Account. (d) The Escrow Agent shall make and maintain such records as expressly required in this Asphalt Overlay Agreement and those records which are required by law . (e) In the event Funds are lost by reason of the Escrow Agent’s breach of its fiduciary duty, then the liability of the Escrow Agent to Master Developer,the Town and/or TCMD shall be limited to the Master Developer’s, Town’s and/or TCMD’s direct damages, which shall be computed by determining: (i) the amount of Funds contributed by each Party;TC-LLC, Town and TCMD;   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 4 of 15   (ii) less the amount of any Escrow Fees previously paid; (iii) less the amount of Funds previously released pursuant to the terms of this Asphalt Overlay Agreement; and (iv) less the balance available in the Asphalt Overlay Account. (f) The Escrow Agent shall not be liable to Master Developer, Town, TCMD and/or TCMDTC-LLC for indirect, punitive, special or consequential damage or loss, including, but not limited to, lost profits. (g) Escrow Agent shall have no liability for the failure of any Party to contribute their respective portion of the Funds, and shall have no obligation to notify any Party of such Party’s or another Party’s failure to deposit Funds, it being the Parties’ intent that each Party shall be responsible for the timely deposit of its pro rata share of the Funds at the times and in the amounts required by the Development Agreement, and each Party shall be responsible to monitor the other Parties’ performance of their respective obligations to deposit Funds based on their review of the statements and other financial records required to be delivered pursuant to Section 6. (h) Master Developer, Town and TCMD agree that the Escrow Agent (i) shall be obligated only for the performance of the duties set forth in this Asphalt Overlay Agreement and any other duties or obligations imposed by law, (ii) may rely on written notice, direction and instruction jointly from Master Developer, the Town and TCMD regarding the Funds, including, without limitation, wire transfer instructions, (iii) may rely on any documents from the Town, Master Developer or TCMD which appear to the Escrow Agent, in the exercise of its fiduciary duty, to be genuine and to have been authorized by the Town, Master Developer or TCMD and (iv) unless the documents appear questionable, the Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or validity of same. (i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being shared equally among the Town, TCMD and Master DeveloperTCMD in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in accordance with the advice of such counsel. 5. Release of Funds. The Escrow Agent shall release funds to the Town according to the following procedures: (a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a joint written request to Escrow Agent (“Joint Instruction”) for the release of Funds, or portion thereof, for the asphalt overlay project which request shall include: (i) the amount of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or segment of public road for which an asphalt overlay will occur within the Village (at Avon) project area (as defined in the Development Agreement), and (iii) instruction for to   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 5 of 15   whom the monies released from the Asphalt Overlay Account should be paid. (b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly executed by the Town and TCMD, the Escrow Agent is authorized and directed to deliver the Funds in accordance with such instruction. 6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account statements to Master Developer, Town, and TCMD on a monthly basis. The Escrow Agent, upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all financial records of the Asphalt Overlay Account to the requesting Party by the end of the second (2nd) business day after the date that a written request for financial records is received. Statements shall be sent via the United States Postal Service’s standard delivery. 7. Audit. The Master Developer, Town and TCMD shall each have the right to audit the Asphalt Overlay Account and any of Escrow Agent’s financial records related thereto at any time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three (3) business days after the date on which Escrow Agent receives the request, make all records pertaining to the Asphalt Overlay Account available during normal business hours to the Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own expenses in connection therewith unless the audit discloses any instance of Escrow Agent’s non-compliance with the terms and conditions of this Asphalt Overlay Agreement, in which case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable costs in expenses in connection therewith, including but not limited to the costs and expenses of any such Party(ies) employees, agents and consultants engaged in and/or performing the audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with any such audit. 8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by one of the following methods (“Term”): (a) The Master DeveloperTC-LLC has fulfilled all obligations of the Master DeveloperTC- LLC to contribute funds, the obligation of Town and TCMD to contribute funds is terminated, the Town assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in accordance with Section 6.6(b) of the Development Agreement and the Master Developer, Town and TCMD send written notification to Escrow Agent that the requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met, provides instructions for the release and disbursement of Funds, and includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate have been met and such agreement is thereby terminated; or, (b) the Town, Master Developer, and TCMD provide a joint written notice to terminate this Asphalt Overlay Agreement, which is: (i) signed by Town, Master Developer and TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate; or   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 6 of 15   (c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below. 9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after receiving joint written notice from the Town, Master Developer and TCMD that Asphalt Overlay Agreement may be terminated in accordance with Section 6.6(b) of the Development Agreement. The written notice shall include a statement that the Town assumes all responsibility and liability for future asphalt overlays in accordance with the terms of the Development Agreement and shall be copied to the Master Developer and TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below. 10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its obligations under this Asphalt Overlay Agreement as follows: (a) The Escrow Agent shall deliver a written and dated resignation to the other Parties. (b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of sixty (60) days from the date of the resignation or (ii) the date upon which Escrow Agent completes transfer of the Funds to the Successor EA (defined below) pursuant to Section 10(d). (c) It shall be joint duty of Master Developer,the Town and TCMD to promptly secure a Successor Escrow Agent (“Successor EA”) and notify the Escrow Agent of the name and address of the Successor EA no later than the effective date of Escrow Agent’s resignation under this Section 10. Master Developer, Town, and TCMD agree to cooperate in a prompt, diligent and professional manner to secure a Successor EA. Master Developer, Town, and TCMD each agree that consent and approval of a Successor EA shall not be unreasonably withheld. (d) The current Escrow Agent shall retain physical custody and control of the Funds until it receives (i) written notification by Master Developer, Town, and TCMD of the name and address of the Successor EA, and (ii) written notification from the Successor EA stating that the Successor EA has accepted the appointment. Upon receipt of the written notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the Successor EA within three (3) business days. In the event that the Escrow Agent does not receive both the written notification from the Master Developer, Town, and TCMD regarding the name and address of the Successor EA and the acceptance of the appointment by the Successor EA by the end of the sixtieth (60th) day after the date of the written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below. (e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA nor shall Escrow Agent have any liability for the failure of Master Developer, Town, and TCMD to appoint a Successor EA.   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 7 of 15   (f) Town shall promptly, but no later than ten (10) days from the effective date of the new agreement, forward a copy of the new executed asphalt overlay escrow agreement entered into by Master Developer, Town, TCMD, and the Successor EA to the Escrow Agent. 11. Conflicting Claims. In the event of any disagreement between any of the Parties to this Asphalt Overlay Agreement, or between any of them and any other person, resulting in adverse claims or demands being made in connection with the matters covered by this Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Escrow Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjudged and all doubt resolved by agreement amount all of the interested persons, and Escrow Agent shall have been notified thereof in writing signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow Agent is hereby authorized in its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative of all other rights which it may have by law or otherwise. 12. Indemnification. To the extent permitted by law, Master Developer, Town, and TCMD, jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers, directors, employees, and agents from any and all “Claims” and “Losses” as defined in this Section 12., as a result of or in connection with the Escrow Agent’s acts under this Asphalt Overlay Agreement, other than claims made by Master Developer, Town, and/or TCMD for gross negligence of Escrow Agent, or willful misconduct of Escrow Agent. (a) “Claims” shall mean all claims, lawsuits, causes of action, or other legal actions and proceedings of whatever nature brought against the Escrow Agent or any officer, director, employee, or agent, whether by way of direct action, counterclaim, cross action, or impleader, even if such claim is groundless, false, or fraudulent, so long as the claim, lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i) acts or omissions of Master Developer, Town, or TCMD, (ii) appointment of the Escrow Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the Escrow Agent of its powers and duties under this Asphalt Overlay Agreement. (b) “Losses” shall mean losses, costs, damages, expenses, judgments, and liabilities of whatever nature (including, but not limited to, attorneys, accountants, and other professional’s fees, litigation and court costs and expenses, and amounts paid in settlement), directly or indirectly resulting from, arising out of, or relating to one or more Claims. Upon the written request of Escrow Agent or any officer, director, employee, or agent of Escrow Agent, Master Developer, Town, and TCMD agreesagree to jointly   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 8 of 15   assume the investigation and defense of Escrow Agent against any Claims or Losses, including the employment of counsel acceptable to Escrow Agent and the payment of all expenses related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have the right, and Master Developer, Town, and TCMD agree to pay the costs and expense, to employ separate counsel with respect to any such Claim and to participate in the investigation and defense thereof. Master Developer, Town and, TCMD and Escrow Agent shall use all reasonable efforts to fully cooperate with each other in the defense of any Claims or Losses. 13. Notices. Any notice or communication, exclusive of periodic statements, required under this Asphalt Overlay Agreement between the Parties must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section 13, designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: To Escrow Agent: FirstBank Escrow Services, LLC 1707 N Main St. Longmont, CO 80501 Attn: Carol Croft With a Required Copy to: To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager With a Required Copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers, Esq. and Kimberly Martin, Esq. To Town: Town of Avon P.O. Box 975 One Lake Street Avon, CO 81620 With a Required Copy to: Town of Avon P.O. Box 975 One Lake Street Avon, CO 81620   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 9 of 15   Attn: Town Manager Attn: Town Attorney To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby With a Required Copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203 Attn: Mary Jo Dougherty, Esq. 14. Funds Unencumbered. (a) Master Developer, Town and TCMD each warrant to the others that the respective Funds placed in the Asphalt Overlay Account are not subject to, nor will they become subject to, any claims of creditors of the Party contributing such Funds. Master Developer, Town and TCMD each agree that each Party will not use the Funds as security for any transaction, nor will Master Developer, Town or TCMD pledge the Funds or list the Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real or personal property. (b) Master Developer, Town and TCMD each warrant that, during the term of this Asphalt Overlay Agreement, the Funds shall remain unencumbered by any legal interest that would violate the Asphalt Overlay Agreement. (c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any security interest exists in any Funds in the Asphalt Overlay Account. (d) The Escrow Agent will promptly notify the other Parties within two (2) business days if there is an attempt to encumber the Funds. 