Loading...
TC Ord. No. 1998-21 Approving a zone change from TC to PUD and establishing development standardsTOWN OF AVON ORDINANCE NO. 98 -21 SERIES OF 1998 AN ORDINANCE APPROVING A ZONE CHANGE FROM TC TO PUD AND ESTABLISHING DEVELOPMENT STANDARDS, LOT C, AVON CENTER AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Vail Associates Investments, Inc. has filed an application for PUD Zoning including establishment of Development Standards; and _ I WHEREAS, the Town has agreed to establish zoning for the Property in - accordance with the Development Agreement; 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, 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 amendment; and WHEREAS, following such public hearing, the Planning & Zoning Commission will forward reports and recommendations on the proposed PUD Zoning and Development Standards to the Town Council of the Town of Avon; and WHEREAS, after notices provided by law, this Council held a public hearing on the 27th day of October, 1998, at which time the public was given an opportunity to express their opinions regarding the proposed amendment; and WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows: 1. That the hearings before the Planning & Zoning Commission and the Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. The PUD Zoning and Development Standards are consistent with the Town's Comprehensive Plan. 3. Adequate facilities are available to serve development. for the project's type and scope. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that: \\NTSERVERTILE SERVER\ COUNCIL \ORDINANC\1998\98- 211otc.doc L The PUD Zoning and Development Standards are hereby approved subject to the following conditions: 1. Development may occur on this site only in conformance with a site - specific Development Plan (referred to herein as a PUD Development Plan), reviewed and approved by the Town through a separate application and review process pursuant to 'Section 17.20.110 of the Avon Municipal Code 2. Deed restricted affordable housing units shall be provided with the amount of units equal to ten percent of the dwelling units proposed (21). The units shall be subject to the standard master deed restriction provisions including the Town's applicable appreciation cap. 3. Vail Associates Investments, Inc., shall enter into the Development Agreement, attached hereto as Exhibit INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 13'h day of October, 1998, and a public hearing shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 271' day of October, 1998, at 5:30 PM in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council Jac Fawcett, Mayor \\NTSERVEMELE SERVER\ COUNCIL \ORDINANC\1998\98- 211otc.doc INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED. Town of Avon, Colorado Town Council Jack awcett, Mayor APPROVED AS TO FORM: To Attorney \\NTSERVERTILE SERVER\ COUNCIL \ORDINANC \1998\98- 211otc.doc �z EXHIBIT A TO TOWN OF AVON ORDINANCE 98 -21 The "PUD Plan" as that term is used in the attached Ordinance, shall refer to each of the following documents collectively: 1. Planned Unit Development Guide for Lot C. 2. The PUD Development Plan. \\NTSERVEW\ E SERVER\ COUNCIL \ORDINANC \1998\98- 211otc.doc Final 10/27/98 DEVELOPMENT AGREEMENT Confluence and Tract C THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into as of October 27, 1998 by and between Vail Associates Investments, Inc., a Colorado limited liability company (hereinafter "Owner "), Avon Commercial Center Ltd., a Colorado limited partnership, Shapiro Development Co., general partner, or assigns (hereinafter "Shapiro ") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town"). RECITALS A Owner is a limited liability company, duly organized.and in good standing under the laws of the State of Colorado. Shapiro is a Colorado limited partnership, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property conditionally annexed to the Town and generally referred' to as the "Confluence" as more particularly described in Exhibit A -1 attached to this Agreement (the "Confluence "). In addition, Owner owns a parcel of real property in the Town generally known as "Tract C" as more particularly described in Exhibit A -2 attached to this Agreement ( "Tract C "). Shapiro owns a parcel of real property in the Town generally known as "Tract B" as more particularly described in Exhibit A -3 attached to this Agreement. C. Owner desires to develop the Confluence and Tract C as mixed use developments (the parcels referred to collectively as the "Property ") which may include, among other uses, lodging, restaurant, retail, parking, public facilities, open space, office, commercial, conference center and other uses. Shapiro desires to develop Tract B pursuant to the terms of a separate agreement and desires to avail itself of the provisions of Article V of this Agreement to aid in such development for the benefit of the Town and Shapiro. D. A condition of annexation of the Confluence was the successful negotiation of a "Development Agreement" concerning the development of the Property, failing which, the Confluence shall be disconnected from the Town. A significant element of the negotiations affecting the Property is the zoning of the Property for which Owner has submitted a Zoning Application to the Town for the Confluence and a separate Zoning Application for Tract C.. The Town, and Owner acknowledge that this Development Agreement properly addresses matters related to Tract C and Tract B notwithstanding that execution hereof is a condition to annexation of only the Confluence. E. The Town has authority to zone and govern development of the Property in accordance with this Agreement, the Comprehensive Plan, the Confluence PUD, the Tract C PUD (as such terms are defined herein), 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 Property, the creation of special districts to provide. public facilities relating to the Property, the rebate of sales and other taxes which would normally be collected as a result of taxable activities occurring on the Property and on Tract B and the Final 10/27/98 granting.of tax credits to assist with the equitable sharing of costs associated with development of public facilities. F. The Property and Tract B are 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 satisfy the condition of annexation of the Confluence by execution and performance of this Development Agreement affecting the Confluence, Tract C and Tract B in order to provide for orderly growth in and around the Town and to increase its tax revenues. Owner, Shapiro and the Town desire to provide for a tax rebate mechanism so that Owner and Shapiro may use the rebate revenues or other fees imposed in lieu of taxes to assist in financing the public facilities that will be required by the Property and Tract B which will benefit the Town. G. The Town may agree to rebate taxes to the Districts subject to discretionary annual budget appropriations by the Town which, if not made by the Town, will substantially impair the ability of Owner to develop the Property, will substantially impair the ability of Shapiro to develop Tract B, and which failure to appropriate shall be deemed to be a failure of a condition to annexation of the Confluence resulting in a contractual right of Owner to disconnect the Confluence from the Town. H. The legislature of the State of Colorado adopted Sections 24-68 -101, et seMc . 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. I. 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 Property 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 Property, Owner desires to receive the assurance thavit may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. K. 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 2 Final 10/27/98 or otherwise. Because the Town of Avon collects its own taxes, it also has authority to rebate taxes collected or grant credits to taxpayers for fees collected by Owner and Shapiro within certain' geographical areas. Further, the Town may allow Owner ` or qualified non -profit corporations -to- collect - such- fees. -- Because such fees will -not be collected by the Town and will not derive from -the Town, and because all rebates due hereunder shall be subject to annual budget appropriation, the rebate of taxes by the Town, the grant of tax credits by the Town, and the collection of fees by qualified corporations in lieu of such taxes shall not be multiple fiscal year contractual undertakings of the Town and shall not be a tax policy change directly causing a net tax revenue gain to the Town which would otherwise require electoral approval. AGREE - - NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement,- and other good and valuable consideration, the receipt and sufficiency -of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITYONS AND GENERAL PROVISIONS 1.0 __`_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 Affordable Housing. Housing where the occupant is paying no more than 30� %of gross income for gross housing costs; including utility costs. -1.2- Annexation Agreement- - - - - - -- The conditional Annexation Agreement affecting the Confluence Parcel approved by the Town on August 25, 1998, a copy of which is attached to this Agreement as Exhibit B. 1.3 Confluence. The parcel of unimproved real property described on Exhibit A -1. - - 1.4 Comprehensive Plan The Avon Comprehensive Plan adopte& by the Planning and Zoning Commission of the,Town on November 5, 1996. 