22.02.08 MA BGV Avon, LLCEagle County, CO 202203283
Regina O'Brien 02/25/2022
Pgs: 20 11:16:30 AM
REC: $108.00 DOC: $0.00
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of February
8, 2022, (the "Effective Date") by and between BGV Avon LLC, a Colorado limited liability
corporation ("Owner"), and the Town of Avon, a home rule municipal corporation of the State of
Colorado ("Town") (Owner and Town may be referred to individually as "Party" and collectively
as "Parties"), and, as to Article V of this Agreement only, UPPER EAGLE REGIONAL
WATER AUTHORITY, a quasi -municipal corporation and political subdivision of the State of
Colorado ("Authority").
A. The Owner owns approximately 21.52 acres within the Town that is legally described as:
A PARCEL OF LAND LOCATED IN THE NORTHWEST 1/4 SOUTHEAST 1/4
SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL
MERIDIAN LYING SOUTHERLY OF U.S. HIGHWAY 6, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A BRASS CAP SET FOR THE SOUTHEAST CORNER OF THE
NORTHWEST 1/4 SOUTHEAST 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE
82 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTH 89 DEGREES
53 MINUTES 54 SECONDS WEST A DISTANCE OF 1302.02 FEET ALONG THE
1/16 LINE; THENCE NORTH 19 DEGREES 32 MINUTES 15 SECONDS EAST A
DISTANCE OF 1097.52 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-
WAY LINE OF U.S. HIGHWAY 6; THENCE ALONG SAID SOUTHERLY RIGHT-
OF-WAY LINE ALONG A NON -TANGENT CURVE TO THE RIGHT HAVING A
RADIUS OF 3770.00 FEET AND A CENTRAL ANGLE OF 04 DEGREES 27
MINUTES 57 SECONDS AN ARC DISTANCE OF 293.85 FEET AND CHORD
BEARING AND DISTANCE OF SOUTH 65 DEGREES 20 MINUTES 12
SECONDS EAST 293.78 FEET; THENCE ALONG SAID SOUTHERLY RIGHT-
OF-WAY LINE SOUTH 58 DEGREES 48 MINUTES 40 SECONDS EAST A
DISTANCE OF 128.74 FEET; THENCE ALONG SAID SOUTHERLY RIGHT-OF-
WAY LINE SOUTH 63 DEGREES 10 MINUTES 00 SECONDS EAST A
DISTANCE OF 622.93 FEET TO A POINT ON THE EAST 1/16 LINE OF SAID
SECTION 12; THENCE ALONG SAID 1/16 LINE SOUTH 00 DEGREES 12
MINUTES 20 SECONDS EAST A DISTANCE OF 561.57 FEET TO THE POINT
OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO.
Street address: 38460 Highway 6, Town of Avon, County of Eagle, State of Colorado
("Property").
B. The Owner submitted an application to the Town for approval of a Major Design and
Development application for a condominium project referred to as Frontgate Avon
Condominiums and Townhomes("Application").
C. After holding a public hearing on September 7,202 1, the Town of Avon Planning and
Developwt of Avon
February B, 2022 FNAL
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Zoning Commission approved the Application conditioned upon the execution of this
Agreement prior to a building permit.
D. The Application includes a Landscape Plan and Irrigation Plan, which includes a
limited irrigated area and drought tolerant species.
E. The Application includes public improvements that necessitate further review, security,
warranty, and acceptance upon satisfactory completion.
F. The current zoning does not allow timeshare uses, and therefore, this Development
Agreement does not include a requirement for a timeshare amenity fee.
G. 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 Town's
Comprehensive Plan; ensure reasonable certainty, stability and fairness in the land use
planning process; stimulate economic growth; secure the reasonable investment -backed
expectations of the Owner; foster cooperation between the public and private sectors in
the area of land use planning; and otherwise achieve the goals and purposes of the Town.
NOW, THEREFORE, in consideration of the recitals set forth above, the terms, conditions,
covenants and mutual promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and the
Town agree as follows with respect to the development of the Property:
ARTICLE I
Definitions. The following terms shall have the meanings set forth below unless the context in
which they are used clearly indicates otherwise:
1.1 Assacistion. The common interest community association and/or other entity formed or to
be formed for purposes of governing the rights, obligations and interests of owners of
condominiums, townhomes and other interests in the Development upon completion of
construction thereof and prior to the sale or conveyance of any individual residential units.
Certain provisions relating to the rights and obligations of the Association are provided in
Article X of this Agreement.
1.2 Association Governing Documents. The declaration of covenants (which are recorded in
the Eagle County Clerk and Recorder's Office and which run with the land), articles of
incorporation, bylaws, rules and regulations, and any other documents creating or governing
the Association and its members, as in existence from time to time.
1.3 DeveloMmggt. The project to be constructed on the Property as described in the
Development Plan.