15. Third-Party Beneficiary. Nothing contained in this Asphalt Overlay Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third-party receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended beneficiary only. 16. Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of this Asphalt Overlay Agreement that require continued performance, compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 10 of 15   without the express written consent of the other Parties. Any written assignment shall expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved in writing, signed and notarized by the other Parties, and with respect to an assignment of a Party’s obligations or responsibilities shall be expressly assumed in writing by the assignee. Any attempted assignment without written consent by all other Parties to this Asphalt Overlay Agreement shall be void ab initio and unenforceable. 18. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town and TCMD are subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Asphalt Overlay Agreement to the contrary, all payment obligations of the Town and TCMD are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town’s and TCMD’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town and TCMD payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Town and of TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish, supplement or supersede the provisions in the Development Agreement concerning default for non-payment of by Town and/or TCMD in the performance of their respective obligations to deposit Funds into the Asphalt Overlay Account. 19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Asphalt Overlay Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Asphalt Overlay Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Asphalt Overlay Agreement. 20. Construction and Interpretation. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Asphalt Overlay Agreement. If there is any conflict between the language of this Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt Overlay Agreement shall govern. If there is any conflict between the language of this Asphalt Overlay Agreement and the Development Agreement, then language in the Development Agreement shall control between the Town, TCMD and Master DeveloperTCMD, so long as such interpretation does not affect the rights or obligations of the Escrow Agent, and the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and any of the Parties. 21. No Waiver of Rights. A waiver by any Party to this Asphalt Overlay Agreement of the breach of any term or provision of this Asphalt Overlay Agreement shall not operate or be   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 11 of 15   construed as a waiver of any subsequent breach by any Party. No covenant or term of this Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing signed by a person expressly authorized to sign such waiver for such Party and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. Notwithstanding any provision to the contrary in this Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protections provided to the Town and TCMD under the Colorado Governmental Immunity Act. 22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter herein, and is intended as the Parties’ final expression and complete and an exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. This Asphalt Overlay Agreement may be amended or modified only by an instrument in writing signed by all Parties with express approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement are incorporated herein by reference. 23. Force Majeure. Escrow Agent shall not be liable to the Town, or TCMD or Master Developer for any loss or damage arising out of any acts of nature, strikes or transmission line failure, war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow Agent. 24. Calculation of Days. If the last day for any act, deadline, expiration of a right, or date to provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of Colorado as set forth in C.R.S. §24-11-101, then the next business day which is not a Saturday, Sunday or such legal holiday shall be deemed the last day. 25. Counterparts. This Asphalt Overlay 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. All joint written instructions from the Town and TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts. [SIGNATURE PAGE FOLLOWS]   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 12 of 15   IN WITNESS WHEREOF, Escrow Agent, Master Developer, Town and TCMD have executed this Asphalt Overlay Agreement as of the date first written above. THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE UNDERSIGNED PARTIES: Escrow Agent: FirstBank Escrow Services, LLC By:________________________ Carol Croft, Escrow Officer STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ________________ 2013, by _________________________________. Carol Croft, Escrow Officer WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires:   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 13 of 15   Master Developer: Traer Creek LLC By:________________________ Marcus Lindholm, Manager STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ___________________ 2011, by Marcus Lindholm, Manager. WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires:   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 14 of 15   Town: Town of Avon, Colorado By:________________________ Attest:_________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ___________________ 2011, by Rich Carroll, Mayor. WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires:   Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 15 of 15   Traer Creek Metropolitan District By:________________________ Dan Leary, President STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ___________________ 2011, by Dan Leary, President Traer Creek Metropolitan District. WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires: Res. 13-x Approving Asphalt Overlay Escrow Account Agreement March 15, 2013 ejh Page 1 of 2 TOWN OF AVON RESOLUTION NO. 13-x Series of 2013 A RESOLUTION REPEALING RESOLUTION NO. 12-30 AND RE-APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos. 2008 CV 385 and 2010 CV 316, Eagle County District Court; WHEREAS, the Avon Town Council (“Council”) approved the Consolidated, Amended and Restated Annexation and Development Agreement (“CARADA”) by Ordinance No. 12-10 which set forth obligations in section 6.6 of the CARADA for the Town, Traer Creek Metropolitan District and the Master Developer (as “Master Developer” is defined in the CARADA) to establish an Asphalt Overlay Escrow Account Agreement (defined in the CARADA as the “Asphalt Overlay Agreement”) and also set forth that the Asphalt Overlay Agreement would occur concurrently with the Effective Date of the CARADA (as the “Effective Date” is defined in the CARADA); WHEREAS, the Council approved Resolution No. 12-30 A RESOLUTION APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT on December 11, 2012, and subsequent to such approval, the Master Developer requested the removal of Master Developer as a party to the Asphalt Overlay Escrow Account Agreement and the Council desires to accommodate this request and re-approve the Asphalt Overlay Escrow Account Agreement without the Master Developer as a party; and, WHEREAS, the Council approved the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation by Ordinance No. 12-10 which set forth various terms concerning the execution and deposit of documents and agreements into escrow and the effectiveness or voiding of such documents and agreements. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Resolution No. 12-30 A RESOLUTION APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT is hereby rescinded, repealed, and replaced in its entirety with this Resolution. BE IT FURTHER RESOLVED that the Asphalt Overlay Escrow Account Agreement, attached hereto as Exhibit A, is hereby approved by the Town of Avon subject to the terms and conditions of the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation and that the Mayor, Town Manager and Town Attorney are hereby authorized to collectively review and approve the completion of blanks in the document, revisions to correct typos, grammatical errors, cross-references and definitions, completion or revision of exhibits, and other revisions to the agreement and exhibits which do not constitute substantive changes to the agreement. Res. 13-x Approving Asphalt Overlay Escrow Account Agreement March 15, 2013 ejh Page 2 of 2 ADOPTED MARCH 26, 2013 TOWN COUNCIL ATTEST: By:_________________________________ By:________________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk APPROVED AS TO FORM: By:_________________________________ Eric J. Heil, Town Attorney Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 1 of 14   ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT (“Asphalt Overlay Agreement”) is made and entered into as of March 26, 2013, with an Effective Date of _______________________ [insert Implementation Date as defined in Receipt and Escrow Agreement] by and between FirstBank Escrow Services, LLC (“Escrow Agent”); the Town of Avon, a home rule municipal corporation of the State of Colorado (“Town”) and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”) (individually referred to as “Party” and collectively as “Parties”). RECITALS A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the Consolidated, Amended and Restated Annexation and Development Agreement for the Village (at Avon) (“Development Agreement”). B. Town and TCMD seek to enter into this Asphalt Overlay Agreement in order to duly satisfy all provisions in the Development Agreement concerning the establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of the Development Agreement. C. Town and TCMD are entering into this Asphalt Overlay Agreement with Escrow Agent in order to establish a restricted escrow account (as required by and defined in the Section 6.6 of the Development Agreement, the “Asphalt Overlay Account”) for the purpose of the deposit, administration and disbursement of their respective shares of certain funds (“Funds”) to be deposited, held and disbursed in accordance with the terms and conditions of this Asphalt Overlay Agreement. D. In consideration of the payment of its fees and the performance of the respective obligations of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay Agreement, to administer the Asphalt Overlay Account and to perform its duties and obligations as set forth herein. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing, the Parties’ performance of their respective obligations hereunder, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties agree as follows: 1. Asphalt Overlay Account. (a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay Account, which is a restricted non-interest bearing internal escrow account compliant with C.R.S. §24-75-601.1 regarding investment of public funds, at FirstBank, Avon Branch, located at 11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow Services, LLC, Asphalt Overlay Account No. _________________. (b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town, TCMD and Traer Creek, LLC (“TC-LLC”) to be used by the Town exclusively for EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 2 of 14   asphalt overlay of constructed public roads in the Project which have been dedicated to and accepted by the Town in accordance with the terms of the Development Agreement. (c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this Asphalt Overlay Agreement. (d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non- interest bearing, internal escrow account in the name of Town, entitled “Village (at Avon) Asphalt Overlay Escrow Account,” which shall be segregated from other escrow accounts or assets held by the Escrow Agent. (e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt overlays for certain public roads dedicated to the Town in the Village (at Avon) as described in the Development Agreement. 2. Fees. Town and TCMD agree to pay the Escrow Agent’s fees and to reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree that such fees will be deducted from Funds upon commencement of the Escrow Account and on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be deducted from the Funds upon issuance of each check. 