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TC Ord. No. 2004-01 Approving the lot 61 planned unit development PUD for lot 61 block 2 benchmark at Beaver Creek subdivision TOA eagle county Co868660 l y 7~ ,a Page: I of 25 02/23/2004 04:54P Teak J Simonton Eagle, Co 289 R 126.00 D 0.00 TOWN OF AVON ORDINANCE NO. 04-01 SERIES OF 2004 AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT. BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 6, 2004, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Development Plan; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of the Town of Avon; and . WHEREAS, after notices provided by law, this Council held a public hearing on the 1Dt day of , 2004, at which time the public was given an opportunity to express their opinions r ding the proposed PUD Development Plan; and C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc V /l 86866@ Page: 2 of 25 02/23/2004 04:549, Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 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. The hearings before the Planning & Zoning Commission and the Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. That the Lot 61 PUD Development Plan is consistent with the recently adopted Town Center Plan, the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the following conditions: 1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town, as required by Section 17.14. 100 of the Avon Municipal Code, prior to issuance of a building permit to amend the Town's Augmentation Plan. 2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is required to complete subsequent design review approval, which consists of compliance with the Town Center Design Guidelines and the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. 3. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this alt-' day of , 2004, and a public hearing shall be held at the reiaular meeting of the Town Council o e Town of Avon, Colorado, on the ld~ day of.. 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc ATTEST: 3 I Town erk Mayor r INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the 10 t day of 2004. Town of Avon, Colorado Town Council libl~i ~i fit- s ATTEST:.., 4(c To C rk 1111111111111111111111111111 Teak J Simonton Easle, CO 1 A~o o /o~ ~ n I Mayor APPROVED AS TO FORM: AIJ ) Toxtn Attorney 868660 Page: 3 of 25 02/23!2004 04:54P 289 R 126.00 D 0.00 C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files'DI-MOrd 04-01 L61 B2 BMBC PUD.doc IF, Exhibit "A" to Ordinance 04-01 DEVELOPMENT AGREEMENT . FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION THIS DEVELOP 4ENT AGREEMENT (this "Agreement") is made and entered into as of February, 2004 by and between IDG3, LLC, a Limited Liability Company, its successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town"). RECITALS: A. Owner is a limited liability company, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property generally referred to as "Lot 61" as more particularly described in Exhibit A attached to this agreement ("Lot 61 C. The Town and the Owner desire to develop Lot 61 as a mixed-use development consistent with the Avon Town Center Implementation Plan thereby creating new property lines for Lot 61, development standards, rights- of-way and a transportation center. This new parcel is referred to as the "Property". D. The Property contains specific development standards attached and incorporated herein as a site-specific development plan entitled "Lot 61 PUD Development Plan" (Exhibit "B") and as set forth in Article III of this Agreement. E. The Town has authority to zone and govern development of the Property in accordance with this Agreement, the Avon Comprehensive Plan, The Avon Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61 PUD (as defined herein), and other applicable Town requirements and polices. F. In order to ensure orderly controlled development by establishing minimum design standards, including streets and other forms of vehicular and pedestrian access, drainage, water supply and sanitation improvements to support human occupation, it is necessary to require subdivision consistent with Title 16, Avon Municipal Code. G. The Property includes specific design requirements as set forth by the Town Center Implementation Plan, which is further defined and supported by the Town of Avon Residential, Commercial, and Industrial Design Review 1 868660 