Devebpnwt Agreement: BGV Avon LLC — Town of Avon
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1.4 De_ v�mg8l Flan. The Major Design and Development Plan entitled Beaver Creek
Mountainside Condominiums + Townhomes, dated July 16, 2021 that was approved by the
Town through action by the Town of Avon Planning and Zoning Commission, including
and incorporating any conditions of the Avon Planning and Zoning Commission, is made
part of the land use approval for the Development Plan.
1.5 DeveWM Mt flan CQmnQnents. The following plan set sheets contained in the
Development Plan are incorporated by reference into and made a part of this Agreement:
[Sheet C1.0 — C6.0 — Phase 1 & Phase 21 Public Property Improvement Map
[Sheets L1.0 -L3.19 & IR1.0-IR1.41 Landscape Plan & Irrigation Plan
[Sheets C1.0 — C6.0 — Phase 1 & Phase 21 Owner Maintained Public
Improvements
1.6 LandsciWe & JWggUgn r1n. The approved Landscape Plan and Irrigation Plans, Sheets
L1.0 -L3.19 & IR1.0-IR1.4 of the Development Plan, is made part of the land use approval
for the Development Plan.
1.7 MunidRal Code. The Avon Municipal Code, including the Avon Development Code, as
may be amended from time to time.
1.8 Puhlic Improvements. Those improvements to be acquired, constructed or installed for the
benefit of the public, including, but not limited to, the Public Improvements described in
Article N and in the Public Property Improvement Map.
1.9 Pubbe PaWaa Papa'Improvement Man. The approved Public Property Improvement Map,
Sheets C1.0 — C6.0 — Phase 1 & Phase 2 of the Development Plan, is made part of the land
use approval for the Development Plan.
1.10 ROW. "ROW' shall mean that certain public right of way as described in the Development
Plan.
1.11 Tg�. The term of this Agreement as provided in Article III.
ARTICLE II
12EVELOPMENI FLAN
2.1 Development Plan. The Development Plan sets forth the approved scope of development of
the Property. The Town hereby confirms that this Development Agreement and
Development Plan expressly supersedes and terminates the prior Development Agreement,
dated as of August 27, 2019, between Colorado World Resort, LLC, a Colorado limited
liability company, and the Town, and recorded Dec. 12, 2019 in the records of the Eagle
County, Colorado Clerk and Recorder at Reception 201921221 ("CWR Development
Agreement'), which CWR Development Agreement shall hereinafter be void and of no
further effect.
DevebpwntAgmenwt 6GV Avon LLC—Town of Avon
February 8, 2022 FINAL
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2.2 CUMgMance with ileneral RaWalWall. The approval of the Development Plan and this
Agreement shall not preclude the application of Town ordinances and regulations, or state or
federal laws and regulations, which are general in nature and are applicable to all property
subject to land use regulation by the Town, including, but not limited to, building, exterior
energy offset, fire, plumbing, electrical and mechanical codes, as all such regulations exist
Development Agreement BGV Avon LLC — Town of Avon
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on the date of this Agreement or may be enacted or amended after the date of this
Agreement.
ARTICLE III
ION
3.1 J=. The term of this Agreement shall commence on the Effective Date of this
Agreement and shall continue after construction of the building(s) for so long as the
building(s) which comprises the Development continues to exist and for five (5) years after
such time all buildings that comprise the Development no longer exist on the Property. In
the event the building(s) which comprises the Development is destroyed by fire or other
calamity and then reconstructed within five (5) years, such reconstructed building shall be
deemed the building(s) that comprises the Development and this Agreement shall continue
in full force and effect until five (5) years after the reconstructed building(s) no longer
exists. The Parties may terminate this Agreement earlier by mutual agreement.
1 � lu .' � / u l ►Y
4.1 PoWIS ImRrovements. The Owner agrees to construct and install the public improvements
set forth in this Agreement (the "Public Improvements"). Such obligations directly relate
to the Application complying with the minimum required development standards set forth in
the Code and are material to the terms, conditions, covenants and mutual promises
bargained for by Town and the Owner in this Agreement. The Owner shall install or cause
to be installed all Public Improvements that the Owner is required to construct in a good and
workmanlike manner in accordance with the applicable regulations of the Town and
applicable Utilities, as defined below, and in accordance with this Agreement.
(a) Utilily Improvements. The Owner agrees to install all utility improvements as
described in the Development Plan.
(b) Drainage Improvements. The Owner shall install drainage improvements for
stormwater control and quality as described in the Development Plan.
(c) Sidewalk. The Owner shall install the sidewalk adjacent to Highway 6 running the
length of the project, from the west side of the Property to the east side of the
Property, as described the Development Plan.
(d) Turn Lanes. The Owner shall install turn lanes off Highway 6, as described in the
Development Plan.
