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TC Council Packet 03-14-2006TOWN OF "ON, COLORADO REGULAR COUNCIL MEETING FOR TUESDAY, MARCH 14, 2006 AVON MUNICIPAL BUILDING, 400BENCHMARK ROAD REGULAR COUNCIL MEETING AGENDA rt 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3' DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST 4. CITIZEN AND COMMUNITY INPUT 5. ORDINANCES a. Public Hearing on Ordinance No. 00-03. Series of 2008. Second Reading, Ordinance Approving an /\OOeDdOOent to the Confluence Planned Unit [}eVe|OpDleOt (PU[)' Town of Avon, Eagle County, Colorado (Tambi Katieb. Community Development Director & Eric Heidannann, Senior Planner) A request for amendment to the 19 acne Confluence PUD to modify the existing development rights and zoning for the entire property. This application proposes aVVeatin hote|, retail p|aza, high- speed public gondola, oondominiums, and fractional residential units. The property is located between the Eagle River and the West Town Center, accessible from Avon Road. Includes fiscal impact analyses of the project infina|formaopnapanadbyGtmnBornotain&Asnnciatas. b. Pukd[o Hearing on Ordinance No. 06-04. Series of 2006, Second Reading. An Ordinance Amending Title 17. Municipal Code Of The Town Cf Avon, Adding Definitions For Allowed Uses In The |OdUSth8| And Commercial Z0Oe, Adding Self Storage AS An Allowed Use In The |OdU8tha| And CoDl[OeFCi8| ZOO8 0SthCt, And Amending The Parking Standards For US8S /\UOVVed In The Industrial And CornDlen:ia/ Zone (Eric Heidemann. Senior Planner) Proposed amendments to the Zoning Code related to parking standards for allowed uses in the Industrial & Commercial Zone by defining uses as well as reconciling allowed uses with associated parking standards 6' RESOLUTIONS o. Public Hearing on Resolution No. 08-08. Series of 2006, Resolution Approving Preliminary Subdivision P|8D for RiVerf[ODt 8UbdiViSiOD. TOVvO of Avon, Eagle County, CO|OnBdO (Norm Wood, Town Engineer) East West Partners, Inc. application for the above referenced approval for the parcel of land commonly known as the Confluence, approximately 18.9 acres; the preliminary plans reflect the proposed public improvements and the relationship tothe development under the proposed Confluence PUDAnnendmont � b. Resolution No. 06-12, Series of 2006, Resolution Approving a Facilities Operation Agreement between the Town and Confluence Metropolitan District, and Ratifying all ACdOD Heretofore taken by the Staff of the Town (John Dunn, Town Attorney) c. Public Hearing On ReSO|UUOO NO. 06-13' Series of 2006, A ReS0|Utk}n Approving Subdivision \/ahonco Increasing AUVvvgb|e Road Grade From Eight and One Half Percent to Nine and One Half Percent on Tr@e[Cr8ek Run in the Proposed Preliminary Plat for The Vi|(@08 (At Avon) Filing 4, Town Of Avon, Eagle County, Colorado (Norm Wood, Town Engineer) d. Public Hearing On Resolution No. 06-14, Series Of 2006.AResolution Approving Preli0inary Subdivision Plan For The Village (Ad Avon) Filing 4, TOvvD Of Avon, Eagle County, Colorado (Norm Wood, Town Engineer) Avon Council Meadng�6.VI14 Page cmo TOWN OF "ON, COLORADO REGULAR COUNCIL MEETING FOR TUESD", MARCH 14, 2006 AvON MUNICIPAL BUILDING, 400 BENCHMARK ROAD e. Resolution NO. 06-15. Series of 2006, A Resolution Opposing Public Auction Of U.G. Forest 880iQe Lands in Eagle County to Fund Federal PrOg[@O0S (Tambi Kadeb. Community Development Oinaoto0 Action opposing U.S. President's FY 2007 Budget Proposal for the U.S. Forest Service proposal to include a funding renewal of the Secure Rural Schools & Community Self-Determination Act of 2000 legislation that sets a bad precedent for the sale of public lands that could impact Eagle County and Avon 7. NEW BUSINESS 8. OTHER BUSINESS 9' UNFINISHED BUSINESS 10' TOWN MANAGER REPORT 1Y' TOWN ATTORNEY REPORT 12' MAYOR REPORT 13. FUTURE AGENDA ITEMS: PLANNING & ZONING COMMISSION APPOINTMENTS, HOUSING NEEDS ASSESSMENT, U.G. POST OFFICE HOME DELIVERY 14. CONSENT AGENDA 8. Minutes from February 28,2O00Meeting b. Alpine Engineering, Inc., Professional Services Agreement for At-Grade Railroad Crossings (Norm Wood, Town Engineer) Design work for this project n. HP Geotech Professional Services Agreement for Subsoil Study for pavement & Foundation Design for T[@OSpOrt8UVO Center (Norm Wood, Town Engineer) Estimate for proposed services related to the transportation center project d� Title Sponsorship Agreement for Salute (Meryl Jacobs, Recreation Director) Agreement for title sponsorship for July 4`'' even with American National Bank 15. ADJOURNMENT Avon Council Meeting. 06.03.14 Page oova JI L:4 I IL�J To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Tambi Katieb, Community Development Directo , Eric Heidemann, Senior Planner Date: March 9, 2006 Re: Second Reading of Ordinance 06 -03, Riverfront Subdivision Planned Unit Development ( "PUD ") Application, Amendment to the 1998 Confluence PUD (PUBLIC HEARING) Summary: The Confluence PUD amendment was approved on First Reading at the February 28, 2006 meeting. The specific land use proposal was reviewed at your January 24, 2006 meeting and discussed in detail in the Planning & Zoning Commission reports, which also include a history of the property, and in the application narrative itself. A copy of the final Planning & Zoning Commission report which summarizes the project proposal is attached to this memo. Public hearings have been held with Town Council on February 14', February 28t1i, and March 14'', 2006. Both staff and the Planning & Zoning Commission have forwarded a recommendation of Conditional Approval to Town Council. Town Council unanimously approved the application on First Reading at the March 14, 2006 hearing. The PUD application and Ordinance are being heard in conjunction with Resolution 06 -08, which approves a Preliminary Subdivision plan for the project, and with Resolution 06 -12, which approves a Facilities Operation Agreement between the Town and Confluence Metro District for operation and funding of public improvements on the project. The attached Ordinance has been amended by staff from first reading as a result of many of the necessary land use approval conditions being set forth by the Development Agreement, and other technical corrections noted through the hearing process being resolved and incorporated in the PUD Development Plan. Both the PUD Development Plan and Development Agreement are exhibits to this Ordinance and attached to this memo. Also attached is a final memo from the Town's Finance Director, and Town financial consultant, Stan Bernstein & Associates, relative to the economic models and the related impacts of the land use proposal. Background: East West Partners, represented by Chuck Madison, have submitted this application to amend the Confluence Planned Unit Development ( "PUD "). As proposed the project would include a Westin condo - hotel, retail plaza, high -speed public gondola to Beaver Creek Landing, whole ownership condominiums and fractional ownership residential units, a circulation system that includes two at grade crossings for pedestrian and vehicular connection to the Town Core, and a linear multi purpose trail or river park that is deeded to the Town as open space. The project would occur in multiple phases based on the proposed build -out and economic modeling provided by the applicant. The 18.9 -acre parcel is currently undeveloped and has historically been used as a surface parking lot and construction staging area. The site is bounded to the south by the Eagle River, to the east by Avon Road, to the north by the railroad right -of -way, and to the west by the Eagle River Water & Sanitation District. Previous Council Action: The current PUD entitlements and existing development agreement for the Confluence were approved in 1998. At that time, Town Council considered a number of exactions and rebates on the basis of a different land use plan and proposal by Vail Resorts. This application, while not requesting any increase to the density vested to the property in 1998, is a significantly different PUD application that is more specifically described in the attached staff reports. Background: The application has been under review for several months at the Planning & Zoning Commission, and was preceded by several months of pre - application discussion between staff and the applicant. As a result of the deliberation and discussion between the Commission, applicant and staff, refinements have been made in the application over the original submittal in August of 2005. These refinements are reflected in the updated application binders that have been distributed to Town Council, and for purposes of this final approval, in the PUD Development Plan and Development Agreement. Financial Implications: The Town manager and finance director will present and review the financial details, economic model and review of the impacts of the land use proposal on the Town at this meeting in final form. Staff Recommendation: Staff recommends that you approve Ordinance 06 -03 on second reading after holding a public hearing. The companion resolutions for both Preliminary Subdivision Plan and Facilities Operation agreement will follow this final approval of the zoning entitlements and PUD Development Plan. Ordinance 06 -03, Westin Riverfront Resort & Spa Amendment to the 1998 Confluence PUD Town Council March 21, 2006 Regular Meeting (SECOND READING PUBLIC HEARING) Town Manager Comments: J Attachments: A: Ordinance 06-03 Approving the Confluence PUD Amendment, including PUD Development Plan and the Final Development Agreement (Strikethrough and Clean). B: Memo from Scott Wright, Finance Director regarding financial models dated March 8, 2006 with attachments. - C: Planning & Zoning Commission Staff Report, Resolution 06-01, and executed minutes from the January 17, 2006 meeting. (Note: The application for Amendment to the Confluence PUD submitted by East West Resorts, -updated January 17, 2006 and the Planning & Zoning Commission Application Review and Background Information (inc. January 17, 2006, November 15, 2005, November 1, 2005, and October 18, 2005 staff reports and all attachments) was previously distributed and these items should be brought to the hearing). Ordinance 06-03, Westin Riverfront Resort & Spa Amendment to the 1998 Confluence PUD Town Council March 21, 2006 Regular Meeting (SECOND READING PUBLIC HEARING) TOWN OF AVON ORDINANCE NO. 06-03 SERIES OF 2006 CONFLUENCE PLANNED UNIT DEVELOPMENT (PUD), TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, East West Partners Inc. has filed an application to amend the existing Planned Unit Development ( "PUD ") and Development Agreement for the Confluence PUD as more specifically described in the application dated August 8, 2005; and WHEREAS, the proper posting, publication and public notices for the hearings 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 October 18th, November Is', November 15th, December 6th, and December 20`i' of 2005 and January 17'h, 2006, 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, Ordinance 06 -03 incorporates by reference the PUD Development Plan as "Exhibit A" and the Amended and Restated Development Agreement as "Exhibit B ", both documents specifying all conditions of approval for the property; and WHEREAS, following such public hearings, the Planning & Zoning Commission forwarded its recommendation for conditional approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 06 -01; and WHEREAS, after notices provided by law, this Council held public hearings on January 24th, February 14th, February 281h, and March 14th, 2006, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Amendment; and WHEREAS, based upon the evidence, testimony, exhibits, and a study of the Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds said application appears to comply with the following PUD review criteria set forth in Section 17.12.110 of the Avon Municipal Code, including the following: 1. Conformance with the Town of Avon Comprehensive Plan's and Town Center Implementation Plan Goals and Policies as required by 17.20.110H (1); 2. The overall design concept of this PUD Amendment conforms to the design theme of the Town, and Design Guidelines as required by 17.20.11 OH(2); 3. The project is compatible with the immediate scale and character of existing properties in the vicinity. 17.20.110H(3); 4. This PUD Amendment application is responsive and compatible to the existing surrounding land -uses. 17.20.11OH (4); 5. The PUD Amendment application has identified and proposes to mitigate or avoid natural or geologic features. 17.20.110H (5); 6. The site plan, building design and location and open space provisions are designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. 17.20.110H (6); 7. The circulation system is designed for both vehicles and pedestrians addressing on and off site traffic circulation that is compatible with the Town Transportation Plan. 17.20.110H (7); 8. This PUD Amendment application has created functional open space that is responsive to existing views and buffers to open space. 17.20.1 IOH(8); 9. The subdivision plan will maintain a workable, functional, and efficient relationship throughout the development of the PUD. The phasing plan shall clearly demonstrate that each phase can be workable, functional and efficient without relying upon completion of future project phases. 17.20.110H (9); 10. Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire protection has been established. 17.20.11OH (10); 11. The existing streets and roads are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD. 17.20.11 OH (11); and WHEREAS, this PUD Amendment provides evidence of compliance with the public purpose provisions outlined in Section 17.28.085 of the Municipal Code. The public benefits include: positive fiscal impacts identified in the economic models provided by staff and the applicant; dedication of approximately 5 -acres of the Eagle River and associated high value natural resources; public plaza and lift conveyance; improved access and recreational opportunities; and an equitable capital contribution partnership. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Amendment to the Confluence PUD to as more specifically described in the application dated August 5, 2005 is hereby approved, subject to the following conditions: 1. General Conditions: A. Water Rights: The property owner shall convey to the Town the water rights necessary to serve the approved development. Final water right determination shall be resolved between the property owner and the Town prior to the issuance of each building permit; B. The property owner shall submit a master landscaping and public plaza design plan for Lots 1 -7, including Tract A, to be reviewed and approved by the Planning and Zoning Commission prior to issuance of the first building permit for the hotel; C. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code no later than three (3) years after the date of recording of final plat; D. The property owner shall construct the proposed Westin Hotel or brand of comparable rating, Public Plaza, and gondola as generally submitted in the August 3, 2005 application and as required in the Development Agreement. Significant changes to the hotel brand or brand equivalent, public plaza, conceptual architectural illustrations or conveyance to the Beaver Creek Landing shall require a major amendment to the PUD; E. 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. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this day of , 2006, and a public hearing shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the day of, , 2006, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council Mayor ATTEST: Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the day of , 2006. Town of Avon, Colorado Mayor ATTEST: Town Clerk FORM: Town Attorney 16 To: Honorable Mayor and Town Council From: Patty McKenny, Town Clerk Date: March 8, 2006 Re: Ordinance No. 06-03, Riverfront Subdivision Planned Unit Development ("PUD") Application, Amendment to the 1998 Confluence PUD Summary: Please see Exhibit A of Ordinance No. 06-03 when reviewing these materials; it was included in your notebook under separate cover. i C To: Honorable Mayor and Town Council From: Patty McKenny, Town Clerk Date: March 8, 2006 Re: Ordinance No. 06-03, Riverfront Subdivision Planned Unit Development ("PUD") Application, Amendment to the 1998 Confluence PUD Summary: Please see the attached Riverfront Subdivision PUD Development Plan as Exhibit A to the Ordinance No. 06-03 when reviewing these materials. 1 m FINAL 3.7.06 AMENDED AND RESTATED DEVELOPMENT AGREEMENT The Confluence THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into as of , 2006 by and between Avon Confluence LLC, a Delaware limited liability company ( "Owner ") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town ") and constitutes an amendment and restatement with respect to the Confluence of that certain Development Agreement — Confluence and Tract C dated October 27, 1998 (the "1998 Agreement "), as more fully set forth below. Owner and the Town are collectively referred to as the Parties. RECITALS A. Owner is a limited liability comnan�°_ duly organized and in good standing under _ _ - ( Deleted: corporation the laws of the State of Delaware ualified to do busiiiess in the State of Coles ._ - Deleted: Colorado B. Owner owns a parcel of real property which was previously annexed to the Town and defined as the "Confluence" in the 1998 Agreement, as more particularly described in Exhibit A attached to this Agreement (the "Confluence "). C. Owner desires to develop the Confluence as a mixed use development which may include, among other uses, a whole ownership condominium hotel branded as Westin or a brand of comparable ratings ( "the Hotel "), whole ownership condominiums, townhomes, time -share ... Deleted: acceptable to the Town ownershi p, restaurants, retail, spa, parking, p ublic transportation facilities, open space, office, commercial, meeting space and other uses. D. Owner is submitting an application for an amendment to the existing Planned Unit Development which was approved with respect to the Confluence as part of the 1998 Agreement. This Agreement amends and restates the 1998 Agreement with respect to the Confluence only. The Parties expressly intend not to modify any of the terms of the 1998 Agreement insofar as the 1998 Agreement refers to and concerns the properties defined therein as "Tract B" and "Tract C". E. The Town has authority to zone and govern development of the Confluence in accordance with this Agreement, the Comprehensive Plan, the Confluence PUD, the Municipal Code, and other applicable Town requirements and polices. Furthermore, the Town has authority to agree to the vesting of property development rights concerning the Confluence. F. The Confluence is expected to contribute substantially to the economic growth of the Town and consequently will increase future tax revenues to the Town. The Town desires to enter into this Agreement affecting the Confluence in order to provide for orderly growth in and around the Town and to increase its tax revenues. The Town desires to make or contribute to certain public improvements relating to the Confluence and to contribute to certain operating expenses of those improvements in order to enhance future tax revenues to the Town and contribute to the common good of the Town and its residents. G. The legislature of the State of Colorado adopted Sections 24 -68 -101, et sec . of the Colorado Revised Statutes (the "Vested Property Rights Statute ") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment - backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning; said Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. 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. I. Development of the Confluence in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment - backed expectations of Owner, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and Chapter 17.14 of the Municipal Code were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the orderly development of the Confluence, Owner desires to receive the assurance that it may proceed with development of the Confluence pursuant to the terms and conditions contained in this Agreement. J. The Town's authority to enter into this Agreement stems from the power vested generally in Colorado municipalities to address matters of local concern by contract, ordinance or otherwise. Because any payments by the Town required under this Agreement shall be subject to annual budget appropriation, they shall not be multiple fiscal year contractual undertakings of the Town and shall not be a tax policy change which would otherwise require electoral approval. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows,- which agreement - contains- -all obligations of the Owner and the Town with respect to the development of the Confluence: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Definitions. The following terms and references shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Accommodation Unit. For purpose of calculation of density (and not for purpose of calculation of water requirements), any room or group of rooms used primarily for transient lodging and accessible from common corridors, elevators, walks or balconies without passing through another Accommodation Unit and shall be no larger than 600 square feet. An Accommodation Unit may include an Efficiency Kitchen. Each Accommodation Unit shall be counted as one -third (1/3) of a Dwelling Unit for purposes of calculating allowable Dwelling Units per acre. 1.2 Amenities Fee. A consensual fee intended to mitigate the impact of a Time -share subdivision, including the cost of transportation and recreational facilities. 1.3 Annexation Agreement. The conditional Annexation Agreement affecting the Confluence Parcel approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. 1.4 Confluence. The parcel of unimproved real property described on Exhibit A. 1.5 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Town Ct(unCi on FebrUagv 28. 2006,. Deleted: Planning and zoning ' Commission of the Town 1.6 Development Standards. The Development Standards pertaining to the Confluence Deleted contained in the PUD Development Plan attached hereto as Exhibit B -- - - - - - Deleted: , recorded at Reception No. Eagle County records. 1.7 District. Shall mean collectively the Confluence Metropolitan District and the Avon Station Metropolitan District approved by the Town to serve the Confluence, among other properties as described in the 1998 Agreement. 1.8 Dwelling Unit. For purpose of calculation of density (and not for purpose of calculation of water requirements) a Dwelling Unit is one (1) or more rooms, including cooking facilities, intended or designed for occupancy by a family or guests independent of other families or guests, or (2) An aggregate of Accommodation Units provided as follows a. Three (3) Accommodation Units shall be counted as one (1) Dwelling Unit, b. Two (2) Accommodation Units in association with a dwelling unit shall be counted as one dwelling unit. 1.9 Effective Date. The effective date of the Town Council ordinance approving this Agreement. 1.10 Efficiency Kitchen. An Efficiency Kitchen means a room, wet bar or similar facility that may contain a sink, refrigerator, dishwasher, microwave oven, cook top, wet bar or similar facility, but expressly not a stove or oven within an Accommodation Unit or Residential Unit. Stub outs for natural gas, propane, or 220-V electric hook-ups are not allowed. 1.11 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of the Confluence Exhibit B PUD Development Plan for the Confluence J. 12 Hotel. A whole ownership condominium hotel branded as a Westin or a brand of comparable rating to be developed on the Confluence, as described herein. 1.13 Municipal Code. The Avon Municipal Code, as in effect from time to time. 1,14 Owner Rebate. Obheation of the Town to the Owner DUrstiant to Section 5.1 hereof. Deleted. Exhibit C Public Improvement Responsibility Matrixi firiwted: I fDeleted: acceptable to the To-- Del Formatted: Underline 1.1 (igo Ao��i�. �, _fined in Section of, ,�=c, - - j Formatted: Underline q( �.( . . . . . . . . . . . . . . . . . . . 1.16 ,Public lrrzprc�vement lee oL.PIJH A hjic ee cilllected b e Formatted: Underline District or an owners association on retail sale provision of accommodations and sales of real estate. 1.17 PUD. Planned unit development or PUD, as such terms are defined and used in the 3 Municipal Code, as approved by the Town with respect to the Confluence. 1.1-4 Real Estate Transfer Tax or RETT. For purposes of this Agreement, Real Estate Deleted: 4 Transfer Tax shall mean any municipal real estate transfer tax imposed by the Town pursuant to Municipal Code Ch. 3.12 or any similar code provision enacted during the Term of this Agreement. 1.19 Residential Unit. One (1) or more bedrooms, including cooking facilities, which Deleted: 5 . ....... . ................. ............ has a separate deeded real property interest. 1.4 Sanitation District. Eagle River Water and Sanitation District. 16 . ... .. . ... . .. .. 1.21 Subdivision Improvements Agreement. An agreement guaranteeing the eted: 1 Del7 ( ...... ........ *.".- .................................... .......... ..... ......... . ..... construction of public improvements for the Confluence pursuant to Title 16 of the Municipal Code. L" Time-share Owner. A person vested with legal title to an interval estate or a time-share estate, as defined in Section 38-33-110, Colorado Revised Statutes. 1.2� Time-share Interest. The ownership interest of a Time-share Owner. Deleted: 19 1.2j Town. The of Avon, a municipal corporation of the State, of Colorado,. 1:0 1.25 Town Council. The Town Council of the Town. Deleted: i 1,26 Vested PropgM Rights Statute. As defined in Recital Uabove. - -L DD feted: 2 Deleted: H 1.27 Zoning. Formal and final passage of an ordinance and/or resolution by the Town _ _ _ - Deleted; 3 '•: Council confirming a zoning designation on a parcel of land as provided in the Municipal Code. Such final passage shall be deemed to occur after the passage of any applicable period for the filing of a petition for referendum to reverse or nullify such zoning ordinance. 1.2, Zoning Application. The zoning application for the Confluence. i Deleted: 4 ARTICLE II CONDITIONS PRECEDENT; COVENANTS; THIS AGREEMENT 2.1 Condition Precedent, Annexation of the Confluence to the Town was accomplished pursuant to Ordinance No. 98 -18 and Resolution No. 98 -54, and the Annexation Agreement was approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. The Parties hereto agree that annexation of the Confluence was in all respects in accordance with the Town charter and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31- 12 -101, et seq.). Further, this Agreement is expressly conditioned upon the acquisition of fee simple title ..................................................................................... ............................... to the Confluence, by Owner, If Owner does not acquire such fee simple title to the Confluence : _ - Deleted: , together with adequate water on or before June 15, 2006, this Agreement shall be deemed void and of no force or effect, the rights' — 1 Confluence shall be governed by the 1998 Agreement and the vested property rights established by the 1998 Agreement, and the vested property rights described in this Agreement shall be deemed not established. 2.2 Term. In recognition of the size of the development contemplated under this Agreement, the substantial investment and time required to complete the development of the Confluence, the potential for phased development of the Confluence, and the possible impact of economic cycles and varying market conditions during the course of development, Owner and the Town agree that the term of this Agreement and the vested property rights established under this Agreement shall commence on the Effective Date and shall continue until the 12r' anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however that such termination shall not effect (a) the annexation of the Confluence to the Town; (b) any common -law vested rights obtained prior to such termination, (c) any operating agreement entered into between the Town and the,pistrict, or (d) any , _. - 4 Deleted: confluence Metro District right arising from legislative, quasi-judicial or administrative approvals occurring prior to, and/or the av°° Station Metro concurrently with, or subsequent to the approval of this Agreement and the Development Standards. _ 2.3 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice and public hearing procedures required for approval of this Agreement. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.4 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The Confluence shall be zoned as a separate PUD as provided in this Agreement and in the Development Standards. 3.2 Development Standards and Phasing. (a) Development Standards. The Development Standards contained in the PUD Development Plan attached as Exhibit B set forth the guidelines for development of the Confluence and are approved by the Town as the zoning for the Confluence, and indicate, among other things, set back distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Confluence. The Development Standards, as contained in the PUD Development Plan, are part of the zoning regulations of the Municipal Code and take precedence over other zoning regulations except insofar as the Development Standards are silent. (b) Subsequent Development Approval. Areas requiring a minor modification to roadway alignment, building location, or other related changes to the PUD Development Plan, may be approved by the Community Development Director subject to the following criteria: i. Modification is not materially incompatible with adjacent uses unless modification incorporates measures which adequately mitigate impacts to those uses; and ii. Modification is not materially inconsistent with the Development Standards set forth in the PUD Development Plan or the approved Development Agreement; and iii. Modification does not materially alter the intent of the zoning privileges The Community Development Director shall determine whether a modification requested is a minor modification or a major modification. A major modification shall require a 0 formal amendment application and noticed public hearing. The Community Development Director's determination may be appealed to the Planning and Zoning Commission within seven (7) days after the determination is made. 3.3 Vesting of f Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards constitute an approved "site- specific development plan" as defined in the Vested Property Rights Statute and Section 17.14.100 of the Municipal Code and as adopted pursuant to the requirements of Section 17.12.020 of the Municipal Code which the Town acknowledges hereby has been approved by proper procedure under the Town's charter and the Municipal Code, and (b) that Owner as the legal owner of the Confluence shall have vested property rights to undertake and complete development and use of the Confluence as provided in this Agreement and the Development Standards. Pursuant to Section 17.14.050 of the Municipal Code, approval of this Agreement and the Development Standards constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 3.4 Property Rights Vested. The rights identified below shall constitute the vested property rights under this Agreement: (a) The right to undertake and complete the development and use of the property within the Confluence in the manner and to the extent set forth in and pursuant to this Agreement and the Development Standards. (b) The Town shall not initiate any zoning or land use action that would have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development and use of the property as set forth in this Agreement or the Development Standards. 3.5 Obligations. (a) Public Transportation. Owner shall, at its sole expense, construct a gondola from the Confluence to the Tames/Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola "). The location and construction of the lower terminal shall be governed by the final plat and shall be so confi uaaed and ah med as to cast ffecCively allow furt€ue extensi nh of tlac Gondola i�u all nrr €ent with the Lower Beaver Creek l x brass lift in the event thhat that lift and the U er 13eavea Creek Ppress lift are converter) to a i,ondola to the top of the ski area at Stawberry Park and M.eCov Park. Operation of the Gondola shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance and operation of the Gondola. The Town acknowledges and accepts that there are no plans for extension of the Gondola and that the Gondola shall also be governed by a management agreement pursuant to which The Vail Corporation or an associated e €htit u €rider the conthal cif the t'nv €uer of 13eavcr C'aerk Resort shall manage and operate the Gondola on behalf of the District. (b) Linear Park/Connection to Town Core. Owner shall establish a "Linear Park" (identified as Tract A on the Qeve l0 3 Ligi t 1?lan a €tci the ,preliminary plat) along the Eagle River, which park shall remain in its natural state with certain site improvements as determined by Owner, and reasonably approved by the Town. Owner shall also create a combination of pathways and walkways together with associated landscaping, which shall provide public access to the Eagle River. The improvements shall conform in all material respects to the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town. Owner shall convey Tract A to the Town by special warranty deed at such time as all public improvements within the Linear Park have been accepted by the Town pursuant to a Subdivision Improvements Agreement but no later than three (3) years after the date of recording of the final plat. The Town agrees that the Linear Park shall be subject to a deed restriction limiting it to public ownership forever in its scenic and open space condition and used solely as a recreation area for the enjoyment of the public, including spectator events, and prohibiting uses and other activities or development inconsistent with this purpose and the residential nature of the adjacent property. The Town shall agree in such instrument to monitor and police the activities on the Linear Park. The owners and guests of the Confluence shall enjoy a perpetual easement of use and enjoyment of the Linear Park, subject to the foregoing restrictions and the reasonable regulations of the Town. (c) Public Plaza/Public Restrooms. Owner shall construct a Public Plaza and related Public Restrooms in accordance with the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town. and in accordance with a Subdivision Lnipr )c ement rGeenjent entered into between Qwner <lud the Town. The Restrooms shall contain at a rrrinimunn a ca7acit , of three persons of each sex. The Public Plaza shall be subject to an easemen plat, for the benefit of the public and shall provide access to the Gondola, Public Restrooms and to connections to the pathways to the Linear Park. Operation of the Public Plaza and Public Restrooms shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance and operation of the Public Plaza and Public Restrooms. (d) Access Roads. All roadways and associated right -of -way improvements and landscaping as described in the PUD Development Plan, as finally approved by the Town ( "Roads "), within the Confluence shall be constructed by Owner and dedicated to the Town. Owner retains the right to place signage within such rights -of -way with the approval of the Town, as described in Section 3.5(1) below. Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance therewith, the Town shall accept such Roads for maintenance. All such Roads shall be constricted to the standards for roadways, which standards shall be as set forth in the Final Subdivision Plat for the Confluence approved by the Town and as set forth in the Subdivision Improvements Agreement. Owner, the District or a master property owners' association for the Confluence shall have the right to improve such landscaping and/or place signage within rights -of -way from time to time with the Town's consent. (e) Affordable Housing. Owner shall be obligated to the Town in the amount of $846,000 in recognition of its obligation to provide affordable housing, which financial obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to (f) Railroad Crossings. The Town has received approval from the Colorado Public Utilities Commission ( "PUC ") for two at -grade crossings ( "the Crossings ") over the existing railroad tracks in order to connect the Confluence to the western Town center located (1) at the west end of the Confluence and (2) near the Seasons at Avon building at locations and pursuant to terms reasonably satisfactory to Owner and the Town (the "Crossings "). The Town shall bear the expense for construction of the Crossing improvements in accordance with the requirements of the PUC and the railroad. The Town shall further be responsible for any future improvements to the Crossings ordered by the PUC. Upon completion of the Crossings, but subject to the right -of -way of the railroad, the same shall become a part of the Town's road system for maintenance purposes. If either or both Crossings are in the future closed or required to be protected by additional warning devices, the Town shall at its sole expense implement any orders entered by the PUC including but not limited to construction of a ga q-dge- mar at�dcstriag -sLi oss�ing at the eastern crossing. Owner shall ant Deleted: pedestrian underpass to the Town such rights -of -way for public ingress and egress as are reasonably necessary for the full and convenient use of the Crossings by the public, at such locations and upon such terms as are reasonably agreed upon by the Owner and the Town. (g) Water and Water Rights. (i) The Town's augmentation plan decreed in Water Division No. 5 Case No. 84CW225 allocated 5.52 consumptive acre feet for the development of the Confluence (Avon Station). The allocated consumptive use was based upon the development of 200 Dwelling Units, 10,000 square feet of commercial area and 1.8 acres irrigated area. _Y�` ater requirements for the _ _ - Deleted: Depending upon the final Confluence �v.itL be higher_ than that allocated in the Town's augmentation plan. The difference development plan, w Deleted: are expected to between the 5.52 consumptive acre -feet and the water requirements for the proposed Confluence _ ..� development is hereinafter defined as the "Increased Water Requirements." (ii) service for the Increased Water - n caner shall, as a condition of water Requirements, dedicate and convey to the Town sufficient water rights and water storage rights that can be used in conjunction with the augmentation plan and the storage capacity presently owned by the Town to make up the amounts needed to serve the Increased Water Requirements. Owner shall reimburse the Town's expenses, including reasonable and actual engineering costs and legal fees, incurred in connection with including such additional water in the Town's augmentation plan. Any water rights to be dedicated and conveyed to the Town shall be subject to the Town's approval and acceptance, provided, however, Eagle Park Reservoir water shall be deemed an acceptable source of dedication water under this Agreement. The Town shall not be required to store water in or release water from Benchmark Lake to meet any Increased Water Requirements. Dedication of augmentation water and related water rights shall be completed prior to the issuance of the first building permit on the Confluence. (h) Hurd Lane Land and Improvements. Street improvements, including landscaping, as indicated in the Subdivision Plans and Subdivision Improvements Agreement at the intersection of Hurd Lane with Avon Road _( "the Hurd Lane Improvements ") shall be constructed by Owner and completed prior to the time the first certificate of occupancy is issued within the Confluence. The Town shall issue a right -of -way permit for constriction of any needed improvements within the Avon Road or Hurd Lane rights -of -way. The Owner or the District and Deleted: Owner shall commission a study regarding water consumption and augmentation requirements related to the maximum development as allowed by the approved PUD zoning. The study shall determine the Increased Water Requirements of the Confluence. Said study and projections shall be subject to review and approval by the Town. Upon Town approval of the water consumption and augmentation study, the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Town shall accept the Hurd Lane Improvements for maintenance. Owner, the District or a master property owners' association for the Confluence shall have the right to place and maintain landscaping at its expense from time to time at its discretion, subject to the consent approval of the Town. Owner reserves the right to install and maintain resort signage within such rights -of -way with the consent of the Town, as described in Section 3.50- below. �eieted: i W Amenities Fee. (i) Commencing at the time of a first -time sale and conveyance of a Time- share Interest to a third party purchaser and continuing in perpetuity with respect to such Time- share Interest, the Owner or property owners' association for any Time -share Ownership subdivision within the Confluence ( "Association ") is obligated to collect from each Time -share Owner and remit to the Town on a semi - annual basis an Amenities Fee in the amount of $28.05 per year per fractional interest, or the equivalent of $28.05 per year per weekly interest if conveyed in some fractional interest other than a one week period. Owner agrees that no Time- share Interest will be conveyed until the Association governing such Time -share Interest is validly organized and in good standing with the Colorado Secretary of State. The provisions for the obligation for each Time -share Owner to pay shall be a covenant running with the land and reflected accordingly on the final subdivision plat and all Association covenants. The amount of the semi - annual payments will be calculated according to the following formula: Number of existing or newly deeded Time -share Interests per semiannual period (January -June, calculated as of June 1, and July- December calculated as of December 1), multiplied by an amount equivalent to $28.05 per weekly interest as defined above (or as adjusted by CPI -U, as defined below), divided by 2. The due dates for the semiannual payments 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. ®i 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 delinquent 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. (ii) Owner, on behalf of all Associations and to the extent permitted under applicable law, hereby assigns and grants a continuing security interest in each 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 Amenities Fee. Upon default of any Association in collection and/or remittance of the Amenities Fee and notice thereof to the Time -share Owners, the Town shall have the right .to directly receive common expense assessments and to foreclose the lien therefor. (j) Fee for Fire Station Expansion. Owner shall be obligated to the Town in the amount of $160,000 for reimbursement of the cost of expansion of fire station facilities, which obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to Article V hereof. (k) Si na e. The Town agrees that Owner shall be permitted to place signage in visible locations within the rights -of -way for Avon Road and Benchmark Road, as well as within the rights -of -way to be created within the Confluence, subject, however, to the Town's approval as to specific locations, dimensions, materials and design, which approval will not be unreasonably withheld if such items do not present a safety concern and the design is approved by the Town's Planning and Zoning Commission as part of a master sign plan. Provided, nothing contained herein shall prevent the Town from removing any signs in the exercise of its police power. 3.7 No Obligation to Develop. Owner shall have no obligation to develop all or any portion of the Confluence and shall have no liability to the Town or any other party for its failure to develop all or any part of the Confluence. Provided, the obligation of the Town pursuant to Article 5 hereof shall be conditioned upon 1) Owner entering into a 20- ear lease or contract for operation of the Hotel, 2') JIucllusion of a comm itmenit within the project covenants to be recorded [Deleted: and j b Owner against the Hotel that mandates owner y g s of traits within the Hotel, among others, to - -^ _.T_. T Tmm Deleted: contained fund through homeowner assessments at a minimum the operation and maintenance costs of the ^ �� following: a portion of front desk operations, a swimming pool, ski valet, fitness center and locker rooms,. I O vaer t. >bta n x _a hui,i�Jir7 eu rnit for the Hotel and 4 Owner or District - _ ____ De�eted: z _........ entering into a contract for purchase and installation of the Gondola. 3.8 Compliance with General Regulations. Except as otherwise provided in this Agreement or the PUD Development Plan, the establishment of vested property rights under this Agreement shall not preclude the application on a uniform and non - discriminatory basis of Town regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations, except as otherwise provided in this Agreement and the PUD Development Plan) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulations shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely gLcd.nat�Li a y_ affecting any of Owner's rights set forth in this Agreement or the PUD Development Plan. Owner does not waive its right to oppose the enactment or amendment of any such regulations. ARTICLE IV WATER SERVICES Upon Owner's compliance with Section 3.5(g) hereof, the Town shall cause water service to be provided to the Confluence upon notification of need by Owner as required for the development of the• Confluence. Water infrastructure /capital facilities which are necessary for the Town to provide water to the Confluence shall be provided by Owner and/or in accordance with the plans for same included in the PUD Development Plan, as finally approved by the Town. The Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Owner or the District shall convey the water improvements to the Town by good and sufficient bill of sale, and the Town shall accept such water improvements for maintenance. The Town shall charge water tap fees within the Confluence on a uniform, non - discriminatory basis with other users within the Town. ARTICLE V SHARING OF PUBLIC AREA COSTS 5.1 Obligation of the Town. In consideration of the performance by Owner of the public improvement obligations identified in Sections 3.5(a), (b), (c), and (d) under this Agreement, and after deduction for offsct of the obligations o1' 0) vner contained in Paraara)hs 3.5(e) and (j). the Town agrees, to rebate a €let anrount of $1,557,000 in Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.030 of the Municipal Code on all real property located within the Confluence according to the procedures identified in this Sectimi 5.1. C'oznrnenciz,( on the Effective Bate and cone nLfln Y until_tli Owner Rebate is. d in full to` =ether with accrued interest. the Town shall account for all Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.030 of the Municipal Code on all real property located within the Confluence ( "Confluence RETT "). No less than fift f?ereent (50 %j of the Confluence RETT received, not to exceed a cumulative amount of $1,557,000, shall be deposited and maintained in a separate "Confluence RETT Account ". The Confluence RETT Account shall be separately accounted for and shall not be used, pledged or otherwise encumbered except as specifically set forth herein. Provided all the conditions contained in Section 1.7 hereof have been rnet, mounts deposited into the Confluence RETT Deleted: A Account shall be paid to the Owner within thirty (30) days following the end of the calendar month when collected, plus an additional amount equal to any accrued interest calculated at seven percent {7` %t;} 1 :er rarrziu�r compounded annually on the unpaid balance of such $1,557,000 Following the full payment to Owner of the Owner Rebate, the Town shall receive all Confluence RETT thereafter collected. 12 5.2 Gondola Operations. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Gondola operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.2 (a) and (b) below. (a) ._UV011 liCt'nSUre of the, Gondola Colorado Passenger Trarriway Safety Board �ritial payment shall be due no later 11 than I an No I vember I I I of they year in whit of the Gondola, begin and the Hot 1,receives a temporary certificate of occupancy (TCO) from the Town- (b) Such initial payment shall be in an amount up to fifty percent (50%) of the District's Gondola operating and maintenance budget, but shall not exceed $240,000 in 2005 dollars. On January 1, 2006, and on the first day of each year thereafter, the not-to-exceed amount shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi- annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. (c) The Town agrees to execute an operational agreement or agreements with the District and other political subdivisions, to the extent the District determines such is required under Section 32-1-1004(5), C.R.S., in order to permit the District to establish and operate the Gondola, and to cooperate with and assist the District in obtaining the execution of such intergovernmental agreement by other political subdivisions, as contemplated therein. 5.3 Public Plaza and Restrooms. Owner or the District shall retain ownership of the Public Plaza and Public Restrooms. The public shall enjoy a perpetual easement of use and enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations of Owner or the District, as applicable, acceptable to the Town staff. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Public Plaza and Restroom operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.3 (a) and (b) below. (a) Initial payment shall be due no later than November I of the year_i i %yhich,__,_ operations of the Gondola, begin and the jiotelxeceive�a temporary certificate of occupancy (TCO) M1 from the Town. _Deleted: 11 Deleted: -LMeleted: fast fDeleted- �th.tl Deleted: a aze anticipated to T ____ Deleted: has fDeleted: T................ . I .. . ........ ............... ___ Deleted ... . first .. . ... .. .. ..... ............. !._.==:;._.._ .................. J De.Med: that Deleted: are - anticipated to .......................... .......... fDeleted. Westin ................ (b) Such initial payment shall be in an amount up to fifty percent (50%) of the District's Deleted . has Public Plaza and Restroom operating and maintenance budget, but shall not exceed $40,000 in 2005 : dollars. On January 1, 2006, and on the first day of each year thereafter,the not to exceed amounts Deleted d shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi-annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. 5.4 Reduction in Payments. The not-to-exceed annual payments for Gondola operations and maintenance, as identified in Section 5.1(b) here ' and the not-to-exceed annual above 13 payment for Public Plaza and Restroom operations and maintenance, as identified in Section 5.3(b) hereof, both as adjusted for inflation {the ``1'a ment Obligation "' , shall be decreased pro - ratably, on a dollar for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into thepistricts subsequent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subset cent to the effective date of this Agreement. The reduction shall be calculated based on the sum total of the () () () () t. _ . as the,revenues received b� amounts arrived at in 5.4 a , b , c , and d below and at sue -lr time o eration of tlit.)se. sub ara ra ohs results in the reduction cif the Pa ,ment Obli ation to zero, the Town shall be ielievecl peina ;�neiitl�of'the i?a�meiit. C: ?l li€ anon. Deleted: District, through additional entities by agreement or otherwise, contributing monies toward operations and maintenance of the Gondola and the Public Plaza and Restrooms, or j Subsequent Deleted: .1 _......... _. ...... __ .... ............ ._... ... ....._............._..........J (a) Operating mill EjIK for the Districts multiplied by the assessed valuation for _ - - Deleted: levy the year being levied for each included property not within the Districts, as of the date of this Agreement. (b) Operating mill 1ILte, for the Districts multiplied by the assessed valuation of Deleted: levy ........ f an new development that has occurred on Lot B subsequent to the date of y p eq this agreement. Deleted: (c) - Any amounts received or An additional tf operating-revenues-received from oun Mtain Vista otherwise due to be received the y am of _ (District pursuant to any new agg reements Metropolitan District pursuant to additional development occurring within Mountain Vista entered into subsequent to the date of this i Agreement supporting Gondola Metropolitan District subsequent to the date of this Agreement. operations and maintenance costs and/or the Public Plaza and Restrooms d The. Pa vrnent Obliwation shall also be decreased •aro- ratabl on a dollar operations and maintenance casts. { Deleted d for dollar basis, to reflect anv aiiiciiints received or otherwise clue to be received sitbsegiierit to �..._.. __. �_i. ___ L6 �.6...__..._.._ E ............................................................ tdic, date of this A(,rcemei1L_- t iL0 u« h the cogtribution_hy entities other thtin flue "l`own and C1VIL� k�v agreement or otherwise. sup ortisig Caondola aridtar the Public Plaza and Restrooms c ratl(nis ftn<1 maintenance costs. In the event that anv revenues described in tliis subparagraprh 5. when taken to in the reduction of the 7?a°i� rent (:)bliation to zero, the `Town shall be i °elieved of the Pay Inent Obligation, but only to the extent grid so lorry as such additional operating revenues remain in place and their receivt is required to reduce the Pavrnent ONiLyation to zero. Deleted 5.5 No Debt or Pecuniary Liability; No Multiple - Fiscal Year Obligation, All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple- fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing the District and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State of Colorado to be - subject to - annual - appropriation - w- ithout - regard to approval of any such _ transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 14 5.6 Public Improvement Fees. to The Parties acknowledge arid agree that the owrier/deyd!2 per of the Confluence has recorded a cL�yLgig jtj "PIF Covenam"I ni(igg )nthe k d requiri ig the o le tjL)n of . 1,11) ic impro vetnem fees CT Such PlFs shall be at the same rates arid aoolv to the same transactions as the existing Town RETT inmosed Mider Chapter 3. 12 of the MLinicival Code, and shall be payable at the carne time and have the �,jqijje exeMpti(Lri�sagd conditions as the Town RETT, Such PlFs shall be collected purstiant to tyre rules and �rocedearc s set forth in Cite PIF C ovenant t€ on written notice to the Towti from CMD that the Town has not a))rc ) jat d a , --ill of the funds necessary to �, the Payment -p -_ Q�bli �,ation, �®rthej) !y�nctn ObIjoation has been determined by a court of �com �)ctent. to be invalid.. tlnv period of tirrre durirr which the PIF is being collected shalt be referred to herein as a TI F Collection Period." Each such PIF Collection Period shall continue until the earlier of the collection iu full of the Pavrnent Oblis�atioii the Town failed to appropriate or was barred front collectitig- MIMI a,,ggregate. Or the egd of the year before the next -qqqqqtjLor in the a SUCceedim, bud- t year for which the'rown gives CMD notice that it has appropriated the g - PavrneW ObHLatioii for that budLet near, b' During each PIF Collection Period PIF revenue shall be collected b_y a collecting ,tg!Lgjjj`)lF Collecting -.Aegent j appointed by _CJV1,J2 pursuant to the PIF C(Lvenagtsand the P1111-ties acknowled(->e and amerce that so lom! as the duties of the PIF Collecting Agent are balm Vefforrned to the reasonable satisfaction of CMD, CMD shall k1Dpaint the Jowu's Finance Director as I'll"Co L1ecLLm_g,-A,&,egt 4, ary. Any amounts of PIF revenue collected qnd wheii necess in excess of the ugap hall be aid to theTown 1) 'the PIF CollectijigAgyent jk thin [�) 1.) tsigess (it c&tm �j LLq�L ---(c) hi consideration of CINVILIDYs agreement to overate and maintain the Gondola, the Public Plaza and Rest own will grant a RETT credit ("Tax Cr to the PIF Collecting Arent durimy the PIF Collection Period iu accordance with the terms and conditions of this Agreement. In order to irntAgnient the Town's obfi�iation under this A2reelnerlt eyjth_Le,paLct to the Tax Credit. Town Council _will appr(Lyg nordilliyl '1gigidipg its Municjj,�ql _q_ qe-� - — '. - Code revisions re«ardiarg the RFTT Tax within 15 days of e effective date of this Agreement, to L) acrd royide for the Tax Credit substantially as follows: During each PIF _ j — Collection Period, each person or entity otherwise liable to the Town for Town RETT Tax Wider the�Iranacr al Code w�itlr yes act to taxable transactions occunirrg yvithirr fire Confluence will receive aTax Credi- "a,,..!inst such RE TT It 'a\ oIligatigt -n ill qual to the amount of the -1.61 an ai ot t e PIF RevellUeS collected and received by the PIF Collecting Agent. Such Tax Credit will be automatic aced will take effect im C1j1jLatelyLW)gth�La . ayer'," (as reflected oil the L_ _ 1)1)1 is tar bv the PIF Collectina transactions and payrnewu s supporting the gn of the PIF revenues. provided, hoW�Z however, that the u ri extent, for the same limitation periods acrd in the same manner as the items which are required to Ise A,1-0-!aLx avecs-a !—Itrn relit ijigg- to. the period in which the transaction occurs. If Town Council be entitled in its sole discretion either toy the failure of a condition R teriniriate this ALYreetneiit; or (ii) extend the veriod for satisfaction of the foregoing collting�� the extension iiotice. At the terniiiiation of each P11'Collection Pe.riod, if there are PIT" revellues for t.Lie-pur (,Ls�Lof the �vn sLitisfying its obligations under this Agreemew or, if 11(i further obhi-,atious exist at that time, for anv lawful Duroose, UVOD reasonable notice to the other party. the'l'own will have the riizht at its owii ex ense to aLidit CMD's books and records, and CMD will have the r_ioht,_at its own ex. sLto audit the'rown's books and iLccords reLated to their respective obligations under this Agreerneut. (e) The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant tom otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time, so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek mreform this Agreement inu manner that will best effect their intent. {[a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed k/ include in the budget proposals for each year sufficient funds tn meet the party's obligations under this Agreement. 