1.5 Development Standards. As defined in Section ,3.2. The Development Standards pertaining to the Confluence, are attached hereto as Exhibit, C -1 and the Development Standards pertaining to Tract C are attached hereto as Exhibit C -2. - -- -- -- -- - _- - 1.6 = Districts: Shall mean Confluence Metropolitan - District and - Avon Station Metropolitan District approved by the Town to serve the Property and Tract B. 1.7 Dwelling Unit. As defined in Section 17.08.270 of the Municipal Code. 3 Final 10/27/98 1.8 Effective Date. The effective date of the Town Council ordinance approving this Agreement. 1.9 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 1 Legal Description of the Confluence Exhibit A-2 Legal Description of Tract C Exhibit - 3 ECg-9jjesc­npfion6fTract - - -- Exhibit B The Annexation Agreement Exhibit C -1 The Development Standards for the Confluence Exhibit C -2 The Development Standards for Tract C 1.10 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Municipal Code Ch. 3.28 or any similar code provision enacted during the Term of this Agreement upon any sales or rental of lodging within the Property and Tract B. 1.1.1__ Mall. Avon Town Center Mall established by Ordinance 81 -11. 1.12 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.13 ProRertv. The Tract C property and the Confluence property. 1.14 PUD. Planned unit development or PUD, as such terms are defined and used in the -- Municipal Code. 1.15 Real Estate Transfer Tax. 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 upon sales of time share units within the Property and Tract B. 1.16 Sales Tax. For purposes of this Agreement, Sales Tax shall mean any municipal sales tax imposed by the Town pursuant to Municipal Code Ch. 3.08 or any similar code provision enacted during the Term of this Agreement upon furnishing of rooms or accommodations within the Property and Tract B. 1.17 Sanitation District. Eagle River Water and Sanitation District. 1.18 Subdivision - Improvement Agreement. -An agreement guaranteeing the -construction of public improvements for the Property pursuant to Title 16 of the Municipal Code. 4 Final 10/27/98 1. 19 Town. The Town of Avon; a municipal corporation of the State of Colorado. - - - -- - - - -- .1.20 - -- Town Council. The Town Council of the Town._:_ 1.21 Tract B. The real property described in Exhibit A -3 attached hereto. 1.22 Tract C. The parcel of unimproved real property described on Exhibit A -2. 1.23 Vested Property Rights Statute. As defined in Recital H above. 1.24 Zonin . 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 statutory or common law _- period for the filing of a petition for referendum to reverse or nullify such zoning ordinance. 1.25 Zoning Application. The separate zoning applications for each parcel comprising the Property. 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- 18and- Resolution No- '98 -54, and the Annexation Agreement which specifically provided that said annexation would be conditional and subject to disconnection until thi's agreement is executed and effective. 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.). The condition of annexation of the Confluence shall not be deemed to have been satisfied until Zoning of the Property pursuant to Article III of this Agreement has been completed and thereafter shall be deemed to have not been fully satisfied if the Town fails or is prevented in any way from making rebate payments or granting tax credits as set forth herein. Until Zoning pursuant to Article III of this Agreement has been completed, this document shall constitute an offer by Owner and the Town to enter into this Agreement (notwithstanding the parties' mutual execution and delivery of this document) and the condition to annexation of the Confluence to the Town- shall -not be- deemed - -satisfied: -- Consequently, at --any- time - before such condition is satisfied, Owner or the Town may withdraw the offer to enter into this Agreement-. If either party withdraws its offer to enter into this Agreement, this Agreement shall be deemed void and of no-force -or effect, the Confluence shall be-deemed not- annexed to the Town and shall be immediately disconnected, 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 Final 10/27/98 Property, the potential for phased development of the Property,' 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 35 h anniversary of the Effective Date. References to the Term of this Agreement and the vesting of property rights in the proceeding sentence shall not be deemed to limit or otherwise affect the rights of the Town described in Section 6.2 to initiate or pursue dissolution of the Districts. 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, or (c) any right arising from Town permits, approvals or -other entitlemen�foi the Property which were granted or approved 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 maybe' 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. Any amendment to any provision of this Agreement which affects Shapiro's rights to rebates or tax credits hereunder shall require Shapiro's written consent. 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.- - Each - parcel comprising Confluence and -Tract C -shall be zoned as a separate PUD as provided in this Agreement and in their respective Development Standards. 3.2 Development Standards and Phasing. Development -- Standards.- - ----------- guidelines for development of the Property are app Property,, and indicate, among other things, set back coverage' levels, development densities, allowed us es permitted-upon--special review), - parking - requirements development of the Property . R The -"Development Standards"- set- forth the roved by the Town as the zoning for the distances, building height limitations, site (both permitted uses by right and those and - other - guidelines and limitations for the Final 10/27/98 (b) Subsequent Development Approval. After PUD Zoning of the Property pursuant to Section 3.4(a), Owner and the Town shall enter into a development plan approval process, pursuant to which Owner and the Town shall, in a manner which is uniform with and similar -to other-= phased - development_ approvals of the Town (and consistent with ,the provisions of Section 3.4(d)) further refine the Development Standards and designate site plans, PUDs and other details, including an approved Subdivision Improvement Agreement, all consistent with the Development Standards and this Agreement (collectively, "Subsequent Development Approval .." 3.3 Vesting of f Propert ►Rights. Owner and Town agree that (a) this Agreement and the Development =S s-constitnte pp ed- `sites- 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 Property shall have vested property rights to undertake and -complete --development and use of the Property, -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 develop, plan and engage in land uses within the. in the - - _manner and to th extent.-set- forth in and pursuant to this Agreement and the Development - - - - - — Standards. - - - - - _. - - � - - - - - -- - -- — - (b) The right to develop, plan and engage in land uses within the Property in - accordance with - the - densities; - physical development- standards and - other- physical parameters set forth in the Development Standards. (c) The right to 'develop the Property in the order, at the rate and at the time as market conditions dictate, subject to the terms and conditions of this Agreement and the Development Standards. (d) The right to develop and complete the development of the Property (including, _without limitation, the right to receive all Town approvals necessary for the development -of the Property) with conditions and standards determined pursuant to Section 3.2(b)which are no - - more onerous than-those-imposed-by-the-Town-upon other - Owners in-the-Town Town on -a uniform, non- discriminatory and-consistent basis, and subject only to the exactions and- requirements- set -forth in . this Agreement and the Development Standards; provided _that such conditions, standards and dedications shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise materially -- - - adversely - affecting -any of - Owner's rights set forth in this Agreement or the Development Standards. 6 Final 10/27/98 (e) The Town shall not initiate any zoning, land use or other legal or administrative action that would directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise - adver-sely-- affecting any -of - Owner's - rights---set - forth - --in this Agreement--'or the - Development Standards. 