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TC Ord. No. 1981-32-4., 0 0 ORDINANCE NO. 81-32 Series of 1981 AN ORDINANCE AMENDING ORDINANCE NO. 81-11, SERIES OF 1981, AS THE SAME RELATES TO METHOD OF PAYMENT OF COSTS OF IMPROVEMENT OF THE AVON TOWN CENTER MALL. WHEREAS, by Ordinance No. 81-11, Series of 1981, a portion of Tract G, Block 2, in the Town of Avon, County of Eagle and State of Colorado, was established as a pedestrian mall; and WHEREAS, said Ordinance incorporated by reference (as Exhibit "B") an agreement of adjacent property owners respecting the method of assessment of costs and expenses of making improvements to the mall; and WHEREAS, said Exhibit "B" has now been supplemented by a First Amendment to Mall Agreement, attached hereto as Exhibit "A" (herein "First Amendment"), which document in final draft has been executed by all adjacent property owners except Marcos Suarez; and WHEREAS, the said Marcos Suarez has executed a first draft of the First Amendment, which draft differed in substance from the final draft only with respect to paragraph 4 thereof; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Amendment. Section 3 of Ordinance No. 81-11, Series of 1981, is amended to read as follows: "Section 3. All costs and expenses of establishing the pedestrian mall and making improvements thereto shall be paid by and special assessments shall be levied against, the Town and owners of lands abutting the pedestrian mall in accordance with the Agreement attached to Ordinance No. 81-11, Series of 1981, as Exhibit 'B', as supplemented by and amended by the First Amendment attached hereto as Exhibit 'A', the provisions of which are incorporated herein and made a part of this Ordinance; provided only that paragraph 4 shall have no application to Marcos Suarez until such time as the said Marcos Suarez executes the final draft of the First Amendment and the fact of execution is filed with the Town." Section 2. The officers of the Town of Avon are hereby authorize and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance. Section 3. If any part, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council hereby declares it would have passed this Ordinance and each part, section, subsection, sentence, clause or phrase hereof, regardless of the fact that any one or more r 0 of its parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 4. Effective Date. Inasmuch as sale of the special assessment bonds re erre to in the First Amendment is set for October 23, 1981, and postponement of such sale would breach agreements of the Town, this ordinance is declared to be an emergency ordinance, the passage of which is immediately necessary for the preservation of the public peace, health, safety and welfare, and this ordinance shall take effect October 21, 1981. INTRODUCED, READ, APPROVED, AND ORDERED POSTED this 13th day of October, 1981. _ o, EALf: - TOWN OF AVON B J 1/ . Y a or 2 - r l 1 N O CJ Bock 1330Recorded at 1:30PM October 5, 1981 _ ,Pagt,588 • Recorder: Johnnette PLU 14._ Eagle County CERTIFICATION STATE OF COLORADO ) SS COUNTY OF EAGLE ) Fee $9.OOpd I, Patricia J. Doyle, DO HEREBY CERTIFY that I am the Town Clerk of the Town of Avon and the keeper of the records and corporate seal of said municipal corpora- tion; and that the attached is a true copy of Ordinance No.#81-32, Amending Ordinance:,No.#81-11, Series of 198.1, and First Amendment to the Mall Agreement of the Town of Avon, County of Eagle and State of Colo- rado, and that said Ordinance No.#81-32 is in full force and effect at the date hereof, and the original is in my custody as Town Clerk. WITNESS my hand and official seal of the Town of Avon, County of Eagle, State of Colorado, this 15th day of October 1981. Patricia J. Doyle Town Clerk •,aBook 330 226948 Recorded at 1c30PM Octobe 5, 1981 Fee $21.00pd Page 589 Recorder: Johnnette Phil Eagle County FIRST AMENDMENT TO U N MALL AGREEMENT THIS AMENDMENT is entered into as of the 8th day of September, 1981, among the Town of Avon, a municipal corporation (herein "the Town"), Avon Center at Beaver Creek, Timberline Properties Corporation, Marcos M. Suarez, H.A.L. Construction; Inc., and Peregrine Properties, Ltd. For convenience, all of the parties other than the Town are herein collectively referred to as the "Property Owners", and individually as a "Property Owner". RECITALS 1. The Town and the Property Owners entered into that certain Mall Agreement (the "Mall Agreement") dated as of April 16, 1981. 