Page: 4 of 25 02/23/2004 4.54P Teak J Simonton Eagle: Co 289 R 126.00 D0.00 +.l , x Guidelines. Specifically, the project will comply to the following general design intentions: ■ Building facades will be stepped to avoid long straight walls. All sides of the building must receive equal architectural treatment. ■ The building will be designed as a composition of architectural elements rather than larger single blocks that appear unrelated in form and context. ■ The street-level architecture will activate and enhance pedestrian activity on Main Street (the mall level), encouraging a lively center of retail activity year round. Additionally, the project will comply with the following site-specific guidelines: Articulation of building facades: Building facades shall be articulated with variations in materials and punctuated with intermediate roof forms and building projections.-Varying expressions of decks, windows and surface treatments shall be combined to create a rich texture that will enhance the interest of the facades. The three primary components of the building's base, body and top shall be clearly and deliberately expressed. The building's base shall express mass and support with the use of such materials as stone and architectural concrete. The "body" of the building shall begin to erode materials that express mass to lighter materials and more openings and surface variations such as decks and changes in wall plane. Roofs shall be proportional to the height and scale of the various building elevations. The east end of the primary roof(s) and upper portion of the walls shall be articulated so as to minimize their visual impact to surrounding properties which may include the use of decks and the lowering of roof lines. Roofs at north property line: In addition to the suggested wall treatments noted above, these roofs shall be adequately varied to avoid uninterrupted flat roofs. Approximately 50% of the elevation above 28' above grade shall be articulated through the introduction of discontinuous roof forms such as gables perpendicular to the wall plane and variations in roof edges, relative to the setback line. H. The legislature of the State of Colorado adopted Sections 24-68-101, et seq. of the Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment backed expectations of landowners, and foster cooperation between the public and private sectors in. the area of land use planning; said Vested Property 2 1111 Jill 111111111111111111111111 Jill 868660 Page: 5 of 25 02/23/2004 04:54P Teak J Simonton Eagle: CO 289 R 125.00 D 0.00 Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. 1. 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. J. Development of the Property in accordance with this Agreement will provide for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he Comprehensive Plan, the Avon Town Center Implementation 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 that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS 1.0 Definitions. The following terms and references shall have the meaning set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town on November 5, 1996, or any subsequent duly adopted plans or amendments thereto. 1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD Development Plan" incorporated herein and further defined in Sections 3.2 of this Agreement. 868660 3 1111111111111111111111111111111111111111111 11~1 1111 Page: 6 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 1.3 Effective Date. The effective date of the Town Council Ordinance approving this Agreement and the recording of the relevant subdivisions referenced herein with the Clerk and Recorder of Eagle County, Colorado. 1.4 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of Lot 61 Exhibit B Lot 61 PUD Development Plan, including Benchmark Court Right of Way and Transportation Center location 1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Ch. 3.28, Avon Municipal Code or any similar code provision enacted during the T erm o f t his A greement u pon a ny s ales o r rental o f t odging w ithin t he Property. 1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code. 1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61 . PUD Development Plan as set forth in Exhibit "B". 1.9 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.10 Sanitation District. Eagle River Water and Sanitation District. 