5] Books and Records. The Town, the District and any RIE shall Deleted: Association maintain adequate books and records to accurately perform and account for their roopnodvc obligations under this Agreconcoc Ilcpr000utadvox thereof shall be granted ncuaouoblc uuccmo during uoonu| humioeao hours to such books and records in order to determine compliance with the terms of this Agreement or the uooucocy of such books and records. Bea/ efforts abuU be used to ,co6|ve any ia000m, discrepancies, or ivaucucm:io* discovered in any review of any «uhty`a books and records. 5.0 Legal Challenge to Agreement. lo the event any agreement contained herein is ever the subject o[a au0000afu| legal challenge, the Town shall diligently resist such challenges in cooperation with the Owner and the District as set forth in Section 2.4 above. ARTICLE VI SPECIAL DISTRICTS I I'll, "I'll The Parties agree to take all reasonable action necessary to approve any necessary amendment mthe service plan for the District to conform to the financial provisions ofthis Agreement and to permit the District to carry out any obligations of the Owner delegated mb |pursuant to the amended service plan. The Town also agrees m permit the Owner mform Le, qualifying non - profit corporations to undertake obligations of the Owner delegated to them with the consent of the Town, which consent may be withheld by the Town in its sole and absolute discretion. ARTICLE VII DEFAULTS, REMEDIES, AND TERMINATION 7.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as any of the following, after the applicable cure period described below: (a) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Owner's consent, that materially alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise materially and adversely affects any development, use or other rights of Owner under this Agreement, the PUD Development Plan or the Development Standards; or (b) the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement, including, without limitation, the timely payment of any monetary obligation hereunder. 7.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement following the applicable cure period described below or Owner's failure to fulfill or perform any material obligation of Owner contained in any other agreement between the Town and Owner following any applicable cure period contained in that agreement. 7.3 Notices of Default. In the event of a default by either party under this Agreement, the non- defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Section 8.8, and the defaulting party shall have, thirty (30) days from and _ _ - Deleted: after receipt of such notice to cure such default. JV such default is not of a type which can be Deleted: for non- monewuy obligations ations 1 cured within such thirty (30) day period and the defaulting party gives written notice to the non- - Deleted: With respect to non - monetary defaulting party within such thirty (30) day period that it is actively and diligently pursuing such obhgaeons, cure, the defaulting party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 7.4 Remedies. (a) If any default under this Agreement is not cured as described above, the non - defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in- addition -to, every other remedy provided for in this Agreement or - otherwise, existing at law, in equity or by statute. Notwithstanclin2 Section 3.4 or other prohibitions contained herein, in the - Deleted: t -�1 event of a breach or default by the Owner, the Town may impose a moratorium on zoning or 17 subdivision a 7 lications or approvals or withhold issuance of any building permit for property located within the Confluence. (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to recover from the Town any damages that should have been specifically available to Owner as contemplated in Colorado Revised Statutes Section 24-68 - 105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. 7.5 Arbitration. Any controversy or claim arising out of or relating to this Agreement, including, without limitation, any breach or interpretation hereof, shall be settled by binding arbitration in Eagle County, Colorado, in accordance with the Uniform Arbitration Act, § 13 -22 -201, C.R.S., et seq. The parties shall each appoint one arbitrator and attempt to select a third arbitrator agreeable to all, but if they are unable to do so within twenty (20) days after a request for arbitration, then such arbitrator may be appointed by any judge of a competent state court having jurisdiction in Eagle County, Colorado, upon application of any party. The arbitrator jointly selected by the parties or appointed by the court must be an attorney who has substantial experience in real estate .development. Any such arbitration panel shall have the power to grant any relief, including equitable relief as just and appropriate. Any award in such arbitration shall have the effect of a judgment and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs of arbitration. ARTICLE VIII MISCELLANEOUS 8.1 Applicable Law. Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be construed as making Town and Owner joint venturers or partners. 8.3 Expenses. Owner will reimburse the Town all third party out -of- pocket costs incurred by the Town directly related to the implementation of this Agreement, including but not limited to legal fees charged by the Town Attorney and outside counsel, but excluding costs arisaing under Section 2.4 above or otherwise relating to any challenge to this Agreement or any provision hereof. The Town agrees to keep Owner generally informed with respect to matters as to which it expects reimbursement from Owner and the anticipated costs related to same. The Town agrees to consult with Owner prior to securing the services of any new consultant or professional for which the Town expects reimbursement. Owner's obligation in that regard shall 18 terminate upon issuance ofofinal certificate of occupancy for the �Lujted to, the 7\2wl Thereafter, Owner and the Town shall each bear their respective costs and expenses associated with implementing and enforcing the terms of this Agreement 8.4 Waiver. No waiver of one u« more nf the terms of this Agreement shall constitute o *xivcc of other terms. No waiver of any provision of this Agreement in any instance abul} constitute u waiver of such provision iu other instances. 8.5 Seve[abdlby. If any texm, pnoviaimu, covenant or condition of this Agreement is held by u court of competent jurisdiction to be bmaJN, void or unenforceable, the nena6dog provisions of this Agreement shall continue iu full force and effect. 8.6 Further Assurances. Each party oho| execute and deliver to the other all such other further instruments and documents as may bc reasonably necessary to carry out this Agreement in order hn provide and accuo: N the other party the full and complete enjoyment of its rights and privileges under this Agreement. 8.7 Notices. Any notice or communication required or permitted under the terms of this Agreement shall be io writing, may hc given by the parties hereto or such parties' respective |oDul counsel, and mbul| be deemed given and received (0 when hand delivered to the intended recipieot(a), by whatever means; (ii) three (3) business days after the same is deposited in the United States muiia. with adequate postage prepaid, and sent by registered o, certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or(iv) when received via facsimile outhe intended recipient's facsimile facilities accessed bythe applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities ofthe noticing party). Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below: IftoTown: Town ofAvon 9.O. Box 975 Avon, Colorado 8|62O Attention: Town Manager Telephone: 070-748-4005 Facsimile: 970-748-4078 And: John W. Dunn, Esq. l!O Box 77|7 Telephone: 970-748-6400 Facsimile: 970-748-8881 0m If to Owner: Avon Confluence LLC. c/o Chuck Madison P.O. Drawer 2770 100 E. Thomas Place Avon, Colorado 81620 Facsimile: (970) 845 -7205 And: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476 -7646 Facsimile: (970) 476 -7118 Each party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 8.8 Assignment. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto; provided, the rights of Owner pursuant to Section 5.1 to the rebate of RETT revenues, shall be personal to Owner, shall not run with the land and shall not benefit Owner's successors in title. Owner shall have the unilateral right and power to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement (a) to the District, including, without limitation, the obligations set forth herein in Sections 3.5(a), 3.5(b), 3.5(c), 3.5(d), 3.5(h) and roads and utility infrastructure obligations and (b) to an entity or entities formed for the purpose of developing the Confluence which are managed by an affiliate of Owner and comprised of affiliates of Owner and other investment member(s). Further, 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 Confluence, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Confluence; provided, however, that the third party assignee fully assumes in writing all obligations of Owner assigned to such party and the Town consents in writing to such third party assignment, which consent will not be unreasonably withheld or delayed in the event that Owner has reasonably demonstrated that the third party assignee has the financial capability to _perform the obligations under this Agreement so assigned. Provided, any assumption or transfers by or to the District providing for the express assumption of any of Owner's obligations under this Agreement by the District as permitted herein shall not relieve or release Owner of and from any further obligations under this Agreement with respect to the matter so assumed. The Town's obligations hereunder may not be 20 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. Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance of property within the Confluence. 89 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 8.10 Amendments Waivers and Consents. No amendment or waiver of any provision of this Agreement, nor consent to any departure herefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Any consent required under this Agreement by a party will not be unreasonably withheld or delayed by such party. 8.11 Effect. This Agreement contains all obligations of the Owner with respect to the development of the Confluence and fully replaces the 1998 Agreement as it relates to the Confluence. The 1998 Agreement shall continue to control the obligations of the owners of the properties defined therein as Tract B and Tract C. No failure of the owners of Tract B or Tract C to comply with the requirements of or satisfy the obligations of the 1998 Agreement shall affect the development of the Confluence pursuant to the terms of this Agreement and the owner of the Confluence or the District shall have no responsibility to comply with the requirements of or satisfy the obligations in the 1998 Agreement except as amended and restated in this Agreement. Further, no failure of the owners of the Confluence to comply with the requirements of or satisfy the obligations of this Agreement shall affect the development of Tract B or Tract C. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. TOWN: ATTEST Patty McKenny, Town Clerk STATE OF COLORADO ) TOWN OF AVON, a municipal corporation of the State of Colorado M. 21 Ronald C. Wolfe, Mayor ss. COUNTY OF ) Subscribed before me this day of , 2006, by Ronald C. Wolfe as Mayor of Town of Avon, Colorado and Patty McKenny as Town Clerk of Avon. My commission expires: Notary Public OWNER: AVON CONFLUENCE LLC. a Deleware limited liability company By: Its: Deleted: ATrESTTj[ STATE OF COLORADO ) ss. I —t COUNTY OF Subscribed before me as LLC, a limited liability company. My commission expires: this day of Notary Public 22 2006, by of Avon Confluence Exhibit A - - - - j Formatted: Centered A parcel of land located in the south 1/2 of the northwest 1/4 of Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eogle County, Colorado, being more particularly described as follows: Beginning of a point, on the southerly right -af -way line of the Denver Rio Grande Western Rail Rood and the westerly right -cf -woy line of P Rood, from which the Center 1/4 carrier of Section 12 boors S 04'18'06" E. 612.39 feet; thence along the southerly rohroad rignt- of -woy N 55`23'27' W, 1729.75 feet to the southeasterly most cornet Tract H, Benchmark at Beaver Creek Subdivision, Amendment Number recorded in Book 274 at page 701; thence deporting the southerly ric of-wcy line and ofong the southerly line of Tract H N 89'32'01" W, 397.29 feet to a point on the easterly line of Seaver Creek Subdivisio Tracts 0 and P, as recorded in Book 6% at page 662, said line oein oleo the cpproximete centerline of the Eagle River; thence along the easteriy line the following ten (10) courses: 1) S 48'08'55' E. 132.70 feet, 2) $ 57'22'26' E, 341,00 feet, 3) S 49'50'33' E, 455.67 feet, 4) S 4T47'00" E. 293.81 feet, 5 S 43'40'09' E, 15241 feet, 6) S 50'10'13" E, 154.96 feet, 7 S 53'42'45' E. 167.29 feet, 8) 5 81'26`34" E. 214,88 feet, 9 N 86'00'59" E. 162.21 feet. 10) N 86'36'05' E, 197.35 feet to a p the westerly right -of -way line of Avon Road; thence along the wester right -of -way tine the fallowing lour (4) courses: 1) N 12'05'08' E, 120.18 feet, 2) N 12'07'30" E. 86.00 feet, 3) N 21'17'14" E, 52.00 feet, 4) N 04'29'54" E. 119.79 feet to the Point of Beginning. Parcel Contains 18 886 acres. Together with three (3) parcels of fond known as TK -10 -A, TK -10 or PE -10 also being located in the South 1/2 of the Northwest 1/4 of Section 12, Township 5 South. Range 82 West of the Sixth Principal Meridian, Eagle County. Colorado, the exterior boundary of these combined parcels being more particularly described as follows: Beginning of the Northeast corner of the Confluence from which the center 1/4 of Section 12 bears SO4' 18' 06 "E, 612.39 feet; thence along the southerly right -of -woy line of the Denver and Rio Grande Western Railroad S 65' 23' 27 "E. 33.06 feet; thence deporting said railroad right -of -way along the are of o non - tangent curve to the ri 1L11.21 feet, having a radius of 1095.90 feet, a central ongle of 09' 2 26' and o chord which bears S06' 28' 46'W, 181.00 feet; thence the following seven (7) courses: 1. S11' 13' 03 "W. 54.70 feet 2. S43' 13' 33`W, 37.70 feet 3. S10' 05' 03 "W, 94.50 feet 4. See* 36' 05 "W, 28.16 feet 5. N12' 05' 08 %, 120-18 feet 6,_ NIT 07' 30 "E, 86.00 feet N21' 17' 14 "E. thence N04' 29' 54 "E. 119.79 feet to the Point of 8sgmning. Parcel contains 0.28 acres more or ieas. 23 AMENDED AND RESTATED DEVELOPMENT AGREEMENT The Confluence THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into as of , 2006 by and between Avon Confluence LLC, a Delaware limited liability company ( "Owner ") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town ") and constitutes an amendment and restatement with respect to the Confluence of that certain Development Agreement — Confluence and Tract C dated October 27, 1998 (the "1998 Agreement "), as more fully set forth below. Owner and the Town are collectively referred to as the Parties. RECITALS A. Owner is a limited liability company duly organized and in good standing under the laws of the State of Delaware, qualified to do business in the State of Colorado.. B. Owner owns a parcel of real property which was previously annexed to the Town and defined as the "Confluence" in the 1998 Agreement, as more particularly described in Exhibit A attached to this Agreement (the "Confluence "). C. Owner desires to develop the Confluence as a mixed use development which may include, among other uses, a whole ownership condominium hotel branded as Westin or a brand of comparable rating ( "the Hotel'), whole ownership condominiums, townhomes, time -share ownership, restaurants, retail, spa, parking, public transportation facilities, open space, office, commercial, meeting space and other uses. D. Owner is submitting an application for an amendment to the existing Planned Unit Development which was approved with respect to the Confluence as part of the 1998 Agreement. This Agreement amends and restates the 1998 Agreement with respect to the Confluence only. The Parties expressly intend not to modify any of the terms of the 1998 Agreement insofar as the 1998 Agreement refers to and concerns the properties defined therein as "Tract B" and "Tract C" E. The Town has authority to zone and govern development of the Confluence in accordance with this Agreement, the Comprehensive Plan, the Confluence PUD, the Municipal Code, and other applicable Town requirements and polices. Furthermore, the Town has authority to agree to the vesting of property development rights concerning the Confluence. F. The Confluence is expected to contribute substantially to the economic growth of the Town and consequently will increase future tax revenues to the Town. The Town desires to enter into this Agreement affecting the Confluence in order to provide for orderly growth in and around the Town and to increase its tax revenues. The Town desires to make or contribute to certain public improvements relating to the Confluence and to contribute to certain operating expenses of those improvements in order to enhance future tax revenues to the Town and contribute to the common good of the Town and its residents. G. The legislature of the State of Colorado adopted Sections 24 -68 -101, et seq. of the Colorado Revised Statutes (the "Vested Property Rights Statute ") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment- backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning; said Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. 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. I. Development of the Confluence in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment - backed expectations of Owner, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and Chapter 17.14 of the Municipal Code were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the orderly development of the Confluence, Owner desires to receive the assurance that it may proceed with development of the Confluence pursuant to the terms and conditions contained in this Agreement. J. The Town's authority to enter into this Agreement stems from the power vested generally in Colorado municipalities to address matters of local concern by contract, ordinance or otherwise. Because any payments by the Town required under this Agreement shall be subject to annual budget appropriation, they shall not be multiple fiscal year contractual undertakings of the Town and shall not be a tax policy change which would otherwise require electoral approval. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows, which agreement contains all obligations of the Owner and the Town with respect to the development of the Confluence: 2 ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Definitions. The following terms and references shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Accommodation Unit. For purpose of calculation of density (and not for purpose of calculation of water requirements), any room or group of rooms used primarily for transient lodging and accessible from common corridors, elevators, walks or balconies without passing through another Accommodation Unit and shall be no larger than 600 square feet. An Accommodation Unit may include an Efficiency Kitchen. Each Accommodation Unit shall be counted as one -third (1/3) of a Dwelling Unit for purposes of calculating allowable Dwelling Units per acre. 1.2 Amenities Fee. A consensual fee intended to mitigate the impact of a Time -share subdivision, including the cost of transportation and recreational facilities. 1.3 Annexation Agreement. The conditional Annexation Agreement affecting the Confluence Parcel approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. 1.4 Confluence. The parcel of unimproved real property described on Exhibit A. 1.5 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Town Council on February 28, 2006. 1.6 Development Standards. The Development Standards pertaining to the Confluence contained in the PUD Development Plan attached hereto as Exhibit B. 1.7 District. Shall mean collectively the Confluence Metropolitan District and the Avon Station Metropolitan District approved by the Town to serve the Confluence, among other properties as described in the 1998 Agreement. 1.8 DwellingUnit. For purpose of calculation of density (and not for purpose of calculation of water requirements)_ a Dwelling Unit is one (1) or more rooms, including cooking facilities, intended or designed for occupancy by a family or guests independent of other families or guests, or (2) An aggregate of Accommodation Units provided as follows a. Three (3) Accommodation Units shall be counted as one (1) Dwelling Unit, b. Two (2) Accommodation Units in association with a dwelling unit shall be counted as one dwelling unit. 1.9 Effective Date. The effective date of the Town Council ordinance approving this Agreement. 1.10 Efficiency Kitchen. An Efficiency Kitchen means a room, wet bar or similar facility that may contain a sink, refrigerator, dishwasher, microwave oven, cook top, wet bar or similar facility, but expressly not a stove or oven within an Accommodation Unit or Residential Unit. Stub outs for natural gas, propane, or 220 -V electric hook -ups are not allowed. 1.11 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of the Confluence Exhibit B PUD Development Plan for the Confluence 1.12 Hotel. A whole ownership condominium hotel branded as a Westin or a brand of comparable rating to be developed on the Confluence, as described herein. hereof. 1.13 Municipal Code. The Avon Municipal Code, as in effect from time to time. 1,14 Owner Rebate. Obligation of the Town to the Owner pursuant to Section 5.1 1.15 PIF Collecting Agent. As defined in Section 5.6 hereof. 1.16 Public Improvement Fee or PIF: A public improvement fee collected by the District or an owners association on retail sales, provision of accommodations and sales of real estate. 1.17 PUD. Planned unit development or PUD, as such terms are defined and used in the Municipal Code, as approved by the Town with respect to the Confluence. 1.18 Real Estate Transfer Tax or RETT. For purposes of this Agreement, Real Estate Transfer Tax shall mean any municipal real estate transfer tax imposed by the Town pursuant to Municipal Code Ch. 3.12 or any similar code provision enacted during the Term of this Agreement. 1.19 Residential Unit. One (1) or more bedrooms, including cooking facilities, which has a separate deeded real property interest. 1.20 Sanitation District. Eagle River Water and Sanitation District. 1.21 Subdivision Improvements Agreement. An agreement guaranteeing the construction of public improvements for the Confluence pursuant to Title 16 of the Municipal Code. 1.22 Time -share Owner. A person vested with legal title to an interval estate or a time -share estate, as defined in Section 38 -33 -110, Colorado Revised Statutes. 1.23 Time -share Interest. The ownership interest of a Time -share Owner. 1.24 Town. The Town of Avon, a municipal corporation of the State of Colorado. 11 1.25 Town Council. The Town Council of the Town. 1.26 Vested Property Rights Statute. As defined in Recital G above. 1.27 Zoning. Formal and final passage of an ordinance and/or resolution by the Town Council confirming a zoning designation on a parcel of land as provided in the Municipal Code. Such final passage shall be deemed to occur after the passage of any applicable period for the filing of a petition for referendum to reverse or nullify such zoning ordinance. 1.28 Zoning Application. The zoning application for the Confluence. ARTICLE II CONDITIONS PRECEDENT; COVENANTS; THIS AGREEMENT 2.1 Condition Precedent. Annexation of the Confluence to the Town was accomplished pursuant to Ordinance No. 98 -18 and Resolution No. 98 -54, and the Annexation Agreement was approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. The Parties hereto agree that annexation of the Confluence was in all respects in accordance with the Town charter and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31- 12 -101, et seq.). Further, this Agreement is expressly conditioned upon the acquisition of fee simple title to the Confluence by Owner. If Owner does not acquire such fee simple title to the Confluence on or before June 15, 2006, this Agreement shall be deemed void and of no force or effect, the Confluence shall be governed by the 1998 Agreement and the vested property rights established by the 1998 Agreement, and the vested property rights described in this Agreement shall be deemed not established. 2.2 Term. In recognition of the size of the development contemplated under this Agreement, the substantial investment and time required to complete the development of the Confluence, the potential for phased development of the Confluence, and the possible impact of economic cycles and varying_ market_ conditions_ during the course of development, Owner and the Town agree that the term of this Agreement and the vested property rights established under this Agreement shall commence on the Effective Date and shall continue until the 12th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however that such termination shall not effect (a) the annexation of the Confluence to the Town; (b) any common -law vested rights obtained prior to such termination, (c) any operating agreement entered into between the Town and the District, or (d) any right arising from legislative, quasi-judicial or administrative approvals occurring prior to, concurrently with, or subsequent to the approval of this Agreement and the Development Standards. 2.3 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in 5 writing following the public notice and public hearing procedures required for approval of this Agreement. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.4 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The Confluence shall be zoned as a separate PUD as provided in this Agreement and in the Development Standards. 3.2 Development Standards and Phasing. (a) Development Standards. The Development Standards contained in the PUD Development Plan attached as Exhibit B set forth the guidelines for development of the Confluence and are approved by the Town as the zoning for the Confluence, and indicate, among other things, set back distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Confluence. The Development Standards, as contained in the PUD Development Plan, are part of the zoning regulations of the Municipal Code and take precedence over other zoning regulations except insofar as the Development Standards are silent. (b) Subsequent Development Approval. Areas requiring a minor modification to roadway alignment, building location, or other related changes to the PUD Development Plan, may be approved by the Community Development Director subject to the following criteria: i. Modification is not materially incompatible with adjacent uses unless modification incorporates measures which adequately mitigate impacts to those uses; and ii. Modification is not materially inconsistent with the Development Standards set forth in the PUD Development Plan or the approved Development Agreement; and iii. Modification does not materially alter the intent of the zoning privileges vested herein. The Community Development Director shall determine whether a modification requested is a minor modification or a major modification. A major modification shall require a on formal amendment application and noticed public hearing. The Community Development Director's determination may be appealed to the Planning and Zoning Commission within seven (7) days after the determination is made. 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards constitute an approved "site- specific development plan" as defined in the Vested Property Rights Statute and Section 17.14. 100 of the Municipal Code and as adopted pursuant to the requirements of Section 17.12.020 of the Municipal Code which the Town acknowledges hereby has been approved by proper procedure under the Town's charter and the Municipal Code, and (b) that Owner as the legal owner of the Confluence shall have vested property rights to undertake and complete development and use of the Confluence as provided in this Agreement and the Development Standards. Pursuant to Section 17.14.050 of the Municipal Code, approval of this Agreement and the Development Standards constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 3.4 Property Rights Vested. The rights identified below shall constitute the vested property rights under this Agreement: (a) The right to undertake and complete the development and use of the property within the Confluence in the manner and to the extent set forth in and pursuant to this Agreement and the Development Standards. (b) The Town shall not initiate any zoning or land use action that would have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development and use of the property as set forth in this Agreement or the Development Standards. 3.5 Obligations. (a) Public Transportation. Owner shall, at its sole expense, construct a gondola from the Confluence to the Tames/Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola "). The location and construction of the lower terminal shall be governed by the final plat and shall be so configured and aligned as to cost effectively allow future extension of the Gondola in alignment with the Lower Beaver Creek Express lift_in the event that. , that lift and the, Upper-Beaver Creek Express lift _are, converted to a gondola to the top of the ski area at Stawberry Park and McCoy Park. Operation of the Gondola shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance and operation of the Gondola. The Town acknowledges and accepts that there are no plans for extension of the Gondola and that the Gondola shall also be governed by a management agreement pursuant to which The Vail Corporation or an associated entity under the control of the owner of Beaver Creek Resort shall manage and operate the Gondola on behalf of the District. (b) Linear Park/Connection to Town Core. Owner shall establish a "Linear Park" (identified as Tract A on the Development Plan and the preliminary plat) along the Eagle River, which park shall remain in its natural state with certain site improvements as determined by 6 Owner, and reasonably approved by the Town. Owner shall also create a combination of pathways and walkways together with associated landscaping, which shall provide public access to the Eagle River. The improvements shall conform in all material respects to the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town. Owner shall convey Tract A to the Town by special warranty deed at such time as all public improvements within the Linear Park have been accepted by the Town pursuant to a Subdivision Improvements Agreement but no later than three (3) years after the date of recording of the final plat. The Town agrees that the Linear Park shall be subject to a deed restriction limiting it to public ownership forever in its scenic and open space condition and used solely as a recreation area for the enjoyment of the public, including spectator events, and prohibiting uses and other activities or development inconsistent with this purpose and the residential nature of the adjacent property. The Town shall agree in such instrument to monitor and police the activities on the Linear Park. The owners and guests of the Confluence shall enjoy a perpetual easement of use and enjoyment of the Linear Park, subject to the foregoing restrictions and the reasonable regulations of the Town. (c) Public Plaza/Public Restrooms. Owner shall construct a Public Plaza and related Public Restrooms in accordance with the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town, and in accordance with a Subdivision Improvements Agreement entered into between Owner and the Town. The Restrooms shall contain at a minimum a capacity of three persons of each sex. The Public Plaza shall be subject to an easement granted to the Town at the time of recording of the final subdivision plat, for the benefit of the public and shall provide access to the Gondola, Public Restrooms and to connections to the pathways to the Linear Park. Operation of the Public Plaza and Public Restrooms shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance and operation of the Public Plaza and Public Restrooms. (d) Access Roads. All roadways and associated right -of -way improvements and landscaping as described in the PUD Development Plan, as finally approved by the Town ( "Roads "), within the Confluence shall be constructed by Owner and dedicated to the Town. Owner retains the right to place signage within such rights -of -way with the approval of the Town, as described in Section 3.5(1) below. Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance therewith, the Town shall accept such Roads for maintenance. All such Roads shall be constructed to the standards for roadways, which standards shall be as set forth in the Final Subdivision Plat for the Confluence approved by the Town and as set forth in the Subdivision Improvements Agreement. Owner, the District or a master property owners' association for the Confluence shall have the right to improve such landscaping and/or place signage within rights -of -way from time to time with the Town's consent. (e) Affordable Housing. Owner shall be obligated to the Town in the amount of $846,000 in recognition of its obligation to provide affordable housing, which financial obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to Article V hereof. (f) Railroad Crossings. The Town has received approval from the Colorado Public Utilities Commission ( "PUC ") for two at -grade crossings ( "the Crossings ") over the existing NO railroad tracks in order to connect the Confluence to the western Town center located (1) at the west end of the Confluence and (2) near the Seasons at Avon building at locations and pursuant to terms reasonably satisfactory to Owner and the Town (the "Crossings "). The Town shall bear the expense for construction of the Crossing improvements in accordance with the requirements of the PUC and the railroad. The Town shall further be responsible for any future improvements to the Crossings ordered by the PUC. Upon completion of the Crossings, but subject to the right -of -way of the railroad, the same shall become a part of the Town's road system for maintenance purposes. If either or both Crossings are in the future closed or required to be protected by additional warning devices, the Town shall at its sole expense implement any orders entered by the PUC including but not limited to construction of a grade- separated pedestrian crossing at the eastern crossing. Owner shall grant to the Town such rights -of -way for public ingress and egress as are reasonably necessary for the full and convenient use of the Crossings by the public, at such locations and upon such terms as are reasonably agreed upon by the Owner and the Town. (g) Water and Water Rights. (i) The Town's augmentation plan decreed in Water Division No. 5 Case No. 84CW225 allocated 5.52 consumptive acre feet for the development of the Confluence (Avon Station). The allocated consumptive use was based upon the development of 200 Dwelling Units, 10,000 square feet of commercial area and 1.8 acres irrigated area. Water requirements for the Confluence will be higher than that allocated in the Town's augmentation plan. The difference between the 5.52 consumptive acre -feet and the water requirements for the proposed Confluence development is hereinafter defined as the "Increased Water Requirements." (ii) Owner shall, as a condition of water service for the Increased Water Requirements, dedicate and convey to the Town sufficient water rights and water storage rights that can be used in conjunction with the augmentation plan and the storage capacity presently owned by the Town to make up the amounts needed to serve the Increased Water Requirements. Owner shall reimburse the Town's expenses, including reasonable and actual engineering costs and legal fees, incurred in connection with including such additional water in the Town's augmentation plan. Any water rights to be dedicated and conveyed to the Town shall be subject to the Town's approval and acceptance, provided, however, Eagle Park Reservoir water shall be deemed an acceptable source of dedication water under this Agreement. The Town shall not be required to store water in or release water from Benchmark Lake to meet any Increased Water Requirements. Dedication of augmentation water and related water rights shall be completed prior to the issuance of the first building permit on the Confluence. (h) Hurd Lane Land and Improvements. Street improvements, including landscaping, as indicated in the Subdivision Plans and Subdivision Improvements Agreement at the intersection of Hurd Lane with Avon Road ( "the Hurd Lane Improvements ") shall be constructed by Owner and completed prior to the time the first certificate of occupancy is issued within the Confluence. The Town shall issue a right -of -way permit for construction of any needed improvements within the Avon Road or Hurd Lane rights -of -way. The Owner or the District and 0 the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Town shall accept the Hurd Lane Improvements for maintenance. Owner, the District or a master property owners' association for the Confluence shall have the right to place and maintain landscaping at its expense from time to time at its discretion, subject to the consent approval of the Town. Owner reserves the right to install and maintain resort signage within such rights -of -way with the consent of the Town, as described in Section 3.5(k) below. (i) Amenities Fee. (i) Commencing at the time of a first -time sale and conveyance of a Time- share Interest to a third party purchaser and continuing in perpetuity with respect to such Time- share Interest, the Owner or property owners' association for any Time -share Ownership subdivision within the Confluence ( "Association ") is obligated to collect from each Time -share Owner and remit to the Town on a semi - annual basis an Amenities Fee in the amount of $28.05 per year per fractional interest, or the equivalent of $28.05 per year per weekly interest if conveyed in some fractional interest other than a one week period. Owner agrees that no Time- share Interest will be conveyed until the Association governing such Time -share Interest is validly organized and in good standing with the Colorado Secretary of State. The provisions for the obligation for each Time -share Owner to pay shall be a covenant running with the land and reflected accordingly on the final subdivision plat and all Association covenants. The amount of the semi - annual payments will be calculated according to the following formula: Number of existing or newly deeded Time -share Interests per semiannual period (January -June, calculated as of June 1, and July- December calculated as of December 1), multiplied by an amount equivalent to $28.05 per weekly interest as defined above (or as adjusted by CPI -U, as defined below), divided by 2. The due dates for the semiannual payments 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. 10 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 delinquent 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. (ii) Owner, on behalf of all Associations and to the extent permitted under applicable law, hereby assigns and grants a continuing security interest in each 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 Amenities Fee. Upon default of any Association in collection and /or remittance of the Amenities Fee and notice thereof to the Time -share Owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 0) Fee for Fire Station Expansion. Owner shall be obligated to the Town in the amount of $160,000 for reimbursement of the cost of expansion of fire station facilities, which obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to Article V hereof. (k) Si na e. The Town agrees that Owner shall be permitted to place signage in visible locations within the rights -of -way for Avon Road and Benchmark Road, as well as within the rights -of -way to be created within the Confluence, subject, however, to the Town's approval as to specific locations, dimensions, materials and design, which approval will not be unreasonably withheld if such items do not present a safety concern and the design is approved by the Town's Planning and Zoning Commission as part of a master sign plan. Provided, nothing contained herein shall prevent the Town from removing any signs in the exercise of its police power. 3.7 No Obligation to Develop. Owner shall have no obligation to develop all or any portion of the Confluence and shall have no liability to the Town or any other party for its failure to develop all or any part of the Confluence. Provided, the obligation of the Town pursuant to Article 5 hereof shall be conditioned upon 1) Owner entering into a 20 -year lease or contract for operation of the Hotel, 2) inclusion of a commitment within the project covenants to be recorded by Owner against the Hotel that mandates owners of units within the Hotel, among others, to fund through homeowner assessments at a minimum the operation and maintenance costs of the following: a portion of front desk operations, a swimming pool, ski valet, fitness center and locker rooms, 3) Owner obtaining a building permit for the Hotel and 4) Owner or District entering into a contract for purchase and installation of the Gondola. 3.8 Compliance with General Regulations. Except as otherwise provided in this Agreement or the PUD Development Plan, the establishment of vested property rights under this Agreement shall not preclude the application on a uniform and non - discriminatory basis of Town regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations, except as otherwise provided in this Agreement and the PUD Development Plan) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town II regulations shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely and materially affecting any of Owner's rights set forth in this Agreement or the PUD Development Plan. Owner does not waive its right to oppose the enactment or amendment of any such regulations. ARTICLE IV WATER SERVICES Upon Owner's compliance with Section 3.5(g) hereof, the Town shall cause water service to be provided to the Confluence upon notification of need by Owner as required for the development of the Confluence. Water infrastructure /capital facilities which are necessary for the Town to provide water to the Confluence shall be provided by Owner and/or in accordance with the plans for same included in the PUD Development Plan, as finally approved by the Town. The Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Owner or the District shall convey the water improvements to the Town by good and sufficient bill of sale, and the Town shall accept such water improvements for maintenance. The Town shall charge water tap fees within the Confluence on a uniform, non - discriminatory basis with other users within the Town. ARTICLE V SHARING OF PUBLIC AREA COSTS 5.1 Obligation of the Town. In consideration of the performance by Owner of the public improvement obligations identified in Sections 3.5(a), (b), (c), and (d) under this Agreement, and after deduction for offset of the obligations of Owner contained in Paragraphs 3.5(e) and 0), the Town agrees, to rebate a net amount of $1,557,000 in Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.030 of the Municipal Code on all real property located within the Confluence according to the procedures identified in this Section 5.1. Commencing on the Effective Date and continuing until the Owner Rebate is paid in full, together with accrued interest, the Town shall account for all Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.030 of the Municipal Code on all real property located within the Confluence ( "Confluence RETT "). No less than fifty percent (50%) of the Confluence RETT _received,_ not to exceed a__ cumulative__ amount of $1,557,000, shall be deposited and maintained in a separate "Confluence RETT Account ". The Confluence RETT Account shall be separately accounted for and shall not be used, pledged or otherwise encumbered except as specifically set forth herein. Provided all the conditions contained in Section 3.7 hereof have been met, amounts deposited into the Confluence RETT Account shall be paid to the Owner within thirty (30) days following the end of the calendar month when collected, plus an additional amount equal to any accrued interest calculated at seven percent (7 %) per annum compounded annually on the unpaid balance of such $1,557,000 commencing on the date of issuance of a building permit for the Hotel until paid in full. Following the full payment to Owner of the Owner Rebate, the Town shall receive all Confluence RETT thereafter collected. 12 5.2 Gondola Operations. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Gondola operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.2 (a) and (b) below. (a) Upon licensure of the Gondola by the Colorado Passenger Tramway Safety Board initial payment shall be due no later than November 1 of the year in which operations of the Gondola begin and the Hotel receives a temporary certificate of occupancy (TCO) from the Town. (b) Such initial payment shall be in an amount up to fifty percent (50 %) of the District's Gondola operating and maintenance budget, but shall not exceed $240,000 in 2005 dollars. On January 1, 2006, and on the first day of each year thereafter, the not -to- exceed amount shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver - Boulder - Greeley metropolitan areas as published semi- annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. (c) The Town agrees to execute an operational agreement or agreements with the District and other political subdivisions, to the extent the District determines such is required under Section 32- 1- 1004(5), C.R.S., in order to permit the District to establish and operate the Gondola, and to cooperate with and assist the District in obtaining the execution of such intergovernmental agreement by other political subdivisions, as contemplated therein. 5.3 Public Plaza and Restrooms. Owner or the District shall retain ownership of the Public Plaza and Public Restrooms. The public shall enjoy a perpetual easement of use and enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations of Owner or the District, as applicable, acceptable to the Town staff. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Public Plaza and Restroom operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.3 (a) and (b) below. (a) Initial payment shall be due no later than November 1 of the year in which operations of the Gondola begin and the Hotel receives a temporary certificate of occupancy (TCO) (b) Such initial payment shall be in an amount up to fifty percent (50 %) of the District's Public Plaza and Restroom operating and maintenance budget, but shall not exceed $40,000 in 2005 dollars. On January 1, 2006, and on the first day of each year thereafter,the not to exceed amounts shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver- Boulder - Greeley metropolitan areas as published semi - annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. 5.4 Reduction in Payments. The not -to- exceed annual payments for Gondola operations and maintenance, as identified in Section 5.1(b) hereof, and the not -to- exceed annual 13 payment for Public Plaza and Restroom operations and maintenance, as identified in Section 5.3(b) hereof, both as adjusted for inflation (the "Payment Obligation "), shall be decreased pro- ratably, on a dollar for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into the Districts subsequent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subsequent to the effective date of this Agreement. The reduction shall be calculated based on the sum total of the amounts arrived at in 5.4(a), (b), (c), and (d) below and at such time as the revenues received by operation of those subparagraphs results in the reduction of the Payment Obligation to zero, the Town shall be relieved permanently of the Payment Obligation. (a) Operating mill rate for the Districts multiplied by the assessed valuation for the year being levied for each included property not within the Districts as of the date of this Agreement. (b) Operating mill rate for the Districts multiplied by the assessed valuation of any new development that has occurred on Lot B subsequent to the date of this agreement. (c) Any additional amounts of operating revenues received from Mountain Vista Metropolitan District pursuant to additional development occurring within Mountain Vista Metropolitan District subsequent to the date of this Agreement. (d) The Payment Obligation shall also be decreased pro - ratably, on a dollar for dollar basis, to reflect any amounts received or otherwise due to be received subsequent to the date of this Agreement, through the contribution by entities other than the Town and CMD by agreement or otherwise, supporting Gondola and/or the Public Plaza and Restrooms operations and maintenance costs. In the event that any revenues described in this subparagraph 5, when taken together with other revenues received under subsections 5.4 (a), (b) and (c), results in the reduction of the Payment Obligation to zero, the Town shall be relieved of the Payment Obligation, but only to the extent and so long as such additional operating revenues remain in place and their receipt is required to reduce the Payment Obligation to zero. 5.5 No Debt or Pecuniary Liability; No Multiple- Fiscal Year Obligation. All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make _ the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple - fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing the District and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State of Colorado to be subject to annual appropriation without regard to approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 14 5.6 Public Improvement Fees. (a) The Parties acknowledge and agree that the owner /developer of the Confluence has recorded a covenant ( "PIF Covenant ") binding on the land requiring the collection of public improvement fees ( "PIF ") on all sales of real estate occurring within the Confluence. Such PIFs shall be at the same rates and apply to the same transactions as the existing Town RETT imposed under Chapter 3.12 of the Municipal Code, and shall be payable at the same time and have the same exemptions and conditions as the Town RETT. Such PIFs shall be collected pursuant to the rules and procedures set forth in the PIF Covenant upon written notice to the Town from CMD that the Town has not appropriated all of the funds necessary to pay the Payment Obligation, or the Payment Obligation has been determined by a court of competent jurisdiction to be invalid. Any period of time during which the PIF is being collected shall be referred to herein as a "PIF Collection Period." Each such PIF Collection Period shall continue until the earlier of the collection in full of the Payment Obligation the Town failed to appropriate or was barred from collecting annually or in the aggregate, or the end of the year before the next succeeding budget year for which the Town gives CMD notice that it has appropriated the Payment Obligation for that budget year. (b) During each PIF Collection Period, PIF revenue shall be collected by a collecting agent ( "PIF Collecting Agent ") appointed by CMD pursuant to the PIF Covenants, and the Parties acknowledge and agree that, so long as the duties of the PIF Collecting Agent are being performed to the reasonable satisfaction of CMD, CMD shall appoint the Town's Finance Director as PIF Collecting Agent as and when necessary. Any amounts of PIF revenue collected in excess of the unappropriated Payment Obligation, annually or in the aggregate, shall be paid to the Town by the PIF Collecting Agent within 10 business days of receipt. (c) In consideration of CMD's agreement to operate and maintain the Gondola, the Public Plaza and Restrooms, and other public improvements in the Confluence, the Town will grant a RETT credit ( "Tax Credit ") to purchasers who are subject to and actually pay the PIF to the PIF Collecting Agent during the PIF Collection Period in accordance with the terms and conditions of this Agreement. In order to implement the Town's obligation under this Agreement with respect to the Tax Credit, Town Council will approve an ordinance amending its Municipal Code provisions regarding the RETT Tax within 15 days of the effective date of this Agreement, to provide for and implement the Tax Credit substantially as follows: During each PIF Collection Period, each person or entity otherwise liable to the Town for Town RETT Tax under the Municipal Code with respect to taxable transactions occurring within the Confluence will receive a Tax Credit against such RETT Tax obligation in an amount equal to the amount of the PIF Revenues collected and received by the PIF Collecting Agent. Such Tax Credit will be automatic and will take effect immediately upon the applicable taxpayer's (as reflected on the taxpayer's periodic tax reports to the Town) remittance to and receipt by the PIF Collecting Agent of the PIF revenues; provided, however, that the transactions and payments supporting the Tax Credit for any given period will nevertheless be subject to audit by the Town to the same extent, for the same limitation periods and in the same manner as the items which are required to be reported on the taxpayer's return relating to the period in which the transaction occurs. If Town Council fails to adopt the ordinance contemplated in this subsection 8.C., CMD will be entitled in its sole discretion either to: (i) declare the failure of a condition precedent and 15 terminate this Agreement; or (ii) extend the period for satisfaction of the foregoing contingency to a date certain set forth in a written notice of extension, not to exceed 60 days from the date of the extension notice. (d) At the termination of each PIF Collection Period, if there are PIF revenues remaining on deposit with the CMD, CMD shall remit all remaining PIF revenues to the Town for the purpose of the Town satisfying its obligations under this Agreement or, if no further obligations exist at that time, for any lawful purpose. Upon reasonable notice to the other party, the Town will have the right at its own expense to audit CMD's books and records, and CMD will have the right at its own expense to audit the Town's books and records, related to their respective obligations under this Agreement. (e) The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant to or otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time, so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek to reform this Agreement in a manner that will best effect their intent. If a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed to include in the budget proposals for each year sufficient funds to meet the party's obligations under this Agreement. 5.7 Books and Records. The Town, the District and any PIF Collecting Agent shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Representatives thereof shall be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. Best efforts shall be used to resolve any issues, discrepancies, or inaccuracies discovered in any review of any entity's books and records. 5.8 Legal _Challen Challenge to Agreement. In the event any agreement_ contained herein is ever the subject of a successful legal challenge, the Town shall diligently resist such challenges in cooperation with the Owner and the District as set forth in Section 2.4 above. ARTICLE VI SPECIAL DISTRICTS The Parties agree to take all reasonable action necessary to approve any necessary amendment to the service plan for the District to conform to the financial provisions of this Agreement and to permit the District to carry out any obligations of the Owner delegated to it pursuant to the amended service plan. The Town also agrees to permit the Owner to form 16 qualifying non - profit corporations to undertake obligations of the Owner delegated to them with the consent of the Town, which consent may be withheld by the Town in its sole and absolute discretion. ARTICLE VII DEFAULTS, REMEDIES, AND TERMINATION 7.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as any of the following, after the applicable cure period described below: (a) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Owner's consent, that materially alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise materially and adversely affects any development, use or other rights of Owner under this Agreement, the PUD Development Plan or the Development Standards; or (b) the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement, including, without limitation, the timely payment of any monetary obligation hereunder. 7.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement following the applicable cure period described below or Owner's failure to fulfill or perform any material obligation of Owner contained in any other agreement between the Town and Owner following any applicable cure period contained in that agreement. 7.3 Notices of Default. In the event of a default by either party under this Agreement, the non - defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Section 8.8, and the defaulting party shall have ten 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 7.4 Remedies. (a) If any default under this Agreement is not cured as described above, the non - defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. Notwithstanding Section 3.4 or other prohibitions contained herein, in the event of a breach or default by the Owner, the Town may impose a moratorium on zoning or 17 subdivision applications or approvals or withhold issuance of any building permit for property located within the Confluence. (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to recover from the Town any damages that should have been specifically available to Owner as contemplated in Colorado Revised Statutes Section 24-68 - 105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. 