TC Council Packet 04-09-2013TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, APRIL 9, 2013
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
FINAL Avon Council Meeting 13 04 099
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PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN TODD GOULDING
BOARD MEMBERS 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 LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. PUBLIC HEARING FOR REPORT OF CHANGES ON MODIFICATION OF PREMISES
4.1. Northside Coffee & Kitchen LLC d/b/a Northside Coffee & Kitchen, 20 Nottingham Road (Units A & C),
Hotel and Restaurant Liquor License
5. CONSENT AGENDA
5.1. Minutes from February 12, 2013
6. ADJOURNMENT
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, FEBRUARY 12, 2013
MEETING BEGINS AT 3:30 PM
AVON TOWN HALL, ONE LAKE STREET
1) CALL TO ORDER AND ROLL CALL
Chairman Rich Carroll called the meeting to order at 3:40 PM. A roll call was taken and Council
members present were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, Buz Reynolds and
Jake Wolf. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town
Manager/Town Clerk Patty McKenny, Finance Director Scott Wright, Town Engineer Justin Hildreth,
Recreation Director Meryl Jacobs, Community Relations Officer Jaime Walker, as well as other staff
members and the public.
2) APPROVAL OF AGENDA
There were no changes to the agenda.
3) PUBLIC COMMENT
There were no comments made by the public.
4) RENEWAL LIQUOR LICENSES
1) 7-Eleven, Inc. d/b/a 7-Eleven 34209, 008 Nottingham Road, Manager: Maria Portarescu, 3.2% Beer
Retail Off Premises Liquor License for 7-Eleven, Inc. d/b/a 7-Eleven 34209.
Town Clerk Patty McKenny noted that the application for renewal of the license was in order.
Council Dantas moved to approve the 3.2% Beer Retail Off Premises Liquor License; Councilor Evans
seconded the motion and it passed unanimously.
2) Debbie Marquez Restaurants, LLC, d/b/a Café de Luna by Debbie Marquez, 47 E. Beaver Creek
Blvd, Manager: Debbie Marquez, Hotel & Restaurant Liquor License
Town Clerk Patty McKenny noted that the application for renewal of the license was in order.
Council Evans moved to approve the Hotel & Restaurant Liquor License; Councilor Wolf seconded
the motion and it passed unanimously.
3) Fiesta Jalisco Numero Tres, LLC, d/b/a Fiesta Jalisco, 240 Chapel Place B129, Manager: Ricardo
Aragon, Hotel & Restaurant Liquor License
Town Clerk Patty McKenny noted that the application for renewal of the license was in order.
Council Evans moved to approve the Hotel & Restaurant Liquor License; Councilor Wolf seconded
the motion and it passed unanimously.
1) CONSENT AGENDA
a) Minutes from January 8, 2012
Mayor Pro Tem Goulding moved to approve the minutes; Councilor Reynolds seconded the motion
and it passed unanimously.
There being no further business to come before the Board, the meeting adjourned at 3:45 PM.
RESPECTFULLY SUBMITTED:
____________________________________
Patty McKenny, Secretary
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, FEBRUARY 12, 2013
MEETING BEGINS AT 3:30 PM
AVON TOWN HALL, ONE LAKE STREET
APPROVED:
Rich Carroll ______________________________________
Dave Dantas ______________________________________
Chris Evans ______________________________________
Jennie Fancher ______________________________________
Todd Goulding ______________________________________
Albert “Buz” Reynolds ______________________________________
Jake Wolf ______________________________________
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, APRIL 9, 2013
MEETING BEGINS AT 6:00 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.04.09
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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
2. ROLL CALL
3. APPROVAL OF AGENDA
4. PUBLIC COMMENT
5. ACTION ITEMS
5.1. Approval of Minutes from March 12 and March 26, 2013
5.2. Fireworks Production Contract between Western Enterprises and Town of Avon For purchase of
Salute USA Fireworks (Danita Dempsey, Special Events Supervisor)
5.3. Action by Motion and Vote to approve CenturyLink Metro Ethernet Contracts (Cindy Kershaw, IT
Administrator)
5.4. Resolution 13–12, Series of 2013, Resolution Revising the Fees Schedule for Construction Work Within
Public Right-of-Way, Town of Avon, Eagle County, Colorado (Gary Padilla, Road and Bridge
Superintendent)
5.5. Public Hearing on Second Reading of Ordinance 13-05, Ordinance Approving A Minor PUD
Amendment and Minor Subdivision for Wildridge Point on Lots 33 and 34, Block 4, Wildridge
Subdivision Town of Avon Eagle County Colorado (Jared Barnes, Planner II)
5.6. Action by motion and vote on Planning and Zoning Commission Recommendations:
5.6.1. Commence an Application by Town Council to Amend the Text of the Municipal Code on
Various Sections (Matt Pielsticker, Senior Planner)
5.6.2. Planning and Zoning Commission Rules of Procedure (Jared Barnes, Planner II)
5.7. Village at Avon Settlement (Eric Heil, Town Attorney)
5.7.1. Update on Settlement Implementation
5.7.2. Resolution No. 13-13, Series of 2013, Resolution Approving the Add-On Retail Sales Fee
Collection Services Agreement
5.7.3. Approval by Motion of Amendments to Declarations for the Commercial Public Improvement
Company and Mixed-Use Public Improvement Company
6. WORK SESSION
6.1. Direction on Post Boulevard Clean Up by Town Parks and Road and Bridge Divisions (Virginia Egger,
Town Manager)
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, APRIL 9, 2013
MEETING BEGINS AT 6:00 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.04.09
Page 3
6.2. Report on 1st Quarter Strategic Plan Work & Update, as warranted, of 2nd, 3rd and 4th Quarters
(Virginia Egger, Town Manager)
6.3. Committee Meeting Updates: Councilors and Mayor
6.3.1. EGE Air Alliance
6.3.2. UERWA Board Meeting
6.3.3. Regional Collaboration
6.4. Council Comments
6.5. Mayor Report: Future Agenda Items
7. ADJOURNMENT
FUTURE COUNCIL AGENDA FOR APRIL 23, 2013 & PROPOSED TOPICS:
Village at Avon Settlement Documents; I-70 Lease Space Term Sheet, US 6 Highway Shoulders Funding Request,
PZC Interviews and Selection
TOWN OF AVON, COLORADO
MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY MARCH 12, 2013
MEETING BEGINS AT 5:40 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 12, 2013
Page 1 of 4
CALL TO ORDER AND ROLL CALL
Mayor Rich Carroll called the meeting to order at 5:40 PM. A roll call was taken and Council members
present were Dave Dantas, Jennie Fancher, Todd Goulding, Buz Reynolds and Jake Wolf. Chris Evans was
absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Deputy Town Clerk
Debbie Hoppe, Town Engineer Justin Hildreth, Community Relations Officer Jaime Walker, as well as other
staff members and the public.
APPROVAL OF AGENDA
There were no changes to the agenda.
WORK SESSION
a) I-70 REGIONAL TRANSPORTATION OPERATIONS FACILITY – UPDATE AND USE OF CONTINGENCY FUND TO CONSTRUCT
A 4,000 SQUARE FOOT MEZZANINE FOR ADMINISTRATION USES
Justin Hildreth, Town Engineer, presented the agenda item addressing the I-70 Regional Transportation
Operations Facility. The update given by Justin was that most of the site work is completed and the building
has gone vertical. The slab has five of the six pours have been completed. The project has gone quite well
through the winter conditions and the project remains within budget. There have been some cost savings
because subcontractors have come in lower than expected and there were also savings on design fees.
After some discussion, the Town Council directed staff to continue to move forward with the construction of
the mezzanine level of the facility.
b) EAGLE COUNTY COMMISSIONERS DISCUSSION
Mayor Carroll welcomed the Eagle County Commissioners to Avon including John Stavney, Sara Fisher, Jill
Ryan; introductions were made.
i) I-70 Regional Transportation Operations Facility at Swift Gulch Update
Virginia Egger, Town Manager, presented the work agenda; I-70 Regional Transportation Operations Facility
at Swift Gulch Update, Review Highway 6 Construction Project for Shoulder Expansion and Request for
Funding Assistance and Management of West Avon Parcel with completion of the Eagle Valley Land
Exchange. It was noted this is the opportunity to review and exchange information and update the group in
terms of next steps moving forward. It was noted that with the earlier presentation by Town Engineer
Justin Hildreth provided the update status on the construction of the facility, as well as the progress being
made on the term sheet for the space lease. There will be a review of office space rental amounts as well as
a review of offering a discount for fleet maintenance tied to the vehicles stored in the facility. The town
looks forward to working with Eagle County to lease space.
ii) Review Highway 6 Construction Project for Shoulder Expansion and Request for Funding
Assistance
Mayor Carroll presented the Highway 6 Construction Project to be completed this summer by CDOT, a
proposal for an overlay project on US 6 from Avon to Edwards. Eva Wilson, Eagle County Engineer, noted
that CDOT is looking for multiple funding partners for this project based on the location of the construction
of the shoulder widening, including Eagle County, Edwards and Avon. It was noted that the Town was asked
to contribute toward the $114,521 for highway segments that approximate to Avon’s town limits. It was
hoped the town would respond no later than the end of April. The town currently does not have this
funding budgeted in 2013, and it was noted that the CIP fund was under review and updates for other items
TOWN OF AVON, COLORADO
MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY MARCH 12, 2013
MEETING BEGINS AT 5:40 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 12, 2013
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not budgeted, i.e. lake liner construction, Lettuce Shed Lane improvements. The town would provide a
response at the end of April
iii) Management of West Avon Parcel with completion of the Eagle Valley Land Exchange
It was noted that this topic was included to provide an update that the Town would work in concert with
Eagle County and the Eagle Valley Land Trust to ensure that the “Management Plan”, a document that is
part of the documents to be approved in the multi-party land exchange, would be given attention by its
Recreation & Parks Department. It was also noted that the town would work toward recommending to
council such improvements it would deem necessary for the West Avon Parcel as delineated in the West
Avon Open Space management Plan dated December 2012.
c) EAGLE COUNTY PRESENTATION – ECO TRANSIT SPINE FEEDER AND CIRCULATOR BUS SYSTEM
Kelley Collier, ECO Transit Director, presented the ECO Transit Spine Feeder & Circulator Bus System Report.
She asked the key question of “how do we do more with less” in light of the fact that ECO needs to increase
transit service with the economic downturn. She noted some of the following highlights:
The ridership demands were there
There was 34% less revenue, so we needed to change the way we do business
A consulting firm TransitPlus was hired to complete a Spine circulator feasible study for this area
An analysis of existing services and travel patterns shows travel patterns dictate that most support
service will need to be local service on Highway 6.
Challenges exist, with a need for a transit facility in Edwards, results in high level of transfers.
The goal is to move more passengers more rapidly up and down the valley.
Spine service can serve broad trip needs with minimum of resources, easy to understand and positions
region for development of transit in I-70 corridor.
Local/Express combo serves existing travelers well in Edwards to Vail corridor.
Few transfers and good travel times, will smooth the transition to a spine network.
It was noted that the service recommendations was to develop a spine network on I-70, supported by a
combination of local service types.
It was noted that the next steps would be to meet with Towns and Metro Districts to present initial findings
with some public input about an Operational Plan and try to determine facilities needed at each hub. She
noted that ECO would continue to dialogue with the Town on many of these transit matters.
PUBLIC COMMENT
Holy Cross Powder Hounds snowmobile club representatives Mark Roebke and Lance Trujillo asked the
Town Council to consider the concern over the recent winter closure of Forest Service Road 779 at the
top of Wildridge. As noted, that access point is important to many Avon residents and is an asset to the
community. Mark requested a review of previous discussions between the Town of Avon and the Forest
Service concerning access through this road. Perhaps there are decisions, information or discussions the
current Forest Service staff (who are enforcing the closure) are not aware of.
ACTION ITEMS
a) Resolution No. 13-08, Series of 2013, Resolution Consenting to Upper Eagle Regional Water Authority
Increase in Base Rate
Tom Leonhart, Chairman for the Board of Directors of the Upper Eagle Regional Water Authority, presented
the proposed Base Rate Increase to accommodate the payment of Debt Service on the proposed Series 2013
TOWN OF AVON, COLORADO
MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY MARCH 12, 2013
MEETING BEGINS AT 5:40 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 12, 2013
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Revenue Bonds in the anticipated amount of $12,700,000 (the “Bonds”). He noted that the resulting base
rate that would support the bond would be somewhere between the amount of $3.00 & $3.20 fee per month
and would not become effective until 2014. It was noted that anytime the base rate increases above the
consumer price index of Denver and Boulder, the UERWA would need the support of each of the six
members of the authority. There was an overview provided about their capital projects moving forward.
Linn Brooks, General Manager of ERWSD, presented some details about the budget, the plant investment
fee as an impact fee, a summary about the operations budget, debt service costs and finally the capital costs.
It was noted that with a reduction in tap fees and aging facilities and other capital investments, the rate
increase is proposed. Further details about the proposal were provided in terms of customer impacts.
Mayor Pro Tem Goulding moved to approve Resolution No. 13-08, Series of 2013, Resolution Consenting to
Upper Eagle Regional Water Authority Increase in Base Rate; Councilor Reynolds seconded the motion and it
passed unanimously by those members present (Councilor Evans absent).
b) Approval of Performance Evaluation Process and Criteria for Town Manager (Rich Carroll, Mayor)
Mayor Carroll presented this matter with a review of the clean version and a redline version with some minor
changes. Mayor Pro Tem Golding thinks overall this is a great approach. After reviewing the document all
agreed that it seemed to be in sync with the town’s work plan program for 2013. Mayor Carroll moved to
adopt the Town Manager Performance Evaluation Criteria dated March 12, 2013; Councilor Reynolds
seconded the motion and it passed unanimously by those members present (Councilor Evans absent).
WORK SESSION – CONTINUED
a) Village at Avon Settlement Implementation Update (Eric Heil)
Eric Heil, Town Attorney, updated the Town Council with regard to the settlement implementation. He
noted that some of the documents would be ready to forward to Council by Friday. It was noted that the
service plans would not be ready at that time by ready March 26th. He continued with some estimated dates
for final documents over the next 30 days.
b) Regional Committee Meeting Updates: Councilors and Mayor
i) UERWA Meeting of February 28, 2013 (Mayor Pro Tem Goulding)
Mayor Pro Tem Golding updated Council about the UERWA meeting topics as follows: the bond issuance,
the changing out of meters, the Avon water summit meeting documenting issues between the Town and
Authority, Traer Creek matters related to outstanding documents, the approval of the Wyndham water
service agreement, pay in lieu with Wyndham, and finally the Mountain Star water tank update.
ii) Regional Collaboration Meeting of March 1, 2013 (Mayor Carroll)
Mayor Carroll presented an update on the regional collaboration meeting.
MAYOR REPORT
1) Future Agenda Items
Mayor Carroll asked that council members forward any agenda suggestions to him. It was noted that the
Council would meet with the PZC members at the 2/26/13 council meeting; an agenda for that joint meeting
would be drafted.
TOWN OF AVON, COLORADO
MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY MARCH 12, 2013
MEETING BEGINS AT 5:40 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 12, 2013
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There being no further business to come before the Council, the regular meeting adjourned at 9:00 PM.
RESPECTFULLY SUBMITTED:
_________________________________
Debbie Hoppe, Deputy Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Todd Goulding ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013
MEETING BEGINS AT 3:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 26, 2013
Page 1 of 5
1. CALL TO ORDER AND ROLL CALL
Mayor Carroll called the meeting to order at 5:35 PM. A roll call was taken and Council members present
were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, Buz Reynolds and Jake Wolf. 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, Community Relations
Officer Jaime Walker, as well as other staff members and the public.
2. APPROVAL OF AGENDA
There were no changes to the agenda.
3. PUBLIC COMMENT
There were no comments at this time.
4. ACTION ITEMS
4.1. Approval of Minutes from February 26, 2013
Mayor Carroll asked for a motion on the minutes. Councilor Dantas moved to approve the minutes;
Councilor Reynolds seconded the motion and it passed unanimously by those voting (Council Evans
abstained).
4.2. Request to Transfer Town of Avon Radio License to Eagle County per Letter to Federal
Communication Commission (Lt. Greg Daly)
It was noted that a request was made by the Police Department to execute a letter to the Federal
Communications Commission that would allow for the assignment of the Town of Avon license (Call Sign
WPRG237) from the Town to Eagle County in order to streamline management of the county wide system.
Councilor Fancher asked if the Town would be able to get another license in the future. Finance Director
Scott Wright noted that the town does have other licenses and that the transfer of this license would just
consolidate this frequency to the County oversight. Mayor Pro Tem Goulding moved to approve the letter to
the FCC that assigns the town’s license currently in the name of the Town (officially “Avon,Town of”, call
sign WPRG237) to Eagle County (officially “Eagle, County of”, Colorado). Councilor Evans seconded the
motion and it passed unanimously.
4.3. Wildridge Point Subdivision (Jared Barnes, Planner I)
4.3.1. Resolution 13-11, Series of 2013, Resolution 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
4.3.2. First Reading of Ordinance 13-05, Series of 2013, Ordinance Approving A Minor PUD
Amendment and Minor Subdivision for Wildridge Point on Lots 33 and 34, Block 4, Wildridge
Subdivision, Town of Avon, Eagle County, Colorado
Councilor Dantas recused himself at this time due to a conflict of interest. The Applicant, Dominic Mauriello
of Mauriello Planning Group, representing the owner, Mountain C.I. Holdings LTD, reviewed the submitted
Minor PUD Amendment, Minor Subdivision, and Variance Applications (“the Application”). It was noted that
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. His slideshow presentation addressed some of the following:
Review of PZC action & conditions with an explanation about the variance request
Review exact location of properties
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013
MEETING BEGINS AT 3:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 26, 2013
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Highlights of the application in terms of its impacts
Diagram of existing lots
Review of the duplex development scenario
Review of the proposed plat renamed Wildridge Point
Review of proposed plat showing the “no build easements”
Review of Family Development Scenario showing the proposed residence locations
Review of Building Footprints showing parking, retaining, and size of residences
Review of 3D views of residences
Review of Variance Applicability and basis for Resolution
Review of Precedent & Similar Approvals
Review of Zoning Analysis
Review of Public Benefits of Project
Jared Barnes, Planner I, noted that staff did not have additional comments to the presentation. The minor
subdivision was reviewed by staff and met all the requirements of the Avon Municipal Code. There was
some discussion about the merits of the application and the variance application. Council input was given at
this time with some questions about SFE requirements, density, and slope of the lots. Additional topics
discussed included addressing the density compared to the original PUD, the variance analysis, and support
of the project as a good fit for the neighborhood in moving from duplex to single family homes, and the
current market demand. Mayor Carroll opened the public hearing, no comments were made, and the
hearing was closed. There was some discussion addressing the subdivision process on the variance and
Town Attorney Eric Heil addressed the status of the variance requirement and how the current Municipal
Code addresses this PUD amendment. It was noted that this provision would likely be revised in the future.
There was further discussion about the technical aspect of the variance component of the application, and
whether or not the Town Council agrees to address the variance through action on the resolution. Again it
was noted that the PZC did not see the need to apply this to the application. It was noted that staff would
review the code since it would be likely that other similar applications would possibly be submitted, and
language revisions might be in order. Staff would return with some suggested code amendments that
would include this item.
Mayor Pro Tem Goulding moved to approve Resolution 13-11, Series of 2013, Resolution 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. Councilor Reynolds seconded the
motion and it passed unanimously by those present (Councilor Dantas recused due to conflict of interest).
Mayor Pro Tem Goulding moved to approve on first reading Ordinance 13-05, Series of 2013, Ordinance
Approving A Minor PUD Amendment and Minor Subdivision for Wildridge Point on Lots 33 and 34, Block 4,
Wildridge Subdivision, Town of Avon, Eagle County, Colorado. Councilor Reynolds seconded the motion and
it passed unanimously by those present (Councilor Dantas recused due to conflict of interest).
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)
Councilor Dantas returned to the meeting at this time. Scott Wright, Finance Director, presented the memo
that addressed the 2013 Capital Projects Fund Supplemental Budget Amendment with Resolution No. 13-09.
He highlighted the following items and related details that would be addressed in this budget amendment
and noted that there would be a net increase in expenditures of just over $10M:
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013
MEETING BEGINS AT 3:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 26, 2013
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Carryover of unexpended project budgets & associated revenues from 2012
Unanticipated projects that the original budget did not include in 2012
The delay of the Heat Recovery Expansion project to 2014 with a resulting reduction of the
expenditure
Revenues not realized in previous year for I-70 RTOF carried over
Transfer from Community Enhancement Fund were eliminated to balance the removal of the
expenditure
Reviewing to fund balances due to I-70 RTOF funding
Increase to RETT due to actual collections
Adjustment to URA fund in light of delay on mall improvements
Councilor Evans moved to approve Resolution 13-09, Series of 2013, Resolution to Amend the 2013 Avon
Capital Projects Fund Budget, 2013 Supplemental Budget Amendment. Councilor Dantas seconded the
motion and it passed unanimously.
4.5. Village at Avon Settlement implementation (Eric Heil, Town Attorney)
4.5.1. Update on Settlement Implementation
Town Attorney Eric Heil presented an update on the settlement implementation noting that some revisions
have been received for the “Add-on retail sales fee services agreement” and the declarations, but noting
new on the service plans. It was noted that bond documents should be forthcoming soon and the town
would be involved in a review of the documents, keeping in mind it is not the town’s bond issuance however.
Status conference report on 3/21, next schedule for 4/8; requested status conference every 2 weeks
4.5.2. Resolution No. 13- 10, Series of 2013, Resolution Repealing Resolution No. 12-30 and Re-
Approving the Asphalt Overlay Escrow Account Agreement
Town Attorney Eric Heil noted that this document was approved in December 2012. He noted that
subsequent to that approval the master developer was removed as a party to the escrow agreement, and
that the legal obligation to the master developer’s commitment was outlined in the development
agreement. The agreement sets forth various terms concerning the execution and deposit of documents
and agreements into escrow. Mayor Pro Tem Goulding moved to approve Resolution Repealing Resolution
No. 12-30 and Re-Approving the Asphalt Overlay Escrow Account Agreement. Councilor Evans seconded the
motion and it passed unanimously.
4.5.3. Approval by Motion of Revocable License Agreement for Snow Storage
Town Attorney Eric Heil noted that the License Agreement is a document that is a requirement of the
development agreement. He highlighted the parties that are part of the arrangement and then reviewed
several sections of the agreement including the “grant of the license, the hazardous materials section and
Exhibit B as the diagram noting the location. It was noted that the form of the agreement was approved by
the other parties. Councilor Evans moved to approve the Revocable License Agreement for Snow Storage.
Mayor Pro Tem Goulding seconded the motion and it passed unanimously.
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
Mayor Carroll presented this topic noting there would be another delay with the dates. He opened the
public hearing, no comments were made and the hearing was closed. Councilor Reynolds moved to
continue the public hearing and consideration of Resolution No. 13-02, Series of 2013, Approving
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013
MEETING BEGINS AT 3:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 26, 2013
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Amendments to Traer Creek Metropolitan District Service Plan to April 23, 2013. Mayor Pro Tem Goulding
seconded the motion and it passed unanimously.
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
Mayor Carroll presented this topic noting there would be another delay with the dates. Mayor Carroll
opened the public hearing, no comments were made and the hearing was closed. Councilor Evans moved to
continue the public hearing and consideration of Resolution No. 13-03, Series of 2013, Approving
Amendments to The Village Metropolitan District Service Plan to April 23, 2013. Councilor Wolf seconded the
motion and it passed unanimously.
5. WORK SESSION
5.1. Planning and Zoning Commission Appointments: Update on Upcoming PZC Appointment Process
(Matt Pielsticker, Planner II)
Mayor Carroll presented this topic in order to update the council about the process used for selecting the
PZC members. He reviewed the memo that described the number of vacancies, the posting for the position,
and the process for interviewing and selecting new members. Matt Pielsticker presented an update on
those members leaving and the applications received. There was council support of the process especially in
light of transparency when counting the votes.
5.2. Hahnewald Barn Report–Historic Status and Relocation Plan (Matt Pielsticker, Planner II)
Matt Pielsticker, Planner II, presented this topic with an update about a meeting on February 5, 2013, with
representatives from the Eagle River Water and Sanitation District (“ERWSD”) who met with the Town to
hold a Water Summit to identify matters of mutual interest. There was a request by ERWSD to remove the
Hahnewald Barn (“the Barn”) from their property no later than October, 2013 in order to better utilize the
property. He noted that the Barn is located at the Wastewater Treatment Plant, and has been used for
storage purposes since ERWSD acquired the property in 1985. There was some information presented in the
packet, the Historic Status Report on the Barn in April, 2013 that noted the Barn is not listed as a Historic
Landmark at the local, state, or national level and 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. A brief reference was made to the fact that the Town had a Historic Preservation
Ordinance in effect from 2007-2010 and that this language was inadvertently removed in the Code update.
Then 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. It was noted that the complete Field Analysis is attached to this report,
and some additional corresponded was presented by Linn Brooks & Jeanette Hix. There was some
discussion about the email from Jeanette Hix requesting the Town council not make any final decision about
the Hahnewald Barn, and that the Historic Committee requested more time to fully understand; the letter
was read into the record. There was discussion about who serves as the regulatory agencies on the building
as well as how to go about making the historical designation. It was agreed that both the Mayor and Town
Manager would contact ERWSD to inquire about the timeline to see if a further review of the barn could be
made, and Matt Pielsticker would follow up with commission members.
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013
MEETING BEGINS AT 3:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Town Council Meeting March 26, 2013
Page 5 of 5
5.3. Council Comments
Councilor Wolf informed Council about the a new effort from a movie production company hoping to
complete a documentary film on education at Avon Elementary School.
5.4. Mayor Report
5.4.1. Future Agenda Items
Mayor Carroll reviewed some topics for next meetings; and asked for any other input on agenda to let him
know.
5.5. Financial Matters – Sales and Accommodations Tax January 2013 (Report Only, Kelly Huitt, Budget
Analyst)
There was some discussion about what the “out of city” tax collections included.
There being no further business to come before the Council, the regular meeting adjourned at 7:15 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: Danita Dempsey – Special Events Supervisor
Date: April 4, 2013
Agenda Topic: Western Enterprises – Fireworks Production Contract
Summary:
Attached for signature is the contract with Western Enterprises, Attachment A and Addendum
No. 1 to facilitate the 2013 Salute to the USA fireworks display scheduled for Thursday, July 3.
In 2010, staff worked with Western Enterprises and the Fire Department to create an
“Attachment A” which helped to clarify the operational procedures for perimeter security,
discharge/display sites and responsibilities of each party. The “Attachment A” is being utilized
again for the 2013 Salute to the USA event.
In addition, the contract includes an “Addendum No.1” as recommended by the Town Attorney,
which contains standard municipal protection provisions.
Total cost of the Contract is $53,500, with a 5% discount available, if paid in full by April 20, 2013.
Town Manager Virginia Egger asked last month for this service to be bid, but we learned that it is
too late in the “season”, with larger fireworks orders already taking much of the stock. Bidding
time would likely reduce product availability. This service will be bid out next year in a timely
manner.
Attachments
2013 Western Enterprises Contract
Attachment A
Addendum No. 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Cindy Kershaw,IT Administrator
Scott Wright,Finance Director
Date: March 26,2013
Re: CenturyLink Metro Ethernet Contracts
Summary
Upon completion of the I-70 Regional Transportation Facility at the Swift Gulch location
there will be a larger demand for a corporate grade data and voice network at that facility. The
attached contracts are for CenturyLink Metro Ethernet connectivity. One port will provide
I OMbps of bandwidth from the Town Fall Municipal Building to the internet. The other port
will provide l OMbps of bandwidth between the Town Fall Municipal Building and the Swift
Gulch location for voice and data. These contracts are for a term of 36 months.
The Town's current infrastructure consists of one point-to-point T-1 connection for voice
traffic(1.5Mbps) and a line-of-sight wireless link for the data connection(8.66Mbps).
Increasing the Town's speed to and from the internet is necessary to support web access to
applications that reside at Town Fall, as well as supporting the Town's future push of backup
disaster recovery data to the cloud. As the Town begins to offer more and more applications
over the internet to our constituents, the more traffic we will have coming from our internet
connection from the outside in. In addition, more activity and data collection will be required
at the new I-70 Regional Transportation Facility and that will require greater speed for all of
their data needs. Additional phones throughout the facility will also increase the need for
more bandwidth.
Financial and Budgetary Implications
The upgrade of the internet connection to the CenturyLink Metro Ethernet connection will
eliminate one Comcast DSL internet connection that costs the Town $1,584 per year. The
existing T-1 connection will be eliminated and currently costs the Town$3,600 per year. The
yearly maintenance on the wireless link will also be eliminated and currently costs the Town
1,600 per year.
The connection to the internet for CenturyLink will cost the Town $9,864 per year and the
connection to Swift Gulch from the Town Fall will cost$7,452 per year.
Annual Costs
New CenturyLink Connection Muni Bldg. 91864
New CenturyLink Connection to Swift Gulch 71452
Savings from cancellation of existing T-1 link 3,600)
Savings from cancellation of Comcast DSL Internet 1,584)
Savings from cancellation of wireless maintenance 1,600)
Net change in annual costs 10 532
Recommendation:
It is my recommendation that the Town Council approved these contracts for the upgraded
corporate grade networking infrastructure with CenturyLink.
Attachments:
Page 2
CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
This interstate agreement ("Agreement") is between Qwest Corporation d/b/a CenturyLink QC including its subsidiary El Paso County
Telephone Company ("CenturyLink"), and Town of Avon ("Customer") and will become effective on the latest signature date (the
Agreement Effective Date"). CenturyLink Services are available only in CenturyLink's local service areas in the following states:
Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah,Washington,
and Wyoming. Using CenturyLink's electronic signature process for the Agreement is acceptable.
Town of Avon Qwest Corporation d/b/a CenturyLink QC
Authorized Signature Authorized Signature
Name Typed or Printed Name Typed or Printed
Title Title
Date Date
Customer's address for notices: P.O.. Box 975,Avon, CO 81620
Customer's facsimile number: 970-949-9139
Person designated for notices: General Counsel
1. Services. CenturyLink will provide, and Customer will purchase, the services ("Services") set forth in the service exhibits
Service Exhibits"). Customer understands the Agreement is for CenturyLink private line and advanced communications services
capable of transmitting 200 Kbps or greater in each direction and listed below. Services that are lower than 200 Kbps must be
purchased under separate contract or tariff. CenturyLink will provide Service for locations listed on the Pricing Attachment and when
adequate capacity is available. The Service Exhibits attached to the Agreement and incorporated by this reference as of the
Agreement Effective Date are shown below:
ATM CenturyLink Metro Optical Ethernet or Metro Ethernet
Optional Minimum Billing Level FR Metro Ethernet")
F-1 GeoMax o HDTV-Net
Self-Healing Network Service("SHNS") Synchronous Service Transport("SST")
Frame Relay("FR")Optical Wavelength Service
1.1 Jurisdiction. Customer understands that Service is an interstate telecommunications service, as defined by Federal
Communications Commission regulations and represents that during the Term, more than 10% of its usage will be interstate usage.
1.2 Construction. CenturyLink may assess separate Construction charges if facilities are not available to meet an order for Service
and CenturyLink constructs facilities under one or more of the following circumstances: (a) the amount of Customer's expected
payments over the term of the Agreement does not exceed CenturyLink's calculated cost of providing the Service plus its expected rate
of return; (b) Customer requests that Service be furnished using a type of facility, or via a route that CenturyLink would not normally
utilize in providing the requested Service; (c) more facilities are requested than would normally be required to satisfy an order; and
d)Customer requests that Construction be expedited, resulting in added cost to CenturyLink.
1.3 Expedite. Any Customer requests for CenturyLink to Expedite the delivery of Service before the standard or negotiated Service
Due Date will be deemed an expedited order and Expedite charges will apply. Upon CenturyLink's receipt of an Expedite request from
Customer, Customer and CenturyLink will mutually agree to a new Service Due Date.
1.4 Service Changes. Customer may add, move, or upgrade each Service in a Pricing Attachment via an Amendment to the
Agreement. New Service and any addition, move, or upgrade to existing Service is subject to the terms of the RSS in effect when the
Amendment to add, move, or upgrade existing Service is executed or for new Service when the new Service is installed. Existing terms
and conditions will continue to apply to existing Service. But if an RSS change results in a conflict with the terms and conditions
applicable to the Service, then Customer must agree to an amendment modifying the terms and conditions before CenturyLink will
provision the new Service or the additions, moves, or upgrades to existing Service.
1.5 Service Interruptions. Service interruption means a total disruption of the Service subject to restrictions and exclusions outlined
in an SLA or in the RSS. Services with a Service-specific SLA are subject to the credit for service interruptions contained in the
applicable SLA and described in the RSS posted at www.qwest.centurylink.com/legal. Services without a Service-specific SLA are
subject to the credit for service interruptions contained in the RSS. The credits outlined in the SLAs or RSS are Customer's sole and
exclusive remedy for interruptions of any kind to the Service. CenturyLink may, from time to time, suspend Service for routine
maintenance or rearrangement of facilities or equipment. CenturyLink will give advance notification of any such suspension of Service.
Such suspension of Service is not considered an out-of-service condition unless Service is not restored by the end of the period
specified in the notification.
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CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
1.6 Customer Responsibilities. Customer is responsible for the following:
a) On-Site Operations. All Customer operations concerning Service at Customer's premises will be performed at Customer's
expense, and Customer will be required to conform to all applicable specifications that CenturyLink may adopt as necessary to maintain
Service. Any special structural work required for supporting telecommunications facilities needed to provide Service on Customer's
premises will be provided only at Customer's expense.
b) Customer will properly use the Service. Customer will not itself or permit others to use the Service in ways it is not intended or
alter,tamper with, adjust, or repair the Service.
c) Installation, Maintenance,and Repair.
i) Customer will reasonably cooperate with CenturyLink or its agents to install, operate, maintain, or repair Service. Customer will
provide or secure at Customer's expense appropriate space and power and rights or licenses if CenturyLink must access the building of
Customer's premises to install, operate, or maintain Service or associated CenturyLink equipment. These items may include, for
example, rights to use or install pathways, shafts, risers, conduits, telephone closets, interior wiring, service areas, racks, cages, and
utility connections or entries required to reach point of termination. CenturyLink may refuse to install, maintain, or repair Services if any
condition on Customer's premises is unsafe or likely to cause injury.
ii) Customer is responsible for any facility or equipment repairs on Customer's side of the Demarcation Point. Customer may
request a technician dispatch for Service problems. Before dispatching a technician, CenturyLink will notify Customer of the dispatch
fee. CenturyLink will assess a dispatch fee if it determines the problem is on Customer's side of the Demarcation Point or was not
caused by CenturyLink's facilities or equipment on CenturyLink's side of the Demarcation Point.
iii) If a service interruption occurs due to Customer's failure to fulfill its obligations in this section, CenturyLink will be exempt from
meeting the specified SLAs for that service interruption.
2. Agreement Term. The Agreement will remain in effect as long as any Service is offered under it ("Agreement Term"). Should
all Services under the Agreement expire or terminate as contemplated by the Termination section of the Agreement, then the
Agreement will terminate.
3. Rates. Rates, including Rates for optional features or functions, are set forth in each Pricing Attachment for informational
purposes. Customer will receive the Rates in effect in the RSS on the Service Acceptance Date. CenturyLink will keep an archive of
the RSS Web pages listing Rates, including dates of Rate changes. Customer agrees that CenturyLink's archive is conclusive
evidence in the event of a dispute. CenturyLink reserves the right to modify rates and charges due to Regulatory Activity and will
provide as much prior written notice as practicable but not less than 14 calendar days' notice.
4. Payment.
4.1 Customer must pay CenturyLink all charges by the due date on the invoice if specified. Any amount not paid when due is
subject to a late payment charge of the lesser of 1.5% per month or the maximum rate allowed by law. In addition to payment of
charges for Services, Customer must pay CenturyLink any applicable Taxes assessed in connection with Services. Taxes may vary
and are subject to change. Customer may access its invoices and choose paperless invoices online through CenturyLink Control
Center located at controlcenter.centurylink.com. If Customer does not choose paperless invoices through Control Center, CenturyLink
may in its discretion assess a $15 MRC for each full paper invoice provided to Customer or a $2 MRC for each summary/remit only
where available) paper invoice provided to Customer. Those charges will not apply to an invoice that is not available through Control
Center. Customer's payments to CenturyLink must be in the form of electronic funds transfer(via wire transfer or ACH), cash payments
via previously-approved CenturyLink processes only), or paper check. CenturyLink reserves the right to charge administrative fees
when Customer's payment preferences deviate from CenturyLink's standard practices.
4.2 If Customer requests items from the RSS for which charges do not appear in a Pricing Attachment, CenturyLink will inform
Customer of the charges at the time of the request, giving Customer the opportunity to cancel the request, rather than incurring the
charges. Those items may include, but are not limited to: (a) Expedites, including third-party charges incurred by CenturyLink in
connection with the Expedite; (b) CPE; (c) Construction; (d)Termination Charges; (e) charges for labor, testing, or design changes:
f) inside wiring; and (g)additional administrative charges that may be applied for services not described on Pricing Attachments or for
requests to provision Services in a manner inconsistent with CenturyLink's then-current practices. Customer will pay such charges
regardless of whether Customer cancels Service or CenturyLink fails to deliver on the requested Expedite date, unless such failure was
caused by CenturyLink.
4.3 CenturyLink will require Customer to accept Service by the end of the Grace Period, in which case CenturyLink will commence
with regular monthly billing for the Service and Customer agrees to pay for the billed Service. If Customer has not accepted the Service
by the end of the Grace Period, then CenturyLink may terminate the Service subject to the Termination section of the Agreement.
5. Confidentiality. Neither CenturyLink nor Customer will, without the prior written consent of the other party: (a)disclose any of
the terms of the Agreement; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the
Agreement) the Confidential Information of the other party. Each party will use reasonable efforts to protect the other's Confidential
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CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
Information, and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own.
CenturyLink's consent may only be given by its Legal Department. A party may disclose Confidential Information if required to do so by
a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under the Agreement,
provided that the disclosing party gives the non-disclosing party reasonable prior written notice.
6. CPNI. CenturyLink is required by law to treat CPNI confidentially. Customer agrees that CenturyLink may share CPNI within its
business operations (e.g., wireless, local, long distance, and broadband services divisions), and with businesses acting on
CenturyLink's behalf, to determine if Customer could benefit from the wide variety of CenturyLink products and services, and in its
marketing and sales activities. Customer may withdraw its authorization at any time by informing CenturyLink in writing. Customer's
decision regarding CenturyLink's use of CPNI will not affect the quality of service CenturyLink provides Customer.
7. Use of Name and Marks. Neither party will use the name or marks of the other party or any of its Affiliates for any purpose
without the other party's prior written consent. CenturyLink's consent may only be given by its Legal Department.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, ALL SERVICES AND PRODUCTS
ARE PROVIDED "AS IS." CENTURYLINK DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION,WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,AND NON-INFRINGEMENT.
9. Limitation of Liability. The remedies and limitations of liability for any claims arising between the parties are set forth below.
9.1 Consequential Damages. NO PARTY OR ITS AFFILIATES, AGENTS, OR CONTRACTORS IS LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS, LOST
REVENUES, LOST DATA, LOST BUSINESS OPPORTUNITY, OR COSTS OF COVER. THESE LIMITATIONS APPLY
REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF
FORESEEABILITY.
9.2 Claims Related to Services. For Customer's claims related to Service deficiencies or interruptions, Customer's exclusive
remedies are limited to: (a)those remedies set forth in the SLA for the affected Service or in the RSS for Services without an SLA; or
b) the total MRCs or usage charges paid by Customer for the affected Service in the one month immediately preceding the event
giving rise to the claim if an SLA or applicable RSS language does not exist for the affected Service.
10. Personal Injury; Death; Property Damages. For claims arising out of personal injury or death to a party's employee, or
damage to a party's real or personal property that are caused by the other party's negligence or willful misconduct in the performance of
the Agreement, each party's liability is limited to proven direct damages.
11. Other Direct Damages. For all other claims arising out of the Agreement, the maximum liability for Customer and CenturyLink
will not exceed in the aggregate the total MRCs and usage charges paid by Customer to CenturyLink under the Agreement in the three
months immediately preceding the event giving rise to the claim ("Damage Cap"). The Damage Cap will not apply to a party's
indemnification obligations or Customer's payment obligations under the Agreement.
12. Indemnification. Each party will defend and indemnify the other, their Affiliates, agents, and contractors against all third party
claims for damages, liabilities, or expenses, including reasonable attorneys' fees, arising directly from performance of the Agreement
and related to personal injury or death, or damage to personal tangible property that is alleged to have been caused by the negligence
or willful misconduct of the indemnifying party unless otherwise stated in a CenturyLink QC Service Exhibit. Customer will also defend
and indemnify CenturyLink, its Affiliates, agents, and contractors against all third party claims for damages, liabilities, or expenses,
including reasonable attorneys'fees, related to the modification or resale of the Services by Customer or End Users.
13. Termination.
13.1 Service; Service Exhibit Before Service Due Date. If Customer cancels an order for Service before the Service Due Date, or
does not accept the Service by the conclusion of the Grace Period, and CenturyLink terminates the Service at the end of the Grace
Period, Termination Charges will apply, including the full NRCs that would have otherwise applied and any non-reusable and non-
recoverable portions of expenditures or liabilities, such as Construction charges incurred exclusively on behalf of the Customer by
CenturyLink and not fully reimbursed by NRCs.
13.2 Service; Service Exhibit After Service Acceptance Date. Either party may terminate an individual Service ordered under a
Service Exhibit after the Service Acceptance Date under the terms of the applicable Service Exhibit. CenturyLink will waive the
Termination Charge in excess of the Minimum Service Period if Customer terminates due to a move or upgrade of all or a portion of
Service and all of the following conditions are met("Waiver Policy"):
a) Customer must have satisfied the Minimum Service Period for the existing Service or be subject to the Termination Charge
applicable to the unexpired portion of the Minimum Service Period;
b) Customer must agree to a new service term and Minimum Service Period for the new service;
c) The total value of the new Service must be equal to or greater than 115% of the remaining value of the Service being
terminated. NRCs and Construction charges will not contribute toward the 115%calculation;
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CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
d) The request to disconnect the existing Service and the request for the new service are received by CenturyLink at the same time
and both requests must reference this Waiver Policy;
e) For ATM, FR, and MOE, the new Service installation due date must be within 30 days of the due date of the disconnection of the
existing Service, unless the installation is delayed by CenturyLink; for SHNS, SST, GeoMax, HDTV-NET, and Optical Wavelength
Service the new Service installation due date must be on or before the due date of the disconnection of the existing Service, unless the
installation is delayed by CenturyLink;
f) Customer agrees to pay all outstanding MRCs and NRCs for existing Service;
g) The NRCs in effect at the time the Service is moved or upgraded will apply to the move or upgrade; and
h) This Waiver Policy only applies to moves or upgrades to other CenturyLink services that are subject to a CenturyLink tariff or the
CenturyLink RSS.
13.3 Agreement. Either party may terminate the Agreement and all Service by providing 30 days' written notice to the other party.
Cause to terminate the entire Agreement for Service-related claims will exist only if Customer has Cause to terminate all or substantially
all of the Services under the applicable SLA, Service Exhibit, or RSS. If Customer terminates the Agreement for Convenience or
CenturyLink terminates it for Cause, then Customer will pay to CenturyLink the Termination Charges set forth in the applicable Service
Exhibit(s).
13.4 Unpaid Charges. Customer will remain liable for charges accrued but unpaid as of the termination date.
14. Miscellaneous.
14.1 General. The Agreement's benefits do not extend to any third party (e.g., an End User). If any term of the Agreement is held
unenforceable, the remaining terms will remain in effect. Except for time requirements as specifically stated in a Service Exhibit or SLA
or in the RSS for Services that do not have an SLA), neither party's failure to exercise any right or to insist upon strict performance of
any provision of the Agreement is a waiver of any right under the Agreement. The terms and conditions of the Agreement regarding
confidentiality, indemnification, limitation of liability, warranties, payment, dispute resolution, and all other terms of the Agreement that
should by their nature survive the termination of the Agreement will survive. Each party is not responsible for any delay or other failure
to perform due to a Force Majeure Event.
14.2 Conflicts Provision. If a conflict exists among provisions within the Agreement, the following order of precedence will apply in
descending order of control: Service Exhibit,the Agreement, RSS, CenturyLink records, and if applicable, CenturyLink Tech Pubs.
14.3 Independent Contractor. CenturyLink provides the Services as an independent contractor. The Agreement will not create an
employer-employee relationship, association,joint venture, partnership, or other form of legal entity or business enterprise between the
parties, their agents, employees, or affiliates.
14.4 ARRA. Customer will not pay for the Services with funds obtained through the American Recovery and Reinvestment Act or
other similar stimulus grants or loans that would obligate CenturyLink to provide certain information or perform certain functions unless
each of those obligations are explicitly identified and agreed to by the parties in the Agreement or in an amendment to the Agreement.
14.5 HIPAA. CenturyLink does not require or intend to access Customer data in its performance hereunder, including but not limited
to any confidential health related information of Customer's clients, which may include group health plans, that constitutes Protected
Health Information ("PHI"), as defined in 45 C.F. R. §160.103 under the Health Insurance Portability and Accountability Act of 1996
HIPAA Rules"). Any exposure to PHI will be random, infrequent and incidental to CenturyLink's provision of Service and is not meant
for the purpose of accessing, managing the PHI or creating or manipulating the PHI. Such exposure is allowable under 45 CFR
164.502(a)(1)(iii). As such, if Customer is a Covered Entity or Health Care Provider under the HIPAA Rules or supports the healthcare
industry, CenturyLink and Customer agree that CenturyLink is not a "Business Associate" or"Covered Entity" under the HIPAA Rules
for the purposes of the Agreement.
14.6 Credit Approval. Provision of Services is subject to CenturyLink's credit approval of Customer. As part of the credit approval
process, CenturyLink may require Customer to provide a deposit or other security. Additionally during the Term, if Customer's financial
circumstance or payment history becomes reasonably unacceptable to CenturyLink, CenturyLink may require adequate assurance of
future payment as a condition of continuing CenturyLink's provision of Services. Customer's failure to provide adequate assurances
required by CenturyLink is a material breach of the Agreement. CenturyLink may provide Customer's payment history or other
billing/charge information to credit reporting agencies or industry clearinghouses.
14.7 Governing Law; Dispute Resolution.
a) Billing Disputes. If Customer disputes a charge in good faith, Customer may withhold payment of that charge if Customer
makes timely payment of all undisputed charges when due and provides CenturyLink with a written explanation of the reasons for
Customer's dispute of the charge within 90 days after the invoice date of such amount. If CenturyLink determines, in its good faith, that
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CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
the disputed charge is valid, CenturyLink will notify Customer and within five business days after CenturyLink's notification, Customer
must pay the charge and accrued interest.
b) Governing Law; Forum. Delaware state law, without regard to choice-of-law principles, governs all matters relating to the
Agreement. Any legal proceeding relating to the Agreement will be brought in a U.S. District Court, or absent federal jurisdiction, in a
state court of competent jurisdiction, in Denver, Colorado. This provision is not intended to deprive a small claims court or state agency
of lawful jurisdiction that would otherwise exist over a claim or controversy between the parties.
c) Waiver of Jury Trial and Class Action. Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally
waives its right to a jury trial and any right to pursue any claim or action relating to the Agreement on a class or consolidated basis or in
a representative capacity. If for any reason the jury trial waiver is held to be unenforceable, the parties agree to binding arbitration for
any dispute relating to the Agreement under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq. The arbitration will be conducted in
accordance with the JAMS Comprehensive Arbitration Rules. Judgment upon the arbitration award may be entered in any court having
jurisdiction.
d) Limitations Period. Any claim relating to the Agreement must be brought within two years after the claim arises other than
Customer disputing an amount in an invoice, which must be done by Customer within 90 days after the invoice date of the disputed
amount.
14.8 No Resale; Compliance. Customer must not resell the Services and its use of Services must comply with all applicable laws.
14.9 Assignment. Either party may assign the Agreement without the other party's prior written consent: (a) in connection with the
sale of all or substantially all of its assets; (b) to the surviving entity in any merger or consolidation; or(c) to an Affiliate provided such
party gives the other party 30 days' prior written notice. Any assignee of the Customer must have a financial standing and
creditworthiness equal to or better than Customer's, as reasonably determined by CenturyLink, through a generally accepted, third
party credit rating index (i.e. D&B, S&P, etc.). Any other assignment will require the prior written consent of the other party. But
Customer may not assign this Agreement or any Service to a reseller or a telecommunications carrier under any circumstances.
14.10 Amendments; Changes. The Agreement may be amended only in a writing signed by both parties' authorized representatives.
However, any change in rates, charges, or regulations mandated by the legally constituted authorities will act as a modification of any
contract to that extent without further notice. Each party may, at any time, reject any handwritten change or other alteration to the
Agreement. CenturyLink may change features or functions of its Services; for material changes that are adverse to Customer,
CenturyLink will provide 30 days' prior written notice, but may provide a shorter notice period if the change is based on Regulatory
Activity. CenturyLink may amend, change, or withdraw the RSS with such updated RSS effective upon posting or upon fulfillment of
any necessary regulatory requirements.
14.11 Websites. References to websites in the Agreement include any successor websites designated by CenturyLink.
14.12 Required Notices. Unless otherwise provided in the Agreement, all required notices to CenturyLink must be in writing, sent to
1801 California St., #900, Denver, CO 80202; Fax: 888-778-0054; Attn.: Legal Dep't., and to Customer as provided above. All notices
are effective: (a) when delivered via overnight courier mail or in person to the recipient named above; (b) three business days after
mailed via regular U.S. Mail; or(c)when delivered by fax if duplicate notice is also sent by regular U.S. Mail.
14.13 Service Termination Notices. Customer must call the customer care number specified on Customer's invoice to provide notice
of termination.
14.14 Entire Agreement.The Agreement, any applicable Service Exhibit, Pricing Attachment, the RSS, and Tech Pubs constitute the
entire agreement between the parties and supersedes all prior oral or written agreements or understandings relating to the same
Service at the same locations as covered under this Agreement.
15. Definitions.
Affiliate"means any entity controlled by, controlling, or under common control with a party.
Cause" means the failure of a party to perform a material obligation under the Agreement, which failure is not remedied: (a) for
payment defaults by Customer, within five days of separate written notice from CenturyLink of such default; or(b)for any other material
breach,within 30 days after written notice.
Confidential Information" means any information that is not generally available to the public, whether of a technical, business, or other
nature, (including CPNI), and that: (a) the receiving party knows or has reason to know is confidential, proprietary, or trade secret
information of the disclosing party; or (b) is of such a nature that the receiving party should reasonably understand that the disclosing
party desires to protect the information from unrestricted disclosure. Confidential Information will not include information that is in the
public domain through no breach of the Agreement by the receiving party or is already known or is
independently developed by the receiving party.
Construction" means when Service may not be available due to facilities limitations and it is necessary for CenturyLink to construct
facilities.
Convenience"means any reason other than for Cause.
CPE" means any customer premises equipment, software, and/or other materials used in connection with the Service.
Page 5 of 6 CenturyLink, Inc.All Rights Reserved
CONFIDENTIAL v1.082112
CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
CPNI" means Customer Proprietary Network Information, which includes confidential account, usage, and billing-related information
about the quantity, technical configuration, type, destination, location, and amount of use of a customer's telecommunications services.
CPNI reflects the telecommunications products, services, and features that a customer subscribes to and the usage of such services,
including call detail information appearing in a bill. CPNI does not include a customer's name, address, or telephone number.
Demarcation Point" means the CenturyLink designated: (a) physical interface between the CenturyLink Domestic Network and
Customer's telecommunications equipment; or(b) physical interface between a third-party carrier connecting the CenturyLink Domestic
Network to Customer's telecommunications equipment. "CenturyLink Domestic Network" means the CenturyLink operated facilities
located within CenturyLink's 14-state local service area (those states are listed in the opening paragraph of the Agreement) and which
consists of transport POPs, physical media, switches, circuits and/or ports that are operated solely by CenturyLink.
End User" means Customer's members, end users, customers, or any other third parties who use or access the Services or the
CenturyLink network via the Services.
Expedite" means Customer's request to CenturyLink to provision a Service more quickly than the CenturyLink standard or negotiated
interval for which an additional Expedite charge will apply.
Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of
God, fire, explosion, lightning, hurricane, labor dispute, cable cuts by third parties, acts of terror, material shortages or unavailability,
government laws or regulations,war or civil disorder, or failures of suppliers of goods and services.
Grace Period" means a period of 30 business days from the later of the Service Due Date or the date when Service is made available
to the Customer, and during which the applicable Service will be held available for Customer upon Customer's request.
Minimum Service Period"means 12 months following the Service Acceptance Date, as evidenced by CenturyLink records. In the case
of Frame Relay,this means 6 months following the Service Acceptance Date.
MRC"means monthly recurring charge.
NRC"means nonrecurring charge.
Pricing Attachment" means each document containing Service Rates, Term, and location-specific information, all of which are
incorporated by this reference and made a part of each Service Exhibit.
Rates"means the M RCs and N RCs for the Service.