1.1 Subdivision. Means to make a disposition of land or airspace which is defined as a subdivision, subdivided land, condominium subdivision, estate in airspace, specially planned area and/or planned unit development subdivision, minor subdivision, duplex subdivision or time-sharing subdivision consistent with Title 16, Avon Municipal Code. 1.12 Time-share owner. Means a person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 1.13 Time-share unit. Means a unit the title to which is or is to be divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 4 Page: 7 of 25 02/23/2004 4: Teak J Simonton Eagle. CO 289 R 126.00 D0.00 541 1.14 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.15 Town Council. The Town Council of the Town. 1.16 Lot 61. The real property described in Exhibit A attached hereto. 1.17 Vested Property Rights Statute. As defined in Recital H. 1.18 Zoning. The passing of land use ordinances and regulations authorized by the Statutes of the State of Colorado and by Article XX of the Colorado Constitution, and more specifically through the Avon Municipal Code, Title 17, intended to ensure that zoning promotes stated benefits to the citizens of the Town. 1.19 Zoning Application. The zoning application for the parcel comprising the Property submitted to the Town on J-UKjr-- Z t> , 2004. 1.20 Avon Town Center Implementation Plan. The plan adopted by the Town on November 6, 2001 regarding development in the area commonly known as the Town Center. ARTICLE II COVENANTS; THIS AGREEMENT 2.1 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 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 5th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, provided, however that such termination shall not effect (a) any rights-of-way and uses of property granted to the Town related to the transportation center, or (b) any right arising from Town permits, approvals or other entitlements for the Property which were granted or approved prior to the 5th anniversary of the Effective Date. 2.2 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice, public hearing and revised ordinance procedures required for approval of this Agreement stated in Section 17.20.110 (Planned Unit Development) et al of the Avon Municipal Code. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined 5 ' 868660 Page: 8 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 tf ~ i herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement and in the respective Development Standards. Complete zoning and site plans are attached in Exhibit B, the Lot 61 PUD Development Plan. 3.2 Development Standards. The "Development Standards" set forth the zoning for the Property, and indicate, among other things, setback distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Property and are specifically set forth in Exhibit "B". (a) Subsequent Final Plan Approval. Pursuant to this Agreement the Property is now PUD Zoning pursuant to Section 3.4(a). This constitutes a Site-Specific Development Plan for the purposes of establishing vested rights. Owner and the Town shall, in a manner which is uniform of the Town and consistent with the provisions of Section 2.1 and Section 3.4 (d) further refine the design of the improvements and other details, all consistent with the Development Standards and this Agreement collectively, "Subsequent Final Design Review Plan Approval." The subsequent Final Design Review Plan Approval will consist of compliance with the Town Center Implementation Plan, Town of Avon Residential, Commercial, and Industrial Design Review Guidelines, and relevant portions of the Avon Municipal Code. (b) Development Approval. Simultaneously with the granting of PUD Zoning of the Property pursuant to Section 3.4 (a), the Town hereby approves the Lot 61 PUD Development Plan (Exhibit `B"). 