7.5 Arbitration. Any controversy or claim arising out of or relating to this Agreement, including, without limitation, any breach or interpretation hereof, shall be settled by binding arbitration in Eagle County, Colorado, in accordance with the Uniform Arbitration Act, § 13 -22 -201, C.R.S., et seq. The parties shall each appoint one arbitrator and attempt to select a third arbitrator agreeable to all, but if they are unable to do so within twenty (20) days after a request for arbitration, then such arbitrator may be appointed by any judge of a competent state court having jurisdiction in Eagle County, Colorado, upon application of any party. The arbitrator jointly selected by the parties or appointed by the court must be an attorney who has substantial experience in real estate development. Any such arbitration panel shall have the power to grant any relief, including equitable relief as just and appropriate. Any award in such arbitration shall have the effect of a judgment and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs of arbitration. ARTICLE VIII MISCELLANEOUS 8.1 Applicable Law. Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnershig. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be construed as making Town and Owner joint venturers or partners. 8.3 Expenses. Owner will reimburse the Town all third party out -of- pocket costs incurred by the Town directly related to the implementation of this Agreement, including but not limited to legal fees charged by the Town Attorney and outside counsel, but excluding costs arisaing under Section 2.4 above or otherwise relating to any challenge to this Agreement or any provision hereof. The Town agrees to keep Owner generally informed with respect to matters as to which it expects reimbursement from Owner and the anticipated costs related to same. The Town agrees to consult with Owner prior to securing the services of any new consultant or professional for which the Town expects reimbursement. Owner's obligation in that regard shall terminate upon issuance of a final certificate of occupancy for the Hotel; provided, Owner's obligations with respect to the Linear Park, Public Plaza and Public Restrooms shall not terminate until those amenities are conveyed to, or become subject to an easement granted to, the Town. Thereafter, Owner and the Town shall each bear their respective costs and expenses associated with implementing and enforcing the terms of this Agreement 8.4 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 8.5 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. 8.6 Further Assurances. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges under this Agreement. 8.7 Notices. Any notice or communication required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below: If to Town: Town of Avon P.O. Box 975 Attention: Town Manager Telephone: 970 -748 -4005 Facsimile: 970-748-4078 And: John W. Dunn, Esq. P.O Box 7717 Avon, Colorado 81620 Telephone: 970 - 748 -6400 Facsimile: 970 - 748 -8881 19 If to Owner: Avon Confluence LLC. c/o Chuck Madison P.O. Drawer 2770 100 E. Thomas Place Avon, Colorado 81620 Facsimile: (970) 845 -7205 And: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476 -7646 Facsimile: (970) 476 -7118 Each party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 8.8 Assignment. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto; provided, the rights of Owner pursuant to Section 5.1 to the rebate of RETT revenues, shall be personal to Owner, shall not run with the land and shall not benefit Owner's successors in title. Owner shall have the unilateral right and power to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement (a) to the District, including, without limitation, the obligations set forth herein in Sections 3.5(a), 3.5(b), 3.5(c), 3.5(d), 3.5(h) and roads and utility infrastructure obligations and (b) to an entity or entities formed for the purpose of developing the Confluence which are managed by an affiliate of Owner and comprised of affiliates of _ Owner and ether investtment_member(s). _Further, Owner_shalthave 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 Confluence, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Confluence; provided, however, that the third party assignee fully assumes in writing all obligations of Owner assigned to such party and the Town consents in writing to such third party assignment, which consent will not be unreasonably withheld or delayed in the event that Owner has reasonably demonstrated that the third party assignee has the financial capability to perform the obligations under this Agreement so assigned. Provided, any assumption or transfers by or to the District providing for the express assumption of any of Owner's obligations under this Agreement by the District as permitted herein shall not relieve or release Owner of and from any further obligations under this Agreement with respect to the matter so assumed. The Town's obligations hereunder may not be ILIA 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. Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance of property within the Confluence. 8.9 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 8.10 Amendments Waivers and Consents. No amendment or waiver of any provision of this Agreement, nor consent to any departure herefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Any consent required under this Agreement by a party will not be unreasonably withheld or delayed by such party. 8.11 Effect. This Agreement contains all obligations of the Owner with respect to the development of the Confluence and fully replaces the 1998 Agreement as it relates to the Confluence. The 1998 Agreement shall continue to control the obligations of the owners of the properties defined therein as Tract B and Tract C. No failure of the owners of Tract B or Tract C to comply with the requirements of or satisfy the obligations of the 1998 Agreement shall affect the development of the Confluence pursuant to the terms of this Agreement and the owner of the Confluence or the District shall have no responsibility to comply with the requirements of or satisfy the obligations in the 1998 Agreement except as amended and restated in this Agreement. Further, no failure of the owners of the Confluence to comply with the requirements of or satisfy the obligations of this Agreement shall affect the development of Tract B or Tract C. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. ATTEST Patty McKenny, Town Clerk STATE OF COLORADO TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado By: Ronald C. Wolfe, Mayor ss. COUNTY OF Subscribed before me this day of , 2006, by Ronald C. Wolfe as Mayor of Town of Avon, Colorado and Patty McKenny as Town Clerk of Avon. My commission expires: Notary Public OWNER: AVON CONFLUENCE LLC. a Delaware limited liability company By: Its: STATE OF COLORADO ss. COUNTY OF Subscribed before me this day of 9 2006, by as of Avon Confluence LLC, a limited liability company.. My commission expires: Notary Public NQ A parcel at lard located in the south 1/2 of the northwest 1/4 Of Section 12, Township 5 South, Range 82 'west of the Sixth Principal meridian. Eagle County, Colorado, 4eirg more particularly described as follows: Beginning of a point on the southerly right -of -way line of the Denver & Ric Grande Western Rail Rood and the westerly right -of -way line of Avon Rood, from which the Canter 1f4 corner of Section 12 bears S 04'18'06" E. 612.39 feet: thence along the southerly roiirood rignt- of -way N 65'23'27' W. 1729.75 feet to the southeasterly most corner of Tact H, Benchmark at Beaver Creek Subdivision, Amendment Number 4, as recorded in Boole 274 at page 701; thence deporting the southerly right - of-wcy line and along the southerly line of Tract H N 89`32'01" W. 397.29 feat to a paint on the easterly line of Seaver Creek Subdivision, Tracts 0 and P. as recorded in Book 656 at page 662, said line being 0120 the approxiincte centerline of the Eagle River; thence along trio easterly line the following ten (10) courses: 1) S 48'08'55 E. 132.707 feet, 2) S 57'22'26' E, 341.00 feet, 3) S 49'50'33" E. 455.67 feet, 4) S 4747'00" E. 293.81 feet, 5 S 43'40'09' E. 15241 feet, £) S 50'10'13" E. 154.96 feet, 7 S 53'42'45' E. 157.29 feet, 8) S 81'26'34" E. 214.619 test, 9 N 8$'00'59" E. 162.21 feet, 10) N 86'35'05' E, 197.35 feet to a point on the westerly right -of -way line of Avon Road; thence along the westeriy right -of -way line the fallowing four (4) Courses' 1) N 121051178' E, 120.18 feet. 2) N 12'07'30" E. 86.00 feet, 3) N 2T'17'14" E. 52.00 feet, 4) N 04'29'54' E. 119.79 feet to the Point of Beginning. Parcel Contains 18.885 acres. Together with three (3) parcels cf fond known as TK -10 -A, TK--10 and PE -10 also being located in the South 1/2 of the Northwest 1/4 of Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eagle County. Colorado, the exterior boundary of thsse combined parcels being more particularly described as follows: Beginning at the Northeast Corner of the Confluence from which the center 1/4 of Section 12 bears S0¢' 18' 06 °E, 612.39 feet; thence alone the southerly right -of -way line of the Denver and Rio Grande Western Railroad S 65' 23' 27 "E. 33.06 feet; thence deporting said ro8reaod right -of -way along the are of o non -- tangent curve to the right. 101.21 _feet, __having o radius of 1095.90 feet, a cer+trol - angle of 99' _28' 26" and a chord which bears S05' 28' 48 "W, 181.00 feet; thence the following seren (7) course$: 1. $11' 13' 013 "W. 54.70 feet 2. S43' 13' 33'W, 37.70 feet 3. S10' 05' 03 "W, 94.50 feet 4. 586' 36' 05 -W. 28.16 feet g. N12' 05' 08*E, ' 20.14 feet 6, N12' 07' 30 "E, 86.00 feet 7. N21' 17' 14 "E. 52.00 feet thence N04' 29' 54 "E, 119.79 feet to the Point of 8e9tnning. Parcel contains 0.28 acres more or iess. 23 To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Scott Wright, Finance Director — Date: March 8, 2006 Re: Final Draft - Confluence Financial Models Summary: Attached are the fiscal impact analyses of the Confluence development plan in their final draft form as prepared by Stan Bernstein and Associates. These analyses mirror the language concerning the financial obligations of both parties to the Development Agreement and PUD Amendment as well as the latest information from East West Partners and the Town of Avon regarding build -out, sales data, assessed valuation, cost of municipals services, etc. that drive the financial performance of the development. There will be a PowerPoint presentation Tuesday evening regarding the financial highlights of these models. Town Manager Comments Attachments: A— Memorandum from Stan Bernstein& Associates B — Base Case Fiscal Impact Model C - Conservative Case Fiscal Impact Model Page 1 Stan Bernstein and Associates, Inc. Financial Planners and Consultants For Local Governments, Municipal Bond Underwriters, and Real Estate Developers 8400 East Prentice Ave., Penthouse Greenwood Village, Colorado 80111 Telephone: 303 - 409 -7611; Fax: 303 - 409 -7612; Email: stanplan @earthlink.net TO: Mr. Larry Brooks, Town Manager FROM: Stan Bernstein, Amy Bernstein DATE: March 14, 2006 —FINAL DRAFT SUBJECT: Comments re: Revised Analysis of Fiscal Impacts of East West Partners' Proposed Development Plan for The Confluence at Avon Background Stan Bernstein and Associates, Inc. ( "SBA ") has assembled an analysis of the fiscal impacts to the Town of Avon ( "Town "), associated with East West Partners' proposed development plan for The Confluence At Avon. The SBA analysis measures expected revenues from sales and accommodation taxes, property taxes, real estate transfer taxes, and various fees, and expected incremental costs to the Town. The purpose of the analysis is to identify incremental revenues, expenditures, and fund balances for the Town's General Fund (including transportation costs), Capital Projects Fund, Debt Service Fund, and Water Fund as a result of real estate development proposed on The Confluence at Avon by East West Partners. This draft includes 2 variations based on (i) a revised East West Partners land use proposals as of January 9, 2006 and (ii) two East West Partners' planning assumptions: "realistic planning assumptions" and "more conservative planning assumptions ". The revised land use proposals provided by East West Partners include 106 whole ownership condominiums and townhomes, 112 interval ownership condominium units, a 122 room condotel, 83 hotel condominiums, and 36,860 square feet of retail /office space assumed to be completed during 2008 through 2010. Two financial planning scenarios are presented: 1. Base Case - A Base Case Development Scenario reflecting East West Partners updated land use proposals (as of 1/9/2006) and realistic planning assumptions related to ADR and occupancy rates. 2. Conservative Case - A Conservative Case Development Scenario analysis reflecting East West Partners updated land use proposals (as of 1/9/2006) and more conservative planning assumptions related to ADR and occupancy rates. Mr. Larry Brooks March 14, 2006 Page 2 of 5 Both of the financial planning scenarios are expressed in constant 2006 dollars (i.e., they do not include any inflation). East West Partners have developed the key financial planning assumptions based upon experience gathered from their management of existing resort properties located at the Beaver Creek Resort. These key financial planning assumptions include annual occupancy rates, average annual ADR (average daily rates) rates for the rental of interval ownership units, the number of persons occupying interval ownership units, and sales and market values associated with their proposed development plan. Guest expenditure patterns within the Town that would be subject to the Town's 4% sales tax were developed by PriceWaterhouseCoopers in conjunction with their analyses relating to Lot C. Incremental General Fund Revenue, Expenditure and Fund Balances (Exhibit 1, page 1) General Fund Balances at Stabilization Base Case $ 597,836 Conservative Case $ 378,495 In each planning scenario, the General Fund Balance (surplus) is after the assumed Town's annual $240,000 gondola ski - season operations contribution and $40,000 public restroom maintenance contribution as requested by East West Partners (which are reduced to $160,000 and $20,000 beginning in 2011 due to additional Confluence Metropolitan District property tax revenue generated from Lot 61 and/or Lot B). These annual contributions represent 50% of the total estimated annual operating costs, and would be paid to the Confluence Metropolitan District (the entity that would be responsible for the operations of the gondola). Incremental Real Estate Transfer Tax Revenues (Table VIII, page 8) Real Estate Transfer Tax Revenues Annual Secondary Sales Total Initial Sales (at Stabilization) Base Case $ 10,240,310 $ 989,031 Conservative Case $ 10,240,310 $ 989,031 Mr. Larry Brooks March 14, 2006 Page 3 of 5 Both scenarios assume that the Town will receive 100% of the 2% RETT revenues generated (i.e., East West Partners is not asking the Town to share RETT revenues from initial or secondary sales of real estate product. According to East West Partners, whole ownership product is assumed to initially sell for $1,282,575 per unit (compared to $840,000 used in 10/3/2005 drafts); condotel units are assumed to sell for $396,100 per unit (compared to $340,900 used in 10/3/2005 drafts); hotel condominium units are assumed to sell for $1,187,450 (compared to $938,000 used in 10/3/2005 drafts); and weekly interval ownership product is assumed to sell for an average of $36,346 (compared to $33,654 used in 10/3/2005 drafts). The model shows a net Town of Avon capital contribution amount of $1,557,000 (plus approximately $200,000 accrued interest at 7 %) which represents East West Partners original request of $3,800,000 less $400,000 for the light rail land, less $160,000 for the fire station improvements, less $846,000 for affordable housing and less $857,000 for the railroad crossings (not shown in this model, but included in the Town CIP budget). Impact Fees (Exhibit I, page 1) Projected total Water Tap Fee revenues are presented below: Water Tap Fees Base Case $ 1,692,000 Conservative Case $ 1,692,000 Assessed Valuation (Table 111, page 3) Projected assessed valuation for each scenario is as follows: Assessed Valuation at Full Buildout Base Case $ 34,566,633 Conservative Case $ 34,566,633 Mr. Larry Brooks March 14, 2006 Page 4 of 5 Annual Guest Nights (Table IV, page 4) Projected annual guest nights at full buildout are presented below: Annual Guest Nights Base Case 263,512 Conservative 253,761 Sales and Accommodation Taxes (Tables V, VII, pages 5,7) Projected Sales and Accommodation Tax Revenues at full buildout are presented in the following chart. It is assumed that 100% of the Sales and Accommodation tax revenues will be retained by the Town. Annual Sales and Accommodation Tax Revenues Base Case $ 977,301 Conservative Case $ 754,351 Other Key Assumptions Other Key Assumptions include: Hotel Guest Expenditures per Day Subject to Town 4% Sales Tax = $26 • Interval /Condo Guest /Owner Expenditures per Day Subject to Town Sales Tax = $22 Interval Owners Annual Occupancy Rate of 70% with 3.5 Persons Occupying Each Week. • Interval Rentals Annual Occupancy Rate of 8% of Owner Weeks with 3.5 Persons Occupying Each Week at an ADR of $250. Mr. Larry Brooks March 14, 2006 Page 5 of 5 • Condo Hotel: Condo Hotel Rooms Rental Program Participation Rate is 95% for Base Case and 95% for Conservative Case Amival Room Occupancy Rate is 55% for Base Case and 45% for Conservative Case Average Daily Rate for Condo Hotel Rooms is $210 for Base Case and $150 for Conservative Case Owner Occupancy is 10% annually • Hotel. Condos: Rental Participation Rate is 90% for Base Case and 90% for Conservative Case Annual Room Occupancy Rate is 55% for Base Case and 55% for Conservative Case Average Daily Rate is $350 for Base Case and $320 for Conservative Case Owner Occupancy rate is 15 %. • Whole Ownership Condos Outside of Hotel: Rental Participation Rate is 33% for Base Case and 30% for Conservative Cases Annual Occupancy Rate is 33% for Base Case and 30% for Conservative Case Average Daily Rate is $300 for Base Case and $275 for Conservative Case Owner Occupancy is 15% • Gondola is Assumed; Ski Season and Non -Ski Season Bus Operating Costs Based Upon Incremental Guest Nights and Required Incremental New Buses and Hourly Operating Rate of $47 per Hour. Confluence Development Skier Shuttle Cost Impacts Reduced by 32% because of Gondola. Please call with any thoughts, comments or questions. 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LU t I � w w Ow 0 0 oe a2 �2 m o 0 ro ra 9 i Staff Report P-1 4 W/, PUD AMENDMENT AVON C O L O R A D O January 17'", 2006 Planning & Zoning Commission meeting Report date December 31 st, 2005 Project type Mixed -Use Planned Unit Development (PUD) Amendment Legal description The Confluence PUD ( "Westin Riverfront Subdivision") Current zoning PUD Address 0095 Avon Road Introduction East West Partners has requested a major amendment to the Confluence PUD, a 19 acre site south of Avon's western Town Center along the Eagle River, and the proposal has been reviewed in detail by both staff and the Commission over a period of several meetings (see attached reports), with each meeting focused on specific areas of the land use proposal. The proposal is best summarized as a new recreational resort consisting of a Westin hotel, spa and wellness facility, a pedestrian retail plaza, timeshare and whole ownership condominiums and an enhanced river front park, connected to Town Center West across the railroad corridor via pedestrian and auto crossings and to Beaver Creek Landing via a high speed gondola. After six months of review of this major project and allowing the applicant to respond and adjust the proposal in certain areas as a result of our review, this report reviews the proposed PUD development Plan- the guiding land use document for the project- and forwards a recommended action by staff to the Planning Commission, and subsequently, to Town Council. It is noted by staff that after a lengthy review process, the applicant should be commended for their effort to provide the Town with a PUD plan that largely reflects the requests of both staff and the Commission. The process has been very interactive and, for a project of this magnitude, it is staff's observation that only a limited number of land use and design issues remain that require further clarification and resolution. The PUD development plan constitutes the guiding PUD development document for this land use proposal and therefore should be closely examined during Commission review. The development plan should reflect the following: 1. The development standards proposed in the original August 3, 2005 application and those areas mutually agreed to be amended as a result of deliberation through the Commission process, such as increased setbacks, lot specific building heights, view corridor and public ways, lot coverage, and general lot layout. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning &Zoning Commission meeting Page 2 of 20 2. Specific land uses within the project, including special review and temporary uses, and minimum architectural design standards to meet the intent of the proposal submitted by the developer. Additionally, a final development agreement will reference the PUD development plan as the guiding zoning document, as well as set forth any financial agreements between the Town and the Developer. It will also specify the term of the agreement and the phasing required. The Commission's review began with a defined list of review topics suggested by staff, continued with a review of the applicant's response at subsequent hearings, and a review of the plans compliance to all the required findings. This report will summarize the application as finally proposed, how the application has addressed the areas reviewed by staff and the Commission, and how the detailed PUD development plan is intended to guide the project through build -out. In addition, the application and approval criteria for both the Preliminary Subdivision and Subdivision Variance that accompany the PUD are discussed in a separately attached staff report and your recommendation will include a motion on these items. Staff has also included a memo submitted by the Town attorney summarizing the status of financial considerations and business points under discussion for the revised development agreement. However, the final vesting and financial considerations with respect to funding for the project are subject to Council review and approval. The development agreement should not alter, in any significant way, the land use plan and design standards that the Commission recommends approval for, but instead reflect the level of capital funding partnership and project vesting that the elected officials of the Town feel meet the public interest. Should any material change in land use or design result from Council deliberations, staff will recommend remanding the entire plan back to the Commission for reconsideration. Following a recommendation from the Commission, it is anticipated that the project will require several meetings with Town Council before a final decision on the application is rendered. Staff Recommendation: Staff recommends CONDITIONAL APPROVAL of the proposed PUD Amendment application, as specified in Resolution 06 -01, subject to conditions outlined below. This recommendation is based upon the following: (1) the proposed application meets and /or advances not only the goals and policies of the 1996 Comprehensive Plan and the Avon Town Center Implementation __(an, but also a more extensive _list of recently developed_ goals and policies of the 2005 Dr Comprehensive Plan, as described in further detail in the findings of this report; (2) the proposed development plan offers significant long term public benefits that are a result of the changed zoning, as described in further detail in the findings of this report. Staff recommends the Commission adopt the following conditions for approval: 1. Required revisions to the Development Plan: A. Delete General Notes 7a, 7b, and 7c, and revise as follows: A sixty (60) foot view corridor through the public plaza adjacent to the proposed hotel as depicted on the development plan and the final plat for the Riverfront Subdivision shall remain unobstructed from the ground level upwards, providing that minor encroachments such as awnings, landscaping, overhangs, decks and railings shall be reviewed and may be approved through the design review approval process. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 3 of 20 B. Delete General Note #1 and revise as follows: No more than 10% of total linear frontage on the public plaza, based on the total linear building frontage on the plaza easement as defined on the subdivision plat and PUD development plan, shall be used for office space, including financial institutions, real estate or other professional offices. Additionally, no residential units are permitted on the ground level of the public plaza. C. Revise the public plaza easement to run the entire length of building frontage of the hotel and timeshare west building, and at a minimum width of 60 feet. D. Add the following general note: The development standards for the Riverfront PUD shall be outlined below. Other development standards and zoning provisions of the Town of Avon Zoning Code not specifically addressed below, or in the related development agreement, shall apply to the Riverfront PUD. E. Add the following note: A solar access study showing the effects of shading on adjacent buildings and outdoor spaces is required for all proposed buildings exceeding 3 stories in height. Sun studies should be prepared on a site plan of a scale not less than 1"=40' showing shadows at 10 am and 3prn on March 21, June 21, September 21, and December 21. F. The maximum building height shall be as follows: L Hotel —130 feet at the highest ridge point ii. Timeshare - 100 feet at the highest ridge point iii. Whole Ownership — 85 feet at the highest ridge point, 55 feet for lot 6 and lot 7. iv. In all instances, the maximum allowable percentage of a building ridgeline to be at or near the maximum height shall be governed by the more restrictive criteria of the Riverfront Design Standards, and the Town of Avon Design Review Guidelines. G. Final approval of this PUD Development plan is conditioned upon approval of site specific design standards ("Riverfront Design Standards") by the Planning and Zoning Commission and Town Council, incorporated on the PUD Development Plan and recorded at the time of approval of the PUD. The criteria, at a minimum, shall include design elements as outlined in Exhibit A to Resolution 06- 01. 2. Parking Condiflons: A. The required parking ratio for the whole ownership portion of the development shall be as follows: I space per bedroom, 2 spaces maximum per unit. B. Eliminate the Office Parking category at 4/1000 GLFA and add Office parking to the Standard Commercial Category. C. Delete General Note #8 and revise as follows: A parking management plan, generally consistent with recommendations outlined in the Walker Preliminary Parking Operations Plan dated December 5, 2005 shall be submitted and, after review and approval by the Zoning Administrator, be recorded as a covenant prior to the issuance of Certificate of Occupancy. The approved plan shall not be changed without notification of the Town, and shall be enforceable by the Zoning Administrator. own or /Avon %,ornmunity ueveiopmem (970) 748-4030 Fax (970) 949-5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 4 of 20 3. General Conditions: A. Water Rights: The property owner shall convey to the Town the water rights necessary to serve the approved development. Final water right determination shall be resolved between the property owner and the Town prior to the recording of a Final Plat. B. Access to the site from Town Center is financially guaranteed by the Developer for the life of the project across the railroad corridor, in the event that no at grade crossing is permitted. C. The property owner shall submit a master landscaping and public plaza design plan for Lots 1 -7, including Tract A, to be reviewed and approved by the Planning and Zoning Commission prior to issuance of the first building permit for the hotel. D. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code prior to the issuance of the first Certificate of Occupancy but no later than January 1, 2008. E. The Affordable Housing requirement shall be determined by Council if amended from the existing 10% requirement. F. The property owner shall construct the proposed Westin Hotel or equivalent, Public Plaza, and gondola as generally submitted in the August 3, 2005 application. Significant changes to the hotel brand or brand equivalent, public plaza, conceptual architectural illustrations or conveyance to the Beaver Creek Landing shall require a major amendment to the PUD. G. A revised development agreement shall incorporate and reference the approved PUD Development Plan, including all conditions of approval specified in Planning and Zoning Commission Resolution 06 -01. Staff also recommends CONDITIONAL APPROVAL of the Preliminary Subdivision Plan and Subdivision Variance application because the applications meet the minimum standards necessary to recommend approval. The details of the Preliminary Subdivision Plan and the Subdivision Variances are discussed in the attached staff report (Exhibit #), and will be reviewed with Norman Wood, Town Engineer. PUD Review: Staff originally outlined the major components of the PUD application identified in the October 18, 2005 report. In many instances staff, the applicant and the Commission has worked together to review and refine areas of the proposal as warranted, and these refinements have either been included as changes in the final PUD Development Plan or reflected in the proposed development agreement. This final review of the proposed PUD Development Plan summarizes those individual areas reviewed and how they now relate to the final proposal. Further detail of any specific area of review can be referenced from the staff reports attached in the exhibits. Town of Avon Community Development (970) 748.4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 5 of 20 1. Land Use Plan The proposed development features essentially the same density and mix of land uses as presented in the first hearing: whole ownership and timeshare residential uses; standard commercial uses — restaurant, bar, cafe, wellness facilities, ski shop, ticket office, ski school, etc; incidental commercial uses — spa facility and meeting space; and public improvements — gondola (high speed 8 person cabin) and public plaza. The table below represents the proposed land uses that are included in the approved PUD compared to the proposed PUD. The residential density of the project remains 24.9 dwelling units per acre. Number of Units/Square Footage Number of Units/Square Footage (Existing PUD (Proposed PUD Land Use Units Square Height Units Square Height Feet Feel Whole 456, 30'� 120 120 DU's 95ft. — ownership DU pf° r 55ft. (condo or town home Timeshare 120 113 DU's 105ft. Hotel 120 194 DU's 135ft Commercial 40,000 120 20,000` Standard Employee 46 120 pay in lieu Housing 912,000 _� _ At__- - &L.- ... . L... . .. }w AA nf%n The commercial square footage is based on a minimum grubs ivabcauio 11001 ciao, uwiv nay L.O .r - . square feet of commercial. The economic model projects approximately 38.000 GLFA of standard commercial. The proposed development includes a complete list of permitted uses, temporary uses, and special review uses. Staff recommended the following changes be made to the development plan: (1) eliminate single family" use under Residential / Lodging Uses, the single family use is not an appropriate use given this resort style development and the residential critical mass the town is interested in achieving; (2) eliminate " office" from Lodging Support Uses, there is already a category under Standards Commercial Uses. The applicant has adjusted the plan accordingly, and no condition is required for the uses in our opinion. The PUD plan also corresponds to the subdivision plan in terms of preliminary lot layout, each lot corresponding to the conceptual building locations shown in the application. The public plaza was requested by staff to be an easement, and will be platted- the first of its kind in Avon. Additionally, we have required that the view corridor through the public plaza be platted on both the PUD Development Plan and the Subdivision Plan. We are at an impasse, however, with the applicant as to the flexibility afforded for architectural encroachments into the view corridor. While we agree with the goal of the applicant to create an intimate and interesting pedestrian experience, staff would prefer to permit exceptions to the corridor in context of building design. Therefore, we recommended deleting the proposed language on the PUD Development Plan governing the view corridor and instead proposed Condition #1(a). We believe the acceptable Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 6 of 20 amount of encroachment into this corridor should be determined in context, through the design review process. Also related to the public plaza, staff is concerned with the request to allow 20% of the linear frontage of the public plaza as real estate offices. While valuable to the developer of the project and important because of the foot traffic, the use of store front space on the plaza for professional offices- including realty offices- does not substantially contribute to a place making experience. Therefore, we are recommending Condition #1(b) to replace the proposed general note language requested by the applicant. This will allow a design- driven solution to achieve a 'storefront' for realty offices (among other uses), however ensuring that it is a minimal intrusion to the plaza ground level commercial space. Staff would prefer that the majority of storefronts on the ground level be retail or restaurant space. Certainly, no residential uses should be permitted on the ground floor level. The PUD development agreement references the dedication of Tract "A" (Eagle River) to the Town as open space, which is depicted on the development plan. Staff condition #3(c) clarifies the uses and timing of dedication of this open space parcel, consistent with other river parcels the Town owns. In addition, Tract "B" is also depicted on the development plan as open space at the request of staff. This tract is the "Director's Parcel" (a land requirement of the metro district) which is also referenced in the development agreement. The land use plan also establishes building site coverage, and it should be noted that the applicant has reduced the overall building site coverage from that of the existing 70% to 25 %- a significant improvement to the project. Backing out the area of the river parcel, lot coverage The applicant has maintained the original 75' setback from the Eagle River (measures from the Mean Annual High Water Mark) for most of the site largely preserving the riparian areas. The applicant's initial proposal permitted a 50' setback, which was not well received by the Commission or staff. The 75' setback, which is depicted on the PUD development plan, applies to all buildings with the exception of the southern timeshare building on Lot 1. Lot 1 currently has a 12 -15' high retaining wall along the bike path. In this area, the setback will follow the southern property line of Lot 1, which is more restrictive than the existing developed retaining wall. Finally, we are also recommending approval of Condition #3(e) to tie this approval to that proposed- namely an upscale luxury brand (Westin or equivalent) and a conveyance to the resort (Beaver Creek Landing). The financial model and the physical design of this land use are site specific to the _application, and it is - staff's opinion that should- the proposal significantly change in these two areas, it will be in the Town's best interest to consider this a major amendment to the development plan and agreement and review an entirely new plan for the property. 2. Design The area of project design should be thought of as two separate phases that will, by final PUD approval, track together and constitute a PUD plan that provides certain assurances that the project will be built to a standard consistent with the PUD Design Criteria for approval (AMC 17.20.110(2)(3)(6)(8)). The first phase, review of general massing and lot layout, building locations, public plaza, connectivity with the river and environs, and view corridors (both to the resort and from Town Center to the gondola) has been completed as part of the Commission review of the PUD land Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 7 of 20 plan. With conditions as recommended by staff, this PUD Development Plan is approvable and recommended for forwarding to Town Council. However, the recommended approval is contingent on completion of the second step of the PUD review process- namely, finding approvable the PUD Design Criteria. Though the applicant submitted for sketch design review of the hotel at the time of original PUD submittal, it was agreed to by both staff and the applicant that because of the complexity of the PUD Development Plan, the review of the site specific design should follow the PUD review which is now complete. In this respect, staff is recommending Condition #1(G). Staff believes that site specific design guidelines that require a minimum standard of architecture, building orientation and massing, and material use on this site are necessary to find the PUD Design criteria in the affirmative. While all buildings will require conformance to the Town design guidelines and be separately approved through that process, a project of this size should offer the Town certain assurances that the 'expressed intent to create high quality architectural design through the use of varied roof forms, wall plane articulation and quality building materials. Further, staff is concerned that a project of this magnitude be 'value engineered' as a potential outcome of financial negotiations on the public - private funding partnership that finally results in a zoning approval. To be clear, massing that resembles that of the first two phases of the Lot C PUD -full use of maximum height, disproportionate massing, inefficient solar effect- in staff's opinion, will not be acceptable. { Without some basic design parameters or a tie to the expressed intent presented by the applicant in their submittal, the Town may find itself in a position to accept an architectural design that does not support the original concept. The applicant shall submit to the Planning Commission the sketch design review for the hotel and at the same time create minimum design standards ( "Riverfront Design Standards ") for the entire project which will be recorded and incorporated as part of the PUD approval by Town Council. These standards may be augmented by the Town Design Guidelines where necessary through the final design approval. In no case, however, will staff recommend final Council action of the PUD Development Plan until the Commission is satisfied that the site specific design standards and sketch design of the hotel are acceptable and meet the minimum PUD design criteria and the general design intent port-rayed _in_ the architectural renderings submitted with August S, 2005 application. Another significant change to the design and massing has been to Building D where the applicant has proposed a consolidation of four separate buildings (Buildings D, E, F and G) as originally contemplated. The physical model was updated only after your conceptual review on November 15, 2005, and staff suggests that you review the scale and proportion of the massing model as compared to the original application (the model will be available at the meeting review). While there are benefits to consolidating four individual buildings by reducing site coverage and disturbance, staff is concerned about the overall scale and proportion of this building and the monolithic appearance does not suggest a good transition in scale to the lower density portion of the project. There have been several slight changes to the proposed height of the structures that have not been presented to the Commission, but are reflected on the proposed development plan. As Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 8 of 20 noted above, all the proposed structures (hotel, timeshare, and whole ownership) have grown in height with minimal explanation by the applicant. While height does not represent an insurmountable issue alone when taken in context of the entire site proposal, staff is nonetheless recommending the absolute height of any of the structures be subject to final design review and approval by the Commission and subject both the site specific design standards discussed above and to the Town of Avon Design Review Guidelines. The absolute heights recommended (for the highest ridges of any structure) are consistent with those reviewed by the Commission at the last hearing- Condition #1(f), and the requirement for final design approval as the absolute determinant has been inserted on the PUD plan by the applicant. By way of comparison, the existing PUD entitlements provide a 120 -foot height limit for the entire project site. Staff is also proposing Condition #1(f)(iv)- requiring that the maximum allowable ridge heights be assigned a percentage in the Riverfront Design Standards as well as General Condition #3(e)- incorporating the expressed intent and conceptual illustrations provided by the applicant as part of the PUD approval. Two other items that staff has recommended be changed in the development agreement are: delete the statement that hotel to be built if "economically feasible" and the inclusion of language, which establishes a commitment to develop the hotel and gondola as the first phase of the project. 3. Affordable Housing The existing 1998 development agreement requires the developer to provide employee housing (either on or off property but within Town) at a rate of 5 employee- housing units for every 50 dwelling units built. The original proposal states that to satisfy the Town's need for employee housing, a pay in lieu fee in the amount of approximately $600,000 (i.e. $20,000 for every 15 dwelling units constructed, or an equivalent of approximately $1,300 per unit). Staff's understanding of the development agreement is that the incremental fee would not be payable until. the building permit is issued for each 15 units. In earlier deliberation, the Commission determined that on -site affordable housing was not appropriate for the project as currently proposed. The Town Manager also expressed concern with including employee housing in this tax district. If the consideration is made to accept the pay in lieu fee, staff would recommend that Council establish an employee housing fund in the CIP program and use this fund for public /private partnerships- including those in the core of town. For example, the employee housing conceptually- located -on the proposed parking garage (2004 Main Street Preferred Alternative) may create new opportunities for residential units that are required to be owner occupied and price capped. Should Fee in Lieu accepted, staff proposes fee be submitted per unit. After your last deliberation, the fee now proposed by the applicant amounts to $2,000 per unit (approximately $912,000 at full build out of the project) to be paid to the Town at the time of issuance of certificate of occupancy. Staff is concerned that this fee has no relationship to the existing requirement or the impact on employee housing a project of this density will have on the Town, however in the absence of a direct policy or explicit guideline, staff has proposed Condition #3(d) should Council concur that a fee in lieu program be acceptable over a 10% dedication either on or off site. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 9 of 20 4. Parking Staff has prepared the table below that outlines the existing, proposed, and Town required parking standards for all proposed uses. At the November 15'h, 2005 Commission hearing, the applicant presented information regarding an analysis of the anticipated parking demand generated from the proposed development to support the proposed decreases in parking ratios. The analysis, prepared by Walker Parking Consultants (Exhibit J), estimated the total parking demand based on land use and anticipated management/control of the of the shared structured parking. Understanding that below ground parking design is a more efficient use of the site and achieves a predominantly pedestrian environment that both staff and the applicant desire, staff's primary goal is that the below grade parking is sufficient, effective, safe and convenient for the public. Based on the information reviewed, staff supports the proposed parking ratios for the Hotel/Timeshare/Standard Commercial and Incidental Commercial Uses. Staff's rationale for supporting these ratios is based on the "shared use parking" methodology used in the analysis, including the adjustments made for mode split, captive rate, and hypothetical peak hour demands, and the proposed parking operations plan which made for a compelling argument in favor of permitting parking ratios that are to varying degrees lower than the AMC. Although the analysis provided states that statistical research data on Timeshare and Condo- tels is relatively limited, the comparable rental-type residential data used supports the proposed time-share parking ratio of 1.5 spaces per unit, before adjustments made for mode split. Mode split is the percentage of patrons or employees that arrive to the development via rental car, taxi, or Colorado Mountain Express (CME). The applicant has provided data from the Eagle County Airport along with data provided by CME. The data explains visitor travel behavior in terms of the percentage of visitors that fly versus those that drive for each guest type. The model then takes that percentage of visitors that fly and generates a percentage of visitors who rent cars versus those that take a shuffle form the airport (Sections I and 2). Using these percentages, the model then calculates the projected percentages of owners/users that will have a car during their stay and therefore require a parking stall. Additionally, staff agrees with the findings that the AMC fails to directly account for captive rates. Captive rate is the percentage of customers who may utilize a land use but are already parked on-site for another use. For example, a guest of the hotel who utilizes the spa area or restaurant would not generate additional parking demand. To some extent the 15% mixed-use reduction being requested accounts for captive rate in a broad sense. Nonetheless, the proposed ratio for all shared uses (lot 1-3), is acceptable to staff. Its important to note that the Town of Avon Communo Development (970) 748-4030 Fax (970) 949-5749 Requiree4d Parkin g Comparisons Land Use Existing PUD Proposed PUD Town Code Condo/Town home 2.0 per unit up to _2§5, .5 per add BR 1.2 per unit 1.5 per 1 BR, 2 all others Hotel 1 per room 1. per studio, 1.2 per Condo I per 1 BR, 1/2 space per add BR Timeshare .6 per BR .75 per BR, 1.5 per unit 1 per 600 sq. ft. Commercial 5 per 1,000 GLFA 5 per 1,000 GLFA 3 or 4/1000 GLFA Employee Housing .5 per BR - Guest Parking 10 spaces when > 25 units At the November 15'h, 2005 Commission hearing, the applicant presented information regarding an analysis of the anticipated parking demand generated from the proposed development to support the proposed decreases in parking ratios. The analysis, prepared by Walker Parking Consultants (Exhibit J), estimated the total parking demand based on land use and anticipated management/control of the of the shared structured parking. Understanding that below ground parking design is a more efficient use of the site and achieves a predominantly pedestrian environment that both staff and the applicant desire, staff's primary goal is that the below grade parking is sufficient, effective, safe and convenient for the public. Based on the information reviewed, staff supports the proposed parking ratios for the Hotel/Timeshare/Standard Commercial and Incidental Commercial Uses. Staff's rationale for supporting these ratios is based on the "shared use parking" methodology used in the analysis, including the adjustments made for mode split, captive rate, and hypothetical peak hour demands, and the proposed parking operations plan which made for a compelling argument in favor of permitting parking ratios that are to varying degrees lower than the AMC. Although the analysis provided states that statistical research data on Timeshare and Condo- tels is relatively limited, the comparable rental-type residential data used supports the proposed time-share parking ratio of 1.5 spaces per unit, before adjustments made for mode split. Mode split is the percentage of patrons or employees that arrive to the development via rental car, taxi, or Colorado Mountain Express (CME). The applicant has provided data from the Eagle County Airport along with data provided by CME. The data explains visitor travel behavior in terms of the percentage of visitors that fly versus those that drive for each guest type. The model then takes that percentage of visitors that fly and generates a percentage of visitors who rent cars versus those that take a shuffle form the airport (Sections I and 2). Using these percentages, the model then calculates the projected percentages of owners/users that will have a car during their stay and therefore require a parking stall. Additionally, staff agrees with the findings that the AMC fails to directly account for captive rates. Captive rate is the percentage of customers who may utilize a land use but are already parked on-site for another use. For example, a guest of the hotel who utilizes the spa area or restaurant would not generate additional parking demand. To some extent the 15% mixed-use reduction being requested accounts for captive rate in a broad sense. Nonetheless, the proposed ratio for all shared uses (lot 1-3), is acceptable to staff. Its important to note that the Town of Avon Communo Development (970) 748-4030 Fax (970) 949-5749 The Confluence PLTD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 10 of 20 and Standard Commercial parking ratio of 5/1000 GLFA is consistent and slightly higher than the AMC of 4/100, and that the Incidental Commercial category accounts for incidental uses of the hotel such as the spa and meeting space. In consideration of consensus on the shared parking ratios, however, staff is recommending Condition #2(c) that obligates the developer to submittal of a parking operations plan, generally consistent with what has been provided, prior to the issuance of a Certificate of Occupancy. Staff does not support the proposed parking ratio for the whole ownership portion of the development, the use of the 15% mixed use reduction for the entire site, the use of 30% compact parking spaces, or the 1/4000 GLFA ratio for professional office use. The whole ownership portion of the development represents the largest variation in parking when comparing the proposed PUD with the Town Code. The variation in most cases would be approximately .7 spaces per unit, assuming all the whole ownership units are greater than one- bedroom. Please refer to page 9 of the Walker memo and Tab 11 of the PUD amendment application for the explanation of the analysis relative to whole ownership units. The table below represents the relative comparisons. I Parkin g Comparlsons I I Land Use Existing PUD I Proposed PUD I Town Code I Variation by I use Condo/Town 2.0 per unit up 1.2 per unit 1.5 per 1BR, 2 .3 up to one unit, home to 2BR, .5 per maximum (any # I all others .7 all other add BR add. BR's) Under the proposed use configuration, the application seeks a variance from the Town Code of approximately 126 spaces for the whole ownership portion of the project. Compared to the current PUD standard, the variance is 136 spaces. According to the analysis provided by the applicant, the national average for owner-occupied condo and town-homes indicates a total base demand of 1.7 spaces per unit, irrespective of the number of bedrooms. Because the national average is a blend of all urban and non-urban areas, and that this particular use does not benefit form the "shared parking" assumptions discussed above, staff feels that the parking ratio for whole ownership should be increased to a minimum of 2.0 spaces per unit, or I space per bedroom and not decreased to 1.2. Staff's concern is that insufficient whole ownership parking on site would burden adjacent property owners, including the Town, by becoming satellite parking for the project by way of vroximitv. The proposed 1.2 spaces have the least correlation to the municipal comparison and national comparison at 1.7, by the studies own data. The only supporting data provided is out of context and, in particular, each ratio for comparative municipalities doesn't address issues like: availability of mass transit, on street parking availability, parking management and structures (and physical distance to free parking). Of all the comparatives, Vail (outside the commercial core) is probably the most reasonable comparison at a range of 1.5 to 2.5 spaces (Studio to 5 bedrooms). Beaver Creek, one of the lowest ratios by comparison, is a poor example since the context of employee and guest parking in the resort is very different to the physical parking needs in Avon. The operations plan specifically excludes management of whole ownership units so continuing to compare management of similar properties in Beaver Creek has no u-11 u, —ii %,ummurmy Lieveiopmeni (970) 748-4030 Fax (970) 949-5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page l I of 20 obvious correlation if the plan excludes them entirely. Because of this disagreement on the minimum whole ownership parking ratio, staff is recommending Condition #2(a). Staff is also not supportive of the recently added ratio for profession office that is applicable to the office use anticipated for level 5 of the hotel. There is no rationale for this space to be . parked at a different standard than other professional offices, which are categorized as Standard Commercial and parked at 5/1000. Therefore, staff is recommending Condition #2(b). The other items that staff had objected too have been resolved accordingly. Because staff feels that compact spaces are functionally incompatible with the type of vehicles used in our mountain resort community and cause poor circulation and parking experiences for the users in all structures that are constructed in this area, the applicant has agreed to limit the number compact spaces for entire project to 10 %. Furthermore, the applicant has agreed to limit the fifteen percent (15 %) reduction for 'shared parking' to Lots 1, 2 and 3. Please refer to the parking analysis dated November 10th, 2005 for a comprehensive description of these terms and other assumption made. 5. Meeting Space Within the hotel, the original Riverfront application proposed 5,000 square feet of meeting space. This proposed meeting space is in lieu of the current PUD requirement to provide a 15,000 square foot conference center on the Confluence site. Further refinement of this space by the applicant has the conceptual meeting area proposed as 3,400 gross square feet, and the PUD Development Plan proposes a minimum of 3,000 fross square feet. The applicant has suggested that this smaller meeting space is nonetheless 'activated' by an adjacent public wellness center and a preliminary proposal to bring VVMC Steadman Hawkins to the same floor- essentially compensating for the smaller area through good visibility and proximity to medical/health facility. It is their expectation that the space will be used for smaller conference/banquet opportunities, and medical/health conferences in connection with the wellness facility. The proposal for a 3,000 square feet minimum is acceptable to staff in light of the design of the facility in concert with the public spa and wellness center, particularly the VVMC Steadman Hawkins medical facility. The Town has no guiding policy on minimum meeting space, and there appears to be no discernable rationale for a larger conference facility as originally proposed in 1998. 6. Connectivity with Town Center As already discussed, the application is proposing to remove the requirement for a separated grade crossing in lieu of the 2 at grade crossings that the Town has applied for. While the two at -grade crossings are clearly the preferred means of connectivity to the Town Center, we should consider the possibility that an application may be made in the future to close one or both of these crossings- if they are even approved. Currently, the recommendation to approve both crossings by the state Public Utilities Commission is under appeal to the Commission. The development agreement is proposed by staff to require either (1) a 1.5 million Capital Improvement Fund 'bank' by RETT generated through the project, or, (2) an insurance indemnification held by East West in the event that one or both at grade crossings are required to be closed or grade separated. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 12 of 20 7. Connectivity with River & Environment A prominent feature of the land use plan includes the existing trail system and connection to the Eagle River. The applicant has proposed a terraced condition much improved over the original application concept for the public plaza termination to the Eagle River. While staff generally supports this concept, we are recommending that the final design of the public plaza and its connection to Tract A (the river parcel and regional trail) be separately approved - Condition #3(b) - so we might better understand the entire context of public space and connectivity in final form. The applicant has provided an Environmental Impact Report that summarizes the short and long term impacts of the development, as well as characterizes the types of habitat and presence of threatened, endangered or sensitive species on the site. There appear to be no significant long- term impacts, and the application will result in a small (.04 acres) loss of wetlands by impact of gondola construction that will be mitigated on site per the approval of the US Army Corps of Engineers (USACE). The applicant has made an effort to move the proposed gondola further outside 100 -year floodplain and wetlands as a result of discussion with staff. This is reflected on the proposed Development Plan along with the setback project wide remain at 75 feet, allowing for 2 areas of encroachment. Mitigation for the loss of wetlands is being compensated on site, and will be permitted by the USACE. 8. Water Rights A condition of the current development agreement states that a water consumption and augmentation study is required to determine maximum water demand. Staff would defer estimating future water needs until this study has been made available and reviewed by the Town's engineering staff and water attorney. Staff is recommending condition # 3(a), which requires resolution before final plat approval. 9. Financial Analysis and Considerations & Development Agreement Though the financial model provided by the applicant demonstrates that the amendment proposed provide a financial benefit to the Town over the original scenario, it is important to consider that the analysis is a dynamic model subject to many assumptions, as noted by Stan Bernstein (and included in your application packet under Tab 13 dated September 8, 2005). Also, the applicant has provided a separate analysis by THK that is intended to demonstrate the potential Town -wide positive market effects of the installation of the gondola and connectivity to the Resort (also included in Tab 13). Though this supplemental report is questionable in its many qualitative assumptions and overstates the value of the gondola connection to the Landing as well as the value of transportation savings, there is no doubt that a certain portion of property value increase in the Town core will be attributed to the construction of a project of this magnitude. As previously reviewed, the existing development agreement approved in 1998 entitles the developer to a rebate of: - 75% of all Sales Taxes; and - 75% of all Lodging Taxes; and - 50% of all Real Estate Transfer Taxes Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17. 2006 Planning & Zoning Commission meeting Page 13 of 20 The rebate was limited so as not to exceed a fifteen (15) year term, however, the intent of the rebate was to fund a parking structure ( "parking improvement project') on the Confluence, Lot C and Lot B respectively. It was assumed that by subsidizing the capital investment required to create structured parking, and for the Confluence in particular structured parking for day skiers, the developer would be able to deploy a 20 mill levy (out of 45 mills possible under the service plan) to finance and construct a 15,000 square foot Conference Center. The applicant has proposed deleting aH existing rebate provisions in lieu of asking for the Town for a cumulative. $3.8 million dollar capital contribution for what they consider public improvements to the project, including the railroad crossing intersections, the public plaza, upgrades to the Hurd Lane intersection, the riverfront park, and the western access. They are also requesting an annual contribution of approximately $280,000 to the operating expense of the gondola and the public restrooms combined. In total, this request is based on the limited bonding capacity of the District when re- deploying the mill levy to construct a high -speed detachable public gondola -, which is not included in the request for public funding. In reviewing the proposal with our financial consultant, he has made the following significant observations and recommendations (also summarized in his October 4, 2005 memo to Larry Brooks- Tab 13 in the application): The Town should base the proposed financial model and build -out of the proposal on the "Conservative Case Rental and Average Daily Rate (ADR) and Moderate Build -out Assumptions ". The request for operational funding of the gondola should be tied to the build -out of the hotel/timeshare portion of the project, so that should the Town choose to fund the operations, it is only fully funded commensurate to when the main hub of hotel activity and bed base is constructed and on -line. Also, savings proposed on the Town bus service are contingent upon the approval and availability of the railroad crossing at the transit hub location. Should the Town decide to partner with East West on their funding request for public improvements, the Town should request the developer to 'front end' those costs and be reimburse as RETT revenues are collected by the Town. Staff will continue to work with the Town Manager, the Town financial consultant, and the Town Attorney to ensure that the development agreement and PUD plans accurately reflect whatever financial arrangement for capital- funding partnership is realized by the Town. We will also encourage the Council to limit any consideration to reimbursements through RETT revenues for public Improvements to correspond to the proposed phasing of the project. Though our financial consultant has indicated that the current proposal, even if capital contribution for public improvements is agreed to by the Town, is very favorable, staff would remind the Commission that it is critical to your review role to provide Town Council with an informed review of the land use and development plan design issues for consideration in light of the significant potential financial benefits of the proposal. Please consider that the economic function of the project and the projected benefit of one scenario versus another comprises only one aspect of a total review of the land use proposed and should be so measured in your recommendation to the elected policy body. Staff has attached a summary of the business points developed by the Town Manager that will comprise the content of the development agreement as Exhibit K. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 14 of 20 Most important to note with respect to the financing request is Staff's recommendation to Council that should the financial negotiations cause a significant impact on the proposed land use (for instance, a change in the hotel mass or size, and change in overall density, etc.), the application be remanded back to the Commission for further evaluation. PUD Design Criteria According to the Town of Avon Zoning Code, Section 17.20.110(h), it shall be the burden of the applicant to demonstrate that submittal material and the proposed development plan comply with each of the following design criteria or demonstrate that one or more of them is not applicable, or that a particular development solution consistent with the public interest has been achieved. Where the PUD is being requested in connection with the review of a development agreement pursuant to Chapter 17.14, not all design criteria may be applicable, as determined by the Community Development Department. The following design criteria shall be used as the principal criteria in evaluating a PUD: (1) Conformity with the Comprehensive Plan goals and policies; 1996 Comprehensive Plan When the 1996 Comprehensive Plan was adopted, the Confluence site was not included in the incorporated area of the Town, therefore, there is no specific guidance as there is today with the 2004 Draft Plan which includes a special district for the Confluence site. However, the 1996 did contemplate the future annexation of the Confluence site: Mixed -Use River Corridor: The large undeveloped parcels adjacent to the Eagle River north of Highway 6 are designated mixed -use river corridor. These lands have the potential to be developed for a combination of land uses, as long as the uses and physical design of the site are sensitive to the natural riparian environment. High priority should be placed on the incorporation of public access to the river. Development plans should incorporate screening and landscaping, to emphasize positive visual quality. Consideration should be given to annexation of these properties, as opportunities arise. Resort Services The areas along the north side of Highway 6 are intended to contain uses that primarily support the Beaver Creek Resort area. Uses include employee housing, maintenance yards, visitor parking, and transportation facilities. Major transportation and parking facilities should be designed to provide direct linkages and connections to the Town Core, to facilitate pedestrian circulation for visitors and employees. Wherever possible, these facilities should incorporate other activities such as retail, offices, and entertainment facilities, to encourage pedestrian activity. Resort service uses should be carefully sited and designed, to minimize impacts on the Town's transportation system, and shall be carefully screened and landscaped. Rail Corridor A major rail line runs through the Town in an east -west direction, which currently represents a significant barrier to circulation and land use patterns. As part of a proposed merger between the Southern Pacific and Union Pacific Rail- roads, this rail line is proposed to be abandoned. A final decision on the line abandonment is expected in late 1996 or early 1997. The information provided below is the general approval criteria for a PUD amendment. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 15 of 20 • Conformance with the 1996 Comprehensive Plan goals and objectives. The table below itemizes the policies included in the 1996 Plan that staff considers to be applicable to the subject property. (Also attached to the report, as Exhibit G are the pertinent sections of the draft Comprehensive Plan, as the applicant has voluntarily addressed the draft district planning principles for the project as proposed.) Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 Compliance__ Land Use Policy A1.1 Development and redevelopment will be of a scale and intensity appropriate for the nei hborhood in which it is located. X Policy A1.3 Flexible zoning such as Planned Unit Developments (P.U.D.) should be X encouraged where it results in more effective use of the land. However, such flexible zoning will only be allowed where it provides a benefit to the community and is compatible with surrounding development. Variations from standard zoning must be clearly demonstrated, and will be permitted only as needed to achieve effective development. Policy A2.1 Parcels of land to be annexed will be master planned, in conformance with the Land Use Plan and Design Standards, and X clearly show physical, visual and functional connections with the existing Town. Policy A2.4 The Town will, to the extent practicable, coordinate its land use policies and regulations with other local jurisdictions. X Policy Encourage mixed -use development X A3.6 throughout the community, where compatible with existing neighborhoods, to more eff iciently use land. Policy A3.8 The Eagle River should be maintained as a riparian corridor. New development and redevelopment should be compatible with X the riparian environment. COMMUNITY AND ECONOMIC DEVELOPMENT Policy B1.2 _Commercial areas will be supported through creation and maintenance of effective vehicle access and parking, transit services, all- season pedestrian and non - X motorized vehicle access, and consistent application of design standards. Policy B1.3 Public and private new development and redevelopment, including buildings and X public ways, will be designed and maintained to effectively accommodate persons who are temporarily or permanently impaired in sight, hearing, or mobility, dependent on wheelchairs, Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 16 of 20 I from the rest of the community. Policy The Town will encourage and, to the_e_iTe_nt X C2.4 practical, participate in development of affordable housing. TRANSPORTATION, F56-11cy Streets should, to the extent possible, _X PARKING, AND E1.1 effectively accommodate transit, CIRCULATION pedestrian, bicycle, and other modes of Policy Commercial, public and other uses that the u es that X crutches, or other forms of mechanical generate employment and customer traffic d c u s 0 customer traffic ser should be located on transit routes, and transit 0 utem routes, and assistance. linked by pedestrian and bicycle paths to Policy B2.2 Establish the Town Center Area as an inviting, vibrant and safe pedestrian- X E1.4 minimize in-town vehicle travel by making it oriented cultural, retail and entertainment easier for people arriving by car to park and nl conveniently walk to multiple stores and hub. businesses. ENVIRONMENT Policy Policy B2.3 Encourage a range of uses in the Town Center, including re-tail, offices, hotels, X environment, particularly in sensitive recreation tourism, and entertainment. natural areas. HOUSING Policy C1.4 Infill residential development should be compatible in de-sign, scale and use with existinn nPinh orhoods. X Policy Policy Policy New development, annexations, and major redevelopment shall include or otherwise X for review and comment regarding wildlife rovide for affordable housing. issues. PARKS, Policy Policy C2.2 Wherever possible, affordable housing will be integrated with rather than ha q 4 X I from the rest of the community. Policy The Town will encourage and, to the_e_iTe_nt X C2.4 practical, participate in development of affordable housing. TRANSPORTATION, F56-11cy Streets should, to the extent possible, _X PARKING, AND E1.1 effectively accommodate transit, CIRCULATION pedestrian, bicycle, and other modes of Policy Commercial, public and other uses that the u es that X E1.2 generate employment and customer traffic d c u s 0 customer traffic ser should be located on transit routes, and transit 0 utem routes, and linked by pedestrian and bicycle paths to minimize the need for automobile travel. Policy Commercial areas should be designed to X E1.4 minimize in-town vehicle travel by making it easier for people arriving by car to park and nl conveniently walk to multiple stores and businesses. ENVIRONMENT Policy Future development and redevelopment X F1.1 shall minimize degradation of the environment, particularly in sensitive natural areas. Policy The river corridor will be protected as an X F1.3 i'mr%^r+ftn# *- rian habitat. Policy Major development proposals will be X F1.5 referred to the Colorado Division of Wildlife for review and comment regarding wildlife issues. PARKS, Policy New residential and resort developments X RECREATION AND GIA will incorporate recreational amenities. OPEN SPACE Policy GI .4 New annexations and development will X . include or otherwise contribute to land for Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 17 of 20 trails, open s ace and recreation purposes. (2) Conformity and compliance with the overall design theme of the town, the sub -area design recommendations and design guidelines of the Town. The project is generally compliant with the overall design theme of the town, the sub -area design recommendations, and design guidelines. However, final adoption of the PUD development plan standards must include sufficient minimum design detail to determine specific compliance. Therefore, finding of this design criteria is conditional upon incorporation of approved minimum design standards in the Riverfront subdivision PUD Development Plan before final adoption by the Town. (3) Design compatibility with the immediate environment, neighborhood, and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, character, and orientation. The project is generally compliant with the immediate environment, neighborhood, and adjacent properties relative to architectural design, scale bulk, building height, buffer zones, character and orientation. However, final adoption of the PUD development plan standards must include sufficient minimum design detail to determine specific compliance. Therefore, finding of this design criteria is conditional upon incorporation of approved minimum design standards in the Riverfront subdivision PUD Development Plan before final adoption by the Town. (4) Uses, activity, and density which provide a compatible, efficient, and workable relationship with surrounding uses and activity. The proposed PUD uses, activities, and density provides for a compatible, efficient and workable relationship with surrounding uses and activities in the Town core. The project respects the natural riparian and river environment that bounds it on the south, deeding this property to the Town as open space while at the same time creating a project of the type of density and land use pattern that is supported by the Town's master plan policies. (5) Identification and mitigation or avoidance of natural and/or geologic hazards that affect the property upon which the PUD Is proposed. The application identifies, avoids and /or mitigates natural hazards that affect the property upon which the PUD is proposed. (6) Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. Site plan, building design and location and open space provisions are generally designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. However, final adoption of the PUD development plan standards must include sufficient minimum design detail to determine specific compliance. Therefore, finding of this design criteria is conditional upon incorporation of approved minimum design standards in the Riverfront subdivision PUD Development Plan before final adoption by the Town. Additionally, this criterion is Town of Avon Community Development (970) 748 -4030 Fax (970) 949.5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 18 of 20 conditioned upon the staff recommendation that the river parcel be deeded as open space to the Town and the view corridor protected. (7) A circulation system designed for both vehicles and pedestrians addressing on and off site traffic circulation that 1s compatible with the Town Transportation Plan. A circulation system designed for both vehicles and pedestrians addressing on and off site traffic circulation that is compatible with the Town Transportation plan has been provided, however, contingencies related to access across the railroad corridor must be included in the final development plan agreement. (S) Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. The Confluence site includes the northern 1/2 of the Eagle River from the western extent of the property to the Avon Road Bridge. This portion of the River, along with associated wetlands and riparian areas is referred to as Tract "A" on the PUD Development Plan and measures approximately 5- acres. Tract "B ", which is the "Directors" parcel, will also be designated as open space. For the long -term protection and maintenance, Tract "A" would be dedicated to the Town of Avon per the proposed Development Agreement. The existing trail running along the river is also included within Tract "A ". In order to protect the view corridor from the proposed at -grade crossings through the public plaza to Beaver Creek, staff has asked the applicant to plat the view corridor on their proposed subdivision and depicted the view corridor on the proposed PUD Development Plan, recommended revisions Staff is also recommending a master landscape plant be submitted for the entire project utilizing plant material outlined in the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. (9) Phasing plan or subdivision plan that will maintain a workable, functional, and efficient relationship throughout the development of the PUD. The phasing plan shall clearly demonstrate that each phase can be workable, functional and efficient without relying upon completion of future project phases. In conjunction with the PUD Amendment application, the applicant has submitted a Preliminary Subdivision Plan. The Preliminary Subdivision Plan has been reviewed by staff for functionality based on specific criteria outlined in the Town Municipal Code. Staff has found the Preliminary Subdivision Plan to be acceptable subject to staff recommended conditions. Those conditions and a detailed description of staff comments are outlined in Resolution 06 -01 and accompanying Preliminary Subdivision Plan report. The application does not propose a formal construction - phasing plan. The initial request includes a 30 -year vesting period. Based on the assumptions use in the fiscal impact analysis provided by the applicant, staff has recommended that the vesting period be reduced to 7 years. Furthermore, staff has recommended a condition requiring the developer to construct the hotel /public plaza and the gondola during the first phase. These items will be considered by Town Council as in order to find this criterion positive. (10) Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire protection. Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 19 of 20 Adequacy of public services such as sewer, schools, transportation systems, roads, parks, and police and fire protection has been evidenced by the application. However, the adequacy of water is yet to be determined and must be evidenced prior to approval of final plat. (11)That the existing streets and roads are suitable and adequate to carry anticipated traff ic within the proposed PUD and In the vicinity of the proposed PUD. The existing streets and roads are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD, however the traffic projected was a worst -case scenario in the instance that the railroad crossings were not secured. Therefore, finding this criterion approvable is conditioned upon permanent access across the rail corridor being guaranteed by the developer. (12)That the PUD or amendment to PUD requested provides evidence of substantial compliance with the following public purpose provisions, as outlined in Section 17.28.085 of the Avon Municipal Code: A. The application demonstrates a public purpose which the current zoning entitlements cannot achieve. The proposed PUD Amendment offers significant public benefits to the Town by way of the positive economic impacts described in the fiscal impact analysis prepared by Stan Bernstein. The economic model (see attached) generally indicates increased property tax revenues, increased real estate transfer tax revenues, increased accommodation tax revenue, and increased retail sales tax revenues. The current entitlements cannot demonstrate the same financial benefit as a result of a significant rebate provision. Along with the significant economic benefits to the Town, the long -term preservation approximately 5 -acres of the Eagle River by way of dedication to the Town ensures the protection of some the longest riparian area left undeveloped in the Town boundary. B. Approval of the zoning application provides long term economic, cultural or social community benefits that are equal to or greater than potential adverse impacts as a result of the changed zoning rights. As noted above, the long -term economic benefits discussed in both fiscal impacts analysis provided in the application describe significant positive economic impacts to the Town over a relatively long period of time. The site ....... ... _ plan is a more efficient and sensitive use of the site than the existing zoning rights and entitlements provide, and thereby creates benefits that outweigh those of the existing zoning rights. C. The flexibility afforded in approval of the zoning application will result in better siting of the development, preserving valued environmental and cultural resources, and increasing the amount of public benefit consistent with the community master plan documents. The existing PUD contemplated a large surface parking lot that account for nearly 1/3 of the site, a bridge across the Eagle River for connection to Highway 6, and no direct access to the Town Center. The proposed PUD would utilize below ground parking in lieu of surface parking, eliminate the Town of Avon Community Development (970) 748 -4030 Fax (970) 949 -5749 The Confluence PUD- Amendment to the 1998 PUD approval January 17, 2006 Planning & Zoning Commission meeting Page 20 of 20 bridge across Highway 6 and connect to the Town Center via two at grade pedestrian/vehicular crossings. In terms of preserving valued environmental and cultural resources, the application proposes the dedication of approximately 5—acres of the Eagle River and associated high value wetlands and riparian areas. These public benefits are all consistent with the goals and policies outlined in the Comprehensive Plan. If you have any questions regarding this project or any planning matter, please feel free to call either of us at 748-4030, or stop by the Community Development Department. RespeptfUTY98bmitted, Tam i Ka AICP Director I ei Zmann, AICP Senior Planner Attachments: A. Resolution 06-01; B. PUD Application dated August 8, 2005 (previously distributed to Commission members); C. October 18th, 2005 Planning and Zoning Commission Staff Report, exhibits, and meeting minutes; D. November 1*'t, 2005 Planning and Zoning Commission Staff Report, exhibits, and meeting minutes; E. November 15th, 2005 Planning and Zoning Commission Staff Report, exhibits, and meeting minutes; F Proposed massing model (available at meeting only); G. PUD Development Plan dated January 10th, 2006; Watker PretimInary Parking Operations Plan dated-December 5,2--O--05 J. Public Comments received (previously distributed to Commission members) K. Memo from Town Attorney review ' ing status of development agreement. L. Preliminary Subdivision Plan and Subdivision Variance Staff report. town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 I i TOWN OF AVON PLANNING & ZONING COMMISSION RESOLUTION NO. 06 -01 A RESOLUTION RECOMMENDING APPROVAL OF A PUD AMENDMENT APPLICATION AMENDING THE CONFLUENCE PUD, AS MORE SPECIFICALLY DESCRIBED IN THE APPLICATION DATED AUGUST 8, 2005. WHEREAS, East West Partners Inc. has filed an application to amend the existing Planned Unit Development ( "PUD ") and Development Agreement for the Confluence PUD; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning and Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning and Zoning Commission of the Town of Avon held a public hearings on October 18`h, November 1, November 15`h, December 6`h, and December 20`h of 2005 and January 17`h, 2006 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 and Development Agreement; and WHEREAS, following such public hearing, the Planning and Zoning Commission forwarded its recommendation for approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 06 -01; WHEREAS, said application appears to comply with the following PUD review criteria set forth in Section 17.12.110 of the Avon Municipal Code, including the following: I . Conformance with the Town of Avon Comprehensive Plan's and Town Center Implementation Plan Goals and Policies as required by 17.20.110H (1); 2. The overall design concept of this PUD Amendment conforms to the design theme of the Town, and Design Guidelines as required by 17.20.1 IOH(2); 3. The project is compatible with the immediate scale and character of existing properties in the vicinity. 17.20.110H(3); 4. This PUD Amendment application is responsive and compatible to the existing surrounding land -uses. 17.20.110H (4); 5. The PUD Amendment application has identified and proposes to mitigate or avoid natural or geologic features. 17.20.11 OH (5); 6. The site plan, building design and location and open space provisions are designed to produce a functional development responsive and sensitive to f natural features, vegetation and overall aesthetic quality of the community. 17.20.11 OH (6); 7. The circulation system is designed for both vehicles and pedestrians addressing on and off site traffic circulation that is compatible with the Town Transportation Plan. 17.20.11 OH (7); 8. This PUD Amendment application has created functional open space that is responsive to existing views and buffers to open space. 17.20.110H(8), 9. The subdivision plan will maintain a workable, functional, and efficient relationship throughout the development of the PUD. The phasing plan shall clearly demonstrate that each phase can be workable, functional and efficient without relying upon completion of future project phases. 17.20.11OH (9); 10. Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire protection has been established. 17.20.11 OH (10); and 11. The existing streets and roads are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD. 17.20.11 OH (11). WHEREAS, this PUD Amendment provides evidence of compliance with the public purpose provisions outlined in Section 17.28.085 of the Municipal Code, NOW, THEREFORE, BE IT RESOLVED, that the Planning and Zoning Commission hereby recommends approval to the Town Council for the amendment of the Confluence PUD Amendment application dated August 8, 2005 with the following conditions: 1. Required revisions to the Development Plan: f A. Delete General Notes 7a, 7b, and 7c, and revise as follows: "A fifty -five (55) foot view corridor through the public plaza adjacent to the proposed hotel as presented on the development plan and the final plat for the Riverfront Subdivision shall remain unobstructed from the ground level upwards, with the exception of the gondola terminal. Minor encroachments such as awnings, landscaping, overhangs, decks and railings shall be reviewed and may be approved through the design review approval process ". B. Delete General Note #1 and revise as follows: Professional offices, including real estate offices, shall be limited to the two locations on the public plaza as depicted to the Planning and Zoning Commission January 17, 2006. A temporary timeshare sales office will be permitted in the hotel and must be vacated within thirty (30) days of issuance of Temporary Certificate of Occupancy for Building E (Lot 3). No other plaza level spaces are permitted for use by professional and general office, including financial institutions and real estate offices or residential units. C. Add the following general note: "This PUD Plan contains the development standards and uses for the Riverfront PUD. Other uses and provisions of the Town of Avon Zoning Code not specifically addressed herein, or in the related development agreement, shall apply to the Riverfront PUD." D. Add the following note: A solar access study showing the effects of shading on adjacent buildings and outdoor spaces is required for all proposed buildings exceeding 3 stories in height. Sun studies should be prepared on a site plan of a scale not less than 1 " =40' showing shadows at 10 am and 3pm on March 21, June 21, September 21, and December 21. E. The maximum building height shall be as follows: i. Hotel, Timeshare and Whole Ownership- as depicted on Land Use Table of PUD Development Plan dated January 12, 2006. ii. In all instances, the maximum allowable percentage of a building ridgeline to be at or near the maximum height shall be governed by the more restrictive criteria of the Riverfront Design Standards and the Town of i Avon Design Review Guidelines. F. Final approval of this PUD Development plan is conditioned upon approval of site specific design standards ( "Riverfront Design Standards ") by the Planning and Zoning Commission and Town Council, incorporated on the PUD Development Plan and recorded at the time of approval of the PUD. The criteria, at a minimum, shall include design elements as outlined in Exhibit A to Resolution 06 -01. 2. Parking Conditions: A. Delete General Note #8 and revise as follows: "A parking management plan, generally consistent with recommendations outlined in the Walker Preliminary Parking Operations Plan dated December 5, 2005 shall be submitted and, after review and approval by the Zoning Administrator, be recorded as a covenant with by issuance of Certificate of Occupancy. The approved plan shall not be changed without notification of the Town, and shall be enforceable by the Zoning Administrator ". 3. General Conditions: A. Water Rights: The property owner shall convey to the Town the water rights necessary to serve the approved development. Final water right determination shall be resolved between the property owner and the Town prior to the recording of a Final Plat. B. Revise General Note #10 to add the following: Additional Commercial GLFA exceeding the PUD maximum may be approved for restaurant, bars, cocktail lounges and similar uses subject to a Special Review Use. C. Revise General Note #12 to: Office space above but not on the public plaza level may be converted to Residential /Lodging uses provided the maximum number of Dwelling Units is not exceeded after such conversion. Required parking shall be recalculated after taking into account such conversion and any excess parking spaces may then be individually deeded. D. The property owner shall submit a master landscaping and public plaza design plan ( for Lots 1 -7, including Tract A, to be reviewed and approved by the Planning and Zoning Commission prior to issuance of the first building permit for the hotel. E. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code prior to the issuance of the first Certificate of Occupancy but no later than January 1, 2008. F. The Affordable Housing requirement shall be determined by Council if amended from the existing 10 % requirement. G. The property owner shall construct the proposed Westin Hotel or equivalent, Public Plaza, and gondola as generally submitted in the August 3, 2005 application. Significant changes to the hotel brand or brand equivalent, public plaza, conceptual architectural illustrations or conveyance to the Beaver Creek Landing shall require a major amendment to the PUD. H. A revised development agreement shall incorporate and reference the approved PUD Development Plan, including all conditions of approval specified in Planning and Zoning Commission Resolution 06 -01. 1. 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. ADOPTED THIS 17'x' DAY OF January, 2006 Signed: Date: I q 16 6 Chris Evans, Chair Att t: � r Date: Phil Struve, Secretary Exhibit "A" to Resolution 06 -01 t Riverfront Subdivision Minimum Design Standards The (Westin) Riverfront Subdivision Design Standards, incorporated on the PUD Development Plan, shall include minimum standards for the design that will supplement the Town nDesign Review Standards shall be required incorporated as part of the PUD approval evelop ent Plan final Design standards shall address the following areas: Architectural Goal and Objectives: Project: Establish theme and quality for the entire project, define the predominant style and characteristics of buildings and the interface with both public spaces, predominant views and the natural environment. Site Design: Solar Access: A solar access study shall be required for buildings exceeding 3 stories located in the subdivision. Building Entry: General requirements for emphasis on building entries. Site materials palette: A list of suitable materials and colors for all public plaza areas, including facing material for all necessary retaining walls. Building Height, Massing & Scale: Street/Pedestrian Level, All Buildings: Defined minimum window areas, materials palette, and minimum use of stone on each building. Wall Facades, Public Plaza: Define maximum height for all building facades fronting the public plaza, and an identified minimum setback at a horizontal elevation above that height. All Buildings: A defined maximum percentage of wall planes, a defined minimum break in wall planes for all elevations. Maximum Heights, All Buildings: Define maximum percentage of ridge heights that may be at the allowable height, a defined minimum setback of those ridges from the public plaza. Exterior Wails and Surfaces: Materials: Material palette, color palette, prohibited materials.. Retaining walls: Facing material and color palette. All buildings: Prohibited materials and finishes, minimum materials on all elevations. All buildings: Material and color palette, minimum detailing, construction technique, and size /proportionality guidelines. All buildings: Minimum roof pitch, roof material palette (including LRV), maximum uninterrupted roof planes, minimum overhang length Signs: Project: General style, materials and color palette to form the basis of a Master Sign Program for the entire project. <<l, Town of Avon Planning & Zoning Commission Meeting F19" AVON Minutes C O L O R A D O January 17, 2006 1. Call to Order The meeting was called to order at 5:40 pm. Roll Call All Commissioners were in attendance. 111. Additions and Amendments to the Agenda There were no additions and amendments to the Agenda. IV. Conflicts of Interest There were no conflicts of interest to report. V. Consent Agenda: ■ Approval of the December 6, 2005, Planning & Zoning Commission Meeting Minutes and the December 20, 2005, Planning & Zoning Commission Meeting Minutes Commissioner Savage motioned for the approval of the Minutes from the December 6 and December 20, 2005 Planning and Zoning Commission Meetings; Commissioner Green seconded and the motion passed unanimously. VI. PUD Amendment / Confluence - CONTINUED PUBLIC HEA Property Location: Confluence /95 Avon Road Applicant East West Resorts /Owner: Vail Associates Description: A request for an amendment to the Confluence PUD to modify the existing development rights and zoning for the entire property. This application proposes a hotel, retail plaza, high-speed public gondola, condominiums, and fractional ownership residential units. This item is tabled until the January 3, 2006 Planning and Zoning Commission meeting, Tambi Katieb presented the Staff Report to the Commission in summary, noting the areas of review in each attached staff report from the last three staff reports over the review of the project over six months, and reviewed the basis for staff recommendation of conditional approval. Staff recommended that the applicant review the final proposal and the PUD Development Plan, and that staff would then review each recommended condition and what it was intended to address in the proposal. This meeting was to be a review of the final refinements of the PUD and the PUD Development Plan, the guiding document for the project. Chuck Madison, East West Partners, approached the podium to discuss the project and began by describing the project's evolution, and what areas have been refined through the Planning & Zoning Commission and staff review process. He reviewed the benefits of the proposed gondola and the proposed hotel to the Town. He continued that the tract of land by the river would be deeded to the Town for open space and a riverfront park. Mr. Madison continued that the bike path would be widened to 12 feet from its current 10-foot width and that a permanent easement would be established for public access to the gondola and to maintain the view corridor. He continued with the proposed improvement to Avon Road by eliminating the large retaining wall, creating additional bike access to Benchmark Road, and economic benefits of the project to the Town of Avon. Mr. Madison discussed the changes made to the project through the Planning and Zoning Commission process that included the enhancement of the architecture of the hotel by adjustments to height and massing. Building heights were detailed in the presentation, river setback was increased to 75 feet from 50 feet, and site coverage change from the original PUD was changed from 75% to 20% on the site and pedestrian access was improved. Mr. Madison continued that parking for the public was increased by 6 and there was better connectivity of the bike path on the site. Cul de sacs would permit access should railroad reactivate. Mr. Madison concluded his presentation and overall project review. OPEN PUBLIC HEARING The Commission opened the public hearing. Peter Buckley, Avon registered voter and taxpayer, questioned the kayak put-in and take-out at the proposed Whitewater Park, the PLC final decision, and the number and cost of parking for the public on the site. Mr. Madison responded it was the intent to provide public access for the purpose of kayaking, and described the public parking available to guests of the project and trail users. Mr. Katieb answered a Commission question that a final PLC decision should be made within the next three months or so, and Mr. Madison shared that the cost of parking has not been decided as yet but that there might be charges during the winter season and it might be free during off season. Tambi Katieb began the discussion of the recommendations of the Staff Report, describing the areas that each condition was intended to address in three general areas of the PUD Development Plan, which represents the guiding land use document for the project. Condition #1 dealt with the language of the PUD Development Notes regarding General Notes #7a, 7b, and 7c and the need for clarification based on what staff wished to see preserved in the view corridor. Commissioner Buckner questioned the gondola in the view corridor and Mr. Katieb responded that it was an acceptable encroachment for the benefit of the public to identify and have visible for access. Discussion was had on the exact width, and staff and the Commission found that a 55-foot corridor was acceptable and allowed for a planned break in the wall plane for the hotel. Condition #1 b was discussed and after deliberation the condition was revised. Commissioner Evans queried the two Starwood Real Estate offices and Mr. Madison responded that one was a temporary office and would be abandoned when the office in the Time Share building was CO'd and that there would be no more than two real estate offices operational at the public plaza. Linear square footage of commercial retail and parking were discussed in length. The Commission and staff were presented a scheme that showed exact locations of a SSF and SMV realty office and wished to limit the locations of all offices on the public plaza. Mr. Katieb noted that this was intended to enhance a place-making experience. Condition #1C was discussed, and after deliberation, was deleted since the plaza would be platted and the view corridor was resolved already. Mr. Katieb clarified a staff request for language on Condition#lD and discussed the solar access study goals of #1 E. Condition #1 F was discussed, and the building heights were tied to the development plan and final approval of the design standards. Staff had no objection to this approach if the heights were finally approved through the design standards and the design review approval process to the satisfaction of the Commission. Staff discussed the goal of the design standards and all were in agreement on this recommendation ( #1G). Condition #2 addressed parking concerns, which included setting an inappropriate precedent of parking spaces; too little parking would create unhappy owners, and the Commission felt the impact of the parking did not impact the town as it would the Confluence site, and office parking should be under the commercial category since the ratio was higher than the Municipal code requirements. Mr. Madison commented that it would be a $3 million cost for additional parking under the water table. Staff discussed the greatest variation by use and after further Commission comment, the parking conditions were deleted. Conversation continued with the "covenant" word issue and its financial impact to East West Resorts. Mr. Katieb relayed it was a concern for the Town's attorney to review and deferred comment. Condition #3 addressed General Conditions and conversation included Water Rights, Master Landscaping Plan, parcels to be deeded to the Town and other items to provide a clean PUD Development Plan. Norm Wood discussed Water Rights with the Commission and revealed that Town Council would address this issue, and both Conditions #3a and #3b were requested for deletion by staff. Mr. Madison questioned the timing of the construction of the cul -de -sacs. The rest of the conditions were reviewed by staff and there were no questions. Commissioner Green requested the addition of conditions to add incentive to allowing more commercial in the future and revising General Note 12 on the PUD Plan. CLOSED PUBLIC NEARING Commissioner Savage moved to approve Resolution No. 06 -02 recommending approval of the Subdivision Variances and Preliminary Subdivision Plan for Riverfront Subdivision in conjunction with the Confluence PUD Amendment as more specifically described in the Application dated August 8, 2005, with the following changes and conditions: 1. Required revisions to the Development Plan: A. Delete General Notes 7a, 7b, and 7c, and revise as follows: "A fifty -five (55) foot view corridor through the public plaza adjacent to the proposed hotel as presented on the development plan and the final plat for the Riverfront Subdivision shall remain unobstructed from the ground level upwards, with the exception of the gondola terminal. Minor encroachments such as awnings, landscaping, overhangs, decks and railings shall be reviewed and may be approved through the design review approval process ". B. Delete General Note #1 and revise as follows: Professional offices, including real estate offices shall be limited to the two locations on the public plaza as depicted to the Planning and Zoning Commission January 17, 2006. A temporary timeshare sales office will be permitted in the hotel and must be vacated within thirty (30) days of issuance of Temporary Certificate of Occupancy for Building E (Lot 3). No other plaza level spaces are permitted for use by professional and general office, including financial institutions and real estate offices or residential units. C. Add the following general note: `This PUD Plan contains the development standards and uses for the Riverfront PUD. Other uses and provisions of the Town of Avon Zoning Code not specifically addressed herein, or in the related development agreement, shall apply to the Riverfront PUD." D. Add the following note: A solar access study showing the effects of shading on adjacent buildings and outdoor spaces is required for all proposed buildings exceeding 3 stories in height. Sun studies should be prepared on a site plan of a scale not less than V=40' showing shadows at 10 am and 3pm on March 21, June 21, September 21, and December 21. E. The maximum building height shall be as follows: i. Hotel, Timeshare and Whole Ownership- as depicted on Land Use Table of PUD Development Plan dated January 12, 2006. ii. In all instances, the maximum allowable percentage of a building ridgeline to be at or near the maximum height shall be governed by the more restrictive criteria of the Riverfront Design Standards and the Town of Avon Design Review Guidelines. F. Final approval of this PUD Development plan is conditioned upon approval of site specific design standards ( "Riverfront Design Standards ") by the Planning and Zoning Commission and Town Council, incorporated on the PUD Development Plan and recorded at the time of approval of the PUD. The criteria, at a minimum, shall include design elements as outlined in Exhibit A to Resolution 06- 01. 2. Parking Conditions: A. Delete General Note #8 and revise as follows: A parking management plan, generally consistent with recommendations outlined in the Walker Preliminary Parking Operations Plan dated December 5, 2005 shall be submitted and, after review and approval by the Zoning Administrator, be recorded as a covenant with by issuance of Certificate of Occupancy. The approved plan shall not be changed without notification of the Town, and shall be enforceable by the Zoning Administrator". 3. General Conditions: A. Water Rights: The property owner shall convey to the Town the water rights necessary to serve the approved development. Final water right determination shall be resolved between the property owner and the Town prior to the recording of a Final Plat. B. Revise General Note #10 to add the following: Additional Commercial GLFA exceeding the PUD maximum may be approved for restaurant, bars, cocktail lounges and similar uses subject to a Special Review Use. C. Revise General Note #12 to: Office space above but not on the public plaza level may be converted to Residential/Lodging uses provided the maximum number of Dwelling Units is not exceeded after such conversion. Required parking shall be recalculated after taking into account such conversion and any excess parking spaces may then be individually deeded. D. The property owner shall submit a master landscaping and public plaza design plan for Lots 1 -7, including Tract A, to be reviewed and approved by the Planning and Zoning Commission prior to issuance of the first building permit for the hotel. E. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code prior to the issuance of the first Certificate of Occupancy but no later than January 1, 2008. F. The Affordable Housing requirement shall be determined by Council if amended from the existing 10% requirement. G. The property owner shall construct the proposed Westin Hotel or equivalent, Public Plaza, and gondola as generally submitted in the August 3, 2005 application. Significant changes to the hotel brand or brand equivalent, public plaza, conceptual architectural illustrations or conveyance to the Beaver Creek Landing shall require a major amendment to the PUD. H. A revised development agreement shall incorporate and reference the approved PUD Development Plan, including all conditions of approval specified in Planning and Zoning Commission Resolution 06-01. I. 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. Commissioner Struve seconded the motion. All commissioners were in favor and the motion passed 7— 0. X1. Other Business A. Tambi Katieb revealed to the Commission the hiring of a GIS Planning Analyst to the Community Development Department. VIII. Adjourn Commissioner Savage motioned to adjourn. All Commissioners were in favor. The meeting was adjourned at 8:45 pm. Respectfully submitted, Ruth Weiss Recording Secretary APPROVED: Chris Evans Chairman Phil Struve Secretary 1 J4 To: Honorable Mayor and Town Council From: Patty McKenny, Town Clerk Date: March 8, 2006 Re: Resolution No. 06-12, A Resolution Approving Between The Town And Confluence Metropolitan Heretofore Taken By The Staff Of The Town Summary: A Facilities Operation Agreement District, And Ratifying All Action Attached is the Resolution approving the Facilities Operation Agreement, a final Facilities Operation Agreement, and a marked up copy of the same Agreement for your review. TOWN OF AVON, COLORADO RESOLUTION NO. 06-12 SERIES OF 2006 A RESOLUTION APPROVING A FACILITIES OPERATION AGREEMENT BETWEEN THE TOWN AND CONFLUENCE METROPOLITAN DISTRICT, AND RATIFYING ALL ACTION HERETOFORE TAKEN BY THE STAFF OF THE TOWN WHEREAS, the Town Council has approved an Amended and Restated Development Agreement ( "the Development Agreement ") for the Confluence; and WHEREAS, the Development Agreement obligates the Town to enter into a separate joint operating agreement for operation of a gondola and a public plaza with restrooms; and WHEREAS, the Town and representatives of East West Partners and Confluence Metropolitan District have agreed upon a Facilities Operation Agreement to implement the Development Agreement; and WHEREAS, the Facilities Operation Agreement is not an agreement "with other governmental units ... for the joint use of buildings, equipment or facilities, or for furnishing or receiving commodities or services of public benefit ... ;" and WHEREAS, the Facilities Operation Agreement is therefore not a "Cooperative Intergovernmental Contract" for purpose of Section 16.2, Town of Avon Home Rule Charter, requiring approval by a two - thirds vote of the entire Council. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The FACILITIES OPERATION AGREEMENT, a copy of which is filed in the minutes of this meeting, is approved. Section 2. All action heretofore taken by the staff of the Town of Avon directed toward the forgoing purpose is hereby ratified, approved and confirmed. ADOPTED at a regular meeting of the Town Council of the Town of Avon the 14th day of March, 2006. Ronald C. Wolfe, Mayor I1_ Patty McKenny, Town Clerk FACILITIES OPERATION AGREEMENT THIS FACILITIES OPERATION AGREEMENT (this "Agreement ") is entered into as of the day of , 2006, by and between CONFLUENCE METROPOLITAN DISTRICT (the "CMD "), a quasi - municipal and a political subdivision of the State of Colorado (the "State "), and the TOWN OF AVON (the "Town'), a municipal corporation and a political subdivision of the State. CMD and the Town are sometimes herein referred to collectively herein as the "Parties." RECITALS WHEREAS, CMD was organized as a special district under the Special District Act, Section 32- 1 -101 et seq., C.R.S, for the purposes of providing public infrastructure and services within and without its boundaries and the boundaries of the Avon Station Metropolitan District (together, CMD and the Avon Station Metropolitan District are referred to herein as the "Districts ") ; WHEREAS, the property within the Districts lies wholly within the boundaries of the Town, in the County of Eagle, Colorado; WHEREAS, the terms of that certain Consolidated Service Plan for CMD, approved by the Town on September 22, 1998, as amended from time to time (the "Service Plan "), contemplates and authorizes the financing by the Districts, and the construction, operation, maintenance and management by CMD of certain public improvements, including without limitation the construction, operation and maintenance of (a) a gondola from a parcel of real property which has been annexed to the Town, as more particularly described in Exhibit A attached hereto (the "Confluence "), to the area commonly known as the Tarnes /Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola "), and (b) a public plaza and related public restrooms (the "Public Plaza and Public Restrooms "), in each case, in accordance with and as further described in an Amended and Restated Development Agreement (the "Development Agreement ") entered into by and between the Town and East West Partners, Inc., a Colorado Corporation, and dated 2006, and the PUD Development Plan (the "Development Plan ") recorded at Reception No. , in the Office of the Clerk and Recorder of Eagle County, Colorado (collectively, the "Designated Public Improvements "); NOW, THEREFORE, in consideration of the obligations and undertakings set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Construction of Designated Public Improvements — Condition Precedent. The Parties acknowledge and agree that terms and conditions, and the rights and obligations set forth herein shall not be effective unless and until the Commencement Condition has been satisfied as defined and described in Paragraph 5., below. Gondola Operations. CMD shall retain ownership of the Gondola. A. The public shall enjoy a perpetual easement of use and enjoyment of the Gondola, subject to the reasonable regulations mttttial4yqf CMD acceptable to the Town and GMDstaf£ During the term of this Agreement, no fee or other charge for use of the Gondola shall be assessed by CMD or any party managing the Gondola on behalf of CMD although, with the agreement of the Town. fees may be charged during times outside of the periods of operation described in Paragraph 2.13, below. Notwithstanding the foreaoina. the Parties acknowledge and agree that the life span of a Gondola is anticipated to be 20 -30 ears. and that future replacement of these improvements would be necessary to maintain its existence. In the event the Gondola is retired and not replaced the Town's obligations herein with respect to the Gondola and the easement to the public provided herein with respect to the Gondola shall each automatically terminate and bg of no further force or effect. CMD shall not close, restrict or limit the Gondola to public use without the prior written authorization of the Town except f r r-egulafly sehedule a ain as described immediately above regarding the life -span of the Gondola. as described in Paragraph 2.B below regardin o eratin dates and time. or otherwise if the continued operation of the Gondola would, in the reasonable judgment of CMD, constitute a hazard to the public. In any event of closure, restriction or limitation due to hazards to the public. CMD shall either reopen the Gondola to public use as agreed by the Town and CMD or at the earliest time that the Gondola may, in the reasonable judgment of CMD, be used safely. B. CMD shall be responsible for the operation and maintenance of the Gondola, although. theTown acknowledges and accepts that the Gondola may also be governed by a management agreement pursuant to which The Vail Corporation or an associated entity under the control of the owner of Beaver Creek Resort he "Vail Entity "l shall manage and operate the Gondola on behalf of CMD and shall be gfanted ee Rain disc etio with espeet to same. In either case, the hours of operation shall be as agreed upon by CMD and the Town staff from time to time, but unless otherwise agreed shall be not less than a.m. to from �le� ewer ie April December 20 throu April 1 of each ski season, aPA _ .with operations beginning at all othef ti e the same time each day as the be inning of operations of the Lower Beaver Creek Express and ending one hour after the close of operations of both the Larkspur Bowl Lift and the Strawberry Park Lift. Notwithstanding the forgoing, the Parties acknowledge andeagree that such operations shall be subject to closure due to mechanical or electrical failure emer ency or lift accident general maintenance weather conditions snowmaking priorities and any force maieure event. The Gondola shall be operated, maintained and used in a careful, safe, and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, board, or body, now in force or hereafter to become effective. C. In consideration of the performance by CMD of its obligations under this Paragraph 2. subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50 %) of CMD's operating and maintenance budget for the Gondola, not to exceed $240,000, due annually on or before November I in each year during which this Agreement is in effect, which amount shall be increased or decreased annually begintlina January 1, 2006_ equal to the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver - Boulder- Greeley metropolitan areas as published semi - annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. 