3. Contributions. TC-LLC, Town and TCMD will deposit their individual contribution as required by Section 6.6 of the Development Agreement, which contributions shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance with the terms of the Development Agreement. The individual contributions of TC-LLC, Town and TCMD are defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent shall not be liable for the failure of TC-LLC, Town and/or TCMD to contribute their respective contribution to the Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall not be construed to modify the respective obligations of TC-LLC, Town and/or TCMD pursuant to the Development Agreement, shall not be used as parole evidence with respect to any dispute among the parties to the Development Agreement, and shall not be construed to impose any obligation on TC-LLC, Town and/or TCMD with respect to the timing or amount of any obligation of TC-LLC, Town and/or TCMD to cause the deposit of its respective share of Funds (it being the intent of the foregoing only to describe the obligations of TC-LLC, Town and TCMD pursuant to the Development Agreement and not to create new or additional obligations arising solely pursuant to this Section 3). 4. Standard of Care and Liabilities. During the Term the Escrow Agent shall have the following standard of care and liabilities: EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 3 of 14   (a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent. This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent and the other parties hereto in connection with the subject matter of the Funds placed into escrow, and no other agreement entered into between the parties, or any of them, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be referred to herein or deposited with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow Agent’s rights and responsibilities shall be governed solely by this Asphalt Overlay Agreement. (b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not incur any such liability with respect to (i) an action taken or omitted in good faith upon advice of its counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including written notices provided for herein, not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or for the identity of authority of any person executing or depositing such subject matter. (c) The Escrow Agent shall hold Funds in trust for the benefit of the Town and TCMD, and has a fiduciary duty to preserve and account for all Funds in the Asphalt Overlay Account. (d) The Escrow Agent shall make and maintain such records as expressly required in this Asphalt Overlay Agreement and those records which are required by law. (e) In the event Funds are lost by reason of the Escrow Agent’s breach of its fiduciary duty, then the liability of the Escrow Agent to the Town and/or TCMD shall be limited to the Town’s and/or TCMD’s direct damages, which shall be computed by determining: (i) the amount of Funds contributed by TC-LLC, Town and TCMD; (ii) less the amount of any Escrow Fees previously paid; (iii) less the amount of Funds previously released pursuant to the terms of this Asphalt Overlay Agreement; and (iv) less the balance available in the Asphalt Overlay Account. EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 4 of 14   (f) The Escrow Agent shall not be liable to Town, TCMD and/or TC-LLC for indirect, punitive, special or consequential damage or loss, including, but not limited to, lost profits. (g) Escrow Agent shall have no liability for the failure of any Party to contribute their respective portion of the Funds, and shall have no obligation to notify any Party of such Party’s or another Party’s failure to deposit Funds, it being the Parties’ intent that each Party shall be responsible for the timely deposit of its pro rata share of the Funds at the times and in the amounts required by the Development Agreement, and each Party shall be responsible to monitor the other Parties’ performance of their respective obligations to deposit Funds based on their review of the statements and other financial records required to be delivered pursuant to Section 6. (h) Town and TCMD agree that the Escrow Agent (i) shall be obligated only for the performance of the duties set forth in this Asphalt Overlay Agreement and any other duties or obligations imposed by law, (ii) may rely on written notice, direction and instruction jointly from the Town and TCMD regarding the Funds, including, without limitation, wire transfer instructions, (iii) may rely on any documents from the Town or TCMD which appear to the Escrow Agent, in the exercise of its fiduciary duty, to be genuine and to have been authorized by the Town or TCMD and (iv) unless the documents appear questionable, the Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or validity of same. (i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being shared equally among the Town and TCMD in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in accordance with the advice of such counsel. 5. Release of Funds. The Escrow Agent shall release funds to the Town according to the following procedures: (a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a joint written request to Escrow Agent (“Joint Instruction”) for the release of Funds, or portion thereof, for the asphalt overlay project which request shall include: (i) the amount of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or segment of public road for which an asphalt overlay will occur within the Village (at Avon) project area (as defined in the Development Agreement), and (iii) instruction for to whom the monies released from the Asphalt Overlay Account should be paid. (b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly executed by the Town and TCMD, the Escrow Agent is authorized and directed to deliver the Funds in accordance with such instruction. 6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account statements to Town and TCMD on a monthly basis. The Escrow Agent, upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all financial records of EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 5 of 14   the Asphalt Overlay Account to the requesting Party by the end of the second (2nd) business day after the date that a written request for financial records is received. Statements shall be sent via the United States Postal Service’s standard delivery. 7. Audit. The Town and TCMD shall each have the right to audit the Asphalt Overlay Account and any of Escrow Agent’s financial records related thereto at any time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three (3) business days after the date on which Escrow Agent receives the request, make all records pertaining to the Asphalt Overlay Account available during normal business hours to the Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own expenses in connection therewith unless the audit discloses any instance of Escrow Agent’s non-compliance with the terms and conditions of this Asphalt Overlay Agreement, in which case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable costs in expenses in connection therewith, including but not limited to the costs and expenses of any such Party(ies) employees, agents and consultants engaged in and/or performing the audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with any such audit. 8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by one of the following methods (“Term”): (a) TC-LLC has fulfilled all obligations of TC-LLC to contribute funds, the obligation of Town and TCMD to contribute funds is terminated, the Town assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in accordance with Section 6.6(b) of the Development Agreement and the Town and TCMD send written notification to Escrow Agent that the requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met, provides instructions for the release and disbursement of Funds, and includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate have been met and such agreement is thereby terminated; or, (b) the Town and TCMD provide a joint written notice to terminate this Asphalt Overlay Agreement, which is: (i) signed by Town and TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate; or (c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below. 9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after receiving joint written notice from the Town and TCMD that Asphalt Overlay Agreement may be terminated in accordance with Section 6.6(b) of the Development Agreement. The written notice shall include a statement that the Town assumes all responsibility and liability for future asphalt overlays in accordance with the terms of the Development Agreement and shall be copied to TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 6 of 14   notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below. 10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its obligations under this Asphalt Overlay Agreement as follows: (a) The Escrow Agent shall deliver a written and dated resignation to the other Parties. (b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of sixty (60) days from the date of the resignation or (ii) the date upon which Escrow Agent completes transfer of the Funds to the Successor EA (defined below) pursuant to Section 10(d). (c) It shall be joint duty of the Town and TCMD to promptly secure a Successor Escrow Agent (“Successor EA”) and notify the Escrow Agent of the name and address of the Successor EA no later than the effective date of Escrow Agent’s resignation under this Section 10. Town and TCMD agree to cooperate in a prompt, diligent and professional manner to secure a Successor EA. Town and TCMD each agree that consent and approval of a Successor EA shall not be unreasonably withheld. (d) The current Escrow Agent shall retain physical custody and control of the Funds until it receives (i) written notification by Town and TCMD of the name and address of the Successor EA, and (ii) written notification from the Successor EA stating that the Successor EA has accepted the appointment. Upon receipt of the written notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the Successor EA within three (3) business days. In the event that the Escrow Agent does not receive both the written notification from the Town and TCMD regarding the name and address of the Successor EA and the acceptance of the appointment by the Successor EA by the end of the sixtieth (60th) day after the date of the written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below. (e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA nor shall Escrow Agent have any liability for the failure of Town and TCMD to appoint a Successor EA. (f) Town shall promptly, but no later than ten (10) days from the effective date of the new agreement, forward a copy of the new executed asphalt overlay escrow agreement entered into by Town TCMD, and the Successor EA to the Escrow Agent. 11. Conflicting Claims. In the event of any disagreement between any of the Parties to this Asphalt Overlay Agreement, or between any of them and any other person, resulting in adverse claims or demands being made in connection with the matters covered by this Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 7 of 14   such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Escrow Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjudged and all doubt resolved by agreement amount all of the interested persons, and Escrow Agent shall have been notified thereof in writing signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow Agent is hereby authorized in its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative of all other rights which it may have by law or otherwise. 12. Indemnification. To the extent permitted by law, Town and TCMD, jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers, directors, employees, and agents from any and all “Claims” and “Losses” as defined in this Section 12., as a result of or in connection with the Escrow Agent’s acts under this Asphalt Overlay Agreement, other than claims made by Town and/or TCMD for gross negligence of Escrow Agent, or willful misconduct of Escrow Agent. (a) “Claims” shall mean all claims, lawsuits, causes of action, or other legal actions and proceedings of whatever nature brought against the Escrow Agent or any officer, director, employee, or agent, whether by way of direct action, counterclaim, cross action, or impleader, even if such claim is groundless, false, or fraudulent, so long as the claim, lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i) acts or omissions of Town or TCMD, (ii) appointment of the Escrow Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the Escrow Agent of its powers and duties under this Asphalt Overlay Agreement. (b) “Losses” shall mean losses, costs, damages, expenses, judgments, and liabilities of whatever nature (including, but not limited to, attorneys, accountants, and other professional’s fees, litigation and court costs and expenses, and amounts paid in settlement), directly or indirectly resulting from, arising out of, or relating to one or more Claims. Upon the written request of Escrow Agent or any officer, director, employee, or agent of Escrow Agent, Town and TCMD agree to jointly assume the investigation and defense of Escrow Agent against any Claims or Losses, including the employment of counsel acceptable to Escrow Agent and the payment of all expenses related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have the right, and Town and TCMD agree to pay the costs and expense, to employ separate counsel with respect to any such Claim and to participate in the investigation and defense thereof. Town, TCMD and Escrow Agent shall use all reasonable efforts to fully cooperate with each other in the defense of any Claims or Losses. 