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement. and the Development Standards and the Lot 61 PUD Development Plan constitute an approved "site-specific development plan" as defined in the Vested Property Rights 6 1111111111111111111111111111111111111111111111111111111 868660 Page: 9 of 25 02/23/2004 4 Teak J Simonton Eagle: Co 289 R 126.00 D0.00 :54P Statute and Section 17.14.100 of the Avon Municipal Code and subsequent compliance with Section 17.12.020 of the Avon Municipal Code which the Town acknowledges 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 with the Property in the manner and to the extent set forth in and pursuant to this Agreement, the Development Standards and the Lot 61 PUD Development Plan. (b) The right to develop, plan and engage in land uses with 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 in arket c onditions d ictate, s ubj ect t o t he t erms a nd c onditions o f t his 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 properly applied for and complete application approvals necessary for the development of the Property) with conditions and standards determined pursuant to Section 3.2(b) which conform to the regulations and guidelines imposed by the Town . 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, delaying or otherwise materially adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. (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, delaying or otherwise adversely affecting any of Owner's rights that do not apply to other properties in the Town, as set forth in this Agreement or the Development Standards. 7 868660 Page: 10 of 25 02/23/2004 04:54P Teak J Simonton Eagle: Co 289 R 126.00 0 0.00 3.5 Exactions. The following exactions are intended to provide adequate facilities, pedestrian and vehicular access, and other related improvements for the public benefit of the Town: (a) Right-of-Way Dedication. The newly created right-of-way referred to as "Benchmark Court" will be dedicated to the Town by the approved Final Plat, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Final Plat") in accordance with Title 16, Avon Municipal Code contemporaneously with the approval of this Agreement and the Lot 61 PUD Development Plan. (b) Drainage. On site drainage facilities for the Property shall be provided by Owner to handle drainage resulting from the development of the Property. (c) Building Setbacks and Encroachments. It is the intention of the Town to provide for necessary at grade and above grade setbacks to allow for the building and/or structure to encroach as depicted on plans shown in Exhibit B. These provisions for allowing the building and/or structure elements over and on the Town property will be set forth in the Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Resubdivision") and must be approved contemporaneously with this Agreement. The Resubdivision contains specific plat restrictions, which require as-built drawings upon the construction of the Property or the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. (d) Transportation Center. The Final Plat shall also include an easement for a Transportation Center, including necessary at grade and above grade setbacks as depicted on Exhibit B. In the event the Town elects to proceed with construction of the Transportation Center prior to the commencement of construction of the Lot 61 PUD Development Plan, then written notice must be provided to the Owner prior to 180 days of commencement of construction. The Town agrees to provide mechanical ventilation consistent with the current building code at the time of building permit application for the Transportation Center as part of the construction of the Lot 61 PUD Development Plan. Positive chase and ductwork for the Transportation Center will be provided by the Owner. s 868660 Page: 11 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 1I Noise generated by public transportation vehicles at the proposed Transportation Center shall be reduced to the maximum extent reasonably possible and in no case shall it raise the ambient sound level above the No Impact for Category I or 2 Sites as shown in the following Table 3-1 from Transit Noise and Vibration Impact Assessment, Final Report April 1995, prepared by Harris Miller Miller & Hanson, Inc. for the Office of Planning, Federal Transit Administration, U. S. Department of Transportation. The existing level of ambient noise, project noise and allowable noise levels shall be established in accordance with applicable procedures, methods and criteria conforming to the above referenced Impact Assessment, Final Report. The owner of Lot 61 will assume responsibility for the isolation of vibration transmission to the structure, supporting the residential and commercial occupancies, from the Transportation Center. The owner of Lot 61 will assume responsibility for the attenuation of sound transmission, from the Transportation Center to the residential and commercial occupancies such as the introduction of acoustic blankets, resilient suspension devices and the like associated with the base building construction. The Town of Avon will assume the responsibility of constructing the specific Transportation Center shelter and transit administrative office. They will be designed with sufficient mass and structural isolation to provide whatever measures needed to attain the acoustic criteria. 