3.5 Exactions. (a) Access Roads. Roadways within the Property shall be provided by Owner - _and/or- one .or_ more -of -the - Districts =which shall- dedicate--such- roads -to= the - Town, - whereupon- the Tav�shall_actce t- such-= roads for dediearori in itieir ttierr- aairenr=dition�nd- shall - assume maintenance of such roads, including snow removal. All such roadways shAll-be constructed to the Town's normal standards for similar roadways, which standards shall be set forth in the Subsequent Development Approval relating to the portion of the Property containing such roadways. (b) Drainase. On site drainage facilities for the Property shall be provided by Owner and/or one or more of the Districts to handle drainage resulting from the development of the Property. (c) Pedestrian Overpass. Owner and/or one or more of the Districts shall provide a pedestrian overpass (crossing the railroad line provided such railroad line has not been vacated, in which case _an appropriate_ pedestrian crossing will be provided) connecting the Confluence with the Town core area. The pedestrian overpass shall be constructed along with the first phase of the conference center as set forth in Section 3.5(d). The design, location and other details of the pedestrian overpass shall be determined by Owner and the Town. Any dispute- -c oncerning such matters shall be resolved by- arbitration. - - (d) --- Conference Center. One or more of the Districts shall construct a conference center facility on the Confluence as part of the development on the Confluence. Such conference center shall contain a total of approximately 15,000 square feet and will be constructed in two phases (one half of the, square footage -of the- conference center in each such phase). The first phase of the conference center construction shall be commenced upon the Town's issuance of a building permit for the 100' Dwelling Unit for the Confluence and shall be diligently pursued to completion. The: second -phase of conference center- construction shall- be-undertaken-upon the Town's issuance of a building permit for the 200`s Dwelling Unit for the Confluence. The twenty -mill levy contemplated by the Districts' service plan shall be utilized for construction and operation of the conference center. In connection with _d_ev_ elopment of the conference center, Owner shall reserve space and/or air rights in its development for expansion of the conference center to up to a total" of 40,000, square feet, provided, however, that-neither Owner nor the Districts shall -be obligated under this Agreement to pay for such expansion of the conference center nor for land costs'. At the Town's request, the twenty mill - levy imposed by the-Districts for construction and operation of phase 1 and phase 2 of the conference center shall be imposed by the Districts (after retirement of - -- - - -- debt - for - phase-- l-and- -phase 2) -for-purposes se- the - expansion-- of-the- conference center and to pay operating costs of the expanded conference center. Owner shall use best efforts to cause the Districts to issue bonds for such expansion but shall not be required to provide credit 8 Final 10/27/98 enhancement for or purchase such bonds. Owner shall use best efforts to cause the Districts to seek electoral authorization at a November 1999 election for such bonds. - - - - -_- - = =Affordable-Housina. -Owner shall - develop -deed restricted affordable housing units (each- an "Affordable Housing Unit ") within the Town, on or off the Property at a rate of five' Affordable Housing Units for each 5013welling Units developed on the Property.' As a condition to issuance by the Town of each 50'' building permit (i.e., 5& 10&, 15&, etc.) for Dwelling Units on the Property, Owner must establish that it has developed or unconditionally commits to develop the required number of Affordable Housing Units. The nature and form of the =de��restrictions^on mch., ordabieHo using -Units Ball =be suhstamially similar -to= that - used =in _ - �thef altorctable housing- Trojects in -the Town, -and - shall -be- determined -by- Owner - and °the -Town prior to issuance by the Town of a building permit -for the-5& Dwelling Unit. (f) Fee for Fire Station Expansion. Owner or the Districts shall pay to the Town $160,000 prior to the issuance of the first certificate of occupancy for the Property for expansion of fire station facilities. (g) Railroad Crossing. Prior to issuance of any building permit for the Property, Owner shall grant to the Town an easement for an "at grade" crossing of the existing railroad tracks at the west end of the Confluence at a location and pursuant to terms reasonably satisfactory to Owner and the Town. Said easement shall be subject to all matters of record, including without limitation the railroad right of way. Owner shall have no obligation to make any improvements related to such easement. Any dispute concerning -the size or design-of such crossing shall be resolved by arbitration. (h) Water and Water Ri hg_ts. _ -- _ -- -- - (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= w- mmercial= area -and 1,8= acres =irrigated area: - - -The -proposed- Confluence development will ' include up to 200 dwelling units, 800 hotel rooms, 40,000 square feet of commercial area and a non - specified irrigated area. Depending upon the final development plan, water requirements for the Confluence are expected to 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 athe proposed Confluence development is hereinafter defined as the "Increased Water Requirements." - - -- - -(ii)----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 _ __he�vater �consumption�nd augrrteirtal9n study_, Owner shalli as a condition of water service 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 Z 11/02/1998 16:30 3038581802 WHITE AND ASSOC rA= nc Final 10/27/98 Owner shall M niburm the Town's expenses, including reasonable and actual gegwrements fees, of including such additional water in the Town's mignia tation engineering costs and legal . ts- to -be= dedicated= and_conveyed to_the_Town shall be subject to the Town's - - - plea AnY � - rovided, however, Park FIRS& oi� water -shall be-deeaied an approval and acceptance, P _ Bement. The Town shall not be required to acceptable source of dedicanon water under this to meet any Incr�sed Wes' ���. store water in or release waxer from Benchmark be completed prior m the issuance Dedication of augmentation water and related water fights shall of the first building permit on the Confluence - -- - =_ _ _ -- - - -- -- - —ew and - - Owner �- the - Mall - -shall � e _ - -- -- - - maintained by the Districts pursuant�o the Districts'= service Plan -- - anY 3.6 NO Obli aatio ofl•er shall have no obligation to develop all faihrre to portion of the property and shall have no liability to the Town or any other party for its of the propedY• Ownw and the Town contemplate that the Property may be develop all or any part •on to develop all or any portion of any such - in phases, Owner shall have_ no obligati and Owner shall developed P the development or. no"evelopmal of any other phase, phase 6Aw � for its failure to develop all or any portion of any have no liability to the Town or any other party such phase of the Property ,,.:+h General BeSWg1ons• Except as otherwise provided in this 3.7 Compliance ` shment of vested property rights under this -. -- - -- -�- the- D"0pmem_ Standards, the establr_ - - basis of Town AgreenIVA shall not preclude the application on a uniform and non= disc=imi � electrical - - - - -- regulations of general applicability - (including, but not limited to, buildin& or the applioetion and mechanical codes, the Mnmcipal Code, and other Town rules�inid- oar may ns, as all of such regulations exist on the date of this Agreement of state or federal regulations, provided that such newly SARcted or be _ amended after the date of this Agree,, on shall -not- directly - or - indirectly= hate- the = effect - of materially altering, amended Tolit regulati a moratorium oa development, delaying or o se imposing dimiztashing, � Po � meat & set forth in this A, � -or the Develop imp�� n any Owner's rights adversely affecting Y _ _ -• to-oppose--the- - enactment__or_amendment of any such Owner does not- waive--tts- right -- - - -_ -- _ - The parties agree that any dispute under this Article shall be 3 A— rules of the American subject to arbitration among the Parties in accordance with. cuatory Arbitration Associations that shall be binding upon the parties -- -- - - ations: = All= obliSat► °ns of Owner in this Agreement may be performed -- - - - -- - -- - -- - - - -- - - 3.9 �hE�• --- - by the Distiicts-at Owner s e _ - ARTICLE Iv - pUBUC FACIIXM, ����. i►,r,,.�;r ;flit Sez� aces. The ;Town shall have the responsibility and obligation to -' is services, including transit usmB, Wow- -� ° we provide all municip other area of the Town on a uniform and nor—provided to_any - - - - - - s� - - - -- - - - -- discriminatorybasis• 10 Final 10/27/98 4.2 Water and Services. The Town shall provide water service to the Property upon notification of need by Owner as required for the development of the Property. The Town's obligation -to provide water shall- survive any disconnection of Confluence pursuant to this - - Agreement or otherwise.- Water iastructure /capital facilities which are necessary-- for -the -Town to provide water to the Property shall be provided by Owner and /or one or more Districts which shall dedicate such improvements to the Town, whereupon the Town shall accept such improvements for dedication in their then current condition and shall assume maintenance of - such improvements -and facilities. AIL such improvements shall be .constructed to the Town's normal standards for similar facilities, which standards shall, be set forth in the relevant Subsequent Development Approval: relating_ia th�portion_the -P -r= _erg- EOntainng -elter — _improvements: The- Town - shall- zharge_vrateLtap -feet uid usage charges to users within the Property on a uniform, non - discriminatory basis with other users within the Town and shall use best efforts to require the Upper Eagle Regional Water- Authority,_ or_ other water _ service providing entity to abide by this covenant. 4.3 Sanitation Service. The Property shall receive sanitation service_ from the S____ anitation District. The Town shall not impose rates, fees, -tolls -or charges for sanitation services for the Property. ARTICLE V REBATE AGREEMENT 5.1 Allocation of Taxes. . In consideration of the performance y wner of -its - — obligations under thisAgreement, the Town agrees: (a) to account for all Sales Taxes and Lodging Taxes collected by the Town and attributable to a Property an o ra B atid�b�to --rebate-75%-thereof to the Districts within sixty (60) days following the end of the calendar month when collected (or partial month, if appropriate, in the case of the month in which this Agreement becomes effective-or is-terminated). -The Town shall- maintain a separate "Rebate _ Account" into which such taxes shall be deposited until rebated; one for each parking improvement project located within the Confluence, Tract C, and Tract B, respectively. Said - Rebate Accourits-shall- be- separately -accounted for and-shall-not-be used, pledged or otherwise encumbered except as specifically set forth herein. As- additional - consideration of the performance by Owner of its obligations under this Agreement, the Town further agrees: (a) to account for all Real Estate Transfer Taxes collected by the Town and attributable to the Property and to Tract B and (b) to rebate 50% thereof to the Districts within sixty (60) days following the end of the calendar month when collected (or partial- montkif- appropriate; in the-case-of-the -month in which this Bement bewtues effective is terminated).- -Such taxes shall be deposited into the separate Rebate Accounts as provided above until rebated. Said Real Estate Transsfer'Taxes shall be required to be rebated only with respect to the first sale of each time -share interest in each unit constructed on the Property or Tract B, and shall not be required with respect to any subsequent resale thereof. It is the expectation of the parties that a separate series of bonds shall be issued = =for e"i parking improvement project located within the Confluence, Tract C, .and Tract B,' respectively. --It is-also the expectation that the allocation and rebate of taxes from each separate 11 Final 10/27/98 Rebate Account as provided above be used only for paying the debt service corresponding to, the parking improvements financed and secured by future rebates from each separate. respective Rebate Account. The allocation and rebate of taxes as contemplated in this Section 5.1 shall continue to be made from each separate Rebate Account until the bonds or other instruments of indebtedness issued by the Districts and secured by rebates from the separate Rebate Accounts have been paid in full. However, in no instance shall the Town continue the allocation and rebate of taxes from each separate Rebate Account beyond fifteen (15) years after the commencement of deposits in each Rebate Account for each respective bond issue. The Town shall make all such allocations and deposits unless prevented by court order from so doing. In the event any action is commenced challenging the right of the Town to make such allocations - and - deposits, the Town shall notify Owner and Shapiro in writing of such action prior to the Town filing its first responsive pleading in such action and shall allow the Districts to participate in any defense to such action as set forth in Section 2.4 above. 5.2 Limitation on Bonds to be Issued. Financing ,on behalf of the Districts for each individual parking improvement project located within the Confluence, Tract C, and Tract B, respectively, is hereby limited to two- thirds (2/3`d) of the estimated capital cost of the respective parking improvement being financed. 5.3 Determination of Amount of Allocated Revenues. The Town shall provide the. Districts a summary of any Sales Tax, Lodging Tax, and Real Estate Transfer Tax collected by the Town for each month or partial month with respect to the Property and Tract B that supports the amounts rebated for such month. Such summary shall be provided at the time the rebate- is - - -- made. 5.4 Computation of Tax Revenues. Within one hundred twenty (120) days following the end of the each Town fiscal year, the Town shall deliver to the Districts a final accounting of all sales taxes, lodging taxes and real estate transfer taxes collected by the Town and attributable to the Property and to Tract B and the amount rebated to the Districts: 5.5 No Debt or Pecuniary Liability No Multiple - Fiscal Year Obligation. All rebate 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. The Town agrees that failure to appropriate sufficient funds in any year to enable the Town to perform its obligations hereunder shall constitute, at the Districts' election, a failure of the Town to perform this Agreement and therefore a failure of a condition of annexation of the Confluence and shall permit the Districts, at its sole election, to disconnect the Confluence as set forth herein. Such rights shall not impair the Districts' rights set forth elsewhere in this Agreement. The Town also agrees that failure to appropriate sufficient funds in any year to enable the Town to perform its obligations hereunder shall also entitle Shapiro to the benefits of section 5.9 hereof. None of the obligations of the Town hereunder to the Districts shall be payable from_any_ source other than as provided in Section 5. 1, and this Agreement I 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. 12 Final 10/27/98 5.6 Budget and Appropriation of Payments. The Town's finance director shall include in the budget proposals submitted to the Town Council in each year, prior to termination of this Agreement, amounts sufficient to meet the obligation of the Town hereunder to the extent -- the-Town --shall- have - received- such amounts, or anticipates -receiving _ such_.amounts -from -Sales Taxes, Lodging Taxes or Real Estate Transfer Taxes. The Town hereby represents that it presently intends to appropriate the amounts under this Agreement to the fullest extent permitted by law. If, based upon an opinion of independent counsel not previously or at the time such _opinion is delivered representing the Districts 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 Section_209f the_ Colotaado_Constitution _ similar to hesrans actions- pro-v_idvd for in this Agreement-- are__not_required- und-er- the - laws -ofthe -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 of Section 5.4 and as elsewhere found in this Agreement. 5.7 Subsequent Changes in Tax Rates. In the event that the Town reduces the Sales Tax, Lodging Tax,- or Real Estate, Transfer Tax rate applicable - -to- taxable -- activities on the Property' and Tract B, the calculation of the rebate percentage for rebates due to the Districts shall be recalculated so that the Districts shall receive rebates throughout the term of this agreement as if no change in tax rates had occurred. In the event the Town increases the Sales Tax, Lodging Tax, or Real Estate Transfer Tax, pursuant to an election and the incremental increase in -the tax rate is earmarked for a special purpose pursuant to the ballot question_ that is passed by the voters, such addition taxes resulting from the tax increase and collected by the Town applicable to the Property and Traci B shall not _ be subject to allocation and rebate by the Town to the Districts. 5.8 Books and Records. Both the Town- and the Districts shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Town and District representatives 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. The parties shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any review of either parties' books and records. - - - 5.9 Tax Credits. In the event - the -Town -is prevented by binding- court order from- paying rebates with respect to the Property -or otherwise fails to- appropriate; Owner-shall have the option of disconnecting the Confluence from the Town as contemplated herein. In the event Owner determines not to disconnect the Confluence, or if the Town contests or otherwise fails to assure said disconnection in any way, Ahe provisions of Section 5.8(b) hereof shall, be immediately binding upon the Town. In the event the Town is prevented by binding court order from paying rebates with respect to Tract B, or otherwise fails to appropriate, the provisions of Section 5.8(b) hereof shall -be- immediately binding upon the Town. - 13 Final 10/27/98 (b) Each taxpayer, liable for Sales Tax, Lodging Tax or Real Estate Transfer Tax on taxable transactions within the Property or Tract B shall receive a credit against such taxes in each year equal to the total amount of the rebate which would otherwise have been due - - from -the Town.. The -Town- shall - notify all- persons who - would - typically collect -such taxes from a taxpayer that taxes shall not be due from such taxpayer in an amount equal to fees paid by such taxpayer. Such credit shall be automatic and shall take effect immediately without being claimed on taxpayer's return relating to the applicable tax and without any requirement 'of approval or other action by the Town, but the transactions and payments supporting the credit for any given year shall nevertheless be subject to audit to the sarne-extent, for the same limitations periods and - =in- the = same manner - -as- the = items_- which=-- are-required - - -to- be-- reportecFon_theA- ax layer -'_s =return - -- relating to�he �Ooli able�ax: —The Town's agreement -to grant�ach- credit shall not be °considered a multiple fiscal year financial obligation of any kind. The credits contemplated in this Section shall continue until bonds or other instruments of indebtedness issued by the Districts or other eligible non -profit corporations acting on behalf of the,Districts which are paid by the fees received from such taxpayers have been paid in full and notice thereof has been delivered to the Town. -It-is -the expectation-of the parties that a separate series of bonds shall be issued for Confluence parking improvements, Tract C parking improvements and Tract B parking improvements. The Town shall grant such credits unless prevented by court order from so doing. In the event any action is commenced challenging the right of the Town to grant such credits, the Town shall notify Owner and Shapiro in writing of such action prior to the_Town filing its first responsive pleading in such action and shall allow the Owner and/or Shapiro to participate in any defense to such action as set forth in Section 2.4 above. - The Town agrees that it shall take no action to prevent, and shall not fail to take any action necessary to allow, Owner and/or Shapiro, or corporations they organize, from imposing and/or collecting fees as contemplated herein. -- -5:10 -Legal-Challenge to Tax -Agreement. In -the event any agreement- contained herein regarding taxes is ever the subject of a successful legal challenge, the Town shall diligently resist such challenges in cooperation with the Owner as set forth in Section 2.4 above. If such - --------- - - - - -- challenges are successfiil- -in any material way,--the Town shall = undertake = such - curative actions as are necessary to attempt to fully restore the benefits of this Agreement to each of the parties. Town Deposits. The Town may make other deposits from any other taxes or funds of its own to the rebate accounts _ ._ -5.12- _- _ Town Expenses. Upon receipt of an -invoice - from the Town, the Districts shall - - - - - -- - ----- - - - - -- -- -i- - - - ay the reasonable expenses of the-Town for calculating and administering the rebates hereunder. ARTICLE VI SPECIAL DISTRICTS 6.1 Special Districts. The Town agrees to take all reasonable action necessary to approve an amendment to the service plan for the Districts to conform to the financial provisions of this Agreement and to permit the Districts to form qualifying non -profit corporations to carry 14 Final 10/27/98 out the purposes of this agreement and the amended service plan. The Mall shall be included in the' Districts at the request of the Town. In addition, properties known as Avon Town Square, Lot 61, and other properties -maybe included in the Districts upon reasonable terms and - - -- conditions.- -- -- - - -- -- - - - -- - — - -- - 6.2 Dissolution of Districts. Dissolution of the Districts shall occur in the manner set forth in the service plan for the Districts and in accordance with the provisions and procedures _ set forth in C.R.S. §§ 32- 1- 701, -et seq.'as in effect as of the date of this Agreement. ARTICLE - - - - -- DEFAULTS, REMEDIES, AND TERMINATION 7.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as: (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 or the Development Standards or' PUDs_ ; or (b) the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. --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. 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 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. 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- orby-statute: - - - - - -- - -- - - - - - -- — -- - - - - -- -- - (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by 15 Final 10/27/98 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: (i) 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; and cause the -Confluence; or= any portion--thereof-designated-by Owner, _ -- to he dis- - -- cted from�theJTown. -- - --- - - - - -- 7.5 Disconnection. The Town acknowledges that Owner has agreed to develop the Confluence at significantly lower density than Owner originally desired in consideration of the Town's agreement to rebate taxes as set forth herein, and that failure of the Town to appropriate revenues sufficient to pay the rebates contemplated herein will substantially impair the value of the Confluence. Accordingly, in the event the Town exercises its discretion in any year and determines not to make sufficient budget appropriations to pay such rebates, fails to make any other appropriations which may be required by law to enable the Town to perform this Agreement in all respects, if the Town contests disconnection or otherwise acts (or fails to act) in any way to avoid disconnection, if the Town is prevented by appropriate judicial order from _ __making such appropriations, or if any other event occurs to cause rebates not to be paid as contemplated hereinOwner shall have the immediate and continuing right, at its election, to disconnect the Confluence from the Town it being the express agreement of the parties hereto that any such act, at the sole election of Owner, shall be deemed to be a failure of the Town to meet a condition of annexation of the Confluence and/or a failure to serve the Confluence in the manner agreed herein, and shall entitle Owner to the immediate disconnection of the Confluence notwithstanding any statutory procedure or requirement for disconnection by petition. In furtherance of said agreement, the Town represents that as a home rule municipality this contractual right of disconnection shall be in addition to any statutory right or procedure for disconnection which may exist -under law -which -shall -not= be- - deemed - exclusive rights and procedures. The Town agrees in such event that it will take all necessary steps to accomplish such disconnection and shall not contest any disconnection effort by Owner. The Town shall cooperate in all respects to accomplish such disconnection whether under the agreements set forth herein or mWer any apTlicable statutory disconnection procedure, which a court may require. Said disconnection shall not affect any development rights concerning -the Confluence which are vested under common law vesting principles or which are vested pursuant to this Agreement. In the event the Town breaches this Agreement by failing to pay rebates, credit taxes or amend its Municipal Code as agreed in Article V hereof, Owner shall have all rights of disconnection set forth herein. Hr-1 Final 10/27/98 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. Excepras--otherwise-provided in a separate written agreement, Owner and the Town shall -each bear their respective costs-and-expenses associated with implementing and enforcing the terms of this Agreement. 84 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 Town Findings. The Town hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare, and the provisions of this Agreement, the PUDs, Development Standards, and vesting agreements contained_ herein are consistent with the Comprehensive Plan, Municipal Code, and "other applicable regulations and policies of the Town. 8.6 Severability. If any term, provision, covenant or-condition of this Agreement is -held by a court- of competent juri sdiction to be invalid, void or unenforceable, the remaining provisions of this, Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. - -- - - - - -- 8.7 - - -- -- 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. 8.8 Notices. Any notice or communication required under. this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt- requested:_-If given by-registered -or certified - mail, the same shall be - deerned to-have been given-and-received on the -first to -occur of -(i)- actual- receipt -by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days after a registered or� certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have - - --been -given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other. party hereto as provided in this Section designate additional- persons to whom notices or communications- shall be given;_ and designate any other 17 Final 10/27198 address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to Town: Town of Avon P.O. Box 975 Avon, Colorado. 81620 Attention: Town Manager ts 0 VairA­ssociajW-Investme, i In a- Owner: c/o james S. Mandel, Esq. P.O. Box 7 Vail, Colorado 81658 Attu - Legal Department Attn: James P. Thompson With a Copy to: Sheldon & Gordon, P.C. 4582 South Ulster Street Parkway, Suite 902 Denver, Colorado 80237 Attn: Michael A. Sheldon, Esq. and to: White and Associates Professional C_ orporation 8005 S. Chester Street Suite 125 Englewood, Colorado 80112 Attention: Gary R. White, Esq. If-to-Shapiro: Avon Commercial Center Ltd., a Colorado limited, partnership, ` - ipirbo Development- CO., general -Partner -- c/o Shapiro Development Co. P.O. Box 5640 Avon, CO 81620 Attn: Ken Shapiro otherwise This - Agreement shall be ' binding upon and except as --- I" ­-6--thie benefit of the- successors -in interest or the-legal provided- in this Agreement, shall inure to e ofthe parties hereto. Except as specifically set forth herein,-Owner shall have the right to assign, delegate- or transfer all or any portion of-its interests, rights or obligations under ----this Agreement to third parties acquiring, an- interest or estate in the Property, including, but not limited to, purchasers or long term ground lessees of individual - al lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval r obtained, an assumption or transfers providing for express of the assignee or transferee is first - - Pti assumption of any of Owner's obligations under this Agreein ent by its assignee or transferee shall be relieved of any finthd obligations- under this Agreement with respect to the matter I so 18 Final 10/27/98 assumed. The Town's obligations hereunder may not be assigned or delegated without Owner's written consent, and any attempted assignment or delegation by the Town not in compliance herewith shall be null and void. The Town's approval of any such assignee or transferee shall not be unreasonably withheld or delayed. - - - -- - - - - -- - - _- 8.10 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. -- 8.1 -1— Amendments and Waivers. No amendment or waiver of any provision of this Agreement,— nor�onsent -to- any- departure- herefrom, shaaIiin. any event ess-the hal 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. IN- WITNESS WHEREOF Owner and the Town have executed this Agreement as of the date first written above. TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado Yo STATE OF COLORADO ) COUNTY OF ±�a ) __ before me_ this day of _� - �', 1998, by - -- - ---------- Subscnlied= _ - -�, '� - - =- - - as Mayor o- f -- Town of ----Avon;- --Colorado - an as Town Clerk of Avon. - - - - V..i Cormrnission Evires 05/23/2002 My commission expires: - Notary blic 19 Final 10/27/98 OWNER: VAIL ASSOCIATES INVESTNIENTS, INC., a Colorado limited liability company STATE OF COLORADO ) COUNTY OF �- Subscribed .3 before me this day of %�.,1� 1998, by as �L� �'� V �J {7• "���'�� of Vail Associates Investments, Inc. and t (-UtM,A�' of Vail Associates Investments; Inc.- - -- -- -- - My commission expires: �- Notary Public v -F-r.( P - - -- Mk'( .. _r..._ ...- __.,J2 20 Final 10/27/98 SHAPIRO: Avon Commercial Center Ltd., a Colorado limited partnership, Shapiro Development Co., general partner -ATTEST----- - - STATE OF COLORADO ) ss. COUNTY OF Subscribed before me this day of 0C+O - Ile r 1998, by as 9"'5:den - of and KdLT. e rN IR edmory as e%3f-k e-4 -t -- A-C.-c- •�N of "b My commission expires: 1013, I L VAWC\AGRT\GRW10081001930 244.2036 21 04. ft% V 0686666 �01 CO Ilk Final 10/27/98 Exhibit A -1 The Confluence Legal Description A parcel of land located in the south '/2 of the northwest Y. of Section 12, Township 5 South; Range 82 West of the Sixth Principal Meridian, Eagle County, Colorado, being more particularly described as follows: Beginning at a point on the southerly right -of -way line of the Denver & Rio Grande Western Rail Road and the westerly right -of -way line of Avon Road. from which the Center- % - corner of Section 12-bears S -04° 18'06" E, 612.39 feet, thence along the southerly railroad right -of -way N 65°23'2%' W, I729.75 feet to the southeasterly most corner of Tract H, Benchmark at Beaver Creek Subdivision. Amendment Number 4, as recorded in book 274 at page 701; thence departing the southerly right -of -way Iine and along the southerly line of Tract H N 89032'01" W, 39729 fca to a point on the easterly line of Beaver Creek Subdivision, Tracts O and P. as recorded in Book 656 at page 662, said litre being also the approxunate centerline of the Eagle River, thence along the easterly line the following ten (10) courses: 1) S 48°08'55" E, 132.70 feet, 2) S 57°22'26" E, 341.00 feet. 3) S 49050'33" E, 455.67 feet, 4)- S 47047100° E,- 293,81 =f - S) S 43 040'09" E, 152.41 feet; 6) S 50'10'13- E. 154.96 feet, 7) S 53 °42'45" E, 18729 feet, 8) S 81°2614" E, 214.88 feet, 9) N 86-00-59-.& 16221 fees, 10) N 86 °36'05" E. 197.35 feet to a point on the westerly right -of -way line of Avon Road, thence along the westerly right -of -way One the following four (4) courses: 1) N 12 005'08" E, 120.18 feet, .2) N I2°07'30" E, 86.00 feet, 3) N 21017'14" E. 5100 feet, 4) N 04029'54" E, 119.79 feet to the Point of Beginnina. Parcel contains 18.886 aces. Final 10/27/98 Exhibit A -2 23 Lot C Legal Description A parcel of land described as Lot C, Avon Center at Beaver Creek, Benchmark at Beaver Creep Amendment No. 4, Town of Avon, Eagle County, Colorado, being more particular described as follows: Beginning at the easternmost corner of Lot C, also being the northernmost corner of Lot B; thence along the line -- common to Lots B and C, S52° 4I TTV; 397.57-feet; thence departing said common lot line; N650 58'08'W, 22.72 feet, thence NO2° 30'12"W, 576.33 feet to a point on the southerly right -of -way of Benchmark Road. thence alone said nght -of -way N590 20'02 "E, 160.00 feet to a point on the westerly nrght -of -way of Beaver Creek Boulevard thence along said right -of-way S27° 05'23"E, 400.62 feet; thence continuing along said right -of -way along the arc of a tangent curve to the left 80.83 feet, having a radius of 540.00 feet, a central angle of 080 34'36" and a chord which bears S310 _ _22141"E,_80.76 feet to_the Point of Beginning. Parcel-4ontains 3.24 acres._ Final 10/27/98 `! Exhibit A -3 k EXHIBIT A -3 -- -_-_-----LEGAL DESCRIPTION:- - -Lot- B, -Avon Center at- Beaver Creek— - - The point of beginning being the southwest corner of Lot B, Avon Center; thence N.52'41'01 "E., a distance of 397.57 feet to a point on a curve to the - - -- right,-- said -curve having a radius of 450.00 feet; thence along said curve a _- __distance_of___187.14 feet through a central angle of 19'51'21 ", having a chord bearin g and distance of 5.45'35'39 "E., 186.20 feet; thence S.62'54'37"W., a distance of 15.00 feet; thence S.27'05123 "E., a distance of 12.03 feet; thence S.82'54'37W., a distance of 137.49 feet; thence S.27107137 "E.; a distance of 65.53 feet; thence 5.62'52'23W., a distance of 55.96 feet; thence S.27'05'23 "E., a distance of 51.17 feet; thence S.82154'27 "W., a distance of 12.10 feet; thence S.27'05'23 "E., a distance of 40.05 feet; thence N.65'58'08"1N., a distance of 366.19 feet to the True Point of .Beginning. Said parcel of land contains 75,817 square feet (1.735 acres), more or less. Final 10/27/98, Exhibit B 25 FINAL 9 -11 -98 ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT is made and entered into, this day of 1998, by and between VAIL ASSOCIATES INVESTMENTS, INC., a Colorado .corporation hereinafter referred to as "the ANNEXES", and the TOWN OF AVON, COLORADO, a- municipal - corporation,_ hereinafter -referred to as "the TOWN." -- - - - - -- - - - - -- - -- WITNESSETH: - WHEREAS, the ANNEXEE is the owner of the property described in Exhibit A, attached - - hereto (the "Property"), -and - has'filed -a petition to -annex said--property-to the-TOWN; and WHEREAS, various issues remain to be resolved in connection with the anticipated use of the Property; and WHEREAS, the ANNEXEE desires to form two metropolitan districts to serve the permitted uses on the Property and must hold organizational and bond elections in November,, 1998 (the "Election ") in order to permit such districts to be formed to serve the Property; and , WHEREAS, the TOWN and the ANNEXEE desire to conditionally annex the property to the TOWN without concurrent zoning so the districts can be approved in time to permit the Election to occur while also allowing the negotiating process to continue to resolve outstanding land use and other, issues while fully reserving to the parties the power and authority to disconnect the Property as set forth herein if such issues cannot be resolved to the mutual satisfaction of the parties; and WHEREAS, the parties mutually agree that the conditional annexation of the Property to the TOWN shall not create any additional cost or impose additional burden on the existing residents of the TOWN to provide public facilities and ,services to the Property after annexation nor shall it create any obligation of any kind on the parties except as specifically set forth herein or.in the Development Agreement contemplated herein; and WHEREAS, the parties intend, after annexation of the Property, to negotiate in good faith to complete a development agreement setting forth ' in detail their respective duties, obligations and rights with respect to the Property (which agreement shall be referred to herein as the "Development Agreement "). In consideration of the foregoing premises and the covenants, promises, and agreements of each of the parties hereto to be kept and performed by each of them, IT IS AGREED: L INTENTION OF THE PARTIES 1. It is the express intention of the parties hereto, and the express intent by which this Agreement shall be interpreted and the rights of the parties determined in all cases, that the TOWN shall conditionally annex the Property without granting any zoning of any kind at the time of annexation, and that the TOWN shall consider the approval of service plans for special district_ s which may ultimately serve the Property in sufficient time to permit the Election to occur, but only on condition that the parties enter into good faith negotiations to attempt to complete a Development Agreement as contemplated below, and that if such Development Agreement is not completed to the mutual satisfaction of the parties by October 31,1998, the Property shall be disconnected from the TOWN unless said date -is extended by mutual written agreement. To that end, the parties specifically agree that the annexation of the Property by the TOWN as a conditional annexation, the approval of service plans for districts by the TOWN, and the entering into good faith negotiations to complete a Development Agreement shall not obligate the parties to execute any agreement, grant any zoning, or permit any use on the Property except as is voluntarily agreed by the Parties. 2. In the event the right of disconnection arises as contemplated herein, either party without consent of the other shall be entitled to seek such court orders as may be necessary to give effect to this Agreement disconnecting or confirming the disconnection of the Property' from the TOWN. Such disconnection may be by Town ordinance or order to be obtained from the court vested with legal jurisdiction. Each party agrees that it will not contest any such effort by the other party and will. provide reasonable assistance to the other party to achieve such disconnection by November 30, 1998 unless said date is extended by mutual written agreement. In such event, this provision shall be deemed a request, application and petition by ANNEXEE and agreement by the Town to have the TOWN or the district court order or confirm the Property disconnected from the Town. 11L DEVELOPMENT AGREEMENT 1. The Development Agreement shall at a minimum address the following matters to the satisfaction of the parties: tax rebates - land uses and zoning - special districts - development entitlements - conference center - traffic impacts 2. The foregoing is not intended to be an exclusive list of issues to be addressed by the parties. Matters may be added to or deleted from said list at will of the parties; provided, however, that if a Development Agreement is not completed to the mutual satisfaction of the parties hereto, the remedies herein may be fully exercised by either or both parties. 2 III. ZONING, DEVELOPMENT AGREEMENT AND DESIGN 1. Immediately after annexation of the Property is complete, the ANNEXEE and the TOWN shall commence negotiations toward the completion and execution of the Development Agreement described herein; and the ANNEXEE shall submit an application for zoning of the Property substantially as set forth in a "Land Use Plan" to be developed in conjunction with the Development Agreement. There shall be no statutory, constitutional, nor other obligation of the TOWN- -to - zone -- the -- Property- except. as such matters are contemplated in the Development Agreement and zoning application filed consistent therewith. :2. In the , event that prior to November 1, 1998 (1) the TOWN and the ANNEXEE are unable, despite their good faith efforts, to reach agreement on the terms and conditions of the Development Agreement, or (2) the TOWN does not adopt the appropriate ordinance adopting zoning for the Property substantially as set forth in the Land Use Plan or otherwise satisfactory to - - - -- the -ANNEX t,- i)r- (3) -if such= zomng -is- adopted by the TOWN but is invalidated by referendum or other lawsuit, then, in any such event and upon notice by one party to the other of such event, the Property shall be immediately disconnected from the TOWN, and the parties shall immediately take all action necessary to cause such disconnection. IV. SPECIAL DISTRICTS 1. Immediately upon execution of this Agreement, the AN14EXEE shall be --permitted-to- file service p speci al districts4o- ser4e-the Proper"hich -shall contain the information required by law for the TOWN to adopt a resolution of approval thereof. The TOWN shall act in good faith and expeditiously to consider" the adoption of a resolution of approval not later than September 22, 1998 in order to permit the Election to occur on November 3, 1998. If resolutions of approval' are not obtained, all negotiations regarding the Development Agreement may cease, but such negotiations shall not be required to cease. The ANNEXEE agrees that any special districts established within the Property shall neither levy, charge, or collect taxes, issue debt, nor shall such districts apply for or request Colorado Conservation Trust-Funds as supplemented by the state lottery until a Development Agreement is executed. 2. In the event special, districts are organized, the-ANNEXEE shall not have --any right to use such districts for any reason until a Development Agreement is executed and an amended service plan is approved if required by the TOWN. If a Development Agreement is not - executed as contemplated - herein,- the-districts shall-be be of this Article shall be incorporated in the initial service plans for such districts as conditions of service plan approval. _ -- - V. GENERAL PROVISIONS 1. This Agreement shall be recorded with the Clerk and Recorder in Eagle County, Colorado, -and shall run -with -the Property, and shall be binding upon and inure to -the benefit of the heirs, successors, and assigns of the parties hereto. Every part of the Property shall at all times remain subject to all the obligations of this Agreement with respect to each part of the Property. - - -- - - -- - - - -- - - - - - -- - - - -- - - - - -- - - - -- - -- -- - - - -- -- - - -- ---- - - - - -- - — -- - - - - -- - -- - -- - -- 2. Nothing contained in this Agreement shall constitute or be interpreted as a repeal. =- of existing -codes -or_ ordinances_ or-as 5 a - waiver -_ or._ abrogation _ of - the - 'TOWN' -s`_- legislative, - -- -- governmental, or police powers -to- promote - and protect the health, safety, or_ general welfare of the TOWN or its inhabitants; nor shall this agreement prohibit the enactment by the TOWN of any fee which is of uniform or general application. _. - - ._ 3.: - _- - -ffthe annexation or zoning-of the Property or any- portion- thereof -is challenged by a referendum or initiative, all provisions of this Agreement, together with, the duties and obligations of each party, shall be suspended pending the outcome of the referendum election. If the referendum challenge to the annexation results in disconnection of the Property from the TOWN, then this Agreement and all provisions contained herein shall be null and void and of no further effect. If the referendum challenge fails, then the ANNEXEE and the TOWN shall continue to be bound by all terms and provisions of this Agreement. 4. In the event that the annexation of the Property or any portion thereof is voided by final action of any caunsuch_9n -being-Associated with a referendum or initiated action,_th_ e TOWN and the ANNEXEE shall cooperate to cure the legal defect which resulted - in disconnection of the Property or zoning challenge, and upon such cure this Annexation Agreement shall be'deemed to be an agreement to annex the Property to the TOWN pursuant to Section 31 -12 -121 of the Colorado Revised Statutes. The ANNEXEE may reapply for annexation as when the Property becomes eligible for annexation as determined by the TOWN. S. It is understood- and agreed by the parties hereto 'that if any part, term, or provision -of this Agreement is by the -courts held to be illegal or in conflict with the constitution or any law of the State of Colorado or the United States, the validity of the remaining portions or provisions shall not be affected ' and the rights and obligations of the . parties shall be construed and enforced as if the agreement did not contain the particular part, term, or provision held to be invalid. Notwithstanding the foregoing, if the ANNEXEE' S right to disconnect contained in Article M.2., or- the- T OWN's- discretion over terms of the Development Agreement provided in Article II is determined to be illegal, unenforceable or in conflict with any applicable law, then this Agreement in its entirety-shall be immediately void and of no further force or effect as to the Property and the TOWN shall take such action as is necessary . to cause or confirm the disconnection of the Property, it being deemed that a condition of approval of the annexation ordinance has not been met. 6. This Agreement, the attached exhibits and the Development Agreement embody the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein; and this Agreement shall supersede all previous 4 communications, representations, or agreements, either verbal or written, between the parties hereto. Except as provided in this Agreement, there shall be no modification of this Agreement except in writing, executed with the same formalities as this instrument. Subject to the conditions -- precedent therein,-- this - agreement- -may -be -- enforced —in- any - -court—of - competent jurisdiction. 7. This' agreement shall -terminate and expire thirty (3 0) years from the date, of __execution_hereof._ Thereafter,'- so_long as the- Property is located within-the municipal b9pricalips of the TOWN, it shall continue to be subject to the charter, ordinances, and rules and regulations of the TOWN. 8. Under the Development Agreement, the ANNEXEE may be required to dedicate certain portions of the Property for-public use and/or convey certain portions- of the Property -to the _ TOWN. All such dedicated or conveyed real property shall- be dedicated for the perpetual -- -- - use and-benefit of-the- public by--the dedication - language of the..relevant- .subdivision plat -or- ,shall be conveyed to the TOWN by general warrant deed free and clear of mortgages, deeds of trust, and other- liens of whatever sort, and be free and clear of other restrictions, reservations, exceptions, covenants, easements, rights -of -way, and other encumbrances (except easements of record), and other encumbrance's or natural conditions, except for those to which the TOWN had no reasonable objection in light of the intended use of the site, at no monetary cost to the TOWN. 'IN WITNESS W FREOF, the parties hereto have executed this agreement the day and year first above written. The ANNEXEE: Vail Associates Investments, Inc., a Colorado corporation By: - (Nam and title) STATE OF COLORADO ) - -- - - Subscribed -- - - - - -- before me this Z 3 day of �� 1998, by A 496 �5. A4MDW- as SR. V, P of Vail Associates Investments, Inc. 5 The TOWN: TOWN OF AVON, COLORADO A municipal corporation of the Eagle County, State of Colorado By: -(Name and title) ATTEST: (Name and title) Approved as to form STATE OF COLORADO ) ) ss. C_OUM OF -� - - -- -- - - - - - Subscribed before me this day of 1998, by as of Town of Avon, Colorado. My commission expires: Notary Public VAINMORTUMC 1344081098 0244.2033 EXHIBIT A LEGAL DESCRIPTION Final 10/27/98 Exhibit C -1 26 Confluence PUD Revised Submittal No3 October 27,1998 SECTION II: Zoning Review: Titte 17 I DEVELOPMENT STANDARDS: A. Intention: This development is intended to complement the adjacent town center developments, future developments and expansions and to provide a variety of uses on the Confluence such as lodges, commercial establishments and offices in a predominantly pedestrian environment These development standards are intended to provide a development which distinguishes this development from other areas within the Town. B. Allowed Uses: The following uses shall be permitted in this Confluence development and those designated with a ■ shall also be allowed at plaza / ground level, those uses not designated with a ■ shall not be Permitted at plaza / ground level. Commercial uses designated with a O shall be permitted to a nnaximum of 40,000 SF GLFA: 1. ® O Retail Stores; 2. ■ - O Specialty Shops; 3. ■ O Restaurants, excluding drive - through windows; 4. E O Cocktail Lounges; 5_ ■ O Personal service shops; 6. ® O Professional offices, 7. ■ Hotels; 8. ■ . Lodges; 9. Apartments; 10. Condominiums; 11. ■ Indoor recreation 12. ■ O Financial Institutions; 13. Bed and breakfast lodge; 14. Time-sham interval ownership, and fractional fee ownership projects; 15. W Intercept / day- -slier parking; 16.0 O Entertainment Facilities 17.81 Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district, to be approved by the zoning admininistrator. G Special Review Uses: 1. Public Transportation facilities; 2. Public parking facilities except for intercept / day - slier parking provided at initial development phase. 3. Theatres; 4. Conference / Convention Facilities; . 5. Aboveground public utility installations; 6. Churches, 7. Drive - through windows. Confluence PUD Revised Submittal .io3 October 27, 1998 Page 2 of'-) D. Development Standards: 1. Lot Area: 18.886 Acres [Not to be affected by future condominium and/or subdivision platting] 2. Building Height: No building or portion thereof may extend above a plane 10 feet below that projected horizontally from the top of the Avon Center Building, and in no case shall any building be taller than 120 feet, measuring said height as defined in Title 17 of the Avon Municipal Code. Specific buildings, will provide for appropriate view corridors from town core areas. 3. Binding Setbacks: See Building Setback Diagram — Exhibit N (Revised 14/9%98) A. Riverfront: Seventy Five Feet [75] from the mean annual high water mark. If the 100 year flood plain or identified wetlands exceed the 75' setback those exceptions will constitute the designated setback. B. Side [East]: Twenty, Feet [20'] C. Rear [North]: Ten Feet [10'] Zero Feet [0'] for structures pertaining to transportation systems and / or buildings or pedestrian linkages. Non - habitable porte-cochere, low level roof structures covering open air pedestrian ways and awnings relating to commercial uses may encroach into setback. 4. Maximum -- Site, Coverage: Seventy percent [70 %] - - -. - -- - S. Maximum Density: 456 Dwelling Units which equates to 30 Dwellings Units per acre of buildable area. (3 hotel rooms or Accommodation Units = 1 Dwelling Unit) 6. Parking: X Commercial: Five spaces per thousand square feet gross leasable floor area [GLFA] applied to a full range of commercial uses [allowed in `Town Center' zoning such as retail, restaurant, and / or .office] excluding parking requirements for incidental guest oriented commercial uses within 'hotels. B. Residential/Lodging: 1. Hotel: 1.0 parking space per room (Including parking requirements for incidental guest oriented commercial uses within hotel) 2.. Timeshare / Interval Ownership Units: 0.6 parking spaces per bedroom 3. Dwelling Unit: 2.0 parking spaces per unit up to two [2] bedrooms plus, 0.5 parking spaces per additional bedroom. 4. Deed Restricted Employee Housing: 0.5 parking spaces per bedroom C. No additional guest spaces shall be required. All surface and below grade parking spaces shall be counted toward meeting these requirements. Final 10/27/98 Exhibit C -2 27 Lot C PUD Revised Submittal October 27, 1998 SECTION II: Zoning Review: Title 17 1 DEVELOPMENT STANDARDS: A Intention: This development is intended to complement the surrounding .town center developments, future developments and expansions and to provide a variety of uses on Lot C such as lodges, commercial establishments and offices in n-a predominantly pedestriaa-environment. 'These development standards are intended to provide a development which- distingui- hes+this development from other zone districts within the Townes -`_ - - - - - -- B. Allowed Uses: The following uses shall be permitted in this Lot C development and those designated with a ■ shall also be allowed at playa / ground level. those uses not designated with a- R shall not be ' permitted at plaza / ground- level: - - -- _ _- - - -- - -- - 1. ■ Retail Stores; 2. ■ Specialty Shops; 3. ■ Restaurants, excluding drive - through windows; 4. M Cocktail Lounges; - 5. o. Personal service shops; 6. ■ Professional offices; 7. ■ Hotels; = - -- - - - - -- - - -- 8. ■ Lodges; - - - - - -9; Apartments; - -- - 10. Condominiums; 11. ■ Indoor recreation and/or entertainment facilities; 12. ■ Financial Institutions; 13. Bed and breakfast lodge; . 14. Tune - share, interval ownership, and fractional fee ownership projects; and, 15. ! Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district, to be approved by the zoning administrator. C. Special Review Uses: 1. Public Transportation facilities; 2. Public parking facilities; . 3. Theatres; 4. - Conference / Convention Facilities; S. Churches; - -- 5. Aboveground public utility installations; and, 6. Drive - through windows. Lot C PUD Revised Submittal October 27, 1998 Page 2 of 2 D. Development Standards: 1. Lot are$: 3.24 :acres [Subject to future condominium and/or subdivision platting] 2. Building Height: Subject to a Building Height equal to the Avon Center Building Height subject to verification by a licensed professional surveyor. 3. Building Setbacks: A. Front [North]: West Beaver Creek Boulevard - Twenty Feet [201] Front [West]: Benchmark Road — Twenty Feet [20'] B. Side [East]: Lot `B' - Ten Feet [10'] Side [West]: Benchmark Road — Ten Feet [101] C. Rear [South]: The Town- of Avon Mall - Ten Feet [10'] (Non - habitable porte- cochere, low level roof structures covering open air pedestrian ways and awnings relating to commercial uses may encroach ten feet into setbacks.) 4. Maximum Site Coverage: Seventy per cent [70 %] S. Maximum Density: 210 Dwelling Units - Site Density of 65 Dwelling Units / Acre (3 hotel rooms or Accommodation Units - 1 ' Dwelling Unit) 6. Parking: A. Commercial: Five spaces per thousand square feet gross leasable floor area [GLFA] applied to a full, rang_ e of commercial uses [allowed in `Town Center' zoning such as retail, restaurant, and / or office] excluding incidental guest oriented commercial uses within hotel. B. Residential/Lodg* - 1. Hotel: 1.0 parking space per room (Including incidental guest oriented commercial uses within hotel) 2. Timeshare / Interval Ownership Units: 0.6 parking spaces per bedroom 3. Residential Unit: 2.0 parking spaces per unit up to two [2] bedrooms plus, 0.5 parking spaces per additional bedroom. 4. Deed Restricted Employee Housing: 0.5 parking spaces per bedroom- C. No additional guest spaces shall be required. All surface and below grade parking spaces shall be counted toward meeting these requirements. Lot C PUD Revised Submittal October 27, 1998 SECTION II: Zoning Review: Title 17 I DEVELOPMENT STANDARDS: A. Intention: This development is intended to complement the surrounding town center developments, future developments and expansions and to provide a variety of uses on Lot C such as lodges, commercial establishments and offices in a predominantly pedestrian environment. These development standards are intended to provide a development which distinguishes this development from other zone districts within the Town. B. Allowed Uses: The following uses, shall be permitted in this Lot C development and those designated with a ■ shall also be allowed at plaza. -/ ground level, those uses not designated with a ■ shall not be permitted at plaza / ground level: 1. Retail Stores; 2. W Specialty Shops; 3. ■ Restaurants, excluding drive - through windows; 4. ■ Cocktail Lounges; 5. ■ Personal service shops; 6. ■ Professional offices; 7. 0 Hotels; 8. ■ Lodges; 9. Apartments; 10. Condominiums; 11. il ' Indoor recreation and/or entertainment facilities; 12. M Financial Institutions; 13. Bed and breakfast lodge; 14. Time - share, interval ownership, and fractional fee ownership projects; and, 15. ■ • ,Additional uses determined to be similar to allowed uses in accordance with the intent of this zone district, to be approved by the zoning admininistrator. C: Special Review Uses: 1. Public Transportation facilities; 2. Public parking facilities; 3. Theatres; 4. Conference / Convention Facilities; 5. Churches; 5. Aboveground public' utility installations; and, 6. Drive - through windows. Lot C PUD Revised Submittal October 27, 1998 Page 2 of 2 D. Development Standards: 1. Lot Area: 3.24 Acres [Subject to future condominium and/or subdivision platting] 2. Building Height: Subject to a Building Height equal to the Avon Center Building Height subject to verification by a licensed professional surveyor. 3. Building Setbacks: A. Front [North]: West Beaver Creek Boulevard - Twenty Feet [20'] Front [West]: Benchmark Road — Twenty Feet [20'] B. Side [East]: Lot `B' — Ten Feet [10'] Side [West]: Benchmark Road — Ten Feet [10'] C. Rear [South]: The Town of Avon Mall - Ten Feet [10'] (Non - habitable porte - cochere, low level roof structures covering open air pedestrian ways and awnings relating to commercial uses may encroach ten feet into setbacks.) 4. Maximum Site Coverage: Seventy per cent [70 %] 5. Maximum Density: 210 Dwelling Units - Site Density of 65 Dwelling Units / Acre (3 hotel rooms or Accommodation Units = 1 Dwelling Unit) 6. Parking: A. Commercial: Five spaces per thousand square feet gross leasable floor area [GLFA] applied to a full range of commercial uses [allowed in `Town Center' zoning such as retail, restaurant, and / or office] excluding incidental guest oriented commercial uses within hotel. B. Residential/Lodging: 1. Hotel: 1.0 parking space per room (Including incidental guest oriented commercial uses within hotel) 2. Timeshare / Interval Ownership Units: 0.6 parking spaces per bedroom 3. Residential Unit: 2.0 parking spaces per unit up to two [2] bedrooms plus, 0.5 parking spaces per additional bedroom. 4. Deed Restricted Employee Housing: 0.5 parking spaces per bedroom C. No additional guest spaces shall be required. All surface and below grade parking spaces shall be counted toward meeting these requirements.