2. Subsequent to execution of the Mall Agreement, the Town and the Property Owners have determined that the costs of planning and constructing the Mall (as defined in the Mall Agreement) shall exceed the $600,000 limitation set forth in the- Mall Agreement. 3. To assist in construction of the Mall, the Town and the Property Owners have consented to and formed the Town of Avon, Colorado, Town Center Mall Improvement District to raise $910,000 for the construction of the Mall through the sale of Special Assessment Bonds. 4. The purpose of this Agreement is to amend the--Mall Agreement so that it coordinates with the District and to.-assure that the land owned by each Property Owner (as set forth in Exhibit A of the Mall Agreement) that is to become part of the Mall under Paragraph 11 of the Mall Agreement will be improved and interfaced with the Mall at the joint expense of the Town and all of the Property Owners. AMENDMENT In consideration of the recitals and mutual covenants contained hereinbelow, the parties hereto agree that the Mall Agreement is amended as hereinafter set forth; provided, however, that except for the modifications set forth hereinbelow, the Mall Agreement remains in full force and effect and in the event of any disagreement between the Mall Agreement and this Amendment, the provisions of this Amendment shall control: 1. Subparagraph 6(b) of the Mall Agreement is amended to read in its entirety as follows: (b) The cost of planning and constructing that part of the Mall located on the land owned by the Town and described on Exhibit B shall be paid for entirely out of proceeds (to be placed in the Mall Construction Fund) received from sale of Special Assessment Bonds by the Town of Avon, Colorado, Town' Center Mall Improvement District (the "District") and by the Town contributing to the Mall Construction Fund $226,000, on or before the closing for the sale of said Special Assessment Bonds. The cost of planning and constructing that part of the Mall to be located on Parcels I, II, III and IV shall be paid 25% by the Town and 75% by the Property Owners. Each Property Owner's share of the cost shall be determined by multiplying the Property Owners' share (i.e., 75% of the total costs) by a fraction, the numerator of which shall be the length of such Property Owner's present pro- perty line adjacent to the Mall and the denominator of which is the total length of all property lines adjacent to the Mall, except land owned by the Town. 2. Subparagraph 7(d) of the Mall Agreement is amended to read in its entirety as follows: (d) Without the prior written consent of all of the Property Owners and the Town, the costs of planning and constructing the Mall shall not exceed the following: (i) $1,136,000 for that part of the Mall located on the land described on Exhibit B; (ii) $94,000 for that part of the Mall to be located on Parcels I and IV; (iii) Such amount as is reasonably required at the time to plan and construct that part of the Mall to be located on Parcels II and III, in a manner and quality similar to the construction provided for on Parcels I and IV. 3. The following sentence is added to Paragraph 11 of the Mall Agreement: Notwithstanding anything contained herein to the contrary, no real property shall be conveyed to the Town pursuant to this Paragraph 11 until the effective date of the assessment ordinance to be adopted by the Town, which will provide for the assessment of all land within the District, even though for all other purposes hereunder including, but not limited to, control and maintenance, such real property shall be treated as part of the Mall upon completion of the improvements thereon. 