4.2 Security for Public Improvements. Owner shall post sufficient security to guarantee the
installation, performance, or maintenance of any required Public Improvements, and any
public facilities damaged by Developer during construction of the Development or Public
Improvements. The total amount of required security for Public Improvements and the form
of the Public Improvements shall comply with Avon Municipal Code 7.32.100 — Public
Improvements. The required Public Improvements shall include all Public Improvements
Devebpwnt Agmenw : BGV Avon LLC— Town of Avon
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for Phase 1 and 2 of the Public Improvements identified on the Public Improvement Map.
As Public Improvements are completed, Developer may apply to the Town Manager for
release for all or part of the security.
4.3 Timing of Public Improvements. The Owner shall complete the Public Improvements and
the Town shall have provided written notification of acceptance of the Public Improvements
by the Town (the "Town's Notification of Acceptance") on or before the earlier of (1) date
of a certificate of occupancy or temporary certificate of occupancy, whichever is earlier, for
Phase lthe first phase construction of the Development, or (2) within three (3) years of
obtaining a grading permit, foundation permit, or building permit, whichever is earlier, or
(3) December 31, 2024. The Owner shall inform the Town of all construction plans within
Town property and within the ROW at least ninety (90) days prior to the start of
construction that is to occur within Town property or the ROW. If the Owner has not
received the Town's Notification of Acceptance from the Town of all Public Improvements,
the Town may withhold the issuance of a Temporary Certificate of Occupancy.
4.4 Warranly Period. The Public Improvements constructed and installed by the Owner shall
be warranted to be free from defects in material, workmanship and quality for a period of
two (2) years after the date of the Town's Notification of Acceptance (the "Warranty
Period"). In the event of any such defect arising during the Warranty Period, the Town may
require the Owner to correct the defect in material, workmanship or quality. Ten percent
(10%) of the total actual cost of completion of all Public Improvements to be installed and
constructed by the Owner shall be collected by the Town from the Owner as security during
such two (2) year period as the improvement warranty pursuant to Code § 7.32.100, as may
be amended. In the event any corrective work with respect to the material, workmanship and
quality is performed during the Warranty Period then the warranty on said corrected work
with respect to the material, workmanship and quality shall be extended for two (2) years
from the date on which it is completed. Security equal to 125% of the cost of any corrected
work with respect to the material, workmanship and quality, as estimated by the Town, shall
be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds
are not held by the Town, in accordance with Code § 7.32.100, for a period of two (2) years
from the date of completion of the corrected work.
4.5 Engineering Certification. Upon completion of portions of the Public Improvements to be
installed and constructed by the Owner, the Owner will cause its engineers (who shall have
been actively engaged in observing to a commercially reasonable degree the construction of
the Public Improvements and who are licensed in the State of Colorado) to provide a written
opinion. The written opinion shall be in form and content reasonably satisfactory to the
Town's Engineer, and based upon on-site observation, review of sufficient construction -
observation reports, field test reports, and material test reports and certifications by qualified
personnel, shall opine that the installation of the Public Improvements, or portions thereof as
may be completed from time to time, have been completed, and that to the best of the
opining engineer's knowledge and professional judgment, the Public Improvements are in
conformance with all Standards (as defined below), plans, and specifications as submitted to
and previously approved by the Town, or the pertinent utility supplier, as depicted on Sheets
C 1.0 — C6.0 of the Development Plan. Inspection reports, test results, as -constructed plans,
including surveys, and other supporting documentation shall be submitted with the
Development Agreement• BGV Avon LLC — Town of Avon
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certification. The as -constructed plans shall be submitted on paper and in a digital format,
either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
4.6 Inspection Procedures. All Public Improvement work shall be done under the published
inspection procedures and standards (collectively, "Standards") established by the Town,
Holy Cross Energy, Eagle River Water and Sanitation District, Upper Eagle Regional Water
Authority, Xcel Energy, CenturyLink, Comcast, or any other utility ("Utilities"), as
applicable and shall be subject to the reasonable satisfaction of the Town and applicable
Utilities. No work shall be deemed complete until the reasonable approval and acceptance
of the Public Improvements by the Town or the Utilities. Inspections by the Town and
Utilities shall not relieve the Owner or the Owner's agents from any responsibility or
obligation to ensure that all work is completed in conformance with all Standards, plans,
and specifications as submitted to and previously approved by the Town and Utilities.
(a) Cost of InsRections: The cost, if any, of inspections, by Town employees, or an
independent third -party inspector, shall be paid by the Owner.
(b) Notice of Non -Compliance: In the event that the Town, through its inspectors,
reasonably determines that the Public Improvements to be installed and constructed by
the Owner are not in compliance with the Development Plan, it shall give written
notice of such non-compliance ("Notice of Non -Compliance") to the Owner. The
Notice of Non -Compliance shall include a narrative describing the unsatisfactory
construction work with specific reference to the applicable construction plans and
specifications with which the Public Improvements fail to comply. The Notice of Non -
Compliance must be provided to the Owner within two (2) working days of the date of
the inspection.