3. Public Plaza and Public Restrooms. CMD shall retain ownership of the Public Plaza and Public Restrooms. A. The public shall enjoy a perpetual easement of use and enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations mutual y2f CMD acceptable to the Town aPA CMDstaff During the term of this Agreement, no fee or other charge for use of the Public Plaza and Public Restrooms shall be assessed by CMD. CMD shall not close or restrict or limit the Public Plaza and Public Restrooms to public use, whethef for the e ndue, of publie ^ ate events ^rexcept as otherwise rovided in this Paragraph below, without the prior written authorization of the Town exeept_ Notwithstandin the foregoing such may be limited or restricted (i) for regularly scheduled maintenance Brand repairs, (ii) in accordance with the hours of operation described in subparagraph 3.13, below. (iii) if the continued operation of the Public Plaza and Public Restrooms would, in the reasonable judgment of CMD, constitute a hazard to the public, or (iv) for the conduct of private or public events, as discussed in subparagraph 3 D below. In aythe event of eles*r -t such restriction or limitation due to hazards to the public, CMD shall eithefreopen the Public Plaza and Public Restrooms to public use as agreed by the 2 Town and CMD or at the earliest time that the Public Plaza and Public Restrooms may, in the reasonable judgment of CMD, be used safely. B. CMD shall be responsible for the operation and maintenance of the Public Plaza and Public Restrooms. The hours of operation shall be as agreed upon by CMD and the Town from time to time, but unless otherwise agreed shall be not less than three hundred and sixty -five days a year and during the hours of operation for other similarly situated Town -owned public restroom facilities. The Public Plaza and Public Restrooms shall be operated, maintained and used in a careful, safe, sanitary and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, board, or body, now in force or hereafter to become effective. Maintenance of the Public Plaza shall include, but not be limited to keeping the same free from snow, ice, debris, other hazards to the traveling public. C. In consideration of the performance by CMD of its obligations under this Paragraph 3., subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50 %) of CMD's operating and maintenance budget for the Public Plaza and Restrooms, not to exceed $40,000, due annually on or before November I in each year during which this Agreement is in effect, which amount shall be increased or decreased annually, beginning January 1. 2006. equal to the cumulative percentage change from the prior year average consumer price index for All Urban Consumers for the Denver - Boulder - Greeley metropolitan areas as published semi - annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. D. CMD and the Town shall cooperate jointly in the use of the Public Plaza and Public Restrooms throughout the year and the T. shall have t fight t * ke feasonabl use of the n G li Plat„ and n „hlie Restrooms for the conduct of public events, art shows, craft fairs, concerts, and other uses. All such uses shall be subject to applicable Town permittin a rovals. 4. Reduction in Payments. The not -to- exceed annual payments for Gondola operations and maintenance, as identified in Paragraph 2.0 —, abovehereof, and the not -to- exceed annual payment for Public Plaza and Restroom operations and maintenance, as identified in Paragraph 3.C. hereof, both as adjusted for inflation, (the "Payment Obligation” 1 shall be decreased pro - ratably, on a dollar for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into the maintenariee of the Gondola and the Publie Plaza and Restrooms, or- Districts subse tiq lent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subsequent to the effective date of this Agreement. The reduction shall be calculated based on the sum total of the amounts arrived at in afagfaph§g=b nara rraapis 4.A, B, C, and B below, and -at such -time as the revenues received by operation of those subparagraphs results in the reduction of the Payment Obligation to zero Town shall be relieved permanently of the Payment Obligation. A. Operating mill Iev-yrate for the Distr-ie Districts multiplied by the assessed valuation for the year being levied for each included property not within the D- itDistricts as of the date of this Agreement. B. Operating mill gate for the Distrie multiplied by the assessed valuation of any new development that has occurred on Lot B subsequent to the date of this agreement. 3 new agreements efitered into subsequent to the date of this Agreement supporting Gondola opefations D-C. Any additional amounts of operating revenues received from Mountain Vista Metropolitan District pursuant to additional development occurring within Mountain Vista Metropolitan District subsequent to the date of this Agreement. D. The Payment Obligation shall also be decreased pro - ratably, on a dollar for dollar basis, to reflect any amounts received or otherwise due to be received subsequent to the date of this Agreement, through the contribution by entities other than the Town and CMD by agreement or otherwise. supporting Gondola and /or the Public Plaza and Restrooms operations and maintenance costs. In the event that any revenues described in this subparagraph 4.1) when taken together with other revenues received under subparagraphs 4.A. B, and C, results in the reduction of the Payment Oblianon to zero, Town shall be relieved of the Payment Obligation, but only to the extent and so long as such additional operating revenues remain in place and their receipt is required to reduce the Payment Obligation to zero. 5. Commencement Condition. The obligation of the Town —to 66i= menee payment of the afneuntsdessribed in Rar-agraphs 2.� ., and 3:B Payment Obligation shall commence upon the later of (a) November 1, 2007 or (b) November 1 of the year in which (i) the operations of the Gondola and Public Plaza and Public Restrooms start and (ii) a temporary certificate of occupancy is issued by the Town for the Hotel that is fequired to be eenstfueted and °r^*^d u ndef (as defined in the Development Agreement). The Town may, within its discretion, partially fund operations of the Gondola and /or the Public Plaza and Public Restrooms prior to satisfaction of the foregoing commencement conditions upon terms agreed to between the Town and CMD. 6. Budgeting Procedures. No later than Au-g --1- September 15 of each year in which the T-- ownPavmeni Obligation is obligated to make payments undet: Pafa,-fap}s 2.G., and 3-C., mein effect, CMD will develop a good faith, detailed plan for operations and estimated budget for the anticipated operating and maintenance expenses with respect to the Designated Public Improvements as described above for the coming operating year (November 1 — October 31) and provide such plan and budget to the Town, together with a reconciliation and budget comparison of the operations and maintenance expenses for the immediately preceding operating year. The Town will have the right to review and comment on such operating plan and budget. During the thirty (30) day period following such delivery of the plan and budget, the Town and CMD will work together and use their best efforts to agree upon a plan and budget. Until a mutually agreed upon good faith plan and budget has been developed, CMD shall continue to operate and maintain the Designated Public Improvements and the Town shall continue to pay its percentage of such costs in accordance with the previously approved budget, adjusted as described in Paragraphs 2.C, 3C, and 4. above, until a new budget is agreed upon. Ili the event CMD determines that the approved plan and budget is insufficient to sustain the required standard of operation and maintenance required hereunder, CMD shall notify the Town of the same, and the Town and CMD shall work together and use their best efforts to agree upon a revised or restated plan and budget. 7. No Debt or Pecuniary Liability; No Multiple- Fiscal Year Obligation. All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple -fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing CMD and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for lu purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State to be subject to annual appropriation without regard to approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 8. Public Improvement Fees. If the Town, in its budget process for any year, fails to appropriate the €ul-1- amounts to be paid undef Pafagfaphs 2.Land 33..C. above, (full fund and nay the Payments Obligation. the Town shall use its best efforts to provide CMD with written notice of such failure by January 1 of the budget year in question; provided that the failure to provide such notice shall not be a breach of this Agreement and CMD acknowledges and agrees that it bears the responsibility to monitor the Town's annual public budget process. In the event of nonappropriation by the Town, the following agreements shall apply: A. The Parties acknowledge and agree that the owner /developer of the Confluence has recorded a covenant ( "PIF Covenant ") binding on the land requiring the collection of public improvement fees ( "PIF ") on all lodging rentals in the Confluence. Such PIFs shall be at the same rates and apply to the same transactions as the existing Town lodging or accommodation tax imposed under Chapter 3.28 of the Municipal Code ( "Town Lodging Tax "), and shall be payable at the same time and have the same exemptions and conditions as the Town Lodging Tax. Such PIFs shall be collected pursuant to the rules and procedures set forth in the PIF Covenant upon written notice to the Town from CMD that the Town has not appropriated the-all of the funds necessary to pay the Annual Payment Obligation, or the Town's Payment Obligation has been determined by a court of competent jurisdiction to be invalid. Any period of time during which the PIF is being collected shall be referred to herein as a "PIF Collection Period." Each such PIF Collection Period shall continue until the earlier of the collection in full of the Annual Payment aniountObliattion the Town failed to appropriate in one or more sueeeeding yeaFswas barred from collecting annually or in the age ag=te, or the end of the year before the next succeeding budget year for which the Town gives CMD notice that it has appropriated the Annual Payment Obligation for that budget year. B. During each PIF Collection Period, PIF revenue shall be collected by a col lectin agent ( "PIF Collecting A end tut) appointed by CMD pursuant to the PIF Covenants, and the Parties acknowledge and a ree that so long as the duties of the PIF Collecting Agent are being performed to the reasonable satisfaction of CMD, CMD shall appoint the Town CMD's behalfYinance Director as PIF Collecting Agent as and w— hen necessary. Any amounts of PIF revenue collected in excess of the unappropriated Annual Payment euObli a tion, annually or in the aggregate, shall be redpaid to the Town by the Ti =nPIF Collecting Agent within 10 business days of receipt. C. In consideration of CMD's agreement to operate and maintain the Gondola, the Public Plaza and Restrooms, and other public improvements in the Confluence, the Town will grant a Lodging Tax credit ( "Tax Credit ") to renters who are subject to and actually pay the PIF to the TewnPIF Collecting Agent during the PIF Collection Period in accordance with the terms and conditions of this Agreement. In order to implement the Town's obligation under this Agreement with respect to the Tax Credit, Town Council will approve an ordinance amending its Municipal Code provisions regarding the Town Lodging Tax within 15 days of the effective date of this Agreement, to provide for and implement the Tax Credit substantially as follows: During each PIF Collection Period, each person or entity otherwise liable to the Town for Town Lodging Tax under the Municipal Code with respect to taxable transactions occurring within the Confluence will receive a Tax Credit against such Town Lodging Tax obligation in an amount equal to the amount of the PIF Revenues collected and received by the 3PIF Collectin ent. Such Tax Credit will be automatic and will take effect immediately upon the 5 applicable taxpayer's (as reflected on the taxpayer's periodic tax reports to the Town) remittance to and receipt by the Tew*P1F Collecting=A e»t of the PIF revenues; provided, however, that the transactions and payments supporting the Tax Credit for any given period will nevertheless be subject to audit by the Town to the same extent, for the same limitation periods and in the same manner as the items which are required to be reported on the taxpayer's return relating to the period in which the transaction occurs. If Town Council fails to adopt the ordinance contemplated in this subsection &C., CMD will be entitled in its sole discretion either to: (i) declare the failure of a condition precedent and terminate this Agreement; or (ii) extend the period for satisfaction of the foregoing contingency to a date certain set forth in a written notice of extension, not to exceed 60 days from the date of the extension notice. D. At the termination of each PIF Collection Period, if there are PIF revenues remaining on deposit with the TownCMD. CMD shall be retained by mit all remaining PIF revenues to the Town for the purpose of the Town satisfying its obligations under this Agreement or, if no further obligations exist at that time, for any lawful purpose. Upon reasonable notice to the other party, the Town will have the right at its own expense to audit CMD's books and records, and CMD will have the right at its own expense to audit the Town's books and records, related to their respective obligations under this Agreement. E. The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant to or otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time, so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek to reform this Agreement in a manner that will best effect their intent. If a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed to include in the budget proposals for each year sufficient funds to meet the party's obligations under this Agreement. 9. Books and Records. The Parties shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Representatives thereof shall be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. Reasonable best efforts shall be used to resolve any issues, discrepancies, or inaccuracies discovered in any review of any entity's books and records. 10. Legal Challenge to Agreement. In the event any agreement contained herein is ever the subject of a legal challenge, the Town shall diligently resist such challenges in cooperation with the CMD as set forth in Seet-ionPara rg an11 15. H. 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, including, without limitation, the timely payment of any monetary obligation hereunder, in each case, after the applicable cure period described below; provided that the failure on the part of the Town to make any annual appropriation described hereunder shall not be an event of default, and CMD shall shave no claim against the Town harm for any loss, claim, expense or liability itieufred by r r rr, as a °st'* of such nena ^pooriationfor obligations on the part of t4+eCMD to third parties which CMD expected to pay upon receipt of Town Funds had they been appropriated, and to the extent allowed by law CMD shall 6 indemnify and defend the Town against any and all claims, suits, expense or liabilitiesJb y or obligations on the raft of CAM to ethers,such third narties arising as a result of such nonappropriation. 12. Default by CMD. A "breach" or "default" by CMD shall be defined as CMD's failure to fulfill or perform any material obligation of CMD contained in this Agreement following the applicable cure period described below. 13. 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 SeetionParagranh 20, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non - defaulting 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. 14. Remedies. If any default under this Agreement is not cured as described above, the non - defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and /or specific performance, and /or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. 15. Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement, the Parties agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Parties otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. 16. Term. This Agreement shall be effective upon execution hereof by the parties and shall represent the valid, binding and legally enforceable obligation of the parties hereto until this Agreement is terminated by mutual written agreement of the parties; provided that nothing herein shall affect the rights of the Town under Colorado law to initiate or pursue dissolution of the Di-strie tDistricts or either of them. 17. No Relationship4ns*faffe-e. This Agreement does not and shall not be construed as creating a joint venture, partnership, or employer - employee relationship between the Parties. It is agreed that the conduct and control of the operation and maintenance of the Designated Public Improvements, and the other various functions enumerated herein and authorized by this Agreement shall lie solely with CMD. 18. Insurance. A. CMD shall carry lace and maintain at CMD's all times at its sole expense, or shall cause The Vail Entity as CMD's agent with respect to the Gondola and the Gondola Interface Area (as defined below) to carry and maintain a Commercial general liability ( "Primary "Insurance that ,.ever -s any and in an occurrence format in an amount of X1,000 000 er occurrence with a deductible to be determined by the narties pursuant the annual plan and budget and to be paid upon each occurrence, including the following coverages: contractual liability personal injury a broad form property en or in the ge*dela and the publie plaza and restfeem f4eilities, no mat4ef how oeeasioned, in an amount not less than $4,000,000.0 dama ePendent contractors and premises onerations. CMD all provide a eei4ifieate E) s Primary insurance to the T-e „hieh state that „ h insufanee pelieies M me the r ^ ^shall provide primary insurance coverage in the event of any claims suits proceedings actions causes of action responsibility liability demands 'rl id�ment and executions arising out of or related to its operation and management of the Gondola the Gondola hlterface Area and the Public Plaza and Restrooms and - covering bodily injury death and damage to property of others The Gondola Interface Area shall be defined as be iig 111jp at the point a person enters the nueue and /or terminal area for embarking the Gondola or exits the terminal area for disembarking the Gondola B. The Town shall be named as an additional insured and that they shall not be eanee-lk-d-by ron any policy carried by The Vail Entity and if permitted under the terms of CMD of suez eempanies without thifty (30) days advanee wr-itten notiee to the Town. All polieies shall kept in f .ee at all times du i .g the teems of this Agfee policies. on any policy carried by CMD. The Parties shall also cooperate with each other and as appropriate the Vail Entity as part of the annual plan and budget to review and analyze available insurance covera eg s in order to acquire liability insurance as described in subparagraph 18 A above naming each of the Town CMD and as apro rp iate the Vail Entity as insured interests if such insurance may be acquired at reasonable rates and under reasonable conditions. C Except as otherwise agreed all insurance required of CMD (or The Vail Entit ly pursuant to this Agreement shall include �1 a clause or endorsement denving the insurer any riuht of subro a a ag inst the Town: and (iil a provision requiring the insurer to -ive the Town thirty (301 days' notice prior to cancellation. D. Prior to this Agreement becoming effective the CMD (or the Vail Entit_ppropriate� shall furnish the Town with certificates of insurance or other acceptable evidence that the insurance described in this Paragraph 18 is in force. 4 -8.19. Persons Interested Herein. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any person other than the Parties hereto, 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 shall be for the sole and exclusive benefit of the Parties. 4-9-.20. Compliance with Law. CMD agrees to comply with all federal, state and local laws, rules and regulations which are now, or in the future may become applicable to the design, financing, construction, operation and maintenance of the Designated Public Improvements. 2-0-.21. Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of tile - third - business - day after mailing by United States mail, certified, return receipt requested, postage prepaid, to the address set forth below; or as of 12:00 Noon on the immediately following business day after deposit with Federal Express or a similar overnight courier service, to the address set forth below; or as of the third business hour (a business hour being one of the hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient) after transmitting by telecopier to the telecopy number set forth below and evidenced by an electronic delivery receipt: If to CMD: White, Bear and Ankele Professional Corporation 1805 Shea Center Drive, Suite 100 Highlands Ranch, CO 80129 Attn: William P. Ankele, Esq. District Counsel If to the Town: Facsimile: (303) 858 -1801 with a copy to: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476 -7646 Facsimile: (970) 476 -7118 Town of Avon PO Box 975 Avon, CO 81620 Attn: John Dunn, Town Attorney Facsimile: (970) 845 -7708 Any address or telecopy number fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this SeetieaRgrqgrqp h. 24-2. 2 Governmental Immunity. Nothing contained herein waives or is intended to waive or abrogate any protections that may be applicable to CMD or the Town under the Governmental Immunity Act, Section 24 -10 -101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by any law or the applicable provisions of the Colorado Constitution. 2-2-.23. Modification. This Agreement may be modified, amended, changed or terminated, except as otherwise provided herein, in whole or in part, only by an agreement in writing duly authorized and executed by each the Parties. No consent of any third party shall be required for the negotiation and execution of any such agreement. 23:24. Assignment. Neither this Agreement nor the rights and obligations set forth herein may be assigned by either party without the express written consent of the other. Any attempt to assign the same in the absence of such consent shall be null, void and of no force or effect. 24.25. Entire Agreement. This Agreement_ contains the entire agreement between the Parties with respect to the matters set forth herein, and no statement, promise or inducement that is not contained in this Agreement shall be valid or binding. 2 -5-26_ Severability. If any portion of this Agreement is declared void or unenforceable by a court of competent jurisdiction, such portion shall be deemed severed from this Agreement, and the balance of this Agreement shall remain in effect. 2-27. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue in any action brought hereunder shall lie exclusively with the District Court in and for Eagle County, Colorado. I 228. Counterparts /Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which when taken together will constitute one and the same instrument. Facsimile signatures of any Party shall be considered originals for all purposes hereunder. [remainder of page intentionally blank: signature page follows] 10 above. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written CONFLUENCE METROPOLITAN DISTRICT Eagle County, Colorado By: Name: Title: TOWN OF AVON, STATE OF COLORADO By: Name: Title: EXHIBIT A TO INT-Eu G03v'ER N4L-N r n r FACILITIES OPERATION AGREEMENT Real Property Description [INSERT PROPERTY DESCRIPTION] 12 Document comparison done by DeltaView on Wednesday, March 08, 2006 11:10:06 Input: Insertion file:HGA1 4553\1 Talton revisions to Dunn's 2-21 Document 1 Intergovernmental Agreement with PlF.doc Document 2 file -HGA1 4553\1 \Dalton-D u n n 3-8-06 facilities agmt Inserted cell clean.doc Rendering set Matt's Legend: Insertion Deleti-an Moved ffem Moved to Format change 94 Inserted cell 0 Deleted cell 0 Moved cell 0 Split/Merged cell 203 Padding cell I Statistics: Count Insertions 109 Deletions 94 Moved from 0 Moved to 0 Format changed 0 Total chaNes 203 FACILITIES OPERATION AGREEMENT THIS FACILITIES OPERATION AGREEMENT (this "Agreement ") is entered into as of the day of , 2006, by and between CONFLUENCE METROPOLITAN DISTRICT (the "CMD "), a quasi - municipal and a political subdivision of the State of Colorado (the "State "), and the TOWN OF AVON (the "Town "), a municipal corporation and a political subdivision of the State. CMD and the Town are sometimes herein referred to collectively herein as the "Parties." RECITALS WHEREAS, CMD was organized as a special district under the Special District Act, Section 32- 1 -101 et seq., C.R.S, for the purposes of providing public infrastructure and services within and without its boundaries and the boundaries of the Avon Station Metropolitan District (together, CMD and the Avon Station Metropolitan District are referred to herein as the "Districts ") ; WHEREAS, the property within the Districts lies wholly within the boundaries of the Town, in the County of Eagle, Colorado; WHEREAS, the terms of that certain Consolidated Service Plan for CMD, approved by the Town on September 22, 1998, as amended from time to time (the "Service Plan "), contemplates and authorizes the financing by the Districts, and the construction, operation, maintenance and management by CMD of certain public improvements, including without limitation the construction, operation and maintenance of (a) a gondola from a parcel of real property which has been annexed to the Town, as more particularly described in Exhibit A attached hereto (the "Confluence "), to the area cornmonly known as the Tarnes /Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola "), and (b) a public plaza and related public restrooms (the "Public Plaza and Public Restrooms "), in each case, in accordance with and as further described in an Amended and Restated Development Agreement (the "Development Agreement ") entered into by and between the Town and East West Partners, Inc., a Colorado Corporation, and dated , 2006, and the PUD Development Plan (the "Development Plan ") recorded at Reception No. in the Office of the Clerk and Recorder of Eagle County, Colorado (collectively, the "Designated Public Improvements "); NOW, THEREFORE, in consideration of the obligations and undertakings set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Construction of Designated Public Improvements — Condition Precedent. The Parties acknowledge and agree that terms and conditions, and the rights and obligations set forth herein shall not be effective unless and until the Commencement Condition has been satisfied as defined and described in Paragraph 5., below. 2. Gondola Operations. CMD shall retain ownership of the Gondola. A. The public shall enjoy a perpetual easement of use and enjoyment of the Gondola, subject to the reasonable regulations of CMD acceptable to the Town staff. During the term of this Agreement, no fee or other charge for use of the Gondola shall be assessed by CMD or any party managing the Gondola on behalf of CMD although, with the agreement of the Town, fees may be charged during times outside of the periods of operation described in Paragraph 2.13, below. Notwithstanding the foregoing, the Parties acknowledge and agree that the life span of a Gondola is anticipated to be 20 -30 years, and that future replacement of these improvements would be necessary to maintain its existence. In the event the Gondola is retired and not replaced, the Town's obligations herein with respect to the Gondola, and the easement to the public provided herein with respect to the Gondola, shall each automatically terminate and be of no further force or effect. CMD shall not close, restrict or limit the Gondola to public use without the prior written authorization of the Town except as described immediately above regarding the life -span of the Gondola, as described in Paragraph 2.13 below regarding operating dates and time, or otherwise if the continued operation of the Gondola would, in the reasonable judgment of CMD, constitute a hazard to the public. In any event of closure, restriction or limitation due to hazards to the public, CMD shall either reopen the Gondola to public use as agreed by the Town and CMD or at the earliest time that the Gondola may, in the reasonable j udgment of CMD, be used safely. B. CMD shall be responsible for the operation and maintenance of the Gondola, although the Town acknowledges and accepts that the Gondola may also be governed by a management agreement pursuant to which The Vail Corporation or an associated entity under the control of the owner of Beaver Creek Resort (the "Vail Entity ") shall manage and operate the Gondola on behalf of CMD. In either case, the hours of operation shall be as agreed upon by CMD and the Town staff from time to time, but unless otherwise agreed shall be not less than from December 20 through April 1 of each ski season, with operations beginning at the same time each day as the beginning of operations of the Lower Beaver Creek Express and ending one hour after the close of operations of both the Larkspur Bowl Lift and the Strawberry Park Lift. Notwithstanding the forgoing, the Parties acknowledge and agree that such operations shall be subject to closure due to mechanical or electrical failure, emergency or lift accident, general maintenance, weather conditions, snowmaking priorities, and any force majeure event. The Gondola shall be operated, maintained and used in a careful, safe, and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, board, or body, now in force or hereafter to become effective. C. In consideration of the performance by CMD of its obligations under this Paragraph 2. subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50 %) of CMD's operating and maintenance budget for the Gondola, not to exceed $240,000, due annually on or before November I in each year during which this Agreement is in effect, which amount shall be increased or decreased annually, beginning January 1, 2006, equal to the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver- Boulder- Greeley metropolitan areas as published semi - annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. 3. Public Plaza and Public Restrooms. CMD shall retain ownership of tile Public Plaza and Public Restrooms. A. The public shall enjoy a perpetual easement of use and enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations of CMD acceptable to the Town staff. During the term of this Agreement, no fee or other charge for use of the Public Plaza and Public Restrooms shall be assessed by CMD. CMD shall not close or restrict or limit the Public Plaza and Public Restrooms to public use, except as otherwise provided in this Paragraph below, without the prior written authorization of the Town. Notwithstanding the foregoing, such may be limited or restricted (i) for regularly scheduled maintenance and repairs, (ii) in accordance with the hours of operation described in subparagraph 3.13, below, (iii) if the continued operation of the Public Plaza and Public Restrooms would, in the reasonable judgment of CMD, constitute a hazard to the public, or (iv) for the conduct of private or public events, as discussed in subparagraph 3.D below. In the event of such restriction or limitation due to hazards to the public, CMD shall reopen the Public Plaza and Public Restrooms to public use as agreed by the Town and CMD or at the earliest time that the Public Plaza and Public Restrooms may, in the reasonable judgment of CMD, be used safely. B. CMD shall be responsible for the operation and maintenance of the Public Plaza and Public Restrooms. The hours of operation shall be as agreed upon by CMD and the Town from time to time, but unless otherwise agreed shall be not less than three hundred and sixty -five days a year and during the hours of operation for other similarly situated Town -owned public restroom facilities. The Public Plaza and Public Restrooms shall be operated, maintained and used in a careful, safe, sanitary and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, board, or body, now in force or hereafter to become effective. Maintenance of the Public Plaza shall include, but not be limited to keeping the same free from snow, ice, debris, other hazards to the traveling public. C. In consideration of the performance by CMD of its obligations under this Paragraph 3., subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50 %) of CMD's operating and maintenance budget for the Public Plaza and Restrooms, not to exceed $40,000, due annually on or before November 1 in each year during which this Agreement is in effect, which amount shall be increased or decreased annually, beginning January 1, 2006, equal to the cumulative percentage change from the prior year average consumer price index for All Urban Consumers for the Denver - Boulder- Greeley metropolitan areas as published semi- annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. D. CMD and the Town shall cooperate jointly in the use of the Public Plaza and Public Restrooms throughout the year for the conduct of public events, art shows, craft fairs, concerts, and other uses. All such uses shall be subject to applicable Town permitting approvals. 4. Reduction in Payments. The not -to- exceed annual payments for Gondola operations and maintenance, as identified in Paragraph 2.0 hereof, and the not -to- exceed annual payment for Public Plaza and Restroom operations and maintenance, as identified in Paragraph 3.C. hereof, both as adjusted for inflation, (the "Payment Obligation ") shall be decreased pro- ratably, on a dollar for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into the Districts subsequent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subsequent to the effective date of this Agreement. The reduction shall be calculated based on the sun total of the amounts arrived at in subparagraphs 4.A, B, C, below, and at such time as the revenues received by operation of those subparagraphs results in the reduction of the Payment Obligation to zero, Town shall be relieved permanently of the Payment Obligation. A. Operating mill rate for the Districts multiplied by the assessed valuation for the year being levied for each included property not within the Districts as of the date of this Agreement. B. Operating mill rate for the Districts multiplied by the assessed valuation of any new development that has occurred on Lot B subsequent to the date of this agreement. C. Any additional amounts of operating revenues received from Mountain Vista Metropolitan District pursuant to additional development occurring within Mountain Vista Metropolitan District subsequent to the date of this Agreement. D. The Payment Obligation shall also be decreased pro- ratably, on a dollar for dollar basis, to reflect any amounts received or otherwise due to be received subsequent to the date of this Agreement, through the contribution by entities other than the Town and CMD by agreement or otherwise, supporting Gondola and /or the Public Plaza and Restrooms operations and maintenance costs. In the event that any revenues described in this subparagraph 4.1), when taken together with other revenues received under subparagraphs 4.A, B, and C, results in the reduction of the Payment Obligation to zero, Town shall be relieved of the Payment Obligation, but only to the extent and so long as such additional operating revenues remain in place and their receipt is required to reduce the Payment Obligation to zero. 5. Commencement Condition. The Payment Obligation shall commence upon the later of (a) November 1, 2007 or (b) November I of the year in which (i) the operations of the Gondola and Public Plaza and Public Restrooms start and (ii) a temporary certificate of occupancy is issued by the Town for the Hotel (as defined in the Development Agreement). The Town may, within its discretion, partially fund operations of the Gondola and /or the Public Plaza and Public Restrooms prior to satisfaction of the foregoing commencement conditions upon terms agreed to between the Town and CMD. 6. Budgeting Procedures. No later than September 15 of each year in which the Payment Obligation is in effect, CMD will develop a good faith, detailed plan for operations and estimated budget for the anticipated operating and maintenance expenses with respect to the Designated Public Improvements as described above for the coming operating year (November 1 — October 31) and provide such plan and budget to the Town, together with a reconciliation and budget comparison of the operations and maintenance expenses for the immediately preceding operating year. The Town will have the right to review and comment on such operating plan and budget. During the thirty (30) day period following such delivery of the plan and budget, the Town and CMD will work together and use their best efforts to agree upon a plan and budget. Until a mutually agreed upon good faith plan and budget has been developed, CMD shall continue to operate and maintain the Designated Public Improvements and the Town shall continue to pay its percentage of such costs in accordance with the previously approved budget, adjusted as described in Paragraphs 2.C, 3.C, and 4. above, until a new budget is agreed upon. In the event CMD determines that the approved plan and budget is insufficient to sustain the required standard of operation and maintenance required hereunder, CMD shall notify the Town of the same, and the Town and CMD shall work together and use their best efforts to agree upon a revised or restated plan and budget. 7. No Debt or Pecuniary Liability No Multiple- Fiscal Year Obligation. All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple -fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing CMD and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State to be subject to annual appropriation without regard to approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this - Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 8. Public hnprovement Fees. If the Town, in its budget process for any year, fails to appropriate the amounts to fully fund and pay the Payment Obligation, the Town shall use its best efforts to provide CMD with written notice of such failure by January 1 of the budget year in question; provided that the failure to provide such notice shall not be a breach of this Agreement and CMD acknowledges and agrees that it bears the responsibility to monitor the Town's annual public budget process. h1 the event of nonappropriation by the Town, the following agreements shall apply: A. The Parties acknowledge and agree that the owner /developer of the Confluence has recorded a covenant ( "PIF Covenant ") binding on the land requiring the collection of public improvement fees ( "PIF ") on all lodging rentals in the Confluence. Such PIFs shall be at the same rates and apply to the same transactions as the existing Town lodging or accommodation tax imposed under Chapter 3.28 of the Municipal Code ( "Town Lodging Tax "), and shall be payable at the same time and have the same exemptions and conditions as the Town Lodging Tax. Such PIFs shall be collected pursuant to the rules and procedures set forth in the PIF Covenant upon written notice to the Town from CMD that the Town has not appropriated all of the funds necessary to pay the Payment Obligation, or the Payment Obligation has been determined by a court of competent jurisdiction to be invalid. Any period of time during which the PIF is being collected shall be referred to herein as a "PIF Collection Period." Each such PIF Collection Period shall continue until the earlier of the collection in full of the Payment Obligation the Town failed to appropriate or was barred from collecting annually or in the aggregate, or the end of the year before the next succeeding budget year for which the Town gives CMD notice that it has appropriated the Payment Obligation for that budget year. B. ' During each PIF Collection Period, PIF revenue shall be collected by a collecting agent ( "PIF Collecting Agent ") appointed by CMD pursuant to the PIF Covenants, and the Parties acknowledge and agree that, so long as the duties of the PIF Collecting Agent are being performed to the reasonable satisfaction of CMD, CMD shall appoint the Town's Finance Director as PIF Collecting Agent as and when necessary. Any amounts of PIF revenue collected in excess of the unappropriated Payment Obligation, annually or in the aggregate, shall be paid to the Town by the PIF Collecting Agent within 10 business days of receipt. C. In consideration of CMD's agreement to operate and maintain the Gondola, the Public Plaza and Restrooms, and other public improvements in the Confluence, the Town will grant a Lodging Tax credit ( "Tax Credit ") to renters who are subject to and actually pay the PIF to the PIF Collecting Agent during the PIF Collection Period in accordance with the terms and conditions of this Agreement. In order to implement the Town's obligation under this Agreement with respect to the Tax Credit, Town Council will approve an ordinance amending its Municipal Code provisions regarding the Town Lodging Tax within 15 days of the effective date of this Agreement, to provide for and implement the Tax Credit substantially as follows: During each PIF Collection Period, each person or entity otherwise liable to the Town for Town Lodging Tax under the Municipal Code with respect to taxable transactions occurring within the Confluence will receive a Tax Credit against such Town Lodging Tax obligation in an amount equal to the amount of the PIF Revenues collected and received by the PIF Collecting Agent. Such Tax Credit will be automatic and will take effect immediately upon the applicable taxpayer's (as reflected on the taxpayer's periodic tax reports to the Town) remittance to and receipt by the PIF Collecting Agent of the PIF revenues; provided, however, that the transactions and payments supporting the Tax Credit for any given period will nevertheless be subject to audit by the Town to the same extent, for the same limitation periods and in the same manner as the items which are required to be reported on the taxpayer's return relating to the period in which the transaction occurs. If Town Council fails to adopt the ordinance contemplated in this subsection 8.C., CMD will be entitled in its sole discretion either to: (1) declare the failure of acondition precedent and terminate this Agreement; or (ii) extend the period for satisfaction of the foregoing contingency to a date certain set forth in a written notice of extension, not to exceed 60 days from the date of the extension notice. D. At the termination of each PIF Collection Period, if there are PIF revenues remaining on deposit with the CMD, CMD shall remit all remaining PIF revenues to the Town for the purpose of the Town satisfying its obligations under this Agreement or, if no further obligations exist at that time, for any lawful purpose. Upon reasonable notice to the other party, the Town will have the right at its own expense to audit CMD's books and records, and CMD will have the right at its own expense to audit the Town's books and records, related to their respective obligations under this Agreement. E. The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant to or otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time, so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek to reform this Agreement in a manner that will best effect their intent. If a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed to include in the budget proposals for each year sufficient funds to meet the party's obligations under this Agreement. 9. Books and Records. The Parties shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Representatives thereof shall be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. Reasonable best efforts shall be used to resolve any issues, discrepancies, or inaccuracies discovered in any review of any entity's books and records. 10. Legal Challenge to Agreement. In the event any agreement contained herein is ever the subject of a legal challenge, the Town shall diligently resist such challenges in cooperation with the CMD as set forth in Paragraph 15. 11. 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, including, without limitation, the timely payment of any monetary obligation hereunder, in each case, after the applicable cure period described below; provided that the failure on the part of the Town to make any annual appropriation described hereunder shall not be an event of default, and CMD shall have no claim against the Town for any loss, claim, expense or liability for obligations on the part of CMD to third parties, which CMD expected to pay upon receipt of Town Funds had they been appropriated, and to the extent allowed by law CMD shall indemnify and defend the Town against any and all claims, suits, expense or liabilities by or to such third parties arising as a result of such non appropriation. 12. Default by CMD. A "breach" or "default" by CMD shall be defined as CMD's failure to fulfill or perform any material obligation of CMD contained in this Agreement following the applicable cure period described below. 13. 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 Paragraph 20, and the defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non- defaulting 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. 14. Remedies. If any default under this Agreement is not cured as described above, the non - defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and /or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. 0 15. Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement, the Parties agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Parties otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. 16. Tern. This Agreement shall be effective upon execution hereof by the parties and shall represent the valid, binding and legally enforceable obligation of the parties hereto until this Agreement is terminated by mutual written agreement of the parties; provided that nothing herein shall affect the rights of the Town under Colorado law to initiate or pursue dissolution of the Districts or either of them. 17. No Relationship. This Agreement does not and shall not be construed as creating a joint venture, partnership, or employer - employee relationship between the Parties. It is agreed that the conduct and control of the operation and maintenance of the Designated Public Improvements, and the other various functions enumerated herein and authorized by this Agreement shall lie solely with CMD. 18. Insurance. A. CMD shall place and maintain at all times, at its sole expense, or shall cause The Vail Entity as CMD's agent with respect to the Gondola and the Gondola Interface Area (as defined below) to carry and maintain, a Commercial general liability ( "Primary ") insurance in an occurrence format in an amount of $1,000,000 per occurrence, with a deductible to be determined by the parties pursuant the annual plan and budget and to be paid upon each occurrence, including the following coverages; contractual liability, personal injury, broad form property damage, independent contractors and premises operations. CMD's Primary insurance shall provide primary insurance coverage in the event of any claims, suits, proceedings, actions, causes of action, responsibility, liability, demands, judgment and executions arising out of or related to its operation and management of the Gondola, the Gondola Interface Area and the Public Plaza and Restrooms, and covering bodily injury, death and damage to property of others. The Gondola Interface Area shall be defined as beginning at the point a person enters the queue and /or terminal area for embarking tine Gondola, or exits the terminal area for disembarking the Gondola. B. The Town shall be named as an additional insured on any policy carried by The Vail Entity and, if permitted under the terms of CMD's policies, on any policy carried by CMD. The Parties shall also cooperate with each other, and as appropriate the Vail Entity, as part of the annual plan and budget to review and analyze available insurance coverages in order to acquire liability insurance as described in subparagraph 18.A, above, naming each of the Town, CMD and as appropriate the Vail Entity as insured interests if such insurance may be acquired at reasonable rates and under reasonable conditions. C. Except as otherwise agreed, all insurance required of CMD (or The Vail Entity) pursuant to this Agreement shall include (1) a clause or endorsement denying the insurer any right of subrogation against the Town; and (ii) a provision requiring the insurer to give the Town thirty (30) days' notice prior to cancellation. D. Prior to this Agreement becoming effective the CMD (or the Vail Entity as appropriate) shall furnish the Town with certificates of insurance or other acceptable evidence that tine insurance described in this Paragraph 18 is in force. 19. Persons Interested Herein. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any person other than the Parties hereto, 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 shall be for the sole and exclusive benefit of the Parties. 20. Compliance with Law. CMD agrees to comply with all federal, state and local laws, rules and regulations which are now, or in the future may become applicable to the design, financing, construction, operation and maintenance of the Designated Public Improvements. 21. Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of the third business day after mailing by United States mail, certified, return receipt requested, postage prepaid, to the address set forth below; or as of 12:00 Noon on the immediately following business day after deposit with Federal Express or a similar overnight courier service, to the address set forth below; or as of the third business hour (a business hour being one of the hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient) after transmitting by telecopier to the telecopy number set forth below and evidenced by an electronic delivery receipt: If to CMD: White, Bear and Ankele Professional Corporation 1805 Shea Center Drive, Suite 100 Highlands Ranch, CO 80129 Attn: William P. Ankele, Esq. District Counsel Facsimile: (303) 858 -1801 with a copy to: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476 -7646 Facsimile: (970) 476 -7118 If to the Town: Town of Avon PO Box 975 Avon, CO 81620 Attn: John Dunn, Town Attorney Facsimile: (970) 845 -7708 Any address or telecopy number fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this Paragraph. 22. Governmental Immunity. Nothing contained herein waives or is intended to waive or abrogate any protections that may be applicable to CMD or the Town under the Governmental Immunity Act, Section 24 -10 -101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by any law or the applicable provisions of the Colorado Constitution. 23. Modification. This Agreement may be modified, amended, changed or terminated, except as otherwise provided herein, in whole or in part, only by an agreement in writing duly authorized and executed by each the Parties. No consent of any third party shall be required for the negotiation and execution of any such agreement. 24. Assignment. Neither this Agreement nor the rights and obligations set forth herein may be assigned by either party without the express written consent of the other. Any attempt to assign the same in the absence of such consent shall be null, void and of no force or effect. 25. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters set forth herein, and no statement, promise or inducement that is not contained in this Agreement shall be valid or binding. 26. Severability. If any portion of this Agreement is declared void or unenforceable by a court of competent jurisdiction, such portion shall be deemed severed from this Agreement, and the balance of this Agreement shall remain in effect. 27. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue in any action brought hereunder shall lie exclusively with the District Court in and for Eagle County, Colorado. 28. CounterpartslFacsirnile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which when taken together will constitute one and the same instrument. Facsimile signatures of any Party shall be considered originals for all purposes hereunder. [remainder of page intentionally blank, signature page follows] 9 above. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written CONFLUENCE METROPOLITAN DISTRICT Eagle County, Colorado By: — Name: Title: TOWN OF AVON, STATE OF COLORADO By: Name: Title: EXHIBIT A TO FACILITIES OPERATION AGREEMENT Real Property Description [INSERT PROPERTY DESCRIPTION] I JJ L:4 11179 To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engine# Date: March 9, 2006 Re: Resolution No. 06-13 — A Resolution Approving Subdivision Variance Increasing Allowable Road Grade from Eight and One Half Percent to Nine and One Half Percent on Traer Creek Run in the Proposed Preliminary Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado (Public Hearing) Summary: Traer Creek RP LLC has submitted an application for a Subdivision Variance and Subdivision Preliminary Plan approval for The Village (at Avon) Filing 4, A Subdivision of the Southwest 1/4 of the Northwest 1/4 of Section 8, Township 5 South, Range 81 West of the 6`" principal Meridian and a Resubdivision of Tract H, The Village (at Avon) Filing 3, all in the Town of Avon, Eagle County, Colorado. The proposed subdivision will create a right-of-way for the installation of a water service main and future public road, a site for a two million gallon potable water storage tank and drainage easements for natural stream flow and wetland mitigation. The requested variance is to allow an increase in maximum road grade to 9.5% from the 8.5% stipulated in The Village (at Avon) PUD Guide, for the portion of Nottingham Ranch Road (currently proposed as Traer Creek Run) located north of 1-70 and maintained by the Town of Avon. The PUD Guide allows a maximum grade of 10% for sections of this road not maintained by the Town of Avon. Resolution 06-13 approves the requested Subdivision Variance subject to specified conditions to maintain consistency with the Development Plan and The Village (at Avon) PUD Guide. We recommend approval of Resolution No. 06-13, A Resolution Approving Subdivision Variance Increasing Allowable Road Grade from Eight and One Half Percent to Nine and One Half Percent on Traer Creek Run in the Proposed Preliminary Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. Background: The Village (at Avon) PUD Guide includes the following: Design and Improvement Standards. Development within The Village (at Avon) shall comply with the Design and Improvement Standards contained within Section 16.40 of the Avon Municipal code in effect on June 1, 1998, with the following exceptions: (a) Roadway standard modifications for roads located north of Interstate Highway 70 not maintained by the Town of Avon (i) Minimum Driving Width: 22 feet (ii) Minimum Shoulder Width — Each Side: 2 foot paved (1) Shoulders shall not be required if curb, gutter and sidewalk is installed. (iii) Design Speed: 25 miles per hour (iv) Maximum Grade: 10% (v) Minimum Curve Radius: 75 feet (vi) Minimum Site Distance: 150 feet (vii) Cul -de -sacs may exceed one thousand feet (1,000') in length and serve not more than 280 residential units; provided however, that the portion of the cul- de -sac that is in excess of 1,000' shall not service commercial uses. (b) Roadway standard modifications for roads located south of Interstate Highway 70 and roads maintained by the Town of Avon: (i) Shoulders shall not be required if curb, gutter and sidewalk are installed. (ii) Median areas shall not require a sidewalk and, if curb and gutter is installed, shall not require a shoulder. (iii) Maximum Grade: 81/2% for Nottingham Ranch Road (this standard shall also apply to that portion of Nottingham Ranch Road located north of Interstate Highway 70 and maintained by the Town of Avon). All other roads 6%. Discussion: Variance: (a) Upon application by a subdivider, the Town Council may, at its discretion, grant variances from some or any requirements of the subdivision regulations based upon the following criteria: (1) Whether a strict, literal application of these subdivision regulations would result in an undue hardship to the subdivider due to the purpose, size, shape location and character of the proposed subdivision; Response: The Variance Application States: "Reasons for Request for Variance: We are requesting a variance from a maximum grade of 8 % for Local Streets to a maximum of 9.5 % for south facing portions of Traer Creek Run due to existing terrain conditions. The combination of the close I:AEngineering\Avon VillageA5.0 Filing 4\5.4 Preliminary Plan \Res 06 -13 MemO.Doe 2 proximity of Interstate 70 to the steeper portions of the terrain north of I -70 and the road being extended (Post Boulevard) passing beneath I -70 eliminates the possibility of grading Traer Creek Run at a maximum of 8 %. Contributing to the grade is the CDOT mandated location of the new roundabout at Swift Gulch Road and associated grades across the large diameter of the roundabout. This condition forced the beginning of Traer Creek Run closer to the steep hillsides. Additionally, an access into Planning Area N has been included off of Traer Creek Run with flattening of the intersection grades to 4% further hindering the ability to obtain the 8 % grade. The grades through the switchback meet Town Standards. This also contributed to the necessity of making portions of the road 9.5 %. The 9.5% also significantly reduces the amount of grading due to roadway cut slopes." 2) Whether the provisions of the regulations from which relief is requested are not materially important, in a planning sense, to the orderly controlled development of the tract in question; Response: The average grade of Traer Creek Run from the Swift Gulch Road Roundabout to the end of this project is less than 8 %. Consequently, it can possibly be designed and constructed, the full length of this project, at a grade of less than eight percent and in compliance with subdivision regulations and witkiout variance. The requested Variance will allow a design that is more sensitive to, and compatible with the road alignment and potential interaction with adjoining properties. 