Regulatory Activity" is a regulation or ruling by any regulatory agency, legislative body, or court of competent jurisdiction.
RSS" means CenturyLink's Rates and Services Schedule#1, incorporated by this reference and posted at:
http://www.centurylink.com/tariffs/fcc gc acc rss no 1.pdf.
Service Acceptance Date" means the date Customer accepts the Service and billing commences, as evidenced by CenturyLink
records.
Service Due Date"means the date CenturyLink makes the Service available to Customer for testing.
SLA" means the service level agreement for each Service, if applicable, located at http://www.qwest.centurylink.com/legal/sla.html;
SLAs are subject to change. Each SLA provides Customer's sole and exclusive remedy for Service interruptions or Service deficiencies
of any kind whatsoever for the applicable Service. Not all Services have a Service-specific SLA.
SONET"means Synchronous Optical Network.
Taxes" means foreign, federal, state, and local excise, gross receipts, sales, use, privilege, or other tax(other than net income) now or
in the future imposed by any governmental entity (whether such Taxes are assessed by a governmental authority directly upon
CenturyLink or the Customer) attributable or measured by the sale price or transaction amount, or surcharges, fees, and other similar
charges, that are required or permitted to be assessed on the Customer. These charges may include state and federal Carrier
Universal Service Charges as well as charges related to E911, and Telephone Relay Service.
Tech Pub" means each technical publication specific to a Service, all of which are located at http://www.gwest.com/techpub/ and
subject to change. Each CenturyLink Service Exhibit stipulates the Tech Pub that applies to that service, if any.
Termination Charge"means the termination charges detailed in the Service Exhibits.
Page 6 of 6 CenturyLink, Inc.All Rights Reserved
CONFIDENTIAL v1.082112
AMENDMENT TO
CENTURYLINK TOTAL ADVANTAGE
TM
EXPRESS AGREEMENT—POM Custom
THIS AMENDMENT NO. ONE (this "Amendment") by and between CenturyLink Sales Solutions, Inc. as contracting agent on
behalf of the applicable CenturyLink company providing the Services under this Agreement ("CenturyLink") and Town of
Avon ("Customer"), hereby amends the CenturyLink Total Advantage Express Agreement, or Qwest Total Advantage Express
Agreement, as applicable, Opportunity Number 51427986 (the "Agreement"). The name of the CenturyLink operating company
providing Services to Customer is listed in the Service-specific provisions for the applicable Service, each acting separately and
individually responsible for all of its own obligations. Except as set forth in this Amendment, capitalized terms will have the definitions
assigned to them in the Agreement. CenturyLink reserves the right to withdraw this offer if Customer does not execute and deliver the
Amendment to CenturyLink before April 26, 2013. Using CenturyLink's electronic signature process for the Amendment is acceptable.
All references to"Qwest Total Advantage Express"or"QTA Express"are hereby replaced with "CenturyLink Total Advantage Express."
CUSTOMER: TOWN OF AVON CENTURYLINK SALES SOLUTIONS, INC.
Authorized Signature Authorized Signature
Name Typed or Printed Name Typed or Printed
enter a space if EZ or "Director of Offer Management" if
POM
Title Title
Date Date
CenturyLink and Customer wish to amend the Agreement as follows:
1.Term and Revenue Commitment. Customer indicates below whether it is changing the length of its existing Term and/or
changing the amount of its existing Revenue Commitment as set forth in the Agreement.
Revenue Commitment/Initial Term: $100/3 Years Contract Code#:490130
Initial Term is: ® Existing (no changes)
Revenue Commitment: N/A ® No Changes
CenturyLink reserves the right to modify rates after the conclusion of each Service's minimum service period upon not less than 30
days' prior written notice to Customer; provided that CenturyLink may reduce the foregoing notice period or modify rates or discounts
prior to the conclusion of the minimum service period, as necessary, if such modification is based upon Regulatory Activity.
CenturyLink also reserves the right to modify rates when the Agreement renews to the rates that are in effect at that time.
2.Additional Provisions: The parties agree to add the following provisions to the Agreement. In the event the following
provisions conflict in whole or in part with the terms and conditions of the Agreement, the following provisions shall control.
A.No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or otherwise
modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents,
or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to
the Colorado Governmental Immunity Act, Title 24,Article 10, Part 1 of the Colorado Revised Statutes.
B.Affirmative Action: CenturyLink will not discriminate against any employee or applicant for employment because of
race, color, religion, sex or national origin. CenturyLink will take affirmative action to ensure applicants are employed, and
employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall
include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
C. Article X, Section 20/TABOR: The Parties understand and acknowledge that the Town is 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 Agreement. It is understood and agreed that this 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 Agreement to the
contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of
funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial
obligations of the Town 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 Town of Avon, and other
applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated.
N53829 amends Opportunity Number Page 1 CenturyLink, Inc. All Rights Reserved.
51427986 CONFIDENTIAL v1.022013
Contract Code: 490130
Q.ADVAN M
AMENDMENT TO
CENTURYLINK TOTAL ADVANTAGE
TM
EXPRESS AGREEMENT—POM Custom
D.Employment of or Contracts with Illegal Aliens: CenturyLink shall not knowingly employ or contract with an illegal
alien to perform work under this Agreement. CenturyLink shall not contract with a subcontractor that fails to certify that the
subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, CenturyLink
certifies as of the date of this Agreement it does not knowingly employ or contract with an illegal alien who will perform work
under the public contract for services and that CenturyLink will participate in the e-verify program or department program in
order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the
public contract for services. CenturyLink is prohibited from using either the e-verify program or the department program
procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. If the
CenturyLink obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or
contracts with an illegal alien, CenturyLink shall be required to notify the subcontractor and the Town within three (3)days that
the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. CenturyLink shall
terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within three (3)days
of receiving the notice regarding CenturyLink's actual knowledge. CenturyLink shall not terminate the subcontract if, during
such three days,the subcontractor provides information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien. CenturyLink is required to comply with any reasonable request made by the Department of
Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and
applicable state law. If CenturyLink violates this provision,the Town may terminate this Agreement, and CenturyLink may be
liable for actual and/or consequential damages incurred by the Town, notwithstanding any limitation on such damages
provided by such Agreement.
E.Ownership of Documents: Any work product, materials, and documents produced_and deqj. t t r Li
pursuant to this Agreement shall become property of the Town of Avon upon
delivery and shall not be made subject to any copyright unless authorized by the Town. Other materials, methodology and
proprietary work used or provided by CenturyLink to the Town not specifically created and delivered pursuant to the Services
outlined in this Agreement may be protected by a copyright held by CenturyLink and CenturyLink reserves all rights granted to
it by any copyright. The Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the
following exceptions: (1)for exclusive use internally by Town staff and/or employees; or(2)pursuant to a request under the
Colorado Open Records Act, §24-72-203, C.R.S., to the extent that such statute applies; or(3)pursuant to law, regulation, or
court order. CenturyLink waives any right to prevent its name from being used in connection with the Services.
F.No Waiver of Rights: 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 either Party. The Town's approval or
acceptance of, or payment for, services shall not be construed to operate as a waiver of any rights or benefits to be provided
under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by the Town except in writing
signed by the Town Council or by a person expressly authorized to sign such waiver by resolution of the Town Council of the
Town of Avon, 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.
G,Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal
representatives, and assigns.
H.Severability: Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or
word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this
Agreement.
3.Miscellaneous. This Amendment will be effective as of the date it is executed by CenturyLink after the Customer's signature
the "Amendment Effective Date") and will become part of the Agreement. All other terms and conditions in the Agreement will remain
in full force and effect and be binding upon the parties. This Amendment and the Agreement set forth the entire understanding between
the parties as to the subject matter herein, and in the event there are any inconsistencies between the two documents, the terms of this
Amendment will control.
N53829 amends Opportunity Number Page 2 CenturyLink, Inc. All Rights Reserved.
51427986 CONFIDENTIAL v1.022013
Contract Code: 490130
Q.ADVAN M
CENTURYLINK TOTAL ADVANTAGE TM EXPRESS—AGREEMENT—Summary Page
This CenturyLink Total Advantage TM Express Agreement ("Agreement") is between CenturyLink Sales Solutions, Inc. as contracting
agent on behalf of the applicable CenturyLink company providing the Services under this Agreement ("CenturyLink")and Town of Avon
Customer") and is effective on the date the last party signs it ("Effective Date"). The name of the CenturyLink operating company
providing Services to Customer is listed in the Service-specific provisions for the applicable Service, each acting separately and
individually responsible for all of its own obligations. CenturyLink reserves the right to withdraw this offer if Customer does not
execute and deliver the Agreement to CenturyLink on or before March 18,2013.
Customer's Address for Notices:PO Box 975,Avon,CO 81620;
Customer's Facsimile Number: (970)949-9139
Person Designated for Notices: General Counsel
Monthly Revenue Commitment Contributory Charges of$100(Beginning in the 4 month of the Term, Customer's failure to meet
the Revenue Commitment will result in a Shortfall charge).
Term Commitment(or"Term") 36 months
TERMS AND CONDITIONS APPLICABLE TO ALL SERVICES
Rates do not include foreign, federal, state or local taxes, surcharges, fees, EAS, Zone, CALC, or other similar charges. The rates for
Local Access Service and CPE Purchase are subject to valid quote forms, which control if they conflict with the rates listed on this
Summary Page,all of which are subject to change.
Contributory Charges" means: (a) all monthly recurring charges ("MRCs") and usage charges for Qwest Communications Company,
LLC, d/b/a CenturyLink QCC (other than Local Access Service) and/ or Qwest Corporation d/b/a CenturyLink QC Services ordered
under the Agreement after the Effective Date and incurred during the Term; and (b) all MRCs and usage charges for CenturyLink QC
Contributory Services ordered before or after the Effective Date under separate agreements and incurred during the Term.
CenturyLink QC Contributory Services"means the following services that are provided by CenturyLink QC: Centrex,Centron®,Analog
Trunks, Digital Switched Service, ISDN Services, Uniform Access Solution, SHARP, Business local exchange lines (e.g., CenturyLink
Choice TM Business packages), CenturyLink TM High-Speed Internet, ATM (IntraLATA), Frame Relay (IntraLATA), Analog Private Line,
DS1, DS3, SST, Optical Wavelength Service, SHNS, Geomax®, Metro Ethernet, and directory services. Contributory Charges do not
include non-recurring charges ("NRCs"), CPE, Taxes, pass-through, worldcard® payphone surcharges, other surcharges, issued
credits,any charges for Local Access Services,or other charges notspecified as Contributory Charges under the Agreement."Shortfall"
is the difference between the Revenue Commitment and Customer's Contributory Charges paid during a Measurement Period.
Unless specified otherwise in the Service specific provisions,CenturyLink QCC Services will receive the applicable rates specified in the
Summary Page or valid Order Form for the longer of the Term Commitment or a Service's individual service term. After the expiration of
the Term Commitment, this Agreement will renew on a month-to-month basis. CenturyLink reserves the right to modify CenturyLink
QCC Service rates to the month-to-month rates upon the later of the renewal of the Agreement or the expiration of that Service's
individual service term. CenturyLink QC Services will receive the applicable rates specified in the Summary Page for the duration of
that Service's individual service term and will renew at the rate and for the term specified in the applicable Tariff, RSS, or Service-
specific provision.
Separate CenturyLink Offerings. Provisions that are applicable to a specific CenturyLink company are so indicated. Al general
provisions are applicable to services provided bythe CenturyLink company providing the Services under this Agreement.
Services. This Agreement governs Customer's purchase of the services listed on the Summary Page or an Order Form ("Services").
Additional terms found at http://gwest.centuryLink.com/legal gctae/DTC/v36.pdf apply and are incorporated by reference
Detailed Terms and Conditions" or"DT&C"). Customer understands that the DT&C contain additional important terms and conditions
that apply to the Services, including, among other things, confidentiality obligations, disclaimer of warranties, indemnification, shortfall
charges,minimum service terms,early term ination charges,emergency 911 limitations,and jury-trial and class-action waiver.
Payment.Customer must pay all charges within 30 days of the invoice date except for CenturyLink QC charges,which Customer must pay
by the due date on the invoice. Charges not paid by their due date are subject to late payment charge of the lesser of 1.5% per month or
the maximum rate allowed by law or required by Tariff. In addition to payment of charges for Services, Customer must also pay
CenturyLink any applicable Taxes (which is defined in the DT&C and may include surcharges,fees,and other similar charges)assessed in
connection with Services. Customer's payments to CenturyLink must be in the form of electronic funds transfer (via wire transfer or
ACH),cash payments (via previously-approved CenturyLink processes only),or paper check.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, ALL SERVICES AND PRODUCTS ARE
PROVIDED "AS IS."CENTURYLINK DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL
WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE,AND NON-INFRINGEMENT.
Limitations of Liability. The remedies and limitations of liabilityfor anyclaims arising between the parties are set forth below.
a) Consequential Damages. NEITHER PARTY OR ITS AFFILIATES, AGENTS, OR CONTRACTORS IS LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS, LOST
REVENUES, LOST DATA LOST BUSINESS OPPORTUNITY, OR COSTS OF COVER. THESE LIMITATIONS APPLY
REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF
FORESEEAB ILITY.
b) Claims Related to Services. For Customer's claims related to Service deficiencies or interruptions,Customer's exclusive remedies
are limited to: (a)those remedies set forth in the SLA for the affected Service or (b) the total MRCs or usage charges paid by Customer
for the affected Service in the one month immediately preceding the event giving rise to the claim if an SLAdoes not apply.
Opportunity ID:51427986 Page 1 of 4 CenturyLink, Inc. All Rights Reserved.
Contract Code:490130 CONFIDENTIAL CGT R.06.012213
CENTURYLINK TOTAL ADVANTAGE TM EXPRESS—AGREEMENT—Summary Page
c) Personal Injury; Death; Property Damages. For claims arising out of personal injury or death to a party's employee, or damage
to a parts real or personal property, that are caused by the other party s negligence or willful misconduct in the performance of the
Agreement,each party's liability is limited to proven direct damages.
d) Other Direct Damages. For all other claims arising out of the Agreement, each party's maximum liability will not exceed in the
aggregate the total MRCs and usage charges paid by Customer to CenturyLink under the Agreement in the three months immediately
preceding the event giving rise to the claim ("Damage Cap"). The Damage Cap will not apply to a parts indemnification obli gations or
Customer's payment obligations under the Agreement.
Entire Agreement. This Agreement, including the Summary Page, DT&C version 36 found at
http://gwest.centuryLink.com//egal gctae/DTC/v36.pdf, any other provisions for Bundles, Packages or Other Offers identified in
this Summary Page ("Other Provisions"), and any CenturyLink-accepted Order Forms constitute the entire agreement between the
parties and supersede all prior oral or written agreements or understandings relating to this subject matter. This Agreement supersedes
all prior oral or written agreements or understandings relating to the same service, ports, or circuits at the same locations as covered
under this Agreement.
Definitions. Capitalized terms are defined in the DT&C.
The following Services are incorporated into the Agreement:
DATA BUNDLE OFFER PRICING
The following additional terms and conditions apply to Data Bundle Solutions, and are incorporated herein by reference: The Data
Bundle Solution Provisions found at http://gwest.centurylink.com/le.alq /rmgctae/databundle/v1.pdf, and the General Terms Applicable to
All Services, CenturyLink IQ Networking, Local Access and Rental CPE sections in the Detailed Terms and Conditions at:
http://gwest.centuodink.com/le.aql/rmgctae/DTC/v36.pdf.
The CPE Rental term and each Data Bundle Port and Local Access circuit receiving Data Bundle Pricing will be subject to the Service
Term set forth in the applicable pricing table. "NBD Maintenance"means next business day remote maintenance. Local Access MR Cs
will be determined by the Product Pricer Quoting Tool. CenturyLink IQ Networking Port NRCs and Local Access NRCs are waived.
CenturyLink will also waive the SIG Activation NRC for Enhanced Port when provided through CenturyLink IQ
TM
Data Bundle Solutions.
If Customer wishes to order a Data Bundle Solution that is not shown in the pricing tables below, Customer must enter into a separate
written amendment that includes the applicable Data Bundle Solution.
Keyto the symbols used in the following tables:
The Internet Port, Private Port or Enhanced Port Data Bundle Port MRC will be used to calculate Contributory Charges.
The Customer's location must qualifyfor on-site maintenance. Only available on a 36 month Service Term.
If the 5 Mbps ELA circuit qualifies for the In-Region iQDBELAIR pricing, the Local Access MRC is $585. If not, the MRC will be
determined bythe Product Pricer Quoting Tool.
Data Bundle Standard and Pro
36 Month Service Term; 8x5 NBD Maintenance
Ethernet
Data Bundle Port MRCMvOaso
E c Includes Port and Fae ntal CPE
L
a U
cn Internet* Private* Enhanced*m
5 Mbps# Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 280 322 370
10Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 400 460 529
20Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 440 506 582
30Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 560 644 741
40Mb s Adtran
N/A Standard N/A N/A N/A
p DB P1 Pro 740 851 979
50Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 820 943 1,084
60Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 900 1,035 1,190
Opportunity ID:51427986 Page 2 of 4 CenturyLink, Inc. All Rights Reserved.
Contract Code:490130 CONFIDENTIAL CGT R.06.012213
CENTURYLINK TOTAL ADVANTAGE TM EXPRESS—AGREEMENT—Summary Page
70Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 950 1,093 1,256
80Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 1,000 1,150 1,323
90Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 1,050 1,208 1,389
100Mbps Adtran
N/A Standard N/A N/A N/A
DB P1 Pro 1,100 1,265 1455
Mail Bagging.
Description MRC
Mail Bagging 50.00 per Port
As of the Agreement Effective Date, Centuryl-ink is waiving the Mail Bagging MRC so long as Customer is not in default of any
obligations under the Agreement. Centuryl-ink may discontinue waiving the MRC at any time without prior notice. Waived MRCs do not
contribute to the Revenue Commitment under the Agreement.
End to End Performance Reporting. The following MRC is in addition to each Private Port or Enhanced Port's MRC.
Description MRC
End to End Performance Reporting 25.00 per Port
VPN Extensions. The following MRC is in addition to each Private Port or Enhanced Port's MRC.
Description MRC NRC
VPN Extensions 25.00 per IPsec tunnel 25.00 per IPsec tunnel
Secure IP Gateway.
Description NR
Secure IP Gateway Activation Fee 200.00 per each Enhanced Port
This space intentionally left blank. The Agreement continues on the next page. ---------------------
Opportunity ID:51427986 Page 3 of 4 Centuryl-ink, Inc. All Rights Reserved.
Contract Code:490130 CONFIDENTIAL CGT R.06.012213
CENTURYLINK TOTAL ADVANTAGE TM EXPRESS—AGREEMENT—Summary Page
Local Access
The following additional terms and conditions apply to Local Access Service, and are incorporated herein by reference: the General
Terms Applicable to All Services and Local Access sections in the Detailed Terms and Conditions at:
hftp://gwest.centuodink.com/le!qal/rm cictae/DTC/v36.pdf.
NPA/NXX(s) Type of Local Access Minimum Service Term Circuit Net Rate M RC Install NRC
Per Service)or Offer Speed (Per Service)Per Service)
Minimum Term (Per
Service)
970949 CO Meet Point 36 Months 10 Mbps 0 0 NRC
Customer may order additional Local Access Services which are not specified above for a specific NPA/NXX. Each additional Se rvice
ordered during the Term must include a valid CenturyLink quote form that specifies the applicable Local Access MRC and NRC per
Service. No other discounts or promotions apply. Certain types of Service have separate service or agreement requirements as
defined in the General Terms Attachment and DT&C.
RENTAL CPE PRODUCTS AND SERVICES
The following additional terms and conditions apply to Rental CP E Products and Services, and are incorporated herein by reference:
the General Terms Applicable to All Services and Rental CPE sections in the Detailed Terms and Conditions at:
http://gwest.centuodink.com/le.aql/rm ictae/DTC/v36.pdf.
Customer is renting CPE Products and Services under this Agreement for use with any of the following services ordered under this
Agreement: CenturyLink IQ Networking, Data Bundle Solutions, Integrated Access Package, Managed VOIP, Managed VoIP Bundle,
SIP Trunk, SIP Trunk bundles or Core Connect Enterprise Packages. The pricing for Rental CPE Products and Services ordered under
this Agreementwill be itemized on a Rental CPE Rate Attachment or Promotional Attachment(if applicable)subject to this Agreement.
By signing,Customer agrees that its purchase of CenturyLink Services is governed by the additional terms and conditions of the DT&C
version 36 found at http://gwest.centuWink.com/le,alq /rm ictae/DTC/v36.pdf and any Other Provisions, all of which Customer has
reviewed or will review promptly. Customer acknowledges that it may cancel this Agreement within 5 days of its Effective Date without
Early Termination Charges or Cancellation Charges (except where prohibited by an applicable CenturyLink QC Tariff), and that its
failure to cancel and continued use of the Services beyond 5 days constitutes acceptance of the Detailed Terms and Conditions and any
Other Provisions. Using CenturyLink's electronic signature process for the Agreement is acceptable.
CUSTOMER: Town of Avon CENTURYLINK SALES SOLUTIONS, INC.
Authorized Signature Authorized Signature
Name Typed or Printed Name Typed or Printed
Title Title
Date Date
Opportunity ID:51427986 Page 4 of 4 CenturyLink, Inc. All Rights Reserved.
Contract Code:490130 CONFIDENTIAL CGT R.06.012213
CENTURYLINK INTERSTATE PRIVATE LINE AND ADVANCED NETWORK SERVICES AGREEMENT
INTERSTATE METRO ETHERNET SERVICE EXHIBIT
PRICING ATTACHMENT
Town of Avon
Unk Contract Number new
Service expires 36 months from the Service Acceptance Date ("Service Term").* When Customer renews Service on a Pricing
Attachment with no Service changes, the Service Term in the previous sentence and the above Unk Contract Number are the sole
entries that need to be completed. When Customer changes Service under an amended Pricing Attachment, the Unk Contract
Number needs to be completed in addition to the other information.
The initial Service purchased by Customer requires a specific number of months indicated in the Service Term in the previous
paragraph. In cases where subsequent additions and changes to Service do not require a new Service Term, "Coterminous"should be
selected as the Service Term in the previous paragraph and those additions and changes will be coterminous with the Service
associated with Content ID insert Content ID of initial service.
COCC MRC required for Central Office design)
EwET Customer Interface MRC)
Show N/A, if an MRC does not apply)
EwET Cus-
Band-Band- Port Speed tomer
width width MRC NRC per COCC MRC Interface
Location(Address,City,State) Profile per each Port Speed each MRC NRC MRC
1 Lake St.,Avon,CO 81620 20 Mbps 822 10/100 Mbps $0
500 Swift Gulch Rd,Avon,CO 81620 10 Mbps 621 10/100 Mbps $0
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
SELECT $ SELECT $
Optional Features for Metro Ethernet:
Diversity(only
Protect Routing MRC QoS/CoS—MBPS Multiple EVCs applies to locations
only applies to the Required(only Quantities(only showing an MRC)
locations showing an applies to locations applies to locations
Location(Address,City,State) MRC) showing an MRC) showing an MRC) MRC NRC
1 Lake St.,Avon,CO 81620 40 50
500 Swift Gulch Rd,Avon,CO 81620 40
Page 1 CenturyLink, Inc.All Rights Reserved.
CONFIDENTIAL v1.080811
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Gary Padilla, Road and Bridge Superintendent
Date: April 3, 2013
Agenda Topic: Resolution 12-13 Right-of-Way Use Fees
On January 10, 2006, Town Council approved Resolution 06-01 Revising Fee Schedule for
Zoning, Construction Work within the Public Ways, Subdivision and Design Review Applications,
Town of Avon, Eagle County, Colorado. Staff is recommending at this time the Construction
Work within the Public Ways Fee Schedule (Fee Schedule) be amended.
Fees are intended to cover the cost of Town staffs’ time in the acceptance, review, approval
and supervision of work within the Town right-of-way by parties other than Town of Avon
employees or agents. The Road and Bridge department typically averages about 45 right-of-
way permits per year, including permits for utility installation such as repairs for water, gas,
phone and cable.
The Fee Schedule for the past six (6) years has been questioned by numerous local contractors,
utility companies and private property owners as being too high especially when compared to
other municipalities in the region. Town staff has contacted the Towns of Vail, Frisco and
Snowmass and compared Avon’s current fees. While each entity uses different scales and types
of work for calculating their fee schedule, Justin Hildreth, Town Engineer, and I found that
Avon’s fees are significantly higher than these towns.
Justin worked with me to estimate what we felt the appropriate fee should be to cover Town
costs. Over this next year, Town staff periodically will track our actual time spent on right-of-
way permitting and administration, however, with the need to provide permits by April 15th to
contractors, we are recommending the fees be revised as provided for in Resolution 13-12. I
am attaching a redline of the current fees and proposed changes. [See Attachment 1]
An average of $42,000 was collected by the Town over the past two years for right-of-way
permits. The 2013 budget is $35,00 in permit fee revenue. I am estimating that collections may
fall as much as 50% with the lower recommended fees.
RECOMMENDATION: Council, by motion and vote, approve Resolution 13-12.
ATTACHMENT 1 Redline of Changes
TOWN OF AVON RIGHT-OF-WAY USE FEE SCHEDULE 20121
BASE PERMIT $250.00
USE FEES
Temporary contractor parking or staging $100.00 per residential building
permit each parcel frontage
Bollard removal/relocation $100.00/bollard
Extra field inspection $ 35.00 75.00 each
Independent Inspection/Testing/Report Review $ 20.00 each test or report
Traffic control plan review $ 50.00 flat fee
Stop work/Late application $250.00/occurrence[GP1]
Lane / Trail Closures $0.15 0.50/LF/day, each laneApril
15 to Nov. 15 and to $1.00 off season
EXCAVATION / CUT FEES
Permanent paved driveway installation/re-pave $75.00 each
Cuts to asphalt or concrete road pavements $ 75.00/LF or SF, whichever is
less[GP2]
Cuts to brick pavers, decorative concrete, or other
special surface $150.00/LF or SF, whichever is less
Sidewalk panel work $25/panel
Cuts to non-paved surface, road prism, landscaping $25/ LF or SF, whichever is less
Utility bores (no pavement cut) $50.00/location
Ditch Re-grading/Restoration $ 75.00 each parcel
Curb and gutter cuts/repair $3.00/LF
1. NOTES
A. Public Works administers the ROW Use Permit program under AMC 12.04; authority to establish
fees is set forth in ACM 12.04.110(a) and (b).
B. ROW Use Permits are administered annually on a per-parcel basis; a separate permit must be
obtained for each impacted parcel or parcel frontage each calendar year.
C. The base permit fee includes grading of one storm ditch, one (1) temporary unpaved driveway
installation, and up to 2 site inspections by Public Works staff.
D. Excavation cut fees cover cost for daily monitoring, inspection of compaction and restoration, review
of 1 set of test cylinders or break reports for new pavement, degradation fee, and management of
surety deposit.
E. A surety is required for all excavation and pavement cuts in the public ROW in accordance with
AMC 12.04.280. This surety must take the form of cash or a letter of credit from a local bank, unless
the applicant is already under contract with the Town to perform work under a bonded design or
construction contract. The Public Works Director, or his/her designated administrator, will set the
amount of surety which must be at least $2,000 in accordance with AMC 12.04.280.
F. Temporary contractor parking or staging in the public ROW may be allowed on a case-by-case basis
with an approved parking and traffic control plan. Fee covers cost for daily monitoring and
coordination with Avon Police Department staff.
G. Lane, sidewalk, or trail closures of the public ROW may be allowed on a case-by-case basis with an
acceptable traffic control plan. Fee covers cost for daily monitoring, sign adjustments, and
notification to public and emergency services.
ATTACHMENT 1 Redline of Changes
H. The Applicant remains responsible for restoration of the work area to the satisfaction of the Town.
I. The issuance of a stop work order or discovery of work started without a permit is cause for
additional fee.
TOWN OF AVON, COLORADO
RESOLUTION NO. 13-12
SERIES OF 2013
A RESOLUTION REVISING THE FEES SCHEDULE FOR CONSTRUCTION WORK WITHIN PUBLIC
RIGHT-OF-WAY, TOWN OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, the Town Council may enact and update fee schedules to accurately refelect the
cost of labor and overhead involved with all application processes as stipulated in Title 12 (Streets,
Sidewalks and Public Places), and
WHEREAS, the Town Council wishes to update the Town of Avon Right-of-Way Use Fee
Schedule setting the fees for applications received for work on or after April 15, 2013.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO:
The Town Council hereby adopts the following Town of Avon Right-of-Way Use Fee Schedule
as set forth and incorporated herein as “Exhibit A to Resolution 13-12”, setting fees for review and
processing of the construction work within public ways applications.
ADOPTED THIS 9th DAY OF APRIL, 2013.
TOWN COUNCIL
TOWN OF AVON, COLORADO
__________________________
Rich Carroll, Mayor
ATTEST:
_____________________
Patty McKenny, Town Clerk
TOWN OF AVON RIGHT-OF-WAY USE FEE SCHEDULE EFFECTIVE APRIL 10, 2013 Town of Avon Resolution13-12
BASE PERMIT $250.00
EXCAVATION / CUT FEES
Cut to asphalt or concrete road pavements 30 SF cut is included in base permit fee
anything larger is $6.00 SF
Permanent paved driveway installation/re-pave $75.00 each
Cut to concrete or other special surface $ 10.00 SF
Cut to brick pavers, decorative concrete, or other $150.00/LF or SF, whichever is less
special surface
Utility bores (no pavement cut) $50.00 per location
Curb and gutter cut/repair $ 3.00 LF
Sidewalk panel repair $ 25.00 per panel
USE FEES
Temporary contractor parking or staging $100.00 per residential building permit
Extra field inspection $ 35.00 each
Lane / Trail Closures $0.15/LF April 15-November 15
$1.00/LF off season
Stop work/Late application Fines up to $1,000 per day per AMC 12.040 & 1.09
NOTES:
A. Avon’s Road and Bridge Division, on behalf of Public Works, administers the ROW Use Permit program under
AMC 12.04; authority to establish fees is set forth in ACM 12.04.110(a) and (b).
B. ROW Use Permits are administered annually on a per-parcel basis; a separate permit must be obtained for each
impacted parcel or parcel frontage each calendar year.
C. The base permit fee includes grading of one storm ditch, one (1) temporary unpaved driveway installation, and up
to two (2) site inspections by Road and Bridge staff or the Town Engineer.
D. Excavation cut fees cover cost for daily monitoring, inspection of compaction and restoration, review of one (1) set
of test cylinders or break reports for new pavement, degradation fee, and management of surety deposit.
E. A surety is required for all excavation and pavement cuts in the public ROW in accordance with AMC 12.04.280.
This surety must take the form of cash or a letter of credit from a local bank, unless the applicant is already under
contract with the Town to perform work under a bonded design or construction contract. The Road and Bridge
Superintendent , or his/her designated administrator, will set the amount of surety which must be at least $2,000 in
accordance with AMC 12.04.280. The security deposit is held for a minimum of two (2) years from the date of
final inspection per AMC 12.04.280.
F. Temporary contractor parking or staging in the public ROW may be allowed on a case-by-case basis with an
approved parking and traffic control plan. Fee covers cost for daily monitoring and coordination with Avon Police
Department staff.
G. Lane, sidewalk, or trail closures of the public ROW may be allowed on a case-by-case basis with an acceptable
traffic control plan. Fee covers cost for daily monitoring, sign adjustments, and notification to public and
emergency services.
H. The Applicant remains responsible for restoration of the work area to the satisfaction of the Town.
I. The issuance of a stop work order or discovery of work started without a permit is cause for additional fee.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Jared Barnes, Planner I
Date: Friday, April 5, 2013
Agenda Topic: Second 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), and Ordinance 13-05 (Attachment G).
Update
At their March 26th, 2013 meeting, the Town Council discussed the policy regarding PUD amendments
within the Wildridge Subdivision and how the various Steep Slope requirements should apply to
these existing platted lots. Through their discussion and approval of Resolution 13-11, the Town
Council determined that the various Steep Slope requirements of the Municipal Code should not
apply to existing platted lots. At that meeting the Town Council also approved the first reading of
Ordinance 13-05, Approving a Minor PUD and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge
Subdivision (Attachment G). Staff has prepared this report for the second reading of Ordinance 13-
05.
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.
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 2
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. The Town Council held a public hearing at
their March 26th, 2013 meeting for the Application.
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
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
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 3
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. 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:
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.
Variance Application
As discussed above, the Variance Application was not acted upon by the PZC and that lack of decision was
appealed by the applicant for action at the March 26th, 2013 Town Council Meeting. The Town Council
discussed and conditionally approved Resolution 13-11 for a variance for the subject property. The approval
of Resolution 13-11 granted a variance from Section 7.32.020(e)(6), Buildable Area, and Section
7.32.020(e)(7), Building Envelopes and conditioned upon final approval of Ordinance 13-05 (Attachment G).
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.
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 4
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
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 G)) 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.
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 5
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
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
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 6
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.
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
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 7
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.
(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,
Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 8
(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 approval of Resolution 13-11, §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 are now exempt from compliance. A Preliminary Plan for
Subdivision is not a requirement of a Minor Subdivision process; therefore review criteria 2 and 3 should
not apply.
Council Action:
If the Council is satisfied with the PZC recommendations and Application, they should approve the Second
Reading of Ordinance No: 13-05.
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: 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
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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
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Project number
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PO Box 1587, Eagle, CO 81631
www.martinmanleyarchitects.com
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Attachment D
Project number
Date
PO Box 1587, Eagle, CO 81631
www.martinmanleyarchitects.com
Sheet
2/21/2013 3:59:39 PM
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1225
Wildridge Point
02-21-13
Wildridge Road East Avon, CO 81620
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Attachment D
Project number
Date
PO Box 1587, Eagle, CO 81631
www.martinmanleyarchitects.com
Sheet
2/21/2013 3:59:44 PM
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Wildridge Point
02-21-13
Wildridge Road East Avon, CO 81620
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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
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Attachment D
Project number
Date
PO Box 1587, Eagle, CO 81631
www.martinmanleyarchitects.com
Sheet
2/21/2013 3:59:54 PM
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Wildridge Point
02-21-13
Wildridge Road East Avon, CO 81620
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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
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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 G
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 G
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 G
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 G
Exhibit A to Ordinance 13-05
Exhibit A to Ordinance 13-05
AMC Amendments
April 9, 2013 Town Council Work Session Page 1 of 4
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Matt Pielsticker, Planner II
Date: April 3, 2013
Agenda Topic: Code Text Amendments recommended by PZC
Summary
The Town Council approved the 2013 Work Plan on February 26, 2013, which includes the following task in
the second quarter of this year: “Identify with the PZC Code Amendments, including “clean‐up” of
definitions, charts, etc. identified through use of the Code over the past year and sections which should be
updated, and sections which should be updated such as the sign code”. Staff has been working with the PZC
to identify and prioritize a list of amendments.
This Report summarizes the list of potential amendments identified by PZC and Staff over the past two
years, while implementing Title 7: Development Code. The list also includes amendments identified by the
Building Official for Chapter 15: Building Code, and the Town Attorney. For efficiency, Staff recommends
that Council formally initiate all of the amendments listed in this Report, and direct Staff to process the
amendments in two (2) tiers. Therefore, the highest priority amendments can commence immediately,
and once the 1st Tier Amendments are complete the 2nd Tier Amendments can begin the process with PZC
review.
Presented to Council are the two tiers recommended by PZC at their March 19, 2013 meeting. Each
amendment includes a code section reference and a brief description.
1st Tier Code Amendments
1. PUD Amendments vs. Minor Amendments | §7.16.060(h), Amendments to Final PUD
Description: All non‐administrative qualifying amendments to established PUD Plans are
governed by this section – which states that §7.16.020(g), Minor Amendment, being the
controlling code section. The Minor Amendment section is intended to apply to already
approved development plan approvals (i.e. single‐family home design approval) or permit
approvals for same; there is no indication how a PUD Amendment would be processed.
Additionally, there is no review criteria called out. This section should refer to §7.16.020 for a
general public review process; Table7.16‐1 should be amended to include Amendment to Final
PUDs and should allow a one‐step review process by PZC and Town Council for minor
amendments to a Final PUD and a clear set of review criteria should be created so as to not
mimic the criteria for a Final PUD which are intended for new PUD overlay districts.
2. PZC/TC Processing Requirements | §7.16.020(e), Public Hearings
Description: The PZC or Council can continue a public hearing on its own initiative for a
maximum of thirty‐five (35) days after the date of the first public hearing, or up to ninety‐five
(95) days with the consent of the applicant. PZC has expressed the desire to lengthen the
time‐frame based on the size or complexity of the application. Clarify that PZC/Council has a
AMC Amendments
April 9, 2013 Town Council Work Session Page 2 of 4
certain number of days (20‐35?) after the close of the public hearing to prepare Findings of
Fact and Record of Decision and take final action.
3. Natural Resource Protection | §7.28.100, Applicability, & §7.28.100(d)(2) Flood Damage
Prevention
Description: The trigger for the various regulations in this Chapter should be reviewed in
light of recent development applications. This may require new definitions, and
consideration should be given to whether or not the steep slope requirements could be
repealed in their entirety if not applied in a uniform basis. Additionally, FEMA is mandating
that the Rules and Regulations regarding floodplains be updated by January 14, 2014. This
will bring Avon into compliance with federally backed loans and other financial assistance
should there be a natural disaster.
4. Defined Terms | §7.08.010, Definitions
Description: As described in the Work Plan, a general sweep of the entire Title 7 including
definitions was identified. The whole Development Code will be reviewed for consistency
with definitions to determine whether certain terms and words are properly defined. For
example, the “Town Core” is defined as the “central” commercial core, excluding residential
property, and is further defined with the Town Core Map. Staff recommends removing the
properties north of Interstate‐70 from the Town Core Map since Council review is not
warranted in this area.
2nd Tier Amendments
1. Signs | §15.28, Sign Code
Description: These regulations have not been updated in substance since 1986 and should be
reviewed against the Town Center District Plans and the current needs of the business
community. Staff anticipates involvement from the Avon Business Association (ABA) and/or
the Economic Development Subcommittee if necessary.
2. Mailed Notice | §7.06.020(d)(2)
Description: This section requires mailed notice for zoning amendments, subdivision, PUD,
and variance applications. In order to provide consistency with the previous AMC
requirements and to give adequate notice to neighboring property owners for Special
Review Use (“SRU”) permits, it is recommended to include SRU permits in the list of required
application types for Mailed Notice since these approvals are site specific and could affect
adjacent properties.
3. Historic Preservation Committee | §7.12.070, Historic Preservation Committee, Table 7.16‐1,
Development Review Procedures and Review Authority, §7.16.170, Historic Designation
Description: When the ADC was codified, 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.
AMC Amendments
April 9, 2013 Town Council Work Session Page 3 of 4
4. Re‐zoning & Zoning Amendments | §7.16.050, Zoning Amendments
Description: The terms ‘rezoning’ and ‘zoning amendment’ are used interchangeably
throughout the Development Code. Staff’s preference is to use the term re‐zoning in all
instances for consistency and clarity. While changing the zoning entitlements for a piece of
property through a different process (i.e. PUD Amendment) can also be considered a zoning
amendment, this section clearly is intended to be applied to changes in zoning classifications.
5. Design Review Purpose | §7.16.090, Design Review
Description: The purpose statement for Design Review references “conformance with the
Avon Design Guidelines”. Since the Town no longer has design guidelines, this section should
reference the Design Standards, §7.28.090.
6. Neighborhood Commercial Zone District | §7.20.080(a), Neighborhood Commercial, Table
7.20‐7, Dimensions for the Neighborhood Commercial District
Description: The Neighborhood Commercial (NC) zone district does not include a maximum
density. It includes the same provision that is included with the MC and TC zone districts that
allow for unlimited densities so long as adequate water is brought to the table. The intention
of that clause was for property within the town core, but the NC zone district tends to be
located in outlying areas and should include a maximum density.
7. Allowed Uses for Industrial Commercial (IC) | Table 7.24‐1
Description: During the review of a SRU permit in the IC district, PZC discussed the need to
reconsider the permitted and list of uses eligible for SRU for this zone district.
8. Landscaping | §7.28.050(f)(1) Parking Lot Perimeter Landscaping
Description: The section requires 1.2 “landscape units” per lineal foot of parking lot
perimeter, and the number appeared to be abnormally high to achieve the desired screening
requirements. Through implementation, this section was identified by PZC as a candidate for
amendment.
9. Building Code Cleanup | Title 15, Building Code
§15.04.010, Violations – should include language “firm, or corporation”
§.15.08.010, Adoption – Missing reference
§15.08.036, Commercial Floor and Roof ‐ to mimic residential load requirements.
§15.08.120, Ground Snow Loads – Exterior decks shall also hold roof snow loads.
§15.08.300 & 310, Violation – Delete these sections since they are covered in §15.04.010 &
§15.04.020 respectively
§15.12.010, Adoption – Should reference new edition title 2011 National Electrical Code, “or
most current version”.
§15.12.300, §15.14.300, §15.18.300, §15.20.300, §15.26.300 – all violation sections missing the
words “extend and remove.”
10. Fireplaces | §15.24, Solid‐Fuel Burning Devices
AMC Amendments
April 9, 2013 Town Council Work Session Page 4 of 4
Description: These regulations permit wood burning fireplaces above the elevation of 7,820
ft. The Chief Building Official has considered limiting wood burning devices altogether for
health and safety purposes.
12. FEMA Regulations | §7.28.100(d)(2) Flood Damage Prevention
Description: FEMA is mandating that the Rules and Regulations regarding floodplains be
updated by January 14, 2014. This will bring Avon into compliance with federally backed
loans and other financial assistance should there be a natural disaster.
Process
The process for Municipal Code amendments are governed by AMC §7.16.040. Code text amendments
may only be initiated by a property owner, registered elector, or Town Council. Once initiated, the process
follows the usual public hearing review procedure outlined in the Municipal Code (i.e. Staff
recommendation to PZC, PZC recommendation to Council, and final action by Council with Ordinance).
Staff Recommendation
Initiate this amendment process by motion and vote of the Council.
PZC Rules of Procedure
April 9, 2013 Town Council Regular Meeting
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Jared Barnes, Planner I
Date: April 9, 2013
Agenda topic: PZC Rules of Procedure
Summary
The Planning and Zoning Commission (PZC) has previously adopted Rules of Procedure as a part of the
Avon Design Guidelines. In 2010, when the Town adopted AMC Title 7, Development Code, the Design
Guidelines were eliminated as the new code included design standards. This also caused the previously
adopted Rules of Procedure to be removed.
§7.12.040, Planning and Zoning Commission, sets forth codified standards for the PZC including, but not
limited to: Establishment and Purpose; Duties; Membership; Qualifications of Members; Quorum; Term;
Vacancies; Removal from Office; Officers; Compensation; Staff; Rules and Procedures; Meetings; Material
to be Submitted; Agenda; and, Authority to Retain Consultants.
§7.12.040(l), Rules and Procedures, requires the PZC to operate in compliance with their own Rules of
Procedure. It further states that these Rules of Procedures may be adopted or amended from time to
time through a recommendation to Town Council and formal adoption by Town Council. Other sections,
such as §7.12.040(m), Meetings, and §7.12.040(n), Materials to be Submitted, state that the Rules of
Procedure shall govern.
Process and PZC Review
This matter was identified in the 2013 PZC Work Plan for the 1st Quarter, and therefore Staff has prepared
Draft Rules of Procedure (Attachment A) for the PZC to review. The PZC reviewed these Rules of
Procedure at both their March 19th, 2013 and April 2nd, 2013 meetings. At their April 2nd, 2013 meeting, the
PZC recommended these proposed Rules of Procedure be adopted. Staff is of the opinion that these
Rules of Procedure, as proposed, provide clarity to the process that occurs at meetings and will assist
future PZC members with better understanding the process they are expected to abide by. These rules of
procedure also set forth standards for scheduling meeting and cancelling meetings; standard order of
agendas; procedures for executive sessions; and, Decisions of the PZC among other aspects.
Council Action
If the Council is satisfied with the PZC recommended Rules of Procedure they should move to adopt the
PZC Rules of Procedure (Attachment A).
Attachment
A: PZC Rules of Procedure, April 2013
1 | Page
Planning and Zoning Commission Rules of Procedure (March 2013)
Town of Avon
Planning and Zoning Commission
Rules of Procedure
April 2013
Attachment A
2 | Page
Planning and Zoning Commission Rules of Procedure (March 2013)
Table of Contents
1. Authority For Adoption ......................................................................................................................... 4
2. Applicability ........................................................................................................................................... 4
3. Definitions ............................................................................................................................................. 4
4. Other Laws ............................................................................................................................................ 4
5. Regular Meetings .................................................................................................................................. 4
Date, Time and Place of Regular Meetings ...................................................................................... 4 (a)
Notice of Regular Meetings ............................................................................................................. 4 (b)
6. Special Meetings ................................................................................................................................... 5
7. Continued Meetings .............................................................................................................................. 5
8. Cancellation of Meeting ........................................................................................................................ 5
9. Applicability of Colorado Open Meetings Law ...................................................................................... 5
10. Electronic Record/Minutes ............................................................................................................... 5
11. Director ............................................................................................................................................. 5
12. Agenda and Meeting Materials ........................................................................................................ 6
Proposed Agenda ............................................................................................................................. 6 (a)
Meeting Packets ............................................................................................................................... 6 (b)
13. Officers .............................................................................................................................................. 6
14. Conduct of Commission Members .................................................................................................... 7
Conformity With Town Code of Ethics ............................................................................................. 7 (a)
Ex Parte Contacts ............................................................................................................................. 7 (b)
15. Conflicts of Interest ........................................................................................................................... 7
16. Expressions of Bias, Prejudice, or Individual Opinion Prior to Hearing and Determination ............. 8
17. Action by the Commission ................................................................................................................ 8
Action By Motion ............................................................................................................................. 8 (a)
Who May Make A Motion ................................................................................................................ 8 (b)
Second Required .............................................................................................................................. 8 (c)
One Motion at a Time ...................................................................................................................... 8 (d)
Amending a Motion ......................................................................................................................... 8 (e)
Rescind or Withdrawal of an Approved Motion .............................................................................. 8 (f)
18. Voting ................................................................................................................................................ 8
Who May Vote ................................................................................................................................. 8 (a)
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
Adoption by Majority Vote .............................................................................................................. 8 (b)
Duty to Vote ..................................................................................................................................... 8 (c)
19. Debate ............................................................................................................................................... 8
20. Executive Sessions............................................................................................................................. 9
21. Site Visits ......................................................................................................................................... 10
22. General Provisions Governing Public Hearings ............................................................................... 10
Part of Meeting .............................................................................................................................. 10 (a)
Representation .............................................................................................................................. 10 (b)
Testimony Under Oath Not Required ............................................................................................ 10 (c)
Right To Present Evidence And Cross-Examine Witnesses ............................................................ 10 (d)
Rules Of Evidence........................................................................................................................... 11 (e)
Objections ...................................................................................................................................... 11 (f)
Burden Of Proof ............................................................................................................................. 11 (g)
Limitation of Evidence ................................................................................................................... 11 (h)
Order of Debate ............................................................................................................................. 11 (i)
Commission and Staff's Remarks ................................................................................................... 11 (j)
Applicant (and Others) Questioned ............................................................................................... 11 (k)
23. Consent Agenda .............................................................................................................................. 11
24. Regular Application Items (Non-Public Hearings) ........................................................................... 12
25. Regular Application Items (Public Hearings) ................................................................................... 13
26. Continuance of Hearing .................................................................................................................. 13
27. Audio-Tape of Public Hearing ......................................................................................................... 14
28. Record of the Public Hearing .......................................................................................................... 14
29. Reopening of a Public Hearing ........................................................................................................ 14
30. Decisions By Commission ................................................................................................................ 14
31. Execution of Documents ................................................................................................................. 14
32. Suspension of the Rules .................................................................................................................. 14
33. Amendment of the Rules ................................................................................................................ 15
34. Reference to Robert’s Rules of Order ............................................................................................. 15
35. Effect of Adoption of Rules ............................................................................................................. 15
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
1. Authority For Adoption
These Rules of Procedure are adopted pursuant to the authority granted to the Town of
Avon Planning and Zoning Commission by §7.12.040(l) of the Avon Municipal Code.
2. Applicability
These Rules of Procedure shall apply to all meetings of the Town of Avon’s Planning and
Zoning Commission. These Rules of Procedure are intended to supplement and be
superseded by the codified Rules listed in §7.16.040, Planning and Zoning Commission, of the
Avon Municipal Code.
3. Definitions
Rules means these Rules of Procedure, as amended from time to time.
Commission means the Town of Avon’s Planning and Zoning Commission and also defined as
PZC.
Director means the Community Development Director of the Town of Avon, or such person’s
designee.
Presiding Officer means the Chair, or to the Vice-Chair or Temporary Chair when acting in the
absence of the Chair.
4. Other Laws
These Rules must be read in conjunction with the Town of Avon’s Development Code, as
well as all applicable Town, state or federal laws, rules or regulations. In the event of a
conflict between these Rules and any ordinance or statute, the ordinance or statute shall
control.
5. Regular Meetings
Date, Time and Place of Regular Meetings (a)
The Commission shall hold regular meetings on the first and third Tuesdays of each
month, except that if a regular meeting day is a legal holiday, the meeting may be
rescheduled or cancelled at the discretion of the Commission.
All regular meetings of the Commission shall be held in the Town Council Chambers of
the Avon Municipal Building, One Lake Street, Avon, Colorado, unless the Commission
shall otherwise order. Each regular meeting of the Commission shall begin at 5:00 P.M.,
unless otherwise provided in the notice of the meeting.
At the discretion of the Director an application may be scheduled out of the normal
order of business if it involves a matter of substantial public interest, or if the Director
determines that good cause exists to vary the normal order of business. Further, by
general consent of the Commission, items may be considered out of order.
Notice of Regular Meetings (b)
Notice of each regular meeting shall be posted by the Director in Town Hall and 3
additional public locations as designated by the Director not less than 24 hours prior to
the holding of the meeting. The posting shall include specific agenda information where
possible and may be substituted by the meeting agenda.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
6. Special Meetings
Special meetings of the Commission shall be called by the Director on the written request of
the Chair, the Vice-Chair in the absence of the Chair, or on the written request of any four (4)
members of the Commission. A special meeting may also be called or scheduled by vote of
the Commission in open session during another duly called meeting.
Notice of a special meeting shall be posted in accordance with Section 5(b). The notice shall
set forth the date, hour, place and purpose of such meeting.
No business shall be conducted at a special meeting of the Commission unless the same has
been stated in the notice of such meeting; except that any business which may lawfully
come before a regular meeting of the Commission may be transacted at a special meeting if
all members of the Commission are present and consent thereto.
7. Continued Meetings
A properly called regular or special meeting may be continued to a date and time certain by
motion made and adopted in open session during the regular or special meeting. The
motion shall state the date, time and place when the meeting will reconvene. No further
notice need be given of such a continued session of a properly called regular or special
meeting.
8. Cancellation of Meeting
If: (i) no business is scheduled before the Commission; (ii) it is apparent that a quorum will
not be available; or, (iii) the scheduled date for any Commission member is a legal holiday; a
meeting may be cancelled by the Chair or the Director by giving notice to all members prior
to the time set for such meeting. Notice of cancellation of a meeting may be given by
telephone, electronically (email), fax, in person, or by first class mail. If no quorum is
present at the meeting, the Director shall cancel the meeting and all items scheduled to be
heard shall be rescheduled by the staff.
9. Applicability of Colorado Open Meetings Law
All meetings of the Commission shall be subject to the provisions of the Colorado Open
Meetings law.
10. Electronic Record/Minutes
The Commission shall keep an electronic record of its meetings, including any executive
sessions. In addition, written minutes of the Commission proceedings, except executive
sessions, shall be kept as required by the Colorado Open Meetings law. Records of
executive sessions shall be kept in accordance with the requirements of the Colorado Open
Meetings law. These minutes shall be open to inspection of the public as provided in the
Colorado Open Meetings law. The exact wording of each motion and the vote of the
Commission thereon shall be recorded in the minutes.
11. Director
The Director shall designate a person or persons to provide the necessary recording services
for the Commission. The Director shall be responsible for the giving of all required notice of
Commission public hearings and actions under the Development Code or Subdivision
Standards.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
12. Agenda and Meeting Materials
Proposed Agenda (a)
The Director shall set forth the agenda for each meeting. The Director may consult the
Chair for input when formulating the agenda. The proposed agenda should generally be
consistent with the Order of Business as follows:
Call to Order
Roll call
Amendments to the Agenda
Conflicts of Interest Disclosure
Consent Agenda
Regular Agenda Items (Public Hearings)
Regular Agenda Items (Non-Public Hearings)
Approval of Meeting Minutes
Adjournment
At the discretion of the Director, an application may be scheduled out of the normal
order of business if it involves a matter of substantial public interest, or if the Director
determines that good cause exists to vary the normal order of business. Further, by
general consent of the Commission, during the Amendments to the Agenda portion of
the meeting items may be considered out of order.
Meeting Packets (b)
Meeting Packets shall be provided to the Commission not later than 48 hours prior to the
meeting. The meeting packets shall include the proposed agenda and meeting materials
for each agenda item. The meeting materials for each agenda item should generally
include a staff summary as well as accompanying information.
