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12-14-2004 CSC LAND ORDINANCE NO. 04-20 PROVIDING FOR THE AMENDMENT OF ORDINANCE 98-6TOWN OF AVON ORDINANCE NO. 04-20 SERIES OF 2004 AN ORDINANCE PROVIDING FOR THE AMENDMENT OF ORDINANCE 98-6, AMENDING THE CHATEAU ST. CLAIRE PUD DEVELOPMENT PLAN AND DEVELOPMENT STANDARDS, LOT I AND 2, CHATEAU ST. CLAIRE SUBDIVISION,. TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, CSC Land, has filed an application to amend the existing Planned Unit Development ("PUD") and Development Standards for the proposed Chateau St. Claire development; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 1 and 2, Chateau St. Claire Subdivision and ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Cormission 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 November 16, 2004, 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 Development Plan amendment; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendation for approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 04-26; and 901428 Page: 1 of 13 12/22/2004 01:44F Teak J Simonton Eagle, co 289 R 66.00 D 0.00 Ordinance No. 04-20 Chateau St. Claire PUD Amend Page] of 3 WHEREAS, after notices provided by law, this Council held a public hearing on the l~t"-' day of >~u R&. , 2004, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Development Plan amendment; and WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the Comprehensive Plan of the Town of Avon, 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 that all pertinent facts, matters and issues were submitted at those hearings. 2. That the PUD Plan is consistent with the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Chateau St. Claire PUD Amendment is hereby approved, subject to the following: The PUD amendment is contingent upon a valid Development Agreement between CSC Land, LLC, and the Town of Avon being approved; 2. Eliminate requirement #3 (Ordinance 98-6) for employee housing to be replaced by three fractional ownership units; 3. Payment of a $100,000 fee to the Town of Avon to mitigate Employee Housing requirements prior to the issuance of Temporary Certificate of Occupancy; 4. Payment of a Time-Share Amenity Fee to offset additional costs for transportation and recreation; 5. Failure to obtain a Certificate of Occupancy within two years of the effective date of the Amending PUD Ordinance shall automatically terminate all permits and no further development shall be permitted under existing approvals. 6. Except as otherwise modified by this permit approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. 13 1111ill .901428 111111111111111111111111 11111111 I 12/922/2004 1 Teak J Simonton Eagle, CO 289 R 66.00 D 0.00 .44E Ordinance No. 04-20 Chateau St. Claire PUD Amend Page 2 of 3 INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 931-- day of rls~r~cv`g~ , 2004, and a public hearing shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the \4t- day of, 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. ATTEST: Q'-'1 3 Town of Avon, Colorado To Co ncil Ronald C. Wolfe, Mayor enny, Town INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the M"- day of ~c QCt gEZ, 2004. ATTEST: 1~ Pa Of A- ' .L F S, I-:- L 8 ~ i Z®'N' % Town of Avon, Colorado Town,C uncil Ronald C. Wolfe, Mayor erk I i 901428 1111111 11ill 1111111 11il I I Page: 3 of 13 Teak 1 Simonton Eagle, CO 289 R 66.0012/22D2000 01:44F 0 APPROVED AS TO FORM: V~L Ton Attorney Ordinance No. 04-20 Chateau St. Claire PUD Amend Page 3 of 3 DEVELOPMENT AGREEMENT FOR THE GATES ON BEAVER CREEK (formerly Chateau St. Claire) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of I~ecelY~g~ N , 2004 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"). 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 1 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 for the Property were approved, subject to the condition that 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. D. Building Permit No. C-BP-2002-17, reissued on March 5, 2004 ("the Building Permit"), contained the conditions that 1) a Deed Restriction and Employee Housing Agreement be submitted for approval prior to issuance of a Certificate of Occupancy and 2) a letter of credit in the amount of $60,000 be retained by the Town until such time as the site is restored to the Town's satisfaction or a Certificate of Occupancy is issued. E. Owner has deposited cash in the amount of $60,000, in lieu of a letter of credit, which deposit has been accepted and will be retained by the Town to be used either for site restoration or as a credit toward the Employee Housing Impact Fee hereinafter provided for. F. The Town is now willing to delete the affordable housing condition from Ordinance No. 98-6, the PUD Development Plan and Development Standards and from the Building Permit, in exchange for Owner's agreement to certain exactions and other conditions, hereinafter set forth. G. The legislature of the State of Colorado adopted Sections 24-68-101, et se Q. Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights in order to ensure reasonable 11~1~ 11~1~~J ~~J~ Jill 1~111 11~1~ 1~11 ~11~ 901428 Page: 4 of 13 12/22/2004 01:44F Teak J Simonton Eagle, CO 289 R 66.00 D 0.00 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: 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. 98-6, Series of 1998. 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. Page 1428 ` I Page: 5 of 13 12/22/200401:44F Teak J Simonton Eagle, Co 289 R 65.00 D 0.00 2 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 CONDITION The affordable housing condition contained in Ordinance No. 98-6, Series of 1998, and the Building Permit shall be deleted by the Town, by adoption of an amending ordinance, such amending ordinance to be effective upon occurrence of the Effective Date and Owner's compliance with the requirements of Article III hereof. ARTICLE III 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 amount of $140.10 per year per fractional interest (defined as a 1/10th (five- week) undivided interest or timespan estate in a time-share unit), or the equivalent of $28.02 per year per weekly fractional interest if conveyed in some fractional interest other than a 1/1 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. 3 111111 1~ I111111 1~ 111 9014211 ae: 6 of 13 I I I I I 12/22/2004 01:44F Teak J Simonton Eagle, Co 289 R 66.00 D 0.00 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 the $140.10 fee (or as adjusted by CPI-U, as defined below), divided by 2. The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2006, 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 snake 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. 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 shall pay to the Town, on or before issuance of a Certificate of Occupancy, the sum of $40,000, which, together with the $60,000 already deposited with the Town, shall be accepted by the 901428 111111111111111111111 1 I I 12/22/2004 01:44F 4 ~ Page: 7 of 13 Teak J Simonton Eagle, CO 289 R 66.00 D 0.00 Town in full satisfaction of the Employee Housing Impact Fee and any other exaction intended to mitigate the impact of the Property and the timeshare ownership project on employee housing needs, excluding the Timeshare Amenities Fee. 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 the second anniversary of the Effective Date. If a Certificate of Occupancy has not been issued by that date, this Agreement shall terminate, the Town shall be entitled to retain the cash deposit in the amount of $60,000, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. If a Certificate of Occupancy has been issued by that date, this Agreement shall continue in effect until amended or terminated by mutual agreement of the parties. 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 a schedule that will result in issuance of a Certificate of Occupancy in accordance with the above provisions. Failure to maintain the permit and schedule will constitute a default under the provisions of this Agreement, causing its termination and the same consequences as are contained in Section 4.1. 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 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 901428 P: 8 of 13 01:44F 5 Teak J Simonton Eagle; CO 289 R 66.00 D 0.00 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) In the event of default by the Owner prior to issuance of a Certificate of Occupancy, which default is not cured as described above, this Agreement shall terminate, the Town shall be entitled to retain the cash deposit in the amount of $60,000, the Building Permit shall be cancelled and no further development shall be permitted under existing approvals. 5.5 Default Under Article IV. Any default under Article IV 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. 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. 6 9~1428 I I I 12922/20 04 13 1 Teak J Simonton Eagle, Co 2e9 R 66.00 D 0 00 .44E 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 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 a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, if personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications sball 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 If to Owner: CSC Land, LLC c/o Tim Barton 70 Benchmark Road, Suite 102 P.O. Box 5570 J ' I ,901428 11111111 11111111 1111111 I Page: 10 o 13 7 Teak J Simonton Eagle, CO 289 R 66.00 D 0.00 Avon, CO 81620 With Notice to:The Law Offices of Amber L. Severtson, P.C. Attention: Amber L. Severtson 16901 North Dallas Parkway, Suite 103 Addison, Texas 75001 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 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 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. 11 Jill l 11,11111 9111428 I! 1 11 12//22/2004f0113 :44F 8 Teak J Simonton Eagle, CO 289 R 66.00 D 0.00 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 el-ffective 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. 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 ATTEST au (9~~ To n Jerk APPROVED AS TO FORM: ~.llw 4 Tow Attorney BY: 41 'f~ " Mayor Page: 12 o 13 111111111111 901428 Teak J 11111iii 1111, 11111111111111111 112//22/2004f01:44F Simonton Eagle, Co 289 R 66.00 D 0.00 9 STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) Subscribed before me this ~4~- day of ZcCLxY19-E-Z , 2004, by Ron Wolfe as Mayor and Patty McKenny as Town Clerk of Town of Avon, a municipal corporation of the State of Colorado. on Expires: nom," ~O A •1- t; LZ s • • • i • O O C0L My Commission eri pq/p w ► 810 Not ry jPblic CSC LAND, LLC By: STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) Subscribed before me this day of C ALL , 2004, by Tim Barton, as Managing Manager of CSC Land, LLC, a Colorado limited liability company. My Commission Expires: , Notary Public AMBER LYNN SEVERTSON " MY COMMISSION EXPIRES October 19, 2005 111111111111111111111111111111111111111111111111 111 1 X01428 Page: 23 ia Teak J Simonton Eagle, Co 289 111 12/22/2004f01:44F R 66.00 D 0.00 10