3) Whether the granting of the request might adversely affect the use of the land in the immediate area of the tract in question. Response: See (2) Above (b) A variance granted by the Town Council may contain limitations as to time or disposition or use of the tract in question in order to ensure that the stated purpose of the variance request is realized. Response: The following condition of approval is recommended to assure that the granting of the variance remains consistent with the intent of the Annexation and Development Agreement and the PUD Guide: (1) Traer Creek Run may be constructed to a maximum grade of 9.5 %, may exceed one thousand feet (1,000') in length and serve not more than 280 residential units; provided however, that the portion of Traer Creek Run that is in excess of 1,000' beyond the Swift Gulch Road Intersection shall not service commercial uses. (Traer Creek Run is hereby limited to serving Planning 1:AEngineering\Avon VillageA5.0 Filing 4 \5.4 Preliminary Plan\Res 06 -13 MemO.Doc Area N (Community Park), the Single-Family Lots and Planning Area RMF-3 as depleted on The Village (at Avon) PUD Development Plan.) Financial Implications: There are no financial implications associated with the granting or denial of this variance request. Recommendation: We recommend approval of Resolution No. 06-13, A Resolution Approving Subdivision Variance Increasing Allowable Road Grade from Eight and One Half Percent to Nine and One Half Percent on Traer Creek Run in the Proposed Preliminary Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. Alternatives: If following the Public Hearing, Town Council does not concur with the findings and actions contained in Resolution No. 06-13, we recommend they table action on Resolution No. 06-13 until the next regular council meeting and provide specific findings and actions for incorporation into an Amended Resolution for consideration at the next regular meeting. Proposed Motion: I move to approve Resolution No. 06-13, A Resolution Approving Subdivision Variance Increasing Allowable Road Grade from Eight and One Half Percent to Nine and One Half Percent on Traer Creek Run in the Proposed Preliminary Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. Attachments: Attachment A — Resolution No. 06-13 Attachment B — Variance Application Attachment C - The Village (at Avon) Filing 4 - October 2005 Preliminary Plans Town Manager Comments: lAEngineering\Avon Village\5.0 Filing 4\5.4 Preliminary Plan\Res 06-13 Merno.Doc A-F7-AC,d*1(-'--1t,)-r P4 TOWN OF AVON RESOLUTION NO. 06-13 Series of 2006 A RESOLUTION APPROVING SUBDIVISION VARIANCE INCREASING ALLOWABLE ROAD GRADE FROM EIGHT AND ONE HALF PERCENT TO NINE AND ONE HALF PERCENT ON TRAER CREEK RUN IN THE PROPOSED PRELIMINARY PLAT FOR THE VILLAGE (AT AVON) FILING 4, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Traer Creek RP LLC, the owner of the applicable portion of The Village (at Avon) has applied for a Subdivision Variance and Preliminary Plan approval for The Village (at Avon) Filing 4, A Subdivision of the Southwest 1/4, Northwest 1/4, Section 8, Township 5 South, Range 81 West of the 6t" Principal Meridian and a Resubdivision of Tract H, The Village (at Avon) Filing 3, all in the Town of Avon, Eagle County Colorado, in accordance with Chapter 16.20 of the Avon Municipal Code; and WHEREAS, The Preliminary Plan is subject to the terms and conditions of the Annexation and Development Agreement dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, The Preliminary Plan is subject,to the tern-is and conditions of the P.U.D. Development / Sketch Plan dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, said Variance application is to allow an increase in the maximum road grade from 8.5% as stipulated in the Annexation and Development Agreement for that portion of Traer Creek Run (Nottingham Ranch Road) located north of Interstate Highway 70 and maintained by the Town of Avon, to 9.5%; and WHEREAS, The Town Council of the Town of Avon finds that the requested Variance complies with the following criteria: 1) A strict, literal application of the subdivision regulations would result in an undue hardship to the subdivider due to the purpose, size, shape location and character of the proposed subdivision; 2) The provisions of the regulations from which relief is requested are not materially important, in a planning sense, to the orderly controlled development of the tract in question; 3) The granting of the request will not adversely affect the use of the land in the immediate area of the tract in question; and WHEREAS, The Town has provided public notice in accordance with Section 16.20.070 to all owners within three hundred feet of The Village (at Avon) Filing 4 and posted notices of the time and date at which Town Council considered the subdivision variance application; and WHEREAS, The Town held a public hearing at which it received evidence and testimony concerning the Subdivision Variance, at the conclusion of which the Town Council considered such evidence and testimony. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the Proposed Subdivision Variance for The Village (at Avon) Filing 4 is in the best interest of the public health, safety and welfare, conforms to the Annexation and Development Agreement dated October 13, 1998, the terms of the P.U.D. Development / Sketch Plan dated October 13, 1998 and all subsequent amendments and modifications, and other applicable development laws, regulations and policies of the Town of Avon and hereby approves the same subject to: 1. Traer Creek Run may be constructed to a maximum grade of 9.5 %, may exceed one thousand feet (1,000') in length and serve not more than 280 residential units; provided however, that the portion of Traer Creek Run that is in excess of 1,000' beyond the Swift Gulch Road Intersection shall not service commercial uses. (Traer Creek Run is hereby limited to serving Planning Area N (Community Park), the Single-Family Lots and Planning Area RMF-3 as depicted on The Village (at Avon) PUD Development Plan.) 2. Subsequent approval and recording of Final Subdivision Plat corresponding to Preliminary Subdivision Plan as submitted with this Variance Application. ADOPTED THIS DAY OF March 2006. ATTEST: Patty McKenny, Town Clerk K TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor October 17, 2005 Mr. Norman Wood, P.E. Town Engineer P.O. Box 975 Avon, CO 81620 Re: The Village (at Avon) Filing 4 — Traer Creek Run Subdivision Variance Application - Grades Dear Mr. Wood, iP'f'"["Ae-6 m C- /0 -" & V N VJ a00 11 On behalf of Traer Creek RP LLC, we respectfully request the following variance: Name of Development: The Village (at Avon) Filing 4 Location: North of I70 at Wm. J. Post Boulevard Interchange Size: 101.253 acres more or less Name and Address of Owner: Traer Creek RP LLC P.O. Box 640 Vail, CO 81658 List of Adjacent Owners and their Address: Included in Preliminary Plan Subdivision Application Provisions of Subdivision Regulations from which Variance is requested: Section 16.40.080 Reasons for Request for Variance: We are requesting a variance from a maximum grade of 8% for Local Streets to a maximum of 9.5% for south facing portions of Traer Creek Run due to existing terrain conditions. The combination of the close proximity of Interstate 70 to the steeper portions of the terrain north of I70 and the road being extended (Post Boulevard) passing beneath I70, eliminates the possibility of grading Traer Creek Run at a maximum of 8 %. Contributing to the grade is the CDOT mandated location of the new roundabout at Swift Gulch Road and the associated grades across the large diameter of the roundabout. This condition forced the beginning of Traer Creek Run closer to the steep hillsides. Additionally, an access into Planning Area N has been included off of Traer Creek Run with flattening of the intersection grades to 4% further hindering the ability to obtain the 8% grade. The grades through the switchback meet Town Standards. This also contributed to the necessity of making portions of the road 9.5 %. The 9.5 % also significantly reduces the amount of grading due to roadway cut slopes. TOWN COUNCIL ACTION Received this day of 2005 0 The within request for Variance (granted, denied) this day of 2005 for the following reasons: TOWN COUNCIL OF AVON By: Mayor ATTEST: Town Clerk Sincerel , Michael J. Super, PE Cc: Erik Peterson, Dan Leary � J� L:4 I I M To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: March 9, 2006 Re: Resolution No. 06 -14 — A Resolution Approving Preliminary Subdivision Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado (Public Hearing) Summary: Traer Creek RP LLC has submitted an application (Exhibit 2) for a Subdivision Variance and Subdivision Preliminary Plan (Exhibit 3) approval for The Village (at Avon) Filing 4, A Subdivision of the Southwest' /4 of the Northwest' /4 of Section 8, Township 5 South, Range 81 West of the 6th Principal Meridian and a Resubdivision of Tract H, The Village (at Avon) Filing 3, all in the Town of Avon, Eagle County, Colorado. The proposed subdivision will create a right -of -way for the installation of a water service main and future public road, a site for a two million gallon potable water storage tank and drainage easements for natural stream flow and wetland mitigation. The requested variance is to allow an increase in maximum road grade to 9.5% from the 8.5% stipulated in The Village (at Avon) PUD Guide, for the portion of Nottingham Ranch Road (currently proposed as Traer Creek Run) located north of 1 -70 and maintained by the Town of Avon. Action on the requested Variance was taken by the approval of Resolution No. 06 -13. Resolution 06 -14 (Exhibit 1) approves the proposed Preliminary Subdivision Plan subject to compliance with specified conditions prior to Final Subdivision Plat approval and subsequent issuance of any construction, grading or building permits. We recommend approval of Resolution No. 06 -14, A Resolution Approving Preliminary Subdivision Plan for the Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. This recommendation is contingent upon the prior approval of the requested Variance per Resolution No. 06 -13. If the requested Variance is not approved, we recommend action on Resolution No. 06 -14 be tabled pending receipt of revised plans conforming to the applicable regulations without benefit of the Variance. Discussion: The initial purpose of the proposed subdivision is to establish a road right -of -way and corresponding location for the installation of a water transmission main, correspond location for construction of a 2.0 million gallon water storage tank and an area for required wetlands mitigation. Construction associated with proposed subdivision includes constructing Traer Creek Run to proposed subgrade, placing a 16 foot wide aggregate surface on subgrade to provide temporary access to water storage tank site, installtion of a 16 -inch water transmission main to the tank site, construction of a 2.0 million gallon water storage tank, construction of storm drainage facilities and constructing wetlands mitigation area. The Preliminary Subdivision Plans were transmitted to the following for review & comment: 1) Eagle County Planning Department 2) Eagle County School District Superintendent 3) Ellie Caryl, ECO Trails Program Manager 4) Eagle River Water & Sanitation District 5) Eagle River Fire Protection District 6) Colorado Department of Transportation (CDOT) 7) Colorado Division of Wildlife 8) United States Forest Service We received two responses from Eagle River Fire Protection District and Eagle County Planning Department. Those responses are attached as Exhibits 4 and Exhibit 5 respectively. Subdivision (Preliminary Plan): The Town Council shall review the preliminary plan to determine whether the proposed subdivision conforms to applicable zoning and these subdivision regulations and whether it takes into consideration: (1) The Comprehensive Plan; (2) For Planned Unit Developments, the relevant Planned Unit Development Master Plan and the Comprehensive Plan, as reflected in the approval of that Planned Unit Development; (3) Physical suitability of lots proposed for subdivision; and (4) Compatibility with surrounding land uses. The Proposed Subdivision is located in Comprehensive Plan Districts 9 and 26. The Planning Principals for District 9 are: • Site buildings to maximize sun exposure, protect views, and break up building bulk. (Not Applicable - This is Zoning & Design Review Issue) • Protect view corridors, ridgelines, U.S. forest Service lands, and steep slopes from development. (Not Applicable - This is Zoning & Design Review Issue) • Encourage quality architecture to provide a positive gateway experience to the community. (Not Applicable - This is a Design Review Issue) • Provide east -west pedestrian and bicycle routes. (A condition can be added to the approval to require establishment of an east -west pedestrian and bicycle route 1:AEngineering\Avon VillageA5.0 Filing 4\5.4 Preliminary Plan \Res 06 -14 MemO.Doc prior to final plat approval. A more appropriate condition may be to require establishment of an east -west pedestrian and bicycle route to the east from Traer Creek Run in conjunction with site development.) Resolution Condition No. 10 • Encourage additional informal landscaping of properties to soften the visual impact of structures. (Not Applicable - This is a Design Review Issue) • Ensure that any neighborhood commercial uses are truly intended to service the neighborhood (Not Applicable - This is a Zoning Issue) • Create connections through the park and residential uses to the USFS lands surrounding the district. (The park (Planning Area N) is outside the boundaries of this proposed subdivision. A condition can be added to the approval to require the dedication of access to adjoining USFS lands through the applicable residential planning areas as a condition of final plat approval. A more appropriate condition may be to require dedication of access routes through these areas in conjunction with site development.) Resolution Condition No. 11 Planning Principles for District 26 are: • Encourage further public access arrangements including the preservation /acquisition of public space located adjacent to this area. (This condition does not seem to be applicable to this proposed subdivision) • Encourage sidewalks and pedestrian connections. (A condition can be added to the approval to require construction of a sidewalk along Traer Creek Run.) Resolution Condition No. 12 • Prevent significant alteration of natural landscape as well as ridgeline and steep slope development. This area should be highly sensitive to visual impacts of improvements, wildlife, and lighting. (Not Applicable - This is a Design Review Issue) Financial Implications: There are no financial implications associated with the granting or denial of this variance request. Recommendation: Approve of Resolution No. 06 -14, A Resolution Approving Preliminary Subdivision Plan for the Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. Alternatives: If the requested Variance was not approved, we recommend action on Resolution No. 06 -14 be tabled pending receipt of revised plans conforming to the applicable regulations without benefit of the Variance. Proposed Motion: I move to approve Resolution No. 06 -14, A Resolution Approving Preliminary Subdivision Plan for The Village (at Avon) Filing 4, Town of Avon, Eagle County, Colorado. 1:\Engineering\Avon Village \5.0 Filing 4 \5.4 Preliminary Plan \Res 06 -14 Memo.Doc Attachments: Exhibit 1 — Resolution No. 06 -14 Exhibit 2 — Preliminary Subdivision Plan Application Exhibit 3 - Preliminary Subdivision Plan (See Attachment C Memo Resolution 06 -13) Exhibit 4 - Response Letter Eagle River Fire Protection District Exhibit 5 - Response Letter Eagle County Planning Department Town Manager Comments: L\Engineeting \Avon VillageA5.0 Filing 4 \5.4 Preliminary Plan \Res 06 -14 MemO.Doc 4 t--,x Yf /&/ T" % TOWN OF AVON RESOLUTION NO. 06-14 Series of 2006 A RESOLUTION APPROVING PRELIMINARY SUBDIVISION PLAN FOR THE VILLAGE (AT AVON) FILING 4, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Traer Creek RP LLC, the owner of the applicable portion of The Village (at Avon) has applied for Preliminary Subdivision Plan approval for The Village (at Avon) Filing 4, A Subdivision of the Southwest 1/4, Northwest 1/4, Section 8, Township 5 South, Range 81 West of the 6t" Principal Meridian and a Resubdivision of Tract H, The Village (at Avon) Filing 3, all in the Town of Avon, Eagle County Colorado, in accordance with Chapter 16.20 of the Avon Municipal Code; and WHEREAS, The Preliminary Plan is subject to the terms and conditions of the Annexation and Development Agreement dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, The Preliminary Plan is subject to the terms and conditions of the P.U.D. Development / Sketch Plan dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, a Variance application to allow an increase in the maximum road grade from 8.5% as stipulated in the Annexation and Development Agreement for that portion of Traer Creek Run (Nottingham Ranch Road) located north of Interstate Highway 70 and maintained by the Town of Avon, to 9.5% was submitted in conjunction with said Preliminary Plan; and WHEREAS, said Variance was approved by Resolution No. 06 -13; and WHEREAS, The Town has provided public notice in accordance with Section 16.20.070 to all owners within three hundred feet of The Village (at Avon) Filing 4 and posted notices of the time and date at which Town Council considered the preliminary subdivision application; and WHEREAS, The Town held a public hearing at which it received evidence and testimony concerning the Preliminary Plan, at the conclusion of which the Town Council considered such evidence and testimony. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the Proposed Preliminary Subdivision Plan for The Village (at Avon) Filing 4 is in the best interest of the public health, safety and welfare, conforms to the Annexation and Development Agreement dated October 13, 1998, the terms of the P.U.D. Development / Sketch Plan dated October 13, 1998 and all subsequent amendments and modifications, and other applicable development laws, regulations and policies of the Town of Avon and hereby approves the same subject to compliance with the following conditions prior to Final Subdivision Plat approval and subsequent issuance of any construction, grading or building permits: 1. Evidence of approval of the final construction plans must be provided by the appropriate utilities, including water and sewer. 2. An approval letter from The Village (at Avon) Design Review Board must be submitted prior to issuance of any construction, grading and/or building permits for any improvements shown on The Village (at Avon) Filing 4, October 2005 Preliminary Plans. 3. All slopes shall be 2 : 1 or flatter or detailed plans and supporting geological and soils documentation shall be submitted for review and approval consideration prior to, or in conjunction with Final Plat submittal for review and approval. 4. Rip Rap Sizes and supporting documentation shall be submitted for review and approval with final construction plans prior to issuance of construction, grading and /or building permit. Written approval from Eagle River Water and Sanitation District for the final construction plans for the water main and water storage tank must be submitted prior to issuance of construction, grading and /or building permit. 6. Water main and fire hydrant plans must be approved in writing by Eagle River Fire Protection District prior to issuance of construction, grading and/or building permit. 7. Landscaping /revegetation plans and specifications prepared by professional landscape architect shall be submitted for review and approval prior to, or in conjunction with Final Plat submittal. 8. All electrical lines and other utilities shall be underground unless granted special review use approval for aboveground systems as required by Section 17.04.060(c) of the Avon Municipal Code. 9. Construction, grading and/or building permits may be subject to special inspection and review fees to be determined at the time of permit issuance. F 10. Establishment and dedication of an east -west pedestrian and bicycle route to the east from Traer Creek Run to US Forest Service Property in conjunction with development of Planning Area RMF -1. 11. Establish and dedicate public access ways to adjoining USFS lands through the applicable residential planning areas in the Final Plat review and approval process. 12. Include sidewalk along Traer Creek Run as a part of the final road construction plans and final plat approval. 13. Subdivision Improvements Agreement must be approved by the Town of Avon concurrently with Final Plat Approval and the corresponding security must be submitted to and accepted by the Town prior to recording of the Final Subdivision Plat. 14. Completion of technical corrections as identified by Town Staff. ADOPTED THIS DAY OF MARCH 2006. ATTEST: Patty McKenny, Town Clerk 3 TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor r HEART of the VALLEY C O L O R A D O 3 Applicant=E� RP Mailing Address:— � p�oX j� �b City• Uj� 1 L State: co zip: gl6s$ Phone #: c 9 70 - cM9 -G77(o Fax #:_ c� 7U 74f3 -�39c� Cell #: Owner of Property: - -rRAE R Y Mailing Address: , ► City: , , State: it Zip: Phone #: Fax #: , Cell #: Lot. Block: Subdivision: `t'l.� �/; )�� . �, . ,, �� F► ,,. i �f Project Street Address:. Project Name; e *Note: If the parcel has not previously been platted, please attach on a separate sheet a Meets & Bounds Description. Type of Subdivision: ❑ Minor Subdivision ❑ Condominium Subdivision LPreliminary lex Subdivision i Land Subdivision ❑ Timeshare Subdivision at Approval Being Requested: ❑ Amended Final Plat tch Plan A Preliminary Plan Final Plat subdivsions other than Minor and Duplex Subdivisions are required to receive Plan approval prior to Final Plat. I (we) represent that all information provided to the Town of Avon in connection with this application as true and correct, that I (we) understand the Town of Avon regulations applicable to this project, and understand that incomplete submittals will delay application review. Owner designates Appli- cant as indicated to act as owner's rep esentative in all application submittal elated to this project. Applicant: M Orvner: (Print Name): ��j- (Print Name): lam- J__ Date: �'4 1� I Z d Date: — t d� Community Development, P.O. Box 975 Avon, CO 81620 (970)748 -4030 Fax (970)949 -5749 (rev. 12/27/01) Page 1 of M2 Lot: Block: Subdivision: Project Address: Project Name:,_ Vj - lop 1 �-� �N� Review Fee(s): All Applications: �`�` ❑ Four (4) sets of 24" x 36" plans ❑ Three (3) copies of the completed subdivision application form - submit separate applications for preliminary and final plats ❑ Fees Condominiums and Duplex Subdivisions: ❑ Three (3) copies of any applicable Master Declarations, Condo Declarations or Party Nall Agreements Recording Requirements: ❑ Two sets of mylars and Master Declarations, Condo Declarations or PartyWall Agreements which are fully executed and signed, including recording fees. Additional Requirements: Preliminary Plat Applications - 4 Units or more: ❑ Master List of all property owners within 300 feet with adequate legal descriptions provided by a title company ❑ Original Copy of Public Hearing Notice ❑ Stamped and addressed envelopes for all property owners within 300 feet - meter_ ed mail cannot be accepted Reviewed by: ❑ Complete ❑ Incomplete Date: This checklist is used to review subdivision applications for general completeness. We strongly recommend that you contact the Community Development Department prior to submittal to discuss specific submittal requirements for your project. Due to time constraints we can only accept complete applications. Help us avoid delays by giving us clear, complete plans and applications. If you have any questions, please call us at (970) 748 -4030. Community Development, P.O. Box 975 Avon, CO 81620 (970)748 -4030 Fax (970)949 -5749 (rev. 12/27/01) Page 2 of 2 XAI if T '� Memorandmi To: Eric Heidemann, Senior Planner, Town of Avon From: Carol Gill- Mulson, Deputy Chief, ERFPD Date: 12/28/2005 Re: Village at Avon, Filing 4, water tank access and road grades The above submittal was reviewed for fire department concerns with the following comments: - This submittal appears the same as the previous one dated 5 -6 -05. The road widths, grades, surface, and hydrant locations were acceptable on that submittal. I have attached a copy of the memo sent to Mike Sliper, Eng. at Alpine Engineering. Please contact me with any questions at 970 - 748 -4741. E Memorandum To: Mike Sliper, Engineer, Alpine Eng., Inc. From: Carol Gill- Mulson, Deputy Chief, ERFPD Date: 5/6/2005 Re: The Village at Avon, 2 MG Water Tank and Access Road The above project was reviewed for fire department concerns with flee following comments: - The proposed road dimensions, grade, and base are acceptable with the understanding that there will not be any structures built during this phase. It appears emergency response up this road will probably due to medical calls or wildland fire incidents. I also understand that the road will be improved when the area is developed and structures are built. - Indicated hydrant locations are adequate for water supply during wildland fire operations. If there are any other questions I can be reached at 970 -748 -4741. 1 COMMUNITY DEVELOPMENT DEPARTMENT (970) 328 -8730 FAX: (970) 328 -7185 Email: comdev @eaglecounty.us www.eaglecounty.us Town of Avon Community Development Attn: Eric Heideman P.O. Box 975 Avon, CO 81620 December 27, 2005 EAGLE COUNTY E'Al-11 al r Re: Referral for Preliminary Plan /Subdivision Variance transmittal for agency and department review Case: S- 1VW2005 -2 Village at Avon Filing 4. Dear Eric, Eagle County is in receipt of a referral regarding the Preliminary Plan and Subdivision Variance for the Village at Avon, Filing 4, Tracts A and B. The application is a proposal to subdivide a portion of Planning Areas G, Village at Avon PUD, including creating an access to a proposed 2- million gallon water tank. The request includes a variance request to allow the public roadway grade to increase from 8% to 9.5 %. Eagle County would ask that the following be considered during the review of this proposal: 1. Minimizing visibility of the road cut and the water tank are encouraged by Eagle County, as long as all life safety issues can be met. The newly- adopted Eagle County Comprehensive Plan encourages the protection of the visual quality of Eagle County through the use of colors that blend with the landscape and landscape screening. If the tank or portions of the road are visible from the public roadway or other properties, Eagle County requests that the water tank be screened from public view to the extent possible and painted a color that will blend with the adjacent land area. 2. The plans indicate existing wetlands on the site and substantial grading occurring adjacent to Nottingham Gulch. The Eagle County Comprehensive Plan encourages the protection of wetlands and riparian areas, as these areas are used by a variety of wildlife. Eagle County recommends protection of the wetlands on the site and encourages any disturbance that occurs to be restored to its natural state. Thank you for the opportunity to review and comment on this proposal. Should you have any questions, please don't hesitate to contact me at (970) 328 -8749. Sincerely, L 44-1 Allison Ochs, AICP 1" �` Planner 2 6 0 Nvr xc: file Eagle County Building, 500 Broadway, P.O. Box 179, Eagle, Colorado 81631 -0179 _I_LL= i1_ll'J To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Tambi Katieb, Community Development Directo s Date: March 8, 2006 Re: Resolution 06 -15, A Resolution Opposing Public Auction of U.S. Forest Service Lands in Eagle County to fund Federal Programs in Oregon, Washington and northern California Summary: As requested by the Town Manager, staff has prepared Resolution 06 -15 opposing the U.S. President's FY 2007 Budget Proposal for the U.S. Forest Service proposal to include a funding renewal of the Secure Rural Schools and Community Self- Determination Act of 2000 by sale to the highest bidder of parcels of land owned by the U.S. Forest Service. While only two parcels in Eagle County are targeted for this auction, the precedent this type of disposal creates represents a dangerous threat to the entire White River National Forest system and specifically to forest system lands that border the Town of Avon and are considered federally protected public lands. There is no rationale or methodology presented with the selection process, nor is there any nexus to the sale of forest service lands in Colorado to the theoretical need for revenue sharing proceeds from this sale to go only to 72 counties in Oregon, Washington and northern California. Attached to this memo is the press release of the U.S. Forest Service, the 2000 Secure Rural Schools and Community Self- Determination Act, and an overview map showing the selected auction parcels in Eagle County. The resolution specifically recommends that the Colorado Municipal League and Town citizens submit comments in opposition of this funding proposal by the March 30, 2006 public comment deadline. F: \Council\MEM0S\2006\Res 06 -15 USFS Auction Opposition.Doc Recommendation: Approve Resolution No. 06 -15, a resolution opposing public auction of U.S. Forest Service Lands in Eagle County to fund Federal Programs in Oregon, Washington and northern California Proposed Motion: I move to approve Resolution No. 06 -15, a resolution opposing public auction of U.S. Forest Service Lands in Eagle County to fund Federal Programs in Oregon, Washington and northern California Town Manager Comments: s r ZIL -�,gam, w Attachments: Exhibit A: Resolution 06 -15 Exhibit B: USDA Forest Service Press Release dated Februaty 28, 2006 Exhibit C: Secure Rural Schools and Community Self Determination Act of 2000 Exhibit D: Overview Map of proposed Eagle County auction parcels F: \Council\MEM0S\2006\Res 06 -15 USFS Auction Opposition.doc TOWN OF AVON, COLORADO RESOLUTION NO. 06-15 Series of 2006 A RESOLUTION OPPOSING PUBLIC AUCTION OF U.S. FOREST SERVICE LANDS IN EAGLE COUNTY TO FUND FEDERAL PROGRAMS WHEREAS, the US Presidents FY 2007 Budget Proposal for the Forest Service includes provisions for funding renewal of the Secure Rural Schools and Community Self Determination Act of 2000 (the "Act ") by sale to the highest bidder of designated parcels of land owned by the U.S. Forest Service; and WHEREAS, the Act's specific findings and purposes are limited to 72 counties in Oregon, Washington and northern California in which Federal timber sales have been restricted and the Federal government desires to share lost timber revenues from affected Federal lands in these specific areas back to the same counties; and WHEREAS, the current proposal for providing this funding relies solely on the sale of lands throughout the U.S. Forest Service system, including two parcels of land adjacent to the unincorporated Edwards area of Eagle County; and WHEREAS, there is no rational nexus between the sale and disposal of public lands in the White River National Forest System, including the two parcels of land proposed for auction, or any other parcel of existing forest service land in Eagle County including all federal lands adjacent to the Town of Avon; and WHEREAS, the one time auction of any existing federally protected public forest lands in the White River National Forest system will create a precedent that is - considered a legitimate threat to Avon, Eagle County, and the State of Colorado's quality of life and economy that is heavily reliant on the forest service public lands system for recreation, wildlife, water quality, and eco- tourism; and WHEREAS, the random disposal and sale of existing federal public lands in Eagle County is a serious and devastating threat to the ability of local governments to control and plan for orderly growth and public infrastructure necessary to serve growth which is contrary to the intent and stated findings of the Secure Rural Schools and Community Self- Determination Act of 2000 that this proposal intends to address in Oregon, Washington and California only; and WHEREAS, the proposal to sell federal lands to the highest bidder does not protect the right of local governments to control growth and impacts to public infrastructure, nor does it propose or include a right of first refusal to local governments in order to prevent unplanned growth or unnecessary impacts to already burdened public infrastructure, in the event that this proposal is passed; and WHEREAS, the Town Council of the Town of Avon opposes the proposal and any similar federal action that would result in the loss of open space, critical wildlife habitat, watershed recharge areas, scenic vistas, and existing White River Forest system public lands that are critical to our local economy and quality of life; and WHEREAS, the Town Council of the Town of Avon will vigorously challenge this proposal and hereby resolves to take all available actions as to prevent the sale of public forest service lands in Eagle County, including future proposals, that may be adjacent to the Town and our neighboring communities. NOW, THEREFORE, BE IT RESOLVED THAT, the Town Council of the Town of Avon, Colorado hereby states it opposition to this preposterous and dangerous proposal and urges the Colorado Municipal League and Town citizens to submit comments against this action. Adopted this 14th day of March, 2006 TOWN OF AVON, COLORADO Ronald C Wolfe, Mayor Attest: Patty McKenny, Town Clerk F:\ Council \Resolutions\2006\Resolution No. 06- 15.doc USDA Forest Service Release Release No. FS -0617 Contact: Press Office, (202) 205 -1134 USDA FOREST SERVICE ACCEPTING PUBLIC COMMENTS ON POTENTIAL LIST OF ELIGIBLE TRACTS OF LAND FOR SALE WASHINGTON, Feb. 28, 2006 — U.S. Department of Agriculture Forest Service today announced the start of a public comment period on a list of forest lands that would be available for sale as a proposal to provide funding to reauthorize the Secure Rural Schools and Community Self - Determination Act of 2000 (SRS). The list of available forest lands, published in today's Federal Register, comprises 304,370 acres of land within the 193 - million -acre National Forest System. This represents less than 0.2 of one percent of all Forest Service managed land. All of the parcels are considered isolated or inefficient to manage due to their location or other characteristics. Detailed maps of each parcel can now be found on the Forest Service website (www. fs. fed. us). The Forest Service will include in its proposal the opportunity for local and state government agencies and nonprofit land trust organizations the first right to buy these parcels at market value. Comments on the proposed list must be received by March 30 and may be sent by e -mail to SRS_Land_Sales @fs.fed.us. Written comments may be sent to: USDA Forest Service, SRS Comments, Lands 4S, 1400 Independence Ave., SW, Mailstop 1124, Washington, DC, 20250- 0003. Send faxed comments to (202) 205 -1604. The President's fiscal year 2007 budget includes a legislative proposal to reauthorize SRS for an additional five years and to allow the Forest Service to sell approximately 200,000 to 300,000 acres. The money received from the sales (up to $800 million) would provide funding to extend the SRS, which expires on Sept. 30, 2006. To date, states have received a total of approximately $1.9 billion ($2.5 billion including Bureau of Land Management payments) through the SRS legislation. EXHIBIT C PUBLIC LAW 106 - 393 —OCT. 30, 2000 Public Law 106 -393 106th Congress An Act 114 STAT. 1607 To restore stability and predictability to the annual payments made to States Oct. 30, 2000 and counties containing National Forest System lands and public domain lands [MR. 23891 managed by the Bureau of Land Management for use by the counties for the benefit of public schools, roads, and other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Secure Rural Schools and SECTION 1. SHORT TITLE; TABLE OF CONTENTS. Community Self - (a) SHORT TITLE. —This Act may be cited as the "Secure Rural Ate 000ion Schools and Community Self- Determination Act of 2000 ". 16 USC 500 note. (b) Table of Contents. —The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings and purposes. Sec. 3. Definitions. Sec. 4. Conforming amendment. TITLE I— SECURE PAYMENTS FOR STATES AND COUNTIES CONTAINING FEDERAL LANDS Sec. 101. Determination of full payment amount for eligible States and counties. Sec. 102. Payments to States from National Forest Service lands for use by coun- ties to benefit public education and transportation. Sec. 103. Payments to counties from Bureau of Land Management lands for use to benefit public safety, law enforcement, education, and other public pur- poses. TITLE II— SPECIAL PROJECTS ON FEDERAL LANDS Sec. 201. Definitions. Sec. 202. General limitation on use of project funds. Sec. 203. Submission of project proposals. Sec. 204. Evaluation and approval of projects by Secretary concerned. Sec. 205. Resource advisory committees. Sec. 206. Use of project funds. Sec. 207. Availability of project funds. Sec. 208. Termination of authority. TITLE III — COUNTY PROJECTS Sec. 301. Definitions. Sec. 302. Use of county funds. Sec. 303. Termination of authority. TITLE IV— MISCELLANEOUS PROVISIONS Sec. 401. Authorization of appropriations. Sec. 402. Treatment of funds and revenues. Sec. 403. Regulations. Sec. 404. Conforming amendments. TITLE V— MINERAL REVENUE PAYMENTS CLARIFICATION Sec. 501. Short title. Sec. 502. Findings. 114 STAT. 1608 PUBLIC LAW 106- 393 —OCT. 30, 2000 Sec. 503. Amendment of the Mineral Leasing Act. TITLE VI— COMMUNITY FOREST RESTORATION Sec. 601. Short title. Sec. 602. Findings. Sec. 603. Purposes. Sec. 604. Definitions. Sec. 605. Establishment of program. Sec. 606. Selection process. Sec. 607. Monitoring and evaluation. Sec. 608. Report. Sec. 609. Authorization of appropriations. 16 USC 500 note. SEC. 2. FINDINGS AND PURPOSES. (a) FINDINGS. —The Congress finds the following: (1) The National Forest System, which is managed by the United States Forest Service, was established in 1907 and has grown to include approximately 192,000,000 acres of Fed - eral lands. (2) The public domain lands known as reverted Oregon and California Railroad grant lands and the reconveyed Coos Bay Wagon Road grant lands, which are managed predomi- nantly by the Bureau of Land Management were returned to Federal ownership in 1916 and 1919 and now comprise approximately 2,600,000 acres of Federal lands. (3) Congress recognized that, by its decision to secure these lands in Federal ownership, the counties in which these lands are situated would be deprived of revenues they would other- wise receive if the lands were held in private ownership. (4) These same counties have expended public funds year after year to provide services, such as education, road construc- tion and maintenance, search and rescue, law enforcement, waste removal, and fire protection, that directly benefit these Federal lands and people who use these lands. (5) To accord a measure of compensation to the affected counties for the critical services they provide to both county residents and visitors to these Federal lands, Congress deter- mined that the Federal Government should share with these counties a portion of the revenues the United States receives from these Federal lands. (6) Congress enacted in 1908 and subsequently amended a law that requires that 25 percent of the revenues derived from National Forest System lands be paid to States for use by the counties in which the lands are situated for the benefit of public schools and roads. (7) Congress enacted in 1937 and subsequently amended a law that requires that 75 percent of the revenues derived from the revested and reconveyed grant lands be paid to the counties in which those lands are situated to be used as are other county funds, of which 50 percent is to be used as other county funds. (8) For several decades primarily due to the growth of the Federal timber sale program, counties dependent on and supportive of these Federal lands received and relied on increasing shares of these revenues to provide funding for schools and road maintenance. (9) In recent years, the principal source of these revenues, Federal timber sales, has been sharply curtailed and, as the volume of timber sold annually from most of the Federal lands PUBLIC LAW 106 - 393 —OCT. 30, 2000 114 STAT. 1609 has decreased precipitously, so too have the revenues shared with the affected counties. (10) This decline in shared revenues has affected edu- cational funding and road maintenance for many counties. (11) In the Omnibus Budget Reconciliation Act of 1993, Congress recognized this trend and ameliorated its adverse consequences by providing an alternative annual safety net payment to 72 counties in Oregon, Washington, and northern California in which Federal timber sales had been restricted or prohibited by administrative and judicial decisions to protect the northern spotted owl. (12) The authority for these particular safety net payments is expiring and no comparable authority has been granted for alternative payments to counties elsewhere in the United States that have suffered similar losses in shared revenues from the Federal lands and in the funding for schools and roads those revenues provide. (13) There is a need to stabilize education and road mainte- nance funding through predictable payments to the affected counties, job creation in those counties, and other opportunities associated with restoration, maintenance, and stewardship of Federal lands. (14) Both the Forest Service and the Bureau of Land Management face significant backlogs in infrastructure mainte- nance and ecosystem restoration that are difficult to address through annual appropriations. (15) There is a need to build new, and strengthen existing, relationships and to improve management of public lands and waters. (b) PURPOSES. —The purposes of this Act are as follows: (1) To stabilize payments to counties to provide funding for schools and roads that supplements other available funds. (2) To make additional investments in, and create addi- tional employment opportunities through, projects that improve the maintenance of existing infrastructure, implement steward - ship objectives that enhance forest ecosystems, and restore and improve land health and water quality. Such projects shall enjoy broad -based support with objectives that may include, but are not limited to— (A) road, trail, and infrastructure maintenance or obliteration; (B) soil productivity improvement; (C) improvements in forest ecosystem health; (D) watershed restoration and maintenance; (E) restoration, maintenance and improvement of wild- life and fish habitat; (F) control of noxious and exotic weeds; and (G) reestablishment of native species. (3) To improve cooperative relationships among the people that use and care for Federal lands and the agencies that manage these lands. SEC. 3. DEFINMONS. 16 USC 500 note. In this Act: (1) FEDERAL LANDS.—The term "Federal lands" means — (A) lands within the National Forest System, as defined in section 11(a) of the Forest and Rangeland Renewable 114 STAT. 1610 PUBLIC LAW 106- 393 —OCT. 30, 2000 Resources Planning Act of 1974 (16 U.S.C. 1609(a)) exclu- sive of the National Grasslands and land utilization projects designated as National Grasslands administered pursuant to the Act of July 22, 1937 (7 U.S.C. 1010- 1012); and (B) such portions of the revested Oregon and California Railroad and reconveyed Coos Bay Wagon Road grant lands as are or may hereafter come under the jurisdiction of the Department of the Interior, which have heretofore or may hereafter be classified as timberlands, and power - site lands valuable for timber, that shall be managed, except as provided in the former section 3 of the Act of August 28, 1937 (50 Stat. 875; 43 U.S.C. 1181c), for perma- nent forest production. (2) ELIGIBILITY PERIOD. —The term "eligibility period" means fiscal year 1986 through fiscal year 1999. (3) ELIGIBLE CouNTY. —The term "eligible county" means a county that received 50- percent payments for one or more fiscal years of the eligibility period or a county that received a portion of an eligible State's 25- percent payments for one or more fiscal years of the eligibility period. The term includes a county established after the date of the enactment of this Act so long as the county includes all or a portion of a county described in the preceding sentence. (4) ELIGIBLE STATE. —The term "eligible State" means a State that received 25- percent payments for one or more fiscal years of the eligibility period. (5) FULL PAYMENT AmouNT. —The term "full payment amount" means the amount calculated for each eligible State and eligible county under section 101. (6) 25- PERCENT PAYMENT. —The term "25- percent payment" means the payment to States required by the sixth paragraph under the heading of "FOREST SERVICE" in the Act of May 23, 1908 (35 Stat. 260; 16 U.S.C. 500), and section 13 of the Act of March 1, 1911 (36 Stat. 963; 16 U.S.C. 500). (7) 50- PERCENT PAYMENT. —The term "50- percent payment" means the payment that is the sum of the 50- percent share otherwise paid to a county pursuant to title II of the Act of August 28, 1937 (chapter 876; 50 Stat. 875; 43 U.S.C. 1181f), and the payment made to a county pursuant to the Act of May 24, 1939 (chapter 144; 53 Stat. 753; 43 U.S.C. 1181f- 1 et seq.). (8) SAFETY NET PAYMENTS. —The term "safety net pay- ments" means the special payment amounts paid to States and counties required by section 13982 or 13983 of the Omnibus Budget Reconciliation Act of 1993 (Public Law 103 -66; 16 U.S.C. 500 note; 43 U.S.C. 1181f note). SEC. 4. CONFORMING AMENDMENT. Section 6903(a)(1)(C) of title 31, United States Code, is amended by inserting after "(16 U.S.C. 500)" the following: "or the Secure Rural Schools and Community Self- Determination Act of 2000 ". PUBLIC LAW 106 - 393 —OCT. 30, 2000 114 STAT. 1611 TITLE I- SECURE PAYMENTS FOR STATES AND COUNTIES CONTAINING SEC. 101. DETERMINATION OF FULL PAYMENT AMOUNT FOR ELIGIBLE 16 USC 500 note. STATES AND COUNTIES. (a) CALCULATION REQUIRED. — (1) ELIGIBLE STATES.—For fiscal years 2001 through 2006, the Secretary of the Treasury shall calculate for each eligible State that received a 25- percent payment during the eligibility period an amount equal to the average of the three highest 25- percent payments and safety net payments made to that eligible State for the fiscal years of the eligibility period. (2) BUREAU OF LAND MANAGEMENT COUNTIES. —For fiscal years 2001 through 2006, the Secretary of the Treasury shall calculate for each eligible county that received a 50- percent payment during the eligibility period an amount equal to the average of the three highest 50- percent payments and safety net payments made to that eligible county for the fiscal years of the eligibility period. (b) ANNUAL ADJUSTMENT. —For each fiscal year in which pay- Bureau of Labor ments are required to be made to eligible States and eligible coun- Statistics, ties under this title, the Secretary of the Treasury shall adjust publication. the full payment amount for the previous fiscal year for each eligible State and eligible county to reflect 50 percent of the changes in the consumer price index for rural areas (as published in the Bureau of Labor Statistics) that occur after publication of that index for fiscal year 2000. SEC. 102. PAYMENTS TO STATES FROM NATIONAL FOREST SYSTEM 16 USC 500 note. LANDS FOR USE BY COUNTIES TO BENEFIT PUBLIC EDU- CATION AND TRANSPORTATION. (a) PAYMENT AMOUNTS. —The Secretary of the Treasury shall pay an eligible State the sum of the amounts elected under sub- section (b) by each eligible county for either— (1) the 25- percent payment under the Act of May '23, 1908 (16 U.S.C. 500), and section 13 of the Act of March 1, 1911 (16 U.S.C. 500); or (2) the full payment amount in place of the 25- percent payment. (b) ELECTION TO RECEIVE PAYMENT AMOUNT.— (1) ELECTION; SUBMISSION OF RESULTS. —The election to receive either the full payment amount or the 25- percent pay - ment shall be made at the discretion of each affected county and transmitted to the Secretary by the Governor of a State. (2) DURATION OF ELECTION. —A county election to receive the 25- percent payment shall be effective for two fiscal years. When a county elects to receive the full payment amount, such election shall be effective for all the subsequent fiscal years through fiscal year 2006. (3) SOURCE OF PAYMENT AMOUNTS. —The payment to an eligible State under this section for a fiscal year shall be derived from any revenues, fees, penalties, or miscellaneous receipts, exclusive of deposits to any relevant trust fund, or special accounts, received by the Federal Government from activities 114 STAT. 1612 PUBLIC LAW 106 - 393 —OCT. 30, 2000 Notification. Deadline. by the Forest Service on the Federal lands described in section 3(1)(A) and to the extent of any shortfall, out of any funds in the Treasury not otherwise appropriated. (c) DISTRIBUTION AND EXPENDITURE OF PAYMENTS. — (1) DISTRIBUTION METHOD. —A State that receives a pay- ment under subsection (a) shall distribute the payment among all eligible counties in the State in accordance with the Act of May 23, 1908 (16 U.S.C. 500), and section 13 of the Act of March 1, 1911 (36 Stat. 963; 16 U.S.C. 500). (2) EXPENDITURE PURPOSES.— Subject to subsection (d), pay- ments received by a State under subsection (a) and distributed to eligible counties shall be expended as required by the laws referred to in paragraph (1). (d) EXPENDITURE RULES FOR ELIGIBLE COUNTIES. — (1) ALLOCATIONS. — (A) USE OF PORTION IN SAME MANNER AS 25- PERCENT PAYMENTS. —If an eligible county elects to receive its share of the full payment amount, not less than 80 percent, but not more than 85 percent, of the funds shall be expended in the same manner in which the 25- percent payments are required to be expended. (B) ELECTION AS TO USE OF BALANCE. —An eligible county shall elect to do one or more of the following with the balance of the funds not expended pursuant to subpara- graph (A): (i) Reserve the balance for projects in accordance with title II. (ii) Reserve the balance for projects in accordance with title III. (iii) Return the balance to the General Treasury in accordance with section 402(b). (2) DISTRIBUTION OF FUNDS. — (A) TREATMENT OF TITLE II FUNDS.—Funds reserved by an eligible county under paragraph (1)(13)(i) shall be deposited in a special account in the Treasury of the United States and shall be available for expenditure by the Sec- retary of Agriculture, without further appropriation, and shall remain available until expended in accordance with title II. (B) TREATMENT OF TITLE III FUNDS. —Funds reserved by an eligible county under paragraph (1)(13)(ii) shall be available for expenditure by the county and shall remain available, until expended, in accordance with title III. (3) ELECTION.— (A) IN GENERAL. —An eligible county shall notify the Secretary of Agriculture of its election under this subsection not later than September 30 of each fiscal year. If the eligible county fails to make an election by that date, the county is deemed to have elected to expend 85 percent of the funds to be received under this section in the same manner in which the 25- percent payments are required to be expended, and shall remit the balance to the Treasury of the United States in accordance with section 402(b). (B) COUNTIES WITH MINOR DISTRIBUTIONS.—Notwith- standing any adjustment made pursuant to section 101(b) in the case of each eligible county to which less than $100,000 is distributed for any fiscal year pursuant to PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1613 subsection (c)(1), the eligible county may elect to expend all such funds in accordance with subsection (c)(2). (e) TIME FOR PAYMENT.—The payment to an eligible State under this section for a fiscal year shall be made as soon as practicable after the end of that fiscal year. SEC. 103. PAYMENTS TO COUNTIES FROM BUREAU OF LAND MANAGE- 16 USC 500 note. MENT LANDS FOR USE TO BENEFIT PUBLIC SAFETY, LAW ENFORCEMENT, EDUCATION, AND OTHER PUBLIC PUR- POSES. (a) PAYMENT. —The Secretary of the Treasury shall pay an eligible county either — (1) the 50- percent payment under the Act of August 28, 1937 (43 U.S.C. 1181f), or the Act of May 24, 1939 (43 U.S.C. 1181f -1) as appropriate; or (2) the full payment amount in place of the 50- percent payment. (b) ELECTION TO RECEIVE FULL PAYMENT AMOUNT. — (1) ELECTION; DURATION. —The election to receive the full payment amount shall be made at the discretion of the county. Once the election is made, it shall be effective for the fiscal year in which the election is made and all subsequent fiscal years through fiscal year 2006. (2) SOURCE OF PAYMENT AMOUNTS. —The payment to an eligible county under this section for a fiscal year shall be derived from any revenues, fees, penalties, or miscellaneous receipts, exclusive of deposits to any relevant trust fund, or permanent operating funds, received by the Federal Govern- ment from activities by the Bureau of Land Management on the Federal lands described in section 3(1)(B) and to the extent of any shortfall, out of any funds in the Treasury not otherwise appropriated. (c) EXPENDITURE RULES FOR ELIGIBLE COUNTIES. — (1) ALLOCATIONS.— (A) USE OF PORTION IN SAME MANNER AS 50- PERCENT PAYMENTS. —Of the funds to be paid to an eligible county pursuant to subsection (a)(2), not less than 80 percent, but not more than 85 percent, of the funds distributed to the eligible county shall be expended in the same manner in which the 50- percent payments are required to be expended. (B) ELECTION AS TO USE OF BALANCE. —An eligible county shall elect to do one or more of the following with the balance of the funds not expended pursuant to subpara- graph (A): W Reserve the balance for projects in accordance with title II. (ii) Reserve the balance for projects in accordance with title III. (iii) Return the balance to the General Treasury in accordance with section 402(b). (2) DISTRIBUTION OF FUNDS. — (A) TREATMENT OF TITLE II FUNDS.—Funds reserved by an eligible county under paragraph (1)(B)(i) shall be deposited in a special account in the Treasury of the United States and shall be available for expenditure by the Sec- retary of the Interior, without further appropriation, and 114 STAT. 1614 PUBLIC LAW 106 - 393 —OCT. 30, 2000 shall remain available until expended in accordance with title II. (B) TREATMENT OF TITLE III FUNDS.—Funds reserved by an eligible county under paragraph (1)(B)(ii) shall be available for expenditure by the county and shall remain available, until expended, in accordance with title III. Notification. (3) ELECTION. —An eligible county shall notify the Secretary Deadline. of the Interior of its election under this subsection not later than September 30 of each fiscal year. If the eligible county fails to make an election by that date, the county is deemed to have elected to expend 85 percent of the funds received under subsection (a)(2) in the same manner in which the 50- percent payments are required to be expended and shall remit the balance to the Treasury of the United States in accordance with section 402(b). (d) TIME FOR PAYMENT. —The payment to an eligible county under this section for a fiscal year shall be made as soon as practicable after the end of that fiscal year. TITLE II- SPECIAL PROJECTS ON FEDERAL LANDS 16 USC 500 note. SEC. 201. DEFINITIONS. In this title: (1) PARTICIPATING couNTY.—The term "participating county" means an eligible county that elects under section 102(d)(1)(B)(i) or 103(c)(1)(B)(i) to expend a portion of the Fed- eral funds received under section 102 or 103 in accordance with this title. (2) PROJECT FUNDS.—The term "project funds" means all funds an eligible county elects under sections 102(d)(1)(B)(i) and 103(c)(1)(B)(i) to reserve for expenditure in accordance with this title. (3) RESOURCE ADVISORY COMMITTEE.—The term "resource advisory committee" means an advisory committee established by the Secretary concerned under section 205, or determined by the Secretary concerned to meet the requirements of section 205. (4) RESOURCE MANAGEMENT PLAN. --The term "resource management plan" means a land use plan prepared by the Bureau of Land Management for units of the Federal lands described in - section - 3(1)(B)-- pursuant __to _ section_ 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712) or a land and resource management plan prepared by the Forest Service for units of the National Forest System pursuant to section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604). (5) SECRETARY CONCERNED.—The term "Secretary con- cerned" means— (A) the Secretary of Agriculture or the designee of the Secretary of Agriculture with respect to the Federal lands described in section 3(1)(A); and (B) the Secretary of the Interior or the designee of the Secretary of the Interior with respect to the Federal lands described in section 3(1)(B). PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1615 SEC. 202. GENERAL. LIMITATION ON USE OF PROJECT FUNDS. 16 USC 500 note. Project funds shall be expended solely on projects that meet the requirements of this title. Project funds may be used by the Secretary concerned for the purpose of entering into and imple- menting cooperative agreements with willing Federal agencies, State and local governments, private and nonprofit entities, and landowners for protection, restoration and enhancement of fish and wildlife habitat, and other resource objectives consistent with the purposes of this title on Federal land and on non - Federal land where projects would benefit these resources on Federal land. SEC. 203. SUBMISSION OF PROJECT PROPOSALS. 16 USC 500 note. (a) SUBMISSION OF PROJECT PROPOSALS TO SECRETARY CON- CERNED.