13. Officers
Pursuant to Section 7.12.040(i), Officers, the PZC shall select its own chairperson, a vice
chairperson and a secretary from among its members. This selection shall occur on a yearly
basis immediately after the appointment of new members or re-appointment of existing
members to the Commission.
The Chair shall preside at all Commission meetings if he or she is present. The Chair may
vote in all cases. In order to address the Commission, a member must be recognized by the
Chair.
If the Chair is absent, the Vice-Chair shall preside. If both the Chair and Vice-Chair are absent,
another member designated by vote of the Commission shall preside as Temporary Chair.
The Vice-Chair or Temporary Chair retains all of his or her rights as a member, including the
right to make motions and the right to vote.
The Presiding Officer shall maintain order and decorum, and to that end may order removal
of disorderly or disruptive persons.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
14. Conduct of Commission Members
Conformity With Town Code of Ethics (a)
The conduct of Commission members shall at all times conform with the requirements of
the Town of Avon Code of Ethics (Chapter 2.30, AMC).
Ex Parte Contacts (b)
Each member of the Commission must exercise care in responding to and reporting any
ex parte contact with respect to any matter which is pending before the Commission.
(1) An ex parte contact is any contact (written, oral or electronic) concerning a
matter pending before the Commission which is offered to or received by a
member of the Commission outside of the actual hearing process.
(2) Whenever a person attempts to make an ex parte contact with a member of the
Commission, the member shall, to the extent possible, refuse to accept such ex
parte contact. The member shall advise the person who is attempting to make
the ex parte contact that all comments and information related to the pending
matter should be presented to the entire Commission, as well as all interested
parties, at the time of the public hearing.
(3) Any member of the Commission who has received an ex parte contact must
report the information and identify the source and date of the contact, to the full
Commission and the applicant for inclusion in the formal record of the hearing on
the application.
(4) Any written ex parte contact transmitted to or received by a member of the
Commission concerning a matter which is pending before the Commission,
including printed and mailed communications, shall be forwarded directly to the
Director for review and incorporation into the staff’s report. A copy of such
written material shall also be provided to the applicant not later than the
commencement of the hearing.
(5) The rule against ex parte contacts shall not apply to preclude members of the
Commission from seeking and receiving information from other members, the
Director, the Town Attorney, or staff members of the Department of Community
Development, but no member of the Commission shall discuss the matter with
the applicant, the applicant’s counsel or representatives, or any person
reasonably anticipated to be witnesses prior to the public hearing.
15. Conflicts of Interest
The topic of conflicts of interest of Commission members is specifically dealt with in the
Town’s Code of Ethics, specifically §2.30.060, Conflict of Interest.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
16. Expressions of Bias, Prejudice, or Individual Opinion Prior to Hearing and
Determination
No member of the Commission shall express any bias, prejudice, or individual opinion on the
proper outcome of a matter prior to its hearing and determination.
17. Action by the Commission
Action By Motion (a)
The Commission shall proceed by motion, unless otherwise required by applicable law.
Who May Make A Motion (b)
Any member of the Commission, including the Chair, may make a motion.
Second Required (c)
A motion requires a second. Any member of the Commission, including the Chair, may
second a motion.
One Motion at a Time (d)
A member may make only one motion at a time.
Amending a Motion (e)
A member may suggest amendments to a motion that has been seconded. The
amendments are only made to the motion if both the members making the motion and
second accept the amendments.
Rescind or Withdrawal of an Approved Motion (f)
The Commission may rescind or withdrawal an approved motion if additional information
is brought to light after the motion is made that alters the Commissions review or if a
procedural error was made through the motion.
18. Voting
Who May Vote (a)
Except as provided in Section 15, with respect to a member who has a conflict of interest,
each member of the Commission, including the Chair, must vote on any motion.
Adoption by Majority Vote (b)
A motion shall be adopted by a majority of the votes cast when a quorum is present. A
majority is more than half.
Duty to Vote (c)
Every member of the Commission must vote unless excused by the remaining members
of the Commission. The types of vote are limited to: (1) Yes; (2) No; and, (3) Abstain.
19. Debate
The Chair shall state the motion and then open the floor to debate. The Chair shall preside
over the debate according to the following general principles:
1. The maker of the motion is entitled to speak first;
2. A member who has not spoken on the issue shall be recognized before someone who
has already spoken.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
At their discretion, the Chair may alter the order of the debate or allow members to further
comment during the debate. It is the Chair’s duty to allow any member of the Commission
to comment or debate if that member wishes to be heard.
20. Executive Sessions
At any meeting the Commission, by consent of 2/3 of the quorum present, may go into
executive session for those purposes authorized by law. No adoption of any proposed
policy, position, resolution, rule, regulation or formal action shall occur at any executive
session of the Commission which is not open to the public, except as authorized by the
Colorado Open Meetings law. Prior to the Commission going into executive session the
Chair shall announce to the public the general topic of executive session, including a specific
citation to the applicable provision of the Colorado Open Meetings law which authorizes the
Commission to meet in an executive session, and identification of the particular matters to
be discussed in as much detail as possible without compromising the purpose for which the
executive session is authorized. The Commission shall terminate the executive session by a
majority vote. Only those actions authorized by statute may be taken in an executive
session. A motion to adjourn or recess a meeting shall not be in order during an executive
session.
A tape recording of the actual contents of the discussion during an executive sessions shall
be made by the Chair of the meeting at which the executive session is held. The tape
recording of an executive session shall not be subject to public disclosure or to discovery in
any administrative or judicial proceeding, except in an action brought pursuant to Section
24-72-204(5.5)(a), C.R.S. Such tape recording shall be retained by the Director for only ninety-
one (91) days after the date of the executive session. If, on such date, the Town has not
been served with a summons in an action to review such tape recording pursuant to Section
24-72-204(5.5)(a), C.R.S., the Director shall forthwith cause the tape recording of the
executive session to be destroyed. The mandatory destruction of an executive session tape
as provided in this Rule shall be deemed to be part of the Town’s record retention and
destruction policy.
If it appears that the tape recorder in the Commission chambers is not functioning properly
at the time that an executive session is to be held, or if there is no tape recorder available at
the location where the executive session is to by held, or when otherwise deemed necessary
or advisable by the Commission, a written record of the actual contents of the discussion
during an executive session which satisfies the requirements of Section 24-6-402
(2)(d.5)(II)(A) and (B), C.R.S., shall be kept. The written minutes of an executive session shall
not be subject to public disclosure, or to discovery in any administrative or judicial
proceeding, except in an action brought pursuant to Section 24-72-204(5.5)(a), C.R.S. The
written record of an executive session, in the form of written minutes of the executive
session, shall be retained by the Director for only ninety one (91) days after the date of the
executive session. If, on such date, the Town has not been served with a summons in an
action to review such written record pursuant to Section 24-72-204(5.5)(a), C.R.S., the
Director shall forthwith cause the minutes of the executive session to be destroyed. The
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
mandatory destruction of executive session minutes as provided in this Rule shall be
deemed to be part of the Town’s record retention and destruction policy.
The provisions of Section 24-6-402(2)(d.5)(II)(B), C.R.S., concerning privileged attorney-client
communications which occur in an executive session shall apply to any record of an
executive session kept by the Commission.
21. Site Visits
Each commissioner should visit sites of proposed developments prior to attending a
meeting, as a helpful way to gather relevant facts concerning the proposed development. A
site visit often leads to a better understanding of a proposed development and, therefore,
enhances the ability of the Commission to make appropriate decisions concerning the
development of the site.
The Commission, as a whole, may schedule and conduct a site visit when requested to do so
by the applicant, the staff, the general public, or on its own initiative. In connection with any
site visit conducted by the Commission, the applicant shall be notified not less than 48 hours
in advance and given an opportunity to attend and participate in the site visit. A site visit
shall be noticed by the Director as a public meeting of the Commission. However, a site visit
is not a public hearing. Members of the public shall be permitted to attend the site visit to
listen to the questions and comments of the staff, the applicant and the Commission, but
only at the discretion of the Chair does the public have the right to ask questions of the
staff, the applicant or the Commission members. Commission members shall avoid
engaging in improper ex parte contacts during a site visit. No minutes of a site visit shall be
kept by the Director, although the minutes of the Commission should reflect that a site visit
was conducted.
22. General Provisions Governing Public Hearings
Part of Meeting (a)
A public hearing is considered to be part of a regular or special meeting of the
Commission.
Representation (b)
At any hearing, any person may appear or be represented by authorized agents or
attorneys at their own expense. Any person who appears before the Commission at any
hearing shall be required to state the name(s) and address(es) of all persons whom he or
she has been authorized to represent at the hearing.
Testimony Under Oath Not Required (c)
Testimony offered at a hearing before the Commission shall not be required to be given
under oath or affirmation.
Right To Present Evidence And Cross-Examine Witnesses (d)
At a hearing held before the Commission, each party shall have the right to present such
evidence as may be relevant, and to cross-examine all witnesses.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
Rules Of Evidence (e)
The strict rules of evidence shall not apply to a hearing held before the Commission.
Objections (f)
Objections by the Applicant to submitted evidence shall be stated orally for the record.
Any objection not made in a timely and proper fashion shall not be recognized.
Burden Of Proof (g)
The burden of proof shall be on an applicant to prove compliance with the applicable
requirements of the Development Code, Subdivision Standards, or other applicable law
by a preponderance of the evidence. Preponderance of the evidence means to prove that
something is more probably true than not.
Limitation of Evidence (h)
The Presiding Officer shall have the authority to limit the presentation of evidence
tending to be repetitious or which is immaterial or irrelevant.
Order of Debate (i)
Orderly procedure requires that each side shall proceed without interruption by the
order; that all arguments and pleadings shall be addressed to the Commission; and that
there be no questioning or argument between individuals.
Commission and Staff's Remarks (j)
During the hearing, Commission members and members of the staff may ask questions
and make appropriate comments pertinent to the application; however, no member
should debate or argue an issue with the applicant.
Applicant (and Others) Questioned (k)
The Commission members may direct questions to the applicant or any person speaking
in order to bring out all relevant facts, and may call for questions from members of the
staff.
23. Consent Agenda
Items are presented to the Commission on a Consent Agenda when Commission action is
required, but Staff expects that the Commission will approve the item without conditions.
The Commission may call up items for further review when warranted, at their discretion.
The following procedures shall be utilized for the review of the Consent Agenda; this review
is intended only to ascertain if the items should remain on the Consent Agenda or be pulled
off for further review:
A. The Commission reviews the requests and asks minimal questions of the staff and
applicants. These comments may be brief, and shall be limited to: (i) clarification of the
Commissions understanding of the application(s); and (ii) the issue of whether a
particular item should be removed from the Consent Agenda and called up by the
Commission.
C. The Commission may make motions to pull items off the Consent Agenda for further
review.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
D. Any motions to remove items from the Consent Agenda shall be acted on at the time
the motion is made.
E. If no items are removed from the Consent Agenda, the Chair shall state "the Consent
Agenda stands approved as presented". If an item has been removed, the Chair shall
state that "all remaining items on the Consent Agenda stand approved as presented,"
and the Commission shall move on to the review of those items removed.
F. Items removed from the Consent Agenda shall be reviewed in the order that would
pertain to that type of application as is outlined in Sections 24 and 25.
24. Regular Application Items (Non-Public Hearings)
The following process shall be utilized for all regular application items that are not
specifically designated as public hearings and may be amended by the Chair at their
discretion, subject to the right of the Commission to overrule the Chair:
A. The Chair opens the hearing.
B. Staff introduces the application and may provide a summary of the staff analysis.
C. The Commission asks questions of the staff concerning the staff analysis or procedure
of the application.
D. The applicant or applicant's representative presents the applicant’s evidence in
support of the application.
D. The Commission asks questions of the applicant (or applicant’s representative)
concerning the application.
F. Audience participation and comment may only be allowed at the discretion of the
Chair, subject to the right of the Commission to overrule the Chair. If comment is
allowed, it shall take place prior to Commission comments; shall be allowed equally for
all participants; and shall allow for an opportunity for the applicant to respond to any
opposition comments.
G. The staff is given the opportunity to rebut any evidence presented by the applicant or
the public, and make its final comments.
H. The applicant is given the opportunity to rebut any evidence presented by the staff or
the public, and make its final comments.
I. The Commission members are given a second opportunity to examine any witnesses
and the applicant, and to discuss the request.
J. Members of the Planning Commission make individual comments concerning the
application. The analysis, as presented by the staff, and testimony, as presented by the
applicant, may be discussed by the Commission.
K. The Chair shall ask if any motions to accept or change the staff analysis and
recommendation are to be made. Motions shall be made pursuant to Section 17.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
L. The Commission shall then vote on the proposed motion, including any and all
additional, specific findings and conditions to be placed upon the application if
approved. The vote from the Commission shall be pursuant to Section 18.
25. Regular Application Items (Public Hearings)
The following process shall be utilized for all regular application items that are not
specifically designated as public hearings and may be amended by the Chair at their
discretion, subject to the right of the Commission to overrule the Chair:
A. The Chair opens the public hearing.
B. Staff introduces the application and may provide a summary of the staff analysis.
C. The Commission asks questions of the staff concerning the staff analysis or procedure
of the application.
D. The applicant or applicant's representative presents the applicant’s evidence in
support of the application.
E. The Commission asks questions of the applicant (or applicant’s representative)
concerning the application.
F. The Chair opens the Public Hearing and the Commission takes public comment
concerning the application. Once all public comment is received the Chair closes the
Public Hearing, unless reopened pursuant to Section 29.
G. The staff is given the opportunity to rebut any evidence presented by the applicant or
the public, and make its final comments.
H. The applicant is given the opportunity to rebut any evidence presented by the staff or
the public, and make its final comments.
J. Members of the Planning Commission make individual comments concerning the
application. The analysis, as presented by the staff, and testimony, as presented by the
applicant, may be discussed by the Commission.
K. The Chair shall ask if any motions to accept or change the staff analysis and
recommendation are to be made. Motions shall be made pursuant to Section 17.
L. The Commission shall then vote on the proposed motion, including any and all
additional, specific findings and conditions to be placed upon the application if
approved. The vote from the Commission shall be pursuant to Section 18.
26. Continuance of Hearing
The Commission may continue any hearing, upon timely request, for good cause shown, or
upon its own initiative. If a hearing is continued to a date certain, it shall not be necessary to
re-notice the hearing; it shall be conclusively presumed that all interested parties are aware
of the continuation of the hearing. If any hearing is continued without a date certain being
specified, it shall be necessary to re-notice the hearing in the same manner as the original
notice of hearing was given.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
27. Audio-Tape of Public Hearing
An audio-taped record shall be made of each hearing which is held by the Commission. The
Town shall retain the original audio-tape for not less than one (1) year. A copy of an audio-
taped record of a hearing shall be made to any party upon written request and payment of a
fee determined by the Town Clerk to be sufficient to reimburse the Town for the cost of
providing such copy. The Town shall not be obligated to provide a transcript of a hearing
which is held before the Commission, and any party desiring such transcript shall obtain and
pay the cost thereof.
28. Record of the Public Hearing
The record of a public hearing which is held before the Commission shall consist of: (i) all
staff reports and similar information which is provided to the Commission in connection with
the public hearing, excluding confidential attorney-client communications from the Town
Attorney; (ii) all documents admitted into evidence by the Commission; (iii) all documents
offered into evidence at the hearing, but not admitted; (iv) the written decision of the
Commission; (v) copies of any applicable statutes, ordinances, rules or regulations; (vi) a
transcript of the public hearing; and (vii) such other documents as may properly be included
in the record.
29. Reopening of a Public Hearing
Whenever a public hearing has been opened and continued to another date, or where it has
been closed and the Commission wishes to take additional evidence prior to a vote or a
reconsideration of a vote, the Chair may reopen the public hearing for purposes of taking
such additional evidence. The Chair may limit the scope of such evidence to be taken.
Whenever a public hearing is reopened and additional evidence is taken, all such additional
evidence shall be deemed to be a part of the original public hearing.
30. Decisions By Commission
The decisions by the Commission shall be pursuant to §7.16.020(f), Step 6: Review and
Decision.
31. Execution of Documents
Any document which requires the written approval of the Commission may be executed by
the Chair, or in absence or incapacity of the Chair, by the Vice-Chair. In the event that both
the Chair and the Vice-Chair are absent from the Town or are incapacitated at the same time,
any member of the Commission may lawfully sign a document in the capacity of Assistant
Vice-Chair.
32. Suspension of the Rules
Any provision of these Rules not governed by the Town Charter or the ordinance which
created the Commission may be temporarily suspended at any meeting of the Commission
by a majority vote of the Commission. Any Rule may be suspended by general consent if the
matter is presented by the Chair and there is no objection by any member of the
Commission.
Attachment A
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Planning and Zoning Commission Rules of Procedure (March 2013)
33. Amendment of the Rules
These Rules may be amended at any regular meeting or at any properly called special
meeting that includes amendment of the Rules as one of the stated purposes of the
meeting. Adoption of an amendment shall be pursuant to §7.12.040(l) of the Avon Municipal
Code.
34. Reference to Robert’s Rules of Order
The Commission shall refer to the current edition of Robert’s Rules of Order Newly Revised,
to answer procedural questions not resolved in these Rules, so long as Robert’s Rules of
Order Newly Reviosed does not conflict with Colorado law, or with the spirit of these Rules.
35. Effect of Adoption of Rules
These Rules supersede all prior rules and regulations of the Commission.
Adopted: April 9th, 2013
Attachment A
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: April 5, 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. I
have not received further revisions to the Service Plans from Traer Creek Metropolitan District or Village
Metropolitan District.
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. The status report filed Michael
Repucci on behalf of Traer Creek LLC refers to a number of financial documents which encumber the
property. I have not received further information regarding the status of addressing those issues. Other
conveyance documents, namely the Nottingham Dam Easement Agreement and Wet Well Easement
Agreement are slowly making progress.
Receipt and Closing Escrow Agreement: We have received additional revisions to Receipt and Closing
Escrow Agreement from the Traer Creek LLC, which are non-substantive and primarily focused on
correcting and updating the list of documents.
Review of Bond Documents: I understand that drafts of bond documents may be available for review in
the next couple weeks. We have asked the attorneys and parties involved in the bond document
preparation to schedule weekly conference calls to coordinate sharing of information and the status of
preparing a complete first draft of bond documents.
Status Conference with Court: The next conference is scheduled 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 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: Meredith Van Horn, Assistant Town Attorney
RE: Revisions to Add-On Retail Sales Fee Collection Services Agreement
DATE: April 4, 2013
Summary: Version 5 of the Add-On Retail Sales Fee Collection Services Agreement was provided to
Council with a cover memorandum on March 29, 2013. Special District Management Services initially
stated that Version 5 was acceptable, but then required additional changes regarding the timing for
remittance of funds and the cap on the total cost of “Collection Expenses.” This memorandum explains the
changes from Version 6 to Version 5 of the Add-On Retail Sales Fee Collection Services Agreement. The
specific language changes in Version 6 are re-printed in this memorandum and the full copy of Version 6 is
not provided. The revised Resolution No. 13-13 is included with this memorandum (the only revision being
to insert the assigned number of the Resolution).
Timing of Disbursement of Add-On RSF Revenues: Sections 1.1(a) and 1.4 are revised to delete the
requirement that Special District Management Services (“SDMS”) deposit Add-On RSF Revenues no later
than seven business days after receipt and replaced with the requirement that funds be deposited: “Not
later than the first business day of the month following the month of receipt of any Add-On RSF Revenues
from Add-On RSF Obligors.”
As written in Version 5, SDMS could be required to make multiple deposits due to the fact that all
retailers may not remit the RSF amounts on the same day. Requiring multiple deposits would increase the
time and costs of SDMS’ services which in would then be deducted from the gross Add-On RSF revenues
collected. Generally, collection and remittance on a monthly basis is consistent with Town’s sales tax
collection process. Comparisons (Redlines) of Sections 1.1(a) and 1.4 are provided as follows:
1.1. Appointment of SDMS as Agent of the PICs and the Town.
(a) Appointment and Acceptance. The PICs hereby appoint SDMS as their
and the Town’s agent, the Town hereby consents to such appointment, and SDMS hereby
accepts such appointment, for purposes of (i) receiving, collecting, accounting for and
administering all Add-On RSF Revenues paid by Add-On RSF Obligors, and (ii)
remitting and disbursing all Add-On RSF Revenues to the Commercial PIC, the Mixed-
Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town, or
as otherwise required pursuant to this Agreement), during the term of and subject to the
terms and conditions of this Agreement. By the execution of this Agreement, SDMS
accepts the responsibility of receiving the Add-On RSF Revenues from Add-On RSF
Obligors and depositing such Add-On RSF Revenues in the PIC Add-On RSF Account,
the Town Add-On RSF Account and/or the Asphalt Overlay Account, as applicable,
within sevennot later than the first business days afterday of the month following the
month of receipt thereof, subject to the terms and conditions of this Agreement.
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Add-On Retail Sales Fee Services Collection Agreement
April 4, 2013
Page 2 of 2
Add-On Retail Sales Fee Services Collection Agreement
April 4, 2013
Page 2 of 2
1.4 Deposit of Add-On RSF Revenues by SDMS. Not later than the seventhfirst
business day afterof the month following the month of receipt of any Add-On RSF
Revenues from Add-On RSF Obligors, SDMS will deposit such Add-On RSF Revenues
as follows:
Revision to Exhibit E Regarding 1% Cap: Exhibit E is revised to delete the language stating that
Collections Expenses will be capped at one percent of the Municipal Payments for the applicable period.
The new language states that SDMS will not charge an hourly rate or other Collection Expenses rates
higher than those it charges to collect the Credit RSF. Third-party invoices (such as those of an auditor)
are excluded from this limitation on the rates.
The SDMS agreement to collect the Credit RSF revenues (for the PIC for remittance to Traer Creek
Metropolitan District) does not contain a one percent cap provision and SDMS indicated that it could not
provide the services under the Agreement with a one percent cap in place. The revised language does
limit the hourly rate and rates for Collection Expenses charged by SDMS as required by the Town. A
comparison (redline) of the changes to Exhibit E is provided as follows:
EXHIBIT E
SDMS Fee Schedule
For performance of services SDMS fees are billed monthly. The current
hourly rate as of the Effective Date is $130.00 per hour. For so long as SDMS is
performing collection services with respect to the Credit RSF Revenues pursuant
to a separate agreement, SDMS will not charge an hourly rate or other Collection
Expense rates (excluding third-party invoices paid by SDMS that are
reimbursable as a Collection Expense) under this Agreement that exceeds the
hourly rate charged for its services under the agreement pertaining to collection of
the Credit RSF Revenues. A minimum monthly charge of two hours will be
billed as a stand-by fee (“Stand-By Fee”), provided that the Stand-by Fee will be
waived to the extent of actual hours billed. The hourly rate will increase annually
on the anniversary date of the Effective Date in accordance with the
Denver/Boulder Consumer Price Index. Notwithstanding the foregoing or any
provision of this Agreement to the contrary, the Collection Expenses (excluding
reimbursements) will be capped at one percent of the Municipal Payments for the
applicable Reporting Period.
Requested Town Council Action: Approve Resolution No. 13-13 “A RESOLUTION APPROVING THE
ADD-ON RETAIL SALES FEE COLLECTION SERVICES AGREEMENT.”
Thanks, Eric
Res. 13-13 Approving the Add-On Retail Sales Fee Services Collection Agreement
13-04-09
TOWN OF AVON
RESOLUTION NO. 13-13
Series of 2013
A RESOLUTION APPROVING THE ADD-ON RETAIL
SALES FEE COLLECTION SERVICES 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 No. 2008 CV
385 and 2010 CV 316, Eagle County District Court;
WHEREAS, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
(“CARADA”) by Ordinance No. 12-10 which set forth obligations in section 6.5 of the
CARADA for the PICs to collect, or cause the Add-On RSF Collection Agent to collect the
Add-On RSF Revenues for the purpose of remitting such revenues to Asphalt Overlay Account
and to the Town as Municipal Payments (as the terms “PIC,” “Add-On RSF Collection Agent,”
“Add-On RSF Revenues,” “Asphalt Overlay Account,” and “Municipal Payments” are defined
in the CARADA); and,
WHEREAS, the Avon Town 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 Add-On Retail Sales Fee Services Collection 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.
ADOPTED APRIL 9, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
1013284.6
ADD-ON RETAIL SALES FEE
COLLECTION SERVICES AGREEMENT
THIS ADD-ON RETAIL SALES FEE COLLECTION SERVICES AGREEMENT
(this “Agreement”) dated as of the ____ day of ____________, 20___ (“Effective Date”), is
entered into by and among SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a
Colorado corporation (“SDMS”); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC
IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Commercial PIC”); THE
VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado
nonprofit corporation (“Mixed-Use PIC”); and the TOWN OF AVON, a home rule municipal
corporation of the State of Colorado (“Town”).
RECITALS
This Agreement is made with reference to the following facts:
A. Capitalized terms used in this Agreement have the meanings set forth in
Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this
Agreement.
B. Pursuant to the Commercial Declaration (i) Commercial Declarant has imposed a
Retail Sales Fee on certain sales, provision of goods or services, construction activities and
certain other transactions occurring within the Commercial Property; and (ii) the Retail Sales Fee
consists of two components, the Credit Retail Sales Fee (as defined in the Commercial
Declaration) and the Add-On Retail Sales Fee.
C. Pursuant to the Mixed-Use Declaration (i) Mixed-Use Declarant has imposed a
Retail Sales Fee on certain sales, provision of goods or services, construction activities and
certain other transactions occurring within the Mixed-Use Property; and (ii) the Retail Sales Fee
consists of two components, the Credit Retail Sales Fee (as defined in the Mixed-Use
Declaration) and the Add-On Retail Sales Fee.
D. The Commercial PIC, the Mixed-Use PIC, the Town and certain other Persons
previously have entered into the Annexation and Development Agreement.
E. Pursuant to the Annexation and Development Agreement and the Commercial
Declaration, the Town’s and the Commercial PIC’s receipt of and use of the Add-On RSF
Revenues derived from the Commercial Property are subject to the terms and conditions of the
Annexation and Development Agreement and the Commercial Declaration.
F. Pursuant to the Annexation and Development Agreement and the Mixed-Use
Declaration, the Town’s and the Mixed-Use PIC’s receipt of and use of the Add-On RSF
Revenues derived from the Mixed-Use Property are subject to the terms and conditions of the
Annexation and Development Agreement and the Mixed-Use Declaration.
G. The PICs wish to appoint SDMS, and SDMS wishes to accept such appointment,
as their agent to collect, receive, disburse and account for all Add-On RSF Revenues, if any, in
accordance with the terms and conditions of, as applicable, the Commercial Declaration, the
EXHIBIT A to RESOLUTION 13-13
2
1013284.6
Mixed-Use Declaration and the Annexation and Development Agreement, as set forth in this
Agreement, and the Town wishes to consent to such appointment.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual agreements, promises and
covenants herein contained, the Parties mutually undertake, promise, and agree for themselves,
their respective representatives, successors and assigns, as follows:
SECTION 1
Add-On RSF Collection Agent Functions
1.1. Appointment of SDMS as Agent of the PICs and the Town.
(a) Appointment and Acceptance. The PICs hereby appoint SDMS as their
and the Town’s agent, the Town hereby consents to such appointment, and SDMS hereby
accepts such appointment, for purposes of (i) receiving, collecting, accounting for and
administering all Add-On RSF Revenues paid by Add-On RSF Obligors, and
(ii) remitting and disbursing all Add-On RSF Revenues to the Commercial PIC, the
Mixed-Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the
Town, or as otherwise required pursuant to this Agreement), during the term of and
subject to the terms and conditions of this Agreement. By the execution of this
Agreement, SDMS accepts the responsibility of receiving the Add-On RSF Revenues
from Add-On RSF Obligors and depositing such Add-On RSF Revenues in the PIC
Add-On RSF Account, the Town Add-On RSF Account and/or the Asphalt Overlay
Account, as applicable, not later than the first business day of the month following the
month of receipt thereof, subject to the terms and conditions of this Agreement.
(b) Agency Relationship. SDMS is not the agent of any Person other than the
PICs and the Town and will have only those responsibilities expressly set forth in this
Agreement.
(c) Ownership of Add-On RSF Revenues. Notwithstanding the appointment
of SDMS as the PICs’ and the Town’s agent for the purposes and subject to the
limitations set forth in this Agreement, (i) the Commercial PIC and the Town are the
lawful beneficiaries of the Add-On RSF Revenues derived from the Commercial Property
in accordance with the terms of the Commercial Declaration and the Annexation and
Development Agreement; and (ii) the Mixed-Use PIC and the Town are the lawful
beneficiaries of the Add-On RSF Revenues derived from the Mixed-Use Property in
accordance with the terms of the Mixed-Use Declaration and the Annexation and
Development Agreement. SDMS hereby acknowledges that, as more fully set forth in
this Agreement, the Add-On RSF Revenues collected pursuant to this Agreement are the
property of the PICs and the Town and that SDMS will distribute the Add-On RSF
Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement)
in accordance with the terms of this Agreement.
1.2. Notification to SDMS of Add-On RSF Obligors. The Commercial PIC and the
Mixed-Use PIC will employ commercially reasonable efforts to provide SDMS with prior
EXHIBIT A to RESOLUTION 13-13
3
1013284.6
written notice of each new Add-On RSF Obligor engaging or intending to engage in Add-On
RSF Retail Activities of which the Commercial PIC and/or Mixed-Use PIC, as applicable, has
knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such
Add-On RSF Obligor. Additionally, SDMS will coordinate with the Director of Finance to
obtain notification from the Town of each new Sales Tax license or business license issued to an
Add-On RSF Obligor within the Property. SDMS will maintain a written list of each active
Add-On RSF Obligor within the Commercial Property and the Mixed-Use Property (a “Add-On
RSF Obligor List”). SDMS will include a current copy of the Add-On RSF Obligor List within
each Monthly Add-On RSF Report, and will coordinate with the Director of Finance to ensure
that the Add-On RSF Obligor List is updated to reflect each Add-On RSF Obligor which then
holds a valid Sales Tax license or business license issued by the Town. In preparing and
updating the Add-On RSF Obligor List, SDMS will be entitled to rely exclusively on the
information provided by the PICs and the Director of Finance with no independent obligation of
SDMS to investigate or verify the information.
1.3. Remittance of Add-On RSF Revenues to SDMS. In performing its obligations
under this Agreement, SDMS will be entitled to rely on all reports furnished pursuant to this
Section 1.3 without any obligation to investigate or independently verify the information in such
reports. For so long as the Add-On Retail Sales Fee is imposed pursuant to the terms and
conditions of the Commercial Declaration, each Add-On RSF Obligor is obligated to:
(i) calculate the Add-On Retail Sales Fee amount due and payable on Add-On RSF Retail
Activities conducted by such Add-On RSF Obligor during the relevant Reporting Period;
(ii) complete and submit to SDMS an Add-On RSF Reporting Form covering all transactions
occurring during the applicable Reporting Period and setting forth the amount of Add-On RSF
Revenues due for such Reporting Period; and (iii) remit such Add-On RSF Revenues to SDMS,
together with the corresponding Add-On RSF Reporting Form, on or before the Fee Remittance
Date applicable to such Reporting Period. For so long as the Add-On Retail Sales Fee is
imposed pursuant to the terms and conditions of the Mixed-Use Declaration, each Add-On RSF
Obligor is obligated to: (i) calculate the Add-On Retail Sales Fee amount due and payable on
Add-On RSF Retail Activities conducted by such Add-On RSF Obligor during the relevant
Reporting Period; (ii) complete and submit to SDMS an Add-On RSF Reporting Form covering
all transactions occurring during the applicable Reporting Period and setting forth the amount of
Add-On RSF Revenues due for such Reporting Period; and (iii) remit such Add-On RSF
Revenues to SDMS, together with the corresponding Add-On RSF Reporting Form, on or before
the Fee Remittance Date applicable to such Reporting Period.
1.4. Deposit of Add-On RSF Revenues by SDMS. Not later than the first business
day of the month following the month of receipt of any Add-On RSF Revenues from Add-On
RSF Obligors, SDMS will deposit such Add-On RSF Revenues as follows:
(a) Establishment of Accounts.
1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account
will be established with FirstBank, Avon branch, subject to the following: The Asphalt
Overlay Account will be established by EMD Limited Liability Company, Traer Creek
LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and
conditions of the Annexation and Development Agreement and the Asphalt Overlay
EXHIBIT A to RESOLUTION 13-13
4
1013284.6
Agreement. The only signatories to the Asphalt Overlay Account will be those parties
expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and
SDMS will not be a signatory on the Asphalt Overlay Agreement or have authority to
transfer funds from or draw checks on the Asphalt Overlay Account. The Asphalt
Overlay Account may be moved from FirstBank, Avon Branch, to another bank or
another branch location of FirstBank in accordance with the terms and conditions of the
Asphalt Overlay Agreement and only upon providing SDMS with 30 days’ prior written
notice thereof, together with written instructions for SDMS’ deposit of funds therein.
2. Town Add-On RSF Account. Initially, the Town Add-On RSF
Account is or will be established with FirstBank, Avon branch, subject to the following:
The Town Add-On RSF Account will be established by the Town upon such terms as it
deems appropriate using the Town’s Federal Employer Identification Number. The
Town’s authorized representative(s), or such designees as the Town in its discretion may
authorize, will be the only signatories, and SDMS will not be a signatory on Town
Add-On RSF Account or have authority to transfer funds from or draw checks on Town
Add-On RSF Account. The Town may move Town Add-On RSF Account from
FirstBank to another bank or another branch location of FirstBank only upon providing
SDMS with 30 days’ prior written notice thereof, together with written instructions for
SDMS’ deposit of funds therein. The Town may designate its existing general fund
account, also known as the cash concentration account, as the account which shall serve
as the Town Add-On RSF Account.
3. PIC Add-On RSF Account. Initially, the PIC Add-On RSF
Account is or will be established with Wells Fargo, Lakewood branch, subject to the
following: The PIC Add-On RSF Account will be established by the PICs upon such
terms as the PICs deem appropriate using the PICs’ Federal Employer Identification
Numbers. Each of the PIC’s authorized representative(s), or such designees as each of
the PICs in its discretion may authorize, will be the only signatories, and SDMS will not
be a signatory on the PIC Add-On RSF Account or have authority to transfer funds from
or draw checks on the PIC Add-On RSF Account. The PICs may move the PIC Add-On
RSF Account from Wells Fargo to another bank or another branch location of Wells
Fargo only upon providing SDMS with 30 days’ prior written notice thereof, together
with written instructions for SDMS’ deposit of funds therein.
(b) Deposit. SDMS initially will deposit the Add-On RSF Revenues in a
separate account from any other funds, including without limitation, the Credit Retail
Sales Fee Revenues. Thereafter, SDMS will transfer the Add-On RSF Revenues from
such segregated account and deposit the Add-On RSF Revenues as follows, and, upon
depositing such funds, SDMS will have no further obligation with respect to such
Add-On RSF Revenues (except with respect to the preparation, distribution and retention
of relevant records, reports and audits as required by other provisions of this Agreement):
1. Asphalt Overlay Account. SDMS will deposit all or a portion of
the Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf
of the Town as follows:
EXHIBIT A to RESOLUTION 13-13
5
1013284.6
(A) Initial Five Years. For calendar years 2013 through 2017,
SDMS will deposit, in the aggregate for each calendar year, into the Asphalt
Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY
THOUSAND DOLLARS) of Municipal Payments actually received by SDMS.
(B) Subsequent Years. Commencing in 2018 and continuing
through and including the date on which the Funding Termination occurs, SDMS
will deposit, in the aggregate for each calendar year, into the Asphalt Overlay
Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of
Municipal Payments actually received by SDMS. The PICs and the Town will
deliver joint written notice to SDMS (“Joint Notice”), which Joint Notice will
specify the date of the Funding Termination. SDMS will be entitled to rely on the
accuracy of the date of the Funding Termination contained in the Joint Notice
without obligation to investigate or independently verify such date. No deposits
of Add-On RSF Revenues will be made in the Asphalt Overlay Account from and
after the day after the date of the occurrence of the Funding Termination.
2. Town Add-On RSF Account. After deposit of the applicable
portion of the Municipal Payments in the Asphalt Overlay Account, if any, in accordance
with Subsection 1 above, SDMS will deposit the remaining portion of the Municipal
Payments, if any, actually received by SDMS into the Town Add-On RSF Account on a
monthly basis continuing through and including the date on which the Tax Credit
Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence
of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit
Termination. SDMS will be entitled to rely on the accuracy of the date of the Tax Credit
Termination contained in the Joint Notice without obligation to investigate or
independently verify such date. No deposits of Add-On RSF Revenues, including
without limitation, the Municipal Payments, will be made in the Town Add-On RSF
Account from and after the day after the occurrence of the Tax Credit Termination, and
the PICs (or their designees) will thereafter be entitled to receive all Add-On RSF
Revenues.
3. PIC Add-On RSF Account. SDMS will deposit any portion of the
Add-On RSF Revenues not comprising the Municipal Payments and actually received by
SDMS into the PIC Add-On RSF Account on a monthly basis.
1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial
PIC and/or the Mixed-Use PIC, SDMS will obtain and thereafter maintain in full force for so
long and in such amount as set forth in such written request, a fidelity bond in a form and from
an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of
SDMS to be paid by the PICs.
SECTION 2
Preparation and Disbursement of Reports; Audits
2.1. Preparation and Delivery of Monthly Add-On RSF Reports by SDMS. For
each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a
EXHIBIT A to RESOLUTION 13-13
6
1013284.6
Monthly Add-On RSF Report containing all information required therein with respect to all Add-
On RSF Revenues received within such month. SDMS will retain the original of each Monthly
Add-On RSF Report for a minimum of three years after the last day of the relevant calendar year.
On or before the 15th calendar day following the last day of the preceding calendar month,
SDMS will deliver a copy of each Monthly Add-On RSF Report to the PICs and the Town.
2.2. Reliance on Add-On RSF Obligors’ Reports. In preparing the Monthly Add-
On RSF Reports, SDMS will be entitled to rely on the accuracy of the information contained in
the Add-On RSF Reporting Forms received from Add-On RSF Obligors from time to time
without obligation to investigate or independently verify the information contained therein.
2.3. Provision of Add-On RSF Information. Within 10 days after receipt of written
notice from the Commercial PIC and/or the Mixed-Use PIC, and on or before January 1 of each
calendar year, SDMS will provide each Add-On RSF Obligor listed on the Add-On RSF Obligor
List with (i) all then-current Information or policies and procedures adopted by the Commercial
PIC or Mixed-Use PIC, as applicable, regarding the calculation, payment and reporting of Add-
On RSF Revenues, and (ii) all then-current Add-On RSF Reporting Form(s), procedures and
other instructions concerning the collection and remittance of Add-On RSF Revenues to SDMS,
including all information required under the Commercial Declaration or the Mixed-Use
Declaration, as applicable. In performing the foregoing obligation, SDMS will be entitled to rely
on information supplied to it by the PICs and the Director of Finance, and will coordinate with
the PICs and the Director of Finance to update all Information and relevant forms prior to
distributing them to Add-On RSF Obligors. If the PICs change such reporting forms, procedures
or other instructions, the PICs promptly will communicate such changes to SDMS and the Town,
and SDMS will provide notice thereof to all RSF Add-On Obligors then listed on the Add-On
RSF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will
be substantially similar in form to those used or required by the Town for remittance of Sales
Taxes. SDMS will function as the primary contact for Add-On RSF Obligors with respect to
Information and other forms, procedures and instructions pertinent to collection and remittance
of Add-On RSF Revenues, and will coordinate with the PICs and the Town with respect thereto.
2.4. Delinquency Notices for Retail Fee Obligors.
(a) First Delinquency Notices. Not later than the 15th day following the
applicable Fee Remittance Date, SDMS will send a first delinquency notice by certified
mail to any Add-On RSF Obligor that: (i) fails to remit Add-On RSF Revenues during
the immediately preceding or any other prior Reporting Period; or (ii) SDMS has
reasonably determined based solely on information contained in the Add-On RSF
Obligor’s Add-On RSF Reporting Forms, without obligation to investigate or
independently verify the accuracy of such information, to have remitted an incorrect
amount for any prior Reporting Period. In making any such delinquency determination,
SDMS will coordinate with the Director of Finance as reasonably necessary. Such
delinquency notice will state that Delinquency Costs (as defined in the Commercial
Declaration or Mixed-Use Declaration, as applicable) apply. SDMS will send copies of
all first delinquency notices to the PICs and the Town, together with a report listing the
name of each Add-On RSF Obligor to whom a first delinquency notice was sent, the
EXHIBIT A to RESOLUTION 13-13
7
1013284.6
amount of such delinquency, and the period for which such Add-On RSF Obligors are
delinquent.
(b) Second Delinquency Notices. Not later than the 15th day following
SDMS’ issuance of the first delinquency notice as required by Section 2.4(a), SDMS will
send a second delinquency notice by certified mail to any Add-On RSF Obligor that has
not paid any delinquent amount of Add-On RSF Revenues as specified in the first
delinquency notice. SDMS will send copies of such second delinquency notices to the
PICs and the Town, together with a report listing the name of each Add-On RSF Obligor
to whom a second delinquency notice was sent, the amount of such delinquency, and the
period for which such Add-On RSF Obligors are delinquent. SDMS will not be obligated
to distribute additional delinquency notices to any Add-On RSF Obligor after the second
delinquency notice.
(c) Other Actions. In addition to the first and second delinquency notices
provided for in Sections 2.4(a) and 2.4(b), SDMS will, upon receipt of a written request
therefor by the Commercial PIC, Mixed-Use PIC or the Town, send a written notice to
any Add-On RSF Obligor whom the Commercial PIC, Mixed-Use PIC or the Town
believes has not fully complied with its obligations under the Commercial Declaration or
Mixed-Use Declaration, as applicable, specifying the nature and extent of such Add-On
RSF Obligor’s non-compliance and requesting that such Add-On RSF Obligor
immediately remedy such non-compliance. The requesting Person will provide SDMS
with information sufficient to enable SDMS to prepare and send such notice, and SDMS
will provide a copy of all such notices to the PICs and the Town. In sending the notice
required by this Section 2.4(c), SDMS may rely upon the information furnished by the
Person requesting the notice without any obligation to investigate or independently verify
such information. Other than the obligation to send the notices provided for in
Sections 2.4(a) and 2.4(b) and this Section 2.4(c), SDMS will have no obligation to
undertake any enforcement action of any nature.
2.5. Confidentiality of Add-On RSF Reporting Forms. Except to the extent
required to be included in any report or to be made available for review and audit as required or
permitted under the terms of this Agreement, SDMS will maintain in confidence all reports,
information or data concerning Taxable Transactions or Add-On RSF Revenues received by
SDMS from Add-On RSF Obligors unless otherwise required to be made public by law. All
such information will be used only for purposes of collecting the Add-On RSF Revenues,
enforcing Add-On RSF Obligors’ obligations under the Commercial Declaration and Mixed-Use
Declaration, as applicable, monitoring compliance with the provisions of the Commercial
Declaration and Mixed-Use Declaration, complying with SDMS’ reporting obligations under this
Agreement to the PICs and the Town, or as otherwise may be authorized under the Commercial
Declaration or Mixed-Use Declaration.
2.6. Audits. Within 30 calendar days after the end of each calendar year, SDMS will
prepare and deliver to an auditor approved in writing by the PICs all materials necessary for
preparation of an audit of SDMS’ accounting of all Add-On RSF Revenues received and
disbursed in the immediately preceding calendar year, which audit procedures are generally
described in Exhibit D. SDMS will exercise commercially reasonable efforts to cause the
EXHIBIT A to RESOLUTION 13-13
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1013284.6
auditor to provide to SDMS an annual audited report setting forth the Add-On RSF Revenues
received and disbursed by SDMS for the preceding calendar year for delivery to the PICs and the
Town within 90 calendar days after the end of the preceding calendar year. In compiling the
information to be provided for the audit, SDMS may rely on information provided as required or
permitted under this Agreement without any further obligation to investigate or independently
verify the accuracy of such information. SDMS’ reasonable costs and expenses incurred in
performing and delivering the annual audit, which reimbursement amount is a Collection
Expense, will be paid from Add-On RSF Revenues (the Municipal Payments are net of
Collection Expenses as provided in paragraph 33 of Exhibit A). At reasonable times during
regular business hours, the PICs and the Town are hereby authorized to audit, or cause audits to
be conducted of, SDMS’ books and records with respect to the collection and disbursement of
Add-On RSF Revenues. If an independent audit uncovers any deficiency in SDMS’
performance of its obligations under this Agreement, SDMS will promptly cure such deficiency
and, to the extent such deficiency consists of SDMS’ failure to disburse Add-On RSF Revenues
to the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, due to the
negligence or misconduct of SDMS, SDMS will, within 10 days after notice from the
Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, deposit the full amount of
such deficiency into the Asphalt Overlay Account, Town Add-On RSF Account and/or PIC Add-
On RSF Account, as applicable, together with interest thereon at a rate equal to 2% above the
prime rate published in the Wall Street Journal on the date of discovery of such deficiency and
notice thereof to SDMS. The Party(ies) performing any such audit will bear the full costs and
expense of performing such audit. SDMS’ reasonable costs and expenses incurred in connection
therewith, which amount is a Collection Expense, will be paid from Add-On RSF Revenues (the
Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A);
provided, however, that SDMS will be responsible for all costs and expenses of any audit which
discloses a material deficiency in SDMS’ performance of its obligations under this Agreement to
the extent such deficiency is due to the negligence or misconduct of SDMS.
SECTION 3
General
3.1. Covenants of the Parties.
(a) Representations and Warranties. Each Party hereby represents and
warrants to and for the benefit of the other Parties:
1. That it has full power and legal authority to enter into this
Agreement;
2. That it has taken or performed all acts or actions that may be
required by statute or charter to confirm its authority to execute, deliver and perform each
of its obligations under this Agreement; and
3. That neither the execution and delivery of this Agreement, nor
compliance with any of the terms, covenants or conditions of this Agreement will result
in a violation of or default under any other agreement or contract to which it is a party or
by which it is bound.
EXHIBIT A to RESOLUTION 13-13
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(b) Information. Each Party will provide such information reasonably
requested by the other Parties from time to time to allow such Parties to fulfill their
respective obligations under this Agreement, the Commercial Declaration and the Mixed-
Use Declaration, as applicable.
(c) Cooperation. The Parties will cooperate with each other and will
undertake any reasonably necessary action that is required to support or assist in the
collection, remittance and reporting of all Add-On RSF Revenues payable by Add-On
RSF Obligors pursuant to the Commercial Declaration and the Mixed-Use Declaration.
3.2. Nature of Add-On RSF. The Parties acknowledge and understand that: (i) the
Add-On Retail Sales Fee is a charge imposed pursuant to the Commercial Declaration and the
Mixed-Use Declaration for the benefit of the Commercial PIC and the Mixed-Use PIC,
respectively, and other beneficiaries specified therein and not through the exercise of any power
by the Town; (ii) the Add-On RSF Revenues are not tax revenues in any form; (iii) all Add-On
RSF Revenues are the property of the PICs and the Town to be used for the purposes set forth in
the Annexation and Development Agreement, the Commercial Declaration and the Mixed-Use
Declaration; and (iv) SDMS’ role in assisting the PICs to collect the Add-On RSF Revenues is
derived through this Agreement and is limited by and will be exercised only in accordance with
the terms of this Agreement.
3.3. Bankruptcy of Add-On RSF Obligors. If any Party receives actual notice in
writing with respect to any action in the bankruptcy of any Add-On RSF Obligor, such Party
will, as soon as practicable, give notice or convey copies of such notice which it received to the
other Parties.
3.4. Limitation of SDMS Duties. The duties and responsibilities of SDMS are
limited to those expressly and specifically stated in this Agreement. SDMS will not be liable or
responsible for any loss resulting from any investment or reinvestment made pursuant to this
Agreement and made in compliance with the provisions hereof. SDMS will not be personally
liable or responsible for any act which it may do or omit to do hereunder, while acting with
commercially reasonable care, except for duties expressly imposed upon SDMS hereunder or as
otherwise expressly provided herein. SDMS will neither be under any obligation to inquire into
or be in any way responsible for the performance or nonperformance by the Commercial PIC, the
Mixed-Use PIC or the Town of any of their respective obligations under this Agreement, the
Annexation and Development Agreement, the Commercial Declaration or the Mixed-use
Declaration, nor will SDMS be responsible in any manner for the recitals, statements or
provisions contained in this Agreement, the Annexation and Development Agreement, the
Commercial Declaration or the Mixed-Use Declaration, or in any proceedings taken in
connection therewith, such recitals, statements and provisions being made solely by the
Commercial PIC, the Mixed-Use PIC and the Town, as applicable. Nothing in this Agreement
creates any obligation or liability on the part of SDMS to anyone other than the PICs and the
Town.
3.5. Compensation. In consideration of SDMS’ performance of services under this
Agreement, SDMS will receive the Collection Expenses as determined by the Parties and
described in Exhibit E and elsewhere in this Agreement. The rates described in Exhibit E will be
EXHIBIT A to RESOLUTION 13-13
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1013284.6
subject to annual adjustment by the written mutual consent of the PICs and the Town, which
adjustment will not require an amendment to this Agreement. No new fee schedule will become
effective until 30 days after SDMS has given the PICs and the Town written notice thereof.
Except with respect to specific matters expressly addressed in other provisions of this Agreement
to the contrary, all Collection Expenses will be paid from Add-On RSF Revenues (the Municipal
Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). No later
than the 20th day of each calendar month, SDMS will submit to the PICs and the Town a billing
statement of the total Collection Expenses incurred by SDMS during the prior calendar month
(each, a “Monthly Fee Statement”). The PICs and the Town will have 20 days from receipt of
the applicable Monthly Fee Statement to approve, reject or approve in part and reject in part the
Monthly Fee Statement in writing to SDMS. If the PICs and the Town both fail to provide such
written notice to SDMS on or before the expiration of such 20-day period, the Monthly Fee
Statement will be deemed approved by both the PICs and the Town. If the PICs and the Town
approve the applicable Monthly Fee Statement, SDMS may deduct, and is hereby expressly
authorized to deduct, from the Municipal Payments the applicable Collection Expense as set
forth in such approved Monthly Fee Statement. If the Commercial PIC, Mixed-Use PIC and/or
the Town approve in whole or in part the applicable Monthly Fee Statement, SDMS may deduct,
and is hereby expressly authorized to deduct, from the Municipal Payments the portion of the
Collection Expenses set forth in such Monthly Fee Statement approved by the PICs and the
Town, if any. With respect to resolution of any Collection Expenses rejected in whole or in part
by the Commercial PIC, Mixed-Use PIC and/or the Town, the applicable Parties will proceed
pursuant to Section 3.20. Without limitation of the foregoing:
(a) Prior to and including the day of the Tax Credit Termination, the Town
will be solely responsible for payment of SDMS’ Collection Expenses for administration
of the Add-On RSF Revenues pursuant to this Agreement.
(b) From and after the day after the occurrence of the Tax Credit Termination,
the PIC will be solely responsible for payment of SDMS’ Collection Expenses for
administration of the Add-On RSF Revenues pursuant to this Agreement.
(c) The PICs will be solely responsible for payment of SDMS’ reasonable
costs and expenses, including attorneys’ fees, incurred prior to execution of this
Agreement for negotiation of this Agreement and for activities in furtherance of entering
into this Agreement, such payment to be made within 30 days after receipt of SDMS’
invoice therefor.
3.6. Resignation; Removal.
(a) General. Notwithstanding any provision to the contrary in this
Agreement, SDMS’ obligation to remit to the PICs and the Town any and all Add-On
RSF Revenues received by SDMS pursuant to the terms and conditions of this
Agreement will survive any resignation or removal of SDMS pursuant to this Section 3.6
until all such Add-On RSF Revenues have been remitted to the PICs and/or the Town or
control over such funds has been transferred to a successor Add-On RSF Collection
Agent. No resignation or removal of SDMS will take effect until a successor Add-On
RSF Collection Agent has been appointed by the PICs, with the consent of the Town;
EXHIBIT A to RESOLUTION 13-13
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1013284.6
provided, however, if no successor is appointed by the end of 90 days after delivery of
written notice to SDMS of such removal, SDMS may petition a court of competent
jurisdiction to appoint a successor.
(b) SDMS Resignation. SDMS may resign as the PICs’ and the Town’s
agent under this Agreement by submitting a written notice of resignation to the PICs and
the Town, given not less than 90 days before the date upon which such resignation is
intended to take effect. SDMS’ resignation will be effective on the resignation date set
forth in such notice. Notwithstanding the foregoing, except in the event the Commercial
PIC, Mixed-Use PIC and/or the Town have rejected Monthly Fee Statements in whole or
in part pursuant to Section 3.5, if SDMS’ Collection Expenses have not been paid for a
period of two consecutive months, SDMS may resign as the PICs’ and the Town’s agent
under this agreement by submitting a written notice of resignation to the PICs and the
Town, given not less than 30 days before the date upon which such resignation is
intended to take effect and SDMS’ resignation will be effective on the resignation date
set forth in such notice; provided, however, if the Commercial PIC, Mixed-Use PIC
and/or the Town cure such default within such 30-day period, SDMS’ written notice of
resignation will be deemed null and void and of no further force or effect.