868660 9 Page: 12 of 25 02/23/2004 04:54P Teak J Simonton Eagle, Co 289 R 126.00 D 0.00 3-4 Transit Noise and Vibration Impact Assessment. Table 3-1 Noise Levels Derming Impact for Transit Projects Existing Project Noi se Impact Exp osure; L,q(h) or L,m (dBA) Noise Exposure' Category 1 or 2 Sites I Category 3 Sites L,„ (h) or L,,,, I I ( Severe (dBA) No Impact Impact Severe Impact No Impact I Impact i Impact <43 f j <Ambient+l Ambient + 0 >Ambient+15 <Ambient+15 Ambient + >Ambient+20 10 to 15 I 15 to 20 43 I <52 52-58 >58 <57 57-63 >63 44 I <52 I 52-58 >58 <57 57-63 >63 45 <52 II 52-58 >58 <57 I 57-63 >63 46 <53 I 53-59 >59 <58 58-64 I >64 47 I 153 53-59 j >59 I 158 58-64 1 >64 48 <53 53-59 >59 I <58 58-64 >64 49 <54 54-59 >59 i <59 59-64 >64 50 <54 54-59 >59 <59 i 59-64 >64 51 <54 j 54-60 ; >60 <59 i I 59-65 >65 52 <55 55-60 >61) <60 60-65 >65 53 <55 55-60 i >60 ! <60 60-65 >65 54 <55 55-61 >61 <60 60-66 I >66 55 <56 56-61 ; >61 <61 ! 61-66 >66 56 <56 I, 56-62 I >62 I <63 61-67 >67 57 , <57 57-62 j >62 <62 62-67 I >67 58 <57 57-62 162 <62 62-67 >67 59 ' <58 58-63 >63 I <63 63-68 >68 60 <58 58-63 >63 <63 ( 63-68 :>fi$ 61 <59 59-64 >64 <64 64-69 >69 62 <59 I 59-64 1 >64 <64 ; 64-69 >69 63 <60 60-65 >65 <:65 i 65-70 >70 64 <61 j 61-65 >65 <66 66-70 >70 65 <61 61-66 :>66 1 <66 f 66-71 >71 66 <62 I 62-67 >67 I -c67 ( 67-72 >72 67 <63 63-67 >67 I 68 { 68-73 I >72 68 <63 63-68 >68 <68 i 68-73 I >73 69 <64 64-69 ~ >69 <69 69-74 j >74 70 ( <65 65-69 >69 <70 i 70-74 j >74 71 <66 66-70 >70 <71 71-75 >75 72 <:66 66-71 X71 <71 71-76 >7fi 73 <66 66-71 >71 I <71 71-76 j >7,6 74 <66 66-72 >72 I f <71 71-77 I >77 75 <66 I 66-73 . >73 <71 71-78 ( >74. 76 I <06 66-74 >74 <71 71-79 >74) 77 <66 I 66-74 >74 <-71 71-79 I >79 >77 j <66 66-75 >75 <71 I 71-80 ! >St3 I, is used for l and use where n ighttime sensitivity is a factor.- L., du ring the hour of r u ximum transit noise exposure is used for land use involving only daytime activities. (e) Transit Administrative Office: A minimum of 400 square feet of floor area on the ground level adjacent to the Town Transportation Center for typical administrative purposes including rough-in plumbing for public restroom facilities associated with transportation must be dedicated upon construction of the Transportation Center by the Town and/or with design review approval for Lot 61. (f) Water Rights: The developer will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if necessary to amend the Town's Augmentation Plan based upon the specific proposal applied for. 10 86$660 Page: 13 of 25 . 1111111111111111111111111111111111111111111111111111111 Teak J Simonton Eagle: CO 289 R 126.02/23D 0000 4:54P (g) Timeshare Amenities Fee: Commencing as of the effective date of this Agreement, and continuing in perpetuity, the timeshare ownership association formed to manage the timeshare ownership project located on Lot 61 is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee. The Owner is exempt from the obligation for the timeshare amenities fee until the first-time sale of a timeshare interval. The provisions for the obligation for each timeshare owner to pay shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and association covenants. Prior to the formation of any timeshare ownership association, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fee. The number of units shall be calculated at the time of time-share subdivision. The fee shall be paid to the Town semi-annually and will be based upon the following schedule: Number of Units Constructed Per Timeshare Week* 125 -149 Timeshare Units $ 58.35 150 -174 Timeshare Units $ 48.52 175 - over Timeshare Units $ 41.51 * Timeshare Week is defined as seven (7) consecutive days constituting a maximum of fifty-two (52) intervals per calendar year. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare interests per semiannual period (January- June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the appropriate fee based upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as defined below), divided by 2. The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2005, and on the first day of each year thereafter, the amount of the fee shall be increased by the prior years average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-U"). It shall be the duty of the timeshare association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. 11 ; - - - - - 868660 Page: 14 of 25 02/23/2004 04:: Teak J Simonton Eagle; CO 289 R 126.00 D 0.00 Such records shall be preserved for a period of three y ears and shall be open for inspection by representatives of the Town during regular business hours. Prior to the formation of the timeshare association, the Owner shall have the above-referenced obligation to keep and preserve such records. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written determination of the amount due and deliver or mail the same to the office of the condominium timeshare association. The amount properly determined to be owing shall be from the due date of the remittance at the rate of one and one-half percent per month until paid. Prior to formation of the timeshare association such written determination will be delivered to the Owner. 3.6 Timing on Development. In the event the Owner obtains a building permit and complies with all other relevant rules and regulations governing development on the Property consistent with the Lot 61 PUD Development Plan, then the Owner must provide written notice 180-days prior to commencement of construction to the Town of the development schedule. There is no phasing proposed or contemplated for the development of this Property. The Owner and the Town agree to cooperate in construction staging and development to allow for orderly and safe construction of the Property. 3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property and shall have no liability to the Town for its failure to develop the Property. The Town shall have no obligation to permit the Owner to construct under the dedicated road right-of-way or transportation center after 5 years from the Effective Date of the Agreement, and shall have no liability to the Owner or any other party for its failure to develop all or any part of the Property. In the event an amended Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek based upon as-built drawings is not recorded, then the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. 3.8 Compliance with General Regulation. Except as otherwise provided in this Agreement or the Development Standards, the establishment of vested property rights under this Agreement shall not preclude the application, on a uniform and non-discriminatory basis, of Town regulations of general applicability (including, but not limited to design review, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulation shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, delaying or otherwise adversely affecting any of Owner's rights set forth in this 12 868660 Page: 15 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 Agreement or the Development Standards. Owner does not waive its rights to oppose the enactment or amendment of any such regulations inconsistent with other properties in Town. ARTICLE IV DEFAULTS, REMEDIES, AND TERMINATION 4.0 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, 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. 4.1 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. 4.2 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 5.7, 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. 4.3 Remedies. (a) If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party's obligation hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by stature. (b) In the event of default by the Owner, notwithstanding other available remedies s et forth h erein, t he T own i s u rider n o o bligation t o i ssue a ny 13 868660 Page: 16 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 land use approvals, including but not limited to design review and building permits for the Property. (c) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to: (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. ARTICLE V MISCELLANEOUS 5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Avon Municipal Code.. 5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. 5.2 Expenses. Except as 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. . 