13. Notices. Any notice or communication, exclusive of periodic statements, required under this Asphalt Overlay Agreement between the Parties must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 8 of 14   or certified mail, the same shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section 13, designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: To Escrow Agent: FirstBank Escrow Services, LLC 1707 N Main St. Longmont, CO 80501 Attn: Carol Croft With a Required Copy to: To Town: Town of Avon P.O. Box 975 One Lake Street Avon, CO 81620 Attn: Town Manager With a Required Copy to: Town of Avon P.O. Box 975 One Lake Street Avon, CO 81620 Attn: Town Attorney To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby With a Required Copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203 Attn: Mary Jo Dougherty, Esq. 14. Funds Unencumbered. (a) Town and TCMD each warrant to the others that the respective Funds placed in the Asphalt Overlay Account are not subject to, nor will they become subject to, any claims of creditors of the Party contributing such Funds. Town and TCMD each agree that each Party will not use the Funds as security for any transaction, nor will Town or TCMD pledge the Funds or list the Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real or personal property. EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 9 of 14   (b) Town and TCMD each warrant that, during the term of this Asphalt Overlay Agreement, the Funds shall remain unencumbered by any legal interest that would violate the Asphalt Overlay Agreement. (c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any security interest exists in any Funds in the Asphalt Overlay Account. (d) The Escrow Agent will promptly notify the other Parties within two (2) business days if there is an attempt to encumber the Funds. 15. Third-Party Beneficiary. Nothing contained in this Asphalt Overlay Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third-party receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended beneficiary only. 16. Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of this Asphalt Overlay Agreement that require continued performance, compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party without the express written consent of the other Parties. Any written assignment shall expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved in writing, signed and notarized by the other Parties, and with respect to an assignment of a Party’s obligations or responsibilities shall be expressly assumed in writing by the assignee. Any attempted assignment without written consent by all other Parties to this Asphalt Overlay Agreement shall be void ab initio and unenforceable. 18. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town and TCMD are subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Asphalt Overlay Agreement to the contrary, all payment obligations of the Town and TCMD are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town’s and TCMD’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town and TCMD payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Town and of TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish, supplement or supersede the provisions in the Development Agreement concerning default EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 10 of 14   for non-payment of by Town and/or TCMD in the performance of their respective obligations to deposit Funds into the Asphalt Overlay Account. 19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Asphalt Overlay Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Asphalt Overlay Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Asphalt Overlay Agreement. 20. Construction and Interpretation. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Asphalt Overlay Agreement. If there is any conflict between the language of this Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt Overlay Agreement shall govern. If there is any conflict between the language of this Asphalt Overlay Agreement and the Development Agreement, then language in the Development Agreement shall control between the Town and TCMD, so long as such interpretation does not affect the rights or obligations of the Escrow Agent, and the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and any of the Parties. 21. No Waiver of Rights. A waiver by any Party to this Asphalt Overlay Agreement of the breach of any term or provision of this Asphalt Overlay Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. No covenant or term of this Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing signed by a person expressly authorized to sign such waiver for such Party and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. Notwithstanding any provision to the contrary in this Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protections provided to the Town and TCMD under the Colorado Governmental Immunity Act. 22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter herein, and is intended as the Parties’ final expression and complete and an exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. This Asphalt Overlay Agreement may be amended or modified only by an instrument in writing signed by all Parties with express approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement are incorporated herein by reference. 23. Force Majeure. Escrow Agent shall not be liable to the Town or TCMD for any loss or damage arising out of any acts of nature, strikes or transmission line failure, war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow Agent. EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 11 of 14   24. Calculation of Days. If the last day for any act, deadline, expiration of a right, or date to provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of Colorado as set forth in C.R.S. §24-11-101, then the next business day which is not a Saturday, Sunday or such legal holiday shall be deemed the last day. 25. Counterparts. This Asphalt Overlay 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. All joint written instructions from the Town and TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts. [SIGNATURE PAGE FOLLOWS] EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 12 of 14   IN WITNESS WHEREOF, Escrow Agent, Town and TCMD have executed this Asphalt Overlay Agreement as of the date first written above. THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE UNDERSIGNED PARTIES: Escrow Agent: FirstBank Escrow Services, LLC By:________________________ Carol Croft, Escrow Officer STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ________________ 2013, by _________________________________. Carol Croft, Escrow Officer WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires: EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 13 of 14   Town: Town of Avon, Colorado By:________________________ Attest:_________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ___________________ 2011, by Rich Carroll, Mayor. WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires: EXHIBIT A to Resolution 13-x Asphalt Overlay Agreement V11 – FINAL March 7, 2013 Page 14 of 14   Traer Creek Metropolitan District By:________________________ Dan Leary, President STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ____ day of ___________________ 2011, by Dan Leary, President Traer Creek Metropolitan District. WITNESS MY HAND AND OFFICIAL SEAL. _____________________________ NOTARY PUBLIC My commission expires: EXHIBIT A to Resolution 13-x Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 1 of 12 REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON, TRAER CREEK-RP LLC AND EMD-CM LLC FOR THE GRANT OF A REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE. 1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage (this “Agreement”) dated as of __________, 20____ (the “Execution Date”) are the Town of Avon, a home rule municipal corporation of the State of Colorado (the “Town” and a “Party”), Traer Creek-RP LLC, a Colorado limited liability company (“Traer Creek” a “Licensee” and a “Party”), and EMD-CM LLC, aka Trees of Colorado, a Colorado limited liability company (“EMD” a “Licensee” and a “Party”), together with Traer Creek, the “Licensees.” Within this Agreement, the “Parties” is the plural of the defined term “Party” but does not necessarily include all the parties (the Town, Traer Creek and EMD). 2.0 RECITALS AND PURPOSE. 2.1 The Town is the fee owner of certain property located in the Town of Avon, County of Eagle, State of Colorado, as more particularly described in EXHIBIT A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated herein by this reference (the “Property”); and 2.2 The Town and Traer Creek are also certain of the parties to that certain Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of ________________, 20___ and recorded on _____________, 20___ in the real property records of the Clerk and Recorder for Eagle County, Colorado (the “Records”) at Reception No. ___________ (the “Development Agreement”), which is hereby incorporated by this reference; and 2.3 Master Developer caused Traer Creek to convey the Property to the Town in accordance with Section 3.7(b) of the Development Agreement which provides that until such time that the Property is developed or improvements are constructed thereupon that would preclude use of the Property for snow storage, the Town and Master Developer (as “Master Developer” is defined in the Development Agreement) shall have the right to use the Property for snow storage; and 2.4 The Master Developer has the right to assign any portion of its rights under the Development Agreement to third parties acquiring an interest or estate in the Property pursuant to Section 8.11 of the Development Agreement and has elected to assign its rights to this Agreement to Traer Creek and EMD; and Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 2 of 12 2.5 The Town desires to grant, and the Licensees desire to accept, a revocable license for the purpose of snow storage upon the Property consistent with the terms of the Development Agreement. 3.0 LICENSE TERMS AND CONDITIONS. 3.1 Grant of License. The Town hereby grants to Licensees a revocable license for snow storage purposes (the “Snow Storage License”) on, over and upon the Property for the area depicted in EXHIBIT B: SNOW STORAGE AREA, which is subject to change pursuant to Section 3.7(b) of the Development Agreement. 3.2 Hazardous Materials. The applicable Licensee or Licensees agree to use reasonable commercial efforts to avoid the dumping or release of Hazardous Materials (defined below) on the Property, provided that the Town acknowledges and agrees that Licensees intend to store snow on the Property that has been removed from streets, drive lanes, parking lots and other paved vehicular travel and storage surfaces, and, in connection therewith, there may occur incidental dumping of the by-products of such surfaces and vehicles, such as petroleum, gasoline products, products associated with snow removal such as cinders and magnesium chloride. The term “Hazardous Materials” as used herein includes, without limitation, gasoline, petroleum products, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos or any material containing asbestos, or any other substance or material as may be defined as a hazardous or toxic substance by any Federal, state or local environmental law, ordinance, rule, or regulation including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section 1801, et seq.) the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.) and in the regulations adopted and publications promulgated pursuant thereto. 3.3 Term; Termination. This Agreement and the Snow Storage License granted to the Licensees hereby shall commence on the Effective Date (as “Effective Date” is defined in the Development Agreement) and terminate on the date the Property is so developed or such improvements are constructed thereupon that preclude use of the Property for snow storage (the “Snow Storage Termination Date”). Any and all improvements constructed on the Property are subject to approval by the Design Review Board (as defined in the Development Agreement) pursuant to the terms of the Development Agreement. Pursuant to paragraph 5 below, the Town shall give the Licensees sixty (60) days prior written notice of the Town’s commencement of development or commencement of construction of such improvements on the Property that preclude use of the Property for snow storage. The Town’s notice of termination in any given year must be received by Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 3 of 12 September 30, so that the Licensees can enter into contracts for snow storage for the upcoming snow season. For clarification purposes, grading the Property does not in itself make the Property unsuitable for snow storage use. The Snow Storage License may be earlier revoked only if the Town Council of the Town has made a legislative determination at a duly noticed public hearing that revocation of the Snow Storage License is necessary to protect the public health, safety and welfare of the Town; provided, however, the Town shall give the Licensees written notice specifying the nature of public health, safety and welfare concern and the Licensees shall have 30 days from such written notice to cure or correct such concern (or such longer time as is reasonably necessary to cure or correct such concern so long as the Licensees have in good faith commenced and are diligently pursuing efforts to correct the condition specified in such notice). If the Licensees fail to cure or correct such concern within such timeframe, the Town shall thereafter give Licensees written notice of revocation of the Snow Storage License. The Town may summarily suspend the Snow Storage License granted to Licensees if Licensees dump or release Hazardous Materials in excess of incidental dumping of the by-products of streets, drive lanes, parking lots and other paved vehicular travel and storage surfaces and vehicles as described in paragraph 3.2 above until such time as Licensees repair the damage caused by such dumping or release of Hazardous Materials or the Town takes legislative action to revoke the Snow Storage License according to the procedures stated in this paragraph 3.3. From and after the Snow Storage Termination Date, the Licensees shall have no right to use the Property for snow storage purposes, the Snow Storage License shall automatically be revoked and this Agreement shall terminate and be of no further force or effect, provided that Licensees’ obligation to repair any damage to the Property caused by Licensees as set forth in paragraph 3.5 below shall survive the termination of this Agreement. 