TC Agenda 07-24-2007STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
vON
NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON JULY 24, 2007, AT THE AVON
MUNICIPAL BUILDING LOCATED AT 400 BENCHMARK ROAD FOR THE PURPOSE
OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCE:
Ordinance No. 07-05, Series Of 2007, An Ordinance Approving An
Amendment To The Chateau St. Claire Planned Unit Development
(PUD) For Lots 1 & 2, Chateau St. Claire Subdivision, Town Of
Avon, Eagle County, Colorado
A copy of said Ordinance is attached hereto, and is also on file at the office of the Town
Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM
- 5 PM.
Following this hearing, the Council may consider final passage of this Ordinance. This
notice is given and posted by order of the Town Council of the Town of Avon, Colorado
TOWN OF AVON, COLORADO
BY: Patty McKenny
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
JULY 13, 2007.
✓ AVON MUNICIPAL BUILDING, MAIN LOBBY
✓ ALPINE BANK, MAIN LOBBY
✓ AVON RECREATION CENTER, MAIN LOBBY
✓ CITY MARKET, MAIN LOBBY
✓ OFFICE OF TOWN CLERK
TOWN OF AVON, COLORADO
ORDINANCE NO. 07-05
SERIES OF 2007
AN ORDINANCE APPROVING AN AMENDMENT TO THE CHATEAU
ST. CLAIRE PLANNED UNIT DEVELOPMENT (PUD) FOR LOTS I & 21
CHATEAU ST. CLAIRE SUBDIVISION, TOWN OF AVON, EAGLE
COUNTY, COLORADO
WHEREAS, CSC Land, LLC, has applied for an amendment to the existing Chateau St.
Claire PUD and Development Agreement, as more specifically described in the application dated
May 1, 2007 and the terms outlined in the Second Amended and Restated Development
Agreement attached to this ordinance and referenced herein as "Exhibit A"; and
WHEREAS, the application proposes to amend Ordinance 05-12 and the associated
Amended and Restated Development Agreement; and
WHEREAS, the proper posting, publication and public notices for the hearing before the
Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on June 5, 2007, at which time the applicant and the public'were given an opportunity to
express their opinions and present certain information and reports regarding the proposed PUD
Amendment: and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendation for conditional approval on the PUD application to the Town
Council of the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
26th day of June, 2007, at which time the public was given an opportunity to express their
opinions regarding the proposed PUD Amendment; and
WHEREAS, based upon the record and testimony presented, the Town Council of the
Town of Avon finds as follows:
The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete, and all pertinent facts, matters and issues were
submitted at those hearings.
2. The Second Amended and Restated Development Agreement is compatible with
the surrounding neighborhood and the public interest.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, THAT:
The amendment to the Chateau St. Claire PUD and Ordinance 05-12, as more specifically
described in the application dated May 1, 2007, including the Second Amended and Restate
Development Agreement is hereby approved, subject to the following condition:
In no event will the building permit or construction schedule be extended past
July 31, 2008.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this l 0th day of July, 2007, and a public hearing shall be held at the regular meeting
of the Town Council of the Town of Avon, Colorado on the 24th day of July, 2007 at 5:30 P.M.
in the Municipal Building of the Town of Avon, Colorado.
"Town of Avon, Colorado
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the day of , 2007.
Town of Avon, Colorado
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
APPROVED AS TO FORM:
John W. Dunn, Town Attorney
Ordinance No. 07-05 the Gates
Page 2 of 3
EXHIBIT A
SECOND AMENDED AND RESTATE DEVELOPMENT AGREEMENT
Ordinance No. 07-05 the Gates
Page 3 of 3
SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
FOR
THE GATES
(formerly Chateau St. Claire)
THIS DEVELOPMENT AGREEMENT (this "Agreement") was originally made
and entered into as of the Effective Date (defined below) by and between CSC Land, LLC,
a Colorado Limited Liability Company (as more specifically defined below, the "Owner")
and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and
is hereby amended and restated in its entirety by the Owner and the Town as of
, 2007, to remain effective as of the Effective Date.
RECITALS:
A. Owner is a limited liability company. duly organized and in good standing
under the laws of the State of Colorado.
B. Owner owns a parcel of real property described as Lots l and 2, FINAL PLAT
OF CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat
thereof filed June 18, 1987 in Book 729 at Page 742. Eagle County, Colorado
("the Property").
C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and
Development Standards ("PUD") for the Property were approved ("the
Project"), subject to the conditions that i) deed-restricted affordable housing or
employee units be included in the development in an amount equal to ten
percent of the hotel, residential or timeshare units and ii) an access easement be
dedicated prior to issuance of building permit to facilitate shared access
between the Property and the Folson Tract.
D. By Ordinance No. 04-20, Series of 2004, the Town deleted the affordable
housing condition from the PUD in exchange for Owner's agreement to certain
exactions and other conditions which were incorporated into a Development
Agreement for The Gates on Beaver Creek ("the Agreement").
E. By Ordinance No. 05-12, Series of 2005, the Town extended the term of the
Agreement. the period of Vested Property Rights and the outside date for
completion of the Project upon condition that the Owner enter into an Amended
and Restated Development Agreement for the Gates on Beaver Creek ("the
Amended Agreement"),. which Amended Agreement contained a construction
schedule consisting of Milestone Events and deadlines for the completion
thereof.
F. On February 16. 2007. CSC provided written notice that it had been delayed,
hindered or prevented from completing roofing by the Milestone Event date of
March 10, 2007: at the regular meeting of the Town Council on March 27,
2007, Resolution No. 07-13 was adopted, approving an extension in the
Milestone Event for completion of roofing to July 6, 2007, in exchange for
Owner's agreement to certain exactions and other conditions which are
contained herein.
G. The legislature of the State of Colorado adopted Sections 24-68-101, et seq.
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.
H. 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.
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:
APPROVAL OF THIS AGREEMENT CREATES A VESTED
PROPERTY RIGHT PURSUANT TO CHAPTER 17.14, AVON
MUNICIPAL CODE AND ARTICLE 68, TITLE 24, COLORADO
REVISED STATUTES IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.1 Association. Timeshare ownership association formed to manage the
timeshare ownership project located on the Property.
1.2 Effective Date. The effective date of the Town Council ordinance
amending Ordinance No. 98-06 is December 14, 2004.
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1.3 Municipal Code. The Town's Municipal Code, as in effect from time to
time.
1.4 PUD. Planned unit development or PUD, as such terms are defined and
used in Section 17.20.110 of the Municipal Code.
1.5 Resubdivision Plat. A plat approved by the Town authorizing a
resubdivision condominium resubdivision, planned unit development resubdivision or
time-sharing subdivision consistent with Title 16 of the Municipal Code.
1.6 Certificate of Occupancy. Certification pursuant to the Town's building
codes that the premises have been completed and comply with the provisions thereof.
"Certificate of Occupancy" includes any temporary certificate of occupancy.
1.7 Time-share owner. A person vested with legal title to a timeshare estate in
accordance with Section 38-33-1 10, Colorado Revised Statutes.
1.8 Time-share unit. A unit, the title to which is divided into interval estates or
time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes.
1.9 Time-share Amenities Fee. A consensual fee intended to mitigate the
impact of a time-share subdivision, including the cost of transportation and of recreational
facilities.
1.10 Employee Housing Impact Fee. A consensual fee intended to mitigate the
impact of a condominium subdivision and associated facilities on employee housing needs.
ARTICLE II
WAIVER OF CONDITIONS
The affordable housing condition contained in Ordinance No. 98-6, Series of 1998,
and the Building Permit is deleted by the Town as of the Effective Date.
The condition of maintaining an active building permit contained in Ordinance No.
04-20 in accordance with the original Development Agreement (and construction schedule
incorporated therein) shall be waived, amended and restated by the Town, by adoption of
an amending ordinance authorizing the execution of this second amended and restated
Agreement and Owner's compliance with the requirement of Section 3.4 below.
ARTICLE III
EXACTIONS
The following exactions are intended to provide adequate facilities for the public
benefit of the Town:
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3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and
continuing in perpetuity, the Association is obligated to collect from each timeshare owner
and remit to the Town a Timeshare Amenities Fee in the initial amount of $62.29 per year
per fractional interest (defined as a 1/10`}' (five-week) undivided interest or timespan
estate in a time-share unit), or the equivalent of S12.46 per year per weekly fractional
interest if conveyed in some fractional interest other than a 1 /]0th interest.
The Owner is exempt from the obligation for the Timeshare Amenities Fee
until the first-time sale of a fractional interest. The provisions for the obligation for each
timeshare owner to pay shall be a covenant running with the land and reflected accordingly
on the Resubdivision Plat and Association covenants. Prior to the assignment of this
Agreement to the Association pursuant to Section 6.9 hereof, the Owner shall be obligated
to collect and remit any and all Timeshare Amenities Fees.
The amount of the semi-annual payments will be calculated according to the
following formula:
Number of existing or newly deeded timeshare fractional interests
per semiannual period (January-June, calculated as of June 1, and
July-December calculated as of December 1), multiplied by a
$148.30 fee (or as adjusted by CPI-U, as defined below), divided by
2. That amount shall be further multiplied by.42.
The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2008, and on the first day of each year thereafter, the amount
of the fee shall be increased, but not decreased, by the percentage change from the prior
year average consumer price index for All Urban Consumers for the Denver-Boulder-
Greeley metropolitan area as published semiannually and appearing in the January and July
issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-
u-).
It shall be the duty of the Association to keep and preserve such records as
are necessary to determine the amount of fees due hereunder. Such records shall be
preserved for a period of three years and shall be open for inspection by representatives of
the Town during regular business hours. Prior to the formation of the Association, the
Owner shall have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written demand of the amount due and deliver or
mail the same to the office of the Association. The amount properly determined to be
owing shall bear interest from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the Association such written demand
will be delivered to the Owner.
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3.2 Assignment of Association Assessments and Lien. Owner, on behalf of the
Association assigns and grants a continuing security interest in the Association's right to
future income, including the right to receive common expense assessments of any kind
levied pursuant to its condominium declaration, and its lien therefor, to secure payment of
the Timeshare Amenities Fee. Upon default of the Association in collection and/or
remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the
Town shall have the right to directly receive common expense assessments and to
foreclose the lien therefor.
3.3 Employee Housing Impact Fee. Owner has paid to the Town the sum of
$40,000 which, together with the $60,000 already deposited with the Town, is accepted by
the Town in full satisfaction of the Employee Housing Impact Fee and any other exaction
intended to mitigate the impact of the Project and the timeshare ownership project on
employee housing needs, excluding the Timeshare Amenities Fee. The total amount so
deposited shall be unrestricted funds of the Town, and the Town shall have no obligation
to account for or to return them in the event of the termination or amendment of this
Agreement.
3.4 Restoration Bond. Owner shall maintain on deposit with the Town cash [or
provide the Town with an acceptable letter of credit] in the amount of $250,000 for site
restoration ("Restoration Bond"), which deposit shall be held [or such letter of credit shall
be remain posted] until such time as the site is restored to the Town's satisfaction or a
Certificate of Occupancy is issued.
3.5 Formation of General Improvement District. Notwithstanding contrary
provisions in that certain Memorandum of Understanding by and between the Town and
Owner dated March 27, 2007, CSC, at its cost, agrees to cause the formation of a general
improvement district ("GID") pursuant to the provisions of 31-25-601 et. seq. of the
Colorado Revised Statutes.
The Owner agrees to file the petition to form the GID for approval by the
Town Council no later than 5:00 p.m. Colorado time on August 1, 2007 and to take any
and all steps necessary to the formation of the GID. The Town agrees to provide, from
time to time upon written request, any and all pertinent information to facilitate CSC's
efforts to form the GID.
Commencing as of January I, 2009, the GID will impose an ad valorem tax
on and against all taxable property located on the Property sufficient to generate revenues
in the amount of $40,000 annually (in 2008 dollars, annually adjusted for inflation by the
percentage change from the prior year average consumer price index for All Urban
Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually
and appearing in the January_ and July issues of the CPI Detailed Report published by the
Bureau of Labor Statistics. The GID shall use and deploy those revenues in its sole and
absolute discretion.
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Except for the ad valorem tax described above and unless otherwise
approved by the electorate of the GID, the GID will have no authority at any time under
any circumstance whatsoever to assess or otherwise impose any tax or fee on or against the
Property, the Project, any portion or interest of either or any taxable property located on
the Property. Moreover, the GID shall not establish any special improvement district that
includes the Project or the Property unless authorized by vote or by petition pursuant to
Chapter 12.08, Avon Municipal Code. CSC shall not be required to post a bond or other
security as required by Section 31-25-605, Colorado Revised Statutes.
3.6 Metropolitan District. The Town acknowledges and agrees that, in partial
consideration for CSC's formation of the GID, CSC is authorized to form a metropolitan
district pursuant to Title 32 of the Colorado Revised Statutes in connection with the
development of the Project. This metropolitan district will have authority, in part, to
finance the construction of certain eligible public infrastructure concerning the Project. On
June 15, 2007, CSC submitted a service plan to the Town for consideration and approval
by the Town Council. The Town acknowledges that CSC wants to use the November 6,
2007 election to form the metropolitan district and consider other election measures. The
Town's approval of the service plan will be conditioned at least upon formation of the GID
and the approval of the obligation of the GID hereunder in the November election.
3.7 Joint Access. Prior to July 6, 2007, CSC shall prepare and record an
easement for joint access with the Folson tract, the description and terms of which shall be
agreed to between CSC and the Town. Use thereof as joint access shall become effective
upon the Town's acquisition of a corresponding joint access agreement on the Folson
parcel with the owner of that parcel being responsible for all reasonable costs of
accomplishing the joint access, as approved by the Town. CSC shall not be held
responsible by the Town for any costs associated with acquiring the joint access agreement
on the Folson parcel or accomplishing the joint access.
ARTICLE IV
TERM OF AGREEMENT
4.1 Term of Agreement. 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, unless sooner terminated pursuant to
Article V hereof, until December 14, 2008. If a Certificate of Occupancy has not been
issued by that date, this Agreement shall terminate, the Town shall be entitled to retain,
utilize or draw upon the Restoration Bond until the site is restored to the Town's
satisfaction, the Building Permit shall be cancelled and no further development shall be
permitted under existing approvals. The Employee Housing Impact Fee shall remain fully
satisfied and the Owner (including any successor or assign) shall have no right to seek
reimbursement or repayment therefor. If a Certificate of Occupancy has been issued by
that date, the Restoration Bond shall be released to the Owner and this Agreement shall
continue in effect until amended or terminated by mutual agreement of the parties.
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4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall
maintain an active building permit pursuant to the current provisions of Title 15, Municipal
Code, on the schedule attached hereto as Exhibit A. subject to excusable delays as
contained in Section 4.3 provided that in no event shall excusable delays permit the
schedule to be extended past the fourth anniversary of the Effective Date.
4.3 Excusable Delays.
(a) Should the Owner be delayed, hindered or prevented from
proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for
any reason, Owner shall, within thirty (30) days after commencement of the delay, provide
the Town Department of Community Development (with a copy to the Town Attorney)
with written notice of the delay, the reason therefor and an estimate of the expected
duration of the delay. The Town shall approve or disapprove the delay and, if it is
approved, the period thereof, in its sole and absolute discretion. If the delay is approved by
the Town, Owner shall thereafter use all commercially reasonable efforts to minimize its
impact and duration. Delays approved by the Town may permit the milestone dates on
Exhibit A to be extended, but in no event shall any Delays approved by the Town permit
the schedule to be extended past the Completion Deadline. Nor may any delays approved
by the Town be utilized to claim an extension of the term of this Agreement or the term of
the vested property rights established under this Agreement.
(b) Notwithstanding the foregoing, i) in the event CSC fails to meet
any construction milestone, at its option it may elect to be assessed liquidated damages of
$1,000 per day (which amount the parties agree to be fair and reasonable and not a
penalty); ii) the penalty so assessed, if not paid within 30 days, shall be deducted from
the cost restoration bond provided for in Section 3.4 hereof, iii) the amount deducted
shall be replenished within 30 days of the deduction; and iv) upon failure of CSC to
replenish the cost restoration bond, the Town may proceed as though it has disapproved a
request by CSC for an extension of the particular milestone event.
ARTICLE V
DEFAULTS AND REMEDIES
5.1 Default by Town. A "breach" or "default" by the Town under this
Agreement shall be defined as the Town's failure to fulfill or perform any material
obligation of the Town contained in this Agreement.
5.2 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.
5.3 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 6.8, and the defaulting party shall have
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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 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 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.
5.4 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 obligation
hereunder by enforcement of its rights granted by Section 3.2 hereof, including foreclosure
of its lien, and/or an action for any equitable remedy, including injunction and/or specific
performance, and/or an action to recover all amounts owing hereunder, including any
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) If a Certificate of Occupancy is not issued on or before fourth
anniversarv of the Effective Date, this Agreement shall terminate, the Town shall be
entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the
Town's satisfaction, the Building Permit shall be cancelled and no further development
shall be permitted under existing approvals, all of which approvals shall be deemed void.
5.5 Default Under Article IV. Any default under Article IV (except a failure to
replenish the cost restoration bond under Section 4.3(b) thereof) shall not be subject to the
cure provisions hereinabove contained and shall primarily be remedied as set forth in said
Article.
ARTICLE VI
MISCELLANEOUS
6.1 Applicable Law. This Agreement shall be constructed and enforced in
accordance with the laws of the State of Colorado and the relevant portions of the
Municipal Code.
6.2 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
constructed as making Town and Owner joint venturers or partners.
63 Expenses. Owner shall reimburse to the Town the costs and expenses,
including attorney's fees associated with the preparation of, implementation of and
enforcement of the terms of this Agreement.
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6.4 Waiver. No waiver of one or more of the terms of this Agreement shall
constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
6.5 Town Findins. The Town hereby finds and determines that execution of
this Agreement is in the best interests of the public health, safety, and general welfare of
the Town.
6.6 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.
6.7 Further Assurances. Each party shall execute and deliver to the other all
such other further instructions and documents as may be reasonably necessary to carry out
this Agreement in order to provide and secure to the other part the full and complete
enjoyment of its rights and privileges under this Agreement.
6.8 Notices. Any notice or communication required under this Agreement
between the Town and Owner must be in writing, and may be given either personally, by
e-mail 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. If given by e-mail, a notice shall be deemed to have been
given when sent 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 address in substitution of the address to which such notice or communication shall be
given. Such notices or communications shall be given to that parties at their addresses set
forth below:
If to Town: Town of Avon
Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
]brooks@avon.org
with copy to: Town Attorney
Attn: John W. Dunn, Esq.
John W. Dunn & Associates, LLC
P.O. Box 7717
9
Avon, Colorado 81620
jdunn@jwdunnlaw.com
If to Owner: CSC Land, LLC
c/o Tim Barton
One Hickory Centre
1800 Valley View Lane
Dallas, Texas 75234
tbarton(a~jmjholdings.com
with copy to: Frank W. Visciano, Esq.
Senn Visciano Kirschenbaum PC
1801 California Street, Suite 4300
Denver, Colorado 80202-2604
Visciano@sennlaw.com
6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that
subsequently acquires a fee simple interest of record in any portion of the Property as a
transferee, grantee, assignee or successor of CSC Land, LLC. Notwithstanding the
foregoing, the term "Owner" will not include (1) purchasers of condominium units,
timeshare units, fractional interests or anv_ other interest therein. except and to the extent
that CSC Land, LLC or any of its assigns separately acquires anv such unit or units or any
interest therein (including any bulk purchase thereof) or (2) holders of a security interest in
the Property or a portion thereof, except and to the extent that a holder of a security interest
acquires any such unit or units or any interest therein through foreclosure. Following the
Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy.
and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and
payable, the Owner shall assign all remaining obligations hereunder to the Association
(which shall then be deemed to be the "Owner").
6.10 Assignments. 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, time-share owners, 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 transfer providing for express assumption of any of Owner's
obligations under this Agreement by its assignee or transferee shall relieve Owner of any
further obligations under this Agreement with respect to the matter so assumed. The
Town's approval of any such assignee or transferee shall not be unreasonably withheld or
delayed. The Town approves of the assignment to and assumption by the Association of all
of Owner's obligations under this Agreement following the Effective Date, upon formation
of the Association, issuance of a Certificate of Occupancy. and payment of the Employee
Housing Fee and all Timeshare Amenities Fees then due and payable, and the Owner shall
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i
be relieved of all liabilities and obligations hereunder upon recordation of such assignment
and assumption. 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.
6.11 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.
6.12 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement, nor consent to any departure here from, 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.
6.13 No Third Partv Beneficiaries. Nothing expressed or implied in this
Agreement is intended or will be construed to confer upon, or give to, any legal person
other than the parties, any right, remedy, or claim under or by reason of this Agreement or
any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms,
conditions, and provisions in this Agreement by and on behalf of the parties will be for the
sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere
with the agreements of the parties with third parties.
6.14 Prior Recorded Document. Upon recording in the real property records of
Eagle County, Colorado, this Agreement is intended to supersede, restate and replace in its
entirety the Amended and Restated Development Agreement with an effective date of
January 11, 2006.
6.15 Waiver of Claims. Upon adoption of an ordinance approving this
agreement, CSC will be deemed to have waived any and all claims against the Town
arising out of the request by CSC for an extension of the Milestone Event for completion of
roofing.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as
of the date first written above to take effect as of the Effective Date.
Bv:
TOWN OF AVON, a municipal corporation
of the State of Colorado
Ronald C. Wolfe, Mayor
ATTEST
4
Patty McKenny, Town Clerk
APPROVED AS TO FORM:
Town Attorney
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Subscribed before me this day of 2007! by Ronald C. Wolfe as
Mayor and Patty McKenny as Town Clerk of Town of Avon, a municipal corporation of
the State of Colorado.
My Commission Expires:
Notary Public
12
CSC LAND. LLC. a Colorado limited liability
company
By:JMJCSC LP, a Texas limited partnership,
its Manager
By:JMJ129 West LLC, a Texas limited liability
company, its General Partner
By:
Timothy L. Barton, Manager
STATE OF TEXAS )
) ss.
COUNTY OF HARRIS )
Subscribed before me this day of . 2007, by Timothy L. Barton,
as Manager of JMJ129 West LLC, a Texas limited liability company, as General Partner of
JMJCSC LP, a Texas limited partnership, as Manager of CSC Land, LLC, a Colorado
limited liability company.
My Commission Expires:
Notary Public
l3
STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
Ruo~
NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON JULY 24, 2007, AT THE AVON
MUNICIPAL BUILDING LOCATED AT 400 BENCHMARK ROAD FOR THE PURPOSE
OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCE:
Ordinance No. 07-05, Series Of 2007, An Ordinance Approving An
Amendment To The Chateau St. Claire Planned Unit Development
(PUD) For Lots 1 & 2, Chateau St. Claire Subdivision, Town Of
Avon, Eagle County, Colorado
A copy of said Ordinance is attached hereto, and is also on file at the office of the Town
Clerk, and may be inspected during regular business hours, Monday through Friday, 8 AM
- 5 PM.
Following this hearing, the Council may consider final passage of this Ordinance. This
notice is given and posted by order of the Town Council of the Town of Avon, Colorado
TOWN OF AVON, COLORADO
BY: Patty McKenny
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
JULY 13, 2007.
✓ AVON MUNICIPAL BUILDING, MAIN LOBBY
✓ ALPINE BANK, MAIN LOBBY
✓ AVON RECREATION CENTER, MAIN LOBBY
✓ CITY MARKET, MAIN LOBBY
✓ OFFICE OF TOWN CLERK
TOWN OF AVON, COLORADO
ORDINANCE NO. 07-05
SERIES OF 2007
AN ORDINANCE APPROVING AN AMENDMENT TO THE CHATEAU
ST. CLAIRE PLANNED UNIT DEVELOPMENT (PUD) FOR LOTS 1 & 29
CHATEAU ST. CLAIRE SUBDIVISION, TOWN OF AVON, EAGLE
COUNTY, COLORADO
WHEREAS, CSC Land, LLC, has applied for an amendment to the existing Chateau St.
Claire PUD and Development Agreement, as more specifically described in the application dated
May 1, 2007 and the terms outlined in the Second Amended and Restated Development
Agreement attached to this ordinance and referenced herein as "Exhibit A'% and
WHEREAS, the application proposes to amend Ordinance 05-12 and the associated
Amended and Restated Development Agreement; and
WHEREAS, the proper posting, publication and public notices for the hearing before the
Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on June 5, 2007, at which time the applicant and the public were given an opportunity to
express their opinions and present certain information and reports regarding the proposed PUD
Amendment; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendation for conditional approval on the PUD application to the Town
Council of the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
26th day of June, 2007, at which time the public was given an opportunity to express their
opinions regarding the proposed PUD Amendment; and
WHEREAS, based upon the record and testimony presented, the Town Council of the
Town of Avon finds as follows:
The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete, and all pertinent facts, matters and issues were
submitted at those hearings.
2. The Second Amended and Restated Development Agreement is compatible with
the surrounding neighborhood and the public interest.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, THAT:
The amendment to the Chateau St. Claire PUD and Ordinance 05-12, as more specifically
described in the application dated May 1, 2007, including the Second Amended and Restate
Development Agreement is hereby approved, subject to the following condition:
In no event will the building permit or construction schedule be extended past
July 31, 2008.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this 10th day of July, 2007. and a public hearing shall be held at the regular meeting
of the Town Council of the Town of Avon, Colorado on the 24th day of July, 2007 at 5:30 P.M.
in the Municipal Building of the Town of Avon, Colorado.
Town of Avon. Colorado
Ronald C. Wolfe. Mayor
ATTEST:
Patty McKenny, Town Clerk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the day of , 2007.
Town of Avon. Colorado
Ronald C. Wolfe, Mayor
ATTEST:
Pattv McKenny. Town Clerk
APPROVED AS TO FORM:
John W. Dunn. Town Attorney
Ordinance No. 07-05 the Gates
Page 2 of 3
EXHIBIT A
SECOND AMENDED AND RESTATE DEVELOPMENT AGREEMENT
Ordinance No. 07-05 the Gates
Page 3 of 3
SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
FOR
THE GATES
(formerly Chateau St. Claire)
THIS DEVELOPMENT AGREEMENT (this "Agreement") was originally made
and entered into as of the Effective Date (defined below) by and between CSC Land, LLC,
a Colorado Limited Liability Company (as more specifically defined below, the "Owner")
and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and
is hereby amended and restated in its entirety by the Owner and the Town as of
2007. to remain effective as of the Effective Date.
RECITALS:
A. Owner is a limited liability company, duly organized and in good standing
under the laws of the State of Colorado.
B. Owner ovens a parcel of real property described as Lots I and 2, FINAL PLAT
OF CHATEAU ST. CLAIR SUBDIVISION - PUD, according to the plat
thereof filed June 18, 1987 in Book 729 at Page 742, Eagle County, Colorado
("the Property").
C. By Ordinance No. 98-6, Series of 1998, the PUD Development Plan and
Development Standards ("PUD") for the Property were approved ("the
Project"), subject to the conditions that i) deed-restricted affordable housing or
employee units be included in the development in an amount equal to ten
percent of the hotel, residential or timeshare units and ii) an access easement be
dedicated prior to issuance of building permit to facilitate shared access
between the Property and the Folson Tract.
D. By Ordinance No. 04-20, Series of 2004, the Town deleted the affordable
housing condition from the PUD in exchange for Owner's agreement to certain
exactions and other conditions which were incorporated into a Development
Agreement for The Gates on Beaver Creek ("the Agreement'').
E. By Ordinance No. 05-12, Series of 2005, the Town extended the term of the
Agreement, the period of Vested Property Rights and the outside date for
completion of the Project upon condition that the Owner enter into an Amended
and Restated Development Agreement for the Gates on Beaver Creek ("the
Amended Agreement"), which Amended Agreement contained a construction
schedule consisting of Milestone Events and deadlines for the completion
thereof.
F. On February 16, 2007, CSC provided written notice that it had been delayed,
hindered or prevented from completing roofing by the Milestone Event date of
March 10, 2007; at the regular meeting of the Town Council on March 27,
2007, Resolution No. 07-13 was adopted, approving an extension in the
Milestone Event for completion of roofing to July 6, 2007, in exchange for
Owner's agreement to certain exactions and other conditions which are
contained herein.
G. The legislature of the State of Colorado adopted Sections 24-68-101, et seq.
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.
H. 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.
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:
APPROVAL OF THIS AGREEMENT CREATES A VESTED
PROPERTY RIGHT PURSUANT TO CHAPTER 17.14, AVON
MUNICIPAL CODE AND ARTICLE 68, TITLE 24, COLORADO
REVISED STATUTES IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
1.1 Association. Timeshare ownership association formed to manage the
timeshare ownership project located on the Property.
1.2 Effective Date. The effective date of the Town Council ordinance
amending Ordinance No. 98-06 is December 14, 2004.
L3 Municipal Code. The Town's Municipal Code. as in effect from time to
time.
1.4 PUD. Planned unit development or PUD, as such terms are defined and
used in Section 17.20.110 of the Municipal Code.
1.5 Resubdivision Plat. A plat approved by the Town authorizing a
resubdivision, condominium resubdivision, planned unit development resubdivision, or
time-sharing subdivision consistent with Title 16 of the Municipal Code.
1.6 Certificate of Occupancy. Certification pursuant to the Town's building
codes that the premises have been completed and comply with the provisions thereof.
"Certificate of Occupancy" includes any temporary certificate of occupancy.
1.7 Time-share owner. A person vested with legal title to a timeshare estate in
accordance with Section 38-33-110, Colorado Revised Statutes.
1.8 Time-share unit. A unit, the title to which is divided into interval estates or
time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes.
1.9 Time-share Amenities Fee. A consensual fee intended to mitigate the
impact of a time-share subdivision, including the cost of transportation and of recreational
facilities.
1.10 Employee Housing Impact Fee. A consensual fee intended to mitigate the
impact of a condominium subdivision and associated facilities on employee housing needs.
ARTICLE II
WAIVER OF CONDITIONS
The affordable housing condition contained in Ordinance No. 98-6, Series of 1998,
and the Building Permit is deleted by the Town as of the Effective Date.
The condition of maintaining an active building permit contained in Ordinance No.
04-20 in accordance with the original Development Agreement (and construction schedule
incorporated therein) shall be waived, amended and restated by the Town, by adoption of
an amending ordinance authorizing the execution of this second amended and restated
Agreement and Owner's compliance with the requirement of Section 3.4 below.
ARTICLE I ll
EXACTIONS
The following exactions are intended to provide adequate facilities for the public
benefit of the Town:
3.1 Timeshare Amenities Fee: Commencing as of the Effective Date and
continuing in perpetuity, the Association is obligated to collect from each timeshare owner
and remit to the Town a Timeshare Amenities Fee in the initial amount of $62.29 per year
per fractional interest (defined as a 1/10`h (five-week) undivided interest or timespan
estate in a time-share unit), or the equivalent of $12.46 per year per weekly fractional
interest if conveyed in some fractional interest other than a 1/10`" interest.
The Owner is exempt from the obligation for the Timeshare Amenities Fee
until the first-time sale of a fractional interest. The provisions for the obligation for each
timeshare owner to pay shall be a covenant running with the land and reflected accordingly
on the Resubdivision Plat and Association covenants. Prior to the assignment of this
Agreement to the Association pursuant to Section 6.9 hereof; the Owner shall be obligated
to collect and remit any and all Timeshare Amenities Fees.
The amount of the semi-annual payments will be calculated according to the
following formula:
Number of existing or newly deeded timeshare fractional interests
per semiannual period (January-June, calculated as of June I, and
July-December calculated as of December 1), multiplied by a
$148.30 fee (or as adjusted by CPI-U, as defined below), divided by
2. That amount shall be further multiplied by .42.
The due dates for the semiannual payment are August 20 and February 20
for the previous semiannual calculation period.
On January 1, 2008, and on the first day of each year thereafter, the amount
of the fee shall be increased, but not decreased, by the percentage change from the prior
year average consumer price index for All Urban Consumers for the Denver-Boulder-
Greeley metropolitan area as published semiannually and appearing in the January and July
issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-
U").
It shall be the duty of the Association to keep and preserve such records as
are necessary to determine the amount of fees due hereunder. Such records shall be
preserved for a period of three years and shall be open for inspection by representatives of
the Town during regular business hours. Prior to the formation of the Association, the
Owner shall have the above-referenced obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the
full amount due, the Town shall make a written demand of the amount due and deliver or
mail the same to the office of the Association. The amount properly determined to be
owing shall bear interest from the due date of the remittance at the rate of one and one-half
percent per month until paid. Prior to formation of the Association such written demand
will be delivered to the Owner.
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3.2 Assienment of Association Assessments and Lien. Owner, on behalf of the
Association assigns and grants a continuing security interest in the Association's right to
future income, including the right to receive common expense assessments of any kind
levied pursuant to its condominium declaration, and its lien therefor, to secure payment of
the Timeshare Amenities Fee. Upon default of the Association in collection and/or
remittance of the Timeshare Amenities Fee and notice thereof to the timeshare owners, the
Town shall have the right to directly receive common expense assessments and to
foreclose the lien therefor.
3.3 Employee Housing Impact Fee. Owner has paid to the Town the sum of
$40,000 which, together with the $60,000 already deposited with the Town, is accepted by
the Town in full satisfaction of the Employee Housing Impact Fee and any other exaction
intended to mitigate the impact of the Project and the timeshare ownership project on
employee housing needs, excluding the Timeshare Amenities Fee. The total amount so
deposited shall be unrestricted funds of the Town, and the Town shall have no obligation
to account for or to return them in the event of the termination or amendment of this
Agreement.
3.4 Restoration Bond. Owner shall maintain on deposit with the Town cash [or
provide the Town with an acceptable letter.of credit] in the amount of $250,000 for site
restoration ("Restoration Bond"), which deposit shall be held (or such letter of credit shall
be remain posted] until such time as the site is restored to the Town's satisfaction or a
Certificate of Occupancy is issued.
3.5 Formation of General Improvement District. Notwithstanding contrary
provisions in that certain Memorandum of Understanding by and between the Town and
Owner dated March 27, 2007, CSC, at its cost, agrees to cause the formation of a general
improvement district ("GID") pursuant to the provisions of 31-25-601 et. seq. of the
Colorado Revised Statutes.
The Owner agrees to file the petition to form the GID for approval by the
Town Council no later than 5:00 p.m. Colorado time on August 1, 2007 and to take any
and all steps necessary to the formation of the GID. The Town agrees to provide, from
time to time upon written request, any and all pertinent information to facilitate CSC's
efforts to form the GID.
Commencing as of January 1, 2009! the GID will impose an ad valorem tax
on and against all taxable property located on the Property sufficient to generate revenues
in the amount of $40,000 annually (in 2008 dollars, annually adjusted for inflation by the
percentage change from the prior year average consumer price index for All Urban
Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually
and appearing in the January and July issues of the CPI Detailed Report published by the
Bureau of Labor Statistics. The GID shall use and deploy those revenues in its sole and
absolute discretion.
5
Except for the ad valorem tax described above and unless otherwise
approved by the electorate of the GID, the GID will have no authority at any time under
any circumstance whatsoever to assess or otherwise impose any tax or fee on or against the
Property, the Project, any portion or interest of either or any taxable property located on
the Property. Moreover, the GID shall not establish any special improvement district that
includes the Project or the Property unless authorized by vote or by petition pursuant to
Chapter 12.08, Avon Municipal Code. CSC shall not be required to post a bond or other
security as required by Section 3l -25-605, Colorado Revised Statutes.
3.6 Metropolitan District. The Town acknowledges and agrees that, in partial
consideration for CSC's formation of the GID, CSC is authorized to form a metropolitan
district pursuant to Title 32 of the Colorado Revised Statutes in connection with the
development of the Project. This metropolitan district will have authority, in part, to
finance the construction of certain eligible public infrastructure concerning the Project. On
June 15, 2007, CSC submitted a service plan to the Town for consideration and approval
by the Town Council. The Town acknowledges that CSC wants to use the November 6,
2007 election to form the metropolitan district and consider other election measures. The
Town's approval of the service plan will be conditioned at least upon formation of the GID
and the approval of the obligation of the GID hereunder in the November election.
3.7 Joint Access. Prior to July 6, 2007, CSC shall prepare and record an
easement for joint access with the Folson tract, the description and terms of which shall be
agreed to between CSC and the Town. Use thereof as joint access shall become effective
upon the Town's acquisition of a corresponding joint access agreement on the Folson
parcel with the owner of that parcel being responsible for all reasonable costs of
accomplishing the joint access, as approved by the Town. CSC shall not be held
responsible by the Town for any costs associated with acquiring the joint access agreement
on the Folson parcel or accomplishing the joint access.
ARTICLE IV
TERM OF AGREEMENT
4.1 Term of Agreement. 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, unless sooner terminated pursuant to
Article V hereof, until December 14, 2008. If a Certificate of Occupancy has not been
issued by that date, this Agreement shall terminate, the Town shall be entitled to retain,
utilize or draw upon the Restoration Bond until the site is restored to the Town's
satisfaction, the Building Permit shall be cancelled and no further development shall be
permitted under existing approvals. The Employee Housing Impact Fee shall remain fully
satisfied and the Owner (including any successor or assign) shall have no right to seek
reimbursement or repayment therefor. If a Certificate of Occupancy has been issued by
that date, the Restoration Bond shall be released to the Owner and this Agreement shall
continue in effect until amended or terminated by mutual agreement of the parties.
6
4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall
maintain an active building permit pursuant to the current provisions of Title 15, Municipal
Code, on the schedule attached hereto as Exhibit A. subject to excusable delays as
contained in Section 4.3 provided that in no event shall excusable delays permit the
schedule to be extended past the fourth anniversary of the Effective Date.
4.3 Excusable Delays.
(a) Should the Owner be delayed, hindered or prevented from
proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for
any reason, Owner shall, within thirty (30) days after commencement of the delay, provide
the Town Department of Community Development (with a copy to the Town Attorney)
with written notice of the delay, the reason therefor and an estimate of the expected
duration of the delay. The Town shall approve or disapprove the delay and, if it is
approved, the period thereof, in its sole and absolute discretion. If the delay is approved by
the Town. Owner shall thereafter use all commercially reasonable efforts to minimize its
impact and duration. Delays approved by the Town may permit the milestone dates on
Exhibit A to be extended, but in no event shall any Delays approved by the Town permit
the schedule to be extended past the Completion Deadline. Nor may any delays approved
by the Town be utilized to claim an extension of the term of this Agreement or the term of
the vested property rights established under this Agreement.
(b) Notwithstanding the foregoing, i) in the event CSC fails to meet
any construction milestone, at its option it may elect to be assessed liquidated damages of
$1,000 per day (which amount the parties agree to be fair and reasonable and not a
penalty); ii) the penalty so assessed, if not paid within 30 days, shall be deducted from
the cost restoration bond provided for in Section 3.4 hereof, iii) the amount deducted
shall be replenished within 30 days of the deduction: and iv) upon failure of CSC to
replenish the cost restoration bond, the Town may proceed as though it has disapproved a
request by CSC for an extension of the particular milestone event.
ARTICLE V
DEFAULTS AND REMEDIES
5.1 Default by Town. A "breach" or "default" by the Town under this
Agreement shall be defined as the Town's failure to fulfill or perform any material
obligation of the Town contained in this Agreement.
5.2 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.
5.3 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 6.8, and the defaulting party shall have
7
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 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 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.
5.4 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 obligation
hereunder by enforcement of its rights granted by Section 3.2 hereof, including foreclosure
of its lien, and/or an action for any equitable remedy, including injunction and/or specific
performance, and/or an action to recover all amounts owing hereunder, including any
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) If a Certificate of Occupancy is not issued on or before fourth
anniversary of the Effective Date, this Agreement shall terminate, the Town shall be
entitled to retain, utilize or draw upon the Restoration Bond until the site is restored to the
Town's satisfaction, the Building Permit shall be cancelled and no further development
shall be permitted under existing approvals, all of which approvals shall be deemed void.
5.5 Default Under Article IV. Any default under Article IV (except a failure to
replenish the cost restoration bond under Section 4.3(b) thereof) shall not be subject to the
cure provisions hereinabove contained and shall primarily be remedied as set forth in said
Article.
ARTICLE VI
MISCELLANEOUS
6.1 Applicable Law. This Agreement shall be constructed and enforced in
accordance with the laws of the State of Colorado and the relevant portions of the
Municipal Code.
6.2 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
constructed as making Town and Owner joint venturers or partners.
6.3 Expenses. Owner shall reimburse to the Town the costs and expenses,
including attorney's fees associated with the preparation of, implementation of and
enforcement of the terms of this Agreement.
8
6.4 Waiver. No waiver of one or more of the terms of this Agreement shall
constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any
instance shall constitute a waiver of such provision in other instances.
6.5 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 of
the Town.
6.6 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.
6.7 Further Assurances. Each party shall execute and deliver to the other all
such other further instructions and documents as may be reasonably necessary to carry out
this Agreement in order to provide and secure to the other party the full and complete
enjoyment of its rights and privileges under this Agreement.
6.8 Notices. Any notice or communication required under this Agreement
between the Town and Owner must be in writing, and may be given either personally, by
e-mail 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. If given by e-mail, a notice shall be deemed to have been
given when sent 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 address in substitution of the address to which such notice or communication shall be
given. Such notices or communications shall be given to that parties at their addresses set
forth below:
If to Town: Town of Avon
Attn: Town Manager
P.O. Box 975
Avon, Colorado 81620
lbrooks@avon.org
with copy to: Town Attorney
Attn: John W. Dunn. Esq.
John W. Dunn & Associates, LLC
P.O. Box 7717
9
Avon, Colorado 81620
jdunn@jwdunnlaw.com
If to Owner: CSC Land, LLC
c/o Tim Barton
One Hickory Centre
1800 Valley View Lane
Dallas, Texas 75234
tbarton(a,imjholdings.com
with copy to: Frank W. Visciano, Esq.
Senn Visciano Kirschenbaum PC
1801 California Street, Suite 4300
Denver, Colorado 80202-2604
fisciano@sennlaw.com
6.9 "Owner" will initially refer to CSC Land, LLC, as well as any entity that
subsequently acquires a fee simple interest of record in any portion of the Property as a
transferee, grantee, assignee or successor of CSC Land, LLC. Notwithstanding the
foregoing, the term "Owner" will not include (1) purchasers of condominium units,
timeshare units, fractional interests or any other interest therein, except and to the extent
that CSC Land, LLC or any of its assigns separately acquires any such unit or units or any
interest therein (including any bulk purchase thereof) or (2) holders of a security interest in
the Property or a portion thereof, except and to the extent that a holder of a security interest
acquires any such unit or units or any interest therein through foreclosure. Following the
Effective Date, upon formation of the Association, issuance of a Certificate of Occupancy.
and payment of the Employee Housing Fee and all Timeshare Amenities Fees then due and
payable, the Owner shall assign all remaining obligations hereunder to the Association
(which shall then be deemed to be the "Owner').
6.10 Assignments. 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, time-share owners, 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 transfer providing for express assumption of any of Owner's
obligations under this Agreement by its assignee or transferee shall relieve Owner of any
further obligations under this Agreement with respect to the matter so assumed. The
Town's approval of any such assignee or transferee shall not be unreasonably withheld or
delaved. The Town approves of the assignment to and assumption by the Association of all
of Owner's obligations under this Agreement following the Effective Date, upon formation
of the Association, issuance of a Certificate of Occupancy, and payment of the Employee
Housing Fee and all Timeshare Amenities Fees then due and payable, and the Owner shall
10
be relieved of all liabilities and obligations hereunder upon recordation of such assignment
and assumption. 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.
6.11 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.
6.12 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement, nor consent to any departure here from. 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.
6.13 No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended or will be construed to confer upon, or give to, any legal person
other than the parties, any right, remedy, or claim under or by reason of this Agreement or
any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms,
conditions, and provisions in this Agreement by and on behalf of the parties will be for the
sole and exclusive benefit of the parties. Nothing in this Agreement is intended to interfere
with the agreements of the parties with third parties.
6.14 Prior Recorded Document. Upon recording in the real property records of
Eagle County, Colorado, this Agreement is intended to supersede, restate and replace in its
entirety the Amended and Restated Development Agreement with an effective date of
January 11, 2006.
6.15 Waiver of Claims. Upon adoption of an ordinance approving this
agreement, CSC will be deemed to have waived any and all claims against the Town
arising out of the request by CSC for an extension of the Milestone Event for completion of
roofing.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as
of the date first written above to take effect as of the Effective Date.
TOWN OF AVON, a municipal corporation
of the State of Colorado
Bv:
Ronald C. Wolfe, Mayor
ATTEST
Patty McKenny, Town Clerk
APPROVED AS TO FORM:
Town Attorney
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Subscribed before me this day of 2007, by Ronald C. Wolfe as
Mayor and Patty McKenn} as Town Clerk of Town of Avon, a municipal corporation of
the State of Colorado.
My Commission Expires:
Notary Public
12
CSC LAND, LLC, a Colorado limited liability
company
By:JMJCSC LP, a Texas limited partnership,
its Manager
By:JMJl29 West LLC, a Texas limited liability
company, its General Partner
By:
Timothy L. Barton, Manager
STATE OF TEXAS )
) ss.
COUNTY OF HARRIS )
Subscribed before me this day of . 2007, by Timothy L. Barton,
as Manager of JMJ 129 West LLC, a Texas limited liability company, as General Partner of
JMJCSC LP, a Texas limited partnership, as Manager of CSC Land, LLC, a Colorado
limited liability company.
My Commission Expires:
Notary Public
13
STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO ADOPTED ON THE 24TH DAY OF JULY 2007 THE FOLLOWING
ORDINANCE:
Ordinance No. 07-05, Series Of 2007, An Ordinance Approving An
Amendment To The Chateau St. Claire Planned Unit Development
(PUD) For Lots 1 & 2, Chateau St. Claire Subdivision, Town Of
Avon, Eagle County, Colorado
A copy of said Ordinances are attached hereto, and are also on file at the office of the
Town Clerk, and may be inspected during regular business hours, Monday through Friday,
8 AM - 5 PM.
This notice is given and posted by order of the Town Council of the Town of Avon,
Colorado
TOWN OF AVON, COLORADO
BY: Patty McKenny
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
AUGUST 2, 2007-
• AVON MUNICIPAL BUILDING, MAIN LOBBY
✓ ALPINE BANK, MAIN LOBBY
✓ AVON RECREATION CENTER, MAIN LOBBY
✓ AVON PUBLIC LIBRARY MAIL LOBBY
✓ OFFICE OF TOWN CLERK
TOWN OF AVON, COLORADO iiREGULAR COUNCIL MEETING FOR TUESDAY, JULY, 24 2007 AVON MUNICIPAL BUILDING, 400 BENCHMARK ROAD PRESIDING OFFICIALS
MAYOR RON WOLFE
MAYOR PRO TEM BRIAN SIPES
COUNCILORS RICHARD CARROLL
DAVE DANTAS
KRISTI FERRARO
AMY PHILLIPS
TAMRA NOTTINGHAM UNDERWOOD
TOWN STAFF
TOWN ATTORNEY: JOHN DUNN
TOWN MANAGER: LARRY BROOKS
TOWN CLERK: PATTY MCKENNY
THIS MEETING IS OPEN TO THE PUBLIC; COMMENTS FROM THE PUBLIC ARE WELCOME
ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE
PLEASE VIEW AVON'S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND COUNCIL MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND CITY MARKET
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
WORK SESSION AGENDA
MEETING BEGINS AT 1:45 PM
1:45 PM - 2:30 PM 1. EXECUTIVE SESSION pursuant to CRS 24-6-402(f) regarding personnel matters
2:30 PM - 3:15 PM 2. APPROVAL OF WORK SESSION AGENDA & COUNCIL ASSIGNMENT UPDATES
a. Uniform Resolution re Formation of Gore/Eagle Valley Housing Council
(Ron Wolfe, Mayor) Review & input on the draft resolution which address the
formation of a housing council
b. Avon Arts Council Proposal (Ron Wolfe, Mayor) Consideration of placing 2
new art pieces by the AAC
3:15 PM - 3:45 PM 3. SKIER SHUTTLE AND TRANSIT COMMUNICATIONS PLAN (Jenny Strehler,
PW/Transit Director, Becky Lawlor, Community Relations Officer) Provide details
regarding changes planned for Avon Transit in light of the gondola coming online for
2007-08, offer a communication plan to discuss associated transit and parking
considerations with the Avon business community
3:45 PM - 4:15 PM 4. EAGLE COUNTY TRANSFERABLE DEVELOPMENT RIGHTS PRESENTATION (Joe
Forinash, Eagle County) Eagle County has been exploring the use of Transferable
Development Rights program to supplement its efforts to preserve open space. The
memo is an outline of a TDR program the County is considering
4:15 PM - 4:45PM 5. VAIL VALLEY PARTNERSHIP PRESENTATION & REQUEST FOR FUNDING (Michael
Robinson, Executive Director) Review of Vail Valley Partnership's organization and
how it serves businesses in the Vail Valley
4:45 PM - 5:00 PM 6. 2008 BUDGET DISCUSSION (Larry Brooks, Town Manager, Scott Wright, Asst. Town
Manager Finance) Review of budget calendar and identification of priority budget
issues for 2008 budget cycle
Avon Council Meeting.07.07.24
Page 1 of 4
TOWN OF AVON, COLORADO
REGULAR COUNCIL MEETING FOR TUESDAY, JULY, 24 2007
AVON MUNICIPAL BUILDING, 400 BENCHMARK ROAD
WORK SESSION AGENDA
CONTINUED
5:00 PM - 5:20 PM 7. STAFF UPDATES
a. Whitewater Park Update - Postponement of pre-cast structure installation
(Justin Hildreth, Town Engineer) Report on status of further upgrades to
whitewater park
b. Project Report / Memo only
c. Financial Matters / Memo only
5:20 PM 8. ADJOURNMENT
Avon Council Meeting. 07.07.24
Page 2 of 4
TOWN OF AVON, COLORADO
REGULAR COUNCIL MEETING FOR TUESDAY, JULY, 24 2007
AVON MUNICIPAL BUILDING, 400 BENCHMARK ROAD
REGULAR COUNCIL MEETING AGENDA
MEETING BEGINS AT 5:30 PM
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST
4. CITIZEN AND COMMUNITY INPUT
5. APPEALS FROM OR RECOMMENDATIONS OF PLANNING & ZONING COMMISSION
a. Public Hearing on Ordinance No. 07-05, Series Of 2007, Second Reading, An Ordinance
Approving An Amendment To The Chateau St. Claire Planned Unit Development (PUD) For
Lots 1 & 2, Chateau St. Claire Subdivision, Town Of Avon, Eagle County, Colorado (John Dunn,
Town Attorney) Review of a Second Amended & Restated Development Agreement for the Gates which
outlines numerous conditions for the developer
6. ORDINANCES
7. RESOLUTIONS
a. Resolution No. 07-25, Series of 2007, Resolution approving and accepting the Public
Improvements Installed and Constructed in Accordance with the Subdivision Improvements
Agreement for the Dry Creek Planned Unit Development (PUD) and Establishing Warranty
Period for the Public Improvements / 2510 Old Trail Road (Justin Hildreth, Town Engineer) Review
of documents submitted as required by the SIA for approval
8. NEW BUSINESS
a. Intergovernmental Agreement with Eagle County for Animal Control Service (Brian Kozak, Police
Chief) (IGA requires 2/3 vote for adoption) Extension of agreement for continued animal control service
by Eagle County
9. UNFINISHED / OLD BUSINESS
a. Avon Transportation Center - Snowmelt Options Presentation & Change Order 001 -
Temporary Snowmelt Boiler System (Justin Hildreth, Town Engineer) Review of project status related
to temporary boiler system & carbon footprint
10. OTHER BUSINESS
a. Urban Renewal Plan Update (Scott Wright, Asst. Town Manager Finance, Anne Ricker, Leland
Consulting Group) Preliminary input from Town Council regarding Town Center West Area Urban
Renewal Plan; public hearing scheduled for August 14, 2007 at 5:30 PM
11. TOWN MANAGER REPORT
12. TOWN ATTORNEY REPORT
13. MAYOR REPORT
14. FUTURE AGENDA ITEMS:
August 14th: Eagle River Fire Protection District, Avon Town Center Design Review Guidelines, Public
Hearing on Resolution adopting Urban Renewal Plan, Formation of Town of Avon General
Improvement District No. 1 & related Election Requirements, Avon Transit Center Update
August 28th: Master Plan Options for Public Works & Transportation Capital Facilities Improvements, Town
of Avon General Improvement District No.1 Service Plan
Avon Council Meeting.07.07.24
Page 3 of 4
TOWN OF AVON, COLORADO
REGULAR COUNCIL MEETING FOR TUESDAY, .JULY, 24 2007
AVON MUNICIPAL BUILDING, 400 BENCHMARK ROAD
REGULAR COUNCIL MEETING AGENDA
CONTINUED
15. CONSENT AGENDA
a. Minutes from July 10, 2007
b. Avon Road/Benchmark Road Roundabout / B&B Excavating Change Order No. 001 (Shane
Pegram, Engineer) Adjustment of Final Contract Quantities
c. Avon Road/Benchmark Road Roundabout / B&B Excavating Change Order No. 002 (Shane
Pegram, Engineer) Costs related to additional project work
d. Benchmark Road West Realignment - Streetscape Design Services Proposal (Jeff Schneider,
Engineer II) Review of proposals distributed concurrently for civil engineering design services and
streetscape design services
e. Resolution No. 07-26, Series of 2007, Resolution approving the locations for posting the notices
of public meetings (Patty McKenny, Director Administrative Services) Consider using Avon Public
Library as posting location
16. ADJOURNMENT
Avon Council Meeting. 07.07.24
Page 4 of 4