4.7 Jemnification and Hold Harmless. The Owner shall indemnify, defend and hold
harmless the Town (and its officials, agents, representatives, employees, contractors,
and successors and assigns) from all claims, demands, damages (including, without
limitation, consequential damages), causes of action, fines, penalties, losses, liability,
judgments, costs or expenses (including reasonable attorneys' fees) resulting from
claims for bodily injury (including death) to any person or damage to any property,
arising during the construction of the Public Improvements or otherwise arising on
the Property or from the Owner's activities while performing this Agreement
(including, without limitation, maintenance, repair and replacement activities),
including without limitation any claim that all or any portion of the Public
Improvements installed and constructed by the Owner on Town property or ROW
constitute a dangerous and/or unsafe condition within a public right-of-way;
provided, however, that this indemnity shall not apply to any claims, demands,
damages (including, without limitation, consequential damages), causes of action,
fines, penalties, losses, liability, judgments, costs or expenses (including reasonable
attorneys' fees) resulting from any act or omission of the Town or its officials,
agents, representatives, employees, inspectors, including independent third -party
inspectors, contractors, and successors and assigns.
4.8 Insurance. With respect to Owner's obligation with respect to and/or any claims
DevelopmentAgmernent BGV Avon LLC —Town of Avon
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arising from the construction or installation of the Public Improvements, all Owner's
or Owner's contractor's insurance policies related in any way to the Public
Improvements shall be endorsed to include the Town and the Town's officers and
employees as additional insureds/loss payees, applicable within each policy. Every
policy covering the Public Improvements shall be primary insurance, and any
insurance carried by the Town, its officers, or its employees, or carried by or
provided through any insurance pool of the Town, shall be excess and not
contributory insurance to that provided by the Owner or the Owner's contractors. No
additional insured endorsement to the policy required herein shall contain any
exclusion for bodily injury or property damage arising from completed operations.
The Owner and its contractor shall be solely responsible for endorsementladditional
insured costs, premiums and deductible losses under any policy required above.
ARTICLE V
A&= MUM& NAM USE ADM ENEQ=HEM
5.1 Water ights/Cash in Lieu payment. The Property has not been allocated water
rights by the Town and must dedicate water rights to serve 84 SFEs and irrigate 0.30
acres of landscaped area as required by the Authority or, in the alternative, the Owner
shall pay the Authority cash -in -lieu of a water rights dedication. The Owner shall
provide proof of dedication or of payment of cash -in -lieu of water rights dedication
and proof of water system impact fees in the amount of $56,379.00 prior to the
issuance of a building permit.
5.2 Indoor WWr LLjage Limit. The Owner and Association shall adhere to an indoor
usage water budget of no more than 300 gallons per day, per unit, and shall be
responsible for managing use to this limit. Any use in excess of this limit may be
subject to an excess use fee as determined by the Authority and may be subject to
penalties and enforcement actions by the Town.
Frontgate Avon - Indoor Total Demand Limits
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
Use per
Unit 9.3 8.4 9.3 9 9.3 9 9.3 93 9 9.3 9 9.3 110
(legal)
Total 781.2 705.6 781.2 756 781.2 756 781.2 781.2 756 781.2 756 781.2 9198
(ltgal)
*Based on 300 gaVday
OUS111=1
(a) The Owner and Association shall install a separate irrigation meter pursuant to
Avon Municipal Code 7.28.050(6)(ii)(D). This section establishes a maximum
allowable outdoor water use limit for the development to ensure this
Development does not exceed its outdoor water allocation as established by the
Devebpment Agreement SGV Avon LLC — Town of Avon
February 8, 2022 FWAL
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Authority's Water Dedication Requirement and Water Service Agreement
between the Owner and the Authority. During the first two growing seasons, the
Owner and Association shall not exceed 281,000 gallons of outdoor water use
in any calendar year. Thereafter, the Owner and Association shall not exceed
114,000 gallons of outdoor water use in any calendar year. The following
monthly budget is based upon a total irrigated area of 0.30 acres or 13,000
square feet.
FYontgate Avon - Outdoor Total Demand Limits
May June July August September Total
Gallons 19324 25380 27606 23465 17365 113140
(b) Outdoor Water Usage on the Property may be curtailed by the Authority or Town
during periods of low stream flows, and/or during instream flow calls. Once
connected, the Authority and/or Town will monitor water usage of the Property.
5.4 Enforcement.
(a) The Authority, upon determining that the Owner or Association has exceeded the
Water Usage Limits prescribed above in this Article, may provide written notice by
mail or e- mail to the Owner or its successors and assigns of the violation of this
Section and demand that the excessive water usage cease immediately. The Town, in
its sole discretion, may also issue a notice under this Section when it has been notified
by the Authority that there is a violation of this Article.