5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 5.4 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 PUD, Development Standards, and vesting agreements contained herein are consistent with the Avon Comprehensive Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations and policies of the Town. 5.5 Severability. If any t erm, p rovision, c ovenant or c ondition o f t his A greement i s held by a court of competent jurisdiction to be invalid, void or unenforceable, the 14 868660 Page: 17 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 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. 5.6 Further Assurances. Each party shall execute and deliver to the other all such other further instructions and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges under this Agreement. 5.7 Notices. Any notice or communication required under this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, if personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to that parties at their addresses set forth below: If to Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 If to Owner: IDG 3 LLC c/o C. Philip Smiley P.O. Box 5000 Avon, CO 81620 5.8 Assignments. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Except as specifically set forth herein, Owner shall have the right to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval of the assignee or transferee is first obtained, an assumption or transfers providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall be relieved of any further obligations under this Agreement with respect to the matter so assumed. The Town's obligations 868660 is Page: 18 of 25 02/23/2004 04:54P Teak J Simonton Eagle: CO 289 R 126.00 D 0.00 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. 5.10 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. 5.11 Amendments and Waivers. No amendment or waiver of any provision of this Agreement, nor consent to any departure here from, shall in any event be elective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. TOWN: ATTEST YJ Qtcl TowwCl k TOWN OF AVON, a municipal corporation of the State of C~ploradb'N % % OF ad+p B °Mayor SEAL STATE OF COLORADO ) )ss. COUNTY OF 4c+q~ ) Subscribe before me this 19' day of al_g T fl . 'fie na 6c as municipal corporation he State of Colorado. My Commission Expires: 4118 I o L, 18ra 8660 Page: 19 of 25 16 02/23/2004 04:54P Teak J Simonton Eagle. CO 289 R 126.00 D 0.00 -+ccJy_ , 2004, by yor Avon, a A~q a 01 '9~~ ~BL~,.PPO Op coo My Commission Expires 0410812006 STATE OF COLORADO ) )ss. COUNTY OF EaCi I~ ) Qz~~:~~U' - M'- Notar Pub is Subscribed before me this / 9-4+ day of i-v CZ , 2004, by "el A4 e -e nn~ as Town Clerk f Avon, a municipal corpo ar on of the State of Colorado. My Commission Expires: ATTES'YCOMInWM EXPIres IV16=7 STATE OF COLORADO ) )ss. COUNTY OF ~e. ) Notary Public OWNER: By:G, /LGPi6l~' i,lA~v3 Subscribed before me this day of r , 2004, by M'P ~ p~7 Ct r Cas 177e,, iJ! I- Z D C, 3 Lt-(Z__ °°OT°A FlY '/5 1.4 0 .*0 ♦ : QO 9% Commission Expires: / ary Public My GQmq*g n Ezp w 12/712004 l~ 868660 Page: 20 of 25 02/23/2004 04:54F Teak J Simonton Eagle: CO 289 R 126.00 D 0.00 • Exhibit "A" To Lot 61 PUD Development Agreement Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in Book 274 at Page 701 as Reception No. 171107, County of Eagle, State of Colorado. 868660 Page: 21 of 25 02/23/2004 04:54P Teak J Simonton Eagle, CO 289 R 126.00 D 0.00 Il A ` i > Y f rr Y1 .*V L O 868660 Page: 22 of 25 1 a~ 02/23/2004 04:54P tJ R 126.00 D 0.00 MvIf Teak J Simonton Eagle: CO 289 0 e b u7. f9? w r 1 D OUP P~4 y W i ¢1 U HY!ib 01 4 " r n td l0 y arri i U V 4) 0 a) to 0 i a cw~ ~r~ S w L r Q ~ gy Imo.^•r` _ Vl Rf g C ■n r~- r U . kl { f ti:f r~N to 3 r H IT to U 44 f 5 ' x 'Q u ` : v }ELI 7 .~BY. P W O Q iN t~ 1s` i hF; 4 a o3 ~ 10 fill" s ~~t CO w. bb a . r a - It N N ' N V •/1 O am ED fi/ N N O co - oI 0 GI N (iI 01 \ 0 N co amm ~ N ~ N N p U U) W C O ~ C Y H C 3 O H Y a~ o > w~ ~ C VI •(n cl O yA C Y C C Q~ t W ' V1 y CC .C ~ .2 U w i-4 cd v '(D c~ W o ~Q w O O 0 L O O H C N O v 'b a~ O Q. cd Cl. In tC 0-0 N C Y y L 00 TJ ~ y Y 3 b r ~a ~ o o ~ Y H L (C ~ L IV .r' N H U N v - mm fto o o m did N N O co rA ~ N co to m m LO ~ N a' ~ O ~ U U) W ® o c o u) Y F ww 0 0 ~ N Y c a~ o ~ U N ~ y 'D 4.. C ti y to r a1 -y E; cc C,3 E C s 0 O R. Y Y Y y Y y 3 N E 03 EE as a 3 Co O 41 O o s W 0 a ss E ..E ca CA ` Cd a G C O b EE E rn 0o r, E a~ - y a y al E E: d N ca N ' O C ~ a as C y