3.4 Indemnity. To the extent permitted by law, the applicable Licensee or Licensees expressly agree to, and shall, indemnify and hold harmless the Town, as licensor, and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including reasonable costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation (collectively, the “Claims”), in connection with or arising out of any act or omission by the Licensees or any of their respective employees, agents, partners, or lessees, in exercising their rights under this Agreement; provided, however, such indemnity and hold harmless shall not extend to any Claims in connection with or arising out of the negligence or willful misconduct of the Town. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensees shall, to the extent permitted by law, indemnify the Town from all Claims in connection with or arising out of any claim in whole or in part that all or any portion of the snow storage permitted by this Agreement constitutes a dangerous and/or unsafe condition within a public right-of-way; provided, however, such indemnity shall not extend to any Claims in connection with or arising out of the negligence or Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 4 of 12 willful misconduct of the Town. Notwithstanding the foregoing, EMD shall have no liability for any Claims arising by or through the actions or inactions of Traer Creek and Traer Creek shall have no liability for any Claims arising by or through the actions or inactions of EMD and the Town agrees to look solely to the applicable Licensee hereunder with respect to any Claim and hold harmless hereunder the other Licensee not the cause of the Claim. 3.5 Damage; Environmental Conditions. During the term of this Agreement, the applicable Licensee or Licensees shall promptly repair, at no cost to the Town, any damage caused by the applicable Licensee or Licensees to the Property and improvements thereon, including without limitation, the dumping or release of Hazardous Materials, and shall return the Property and such improvements to the condition existing immediately prior to the occurrence of the damage. In no event, however, shall the Town claim the Property or the improvements thereon are damaged due to the dumping or release of Hazardous Materials associated with the snow dumping operation, unless the Town can prove such dumping or release of Hazardous Materials are in excess of what is considered commercially reasonable. Upon termination of this Agreement, the applicable Licensee or Licensees agree to repair, at no cost to the Town, any damage to the Property caused by the Licensees, including without limitation, removal and/or remediation of any Hazardous Materials placed on the Property by the applicable Licensee or Licensees, and the Town hereby grants an encroachment license to Licensees for the limited purpose of performing such repair, removal and clean up, if any, which encroachment license shall survive termination of this Agreement. Notwithstanding the foregoing, Traer Creek shall have no liability for any damage arising by or through the actions or inactions of EMD and EMD shall have no liability for any damage arising by or through the actions or inactions of Traer Creek and the Town agrees to look solely to the applicable Licensee hereunder with respect to any damage and hold the other Licensee that did not cause the damage harmless hereunder. 3.6 Insurance. The applicable Licensee or Licensees agree to procure and maintain, at their own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the Property in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured.” However, the applicable Licensee or Licensees’ failure to take such steps to obtain such insurance shall not waive, affect, or impair any obligation of the applicable Licensee or Licensees to indemnify or hold the Town harmless in accordance with this Agreement. If applicable, Licensees agree to apportion the cost of any such insurance between them on a commercially reasonable basis. 4.0 ASSIGNMENT. This Agreement shall not be assigned by any of the Parties without the prior written consent of all the Parties, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, Traer Creek and EMD shall have the right to assign or transfer all or any portion of their respective interests, rights or obligations under this Agreement to any related parties or any third parties acquiring an interest or Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 5 of 12 estate in the property legally described in Exhibit A to the Development Agreement, and generally known as The Village (at Avon), including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within such property, provided that to the extent Traer Creek or EMD assigns or transfers any of their respective obligations under this Agreement, the assignee/assignees or transferee/transferees of such obligations shall expressly assume such obligations. The express assumption of any of Traer Creek’s or EMD’s respective obligations under this Agreement by their respective assignee/assignees or transferee/transferees shall thereby relieve Traer Creek and EMD of any further obligations under this Agreement with respect to the matter so assumed. Additionally, and under the same terms and conditions just outlined, Traer Creek or EMD may assign or transfer their respective rights herein to any successors in interest, heirs, assigns, transferees, etc. 5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a Party desires or is required to give to the other Parties shall be in writing and either personally delivered, sent by registered or certified United States mail, postage prepaid, or sent by overnight courier. 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 registered or certified United States mail, postage prepaid, return receipt requested, three (3) business days after mailed. Notices shall be addressed as follows (or to such other address as may be subsequently specified by notice given in accordance herewith): To Traer Creek: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: 970.949.6776 To EMD: EMD-CM LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: EMD Limited Liability Company, Manager Telephone: 970.949.6776 With Copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers, Esq. Telephone: 303.825.8400 With Copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers, Esq. Telephone: 303.825.8400 To Town: Town of Avon With Copy to: Town of Avon Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 6 of 12 P.O. Box 975 One Lake Street Avon, CO 81620 Attn: Town Manager Telephone: 970.748.4000 P.O. Box 975 One Lake Street Avon, CO 81620 Attn: Town Attorney Telephone: 970.748.4000 6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between the Parties as to the subject matter of this Agreement and no prior representations or statements, verbal or written, shall modify, supplement or change the terms of this Agreement. This Agreement may not be amended, modified or supplemented except in writing executed by all the Parties (or their successors or assigns, as applicable). 7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. 8.0 WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful misconduct of the Town, it is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the Snow Storage License granted by this Agreement and that the risk of loss, liability, obligation, damages, and claims associated with the Snow Storage License shall be borne by the Licensees. This Agreement does not confer upon the Licensees any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. In addition, it is the intent of this Agreement to be consistent with the terms of the Development Agreement to provide for snow storage for Licensees, as so bargained for in the Development Agreement and in this Agreement. 11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of their respective Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority. Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 7 of 12 12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below, in the event that a Party institutes an action or proceeding for a declaration of rights of the Parties under this Agreement, for injunctive relief, for an alleged breach or default of this Agreement, or any other action arising out of this Agreement, or the transactions contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs and attorney’s fees. 13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed under the laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the State District Court in and for the County of Eagle, Colorado. Each Party shall also have the right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe, the applicable Parties agree to submit any disputes under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding resolution in accordance with the Colorado Uniform Arbitration Act. 14.0 RECORDING. This Agreement may be recorded by any Party in the Records. 15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership exists between Traer Creek, EMD and the Town, and nothing contained in this Agreement shall be construed as making Traer Creek, EMD and/or the Town joint venturers or partners. 16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be construed to create any third party beneficiaries or confer any rights on any person or entity not named as a party hereto. [signature pages follow] Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 8 of 12 IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this Agreement as of the Effective Date. TOWN: Town of Avon, a home rule municipal corporation of the State of Colorado By: ____________________________ Attest:_________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk Town of Avon Approved as to Form: Eric Heil, Esq., Town Attorney STATE OF COLORADO ) ) ss. COUNTY OF ______________ ) The foregoing instrument was acknowledged before me this ______ day of _____________, 20___, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town of Avon, a home rule municipal corporation of the State of Colorado. (SEAL) Notary Public Commission Expires: Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 9 of 12 LICENSEES: TRAER CREEK: Traer Creek-RP LLC, a Colorado limited liability company By: Traer Creek LLC, a Colorado limited liability company, its Manager By: ________________________________ Marcus Lindholm, Manager STATE OF COLORADO ) ) ss. COUNTY OF ______________ ) The foregoing instrument was acknowledged before me this ______ day of _____________, 20___, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company. (SEAL) Notary Public Commission Expires: Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 10 of 12 LICENSEES (continued): EMD: EMD-CM LLC, a Colorado limited liability company By: EMD Limited Liability Company, a Colorado limited liability company, its Manager By: Lava Corporation, a Colorado corporation, its Manager By: ________________________________ Michael Lindholm, President STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was acknowledged before me this _____ day of _____________, 20___, personally by Michael Lindholm as President of Lava Corporation, a Colorado corporation. (SEAL) Notary Public Commission Expires: Traer EMD Revisions_20130225 Revocable License Agreement for Snow Storage Feb. 25, 2013 Page 1 of 12 EXHIBIT A Legal Description of the Property Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1, Eagle County, Colorado. Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 2 of 12 EXHIBIT B Snow Storage Area Village (at Avon) Process Flows Financial and Land Based Water Related Village Metro District (VMD) Public Improvement Company (PIC) Buffalo Ridge Traer Creek Metro District (TCMD) Agreements/Documents Town of Avon Master Developer/Owner Eagle Vail Metro District Asphalt Overlay Bond Documents 3/15/2013 Created by Town of Avon 2 Traer Creek Project Revenue Flow Chart Existing Agreements MIXED-USE & COMMERCIAL PICS – CREDIT PIF •Retail Sales Fee (4%) •Lodging Fee (4%) •Real Estate Transfer Fee (2%) The Village Metro District (VMD) •Property Tax •Specific Ownership Tax Town of Avon (TOA) •4% Sales Tax on 4% Credit PIF •Town Property Tax Traer Creek Metro District (TCMD) REVENUE BOND FUND BOND REQUIREMENTS TCMD •O&M Costs: $900, 000 from Bond Fund + Developer O&M Advances •Capital Costs: Developer Capital Advances & Additional Bonds Town of Avon Municipal Services Payment Sales Tax Indemnity Payments LOC, Trustee & Custodian Fees Interest (variable) & Principal Payments Debt Service Reserve ($1,894,000 required) Pledged Revenue Reserve Account Tap Fees EAGLE-VAIL Metro District (EVMD) 80% 20% Land Owner (Master Developer) •Capital Advances •O&M Advances Reimbursements of Advances BUFFALO RIDGE Town of Avon Land Owner (Master Developer) Sign Documents 1. 