(b) In the event that the water usage of the Property exceeds the Water Usage Limits in
this Article, the Owner and Association shall be obligated to either reduce its water
usage to within the Water Usage Limits, or, at the Authority's sole discretion, pay
additional cash in lieu of a water rights dedication fees for the excess water use. If the
Authority, in its sole discretion, does not accept an additional cash in lieu of water
rights dedication fee, the Owner or its successors and assigns, and the Association,
shall be obligated to reduce its water use to the Water Usage Limits in accordance
with all remedies set forth in this Agreement.
(c) Even if the Owner or Association ceases excessive water usage immediately, the
Authority, in its sole discretion, may impose excess water usage fees on the Property
for the period of excess usage.
(d) Failure to correct excessive outdoor irrigation water use may result in a seven (7) day
Notice of Disconnection, at the sole discretion of the Authority or other enforcement
action commenced by the Authority and/or Town.
(e) The Town has the right, but not the obligation, to enforce the provisions of this Article
and may take such action as permitted or authorized by law, this Agreement or the
DevebpmentAgmement BGV Avon LLC—Town of Avon
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ordinances of the Town, as the Town deems necessary to protect the public health,
safety and welfare. Nothing in this Agreement shall be construed to restrict or limit the
Town's rights to enforce and regulate water usage as such rules and regulations may
be adopted the Town generally.
5.5 Survival of Water Use Limitations. The limitations on water use and consumption in
this Article V shall survive the termination or expiration of this Agreement unless
mutually amended or released in writing by the Parties.
6.1 Ulierations 21W bjaintCUgae. The Owner understands and acknowledges that those
certain aspects of the maintenance, operation and use of the Development, including
drainage, infrastructure, landscaping, and sidewalks ("Owner Maintained Public
Improvements"), as delineated on Sheets C 1.0 — C6.0 — Phase 1 & Phase 2 of the
Development Plan and incorporated herein, require maintenance by Owner.
(a) Except in the event such liability arises from the action or omission of Town or its
officials, agents, representatives, employees, inspectors, including independent third -
party inspectors, contractors, and successors and assigns, but without waiving
governmental immunity, the Owner agrees that the Town is not liable, and will not
assume any liability, responsibility, or costs for any damage, maintenance, or repair of
any Owner Maintained Public Improvements erected or maintained by the Owner
under this Agreement.
(b) If the Owner fails to maintain the Owner Maintained Public Improvements, the Town
may perform the necessary maintenance and/or repair, as determined by the Town in
its sole discretion, after providing at least thirty (30) days written notice to the Owner
detailing the necessary maintenance and/or repair. If, after the remedy period set in the
notice, the Owner fails to perform the necessary maintenance and/or repair, the Town
may perform such maintenance and/or repair. The actual costs of the maintenance
and/or repair, together with a fifteen percent (15%) charge for administration, shall be
assessed against the Property. The Town shall send a notice of assessment to the
Owner and upon the expiration of the thirty (30) period provided in such notice, the
costs, including the administrative charge, shall be a lien upon the Property. If the
assessment is not paid within thirty (30) days of the lien, the Town may impose
interest upon such costs and upon the administrative charge, at the rate of eighteen
percent (18%) per year. All costs, interest and charges, including the costs of
collection, may be certified to the County Treasurer and collected in the same manner
as taxes.
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ARTICLE VII
SUBDIVISM
7.1 Future Subdivision. Before acceptance of the Public Improvements, the Owner shall
submit a complete application for a subdivision of land pursuant to the Avon Municipal
Code. Easements for Public Improvements shall be provided for public pedestrian usage of
the sidewalk, and for the usage of the stormwater and drainage improvements for their
intended purposes.
7.2 Community Housing Units. Owner agrees to construct, as part of Phase 1 of the
Development, two (2) three-bedroom units, consisting of not less than 1,375 square feet for
each unit (the "Community Housing Units"). The use of the Community Housing Units
shall be restricted to Community Housing (as that term is defined in the Municipal Code) in
accordance with such deed restrictions as approved by the Town Council, in Town
Council's sole discretion. The form a deed restriction shall be finalized and approved by
Avon Town Council prior to the date of a certificate of occupancy or temporary certificate
of occupancy, whichever is earlier, for Phase 1 of the Development.
ARTICLE VIII
RESTORATION OF ^ITE
8.1 Restoration Due to Inactivity. Unless a building permit extension is granted in writing by
the building official upon justifiable cause demonstrated by the Owner, the building permit
shall become invalid after 180 days of suspended work. If the building permit becomes
invalid, the Owner shall restore the site to the condition the site was in at the time of
issuance of the building permit (subject to changes reasonably necessary for public safety or
preservation of land and adjoining land, or to prevent waste) within thirty (30) days from the
date of notice by the Town that restoration is required. Upon restoration of the Property in
accordance with this Article and to the reasonable satisfaction of the Town, this Agreement
shall automatically terminate.