4. The following sentence is added to Paragraph 12 of the Mall Agreement: Notwithstanding anything contained herein to the contrary, should both residential and commercial condominiums be built upon any part of Parce, I, III or IV, the applicable condominium declarati ^W1 provide that the commercial condominium units shall be solely responsible for any assessment made by the District or monies required to be paid "residential into the Mall Construction Fund or the Mall Operating Fund ith respect to such part of the Parcel upon which both and commercial condominium units are built. %141041(rr, IN WITNESS WHEREOF the parties hereto have executed this , X6%10 J1Pt, Amendment To Mall Agreement as of the day and year first .a~bvr`written . ATTEST: THE TOWN OF AVON, a municipal corporation By UJAC, y Clerk yor AVON CENTER AT BEAVER CREEK By Pre ent -2- ATTEST: i It ATTEST: By MARCOS M. SUAREZ TIMBERLINE PROPERTIES CORPORATION • etia`Ye ATTEST: STATE OF 4ZADO ) ss. COUNTY OF ) H.A.L. CONSTRUCTION, INC. B The instrument was ac owldgeP~fqre me this day of azg-~-7 , 981, by 2C 4 ~ as Mayor and a as Tow Cler fo the Town of ,N Ryon. NV,` OF -4WITNESS my hand and official seal. My commission expires: STATE.OF COLORADO ) ) ss. COUNTY OF EAGLE ) 1V The foregoing instrument was acknowledged before me this WC day of r , 1981, by as Pre-Eden t and as Secretary of Timberline Properties Corporation. WITNESS my hand and official seal. My commission expires: Notary Public The fore oing instrument was ackn` 1 dged before me this ( ~'L day of l 'er 19 81 by '4 t a/2 f President , -a as, of`~A on Center at Beaver Creek. f. .7 n WITNESS my hand and official seal. My commission expires: /6/s N ary Public 3-><<) STATE OF COLORADO ss. COUNTY OF EAGLE ) -3 - PEREGRINE PROPERTIES, ATTEST: w ATTEST: S~= r. ATTEST: STATE OF C 12AD0 ) ss. COUNTY OF ) The day of as Mayor and Avon. foregoing instrument , 1981, H.A.L. CONSTRUCTION, INC. B, ION was acknowledged before me this by as Town clerk for the Town of WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 1981, by as Preside t and as Secretary- of Avon Center at Beaver Creek. WITNESS my hand and official seal. My commission expires: Notary Public .-STATE OF COLORADO C,UN,TY OF EAGLE „d~" ss. <.:_...(.1` The f~°.,?~ 9in instrument was ac nowled ed b fore his =y`y day of UC~Y g1~er 1981, by a(,uid Lg Ce~~ Oi l ~wn~~jye€ Timberline Properties. WITNESS my hand and official seal. My commission expires: 10 St k ary Public -3 - MARCOS M. SUAREZ B PEREGRINE PROPERTIES, LTD. • i SUAREZ ATTEST: H.A.L. CONSTRUCTION, INC. (12.15%). By ATTEST: PEREGRINE PROPERTIES, LTD. (21.98%) By STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 1981, by as Mayor and as Town Clerk or the Town of Avon. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Notary Public The foregoing instrument was acknowledged before me this _ day of _ -p 1981, by as President and as Secretary of Avon Center at Beaver Creek. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Notary Public The foregoing instrument was acknowledged before me this day of , 1981, by as _ President and as Secretary of Timberline Properties Corporation. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 1981, by Marcos M. Suarez. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 1981, by ;"Ast- ; Preside ht andd~.ICQA~~o. ~.k bra c as _ Seer Qtary of H.A.L. Construction, Inc. b :-o--o- WITNESS my hand and official seal. My commission expires Notary Public STATE OF COLORADO ) Jan Cane ) s s . P. 0. Box 3149 COUNTY OF EAGLE ) Vail, CO 81658 The re in instrument was acknowled d bef re me this 114 day of 1981, by as a General Pa tner of Peregrine Properties, Ltd. WITNESS my hand and official seal. `a,; % ~,~-r My commission expires: Not ry Public -4- 't STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The fo e o.9 instrument was acknowledged before me this of e~ 1981, by Marcos M. Suarez. a" ./WITNESS my hand and official seal. "XtIT Ali My%, commission expires : No ary Public 'aka STATE OF COLORADO ) ) ss. C9 I Y COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of + , 1981, by as President and as Secretary of H.A.L. Construction, Inc. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Notary Public The foregoing instrument was acknowledged before me this day of , 1981, by , as a General Partner 61 Peregrine Properties, Ltd. WITNESS my hand and official-seal. My commission expires: Notary Public -4- t,.. , _ , - . ~ ~ ~ t..