1998 Development Agreement (Annexation) 2. 1998 PUD Guide Required to create 1. Metro Districts (by Service Plan) 2. Public Improvement Companies (PIC’s) (by Declarations) Traer Creek Metro District (Issues Bonds) Mixed Use PIC 1998 Development Agreement requires affordable housing (i.e.: Buffalo Ridge) This is the connection to the Buffalo Ridge slide Concurrently with Development Agreement and PUD Guide being signed: Service Plans 1. TCMD Resolution 98-50 2. VMD Resolution 98-51 Village Metro District (Levy Tax) Commercial PIC Fee Assignment Servicing Agreement 8/8/02 (two separate agreements, same title) 1. Property tax imposition and tax remittance to TCMD and VMD Facilities Funding, Construction and Operations Agreement 7/31/01 (Between VMD and TCMD) TOA Tax Credit Obligation (from Development Agreement) TCMD Infrastructure Funded by 2002 and 2004 Bonds This is the connection to this slide Assessed and Collected by PIC’s Use Fee (could impose) Accommodations Fee Retail Sales Fee Real Estate Transfer Fee Imposed, collected, and remitted to TCMD 1. TOA provides a tax credit SO LONG AS PIC’s impose and collect a fee for the payment any District's obligations. (Commercial PIC and Mixed Use PIC – no overlap in areas) 2. TOA still collects tax if PIC does not collect. This is the connection to the 2012 Financial Agreements Village (at Avon) 1998 Agreements Requires remittance of net property taxes collected by VMD to TCMD Assess and Collect Fees Use Fee (could impose) Accommodations Fee Retail Sales Fee Real Estate Transfer Fee TCMD BOND FUND CUSTODIAN Indenture of Trust provides flow of funds All but $900K to Debt Service Balance back to TCMD TOA sponsors Buffalo Ridge Housing Authority TOA to receive 68 units once paid 3/15/2013 Created by Town of Avon 3 Town of Avon Master Developer (Land Owner) TCMD CARADA – Article 6 Financing Plan LIMITED PARTIES Avon URA EMD Commercial PIC Mixed Use PIC Provides Tax Credit $96M in Principal Owed (see below for itemized list) Once principal is issued and repaid, TOA has satisfied the tax credit obligation 2002 and 2004 Bonds = $51M Refinanced at variable rate ($35M + $16M) Water Storage Tank = New financing $9M Past Developer Advances = $12M Supplemental Bonds = $24M 1. CARADA 6.9 (d) Right of Review $3.5M at 1.5% (simple interest) $8.5M at 8% (simple interest) 1. Developer Advances repayment begins once refinanced bonds are paid off $3M reserve required – This is the connection to the 2012 Village at Avon Parties Flow of Funds Chart Must issue by 2040 or lose right to TOA’s tax credit Assessed and Collected by PIC’s Use Fee (could impose) Accommodations Fee Retail Sales Fee Real Estate Transfer Fee Imposed, collected, and remitted to TCMD 2012 Financial Agreements To the extent issued on or before January 1, 2040, the Net Proceeds of Supplemental Bonds (including Master Developer contributions to the Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF Revenues). CARADA 6.2 (b) (iv) 3/15/2013 Created by Town of Avon 4 1. TOA provides a tax credit SO LONG AS there is an outstanding obligation for repayment of a maximum of $96 million principal of qualified District debt. (Commercial PIC and Mixed Use PIC – no overlap in areas) 2. TOA still collects tax if PIC does not collect. This is the connection to the Village (at Avon)1998 Agreements 2012 Village (at Avon) Parties Flow of Funds Chart MIXED-USE and COMMERCIAL PICS CREDIT PIF 1.Retail Sales Fee (RSF) (4%) 2.Use Fee (If TOA imposes a Use Tax) 3.Accommodations Fee (4%) 4.Real Estate Transfer Fee (2%) VMD 1. Property Tax A. State Statute B. Up to 50 mils 2. VMD Service Plan A. Original 1998 B. Amend. to VMD Service Plan/Approving Resolution by TOA 3. Specific Ownership Tax A. State Statute Town of Avon 1. 4% Sales Tax on 0.75% add on RSF and 4% existing RSF A. CARADA 2. Town Property Tax A. State Statute TCMD BOND FUND CUSTODIAN TCMD 1. O&M Costs: $450,000 per year (net of deposits into UERWA Bond Fund & Asphalt Overlay Account) A. CARADA 2. Capital Costs: Developer Advances & Supplemental Bonds B. CARADA Town of Avon Tap Fees 1. 1999 1st Amended Water Service and Tap Fee Allocation Agreement 2. 2001 Assignment and Assumption of Water Service Agreement and Related Water Rights EVMD Master Developer (Land Owner) Capital Advances MIXED-USE and COMMERCIAL PICS 0.75% ADD-ON RSF 1. Retail Sales Fee (RSF) 2. Village PIC A. CARADA B. 2nd Amend. Comm. PIF Covenants C. Amend. to Mixed Use PIF Covenants D. Add-On Retail Sales Fee Collection Services Agreement UERWA $500,000 for Storage Tank Project Bonds 80% 20% Asphalt Overlay Account 1. Asphalt Overlay Escrow Agreement 2. Resolution No. 13-XX Approving Agreement (TBD) 3. CARADA This is the connection to the Asphalt Over Agreement TCMD Bond Reissue CARADA 6.9 (a) Deferred BNP LOC Fees and Deferred Amortization CARADA 6.9 (b) (iii) $120,000/yrs.1-5 $75,000 thereafter 1. CARADA 6.6 (a), (b) $80,000 yrs. 1-5 1. CARADA 6.6(a), (b) $40,000 yrs. 1-5 $75,000 thereafter 1. Bond Docs 2. CARADA 6.6 (a), (b) 1. CARADA 2. Declarations 3. Fee Assignment Servicing Agreement 8/8/02 4. Bond Documents 1. Pledge Agreement (Water Storage Tank Project) Bond Docs – not completed yet Bond Docs – not completed yet Then once $120,000 is met 1. CARADA 6.6 (a), (b) Town Operation and Maintenance Obligations 1. CARADA 4.1 and 4.2 (c) 1. Facilities Funding, Construction and Operations Agreement 7/31/01 Sweep Prepayment of TCMD Bond Reissue CARADA 6.9 (b) (v) (A) Annual Debt Service Obligation CARADA 6.9 (b) (i) Other Allowed O&M Expenses CARADA 6.9 (b) (ii) TCMD Bond Reissue CARADA 6.9 (b) (iii) Other Obligations of TCMD Supplemental Bonds, Cure Payments, Past Developer Advances and Avon Receivable CARADA 6.9 (b) (v) (B) Direct Payment of Capital Project Costs CARADA 6.9 (b)(v)(C) Fl o w o f F u n d s 3/15/2013 Created by Town of Avon 5 Master Developer (Land Owner) TCMD ASPHALT OVERLAY ACCOUNT (In Town’s Name) 1. Asphalt Overlay Escrow Agreement 2. Resolution No. 13-XX Approving Agreement (TBD) 3. CARADA Town of Avon Upon TOA and TCMD mutual approval – monies are distributed to be used for roads in Village Agreement Terminates Upon - CARADA 6.6 (b) 1. $20 million in all taxable transactions OR 2. 80,000 sq. ft. of new additional commercial built MIXED-USE & COMMERCIAL PICS 0.75% ADD-ON PIF 1. Retail Sales Fee 2. Village PIC A. CARADA B. 2nd Amend. Comm. PIF Covenants C. Amend. to Mixed Use PIF Covenants D. Add-On Retail Sales Fee Collection Services Agreement Town of Avon Asphalt Overlay Agreement $120,000/yrs.1-5 $75,000 thereafter until Agreement Termination 1. CARADA 6.6 (a), (b) Then once $120,000 is met CARADA 6.6 (a), (b) $80,000 yrs. 1-5 1. CARADA 6.6 (a), (b) $40,000 yrs. 1-5 $75,000 thereafter until Agreement Termination 1. Bond Docs 2. CARADA 6.6 (a), (b) 3/15/2013 Created by Town of Avon 6 Add-On Retail Sales Fee (RSF) CD – Commercial Declaration MUD – Mixed-Use Declaration 1.5.2(b) Obligation to impose Add-On RSF 2.5.3(c) Developer cooperation to establish Add-On RSF 3.5.5 Obligation Traer Creek-RP to establish Add-On RSF 4.Def. 6: Add-On RSF is the rate set forth in 6.4(b) 5.6.4(b) 0.75% a)Increase in TOA’s sales tax rate reduces the 0.75% Municipal Payment b)Except for specific project 1.Not to exceed 30 years and for a specific Capital Project 1.Commercial PIC Covenants 2.Mixed Use PIC Covenant 3.7.4 CD/9.4 MUD Retail Sales Fee defined as a)Credit RSF b)Add-On RSF 1.SDMS = agent to collect and remit a)Commercial PIC b)Mixed Use PIC c)Town of Avon 2. Collect from Village Vendors and remit to TOA 3. Connects to Asphalt Overlay Agreement 4. 7.5(c) CD/9.5(c) MUD Add-On RSF Rate defined as rate set forth in Section 6.4(b) of the Development Agreement. 5. 7.11 CD/9.11 MUD Town has right to enforce payment of Add-On RSF directly against property owners and leasehold owners in the Village (at Avon). 6. 13.3 CD/16.3 PICs cannot amend Declarations or Add-On RSF Collection Services Agreement without Town consent in any manner which would impair ability of PIC to collect and remit the portion of Add-On RSF Revenues which comprise Municipal Payments. CARADA Declarations Add-On RSF Collection Services Agreement 3/15/2013 Created by Town of Avon 7 2013 TCMD and VMD Service Plan Town of Avon Governing Jurisdiction (Approves Service Plan and Amendments) Traer Creek Metro District Control District UERWA Service Area District Sign Document Construction and Finance IGA Agreement Service Plan Elements 1. TOA – governing jurisdiction that approves Service Plan and Amendments 2. Description of Services – Able to do anything a Title 32 District is allowed A. “Applicable Town Standards and Specifications” shall mean those Town standards and specifications which are applicable and are not in conflict with standards and/or specifications set forth in the Development Plan. B. Construction and Finance IGA Agreement between TCMD and UERWA 3. Estimated Cost Facilities A. Prioritized Capital Projects 4. O&M Costs 5. IGA – This is the connection to the 2013 TCMD and VMD Service Plan IGA’s 6. Financial Plan A. Debt Limit $158M 7. PIF/Tax Credit Obligation not to exceed $96M A. New issuance of bonds submitted to TOA 20 days prior for administrative review 3/15/2013 Created by Town of Avon 8 3/15/2013 Created by Town of Avon 9 Traer Creek Metro District (TCMD) Village Metro District (VMD) 2013 TCMD and VMD Service Plan – IGA’s 1.2000-2001 Operation and Funding Agreement 12/13/00 2.2002 Operation and Funding Agreement 01/01/02 3.2003 Operation and Funding Agreement 01/01/03 4.2004 Operation and Funding Agreement 01/01/04 5.2006 Operation and Funding Agreement 01/01/06 6.2007 Operation and Funding Agreement 11/30/06 7.2008 Operation and Funding Agreement 12/14/07 8.Facilities Funding, Construction and Operations Agreement 07/31/01 9.Amended and Restated Reimbursement Agreement – BNP 06/01/04 10.Amended and Restated Custodial Agreement 06/01/04 1.With TOA A.Subdivision Improvements Agreement 11/13/01 B.Annexation and Development Agreement 10/13/98 C.Annexation, Development and Subdivision Improvement Agreement 10/23/01 D.Subdivision Improvements Agreement 06/08/04 E.Nottingham-Puder Ditch Repair, Maintenance and Management Agreement 06/27/06 1.With TOA and EMD LLC A.Agreement for Payment Concerning the Nottingham and Puder Ditch 11/24/09 1.With UERWA and TOA A.Water Service Agreement 05/15/97 B.Letter Agreement 03/19/08 1.With UERWA A.Agreement for Payment of Costs of Water Storage Tank Design 03/02/12 1.With EVMD, TOA, UERWA A.Agreement 11/04/02 B.Tap Fee Allocation Agreement 05/15/97 1.With Eagle River Water and Sanitation District (ERW&SD) A.Incremental Sewer Tap Fee Agreement 11/19/98 B.Water Main Bill of Sale 03/21/07 C.Sewer Main Bill of Sale 03/21/07 D.Letter Agreement 12/06/07 E.Sewer Main Bill of Sale 12/20/07 1.With United States of America A.U.S. Department of Agriculture Forest Service Public Road Easement 05/03/02 1.With Colorado River Water Conservation District A.Water Supply Contract 02/03/03 1.With Federal Highway Administration A.Letter Agreement 05/27/03 1.With TOA, BNP Paribas, Traer Creek LLC, Traer Creek Plaza LLC, EMD LLC, Tracer Creek- HD LLC, and Traer Creek-WMT LLC A.Settlement Term Sheet 10/07/11 2002 and 2004 Bonds 2002 Bonds 2004 Bonds TCMD issues bonds Bonds for $35M to fund Capital Improvements: Phase 1 Street Network (Filing 1) Tract E Park Storm, Sewer and Water Facilities Funding, Construction and Operations Agreement 7/31/01 (Between VMD and TCMD) TCMD issues bonds Bonds for $16M to fund Capital Improvements: Tract E Park Flagpole Nottingham Dam Swift Gulch Rd Lot 2 Garage Tract N Grading Nottingham-Puder Ditch Buffalo Ridge 1 Buffalo Ridge 2 Lot 1 Sewer Main Traer Creek Run Water Tanks Wetlands TCMD Infrastructure Funded by 2002 and 2004 Bonds This is the connection the to Village (at Avon) 1998 Agreements 3/15/2013 Created by Town of Avon 10 TCMD Reissues Bonds 1. CARADA 6.2 (b) (i) 2. TOA has right to review and approve bond documents prior to reissue CARADA 6.9 (a) 2013 Bonds Source and Use Gross Bonds Proceeds 1. Approximate $46M Redemption of 2002 ($____) and 2004 ($____) Bonds $3M Require Reserve Bond Issuance Cost UERWA Issues Water Tank Bonds - $9M Gross Proceeds 1. TOA has right to review and approve bond documents prior to reissue CARADA 6.9(a) Construction Escrow Bond Issuance Cost Paid to UERWA 3/15/2013 Created by Town of Avon 11 Buffalo Ridge Affordable Housing Corporation 1998 Development Agreement requires affordable housing * Buffalo Ridge I Affordable Housing Corporation Organized – 10/31/2001 1. TOA has one invitational seat on Board (no legal obligation) Build and operate an apartment project under Section 221(d)(4) of the national Housing Act. Includes 68 units and operates as Buffalo Ridge Apartments I Amended and Restated Articles of Incorporation – All property of Buffalo Ridge is owned for the benefit of TOA and upon dissolution of all property remaining after the payment of liabilities shall be transferred to TOA. 05/01/02 - $10,315,000 Multifamily Housing Project Revenue Bonds were issued to provide funds to finance acquiring, constructing, equipping and furnishing a multifamily residential rental housing facility comprised of 68 units to be owned by the Corporation. Buffalo Ridge II, LLLP Limited Liability Limited Partnership organized under Colorado Laws 12/28/01 Build and operate an apartment project under Section 221(d)(4) of the national Housing Act. Includes 176 units and operates as Buffalo Ridge Apartments II 05/01/02 - $15,650,000 Multifamily Housing Project Revenue Bonds were issued to provide funds to finance acquiring, constructing, equipping and furnishing a multifamily residential rental housing facility comprised of 176 units to be owned by Buffalo Ridge II, LLLP. Buffalo Ridge Apartments 1. 