8.2 Restoration Funds. The Town currently holds funds deposited by the Owner in the amount
of $209,475.00 as security for any possible future required restoration. If the obligation to
restore arises (i.e., if the permit becomes invalid) and if the Owner thereafter fails to restore
the Property in compliance with this Article and to the Town's satisfaction, the Town may
use such funds to cover the costs of any required restoration work. The Town shall maintain
an accounting of such costs and once restoration work is completed, the Town shall return
any remaining funds along with such accounting. If the funds are insufficient to perform the
restoration work, the Owner, upon demand from the Town, shall deposit additional required
funds as determined by the Town. If the Owner fails to provide such funds, the Town's
costs of restoration over the amount of funds current held, shall be a lien upon the Property
to be collected in the same manner as property tax and the Town may certify such amount to
the County Assessor for collection, including an additional 10% imposed by the Town for
costs of collection.
83 Return of Funds. After the issuance of a Certificate of Occupancy for Phase 1 of the
Development, the Town shall refund 50% of the restoration funds to the Owner. After the
Development Agreement BGV Avon LLC — Town of Avon
February 8, 2022 . FINAL
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issuance of a final Certificate of Occupancy for the last building to be constructed within the
Development, the Town shall refund the remaining restoration funds to the Owner.
ARTICLE IX
9.1 Default by Town. A "breach" or "default' by the Town under this Agreement shall be
defined as the Town's failure to perform its obligations under this Agreement, after the
applicable cure period described in Section 9.3, below.
9.2 Default by Owner. A "breach" or "default" by the Owner shall be defined as the Owner's
failure to fulfill or perform any obligation of the Owner contained in this Agreement
following the applicable cure period described in Section 9.3, below, or the Owner's failure
to fulfill or perform any obligation of the Owner contained in any other written agreement
relating to the Property between the Town and the Owner or the Town following any
applicable cure period contained in such agreement. The failure by the Owner to cause the
Association to collect and remit the timeshare amenities fee to the Town as provided in
Section 7.2 shall constitute a default by the Owner.
9.3 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 11.6, and the defaulting Party shall have five (5) days for
monetary obligations and thirty (30) days for non -monetary obligations from and after
receipt of such notice to cure such default. With respect to non -monetary obligations, if such
default is not of a type that with the exercise of reasonable diligence can be cured within
such thirty (30) day period and the defaulting Party gives written notice to the non -
defaulting Party 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 up to one hundred
eighty (180) days given the nature of the default to cure such default, provided that such
defaulting Party is at all times within such additional time period actively and diligently
pursuing such cure.
9.4 Regadles fgr ]2efault by TMIf a default by Town under this Agreement is not cured as
described in Section 9.3, the Owner shall have the right to enforce the Town's obligations
by an action for any equitable remedy, including, without limitation, injunction or specific
performance or an action to recover damages. Each remedy in this Section 9.4 is cumulative
and is in addition to every other remedy provided for in this Agreement or otherwise
existing at law or in equity.
9.5 Remedies for Default by the Owner or Association. If any default by the Owner or the
Association under this Agreement is not cured as described in Section 9.3, the Town shall
have the right to enforce the Owner's or the Association's obligations hereunder by an
action for any equitable remedy, including injunction or specific performance, or an action
to recover damages. Each remedy in this Section 9.5 is cumulative and is in addition to
every other remedy provided for in this Agreement or otherwise existing at law or in equity.
In addition, if a default of this Agreement by the Owner or the Association also constitutes a
violation of the Code and non- compliance with the Development Plan for this Property then
DevebpmentAgreement BGV Avon LLC —Town of Avon
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the Town shall have all enforcement rights as described in the Code and other applicable
sections of the Code concerning enforcement and penalties for violations, as the Code may
be amended from time to time.
9.6 Mediation. The Parties agree that prior to submitting any controversy or claim arising out
of or relating to this Agreement, including, without limitation, any breach, default, or
interpretation hereof, to a legal process, and as a prerequisite to initiating any legal process,
the Parties shall attempt to resolve the controversy or claim in good faith in accordance with
the procedures stated in this Section 9.6. The Party asserting the breach, default,
controversy, or claim shall first provide written notice to the other Party, citing this Section
9.6, and requesting consideration by the other Party to resolve the controversy or claim. The
Parties shall use reasonable efforts to resolve the dispute within thirty (30) days from the
date of the notice commencing this process. If the dispute is not resolved within thirty (30)
days of the date of the notice, or by such longer period as may be mutually agreed by the
Parties, then either Party may initiate a legal action. At any time after the written notice
citing Section 9.6, the Parties may mutually agree to appoint an independent neutral third
party (the "Mediator") to assist them in resolving the dispute. In such an instance, (i) each
Party agrees to provide the Mediator access to all relevant and non -privileged documents
and may impose reasonable confidentiality provisions; (ii) the Parties may make
representations and submissions to the Mediator but there shall be no formal hearing unless
the Mediator requires a formal hearing and provides a written notice to the Parties; (iii) the
Mediator shall make his recommendations in writing as soon as is reasonably possible but
not later than thirty (30) days following the receipt of representations and submissions by
each Party; (iv) the Mediator's recommendation shall not be binding upon the Parties, but
would become binding upon the Parties if voluntarily accepted by both Parties in writing;
and (v) the fees of the Mediator shall be paid equally by the Parties. Following receipt by
the Parties of the recommendations made by the Mediator, the Parties shall have ten (10)
days, or such longer period as may be mutually agreed by the Parties, to accept said
recommendation or a mutually acceptable alternative. Submission of the dispute to the
Mediator shall be deemed by the Parties to toll the applicable statute of limitations until the
mediation process is concluded.