(c) SDMS Removal. The PICs, with prior written consent of the Town, may
remove SDMS as the PICs’ and the Town’s agent for collection of the Add-On RSF
Revenues at any time with or without cause. Any such removal action will be effective
immediately upon delivery of written notice by the PICs of such removal to SDMS unless
the notice specifies a later removal date.
3.7. Assignment; Binding Effect. Except for the collateral assignment of this
Agreement by the Commercial PIC and/or the Mixed-Use PIC to any secured lender of the
Commercial PIC or the Mixed-Use PIC, as applicable, which assignment will not require the
consent of any other Party, this Agreement will not be assigned by any Party for any reason other
than to a successor by operation of law or with the prior written consent of the other Parties.
This Agreement will inure to the benefit of and will be binding upon the Parties and their duly
authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the
Mixed-Use PIC, the Town or SDMS is named or is referred to, such provision is deemed to
include any successor of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS,
respectively, immediate or intermediate, whether so expressed or not. Any corporation or other
legal entity into which a Party may be merged or converted or with which a Party may be
consolidated or any corporation or other legal entity resulting from any merger, conversion, sale,
consolidation or transfer to which that Party may be a party or any corporation or other legal
entity to which a Party may sell or transfer all or substantially all of its assets will be the
successor to such Party without the execution or filing of any document or any further act,
anything herein to the contrary notwithstanding. All of the stipulations, obligations, and
agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the
Mixed-Use PIC, the Town or SDMS contained in this Agreement (a) will bind and inure to the
benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board,
council, agent, or instrumentality to whom or to which there will be transferred by or in
accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed-Use
PIC, the Town or SDMS, or of their respective successors.
EXHIBIT A to RESOLUTION 13-13
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1013284.6
3.8. Amendment. This Agreement may only be amended, changed, modified or
altered by an instrument in writing duly executed by each Party.
3.9. Computation of Time. In computing a period of days, the first day will be
excluded and the last day will be included. If the last day of any period is not a business day, the
period will be extended to include the next succeeding business day. If a number of months is to
be computed by counting the months from a particular day, the period will end on the same
numerical day in the concluding month as the day of the month from which the computation is
begun, unless there are not that many days in the concluding month, in which case the period
will end on the last day of that month.
3.10. Payments Due on a Day other than a Business Day. If the date for making any
payment or the last day for performance of any act or the exercising of any right as provided in
this Agreement will be a day other than a business day, such payment may be made, or such act
performed, or such right may be exercised on the next succeeding business day with the same
force and effect as if done on the nominal date provided in this Agreement.
3.11. Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, such holding will not invalidate or render unenforceable
any other provision hereof and this Agreement will be reformed to most completely effectuate
the intent of the Parties as reflected in the Agreement prior to such severance, including the
intent of the severed provision to the extent such provision may be so reformed to cure the
invalidity or unenforceability.
3.12. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which will be an original and all of which will constitute but one and the
same instrument.
3.13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado.
3.14. No Indemnification by SDMS. SDMS will have no obligation to indemnify,
hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever.
3.15. Indemnification by PICs and the Town. The PICs, by execution of this
Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold
SDMS, its officers, directors, stockholders, and employees harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or
charges of any character or nature, which it may incur or with which it may be threatened under
this Agreement arising from or out of any claim in connection with the performance of any of the
obligations of SDMS to be performed under this Agreement (for purposes of this Section 3.15,
collectively, “Liabilities”) except to the extent such Liabilities are caused by the negligence,
willful misconduct or material breach of this Agreement by SDMS, its officers or employees. To
the extent permitted by applicable law, the Town, by execution of this Agreement by its
authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers,
directors, stockholders, and employees harmless from any and all Liabilities except to the extent
EXHIBIT A to RESOLUTION 13-13
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1013284.6
such Liabilities are caused by the negligence, willful misconduct or material breach of this
Agreement by SDMS, its officers or employees.
3.16. Relationship to Declarations and Annexation and Development Agreement.
The Commercial PIC acknowledges that its performance under this Agreement is subject in all
respects to the terms and conditions of the Commercial Declaration and the Annexation and
Development Agreement, that the terms and conditions of the Commercial Declaration and the
Annexation and Development Agreement will control over any conflicting terms and conditions
of this Agreement, and represents and warrants to SDMS that in performing its duties and
exercising its rights under this Agreement it will comply with the terms and conditions of the
Commercial Declaration and the Annexation and Development Agreement. The Mixed-Use PIC
acknowledges that its performance under this Agreement is subject in all respects to the terms
and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement,
that the terms and conditions of the Mixed-Use Declaration and the Annexation and
Development Agreement will control over any conflicting terms and conditions of this
Agreement, and represents and warrants to SDMS that in performing its duties and exercising its
rights under this Agreement it will comply with the terms and conditions of the Mixed-Use
Declaration and the Annexation and Development Agreement. The Town acknowledges that its
performance under this Agreement is subject in all respects to the terms and conditions of the
Declarations and the Annexation and Development Agreement, that the terms and conditions of
the Declarations and the Annexation and Development Agreement will control over any
conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in
performing its duties and exercising its rights under this Agreement it will comply with the terms
and conditions of the Declarations and the Annexation and Development Agreement. As such,
SDMS is authorized to presume that all actions taken by the PICs and the Town in connection
with this Agreement comply with the terms and conditions of the Declarations and the
Annexation and Development Agreement and to act accordingly in performing its obligations
under this Agreement.
3.17. Captions. The captions or headings herein are for convenience only and in no
way define, limit or describe the scope or intent of any provision or Section of this Agreement.
3.18. Time of the Essence. Time is of the essence in the performance of the
obligations from time to time imposed upon SDMS by this Agreement.
3.19. Notice. Any notice or other information to be given hereunder will be delivered
personally or mailed postage prepaid, return receipt requested, to the following addresses:
If to SDMS: Special District Management Services, Inc.
141 Union Boulevard
Suite 150
Lakewood, Colorado 80228
Attn: Lisa Jacoby
EXHIBIT A to RESOLUTION 13-13
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1013284.6
With a required copy to: Krendl Krendl Sachnoff & Way, P.C.
370 17th Street, Suite 5350
Denver, Colorado 80202
Attn: Cathy S. Krendl
If to Commercial PIC: The Village (at Avon) Commercial Public
Improvement Company
P.O. Box 9429
Avon, Colorado 81620
Attn: Dan Leary
With required copy to: Otten Johnson Robinson
Neff + Ragonetti PC
950 17th Street, Suite 1600
Denver, Colorado 80202
Attn: Munsey L. Ayers
If to Mixed-Use PIC: The Village (at Avon) Mixed-Use Public
Improvement Company
P.O. Box 9429
Avon, Colorado 81620
Attn: Dan Leary
With required copy to: Otten Johnson Robinson
Neff + Ragonetti PC
950 17th Street, Suite 1600
Denver, Colorado 80202
Attn: Munsey L. Ayers
If to Town: Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attention: Town Manager
With required copy to: Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attention: Town Attorney
or such other address as a Party may, by written notice to the other Party or Parties, hereafter
specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in
writing, a different method for conveying notices or information.
3.20. Dispute Resolution. Any dispute arising under this Agreement that is not
resolved by the applicable Parties, within 45 days or such other period as may be specifically set
forth in this Agreement may be submitted by any of the Parties, including SDMS, for binding
EXHIBIT A to RESOLUTION 13-13
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1013284.6
arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver,
Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be
mutually agreed upon by the applicable Parties or, if the Parties are not able to agree, as directed
by the arbiter. The arbiter’s decision will be final and non-appealable to the courts. Except to
the extent such fees and costs are caused by the negligence, willful misconduct or material
breach of this Agreement by SDMS, its officers or employees, all of SDMS’ reasonable
attorneys’ fees and costs arising from an arbitration, which is a Collection Expense, will be paid
from Add-On RSF Revenues (the Municipal Payments are net of Collection Expenses as
provided in paragraph 33 of Exhibit A).
[Signature Pages Follow This Page]
EXHIBIT A to RESOLUTION 13-13
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1013284.6
IN WITNESS WHEREOF, the Commercial PIC, the Mixed-Use PIC, the Town and
SDMS have caused this Agreement to be executed as of the day and year first above written.
COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado nonprofit corporation
By:
Name:
Title:
EXHIBIT A to RESOLUTION 13-13
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1013284.6
MIXED-USE PIC:
THE VILLAGE (AT AVON) MIXED-USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado nonprofit corporation
By:
Name:
Title:
EXHIBIT A to RESOLUTION 13-13
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1013284.6
TOWN:
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
EXHIBIT A to RESOLUTION 13-13
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1013284.6
SDMS:
SPECIAL DISTRICT MANAGEMENT
SERVICES, INC., a Colorado corporation
By:
Name:
Title:
EXHIBIT A to RESOLUTION 13-13
A-1
1013284.6
EXHIBIT A
Definitions
For purposes of the attached Add-On RSF Collection Services Agreement, the following
terms have the following meanings, unless the context requires otherwise. Further, unless the
context requires otherwise, the singular of any term includes the plural, and any reference to a
Section or Exhibit is to a Section or Exhibit of the attached Add-On RSF Collection Services
Agreement.
1. Add-On Retail Sales Fee. In accordance with the Declarations, the component
of the Retail Sales Fee (as defined in the Declarations), which is set at rate(s) to be established by
the Commercial PIC and the Mixed-Use PIC, as applicable, as declarant under the Commercial
Declaration and the Mixed-Use Declaration, respectively, in accordance with the terms,
limitations and conditions of the Commercial Declaration or the Mixed-Use Declaration, as
applicable, and the Annexation and Development Agreement, and which will be applied to
Taxable Transactions (retail sales transactions only and no other Taxable Transactions) initiated,
consummated, conducted, transacted or otherwise occurring from or within any portion of the
Property, but which is not offset by a credit against the Sales Tax. For purposes of
communications to Add-On RSF Obligors and/or the general public, the PICs may designate the
Add-On Retail Sales Fee as the “Retail Sales Fee” or “RSF” or such other term as the PICs may
determine and designate in writing to SDMS, in which case the applicable forms will be
modified to reflect the desired terminology and the term Add-On Retail Sales Fee as used in this
Agreement will be construed in all instances to refer to such term as the PICs have designated
from time to time.
2. Add-On RSF Collection Agent. The entity engaged by the PICs and the Town
as the collecting agent for disbursement and accounting of the Add-On RSF Revenues pursuant
to this Agreement as in effect from time to time, and which is authorized to undertake the duties
of the “Add-On RSF Collection Agent” as defined in the Annexation and Development
Agreement.
3. Add-On RSF Obligor List. As defined in Section 1.2.
4. Add-On RSF Obligor(s). Any Person(s) who, by virtue of being the seller in an
Add-On RSF Retail Activity transaction is obligated to collect and remit an Add-On Retail Sales
Fee pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as
applicable.
5. Add-On RSF Reporting Form. A report of Add-On RSF Revenues payable by
each Add-On RSF Obligor, in substantially the form set forth in Exhibit B (or as otherwise
required by the Information from time to time, a copy of which form is delivered to SDMS by
the PICs in advance of its effective date) which, together with remittance of the Add-On RSF
Revenues payable and a copy of the corresponding Town Sales Tax report, is to be prepared by
each Add-On RSF Obligor and delivered to SDMS on or before each Fee Remittance Date for
the immediately preceding Reporting Period.
EXHIBIT A to RESOLUTION 13-13
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1013284.6
6. Add-On RSF Retail Activity(ies). The following retail sales transactions which
are subject to the Add-On Retail Sales Fee pursuant to the Declarations: any exchange of goods
or services for money or other media of exchange that is a Taxable Transaction (retail sales
transactions only and no other Taxable Transactions) and is initiated, consummated, conducted,
transacted or otherwise occurs from or within any portion of the Property.
7. Add-On RSF Revenues. The revenues generated from imposition and collection
of the Add-On Retail Sales Fee pursuant to the terms of the Declarations, together with all
interest earned thereon while on deposit with SDMS.
8. Agreement. As defined in the introductory paragraph, this Add-On Retail Sales
Fee Collection Services Agreement between the Parties, as amended and supplemented from
time to time.
9. Annexation and Development Agreement. The Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) dated as of
_____________, 20____ and entered into by and among the Town, Traer Creek Metropolitan
District, Traer Creek LLC and, with respect to certain portions of the Property, EMD Limited
Liability Company, all as parties, and Avon Urban Renewal Authority, the PICs and, with respect
to certain portions of the Property, EMD Limited Liability Company, all as limited parties, and
recorded in the Records on or about even date herewith, as amended from time to time.
10. Asphalt Overlay Account. The restricted escrow account established pursuant to
the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays
of public roads in the Property in accordance with the terms and conditions set forth in the
Annexation and Development Agreement and the Asphalt Overlay Agreement.
11. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account
Agreement dated as of __________, 20____ and entered into by and among the Town, Traer
Creek Metropolitan District and FirstBank (Avon Branch), which establishes the terms and
conditions upon which funds will be deposited into, held in escrow, and disbursed from the
Asphalt Overlay Account.
12. Collection Expense. Any and all fees (including without limitation, Stand-By
Fees), costs, expenses, compensation, reimbursements (including without limitation, dispute
resolution costs and charges for out-of-pocket expenses such as postage, facsimiles, letterhead,
envelopes, printing, etc. for which a receipt is submitted with the applicable Monthly Fee
Statement) and other charges due and owing to SDMS in connection with and pursuant to the
terms of this Agreement.
13. Commercial Declarant. Traer Creek-RP, LLC, a Colorado limited liability
company, or any successor-in-interest or transferee who takes title to any portion of the
Commercial Property for the purpose of development and/or sale and is designated as Declarant
in an instrument recorded in the Records, as more particularly set forth in the Commercial
Declaration.
14. Commercial Declaration. That certain Declaration of Covenants for The Village
(at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited
EXHIBIT A to RESOLUTION 13-13
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1013284.6
liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception
No. 795012, as amended by that certain First Amendment to Declaration of Covenants for The
Village (at Avon) Commercial Areas recorded in the Records on June 10, 2008 at Reception
No.200812111, as amended by that certain Second Amendment to Declaration of Covenants for
The Village (at Avon) Commercial Areas recorded in the Records on _________, 20___ at
Reception No. ____________, as amended, supplemented or replaced from time to time in
accordance with the terms and conditions set forth therein.
15. Commercial PIC. As defined in the introductory paragraph of this Agreement.
16. Commercial Property. The property defined as the “Property” in the
Commercial Declaration and legally described in Exhibit A to the Commercial Declaration, upon
which the Commercial Declarant and its affiliates are developing and intend to further develop a
phased, commercial and retail development.
17. Credit Retail Sales Fee. As defined in Recital B and Recital C, as applicable.
18. Credit RSF Revenues. The revenues generated from the imposition of the Credit
Retail Sales Fee (as defined in the Declarations).
19. Declarations. Collectively, the Commercial Declaration and the Mixed-Use
Declaration.
20. Director of Finance. The director of finance for the Town, provided that if there
is no director of finance for the Town at any time for whatever reason, the “Director of Finance”
for all purposes under this Agreement will refer to the Town Manager or the person designated
by the Town Manager in writing to the PICs and SDMS.
21. Effective Date. As defined in the introductory paragraph of this Agreement.
22. Exhibits. Individually, one of the following Exhibits to this Agreement and/or,
collectively, all of the following Exhibits to this Agreement, as the context dictates, which
Exhibits are incorporated into and made a part of this Agreement:
Exhibit A: Definitions
Exhibit B: Form of Add-On RSF Reporting Form
Exhibit C: Form of Monthly Add-On RSF Report
Exhibit D: Audit Procedures
Exhibit E: SDMS Fee Schedule
23. Fee Remittance Date. With respect to Add-On RSF Revenue payments to be
made by Add-On RSF Obligors, the date on which the corresponding Sales Tax amount is due
and payable to the Town.
EXHIBIT A to RESOLUTION 13-13
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1013284.6
24. Funding Termination. The occurrence of the earlier of: (i) 80,000 square feet of
additional development of “Commercial Uses” (as defined in the Amended and Restated PUD
Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of
occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and
Development Agreement) have increased by at least $20,000,000 over the actual total annual
Taxable Transactions (as defined in the Annexation and Development Agreement) in the year
2011, all as more particularly set forth in Section 6.6(b) of the Annexation and Development
Agreement.
25. Information. Any written information or guidelines, as amended and
supplemented from time to time, prepared by the PICs and the Town, with the approval of the
Commercial Declarant and the Mixed-Use Declarant, regarding the calculation, payment and
reporting of the Add-On Retail Sales Fee.
26. Joint Notice. As defined in Section 1.4(b)1(B) of this Agreement.
27. Mixed-Use Declarant. Traer Creek LLC, a Colorado limited liability company,
or any successor-in-interest or transferee who takes title to any portion of the Mixed-Use
Property for the purpose of development and/or sale and is designated as Declarant in an
instrument recorded in the Records, as more particularly set forth in the Mixed-Use Declaration.
28. Mixed-Use Declaration. That certain Declaration of Covenants for The Village
(at Avon) Mixed-Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited
liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception
No. 795013, as amended by that certain First Amendment to Declaration of Covenants for The
Village (at Avon) Mixed-Use Areas recorded in the Records on __________, 20___ at Reception
No. ______________, as amended, supplemented or replaced from time to time in accordance
with the terms and conditions set forth therein.
29. Mixed-Use PIC. As defined in the introductory paragraph of this Agreement.
30. Mixed-Use Property. The property defined as the “Property” in the Mixed-Use
Declaration and legally described in Exhibit A to the Mixed-Use Declaration, upon which the
Mixed-Use Declarant and its affiliates are developing and intend to further develop a phased,
mixed-use development.
31. Monthly Add-On RSF Report. The written report that SDMS is required under
the terms of this Agreement to prepare for each calendar month during the term of this
Agreement and distribute to the PICs and the Town, which report will be substantially in the
form and contain the information set forth in Exhibit C.
32. Monthly Fee Statement. As defined in Section 3.5 of this Agreement.
33. Municipal Payments. The portion of the Add-On RSF Revenues which the
Town is entitled to receive and are actually collected by SDMS as more particularly described in
the Annexation and Development Agreement. The Municipal Payments are calculated as
follows: As of the Effective Date, the rate of the Add-On Retail Sales Fee is 0.75%. The net
proceeds, after adjustment for (deduction of) the Collection Expenses and application of any
EXHIBIT A to RESOLUTION 13-13
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1013284.6
other adjustments to the Add-On RSF Revenues as set forth in the Annexation and Development
Agreement, of the Add-On RSF Revenues resulting from imposition of the 0.75% rate to Add-
On RSF Retail Activities transactions occurring within the Property will constitute the Municipal
Payments. If the Town increases the Sales Tax rate on Add-On RSF Retail Activities transactions
above 4.0% during any period for which Municipal Payments are to be remitted to the Town, the
portion of the Add-On RSF Revenues which will be construed to be Municipal Payments will be
reduced in the same degree as any Sales Tax rate on Add-On RSF Retail Activities transactions
increase above 4.0%. For example, if the Town increases its Sales Tax rate on Add-On RSF
Retail Activities transactions by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSF
Revenues construed to be Municipal Payments will be that amount equivalent to a reduction of
0.25% in the rate of the Add-On Retail Sales Fee (i.e., the revenue realized from a rate of 0.50%
rather than the revenue realized from a rate of 0.75%).
34. Party(ies). Individually, a signatory to this Agreement and, collectively, all
signatories to this Agreement.
35. Person. Any individual, partnership, corporation, limited liability company,
association, trust or other type of entity or organization.
36. PIC Add-On RSF Account. The bank account established or to be established
for the benefit of the PICs for the purpose of SDMS depositing, in accordance with the
requirements of Section 1.4, Add-On RSF Revenues received from Add-On RSF Obligors who
have engaged in Add-On RSF Retail Activities within the Property within the applicable
Reporting Period.
37. PICs. Collectively, the Commercial PIC and the Mixed-Use PIC.
38. Property. Collectively, the Commercial Property and the Mixed-Use Property.
39. Records. The real property records of the Clerk and Recorder for Eagle County,
Colorado.
40. Reporting Period. Pursuant to applicable Town regulations, the period of time
(which may be monthly, quarterly or such other frequency as the applicable regulations may
require) with respect to which a Sales Tax obligor is required to file a periodic report of Taxable
Transactions and remit Sales Taxes thereon.
41. Retail Sales Fee or RSF. Is defined in the Declarations.
42. Sales Tax(es). The tax levied by the Town pursuant to the Sales Tax Regulation.
43. Sales Tax Regulation. Chapter 3.08 of the Town Municipal Code, and any
regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced
from time to time.
44. SDMS. As defined in the introductory paragraph of this Agreement, Special
District Management Services, Inc., a Colorado corporation, together with its successors and any
of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to
EXHIBIT A to RESOLUTION 13-13
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1013284.6
this Agreement, is the Add-On RSF Collection Agent as contemplated in the Annexation and
Development Agreement.
45. Stand-By Fees. As defined in Exhibit E.
46. Taxable Transaction. Any transaction by which a Person acquires for any
consideration or uses within the Town any tangible personal property or service that is subject to
the Sales Tax or would be subject to the Sales Tax but for any credit of such tax the Town may
make pursuant to the Annexation and Development Agreement and, in addition, any other
transaction for, or the use of, any personal property or service that the Commercial PIC and/or
the Mixed-Use PIC may designate from time to time as a Taxable Transaction. If the Town
stops levying the Sales Tax generally, the term “Taxable Transaction” will mean any transaction
by which a Person acquires for any consideration or uses within the Town any tangible personal
property or service that would have been subject to the version of the Sales Tax last in effect (but
for any credit of such tax the Town may have been making pursuant to the Annexation and
Development Agreement) and, in addition, any other transaction for, or the use of, any personal
property or service that the Commercial PIC and/or Mixed-Use PIC may designate from time to
time as a Taxable Transaction.
47. Tax Credit Termination. The occurrence of the termination of the Town’s
obligation to provide tax credits to offset the effect of, among other matters, the Credit Retail
Sales Fee (as defined in the Declarations) as more particularly described in the Annexation and
Development Agreement, which obligation is implemented by and codified in the Town
Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail
sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public
accommodations).
48. Town. As defined in the introductory paragraph of this Agreement.
49. Town Add-On RSF Account. The bank account established or to be established
for the benefit of the Town for the purpose of SDMS depositing, in accordance with the
requirements of Section 1.4, Add-On RSF Revenues received from Add-On RSF Obligors who
have engaged in Add-On RSF Retail Activities within the Property within the applicable
Reporting Period.
EXHIBIT A to RESOLUTION 13-13
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1013284.6
EXHIBIT B
Form of Add-On RSF Reporting Form
EXHIBIT A to RESOLUTION 13-13
C-1
1013284.6
EXHIBIT C
Form of Monthly Add-On RSF Report
D-1
1013284.6
EXHIBIT D
Audit Procedures
• Obtain listing of all Sales Tax and business licenses obtained by businesses within
the Property from the Director of Finance and obtain the Add-On RSF Obligor List as of the end
of the applicable calendar year required to be maintained by SDMS and perform the following:
¤ Compare the businesses reflected on the listing provided by the Director
of Finance to the businesses included on the Add-On RSF Obligor List; and
¤ Compare the dates of the business licenses that were obtained for each
business according to the Town’s records to those dates provided on the Add-On RSF
Obligor List.
• Randomly select a sample of Add-On RSF Reporting Forms from each Add-On
RSF Obligor submitted to SDMS and perform the following:
¤ Determine if each Add-On RSF Reporting Form and related Add-On RSF
Revenues were submitted on or before the Fee Remittance Date for the applicable
Reporting Period;
¤ Determine, if the Add-On RSF Reporting Forms were not remitted on or
before the Fee Remittance Date, SDMS sent a first delinquency notice by certified mail
to the Add-On RSF Obligor not later than the 15th day following the applicable Fee
Remittance Date;
¤ Mathematically recalculate the Add-On Retail Sales Fee amounts due and
payable based on the Add-On RSF Retail Activities reported by each Add-On RSF
Obligor for each Add-On RSF Reporting Form;
¤ Reconcile the Add-On RSF Revenues remitted by each Add-On RSF
Obligor to bank deposit receipts prepared by SDMS; and
¤ Review the bank deposit slips prepared by SDMS for evidence that the
Add-On RSF Revenues were correctly deposited in the Asphalt Overlay Account, the
Town Add-On RSF Account and the PIC Add-On RSF Account, as applicable, not later
than the seventh business day after receipt of any Add-On RSF Revenues from Add-On
RSF Obligors.
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1013284.6
EXHIBIT E
SDMS Fee Schedule
For performance of services SDMS fees are billed monthly. The current hourly rate as of
the Effective Date is $130.00 per hour. For so long as SDMS is performing collection services
with respect to the Credit RSF Revenues pursuant to a separate agreement, SDMS will not
charge an hourly rate or other Collection Expense rates (excluding third-party invoices paid by
SDMS that are reimbursable as a Collection Expense) under this Agreement that exceeds such
rates charged by SDMS for its services under the agreement pertaining to collection of the Credit
RSF Revenues. A minimum monthly charge of two hours will be billed as a stand-by fee
(“Stand-By Fee”), provided that the Stand-by Fee will be waived to the extent of actual hours
billed. The hourly rate will increase annually on the anniversary date of the Effective Date in
accordance with the Denver/Boulder Consumer Price Index.
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 Heil, Town Attorney
RE: Amendments to the Commercial and Mixed-Use PICs Declarations
DATE: March 29, 2013
Summary: This memorandum provides an overview of the Second Amendment to Declaration of
Covenants for the Village (at Avon) Commercial Areas (“Commercial Declarations”) and the First
Amendment to Declaration of Covenants for the Village (at Avon) Mixed-Use Areas (“Mixed-Use
Declarations”). Currently, the Commercial Declarations and Mixed-Use Declarations collectively apply to all
areas of the Village (at Avon). The Declarations are property covenants that set forth the rights and
obligations of the public improvement companies to impose various public improvement fees in connection
with the Town’s tax credits. These fees include the Real Estate Transfer Fee, the Accommodations Fee,
and the Retail Sales Fee. As a material term to the settlement and the Consolidated, Amended and
Restated Annexation and Development Agreement (“CARADA” or “Development Agreement”), the PICs
are required to impose an additional “Add-On Retail Sales Fee” (“RSF”) of .75% which will generate funds
to be remitted to the Asphalt Overlay Account and to the Town’s general fund as “Municipal Payments.” In
addition to the obligations stated in the CARADA, the .75% Add-On RSF is legally established by (1) the
amendments to the Declarations, (2) adoption of a Resolution by each PIC to impose the .75% Add-On
RSF, and (3) the Add-On Retail Sales Fee Collection Services Agreement.
Amendment to Declarations: The amendments to the Declarations are essentially the same. Reference
is made to the sections in the Commercial Declarations in this discussion; however, the operative language
in the amendments is the same in both amendments although the sections numbers differ. Section 5.2(b)
and Section 6.5 of the CARADA sets forth the obligations of the PICs to amend the Declarations to impose
the Add-On RSF.
The definitions are revised to amend the definition of Annexation and Development Agreement and
Taxable Transaction (for consistency with the CARADA) and to add new definitions including Add-On RSF,
Add-On RSF Collection Services Agreement, Add-On RSF Rate, Add-On RSF Revenues, Credit RSF,
Credit RSF Rate, Municipal Payments, Permitted Uses, Project Costs and Term. Generally, the new
definitions are included for consistency with the CARADA and to establish flexibility in the use, rate and
duration of the Add-On RSF beyond the purpose and Term of the CARADA (i.e. the PICs may continue the
Add-On RSF at the .75% rate after the obligation to remit this revenue to the Towne expires and/or the
PICs may someday increase the Add-On RSF rate above .75% and retain this additional revenue).
The desire for future flexibility renders the amendments more difficult to read; however, the
amendments do accomplish the effect of imposing the .75% Add-On RSF to implement the CARADA and
the terms of the Settlement Term Sheet. NOTE: the definition of Add-On RSF is slightly different in the
Declarations compared to the CARADA in that the definition in the CARADA expressly references the .75%
rate set forth in Section 6.4(b) of the CARADA. This cross-reference to the .75% rate set forth in Section
6.4(b) of the CARADA was incorporated into the Declarations to avoid any ambiguity that the amendments
to the Declarations are for the purpose of imposing the .75% Add-On RSF during the Term of the CARADA.
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Amendments to Mixed Use and Commercial Declarations
March 29, 2013
Page 2 of 2
Section 7.11 of the Commercial Declarations was added to expressly grant the Town the right to
enforce the Add-On RSF against retail vendors in the event that the PICs fail to impose and collect the
Add-On RSF. Section 13.3 of the Commercial Declarations was added to provide that the Town must
provide written consent to any amendment that “materially impact or impair the ability or authority of the
Company to collect that portion of the Add-On RSF Revenues comprising the Municipal Payments and
remit the same to the Town.” Section 14.12 of the Commercial Declaration was added to provide that the
PIC will forward a copy of any amendments to the Declarations.
Town’s Legal Right to Enforce the Add-On RSF: Town’s primary legal right to enforce the Add-On RSF
is in the CARADA and a failure of the Master Developer or PICs to take all legally available action to
impose the Add-On RSF and cause the collection and remittance of the Add-On RSF Revenues to the
Collection Agent, cause Collection Agent to remit to Town Municipal Payments, and take no action to
modify, terminate, suspend or otherwise interfere with Town’s right to receive Municipal Payments. Failure
to perform is a default of the CARADA. The amendments to the Declarations implement this obligation and
further create the rights of the Town to imposition and collection of the Add-On RSF against retail vendors
with the same rights of the PICs under the Declarations if the PICs failure to perform.
Requested Town Council Action: Approve the amendments to the Mixed Use Declarations and
Commercial Declarations by separate motions.
Attachments:
• Second Amendment to Commercial Declarations
• First Amendment to Commercial Declarations
• Commercial Declarations
• First Amendment to Mixed-Use Declarations
• Mixed-Use Declarations
Thanks, Eric
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1012717.7
When recorded, return to:
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.
Attn: Munsey Ayers
950 17th St., Ste. 1600
Denver, CO 80202
SECOND AMENDMENT
TO
DECLARATION OF COVENANTS FOR THE VILLAGE (AT AVON)
COMMERCIAL AREAS
THIS SECOND AMENDMENT TO DECLARATION OF COVENANTS FOR THE
VILLAGE (AT AVON) COMMERCIAL AREAS (this “Amendment”) is made as of
______________, 20___, with the consent of TRAER CREEK-RP LLC, a Colorado limited
liability company (“Declarant”).
Recitals
A. Traer Creek LLC, a Colorado limited liability company, as the original
“Declarant,” executed and recorded that certain Declaration of Covenants for The Village (at
Avon) Commercial Areas dated as of May 8, 2002 and recorded in the real property records of
Eagle County, Colorado (the “Records”) on May 8, 2002 at Reception No. 795012 (“Original
Declaration”).
B. By virtue of that certain Special Warranty Deed dated as of April 25, 2002 and
recorded in the Records on May 8, 2002 at Reception No. 795023, Declarant is the successor to
Traer Creek LLC as “declarant” under the Original Declaration.
C. The Original Declaration subsequently was amended by that certain First
Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas dated as
of June 5, 2008 and recorded in the Records on June 10, 2008 at Reception No. 200812111 (the
“First Amendment”).
D. The Original Declaration as amended by the First Amendment is referred to
herein as the “Declaration.” Except as otherwise defined in this Amendment, all capitalized
terms used in this Amendment have the meaning given for them in the Declaration.
E. The purpose of this Amendment is to implement certain terms and conditions of
the Annexation and Development Agreement (as defined in Section 1(a)(i) below), including
without limitation, Sections 5.2(b), 5.3(c), 6.4(b) and 6.5 thereof, which pertain to the
implementation and imposition of a retail sales fee (the “Add-On RSF” as defined in
Section 1(a)(iii) below) to be applied to Taxable Transactions occurring within the Property,
which fee does not result in an offsetting credit against the Town’s Sales Tax obligation.
F. Pursuant to Section 13.1(f) of the Declaration, subject to certain restrictions, the
Declaration may be amended by the affirmative vote or written consent of the Owners of Units to
which more than 67% of the votes in the Company are allocated, provided that during the
Declarant Control Period any such amendment shall also require the approval of Declarant.
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1012717.7
G. This Amendment has been submitted to the Owners of the Units for their written
consent and has been consented to in writing by Owners of Units to which more than 67% of the
votes in the Company are allocated. In addition, Declarant desires to consent to this Amendment
as indicated by the Declarant consent attached to this Amendment.
Amendment
NOW, THEREFORE, the Declaration is amended as follows and pursuant to the
following provisions:
1. Amendments.
(a) Definitions.
(i) Annexation and Development Agreement. Section 2.6 of the
Declaration is hereby deleted in its entirety and in its place inserted the following:
2.6 Annexation and Development Agreement. The Consolidated,
Amended and Restated Annexation and Development Agreement
for The Village (at Avon) dated as of _____________, 20____ by
and between the Town, the Service District, Declarant and, with
respect to only Planning Area I (as defined in the Annexation and
Development Agreement), EMD Limited Liability Company, all as
parties, and Avon Urban Renewal Authority, the Company, The
Village (at Avon) Mixed-Use Public Improvement Company and,
with respect to the Property excepting Planning Area I, EMD
Limited Liability Company, all as limited parties, and Recorded on
or about even date herewith, as amended from time to time.
(ii) Taxable Transaction. Section 2.78 of the Declaration is hereby
deleted in it entirety and in its place inserted the following:
2.78 Taxable Transaction. Any transaction by which a Person
acquires for any consideration or uses within the Town any
tangible personal property or service that is subject to the Sales
Tax or would be subject to the Sales Tax but for any credit of such
tax the Town may make pursuant to the Annexation and
Development Agreement and, in addition, any other transaction
for, or the use of, any personal property or service that the
Company may designate from time to time as a Taxable
Transaction. If the Town stops levying the Sales Tax generally,
the term “Taxable Transaction” shall mean any transaction by
which a Person acquired for any consideration or uses within the
Town any tangible personal property or service that would have
been subject to the version of the Sales Tax last in effect (but for
any credit of such tax the Town may have been making pursuant to
the Annexation and Development Agreement) and, in addition, any
other transaction for, or the use of, any personal property or service
3
1012717.7
that the Company may designate from time to time as a Taxable
Transaction.
(iii) New Definitions. Article 2 of the Declaration is hereby amended
by the insertion of the following definitions:
2.5.2 Add-On RSF. A component of the Retail Sales Fee as
described in Section 7.4.
2.5.4. Add-On RSF Collection Services Agreement. Is defined in
the Annexation and Development Agreement.
2.5.6 Add-On RSF Rate. The Retail Sales Fee Rate of the Add-
On RSF as described in Section 7.5(c).
2.5.8 Add-On RSF Revenues. Is defined in the Annexation and
Development Agreement.
2.20.2 Credit RSF. A component of the Retail Sales Fee as
described in Section 7.4.
2.20.4 Credit RSF Rate. The Retail Sales Fee Rate of the Credit
RSF as described in Section 7.5(c).
2.49.2 Municipal Payments. Is defined in the Annexation and
Development Agreement.
2.52.2 Permitted Uses. Is defined in Section 7.10.
2.55.2 Project Costs. Is defined in Section 7.10.
2.78.2 Term. Is defined in the Annexation and Development
Agreement.
(b) Retail Sales Fee. Section 7.4 of the Declaration is hereby amended by
inserting as a new first sentence to Section 7.4 the following:
The Retail Sales Fee is comprised of the following two components:
(a) the “Credit RSF,” which is the portion of the Retail Sales Fee that,
when applied to and collected on Taxable Transactions in accordance with
this Article 7, shall result in an offsetting credit against the Sales Tax
obligation pursuant to the terms of the Annexation and Development
Agreement; and (b) the “Add-On RSF,” which is the portion of the Retail
Sales Fee that, when applied to and collected on Taxable Transactions in
accordance with this Article 7, shall not result in an offsetting credit
against the Sales Tax obligation.
4
1012717.7
(c) Retail Sales Fee Rate. Section 7.5(c) of the Declaration is hereby deleted
in its entirety and in its place inserted the following:
(c) Retail Sales Fee Rate. The percentage rate(s) of the Retail Sales Fee
(the “Retail Sales Fee Rate”) (i) shall be established by the Company
from time to time; (ii) may vary as applied to the Credit RSF and as
applied to the Add-On RSF; and (iii) may vary as applied to different
portions of the Property. The Retail Sales Fee Rate of the Add-On RSF
(the “Add-On RSF Rate”) (Y) shall be set during the Term at a rate in
accordance with Section 6.4(b) of the Annexation and Development
Agreement; and (Z) shall not, without the prior written approval of the
Declarant during the Declarant Control Period, be greater than 0.75%.
The Retail Sales Fee Rate of the Credit RSF (the “Credit RSF Rate”)
shall be set at the same rate as the percentage tax rate imposed by the
Town pursuant to the Sales Tax subject to the following exceptions:
(i) the Credit RSF Rate may be set at a rate less than
the percentage tax rate imposed by the Town pursuant to the Sales
Tax with the prior written approval of the Service District, any
LOC Issuer, and, during the Declarant Control Period, Declarant;
and,
(ii) subject to the terms and conditions of, and in
accordance with, Section 6.4(b)(ii) of the Annexation and
Development Agreement, if the Town increases the Sales Tax rate
for a “specific project” (as defined in Section 6.4(b)(ii) of the
Annexation and Development Agreement) during the Term, the
Credit RSF Rate shall not be increased correspondingly to such
increased Town Sales Tax rate.
(d) Discontinuation of the Fees. Section 7.9 of the Declaration is hereby
deleted in its entirety and in its place inserted the following:
7.9 Discontinuation of the Fees. The Company shall be obligated and
authorized to levy and collect the Fees pursuant to this Article 7 for so
long as the Town maintains the Tax Credit in full force and effect as set
forth in Section 6.1(b) of the Annexation and Development Agreement;
provided, however, the Company shall be further authorized to continue to
levy and collect the Add-On RSF pursuant to this Article 7 upon and after
the Town terminates the Tax Credit. Notwithstanding the foregoing and
pursuant to Section 6.1(d) of the Annexation and Development
Agreement, if the Company is authorized to discontinue collecting the
Fees pursuant to this Section 7.9 and the Town desires to begin imposing
any tax under the Municipal Code that is equivalent to any such Fee,
excluding the Add-On RSF (e.g., the Real Property Transfer Tax would be
considered the equivalent of the Real Estate Transfer Fee) but is prevented
from collecting such tax due to Article X, Section 20, of the Constitution
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1012717.7
of the State of Colorado, the Company shall not discontinue collecting
such Fee (excluding the Add-On RSF) and shall remit the payments
collected pursuant to such Fee to the Town as required by the Annexation
and Development Agreement.
(e) Use of Add-On RSF Revenues. Article 7 of the Declaration is hereby
amended by inserting a new Section 7.10 into Article 7 of the Declaration as follows:
7.10 Use of Add-On RSF Revenues. Add-On RSF Revenues may be
used for the payment of (a) Municipal Payments to the Town for the
purposes stated in Section 6.5(b)(i) of the Annexation and Development
Agreement; (b) the “Project Costs” (as defined below); and (c) other
matters as otherwise expressly provided for in this Declaration and/or the
Annexation and Development Agreement (collectively, the “Permitted
Uses”). By accepting title to a Unit or a Leasehold Estate, each Owner
and Leasehold Owner acknowledges: (i) that the Company, the Service
District, the Town and/or the Declarant, as applicable, will use the Add-
On RSF Revenues for the Permitted Uses, which will benefit the Units and
the Property; and (ii) that the obligation to pay the Add-On RSF pursuant
to this Declaration touches and concerns the Property and the Units and is
a real covenant running with the land as well as a personal contractual
obligation of Owners and Leasehold Owners. For purposes of this
Article 7, the “Project Costs” shall mean and include the costs and
expenses to provide or undertake the following with respect to the
Property: (A) on-site and off-site public and private infrastructure
improvements and amenities benefitting the Property and the Units, which
may include, but are not limited to, streets, parking lots and facilities,
sidewalks, utilities (wet and dry), storm water and water quality
management facilities, trail systems, landscaping, project and directional
signage, right-of-way and easement acquisitions, open space, project
lighting, traffic control devices, and similar improvements and amenities
as determined by Declarant and/or the Company; (B) economic
development activities with respect to the Property, including, without
limitation, provision of incentives to retain existing retailers and service
providers within, and attracting new retailers and service providers to, the
Property; (C) ongoing maintenance and related services that Declarant
and/or the Company may undertake for the common benefit of the
Property at the direction of Declarant, including, but not limited to,
general common area maintenance and the installation and maintenance of
landscaping, lighting, signage, marketing and promotional programs for
the Property, and similar functions, including without limitation, engaging
consultants in connection with such services, that will benefit the Property,
and that will benefit the Owners and Leasehold Owners; (D) planning,
designing, engineering, construction engineering, financing, acquiring,
construction surveying, constructing, managing construction of and
installing the on-site and off-site public and private infrastructure
improvements and amenities benefitting the Property and the Units,
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1012717.7
together with all land or interests in land necessary for the completion of
the same, and all other costs and expenses incurred or advanced in
connection with the financing, acquisition, construction and completion of
the on-site and off-site public and private infrastructure improvements and
amenities benefitting the Property and the Units, including, without
limitation, maintenance, repair and replacement costs incurred therefor;
(E) any other functions the Company is authorized to perform under its
governing documents or under the terms and conditions of this
Declaration, as amended from time to time in accordance with its terms;
and (F) the Company’s organization and/or management.
(f) Town Enforcement of Payment of Add-On RSF. Article 7 of the
Declaration is hereby amended by inserting a new Section 7.11 into Article 7 of the
Declaration as follows:
7.11 Town Enforcement of Payment of Add-On RSF. Subject to this
Section 7.11, the Town is a limited third party beneficiary of this
Declaration for the sole purpose of enforcing the Owners’ and Leasehold
Owners’ payment of the Add-On RSF pursuant to the terms of this
Declaration. If the Owner(s) and/or Leasehold Owner(s) fail to pay the
Add-On RSF in accordance with this Declaration, the Town may give
written notice of such failure to the Company and the Company shall have
60 days from receipt of such notice to cause such Owner(s) and/or
Leasehold Owner(s) to cure such non-payment; provided, however, in no
event shall the Company have any obligation to cause such Owner(s)
and/or Leasehold Owner(s) to cure such non-payment or have any liability
with respect thereto. Upon the foregoing cure period having expired
without such Owner(s) and/or Leasehold Owner(s) curing the non-
payment, the Town shall have the right to exercise all rights and remedies
of the Company as set forth in Article 8 and Section 14.7 with respect to
enforcement against the applicable Owner(s) and/or Leasehold Owner(s)
of such party(ies)’ obligation to pay the Add-On RSF. Notwithstanding
the foregoing, the Company shall have the right, but not the obligation, to
give notice to the Town waiving the Company’s 60-day cure period, in
which event the Town shall immediately have the right to exercise the
rights and remedies of the Company as set forth in the preceding sentence.
The Town’s right to enforce the Owners’ and Leasehold Owners’ payment
of the Add-On RSF pursuant to this Declaration shall terminate
concurrently with termination of the Town’s right to receive the Municipal
Payments in accordance with the terms of the Annexation and
Development Agreement, and upon and after such termination of the
Town’s right to receive the Municipal Payments, this Section 7.11 shall be
null and void and of no further force or effect.
(g) Amendments Concerning the Fees. Section 13.3 of the Declaration is
hereby deleted in its entirety and in its place inserted the following:
7
1012717.7
13.3 Amendments Concerning Fees. Notwithstanding any provision of
this Declaration to the contrary, (a) without the prior written consent of the
Service District and any LOC Issuer, neither Article 7 of this Declaration,
nor any other provision of this Declaration nor the Fee Assignment
Agreement may be amended in any manner that would materially impact
or impair the ability or authority of the Company to collect any of the Fees
(excluding the Add-On RSF) and remit the same to the Service District in
accordance with the terms and conditions of this Declaration and the Fee
Assignment Agreement; and (b) without the prior written consent of the
Town, neither Article 7 of this Declaration, nor any other provision of this
Declaration nor the Add-On RSF Collection Services Agreement may be
amended in any manner that would materially impact or impair the ability
or authority of the Company to collect that portion of the Add-On RSF
Revenues comprising the Municipal Payments and remit the same to the
Town in accordance with the terms and conditions of this Declaration, the
Annexation and Development Agreement and the Add-On RSF Collection
Services Agreement.
(h) Notice to the Town. Section 14.12 of the Declaration is hereby amended
by inserting after the last sentence of Section 14.12 the following:
During the Term, the Company will provide to the Town a courtesy copy
of any amendment to this Declaration within 30 days of recordation
thereof, which courtesy copy may be hand delivered or delivered by U.S.
mail, nationally-recognized courier service or facsimile to the following
address: Town of Avon, Attention: Town Manager and Town Attorney, 1
Lake Street, P.O. Box 975, Avon, Colorado 81620, facsimile: (970) 949-
9139. Notwithstanding the foregoing, the Company will have no liability
with respect to, and it will not be a default hereunder in connection with,
any failure by the Company to provide to the Town a courtesy copy of any
amendment to this Declaration as contemplated by this Section 14.12.
The Town may change its addresses for purposes of notice by notice to the
Company in accordance with this Section 14.12.
2. Effect. Except as expressly modified herein, the Declaration is unmodified, is
hereby ratified and affirmed and will remain in full force and effect in accordance with its terms.
If there is any inconsistency between the terms of the Declaration and the terms of this
Amendment, the provisions of this Amendment will govern and control.
3. Counterparts. This Amendment may be executed in multiple counterparts, the
individual signatures pages of which may be collated together to form one original fully executed
version of this Amendment for the purpose of Recording.
4. Recording. This Amendment and the certificate included as a part of this
Amendment shall be Recorded in the Records, as required by Section 13.2(c) of the Declaration.
[Company Certificate Follows This Page]
8
1012717.7
Company Certificate
IN WITNESS WHEREOF, _________________________, as President of The Village
(at Avon) Commercial Public Improvement Company, a Colorado nonprofit corporation,
certifies that this Amendment has been consented to in writing by the requisite number of
Owners pursuant to Section 13.1(f) of the Declaration. Such written consents are available for
review by any interested party at the principal offices of the company located at 0101 Fawcett
Road, Suite 210, Avon, CO 81620.
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado nonprofit corporation
By:
Name:
Title: President
STATE OF COLORADO )
) ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of
_______________, 20___, by _______________________, as President of The Village (at
Avon) Commercial Public Improvement Company, a Colorado nonprofit corporation.
Witness my hand and official seal.
My commission expires: .
Notary Public
9
1012717.7
Declarant Consent
IN WITNESS WHEREOF, Traer Creek-RP, LLC, a Colorado limited liability company,
in its capacity as Declarant, hereby consents to this Amendment as required by Section 13.1(f) of
the Declaration.
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By:
Name:
By: Manager
STATE OF COLORADO )
) ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of
________________, 20___, by ______________________, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of Traer Creek-RP LLC, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires: .
Notary Public
1
1023691.7
When recorded, return to:
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.
Attn: Munsey Ayers
950 17th St., Ste. 1600
Denver, CO 80202
FIRST AMENDMENT
TO
DECLARATION OF COVENANTS FOR THE VILLAGE (AT AVON)
MIXED-USE AREAS
THIS FIRST AMENDMENT TO DECLARATION OF COVENANTS FOR THE
VILLAGE (AT AVON) MIXED-USE AREAS (this “Amendment”) is made as of
______________, 20___, with the consent of TRAER CREEK-RP LLC, a Colorado limited
liability company (“Declarant”).
Recitals
A. Traer Creek LLC, a Colorado limited liability company, as the original
“Declarant,” executed and recorded that certain Declaration of Covenants for The Village (at
Avon) Mixed-Use Areas dated as of May 8, 2002 and recorded in the real property records of
Eagle County, Colorado (the “Records”) on May 8, 2002 at Reception No. 795013
(“Declaration”). Except as otherwise defined in this Amendment, all capitalized terms used in
this Amendment have the meaning given for them in the Declaration.
B. By virtue of that certain Special Warranty Deed dated as of April 25, 2002 and
recorded in the Records on May 8, 2002 at Reception No. 795023, Declarant is the successor to
Traer Creek LLC as “declarant” under the Declaration.
C. The purpose of this Amendment is to implement certain terms and conditions of
the Annexation and Development Agreement (as defined in Section 1(a)(i) below), including
without limitation, Sections 5.2(b), 5.3(c), 6.4(b) and 6.5 thereof, which pertain to the
implementation and imposition of a retail sales fee (the “Add-On RSF” as defined in
Section 1(a)(iii) below) to be applied to Taxable Transactions occurring within the Property,
which fee does not result in an offsetting credit against the Town’s Sales Tax obligation.
D. Pursuant to Section 16.1(j) of the Declaration, subject to certain restrictions, the
Declaration may be amended by the affirmative vote or written consent of the Owners of Units to
which more than 50% of the votes in the Company are allocated, provided that during the
Development Period any such amendment shall also require the approval of Declarant.
E. This Amendment has been submitted to the Owners of the Units for their written
consent and has been consented to in writing by Owners of Units to which more than 50% of the
votes in the Company are allocated. In addition, Declarant desires to consent to this Amendment
as indicated by the Declarant consent attached to this Amendment.
2
1023691.7
Amendment
NOW, THEREFORE, the Declaration is amended as follows and pursuant to the
following provisions:
1. Amendments.
(a) Definitions.
(i) Annexation and Development Agreement. Section 2.7 of the
Declaration is hereby deleted in its entirety and in its place inserted the following:
2.7 Annexation and Development Agreement. The Consolidated,
Amended and Restated Annexation and Development Agreement
for The Village (at Avon) dated as of _____________, 20____ by
and between the Town, the Service District, Declarant and, with
respect to only Planning Area I (as defined in the Annexation and
Development Agreement), EMD Limited Liability Company, all as
parties, and Avon Urban Renewal Authority, the Company, The
Village (at Avon) Mixed-Use Public Improvement Company and,
with respect to the Property excepting Planning Area I, EMD
Limited Liability Company, all as limited parties, and Recorded on
or about even date herewith, as amended from time to time.
(ii) Taxable Transaction. Section 2.80 of the Declaration is hereby
deleted in it entirety and in its place inserted the following:
2.80 Taxable Transaction. Any transaction by which a Person
acquires for any consideration or uses within the Town any
tangible personal property or service that is subject to the Sales
Tax or would be subject to the Sales Tax but for any credit of such
tax the Town may make pursuant to the Annexation and
Development Agreement and, in addition, any other transaction
for, or the use of, any personal property or service that the
Company may designate from time to time as a Taxable
Transaction. If the Town stops levying the Sales Tax generally,
the term “Taxable Transaction” shall mean any transaction by
which a Person acquired for any consideration or uses within the
Town any tangible personal property or service that would have
been subject to the version of the Sales Tax last in effect (but for
any credit of such tax the Town may have been making pursuant to
the Annexation and Development Agreement) and, in addition, any
other transaction for, or the use of, any personal property or service
that the Company may designate from time to time as a Taxable
Transaction.
(iii) New Definitions. Article 2 of the Declaration is hereby amended
by the insertion of the following definitions:
3
1023691.7
2.6.2 Add-On RSF. A component of the Retail Sales Fee
described in Section 9.4.
2.6.4 Add-On RSF Collection Services Agreement. Is defined in
the Annexation and Development Agreement.
2.6.6 Add-On RSF Rate. The Retail Sales Fee Rate of the Add-
On RSF as described in Section 9.5(c).
2.6.8 Add-On RSF Revenues. Is defined in the Annexation and
Development Agreement.
2.22.2 Credit RSF. A component of the Retail Sales Fee
described in Section 9.4.
2.22.4 Credit RSF Rate. The Retail Sales Fee Rate of the Credit
RSF as described in Section 9.5(c).
2.50.2 Municipal Payments. Is defined in the Annexation and
Development Agreement.
2.52.2 Permitted Uses. Is defined in Section 9.10.
2.52.4 Project Costs. Is defined in Section 9.10.
2.80.2 Term. Is defined in the Annexation and Development
Agreement.
(b) Retail Sales Fee. Section 9.4 of the Declaration is hereby amended by
inserting as a new first sentence to Section 9.4 the following:
The Retail Sales Fee is comprised of the following two components:
(a) the “Credit RSF,” which is the portion of the Retail Sales Fee that,
when applied to and collected on Taxable Transactions in accordance with
this Article 9, shall result in an offsetting credit against the Sales Tax
obligation pursuant to the terms of the Annexation and Development
Agreement; and (b) the “Add-On RSF,” which is the portion of the Retail
Sales Fee that, when applied to and collected on Taxable Transactions in
accordance with this Article 9, shall not result in an offsetting credit
against the Sales Tax obligation.
(c) Retail Sales Fee Rate. Section 9.5(c) of the Declaration is hereby deleted
in its entirety and in its place inserted the following:
(c) Retail Sales Fee Rate. The percentage rate(s) of the Retail Sales Fee
(the “Retail Sales Fee Rate”) (i) shall be established by the Company from
time to time; (ii) may vary as applied to the Credit RSF and as applied to
the Add-On RSF; and (iii) may vary as applied to different portions of the
4
1023691.7
Property. The Retail Sales Fee Rate of the Add-On RSF (the “Add-On
RSF Rate”) (Y) shall be set during the Term at a rate in accordance with
Section 6.4(b) of the Annexation and Development Agreement; and
(Z) shall not, without the prior written approval of the Declarant during
the Development Period, be greater than 0.75%. The Retail Sales Fee
Rate of the Credit RSF (the “Credit RSF Rate”) shall be set at the same
rate as the percentage tax rate imposed by the Town pursuant to the Sales
Tax, subject to the following exceptions:
(i) the Credit RSF Rate may be set at a rate less than the
percentage tax rate imposed by the Town pursuant to the Sales Tax
with the prior written approval of the Service District, any LOC
Issuer, and, during the Development Period, Declarant; and,
(ii) subject to the terms and conditions of, and in
accordance with, Section 6.4(b)(ii) of the Annexation and
Development Agreement, if the Town increases the Sales Tax rate
for a “specific project” (as defined in Section 6.4(b)(ii) of the
Annexation and Development Agreement) during the Term, the
Credit RSF Rate shall not be increased correspondingly to such
increased Town Sales Tax rate.
(d) Discontinuation of the Fees. Section 9.9 of the Declaration is hereby
deleted in its entirety and in its place inserted the following:
9.9 Discontinuation of the Fees. The Company shall be obligated and
authorized to levy and collect the Fees pursuant to this Article 9 for so
long as the Town maintains the Tax Credit in full force and effect as set
forth in Section 6.1(b) of the Annexation and Development Agreement;
provided, however, the Company shall be further authorized to continue to
levy and collect the Add-On RSF pursuant to this Article 9 upon and after
the Town terminates the Tax Credit. Notwithstanding the foregoing and
pursuant to Section 6.1(d) of the Annexation and Development
Agreement, if the Company is authorized to discontinue collecting the
Fees pursuant to this Section 9.9 and the Town desires to begin imposing
any tax under the Municipal Code that is equivalent to any such Fee,
excluding the Add-On RSF (e.g., the Real Property Transfer Tax would be
considered the equivalent of the Real Estate Transfer Fee) but is prevented
from collecting such tax due to Article X, Section 20, of the Constitution
of the State of Colorado, the Company shall not discontinue collecting
such Fee (excluding the Add-On RSF) and shall remit the payments
collected pursuant to such Fee to the Town as required by the Annexation
and Development Agreement.
(e) Use of Add-On RSF Revenues. Article 9 of the Declaration is hereby
amended by inserting a new Section 9.10 into Article 9 of the Declaration as follows:
5
1023691.7
9.10 Use of Add-On RSF Revenues. Add-On RSF Revenues may be
used for the payment of (a) Municipal Payments to the Town for the
purposes stated in Section 6.5(b)(i) of the Annexation and Development
Agreement; (b) the “Project Costs” (as defined below); and (c) other
matters as otherwise expressly provided for in this Declaration and/or the
Annexation and Development Agreement (collectively, the “Permitted
Uses”). By accepting title to a Unit or a Leasehold Estate, each Owner
and Leasehold Owner acknowledges: (i) that the Company, the Service
District, the Town and/or the Declarant, as applicable, will use the Add-
On RSF Revenues for the Permitted Uses, which will benefit the Units and
the Property; and (ii) that the obligation to pay the Add-On RSF pursuant
to this Declaration touches and concerns the Property and the Units and is
a real covenant running with the land as well as a personal contractual
obligation of Owners and Leasehold Owners. For purposes of this
Article 9, the “Project Costs” shall mean and include the costs and
expenses to provide or undertake the following with respect to the
Property: (A) on-site and off-site public and private infrastructure
improvements and amenities benefitting the Property and the Units, which
may include, but are not limited to, streets, parking lots and facilities,
sidewalks, utilities (wet and dry), storm water and water quality
management facilities, trail systems, landscaping, project and directional
signage, right-of-way and easement acquisitions, open space, project
lighting, traffic control devices, and similar improvements and amenities
as determined by Declarant and/or the Company; (B) economic
development activities with respect to the Property, including, without
limitation, provision of incentives to retain existing retailers and service
providers within, and attracting new retailers and service providers to, the
Property; (C) ongoing maintenance and related services that Declarant
and/or the Company may undertake for the common benefit of the
Property at the direction of Declarant, including, but not limited to,
general common area maintenance and the installation and maintenance of
landscaping, lighting, signage, marketing and promotional programs for
the Property, and similar functions, including without limitation, engaging
consultants in connection with such services, that will benefit the Property,
and that will benefit the Owners and Leasehold Owners; (D) planning,
designing, engineering, construction engineering, financing, acquiring,
construction surveying, constructing, managing construction of and
installing the on-site and off-site public and private infrastructure
improvements and amenities benefitting the Property and the Units,
together with all land or interests in land necessary for the completion of
the same, and all other costs and expenses incurred or advanced in
connection with the financing, acquisition, construction and completion of
the on-site and off-site public and private infrastructure improvements and
amenities benefitting the Property and the Units, including, without
limitation, maintenance, repair and replacement costs incurred therefor;
(E) any other functions the Company is authorized to perform under its
6
1023691.7
governing documents or under the terms and conditions of this
Declaration, as amended from time to time in accordance with its terms;
and (F) the Company’s organization and/or management.
(f) Town Enforcement of Payment of Add-On RSF. Article 9 of the
Declaration is hereby amended by inserting a new Section 9.11 into Article 9 of the
Declaration as follows:
9.11 Town Enforcement of Payment of Add-On RSF. Subject to this
Section 9.11, the Town is a limited third party beneficiary of this
Declaration for the sole purpose of enforcing the Owners’ and Leasehold
Owners’ payment of the Add-On RSF pursuant to the terms of this
Declaration. If the Owner(s) and/or Leasehold Owner(s) fail to pay the
Add-On RSF in accordance with this Declaration, the Town may give
written notice of such failure to the Company and the Company shall have
60 days from receipt of such notice to cause such Owner(s) and/or
Leasehold Owner(s) to cure such non-payment; provided, however, in no
event shall the Company have any obligation to cause such Owner(s)
and/or Leasehold Owner(s) to cure such non-payment or have any liability
with respect thereto. Upon the foregoing cure period having expired
without such Owner(s) and/or Leasehold Owner(s) curing the non-
payment, the Town shall have the right to exercise all rights and remedies
of the Company as set forth in Article 10 and Section 17.5 with respect to
enforcement against the applicable Owner(s) and/or Leasehold Owner(s)
of such party(ies)’ obligation to pay the Add-On RSF. Notwithstanding
the foregoing, the Company shall have the right, but not the obligation, to
give notice to the Town waiving the Company’s 60-day cure period, in
which event the Town shall immediately have the right to exercise the
rights and remedies of the Company as set forth in the preceding sentence.
The Town’s right to enforce the Owners’ and Leasehold Owners’ payment
of the Add-On RSF pursuant to this Declaration shall terminate
concurrently with termination of the Town’s right to receive the Municipal
Payments in accordance with the terms of the Annexation and
Development Agreement, and upon and after such termination of the
Town’s right to receive the Municipal Payments, this Section 9.11 shall be
null and void and of no further force or effect.
(g) Amendments Concerning the Fees. Section 16.3 of the Declaration is
hereby deleted in its entirety and in its place inserted the following:
16.3 Amendments Concerning Fees. Notwithstanding any provision of
this Declaration to the contrary, (a) without the prior written consent of the
Service District and any LOC Issuer, neither Article 9 of this Declaration,
nor any other provision of this Declaration nor the Fee Assignment
Agreement may be amended in any manner that would materially impact
or impair the ability or authority of the Company to collect any of the Fees
(excluding the Add-On RSF) and remit the same to the Service District in
7
1023691.7
accordance with the terms and conditions of this Declaration and the Fee
Assignment Agreement; and (b) without the prior written consent of the
Town, neither Article 9 of this Declaration, nor any other provision of this
Declaration nor the Add-On RSF Collection Services Agreement may be
amended in any manner that would materially impact or impair the ability
or authority of the Company to collect that portion of the Add-On RSF
Revenues comprising the Municipal Payments and remit the same to the
Town in accordance with the terms and conditions of this Declaration, the
Annexation and Development Agreement and the Add-On RSF Collection
Services Agreement.
(h) Notice to the Town. Section 17.10 of the Declaration is hereby amended
by inserting after the last sentence of Section 17.10 the following:
During the Term, the Company will provide to the Town a courtesy copy
of any amendment to this Declaration within 30 days of recordation
thereof, which courtesy copy may be hand delivered or delivered by U.S.
mail, nationally-recognized courier service or facsimile to the following
address: Town of Avon, Attention: Town Manager and Town Attorney, 1
Lake Street, P.O. Box 975, Avon, Colorado 81620, facsimile: (970) 949-
9139. Notwithstanding the foregoing, the Company will have no liability
with respect to, and it will not be a default hereunder in connection with,
any failure by the Company to provide to the Town a courtesy copy of any
amendment to this Declaration as contemplated by this Section 17.10.
The Town may change its addresses for purposes of notice by notice to the
Company in accordance with this Section 17.10.
2. Effect. Except as expressly modified herein, the Declaration is unmodified, is
hereby ratified and affirmed and will remain in full force and effect in accordance with its terms.
If there is any inconsistency between the terms of the Declaration and the terms of this
Amendment, the provisions of this Amendment will govern and control.
3. Counterparts. This Amendment may be executed in multiple counterparts, the
individual signatures pages of which may be collated together to form one original fully executed
version of this Amendment for the purpose of Recording.
4. Recording. This Amendment and the certificate included as a part of this
Amendment shall be Recorded in the Records, as required by Section 16.2(c) of the Declaration.
[Company Certificate Follows This Page]
8
1023691.7
Company Certificate
IN WITNESS WHEREOF, _________________________, as President of The Village
(at Avon) Mixed-Use Public Improvement Company, a Colorado nonprofit corporation, certifies
that this Amendment has been consented to in writing by the requisite number of Owners
pursuant to Section 16.1(j) of the Declaration. Such written consents are available for review by
any interested party at the principal offices of the company located at 0101 Fawcett Road,
Suite 210, Avon, CO 81620.
THE VILLAGE (AT AVON) MIXED-USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado nonprofit corporation
By:
Name:
Title: President
STATE OF COLORADO )
) ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of
_______________, 20___, by _______________________, as President of The Village (at
Avon) Mixed-Use Public Improvement Company, a Colorado nonprofit corporation.
Witness my hand and official seal.
My commission expires: .
Notary Public
9
1023691.7
Declarant Consent
IN WITNESS WHEREOF, Traer Creek-RP, LLC, a Colorado limited liability company,
in its capacity as Declarant, hereby consents to this Amendment as required by Section 13.1(f) of
the Declaration.
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By:
Name:
By: Manager
STATE OF COLORADO )
) ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of
________________, 20___, by ______________________, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of Traer Creek-RP LLC, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires: .
Notary Public
After recording, Please return to:
Otten, Johnson, Robinson, Neff & ~ag~ne~i,
12 North First Street, Suite C
DECLARATION OF COVENANTS FOR Tm VILLAGE (AT AVON)
MIXED-USE AREAS .___
TABLE OF CONTENTS
e
icle
1.1
1 . 2
1.3
1.4
icle 2
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.1 1
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
.............................................................................................................
Capitalized Terms .................................................................................................. 1
Purpose ................................................................................................................... 1
Consenting Owner ................................................................................................. 1
~ecl~ation .............................................................................................................
TIONS ....................................................................................................... 2
Accomodatio~s~odging Room .......................................................................... 2
AccommodationdLodging Fee .............................................................................. 2
AccomodationsLodging Fee Rate ...................................................................... 2
Act .......................................................................................................................... 2
Actual Value ....................................................................................................... .. 2
Adhtional Lands .................................................................................................... 3
Annexation . and Development Agreement ............................................................. 3
Articles of Incorporation or Articles ...................................................................... 3
**
Assessment ............................................................................................................ -3
Audit ...................................................................................................................... 3
Authorized Representative ..................................................................................... 3
Board ofDirectors or Board .................................................................................. 3
43ylaws .................................................................................................................... 3
Commercial Company ........................................................................................... 3
. C.ommercia1 Declaration ........................................................................................ 3
.Commercial Unit .................................................................................................... 5
Common Allocation ............................................................................................... 4
Common Assessment ............................................................................................. 4
Common Elements ................................................................................................. 4
Common Expenses ................................................................................................. 4
Company ................................................................................................................ 4
Consideration ......................................................................................................... 4
Declarant ................................................................................................................ 5 .. ~ .............
795813
Page: 2 of 75
05/08/2002 01:13F . ara J Fisher Eagle. GO 135 R 375.00 D 0.00 . 1
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2 -40
2.41
2.42
2.43
2.44
2.45
2.46
2.47
2.48
2.49
2.50
2.5 1
2.52
TABLE OF CONTENTS
(continued)
e
....................................................................................... 5
Declaration ............................................................................................................. 5
Delinquency Costs ................................................................................................. 5
Design Review Board ............................................................................................ 5
Design Review ~uidelines ..................................................................................... 5
eveloper ............................................................................................................... 5
Development Period ............................................................................................... 6
Development Rights ............................................................................................... 6
Director .................................................................................................................. 6
Eligible Holder ........................................................................................................ 6
Fee Assignment Agreement ................................................................................... 6
Fee Records ............................................................................................................ 6
Fees ........................................................................................................................ 6
Final Plat ................................................................................................................ 6
Financing District ................................................................................................... 6
First Mortgage ........................................................................................................ 6
Fiscal Year ............................................................................................................. 6
Improvements ........................................................................................................ 6
LOC Issuer ............................................................................................................. 7
Leasehold Estate .................................................................................................... 7
Leasehold Owner ................................................................................................... 7
Master Design Review Covenants ......................................................................... 7
Member .................................................................................................................. 7
Membership ........................................................................................................... 7
Mortgagee ............................................................................................................. -7
Municipal Code ...................................................................................................... 7
..
Mortgage ................................................................................................................ 7
..
Owner ..................................................................................................................... 7
Outdoor Pet ............................................................................................................ 7
.. ... .
Page: 3 of 75
05/08/2002 01.134
a J Fisher Eagle, GO 135
.. 11
2.53
2.54
2.55
2.56
2.57
2.58
2.59
2.60
2.6 1
2.62
2.63
2.64
2.65
2.66
2.67
2.68
2.69
2.70
2.71
2.72
2.73
2.74
2.75
2.76
2.77
2.78
2.79
2.80
2.81 ....... .. _.-_
TABLE OF CONTENTS
(continued)
e' ........................................................................................................................ 8
Permittee ................................................................................................................ 8
Person ..................................................................................................................... 8
Prior Tax Year ........................................................................................................ 8
Property ..................................................................................................................
o~at~ons Tax .................................................................................
Quorum .................................................................................................................. 8
Real Estate Transfer ............................................................................................... 8
Real.Estate Transfer Fee ......................................................................................... 8
Real Estate Transfer Fee Rate ................................................................................ 9
Real Property Transfer Tax .................................................................................... 9
Reserve Fund .......................................................................................................... 9
Residential Unit ................................................ : .................................................... 9
Retail Sales Fee ....................................................................................................... 9
Retail Sales Fee Rate ............................................................................................. 9
Rules ...................................................................................................................... 9
Sales Price .............................................................................................................. 9
Sales Tax ................................................................................................................. 9
Service Distnct ....................................................................................................... 9
Special Assessment .............................................................................................. 1.0
Special Declarant Rights ...................................................................................... 10
Specific Assessment ............................................................................................. 10
Supplemental Association .................................................................................... 10
Supplemental Declaration .................................................................................... 10
Taking .................................................................................................................. 10
Tax Year ............................................................................................................... 10
Records .................................................................................................................. 9
..
..
Taxable Transaction ............................................................................................. 10
The Village (at Avon) .......................................................................................... 10
............. ._ ............
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TABLE OF CONTENTS
(continued)
2.83
2.84
2.85
2.86
2.87
Article 3
3.1
3.2
3.3
Article 4
4.1.
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
Article 5
5.1
5.2
5.3
5.4
5.5
5.6
5.7 ..
....................................................................................................................
...............................................................................................
............................................................................................................
Total Actual Value 11
Transferee 11
Unit ....................................................................................................................... 11
Use Tax ................................................................................................................ 1
~ildlife ~it~gation PI ...................................................................................... 1
CREATION OF THE COM~TY ................................................................ 11
Creation 11
12 Number of Units ..................................................................................................
Allocations ............................................................................................................ 12
................................................................................................................
DEVELOPMENT OF THE PROPERTY ...........-............_................... ................ 12
Declarant’s Development Rights ......................................................................... 12
Deed Restrictions .............................. ...........................I. 13
Supplemental Declarations .................................................................................. 14
......................................
Other Covenants ................................................................................................... 14
Governmental Interests 14
Declarant’s.Obligation to Construct Common Elements .................................... 14
Common Elements that May Be Gonstructed by the Company .......................... 14
Common Elements Inventory .............................................................................. 15
Subdivision by Owners ........................................................................................ 15
EASEMENTS 17
Easement for Use, Access and-Enjoyment in and to the Common Elements ...... 17
Easements for Encroachment of Common Elements ........................................... 18
Easements Benefiting Declarant .......................................................................... 18
Right of Entry ...................................................................................................... 19
Easements for Drainage and Flood Control ......................................................... 19
Additional Easements .......................................................................................... 19
........................................................................................
Declarant’s Right to Construct Common Elements ............................................. 14
......................................................................................................
Easements for Utilities ......................................................................................... 18
... .. ~ ..... ...
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TABLE OF CONTENTS
(continued)
5.8
Article 6
6.1
6.2
6.3
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.1 1
7.12
7.13
Article 8
8.1
8.2
8.3
8.4
8.5
8.4
8.7
8.8
8.9 - ._ .
ents ................................................................................... 2
SPECIAL DECLARANT RIGNTS ..................................................................... 20
Special Declarant Rights ...................................................................................... 20
Transfer of Special Declarant Rights ................................................................... 20
Models and Offices .............................................................................................. 2
ANY ................................................................................................. 2
Function of Company, Generally ........................................................................ -21
... Property -Wide Matters ........................................................................................ -21
Additional Permissive Functions of the Company .............................................. 22
Membership ......................................................................................................... -23
Authorized Representative ................................................................................... 24
Majority Approval ................................................................................................ 24
&oar$ of Directors ................................................................................................ 25
Remgval of Directors .......................................................................................... -25
.Delivery of Property to Company ........................................................................ 25
Powers ................................................................................................................. -25
ment ......................................................................................................... 27
CB oard Authority ................................................................................................... 28
Annexation and-DeveIopment AgreeGeat ........................................................... 28
FR\JANCIAL lvlATTERS, BUDGET AND ASSESSMENTS ............................ 2'8:
.I . .. . *General Financial Matters; Budget ..................................................................... -28
Matters Pertaining to Actual Value ...................................................................... 30
Creation of Assessments ...................................................................................... 32
Common Assessments ......................................................................................... 32
Special Assessments ............................................................................................ 34
Specific Assessments ........................................................................................... 34
Specific Assessment for Wildlife Mitigation ....................................................... 35
Commencement of Assessments .......................................................................... 35
Pre-Construction Discount for Common and Special Assessments .................... 36 ... . ... -__ .-- .
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TABLE OF CONTENTS
(continued)
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e
icle 9
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
Article 10
10.1
10.2
FEES 3 ....................................................................................................................
Creation of Fees ................................................................................................... 36
Accommodations/Lodging Fee ............................................................................ 36
Real Estate Transfer Fee ...................................................................................... 37
Retail Sales Fee .................................................................................................... 37
Establis~ent of ates ............................................................................ 3
Assignment ofthe Fees to the Service District .................................................... 39
Fee Records and Audits ....................................................................................... 39
Waiver of Fees ..................................................................................................... 40
Discontinuation of the Fees
ENFORCEk&NT OF ASSESSMENTS AND FEES ......................................... 41
.................................................................................. 40 .
10.3
10.4
10.5
10.6
10.7
10.8,
10.9
Article 11
11.1
11.2
11.3
11.4
11.5
Article 12
12.1
12.2 __
Notice of Leasehold Estates ................................................................................. 41
Payment of Assessments and Fee.s ....................................................................... 41
Delinquen.cy Notice .............................................................................................. 42
Acceleration ......................................................................................................... 42
Lien for Assessments and Fees ............................................................................ 42
Enforcement of Assessments and Fees ................................................................. 42
Reallocation ......................................................................................................... 43
Disputes and Records ........................................................................................... 43
Certifiqate ............................................................................................................ :44
MAINTENNCE ................................................................................................. 448
Company’s Responsibilities ................................................................................ 44
Owner’s Responsibility ........................................................................................ 45 . 0.
Maintenance Standard .......................................................................................... 45
Security ................................................................................................................ 45
Party Structures .................................................................................................... 45
USE RESTRICTIONS ......................................................................................... 46
Mineral Operations .............................................................................................. 46
Unsightly or Unkempt Conditions ....................................................................... 46
. ._ .. - ._ . - ....
TABLE OF CONTENTS
(continued)
2.3
12.4
12.5
12.6
12.7
12.8
12.9
12.10
12.1 1
12.12
12.13
12.14
12.15
12.16
12.17
12.18
Article 13
13.1
13.2
13.3
Article 1-4
14.1
14.2
Article 15
15.1
15.2
Article 16
16.1
16.2
uiet Enjoyme~t ................ ; ................................................................................. 46
Wetlands, Lakes and Other Water Bodies ........................................................... 46
Firearms, Fireworks and Explosives .................................................................... 47
Hunting ................................................................................................................ 47
No ~arass~ent of ~ii~li€e ..................................................................................
azardous Activities ......................................................................................
Laws and Ordinances ........................................................................................... 47
Storage of Recreational Vehicles ......................................................................... 47
Use of Recreational Vehicles ............................................................................... 47
Trash Containers and Refuse ............................................................................... 48
Clotheslines ......................................................................................................... :48~
Pets ....................................................................................................................... 48-
Lights and Sounds ................................................................................................ 48
Variances and Rezonings ..................................................................................... 48
Exception for Construction ............. ; .................................................................... 48
Declmant’s Exemption ......................................................................................... 48
INSURANCE, DAMAGE AND TAKINGS- ....................................................... 49
Company’s Insurance ........................................................................................... 49
Damage and Destruction ...................................................................................... 51
Takings ................................................................................................................. 52 .
... .............. -53 .. .. MO~~~AG~E~-~~C~I~~~ .;... ... .T ...................................................................
No Priority ........................................................................................................... 53
Notice to Mortgagees ........................................................................................... 53
CONVEYANCING AND ENCUMBRANCING ............................................... 54
Units ..................................................................................................................... 54
Conmon Elements ............................................................................................... 54
AMENDMENT .................................................................................................... 54
Required Votes ..................................................................................................... 54
Amending Documents ......................................................................................... 55
..... ._ ..... ..........
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Sara J Fisher Eagle. CO 135 R 375.00 D 0.80
TABLE OF CONTENTS
(continued)
16.3 ees ...................................................................... 56
GENERAL PROVISIONS .................................................................................. 56
17.1 Permittees Bound ................................................................................................. 56
17.2 Duration and Termination .................................................................................... 56
Article 17
17.3 Use of the Trade Name “The ~illag~ (at Avon)” ................................................ 56
17.4 C~~pli~ce; ght of Action ............................................................................... 57
1 7.5 Attorney Fees ........................................................................................................ 57
17.6 Indemnity ............................................................................................................. 57
17.7 Severability .......................................................................................................... 57
17.8 Governing Law .................................................................................................... 58
17.9 Captions ............................................................................................................... 58
17.10 Notices ................................................................................................................. 58
17.1 1 . Colorado Common Interest Ownership Act ......................................................... 58
.......... .... ......... .... .. .... --
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... Vlll
DECLARATION OF COVENANTS FOR THE VILLAGE (AT AVON) M~~~-US~
AREAS
TION OF ~OVE~~TS F
claration”~ is made by Traer Creek LLC, a ~olorado li~ite SE
liabili~ company, with the consent of EMD Limited Liability Company, a Colorado limited
liability company, as of May 8,2002.
ARTICLE 1
,1 ~a~ital~zed Terms. ~api~lize
in Article 2 below.
1.2 Purpose. This Declaration is executed to impose upon the Property
mutually beneficial restrictions under a general plan of improvement fog the benefit of the
Owners and to establish a flexible and reasonable procedure for the overall development,
administration, maintenance and preservation of the Property.
1.3 ConsentinP Owner. EMD Limited Liability Company, a Colorado limited
liability company, is the Owner of the portion of the Property dksr;ribed+ as Tract M on Exhibit-A
of this Declmatibn. By execution of this Declaration where indicated below, EMD. Limited
Lictbility Company consents to all of the covenants, CoQditions, restrictions, reservations?
easementsad other provisions set forth in this Declaration.
1.4 Declaration. Declarant and EMIl Limited Liability Company, for
themselves and their respective successors and assigns, hereby declare that all of the Property
shall, fiom and afier the date hereof, constitute a planned community under the Act and shall be
owned, held, conveyed, encumbered, leased, improved, used, occupied and enjoyed subject to
the covenants, conditions, restrictions, reservations; egtsemgnts and other provisions set fo@h in
this Declaration in hrtherance of, and the same shall constitute, a general plan for the
subdivision, ownership, improvement, sale, use andoccupancy of the Property and to enhance
the value, desirability and attractiveness of the Property. This Declaration shall: (i) run with the
Property at law and as an equitable servitude; (ii) bind any Person having or acquiring any right,
title or interest in any portion of the Property; (iii) inure to the benefit of and be binding upon
every part of the Property and every interest therein; and (iv)inure to the benefit of and be
binding upon Declarant and its successors in interest and assigns, each Owner and its heirs,
successors in interest and assigns, &d the Company and its successors in interest.
ARTICLE 2
DEFINITIONS
The following terns shall have the meanings set forth below when used herein: - - __ - -__ - _- __ - - - - - - - _. -_ .
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1
2.1 Accommodations/Lodging Room: Any room, group of rooms or other
acco~odation in any hotel, lodge, condom^^, condominium unit, ap~ent-hotel, bed and
breakfast, motel, guesthouse or any other similar facility that is rented, let or shed to a user
thereof in a manner that is subject to the Public Acco~odations Tax or would be subject to the
for any waiver of such tax the Town may make pursuant to the
Annexation and Development Agreement and, in addition, any other similar accommodation
designated by the Company from time to time as an AccomodatiodLodging Room. If the
Town stops levying the Public Accomodations Tax, the term ‘‘AccommodationslLodging
Room” shall mean any room, group of rooms or other accommodation in any hotel, lodge,
condominium, condominium unit, apartment-hotel? bed and breakfast, motel, guesthouse
other similar facility that is rented, let or furnished to a user thereof in a manner that woul
been subject to the version of the Public Acco~odations Tax last in effect (but for any waiver
of such tax the Town may have been making pursuant to the Annexation and Development
Agreement) and, in addition, any other similar accommodation designated by the Company fiom
time to time as an Accomnodationkodging Room.
ublic Acco~odations Tax
2.2 AccommodationsLodgin~ Fee: The Fee described in Section 9.2.
2.3
2.4
Accornmodations/LodFinz Fee Rate: Is defined in Section 9.5(a).
&t: The Colorado Common Interest Ownership Act, codified at Colo. Rev. Stat. 0 38-33.3-101 et sea, as the same has been and may hereafter be amended from time
to time, and any statute which fiom time to time may replace the same.
2.5 Actual Value: For any Tax Year? the actual value of each Unit (including
the Improvements thereon) from time to time, according to the most recent notice of valuation
(however denominated under applicable law) for such Unit which is issued by Eagle County or
any other pertinent governmental authority in connection with the levying of ad vdorern real‘
property taxes. The Actual ‘Value for any Tax Year‘ shalP mean the final determination of such
actual value, after accounting for any successful protests of valuation, adjustments based on
ongoing construction of Improvements, or other modifications to the initial notice of valuation
delivered pursuant to C.R.S. 5 39-5-121 (or any successor provision of law). If a Unit is not
separately taxed but instead is contained within and part of a larger tax parcel or combination of
tax parcels, the Unit’s Actual Value shall be determined by allocating to the Unit a portion of tlw
actual value of the larger tax parcel or parcels, which allocation shall be determined by the
Company. In determining that allocation, the Company shall give consideration to the relative
land area in the Unit and in the larger tax parcel or parcels, and the relative floor area within any
Improvements on the Unit and on the larger tax parcel or parcels. Allocations so made by the
Company may not be contested and shall be binding upon all affected Owners unless the same
are materially inconsistent with the Company’s ordinary practices from time to time. In the
event that there is ever any cessation of the levying of ad valorem real property taxes under
Colorado law, or the methodology for levying real property taxes is changed so that separate
determinations of the actual value of separate tax parcels are no longer applicable, the Company
may provide for an alternate method of determining the Actual Value of each Unit or other
alternate means for establishing the Common Allocation for each Unit. --
-I_ - ___ ___ -
795(913 ’
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2
2.6 Additional Lands:_ The following real property: (a) all portions of The
Village (at Avon) not subject to this Declaration from time to time (such portions of the
Additional Lands as of the date this Declaration is originally Recorded are desc~ibe~ on
Exhibit B attached hereto); (b) Lots 2,3,4 and 5, McGrady Acres SubdivisiQn, Co
State of Colorado; and (c) any other real property not subject to this Declaration.
2.7 Annexation ahd Develonment Agreement: The Annexation and
Development Agreement concerning The Village (at Avon) by and between the Town and EMD
Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT I1 LLC and PVRT NOTT I11
LLC that is dated as of October 13, 1998, and was Recorded on November 25, 1998, at
Reception No. 677743, as amended from time to the.
2.8 Articles of ~co~oration or Articles: e Articles of Iiico~or~tion of
Company which have been or will be filed with the Secretary of State of the State of Colorado,
as amended from time to time.
2.9 Assessment: An assessment, which may be a Common Assessment, a
Special Assessment or a Specifiq Assessment, that is levied by the Company on one or more
Units pursuant to the terms,of thisTDeclaration.
2. I0
2.1 1
Audit: Is defined in Section 9.6.
Authorized 'Remesentative: A natural person who is appointed by an
Owner, pursuant to Section 7.5, as a proxy, attorney-in-fact or authorized representative to vote
on behalf of such Owner in matters coming before the Company.
2.12
2.13
Board of Directors or Board: The Board of Directors of the company
Bylaws: The Bylaws of the Company, as amended fiom time to time.
2.14 Commercial Comuany: The Village (at Avon) Commercial Public
Improvement Company, a Cobrado nonprofit corporation established pursuant to <the
Commercial Declaration.
2.1 5 Commerciak l[)echration. The Declaration of Covenants for The Village
(at Avon) Commercial Areas that is Recorded on or about the same day as this Declaration and
covers a portion of The Village (at Avon) not covered by this Declaration.
2.16 Commercial Unit: Any developed Unit that is not a Residential Unit. A
multi-family apartment project located on a single lot and containing only rental apartments that
may not be separately conveyed as individual Units constitutes one Commercial Unit.
2. I7 Common Allocation: For each Fiscal Year, a fraction determined for each
Unit, the numerator of which is the Actual Value attributable to such Unit for the current Tax
Year (as determined in the Prior Tax Year), and the denominator of which is the Total Actual
Value for the current Tax Year (again, as determined in the Prior Tax Year). The Common
computed for the various Units shall be converted to a percentage by the - __ __
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.a 3 Fisher Eagle, GO 135 R 375.00 D 8.80 3
Company, which percentages may be rounded by the Company in accordance with its ordinary
practices adopted from time to time, provided the rounding methodology is applied in a
materially uniform and consistent manner for all of the Units.
2.18 Co~on Assessment: An Assessment levied on all Units subject to
assessment to fund the Common Expenses as more particularly described in Section 8.4.
2.19 Common Elements: All property or possessory interests therein (and, in
the case of real property, the Improvements thereon) within the Property owned by the Company
pursuant to this Declaration for the benefit, use or enjoyment of the Owners.
2.20 Co~on Expenses: Except for ose costs and expenses expressly
excluded below, all costs, expenses and ~n~cial l~abilities inc~ed by the Co~pany pursu~t to
this Declaration or the Bylaws, including, without limitation: all costs of operating, managing,
maintaining, replacing or restoring the Comon Elements; taxes on the Common Elements;
general administrative costs incurred by the Company, including any administrative costs
incurred in levying and collecting Assessments; and contributions to the Reserve Fund.
Common Expenses shall not include: (a) costs or expenses to be funded by or payable through
the levying of Specific Assessments; or (b) administrative costs incurred by the Company in
levying and collecting Fees.
2.21 ComDanv: The Village (at Avon) Mixed-Use Public Improvement
-Company, a Colorado nonprofit corporation.
2.22 Consideration: With respect to. any Real Estate Transfer, the actual money
paid andlor value of the property delivered, or contracted to be paid or delivered, in
consideration for the Real -Estate Transfer, including the amount of any lien, Mortgage, contract
indebtedness or other encumbrance, either given to secure the purchase price (or any part
thereof) or remaining unpaid on the subject Unit. at the time of the Real Estate Transfer;
provided, however, that with respect to any Real Estate Transfer in-the form of a transfer of any
possessory interest in a Unit without- the passing of legal title, the Consideration for such Real
Estate Transfer shall not exceed the am0 of consideration the Town would attribute to such
Real Estate Transfer according to the enfotcement -practices and methodologies being used by
the Town pursuant to the Real Property Transfer Tax at the time of such Real Estate Transfer;
additionally provided that if the Town has no enforcement practices or methodologies for
determining the Consideration for a Real Estate Transfer in the ’form of a transfer of any
possessory interest in a Unit without the passing of legal title, then the Company may use any
reasonable means for determining such Consideration. The term “Consideration” does not
include the amount of any outstanding lien or encumbrance in favor of the United States, the
State of Colorado, the Town, any special district or any other municipal or quasi-governmental
entity, corporation or district for taxes, special benefits or improvements.
2.23 Declarant: Traer Creek LLC, a Colorado limited liability company, or any
successor in interest or transferee who takes title to any portion of the Property for the purpose of
development and/or sale and who is designated as the Declarant in a Recorded instrument
executed by: (a) the immediately preceding Declarant in the case of total transfer of the
. ____ _- .---
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4 tra J Fisher Eagle, CO 135 R 375.00 D 0.00
Declarant status; or (b) the current Declarant in the case of a partial transfer of the Declarant
status, it being the intent hereof that the status of Declarant may be jointly held
more than one Person pursuant to any terms and conditions that the Declarant
such jointly held status may impose. Transfers of the
subject to Section 6.2 below.
2.24 Declarant Control Period: The period beginning on the date the Company
is formed and ending on the first to occur of: (i) 60 days after 75% of the maximum number of
Units that are permitted to be established on the Property pursuant to the PUD or any other
applicable zoning or governmental approvals obtained &om time to time have been conveyed to
Owners other than Declarant (subject to the right of the existing Declarant to ~~sf~r the
eclarant status as described in Section 2.23); (ii) six years after the last conveyance of a Unit by
eclarant in the or din^ course of business; (Gi)20 years after the date on which this
Declaration is Recorded; or (iv) with the prior written consent of the Service District, the date on
which Declarant, otherwise in its sole discretion, voluntarily terminates the Declarant Control
Period pursuant to a Recorded statement of termination; provided, however, that in this last
event, Declarmt may require that, for the balance of what would have been the Dedarant
Control Period had Declarant not terminated the same, certain actions of the Company or the
Board; as described in a Recorded instrument executed by Dcclarant, be approved by Declarant
before they become effective. If Declarant agrees to a sde transaction that will result in a
termination of the Declarant Control Period pursuant to clause (i) above, Declarant shall provide
written notice of such sale to the Service District. *During the Declarant Control Period,
Declarmt shall have the right to appoint and remove the Directors and the officers of the
Company to the extent permitted by the Act.
2.25 Declaration: This Declaration, as amended or supplemented from time to
time.
2.26 Delinquency Costs: Is defined in Section 10.2.
2.27 Design Review Board: The Village (at Avon) Design Review Board or
any other supplemental design review board, established .pursuant to the Master Design Review
Covenants.
2.28 Design Review Guidelines: Any applicable design review guidelines
adopted and enforced by the Design Review Board, as such guidelines may be amended from
time to time.
2.29 Developer: Any Person who, in the ordinary course of such Person’s
business, purchases one or more Units for the purpose of constructing Improvements for later
sale or rental or purchases one or more Units for fbrther subdivision into additional Units,
development, leasing and/or resale.
2.30 Development Period: The period of time during which Declarant is
entitled to exercise Development Rights and the other Special Declarant Rights. The
Development Period shall commence upon the Recording of this Declaration and shall terminate
.-
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on the 50th anniversary of such Recording uniess reinstated or extended by agreement between
Declarant and the Company; provided, however, that the exercise of any Speci
Rights pursuant to such agreement shall be subject to such terms as the Company m
such agreement, Declarant may terminate the Development Period at any time by
notarized ins~ent executed by Declarant stating that the Development Period is t
2.31 Develomnent Rights: The rights reserved by Declarant pursuant to
Section 4.1.
2.32 Director: A member of the Board of Directors.
2.33 ~ligible Holder: holder, i~ure~ or
ortgage who provides a written request for notices to the Company, stating the name an
address of such holder, insurer or guarantor and the street address, or, if not available, other
sufficient information, of the Unit to which its Mortgage relates.
2.34 Fee Assignment Agreement: Is defmed in Section 9.7.
2.35 Fee Records: Is defined in Section 9.6.
2.36 &: Collectively, the Accommodations/Lodging Fee, the Real Estate
Transfer Fee and the Retail Sales Fee. Use of the word “Fee” refers to any one of the Fees.
2.37 Final Plat: A final plat subdividing any portion of the Property approved
by the Town pursuant to Section 16.24 of the Town’s Municipal Code or any amended or
replacement version thereof in effect from time to time.
2.38 Financine. District: The Village Metropolitan District, a special district
established pursuant to Colo. Rev. Stat. 3 32-1-201 et seq.
2.39 First Mortgage: A Mortgage that is Recorded and has priority of record
over all other Recorded liens except those liens made superior by statute (s, gdneral
ad valorem tax liens and special assessments and mechanics’ liens).
2.40 Fiscal Year: The fiscal year of the Company set from time to time by
resolution of the Board.
2.41 Immovements: All structures, improvements and appurtenances on or to
real property of every type and kind including, without limitation, buildings, outbuildings,
fixtures, billboards, utilities, patios, tennis courts, swimming pools, garages, doghouses,
mailboxes, aerials, antennas, facilities associated with regular or cable or satellite television,
roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks,
landscaping, grading, drainage facilities, windbreaks, plantings, planted trees and slmbs, poles,
signs, exterior air conditioning units, water softener fixtures or equipment, pumps, wells, tanks,
solar collectors, reservoirs, pipes, lines, meters, towers and other facilities used in connection
with water, sewer, gas, electricity, solar energy, telephone or other utilities or
75x50 13
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telecommunications facilities, as well as any construction activities necessary to construct any
such items.
05/08/2002 01 : 13F
2.42 LOC Issuer: The issuer of any letter of credit or similar ~nst~ment for
urpose of providing ~iq~~ty support andor credit e~~cement in support of any revenue
bonds issued by the Service District or the Financing District that will be repaid, whether
directly, indirectly, in whole or in part, with any of the revenues generated by any of the Fees.
The term “LOC Issuer” includes, without limitation, BNP Paribas, San Francisco Branch, to the
extent it satisfies the preceding definition.
2.43 Leasehold Estate: The interest in a Unit created by a lease or sublease
(including, out l~~tion, any ground lease
lessee or sublessee under such lease or sublease; vided, however, that the renting or letting of
an AccommodationsLodging Room to a customer or guest shall not create a “Leasehold Estate”
as that term is used in this Declaration.
retail space lease) and held and owned by
2.44 Leasehold Owner: The lessee or sublessee, as applicable, under a lease or
sublease creating a Leasehold Estate in a Unit.
2.45 Master Design Review Covenants: The Declaration of Master Design
Review Covenants for The Village (at Avon) that is or will be Recorded on The Village (at
Avon), as such covenants may be amended from time to time.
2.46 Member: A Person who is a member of the Company pursuant to
Section 7.4.
2.47
2.48
Membership: The membership in the Company held by a Member.
MortPacre: An unpaid or outstanding mortgage, deed of trust, deed to
secure debt or any other form of security instrument encumbering the Property or a portion
thereof.
2.49
2.50
Mortgaw: A beneficiary or holder of a Mortgage.
Municipal Code: The Avon Municipal Code, a codification of the general
ordinances of the Town, in effect from time to time.
2.51 Owner: A Person or Persons, including Declarant or any Developer,
owning fee simple title of record to any Unit from time to time. The term “Owner” shall include
a seller under an executory contract for sale and exclude a buyer thereunder and shall include a
landlord under a lease for a Unit and exclude a tenant thereunder.
2.52 Outdoor Pet: Any animal that is, with any regularity, kept or permitted
outside of a fully enclosed stnicture.
2.53 m: The Village (at Avon) Planned Unit Development Guide as
approved by the Town, including all tables, plans, exhibits and maps attached to or incorporated
into such guide, Recorded on November 25, 1998, at Reception No. 677744, as such guide may
be supplemented, amended and/or restated from time to time.
2.54 Permittee: A Person, other than an Owner, who is a tenant or occup
a Unit or a Person who is an agent, employee, custo~er, contractor, licensee, guest or invitee of
an Owner or of such tenant or occupant.
2.55 Person: A natural person, corporation, partnership, limited liability
company, trust, municipality, special district, or other legal entity, whether public or private.
2.56 Prior Tax Year: The Tax Year that ~ediately precedes any given Fiscal
Year. In the event the Tax Year and the Fiscal Year are ever dete~ined on the basis of disp~ate
Year that expires prior to the commencement of the given Fiscal Year.
2-month periods, then the Prior Tax Year for any given Fiscal Year shall be the last
2.57 Property: All of the real property described on Exhibit A attached to this
Declaration, the appurtenances thereto, and all Improvements now in place or hereafter
constructed thereon.
2.58 Public Accommodations Tax: The bbPublic Accommodations Tax” (or any
equivalent tax no matter how described in the Municipal Code) levied by the Town pursuant ta
Chapter: 3.28 of the Municipal Code, as such chapter may be amended, restated or replaced from
time to time.
2.59 Quorum: With respect to a meeting of the Members or the Board, the
percentage or number of the Members or Board that constitutes a quorum pursuant to the
applicable provisions of the Bylaws.
2.60 Real Estate Transfer: Any grant, conveyance, transfer or alienation of a
Unit or the controlling interest in the ownership of a Unit or the grant, conveyance or transfer of
any possessory interest in a Unit without the passing of legal title that is subject to the Real
Property Transfer Tax or would be subject to the Real Property Transfer Tax but for any waiver
of the Real Property Transfer Tax the Town may make pursuant to the Annexation arid
Development Agreement and, in addition, any other transfer of an interest in or with respect to a,
Unit that the Company designates from time to time as a Real Estate Transfer. If the Tom stops
levying the Real Property Transfer Tax, the term “Real Estate Transfer” shall mean any grant,
conveyance, transfer or alienation of a Unit or the controlling interest in the ownership of a Unit
or the grant, conveyance or transfer of any a possessory interest in a Unit without the passing of
legal title that would have been subject to the version of the Real Property Transfer Tax last in
effect (but for any waiver of the Real Property Transfer Tax the Town may have been making
pursuant to the Annexation and Development Agreement) and, in addition, any other transfer of
an interest in or with respect to a Unit that the Company designates from time to time as a Real
Estate Transfer.
2.61 Real Estate Transfer Fee: The Fee described in Section 9.3.
2.62 Real Estate Transfer Fee Rate: Is defined in Section 9.5(b).
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2.63 Real Property Transfer Tax: The “Real Property Transfer Tax” (or any
equivalent tax no matter how described in the ~~cipal Code) levied by the Town pursuant to
“The Town of Avon Real Property Transfer Tax Ordinance” codified as Chapter 3.12 of
.
Records: The official real property records maintained by the clerk and
recorder of Eagle County, Colorado; the phrases “to Record” and “Recording” mean,
respectively, to file or filing for recording in the Records, and the phrases “of Record” and
“Recorded” mean having been recorded in the Records.
unicipal Code, as such ordinance may be amended, restated or replaced from time to time.
2.64
2-55 Reserve Fund: A reserve lished and maintaine
Co~on ~lements ~ompany for the periodic major repair or rep
budgeted and ~pl~ed Co~on Expenses ~c~ed by the Co~pany from time to time.
2.66 Residential Unit: Any developed Unit on which there is located or that is
comprised of one or more rooms intended for residential occupancy by one family or group of
people living independently from any other family or group of people and having not more than
one indoor cooking facility. A residential rental apartment that cannot be separately owned,
conveyed or transferred as a Unit is not a Residential Unit for the purposes of this Declaration,
Retail Sales Fee: The Fee described in Section 9.4.
Retail Sales Fee Rate: Is defined in Section 9.5(c).
Rules: The rules and regdatio- use Qf the Prop&
adopted from time to time by the Company. The Rules shall be binding upon all Owners and
their Permittees.
2.67
2.68
2.69
2.70 Sales Price: With respect to a Taxable Transaction, the “purchase price”
to the purchaser in the Taxable Transaction as such term is defined in Chapter 3.08 of the
Municipal Code, as such chapter is mended, restated or replaced from time to time. If the Town
stops levying the Sales Tax or amends Chapter 5.08 or any replacement thereof in such a way
that the term “purchase price” as it relates to the Sales Tax is no longer defined, then the term
“Sales Price” shall mean the “purchase price” to the purchaser in a Taxable Transaction as such
term was defined in the last version of Chapter 3.08 of the Municipal Code (or any replacement
version thereof) in effect or in which the term “purchase price” was defined.
2.71 Sales Tax: The tax levied by the Town pursuant to Chapter 3.08 of the
Municipal Code (including, without limitation, any Use Tax under such chapter), as such chapter
may be amended, restated or replaced fkom time to time.
2.72 Service District: Traer Creek Metropolitan District, a special district
established pursuant to Colo. Rev. Stat. 8 32-1-201 et seq.
2.73 Special Assessment: An Assessment levied in accordance with
Section 8.5.
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2.74 Special Declarant Ri&ts: The rights of Declarant set forth in Article 6.
2.75 Suecific Assessment: An Assessment levied in accord~ce wit
Section 8.6.
276 Supplemental Association: An association established pursuant to a
Supplemental Declaration in which all of the Owners of Units subject to such Supplemental
Declaration are members by virtue of being the Owners of such Units.
2.77 Supplemental Declaration: Any subsequent declaration of cove~~ts,
conditions and restrictions Recorded against a specified portion of the Property that provides for
the establis~ent of an owners association for the management, mainten~ce
a~inistration of the Units and any co~on elements allocated to such Units comprisi
portion of the Property subject to such declaration. Without limiting the generality of the
foregoing, any “declaration,” as such term is defined in the Act, affecting a portion of the
Property shall be considered a Supplemental Declaration. Neither the Commercial Declaration
nor the Master Design Review Covenants is a Supplemental Declaration.
2.78 m: A taking by the exercise of eminent domain or conveyance in lieu
thereof.
2.79 Tax Year: Any period of 12 months, or similar period established by law,
for which an actual value and assessed valuation are establishedIfor and applicable to real
property (pursuant to Articles 1 and 5 of Title 39 of the Colorado Kevised Statutes, or other
applicable. or successor provisions of Colorado law) for purposes of levying ad valorem real,-
property taxes for that same period. The Tax Year currently begins on January 1 of each year
and ends on December 3 1 of each year.
2.80 Taxable Transaction: Any transaction by which a Person acquires for any
consideration or uses within the Town any tangible personal pxoperty or service that is subject to
the Sales Tax or would be subject to the”Sa1es Tax but for any waiver of such tax the Town may
make pursuant to the Annexation and Development Agreement and, in addition, any other-
transaction for, or the use of, any personal property or service that thC,.Company may designate
from time to time as a Taxable Transaction. If the Town stops levying the Sales Tax generally,
the term “Taxable Trabaction” shall mean any transaction by which a Person acquires for any
consideration or uses within the Town any tangible personal property or service that would have
been subject to the version of the Sales Tax last in effect (but for any waiver of such tax the
Town may have been making pursuant to the Annexation and Development Agreement) and, in
addition, any other transaction for, or the use of, any personal property or service that the
Company may designate from time to time as a Taxable Transaction.
2.81 The Village (at Avon): The property included within the PUD. The
Property is a part of The Village (at Avon).
2.82 Town: The Town of Avon, a municipal corporation of the State of
-.
Colorado. - - --__ - -
10 R 375.00 D 0.00
2.83
time.
2.84
eal Estate Transfer.
Total Actual Value. The total Actual Value of all the Units from time to
Transferee: Person that is the transferee of a Unit wi
2.85 m: A physical portion of the Property, whether developed with
Improvements or undeveloped, that either is: (a) owned as a separate, legally established parcel
or unit of real property; or (b) any separate, legally established parcel or unit of real property that
may be legally transferred or conveyed without hrther subdivision or other similar approval
from the Town. Without limiting the generality of the preceding sentence, the term Unit shall
include any superblocks, plots, tracts, lots, pl~ng areas or similar portions of the Property that
are described by the preceding sentence and that have not been further subdivided into smaller
Units, though such subdivision into smaller Units is likely to occur in the future. Upon the
subdivision of any existing Units into two or more Units, the Unit so subdivided shall no longer
be recognized as one Unit for any purpose hereunder. Notwithstanding the foregoing, the term
“Unit” shall not include any Common Elements owned in fee simple by the Company or any
other “common elements” (as defilled in the Act) established under any Supplemental
Declaration, or any propaty dedicated or otherwise conveyed to any government, special district
or other quasi-govemmentaf entity for a public purpose. Any condominium unit within a legally
established “condominium” (as defined in the Act) shall constitute a separate Unit under this
Declaration.
2.86 Use Tax. Any tax, if any, imposed by the Town upon the purchase price
paid for or the acquisition costs of any personal property brought within the Town for use
(including, without limitation, construction materials brought within the Town for the purpose of
being used to build, construct, reconstruct, alter, expand, modify or improve any building,
dwelling or other structure or improvement to real property in the Town).
2.87 Wildiife MitiPation Plan. The “Wildlife Mitigation Plan” attached as
Exhibit D to the PUD, as such plan is amended from time to time.
ARTICLE 3
CREATION OF THE COMMUNITY
3.1 Creation. Upon the Recording of this Declaration, the Property shall be a
“planned ~~mm~nity” pursuant to the Act, and the name of the planned community shall be The
Village (at Avon) Mixed-Use Areas. Upon the recording of an affidavit pursuant to the
requirements of Section 38-33.3-116.3 of the Act, the planned community established by this
Declaration will be a “large planned community” pursuant to the Act. The Property is located
entirely within the Town.
3.2 Number of Units. Pursuant to the PUD, as of the date this Declaration is
first Recorded, up to 2,400 Residential Units may be established within The Village (at Avon).
In addition, pursuant to the PUD, up to 650,000 square feet of commercial space floor area may --- - ~ . __
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be constructed within The Village (at Avon). In order to allow for the creation of Commercial
Units of not less than 150 square feet of floor area per Commercia~ Unit, Declarant reserves the
right to create a maximum of 4,333 Commercial Units within the Property (as it may be e
to incorporate all of The Village (at Avon)). Thus, pursuant to the PUD as it exists as of the date
this Declaration is first Recorded, a maximum of 6,733 Units may be established in the
Property (as it may be enlarged to incorporate all of The Village (at Avon)), and Declarant
hereby reserves the right to establish such number of Units within the Property. If the Town,
through any land use mechanism (including an amendment to the PUD), increases the maximum
number of Residential Units or commercial space floor area that may be established or
constructed within The Village (at Avon), then the maximum number of Units that may be
established within the Property (as it may be enlarged to incorporate all of The Village (at
Avon)) under this Declaration shall be autom~tically increased accordingly.
*
3.3 Allocations.
(a) Allocation of Votes. In all matters submitted to a vote of the
Members, each Unit is allocated a percentage of the votes in the Company equal to the
Common Allocation for such Unit in effect fiom time to time; provided, however, that no
vote shall be exercised for any Unit owned by the Company.
(b) Allocation of Common Expenses. Subject to Section 8.9, each
Unit is allocated, and the Owner of the Unit is liable for, a percentage of the Common
Expenses equal to such Unit’s Common Allocation in effect from time to time. All other
costs and expenses of the Company are allocated among the Units as otherwise provided
in this Declaration.
ARTICLE 4
DEVELOPWNT OF THE PROPERTY
4.1 Declarant’s Development Rights. Declarant hereby reserves the following
Development Rights for the duration of the Development Period:
(a) Withdrawal of ProDertv. Declarant reserves and has the unilateral
right to amend this Declaration to withdraw all or any portion of the Property from the
coverage of this Declaration. If the portion of the Property withdrawn from the coverage
of this Declaration is made subject to the Commercial Declaration upon such withdrawal,
then the amendment to this Declaration effecting such withdrawal shall not require the
consent of any Person other than the owner of the portion of the Property to be
withdrawn, if other than Declarant. If the portion of the Property withdrawn from the
coverage of this Declaration is not made subject to the Commercial Declaration upon
such withdrawal, then the amendment to this Declaration effecting such withdrawal shall
require the consent of the Service District and the owner of the portion of the Property to
be withdrawn, if other than Declarant. If the portion of the Property to be withdrawn
consists of all or a portion of the Common Elements, the Company shall consent to such
withdrawal upon the request of Declarant.
05/08/2002 01:13F 12 .a J Fisher Eagle, CO 135 R 375.00 D 0.00
(b) Inclusion of Property.
(i) Generally. Declarant reserves and has the rig
e portion of the Ad~tional Lands to be included as part of the Property is
owned by Declarant, no approval of such inclusion by any other Person shall be
required. If the portion of the Additional Lands to be included as part of the
Property is owned by a Person other than Declarant, the approval of the inclusion
by such owner shall be required. No contiguity between the parcel to be included
and the existing boundary of the Property shall be required.
eclarat~on to include as part of the Property any of the Additio
(ii) To Permit Residenti~ Use. Pursuant to the Commercial
eclaration, no “residential use” as such term is defined in the Act is permitted
within the property subject to the Commercial Declaration. If the owner of any
property subject to the Comercia1 Declaration desires to use the property for a
residential use, such owner may apply under the Commercial Declaration to cause
the property to be withdrawn fkom the coverage of the Commercial Declaration
(though the ability of the owner to have the property so withdrawn is limited by
the terms of the Commercial. Declaration). In conjunction with such a
withdrawal, if permitted, of property Erom the coverage of the Commercial
Declaration, the owner thereof may petition Declsant to include the property as
part of the Property, thereby making it subject to this Declaration. Without-
limiting in any way the geneirality of Section 4.1(b)(i), if the owner of any
property subject- to the- Commercial Declaration petitions Declarant to include
such property as part of the Property undez this Declaration, Declarant has the
right, in its absolute discretion and without any obligation, to amend this
Declaration to effect such inclusion, and such amendment‘ shall not require the
consent of the Board or any Owner.
(c) Subdivision md Redatting. Declarant reserves the unilateral right
to subdivide into additional Units, chqngq the bcmndary line of or resubdivide any Unit or
other portion of the Property owned bgr: Declarant. No such subdivision or resubdivision
of a Unit shall require an amendment to this Declaration.
(d) Additional Units and Co*on Elements. Declarant reserves the
unilateral right to create additional Units and Common Elements and convert any Unit or
portion thereof into Common Elements, provided that the conversion of any Unit not
owned by Declarant into Common Elements shall require the written consent of the
Owner of the Unit.
4.2 Deed Restrictions. In conveying any Unit, if agreed to by the purchaser of
such Unit, Declarant may impose by real covenants contained in the conveying instrument
limitations on the amount of development that may occur on the Unit, including, without
limitation, limitations on (a) the number of additiona1 Units into which the conveyed Unit may
be subdivided; (b) the number of “Dwelling Units” (as such term is defined in the PUD) that may
. - . .
05/08/2002 01 ; 13E
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13
be developed on the Unit; and (c) the amount of “Commercial Space” (as such term is defined in
the PUD) that may be developed on the Unit.
4.3 Supdemental Declarations. No , Supplemen~l
Recorded against any Unit(s) without the written approval (which approval must be included as
part of the Supplemental Declaration) of the Service District and, during the Development
Period, Declarant.
4.4 Other Covenants. Without limiting the effect of Section4.3, during the
Development Period, no Person other than Declarant shall Record any declaration of covenants,
conditions and restrictions, declaration of condo mi^^ or similar instrument affecting any
po~ion of the Property, including, ~thout limitation, any supple men^ Declaration, ~i~out
prior review and written consent of Declarant and the Service District. Any attempted Recording
without such consent shall result in such instrument being void and of no force and effect unless
subsequently approved by a written consent signed by Declarant and the Service District and
Recorded.
4.5 Governmental Interests. For so long as Declarant owns any of the
Property, Declarant may designate sites within the Property for fire, police and utility facilities,
public schools and parks, and other public or quasi-public facilities. Such a site may include
Common Elements, in which case the Company shall take whatever action is required with-
respect to such site to permit such use, including CoQveyanct: of the site, if so directed by
Declarant. Such a site may include other property not owned by Declaant provided the Owner
of such property consents. Subject to Declarant’s consent- during the Development Period, but
otherwise within the discretion of the- Board, the Company may dedicate portions of the
Common Elements to the Town or to any other local, state or federal governmental or quasi-
governmental entity subject to such approval as may be required by Section 15.2.
4.6 Declarant’s Obligation to Construct Common Elements . There is no
Common Element that Declarant is legally obligated to construct within the Property.
4.7 Deckant’s Rinht to Construct Common Elements. Without limiting
Section4.6 and without creating any obligation on the part of Declarant to construct any
Common Elements or Improvements thereon, Declasant shall have the right to construct any
Common Elements or Improvements thereon, including, without limitation, the types of
Common Elements listed in Section 4.8.
4.8 Common Elements that May Be Constructed by the Company. Set forth
below is a general description of the type of any Common Element that may be constructed by,
maintained by or operated by the Company (however, neither the Company nor Declarant shall
have any obligation to construct, maintain or operate any such Common Element):
Parking areas, streets, roads, walkways, sidewalks, trails, drives, malls, stairs,
health care facilities, security systems, fire protection facilities, fire water systems, lights,
signage, transportation systems including but not limited to gondola, tram, bus, automobile or
rail systems and any facilities necessary or appropriate for the proper operation and maintenance
7950 13
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14 a 3 Fisher Eagle, CO 135 R 375.00 D 0.00
of such systems, access road control gates, daycare facilities and such equipment as may be
appropriate for use in connection therewith, swimming pools, ice rinks, skating ponds,
clubhouses, foot and bicycle trails and related facilities, saunas and facilities, bob sledding and
snow shoeing facilities, outdoor ente~~~ent and other recreational ~enities an
equipment as may be appropriate for use in connection therewith, trash collection andor disposal
facilities, animal control facilities, kennel facilities, satellite dishes, cable television equipment
and related facilities, telephone systems, warehouses, central laundry facilities, a central
communications center, mailbox structures, bus appurtenances, ponds, water tanks, drainage
facilities, monuments, recreational areas, storage facilities for supplies and equipment, earth
walls, retaining walls and other similar supports, ducts, shafts and flues, conduits, utility and
service lines and systems including but not limited to water, sanitary sewer, gas, storm drainage,
telephone, electricity, cable and/or satellite facilities, management offices, models, buildings,
enviro~en~ monitoring equipment or facilities, all types of structures, facilities and
improvements that the Service District and/or the Financing District may be empowered by law
from time to time to construct, and such other buildings, facilities, structures and improvements
9s the Company may from time to time deem necessary or advisable.
4.9 Common Elements Inventow. The Company shall keep in its principal
office and make reasonably available to all Owners, Owners’ agents, and prospective purchasers
a complete legal description of all Common Elements.
4.10 Subdivision by Owners.
(a) Reauirements. Any Unit may be subdivided or resubdivided only
if the Owner of the affected Unit first secures the Company’s (and the*Declarant’s to the
extent provided below) prior written approval of the subdivision or resubdivision. In
connection with requesting such approval, the Owner shall be required to make all of the
following submissions to the Company:
(i) Evidence that the proposed .subdivision or resubdivision
will comply with the PUD and all building codes, fire codes, zoning codes, master
plans, subdivision regulations and other applicable ,dee& res@ictions and
covenants, and rules, regulations and ordinances of the Town, and that the
proposed subdivision or resubdivision does not violate the terms of any Mortgage
encumbering the Unit;
(ii) A proposed interim allocation and division of the Actual
Value of the affected Unit between or among the portions thereof which will be
established as or included within one or more separate Units pursuant to the
subdivision or resubdivision (which allocation as approved or modified by the
Board shall apply until the new Unit(s) to be created idare established as separate
tax parcels and the Actual Values therefor are determined accordingly);
(iii) A deposit against attorneys’ fees and costs that the
Company and Declarant will incur in reviewing the proposed resubdivision, in an
amount estimated by the Boasd; -____ __..___
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05ma12002 01.13~
15 I J Fisher Eagle, GO 135 R 375.00 D 0.00
(iv) Evidence that the subdivision or resubdivision will co~ply
with any applicable provisions of the Design Review Guidelines, which evidence
may be in the form of a letter or certificate of compli~ce from the
Review Board; and
(v) Such other inforpation as may be reasonably requested by
the Board.
(b) Auproval of Subdivision. The Board, on behalf of the Company,
shall approve any application for a subdivision or resubdivision of a Unit properly made
under this Section4.10 if the Board reasonably determines that (i) the re
submissions have been made under Section 4.1 O(a), and (ii) the proposed subdivision or
resubdivision in fact will comply with the PUD and all building codes, fire codes, zoning
codes, master plans, subdivision regulations and other applicable deed restrictions and
covenants, and rules, regulations and ordinances of the Town and will not violate the
terms of any Mortgage encumbering the Unit, During the Declarant Development
Period, any proposed subdivision or resubdivision of a Unit shall also require the written
consent of Declarant, and any such approval by Declaant shall be binding upon the
Company and be deemed to constitute Board approval as well. Declarant shall be bound
to the same approval standards as are applicable to the Company under the foregoing
provisions.
(c) Costs. All costs and attorneys’ fees incurred by the Company and
Declarant in connection with reviewing a proposed subdivision or resubdivision shall be
the joint and several obligatian of the Owner(s) requesting approval of such subdivision
or resubdivision, and shall be reimbursed prior or as a condition to any approval thereof.
The Company shall collect therDeclarant’s costs and fees on behalf of the Declarant and
remit the same to Declarant. If the Owner(s) requesting such subdivision or
resubdivision approval fail ta reimburse the Company for such expenses, the expenses
may be assessed against any and all Unit(s) of such Owner(s) as a Specific Assessment.
No Liability of Comuany or Declaant. (d) Any review by the
Company or Declarant of anyr proposed subdivision or resubdivision shall be undertaken
solely for their own benefit, and neither the Company nor the Declarant shall have any
obligation or liability to any Owner requesting approval of such subdivision or
resubdivision, or any other Owner, for ensuring the technical adequacy of any such
subdivision or resubdivision, or its compliance with applicable laws: In no case shall the
Company or Declarant have any liability to any other Owner or Person for approving a
subdivision or resubdivision under the foregoing provisions.
(e) No Limitation of Declarant Rights. The provisions of this
Section 4.10 shall not apply or be construed to limit Declarant’s rights under Section 4.1,
4.2, 6.1 or 6.2, or any other Declarant rights that might otherwise be affected.
(0 No Limit on Design Review Board. The provisions of this
Section 4.10 shall not be construed as limiting the authority or discretion of the Design
__
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Bra J Fisher Eagle, CO 135 R 375.00 D 0.00 16
Review Board pursuant to the Master Design Review Covenants and the Design Review
Guidelines.
EASEMENTS
5.1 Easement for Use, Access and Enioyment in and to the Common
Elements. Declarant hereby establishes and grants to each Owner a nonexclusive easement of
use, access and enjoyment in and to the Common Elements. Any Owner may extend its right of
use and enjoyment to its Permittees subject to reasonable regulation by the Company. Unless
otherwise provided in a writing furnished to the Company by the Owner, an Owner who leases
its Unit shall be deemed to have assigned all such rights to the lessee or lessees of such Unit.
Without limiting the generality of the foregoing, Declarant hereby grants to each Owner a
nonexclusive easement over and across all walkways and other pedestrian access-ways and all
streets designated as Common Elements for the purpose of gaining pedestrian or vehicular access
between and among the public streets and sidewalks adjoining or within the Property, other
Common Elements and any Units. The easement established by this Section 5.1 shall -be
appurtenant to and pass with the title to the Units and shall be subject to:
(a) This Declaration and any other applicable covenants, including any
applicable Supplemental Declaration;
(b) Any restrictions or limitations contained in any deed conveying the
Common Elements to the Company;
(c) The righe of the Company to adopt RuIes regulating the use and
enjoyment of the Common Elemwts;
(d) The rightsof the Company to impose reasonable membership
requirements and charge reasonable admission or other use fees for -the use of any
recreational facility or other ameqity of any type situated within or on the Common
Elements;
(e) The right of thei‘(sompany to suspend the right of any Owner or
such Owner’s Permittees to use any recreational facility or other amenity of any type
situated within or on the Common Elements (i) for any period during which any charge
against such Owner’s Unit remains delinquent, and (ii) for a period not to exceed 30 days
for a single violation (or for a longer period in the case of any continuing violatioil) of
this Declaration, the Bylaws or the Rules, after providing such notice and hearing as may
be required by the Bylaws;
(f) The right of the Company to permit use of any recreational facility
or other amenity of any type situated within or on the Common Elements by members of
the general public upon payment of use fees established by the Company, which fees the
Company shall include as Company revenue in calculating the amount of Common
Assessrnents necessary to satisfjr the Common Expenses of the Company;
75
05/08/2@02 01 : 13F 17
ara J Fisher Eagle, GO 135 R 375.00 D 0.0Q
(g) The right of the Company to dedicate or transfer all or any part of
the Common Elements, subject to Section 15.2 and such other approval require~ents as
may be set forth in this Declaration or the Act; and
(h) The right of the Company to mortgage, pledge or hypo~ecate any
or all of the Common EIements as security for money borrowed or debts incurred, subject
to the limitations of the Act and the approval requirements set forth in Section 15.2.
5.2 Easements for Encroachment of Common Elements. In the event that, as a
result of the construction, reconstruction, shifting, settlement, restoration, rehabilitation,
alteration or improvement of any Improvement located on the Common Elements or any po~ion
thereof, any portion of any Common Elements now or hereafter is unintentionally and i out
the actual knowledge of the Company made to encroach upon any Unit, Declarant hereby
establishes and grants an easement for the continued existence and maintenance of such
encroachment which will continue for so long as such encroachment exists and which will
burden the Unit encroached upon and benefit the encroaching Common Element. In no event,
however, will an easement for any such encroachment be deemed established or granted if such
encroachment is materially detrimental to or interferes with thq reasonable use and enjoyment of
the Unit(s), burdened by such encroachment or if such. encroachment occurred with the actual
knowledge of the Company.
5.3 Easements Benefiting Declarmt. Declarant reserves such; easements over
ss the Property, which easements will exist for the duration of the Development Period,
as may be reasonably necessary for Declarant’s exercise of any Special Declarant Right,
perfiimance of any of Declarant’s obligations hereunder, and the showing of the Property or any
portion thereof to prospective purchasers or lessees,
5.4 Easements for Utilities, Declarant reserves for itself and its successors,
assigns and designees, for the duration of the Development Period, and grants to the Company
and its successors, assigns and designees, perpqtual non-exclusive easements upon, across, over
and under all of the Property and any structure thereupon (but not through any structures) to the
extent reasonably necessary for the purposes of monito~ng, replacing; repairing, maintaining and
operating cable television systems, master televisicart antenna systems, and other devices for
sending or receiving data and/or other electronic. signals, and all utilities, including, without
limitation, water, sewer, stonnwater drainage, telephone, data transmission, gas and electricity,
and for installing any of the foregoing on property which Declarant or the Company owns or
within easements designated for such purposes on any Final Plat. The designees of Declarant
and the Company for the purposes of such easement rights may include, without limitation, any
governmental or quasi-governmental entity or utility company. The easement provided for in
this Section 5.4 shall in no way affect, void, extinguish or modifl any other Recorded easement
on the Property. Any damage to a Unit resulting from the exercise of the easement rights
described in this Section 5.4 shall promptly be repaired by, and at the expense of, the Person
exercising the easement. The exercise of such easements shall not extend to permitting entry
into the structures on any Unit, nor shall it unreasonably interfere with the use of any Unit.
- - -- - ____
9958 13
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J Fisher Eagle, CO 135 R 375.00 D 0.00
5.5 Right of Entry. Declarant reserves for itself, for the duration of the
Development Period, and for the Company an easement for the right, but not the obligatio
enter upon any Unit: (i) for emergency, security and safety reasons; and (ii) to inspect any Unit
for the purpose of ensuringfcompliance wi$ this Declaration, the Bylaws and the Rules.
right may be exercised by member of the Board I and the Company’s officers, agents,
employees and managers r emergency, security and safety purposes, all police, fire and
ambulance personnel and other similar emergency personnel in the performance of their duties.
This right of entry shall include the right of the Company to enter upon any Unit to cure any
condition which may increase the possibility of a fire or other hazard in the event an Owner fails
or refuses to cure such condition within a reasonable time after requested by the Company, but
shaI1 not authorize entry into the residence located on or constituting any Residential ~ni~
without pe~issi~n of the occupant, except by emergency personnel acting in their of~~ial
capacities.
@
5.6 Easements for Drainage and Flood Control. Declarant reserves for itself
and its successors, assigns and designees, for the duration of the Development Period, the
nonexclusive right and easement, but not the obligation, to enter upon any ponds, streams,
drainage ditches and wetlands located within the’Common Elements to: (a) provide water for the
irrigation of any of the Common Elements (b) alter drainage and water flaw; (c) construct,
maintain and repair any bulkhead, wall, dam or other structure retaining water; and (d) remove
trash and other debris therefrom. Such easement shall include an access easement over and
across the Property, to the extent reasonably necessary to exercise rights established under this
Section 5.6, and in order to maintain and landscape the slopes and banks pertaining to such
ponds, streams and wetlands. To the extent the exercise of such easement is anticipated to
materially diminisb the value of or unreasonably interfere with the use of any Unit, the consent
of the Owner of such Unit shall be required before such exercise. Nothing herein shall be
construed to make Declarant or any other Person liable for damage resulting from flooding.
5.7 Additional Easements.
.(a) Declarant’s Right to Grant Easements. Declarant reserves the non-
exclusive right and power to grant, during the Development Period, such additional
specific easements as may be necessary, in the sole discretion of Declarant, in connection
with the orderly development of any of the Property.
(b) Companfs Riaht to Grant Easements. Notwithstanding anything
to the contrary in Section 15.2 or other Sections of this Declaration, the Company, acting
through the Board and without the approval of the Members of the Company, may grant
easements over the Common Elements €or installation and maintenance of utilities,
drainagFf5EiIities aEi roads and Ek-other purposes not inconsislent With the- intended use
of the Common Elements.
. - - - - -
5.8 Easements Run with Land. Except for the easements described in
Section 5.3, all easements established and granted pursuant to this Article 5 are appurtenant to
and run with the Property and will be perpetually in full force and effect so long as this
Declaration is in force and will inure to the benefit of and be binding upon Declarant, the ..*
3 J Fisher Eagle, CO 135 R 375.00 D 0.00
Company, Owners, Permittees and any other Persons having any interest in the Property or any
part thereof. The Units and the Common Elements will be conveyed and encumbere
all easements set forth in this Article 5, whether or not specifically mentioned in suc
conveyance or enc~~ance.
.- ARTICLE 6
SPECIAL DECLARANT RIGHTS
6.1 Special Declarant Riphts. In addition to and without limiting any other
right reserved by or for the benefit of Declarant in this Declaration or by operation of the Act,
~e~I~ant reserves the following Special Declarant Rights, which may be exercised by Declar
during the Development Period, anywhere on the Property, with no l~i~tions on the extent to or
the order in which such rights are exercised:
(a) To complete any Improvements described fiom time to time on
any Final Plat, the PUD or in the Annexation and Development Agreement;
(b)
(c)
To exercise any of the Development Rights;
To maintain sales offices, management offices and advertising
signs on the Property, as set forth in Section 6.3;
(d) To use the easement rights established pursuant to Section 5.3 for
the purpose of making improvements within the Property or within real estate which may
be added to the Property;
(e) To merge or consolidate the common interest community
established by this Declaration with a common interest community of the same form of
ownership;
(f) Subject to Section 7.7, to appoint or remove any offiCer of the
Company or any member of the Board of Directors during the Declarant Control Period;
and
(g) To make the common interest community established by this
Declaration subject to a “master association” as defined in the Act.
6.2 Transfer of Special Declarant Rights. Declarant may transfer any or all of
the Development Rights and other rights and obligations of Declarant set forth in this
Declaration or the Bylaws, in whole or in part, to other Persons. If such a transfer is to a Person
that controls, is controlled by, or is under common control with Declarant (a “Declarant
Affiliate”), then the transfer shall not require the consent of any Person; provided that Declarant
shall provide written notice of such a transfer to the Service District along with an explanation of
how the transferee qualifies as a Declarant Affiliate; and additionally provided that if Declarant
makes a partial transfer of any of its rights or obligations under this Declaration to a Declarant
Affiliate, Declarant shall provide a copy of the instrument of transfer to the Service District. If _____
13
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Sara J Fisher Eagle, GO 135 R 375.00 D 0.00 20
such a transfer is to a Person that is not a Declarant Affiliate, then the transfer shall require the
written consent of the Service District, which consent shall not be unreasonably
Declarant reasonably demonstrates to the Service District that such transfer will no
adversely affect the ability or authority of the Company to collect any of the Fees
same to the Service District in accordance with the terms and conditions of this ~ecl~ati~n and
the Fee Assignment Agreement. No such transfer shall be effective unless it is in a Recorded
written instrument executed by Declarant (and the Service District to the extent required above)
that specifically describes the Development Right(s) or other right(s) or obfigation(s) so
transferred.
e
6.3 Models and Offices. During the Development Period, ~ecl~~t
evelopers authorized by Declarant may maintain and carry on upon any Unit owned by
eclarant or any portion of the Common Elements such facilities and activities as, in the
reasonable opinion of Declarant, may be required, convenient or incidental to the development,
construction or sale of Units or any portion of the Property, including? without limitation,
business offices, signs, model units and sales offices (subject to any necessary approvals or
limitations pursuant to the Master Desigu Review Covenants). Such facilities may be of any
number, size and location which Declarant determines will adequately accommodate Declarant’s
or a Developer’s development, sale and marketing of the Units and the Property.
ARTICLE 7
THECOMPANY
7.1 Function of Companv. Generally. The Company shall be responsible for:
management, maintenance, repair, replacement, operation and control of the Common Elements
and collection of the Fees an& Assessments. The Company shall be the primary entity
responsible for enforcement of this Declaration and the Rules. The purposes and powers of the
Company and the rights and obligations of Members may and shall be amplified by provisions of
the Articles and the Bylaws. Neither the, Articles, the Bylaws nor the Rules shall for any reason
be amended or otherwise changed or interpreted-so as to be inconsistent with this Declaration. In
case of conflict between the Declar and the Articles, the Bylaws or the Rules, this
Declaration shall govern.
7.2 Property-Wide .Matters. The Company shall operate with respect to
Property-wide matters only and shall not otherwise operate as the exclusive Owners’ association
with respect to any Unit. If it ,becomes necessary or desirable for the Owners of any particular
group of Units to address administrative or maintenance issues unique to their Units, then the
portion of the Property comprising such Units shall be made subject to the jurisdiction of a
Supplemental Association established pursuant to a Supplemental Declaration that is made and
Recorded pursuant to Section4.3. The Company may function as a “master association” (as
defined in the Act) with respect to any Supplemental Association established pursuant to a
Supplemental Declaration.
. .. .___ - .__ -
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7.3 Additional Permissive Functions of the Company. The Company may, but
shall have no obligation to, perform any one or more of the following functions: *
(a) Operation Function: The Company may do all
w~~n the power of the Financing District or the Service District that are not being
performed by such districts and that may be reasonably necessary or desirable to keep
and maintain the Property as a safe, attractive and desirable community.
(b) Public Health and Safetv Function: The Company may provide
public health and safety services within the Property, including but not limited to,
providing health care services and facilities, security personnel, security services and
system, police and p~~ed~c facilities and services, fire protection facilities, and a fire
watch system that may include periodic fue prevention inspections and equipment
certifications.
(c) Parkin? Function: The Company may own, coridtruct, purchase,
lease, care for, operate, manage, maintain, rep& or replace parking areas-and structures
to accommodate Owners and Permittees, including but not limited to, signs, landscaping,
and other similar facilities appurtenant to said parking areas and the removal of snow
from and the cleaning, paving and stripiag of any such parking areas and/or structures.
(d) Transt5ortationh Funcfiom The Company may provide for the
operation, maintenance and repair o$ a transportation system between the parking areas
and the commercial, residential and recreational areas of the Property, within the Property
generally, and between the Property and,. surrounding areas- Such transportation system
may include, but is not limited to, a bus, auto, cable, gondola or rail system and any other
facilities deemed necessary or appropriate for the proper operation and maintenance of
such system.
(e) Recreation Function:. The Company may provide a seasonal
and/or year-round recreational. progra of suitable variety, including, but not limited to,
informing visitors of available recreatio~ opportwlities and stimulating +eir participation
therein; conducting, operating, managing and maintaining programs for children,
including, but not limited to, daycare facilities an4 such miscellaneous equipment as may
be appropriate for use in connection therewith, conducting: caring for, operating,
managing, maintaining, repairing and replacing within the Property swimming pools, ice
rinks, sauna or steam baths, tennis courts, game courts, golf courses, driving ranges,
equestrian facilities, game areas and other recreational amenities, and such miscellaneous
equipment as may be appropriate for use in connection therewith; and removing snow
from and cleaning such facilities as necessary to permit their Eull use and enjoyment.
(f) Central Reservations Function: The Company may make available
a voluntary central reservation service for the rental of AccommodationsLodging
Rooms, which service may include the administration of a room pool and the
performance of related travel arrangement services. Participating Owners and lessees of
Owners shall comply with all reasonable rules and regulations of the Company in - -- - -
79958 13
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22 .@0 D 0.08
upon presentation of satisfactory evidence of the sale, transfer, succession, disposition,
foreciosure or other transfer of a Unit to such Owner. Membership may not be transferred,
pledged or alienated in any way, except to a new Owner upon conveyance of a Unit.
attempted prohibited transfer of a ~embers~p will be void and will not be recogniz~
Company.
Page: 32 of 75
05/08/2002 01:13F
7.5 Authorized Representative. Any Owner who is either: (i) two or more
Persons; or (ii) one Person that is not a natural person Q., an estate or a trust, corporation,
partnership, limited liability company or other entity), shall appoint, and any Owner who is one
natural person may appoint, an Authorized Representative. Any Owner so required to appoint an
Authorized Representative shall do so immediately upon becoming an Owner. Any Owner w~o
is required or elects to appoint an Authorized Representative shall provide written notice to the
Company of the appointment of such Authorized Representative or any subsequent replacement
therefor within 10 days after appointment. Such notice must (a) be signed by all Persons
constituting the Owner; (b) be dated; and (c) contain a statement that the natural person named
therein will remain the Authorized Representative of such Owner until a subsequent notice is
given to the Company naming a successor. Such notice will be deemed a proxy given by all
Persons constituting such Owner to the Authorized Representative named therein for all purposes
under this Declaration, the Bylskws, the Act and the Colorado Nonprofit Corporation Act. The
appointment of an Authorized Representative will be binding upon all Persons comprising the
appointing Owner and the vote of the Authorized Representative will be conclusive as to the
Company, unless and until the Company receives a notice appointing a replacement Authorized
Representative (or, in the caFe of an Authorized Representative appointed by an Owner who is
one natural person, a notice terminating the appointment of such Authorized Representative).
Unless the notice of appointment expressly states otherwise, the Authorized Representative shall
be authorized to designate in a writing delivered to the Company pursuant to Section 17.7 of this
Declaration a temporary, substitute Authorized Representative. Upon receipt of any notice
appointing an Authorized Representative, the Company may request such additional evidence of
authority as it may reasonably deem necessary to verify the due appointment of the named
Authorized Representative. If an Owner who is required or elects to appoint an Authorized
Representative owns more than one Unit, suck Owner may elect to appoint: (1) the same natural.
person to service as Authorized Represefitative for each Unit owned by such Owner; (2) a
different natural person to serve as Authorized Representative for each such Unit; or (3) the same
natural person to serve as Authorized ,Representative for two or more of such Units and one or
more different natural persons to serve as Authorized Representatives for the remaining
Unit(s) owned by such Owner.
7.6 Maioritv ADproval. Except as otherwise provided in this Declaration, the
Bylaws or the Act, the affirmative vote of the Owners present and voting, either in person or by
proxy, at a meeting of the Company called and held in accordance with the Bylaws will be
sufficient to approve any matter submitted to a vote of the Company if such Owners hold a
majority (k, more than 50%) of the percentage of votes in the Company represented at such
meeting.
executive committee or an officer, executive manager or Director of the Company. The
quali~cations and number of Directors, the term of office of Directors, the manner in which
Directors shall be elected and the manner in which Directors shall be replaced upon re~oval or
resignation shdl be as set forth in the Bylaws. The Bylaws shall con~in provisions
identical in all substantive respects to the following provisions:
(a) Appointment of Directors during Declarant Control Period. Upon
commencement of the Declarant Control Period, there shall be three Directors, all of
whom shall be appointed by Declarant. From the date that is 60 days after the date on
whch 25% of the maximum number of Units that may be created pursuant to Section 3.2
have been conveyed to Owners other than Declarant, until the end of the De~l~~t
Control Period, the Board will consist of three Directors, two of whom will be appointed
by Declarant and one of whom will be elected by Owners other than Declarant. No
Director appointed by Declarant shall be required to be an Owner or the Authorized
Representative of an Owner. '
(b) Election of Directors after Declarant Control Period. Except as
otherwise provided in Section 220(5) of the Act, from and after the end of the Declarant
Control Period, the Board will consist of three Directors (or such other number, but never
fewer than three, as may from time to time be set forth in the Bylaws), elected by the
Owners, at least a majority of which Directors must be Owners other than Declarant or
Authorized Representatives of Owners other than Declarant. Directors elected under this
Section 7.7(b) shall take office upon termination of the Declarant Control Period.
7.8 Removal of Directors. Notwithstanding any provision of this Declaration
or the Bylaws to the contrary, the Owners, by the affirmative vote of Owners holding more than
50% of the votes in the Company present, either in person or by proxy, and entitled to vote at
any meeting of the Company at which a Quorum is present, may remove, with or without cause,
any Director other than a Director appointed by Declarant. Any Director appointed by Declarant
may be removed, with or without cause, only by Declarant.
7.9 Delivery of Property to Comrrany. Within 60 days after the Owners other
than Declarant elect a majority of the Directors, Declarant shall deliver to the Company all
property of the Company, as required by Section 303(9) of the Act.
7.10 Powers. In the performance of its hnctions and duties, the Company shall
have the power to:
(a) adopt and amend the Bylaws, and make and enforce the Rules,
consistent with the rights, duties, terms and conditions established by this Declaration and
the Bylaws;
(b) subject to Section S.l(d), adopt and amend budgets for revenues,
expenditures and reserves and assess and collect any Assessments and any other amounts
due from Owners or others to the Company;
05/08/2002 0l:lJF
Ira J Fisher Eagle, GO 135 R 375.00 D 0.00 25
(c) hire and terminate managing agents and other employees, agents
and independent contractors;
any of the e~orcement powers set forth in Section 7.
(e) institute, defend or intervene in litigation or administrative
proceedings in its own name on behalf of itself or two or more Owners on matters
affecting the Property or the Company;
(0 make contracts and incur ~iabilities in accordance wi
ratified ~udget;
(g) borrow funds to cover Company expenditures and pledge
Company assets as security therefor, provided that Common Elements may be subjected
to a security interest only pursuant to Section 15.2;
(h) $provide for the use, maintenance, repair, replacement and
modification of the Common Elements in accordance with the properly ratified budget or
otherwise in accordance with this DpAaration;
(i) cause additional improvements to be made as a part of the Common Elements in accordance ’with the properly ratifiecl budget, or otherwise in
accordance with this Declaration;
(i) acquire, hold, encumber and convey in its own name any right, title
or interest to real or personal property (including, without limitation, one or more Units),
provided that Common Elements may be conveyed or encumbered only pursuant to
Section 15.2;
(k) grant :easements, leases, licenses, and concessions through or over
the Common Elements;
(1) rental or operation of the Conm
and/or members of the general public;
impose’ and receive any payments, fees or charges for the use,
r any services provided to Owners
(m) impose charges for late payment of Assessments and Fees recover
reasonable attorneys’ fees and other legal costs for collection of Assessments and Fees
and other actions to enforce the powers of the Company, regardless of whether or not suit
was initiated, and, after providing notice and an opportunity to be heard, levy reasonable
fines for violations of this Declaration, the Bylaws or the Rules;
(n) impose reasonable charges and fees for services including, but not
limited to, the preparation, copying and recordation of amendments to this Declaration or
statements of unpaid Assessments pursuant to Section 10.9; - -
795013 8
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a J Fisher Easle, GO 135 R 375.00 D 0.00 26
(c) hire and terminate managing agents and other employees, agents
and independent contractors;
(d) exercise any of the e~orcement powers set fo
(e) institute, defend or intervene in litigation or administrative
proceedings in its own name on behalf of itself or two or more Owners on matters
affecting the Property or the Company;
(0 make co~~acts and incur liabilities in accordance with a pro~erly
(g) borrow funds to cover Company expenditures and pledge
Company assets as security therefor, provided that Common Elements may be subjected
to a security interest only pursuant to Section 15.2;
(h) provide for the use, maintenance; repair, replacement and
modification of the Common Elements in accordance with the properly ratified budget or
otherwise in accordance with this Declaration;
(i) cause additional improvements to be made as a part of the Common Elements in accordance with the properly ratified budget, or otherwise in
accordance with this Declaration;
(i) acquire, hold, encumber and convey in its own name any right, title
or' interest to real or personal property (including, witbut'limitation, one or more Units),
provided that Common. Elements may be conveyed or encumbered only pursuant to
Section 15.2;
(k) grant easements, leases, licenses, and concessions through or over
the Common Elements;
(1) impose and receive any payments, fees or charges for the use,
rental or operation of the Common Elements and for any services provided to Owners
and/or members of the general pub&
(m) impose charges for late payment of Assessments and Fees recover
reasonable attorneys' fees and other legal costs for collection of Assessments and Fees
and other actions to enforce the powers of the Company, regardless of whether or not suit
was initiated, and, after providing notice and an opportunity to be heard, levy reasonable
fines for violations of this Declaration, the Bylaws or the Rules;
(n) impose reasonable charges and fees for services including, but not
limited to, the preparation, copying and recordation of amendments to this Declaration or
statements of unpaid Assessments pursuant to Section 10.9;
__ __. __ - __ - -
26 a J Fisher Eagle, GO 135 R 375.00 D 0.069
(0) provide for the indemnification of its officers and Directors as
provided in the Bylaws or the Articles and ~aint~n directors’ and officers’ lia~ility
insurance;
(p) assign its right to future income, ~cluding the right to receive
Assessments or Fees;
(q) enter into any agreements with the Commercial Company and/or
the Service District or the Financing District for the coordinated performance of any
pennitted hctions the Company desires to have performed Uniformly thin
Village (at Avon) or any portion thereoc
(r) perform any duties or functions properly delegated to the Co~p~y
by any Supplemental Association or the Design Review Board;
(s) exercise any other powers expressly conferred by this Declaration,
the Bylaws or the Act or reasonably implied from or necessary to effectuate such powers;
except as prohibited by the Act, exercise all other powers that may (t) be exercised in the State uf Colorado by a nonprofit corporation; and
(u) exercise any other. powers necessary and proper for the governance
and operation of the Company.
This Declaration may not and is not intended to impose any limitations on the powers of the
Company to deal with the Declarant that are more restrictive than the limitations imposed on the
power of the Company to deai with any other Person.
7.11 Enforcement.
9
(a) Sanctions and Self-Help. The Company may impose sanctions for.
violations of this Declaratioa, the Bylaws or the Rules in accordance with procedures set
forth in the Bylaws, including reasonable monetary fines an4 suspension of the right to
use any Common Elements. Im addition, in accordance with the Bylaws, the Company
may exercise self-help (s, enter upon; a Unit and make any- corrective measure
wcesswy to mxe. a~iolation). to cure violations and SYSP~~~-~Y se~jces it provides to the Unit -of any Owner who is more than- thirty days delinquent in paying any
Assessment, Fee or other charge due to the Company following delivery of a notice of
such violations to such Owner. All remedies set forth in this Declaration and the Bylaws
shall be cumulative of each other and of any remedies available at law or in equity. In
any action to enforce the provisions of this Declaration or the Rules, if the Company
prevails it shall be entitled to recover all costs, including, without limitation, attorneys’
fees and court costs, reasonably incurred in such action.
(b) No Waiver. In no event shall the Company’s failure to enforce any
covenant, requirement, restriction or rule provided for in this Declaration, the Bylaws or __ __ __ ____ - - -- --
~~~~ 13
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05/08/2002 01:13F
Sara J Fisher Eagle, CO 5.00 D Q.@Q 27
the Rules constitute a waiver of the Company’s right to later enforce such provision or
any other covenant, requirement, restriction or rule.
7.12 Board Authority. Except as otherwise specifically provided by law or i
eciaration, the Articles or the Bylaws, all rights and powers of the Company may be
exercised by the Board without a vote of the Members. In the performance of their duties, the
Directors will act according to their ordinary business judgment, except to the extent the Act
requires a greater standard of care. Unless otherwise provided in this Declaration or the Act, the
affirmative vote of a majority (&, more than 50%) of the Directors will be necessary and
sufficient to approve any matter before the Board. The Board shall select the officers of
Company, which officers may also serve as Directors, except that during the Decl~~t Go
eriod, Declarant may appoint and may remove the officers of the Company.
7.13 Annexation and Development Ameement. In addition to all other duties
imposed on the Company by law and this Declaration, the Company shall perform all of its
obligations under the Annexation and Development Agreement.
ARTICLE 8
FINANCIAL MATTERS, BUDGET AND ASSESSMENTS
8-1 General Financial Matters; Budget. The Board, on behalf of the
Company, shall discharge tbe following obligations with respect to financial matters:
(a) . Books and. Records. The Board shall cause to be maintained hll
and complete books and records of the Company’s business and operations, including, ’
without limitation, current copies of this Declaration and all amendments hereto, the
Articles, the Bylaws, the Rules, the approved budget for the current Fiscal Year, financial
statements, books and records reflecting all assets, liabilities, capital, income and
expenses of the Company, and supporting materials, such as bank statements and
invoices, for at least the shorter of (i) the prior seven Fiscal Years or (ii> all of the’Fiscal
Years in which the Campany has been in existence. All of such books aid. rec;ords will
be made availatjle for inspection by any Owner, holder of a First Mortgage, insurer or
guarantor of a First Mortgage or their respective authorized representatives during normal
business hours upon reasonable prior written request.
(b) Returns. The Board will cause to be prepared and filed before
delinquency any and all tax, corporate or similar returns or reports that the Company is
required by law to prepare and file.
(c) Preparation of Budget. The Board will cause to be prepared and
will adopt annually, not less than 45 days prior to the beginning of each Fiscal Year of
the Company, a proposed budget for the Company. The proposed budget will include all
of the following items, in addition to any other items the Board deems appropriate:
(i) the estimated Common Expenses of the Company for such
Fiscal Year, in reasonable detail as to the various categories of Common Expense;
.
05/08/2002 01 : 13F 38
I J Fisher Eagle, CO 135 R 375.00 D 0.00
(ii) the estimated revenues of the Company that will be
available to defray the ~o~on Expenses, in reasonable detail as to the various
categories of revenues;
(iii) the amount of Common Assessments that will be necessary
to meet the estimated Common Expenses of the Company for such Fiscal Year;
(iv) the current cash balance in the Reserve Fund, which fund
shall be established and maintained by the Board if the Board reasonably
determines there is a need for the Reserve Fund;
(v) an estimate of the amount require e spent d~ing SUC
e Reserve Fund for the major repair or replacement of the
Common Elements; and
(vi) a statement of the amount required to be added to the
Reserve Fund during such Fiscal Year to cover anticipated withdrawals and
adequately address contingencies and anticipated needs in future Fiscal Years.
(d) Ra%ification of Budget. Within 90 days after adoption by the
Board of any proposed budgetrfor the Company, the Board will mail by ordinary first-
class mail or otherwise deliver to all Owners a summary of the proposed budget and will
set a date for a meeting of the Owners to cdnsider the proposed budget. Such meeting
will occur within a reasonable time &er mailing or other delivery of the summary. The
Board will give natice to thq Owners of the meeting as allowed for in the Bylaws. The
budget proposed by the Board does not require the approval from the Owners and it will
be deemed approved by the Owners. in the absence of a veto at the noticed meeting by
more than 75% of the total number of Owners, whether or not a Quorum is present. In
the event that the proposed budget is vetoed, the budget last proposed by the Board and
not vetoed by the Owners will continue in effect until such time as a subsequent budget
proposed by the Board- is not vetoed by the Owners as described above. For the first
Fiscal Year of the Company, the Board may adopt the Declarant’s estimated budget for
the Company and assess Common Assessments pursuant to Section 8.4 according to such
budget, provided that the Board, submits such budget to the Owners for ratification in
accordance with the foregoing provisions within 90 days after adopting the same.
(e) Annual, Financial Statements. The Board will cause to be prepared
annually a report with respect to the financial condition of the Company. Such report
shall consist of a balance sheet as of the end of the preceding Fiscal Year, an operating
(income) statement for such Fiscal Year and a statement of changes in the Company’s
financial position for such Fiscal Year. A copy of such annual report will be distributed
to each Owner within 120 days after the close of each Fiscal Year.
(f) Reserve Fund. If the Company establishes a Reserve Fund, the
Board shall cause the Reserve Fund to be maintained in a bank account that is separate
from the bank account(s) used for the Company’s ordinary receipts and disbursements.
135 R 375.00 D 0.00 29 Sara J Fisher Eagle, CO
8.2 Matters Pertaining to Actual Value.
(a) Submissions. For and during e Tax Year, each Owner s
sub~it to the Co~p~y, within 30 days after receiving
no later than the end of such Tax Year), the following:
of the same but in
(i) A copy of the initial notice of valuation for the applicable
Unit received from the Eagle County Assessor;
(ii) Any subsequent notices received from the Eagle County
Assessor of any applicable adjustments to the val~tion of the app~icab~e ~~t (or
tax parcel or parcels inclusive of the Unit), whether based on successful protests
of valuation, cons~ction of Improvements in process, or any other applicable
circumstance.
(b) Allocation Information. If the particular Unit is part of or
contained within a larger tax parcel or parcels, the Owner shall be obligated to submit
evidence reasonably satisfactory to the Company sEawing the relative land areas within
the Unit and the pertinent tax pEucel(s), as we'll: as relative floor areas within any
Improvements located on the Unit and-t.€ie pertinen6 tax parcel(s). 'Ihs submission must
be completed as of or prior to the Owhers' submission of the initial notice of valuation
for the pertinent Tax Year pursuant to Section 8.2(a)(i) above. However, if the pertinent
Improvements include new @provemaits that are in the process of construction during
the applicable Tax Year, then this subnrissian shalt be subsequently augmented by an
update of the relative floor areas; of the Iq.mvements as of the date that the Eagle
County Assessor, pursuant to applicable laws, is required to re-assess those
Improvements irrprocessA (which date, under C.R.S. 39-5-132, is currently July 1)-
(c) Submissions Upon Inclusion; Whenever any new Unit is includ&d
within the common interest combunity established by tbis Declaration, the Owner of the
newly includkd. Unit, contemporaneously with the inclwion, shall gubmit to the Compqy
(i) all submissions requjreb'under Sections 8.2Ca) dnc&2(b) above for the Tax Year
to the Tax Year in which the .in&lusion occurs, arid (i -the Tax Year in wfic
inclusion occurs, all submissions fop' that Tax Year th@, under the express provisions -of
Sections 8.2(a) and 8.2(b), would have already become due if such Unit had been
included before such Tax Year.
(d) Failure of Submissions.
(i) If any of the requisite submissions pertaining to Actual
Values, as set forth in the foregoing provisions of this Section 8.2, are not timely
made, then the Company can procure substitute information by any means
available to it, and may also assess the defaulting Owner such. fees as the
Company may adopt and levy, pursuant to Rules established from time to time, to
compensate the Company for all costs and expenses incurred by the Company in
procuring substitute information. The actual costs and expenses incurred by the
. __ -- --
05/08/2002 01:13F
5.00 D 0.00 30
Company may be extremely difficult, if not impossible, to determine with
exactitude, and consequently the establishment of reasonable fees will constitute a
fair alternative to recovery of the actual sums.
(ii) If any Owner fails to submit the requisite i~o~ation ~der
Section 8.2(b) above, the Company may proceed to allocate the entire valuations
of the pertinent tax parcel(s) to the applicable Unit, or alternatively may allocate
any portion of that entire valuation to the Unit on any basis that the Company at
its election rnay deem equitable.
(e) Rede~~tio~ of Tax Units. Whenever a new Unit is include^ into
this ~eclaration or otherwise established, and such Unit is part of or contained w
larger tax parcel or parcels, the Owner of that Unit shall be obligated to establish such
Unit as a new separate tax parcel for the Tax-Year next following the inclusion or
establishment of the Unit, unless such inclusion or establishment occurs within the last:,
three months of the then cment Tax Year, in which. case the .Owner shall only- be
obligated to exercise best efforts toward establishment of the Unit as a separate tax parcel
in the next following Tax Year. In any event the Owner shgll be obligated to complete
the redesignation of the Unit as' a separate taxsparcel for the. second Tax Year following-
the Tax Year in which tfie inclusion or -establi+ment of the Unit occurs. If the Owner
fails to have the Unit redefrned as a separate tax parcel in accordance- with the foregoing
provisions, the Company maytproceed to allocate the applicable valuations to the Unit in
accar.dance with Section 8.2(d)(ii) above.
(f) Annual Recalculation of Cummon .Allocations. For each Fiscal
Year, the Company shall recalculate the,Cbmmon Allocation therefor in accordance with
the fomula established under Section 2.17, andathe Company shall endeavor to complete
the recalculation and apply the same to (and give Ownersinotiqe thereof in conjunction%
with)- the fsst installment of Common Expenses, that wil be payable for ,and during that:
Fiscal Yeas. on d&s not complete sucP
recatplation in conjunction withithe first annual installmerrt o ornrnon Expenses, thenu
such installments for the.new FiscaliYear shalkcommence and continue on the basis of
the last- Comon Allocation -in effect (& the one in effeGt at the end of the preceding
Fiscal Year) until the recalculatiomof the Common Allocation is completed (at which-%
time the current installments of Common Expenses shall then be adjusted as set forth in
the foregoing provisions). In any case where the recalculation is so completed after the
commencement of the Common Expense installments for the new Fiscal Year, the
difference between @the actual installments already assessed for the new Fiscal Year,
and (ii) the amounts that would have been levied therefor if the recalculation had been
completed at the beginning of the new Tax Year, may either be reflected as increases or
decreases, as the case rnay be, in one or more of the remaining installments for that same
Fiscal Year, or alternatively may be accounted for in the year-end reconciliation of
Common Expenses for that same Fiscal Year made by the Company pursuant to
Section 8.4(c), all as determined by the Board from time to time.
However, if the Company. for any
05/08/2002 01 : 13F
rra J Fisher Eagle, CO 135 R 375.00 D 0.00 33
(g) Mid-Year Temporarv Adiustments. If any new Unit is included
into the Property or any existing Unit is subdivided into addition^ Units in the course of
any given Fiscal Year, then the Company shall assign temporary Cornmon Allocations to
the new Unit(s) so included or established. In assigning such temp or^ Co~on
Allocations, the Company shall use the information concerning the Actual Value for the
Units provided by the Owners of the affected Units pursuant to Section 8.2(b) or 8.2(c),
as applicable, and the formula prescribed in Section 2.17 for determining the Common
Allocation of a Unit. Until the Common Allocations for all of the Units are recalculated
pursuant to SectionS.Z(f), the Common Allocations temporarily assigned to the new
Units pursuant to the preceding provisions of this Section 8.2(g) shall be deemed the
Common Allocations for such Units for all purposes under this Declaration, an
Owners of the new Units shall pay their share of Common Expenses and exercise voting
rights in the Company according to such Common Allocations during such interim
period. Whenl the Company assigns a temporary Common Allocation to any new Unit
pursuant to the preceding provisions, the Company shall also recalculate the Common
Allocations for the other Units within the Property pursuant to the formula prescribed in
Section 2.17 solely for the purpose of determining the vQting rights in the Company for
all Units until new Common- Allocations are determined for all Units at the
commencement of the next Fiscal Year pursuant td Sqctipa 8.2(f). UntiE the Common
Allocations for alk Units are so &tennine
the Units that existecEEprior to the e
continue. to pay-their share of the Common Expenses: on. the basis of the Common
Allocations 'determined for each of them at the commencement of the. existing, Fiscal
Year. Due to establishment of a new Unit and* the resulting "assignment of a
temporary Co Allocation for such Unit pursuant to this Section 8'.2ig), it is
acknowledged that the Owners. of existing Units will overpay their Common Allocations
of Common Expenses in therFisca1 Year of such' establiihment. To address such
overpayment, the. Campany shall perform a reconciSiationfpursuant to Section- 8.4(c). If
any Unit is withdikwn fiom the Property, the Company shall have the- option of adjusting
Yew pursuant to
ng Units pursuant
e the Company will: have
e commencement of the next Fisd
nt of the newjy establishes
on Assessments payable for: the remainder: of the Fisc
(b) or recalculating the Common,Allocations for the rem
scribed in Section 2.17, as nece
o pay the Cmont Expenses for
8=3 . There shall be three types of Assessments:
on 8.4; (b) Special Assessments as described in c Assessments as described in Section 8.6. Bach Owner, by aGcepting
agree to pay these Assessments pursuant to-the
(a) Common Asses
Section 8.5; and (c)
a deed for any Uni
terms and conditions of this Declaration.
8.4 Common Assessments. Subject to Section 8.9, each Unit is subject to
Common Assessments for the Unit's share of the Common Expenses as allocated pursuant to
Section 3.3(b). Common Assessments will be caIculated, paid, adjusted and reconciled in
accordance with the following provisions: --______-___ - - _--
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.OO D 0.00
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(a) Budget and Payment. The Company shall set the Common
Assessments for each Fiscal Year at a level which is reasonably expected to produce total
income for the Company €or such Fiscal Year equal to the total Common Expenses set
forth in the budget adopted by the Board and rati~ed by the Owners p
Section 8.1(d). In determining the total funds to be generated through the
Common Assessments, the Board shalI take into account the pre-construction discount
established pursuant to Section 8.9 and, in its discretion, may consider other sources of
funds available to the Company, including any surplus from prior years.
(b) Adiustment. If during any Fiscal Year it becomes apparent that the
estimated ~o~on Expenses and/or revenues of the Company as set forth in the ~~dget
upon which the Co~o~ Assessments were based were in error for any reason, includin~
no~pa~ent by any Owner of its Common Assessments or the withdrawal of any Unit
f?om the Property, to the extent that the Common Assessments the Board determines will
be received for the bdmce of such Fiscal Year will .beinadequate, or more than required,
to meet the Company’s .obligations intended to be covered by such Common
Assessments, the Board niay mend the *budget and incEease or decrease the Common
Assessments for the balance of such Fiscal Year upon not less than 30 days’ prior. notice
to all Owners.
individually or in
Notwithstanding, the foregoing however, if any such
with all previous amendments within any
Assessments for a Fiscal Year by more th
by the budget previously ratified by the Owners
pursuant to Section 81(d), vhen prior to increasing the Common Assessments*bascd ctn
such amended budget the43oa.d must submit the same for ratification by the Owners
using the procedures set fortb in Section 8.1 (d).
(c) Reconci€iiation: If the Board, in its discretioh, determin
or more Owners may havebbeen materially under-bi1led:or over-billed for
allocated shares of the Commort Expenses for any Fiscal Year, the Board:shall cziuse the
actual Common Expenses incurred, by the Company during sucfi Fiscal Year to: be
reconciled agailrst the Common Assessments received by -the Company. from the0mers.
To the extent that
Common Expense
may in its discret
overpayment again
ensuing Fiscal Year. T6 the extent any Owner has underpaid its Common Allocatim of
such actual Common Expenses, the Board may in its discretion either demand in writing
that such Owner pay the amount of such underpayment of Common Assessments to, the
Company within a specified period of time, as determined by the Board, after the Board
notifies such Owner of such underpayment (which period of time may not be less than
30 days), or the Board may include such underpayment in such Owner’s obligations. for
Common Assessments for the next ensuing Fiscal Year. Nothing in this Section 8.4(c)
shall be construed as limiting any of the enforcement rights of the Company with respect
to delinquent Assessments under Article 10.
has paid more than, its Col~rmon Allocation of s
ugh the Owner timely paid all billed amaunts),
er refund the overpayment to the Ownea or cr
Owner’$ obligation for Coinmon Assessments fo
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ara J Fisher Eagle, CO
33
(d) Failure to Assess. Failure of the Company to fix Common
Assessments amounts or rates for a given Fiscal Year or to deliver or mail to each Owner
a Common Assessments notice shall not be deemed a waiver, modi~cation or release of
any Owner’s obligation to pay its allocated share of Co~o~ Assess~ents. I
event, each Owner shall continue to pay Common Assessments on the same basis as
during the last year for which Common Assessments amounts were set by the Company,
if any, until new Common Assessments are levied, at which time the Company may
retroactively assess any shortfalls in collections.
8.5 Special Assessments. In addition to other authorized Assessments, the
Company may levy Special Assessments from time to time to cover ~~udgeted expenses or
expenses in excess of those budgete~; including, without li~itation, the costs of
construction, restoratio~ expected repair or replacement of any Common Elements,
Improvements thereon or any other capital improvements that benefit all of the Owners and are
not covered by the Reserve Fund. Except as otherwise provided in Section 8.9, each Unit is
subject to Special Assessments for the Unit’s Common Allocation. of the total Special
Assessments levied by the Company. ‘Excepts as otherwise specifically provided in this
Declaration, no Special Assessment- shall require the approval- of the Members, but if such
sessment is levied duringthe Development Period, the consent of Declarant shall. be
shall be payable in such manner and at such times as determine&
le in installments extending beyond the Fiscal Year in which the
The. Board shall have the right. to require that Special
in advance. oEthe provision of the subject services or materials. Without
limiting the generality of the foregoing, the Board-may levy Special Assessments to cover certain
costs of restoration or replacement of Common Elements in the event of damage, destruction or
Taking of Common Elements, as set forth in Sections 13.2(a)(v) and 13.3. In determining the
funds to be raised pursuant to any Special‘ Assessment, the Board shall take into accopnt the pre-
.construction discount established pursuant tcr Section 8.9.
roved.
8.6 SuecifiC. Assessments. The Company shall have the power to levy
Specific Assessments againsg one or more pa$cular,Unit(s) as follows:
(a) to cover the costs, inchding overhead and administrative costs, of
providing benefits, items ox services to such Unit or- occupants thereof upon request of
the Owner of such Unit pursuant to a menu of special services which the Board may from’
time to time authorize to be offered to Owners and occupqnts (which may include,
without limitation, Landscape maintenance, janitorial service, snow removal, and pest
control), which Specific Assessments may be levied in advance of the provision of the
requested benefit, item or service as a deposit against charges to be incurred by the
Owner;
(b) to cover costs incuaed in bringing the Unit into compliance with
the terms of this Declaration, the Bylaws or the Rules, or costs incurred as a consequence
of the conduct of the Owner or such Owner’s Permittees; provided, however, the Board
shall give the Owner of such Unit notice and an opportunity to be heard as provided in
the Bylaws before levying any Specific Assessment under tbs Section 8.6(b);
-- ___ -- -_I - -
3
Page. 43 of 75 17 85/08/2002 81.13F 34
ff 375 00 0 0.00
(c) to cover necessary costs or expenses incurred by the Company that
benefit one or more Units but fewer than all Units, such as, for example, the costs of
repairing a utility line that serves only one or two Units but no others, and,
Owners of all the benefited Units othe~ise agree, each benefited Unit shall be assesse
percentage of the Special Assessments so incurred that is derived from a fraction,
numerator of which is such Unit’s Allocation Number and the denominator of which is
the sum of the Allocation Numbers of all the Units so benefited, and the Board shall have
the authority to assess Specific Assessments for such costs without the approval of the
benefited Owners;
(d)
e
to cover any costs or expenses that are recovera~~e as Speci~c
Assessments pursuant to other provisions of this Declaration.
8.7 S-oecific Assessment far Wildlife Mitigation. The Company shall
establish a “Wildlife Trust Quid’’ p descrjibedin the Wildlife Mitigation Plan to fund mitigation
efforts for elk winter range habitat that will be lost or affected throu@ development of the
Property. Such Wildlife Trust Fund-will be established no lat,er than when the Town issues a
building permit for the first dwelling to be constructed on the portion of the Property north of
Interstate 70. Declarant shall loan the Company the original principal necessary to establish the:
Wildlife Trust Fund pursuant to the requirements of the WildlifKMitigation Plan. The Company
shall-repay Declarant for the amount of such principal outray, plus interest at the rate of 8% per , &y wsessing a Specific Assessment against certain Units as mare particularly described
Section 8.7 and remitting such Specific Assessment to Declaraiit. Each time a building
permit is issued by the Town for a dwelling constructed on the portion of the Property north of
Interstate 70, the Company shall assess a Specific*Assessment against the Owner of the Unit on
which the dwelling, is constructed. -The amount of each- such Specific Assessment shall be
$500.00 for the, calendar year. in which: the Specific Assessmefit is first assessed. and thereqfter
shalf be increased for each following calendar year. at an e of 2.7%. Upon receipt, the
Company shall remit each such. Speqific Assessment to il Declarant has been fully.
repaid fox the principal amounf‘loanedito $fie Company as pescribe‘cE above, plus interest at the
rate 05.8% per annum. After DeclaranLhas been fully repaid pecific Assessments collected
by the Cmnpanypursuant to this Section 8.7 shall be treated erd assets of the Company to
rbcmsed for such purposes as tfie Boadmay determine.
8.8 Commencement of Assessments. The obligation to pay Common
Assessments and Special Assessments shall commence as to each Unit on the first day of the
month following the later of (a) the month in which the Unit is made subject to this Declaration
-or (b)the month in which the Company first establishes and ratifies a budget and levies
Assessments pursuant to this Article 8. The obligation to pay Specific Assessments shall
commence as to any Unit when the Company levies the Specific Assessments against the Unit
pursuant to this Declaration. The first annual Common Assessments and Special Assessments
levied on each Unit shall be prorated according to the number of months remaining in the Fiscal
Year at the time Assessments commence on the Unit.
8.9 Pre-Construction Discount for Common and Special Assessments. With
regard to an Owner’s obligation to pay Common Assessments and Special Assessments assessed
05/08/2802 01 : 13F 35
J Fisher Easle, CO 135 R 375.00 D 8.00
against such Owner’s Vnit, the Owner shall be entitled to a discount on such Assessments as
follows: until the first day of the first month following issuance by the Town of a building
permit for construction of a building on or comprising the Unit, the~~omp~y shall assess such
Unit for 50% of the Co~on Assessments and Special Assessments se be
due, and thereafter, such Unit shall be assessed for the full amount of the ~0~0~ Assessments
and Special Assessments due.
a
ARTICLE 9
FEES
9.1 Creation of Fees. There shall be three types of Fees:
(a) Acco~odationslLodging Fees as described in Section 9.2; (b) Real Estate Transfer Fees as
described in Section 9.3; and (c) Retail Sales Fees as described in Section 9.4. Each Owner and
Leasehold Owner, as applicable, is deemed to covenant and agree to pay these Fees pursuant to
the terns and..conditions of this Declaration, and, without limiting any other provisioxx of this
Declaration, such obligation shall be a red covenant that runs with title to each Unit for the
benefit “of the Property.
9.2 AccommodationdLodging Fee. The Acc dations/Lodging Fee
t Unit or, if the Unit is subject me: provided, however, that if
in &Unit solely for
the purpose of circumventing the terms of this Declaration (&., ins e Owner of the Unit?.,
from liability for the AccommodationslLodging Fee and protecting fGe tit,le to the Unit from lien
foreclosure pursuant to Section 10.6(b)), then the Company shall have the, right. to disregard such
Estate fox dl purposes under this Declaration: The Company. shalkontinuously. and
levy upon and collect, from, each Owner, or Leasehold Owner, as applicable, an.
Accomrnadati.ons/Lodging Fee on the renting, letting *or .prdvision of ’ each.
Accomodations/Lod&i;ing Room owned? or- operated by such Owner OF, Lezqehold. Owner. The
le te the Company shall be ~e ‘product. obtained by,
iorx for each renting,
skodging Roam by-@) odationskodging
Fee Rate establishedi pursuant to Sectioa9.5(a) and in effect at the -the of such transaction..
Each Owner and Leasehold Owner subject to the AccomrnodationsJLodging. Fee as. described
above shall pay, ar cause to be paid, the AccommodationsLodging Fees owed by such Owner OF
Leasehold Owner on a monthly basis on or before the 20th day of the month following the month
in which the AccomodationsLodging Fees accrued. Each monthly payment of the
AccommodationslLodging Fees made by or on behalf of each Owner and Leasehold Owner
subject to such Fees shall be accompanied by a report on a form prescribed by the Company and
such other statements, records and other supporting information as the Company may reasonably
require.
described below shali be payable by either the Owner of th
ehddEstate, the LqMehold Owner of such Leaseh any reasosnab& determinestthat a Leasehold E
d or agreed*to be paid in
9.3 Real Estate Transfer Fee. Upon the occurrence of any Real Estate
Transfer, the Transferee in such Real Estate Transfer shall pay to the Company a Real Estate
Transfer Fee equal to the product obtained by multiplying the Consideration paid by the __
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05/08/2002 01 : 13F
Sara J Fisher Eagle CO 135 R 375,@0 D 0.00 16
Transferee for the subject Vnit by the Real Estate Transfer Fee Rate determined in accordance
with Section 9.5(b) and in effect at the time of such transaction. Each Real Estate Transfer
shall be due and payable by the Transferee to the Company at the time of the Real Estate
Transfer giving rise to such Real Estate Transfer Fee. With such payment, the Transferee shall
make a written report to the Company, on a fonnprescribed by the Company, full
the Real Estate Transfer and. setting forth the true, complete and actual Consideration for the
Real Estate Transfer, the names of the parties thereto, the legal description of the subject Unit,
and such other information as the Company may reasonably require. If there are multiple
Transferees with respect to any Real Estate Transfer, each such Transferee shall be jointly and
severally liable for the payment of the Real Estate Transfer Fee that accrues as a result of suc
Real Estate Transfer. If the transferee in any transfer of any interest in a Unit believes suc
transfer does not qualify as a Real Estate Transfer and is therefore exempt from the req~rements
of this Section 9.3, such transferee may apply to the Company for a certificate of exemption from
the Real Estate Transfer Fee OR a form prescribed by the Company. The burden of proving any
transfer of any interest in a Unit is not a Real<Estate Transfer and is therefore exempt from the:
requirements of this Section 9:3 is on the transferee in such transaction.
9.4 Retail. SalesFee, The Retail Sales Fee described below shall be payable’
by either the Owner of the subjject5Unit or, if the Unit is subject to a Leasehold Estate, the
Leasehold Owner of such Leq&klbEstate; provided, however, that:if the Company reasonably ~
determines that a Leasehukk Estate3 has been granted in a Unit. solely for the
circumventing the terns o-f..thris tion Le., insulating the Qwner of the Unit from liability
for the Retail Sales Fee act p &- fee titi‘e to the Unit -fTrom lien foreclosure. pursuant ta:
Section 10.6(b)), then the Company shall. have the right to disregard such Lewehoicf Estate for.
all purposes under this Decksation. The-Company shall continuously. and regularly levy and;
collect a Retail Sales Fee, with regard to each Taxable Transaction made, con
conducted, transacted or occurring in, on, about or from any Unit, inclBdingf without
any Taxable Transaction for which the ,order. is placed by a purchaser tot the Unit from sr. place
other that the Unit by any telcphonic or. electronic means. With regar& ta .my Taxable:
Transaction that is a Taxable Transaqtio~~ due to any; Use Tax leviehby the To
the Unit or the Leaseho
property will be used- sh
Sales Fee payable to th
Price with respect to e
pursuant to Section 9.5
and Leasehold Owner subject to the Retail Sales Fee shall pay, or‘ cause to be paid, all of the
Retail Sales Fees owed by such, Owner or Leasehold Owner on a monthly basis on or before the
20th day of the month follo\wing the month in which the Taxable Transactions giving rise to such
Retail Sales Fees occurred; provided, however, that if the accounting methods regularly used by
the Owner or Leasehold Owner subject to the Retail Sales Fee (or the’Person remitting the Retail
Sales Fees on behalf of the Owner or Leasehold Owner) or other conditions are such that
payment of the Retail Sales Fees on a monthly basis will impose unnecessary hardship on such
Owner or Leasehold Owner, as determined by the Company in its absolute discretion, the
Company may (but shall have no obligation to) agree to accept such payments at such intervals
as better suit the convenience of such Owner or Leasehold Owner without jeopardizing the
Coniyany’s collection of the Retail Sales Fees, provided that any such alternative payment
of the Leasehold,.Estate, as applicable; on
saction by (b)the Re
the time of such Tax
~ - -. - - - - ._ ._
05/08/2002 01:13Fi7
135 R 375.00 D G1.00
Ill Sara J Fisher Eagle, CO
interval requires the prior approval of the Service District in its complete discretion. The
Company or Service District may at any time withdraw its agreement to allow any such
alternative payment interval for the Retail Sales Fees. In addition, no~ithstanding the mon
payment provision above, with regard to any Taxable Tr~action that is a Taxable Tr~sacti~
due to any Use Tax levied by the Town on construction materials, the Company may require or
permit the Owner or Leasehold Owner responsible for paying the Retail Sales Fee on such
Taxable Transaction to make a deposit against the estimated amount of the Retail Sales Fee that
will ultimately be owed at the time a building pennit is issued by the Town for the subject
construction project. Any such estimated payment shall be made and reconciled against the
Retail Sales Fee ultimately owed according to the policies and procedures of the Company in
place from time to time. Each payment of the Retail Sales Fees made by or on ~eh~f
Owner or Leasehold Owner shall be accompanied by a report on a form prescribed by the
Company and such other statements, records and other supporting information as the Company
may reasonably require.
9.5 Establishment of the Fee Rates.
(a) Accommadations/Lodginn Fee‘ Rate. The percentage rate of the
Accommodations/Lodging Fee (the “Accommodations/Lodging Fee Rate”) shall- be
established by the Campmy fiom time to time. Without the prior written approval of the
Service District and, during the Development Period, Declarant, the
AccommodationsLodghg Fee Rate shall not be less than the greater of (a) 4% or (b) the
percentage tax rate imposed by the Town pursuant to the Public Accommodations Tax.
(b) Real Estate Tmnsfer Fee Rate. The percentage rate of the Real
Estate Transfer Fee (the “Real Estate- Transfer Fee Rate”) shall be established by the
Company from time to time. Without the prior written approval. of the Service Distiict
and, during the Developme‘nt Period; Declarant, the Real Estate Transfe‘er, Fee Rate shall
not be less than the greater of (a) 2% or (b) the percentage tax rate imposed by the: Town
pursuant to the Real Property Transfer Tax; provided, however, that the Real Estate
Transfer Fee Rate shall not be greater +an 3%.
The percentage rate of the Retail Sales Fee
lished by the Company from time to time.
Without the prior written approval of the Service District and, during the Development
Period, Declarant, the Retail Sales Fee Rate shall not be less than the greater of: (a) 4% or
(b) the percentage tax rate imposed by the Town pursuant to the Sales Tax; provided,
however, that the Retail Sales Fee Rate shall not be greater than 6%.
9.6 Fee Records and Audits. Each Owner or Leasehold Owner subject to any
Fee shall maintain or cause to be maintaine6 for three years such true, full and accurate invoices,
receipts, records, statements, accountings, and books as are sufficient to determine the amount of
Fees owed by such Owner or Leasehold Owner over such three-year period (collectively, “Fee
Records”). Any director or officer of the Company or the Service District or any other agent of
the Company or the Service District, upon prior written notice, shall have the right to examine
such Fee Records during the normal business hours of the Owner or Leasehold Owner or the
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-a J Fisher Eagle, CO 135 R 375.00 D 0.50
Person maintaining the Fee Records on behalf of the Owner or Leasehold Owner, and if the Fee
Records are not maintained in Eagle County, Colorado, the Owner or Leasehold Owner shall
cause them to be delivered to Eagle County, Colorado, without undue delay. Without limiting
the foregoing, the Company shall also be entitled at any time and &om time to time to have all or
any of the Fee Records maintained by or on behalf of an Owner or Leasehold Owner specially
audited or examined by a certified public accountant designated by the Company (an “Audit”).
The Company may require such accountant to report his or her opinion, based upon generally
accepted accounting principles, consistently applied, as to any matters relating to the obligation
of the Owner or Leasehold Owner to- pay Fees, including (a) whether the Owner or Leasehold
Owner has maintained or caused to be maintained the required Fee Records, (b) whether the
Owner or Leasehold Owner has accurately reported or caused to be reported any Fees owe
pursuant to Section 9.2, Section 9.3 andor Section 9.4, as applicable, and (c) the Fees paya
for any audited period. If such accountant shall report to the Company, based upon the Audit
such period, the amount of any overpayment or underpayment of Fees by or on behalf of the
Owner or Leasehold Owner, the Company shall deliver a copy of such accountant’s Audit report
to the Owner or Leasehold Owner. If the Audit report concludes an overpayment of Fees has
been made by or on behalf of the Owner or Leasehold Owner, the Company shall forthwith
credit to the Owner or Leasehold Owner or the Person that paid the Fees on behalf of the Owner
or Leasehold Owner any amount therein set forth as the overpaid mount: If the Audit report
concludes an underpayment of Fees hasbeen made by or on behalf of the Owner or Leasehold
Owner, the Owner or Leasehold Owner shallbforthwith pay or caused to be paid to the Company
the sum of: (i) any amount set forth in the audit report as an underpayment of Fees; (ii) interest
on the amount owed from the time the Fee in question was due at the annual- rate from time to
time determined by the Board (but not to exceed21% per year); and (iii) a penaltyequal to 10%
of the Fees owed. If such accountant shall report to the Company that the Owner’s or Leasehold
Owner’s Fee Records have not been maintained in accordance with the requirements of this
Section 9.6, the Owner or Leasehold Owner shall, with 3Udays after delivery of a copy of such
report to the Owner or Leasehold Owner, cause its Fee Kecords to conform to the requirements..
of this Section 9.6 so as to permit an accurate determination of the Fees owed. for the audited
period. All costs of an Audit incurred by the Company shall bts payable as Specific Assessments
by the audited Owner or Leasehold Owner to the Company on demand if Fees for any period as
determined by the accountant differ by 2% or more fiom those reported or paid by or on behalf
of the Owner or Leasehold Owner.
9.7 Assignment of the Fees to the Service District. Subject to Section 9.9 and
the provisions of this Section 9.7, the Company shall assign to the Service District a portion of
the Fees (including the right to collect the same pursuant to this Declaration) in an amount not
exceeding the aggregate of the amount the Town would collect pursuant to the Sales Tax, the
Public Accommodations Tax and the Real Property Transfer Tax but for the waiver of such taxes
by the Town pursuant to the Annexation and Development Agreement. The Company shall
enter into an agreement with the Service District memorializing such assignment and providing
in detail for how such assignment will be made, administered and enforced (the “Fee Assignment
Agreement”). The Fee Assignment Agreement may contain such terms, covenants and
conditions to which the Company and the Service District agree, including, without limitation,
the following: (a) the precise portion of the Fees assigned by the Company to the Service
District, consistent with the above-described limitation; and (b) whether the Company will act as
. - .. .. --- -- - __ __ -
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J Fisher Eagle, CO 135 R 375.00 D 0.00
the servicer on behalf of the Service District for the purpose of collecting the Fees and what fee
the Company will receive for providing such service. The Fee Assignment Agreement sh
be amended or modified except in accordance with Section 16.3. In the event of any app~ent or
potentid conflict between the terms of this Declaration and the terns of the Fee Assi
Agreement, then, to the greatest extent possible, such apparent or potential conflict shall be
resolved in favor of the terns of the Fee Assignment Agreement, with this Declaration being
interpreted in a manner that is in harmony with the terms of the Fee Assignment Agreement. By
accepting title to a Unit or a Leasehold Estate, each Owner and Leasehold Owner acknowledges:
(i) that the Service District will use the revenues it obtains under the Fee Assignment Agreement
to finance the construction and maintenance of public improvements and i&astructure that will
directly benefit the Units and the Property; and (ii) that the obligation to pay the Fees pursu~t to
* ng with the land as well, as a personal contractual obligation of Owners and Leasehold Owners.
0
this Declaratim touches and concqrns3he Property and the Units an4 is a real covenant
9.8 Waiver of Fees. With the pnor written approval of the Service District
and, d-g the Development Period, * Declarant (which may be withheld in the absolute
discrdtion of either of them), the Company may waive any Fee as it applies to an Owner or
LeasehoId Owner or a particular class oE Owner& or Leasehsld Owners if the Company, in its
es that exigent circumstances exist that j such waiver. Any
or conditiuned in any manner as determin thecompany in its
ither the Service District or Declarant & a condition to granting the
approval for the waiver. The granting of zt waiver as to any Fee under
entitlement to a
aiver.
shall be obligated to levy the
Fees pursuant to $his Article 9 and assign them to the Service qt, m’pmvided in Section 9.7,
until the Town dissblves the FinancingDistrict and the Service. I)i*;ric$ pxsuqpt to Section 4.7 of
the Annqxatiani hd. Development Agreement. Notwithst for$oin$ if the Company is
authorized- tot discontinue collecting the Fees pursuant &q@entence and the Town
desirestcr. begin imposing any tax under the Municipal nt to any such Fee
(e.a., .the &ed Property Transfer Tax would be consi f the Real Estate
Transfer Fee); but is prevented from collecting such t ection 20, of the
Constitution of the State of Colorado, the Company shall not discontinue collecting such Fee and
shall remit the payments collected pursuant to such Fee to the Town as required by the
Annexation and Development Agreement.
.
not create in any Owner or- Leas
any other waiver, whether similar or
9.9- Discontinuation of the Fees. The Co
ARTICLE 10
ENFORCEMENT OF ASSESSMENTS AND FEES
10.1 Notice of Leasehold Estates. Each Owner of a Unit that is subject to a
Leasehold Estate and each Leasehold Owner that has created an additional Leasehold Estate by
operation of a sublease shall: (a> provide written notice in the written instrument creating such
Leasehold Estate of the existence of this Declaration and the Recording information for this
Declaration; and (b) as soon as practicable but in no event later than 10 days following creation - --
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.00 D 0.00
of the Leasehold Estate, provide the Company with: (i) written notice that the Leasehold Estate
has been created; (ii) a memorandum or abstract of the lease or sublease creating such Leasehold
Estate that describes the materials terms thereof; (iii) the name and address of the Lgasghold
Owner of the Leasehold Estate; and (iv) any other info~ation the Com~any reasonably r
concerning the Leasehold Estate or its Leasehold Owner. If such Owner or Le~ehold
fails to provide written notice of this Declaration as provided in clause (a) above or fails to
deliver to the Company the information described in clause (b) above, the Company shall have
the option to consider all Fees owed to the Company by the subject Leasehold Owner to be the
obligations of the Owner of the Unit or the Leasehold Owner acting as the sublessor for all
purposes under this Declaration.
Q
10.2 . Each Owner and Leasehold ~~er
shall pay, or cause to sessed against such Owner’s Unit or
Leasehold Owner’s Leasehold Estate, p applicable, by the Company in accordance with the
terms of this Declaration. Each Assessment arid Fee is a separate, distinct and personal debt and
obligation of the Owner or Leasehold Owner, as. applicable, agkst whose Unit or Leasehold
Estate the Assessment or Fee is levied. All Assessments’ and Fees are payable in full without
offset for any reas . Th& obligation- to pay Assessinents and; Fees is entirely
independent of any Company to the Owner or Leasehold Owner or of Declarant
or any other Owner er or Leasehold Owner. No Owner ~rLe&hdd Owner may
exempt itself from* Fee by non-use of $Corntan ,Elements,
abandonment of its other means.‘ Any Assessment or Fee. or
installment oE an As Q;days after it bec;+mesdue isdelinquent,
If an Assessmqbt ssessment or Fee is delinquent, the Corhpany may.
recover all of the following (collectively, the “”Delinquerlcy Costs”): (a) interest from the date
me to time by.the Board (but not to exceed 21% pel;- year); (b)
imposed by the Co
ith any and all o
described. in Sectiun- 10.3 A betaw.
Declaration and d. enforcement costd,
Each elinquency Costs
Leaseho€d- Estate;’ as applicable, against
particuiarly provided in Section 10.5.
applicable Delinquency Costs, also shall be the
wner or Leasehold Owner of such Unit or Leasehold Estate at the time
the Assessment or Fee and the applipable Delinquency Costs arose. Were the Owner or
Leasehold Owner consists of multiple Persons, each such Person shall be jointly and severally
liable for each and every obligation of the Owner or Leasehold Owner.
10.3 Delinquency Notice. If any Assessment or Fee or installment .of any
Assessment or Fee is delinquent, the Company shall notify the Owner or Leasehold Owners of
the delinquency and state in the notice: (a) the amount and due date of the delinquent Assessment
or Fee or installment thereof; (b),the Delinquency Costs accrued to date; and (c) the date by
which the delinquent Assessment .or Fee installment thereof and all associated -Delinquency
Costs must be paid.
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10.4 Acceleration. If the Company gives the written notice required by
Section 10.3 with respect to a delinquent Assessment or Fee that is payable in regular ~ifo~
installments a, a Common Assessment) and the Owner or Leasehold Owner responsible for
such Assessment or Fee does not pay, or cause to be paid, such del~n~uent Ass~ss~~nt or Fee
(including all associated Delinquency Costs) in full by the due date specified in the notice,
the Company may declare all unpaid installments of the subject Assessment or Fee for the
current Fiscal Year of the Company to be immediately due and payable in full without fixther
demand or notice and may enforce the collection of @e Assessment or Fee (including any
associated Delinquency Costs and any installments that were so accelerated) in accordance with
Section 10.6, subject, however, to the protection dforded First Mortgagees p~sua~t to
Section 10.5.
10.5 e Company has an automatic lien
against each Unit an , to secure payment of all Assessments,
Fees and associated Delinquency Costs levied by the Company against such Unit or Leasehold
Estate. Such lien shall be perfected upon the Recording of this Declaration, and no further. claim
of lien shall be required. Notwithstandmg the' foregoing. and without limitation on the automatic
lien against each Unit or Leas&ol& Estate established hereby, the Company has the right, but
not the obligation, to prepare and Record P "Notice of Lien" setting forth (i) the amount of any
Assessment, Fee or Delinqqency Costs or other amount due and owing to the Co'mpany; (ii) the
date SUG~ amount was due and'payahle and the date from which interest accrues; (iii)all
Delinquency Costs accrued as-of the date OE Recording of such Notice" of Lien< (iv) the Unit or
Leasehold Estate affected by the-lien; an4 (v) the name or names, last known to the Company, of
the subject Owner or Leasehold OWQL The automatic lien of the Company against each Unit
and Leasehold Estate established and perfected by this Section 1 0.5-shall be superior to all other
liens and encumbrances, except (a) liens and encumbrances Recorded before this Declaration;
(b) liens for real estate taxes and other govemental assessments or charges against the Unit or
Leasehold Estate;. an subject to- the limited' priority established.; in favoB of the Company
pursuant to Sectioni3 (b)(l): of thq Act, any First Mortgage on -the Unit-that was Recorded
before the date on which the Assessment or Fee OP instablment thereof the Company is seeking to
enforce- became- delinquent. Subject to the limitations of the ipreceding sentence; the sale,
transfer or assignment of any Unit or Leasehold 'Estate shall not affect the lien fix any existing
delinquent Assessments or Fees.
10.6 Enforcement of Assessments and Fees. The amount of any delinquent
Assessments or Fees (incl any installments accelerated by the Company pursuant to
Section 10.4) and- associat linquency Costs may be enforced against the Owner or
Leasehold Owner liable for them in%either or both of the following ways, at the option of the
Company (which shall not be exclusive of any other remedies or enforcement rights available to
the Company at law or in equity):
(a) Suit. The Company may bring a suit or suits at law to enforce the
Owner's or Leasehold Owner's obligation to pay a delinquent Assessment or Fee
(including any installments accelerated by the Company pursuant to Section 10.4) and
associated Delinquency Costs. -Each action will be brought in the name of the Company. - .._ - - __ - _.__ -_ _- - -
05/Q8/2002 01:13F
ara J Fisher Eagle, CO 135 R 375.00 D 0.00
42
Upon full satisfaction of the judgment, the Company, by one of its officers, will execute
and deliver to the judgment debtor an appropriate satisfaction of the judgment.
(b) Lien Foreclosure. If the Company gives a notice conce~ing
delinquent Assessment or Fee that substantially complies with the provisions of
Section 10.3 and the delinquent Assessment or Fee is not paid in flu11 by the due date
specified in such notice, then the Company may foreclose, in the same manner as the
foreclosure of a mortgage under the laws of the State of Colorado, the lien established in
Section 10.5 securing the Assessment or Fee, any installments accelerated by the
Company pursuant to Section 10.4, and any associated Delinquency Costs. The
Company may bid for a Unit or Leasehold Estate at any foreclosure sale, pay alj or
of the bid amount by crediting the lien amount against the bid, and acquire, hold, lease,
mortgage, convey or assign such Unit or Leasehold Estate. While aUnit is owned by the
Company following foreclosure: (a) no right to vote shall be exercised on behalf of the
Company as the Owner of such Unit; and (b) no Assessments shall be levied against such
Unit; and (c) each other Unit sMl be charged, in addition to its usual Assessments, its
pro rata share of the Assessments that would have been charged the Unit acquired by
foreclosure had such Unit not been acquired by the Company.
10.7 Reallocatim, If any Assessment or Fee Eemains unpaid. for more than six
months after it is first due, the Company may treatcthe unpaid Assessment or Fee as a Common
Expense to be assessed against. all Units; provi@ed; however, that if ,the Company subsequently
collects all or any part of the unpaid Assessment or Fee, ‘through foreclosure of its lien- or
otherwise, then any Owner who has paid a portion. of the unpaid Assessment or Fee as a
Common Expense is entitled to a credit (in an mount equal to its pro rata-share ofthe amount of
the unpaid Assessment or Fee subsequently.co1lected by the Company) against any Common
Assessments subsequently due fiorn that Owner.
10.8 Disputes and Records. Any Person responsible for paying Assessments or
Fees may inspect the books and records ofthe Company during regular business hours upon
reasonable prior notice. If such Person disputes the amount of any; Assessment or Fee paid or
payable by such Person and is unable to resolve the issue through an inspection of the
Company’s books and records, the Person will continue to pay in a timely manner the full
amount of the disputed Assessment or Fee until, if ever, it is finally determined that the amount
is incorrect (in which case the Company will promptly rehd any overpayment). If the Person
fails to pay the disputed Assessment or Fee while the dispute is pending, the Company may
immediately pursue any of its remedies for the fitilure (including, without limitation, suit against
the Person andlor foreclosure of the Company’s lien against the Person’s Unit or Leasehold
Estate, if and as applicable), and the pendency of the dispute is not a bar or defense to any
actions by the Company.
10.9 Certificate. Within 14 calendar days after receiving a written request from
any Owner, Mortgagee or a designee of either of them, delivered personally or by certified mail,
first-class postage prepaid, return receipt requested, to the Company’s registered agent, the
Company will hrnish to the requesting party, by personal delivery or certified mail, first-class
- -- .. __ postage __ prepaid, __ return - receipt requested, a - -_ certificate executed on behalf of the Company and
\
05/08/2002 01:13F
Sara J Fisher Eagle, CO 135 R 375.00 D 0.00 j
addressed to the requesting party, stating any then unpaid Assessments or Fees due from the
requesting Owner or the Owner of the Unit encumbered by the requesting Mortgagee’s
Mortgage, or stating that there are no unpaid Assessments or Fees due from such Owner, as the
case may be. A certificate hished by the Company pursuant to this Section 10.9 is binding on
the Company, the Board and every Owner. Such Owner’s Unit shall not be subject to a lien for
any unpaid Assessments or Fees against the Unit to the extent that (a) the lien arises before the
date of the certificate and the amount of the lien exceeds any unpaid amounts stated in the
certificate, or (b) if the Company does not Msh a certificate pursuant to this Section 10.9, the
unpaid Assessments or Fees are due as of the date of the request. The Company may charge the
Owner of any Unit for which such a certificate is furnished pursuant to this Section 10.9, and the
Owner will pay, a reasonable fee for the preparation of the certificate in an ~ount deter~ined
the Board from time to time.
ARTICLE 11
MAINTENANCE
1 1.1 Company’s Remonsibilities.
(a) Maintenance of Common Elements, The Companx shall maintain
and keep in good repair the Common Elements, which may include, but need not be
limited to, all of the potential CommonElements listed in Section 4.8.
(b) Maintenance of Other Prouerty. The Company may maintain other
property which it does not own, including, without limitation, any property that has been
transferred to the Town or dedicated to the public, if the Board determines that such
maintenance is necessary or desirable to maintain the appearance or image of the
Property as an attractive, clean and: well-maintained development project.
(c) Operation. of Facilities. The Company shall maintain the
Improvements, facilities and equipment, if any, within the Common Elements in
continuous operation, except for any periods necessary, as determined in the sole
discretion of the Board, to perform required maintenance or repairs. The Common
,Elements shall not be reduced during the Development Period by amendment of this
Declaration or any other means except with the prior written approval of Declarant.
(d) Election to Perform Owners’ Duties. The Compaiy may elect to
maintain or repair any Unit or portion thereof or Improvements thereon, the maintenance
or repair of which is the responsibility of an Owner pursuant to Section 1 I .2, if (i) such
Owner has failed, for more than 30 days after notice from the Company, to perform its
responsibilities under this Declaration with respect to the maintenance or repair of its
Unit (provided, however, that no such 30-day notice period will be required in the case of
emergencies), and (ii) such failure has a material effect on the appearance of such Unit
when viewed from any area outside such Unit or has a material adverse effect on the use
of another Unit or any Common Element for its permitted and intended use; provided,
however, that if such failure is not susceptible of being cured within such 30-day period,
- __
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05/@8/2002 01:13 q4 Sara J Fisher Eagle, GO 135 R 375.00 D 0.00
the Company will not be entitled to perform any repairs or maintenance if such Owner
commences performance of its obligations within such 30-day period and thereafter
diligently completes such performance. Such Owner will pay as a Specific Assess~ent
all costs reasonably incurred by the Company in accordance with
1 1.2 Owner’s Responsibility.
(a) Maintenance and Repair of Unit. Each Owner shall maintain its
Unit and Improvements on the Unit and-perform all required repairs of such Unit and
Improvements.
) osts of repair or replacement of any portion of the Property
Darnages Caused by Omers. Each wner will pay as a Speci~c
Assessment a1
damaged or destroyed by reason of the miscanduct or negligence of such Owner or any
of its Permittees.
1 1.3 Maintenance Standard. Unless otherwise specifically provided herein or
in other instruments creating and assigning such maintenance responsibility, responsibility for
maintenance shd€ include responsibility for repair and replacement, as necessary. All
maintenance shall; be performed in a manner1 consistent with the quality $01 maintenance
prevailing within The Village (at Avon) and all applicable covenants, NeitheF the- Company nor
be €iable for any damage or injury occurring on or +sing out of the condition of
t does not own, except pursuqntLto Section 11.2(b) OF to the extent tha% it has
been negligent in the performance of its maintenance responsibilities.
11.4 -Party Struct,ures. Each wall, fence, .driveway or similar structure, or
portion thereof, .built as a part of the original- constructioo om the Units which serves and/or
separates any two adjoining Units- shall *constitute a*party structure. TCP the extent not
inconsistent wi& the provisions of this;Sectioa 1 1.4, the laws of the State oE Colorado regarding
party walls and liability for property damage due to negligence or willful acts Qr omissions shall
apply theretp. Thq’cost ofreasonable repair and maintenance of a party str@we shall be shared
equally hy the ;Owngrs who make use of the
?+curitv, The Company may, but shall: not be ob€iigated to, maintain or
support certain activities’ on the Property designed to make the Property safer than it otherwise
might be. Neither the Company nor Declarant shall in any way be considered an insurer or
guarantor of security on the Property, nor shall any of them be held liable for any loss or damage
by reason of failure to provide adequate security or ineffectiveness of security measures
undertaken. No representation or warranty is made thatany fire protection system, or security
system or measures, cannot be compromised or circumvented, nor that any such system or
security measure undertaken will in all cases prevent loss or provide the detection or protection
for which the system is designed or intended. Each Owner acknowledges, understands and
covenants to inform his or her Permittees that the Company, the Board of Directors and
committees thereof, and Declarant and any successor Declarant are not insurers and that each
Person using the Property assumes all risks of personal injury and loss or damage to property,
including Units and Improvements and the contents of Units, resulting from acts of thrd parties.
structure.
11.5
._ -
05/08/2002 01:13F ,?
ara J Fisher Eagle, GO 135 R 375.00 D 0.00 ’ 43
ARTICLE 12
USE ~ST~CTIO~S
12.1 Mineral Ouerations. No oil or gas drilling, oil or gas dev~lo~~ent
operations, oil refining, quarrying or mining operations of any kind shall be permitted on the
Property.
12.2 Unsightly or Unkempt Conditions. All portions of a Unit outside of
enclosed structures shall be kept in a clean and tidy condition at all times. Nothing shall be done,
~~ntained, stored or kept outside of enclosed structures on a Unit which, in the dete~inati~n of
the Board, causes an unclean, ~~al~hy or untidy co~dition to exist or is obnoxious LO
senses. Any structures, equipment or other items which may be permitted to be erected or place
on the exterior portions of Units shall be kept in a neat, clean and attractive condition and shall
promptly be removed upon request of the Board if, in the judgment of the Board, they have
become rusty or dilapidated or have otherwise fallen into disrepair. No Owner or Permittee shall
dump grass clippings, leaves or other debris, pet’roleum products, fertilizers or other- potentially
hazardous or toxic substpces in any drainage ditch, stream, pond or lake or elsewhere on the
Property.
12.3 OuieP Eniovment, Nothing shall be dorie or maintained on any.part of if
Unit that emits foul or obnoxious. od outside the Unit or creates noise or other-conditions that
tend to disturb the peace, quiet; s omfort or serenity of the,Owners and Permittees of other
Units. In addition, no noxious or offensive activity shall be carried on upon any Unit nor shall..
anything be done or placed on my Unit that is or may become a nuisance or cause any
significant embarrassment, disturbance or annoyance to others. As used herein, the term
“noxious or offensive activity:’ shall not include any. activities that- are reasonably necessary to
the development of and construction of a Unit‘s0 long-as-such activities do not vialate the
statutes, rules or regulations of any gavemental- authority having jurisdiction with respect
thereto and do not.unreasopably inte~eFe with the permitted use of another Unit or with any
Owner’s or Permittee’s ingress an& egress to or &om a Unit.
Wetlands, Lakes and Other Water Bodies. The Compmy shall have the,
right to regulate‘ use of all wetlands, lakes, ponds+an&stre@s on the Property owned by the
Company, if any. The Company sh41 not be responsible for any loss,hdamage or injury to any
person or property arising out of the authorized or unauthorized use of any such wetlands, lakes,
ponds or streams.
3 ,’
12.4
12.5 Firearms, Fireworks and Explosives. Except as permitted under
Section 12.6, the discharge of any firearms, fireworks or explosives on the Property is prohibited.
The term “firearms” includes “B-B” guns, pellet guns and other firearms of all types, regardless
of size. Notwithstanding anything to the contrary contained herein or in the Bylaws, the
Company shall not be obligated to take action to enforce this Section 12.5.
12.6 f--. Hunting, killing, trapping or poisoning of wildlife on or from the
Property shall be prohibited except to prevent imminent danger to human life or unless
46 iara J Fisher Eagle, GO 135 R 375.00 D 0.00
conducted by or at the direction of the Company or the Colorado Division of Wildlife or other
law enforcement or public officials having jurisdiction to protect human life or property, reduce
ove~opulation or eliminate nuisances or as may otherwise be required by law. Fire
discharged from the Prope~ in erance of the wildlife con~ol measures pe~itt
Section 12.6.
*
12.7 No Harassment of Wildllfe. Except as permitted under Section 12.6, no
harassment of wildlife is permitted on or fkom the Property. With the exception of bird feeders,
any means of feeding, baiting, salting or otherwise attracting wildlife to individual yards or
Common Elements is prohibited. Without biting the foregoing or any other provision of this
Declaration, the Units and all other areas of the Property shall be used in a manner that co~plies
with the Wildlife ~itigation Plan.
12.8 No Hazardous Activities. No activities shall be conducted on any Unit
and no Improvements shall be constructed on any Unit that are or might be unsafe or hazardous
to any natural Person or property. Withou@limiting the generality of the foregoing, no outdoor
fires shall be lighted or permitted on aiy Unit except in a contained barbecue grill while attended.
and in use for cooking purposes.
12.9 Laws and OrdindcZs. Every Owner and Permittee shall comply with the
PUD and all laws, statutes, ordinsinces‘ and rules of federd, state, local and municipal
governments applicable to the Propeyty. Any violation. may be considered,a violation of this
Declaration. However, the Company shall- have no obJigation to take action to enforce such - laws, statufes, ordinances and rules.
12.10 Storage of Recreational Vdhicles. Mobile homes, recreational vehicles,
travel trailers, tent trailers, trucks (exceptGpichp. tmcks, used for personal, and not commercial
transport), snowmobiles, go15 carts, boats, boat5 trailers, tractors, detached campers, camper
shells, snow removal equipmc;nt and gaden or maintenance equipment shall be kept in an
enclosed structure at all times, exce@ when imactual. use; provided that such equipment rn-yae
parked on parking lots or other areas specifically designated by the Company for such
equipment.
12.1 1 Use of Recreiitionzil Vehicles. No motorcycle, go-cart, snowmobile, all
terrain vehicle, golf cart or other’motorizqd gecreational vehicle shall be operated within or on
the Property for recreational purposes. Motorcycles and similar vehicles licensed by the State-of
Colorado for. use on public streets and highways that are driven on paved roadways or dirt roads
designated by the Company for vehicular use shall be permitted. In addition, the use of
motorized vehicles to provide, or facilitate the providing of, security, monitoring, maintenance
and similar services shall be permitted.
12.12 Trash Containers and Refuse. Refuse, garbage and trash shall be kept in a
covered container at all times and any such container shall be kept within an enclosed structure
except on the days of pick-up by a waste management service. No lumber, grass, shrub or tree
clippings or plant waste, compost, metals, bulk materials or scrap or refuse or trash or unused
135 R 375.00 D 0.00 47 Bra J Fisher Eagle, GO
items of any kind shall be kept, stored or allowed to accumulate on any Property except for
during short time periods (in no event longer than 24 days) pending removal from
12.13 Clotheslines. Service areas and facilities for hanging, drying or airing
e
lo thing or fabrics shall be kept within an enclosed structure.
12.14 pets. No Outdoor Pets may be kept on any Unit except as permitted by the
Company. The Company shall have no obligation to permit any Owner or Permittee to have or
keep any Outdoor Pet. Without limiting the foregoing: (a) no animals of any kind shall be
raised, bred or kept on or within any Unit for any commercial purposes (except within an
enclosed retail structure from which pets are sold to retail customers (k, a “pet store”)); and
no dog or cat shall be permitted to roam within the Property except under the direct ~~ua
control and supe~ision of its owner or keeper.
12.15 Lights and Sounds. No light shall be emitted from any Unit which is
unreasonably bright or causes unreasonable glare or shines directly 0nto.m adjacent Unit. No
sound shall be emitted fiom any Unit which is unreasonably loud or annoying.
12.16 Variances and Rezoninns. No Owner shall apply for or permit another
Person to apply for any variance or rezoning.concerning the Owner’s Unit gr any portion thereof
without the\ prior written consent of the C .and, ,during the Development Period,
which consent may be denied or wi $he absolute discretion of the Company
12.17 Excelltion for Constructian. During the course of actual construction of
Improvements, the above use restrictions of this Article 12 shall not apply to the extent
reasonably necessary to pewit such construction to be undertaken in a reasonable manner,
provided that nothing is done or occurs during the perio&of construction that will result in the
violation of any such use restriction upon the completian ofsuch construction or extraction.
ned in this Declaration shall be
id Declarant Rights; or (ii) the
agents, of temporary structures,
evelopment, marketing or sale of
construed to prevent
erection or mainten
trailers, impro
property within The Village (at Avon).
ARTICLE 13
INSURANCE, DAMAGE AND TAKINGS
13.1 Corn~any’s Insurance.
(a) Required Coverage. The Company, acting through the Board or its
duly authorized agent, shaI1 obtain and continue in effect the following types of insurance
if reasonably available or, if not reasonably available, the most nearly equivalent
coverages as are reasonably available: _____._____ ___~ - -- .. llllll Ill 1111”‘ “ ‘is‘ 7950 Page: 57 of 75 ! I 05/08/2002 01:IJq --. .-. .I_.
135 R 375.00 D 0.00 Sara J Fisher Eagle, GO
48
(i) Blanket “all risk” property insurance covering any
insurable Improvements owned by the Company. The Company shall have the
authority to insure any property for which it has ~~nten~ce or re~air
responsibility, regardless of o~ers~p. All property insurance policies obtai~e
by the Company shall have policy limits su~icient to cover the full replacement
cost of the insured Improvements.
(ii) Commercial general liability insurance on the Common
Elements, insuring the Company and the Members against damage or injury
caused by the negligence of the Company or any of its Members, employees,
agents or contractors while acting on its behalf. If generally available at
reasonable cost, the commercial general liability coverage (including primary an
any umbrella coverage) shall have a limit of at least $5,000~000.00 per occurrence
with respect to bodily injury, personal injury and property damage.
(iii) Workers’ ,compensation insurance and employer’s liability
insurance to the extent required by law.
(iv) Directors’ and :officers’ liability coverage in am amount
determined by the Board.
(v) Fidelity insurance covering al€ Persons responsible for
handing Company funds in an amount not less than $1,000;000.00 plus two
months’ Assessments plus all reserves on hand? and containing a waiver of all
defenses based upon the exclusion -‘of Persons serving without compensation;
provided, however, that if fidelity insurance in such amounts is not available on
reasonable terms, the Association may maintain a lesser amount of coverage to the extent reasonably available. In addition, if, pursuant to the Fee Assignment
Agreement, the Service District directly collects’on its own behalf the Fees
assigned to it pursuant- to Section 9.7 above and the Fee Assignment Agreement,
then the fidelity insurance maintained by the Company shall-only need to be in an
amount not less than two months: Assessments plus all reserves on hand.
(vi) ’Such additional insurance as the Board determines
advisable, which may include,‘ without limitation, automobile insurance, flood
insurance, boiler and machinery insurance and building ordinance coverage.
(b) Policy Requirements. All Company policies shall provide for a
certificate of insurance to be hished to the Company and, upon request, to any Owner
or Mortgagee. Each policy may provide for a deductible which may not exceed the lesser
of $10,000.00 or one percent (1%) of the policy face amount, and the amount thereof
shall not be subtracted from the face amount of the policy in determining whether the
policy limits satisfy the requirements of Section 13.1(a). Premiums for all insurance
maintained by the Company pursuant to this Section 13.1 shall be Common Expenses and
shall be included in the Common Assessment. In the event of an insured loss, the
deductible shall be treated as a Common Expense in the same manner as the premiums
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for the applicable insurance coverage. However, if the Board reasonably detemines,
after providing notice and an opportu~ty to be heard in accordance with the Bylaws, that
the loss is the result of the gence or willful misconduct of one or more Owners or
their Permittees, then the any may specifically assess the
deductible against such Owners and their Units as Specific Assessments p~suant to
Section 8.6. All insurance coverage obtained by the Company shall:
(i) State of Colorado;
be written with companies authorized to do business in the
(ii) be written in the name of the Company as
(iii) be written as a primary policy, not contributing with and
not supplemental to the coverage that any Owners, occupants ar their Mortgagees
may-cany in&vidually;
(iv) include an inflation guard endorsement, as applicable;
(v) include an agreed amount endorsement, if the policy
contains a co-insurance clause;
(vi) provide that each-Owneg is an insured-person under the
policy with respect to liability arising out of such Owner's membexship in the
Company;
(vii) include an endo&emqnt prec
iinvalidation, suspension or non-renewal by the insurer on a
defect or violatim or any act or omission of any Owner,
to the Company to cure the defect, violation, act or omission and
q of a reasonable time tg effect such cure;
(viii) include an endorsement precldhg cancellation,
invalidation or condition to recovery under the policy on acm
omission of any Owner, unless such Owner is acting within
authority on behalf of,the Company; and
(ix) include an endorsement requiring at least 30 days' prior
written notice to the Company, and to each Owner and Mortgagee to whom a
certificate of insurance has been issued, of any cancellation, substantial
modification or non-renewal.
(c) .Other Policy Provisions. In addition, the Company may use
reasonable efforts to secure insurance policies which list the Owners as additional
insureds qtd provide: _-_-
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50
(i) a waiver of subrogation as to any claims against the Board,
the officers or employees of the Company, and the Owners and their
(ii) a waiver of the insurer7s rights to repair and recons
instead of paying cash;
(iii) an endorsement excluding Owners’ individual policies
from consideration under any “other insurance” clause;
(iv) a cross liability provision; and
(v) a provision vesting in t
adjust losses; provided, however, no Mortgagee having an inte
may be prohibited from participating in settlement negotiations, if any, related to
such losses.
13.2 Dabaye and Destruction.
(a) Property Insured bv Company.
(i) Iminediatqly after damage or destruction to all or any part
of the Property covered by insurance written in the name of the Company, the
Board or its dyly authorized agent shall. file and adjust all insurance*claima and
obtain reliable and,+detailed estimates of the cost of repair or reconstruction,
Repair or reconstruction, as used in this paragraph, means the repair or restoration
of the damaged property to substantially the condition in which it existed- prior to
the damrige, alhwing for changes necessitated .by changes in applicable building
codes. ’
(ii) Any dhage to or destruction of the Common ’Elements
shall be repaired or reconstructed unless: (i). a decision not to repair or recanstruct
is made by Members representing atileait 67% of the totalvote in the Company,
and, if the damage or destruction occurs during the Development Peridd, the vote
of Declarant; (ii) repair or reconstruction would-be illegal under any stateor Zacal:
statute governing health and safety; .or (iii) the large planned community
established by this Declaration is terminated pursuant to Section 17.2(b).
(iii) If the damage or destruction to the Common Elements will
not be repaired or reconstructed pursuant to Section 13.2(a)(ii) and no alternative
improvements are authorized, the affected property shall be cleared of all debris
and ruins and thereafter shall be maintained by the Company in a neat and
attractive landscaped condition.
(iv) Any insurance proceeds attributable to damage to Common
Elements will be applied to the costs of repair or reconstruction (if any) and then,
if any insurance proceeds remain, distributed among all Units in proportion to
their Common Allocations.
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a J Fisher Easle, CO 135 R 375.00 D 0.00
(v) If insurance proceeds are insufficient to cover the costs of
repair or reconstruction? .the Company may, without a vote of the Members,
Special Assessments to cover the shortfall.
(vi) Each Unit will continue to be subject to Assess~ents
following any damage to any portion of the Common Elements, without
abatement as a result of such darnage.
(b) Property of Owners. Each Owner covenants and agrees that in the
event of damage or destruction to structures on or comprising such Owner’s Unit, the
Owner shall proceed promptly to repair or reconstruct such structures in a m
cons~stent with the original construction or such-other plans and specifications as are
approved by the Design Review Board and the Town and pursuant to all other applicable
land use regulations. The Owner shall pay any costs of such repair and reconstruction or
clearing and maintenance which are not covered by insurance proceeds.
13.3 Takinps.
(a) Taking of all or any part of ‘my
egotiating with the’ condemning
1 be entitled to receive such award:
‘t or portion thereof have been
t is acquired‘ by a Taking; the
storation of its Unit as necessary to retun the Unit to a safe and lawful cdnditiosthat does-not adversely affect the use or
enjoyment of the other Units or Common Efements or detract from the general character
or appearance of the Property.
Unit, the Owner there
authority concerning
,after the liens of all Mortgagees
sfied or otherwise discharged.-
wner of such Unit will ;be. respo
(b)
(i) Each Omef shall ‘be entitled -to written notice of any
thereof. The Company will be solely
authorized to negotiate with the
ng, the amount of thq
acquires any Common
Elements or portion thereof wi+aut also acquiring 100% of the Units, and the
acceptance of such award by the Company will be binding on all Owners. Any
award made for such Taking shall be payable to the Company as trustee for all
Owners and shall be disbursed as set forth in Sections 13.3(b)(ii) and 13.3(b)(iii).
Notwithstanding the foregoing, no Comrnon Elements shall be conveyed in lieu of
and under threat of condemnation withaut the approval of the Board, acting on the
written direction of Members representing at least 67% of the total vote in the
Company and, during the Development Period, with Declarant’s consent.
(ii) If the Taking involves a portion of the Common Elements
on which Improvements have been constructed, the Company shall restore or -.
.~ --
3
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135 R 375.00 D 0.00 j2
replace such Improvements on the remaining land included in the Common
Elements to the extent available, unless within 60 days after such Taking
Members representing at least 67% of the total vote in the Company and, if the
Taking occurs during the Development Period, Declarant shall othe~ise agree.
Any such construction shall be in accordance with plans approve
Company. If the award made for such Taking is insufficient to cover the costs of
restoration or replacement, the Company may, without a vote of the Members,
levy Special Assessments to cover the shortfall.
(iii) If the Taking does not involve any Improvements on the
Co~on Elements, or if a decision is made not to repair or restore, or if net funds
remain after any such restoration or r~plac~m~nt is complete,
net fbnds shall become an asset of the Company.
ARTICLIE: 14
MORTGAGEE PROVISIONS
14.1 No Prioritv. No provision of this S)eclarat?on or the Bylaws gives or shall
be construed as giving any Owner or other party priority over any rights of the First Mortgagee
of any Unit in the case of distribution to such- Owner of insurance proceeds or condemnatipn
awards for lasses to or a Taking of the Common Elements.
14.2 Notice to Mortga-. Upon redeipt by the Company of a written request
for natiqes as described in Section 2.33, any Eligible Hulder who provides such request will be
entitled to timely written notice of:
(a) Any condemnation loss or ~asudty -loss that affects a material
there is a First Mortgage held, portion of the Property or that affects any Unit on
insured or guaranteed by such Eligible: Holder;
(b) Any delinquency in the, s or charges owed
by a Unit subject to the Mortgage of such Eli h delinquency has
continued for aperipd of 60 days after notice of sac been delivered to
the Owner, or any other violation of this Declarationxor the Bylaws relating to such Unit
or the Owner or occupant thereof which is not cured within 60 days of notice of such
violation;
(c) Any lapse, cancellation or material modification of any insurance
policy maintained by the Company.
ARTICLE 15
CONVEYANCING AND ENCUMBRANCING
15.1 Units. A description of any Unit in accordance with the requirements of
Colorado law for the conveyance of real property will, if included in an otherwise proper __ _. --
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5.00 D 0.@Q
instrument, be sufficient for all purposes to sell, convey, transfer, encumber and otherwise affect
not only such Unit but also all easements, rights and other benefits app~en~t thereto as
provided in this Declaration.
Company of his or her o~ers~p of a Unit. An Owner may encumber
she sees fit, subject to the provisions of this Declaration.
A Person who becomes an Owner will promptly noti
15.2 Common Elements. The Common Elements or portions thereof may be
conveyed or subjected to a lien or security interest in accordance with the Act, with the written
approval of Owners to whom are allocated at least 67% of the votes in the Company, including at
least 67% of the votes in the Company allocated to Units not owned by Declarant. Such
conveyance or encumbrance will not affect the priority or validity of pre-existing encumb
Any net proceeds from the sale of any portion of the Co~on Elements will be an asset of the
Company.
ARTICLE 16
MNDMENT
16.1 Reauired Votes.
(a) Declarant, without the vote or cQnsent of the Board or the Owners,
may mend this Declaration to correct clerical, typographical or technical errors,
(b) Declarant, without the vote or consent of the Board Qr the Owners,
may amend this Declaration to comply with the requirements; standards OF guidelines of
recognized secondary mortgage markets, the U.S. Department of Housing- and Urban
Development, the Federal Housing Administration, the Veteran’s Administration, the
Federal Home Loan Mortgage Corporation, the^ Government National Mortgage
Company, or the Federal National Mortgage Company.
(c) Declarant, without the vote or consent of the Board or the Owners,
may amend this Declaration from time’ to time to exercise any Special Dqclamnt Rights
contemplated by or permitted under Section 6.1.
(d) Amendments to this Declaration that, under the Act, may be made
by the Company without the approval of the Owners may be so made by the Company,
subject, however, to any required consent in favor of any Person expressly required by
this Declaration.
(e) Except as otherwise expressly permitted under this Declaration and
the Act, any amendment to this Declaration that increases the Special Declarant Rights,
increases the number of Units, changes the boundaries of any Unit, or changes the
allocated interests of any Unit requires the unanimous approval of all the Owners.
(f) Except as otherwise expressly permitted under the Act, any
amendment ~- to - this - . Declaration . that .. changes I the uses to which any Unit is restricted
I
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54
requires the vote or written agreement of the Owners of Units to which at least 67% of
the votes in the Company are allocated and, during the Development Period, Decl~ant.
(g) Any ~endment to Declaration that changes a spe
of affi~ative votes for action or provision prescribing a certain percent
under that clause or provision shall require the affirmative vote of those Owners of Units
to which at least that percentage (as prescribed in that clause or provision) of the votes in
the Company are allocated.
(h) Any amendment to this Declaration that changes a specific clause
or provision requiring the written consent of any Person(s) for action to be taken
that clause or provision shall require the written consent of such Person(s).
(i) Any amendment to this Declaration made during the Development
Period affecting a right that Declarant may exercise during that period requires the
written approval of Declapt in each case.
('j) Except as provided above in this Section 16.1 and in any other
provision of .this Declaration, this Declaration may be amended by the firnative vote 'or
written consent of the Owners of Units to which+more than 50%- of the votes in the
Company are allacated, provided that during the Development Peripd my such
amendment shall also require the approval'of Declarant.
Amen&nEf;4z)ocwents- Except for &y amendment that by the terns of
this Declaration may be and.is ddy execute& acknowledged and Recorded by Declarant or by or
on behalf of the Board, an, amendment to this Declaration is effective only when all of the
following events occur:
16.2
(a) Amroved Writing: The amendment is reduced to a writing-that iis
approved (by a%rmative vote or Writtell consent) by the Owners of Units to which at
:.(b) Certifidate bv Cozm&v. A written certificate, .executed and
acknowledged by the presidqnt or any o@eK authorized- officer of the Company, is
attached to the written amendment which states that the amendment was app
applicable required percentage of Owners pursuant to Section 16,l.
e required percentage Qf yotes in(the Cp&pany;are alloqated.
(c) Recording. The approved written amendment described in
Section 16.2(a) and the certificate described in Section 16.2(b) are Recorded.
16.3 Amendments Concerning the Fees. Notwithstanding any provision of this
Declaration to the contrary, neither Article 9 of this Declaration, nor any other provision of this
Declaration nor the Fee Assignment Agreement may be amended without the prior written
consent of the Service District and the LOC Issues in any manner that would materially impact or
impair the ability or authority of the Company to collect any of the Fees and remit the same to
the Service District in accordance with the terms and conditions o€ this Declaration and the Fee
Assignment Agreement.
_. . _- - ...
05/08/2002 01 : 13F 55
iara J Fisher Easle, GO 135 R 375.00 D 0.00
ARTICLE 17
GENERAL PRQVISIQNS
17.1 Permittees Bound. All provisions of this ecl~atjon, the Bylaws an
Rules shall also apply to all Permittees of any Owner. Each Owner shall cause all of its
Permittees to comply with the this Declaration, the Bylaws and the Rules, and each Owner shall
be responsible for all violations and losses to the Common Elements caused by such Permittees,
notwithstanding the fact that such Permittees of a Unit are fully liable and may be sanctioned for
any violation.
17.2 Duration and Te~nation.
(a) Perpetual Dbration. Unless terminated as provided in
Section 17.2(b), this Declaration shall have perpetual duration. If Colorado law hereafter
limits the period during which covenants may run with the land, then to the Lextent
consistent with such law, this- Declaration shall automatically be extended at the
expiration of such period for successive periods of twenty years each, unless terminated
as provided herein.
(b) Termination. Unless otherwise provided by Colorado law, - in
which case such law shdLcontrol,. this Declaration may not be terminated within the
Development Period without the consent of Owners representing at feast 80% of the
votes in the Company and Declarant and the Service District. Thereafter, it may be
terminated only with the consent of Owners representing at least 67% of the votes in the
Company and the Service District. Any termination instrument shali be Recorded and
must comply with the termination pqocedms. set forth in the Act. Nothing in this
Section 17.2(b) shall be construed to-pennit termination of any easement created in this
Declaration without the cmsent of the beneficiary of such easement.
17.3 . No Person sha11,use the
trade name “The Village (at Avon)” or any derivative thereof in any printed or prorhotional
material without Declaran$’s prior written consent. However, Owners may use the tern “The
Village (at Avon)” in printed or promotional atter where such term is used solely-:to specify
that a particular property is located within Village (at Avon), and the Company shall be
entitled to use the words “The Village (at Avon)” in its name.
17.4 Compliance; Right of Action. Every Owner and Permittee shall comply
with this Declaration, the Bylaws and the Rules. In recognition of the fact that a violation of any
of the easements, restrictions, requirements, conditions and covenants set forth in this
Declaration will cause irreparable damage to the Property that is subject to this Declaration, it is
hereby declared, and by acquiring an interest in any Unit all Owners and Mortgagees will be
deemed to have agreed, that, except to the extent expressly provided to the contrary in this
Declaration, any violation or attempted violation of any provision of this Declaration will give
the Declarant, the Company and any aggrieved Owner the right to prosecute a proceeding at law
or in equity against the Person who is violating or attempting to violate such provision and the
13
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ra J Fisher Eagle, CO 135 R 375.00 D 0.00
right to recover sums due or damages or to obtain any other remedy available at law or in equity,
including, without limitation, injunctive relief.
17.5 Attorney Fees. For each claim, inclu~g without li~tation co~ter-
claims, cross-claims, and ~ird-p~y claims, in any leg proceeding to enforce the provisio~s of
this Declaration, the Bylaws, the Articles or the Rules, the party prevailing on such claim shall
be entitled to an award of its reasonable collection costs and attorney fees and costs incurred in
asserting or defending the claim.
*
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17.6 Indemnity. Each Owner will be liable to and will protect, defend,
indemni€y and hold the Company harmless &om and against any and all damages, claims,
demands, liens (including, without li~tation, mechanics’ and materi~men’s liens and ~Iaims),
losses, costs and expenses (including, without l~itation, reasonable attorneys’ fees, court -costs
and other expenses of litigation) and liabilities of any kind or nature whatsoever suffered or
incurred by, or threatened or asserted against, the Company as a result of or in connection with
(a) the willfd misconduct, negligence or breach of the Act, this Declaration, the Bylaws or the
*Rules by the indemnifying Owner or his or her Permittees; or (b)my repair, restoration,
replacement, alteration or other construction, demolition, installation or removal work on or
about the Property contracted for, or performed- by, the* indemnifj4ng Owner or his or her
The indemnifying Owner will pay for all such claims suffered or incurred by the
r which such Owner is responsible hereunder promptly upon receipt of a demand
therefor. The amount of such claims wilt constitute Specific Assessments
against the indemnifLing f7wner’s Unit. Nothing herein, will be deemed to relieve any Permittee
-from liability for its own acts or omissions. Nothing contained in this Section 17.6 will be
construed to provide for any indemnification which would- violate applicable laws, void any or
all of the provisions of this Section 17.6, or negate, abridge, efiminate or otherwise reduce any
other indemnification or right which the Company or the Owners have
17.7 Severability. In -the event provision of this Declaration is deemed
valid pravision similar to the invalidated
vision of this declaration, in
aration, by judgment or court ‘
illegal or invalid by judgment or court order, a le
provision shall be substituted therefor. Invalidation of
whole or in part, or of any application of a provision of tbi
r &all in no way affect other provisions or applications of this Declaration.
17.5 Governing Law. “his Declaration shall be governed by and construed
under the laws of the State of Colorado.
17.9 Captions. The captions and section headings in this Declaration are for
convenience only and shall not be considered in construing any provisions of this Declaration.
17.10 Notices. Except for notices concerning meetings of the Company or the
Board, which will be given in the manner provided in the Bylaws, any notices required or
permitted hereunder or under the Bylaws to be given to any Owner, the Company, the Board or
any Eligible Holder will be sent by certified mail, first-class postage prepaid, return receipt
requested, to the intended recipient at, in the case of notices to an Owner, the mailing address of
such Owner in the Town or any other address designated by such Owner in writing to the
Company; in the case of notices to the Company or the Board, the address of the ~om~~ny’s
registered agent; or in the case of notices to an Eiligible Holder, the address thereof most recently
given to the Company by notice from such Eligible Holder. All notices will be deemed given
and received three business days after such ~ailing. Any Owner or ~ligible
its address for purposes of notice by notice to the Company in ac ance with this
Section 17.10. The Company or the Board may change its address for purposes of notice by
notice to all Owners in accordance with this Section 17.10. Any such change of address will be
effective five days after giving of the required notice.
17.1 1 Colorado Common Interest Ownershh Act. This Declaration shall be
subject to all mandatory requirements of the Act, as amended. In the event of any con
between any term or provision of this Decl~at~on and any mandatory provision of the Act
mandatory provisions of the Act shall control in all instances. In the event of any conflict
between any term of provision of this Declaration and any permissive or non-mandatory
provision of the Act, the provisions of this Declaration shall control in all instances.
[remainder of page intentionalIy~b1~~~~
-- -- -- __
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58
IN WITNESS WHEREOF, the undersigned Declarant has executed this
Declaration thiszs day of ,2002.
EC T:
TRAER CREEK LLC, a Colorado limited liability
Title: Manager
STATE OF COLORADO 1
COUNTY OF EAGLE 1 ) ss:
The foregoing instrument was acknowledged before me this 26w day of
, 2002, by Magnus Lindholm as Manager of Traer Creek LLC, a -
&?QL Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
59
IN WITNESS WHEREOF, the undersigned EMD Limited Liability Company has
consented to this Declaration this= day of A pP; 1 ,2002.
EMD LIMITE~ LI~~I~~ 60
Colorado limited liability co~p~y
By: LAVA CORPORATION, a Colorado
corporation, as Manager
STATE OF COLORADO )
COUNTY OF EAGLE 1
) ss.
The foregoing instrument was acknowledged before me this 25715 day of hat , 2002, by Magnus Lindholm, as President of Lava Corporation, a
Colorado corporation, as Manager of EMD Limited Liability Company, a Colorado limited
liability company. Witness my hand and official seal.
MY commission expires: \2 %*ZQQY /+-
795813 '/
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< TRACT M
Those parts of Sections 8 and 9, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943, by the Department of the Interior General Land Office in
Was~n~on, D.C., described as a whole as follows:
Beginning at the W 1/16 corner of said Section 9 and Section 16 of said Township and Range;
thence N89O55'04"W 1371.96 feet, along the southerly line of said SW 1/4 SW 1/4 to the Section
corner of said Sections 8, 9, and 16 and Section 17 of said Township and Range; thence
NOl"32'00''E 3.82 feet, along the westerly line of said Section 9, to the northerly right-of-way-
line of the Denver & Rio Grande Western Railrpad, said northerly right-of-way line being
parallel with and 50 feet northerly of the centerline af the existing railroad tracks; thence the
following two courses along said northerly right-of-way line: (1) 104.48 feet along the arc of a
curve to the left, having a radius of 2649.33 feeti a central angle of 02"15'34", and a chord which
bears .N85"51'36''W 104.47 feet; (2) N86O59'2Y'W 12 esterly line of the SE
1/4 SE 1/4 of said Section 8; thence NOO"51'07''E 717 westerly line; thence, departing said westerly line, S89O55'04''E 2698.45 feet, to f the SW 1/4 SW 1/4
of said Section 9, thence, along said easterly line, SOl"33'13,'~W 790.94 feet, to the point of
beginning, containing 47.70 acres, more or less.
-mYISED EAST PARCEL (Minus Tract M):
Those parts of Sections 7, 8, 9 & la, Township 5 South, Range 81 West of the Sixth ,Principal<
,Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township. an&
Range, accepted November 1 , 1943 by the Departmental? the Interior General Land Office in
Nashington, D.C., described q a whole as follows:
Beginning at the Northwest comer of said Section 8; thence e following four courses along the
northerly line of said Section 8: (1) N88"40'41"E 1379.4 et, to the W 1/16 comer of said
Section 8 and Section 5 of said Township and Range; (2) N88"40'411'E 1379.49 feet, to the 1/4
corner of said Sections 8 and 5; (3) N88"42'5&'E 1385.36 feet, to the E 1/16 corner of said
Sections 8 and 5; (4) N88'42'58"E 1385.36 feet, to the comer of said Sections 5, 8 and 9 and
Section 4 of said Township and Range; thence the following four courses along the northerly line
of said Section 9: (1) N83'29'3O''E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4;
(2) N83O29'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N83O24'12''E-
1386.30 feet, to the E 1/16 comer of said Sections 9 and 4; (4) N83'24'12"E 1386.30 feet, to the
comer of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the
following two courses dong the northerly line of said Section 10: (1) N86O39'24"E 1381.29 Feet,
to the W 1/16 comer of said Sections 10 and 3; (2) N86'39'24"E 1299.94 feet; thence, departing
said northerly line, S01°34'07"W 2699.66 feet, to the east-west centerline of said Section 10;
i
A- 1
thence, along said east-west centerline, S86O32'23"W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S0l032'50''~ 1349.33 feet, along the easterly line ofthe NW 114 SW
said Section 10, to the SW 1116 corner of said Section 10; thence S86"32'47"W 1384.91 feet,
along the southerly line of said NW 114 SW 114, to the S 1/16 corner of said Sections 10 and 9;
thence S77"0'15''W 1413.37 feet, along the southerly line of the NE 114 SE 114 of said Section
9, to the SE 1/16 corner of said Section 9; thence SOl"33'02"W 1475.32 feet, along the easterly
line of the SW 114 SE 114 of said Section 9, to the E 1116 corner of said Section 9 and Section 16
of said Township and Range; thence S72"20'31"W 1450.43 feet, along the southerly line of said
SW 114 SE 114, to the 114 comer of said Sections 9 and 16; thence NOl"34'18"E 1601.52 feet, to
the CS 1/16 comer of said Section 9; thence S86"07'30"W 1378.19 feet, along the southerly line
of the NE 1/4 SW 114 of said Section 9, to the SW 1/16 corner of said Section 9;
SO~"33'13''W 715.42 feet, along the easterly line of the SW 114 SW 114 of said Section 9;
departing said easterly line, NS9"55'04"W 2698.45 feet, to the westerly line of the SE 114 SE 1/4
of said Section 8; thence NOO"51'07"E 620.19 feet, along said wgsterly line, to the SE 1/16
corner of said Section 8; thence N89"54'54"W 1333.58 feet, along the southerly line of the NW
114 SE 114 of said Section 8, to the CS 1/16 corner of said Section 8; thence N89"58'35"W
1366.46 feet, along the southerly line of the NE 114 SW 114 of saidi Section 8, to the SW 1/16
corner of said Section 8; thence SOO"01'37"E 919.47 feet, along the easterly line of the SW 1/4
SW 1/4,.0f said Section 8, to the northerly right-of-way line of Interstate Highway No. 70, as
e dee&recorded in Book 223 at Page 982' in the office of the Eagle County,
erk and Recorder; thence the following ten courses along said northerly right-of-
N65D30t20"W 249.79 feet; (2) N78"47'50"W 3 17.2 ~feet; (3) N83"08'20"W 506.7
feet.along the arc of a curve to the right+ havinpal rpdius of 1462,O feet, a central
'5Z, and a chord which bears N54"57'56"W 763.3 fq@; (5) N34"37'50"W 331-1
feet; (6) N34"44'20"W 368.5 feet; (7) 804.9 feet along the arc of a curve to the left, having a
radius of 1812.0 feet, a central angle of 25O27'04", and a chord which bears N51"29'50"W 798.3
feet; (8) N68"24'50"W 399.7 feet; (9) N49'47'20"W 213.6 feet; (10) N70°;r0'50ftW 765.1 feet, to
the northerly line of the SE 114 of said Section 7; thence the two Courses along said
northerly line: (1) N89"5Ot40"E 1194.46 feet, to the CE 1/16 of said Section 7; (2)
,N89"5@4P!E 1378.25 feet, toxhe 114 comer of said Sections 7 ence the fallowing two
ong the westerly line of said Section 8: (1) N00"1O'53"W 1369.0%feet, to the S 1/16
Sections 7 and 8; thence NOO"10'53"W 1369.10 €eet,.$p
1.24 acres, more or less.
05/08/20Q2 01:13F
135 R 375.00 5 0.00 I! Sara J Fisher Eagle, Co
A-2
EXHIBIT B
Description of the Additi~nal Lands within The Villa~e Cat Avon~
WEST PARCEL
That part of the SE 114 NE 114 of Section 12, Township 5 South, Range 82 West of the Sixth
Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey and Survey
of said Township and Range, accepted September 7, 1977 by the Department of the Interior
Bureau of Land Management in Washington, D.C., together with that part of the W 1/4 of
Section 7, Township 5 South, Range 81 West of the Sixth Princip~ Meridi~, Eagle ~ou~~,
Colorado, according to the ~ependent Resurvey of said Towns~p and Range, accepte
November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C.,
both parts of said Sections lying north of Interstate Highway No. 70 and being described as a
whole as follows:
Beginning at the Northwest corner of said Section 7; thence the following two courses along the
northerly line of said Section 7: (1) N88"49'24"E 1412.90 feet, to the W 1/16 corner of said
Section 7 and Section6 of said Township 5 South, Range 81 West; (2) N88"49'24"E 1378.56
feet, to the 1/4 corner of said Sections 7 & 6; thence, departing said northerly line, the following
two courses along the easterly line of the NW 1/4 of said Section- 7; (1) SQUo11'12"E 1345.19
feet, to the 04 1/16 corner of said Section 7; (2) SOO"11'12"E~ 1275.81 feet, to the northerly
right-of-way line of Interstate Hi&way No. 70, as described in the orded in Book 223 at
Page 982in the office of the Eagle County, Colorado, Clerk and R thence the following
seven courses along said, northerly right-of-way line: (1) N70'24'51"W 2239.64 feet; (2) N89'42'21"W 211.9 feet; (3) N70°24'51"W 500.2 feet, to the commonnorth-south line of said
Sections 7 & 12; (4) N70'24'51''W 93.9 feet; (5) 393.3 feet along the arc of a curve to the right,
having a radius of 5550.0 feet, a centrqlr angle of 04"03'37", and a chord which bears
N68'23'02"W 393.2 feet; (61 W74"38'51"W 98.1 feet; (7) 274.54 feet along the arc of a curve to
the right, having a radius of 5565.0 feet, a centraI angle of 02"49'36", an&a chord which bears
N63O56'27'W 274.51 feet, to the northerly line of the SE, 1/4 NE 1/4 of saib Section 12; thence
S89"58'41"E 793.44 feet, along said northerly line, to the N 1/16 corner of sitid Sections 12 and
7; thence NOO"11'27"W 132k.54 feet, along the westerly line of said Section 7, to the point of
beginning, containing 138.34 acres, more or less.
STOLPORT
A parcel of land located in the E 1/2 of Section 12, Township 5 South, Range 82 West of the
Sixth Principal Meridian, the W 1/2 and the SE 114 of Section 7, Township 5 South, Range 81,
West of the Sixth Principal Meridian, and the SW 1/4 SW 1/4 of Section 8, Township 5 South,
Range 81 West of the Sixth Principal Meridian, all in Eagle County, Colorado, said parcel lying
southerly of the Interstate Highway No. 70 right-of-way line, northerly of the Denver and Rio
Grande Western Railroad right-of-way line and easterly of Final Plat - Amendment No. 4
Benchmark at Beaver Creek, according to the plat thereof recorded in the office of the Eagle
County, Colorado, Clerk and Recorder in Book 274 at Page 701, said parcel bein, * more
particularly described as follows:
. - - - - - - ___ - /a, 05/08/2002 01 : 13F B-1
135 R 375.00 D 0.00
il Sara J Fisher Easle, CO
Beginning at a point on the southerly right-of-way line of said Interstate Highway No. 70 whence
the North 1/4 corner of said Section 7 bears NlO"17'20"W 3308.72 feet; thence the following
twelve courses along said southerly n~t-of-way line:
(1) S70'22'43"E 43 1.20 feet;
(2) S68O23'13"E 333.80 feet;
(3) S5 l"44'13"E 352.60 feet;
(4) S24"13'13"E 96.20 feet;
(5) S45'43'43"E 203.80 feet;
(6) S37'16'13"E 327.70 feet;
(7) S32"40'43"E 164.70 feet;
(8) S50"10'13"E 210.60 feet;
(9) S38'45'13"E 521.50 feet;
(10) S69O45'43"E 670.90 feet;
(1 1) S80°21'43"E 654.70 feet;
(12) 335.72 feet along the arc of a curve to the right, having a radius of 1734.90 feet, a central angle of 11"05'14", and a chord that bears S72'08'02"E 335.19 feet to the easterly line of said
SW 1/4 SW 1/4 of Section 8;
thence SOO"OJ'OO"W 65.80 feet dong said easterly line to the southerly line of said Section 8;
thence.N89"32'28"W 529.28 feet along said southerly line to the northerly right-of-way line of
said Denver and €50 Grande;. Western Railxoad; thence the following twelve courses along said
northerly right-of-way line:
(1) angle of 03"44'42", and a chord that bears N79O30'09"W 132.89 feet;
(2) N68"37'48"W 527.88 feet;
(3) angle of 02"17'28", and a chord that bears N69'46'32"W 231.09 feet;
(4) S0Oo14'31"E 21.20 feet;
(5) angle of 1 1 "21'55", and'a chord that bears N76O32'02''W 1140.63 feet;
(6) N82"13'001.'W 1136.53 feet;
(7) angle of 16"42'10'!, and a chord that bears N73"51'55"W 546.1 1 feet;
(8) NOO" 12'23"W 22.04 feet;
(9) angle of 00"51'50", and a chord that bears N64"47'55"W 25.04 feet;
(I 0) N64"22'00"W 2363.48 feet;
(1 1) angle of 01"39'12", and a chord that bears N65"11'36"W 993.41 feet;
(12)
132.91 feet along the arc of it curve tcl the right, having a radius of 2033.48 feet, a central
23 I. I2 feet along the arc of a curve to the left, having a radius of 5779.70 feet, a central
1 142.50 feet. along the arc of a curve to the left, having a radius of 5759.70 feet, a central
548.06 feet along.the arc of a curve to the right, having a radius of 1880.00 feet' a central
28.04 feet along the arc of a curve to the right, having a radius of 1860.00 feet, a central
993.44 feet along the arc of a curve to the left, having a radius of 34427.50 feet, a central
N66"01'12"W 1260.13 feet to the easterly line of said Final Plat - Amendment No. 4
Benchmark at Beaver Creek;
thence NlS"56'36"E 996.58 feet along said easterly line to said southerly right-of-way line of
Interstate Highway No. 7'0; thence the following nine courses along said southerly right-of-way
line:
13
of 75
05/08/2Q02 01 : 13FBm2
135 R 375.00 D Q.00 /I Sara J Fisher Eagle, CO
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: April 3, 2013
Re: Post Boulevard Surge: Clean-up of Post Boulevard
At Tuesday’s meeting, I am requesting direction from Council as to the clean-up of Post Boulevard.
As you are aware, one key element of the Traer Creek settlement is the conveyance of Post Boulevard
infrastructure to the Town from the Traer Creek Metropolitan District. The improvements include the
street, sidewalks, lights and landscaping within two-feet of the sidewalk. The conveyance will occur
immediately upon the completion of all required settlement documents and the issuance of Traer Creek
bonds. Concurrent with the conveyance of the improvements, and additional .75% retail sales fee will be
collected on Village of Avon businesses for the Town of Avon. The fee is estimated to generate
$631,800 per year, with the first $120,000 being dedicated to the Asphalt Overlay Fund each year for
maintenance and improvements of the roadway. The remaining monies are available to maintain and
improve the other infrastructure and/or other Town needs.
While many settlement documents have moved to completion, five (5) documents are still in process,
including Nottingham Dam Easement Agreement, the Wet Well Agreement, Amendments to Traer
Creek Metropolitan District Service Plan, Amendments to The Village Metropolitan District Service Plan
and Closing Receipt and Escrow Agreement. Attorney Eric Heil’s Avon Village Settlement Update
addresses the status of these documents. Finalization of the documents is moving steadily forward, but
there is no known date as to when everything will be completed. The .75% add-on retail sales fee for
improvements will not be available in the next two to three months, a period of time when maintenance
to Post Boulevard should commence.
The Town’s Parks and Road and Bridge Divisions completed last month respective Work Plans for this
year. The effort was completed in order to ensure work is scheduled in a manner which manages the
work product in the most efficient manner; facilitates periods of time when the two Divisions need to
rely on shared labor, and to provide productive work periods when considering the demands on the
Divisions during Special Events. Anticipating the future conveyance of Post Boulevard this year, the
clean-up, planting and maintenance and operations of the street lights was planned into the Work
Plans.
With the unusual condition of Nottingham Lake not being available this summer, the Divisions identified
five (5) days within the period of April 15 – April 25th as a good time to clean-up Post Boulevard without
retaining outside contractors and to work around any inclement weather. The Divisions will not have
any available labor during the peak summer season of May through August because of the summer
special event season and existing maintenance responsibilities. The clean-up, known in-house as the
Post Boulevard Surge, includes the removal of dead plant material, cinders on the sidewalks and
cinders and debris in the landscaping – a necessary initial step to the longer term maintenance of the
areas. Street cinders are removed by the Town in its regular street sweeping program. The Town staff
also plans to work with TCMD in representatives in the next several months to test the irrigation water
system and to evaluate the street lamps for operational efficiency and needed repairs. New plantings
and use of irrigation water ideally would commence in September with funding from the .75% retail fee.
The costs of the clean-up include labor of $11,600, without benefits, and the cost of equipment time,
which has not been calculated. All costs are currently in the budget. A request of $5,800 has been
made to TCMD to share in the labor costs and to provide the requisite agreement allowing the Town to
do the cleaning, including indemnification and being named as an additional insured. At this time, TCMD
has responded that they are still reviewing the request and we anticipate hearing from them prior to
Council’s meeting.
Jeff layman, Eagle-Vail, has offered to assist with cleaning-up the US 6/Post Boulevard roundabout
during the Surge.
Town Parks and Road and Bridge Divisions are prepared to do the clean-up this spring, however, it is
Council’s decision as to whether this is work the Town wants done prior to full documents being
completed and receipt of the .75% retail sales fee in-hand. If Council prefers, the work will not be done
this April, but will commence once monies are available or reconsidered this fall. Depending on the
season, work will be done by Town staff to the greatest degree possible with outside contractors or
temporary workers ($12,520+equipment) being retained for the initial clean-up. Work in the fall would
most likely delay plantings until 2014.
In conclusion, the benefit of cleaning-up Post Boulevard this spring is obvious. The dedication of Town
resources without the benefit of the finalization of the settlement agreement and .75% retail sales fee is
the determinant question before Council.
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Virginia Egger, Town Manager
Date: April 4, 2013
Agenda Topic: 1st Quarterly Report on the 2013-14 Strategic Plan & 2013 Work Plan & Recommended
Amendments to 2nd Quarter
Please find attached Council’s adopted 2013-14 Strategic Plan & 2013 Work Plan [Strategic Plan], including a
progress report on the 1st Quarter actions and recommendations for changes to the 2nd Quarter program [see
bullet points in each section].
1st Quarter Work Plan Review
I think you will find the 1st Quarter, while ambitious, has largely been completed. This is important as several of
the Strategic Plan elements rely upon 1st Quarter work being accomplished.
What is not apparent in the 1st Quarter Report is the other project work, beyond day-to-day responsibilities.
This includes, but is not limited to a comprehensive review of capital projects in preparation for the 2014
budget and office and facility clean-up (to be completed by the end-of-the-year).
2nd Quarter Work Plan
A review of the scheduled work in the 2nd Quarter indicates most work is can be accomplished. Moving several
planned work activities in Economic Development are now recommended for the 3rd Quarter.
After the Council adopted the Strategic Plan, the Upper Eagle Valley Water Authority requested some changes
to the priorities and timing of work planned with the Authority. The changes, now reflected in this Strategic
Plan are:
• Moved from 2nd Q to 4th Q - Evaluate and remediate liability concerns, if any, for Avon Drinking
Water Facility fenced area with the Water Authority.
• Moved from 4th Q to 2nd Q - Schedule review of Authority Agreement with Council and Water
Authority representatives to begin identifying and developing solutions for needed amendments;
plan to adopt changes no later than November 2014.
The review of the Authority Agreement seems ambitious among the other planned Water Issues work, but I
assume if the Authority is prepared to begin this work, Avon will work with them.
Finally, Since adopted, other important major work has been identified. Council direction is requested as to
whether you wish to also proceed on the following work:
1. At the March Liaison meeting with Traer Creek Metro District representatives, Councilors Fancher and
Dantas were asked if the Town would join them in creating a Parking and Transportation Task Force to
master plan the Town of Avon, including the Village at Avon, to Beaver Creek for this critical system.
Since then, Beaver Creek representatives have been asked and they have indicated interest, if they
would also participate.
From a planner’s perspective, having a well-planned parking and transportation plan is the most
important element of land use planning. All modes of transportation are included for the movement
of vehicles, bicycles and pedestrians. Bringing stakeholders together to work on this system, prior to
Traer Creek development and new development/redevelopment in Avon seems a high priority. If
Council concurs, I, with the planning staff, recommend a Task Force be appointed and be an integral
group participating in the Comprehensive Plan update. A recommendation on functions and
stakeholder’s can be provided at your April 23rd meeting.
2. The approval of the Wyndham Hotel necessitates the evaluation of how Lettuce Shed Lane, the
currently planned mall improvement and potential Main Street improvements interface with the Hotel
and surrounding uses. It is an important moment to ensure for the planning of future improvements.
The review of this area, leads to the important decision in regards to use of the Recreation Center land
– parking structure or expansion of the facility – which, leads to an interest in how Town properties
will be located in the future, including Lot 5 and Town Hall. The Town of Avon has done much good
planning. The recommendation is that Council takes time to review the plans, and prior to mall
improvements planned for 2014, evaluate all properties, including the prior Main Street plan, and
potential uses. A site walk would be scheduled for May 14th, with staff summarizing the properties
and offering a range of scenarios for discussion.
Summary: It is important that each staff person is fully employed, but most importantly is that we are working
on the right projects for the Town of Avon. I look forward the 1st Quarterly Review and discussion of the 2nd
Quarter work to ensure that we are working on the right projects.
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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1st QUARTER UPDATE
APRIL 9, 2013
2013-14 STRATEGIC PLAN
2013 WORK PLAN
Adopted by the Avon Town Council
Resolution 13-05, Series of 2013
February 26, 2013
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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Overview
The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths
to become a nationally and internationally recognized year-round mountain resort community. Committed
to providing a high level of municipal services for our citizens and visitors, and the stewardship of our natural
resources, Avon will expand its cultural, recreational and educational offerings in partnership with our
broader community and regional public and private sector agencies, thereby ensuring sustained economic
vitality and a vibrant community experience.
Recent resort-oriented accommodations projects in Avon are of a higher standard than the Town attracted
at its founding and in its early years. It is this superior level of quality development that Avon believes will be
its comparative advantage in the future, and, therefore, will work to attract and promote these types of
developments by ensuring Town plans and incentives are constructed in a manner which provides the
development community clear and timely information; and by steadfastly maintaining a professional and
solution-oriented municipal business.
The Town will continue to value and support our full-time and part-time resident population by providing an
exceptional level of municipal services and by working to retain existing businesses as the Town seeks to
expand its retail and commercial base, while fostering our sense of community through both our spirit and
the built environment. The importance of vibrancy and activity within the Town will be supported by
attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the
values of our community and serve to nurture a cohesive sense of place and public.
It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and
efficiency in providing government services and a practiced belief in open and transparent governance that
will lead the successful implementation of this vision for the growth and development of Avon.
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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Strategic Plan Fiscal Years 2013 - 2014
Tier 1 Priority: Fiscal Year 2013
1) Develop Business-like Practices and Culture of Town Hall – Ensure that Town government is operated as
a “competitive” business and in a manner which is client-focused and solution-oriented, meeting the
highest standards of fiduciary responsibility, implementing best practices, and using Town resources
effectively and efficiently in every department.
Tier 2 Priorities: Fiscal Year 2013
2) Economic Development – Ensure that the Town of Avon is prepared for new development and re-
development. Evaluate Urban Renewal Authority expansion and other incentives to promote quality
development of a high standard; update the Avon Comprehensive Plan as needed and work closely with
the Planning and Zoning Commission to understand respective roles so that developers have a good
sense of what can and what cannot be negotiated.
3) Village at Avon Partnership – Meet with representatives of the Village at Avon and the Traer Creek
Metropolitan District to develop understandings and trust necessary for the future development of the
Village. This outreach and communication is the responsibility of all elected and appointed officials and
the employees of the Town of Avon.
Tier 2 Priorities: Fiscal Years 2013-2014
4) Special Events – Identify near term opportunities for special events and develop a longer term special
events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts
and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate.
5) 2015 World Alpine Championships – Planning for all three phases of this internationally renowned event
must be initiated: 1) Pre-event promotion and marketing; 2) Stellar events and promotion of Avon as a
place to return to need to be produced during the event; and 3) Post-event requires a follow-up
promotional plan to encourage and/or book guest return visits.
Tier 3 Priorities: Fiscal Years 2013- 2014
6) Water Issues – Identify water issues and develop a timetable and approach for resolution over the next
year or two; manage what can be done against higher priorities.
7) Transit Consolidation – Avon should be a leader in working to provide a consolidated transit operation in
the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus
planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative
partnership.
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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2013 Work Plan
Develop Business-like Practices and
Culture of Town Hall
Tier 1 Priority: Fiscal Year 2013
Leader: Mayor Rich Carroll
Staff: Town Manager Virginia Egger
Ensure that Town government is managed and operated as a “competitive” business and in a manner which
is client-focused and solution-oriented, meeting the highest standards of fiduciary responsibility,
implementing best practices, and using Town resources effectively and efficiently in every department.
1st Quarter January – March 2013
1.1 Develop Core Values and Cultural Statement with Staff; implement with orientation session and on-going
team building exercises
• During January and February all employees were invited to meet with the Town Manager to share
ideas and concerns.
• Representative ad hoc group of 14 employees reviewed the themes which came out of the meetings
and developed a draft Cultural Statement, which was distributed to all staff on March 25th
• Meetings are set the first two weeks of April for staff review and comment
• A final Cultural Statement will be completed based upon these comments and staff will be asked
what training they believe is needed to implement the Cultural Statement, with sessions being
developed and implemented with at least one session each quarter
1.2 Determine organizational structure and staffing for Public Works, Recreation and Community
Development Department prior to recruiting vacant Director positions, assessing whether the
position(s) should be filled; implement decisions
1.3 Recruit and hire for Director vacancies based upon final organizational plan
• Parks and Recreation Department formed; with Parks moving to the Recreation Department it was
determined that Fleet, Transit and Road and Bridge are discreet divisions with little cross-over
supervisory requirements, therefor, the Public Works Department position will remain vacant.
• Determination was made that Community Development Director should remain vacant due to
current low application demand and that current staff is capable of taking on managerial duties with
training and mentoring by the Town Manager. A Planning Technician job was created and filled with
existing staff, which included reduced hours for GIS; Community Development planner positions
were evaluated with a Senior Planner position being established with general supervisory
responsibilities for the Department.
• Offices relocation plan was developed and implemented with final relocation of Building Division to
Fleet Mezzanine to occur in early May
1.4 Evaluate and establish IT priorities – provide a rigorous review of cost-benefit for proposed
improvements and carry-out a mandate for efficiency
• Department Heads met in January and identified all IT demands and established Laserfiche
implementation as the highest priority; Police Sleuth and eticket software changes deferred until
complete interfaces completed with outside agencies. Other priorities:
• Phone system bids distributed and cell service coverage evaluated; recommendation next week
• Finance Department Evaluations underway: automating payroll and business license functions, including
credit card payments
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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• Email archiver research underway; common work order system & meeting scheduler applications being
reviewed
• Software inventory being completed
1.5 Finalize work plans for all departments for seasonal and 2013 budget goals, including new maintenance
plans for Village at Avon improvements
• Work Plans completed
• Village at Avon work plan for improvements completed; implementation requires completion of
settlement documents and bond issue and working with Traer Creek to evaluate irrigation and electrical
systems
2nd Quarter April – June 2013
2.1 Complete a comprehensive review of all Town departments to assess the necessity of tasks and
functions, effectiveness and efficiency in meeting department responsibilities, staffing levels, and future
needs; present to Town Council
2.2 Develop budget process and schedule for Council approval; evaluate developing 2 – 3 year General Fund
budgets
2.3 Staff training on “competitive” business practices and fiduciary responsibility
2.4 Complete all Village at Avon implementing documents
3rd Quarter – July – September 2013
3.1 Hold Council Retreat to evaluate and amend 2013-14 Strategic Plan and 2013 Work Plan, as needed
3.2 Review and update Asset and Capital Five Year Plans
3.3 Mid-year 2013 budget review and amendment, if needed
4th Quarter October – December 2013
4.1 Review and update Strategic Plan
4.2 Budget preparation, hearings and adoption
4.3 Prepare 2014 Work Plans
2013 Work Plan
Economic Development
Tier 2 Priority: Fiscal Year 2013 & 2014
Leaders: Economic Development Subcommittee Councilors Todd Goulding and Chris Evans
Staff: Town Manager Virginia Egger, Community Development and Finance Department Staff
Ensure that the Town of Avon is prepared for new development and re-development. Evaluate URA expansion and
other incentives to promote quality development of a high standard; update the Comprehensive Plan as needed and
work closely with the Planning and Zoning Commission to understand respective roles so that developers have a good
sense of public benefit expectations, incentives and minimum development requirements for critical project elements,
such as parking.
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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1st Quarter January – March 2013
1.1 Develop a land development “tool box” which identifies appropriate incentives and a regulatory framework to
support and partner with land developers and the building community. This will encourage the project standards
and reasonable surety for developments to create and permit projects in a manner that respects the time-value of
resources.
• PZC identified areas for Code improvement
• Work just commencing. For 2nd Q: From the April 4th session with Councilors Evans and Goulding and
staff:
o Collect primary and secondary sources of data, which can be used to measure and guide
economic development efforts
o Research other successful Economic Development programs; structure and funding
o Research branding efforts: Stakeholder’s, process, cost, timeframe, what initial work should
Avon do prior to a branding effort
o Goals of a Town of Avon economic development effort: In 3-5 years turn-over to a NGO, identify
a single point of contact
• Successful schedule and timely review of Wyndham project
2nd Quarter April – June 2013
2.1 Evaluate expansion of URA into other qualified areas of Avon
• Move to 3rd Quarter
2.2 If URA expansion is desirable, solicit RFQ and identify budgetary needs
• Move to 3rd Quarter
2.3 Host a business summit for existing businesses to listen to how the Town of Avon can support business vitality
Define and implement the Town “brand”
Evaluate the benefit of a business survey; and
Create action plan with the business community
• Move to 3rd Quarter if needed
2.4 Review and update the Town’s Private-Public Partnership Policy and investment Policy, as needed.
• Move to 3rd Quarter if needed
2.5 Evaluate and select data base and revenue software/spreadsheet system to assist with statistical analysis of key
metrics identification in collaboration with Avon businesses and regional economic development committees;
understand the demographic characteristics of visitors to the region
2.6 Identify with the Planning and Zoning Commission: 1) Elements of the Comprehensive Plan, and, as appropriate,
area specific and service plans, such as the District Plans and Transportation Plan, which should be amended to
meet the current vision of the Town; and 2) Code amendments, including “clean-up” of definitions, charts, etc.
identified through use of the Code over the past year and sections which should be updated, and sections which
should be updated, such as the sign code.
2.7 Develop the scope, public process, including possible Community Survey, and schedule for commencement and
completion of the Comprehensive Plan Update.
2.8 Negotiate and finalize multi-year Comcast Franchise Agreement
3rd Quarter – July – September 2013
3.1 Complete URA expansion, if being pursued
3.2 Commence Comprehensive Plan Update.
2.9 Commence Municipal Code clean-up amendments, including functional review of the regulatory process to ensure
applications meet the Comprehensive Plan and land use codes and provide a review process that is substantive, not
unnecessarily duplicative or unreasonably lengthy. Assess the delegation of decision-making authority to meet the
Town’s client-focused and solution-oriented mandate.
4th Quarter October – December 2013
4.1 Complete Comprehensive Plan Update
4.2 Complete Code Clean-up
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4.3 Commence work on other prioritized updates for specific land use plans, such as East Avon, Transportation
Development, etc.
4.3 Evaluate opportunity for a “sister city/ international city” partnership
2013 Work Plan
Village at Avon Partnership
Tier 2 Priority - 2013
Leaders: Traer Creek Liaison Appointees Dave Dantas and Jennie Fancher
Staff: Town Manager Virginia Egger, Public Works, Parks,
Community Development and Engineering Staff
Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop
understandings and the trust necessary for the future development of the Village. This outreach and
communication is the responsibility of all elected and appointed officials and the employees of the Town of
Avon.
1st Quarter January – March 2013
1.1 Complete Settlement documents which require execution by the Town of Avon; continue to assist and
advise on other document approvals, as appropriate, to complete all Settlement agreements.
• In process
1.2 Collect, consolidate, organize and prepare action summaries of all Village at Avon documents,
agreements and assignments within Town Hall. The Community Development Department will be the
primary contact and responsible party for understanding and managing the Village at Avon settlement
agreements once finalized by Town Council.
• 90% complete; final collection of documents to be finalized by April 19th
1.3 Meet with Village at Avon districts to review infrastructure responsibilities and processes for design
approvals; communicate maintenance plan for FY 2013
• Completed
1.4 Liaison Appointees and appropriate staff will meet in a general overview session in January and March to
discuss current issues and future opportunities
• Completed
• At March meeting TCMD requested the formation of a Parking and Transportation Task Force to master
plan their property and the Town’s systems to Beaver Creek
• At the same meeting, the Town requested partnership to clean-up Post Blvd. in April and work on
irrigation and electrical systems
2nd Quarter April – June 2013
2.1 Liaison Appointees and appropriate staff will meet in a general overview session in May and June to
discuss current issues and future opportunities
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
1st Quarter Review – April 9, 2013
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2.2 Assist as appropriate to complete Water Tank design and Water Authority bond issue
2.3 Identify and request, as determined, use of Traer Creek property for 2013 special events
3rd Quarter – July – September 2013
3.1 Liaison Appointees and appropriate staff will meet in a general overview session in August to discuss
current issues and future opportunities
3.2 Upon completion of bond issue, Settlement document completion and escrow release, begin Village at
Avon infrastructure clean-up and maintenance
3.3 Identify and request, as determined, use of Traer Creek property for 2014 & 2015 World Alpine
Championships
4th Quarter October – December 2013
4.1 Liaison Appointees and appropriate staff will meet in a general overview session in October and
November to discuss current issues and future opportunities
2013 Work Plan
Special Events
Tier 2 Priority – Fiscal Years 2013-2014
Leaders: Councilors Jake Wolf and Buz Reynolds
Staff: Town Manager Virginia Egger and Parks and Recreation Staff
Identify near term opportunities for special events and develop a longer term special events strategy. In
March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events
Commission to lead this effort for the Town. Be spontaneous, when appropriate.
Beaver Creek Resort, with its recreational and cultural activities, is an important economic driver of the Avon
economy, offering a vast array of amenities which add to the richness of the day-to-day life of Avon
residents, the community and tourists. Avon will work closely to further build the relationship with Beaver
Creek Resort Company and Vail Resorts that supports business brands, the tourist economy and community
offerings, including but not limited meeting the transportation, security and amenity needs of a mature
resort and community.
1st Quarter January – March 2013
1.1 Town Leaders and appropriate staff meet in March to: 1) Identify opportunities and tasks to increase
special events for 2013; 2) Evaluate establishing a Cultural, Arts and Special Events Commission to
promote and assist with the production of recreational, cultural, educational and social events
• 2013 Special Events identified; on April 23rd Council agenda
• No recommendation is yet ready on a Commission because focus in first Q was on information gathering
and timely planning of 2013 Events
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1.2 Evaluate success of Fire & Ice, including recommendation for continuation of the event or variation
• On April 23rd Council agenda
2nd Quarter April – June 2013
2.1 Implement actions for Summer 2013 new Special Events, if any
2.2 Implement a process to identify, solicit, produce and to evaluate the value (spending, ROI, community
interest) Special Events: the goal is to develop a strategic plan to grow Special Events next Five Years
3rd Quarter – July – September 2013
3.1 Implement actions for Fall 2013 new Special Events, if any
3.2 Draft Special Events Strategic Plan for FY 2014-15, with Cultural, Arts and Special Events Commission, if
formed
4th Quarter October – December 2013
4.1 Implement actions for Winter 2013 new Special Events, if any
4.2 Budget for 2014 Special Events
2013 Work Plan
2015 World Alpine Championships – February 3 – 15, 2015
Tier 2 Priority: Fiscal Years 2013-2014
Leader: Mayor Rich Carroll and Mayor Pro Tem
Staff: Town Manager Virginia Egger, Transportation,
Police and Parks and Recreation Staff
Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event
promotion and marketing; 2) Production of stellar events and promotion of Avon as a place to return to
need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to
encourage and/or book guest return visits.
1st Quarter January – March 2013
1.1 Identify Town staff participation to date and current participation activities
• Completed
1.2 Meet with Vail Valley Foundation Ceil Folz to connect and commit Avon to support of the event and
opportunities within Avon
• Completed; Town Manager added to Festivals Committee
• Councilors Fancher and Reynolds advocated for activities in Avon; Festival Committee has identified large
building ice sculptures, music and food, which are identified now in Festival Plan
• Requires continual promotion by the Town to complete plan as identified in 2nd Q
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1.3 Meet with representatives of Avon lodging community to discuss opportunities for 2015
• Did not occur; may be better timed in 2nd Q
2nd Quarter & 3rd Quarter – April – September 2013
2.1 Develop comprehensive action plan for special events, marketing, logistics, security, sponsorship,
partnerships
2.2 Commence implementation
2.3 Evaluate value of promotional video and social media in marketing Avon
4th Quarter October – December 2013
4.1 Continue implementation of plan
4.2 Update, as needed, mall improvement plans and be fully ready for bid and construction in 2014
2013 Work Plan
Water Issues
Tier 3 Priority: Fiscal Years 2013-2014
Leaders: Mayor Rich Carroll and Councilor Todd Goulding
Staff: Town Manager Virginia Egger,
Engineering Staff and Special Water Counsel
Identify and water issues and develop a timetable and approach for resolution over the next two years; manage what
can be done against higher priorities.
1st Quarter January – March 2013
1.1 Join the Upper Eagle River Water Authority in a “Water Summit” to identify all issues and develop a timetable and
project approach for addressing issues on a prioritized basis. Seek to resolve all issues by November 1, 2014.
• Issues, timetable and prioritization completed
1.2 Organize water and wastewater documents and files at Town Hall; institutionalize knowledge.
• 90% completed; final electronic organization to be done by April 30
1.3 Hannewald Barn – Community Development Department to provide a report to Town Council at its March 26th
work session regarding the historic preservation status of the barn and restrictions, if any, to relocation; report on
historic and relocation status by April 1st to the ERWSD.
• Completed with direction by Council in regards to allowing time for interested parties to find a
relocation site and funding
• Update planned for April 23rd Council meeting
1.4 Begin in March with the Water Authority, Avon representatives and Mountain Star residents the identification and
resolution of the Mountain Star water tank, fire flow, irrigation and system delivery issues. Seek to resolve these
important matters in a timely manner.
• Town and Authority working group finalizing information and solution recommendations
• Late May session set with Mountain Star representatives
2013-2014 STRATEGIC PLAN & 2013 WORK PLAN
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1.5 As requested by the Water Authority, review and take action on March 12th on water rate increase for 2013 bond
improvements.
• Completed
2nd Quarter April – June 2013
2.1 Evaluate water counsel role and responsibilities; execute special water counsel retention agreement.
2.2 Contact Urban Run-off Group to request Avon Executive Committee appointment. Participate with the Group to
understand activities and possible 2014 funding request for a Gore Creek Water Quality Improvement Plan.
2.3 With the Water Authority, beginning in early May, develop an understanding of how water rights and water use are
accounted for and develop a process for future transactions.
2.4 Schedule review of Authority Agreement with Council and Water Authority representatives to begin identifying and
developing solutions for needed amendments; plan to adopt changes no later than November 2014.
3rd Quarter – July – September 2013
3.1 Draft and execute an agreement with the ERWSD for long term cost sharing and O&M responsibilities of the Heat
Recovery System.
3.2 Review Town and ERWSD 2002 Recreational Path Berm maintenance agreement; meet with ERSWD to decide on
appropriate improvements and maintenance: incorporate in Avon’s 2014 budget.
3.3 In September, review the basis for the Avon’s water fees, which are assessed in addition to those tap fees and
operational fees assessed by the Water Authority.
4th Quarter October – December 2013
4.1 Schedule 1) ERWSD presentation of its 20-year wastewater infrastructure master plan, including possible rate
increase needs and Town’s 1041 requirements; and 2) Water Authority and ERWSD presentation on Eagle Mine’s
metal loading issues on the Eagle River.
4.2 Evaluate and remediate liability concerns, if any, for Avon Drinking Water Facility fenced area with the Water
Authority.
4.3 Schedule with the Water Authority work plans for 2014 issues:
4.3.1 Resolve Avon Drinking Water Facility fenced area for ownership and/or lease to the Water Authority.
Deadline for resolution: September, 2014
2013 Work Plan
Transit Consolidation
Tier 3 Priority – Fiscal Years 2013-2014
Leaders: Councilors Buz Reynolds and Jake Wolf
Staff: Town Manager Virginia Egger,
Public Works Director and Transit Division Staff
Avon should be a leader in working to provide a consolidated transit operation in the valley. With
negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015
World Cup, begin to build on these opportunities for a longer term cooperative partnership.
1st Quarter January – March 2013
1.1 Update cost estimates for vehicle storage at I-70 RTF
1.2 Update draft agreement for storage
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1.3 Develop marketing plan for I-70 RTF storage and Fleet Services
• In process, Term Sheet will be presented to Council on April 23rd
1.4 Finalize use and contracting of grant funds remaining for Transit: $130,000
• Purchasing replacement van – 24 seats
1.5 Finalize decision on use of $600,000 grant funds for I-70 RTF construction
• Council approved mezzanine construction; design completed including offices for Road and Bridge
1.6 Council direction on AGS participation
• After CDOT presentation, direction was to pursue station; Mayor has sent letter and staff attending
meetings
1.7 Throughout the year, fully participate in regional transportation and parking forums and in CDOT I-70
corridor planning
• Participating in these meetings, both elected and appointed officials
2nd Quarter April – June 2013
2.1 Finalize negotiations and lease with ECO Transit for I-70 RTF storage
2.2 Market to other potential clients for bus/vehicle storage and Fleet Services
2.3 Evaluate transit services for FY 2014 and opportunities for regional efficiencies
2.4 As appropriate, participate in Regional Collaboration efforts on transit
3rd Quarter – July – September 2013
3.1 Finalize I-70 RTF lease agreements for 100% year-round occupancy
3.2 Assess demographic characteristics of bus riders and how best to disseminate information about transit
service and about the Town
4th Quarter October – December 2013
TBD