— (1) PROJECTS FUNDED USING PROJECT FUNDS. —Not later Deadline. than September 30 for fiscal year 2001, and each September 30 thereafter for each succeeding fiscal year through fiscal year 2006, each resource advisory committee shall submit to the Secretary concerned a description of any projects that the resource advisory committee proposes the Secretary undertake using any project funds reserved by eligible counties in the area in which the resource advisory committee has geographic jurisdiction. (2) PROJECTS FUNDED USING OTHER FUNDS. —A resource advisory committee may submit to the Secretary concerned a description of any projects that the committee proposes the Secretary undertake using funds from State or local govern- ments, or from the private sector, other than project funds and funds appropriated and otherwise available to do similar work. (3) JOINT PROJECTS.—Participating counties or other per- sons may propose to pool project funds or other funds, described in paragraph (2), and jointly propose a project or group of projects to a resource advisory committee established under section 205. (b) REQUIRED DESCRIPTION OF PROJECTS. —In submitting pro- posed projects to the Secretary concerned under subsection (a), a resource advisory committee shall include in the description of each proposed project the following information: (1) The purpose of the project and a description of how the project will meet the purposes of this Act. (2) The anticipated duration of the project. (3) The anticipated cost of the project. (4) The proposed source of funding for the project, whether project funds or other funds. (5) Expected outcomes, including how the project will meet or exceed desired ecological conditions, maintenance objectives, or stewardship objectives, as well as an estimation of the amount of any timber, forage, and other commodities and other economic activity, including jobs generated, if any, anticipated as part of the project. (6) A detailed monitoring plan, including funding needs and sources, that tracks and identifies the positive or negative impacts of the project, implementation, and provides for valida- tion monitoring. The monitoring plan shall include an assess- ment of the following: Whether or not the project met or 114 STAT. 1616 PUBLIC LAW 106 - 393 —OCT. 30, 2000 exceeded desired ecological conditions; created local employ- ment or training opportunities, including summer youth jobs programs such as the Youth Conservation Corps where appro- priate; and whether the project improved the use of, or added value to, any products removed from lands consistent with the purposes of this Act. (7) An assessment that the project is to be in the public interest. (c) AUTHORIZED PROJECTS.- Projects proposed under subsection (a) shall be consistent with section 2(b). 16 USC 500 note. SEC. 204. EVALUATION AND APPROVAL OF PROJECTS BY SECRETARY CONCERNED. (a) CONDITIONS FOR APPROVAL OF PROPOSED PROJECT. —The Secretary concerned may make a decision to approve a project submitted by a resource advisory committee under section 203 only if the proposed project satisfies each of the following conditions: (1) The project complies with all applicable Federal laws and regulations. (2) The project is consistent with the applicable resource management plan and with any watershed or subsequent plan developed pursuant to the resource management plan and approved by the Secretary concerned. (3) The project has been approved by the resource advisory committee in accordance with section 205, including the proce- dures issued under subsection (e) of such section. (4) A project description has been submitted by the resource advisory committee to the Secretary concerned in accordance with section 203. (5) The project will improve the maintenance of existing infrastructure, implement stewardship objectives that enhance forest ecosystems, and restore and improve land health and water quality. (b) ENVIRONMENTAL REVIEWS. — (1) PAYMENT OF REVIEW COSTS. — (A) REQUEST FOR PAYMENT BY COUNTY. —The Secretary concerned may request the resource advisory committee submitting a proposed project to agree to the use of project funds to pay for any environmental review, consultation, or compliance with applicable environmental laws required in connection with the project. When such a payment is requested and the resource advisory committee agrees to the expenditure of funds for this purpose, the Secretary concerned shall conduct environmental review, _consulta- tion, or other compliance responsibilities in accordance with Federal law and regulations. (B) EFFECT OF REFUSAL TO PAY. —If a resource advisory committee does not agree to the expenditure of funds under subparagraph (A), the project shall be deemed withdrawn from further consideration by the Secretary concerned pursuant to this title. Such a withdrawal shall be deemed to be a rejection of the project for purposes of section 207(c). (c) DECISIONS OF SECRETARY CONCERNED. — (1) REJECTION OF PROJECTS. —A decision by the Secretary concerned to reject a proposed project shall be at the Secretary's sole discretion. Notwithstanding any other provision of law, PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1617 a decision by the Secretary concerned to reject a proposed project shall not be subject to administrative appeal or judicial review. Within 30 days after making the rejection decision, Deadline. the Secretary concerned shall notify in writing the resource Notification. advisory committee that submitted the proposed project of the rejection and the reasons for rejection. (2) NOTICE OF PROJECT APPROVAL.—The Secretary con- Federal Register, cerned shall publish in the Federal Register notice of each publication. Eroject approved under subsection (a) if such notice would e required had the project originated with the Secretary. (d) SOURCE AND CONDUCT OF PROJECT. —Once the Secretary concerned accepts a project for review under section 203, it shall be deemed a Federal action for all purposes. (e) IMPLEMENTATION OF APPROVED PROJECTS. — (1) COOPERATION.—Notwithstanding chapter 63 of title 31, United States Code, using project funds the Secretary concerned may enter into contracts, grants, and cooperative agreements with States and local governments, private and nonprofit enti- ties, and landowners and other persons to assist the Secretary in carrying out an approved project. (2) BEST VALUE CONTRACTING. —For any project involving a contract authorized by paragraph (1) the Secretary concerned may elect a source for performance of the contract on a best value basis. The Secretary concerned shall determine best value based on such factors as: (A) The technical demands and complexity of the work to be done. (B) The ecological objectives of the project and the sensitivity of the resources being treated. (C) The past experience by the contractor with the type of work being done, using the type of equipment proposed for the project, and meeting or exceeding desired ecological conditions. (D) The commitment of the contractor to hiring highly qualified workers and local residents. (3) MERCHANTABLE MATERIAL CONTRACTING PILOT PRO - GRAM.— (A) ESTABLISHMENT.—The Secretary concerned shall establish a pilot program to implement a certain percentage of approved projects involving the sale of merchantable material using separate contracts for - (i) the harvesting or collection of merchantable material; and (ii) the sale of such material. (B) ANNUAL PERCENTAGES. —Under the pilot program, the Secretary concerned shall ensure that, on a nationwide basis, not less than the following percentage of all approved projects involving the sale of merchantable material are implemented using separate contracts: (i) For fiscal year 2001, 15 percent. (ii) For fiscal year 2002, 25 percent. (iii) For fiscal year 2003, 25 percent. (iv) For fiscal year 2004, 50 percent. (v) For fiscal year 2005, 50 percent. (vi) For fiscal year 2006, 50 percent. (C) INCLUSION IN PILOT PROGRAM. —The decision whether to use separate contracts to implement a project 114 STAT. 1618 PUBLIC LAW 106 - 393 —OCT. 30, 2000 involving the sale of merchantable material shall be made by the Secretary concerned after the approval of the project under this title. (D) ASSISTANCE. —The Secretary concerned may use funds from any appropriated account available to the Sec- retary for the Federal lands to assist in the administration of projects conducted under the pilot program. The total amount obligated under this subparagraph may not exceed $1,000,000 for any fiscal year during which the pilot pro- gram is in effect. Deadline. (E) REVIEW AND REPORT. —Not later than September 30, 2003, the Comptroller General shall submit to the Committee on Agriculture, Nutrition, and Forestry of the Senate, the Committee on Energy and Natural Resources of the Senate, the Committee on Agriculture of the House of Representatives, and the Committee on Resources of the House of Representatives a report assessing the pilot program. The Secretary concerned shall submit to such committees an annual report describing the results of the pilot program. (f) REQUIREMENTS FOR PROJECT FUNDS.—The Secretary shall ensure that at least 50 percent of all project funds be used for projects that are primarily dedicated — (1) to road maintenance, decommissioning, or obliteration; or (2) to restoration of streams and watersheds. 16 USC 500 note. SEC. 205. RESOURCE ADVISORY COMMITTEES. (a) ESTABLISHMENT AND PURPOSE OF RESOURCE ADVISORY COMMITTEES. — (1) ESTABLISHMENT.—The Secretary concerned shall estab- lish and maintain resource advisory committees to perform the duties in subsection (b), except as provided in paragraph (4)• (2) PURPOSE. —The purpose of a resource advisory com- mittee shall be to improve collaborative relationships and to provide advice and recommendations to the land management agencies consistent with the purposes of this Act. (3) ACCESS TO RESOURCE ADVISORY COMMITTEES. —To ensure that each unit of Federal land has access to a resource advisory committee, and that there is sufficient interest in articipation on a committee to ensure that membership can ge balanced in terms of the points of view represented and the functions to be performed, the Secretary concerned may, establish resource advisory committees for part of, or one or more, units of Federal lands. (4) EXISTING ADVISORY COMMITTEES.— Existing advisory committees meeting the requirements of this section may be deemed by the Secretary concerned, as a resource advisory committee for the purposes of this title. The Secretary of the Interior may deem a resource advisory committee meeting the requirements of subpart 1784 of part 1780 of title 43, Code of Federal Regulations, as a resource advisory committee for the purposes of this title. (b) DUTIES. —A resource advisory committee shall — (1) review projects proposed under this title by participating counties and other persons; PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1619 (2) propose projects and funding to the Secretary concerned under section 203; (3) provide early and continuous coordination with appro- priate land management agency officials in recommending projects consistent with purposes of this Act under this title; and (4) provide frequent opportunities for citizens, organiza- tions, tribes, land management agencies, and other interested parties to participate openly and meaningfully, beginning at the early stages of the project development process under this title. (c) APPOINTMENT BY THE SECRETARY. — (1) APPOINTMENT AND TERM. —The Secretary concerned, shall appoint the members of resource advisory committees for a term of 3 years beginning on the date of appointment. The Secretary concerned may reappoint members to subsequent 3 -year terms. (2) BASIC REQUIREMENTS. —The Secretary concerned shall ensure that each resource advisory committee established meets the requirements of subsection (d). (3) INITIAL APPOINTMENT.—The Secretary concerned shall Deadline. make initial appointments to the resource advisory committees not later than 180 days after the date of the enactment of this Act. (4) VACANCIES. —The Secretary concerned shall make appointments to fill vacancies on any resource advisory com- mittee as soon as practicable after the vacancy has occurred. (5) COMPENSATION. — Members of the resource advisory committees shall not receive any compensation. (d) COMPOSITION OF ADVISORY COMMITTEE. — (1) NUMBER.—Each resource advisory committee shall be comprised of 15 members. (2) COMMUNITY INTERESTS REPRESENTED. — Committee members shall be representative of the interests of the following three categories: (A) five persons who- (i) represent organized labor; (ii) represent developed outdoor recreation, off highway vehicle users, or commercial recreation activi- ties; (iii) represent energy and mineral development interests; (iv) represent the commercial timber industry; or (v) hold Federal grazing permits, or other_ land use permits within the area for which the committee is organized. (B) five persons representing - (i) nationally recognized environmental organiza- tions; (ii) regionally or locally recognized environmental organizations; (iii) dispersed recreational activities; (iv) archaeological and historical interests; or (v) nationally or regionally recognized wild horse and burro interest groups. (C) five persons who - (i) hold State elected office or their designee; 114 STAT. 1620 PUBLIC LAW 106 - 393 —OCT. 30, 2000 (ii) hold county or local elected office; (iii) represent American Indian tribes within or adjacent to the area for which the committee is orga- nized; (iv) are school officials or teachers; or (v) represent the affected public at large. (3) BALANCED REPRESENTATION. —In appointing committee members from the three categories in paragraph (2), the Sec- retary concerned shall provide for balanced and broad represen- tation from within each category. (4) GEOGRAPHIC DISTRIBUTION. —The members of a resource advisory committee shall reside within the State in which the committee has jurisdiction and, to extent practicable, the Sec- retary concerned shall ensure local representation in each cat- egory in paragraph (2). (5) CHAIRPERSON.—A majority on each resource advisory committee shall select the chairperson of the committee. (e) APPROVAL PROCEDURES.—(1) Subject to paragraph (2), each resource advisory committee shall establish procedures for pro- posing projects to the Secretary concerned under this title. A quorum must be present to constitute an official meeting of the committee. (2) A project may be proposed by a resource advisory committee to the Secretary concerned under section 203(a), if it has been approved by a majority of members of the committee from each of the three categories in subsection (d)(2). (f) OTHER COMMITTEE AUTHORITIES AND REQUIREMENTS. — (1) STAFF ASSISTANCE. —A resource advisory committee may submit to the Secretary concerned a request for periodic staff assistance from Federal employees under the jurisdiction of the Secretary. (2) MEETINGS. —All meetings of a resource advisory com- mittee shall be announced at least one week in advance in a local newspaper of record and shall be open to the public. (3) RECORDS. —A resource advisory committee shall main- tain records of the meetings of the committee and make the records available for public inspection. 16 USC 500 note. SEC. 206. USE OF PROJECT FUNDS. (a) AGREEMENT REGARDING SCHEDULE AND COST OF PROJECT. — (1) AGREEMENT BETWEEN PARTIES. —The Secretary con- cerned may carry out a project submitted by a resource advisory committee under section 203(a) using project funds or other funds described in section 203(a)(2), if, as soon as practicable after the issuance of a decision document for the project and the exhaustion of all administrative appeals and judicial review of the project decision, the Secretary concerned and the resource advisory committee enter into an agreement addressing, at a minimum, the following: (A) The schedule for completing the project. (B) The total cost of the project, including the level of agency overhead to be assessed against the project. (C) For a multiyear project, the estimated cost of the project for each of the fiscal years in which it will be carried out. PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1621 (D) The remedies for failure of the Secretary concerned to comply with the terms of the agreement consistent with current Federal law. (2) LIMITED USE OF FEDERAL FUNDS. —The Secretary con- cerned may decide, at the Secretary's sole discretion, to cover the costs of a portion of an approved project using Federal funds appropriated or otherwise available to the Secretary for the same purposes as the project. (b) TRANSFER OF PROJECT FUNDS. — (1) INITIAL TRANSFER REQUIRED. —As soon as practicable after the agreement is reached under subsection (a) with regard to a project to be funded in whole or in part using project funds, or other funds described in section 203(a)(2), the Sec- retary concerned shall transfer to the applicable unit of National Forest System lands or BLM District an amount of project funds equal to— (A) in the case of a project to be completed in a single fiscal year, the total amount specified in the agreement to be paid using project funds, or other funds described in section 203(a)(2); or (B) in the case of a multiyear project, the amount specified in the agreement to be paid using project funds, or other funds described in section 203(a)(2) for the first fiscal year. (2) CONDITION ON PROJECT COMMENCEMENT. —The unit of National Forest System lands or BLM District concerned, shall not commence a project until the project funds, or other funds described in section 203(a)(2) required to be transferred under paragraph (1) for the project, have been made available by the Secretary concerned. (3) SUBSEQUENT TRANSFERS FOR MULTIYEAR PROJECTS. — For the second and subsequent fiscal years of a multiyear project to be funded in whole or in part using project funds, the unit of National Forest System lands or BLM District concerned shall use the amount of project funds required to continue the project in that fiscal year according to the agree- ment entered into under subsection (a). The Secretary con- cerned shall suspend work on the project if the project funds required by the agreement in the second and subsequent fiscal years are not available. SEC. 207. AVAILABILITY OF PROJECT FUNDS. 16 USC 500 note. (a) SUBMISSION OF PROPOSED PROJECTS TO OBLIGATE FUNDS. — By September 30 of each fiscal year through fiscal year - 2006, - -- Deadline. ____ a resource advisory committee shall submit to the Secretary con- cerned pursuant to section 203(a)(1) a sufficient number of project proposals that, if approved, would result in the obligation of at least the full amount of the project funds reserved by the partici- pating county in the preceding fiscal year. (b) USE OR TRANSFER OF UNOBLIGATED FUNDS.— Subject to section 208, if a resource advisory committee fails to comply with subsection (a) for a fiscal year, any project funds reserved by the participating county in the preceding fiscal year and remaining unobligated shall be available for use as part of the project submis- sions in the next fiscal year. (c) EFFECT OF REJECTION OF PROJECTS. — Subject to section 208, any project funds reserved by a participating county in the 114 STAT. 1622 PUBLIC LAW 106- 393 —OCT. 30, 2000 preceding fiscal year that are unobligated at the end of a fiscal year because the Secretary concerned has rejected one or more proposed projects shall be available for use as part of the project submissions in the next fiscal year. (d) EFFECT OF COURT ORDERS. —If an approved project under this Act is enjoined or prohibited by a Federal court, the Secretary concerned shall return the unobligated project funds related to that project to the participating county or counties that reserved the funds. The returned funds shall be available for the county to expend in the same manner as the funds reserved by the county under section 102(d)(1)(B)(i) or 103(c)(1)(13)(i), whichever applies to the funds involved. 16 USC 500 note. SEC. 208. TERMINATION OF AUTHORITY. The authority to initiate projects under this title shall terminate on September 30, 2006. Any project funds not obligated by Sep- tember 30, 2007, shall be deposited in the Treasury of the United- States. TITLE III - COUNTY PROJECTS 16 USC 500 note. SEC. 301. DEFINITIONS. In this title: (1) PARTICIPATING COUNTY. —The term "participating county" means an eligible county that elects under section 102(d)(1)(B)(ii) or 103(c)(1)(B)(ii) to expend a portion of the Federal funds received under section 102 or 103 in accordance with this title. (2) COUNTY FUNDS. —The term "county funds" means all funds an eligible county elects under sections 102(d)(1)(B)(ii) and 103(c)(1)(B)(ii) to reserve for expenditure in accordance with this title. 16 USC 500 note. SEC. 302. USE OF COUNTY FUNDS. (a) LIMITATION ON COUNTY FUND USE. — County funds shall be expended solely on projects that meet the requirements of this title. A project under this title shall be approved by the participating county only following a 45 -day public comment period, at the begin- ning of which the county shall — (1) publish a description of the proposed project in the publications of local record; and (2) send the proposed ppro ect to the appropriate resource advisory committee established under section 205, if one exists (b) AUTHORIZED USES. — (1) SEARCH, RESCUE, AND EMERGENCY SERVICES. —An eligible county or applicable sheriff's department may use these funds as reimbursement for search and rescue and other emer- gency services, including fire fighting, performed on Federal lands and paid for by the county. (2) COMMUNITY SERVICE WORK CAMPS. —An eligible county may use these funds as reimbursement for all or part of the costs incurred by the county to pay the salaries and benefits of county employees who supervise adults or juveniles per- forming mandatory community service on Federal lands. (3) EASEMENT PURCHASES.—An eligible county may use these funds to acquire- PUBLIC LAW 106- 393 —OCT. 30, 2000 114 STAT. 1623 (A) easements, on a willing seller basis, to provide for nonmotorized access to public lands for hunting, fishing, and other recreational purposes; (B) conservation easements; or (C) both. (4) FOREST RELATED EDUCATIONAL OPPORTUNITIES. —A county may use these funds to establish and conduct forest - related after school programs. (5) FIRE PREVENTION AND COUNTY PLANNING. —A county may use these funds for — (A) efforts to educate homeowners in fire - sensitive eco- systems about the consequences of wildfires and techniques in home siting, home construction, and home landscaping that can increase the protection of people and property from wildfires; and (B) planning efforts to reduce or mitigate the impact of development on adjacent Federal lands and to increase the rotection of people and property from wildfires. (6) COMMUNITY FORESTRY.—A county may use these funds towards non - Federal cost -share requirements of section 9 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2105). SEC. 303. TERMINATION OF AUTHORITY. The authority to initiate projects under this title shall terminate on September 30, 2006. Any county funds not obligated by Sep- tember 30, 2007 shall be available to be expended by the county for the uses identified in section 302(b). TITLE IV- MISCELLANEOUS PROVISIONS SEC. 401. AUTHORIZATION OF APPROPRIATIONS. There are hereby authorized to be appropriated such sums as may be necessary to carry out this Act for fiscal years 2001 through 2006. SEC. 402. TREATMENT OF FUNDS AND REVENUES. (a) RELATION TO OTHER APPROPRIATIONS. —Funds appropriated pursuant to the authorization of appropriations in section 401 and funds made available to a Secretary concerned under section 206 shall be in addition to any other annual appropriations for the Forest Service and the Bureau of Land Management. (b) DEPOSIT OF REVENUES AND OTHER FUNDS. —All revenues generated from projects pursuant to title II, any funds remitted by counties pursuant to section 102(d)(1)(B)(iii) or section 103(c)(1)(B)(iii), and any interest accrued from such funds shall be deposited in the Treasury of the United States. SEC. 403. REGULATIONS. The Secretaries concerned may jointly issue regulations to carry out the purposes of this Act. SEC. 404. CONFORMING AMENDMENTS. Sections 13982 and 13983 of the Omnibus Budget Reconciliation Act of 1993 (Public Law 103 -66; 16 U.S.C. 500 note; 43 U.S.C. 1181f note) are repealed. 16 USC 500 note. 16 USC 500 note. 16 USC 500 note. 16 USC 500 note. 114 STAT. 1624 PUBLIC LAW 106 - 393 —OCT. 30, 2000 Mineral Revenue TITLE V- MINERAL REVENUE Clam fi cants Act PAYMENTS CLARIFICATION of 2000. 30 USC 181 note. SEC. 501. SHORT TITLE. This title may be cited as the "Mineral Revenue Payments Clarification Act of 2000 ". 30 USC 191 note. SEC. 502. FINDINGS. The Congress finds the following: (1) Section 10201 of the Omnibus Budget Reconciliation Act of 1993 (Public Law 103 -66; 107 Stat. 407) amended section 35 of the Mineral Leasing Act (30 U.S.C. 191) to change the sharing of onshore mineral revenues and revenues from geo- thermal steam from a 50:50 split between the Federal Govern- ment and the States to a complicated formula that entailed deducting from the State share of leasing revenues "50 percent of the portion of the enacted appropriations of the Department of the Interior and any other agency during the preceding fiscal year allocable to the administration of all laws providing for the leasing of any onshore lands or interest in land owned by the United States for the production of the same types of minerals leasable under this Act or of geothermal steam, and to enforcement of such laws * * *" (2) There is no legislative record to suggest a sound public policy rationale for deducting prior -year administrative expenses from the sharing of current -year receipts, indicating that this change was made primarily for budget scoring reasons. (3) The system put in place by this change in law has proved difficult to administer and has given rise to disputes between the Federal Government and the States as to the nature of allocable expenses. Federal accounting systems have proven to be poorly suited to breaking down administrative costs in the manner required by the law. Different Federal agencies implementing this law have used varying methodolo- gies to identify allocable costs, resulting in an inequitable dis- tribution of costs during fiscal years 1994 through 1996. In November 1997, the Inspector General of the Department of the Interior found that "the congressionally approved method for cost sharing deductions effective in fiscal year 1997 may not accurately compute the deductions ". (4) Given the lack of a substantive rationale for the 1993 change in law and the complexity and administrative burden involved, a return to the sharing formula prior to the enactment of the Omnibus Budget Reconciliation Act of 1993 is justified. SEC. 503. AMENDMENT OF THE MINERAL LEASING ACT. Section 35(b) of the Mineral Leasing Act (30 U.S.C. 191(b)) is amended to read as follows: "(b) In determining the amount of payments to the States under this section, the amount of such payments shall not be reduced by any administrative or other costs incurred by the United States. ". PUBLIC LAW 106 - 393 —OCT. 30, 2000 114 STAT. 1625 TITLE VI— COMMUNITY FOREST Forest �ty RESTORATION Restoration act. SEC. 601. SHORT TITLE. This title may be cited as the "Community Forest Restoration Act ". SEC. 602. FINDINGS. The Congress finds the following: (1) A century of fire suppression, logging, and livestock New Mexico. grazing has altered the ecological balance of New Mexico's forests. (2) Some forest lands in New Mexico contain an unnaturally high number of small diameter trees that are subject to large, high intensity wildfires that can endanger human lives, liveli- hoods, and ecological stability. (3) Forest lands that contain an unnaturally high number of small diameter trees have reduced biodiversity and provide fewer benefits to human communities, wildlife, and watersheds. (4) Healthy and productive watersheds minimize the threat of large, high intensity wildfires, provide abundant and diverse wildlife habitat, and produce a variety of timber and non- timber products including better quality water and increased water flows. (5) Restoration efforts are more successful when there is involvement from neighboring communities and better steward- ship will evolve from more diverse involvement. (6) Designing demonstration restoration projects through a collaborative approach may — (A) lead to the development of cost effective restoration activities; (B) empower diverse organizations to implement activi- ties which value local and traditional knowledge; (C) build ownership and civic pride; and (D) ensure healthy, diverse, and productive forests and watersheds. SEC. 603. PURPOSES. The purposes of this title are — (1) to promote healthy watersheds and reduce the threat of large, high intensity wildfires, insect infestation, and disease in the forests in New Mexico; (2) to improve the functioning of forest ecosystems and enhance plant and wildlife biodiversity by reducing the unnatu- rally high number and density of small diameter trees on Federal, Tribal, State, County, and Municipal forest lands; (3) to improve communication and joint problem solving among individuals and groups who are interested in restoring the diversity and productivity of forested watersheds in New Mexico; (4) to improve the use of, or add value to, small diameter trees; (5) to encourage sustainable communities and sustainable forests through collaborative partnerships, whose objectives are forest restoration; and 114 STAT. 1626 PUBLIC LAW 106- 393 —OCT. 30, 2000 (6) to develop, demonstrate, and evaluate ecologically sound forest restoration techniques. SEC. 604. DEFINITIONS. As used in this title — (1) the term "Secretary" means the Secretary of Agriculture acting through the Chief of the Forest Service; and (2) the term "stakeholder" includes: tribal governments, educational institutions, landowners, and other interested public and private entities. SEC. 605. ESTABLISHMENT OF PROGRAM. (a) FOREST RESTORATION PROGRAM. —The Secretary shall estab- lish a cooperative forest restoration program in New Mexico in order to provide cost -share grants to stakeholders for experimental forest restoration projects that are designed through a collaborative process (hereinafter referred to as the "Collaborative Forest Restora- tion Program "). The projects may be entirely on, or on any combina- tion of, Federal, Tribal, State, County, or Municipal forest lands. The Federal share of an individual project cost shall not exceed 80 percent of the total cost. The 20- percent matching may be in the form of cash or in -kind contribution. (b) ELIGIBILITY REQUIREMENTS.—To be eligible to receive funding under this title, a project shall — (1) address the following objectives — (A) reduce the threat of large, high intensity wildfires and the negative effects of excessive competition between trees by restoring ecosystem functions, structures, and spe- cies composition, including the reduction of non - native spe- cies populations; (B) re- establish fire regimes approximating those that shaped forest ecosystems prior to fire suppression; (C) preserve old and large trees; (D) replant trees in deforested areas if they exist in the proposed project area; and (E) improve the use of, or add value to, small diameter trees; (2) comply with all Federal and State environmental laws; (3) include a diverse and balanced group of stakeholders as well as appropriate Federal, Tribal, State, County, and Municipal government representatives in the design, implementation, and monitoring of the project; (4) incorporate current scientific forest restoration informa- tion; and (5) include a multiparty assessment to— (A) identify both the existing ecological condition of the proposed project area and the desired future condition; and (B) report, upon project completion, on the positive or negative impact and effectiveness of the project including improvements in local management skills and on the ground results; (6) create local employment or training opportunities within the context of accomplishing restoration objectives, that are consistent with the purposes of this title, including summer youth jobs programs such as the Youth Conservation Corps where appropriate; (7) not exceed 4 years in length; PUBLIC LAW 106 - 393 —OCT. 30, 2000 114 STAT. 1627 (8) not exceed a total annual cost of $150,000, with the Federal portion not exceeding $120,000 annually, nor exceed a total cost of $450,000 for the project, with the Federal portion of the total cost not exceeding $360,000; (9) leverage Federal funding through in -kind or matching contributions; and (10) include an agreement by each stakeholder to attend an annual workshop with other stakeholders for the purpose of discussing the cooperative forest restoration program and projects implemented under this title. The Secretary shall coordinate and fund the annual workshop. Stakeholders may use funding for projects authorized under this title to pay for their travel and per diem expenses to attend the workshop. SEC. 606. SELECTION PROCESS. (a) After consulting with the technical advisory panel estab- lished in subsection (b), the Secretary shall select the proposals that will receive funding through the Collaborative Forest Restora- tion Program. (b) The Secretary shall convene a technical advisory panel to evaluate the proposals for forest restoration grants and provide recommendations regarding which proposals would best meet the objectives of the Collaborative Forest Restoration Program. The technical advisory panel shall consider eligibility criteria established in section 605, the effect on long -term management, and seek to use a consensus -based decisionmaking process to develop such rec- ommendations. The panel shall be composed of 12 to 15 members, to be appointed by the Secretary as follows: (1) A State Natural Resource official from the State of New Mexico. (2) At least two representatives from Federal land manage- ment agencies. (3) At least one tribal or pueblo representative. (4) At least two independent scientists with experience in forest ecosystem restoration. (5) Eqqual representation from — (A) conservation interests; (B) local communities; and (C) commodity interests. SEC. 607. MONITORING AND EVALUATION. The Secretary shall establish a multiparty monitoring and evaluation process in order to assess the cumulative accomplish - ments or adverse impacts of the Collaborative Forest Restoration Program. The Secretary shall include any interested individual or organization in the monitoring and evaluation process. The Sec - retary also shall conduct a monitoring program to assess the short - and long -term ecological effects of the restoration treatments, if any, for a minimum of 15 years. SEC. 608. REPORT. Deadline. No later than 5 years after the first fiscal year in which funding is made available for this program, the Secretary shall submit a report to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Resources of the United States House of Representatives. The report shall include an assessment on whether, and to what extent, the projects 114 STAT. 1628 PUBLIC LAW 106- 393 —OCT. 30, 2000 funded pursuant to this title are meeting the purposes of the Collaborative Forest Restoration Program. SEC. 609. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated $5,000,000 annually to carry out this title. Approved October 30, 2000, LEGISLATIVE HISTORY —H.R. 2389: HOUSE REPORTS: No. 106 -392, Pt. 1 (Comm. on Agriculture). CONGRESSIONAL RECORD: Vol. 145 (1999): Nov. 3, considered and passed House. Vol. 146 (2000): Oct. 6, considered and passed Senate, amended. Oct. 10, House concurred in Senate amendment. 0 d. goo m M LL I O i. MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD FEBRUARY 28, 2006 A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road. Avon, Colorado inthe Council Chambers. K8oxor Ron Wolfe called the meeting to order at5:3O PM. A roll call was taken and Council members present were Debbie Buckley, KhoUFernaro. Mac McDevitt, Amy Phillips, Brian Sipes and 7-Grn[8 Underwood. Also present were Town K8@O@ge[ Larry Brooks, Town Attorney John Dunn, Asst. Town KAanagerJacquie Ho|burnt, Town Clerk Patty MoKenny. Finance Director Scott Wright, Town Engineer Norm Wood, and Senior Planner Eric Heidemonn, as well as members of the press and public. APPROVAL OF AuGENOA& DISCLOSURE OF POTENTIAL OF CONFLICT OFINTEREST Town Attorney John Dunn asked if any nnernben; had any ex porte communication regarding Ordinance No. 06-03; no one indicated any other conflicts other than the ones that have already been identified at earlier meetings (Councilors Ferraro & Sipes). Mayor Wolfe noted that Resolution No. 06'11 would be a public hearing and would he considered prior to other items on the agenda. CITIZEN INPUT Glen Merrick, Chairman of the Eagle Valley Chapter of the Rocky Mountain Elk Foundation, and briefly introduced the mission & purpose of the Foundation. He noted a future funding raiser opportunity & noted that the Foundation may be before the Council at a later date requesting funds. RESOLUTIONS Jeff Schneider, Engineer U. presented Resolution No. 06-11. Series of 2006. Resolution approving the Preliminary and Final Plat of the Enclave at \8/|dxvood. /\ Reeubdiviaion of Lot 8, Block 5, VVi|dridge. Town of Avon, Eagle County. Schneider noted that this final plot was for o townhouse subdivision of developed |oƒ, creating six townhouse units & a common area/ 1031 VVestVVi|dVVOod RV8d, UOi[SA-F. Applicant Steve W1ac[)On8|d addressed the council with regard to questions about the driveway. Mayor Wolfe opened the public hearing, no comments were made, the hearing was closed. Councilor Sipes moved to approve Resolution approving the Preliminary and Final Plat of the Enclave at VVi|d\m0od, A ResubdiviSiOD Of Lot 8' Block 5, VVi|dridge. Councilor Buckley seconded the motion and it passed unanimously. ORDINANCES Councilors Sipes & Ferraro left the meeting due to conflict of interest. Eric Hekdemann, Senior Planner presented Ordinance No. 06-03. Gehao of 2008. on First Reading. an Ordinance approving the Amendment to the Confluence Planned Unit Development & Development Agreement. He noted that this is a request for an amendment to the 19 acre Confluence PUO to modify the existing development rights and zoning for the entire property. This application p[0pOSeS a Westin hotel, retail plaza, high-speed public gOOdo|g' CoOdOOOiDiUmG. and f[8(tiOD8| residential unite. The property is located between the Eagle River and the West 7-nvvn Center, accessible from Avon Road. Heidemonn noted that some revisions were made toOrdinance No. 06-03 as well as the development agreement (staff recommended changes were outlined & distributed to Council at this time); these were reviewed at this time. Mayor Wolfe noted that process that the project has been through. i.e. Planning &Zoning Commission review, Council review, public hearings. Chuck Modison, East West Partners, presented the project to the Town Council and audienme. noting that he would 8dd[8SS 8 number Of public inlprov8DlgOtS related to the project, some of which follow: • F<imerfrord Park Plans • Permanent Public Easement Over Plaza &Flestrooms • View Corridor • Install Great Landscaping • Upscale Hotel • Establish Unique Architecture • Complement Avon With Its Main Street Plans • Support Avon's Transportation Goals • Use Environmentally Sensitive Practices A review was made of the capital contribution comparisons between the development generated costs & the Town's contributions to the project, as well as the net tax benefits of the project as projected by Stan Bernstein & Associates (documents were included at earlier meetings). Mayor Wolfe noted the developer is asking that the town's contributions be to the ongoing operation of the gondola & the public areas of the plaza, e total of $280K combined annually. It was noted that the contribution would be funded primarily bV revenues generated bv the project, i.e. property tax, amenities tax. sales tax. Mayor Wolfe opened the public hearing and the following people commented: • Peter Buckley commented on the funding of the project. • Ruth Borne supported the project overaU. • Ti[ao Blackwood asked about funding the improvements. • Mike Brown supported the project. • Drew Dodd supported the project. • Bou|deo, asked about parking and supported the project. • BhanVVoode||. commercial real estate broker, supported the project. NO further public comments were made and the hearing was closed. Some COUOCi| CODl[Oen[S were made which addressed some Of the fO||nvving topics, parking, GoOdO|8' hOte/, park, the iDlpOrtgOC8 of the public benefits of the project. And finally Mayor Wolfe who supported the project made some comments, noting that i[io a very good project, and although it may not be perfect, the town should move forward with adecision. Mayor Pro Tenn Underwood moved to approve Ordinance No. 08-03. on first reading, an {]FdiOGOCe approving the Amendment [Othe COOOUeDCe Planned Unit [}eve|Op08[t. TOVVD Of Avon, Eagle County, Co|onado, with the conditions as noted earlier (list of Staff recommended changes would be included ag part nf the record Vf the Dl|DuteS\. Councilor Buckley seconded the motion and it passed unanimously by those members present (Councilors Ferraro & Sipes necused from discussion & voting on this topic due to conflict of interest). It was noted that second reading and public hearing would be held on March 14, 2006 and final documents would be had e[ that time. Eric Heidemonn, Senior P|anner, presented C]njinenma No. 00-04. Series of 2006, on First Reading, An Ordinance Amending Title 17, K8VOidp8| Code Of The Town Of Avon, Adding Definitions For Allowed Uses In The Industrial And Commercial Zone, Adding Self Storage As An Allowed Use In The Industrial And Commercial Zone [)iS[riCt. And Amending The Parking Standards For Uses Allowed In The Industrial And CO00erCi8} Zone. He noted that these proposed amendments tO the Zoning Code relate to parking standards for allowed uses in the Industrial 8 CO[DDlen:i8| Zone by defining US8S as well as reconciling 8||Ovxed uSBS with associated parking standards. He noted that the primary intent of the proposed ordinance iato Regular Council Meeting Page 2 of 4 February 28, 2006 clarify the parking ratios since the current code does not enumerate the numbers okaadv. He noted that written notification regarding these proposed changes were sent to surrounding |XC Zone property owners. Details were provided regarding the current |/C Zone allowed uses, the related parking radoo, staff's interpretations Vf the code as erroneoue, and how the proposed ratios were calculated. Council asked numerous questions related to the topic & discussion ensued on how 10 calculate the ratio for parking and the national standards observed in doing so. /\rn K8enconi. Mark Donaldson, ChrieJergeno & Phil Struve commented on the topic. Councilor McDevitt moved to approve Ordinance No. 06-04. on first reading, An Ordinance Amending Title 17, Municipal Code Of The Town Of Avon, Adding Definitions For Allowed Uses In The Industrial And Commercial Zone, Adding Self Storage As An /\||ovved Use In The Industrial And Commercial Zone District, And Amending The Parking Standards For Uses Allowed |D The Industrial And Commercial Zone. Councilor Ferraro seconded the motion and ii passed with a five to one vote (Sipes Oay). Second reading and public hearing would be held ot the next meeting. RESOLUTIONS Rebecca Leonard, Design Workshop, reviewed her memo included in the council packet related to Resolution No. 06-10. Series of 2006, Resolution approving the Update to the Town of Avon Comprehensive Plan. She commented on some revisions made to the final document in a number of eeCtions, the introduction. the future land use map, other guiding graphics, goals & po|iciee, and district plans. She noted that this was Council's final action which is required to adopt the plan and that it was already approved by the Planning & Zoning Commission. Discussion ensued on the idea of including "neighborhood center as opposed to commercial". (]the[ comments included some changes to the vision statement. At this bDle' Mayor Wolfe opened the Public Hearing. Resident Chris Green supported the comp plan. The public hearing was closed. Councilor Sipes moved to approve Resolution No. 00-10approving the Update tV the Town Of Avon Comprehensive Plan. Councilor Phillips seconded the motion and it passed unanimously. NEW BUSINESS Bob Reed. Transit Director / Public Works Director, presented the Service Agreement with lFoxvn of yWinturn and the Service Agreement with Beaver Creek Metro []iatrict, both annual service agreements for fleet maintenance with the Town. Councilor Sipes moved to approve the service agreement with the TDvvD of MiDtU[D; COUnCi|O[ Buckley seconded and the motion passed unanimously. Councilor Buckley moved to approve the service agreement with E]CK8O; Councilor Ferraro seconded the motion and it passed unanimously. Consent Agenda Mayor Wolfe asked for a motion OD the Consent Agenda below. K88yO[ Pro Tern Underwood moved to adopt the consent agenda; Councilor McDevitt seconded the motion and it passed unanimously. a. Minutes from February 14, 2006 for Regular Council Meeting & Liquor Board Meeting b. Easements for Eagle River Recreational Enhancements Project (Norm Wood, Town Engineer) Declaration of Easements for R|CD PE-06 & RICK PE-07. as part of the application to the Colorado Water Conservation Board for the in channel diversion There being no further business to come before the Counci|, the regular meeting adjourned at Regular Council Meeting Page 3 of 4 February 28, 2006 RESPECTFULLY SUBMITTED: Patty McKenny, Town Clerk APPROVED: Debbie Buckley Kristi Ferraro Mac McDevitt Amy Phillips Brian Sipes Tamra Underwood Ron Wolfe Attachment: The Confluence Project: Staff recommended changes to Ordinance No. 06-03 related to the motion for Ordinance No. 06-03. Regular Council Meeting February 28, 2006 Page 4 of 4 Staff recommended changes to Ordinance 06 -03 WHEREAS ( #6), after notices provided by law, this Council held public hearings on February 14th, February 28th, and March 10, 2006, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Development Plan Amendment; and WHEREAS ( #8), this PUD Amendment provides evidence of compliance with the public purpose provisions outlined in Section 17.28.085 of the Municipal Code. The public benefits include: positive fiscal impacts identified in the economic models provided by staff and the applicant; dedication of approximately 5 -acres of the Eagle River and associated high value natural resources; public plaza and lift conveyance; improved access and recreational opportunities; and an equitable capital contribution partnership. Required revisions to the Development Plan: A. Delete General Notes 7a, 7b, and 7c, and revise as follows: "A fifty -five (55) foot view corridor through the public plaza adjacent to the proposed hotel as presented on the development plan and the final plat for the Riverfront Subdivision shall remain unobstructed from the ground level upwards, with the exception of the gondola terminal. Minor encroachments such as public restrooms, awnings, landscaping, overhangs, decks and railings shall be reviewed and may be approved through the design review approval process ". B. Delete General Note #1 and revise as follows: Professional offices, including real estate offices, shall be limited to the two locations on fronting the public plaza as depicted to the Planning and Zoning Commission January 17, 2006. A temporary timeshare sales office will be permitted in the hotel and must be vacated within thirty (30) days of issuance of Temporary Certificate of Occupancy for Building E (Lot 3). No ethef plaza additional plaza frontage spaces are is permitted for use by professional and general office, including financial institutions and real estate offices or residential units. 2. Parking Condition: A. Delete General Note #8 and revise as follows: "A parking management plan, generally consistent with recommendations outlined in the Walker Preliminary Parking Operations Plan dated December 5, 2005 shall be submitted and, after review and approval by the Zoning Administrator, be reeefded as a eevet-rtrni with by i-SsuanEe- 9f Ceftifre-ate of Oeeup,,ney included as a subdivision plat note. The approved plan shall not be changed without notification of the Town, and shall be enforceable by the Zoning Administrator ". 3. General Condition February 28 "', 2006 Town Council Meeting A. Water Rights: The property owner shall convey to the Town the water rights necessary to serve the approved development. Final water right determination shall be resolved between the property owner and the Town prior to ,.°,.efding of ^ Final Iglu the issuance of building permit. E. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code no later than ja y 1, 2 three (3) years after the date of recording of final plat. F. The �Affef dab1' amended from the existing44%-fequii-teement. February 28`', 2006 Town Council Meeting I JLL:J 11107 TO: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Enginee Date: March 8, 2006 Re: Alpine Engineering, Inc. Professional Services Agreement for At- Grade Railroad Crossing Project Summary: Alpine Engineering, Inc. submitted the attached Professional Services Agreement for Design of two At-Grade Railroad Crossings (Exhibit 1) in conjunction with the PUC Application for the Crossings and Proposed Confluence PUD Amendment. Due to extremely tight time constraints associated with the PUC Application, Alpine proceeded with the design without benefit of formal approval. Railroad Crossing Plans are complete and are ready for filing with the PUC upon receipt of written confirmation from the PUC that the crossings have been approved. Remaining work under the proposed agreement includes preparation of contract documents and job specifications, construction administration and construction observation. The work will be performed on a time and expense basis in accordance with the Schedule of Charges. The estimated cost of these services is: Design At-Grade Crossings 14,920.00 Construction Administration 8,540.00 Construction Observation 9,300.00 Reimbursables (5%) 1,638.0 Total Estimated Fee $34,398.00 We believe the Agreement accurately reflects the work to be completed and at a reasonable cost for the services. We recommend approval of the Professional Services Agreement for At-Grade Railroad Crossing as submitted by Alpine Engineering, Inc. Financial Implications: This Project is funded as a part of the Town Center- Mall Plan Implementation Project with a Budget of $2,800,000. This work is within the Project Budget. 1:\Engineenng\C1P\RR Crossings\22.2 Design Services\AEI Agmnt Nlemo.Doc I Recommendation: Approve Professional Services Agreement for At-Grade Railroad Crossing Project as submitted by Alpine Engineering, Inc. Town Manager Comments: Attachments: Exhibit 1: Alpine Engineering, Inc. Professional Services Agreement 1:\Engineering\C1P\RR Crossings\2.2 Design Services\AEI Agmnt Memo.Doc 2 Alpine Engineering, Inc. PROFESSIONAL SERVICES AGREEMENT Project Name: Town of Avon Date: February 24, 2006 At -Grade Railroad crossings Client: Town of Avon Job #: 16290.a P.O. Box 975 Avon, CO 81620 Consultant: Alpine Engineering, Inc. Project P.O. Box 97 Location: Avon, Colorado Edwards, CO 81632 SCOPE OF The scope of Consultant's services is limited to the following: SERVICES: Please refer to Exhibits A, B and C for definitions and limits to Scope of Services FEE BASIS: Consultant shall perform and complete its services on a time and expense basis in accordance with the following Schedule of Charges. AEI may increase their rates from time to time to a mutually agreed upon amount. Hourl Professional Rates Principal $110.00 Project Engineer $ 90.00 Senior Design Engineer 85.00 Registered Surveyor 90.00 Design Engineer 80.00 Senior Surveyor 75.00 Engineering Technician H 70.00 Survey Technician 65.00 Engineering Technician 1 65.00 Resident Engineer Technician 70.00 Resident Engineer 80.00 Office Technician 45.00 1- Person Survey Crew 90.00 2- Person Survey,Crew 115.00 3- Person Survey Crew 125.00 Reproduction Costs Bluelines, per sheet $ 2.00 Mylar per sheet, 30 "x42" 18.00 Plotting, translucent bond per SF .25 Color Plotting, per SF 1.50 Mylar per sheet, 24 "06" $ 12.00 Paper copies, 8 "xI 1" per sheet .10 Plotting, mylar per SF 1.00 Other Charges Attendance at Public Meetings - $150.00 per hour Expert Testimony and Court Appearances - $150.00 per hour Support services, deliveries, materials and supplies - cost plus 10 %. Subconsultants - cost plus 10 %. Per Diem and Lodging - cost plus 10 %. Vehicle Mileage, standard - $0.50 per mile All other direct project expenses, i.e. special equipment rental, commercial travel, shipping - cost plus 15 %. February 2006 16290.a— At -Grade RR Crossings - ToA The following Terms and Conditions are incorporated into and made a part of this Professional Services Agreement: ADDITIONAL WORK: Any work request by the Client not defined in the above Scope of Services is deemed additional work and shall be invoiced in accordance with the Fee Basis of this contract. PROJECT Client will make available for Consultant's review all available information INFORMATION: regarding project conditions or requirements that may be relevant to or affect the services to be performed under this Agreement. All project data shall be made available in CAD format (DWG or DXF form). Client will immediately transmit to Consultant any new information concerning the project that becomes available to it, either directly or indirectly, during the performance of this Agreement. Client agrees to render reasonable assistance as requested by Consultant so the performance of the services under this Agreement may proceed without delay or interference. Consultant will not be liable for any advice, judgment or decision based on inaccurate or incomplete information furnished by Client or others engaged by or for Client. JOBSITE SAFETY: Consultant does not assume responsibility for construction means, methods, techniques, sequences or procedures, or for safety precautions. Consultant and his or her personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Client agrees that the General Contractor is solely responsible for jobsite safety. PAYMENT TERMS: Client will pay Consultant for services and expenses in accordance with the agreement. Consultant's invoices will be presented at the completion of its work, monthly, or as specified in the quotation, and will be paid within fifteen (15) days of receipt by Client or Client's authorized representative. Client agrees to pay a finance charge of 1 1I2% per month on past due accounts, or the maximum allowed by law if such maximum is less than 1 1 /2% per month. FORCE MAJEURE: Consultant shall not be liable to Client for any loss, liability, cost, damage or expense arising out of the delay or failure to render services under this Agreement where such delay or failure arises by reason of legislative, administrative or government prohibition, fire, weather conditions, hostilities, civil disturbances, labor or industrial disputes, inability to secure labor, acts of God or any other event beyond the reasonable control of Consultant, in which event either party may terminate that portion of the services under this Agreement not yet completed, and Consultant shall have no further liability to Client therefor. A change authorization extending the time to perform and stating an appropriate fee adjustment may be elected by mutual agreement of the parties hereto as an alternative to termination. OWNERSHIP OF All reports, plans, specifications, field data and notes and other documents, INSTRUMENTS including all documents on electronic media, prepared by the Consultant OF SERVICE: as instruments of service shall remain the property of the Consultant. OPINIONS OF In providing opinions of probable construction cost, the Client understands that the PROBABLE COST: Consultant has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of the Consultant's qualifications and experience. The Consultant makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. LIMITATION OF To the fullest extent permitted by law, and not withstanding any other provision of LIABILITY: this Agreement, the total liability, in the aggregate, of the Consultant and the Consultant's officers, directors, partners, employees, agents and subconsultants, and any of them, to the Client and anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages of any nature whatsoever arising out of, resulting from or in any way related to the Project or the Agreement from any cause or causes, including but not February 2006 16290.a— At -Grade RR Crossings - ToA 2 The undersigned parties acknowledge the terms of this Agreement which represent the entire mutual agreement between Consultant and the undersigned Client and this Agreement supersedes all prior negotiations, representations or agreements written or oral prior to execution date of the Client below. Please execute both copies and return one copy to Alpine Engineering, Inc. as authorization to begin work. Consultant: ALPINE ENGINEERING, INC. By. Name: Michael J. Sliper Title:., ; h Date: _ T . Zc Client: By: Name: Title: Date: February 2006 16290.a— At -Grade RR Crossings - ToA limited to the negligence, professional errors or omissions, strict liability, breach of contract or warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents or subconsultants, or any of them, shall not exceed the amount of $1,000,000.00. In no event shall Consultant be liable for special, incidental, exemplary, punitive or consequential damages. LIMITATIONS All legal actions by Client against Consultant shall be barred after two years have PERIOD: passed from the time Client knew or should have known of its claim, and under no circumstances shall be initiated after three years have passed from the date on which Consultant substantially completed its services or from the date upon which Consultant's services were terminated, whichever date shall earlier occur. TERMINATION: Either the Client or the Consultant may terminate this Agreement at any time with or without cause upon giving the other party ten (10) calendar days prior written notice. The Client shall within fifteen (15) calendar days of termination pay the Consultant for all services rendered and all costs incurred up to the date of termination, in accordance with the compensation provisions of this contract. SEVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect. ACCEPTANCE: Consultant's receipt of this executed Agreement is expected within five (5) days of the date shown hereon. Acceptance after five days is subject to Consultant's other contracts in progress and the performance hereof. If Consultant is verbally requested by client to proceed with any work prior to execution of the Agreement, any work done will be on these terms. The undersigned parties acknowledge the terms of this Agreement which represent the entire mutual agreement between Consultant and the undersigned Client and this Agreement supersedes all prior negotiations, representations or agreements written or oral prior to execution date of the Client below. Please execute both copies and return one copy to Alpine Engineering, Inc. as authorization to begin work. Consultant: ALPINE ENGINEERING, INC. By. Name: Michael J. Sliper Title:., ; h Date: _ T . Zc Client: By: Name: Title: Date: February 2006 16290.a— At -Grade RR Crossings - ToA ID..11: February 2006 16290.a— At -Grade RR Crossings - ToA EXHIBIT B (Public roads, utilities, drainage and gradina) 1. Desian of At -Grade Crossings: To include meeting and coordinating with Town of Avon, coordinating with UPRR with regards to design criteria, preparing final crossing plans to be submitted to PUC by others, meeting with landscape architects for the Riverfront Subdivision and Town of Avon Transportation Center regarding architectural treatments, reviewing and addressing Town of Avon comments, reviewing and addressing UPRR comments, preparing Engineers opinion of probable cost, preparing project specifications and bid documents and assisting Town with contractor selection. 2. Construction Administration: To include attending construction meetings, review construction issues and make recommendations to Owner, issuing supplemental information, review shop drawings and contractor submittals, address requests for information (RFI's) as required, prepare and disperse Engineer's Supplemental Information (ESI's) as required, engineering support for design revisions due to field conditions, review contractor PCO's and make recommendations to Owner, review contractor pay requests and make recommendations to the Owner. 3. Construction Observations To include providing on -site construction observation as appropriate to amount of work being performed to determine if work is in general conformance with the Construction Documents, keep observation records as necessary, update Project Engineer of progress /issues, update Town of Avon of construction progress, assist with plan/construction conflict resolution and attend weekly meetings. Assumes construction duration of 8- 5day weeks with 1 hour of observation per day. Alpine Engineering shall visit the site at intervals appropriate to the stage of construction, or otherwise agreed to in writing by the Town of Avon, in order to observe the progress and quality of the work completed by the contractor. Such visits shall not be intended to be exhaustive or detailed inspection of the contractor's work, but rather to become generally familiar with the work in progress to determine general conformance with the contract documents. Based upon these observations, AN shall keep the Owner informed about the progress of the work. AN shall not supervise, direct or have control over the contractor's work nor have any responsibility for construction means, methods, techniques, sequences or procedures selected by the contractor nor for the contractor's safety precautions or programs. February 2006 16290.a— At -Grade RR Crossings - ToA EXHIBIT C EXCLUSIONS: Services not set forth above as Basic Services and not listed in Exhibit B of this Agreement are specifically excluded from the scope of AEI's services. Items that may be required for this project and are specifically excluded from Basic Services above include, but are not limited to: - Construction Staking - Utility design - Drainage report/design - Design of improvements outside of UPRR Right -of -Way - Geotechnical services - Structural engineering - Pavement design - Snowmelt facilities design - Erosion control design - Construction dewatering permit - Fugitive Dust Permit - Stormwater management permitting -Site lighting - Traffic analysis - Construction phasing plans - Retaining wall design - Shoring design - Material Testing - Certification Documents - Preparation of final easementstencroachments, exhibits and resubdivisions - Sinkhole, methane mitigation or other unusual soil issues -Dry utility load calculations - Design services Transportation Center -Eagle County grading permits or approvals - Landscaping and Irrigation design - Off -site utility improvement design services - Railroad Pedestrian underpassloverpass design - Acquiring UPRR Contractor's Right of Entry - Preparing UPRR permit application (assumed to be done by others) - Preparing UPRR utility crossing permits -fees for design performed by UPRR (end of tie to end of tie) -UPRR licensing/permitting fees -UPRR protective liability insurance coverage February 2006 16290.a— At -Grade RR Crossings - ToA 6 JLL:4LLL•J To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: March 6, 2006 Re: H -P Geotech Professional Services Agreement for Subsoil Study for Pavement and Foundation Design for Transportation Center Summary: H -P Geotech submitted the attached Professional Services Agreement (Exhibit 1) for Subsoil Study for the Pavement and Foundation Design for the Transportation Center currently being designed by Design Workshop. The proposed services include drilling five test holes, analyzing the data for pavement and foundation design and presenting the findings and recommendations in an engineering report. The Fee for this work will be based upon unit cost in the included Fee Schedule. A verbal estimate for the total fees associated with this project is approximately $ 5,000. This work is needed prior to finalizing the design of the Transportation Center and we recommend approval of the Professional Services Agreement as submitted by H -P Geotech. Financial Implications: This work is a part of the Transportation Center and is within the current total project budget of $2,040,660. Recommendation: Approve the Professional Services Agreement submitted by - H -P Geotech for Subsoil Study for Pavement and Foundation - Design - for -the Transportation Center. Town Manager Comments: Attachments: Exhibit 1: H -P Geotech Professional Services Agreement Subsoil Study for Transportation Center Pavement & Foundation Design I:AEngineeringVC1P \Transportation Center\2.0 Contract services \H -P Agmnt Memo. Doc 1 HEPWORTH - PAWLAK GEOTECHNICAL, INC. 5020 County Road 154 Glenwood Springs, Colorado 81601 (Go *tech Phone: 970- 945 -7988 Fax: 970 -945 -8454 HEPWORTH- PAWLAK GEOTECHNICAL e-mail: hpgeo @hpgeotech.com 2006 FEE SCHEDULE GLENWOOD SPRINGS PROFESSIONAL SERVICES FIELD INVESTIGATION Truck - mounted drill rig (Longyear BK -51 HD or CME- 4513) ......... ............................... $140/hour Mobilization............................................................................... ............................... $3.50 /mile All- terrain drill rig ........................................................................... ............................... Cost + 20% Crewtravel .................................................................................... ............................... $ 70 /man/hour Special equipment (backhoe, drill bits, well supplies, etc.) ............. ............................... Cost + 20% Field Engineer or Technician ....................................................... ............................... $70475/hour Overtime (over 8 hours /day, Saturday, Sunday and Holidays) ........................1.5 x hourly rate LABORATORY TESTING Fee schedule available on request. CONSTRUCTION OBSERVATION AND MATERIALS TESTING Fee schedule available on request. ENGINEERING (Includes project planning, administration, analysis, consultation, report preparation, field and travel time. Expert witness service has a 50% premium hourly rate.) Principal............................................................................................. ............................... $150/hour ProjectManager ................................................................................. ............................... $125/hour Senior Project Engineer /Geologist .................................................... ............................... $110/hour Project Engineer / Geologist .................................................................. ............................... $90/hour StaffEngineer /Geologist ........ ............................................................. ............................... $80/hour CAD/Drafting ...................................................................................... ............................... $70/hour WordProcessing .................................................................................. ............................... $50/hour OTHER DIRECT CHARGES Auto or pickup mileage ..................................................... ............................... $45 /day + $.60 /mile Out of town living expenses, equipment rental, supplies, etc ......... ............................... Cost + 20% REMARKS Late fee of $30.00 or 1.5% per month (whichever is the greater) charged 30 days from invoice date plus collection costs, bank charges and reasonable attorney's fees. Up to 3 copies ofreport provided for each project. Minimum 2 hour trip charge per day for field engineer or technician. Terms and Conditions on Back Effective January 1, 2006 TERMS AND CONDITIONS STANDARD OF CARE: Services performed by HEPWORTH- PAWLAK GEOTECHNICAL, INC. (referred to as HP GEOTECH) under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale. No warranty, express or implied, is made or intended by the proposal for consulting services or by furnishing oral or written reports of the findings made. The client recognizes that subsurface conditions may vary from those encountered at the location where borings, tests or explorations are made by HP GEOTECH and that the data, interpretations and recommendations of HP GEOTECH are based solely upon the data available to HP GEOTECH. HP GEOTECH will be responsible for those data, interpretations, and recommendations, but shall not be responsible for the interpretations by others of the information developed. LIMITATION OF LIABILITY: The client agrees to limit HP GEOTECH and its employees, directors, officers and subconsultants liability to the client arising from or in any way related to the Project or, the Agreement including professional acts, errors, or omissions or breach of contract or other cause of action, such that the total aggregate liability of HP GEOTECH, including reasonable attorney's fees and expert witness' fees, to all those named shall not exceed $50,000 or HP GEOTECH's total fee for the services rendered on this Project, whichever is greater, and client hereby releases HP GEOTECH and its employees, directors, officers and subconsultants from any liability above such amount. SITE ACCESS: Unless otherwise agreed, the client will furnish HP GEOTECH with right -of- access to the site in order to conduct the planned exploration. While HP GEOTECH will take reasonable precautions to limit damage to the property, it is understood by the client that in the normal course of services some damage may occur, the restoration of which is not part of this Agreement and shall not be the obligation of HP GEOTECH. Unless otherwise agreed, the client will secure all necessary approvals, permits, licenses and consents necessary to the performance of the services hereunder. UTILITIES: In the performance of its services, HP GEOTECH will take reasonable precautions to avoid damage or injury to subterranean structures or utilities. The client agrees to hold HP GEOTECH harmless and indemnify HP GEOTECH for any claims, payments or other liability, including attorney's fees and costs, incurred by HP GEOTECH for any damages to subterranean structures or utilities which are not called to HP GEOTECH's attention and correctly shown on the plans furnished to HP GEOTECH. UNANTICIPATED HAZARDOUS MATERIALS: It shall be the duty of the owner, the client, or theirrepresentative to advise HP GEOTECH of any known or suspected hazardous substances which may exist on or near any premises upon which services are to be performed by HP GEOTECH's employees, agents or subcontractors. If HP GEOTECH observes or suspects the existence of unanticipated hazardous materials during the course of providing services, HP GEOTECH may at its option terminate further services on theproject and notify client of the condition. Services will be resumed only after a renegotiation of scope of services and fees. In the event that such renegotiation cannot occur to the satisfaction of HP GEOTECH, HP GEOTECH may at its option terminate this contract. MOLD or OTHER BIOLOGICAL CONTAMINANTS (MOBC): HP GEOTECH's services do not include determining the presence, prevention or possibility of MOBC developing in the future. If the client is concerned about MOBC, then a professional in this special field of practice should be consulted. INVOICES: HP GEOTECH will submit invoices to the client monthly and a final bill upon completion of services. Unless otherwise noted, fees will be based on the prevailing Fee Schedule in effect when the services are performed. Payment is due upon presentation of invoice and is past due thirty (30) days from the invoice date. Client agrees to pay a late fee of $30.00 or one and one half percent (1' /2%) per month (whichever is the greater) on past due accounts. Client also agrees to pay, in addition to judgement or settlement sums due, all costs and expenses including court costs, reasonable attorney's fees and staff time computed according to HP GEOTECH's prevailing Fee Schedule incurred by HP GEOTECH relating to collection procedures on overdue accounts. OWNERSHIP OF DOCUMENTS: All reports, plans, specifications, computer files, field data, notes and other documents and instruments prepared by HP GEOTECH as instruments of service shall remain the property of HP GEOTECH. HP GEOTECH shall retain all common law, statutory and other reserved rights, including the copyright thereto. SAMPLES: HP GEOTECH will retain all soil and rock samples that are transported to HP GEOTECH's laboratories until submission of the project report. Further storage or transfer of samples can be made at client's expense upon written request. DISPUTE RESOLUTION: All claims, disputes and other matters in controversy between HP GEOTECH and client arising out of or in any way related to this Agreement will be submitted to "alternative dispute resolution" (ADR) such as mediation and/or arbitration, before and as a condition precedent to other remedies provided by law. If and to the extent client and HP GEOTECH have agreed on methods for resolving such disputes, then such methods will be set forth in the "Alternative Dispute Resolution Agreement" which, if attached, is incorporated and made a part of this Agreement. If a dispute at law arises related to the services provided under this Agreement and that dispute requires litigation instead of ADR as provided above, then the claim will be brought and tried in judicial jurisdiction of the court of the county where HP GEOTECH's principal place of business is located and client waives the right to remove the action to any other county or judicial jurisdiction. Effective January 1, 2006 Memo To: Thru: From: Date: IM Honorable Mayor & Town Council Larry Brooks, Town Manager Meryl D. Jacobs, Recreation Director AVIA March 7, 2006 Title Sponsorship Agreement for Salute Summary: Staff has secured American National Bank as title sponsor to the Town's July 3rd independence day celebration. Attached for signature is the agreement between the Town of Avon and American National Bank. Upon the signing of this agreement, the 2006 event will be called American National Bank's Salute to the USA. lz LETTER OF AGREEMENT Between Town of Avon P.O. Box 975 Avon, Colorado 81620 970 748 4032 Title Sponsor American National Bank 3033 East First Ave Suite 300 Denver CO, 80206 Fax 303- 321 -4444 Attn: Counsel This Agreement is entered into by and between Town of Avon (the "TOA "), a incorporated Town of the State of Colorado and American National Bank ( "Sponsor "). WITNESSETH: Whereas, the TOA has the exclusive right to organize and conduct the "Salute to the U.S.A." ( "the Event ") within Nottingham Park and has scheduled activities as part of its summer programs on July 3, 2006 and Whereas, Sponsor is interested in providing financial support for the Event in exchange for certain promotional rights to be provided by the TOA for Sponsor's interests; NOW, THEREFORE, in consideration of the mutual promises herein contained, the adequacy and sufficiency of which is herby acknowledged, the parties hereby agree as follows: 1. Term This term of this Agreement begins on the date the Agreement is signed by both parties and shall continue in full force and effect through July 3, 2006, except the provisions of Paragraphs 11 and 14 hereof, which provisions shall be effective as provided in that paragraph. 2. Nature of Services The services are described in this Agreement and the related Attachments. The TOA hereby grants Sponsor the exclusive rights to the Sponsorship acknowledgments and benefits as outlined herein and in Attachment A. Sponsor shall have exclusive rights for this category level and additional financial institutions will only be accepted up to the $2000 sponsorship levels. Banners from additional financial institutions will be limited to two per company and will not be hung at the entrance/exit area of the event and will not be hung on the stage. 3. Compensation and Commitments Sponsor agrees to pay the TOA by the date specified in Attachment B and the amount outlined in Attachment B in exchange for the Sponsorship and benefits promised herein and in related Attachments. Should the Sponsorship Fee not be paid in full by the date specified in Attachment B, the TOA has the right to ban all Sponsor's activities and signage from setting up on Event grounds. Sponsor agrees to fulfill its pre event and on -site obligations and commitments as outlined herein and in related Attachments. 4. Reference to Sponsorship in Advertising Subject to the TOA's rights of approval as described in this Agreement, during the term of this Agreement, Sponsor may identify itself as a Sponsor of Event and may use the name of the event or location in its advertising. 6. Use of Trademarks Sponsor grants the TOA the right and non - exclusive license, worldwide and royalty free, during the term of this Agreement, to use the Sponsor's trademarks to advertise, publicly represent and otherwise promote the fact that it is a Sponsor of the Event. This license specifically authorizes the TOA to refer to "American National Bank" as a Sponsor of the Event. The TOA grants Sponsor the right and non - exclusive license, worldwide and royalty free, during the term of this Agreement, to use the TOA's trademarks to advertise, publicly represent and otherwise promote the fact that it is a Sponsor of The Event. This license specifically authorizes Sponsor and /or "American National Bank" to refer to itself as a Sponsor of the Event. Before either party may use the trademark licenses referred to in this Agreement, it shall first submit the concept or a sample of the proposed use to the other party, for approval, which approval shall not be unreasonably withheld. Sample of the TOA's trademark: C O L O R A D O Sample of the Sponsors's trademark: F., i f r # + 7. Signage and Banners All Sponsor signage at the Event must represent Sponsor, and be approved by the TOA in advance of the Event, which approval will not be unreasonably withheld. The TOA assumes no responsibility in case of loss or damage to signage submitted for use during the Event. No third party or handwritten signage is allowed and all signage must be of professional quality. Signage of designated media Sponsors is allowed, subject to approval by the TOA and Sponsor. Sponsor must make best efforts to ensure that handbills /flyers /posters etc. created for the Event are distributed legally and with proper approval. 8. Fulfillment/ Force Majeure Events In the event that any scheduled performance or activity is subject to cancellation by illness, accidents, failure of means of transportation, lack of event funding, act of God, riots, strikes, labor difficulties, act or order of any public authority, or any cause similar, to the foregoing which is beyond control of the parties, both shall be relieved of their respective obligations for the performance or activity so prevented, and Sponsor shall be entitled to an immediate refund of the Sponsorship fee. In the event that the event is postponed for one day due to rain, the Sponsorship fee will not be refunded. 9. Discretionary Matters It is agreed that the TOA enters into this agreement as the producer of the Event, and it has sole and exclusive control over the production and presentation of scheduled Event performances or activities, including but not limited to, details, means and methods of performances and activities presented, and persons employed by the TOA. Sponsor has no right to control or direct the result of or the details, methods, manner or means by which the TOA manages or operates its business or performs the services related to transportation, facilities, equipment and supplies needed to fulfill this Agreement. The TOA reserves the right to terminate this agreement with Sponsor when Sponsor's actions are determined to be materially detrimental to the good image of the Event. Any decision affecting any matter not expressly provided herein or attached hereto shall rest solely with the TOA. 10. Notices All notices, payments and statements provided for herein shall be in writing and shall be deemed given if sent by Registered or Certified Mail, postage prepaid, by express delivery service (receipt requested), or by verifiable facsimile transmission, addressed to the parties at their respective address set forth below, or at such other addresses as either party may from time to time specify to the other in writing: The TOA: Town of Avon Town Clerk P.O. Box 975 Avon, Colorado 81620 970 748 4032 Sponsor: American National Bank 3033 East First Ave Suite 300 Denver CO, 80206 Fax 303- 321 -4444 Attn: Counsel 11. Indemnify TOA will indemnify Sponsor and hold Sponsor harmless against any loss, claim, damage, liability or expense that Sponsor may suffer or that may be asserted against Sponsor in connection with any injury, death or property damage resulting from the Event, subject to the limitations of the Colorado Governmental Immunity Act. 12. Law This Agreement shall be construed, governed and interpreted pursuant to the laws of the State of Colorado applicable to agreements only to be performed therein. 13Venue Venue for any legal proceeding arising from this agreement shall be proper in any court of competent jurisdiction located in the County of Eagle, State of Colorado. 14Future Years As a sponsor for the current year 2006, Sponsor is entitled to "first right of refusal" of Title Sponsor category (Attachment A) for the following year (2007) at the cost set for that category for that year. Such first right of refusal shall be exercised only in writing and only on or before December 29, 2006. In WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written above. Town of Avon Ron Wolfe Mayor 9�O'nso"r Signature Title Date Date ATTACHMENT A SPONSOR ACKNOWLEDGEMENTS & BENEFITS Definition of Sponsorship: Sponsor shall be the Title Sponsor of Salute to the U.S.A. to be held in Avon, Colorado. The TOA will provide Sponsor with the following event - related acknowledgements and benefits: 1. Sponsor Will be Recognized as the Title Sponsor: • The name of the event will appear as follows in all promotions, (including print materials, advertising, radio ads, web submissions and signage): "Title Sponsor's" Salute to the USA in Avon, CO. • Event name will be included in event press release. • Event name will be featured on TOA website. • Event name will be marketed and included in Beaver Creek summer marketing campaign (including front range outreach). 2. Sponsor Logo Prominent Placement In /On: • All print and web related marketing developed in support of the Event. • Bridge Banner to hang on Railroad Bridge in Avon for one month prior to Salute. • Posters to be distributed prior to event in local and regional businesses. • Sponsor may produce sponsor signage to be hung on lightpole banners at Avon roundabouts from June 3 —July 4, 2006. Town of Avon will produce Independence Day themed banners to alternate with sponsor light pole banners. 3. Sponsor On -Site Exposure: • Sponsor will be thanked during stage announcements made prior to artists performing on the stage, during set breaks, and prior to fireworks show. • Placement of 20 Sponsor banners throughout event site. Sponsor and TOA will mutually agree upon a venue signage plan, including prominent entrance and stage sponsor signage placement. Signage costs are not included in the Sponsorship fee. 4. Sponsor Promotions: • Sponsor has the opportunity to develop, produce, and implement promotions related to the Event with prior approval by The TOA. The TOA must have the opportunity to review and authorize any promotions or advertisement utilizing the Event name, likeness, or logo during the conceptual stage, and then again prior to final production. Such authorization shall not be unreasonably withheld. • Sponsor has the opportunity to develop Product placement/display on site in Nottingham Park during the event and possibly in Avon Rec Center lobby prior to event. The TOA. The TOA must have the opportunity to review and authorize any promotions during the conceptual stage, and then again prior to final production. Such authorization shall not be unreasonably withheld. 5. YIP Passes /Additional Benefits: • The TOA will provide 20 VIP passes to the Sponsor, and 10 parking passes. • Sponsor will receive either two annual passes or five 25 -punch admission cards to the Avon Rec Center. ATTACHMENT B • SPONSORSHIP FEES & ADVERTISING COMMITMENTS • American National Bank (Sponsor) agrees to pay the TOA 30,000 dollars ($) by May 10, 2006. • Sponsorship fee entitles the Sponsor to the terms listed in the above agreement. TOWN OF AVON, COLORADO T)fq ��,W ,�. REGULAR COUNCIL MEETING FOR TUESDAY, MARCH 14, 2006 WT n (� L, 0 AVON MUNICIPAL BUILDING, 400 BENCHMARK ROAD 1-1 1) () PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM TAMRA NOTTINGHAM UNDERWOOD COUNCILORS DEBBIE BUCKLEY KRISTI FERRARO MAC McDEVITT AMY PHILLIPS BRIAN SIPES TOWN STAFF TOWN ATTORNEY: JOHN DUNN TOWN CLERK: PATTY MCKENNY TOWN MANAGER: LARRY BROOKS ASSISTANT TOWN MANAGER: JACQUIE HALBURNT 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 2:30 PM 2:30 PM — 4:00 PM 1. EXECUTIVE SESSION (John Dunn, Town Attorney) pursuant to CRS 24-6 - 402(4)(b) conference with attorney for the local public body for the purpose of receiving legal advice on specific legal questions, specifically discussion on updates for the RICD application, the land acquisition for the transportation center, the Public Utilities Commission's decision regarding Avon's at grade railroad crossings, and the Confluence agreements 4:00 PM — 4:15 PM 2. APPROVAL OF WORK SESSION AGENDA & COUNCIL ASSIGNMENT UPDATES a. Eagle County Open Space Advisory Committee Update (Mayor Wolfe) b. Beaver Creek Marketing Update (Councilor Phillips) 4:15 PM — 5:15 PM 3. Avon Transportation Center - Design Development Review submitted by Design Workshop (Norm Wood, Town Engineer) Review of design development package for the Transportation Center 5:15 PM — 5:25 PM 4. STAFF UPDATES a. Highway 6 / West Beaver Creek Blvd. Intersection Improvements (Norm Wood, Town Engineer) Update on progress of this project b. Project Summary & Status Report / Memo only c. Financial Matters Report / Memo only d. Business Registration Updates (Patty McKenny, Town Clerk,) Memo only 5:25 PM 5. ADJOURNMENT Avon Council Meeting. 06.03.14 Page 1 of 3 JI L:4 11179 To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engine r Date: March 8, 2006 Re: Avon Transportation Center - Design Development Review Summary: Steven Spears, from Design Workshop will present the Design Development Package for the Transportation Center and take comments from Council. Steven will discuss items as outlined in the attached Memo (Exhibit 1). Design Workshop has submitted Design Development Drawings for the Transportation Center, to the Town for review & comment. We have included copies of what we believe to be drawings (Exhibit 2) that will convey the overall design of the center as well as the more visual aspects of the design. We have also included copies of Wayfinding and Signage Design Development Details (Exhibit 3) and cut sheets for some of the proposed furnishings and fixtures (Exhibit 4). A complete and full size set of the Design Development Drawings are available for review in the engineering department and copies of any particular sheets will be made upon request. We recommend Council review and comment on the proposed design as presented. Staff will prepare a list of comments including Council comments and Staff concerns and comments for consideration by the Council at the next regular meeting and upon approval of Council, that list will be forwarded to Design Workshop to be incorporated into the final design plans and construction documents. Recommendation: Review and comment on proposed Transportation Center proposed design and materials with comments to be incorporated into a response to Design Workshop to be addressed in the final design plans and documents. 1:\Engineeting'\CIP\Transportation Center\3.0 DesiLm\DD DrawingsOD Memo.Doc 1 Town Manager Comments: Attachments: Exhibit 1: Avon Transit Center Memo (I Page) Exhibit 2: Design Development Drawing - Partial (9 Pages) Exhibit 3: Wayfinding & Signage (l1 Pages) Exhibit 4: Furnishings & Fixtures (10 Pages) 1:AEngiiieering\CIP\Transportation Center\3.0 Desigii0f) Drawings\DD Nlemo.Doc 2 'Elvv AJ / 6' / 7- / TOWN CENTER WEST & main street public improvements AVON TRANSIT CENTER Design Development Update March 14, 2006 To: The Honorable Mayor and Councilors From: Norman Wood, Town Engineer The Design Workshop team has proceeded with the design of the Avon Transit Center per your direction at their Schematic Design presentation on January 10, 2006. Staff has also provided the Design Workshop team with comments and discussion regarding the overall design intent, materials and relationship to the future railroad crossings. Steven Spears of Design Workshop will present their Design Development package and take comments from Council. Specifically, Steven will discuss: 1. Enhancement of the larger concept of the Transit Center and how it relates to Town Center West 2. Design for the interior island 3. Streetlight and transit stop design 4. Transit shelter design 5. Planting design 6. Material/furniture selection 7. Review of Design Development package Staff and Design Workshop request that Council provide direction and authorization to precede into full construction drawings in order to meet the next deadline of April 25, 2006. Staff is reviewing the Design Development package for accurate content and quality assurance. This deadline is in concert with the proposed construction schedule of Summer 2006. B Project Description or Supplemental Information Text block for pnlecd description or aupplementd Ini—st t Signatures Dam Dam Dam Dam Grant Namet Title Dam Client Named Title Data CLIENT LANDSCAPE ARCHITECT: Town of Avon DESIGNWORKSHOP P.O. Box 975 120 E. Main Street Avon, CO 81620 Aspen, CO 81611 Tel: (970) 748 -4002 Tel: (970) 925 -8354 Facsimile: (970) 949 -5749 Facsimile: (970) 920 -4387 - V TRANSIT CENTER Design Development NOT • R CONSTRUCTION March 14, 2006 CIVIL and STRUCTURAL ENGINEER: Johnson, Kunkle and Associates 1286 Chambers Avenue, Ste. 200 P.O. Box 409 Eagle, CO 81631 Tel: (970) 328 -6368 Facsimile: (970) 328 -1035 TRANSPORTATION ENGINEER: LSC Transportation Consultants, Inc. 2690 Lake Forest Road P.O. Box 5875 Tahoe City, CA 96145 -5875 Tel: (530) 583 -4053 Facsimile: (530) 583 -5966 Sheet Index Sheet Sheet This No. Construction Drawings: Landscape Archltaclure Drawings L0.01 General Notes L3.01 Overall Layout Plan (WA) L4.01 tDverall Memnam Plan 1.7.01 Site Construction Details L7.02 SRO Construction Ddalls L7.03 Section and Ekwallaw L7.04 SecOOna and Elevellone LSAt Overall Planting Design 1.9.01 Planting Details Chit Drawings C -1 Exlaflng SR. Conditions C-2 Stte Demolhlon Plan C-3 Site Grading S Drainage Plan C4 Temporary En ion Control Plan CS Details & Notes Architectural Drawings Al .01 Floor, Roof and Reflected Ceiling Plans A1.02 Elevations and Sections Structural Drawings 51.1 General Notes 52.1 Foundation Plan and Delete 52.2 Roof Framing Plan and Detalis Mechanical Electrical Plmnbhng Drawings Wayfinding and Signage Drawings See Wayflnding and Signage Fabricate Packet TRANSIT ARCHITECT: OTAK 17355 SW Boones Ferry Road Lake Oswego, OR 97035 -5217 Tel: (503) 635 -3618 Facsimile: (503) 635 -5395 / it Sheet Sheet This MEP ENGINEER Beaudin Ganze 110 East Beaver Creek Bvd. Suite 202 Avon, CO 81620 Tel: (970) 949 -6108 Facsimile: (970) 949 -6159 U R 01 © 03 ® ® Oe O 08 CU • • • • SITE DETAIL KEYNOTES: DETAIU8HEET ... 0 PAVEMENTS RAMPS CURBS 1.1 GONCRETEUNRPAVERS -TYPEI 1437.01 12 CONCRETE UNIT PAVERS -TYPE II 2A7.01 1.3 COLORED CONCRETE 3M17.01 ® . . ..... ........ . .. ... ..... ....... .... ' _..... .:,. - SCORED 1.4 PEDESTRV ZONE SANDING 4IL1.01 LS AUTOZONESANDNG W7.01 1.7 DECOMPOSED COLORED CONCRETE VALLEY PAN ME CIVR tb CG.ORED CONCRETE CURB ANO GUTTERPAN SEE CNK B COOKED CONCREE GRBANO POW PAN SEE CIVIL '. 1.10 ASPHALT SEECIV IL 1.11 ASPHN.TKEY IN SEE CIVIL JOINTING ,; _ VVVttt!lIVV 21 IDPANSION JOINT TIL7101 ',. { _ ,- 22 CONTROLJGMMTAt STEPS SITE WALLS/ EMBANKMENTS ..... .. ... -� 4.1 GP WALL -TYP SEE STRUCTURAL 4.2 GP WALL W /GUARDRAIL 2L7.06 •_ - -�_. / SITE FURNITURE 143.7'02 ti 5_1 BENCH 52 TRASH RECEPTt D.E 2L7.02 ® _ 63 REMDVAB 68G.IARD TLI' 2 ... '... - f' S.4 STATIONARY SOUARD 4iLTU SS SKI RACKISBQ: RAG( 3M1T.05 S.8 NEWSPAPER RACK NA .. i _....... "' RAILINGS BARRIERS FENCING 6.1 STEEL GUARORAW. CROSS SECTION NA >` -- 6.2 STEEL GUAADRNL ELEVATION NA LIGHTING/ ELECTRICAL 7'11 LIGHT POLE AND SASE 1410.01 •'' 72 DOWNUGHDNo DETAIL 1M0.01 73 STREET LIGHTING DETA ikit"a1 '. __... 7.4 LANOSGAPEUPUCRTNG A7.06 DRAINAGE IIIgp PLANTING AND LAN DSCAPE • 12 TI-S TEMTREEISHMSPLANTING 21.8.02 -� � � 913 SHRUB PLANTING &1.8.02 BA EDGING METAL 4+LBA1 x i � f � &B PERENNW. /GROUNOCWER PLANTING 64343.01 a f MISCELLANEOUS ELEMENTS Site Limit of DIStUfI)enCa ... ( 10.3 TRANSIT STOP SIGN LOCATION SEE WAWINDING } SECTIONS AND ELEVATIONS e' IIA STONE SANG ELEVATIONA 1437.03 .. .... ." `4 i t s (I�OAO TO ESAND-C X1,03 1143 STONEBAND EEEEVVATIONO RT.O4 11.5 STORE BAND ELEVATION E VL .04 ,. ,.' .-.... � 11.8 GUAFDMIL WALL ELEVATION -ONE NA 11.7 GUARDRAIL WALL ELEVATION TWO M ., .: _ •�� ' J i • 11.8 GUARDRAIL WALL ELEVATION, THREE NA 11.8 STONE RAND BECTON 3KT.04 WATER FEATURES ® j A - SITE LAYOUT AND CONSTRUCTION NOTES aj SITE MATERIALS NOTES 1.1 TRANSIT SHELTER- SEE ARCH. DRAWINGS i Z .. ....E .. __. ....... i ,. ESL { LL • "� F h t r, .. _. ,its UrmJtotDisturban _. z DF NORTH D 10' T. 40' 1: DESIGNWORKSHOP Landscape Architecture • Land Planning Urban Design • Tourism Planning Aspen • Denver. Park City • Santa Fe • Tempe Lake Takagi 120 East Main Street Aspen, Colorado 81611 (970 )-925 -8354 Facsimile (970) 920 -1387 W W W.D ES I G W OR KS HO P.COM LM LM • • • • • 1 0 0 ISSUE DATE: 01724/08 REVISIONS # DATE DESCRIPTION 1 03114M DESIGN DEVELOPMENT ORAWN: DC REVIEWED: SS OVERALL MATERIALS PLAN PROJECT NUMBER 3887 SHEETNUMBER L4.01 0a01YRI11r aesla Nwa3ASnar. INc on d u T TURING OlA STEEL TURING I a n d s c a P e f o r m s CAST ALUMINUM 4E LAVIDLE AVE NMI WD-5'1-2546 MARA , K 49M FAA 269 - 31-3455 D a a a a G a a D a a 0 a D D a a a a a G 0000000 0000000 0000000 DATE, 12-" DIED IT OTHERS 00 TIE MENT IF LNOSCAPE TURNS, 8C Me TAN T TURING OlA STEEL TURING I a n d s c a P e f o r m s CAST ALUMINUM 4E LAVIDLE AVE NMI WD-5'1-2546 MARA , K 49M FAA 269 - 31-3455 TITLE: CHASE PAS }SERI B0.!YD UNIT, 9RfNF IgMi GN'IBE11IUi IRAVfai Di11tlaTON IINtAOEO tLPEAi 6 TIE PFiPER(T ff LN05CPPE NSNdT HKff PARK PATENT: PENRI G FW DE. 1NTENIC TAE IS 111110 TO DESERT PRRSMiU Si MN LNNSCFPE FILE: FUMa X PUTS AND TIER DOM (LENTS ]RAVING IS NN TO N MM IN DATE, 12-" DIED IT OTHERS 00 TIE MENT IF LNOSCAPE TURNS, 8C Me TAN 0201 6" STRUCTURAL LJ 4I us] i� 0 STEEL SURFACE PMUNT PLATE VITH 711V DIAL HOLE 0IP Tor 2 EA t3132'DIA HGL 0 Iandsca PeT6rms �e,�i:.,LOxA�'m,w rmuN`' :` ro �,wmxFecwsmerROP�. oFwlosure ° r""" a r,mrn ale =1.1 O rxoressloNNesrzcmwe wmePPE �',� rraom .m`"•'eewRa.Twems. oaAVnrconmroerww ®w TOO1NT w"zNOalcaiu cowe.RCruNmcrseroce alc ouwaar Io TRASH RECEPTACLE SG -3/4' CAST ALUMINUM PAVEMENTS RAMPS CURBS TOP 1.1 CONCREfEUNRPAVERS -TYPEI 1A.7.01 7 -3/4' 12 CONCRETE UNIT PAVERS -TYPE 11 -1.01 1.3 SCORED COLOREDCIN.'CRETE 6" STRUCTURAL O 1.4 PEDESTRIAN ZONE BANDING 41LT01 STEEL PIPE 1.5 AUTO ZONE BANDING 547.01 V E6 5/8" DIA.) a4t.at CAST ALUMINUM 1.7 OOLOREDCOHCREfE VALLEY PAN SEE CARL TOP SEE CNIL KEYED LOCK 1.9 COLORED CONCRETE CURS AND ROW PAN SEECML 33" 1.10 ASPHALT SEE CNIL 1.11 ASPHALTKEYIN SEECML ® 6 "STRUCTURAL u„ SPUN ALUMINUM 21 EXPANSION JdNt STEEL PIPE (6 518" DIA.) COVER RING &17.01 is GRADE 33" WALLSFEMBANKMENTS SOD'S EB 4.1 CIA WALL -TYP SEE STRUCTURAL ROD 42 OF WALL W1 GUARDRAIL 2A.7.05 SPUN ALUMINUM 1g. COVER RING 147.02 GRADE 2A7.02 5.3 REMOVABLEBOLLARD 34.7.02 12 -7.. r 7 SA.Ta6 GALVANIZm SOCKET 5.6 NEWSPAPER RACK NA COLOR: SEE SPECS. WITH SELF - STORING 8.1 STEELGUARORALLCROSS SECTION COVER PLATE 8.R STEEL GUARDRAIL ELEVATION NA VC CAP...... 076 THRU. I a n d s c a t(''�� e f o r 431 LAWNDALE AVE PHGNE8W -52T -2546 m s® HOLE r'� I a n d s c a o f o r m s KALAMAZOO, MI 490M FAX: 269-0813455 TITLE 6 "REMOVABLE BOLLARD FJ 431 LAWNDALEAVE. PHONE: BW521 -2�q6 7.3 .RTrREET LIGHTING DETAIL CONFIDENTIAL DRAWING INFORMATION CONTAINED HEREIN a THE PROPERTY OF LANDSCAPE DESIGN. ANHAPOLG KALAMAZOO, MI 49048 FAX:2WJBIJ455 TffLE b 'EMBEDDED BOLLARD PATENT: FORMS. INC. THTENDED 115E IS LIMITED TO DESIGN PROFESSIONALS SPECIFYING LANDSCAPE FILE: AN7104 CONRDENRAL DRAWING INFORMATON CONTAINED HEREIN IS THE PROPERTY OF LANDSCAPE DESIGN: ANNAPOLIS FORMS, INC. PRODUCTS AND THEIR DIRECT CLIENTS. DRAWINGF NOT TO INC. DISCLOSED TO OTHERS WITHOUT THE CONSENT OF LANDSCAPE FORMS.C. COPIED OR DATE D 17-03 PATENT: FORMS, INC. INTENDED USE IS LIMITED TO DESIGN PROFESSIONALS SPECIFYING LANDSCAPE RlE AN7200 P2003 LANDSCAPE FORMS ALL RIGHTS RESERVED. AUTHOR: TAR FORMS, INC. PRODUCTS AND tMEiR DIRECT CLIENTS. DRAWING 6NOT TO BE COPIED OR B.2 MULTI -STEM TREE I SHRU PLANTING 248.02 DISCLOSED TOOTHERS WBHOUT THE CONSENT OF LANDSCAPE FORMS, INC. AUTHOR.' iAH 34A.02 4A.S.Ot 02003 LANDSCAPE FORMS. ALL RIGHTS RESERVED. SALS.01 REMOVABLE BOLLARD MISCELLANEOUS ELEMENTS ..:.,..I--- A& STATIONARY BOLLARD SECTIONS AND ELEVATIONS a 0 r M ® I SITE DETAIL KEYNOTES: DETAIL/SHEET PAVEMENTS RAMPS CURBS VVVllllllVVV tlllV 1.1 CONCREfEUNRPAVERS -TYPEI 1A.7.01 12 CONCRETE UNIT PAVERS -TYPE 11 -1.01 1.3 SCORED COLOREDCIN.'CRETE X7,01 O 1.4 PEDESTRIAN ZONE BANDING 41LT01 o 1.5 AUTO ZONE BANDING 547.01 V 1.8 DECOMPOSED GRAVEL a4t.at > 1.7 OOLOREDCOHCREfE VALLEY PAN SEE CARL IS COLORED CONCRETE CURB AND GUTTER PAN SEE CNIL 1.9 COLORED CONCRETE CURS AND ROW PAN SEECML 1.10 ASPHALT SEE CNIL 1.11 ASPHALTKEYIN SEECML ® JOINTING 21 EXPANSION JdNt 74741 22 CONTRW. JOINT &17.01 is STEPS ®SITE WALLSFEMBANKMENTS 4.1 CIA WALL -TYP SEE STRUCTURAL 42 OF WALL W1 GUARDRAIL 2A.7.05 ® SITE FURNITURE 5.1 BENCH 147.02 62 TRASH RECEPFACLE 2A7.02 5.3 REMOVABLEBOLLARD 34.7.02 S.4 STATIONARY BOLLARD -7.. S3 SNI RACWSINE RACK SA.Ta6 5.6 NEWSPAPER RACK NA RAILINGS BARRIERS FENCING 8.1 STEELGUARORALLCROSS SECTION NA 8.R STEEL GUARDRAIL ELEVATION NA ® LIGHTING/ ELECTRICAL ).1 LIGHT POLE AND BASE 1A10.a1 TZ DOWN LIGHTING DETAIL 1410.01 7.3 .RTrREET LIGHTING DETAIL 1410.01 7A LANDSCAPE UP LIGHTING 14706 ® DRAINAGE ® PLANTING AND LANDSCAPE 0ECIDUOUS TREE PLANTING B.2 MULTI -STEM TREE I SHRU PLANTING 248.02 93 SHRUB PLANTING BA ED(BINGMETAL 34A.02 4A.S.Ot 9.5 PERENNIAL l GROUNDCOVER PLANTING SALS.01 MISCELLANEOUS ELEMENTS IC3 TRANSIT STOP SKIN LOCATION SEE WAYFINDING SECTIONS AND ELEVATIONS 11.1 STONEBAND ELEVATIONA 14-1- 112 STONE&WD ELEVATtONO 24.7.03 11.3 STMEBANOELEVATIONC 347.03 11.4 SIM BAND ELEVATION 0 1&T. ITS STONE BAND ELEVATION E 11.0 GLUItpMIL WALL ELEVATION -ONE RA "I GDARMAILWALLELEVATWN -TWO NA Ile GLMRDRA4WAU.ELEVATION -THREE NA 11.3 STONE BAND SECTION W.T. isWATER FEATURES SITE LAYOUT AND CONSTRUCTION NOTES ® SITE MATERIALS NOTES 1.1 TRANSRSHELTER- SEEARCH.DRAWINCS LN NO LL O LL O Z DESIGNWORKSHOP Landscape Architecture . Land Planning Urban Design . Tourism Planning Aspen . Denver • Park City . Santo Pe . Tempe Lake Tahoe 120 East Main Street Aspen, Colorado 81811 (970 )-925.8354 Facsimile (970) 920 -1387 W W W.DESIONW ORKSHOP.COM Lo 4) 1� 4) O V L 4 > O i V o 3 }� 0 V •_ > o Lm Q ISSUE GATE: 01124108 REVISIONS # DATE DESCRTFTION 1 03114/08 DESIGN DEVELOPMENT DRAWN: DO REVIEWED: SS PROJECT NUMBER 38Sr SITE 'PONSTRUCTION DETAILS SHEET Nt1MBER L7.02 0..11A T. es 1. Nwa BKa -P.... M 0 MI) TE M 0 (D - STONE BAND ELEVATION - A-A' STONE BAND ELEVATION - C-C' H STONE BAND ELEVATION - B-B' M 101 C ©7 SITE DETAIL KEYNOTES: DETAIUSHEET is PAVEMENTS, RAMPS, CURBS 1.1 CONCREtE UNITPAV15RS-TYPEI I&IM 12 CONCRETIEUNITPAVERS-KII 2ILT.01 1.3 SCORED COLORED, CONCRETE 3 &T91 0 to PEDESTRIAN ZONE BANDING 1.5 AUTOZONESANDING 4L1.01 SC7.01 0 'A DECONPOBEo GRAVEL COLOREDCON M7.01 CIVIL to) 1.) RETEVAULEYPAN COLORED COt4CRETIECURSANDGUTTERPAN SEE SEE CIVIL d COLORED CONCRETE CUM AND RM PAN SEE CIVIL 1.10 ASPHALT SEE CIVIL I . I ASPHALTKEYIN SEE CIVIL 40 JOINTING 21 WANMONJOIw 2.2 CONTROL. JOINT -.01 S&7.01 is STEPS is SITE WALLS/ EMBANKMENTS 0 0 P WALL -Typ SEE STRUCTURAL 42 CIP WALL W1 GUARDRAIL 2ILto is SITE FURNITURE BENCH 1A.TM TRASH RECEPTACLE x S.3 REMOVABLE Bd.LARD -I.. 6.4 STATIONARY SGUARO 515 VLIM X71M 6.6 NEWSPAPER RACK NA isRAILINGS, BARRIERS, FENCING 6, STEEL GUARDRAIL CROSS SECTION NA 61 STEEL QUARORAJIL ELEVATION NA 15 LIGHTING/ ELECTRICAL 71 LIGHT POLE AND BASE 72 DOWN LIGHTING DETAIL 1&10.01 7.3 STREET LIGHTING DETAIL 1&10.01 LANDSCAPE UP LIGHTING I&I'M DRAINAGE PLANTING AND LANDSCAPE 911 DECIDUOUS TREE PLANTING 91 MULTLSTEhI TREE , SHRUB PLANTING -ur- 2IL9.02 9.3 SHRUB PLANTING 3`LO92 E INGMETAI. :�,5 4L9SI PEASNININLtG OMOCOVERPLANTING S'LaSI MISCELLANEOUS ELEMENTS 1013 TRANSIT STOP SIGN LOCATION SEEINAYINOING SECTIONS AND ELEVATIONS .l S EBANDD.EVATTONA 1&>1&>93 r ;� 2 BTONEBANDELEVATIONS 2 &7.0 11.3 :TON SAND ELEVATION C 11.4 EBAN ELEVATIONO 11.5 STONERA1,1DELEVATIONE A GUARD ILWALLELEVATION-ONE NA �; , CLARDRA WALLELEVATtON-TWO NA ITS GUARDRAIL WALL ELEVATION -THREE NA STORE BAND SECTION WATER FEATURES 3&704 SITE LAYOUT AND CONSTRUCTION NOTES 4a SITE MATERIALS NOTES 1.1 TRAN8R SHELTER -SEE ARCH.OMWING8 a [a DESIGNWORKSHOP Landscape Architecture - Land Planning Urban Design - Tourism Planning ky— . Denver. Pork Q(y. Sans Fe Tempe . Lake Tahoe 120 East Main Street Aspen, Colorado 81811 (970Y925-8354 Facsimile (970) 920-1387 W W W. D E S I G N W 0 R K 8 HO P. C 0 M LM 4) LM 4) 4) 00` L. 4) 0 0 0 to) 0 mes"' r d 0„ 0 >■ ISSUE DATE-- 01/24M REVISIONS # DATE DESCRIPTION 1 03114MB DESIGN DEVELOPMENT DRAWN: Do REVIEWED: SS PROJECT NUMBER: 3857 SECTIONS AND ELEVATIONS SHEET NUMBER L7.03 (D-PIR-1.............11. 0 Y k p6 2 11, DESIGNWORKSHOP Landscape Architecture . Land Planning Urban Design . Tourism Planning Aspen . Denver. Park City . Santa Pe . Tempe . Labs Takagi 120 East Main Street Aspen, Colorado 81611 (970 )-925-8354 Facsimile (970) 920 -1387 W W W.DE S GN W ORKS NO P.COM Lee, 4) O\ O 4 L G O •� 3 Q 0 LM O H >~ Q ISSUE DATE: 01124= REVISION$ # DATE DESCRIPTION 1 0&140 DESIGN DEVELOPMENT DRAWN: DC REVIEWED: SS PROJECT NUMBER 3587 SHEEP NUMBER L8.01 OCIP11 GIT 1Ee11NW0RX6Hae ,ae j$ y� E 0 REFLECTOR LIGHT SOURI (NIGHT ONLY) LIGHT SOURI (DUSK & NIGHT) AVON TOWN CENTER BANNERS GUN METAL OR RUST FIN'. (nP) STEEL PLATE T.C.W. LOGO SANDBLASTE NATURAL CLE STONE FACE n FRONT VIEW SIDE VIEW TRANSIT CENTER LIGHT POST N.T.S. LIGHT & BOLLARD DETAILS SOLAR POWERED BOLLARDS N.T.S. LIGHT AT DUSK (PLAN VIEW'S N.T.S. LIGHT AT NIGHT PLAN N.T.S. vr'y STEEL COL) DESIGNWORKSHOP Landscape Architecture . Land Planning Urban Design . Tourism Planning A4w . Denver. Park City • Soma Fe • Tempe Lake Tahoe 120 East Main Street Aspen, Colorado 81611 (970 )-925.6354 Facsimile (970) 920 -1387 W W W. D E S I G N W O R K S H O P. C O M LM 4) L 0 / C AL' U ta_ O O V •_ 0 > 3 O L `O ■ ISSUE DATE 01124" REVISIONS # DATE DESCRIPTION 1 n14M DESIGN DEVELOPMENT DRAWN: DC REVIEWED: SS SITE LIGHTING DETAILS PROJECT NUMSEIL 3587 SHEETNUMBER X10.01 mna..R an.D- ... -...1- a Ecl (D 1 0 1 @ I @ I nA nB nc nD (�)REFLECTED CEILING PLAN O 2 A1.03 G) I I G) I @ (2)ROOF PLAN ri-\FLOOR PLAN (D so Otak Architects, Inc. 17355 SW BOONES FERRY RD. LAKE OSWEGO, OR 97035 T 503 635 3618 F 503 635 5395 Lm ISSUE DATE: 03/14M REVISIONS # DATE DESCRIPTION A- 03114. DESIGN DEVELOPMENT 0 4 DRAWN: DCS REVIEWED: GH (A c Lo 0 O (.) CF 0 AND REFLECTED 0 CEILING PLANS PROJECT NUMBER 13245 ISSUE DATE: 03/14M REVISIONS # DATE DESCRIPTION A- 03114. DESIGN DEVELOPMENT 4 DRAWN: DCS REVIEWED: GH FLOOR, ROOF, AND REFLECTED CEILING PLANS PROJECT NUMBER 13245 SHEET NUMBER 0 2 4 A1.01 Q% (3) ME E NORTH ELEVATION A1.02 scALE:va• =ra' WEST ELEVATION (D — "6�op OF SLAB BEAST ELEVATION o so Otak Ardytects, kr. 17355 SIN BOONES FERRY RD. LAKE OSWEGO ' OR 97036 T 503 635 3618 F 503 635 5395 IIGHT, TYP \\ PAINTED WOOD METAL ROOF STEEL COLUMN, TYP OVERHEAD ROLLING ALUMINUM FRAME DOOR TYP §OLITH ELEVATION SKYLIGHT, TYP A1.02 SCALE: 114• 1*,• 0 DRAWN: OCS REVIEWED: GH BEAST ELEVATION o so Otak Ardytects, kr. 17355 SIN BOONES FERRY RD. LAKE OSWEGO ' OR 97036 T 503 635 3618 F 503 635 5395 ISSUE DATE: 03114M REVISIONS METAL ROOF DATE DESCRIPTION 03114M DESIGN DEVELOPMENT ALUMINUM FRAME SKYLIGHT, TYP 0 DRAWN: OCS REVIEWED: GH V ELEVATIONS m AND SECTIONS 0 PROJECTNUMSER.- 13245 SHEET NUMBER 0' 2' 4' 8' STONE VENEER 0) 0 0 ISSUE DATE: 03114M REVISIONS DATE DESCRIPTION 03114M DESIGN DEVELOPMENT DRAWN: OCS REVIEWED: GH ELEVATIONS AND SECTIONS PROJECTNUMSER.- 13245 SHEET NUMBER 0' 2' 4' 8' A1.02 0) RIDGE TOP OFROOF am Otak Architects, Inc. 17355 SW BOONES FERRY RD. LAKE OSWEGO, OR 97035 T 503 635 3618 F 503 635 5395 0 V 0 0 0 0> ISSUE DATE: 03114M5 REVISIONS # DATE DESCRIPTION 03114MB DESIGN DEVELOPMENT DRAWN: GO REVIEWED; GH BUILDING SECTIONS WALL SECTION PROJECT' NUMBER: 13246 SHEET NUMBER A1.03 VON AN IT CENTER MARCH a e DESIGN DEVELOPMENT MARCH a e VIE: WAYFINDING SIGNAGE GuIDING PRINCIPLES A simple and clear identification system using Transit Line Colors at select transit stops. *Contemporary interpretation of historic element I forms and precedents inspired by the Railroal *Timeless. Contemporary. Elegant with a rustic twist. *Layered. Signing elements can be added to posts, etc. "Enhanced Colorado Native" and colors. e Own a "Sig-nature" Color. Distinctive color reinforces Transit Center area Identity. A component of the site sign program for Avon Town Center West. PAG E 1 I Interior Transit Center (Future) PLAN: Avon Transit Center Sign Locations Not to Scale M* 3 color-coded Avon Transit stops. -Blue Route: Avon Town Shuttle -Red Route: Hurd Lane Shuttle -Black: Avon Evening 2 "Eco Transit" stops. 1 Other/Misc: Avon Skier Shuttle, Beaver Creek Parking Lot Shuttle, Avon to Beaver Creek (Early AM) and Charter Service. BUS STOP IDENTIFICATION (on light post with bannel ROUTE MAP (Regional and Town) BUILDING IDENTIFICATION (Future) PA G E 2 'A ELEVATION: Bus Stop Identification-Type "A" 5 (Bus Stop 4 Layout shown) SCALE: 1/2"=1' -0" Vus Stop Identification and banner on light post standard-Stops 4 and 6 only P A, G E 3 -1 L SCALE: 1/2"=1 ` -0" 0 Bus Stop Identification S12n and banner 10 1 k ,*n iignt post and railing-Stop 5 Only PAG E 4 a 2 LLLVAI IUN: bus 6top luentlTication- lype 'u' SCALE: 1/2"=1'-O" Bus Stop Identification sign overhan mounte g d-Stops 1,2,3 P A G E 5 a SCALE: 112 ° =1' -0" Bus Stop Identification sign overhang mounted-Stops 2,3 (Future condition with building) PA. G E 6 I DETAIL ELEVATION: Bus Stop Identification-Blue Line Not to Scale DETAIL ELEVATION: Bus Stop Identification-Red Line Not to Scale DETAIL ELEVATION: Bus Stop Identification-Black Line Not to Scale DETAIL ELEVATION: Bus Stop | Skier Shuttle DETAIL ELEVATION: Bus Stop |dnnhficadon 6mTmned Not to Scale Not to Scale P A G E 1TTI M. tl M Xr—M * T - ?.nd/or acrylic case. Face of map insert is clear lexan. Note: Face can be a chongoble route mop graphic insert. "Take awoy"maps can be housed in clear acrylic holders. PERSPECTIVE: Transite Shelter (with Route Map) Not to Scale ELEVATION: Bus Route Map SCALE: 1"=1'-0" Bus Route Map-Regional and Loca within Transit Shelter I P A G E 8 ELEVATION: Bus Route Maps (Town and Regional) SCALE: 1 '=V-0" Bus Route Map (Town and Regional) Wall Mounted within Transit Center (For future building) Route Map: Fabricated metal and/or acrylic case. Face of map insert is clear lexan. Note. Face can be a changable route map graphic insert. "Take away"maps can be housed in clear acrylic holders. Final locations to be determined by interior build-out. P A, G E I AVON TRANSIT CENTER— +,4 F -------------------------- 1-------------------- - - - - -- - Building Identification: 1/4"thick individual cut metal letters-painted color: T.B.D. Pin mount to existing building facade in a permanent manner (with no exposed fasten- ers on front face). ELEVATION: Transit Center Building Identification SCALE: 1"=1'-0" (Future) Transit Center Building Identification P A, G E 1, �"�,�iT � .0 I�� will, Am Annapolis stands its ground and performs multiple maneuvers with style. This new bollard functions as a defining element to mark pathways and direct pedestrian traffic; as a safety barrier to protect pedestrian areas from vehicular traffic; and as a security bulwark against intentional, destructive trespass. Constructed of half -inch sheet steel in 6" or 12" diameters, it is exceptionally strong. Annapolis is designed to complement the range of Landscape Forms' furniture for outdoor spaces. A removable bollard option provides site flexibility. Other smart options include a polyethylene sleeve that protects it from dents and scratches, and lighting that sheds a soft glow. Annapolis Boilard Specifications Annapolis bollards are constructed of a structural steel tube body with a cast aluminum top and a spun aluminum base ring. Bollards securely embed in 18" of concrete. The removable version is secured in an embedded steel socket. Annapolis is available in 6" or 12" diameter, with or without low voltage lighting. A protective polyethylene sleeve is available in three standard colors - Grotto, Ivy, or Silver. Custom color sleeves are available on orders of 50 or more for an upcharge. A removable bollard option is also available to provide additional site flexibility. This bollard comes with a keyed lock for security and a cover plate that stores within the base when the bollard is fixed. On removal, the cover plate fits flush with the surface and is secured with a chain. The embedded socket and cover plate are constructed of hot dip galvanized steel. Al other metal is finished with Landscape Forms' proprietary Pangard Il' polyester pow - dercoat, a hard yet flexible finish that resists rusting, chipping, peeling and fading. Call for a standard color chart. Our purpose is to Enrich Outdoor Spaces ,V: b _ ieve, n the rover of c ;1n ubf ly to inf'ueIl:e «r el-v, e the ciu lity of puiblic ,,. FIigh t.ICaiihy Cro Rx s and outstanding ,ustomer experience alakes orle o* a wori,J's l; >;:,, ic:r J;si.gr ts, and r ai ?C rfra::ts.,rfr s;, of oulc oor cc mrrerci a( www.landscapeforms.com Visit our website for product details, color charts, technical sheets, sales office locations. Download JPG images, brochure PDF, CAD details, CSI specifications. Annapolis is designed by Brian Kane, IDSA. Specifications are subject to change without notice. Annapolis is manufactured in U.S.A. Location photography: Kalamazoo College, Kalamazoo, MI Landscape Forms supports the LAF at the Second Century level. ©2003 Landscape Forms, Inc. Printed in U.S.A. I and scapeforms® 800.521.2546 269.381.3455 fax 431 Lawndale Ave., Kalamazoo, MI 49048 www.landscapeforms.com I f I 6" x 33" ..................... 12" x 33" dia. x h outer sleeve Our purpose is to Enrich Outdoor Spaces ,V: b _ ieve, n the rover of c ;1n ubf ly to inf'ueIl:e «r el-v, e the ciu lity of puiblic ,,. FIigh t.ICaiihy Cro Rx s and outstanding ,ustomer experience alakes orle o* a wori,J's l; >;:,, ic:r J;si.gr ts, and r ai ?C rfra::ts.,rfr s;, of oulc oor cc mrrerci a( www.landscapeforms.com Visit our website for product details, color charts, technical sheets, sales office locations. Download JPG images, brochure PDF, CAD details, CSI specifications. Annapolis is designed by Brian Kane, IDSA. Specifications are subject to change without notice. Annapolis is manufactured in U.S.A. Location photography: Kalamazoo College, Kalamazoo, MI Landscape Forms supports the LAF at the Second Century level. ©2003 Landscape Forms, Inc. Printed in U.S.A. I and scapeforms® 800.521.2546 269.381.3455 fax 431 Lawndale Ave., Kalamazoo, MI 49048 www.landscapeforms.com im INDIRECT Other indirect luminaires typically throw 40 to 50 percent of their light output upwards into the sky. The result is poor efficiency as well as light pollution. The Indirect's specially designed lower reflector precisely focuses the light energy onto the upper reflector with virtually no stray, uptight. The Indirect emits less than one half of one percent upward. This has earned an IES "cutoff luminaire" classification from the independent photometric testing lab. AAL Indirect less than 1/2% uptight IES cutoff luminaire * high efficiency others 40 to 50% uplight IES non-cutoff luminaire * low efficiency t 0 A R C H I T E C T U R A L A R E A L I G H T I N G b\ m JL L:J I I me To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineee?;?4) Date: March 10, 2006 Re: US Highway 6 / West Beaver Creek Boulevard Intersection Upgrade Summary: This project is beginning to pickup speed and we will provide Council with an oral report under Staff Updates. Town Manager Comments: 1AEngineenng\C1P\Hwy 6-W Bvr Ck RA\Council Update.Doc To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Jacquie Halburnt, Asst. Town Manager From: Patty McKenny Date: March 7, 2006 Re: Business Registration Update for Avon Summary: A request has been made to include a list of new businesses registered in Avon in your packet, so below is a list of the new businesses and closed businesses in Avon. 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(D x a) E c 0 0) C\j C4 n M, x 0 -6 > 0 p E CD to 0 (D > (D z z E C) CL p - Q0 0 3: E E M — -i O O 0- m Q) LL (n 0 CC CD C) c OD ca V) 0) (D co co io > 0) E CL (D 0 a) - . T- -US co E -0 t, —Q) 15 2 ca z a) 0 . CU 7D -17 =— .Y roc 0 U .- _ 4:7- O 0 _;_ ;� 7-- Z- 2 0 m CD < T Cl) 3 = i5 m U m (D .> U- 2 W CL 0 c 0 (n cn M 0 :3 co co m < CU CL c) Q) crj '15 E la) 0 c t� o 0 0 U) CD cn > 0 CL c L 0 Cl) < F- E (D w LO cc vin LL > 0 co 0 U) c 0 0 0 0 CL 0- 0 0 (n CD 0) ca 0 < rn Z F- co a) U (D m CD w < 2 (D w cn (D 0 0 F- -0 :3 < m =3 m 0) CO co FINANCIAL MATTERS March 14, 2006 1. YTD Building Revenue Report Actual vs Budget - January 2006 2. Detail -Real Estate Transfer Taxes - January 2006 3. Accomodations Tax Worksheet Actual vs Budget - December 2005 4. Sales Tax Worksheet Actual vs Budget - December 2005 .r t \ q c^ C M N C C r- C- r- r- c::) "D CV OMtO CCNM Cl) M H CQ . . . . . . . . H W CCOO rn rn 0000 l- r a sa O COI 0000 Ol 6l O CNN � QQ �racoHM O NN LO M M �-I M W :nOOi -n 0000 M Ln N N O C Cl C O O O N N M (-' C CO 00 O C Ln C Ln OD OD M M O W Q0 Q0 Q E- q M C a 4 N < d^ W W Ln a C N cn CCCO Coo C C O n W OoCC CCCO o 0 q N 09 H> o �H N W W N �1+ U in W a E a � 0 o 0. N w N C4 LO 0 _ U) Ln O C Ln O C o O Ln Ln co Ea NCCN OOCO N N E! H O CC CO O O f14 C W Ln O !f) CO CO M M O N U M C 6 9 9 4 N W M M d' � W OD E� w � W a v C O F oOOC oCOC o C W C C C O C O C (D o C rr, C9 . . . . . . . . . q C C C O C O C O C C S-i D OOCC COCO O O I)C O Ln COCO Ln Ln ?i rCJ CCM to O Ctn C OJ c^H H CO CNM Ln cn M r-! H H .-I M M O � � I W W I W 1 va va �5: Ua U? Ea E" WWW 4-I U)U)HH H W U Ea E U) > [t4 H C I HHat� W W � W W Wd3tY, o O W wawa; G-, Ww O a W W ZHco H W W 0 q N C U W a f4 q co U >2 W O c4 qm Cw H0U) � H W H W 44 a E HDUW co0 w H x 1 oaww w a U z H x a a v w a U w O w a z as 9H O w w D E H C Ei C7 0. D E1 S7 D U D a-IM 3'� r-iNMa a a S O W J C O C< C O C 9 9 Q U NNNN NN(N H H E+ U W �D U NNNO tea' 0 O O ,UD w w Ln T) Ln E� Ln Ln Ln Ea N E, Purchaser Name Balance Forward Timeshare Transfer 1 st Ameriscan Heritage Holiday Spencer P. Depress T. Tyrone & Helen Gillespie Lawrence Kalusin Leo Mangan & Michelle Tucker Shawn & Lee Stigler, and Alex Nelson Santiago Benzi & Luciana Bacolla Matthew E. Darpli Grant Christensen Adam Homes LLC Susannah Stiehm & Ben Kleimer DSCO Properties LLC Peter Knobel THD Colorado INC Eric & Karen Simon Tracy L. Stewart Town of Avon Real Estate Transfer Tax Calendar Year 2006 Property Amount Received Total January Revenue 126,824.98 Total YTD Revenue 126,824.98 Total 2006 Budget 2,150,000.00 Variance, Favorable (Unfavorable) $ (2,023,175.02) Christie Lodge Timeshare 3.98 Falcon Pointe 34.00 Falcon Pointe 2.00 Alpen Flora #- 3 5,400.00 Seasons @ Avon # -521 13,000.00 Sunridge @ Avon B -212 5,400.00 Sunridge @ Avon II F -304 7,180.00 Sunridge @ Avon II Q -202 5,460.00 Benchmark Condo B -14 160.00 240 B. C. Place # 229 -B 4,273.00 Canyon Run H -203 9,832.00 Lot 82 Mtn. Star 18,000.00 The Pines # C 3,200.00 Lot 65 -A Blk 1 Wildridge 13,700.00 Lot 35 Blk 4 Wildridge 6,500.00 Lot 44 Blk 2 Wildridge 8,700.00 Lot 106 -B Blk 1 Wildridge 17,480.00 Lot 9 Wildcat Ridge Townhomes II 8,500.00 Total January Revenue 126,824.98 Total YTD Revenue 126,824.98 Total 2006 Budget 2,150,000.00 Variance, Favorable (Unfavorable) $ (2,023,175.02) .-I -I -I -I al! -I 0 0 0 0 -R -I e 0 04 P- a) t-- CO N M M rl- to to 9 t--: ti V W a C) W W r W W 9 n 9 O N W N co .r- cli ,2 E 0 .-I C;) 0) c) r-- i:--� r-- cj co a 0) co v fl- I- CO C> Cl) C-0 CO 0) 00 M (D 00 Ui 00 r- C, 00 N tl- C) C\l co (0 co co m S 0 0) co P- cc) I-- C 0i cl:� W 0� pl-. VL cl� IR 00 0) .- Vy G M W N M f- M C, a 0 N ,�r W w 10 m m m w 9 co W 0 O M r- w m N N m m w N co CO CT 0) 0) 0) CO Cl) f- CO C) 11, to IQ 0� p•. W cl:� pl.: pl-i 'Ili cq (Q q M 0� C, CD C) 'T M 0) 0) M CO LO CD V Cl) 0 0 V (0 (D C14 C\l M N C) �r C) C\! 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