ARTICLE X
#." . fr . ►�.:_
10.1 F4r.MgdonsfA1i&ocf&Qa. The Owner shall form the Association upon prior to the
issuance of a Temporary Certificate of Occupancy or Certificate of Occupancy for the first
building to be constructed within the Development and prior to any occupancy thereof;
provided, however, that in the event that the Association has not been formed as required,
the Owner shall be liable for all obligations of the Association hereunder until such time as
the Association is formed. Until such time as the Owner no longer controls the Association
pursuant to State law, Owner shall remain liable for all obligations of both the Owner and
the Association pursuant to this Agreement.
10.2 AsaacintWn Deemed to be Qwner. In addition to the rights and obligations of the
Association, as specifically stated in this Agreement, at such a time as the Association is
formed, except for any right of Owner to a refund of any deposit or other monetary security
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held by Town hereunder, the Association shall be deemed to be the Owner with respect to
the provisions, rights, and obligations of this Agreement. The provisions of any other
Section of this Agreement necessary to give effect to the Association's rights and
obligations under the foregoing Articles and Sections shall also be deemed to control.
10.3 Indemnification of Town. The Association shall indemnify and hold harmless the Town
for Owner Maintained Public Improvements. The Declarant and Association have certain
obligations to construct, install and maintain public improvements on the Property pursuant
to this Development Agreement between Declarant and Town, including Association's
obligation to indemnify and hold the Town harmless for such public improvements, which
Development Agreement is incorporated herein by reference. In addition, the Association
Governing Documents shall state that the Town is a limited third -party beneficiary solely
for the purpose of enforcing the performance of the Association's obligations under this
Agreement.
10.4 ®aaroval of Goveraiag Documents. Owner shall submit the Association Governing
Document for review and approval by the Town as to those matters described in this Section
10 prior to recordation of the Association's Governing Documents. The Association
Governing Document shall include express permission that deed restrictions for community
housing purposes similar to the Town of Avon's i Mi Casa Avon! deed restriction may be
imposed and recorded on the Community Housing Units and any additional residential
units; provided, the imposition of such deed restriction upon any additional residential units
shall be subject to approval of the residential unit owner as agreed upon by the subject
residential unit owner prior to any imposition and recordation of such deed restriction. The
Town will respond to Association Governing Document referral within 14 calendar days.
The Association Governing Documents shall be submitted to the Town prior to the
issuance of a certificate of occupancy or temporary certificate of occupancy, whichever is
earlier, for Phase 1 of the Development.
10.5 11c&Wt by Owner or Association. Any failure of the Association Governing Documents to
contain and maintain the provisions required by this Agreement shall be a default by the
Owner and the Association under this Agreement, and the Town shall be entitled as a
remedy therefor to obtain an order for reformation of the Association Governing Documents
so that they are in compliance with this Agreement.
10.6 Amendments tu_Associa#3on'_s Gaveraj= Documents. As to those matters described in
Section 10, any future amendments to the Association Governing Documents shall require
the written consent of the Town.
ARTICLE XI
VIISCELLANEOUS
11.1 Aaalicable Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado.
11.2 No .faint Yeninre or Partnersbin. No form of joint venture or partnership exists between
the Town and the Owner, and nothing contained in this Agreement shall be construed as
making the Town and the Owner joint venturers or partners.
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11.3 AuWkabMU dAm Mouidpid Gude. All matters not covered by this Agreement are
controlled by the Code to the extent applicable. This Agreement does not prevent the Town
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from imposing additional requirements not inconsistent with this Agreement as conditions
for approval of a subdivision or the granting of a building permit.
11.4 Waiver. No waiver of one or more of the terms of this Agreement shall be effective unless
in writing. No waiver of any provision of this Agreement in any instance shall constitute a
waiver of such provision in other instances.
11.5 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 at the intent of
this Agreement is not frustrated.
