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
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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.
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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:
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Town of Avon, Colorado
Town,C uncil
Ronald C. Wolfe, Mayor
erk I i 901428
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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
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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.
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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.
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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
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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
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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.
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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 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
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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.
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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
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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
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My Commission eri pq/p
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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
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