244 Total Units Constructed 2. 256 Units Remaining 3. 23 Additional Units if Commercial reaches 825K *1. PUD Guide Section I.15 - 500 units required A. I.15(c) restrictions B. Priority of residency is inconsistent with the Bond Revenue Docs – to be addressed in the future 3/15/2013 Created by Town of Avon 12 Village (at Avon) Water Service Agreements Current Parties: TOA, TCMD, EVMD, UERWA 3/15/2013 Created by Town of Avon 13 1. A. 1997 Water Service Agreement 1. EVMD sponsored property owned by EMD LLC into UERWA 2. Paragraphs 1 and 2(a) (UERWA will provide water service) 3. Paragraph 1(b) – EMD LLC (now TCMD) shall have equal treatment 4. EMD LLC, UERWA, EVMD – parties in agreement to provide service B. 1999 First Amended Water Service and Tap Fee Allocation Agreement 1. Paragraph 2B – Avon accepts EVMD responsibilities (except revenue sharing of tap fees) 2. Sponsorship transferred to TOA and EVMD (EVMD retained revenue equal to 20% tap fees) 3. EMD LLC, EVMD, UERWA, TOA as parties C. 2001 Assignment and Assumption of Water Service Agreement and Related Water Rights 1. 2002 agreement Recitals K and L – EMD LLC, TOA, TCMD, UERWA as parties 2. Assigns obligations from EMD LLC to TCMD 2. A. Water Rights - Traer Creek Water Storage Tank Agreement 1. 180.6 AC/FT of consumptive use conveyed to UERWA on day of settlement a. Paragraph 7 – Raw water irrigation 74.3 AC-FT; Domestic Water 106.3 AC-FT 2. Raw Water O&M Agreement – TBD 3. A. Storage Tank 1. Traer Creek Water Storage Tank Agreement a. UERWA has obligation to build 2M GAL tank b. UERWA obligation to provide water service to Village c. TCMD obligation to provide funds to build tank d. Tank site conveyed to UERWA via Special Warranty Deed; Paragraph 11 4. A. Water Tap Fees 1. 80% to TCMD, 20% to EVMD 2. 1999 First Amended Water Service and Tap Fee Allocation Agreement - Paragraph 3B 3. 2001 Assignment and Assumption of Water Service Agreement and Related Water Rights a. Assigns 80% tap fee from EMD LLC to TCMD 5. A. Infrastructure (everything outside Water Tank) 1. 1997 Water Service Agreement – Paragraph 5 and 6 2. TCMD constructs distribution system 3. Dedicated to UERWA after completion 4. UERWA maintains 5/15/97 Water Service Agreement 5/15/97 Water Tap Allocation Agreement 1/1/98 Amended and Restated Master Service Contract 11/19/98 Incremental Sewer Tap Fee Agreement 6/22/99 First Amended to Water Service and Tap Fee Allocation Agreement *Amends sections of both 1997 agreements 11/29/01 Assignment and Assumption of Water Service Agreement and Related Water Rights *EMD assigns obligations to TCMD *EMD assigns obligations, rights, duties to Traer Creek, LLC *Traer Creek, LLC assigns obligations, rights duties to TCMD 12/19/01 TCMD Water Service Resolution 12/19/01 TCMD Sewer Service Resolution 11/4/02 Agreement *Dedicated required increment additional water rights *Parties: EVMD, TOA, UERWA, TCMD TBD Traer Creek Water Storage Tank Agreement *Supersedes portions of the 1997 Water Service Agreement *Village Water Decree TBD Village (at Avon) Raw Water System Operations and Maintenance Agreement TBD Nottingham Dam Easement 1997 2013 Village (at Avon) Timeline of Water Service Agreements Current Parties: TOA, TCMD, EVMD, UERWA 3/15/2013 Created by Town of Avon 14 Village (at Avon) Amended PUD Guide – 11/21/12 Town of Avon Land Owner (Developer) Signed Documents 1. 1998 Development Agreement (Annexation) 2. 1998 PUD Guide Amended PUD Guide – signed 11/21/12 1.825K Total permitted Commercial density 2.2,400 Dwelling Units (500 affordable) *244 constructed(Buffalo Ridge) Administrative Subdivision Review *Approved by Director *Only Planning Areas A, B, C, D, E, F and J Interim Uses *Acknowledges continuance of uses that pre-existed 2012 (E.g. Rodeo, recycling facility, agricultural, etc.) Required Street Connections *Council Review if altered *Validated by Traffic Study Parking Regulations *Supersede TOA Regulations *Shared Parking/Structure Provisions PUD Master Plan Map *Planning Areas = Zone Districts *Street Networks Park Provisions *Planning Areas P-1, P-2, P-3 & Pocket Parks *Additional 5.8 Acres required in addition to above *Minimum Park Standards PUD Amendments *Administrative vs. formal process Design Review Board (DRB) *Approval certified by DRB President *Hotel Design Standards *One member from TOA PZC Special Review Use (SRU) *PZC Approves w/ Public Hearing Wildlife Mitigation *Wildlife Mitigation Fund AMC Exemptions *Lighting Standards *Landscaping *Sign Code 3/15/2013 Created by Town of Avon 15 PZC Appointments March 26, 2013 Town Council Work Session Page 1 of 1 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Matt Pielsticker, Planner II Date: March 20, 2013 Agenda Topic: PZC Appointment Process Summary This Memorandum is to provide Council with an update on the upcoming Planning and Zoning Commissioner (“PZC”) term expirations and process for interviews, including solicitation and selection. Three (3) positions on the PZC will expire on May 1, 2013. Interviews and appointments of members to the PZC will be included on Town Council’s April 23rd Agenda. Expiring Terms (5/1/13 Term Expiration): Chris Green Architect, Ago Studios / Non-Resident Paul Anderson Engineer, Marcin Engineering / Non-Resident James Clancy Patroller, Beaver Creek & Construction Professional / Resident Continuing Terms (5/1/14 Term Expiration): Timothy Losa Architect, Zehren & Associates / Non-Resident Phil Struve Retired (Technology Management) / Resident Scott Prince Home Mortgage Consultant, Wells Fargo Bank / Resident John Minervini Retired (Currently teaching Business at CMC) / Resident Interview Process In order to solicit interested candidates, a press release was issued on Tuesday, March 19th and the vacancy notice was also listed on the Town’s website a week earlier. Additionally, the posting was recently listed on the Town’s Facebook page for additional exposure. A deadline for application submittals is set for April 16th. Applications will be provided in the April 23rd Council packet. Interviews of the applicants will take place during the Work Session, followed by voting during the Regular Meeting. The Council typically has voted to appoint new PZC members through open voting. Ballets are provided by the Town Clerk, and after voting takes place, the Town Clerk states for the record who each Council member voted for, with a final tabulation announced. The candidates with the top number of votes become PZC members. Municipal Code Requirements The Avon Municipal Code (‘AMC”) requires that at least five (5) PZC members shall be registered electors of the Town at the time of their appointment. The AMC also recommends that a minimum of two (2) to three (3) industry professionals hold positions at all times, and that two (2) of these professionals be architects, landscape architects or designers. After consideration has been given first to industry professionals, the Avon Municipal Code states that Council should then consider the following criteria in descending order: 1. Registered electors of the Town shall be preferred over persons who are not registered electors. 2. Persons having special skills and experience of particular value to the Commission shall be. Hahnewald Barn March 26, 2013 Town Council Work Session Page 1 of 2 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Matt Pielsticker, Planner II Date: March 20, 2013 Agenda Topic: Hahnewald Barn – Historic Status Report Background On February 5, 2013, representatives from the Eagle River Water and Sanitation District (“ERWSD”) met with the Town to hold a Water Summit to identify matters of mutual interest. Several items were identified for resolution over the next year, including the request of ERWSD to remove the Hahnewald Barn (“the Barn”) from their property. ERWSD wants to remove or relocate the Barn by no later than October, 2013 in order to better utilize the property. The Barn is located at the Wastewater Treatment Plant, and has been used for storage purposes since ERWSD acquired the property in 1985. The Town agreed to provide ERWSD with a Historic Status Report on the Barn in April, 2013. Historic Landmark Designation The Barn is not listed as a Historic Landmark at the local, state, or national level. The Town does not have any historic preservation regulations or criteria that would limit the ERWSD from applying for a Town demolition or removal approval for the structure. The Town had a Historic Preservation Ordinance in effect from 2007-2010 and appointed members to the Town of Avon Historic Preservation Committee (“Committee”). During that period, twelve sites or structures in Avon were identified as having historic interest. The Nottingham Waterwheel was designated as a Historic Landmark; no other properties received a designation. In 2010, the Hahnewald Barn Historic Background and Field Analysis (Field Analysis) was completed by a historic preservation consultant, who was retained by the Town. The Field Analysis found historic significance despite changes that had taken place over the years, i.e. new roof material and design. In summary, the Barn is at least 100 years old and is one of the only remnants of Avon’s agricultural heritage dating back to the early 20th century. The complete Field Analysis is attached to this report When the Avon Development Code (“ADC”) was codified in November, 2010, the then existing procedures related to the establishment of a Historic Preservation and the procedures for nominating properties or structures for listing were inadvertently removed from the Municipal Code. This was brought to the attention of the Town Council by the Committee, and Council ultimately directed staff to start the process to re-establish these procedures and related regulations. With higher work priorities assigned to planning staff since then, this work has not been completed. At this time, therefore, the ADC does not include historic sites or structures designation procedures. The Committee has not been meeting, absent the supporting regulatory procedures; but is still enabled under the establishing resolution which set-up the Historic Preservation Committee. Hahnewald Barn March 26, 2013 Town Council Work Session Page 2 of 2 Town of Avon Process for Barn Removal or Demolition If ERWSD desires to demolish or remove the Barn from the property, a demolition permit must first be obtained from the Avon Building Department. The permit process requires stormwater control measures and dust suppression, and a clear reclamation plan or reconstruction plan once the structure is removed. The Town does not have other criteria, including historic preservation, to apply in reviewing the application for approval. A demolition permit can typically be obtained within fourteen (14) days from the time of application submittal. One structure, the Red House, owned by Vail Resorts, was listed as one of the twelve site or structures. It was approved for demolition last year. Council Action The Council’s adopted 2013 Work Plan, which implements the 2013-14 Strategic Plan includes notification to the ERWSD on the historic and relocation status of the Hahnewald Barn by April 1st. Council is requested to provide direction on this determination prior to reporting findings to the ERSWD. Attachment Hahnewald Barn Historic Background and Field Analysis (December 22, 2010) Tatanka Historical Associates Inc. Bringing the Past to Life Historical Background and Field Analysis HAHNEWALD BARN Eagle River Water & Sanitation District 950 W. Beaver Creek Blvd. Avon, Colorado Completed by Tatanka Historical Associates, Inc. 612 S. College Ave., Suite 21 Fort Collins, CO 80524 tatanka@verinet.com 970.221.1095 22 December 2010 Tatanka Historical Associates Inc. Bringing the Past to Life Tatanka Historical Associates, Inc. 612 S. College Ave., P.O. Box 1909 Fort Collins, Colorado 80524 tatanka@verinet.com 970.221.1095 22 December 2010 Matt Pielsticker Town of Avon Planning Department P.O. Box 975 Avon, CO 81620 Subject: Historical Background & Analysis Hahnewald Barn Dear Matt, In response to a request from Avon’s Historic Preservation Committee, Tatanka Historical Associates Inc. has completed its historical research and field analysis of the Hahnewald Barn in Avon. Please accept the following report, which presents the results of this study. Sincerely, Ron Sladek President 1 Tatanka Historical Associates Inc. Bringing the Past to Life Hahnewald Barn Eagle River Water & Sanitation District 950 W. Beaver Creek Blvd. Avon, Colorado Location, Setting, Use & Ownership The Hahnewald Barn is located on the north bank of the Eagle River, within a complex of buildings owned and operated by the Eagle River Water & Sanitation District. It is