11.6 Notices. Any notice or communication required or permitted under the terms of this
Agreement shall be in writing, may be given by the Parties hereto or such Party's respective
legal counsel, and shall be deemed given and received (i) when hand delivered to the
intended recipient(s), by whatever means; (ii) three (3) business days after the same is
deposited in the United States Mail, with adequate postage prepaid, and sent by registered or
certified mail, with return receipt requested; (iii) one (1) business day after the same is
deposited with an overnight courier service of national reputation having a delivery area
encompassing the address of the intended recipient, with the delivery charges prepaid; or
(iv) when received via electronic mail to intended recipient's electronic mail address,
provided below. Any notice shall be delivered, mailed, or sent, as the case may be, to the
appropriate address set forth below:
If to Town: Town of Avon
Attention: Town Manager
P.O. Box 975
Avon, Colorado 81620
Telephone: 970-748-4004
Email: townmanager@avon.org
And: Town of Avon
Attention: Town Attorney
P.O. Box 975
Avon, Colorado 81620
Telephone: 970-7484001
Email: townattomey@avon.org
If to Owner: BGV Avon LLC
Attention: Graham Frank
100 S. Main Street,
P.O. Box 6879
Breckenridge, Colorado 80424
Email: gfrank@breckenridgegrandvacations.com
Development Agreement BGV Avon LLC — Town of Avon
February 8, 2022 - RNAL
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And: John Palmquist
GC Legal Strategies
2520 S. St. Paul St.
Denver, Colorado 80210
Email: john@jpalmquistlaw.com
Each Party may change its addresses and/or email addresses for notices pursuant to a
written notice that is given in accordance with the terms hereof As used herein, the term
"business day" shall mean any day other than a Saturday, a Sunday or a legal holiday for
which U.S. Mail service is not provided. Whenever any date or the expiration of any
period specified under this Agreement falls on a day other than a business day, then such
date or period shall be deemed extended to the next succeeding business day thereafter.
11.7 AMWdMenj Uj Aga=ggj. For the purpose of any amendment to this Agreement,
"Owner" shall mean only the Owner as defined herein and those parties, if any, who have
specifically been granted, in writing by the Owner, the power to enter into such
amendments. No amendment to this Agreement shall be valid unless signed in writing by
Owner and Town.
11.8 AgdgUMMI. This Agreement shall be binding upon and shall inure to the benefit of the
successors in interest or the legal representatives of the Parties hereto. The Owner shall have
the right to assign or transfer all or any portion of its interests, rights or obligations under
this Agreement: (a) to the Association; and (b) to an entity or entities formed for the
purpose of developing the Property which are managed by an affiliate of the Owner and
comprised of affiliates of the Owner. Further, the Owner shall have the right to assign 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. Notwithstanding the forgoing, any assignee
shall fully assume in writing all obligations of the Owner assigned to such assignee and
Owner must obtain the Town's written consent to such assignment, which consent will not
be unreasonably withheld or delayed if the Owner has reasonably demonstrated to the Town
that the assignee has the financial capability to perform the obligations under this
Agreement so assigned In no event shall any time-share Owner be individually liable for
any obligations of the Owner or the Association pursuant to this Agreement. Nothing in this
Section shall be deemed to limit or in any way restrict the sale or other conveyance of
property within the Property.
11.9 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. Any electronically delivered counterparts shall have the same force and
effect as an "ink -signed" original.
11.10No Waiver of Gave. 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
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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.
[EXECUTION PAGE FOLLOWS]
Development Agreement- BGV Avon LLC —Town of Avon
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IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement as of the date
first written above.
TOWN:
44
k4V4-0
BY: _ ATTEST:
Sarah Smith Hymes, Mayor
APPROVED AS TO FORM:
BY:
Karl H own Attorney
�
Its: Al 0, A a o (
STATE OF COLORADO
rr
WA
Brenda Torres, Town
ss.
COUNTY OF I
Acknowledged before me thisY"day ofLby 202 , by0rG. K -
as Y)q Cr, ft Wig, R n _ of BGV Avon, LLC., a Colqj9do limited liability company, on
behalf of the limtted liability company.
My commission expires: 0 �6S z _• b?, L
Notary Public
As to Article V of the Agreement only:
I1-ya
DevebPment Agreement: BGV Avon LLC —Town of Avon
February B, 2022 • FINAL
Page 18 of 17
202203283
ATTEST:
CARLY EL FIJA FACKL ER
Nowy r ,b!;c
State C:elf;ra�?
Ngtary ID u 2u1$4611466
My C�n'im�s�iur'� LkIll s U. z-2 22
IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement as of the date
first written above.
BY: ATTEST:
Sarah Smith Hymes, Mayor
APPROVED AS TO FORM:
BY:
Karl Hanlon, Town Attorney
By:
Its:
STATE OF COLORADO )
ss.
COUNTY OF )
Brenda Torres, Town Clerk
Acknowledged before me this day of 2021, by
as of BGV Avon, LLC., a Colorado limited liability company, on
behalf of the limited liability company.
My commission expires:
Notary Public
As to Article V of the Agreement only:
BY: U2a9i�
Development Agreement: BGV Avon LLC - Town of Avon
February 8, 2022 - FINAL
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ATTEST: