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10-27-1998 Confluence and Tract C(1(a5, Final 10/27/98 DEVELOPMENT AGREEMENT Confluence and Tract C THIS DEVELOPMENT AGREEMENT (this "Agreement') is made and entered into as of October 27, 1998 by and between Vail Associates Investments, Inc., a Colorado limited liability company (hereinafter "Owner "), Avon Commercial Center Ltd., a Colorado limited partnership, Shapiro Development Co., general partner, or assigns (hereinafter "Shapiro ") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town "). RECITALS A. Owner is a limited liability company, duly organized and in good standing under the laws of the State of Colorado. Shapiro is a Colorado limited partnership, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property conditionally annexed to the Town and generally referred to as the "Confluence" as more particularly described in Exhibit A -1 attached to this Agreement (the "Confluence "). In addition, Owner owns a parcel of real property in the Town generally known as "Tract C" as more particularly described in Exhibit A -2 attached to this Agreement ( "Tract C "). Shapiro owns a parcel of real property in the Town generally known as "Tract B" as more particularly described in Exhibit A -3 attached to this Agreement. C. Owner desires to develop the Confluence and Tract C as mixed use developments (the parcels referred to collectively as the "Property ") which may include, among other uses, lodging, restaurant, retail, parking, public facilities, open space, office, commercial, conference center and other uses. Shapiro desires to develop Tract B pursuant to the terms of a separate agreement and desires to avail itself of the provisions of Article V of this Agreement to aid in such development for the benefit of the Town and Shapiro. D. A condition of annexation of the Confluence was the successful negotiation of a "Development Agreement" concerning the development of the Property, failing which, the Confluence shall be disconnected from the Town. A significant element of the negotiations affecting the Property is the zoning of the Property for which Owner has submitted a Zoning Application to the Town for the Confluence and a separate Zoning Application for Tract C. The Town and Owner acknowledge that this Development Agreement properly addresses matters related to Tract C and Tract B notwithstanding that execution hereof is a condition to annexation of only the Confluence. E. The Town has authority to zone and govern development of the Property in accordance with this Agreement, the Comprehensive Plan, the Confluence PUD, the Tract C PUD (as such terms are defined herein), the Municipal Code, and other applicable Town requirements and polices. Furthermore, the Town has authority to agree to the vesting of property development rights concerning the Property, the creation of special districts to provide public facilities relating to the Property, the rebate of sales and other taxes which would normally be collected as a result of taxable activities occurring on the Property and on Tract B and the 749431 Page: 1 of 33 L 05 Sara Fisher Eagle Cty, CO 23 R 165 00 D00,004 04 40P Final 10/27/98 granting of tax credits to assist with the equitable sharing of costs associated with development of public facilities. F. The Property and Tract B are expected to contribute substantially to the economic growth of the Town and consequently will increase future tax revenues to the Town. The Town desires to satisfy the condition of annexation of the Confluence by execution and performance of this Development Agreement affecting the Confluence, Tract C and Tract B in order to provide for orderly growth in and around the Town and to increase its tax revenues. Owner, Shapiro and the Town desire to provide for a tax rebate mechanism so that Owner and Shapiro may use the rebate revenues or other fees imposed in lieu of taxes to assist in financing the public facilities that will be required by the Property and Tract B which will benefit the Town. G. The Town may agree to rebate taxes to the Districts subject to discretionary annual budget appropriations by the Town which, if not made by the Town, will substantially impair the ability of Owner to develop the Property, will substantially impair the ability of Shapiro to develop Tract B, and which failure to appropriate shall be deemed to be a failure of a condition to annexation of the Confluence resulting in a contractual right of Owner to disconnect the Confluence from the Town. H. The legislature of the State of Colorado adopted Sections 24 -68 -101, et seq. of the Colorado Revised Statutes (the "Vested Property Rights Statute ") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment- backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning; said Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. L Consistent with the Vested Property Rights Statute, Chapter 17.14 of the Municipal Code authorizes the Town to enter into development agreements with landowners and other qualified applicants providing for the vesting of property development rights. I Development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment - backed expectations of Owner, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and Chapter 17.14 of the Municipal Code were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the orderly development of the Property, Owner desires to receive the assurance that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. K. The Town's authority to enter into this Agreement stems from the power vested generally in Colorado municipalities to address matters of local concern by contract, ordinance 749431 Page: 2 of 33 02/0512001 04 40P 2 ara Fisher Eagle Cty, 00 23 R 165 00 D 0 00 Final 10/27/98 or otherwise. Because the Town of Avon collects its own taxes, it also has authority to rebate taxes collected or grant credits to taxpayers for fees collected by Owner and Shapiro within certain geographical areas. Further, the Town may allow Owner or qualified non - profit corporations to collect such fees. Because such fees will not be collected by the Town and will not derive from the Town, and because all rebates due hereunder shall be subject to annual budget appropriation, the rebate of taxes by the Town, the grant of tax credits by the Town, and the collection of fees by qualified corporations in lieu of such taxes shall not be multiple fiscal year contractual undertakings of the Town and shall not be a tax policy change directly causing a net tax revenue gain to the Town which would otherwise require electoral approval. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS 1.0 Definitions. The following terms and references shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Affordable Housing. Housing where the occupant is paying no more than 30% of gross income for gross housing costs, including utility costs. 1.2 Annexation Agreement The conditional Annexation Agreement affecting the Confluence Parcel approved by the Town on August 25, 1998, a copy of which is attached to this Agreement as Exhibit B. 1.3 Confluence. The parcel of unimproved real property described on Exhibit A -1. 1.4 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town on November 5, 1996, 1.5 Development Standards. As defined in Section 3.2. The Development Standards pertaining to the Confluence are attached hereto as Exhibit C -1 and the Development Standards pertaining to Tract C are attached hereto as Exhibit C -2. 1.6 Districts. Shall mean Confluence Metropolitan District and Avon Station Metropolitan District approved by the Town to serve the Property and Tract B. 1.7 Dwelling Unit. As defined in Section 17.08.270 of the Municipal Code. 1111111 VIII1111111 VIII VIII I�III VIII I 749431 Page: 3 of 33 02/05/2001 04 :40P Sara Fisher Eagle Cty, Co 23 R 165.00 D 0.00 3 Final 10/27/98 1.8 Effective Date. The effective date of the Town Council ordinance approving this Agreement. 1.9 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A -1 Legal Description of the Confluence Exhibit A -2 Legal Description of Tract C Exhibit A -3 Legal Description of Tract B Exhibit B The Annexation Agreement Exhibit C -1 The Development Standards for the Confluence Exhibit C -2 The Development Standards for Tract C 1.10 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Municipal Code Ch. 3.28 or any similar code provision enacted during the Term of this Agreement upon any sales or rental of lodging within the Property and Tract B. III l Mall. Avon Town Center Mall established by Ordinance 81 -11. 1.12 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.13 Pro e . The Tract C property and the Confluence property. 1.14 PUD. Planned unit development or PUD, as such terms are defined and used in the Municipal Code. 1.15 Real Estate Transfer Tax. For purposes of this Agreement, Real Estate Transfer Tax shall mean any municipal real estate transfer tax imposed by the Town pursuant to Municipal Code Ch. 3.12 or any similar code provision enacted during the Term of this Agreement upon sales of time share units within the Property and Tract B. 1.16 Sales Tax. For purposes of this Agreement, Sales Tax shall mean any municipal sales tax imposed by the Town pursuant to Municipal Code Ch. 3.08 or any similar code provision enacted during the Term of this Agreement upon furnishing of rooms or accommodations within the Property and Tract B. 1.17 Sanitation District. Eagle River Water and Sanitation District. 1.18 Subdivision Improvement Agreement. An agreement guaranteeing the construction of public improvements for the Property pursuant to Title 16 of the Municipal Code. 749431 Page: 4 of 33 02/05/2001 04:40P Sara Fisher Eagle Cty Co 23 R 165.00 D 0 .00 E Final 10/27/98 1.19 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.20 Town Council. The Town Council of the Town. 1.21 Tract B. The real property described in Exhibit A -3 attached hereto. 1.22 Tract C. The parcel of unimproved real property described on Exhibit A -2. 1.23 Vested Pro e�M Rights Statute. As defined in Recital H above. 1.24 Zoning. Formal and final passage of an ordinance and/or resolution by the Town Council confirming a zoning designation on a parcel of land as provided in the Municipal Code. Such final passage shall be deemed to occur after the passage of any statutory or common law period for the filing of a petition for referendum to reverse or nullify such zoning ordinance. 1.25 Zoning Application. The separate zoning applications for each parcel comprising the Property, ARTICLE H CONDITIONS PRECEDENT; COVENANTS; THIS AGREEMENT 2.1 Condition Precedent. Annexation of the Confluence to the Town was accomplished pursuant to Ordinance No. 98 -18and Resolution No. 98 -54, and the Annexation Agreement which specifically provided that said annexation would be conditional and subject to disconnection until this agreement is executed and effective. The parties hereto agree that annexation of the Confluence was in all respects in accordance with the Town charter and the Colorado Municipal Annexation Act of 1965 as amended (C.R.S. §§ 31 -12 -101, et seq.). The condition of annexation of the Confluence shall not be deemed to have been satisfied until Zoning of the Property pursuant to Article III of this Agreement has been completed and thereafter shall be deemed to have not been fully satisfied if the Town fails or is prevented in any way from making rebate payments or granting tax credits as set forth herein. Until Zoning pursuant to Article III of this Agreement has been completed, this document shall constitute an offer by Owner and the Town to enter into this Agreement (notwithstanding the parties' mutual execution and delivery of this document) and the condition to annexation of the Confluence to the Town shall not be deemed satisfied. Consequently, at any time before such condition is satisfied, Owner or the Town may withdraw the offer to enter into this Agreement. If either parry withdraws its offer to enter into this Agreement, this Agreement shall be deemed void and of no force or effect, the Confluence shall be deemed not annexed to the Town and shall be immediately disconnected, and the vested property rights described in this Agreement shall be deemed not established. 2.2 Term. In recognition of the size of the development contemplated under this Agreement, the substantial investment and time required to complete the development of the 749431 I 02 page: 5 / 2001 C4340P 5 -ara Fisher Eagle Cty 00 23 R 165.00 D 0.00 Final 10/27/98 Property, the potential for phased development of the Property, and the possible impact of economic cycles and varying market conditions during the course of development, Owner and the Town agree that the term of this Agreement and the vested property rights established under this Agreement shall commence on the Effective Date and shall continue until the 35th anniversary of the Effective Date. References to the Term of this Agreement and the vesting of property rights in the proceeding sentence shall not be deemed to limit or otherwise affect the rights of the Town described in Section 6.2 to initiate or pursue dissolution of the Districts. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however that such termination shall not effect (a) the annexation of the Confluence to the Town; (b) any common -law vested rights obtained prior to such termination, or (c) any right arising from Town permits, approvals or other entitlements for the Property which were granted or approved prior to, concurrently with, or subsequent to the approval of this Agreement and the Development Standards. 23 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice and public hearing procedures required for approval of this Agreement. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. Any amendment to any provision of this Agreement which affects Shapiro's rights to rebates or tax credits hereunder shall require Shapiro's written consent. 2A Cooperation in Defending•_ Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. Each parcel comprising Confluence and Tract C shall be zoned as a separate PUD as provided in this Agreement and in their respective Development Standards. 12 Development Standards and Phasing. (a) Development Standards. The "Development Standards" set forth the guidelines for development of the Property are approved by the Town as the zoning for the Property, and indicate, among other things, set back distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Property. 749431 1111111111111111111 111�1 111111111111111111111111111 �111 Page: 6 of 33 02!0512001 04 :40P Sara Fisher Eagle Cty CC 23 R 165.00 D 0.00 0 4 Final 10/27/98 (b) Subsequent Development Approval. After PUD Zoning of the Property pursuant to Section 3.4(a), Owner and the Town shall enter into a development plan approval process, pursuant to which Owner and the Town shall, in a manner which is uniform with and similar to other phased development approvals of the Town (and consistent with the provisions of Section 3.4(d)) further refine the Development Standards and designate site plans, PUDs and other details, including an approved Subdivision Improvement Agreement, all consistent with the Development Standards and this Agreement (collectively, "Subsequent Development Approval." 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards constitute an approved "site- specific development plan" as defined in the Vested Property Rights Statute and Section 17.14.100 of the Municipal Code and as adopted pursuant to the requirements of Section 17. 12.020 of the Municipal Code which the Town acknowledges hereby has been approved by proper procedure under the Town's charter and the Municipal Code, and (b) that Owner as the legal owner of the Property shall have vested property rights to undertake and complete development and use of the Property as provided in this Agreement and the Development Standards. Pursuant to Section 17.14.050 of the Municipal Code, approval of this Agreement and the Development Standards constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 3.4 Property Rights Vested. The rights identified below shall constitute the vested property rights under this Agreement: (a) The right to develop, plan and engage in land uses within the Property in the manner and to the extent set forth in and pursuant to this Agreement and the Development Standards. (b) The right to develop, plan and engage in land uses within the Property in accordance with the densities, physical development standards and other physical parameters set forth in the Development Standards. (c) The right to develop the Property in the order, at the rate and at the time as market conditions dictate, subject to the terms and conditions of this Agreement and the Development Standards. (d) The right to develop and complete the development of the Property (including, without limitation, the right to receive all Town approvals necessary for the development of the Property) with conditions and standards determined pursuant to Section 3.2(b)which are no more onerous than those imposed by the Town upon other Owners in the Town on a uniform, non- discriminatory and consistent basis, and subject only to the exactions and requirements set forth in this Agreement and the Development Standards; provided that such conditions, standards and dedications shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise materially adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. 749431 Page: 7 of 33 Sara Fisher Eagle Cty, C6 23 R 165 Qp 2/051D0 ©1© ©4 40P 7 Final 10/27/98 (e) The Town shall not initiate any zoning, land use or other legal or administrative action that would directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. 3.5 Exactions. (a) Access Roads. Roadways within the Property shall be provided by Owner and /or one or more of the Districts which shall dedicate such roads to the Town, whereupon the Town shall accept such roads for dedication in their then current condition and shall assume maintenance of such roads, including snow removal. All such roadways shall be constructed to the Town's normal standards for similar roadways, which standards shall be set forth in the Subsequent Development Approval relating to the portion of the Property containing such roadways. (b) Drainage. On site drainage facilities for the Property shall be provided by Owner and/or one or more of the Districts to handle drainage resulting from the development of the Property. (c) Pedestrian Overpass. Owner and/or one or more of the Districts shall provide a pedestrian overpass (crossing the railroad line provided such railroad line has not been vacated, in which case an appropriate pedestrian crossing will be provided) connecting the Confluence with the Town core area. The pedestrian overpass shall be constructed along with the first phase of the conference center as set forth in Section 3.5(d). The design, location and other details of the pedestrian overpass shall be determined by Owner and the Town. Any dispute concerning such matters shall be resolved by arbitration. (d) Conference Center. One or more of the Districts shall construct a conference center facility on the Confluence as part of the development on the Confluence. Such conference center shall contain a total of approximately 15,000 square feet and will be constructed in two phases (one half of the square footage of the conference center in each such phase). The first phase of the conference center construction shall be commenced upon the Town's issuance of a building permit for the 100t' Dwelling Unit for the Confluence and shall be diligently pursued to completion. The second phase of conference center construction shall be undertaken upon the Town's issuance of a building permit for the 200`h Dwelling Unit for the Confluence. The twenty -mill levy contemplated by the Districts' service plan shall be utilized for construction and operation of the conference center. In connection with development of the conference center, Owner shall reserve space and/or air rights in its development for expansion of the conference center to up to a total of 40,000 square feet; provided, however, that neither Owner nor the Districts shall be obligated under this Agreement to pay for such expansion of the conference center nor for land costs. At the Town's request, the twenty mill levy imposed by the Districts for construction and operation of phase I and phase 2 of the conference center shall be imposed by the Districts (after retirement of debt for phase 1 and phase 2) for purposes of assisting to finance the expansion of the conference center and to pay operating costs of the expanded conference center. Owner shall use best efforts to cause the Districts to issue bonds for such expansion but shall not be required to provide credit 749431 Page: 8 of 33 02105/2001 04 40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0,00 8 Final 10/27/98 enhancement for or purchase such bonds. Owner shall use best efforts to cause the Districts to seek electoral authorization at a November 1999 election for such bonds. (e) Affordable Housing. Owner shall develop deed restricted affordable housing units (each, an "Affordable Housing Unit ") within the Town, either on or off the Property at a rate of five Affordable Housing Units for each 50Dwelling Units developed on the Property. As a condition to issuance by the Town of each 50th building permit (i.e., 50'x' 100', 150', etc.) for Dwelling Units on the Property, Owner must establish that it has developed or unconditionally commits to develop the required number of Affordable Housing Units. The nature and form of the deed restrictions on such Affordable Housing Units shall be substantially similar to that used in other affordable housing projects in the Town, and shall be determined by Owner and the Town prior to issuance by the Town of a building permit for the 50th Dwelling Unit. (f) Fee for Fire Station Expansion. Owner or the Districts shall pay to the Town $160,000 prior to the issuance of the first certificate of occupancy for the Property for expansion of fire station facilities. (g) Railroad Crossing. Prior to issuance of any building permit for the Property, Owner shall grant to the Town an easement for an "at grade" crossing of the existing railroad tracks at the west end of the Confluence at a location and pursuant to terms reasonably satisfactory to Owner and the Town. Said easement shall be subject to all matters of record, including without limitation the railroad right of way. Owner shall have no obligation to make any improvements related to such easement. Any dispute concerning the size or design of such crossing shall be resolved by arbitration. (h) Water and Water Rights. (i) The Town's augmentation plan decreed in Water Division No. 5 Case No. 84CW225 allocated 5.52 consumptive acre feet for the development of the Confluence (Avon Station). The allocated consumptive use was based upon the development of 200 Dwelling Units, 10,000 square feet of commercial area and 1.8 acres irrigated area. The proposed Confluence development will include up to 200 dwelling units, 800 hotel rooms, 40,000 square feet of commercial area and a non - specified irrigated area. Depending upon the final development plan, water requirements for the Confluence are expected to be higher than that allocated in the Town's augmentation plan. The difference between the 5.52 consumptive acre -feet and the water requirements for the proposed Confluence development is hereinafter defined as the "Increased Water Requirements." (ii) Owner shall commission a study regarding water consumption and augmentation requirements related to the maximum development as allowed by the approved PUD zoning. The study shall determine the Increased Water Requirements of the Confluence. Said study and projections shall be subject to review and approval by the Town. Upon Town approval of the water consumption and augmentation study, Owner shall, as a condition of water service for the Increased Water Requirements, dedicate and convey to the Town sufficient water rights and water storage rights that can be used in conjunction with the augmentation plan and the storage capacity presently owned by the Town to make up the amounts needed to serve the Increased Water 749431 Page: 9 of 33 02/05/2001 04 40P ;ara Fisher Eagle Cty, 00 23 R 165 .00 D 0.00 9 Final 10/27/98 Requirements. Owner shall reimburse the Town's expenses, including reasonable and actual engineering costs and legal fees, of including such additional water in the Town's augmentation plan. Any water rights to be dedicated and conveyed to the Town shall be subject to the Town's approval and acceptance, provided, however, Eagle Park Reservoir water shall be deemed an acceptable source of dedication water under this Agreement. The Town shall not be required to store water in or release water from Benchmark Lake to meet any Increased Water Requirements. Dedication of augmentation water and related water rights shall be completed prior to the issuance of the first building permit on the Confluence (t) 1U1. The Town and Owner agree that the Mall shall be constructed and maintained by the Districts pursuant to the Districts' service plan 3.6 No Obligation to Develop. Owner shall have no obligation to develop all or any portion of the Property and shall have no liability to the Town or any other party for its failure to develop all or any part of the Property. Owner and the Town contemplate that the Property may be developed in phases. Owner shall have no obligation to develop all or any portion of any such phase notwithstanding the development or non - development of any other phase, and Owner shall have no liability to the Town or any other party for its failure to develop all or any portion of any such phase of the Property. 3.7 Compliance with General Regulation . Except as otherwise provided in this Agreement or the Development Standards, the establishment of vested property rights under this Agreement shall not preclude the application on a uniform and non - discriminatory basis of Town regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulation shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. Owner does not waive its right to oppose the enactment or amendment of any such regulations. 3.8 Arbitration The parties agree that any dispute arising under this Article M shall be subject to arbitration among the parties in accordance with customary rules of the American Arbitration Associations that shall be binding upon the parties. 3.9 Owner Obligations. All obligations of Owner in this Agreement may be performed by the Districts at Owner's election. ARTICLE IV PUBLIC FACILITIES 4.1 Munigipal Sakes. The Town shall have the responsibility and obligation to provide all municipal services, including transit busing to the Property and other administrative services equivalent to those provided to any other area of the Town on a uniform and non- discriminatory basis. 749431 Page: 10 of 33 02!05f2001 04 40P 10 Sara Fisher Eagle Cty CO 23 R 165 .00 D 0 .00 Final 10/27/98 4.2 Water and Services. The Town shall provide water service to the Property upon notification of need by Owner as required for the development of the Property. The Town's obligation to provide water shall survive any disconnection of Confluence pursuant to this Agreement or otherwise. Water infrastructure /capital facilities which are necessary for the Town to provide water to the Property shall be provided by Owner and/or one or more Districts which shall dedicate such improvements to the Town, whereupon the Town shall accept such improvements for dedication in their then current condition and shall assume maintenance of such improvements and facilities. All such improvements shall be constructed to the Town's normal standards for similar facilities, which standards shall be set forth in the relevant Subsequent Development Approval relating to the portion of the Property containing such water improvements. The Town shall charge water tap fees and usage charges to users within the Property on a uniform, non - discriminatory basis with other users within the Town and shall use best efforts to require the Upper Eagle Regional Water Authority, or other water service providing entity to abide by this covenant, 4.3 Sanitation Service. The Property shall receive sanitation service from the Sanitation District, The Town shall not impose rates, fees, tolls or charges for sanitation services for the Property. ARTICLE V REBATE AGREEMENT 5.1 Allocation of Taxes. In consideration of the performance by Owner of its obligations under this Agreement, the Town agrees: (a) to account for all Sales Taxes and Lodging Taxes collected by the Town and attributable to the Property and to Tract B and (b) to rebate 75% thereof to the Districts within sixty (60) days following the end of the calendar month when collected (or partial month, if appropriate, in the case of the month in which this Agreement becomes effective or is terminated). The Town shall maintain a separate "Rebate Account" into which such taxes shall be deposited until rebated; one for each parking improvement project located within the Confluence, Tract C, and Tract B, respectively. Said Rebate Accounts shall be separately accounted for and shall not be used, pledged or otherwise encumbered except as specifically set forth herein. As additional consideration of the performance by Owner of its obligations under this Agreement, the Town further agrees: (a) to account for all Real Estate Transfer Taxes collected by the Town and attributable to the Property and to Tract B and (b) to rebate 50% thereof to the Districts within sixty (60) days following the end of the calendar month when collected (or partial month, if appropriate, in the case of the month in which this Agreement becomes effective or is terminated). Such taxes shall be deposited into the separate Rebate Accounts as provided above until rebated. Said Real Estate Transfer Taxes shall be required to be rebated only with respect to the first sale of each time -share interest in each unit constructed on the Property or Tract B, and shall not be required with respect to any subsequent resale thereof. It is the expectation of the parties that a separate series of bonds shall be issued for each parking improvement project located within the Confluence, Tract C, and Tract B, respectively. It is also the expectation that the allocation and rebate of taxes from each separate 749431 Page: 11 of 33 02/05/2001 04:40P 11 Sara Fisher Eagle Cty, CO 23 R 165.00 D 0 .00 Final 10/27/98 Rebate Account as provided above be used only for paying the debt service corresponding to the parking improvements financed and secured by future rebates from each separate respective Rebate Account. The allocation and rebate of taxes as contemplated in this Section 5.1 shall continue to be made from each separate Rebate Account until the bonds or other instruments of indebtedness issued by the Districts and secured by rebates from the separate Rebate Accounts have been paid in full. However, in no instance shall the Town continue the allocation and rebate of taxes from each separate Rebate Account beyond fifteen (15) years after the commencement of deposits in each Rebate Account for each respective bond issue. The Town shall make all such allocations and deposits unless prevented by court order from so doing. In the event any action is commenced challenging the right of the Town to make such allocations and deposits, the Town shall notify Owner and Shapiro in writing of such action prior to the Town filing its first responsive pleading in such action and shall allow the Districts to participate in any defense to such action as set forth in Section 2.4 above. 5.2 Limitation on Bonds to be Issued. Financing on behalf of the Districts for each individual parking improvement project located within the Confluence, Tract C, and Tract B, respectively, is hereby limited to two- thirds (2/3 d,) of the estimated capital cost of the respective parking improvement being financed. 5.3 Determination of Amount of Allocated Revenues. The Town shall provide the Districts a summary of any Sales Tax, Lodging Tax, and Real Estate Transfer Tax collected by the Town for each month or partial month with respect to the Property and Tract B that supports the amounts rebated for such month. Such summary shall be provided at the time the rebate is made. 5.4 Computation of Tax Revenues. Within one hundred twenty (120) days following the end of the each Town fiscal year, the Town shall deliver to the Districts a final accounting of all sales taxes, lodging taxes and real estate transfer taxes collected by the Town and attributable to the Property and to Tract B and the amount rebated to the Districts. 5.5 No Debt or Pecuniary Liability No Multiple- Fiscal Year Obligation. All rebate payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. The Town agrees that failure to appropriate sufficient funds in any year to enable the Town to perform its obligations hereunder shall constitute, at the Districts' election, a failure of the Town to perform this Agreement and therefore a failure of a condition of annexation of the Confluence and shall permit the Districts, at its sole election, to disconnect the Confluence as set forth herein. Such rights shall not impair the Districts' rights set forth elsewhere in this Agreement. The Town also agrees that failure to appropriate sufficient funds in any year to enable the Town to perform its obligations hereunder shall also entitle Shapiro to the benefits of section 5.9 hereof. None of the obligations of the Town hereunder to the Districts shall be payable from any source other than as provided in Section 5. 1, and this Agreement shall never constitute a debt, indebtedness or multiple- fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. 749431 Page' 12 of 33 02/05/2001 04:40P Sara Fisher Eagle Cty, CO 23 R 165 .00 D 0.00 12 Final 10/27/98 5.6 Budget and Appropriation of Payments. The Town's finance director shall include in the budget proposals submitted to the Town Council in each year prior to termination of this Agreement, amounts sufficient to meet the obligation of the Town hereunder to the extent the Town shall have received such amounts, or anticipates receiving such amounts from Sales Taxes, Lodging Taxes or Real Estate Transfer Taxes. The Town hereby represents that it presently intends to appropriate the amounts under this Agreement to the fullest extent permitted by law. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing the Districts and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State of Colorado to be subject to annual appropriation without regard to approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision of Section 5.4 and as elsewhere found in this Agreement. 5.7 Subsequent Changes in Tax Rates. In the event that the Town reduces the Sales Tax, Lodging Tax, or Real Estate Transfer Tax rate applicable to taxable activities on the Property and Tract B, the calculation of the rebate percentage for rebates due to the Districts shall be recalculated so that the Districts shall receive rebates throughout the term of this agreement as if no change in tax rates had occurred. In the event the Town increases the Sales Tax, Lodging Tax, or Real Estate Transfer Tax pursuant to an election and the incremental increase in the tax rate is earmarked for a special purpose pursuant to the ballot question that is passed by the voters, such addition taxes resulting from the tax increase and collected by the Town applicable to the Property and Tract B shall not be subject to allocation and rebate by the Town to the Districts. 5.8 Books and Records. Both the Town and the Districts shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Town and District representatives shall be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. The parties shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any review of either parties' books and records. 5.9 Tax Credits. (a) In the event the Town is prevented by binding court order from paying rebates with respect to the Property or otherwise fails to appropriate, Owner shall have the option of disconnecting the Confluence from the Town as contemplated herein. In the event Owner determines not to disconnect the Confluence, or if the Town contests or otherwise fails to assure said disconnection in any way, the provisions of Section 5.8(b) hereof shall be immediately binding upon the Town. In the event the Town is prevented by binding court order from paying rebates with respect to Tract B, or otherwise fails to appropriate, the provisions of Section 5.8(b) hereof shall be immediately binding upon the Town. 749431 Page: 13 of 33 02/0512001 04:4GP >ara Fisher Eagle Cty, 00 23 R 165 .00 D 0 .00 13 Final 10/27/98 (b) Each taxpayer liable for Sales Tax, Lodging Tax or Real Estate Transfer Tax on taxable transactions within the Property or Tract B shall receive a credit against such taxes in each year equal to the total amount of the rebate which would otherwise have been due from the Town. The Town shall notify all persons who would typically collect such taxes from a taxpayer that taxes shall not be due from such taxpayer in an amount equal to fees paid by such taxpayer. Such credit shall be automatic and shall take effect immediately without being claimed on taxpayer's return relating to the applicable tax and without any requirement of approval or other action by the Town, but the transactions and payments supporting the credit for any given year shall nevertheless be subject to audit to the same extent, for the same limitations periods and in the same manner as the items which are required to be reported on the taxpayer's return relating to the applicable tax. The Town's agreement to grant such credit shall not be considered a multiple fiscal year financial obligation of any kind. The credits contemplated in this Section shall continue until bonds or other instruments of indebtedness issued by the Districts or other eligible non - profit corporations acting on behalf of the Districts which are paid by the fees received from such taxpayers have been paid in full and notice thereof has been delivered to the Town. It is the expectation of the parties that a separate series of bonds shall be issued for Confluence parking improvements, Tract C parking improvements and Tract B parking improvements. The Town shall grant such credits unless prevented by court order from so doing. In the event any action is commenced challenging the right of the Town to grant such credits, the Town shall notify Owner and Shapiro in writing of such action prior to the Town filing its first responsive pleading in such action and shall allow the Owner and/or Shapiro to participate in any defense to such action as set forth in Section 2.4 above. The Town agrees that it shall take no action to prevent, and shall not fail to take any action necessary to allow, Owner and/or Shapiro, or corporations they organize, from imposing and/or collecting fees as contemplated herein. 5.10 Legal Challenge to Tax Agreement. In the event any agreement contained herein regarding taxes is ever the subject of a successful legal challenge, the Town shall diligently resist such challenges in cooperation with the Owner as set forth in Section 2.4 above. If such challenges are successful in any material way, the Town shall undertake such curative actions as are necessary to attempt to fully restore the benefits of this Agreement to each of the parties. 5.11 Town Deposits The Town may make other deposits from any other taxes or funds of its own to the rebate accounts 5.12 Town Expenses. Upon receipt of an invoice from the Town, the Districts shall pay the reasonable expenses of the Town for calculating and administering the rebates hereunder. ARTICLE VI SPECIAL DISTRICTS 6.1 Special Districts. The Town agrees to take all reasonable action necessary to approve an amendment to the service plan for the Districts to conform to the financial provisions of this Agreement and to permit the Districts to form qualifying non -profit corporations to carry 749431 Page: 14 of 33 Sara Fisher Eagle 11111 111 11 11111111111111111111111111 Cty, CO 23 R 165.00 2!05!0001004 4OP 14 Final 10/27/98 out the purposes of this agreement and the amended service plan. The Mall shall be included in the Districts at the request of the Town. In addition, properties known as Avon Town Square, Lot 61, and other properties maybe included in the Districts upon reasonable terms and conditions. 6.2 Dissolution of Districts. Dissolution of the Districts shall occur in the manner set forth in the service plan for the Districts and in accordance with the provisions and procedures set forth in C.R.S. §§ 32 -1 -701, et seq. as in effect as of the date of this Agreement. ARTICLE VII DEFAULTS, REMEDIES, AND TERMINATION 7.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as: (a) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Owner's consent, that materially alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise materially and adversely affects any development, use or other rights of Owner under this Agreement or the Development Standards or PUDs; or (b) the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 7.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement. 7.3 Notices of Default. In the event of a default by either party under this Agreement, the non - defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Section 8.8, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non - defaulting parry within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 7.4 Remedies. (a) If any default under this Agreement is not cured as described above, the non - defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by 749431 Page: 15 of 33 Tara Fisher Eagle Cty, CC 23 R 165.00 2/05 D ©01 04.40P 15 00 Final 10/27/98 the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to: (i) recover from the Town any damages that should have been specifically available to Owner as contemplated in Colorado Revised Statutes Section 24- 68- 105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law; and (ii) cause the Confluence, or any portion thereof designated by Owner, to be disconnected from the Town. 7.5 Disconnection. The Town acknowledges that Owner has agreed to develop the Confluence at significantly lower density than Owner originally desired in consideration of the Town's agreement to rebate taxes as set forth herein, and that failure of the Town to appropriate revenues sufficient to pay the rebates contemplated herein will substantially impair the value of the Confluence. Accordingly, in the event the Town exercises its discretion in any year and determines not to make sufficient budget appropriations to pay such rebates, fails to make any other appropriations which may be required by law to enable the Town to perform this Agreement in all respects, if the Town contests disconnection or otherwise acts (or fails to act) in any way to avoid disconnection, if the Town is prevented by appropriate judicial order from making such appropriations, or if any other event occurs to cause rebates not to be paid as contemplated hereinOwner shall have the immediate and continuing right, at its election, to disconnect the Confluence from the Town it being the express agreement of the parties hereto that any such act, at the sole election of Owner, shall be deemed to be a failure of the Town to meet a condition of annexation of the Confluence and/or a failure to serve the Confluence in the manner agreed herein, and shall entitle Owner to the immediate disconnection of the Confluence notwithstanding any statutory procedure or requirement for disconnection by petition. In furtherance of said agreement, the Town represents that as a home rule municipality this contractual right of disconnection shall be in addition to any statutory right or procedure for disconnection which may exist under law which shall not be deemed exclusive rights and procedures. The Town agrees in such event that it will take all necessary steps to accomplish such disconnection and shall not contest any disconnection effort by Owner. The Town shall cooperate in all respects to accomplish such disconnection whether under the agreements set forth herein or under any applicable statutory disconnection procedure, which a court may require. Said disconnection shall not affect any development rights concerning the Confluence which are vested under common law vesting principles or which are vested pursuant to this Agreement. In the event the Town breaches this Agreement by failing to pay rebates, credit taxes or amend its Municipal Code as agreed in Article V hereof, Owner shall have all rights of disconnection set forth herein. 749431 Page: 16 of 33 02/05/2001 04 40P Sara Fisher Eagle Cty: CO 23 R 165.00 0 0.00 16 Final 10/27/98 ARTICLE VIII MISCELLANEOUS 8.1 Applicable Law. Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnership No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be construed as making Town and Owner joint venturers or partners. 8.3 Expenses. Except as otherwise provided in a separate written agreement, Owner and the Town shall each bear their respective costs and expenses associated with implementing and enforcing the terms of this Agreement. 8.4 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 8.5 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare, and the provisions of this Agreement, the PUDs, Development Standards, and vesting agreements contained herein are consistent with the Comprehensive Plan, Municipal Code, and other applicable regulations and policies of the Town. 8.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 8.7 Further Assurances. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other parry the full and complete enjoyment of its rights and privileges under this Agreement. 8.8 Notices. Any notice or communication required under this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given, and designate any other 749431 Page: 17 of 33 02/05/2001 04.40P Sara Fisher Eagle Cty, 00 23 R 165.00 0 0.00 17 Final 10/27/98 address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to Town: Town of Avon P.O. Box 975 Avon, Colorado 81620 Attention: Town Manager If to Owner: Vail Associates Investments, Inc. c/o James S. Mandel, Esq. P.O. Box 7 Vail, Colorado 81658 Attn: Legal Department Attn: James R Thompson With a Copy to: Sheldon & Gordon, P.C. 4582 South Ulster Street Parkway, Suite 902 Denver, Colorado 80237 Attn: Michael A. Sheldon, Esq. and to: White and Associates Professional Corporation 8005 S. Chester Street, Suite 125 Englewood, Colorado 80112 Attention: Gary R. White, Esq. If to Shapiro: Avon Commercial Center Ltd., a Colorado limited partnership, Shapiro Development Co., general partner c/o Shapiro Development Co. P.O. Box 5640 Avon, CO 81620 Attn: Ken Shapiro 8.9 Assignment. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Except as specifically set forth herein, Owner shall have the right to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval of the assignee or transferee is first obtained, an assumption or transfers providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall be relieved of any further obligations under this Agreement with respect to the matter so 749431 Page; 18 of 33 02/05/2001 04:40P ;ara Fisher Eagle Cty, CO 23 R 165 .00 D 0 00 18 Final 10/27/98 assumed. The Town's obligations hereunder may not be assigned or delegated without Owner's written consent, and any attempted assignment or delegation by the Town not in compliance herewith shall be null and void. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. 8.10 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 8.11 Amendments and Waivers. No amendment or waiver of any provision of this Agreement, nor consent to any departure herefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. STATE OF COLORADO ) ) ss. COUNTY OF ) TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado f By: ayo Subscribed before me this day of 1998, by as Mayor of Town of Avon, Colorado and as Town Clerk of Avon. Expires 02/28/2002 My commission expires: Notary Piblic 749431 Page: 19 of 33 02/05/2001 04 40P 19 ara Fisher Eagle Cty. CO 23 R 165 .00 D 0 00 ATTEST STATE OF COLORADO ) ss. COUNTY OF v � Subs ribe, before me this kkU1 Y��V�.$�LVI_ as Investments, Inc. and Vail Associates Investments, Inc. Final 10/27/98 OWNER: VAIL ASSOCIATES INVESTMENTS, INC., a Colorado limited liability company day of 1998, by of Vail Associates as of My commission expires: 60' Notary Public q' 749431 Page: 20 of 33 02/05/2001 04:40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0.00 �QF My r _ ---a 20 ATTEST r STATE OF COLORADO ) ss. COUNTY OF t "I f ) Final 10/27/98 Avon Commercial Center Ltd., a Colorado limited partnership, Shapiro Development Co., general partner By: _ Its:'��' Subscribed before me this day of be r 1998, by 5SA U0-' A `! d r` e as .'c 'c P' e 5 n of o�r� �-(,-y IoarV,Eh� C (3 - and Kaye n as of vk4 p � t'Q My commission expires: 101!S1 N `N ..c..a d Notary Public 9��o� G � @L1�.•P� COIC� 74943 : 1f 33 02/05/2001 04 :40P Sara Fisher Eagle Cty; CC 23 R 165.00 D 0.00 VAINC \AGRT \GRW 10081001980 244.2036 21 EXHIBIT A LEGAL DESCRIPTION 1 1111111111111111111111111111111 11'1"1 III 1111111111111 (" 677376 11/23/1968 04:19P 27 Sara Fisher 7 of 8 R 41.00 D 0.00 N 0.00 Eagle CO EXHIBIT A Beginning of the Northeast corner of the Confluents from which the center 1/4 of Section 12 bears SO¢' 18' OB" E, 612.39 feet; thence along the southerly right -of -way line of the Denver and Rio Grande Western Railroad S 65' 23' 27 "E. 33.06 feet; thence deporting said railroad right -of -way along the arc of a non- tangent curve to the right, 161.21 feet, having a radius of 1095.90 feet, a central angle of 09' 25' 26' and a chord which bears S06' 28' 48"W, 181.00 feet; thence the following seven (7) courses: 1. $11' 13' 03 "W, LAND DESCRIP11ON 2. S43' 13' 33`W, A percei of fond located in the south 1/2 of the northwest 1/4 of 3. S10" 05' 03 "W, Section 12, Township 5 South, Range 82 West of the Sixth Principal 4. SS6' 36' 05-W, Meridian, Eagle County, Colorado, being more particularly described as 5. N12' 05' 08'=, follows: 6. N12' 07' 30 "E, 86.00 feet 7. N21` 17' 14 "E, Beginning of o point, on the southerly right -of -way line of the Denver do Rio Grande Western Rail Road and the westerly right -of -way line of Avon Rood, from which the Center 1/4 corner of Section 12 bears S 04'18'06" E. 61239 feet; thence aiong the aouthply roiiroad rignt- r�. of -way N 65'23'27' W, 1729.75 feet to the southeasterly most corner of 'root H, Benchmark at Seaver Creek Subdivision, Amendment Number 4, as recorded in Book 274 at page 701; thence deporting the southerly right - of-wcy line and along the southerly line of Tract H N 8932'C1" W, 1? 397.29 feet to a point on the easterly line of Seaver Creek Subdivision, Tracts 0 and P, as recorded in Book 656 at page 662, said tine being also the approximate centerline of the Eagle River; thence along the easterly line the following ten (10) courses: 1) S 48'08'55" E. 132.70 feet, 2) S 57'22'26' E, 341.00 feet, ' 3) S 49'50'33" E, 455.67 feet, 4) S 47'47'00" E. 293.81 feet, 5 S 43'40'09" E. 15241 feet, 6) S 50'10'13" E. 154.96 feet, '5 .S2 7 S 53'4Z'45" E, 187.29 foot, 8) 5 81'26'34" E, 214.80 feet, 10 9 N 86'00'59" E. 162.21 feet. 10) N 86'36'05' E, 197.35 feet to o point on the westerly right -of -way time of Avon Road; thence along the westerly right -of -way line the following tour (4) courses: 1) N 12'05'08' E, 120.18 feet, 2) N 12'07'30" E, 86.00 feet, 3) N 21'17'14" E, 32,00 feet, 4) N 04'29'54" E. 119.79 feet to the Point of Beginning. Parcel Contains 18.886 acres. to Together with three (3) parcels of fond known as TK -10 -A, TK-10 and PE -10 also being located in the South 1/2 of the Northwest 1/4 of Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eagle County, Colorado, the exterior boundary of these combined parcels being more particularly descrbed as follows: Beginning of the Northeast corner of the Confluents from which the center 1/4 of Section 12 bears SO¢' 18' OB" E, 612.39 feet; thence along the southerly right -of -way line of the Denver and Rio Grande Western Railroad S 65' 23' 27 "E. 33.06 feet; thence deporting said railroad right -of -way along the arc of a non- tangent curve to the right, 161.21 feet, having a radius of 1095.90 feet, a central angle of 09' 25' 26' and a chord which bears S06' 28' 48"W, 181.00 feet; thence the following seven (7) courses: 1. $11' 13' 03 "W, 54.70 feet 2. S43' 13' 33`W, 37.70 feet 3. S10" 05' 03 "W, 94.50 feet 4. SS6' 36' 05-W, 28.16 feet 5. N12' 05' 08'=, 120.14 feet 6. N12' 07' 30 "E, 86.00 feet 7. N21` 17' 14 "E, 52.00 feet thence N04' 29' 54 "£. 119.79 feet to the Point of Beginning. Parcel contains 0.28 acres more or iiess. 1 ("III "III 1111111111111111 1111 1111111 III 111'1 1111111 677379 11/23/1988 04:19P 27 Sara Fisher 8 of 8 R 41.00 D 0.00 N 0.00 Eagle CO Final 10/27/98 Exhibit A -1 749431 Page: 22 of 33 02105!2001 C4 40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0 00 The Confluence Legal Description A parcel of land located in the south '/a of the northwest 14 of Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eagle County, Colorado, being more particularly described as follows: Beginning at a point on the southerly right -of -way line of the Denver & Rio Grande Western Rail Road and the westerly right -of -way line of Avon Road, from which the Center `/, corner of Section 12 bears S 04° 18'06" E, 612.39 feet; thence along the southerly railroad right- of-way N 65023'27' W, 1729.75 feet to the southeasterly most corner of Tract H, Benchmark at Beaver Creek Subdivision, Amendment Number 4, as recorded in book 274 at page 701; thence departing the southerly right -of -way line and along the southerly line of Tract H N 89 °32'01" W, 397.29 feet to a point on the easterly line of Beaver Creek Subdivision, Tracts O and P, as recorded in Book 656 at page 662, said line being also the approximate centerline of the Eagle River, thence along the easterly line the following ten (10) courses: 1) S 48 °08'55" E, 132.70 feet, 2) S 57 °22'26" E, 341.00 feet, 3) S 49°50'33" E, 455.67 feet, 4) S 47 °47'00" E, 293.81 feet, 5) S 43'40'09" E, 152.4I feet, 6) S 500 1013 E, 154.96 feet, 7) S 53'42'45" E, 18729 feet, 8) S 81'26'34" E, 214.88 feet, 9) N 86 °00'59" E, 162.21 feet, 10) N 86 °36'05" E, 197.35 feet to a point on the westerly right -of -way tine of Avon Road; thence along the westerly right -of -way line the following four (4) courses: 1) N 12 °05108" E, 120.18 feet, 2) N 12907'30" E, 86.00 feet, 3) N 21017'14" E. 52.00 feet, 4) N 04'29'54" E, 119.79 feet to the Point of Beginning. Parcel contains 18.886 acres. 749431 Page; 23 of 33 Sara Fisher Eagle Cty, Co 23 R 165.0© 2105/DO0,00 40P Final 10/27/98 Exhibit A -2 749431 Page: 24 of 33 02/05/2001 04 40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0.00 23 Lot C Legal Description A parcel of land described as Lot C, Avon Center at Beaver Creek, Benchmark at Beaver Creek, Amendment No. 4, Town of Avon, Eagle County, Colorado, being more particular described as follows: Beginning at the easternmost corner of Lot C, also being the northernmost corner of Lot B; thence along the line common to Lots B and C, S520 4I'02 "W, 397.57 feet; thence departing said common lot line, N65° 58'08'W, 2172 feet; thence NO2° 3011211W, 576.33 feet to a point on the southerly right -of -way of Benchmark Road; thence along said right -of -way N59° 20'02 "E, 160.00 feet to a point on the westerly right -of -way of Beaver Creek Boulevard thence along said right -of -way S27° 05'23 "E, 400.62 feet; thence continuing along said right -ot =way along the arc of a tangent curve to the left 80.83 feet, having a radius of 540.00 feet, a central angle of 08° 34'36" and a chord which bears S31° 22'41 "E, 80.76 feet to the Point of Beginning. Parcel contains 3.24 acres. 749431 Page: 25 of 33 02105/2001 04:40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0 .00 Final 10/27/98 Exhibit A -3 749431 Page: 26 of 33 Sara Fisher Eagle Cty; CO 23 R 165 pO 2 /G5lpOO1Q©4;4OP 24 EXHIBIT A -3 LEGAL DESCRIPTION; Lot B, Avon Center at Beaver Creek The point of beginning being the southwest corner of Lot B, Avon Center; thence N,52'41'01 "E., a distance of 397.57 feet to a point on a curve to the right, said curve having a radius of 450.00 feet; thence along said curve a distance of 187.14 feet through a central angle of 19'51'21", having a chord bearing and distance of S.45'35'39 "E., 186.20 feet; thence S.62'54'37 "W., a distance of 15.00 feet; thence S.27 05 23 E., a distance of 12.03 feet; thence S.62'54'37 "W„ a distance of 137.49 feet; thence S.27'07'37 "E., a distance of 65.53 feet; thence S.62'52'23 "W,, a distance of 55.96 feet; thence S.27'05'23 "E,, a distance of 61.17 feet; thence S.62'54'27 "W., a distance of 12.10 fleet; thence S.27'05'23 "E., a distance of 40.05 feet; thence N.65'58'08 "W,, a distance of 366.19 feet to the True Point of Beginning. Said parcel of land contains 75,617 square feet (1,735 acres), more or less. 749431 Page: 27 of 33 02105(2001 04:40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0.00 -') - Final 10/27/98 Exhibit B 25 J` FINAL 9 -11 -98 ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT is made and entered into this 25 day of August 1998, by and between VAII. ASSOCIATES INVESTMENTS, INC., a Colorado corporation hereinafter referred to as "the ANNEXEE ", and the TOWN OF AVON, COLORADO, a municipal corporation, hereinafter referred to as "the TOWN." WITNESSETH: WHEREAS, the ANNEXEE is the owner of the property described in Exhibit A, attached hereto (the "Property"), and has filed a petition to annex said property to the TOWN; and WHEREAS, various issues remain to be resolved in connection with the anticipated use of the Property; and WHEREAS, the ANNEXEE desires to form two metropolitan districts to serve the permitted uses on the Property and must hold organizational and bond elections in November, 1998 (the "Election ") in order to permit such districts to be formed to serve the Property; and WHEREAS, the TOWN and the ANNEXEE desire to conditionally annex the property to the TOWN without concurrent zoning so the districts can be approved in time to permit the Election to occur while also allowing the negotiating process to continue to resolve outstanding land use and other issues while fully reserving to the parties the power and authority to disconnect the Property as set forth herein if such issues cannot be resolved to the mutual satisfaction of the parties; and WHEREAS, the parties mutually agree that the conditional annexation of the Property to the TOWN shall not create any additional cost or impose additional burden on the existing residents of the TOWN to provide public facilities and services to the Property after annexation nor shall it create any obligation of any kind on the parties except as specifically set forth herein or in the Development Agreement contemplated herein; and WHEREAS, the parties intend, after annexation of the Property, to negotiate in good faith to complete a development agreement setting forth in detail their respective duties, obligations and rights with respect to the Property (which agreement shall be referred to herein as the "Development Agreement "). In consideration of the foregoing premises and the covenants, promises, and agreements of each of the parties hereto to be kept and performed by each of them, IT IS AGREED: 1111111111111111111111111111111111111111111111111111111 n ci l `k I. INTENTION OF THE PARTIES 1. It is the express intention of the parties hereto, and the express intent by which this Agreement shall be interpreted and the rights of the parties determined in all cases, that the TOWN shall conditionally annex the Property without granting any zoning of any kind at the time of annexation, and that the TOWN shall consider the approval of service plans for special districts which may ultimately serve the Property in sufficient time to permit the Election to occur, but only on condition that the parties enter into good faith negotiations to attempt to complete a Development Agreement as contemplated below, and that if such Development Agreement is not completed to the mutual satisfaction of the parties by October 31,1998, the Property shall be disconnected from the TOWN unless said date is extended by mutual written agreement. To that end, the parties specifically agree that the annexation of the Property by the TOWN as a conditional annexation, the approval of service plans for districts by the TOWN, and the entering into good faith negotiations to complete a Development Agreement shall not obligate the parties to execute any agreement, grant any zoning, or permit any use on the Property except as is voluntarily agreed by the Parties. 2. In the event the right of disconnection arises as contemplated herein, either party without consent of the other shall be entitled to seek such court orders as may be necessary to give effect to this Agreement disconnecting or confirming the disconnection of the Property from the TOWN. Such disconnection may be by Town ordinance or order to be obtained from the court vested with legal jurisdiction. Each party agrees that it will not contest any such effort by the other party and will provide reasonable assistance to the other parry to achieve such disconnection by November 30, 1998 unless said date is extended by mutual written agreement. In such event, this provision shall be deemed a request, application and petition by ANNEXEE and agreement by the Town to have the TOWN or the district court order or confirm the Property disconnected from the Town. H. DEVELOPMENT AGREEMENT 1. The Development Agreement shall at a minimum address the following matters to the satisfaction of the parties: tax rebates - land uses and zoning - special districts - development entitlements - conference center - traffic impacts 2. The foregoing is not intended to be an exclusive list of issues to be addressed by the parties. Matters may be added to or deleted from said list at will of the parties; provided, however, that if a Development Agreement is not completed to the mutual satisfaction of the parties hereto, the remedies herein may be fully exercised by either or both parties. I iniii nisi niiiii iiiii iiii nn mini m nisi iiii IN 677379 11/23/1998 04:19P 27 Sara Fisher III. ZONING, DEVELOPMENT AGREEMENT AND DESIGN 1. Immediately after annexation of the Property is complete, the ANNEXEE and the TOWN shall commence negotiations toward the completion and execution of the Development Agreement described herein, and the ANNEXEE shall submit an application for zoning of the Property substantially as set forth in a "Land Use Plan" to be developed in conjunction with the Development Agreement. There shall be no statutory, constitutional, nor other obligation of the TOWN to zone the Property except as such matters are contemplated in the Development Agreement and zoning application filed consistent therewith. 2. In the event that prior to November 1, 1998 (1) the TOWN and the ANNEXEE are unable, despite their good faith efforts, to reach agreement on the terms and conditions of the Development Agreement, or (2) the TOWN does not adopt the appropriate ordinance adopting zoning for the Property substantially as set forth in the Land Use Plan or otherwise satisfactory to the ANNEXEE, or (3) if such zoning is adopted by the TOWN but is invalidated by referendum or other lawsuit, then, in any such event and upon notice by one party to the other of such event, the Property shall be immediately disconnected from the TOWN, and the parties shall immediately take all action necessary to cause such disconnection. IV. SPECIAL DISTRICTS 1. Immediately upon execution of this Agreement, the ANNEXEE shall be permitted to file service plans for two special districts to serve the Property which shall contain the information required by law for the TOWN to adopt a resolution of approval thereof. The TOWN shall act in good faith and expeditiously to consider the adoption of a resolution of approval not later than September 22, 1998 in order to permit the Election to occur on November 3, 1998. If resolutions of approval are not obtained, all negotiations regarding the Development Agreement may cease, but such negotiations shall not be required to cease. The ANNEXEE agrees that any special districts established within the Property shall neither levy, charge, or collect taxes, issue debt, nor shall such districts apply for or request Colorado Conservation Trust Funds as supplemented by the state lottery until a Development Agreement is executed. 2. In the event special districts are organized, the ANNEXEE shall not have any right to use such districts for any reason until a Development Agreement is executed and an amended service plan is approved if required by the TOWN. If a Development Agreement is not executed as contemplated herein, the districts shall be dissolved immediately. The provisions of this Article shall be incorporated in the initial service plans for such districts as conditions of service plan approval. 1111111111111111111111111111111111111111111111111111111111111 IN 677379 11/23/1998 04:19P 27 Sara Fisher V. GENERAL PROVISIONS 1. This Agreement shall be recorded with the Clerk and Recorder in Eagle County, Colorado, and shall run with the Property, and shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties hereto. Every part of the Property shall at all times remain subject to all the obligations of this Agreement with respect to each part of the Property. 2. Nothing contained in this Agreement shall constitute or be interpreted as a repeal of existing codes or ordinances or as a waiver or abrogation of the TOWN's legislative, governmental, or police powers to promote and protect the health, safety, or general welfare of the TOWN or its inhabitants; nor shall this agreement prohibit the enactment by the TOWN of any fee which is of uniform or general application. 3. If the annexation or zoning of the Property or any portion thereof is challenged by a referendum or initiative, all provisions of this Agreement, together with the duties and obligations of each party, shall be suspended pending the outcome of the referendum election. If the referendum challenge to the annexation results in disconnection of the Property from the TOWN, then this Agreement and all provisions contained herein shall be null and void and of no further effect. If the referendum challenge fails, then the ANNEXEE and the TOWN shall continue to be bound by all terms and provisions of this Agreement. 4. In the event that the annexation of the Property or any portion thereof is voided by final action of any court, such action being associated with a referendum or initiated action, the TOWN and the ANNEXEE shall cooperate to cure the legal defect which resulted in disconnection of the Property or zoning challenge, and upon such cure this Annexation Agreement shall be deemed to be an agreement to annex the Property to the TOWN pursuant to Section 31 -12 -121 of the Colorado Revised Statutes, The ANNEXEE may reapply for annexation as when the Property becomes eligible for annexation as determined by the TOWN. 5. It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with the constitution or any law of the State of Colorado or the United States, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the agreement did not contain the particular part, term, or provision held to be invalid. Notwithstanding the foregoing, if the ANNEXEE'S right to disconnect contained in Article III.2., or the TOWN's discretion over terms of the Development Agreement provided in Article II is determined to be illegal, unenforceable or in conflict with any applicable law, then this Agreement in its entirety shall be immediately void and of no further force or effect as to the Property and the TOWN shall take such action as is necessary to cause or confirm the disconnection of the Property, it being deemed that a condition of approval of the annexation ordinance has not been met. 6. This Agreement, the attached exhibits and the Development Agreement embody the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein; and this Agreement shall supersede all previous I 11111111111111111111111111111111111111111111111111111111111111 677379 11/23/1998 04:19P 27 Sara Fisher communications, representations, or agreements, either verbal or written, between the parties hereto. Except as provided in this Agreement, there shall be no modification of this Agreement except in writing, executed with the same formalities as this instrument. Subject to the conditions precedent therein, this agreement may be enforced in any court of competent jurisdiction. 7. This agreement shall terminate and expire thirty (30) years from the date of execution hereof. Thereafter, so long as the Property is located within the municipal boundaries of the TOWN, it shall continue to be subject to the charter, ordinances, and rules and regulations of the TOWN. 8. Under the Development Agreement, the ANNEXEE may be required to dedicate certain portions of the Property for public use and/or convey certain portions of the Property to the TOWN. All such dedicated or conveyed real property shall be dedicated for the perpetual use and benefit of the public by the dedication language of the relevant subdivision plat or shall be conveyed to the TOWN by general warrant deed free and clear of mortgages, deeds of trust, and other liens of whatever sort, and be free and clear of other restrictions, reservations, exceptions, covenants, easements, rights -of -way, and other encumbrances (except easements of record), and other encumbrances or natural conditions, except for those to which the TOWN had no reasonable objection in light of the intended use of the site, at no monetary cost to the TOWN. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. ;UALTE OF. COLORADO t. � LWTYcOF e;44G,e7 "` subscribed before i ,I,4� -S z5. MtXDgr Inc. The ANNEXEE: Vail Associates Investments, Inc., a Colorado corporation By: 4; �� (Nam and title) ss. e this Z 3 eb day of 1998, by as SR. V, P lei �J„ szgj— of Vail Associates Investments, My com sion expires: Not i y b is I I"III "III "I'III'I'II'I�I "" IIII"I III "I'I'III I"I 677379 11/23/1998 04:19P 27 Sara Fisher 5 of 8 R 41.00 0 0.00 N 0.00 Eagle CO The TOWN: TOWN OF AVON, COLORADO A municipal corporation of the Eagle County, State of Colorado By: — q 4-� L W-". (Na e and title) mayor STATE OF COLORADO ) ) ss. COUNTY OF Eagle } Subscribed before me this day of 0CJJ1Q3t-1- 1998, by -7aC /- 'Ea l,ve Q � -i as r of Town of Avon, Colorado. My commission expireMY Commission i- xpires 09128122002 Notary Public VAINCIAGRTIIMC 1344081098 0244.2033 1111111111111111111111111111111111111111111111111111111 677379 11/23/1998 04:19P 27 Sara Fisher 6 of 8 R 41.00 D 0.00 N 0.00 Eagle CO Final 10/27/98 Exhibit C -1 749431 Page; 28 of 33 Sara Fisher Eagle Cty, CO 23 R 165.00 2 / ©SAD 0,00 4.40P 26 SECTION II: zoning Review: Title 17 I DEVELOPMENT STANDARDS; Confluence PUD Revised Submittal No.3 October 27, 1998 A. Intention: This development is intended to complement the adjacent town center developments, future developments and expansions and to provide a variety of uses on the Confluence such as Idges, commercial establishments and offices in a predominantly pedestrian environment. These development standards are intended to provide a development which distinguishes this development from other areas within the Town. B. Allowed Uses: The following uses shall be permitted in this Confluence development and those designated with a ■ shalI also be allowed at plaza / ground level, those uses not designated with a ■ shall not be permitted at plaza / ground level. Commercial uses designated with a O shall be permitted to a maximum of 40,000 SF GLFA: I. ■ O Retail Stores; 2. ■ O Specialty Shops; 3. ■ O Restaurants, excluding drive - through windows; 4. ■ O Cocktail Lounges; 5. ■ O Personal service shops; 6. ■ O Professional offices; 7. ■ Hotels; 8. ■ Lodges; 9. Apartments; 10. Condominiums; 11. ■ Indoor recreation 12. ■ Q Financial Institutions; 13. Bed and breakfast lodge; 14. Time- share, interval ownership, and fractional fee ownership projects; 15. ■ Intercept / day -skier parking; 16. ■ O Entertainment Facilities 17. ■ Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district, to be approved by the zoning admininistrator. C. Special Review Uses: 1. Public Transportation facilities; 2. Public parking facilities except for intercept / day -skier parking provided at initial development phase. 3. Theatres, 4. Conference / Convention Facilities; S. Aboveground public utility installations; 6. Churches; 7. Drive - through, windows, 749431 Page: 29 of 33 Sara Fisher Eagle Cty, CO 23 R 165 .00 2105/00014 40P 00 Confluence PUD Revised Submittal No.3 October 27, 1998 Page 2 of 2 D. Development Standards: I. Lot Area: 18.886 Acres [Not to be affected by future condominium and/or subdivision platting] 2. Building Height: No building or portion thereof may extend above a plane 10 feet below that projected horizontally fxOm the top of the Avon Center Building, and in no case shall any building be taller than 120 feet, measuring said height as defined in Title 17 of the Avon Municipal Code. Specific buildings will provide for appropriate view corridors from town core areas. 3. Building Setbacks: See Building Setback Diagram — .Exhibit N (Revised 10/9/98) A. Riverfront: Seventy Five Feet [75'] from the mean annual high water mark. if the 100 year flood plain or identified wetlands exceed the 75' setback those exceptions will constitute the designated setback. B. Side [East]: Twenty Feet [20'] C. Rear [North]: Ten Feet [10'] Zero Feet [0'] for structures pertaining to transportation systems and / or buildings or pedestrian linkages. Non - habitable porte- cochere, low level roof structures covering open air pedestrian ways and awnings relating to commercial uses may encroach into setback. 4. Maximum Site Coverage: Seventy per cent [70 %] S. Maximum Density: 456 Dwelling Units which equates to 30 Dwelling Units per acre of buildable area. (3 hotel rooms or Accommodation Units = 1 Dwelling Unit) 6. Parking: A. Commercial: Five spaces per thousand square feet gross leasable floor area [GLl~AJ applied to a full range Of commercial uses [allowed in -Town Center zoning such as retail, restaurant, and /or office] excluding parking requirements for incidental guest oriented commercial uses within hotels. B. Residential/Lodging: I . Hotel: 1.0 parking space per room (Including parking requirements for incidental guest oriented commercial uses within hotel) 2. Timeshare / Interval Ownership Units: 0.6 parking spaces per bedroom 3. Dwelling Unit: 2.0 parking spaces per unit up to two [2] bedrooms plus, 0.5 parking spaces per additional bedroom. 4. Deed Restricted Employee Housing: 0.5 parking spaces per bedroom C. No additional guest spaces shall be required. All surface and below grade parking spaces shall be counted toward meeting these requirements. 749431 Page: 30 of 33 Sara Fisher Eagle Cty, Co 23 R 165 ,00 2/05/0001 04 40P 00 Final 10/27/98 Exhibit C -2 749431 Page: 31 of 33 02/0512001 04;40P Sara Fisher Eagle Cty, CO 23 R 165.00 D 0.00 27 Lot C PUD Revised Submittal October 27, 1998 SECTION 11: Zoning Review: Title 17 I DEVELOPMENT STANDARDS: A. Intention: This development is intended to complement the surrounding town center developments, future developments and expansions and to provide a variety of uses on Lot C such as lodges, commercial establishments and offices in a predominantly pedestrian environment, These development standards are intended to provide a development which distinguishes this development from other zone districts within the Town. B. Allowed Uses: The following uses shall be permitted in this Lot C development and those designated with a ■ shall also be allowed at plaza / ground level, those uses not designated with a ■ shall not be permitted at plaza / ground level: 1. r Retail Stores; 2. ■ Specialty Shops; 3. ■ Restaurants, excluding drive - through, windows; 4. ■ Cocktail Lounges; 5. ■ Personal service shops; 6. ■ Professional offices; 7. ■ Hotels; 8. ■ Lodges; 9. Apartments; 10. Condominiums; I L ■ Indoor recreation and/or entertainment facilities; 12. ■ Financial Institutions; 13. Bed and breakfast lodge; 14. Time - share, interval ownership, and fractional fee ownership projects; and, 15. ■ Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district, to be approved by the zoning administrator. C. Special Review Uses: I. Public Transportation facilities; 2. public parking facilities; 3. Theatres; 4. Conference / Convention Facilities; 5. Churches; 5. Aboveground public utility installations; and, 6. Drive - through windows. 749431 Page: 32 of 33 Sara Fisher Eagle Cty, CO 23 R 165.00 2105 (D ©O' 4.4OP 00 Lot C PUD Revised Submittal October 27, 1 998 Page 2 of 2 D. Development Standards: I. Lot area: 3.24 Acres [Subject to future condominium and/or subdivision platting] 2. Building Height: Subject to a Building Height equal to the Avon Center Building 3. Building Setbacks: Height subject to verification by a licensed professional surveyor. A. Front [North]: West Beaver Creek Boulevard - Twenty Feet [20'] Front [West]: Benchmark Road — Twenty Feet [20'] B- Side [Bast]: Lot `B' — Ten Feet [10'] Side [West]: Benchmark Road — Ten Feet [10'] C. Rear [South]: The Town of Avon Mall - Ten Feet [10'] (Non - habitable porte- cochere, low level roof structures covering open air pedestrian ways and awnings relating to commercial uses may encroach ten feet into setbacks.) 4- Maximum Site Coverage: Seventy per cent [70 %] S• Maximum Density: 210 Dwelling Units - Site Density of 65 Dwelling Units / Acre 6. Parking: (3 hotel rooms or Accommodation Units = 1 Dwelling Unit) A. Commercial: Five spaces per thousand square feet gross leasable door area [GLFA] applied to a full range of commercial uses [allowed in `Town Center' zoning such as retail, restaurant, and / or office] excluding incidental guest oriented commercial uses within hotel. B. Residential/Lodging: 1. Hotel: 1.0 parking space per room (Including incidental guest oriented commercial uses within hotel) 2. Timeshare / Interval Ownership Units: 0.6 parking spaces per bedroom 3. Residential Unit: 10 parking spaces per unit up to two [2] bedrooms plus, 0.5 parking saces per addi 4. Deed Restricted Employee Housing: 0.5 parking paces per bedroomttonal bedroom. p k C. No additional guest spaces shall be required. All surface and below grade parking spaces shall be counted toward meeting these requirements. 749431 Page: 33 of 33 Sara Fisher Eagle Cty, Co 23 R 165, pp 2lDb /D ©01 4:4oP D©