reached by way of an east-west access road known as Millie’s Lane that extends toward the east from W. Beaver Creek Blvd. and ends at the fenced, restricted access Water & Sanitation District property. The barn is located close to the river, in the southwest corner of the complex. It is surrounded by the Water & Sanitation District yard and buildings to the north and east; the Eagle River to the south; and a residential complex to the west. The building is currently used for storage. The yard area to the south of the barn is filled with piles of sand and gravel. Despite several requests, the Water & Sanitation District denied access to the barn. Consequently, the description and analysis found in this report had to be completed by viewing the building from Nottingham Park to the north and from across the Eagle River to the south. Despite these limitations, a reasonably adequate amount of information was obtained about the building. Future up- close inspection of the barn is likely to reveal additional information about its construction. Description of the Barn The Hahnewald Barn is a large wood frame building with a rectangular footprint. Measurements could not be obtained. It rests upon a raised concrete foundation that rises at least five feet above grade. The barn faces toward the west, although it appears to have a lower level entry on the north that is currently in use. The size and configuration of the barn suggests that it consists of either two or three levels on the interior. The lower level(s) would have historically housed livestock and farm equipment, and the upper level would have been used as a hayloft. On the exterior, the building’s walls are constructed of old, if not original, board and batten siding. The west elevation of the barn contains an entry into the lower level of the building. This entrance pierces the concrete foundation, and holds a pair of horizontal wood-plank doors with wood surrounds. A large handicap access 2 Tatanka Historical Associates Inc. Bringing the Past to Life symbol is painted on one of these doors. The concrete foundation along this elevation is angled along the top. Flanking the entry are two small windows, also set into the concrete foundation. One of these is boarded closed, and the other (near the southwest corner of the barn) is infilled with boards and a modern electric meter. Conduit rises upward from this meter, piercing the wall at a point just below the eave. The upper area of the west elevation holds a large hayloft door constructed of vertical wood planks. Centered above this is the projecting end of the hay rail. Two small windows are present in the upper wall. One of these holds a four-light window, and the other is boarded closed. The north and east elevations could not be documented because views were blocked by vegetation and buildings. View of the Barn from the Southwest. West and South Elevations. The south elevation is dominated by its raised concrete foundation, above which is the building’s board and batten wall. There are no entries on this elevation. A series of windows that are boarded closed are located along the length of the foundation wall. The wood wall above holds what appear to be two small windows that may also be boarded closed. Two broken lines of horizontal boards are found on the wall. One set is located just below the halfway point, and the other is just below the eaves. These may mark the locations of interior floors in the building, suggesting that there could be three levels rather than two. The barn’s roof is gabled with a clipped end on the west, and hipped on the east. It is finished with modern standing seam metal paneling. Standing along the ridgeline are three box-shaped ventilators. These are constructed of wood, with 3 Tatanka Historical Associates Inc. Bringing the Past to Life board and batten siding on the east and west, and louvers on the north and south. They each have a gabled standing seam metal roof. Alterations to the Barn While the historic Barn appears to be in good condition, it has been altered with one evident non-historic change. This involved replacement of what was probably a wood shingle roof with the standing seam metal roof that is found there today. This appears to have been completed during the past two decades. The current roof is bright and highly reflective. While functional, it detracts from the historic appearance of the building. In addition, several of the windows have been boarded closed. While this is an alteration, it does not appear to have damaged the building and can be reversed. Since it was not possible to inspect the building up close, or to see the north and east elevations, other changes that might have taken place there are currently unknown. View of the Barn from the Southeast. South Elevation. Historical Background The history of the Hahnewald Barn was assembled through a combination of archival research and interviews. A bibliography of the sources consulted is found at the end of this document. Constructed sometime between 1900 and 1910, the barn was originally owned by Albert and Frances Hahnewald. The couple arrived in the Avon area around that time and established a ranch along the north bank of the Eagle River. In the early 1980s, the log residence associated with the farmstead was moved a short 4 Tatanka Historical Associates Inc. Bringing the Past to Life distance to the north. This remains standing today along the southeast shore of Nottingham Lake. The fate of other farmstead buildings is unknown. Albert Hahnewald was born in Germany in 1867 and immigrated to the United States in 1881. His wife Frances was from Fredricksburg, Texas, a German immigrant town in the hill country where the couple appears to have met and married. They had three children and by the mid-1890s were living in Leadville, where Albert worked as a saloonkeeper. He had several brothers in the area who were engaged in mining and ranching. The family also owned the Colorado Bakery, which in addition to baked goods sold groceries, produce and confections. Albert and Frances left Leadville sometime between 1900 and 1910 and resettled down the Eagle River in the Avon area, where they acquired 160 acres in the vicinity of today’s Nottingham Lake. It appears that Albert’s father may have purchased the land and left it to his sons following his death. There the Hahnewalds constructed a log home and a large barn that formed the nucleus of a farmstead where they spent the following years raising livestock and growing feed crops such as grains and hay. The ranch operated under the corporate name Hahnewald Land & Livestock Co., and ran cattle from Red Canyon on the west to Gore Creek on the east. The Hahnewalds soon acquired additional acreage closer to Edwards, and it appears that by 1917 they had moved onto that property. In 1920 alone, the ranch operation produced more than 700 tons of hay. The following year, Albert participated in the formation of the Avon Stockgrowers’ Association. With twenty- six initial members, the organization elected Hahnewald secretary-treasurer. Albert died sometime around 1924. Paul Frederick Kroelling acquired the Avon property from the Hahnewalds in 1915 and moved his family there. He was born in Germany in 1864 and immigrated to the United States in 1889, where he settled in Leadville. In 1892, Paul married Anna Winters, who was also a native of Germany. They had two children, one of whom (Frederick) lived to adulthood. By the mid-1890s, the Kroellings were still residing in Leadville, where Paul owned a butcher shop and was a member of the volunteer fire department. They remained in Leadville until 1915, when they moved down the Eagle River to Avon. In October 1917, the Kroellings were busy harvesting ninety acres that they had planted with crops. This included twelve acres of potatoes producing two hundred sacks to an acre, thirty acres of oats, and the remainder in hay to feed their livestock. Much of the hay was likely stored in the large hayloft in their barn. The cattle were pastured on the property as well as along the Piney Divide. In 1921, Paul Kroelling was elected vice-president of the newly formed Avon Stockgrowers’ Association. During the 1920s, the Kroellings added head lettuce to the crops grown on their ranch. Paul died in 1938 on his Avon ranch and was buried in Leadville. Anna moved back to Leadville following her husband’s 5 Tatanka Historical Associates Inc. Bringing the Past to Life death. She passed on there in 1950. Their son Fred became a long-time resident of Carbondale. Around 1949, the former Hahnewald-Kroelling ranch was purchased by Allan Nottingham, a son of Harry A. Nottingham. He moved into the home there with his wife and children, and the family remained on the ranch until around 1972. During that time, Allan continued to operate the ranch. He eventually donated the land for Avon’s water treatment plant. Allan served on Avon’s first town council and was mayor for twelve years. In 1985, the historic ranchstead was dismantled, except for the barn, to make room for the Eagle River Water & Sanitation District’s water treatment plant. The large historic barn was left in place and converted into a storage facility. It remained standing for the next twenty-five years, and at around one hundred years old is still in use today for the same purpose. Conclusions Based upon the findings of this project, the following conclusions are made regarding the building:  The Hahnewald Barn is an important early 20th century remnant of the Avon community and its agricultural heritage. It was an essential part of the farmstead established between 1900 and 1910 by Albert and Frances Hahnewald on the north side of the Eagle River. From 1915 to 1938, the ranch was owned by, and served as the home of, Paul and Anna Kroelling. Both of these pioneer families lived in Leadville from the late 1800s to the early 1900s, and then migrated down the Eagle River into the Avon area to establish themselves as ranchers and farmers. In doing so, they followed a pattern of settlement that was common to the years immediately following the mining era. From around 1949 to 1972, the family of Allan Nottingham owned the farm. The Nottinghams were also prominent pioneers in the Avon area, and have been actively involved in civic affairs there through the present time. Allan was a town council member and served as Avon mayor for twelve years. Due to the barn’s history of ownership and use, it should probably be known as the Hahnewald-Kroelling-Nottingham Barn. This lengthy name could be shortened to just the “Hahnewald Barn” in recognition of the family that originally had it constructed. However, while the varied and important contributions of the Nottingham family to the settlement and development of Avon are well known and recognized, the lengthier name for this barn would allow the community to celebrate two more of Avon’s pioneer families. 6 Tatanka Historical Associates Inc. Bringing the Past to Life  Although the building is presumably in relatively good condition, access to the barn was not provided during the course of this study. Consequently, the building could not be inspected to determine more about its construction, uses, alterations, and condition. Alterations that could be observed were limited to changes to the roof and windows. The bright, reflective metal roof and boarded windows appear to be non-historic alterations, and have moderately diminished the building’s architectural integrity. Because of these changes, combined with a loss of integrity to the setting, the barn is unlikely to be eligible for National or State Register designation. However, it is a good candidate for local listing.  The Eagle River Water & Sanitation District has owned and maintained the barn since acquiring the property around 1985. It views the building as a large utility shed, and does not appear to be interested in any effort to document, landmark, or restore the barn. It would be helpful if the City could eventually convince the District to at least allow access for further inspection and documentation of this important resource, the single largest historic building that survives in Avon. Bibliography Carbonate Chronicle (Leadville) “The officers elected are as follows...” 22 April 1901, p. 2 “Society.” 4 September 1911, p. 6 Eagle Valley Enterprise “Brand Directory.” 18 August 1916, p. 4 “Brand Directory.” 1 March 1918, p. 4 “Albert Hahnewald was down from the ranch…” 28 January 1921, p. 5 “Stockgrowers of Avon District Form Association.” 25 March 1921, p. 4 “Obbie Hahnewald Commits Suicide.” 20 August 1926, p. 1 “Frances Hahnewald Buried in Denver.” 16 March 1950, p. 1 “Eagle County Farmers Are Still Busy.” 19 October 1917, p. 1 “Paul Hahnewald Dies,” 12 November 1937, p. 1 “Paul Kroelling one of the…” 24 February 1922, p. 5 “P. F. Kroelling Dies.” 13 July 1938 “Paul Kroelling.” 22 July 1938, p. 1 “Anna Kroelling.” 27 July 1950, p. 1 Hart, Bobby. Bob-O’s Turn in Avon, Colorado. Bloomington, IN: AuthorHouse, 2005. Leadville Daily Chronicle 7 Tatanka Historical Associates Inc. Bringing the Past to Life “The Colorado Bakery.” (advertisement) 26 May 1894, p. 3 “The Exciting Adventure of Two Young Men Who Went to the Woods.” 23 December 1897, p. 4 Nottingham, Allan. Interview with Ron Sladek. Conducted on 18 December 2009. United States Census Records. Lake County, Colorado, 1900 & 1910. United States Census Records. Eagle County, Colorado, 1910 & 1920.