N U U E y ~ a~ s a~ 3 k•~3 Cd U U cz ai „p Er A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RIGHTS, LEGAL ADVICE SHOUt.D BE OBTAINED IN THE DRAFTING OF ANY POWER OF ATTORNEY POWER OF ATTORNEY KNOW ALL MEN BY WIESE PRESENTS: THAT, L C. PHfLTP SMILEY, reposing special trust and confidence in MICHAEL A. HAZARD, have made, constituted and appointed, and by those prosents do make, constitute and appoint the said MICHAEL A. HAZARD, to be my true and lawful attorney in fact, to act for me and in my stead, and to rof lance, hypothecate, and give a deed of trust affecting the following property; A RESIIBDIVISiON OF REPLAT OF LOT 61, RLOM 2, BENCHMARK AT BEAVER CRFEK, TOWN OF AVON COUNTY OF EAGLE sTAT E; OF COLORADO My agent is hereby authorized to sign, seal and deliver, as my act and deed any contract, deed, deed of trust, promissory note, of other instrument in execution of any agreement for reflnance made by me or my agent in such manner that thb ostaty and interest in said land may be effecmally and alsaurcd to the Public Trustee of the County In which thin above dxsc6bed'property is situate, or to such other persou or emtty as my agent may name or appoint; and 1 herelty dealm that any and all of the contracts, deeds, receipt, notes, plats or matters, and things which shall bo by my, said agent given, made or done far the afaresalid purposes shall be as good, valid, and effectual as if they had been signed, sealed and delivered by me in my own proper person; and 11icra1ay undertake at all times to ratify whatsoever my said agent shall lawfully do or cause to bo done in or concerning the ,premises by virtue of these presents. IN WTTnSS WDEREOF, I have hereunto *set my hand and seal this 0day of 200 C PHILIP STATE OF Co CO VNTY OF The foreeong inetru ent was ackilowlodged before me This 7 20*10y C, rF-I' UP SMTLBY } Dawn R Anderson }s9. Notary Public } State of Colorado Commission cxp' C6 ~?M~ Witn my Ii$nd lcial Seal. Notary blir. 868660 Page: 25 of 25 Teak J Simonton Eagle; Co 289 R 126.00 D 0000 4:54P /23 A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RI4HTS, LEGAL ADVICE SHOULD BE OBTAINED IN THE DRAFTING OF ANY POWER OF ATTORNEY POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: THAT, 1, C. PHILiP SMi EZY, repaying Vecial trust and confidence in MICHAEL A.1RAZARD, have made, constituted and appointed, and by these presents do make, constitute and appoint the said MICHAEL A. HAZARD, to be my true and lawful attamcy in fact, to act for me and in my stead, and to roflvance, hypothecate, and give a deed of trust affecting the following property; A RESUBDi V ISION OF REPLAT OF LOT 61,11 LOCK 2, BENCHMARK AT BEAVER CREEK, TOWN OF AVON COUNTY OF EAGLE STATE OF COLORADO My agent is hereby authorized to sign, seal and deliver, as my act and deed any contract, deed, deed of trust, promissory note, or orhor instrument in execution of any agreement for refinance made by me or my agent in such mann?,T that the astata and interest in said land may be effectually and maured to the Public Tru$tee of the County in which tho above described* property is situate, or to such other person or ettthy as my agent may name or appoint; and T hereby declare that any and all of the contracts, deeds, receipts, notaa, plats or matters, and things which shall be by my said agent given, made or done for the aferrsatid purposes shall be as good, valid, and effectual as if they had been signed, sealed and delivered by me in my own proper pmon; and 1 hcmby undortake at all times to ratify whatsoever my said agent shall lawfully do or cause to bo dona in or concerning the ,promises by virtue of these presents. IN WiT"SS WREREOF, I have hereunto'set my hand and seal this I0day of C4vu~i2ppg ti __7. C P147LTP STA'> IM OF C4 ORAbO ' COUNTY OF r } Dawn R Anderson }ss, Notary Public } State of Colorado The foreing insiru ent was acknowledged before me ;his 13 - u„i . v, 20* 'q C, PHILIP SMTLFY r Commission cxpi ' Witn s my nand s; tcial Seal. Notary blir. 868660 Page: 25 of 25 02/23/2004 4 Teak J Simonton Eagle, Co 289 R 126.00 D0.00 '54P ~ ~S Q Q W D N N N N L 6 U O ~u~i a H m a ,c c c c- a ~-C ACV zQE - ~aU v6 Cfl FL L 8uu z v U U> d x °V a Q o 0 0 0 0 0 o m N ovaC o UN~ m T' ~ ~ C > F~ ~-i Q V~ 0= p o x Q Q ~ ° c'v c~v v v cm rt) wul[A44 No x ~ CL> E aA0.1 Q ~ ~ W n o Ila S Q ~Pillp ~g 4 $ g^ " .cgy b Bg5 r e AHH"Itamll U~ E y aR c.CE~tl ~ ~g 9I 8 ors' Ci$g~3s 5 ~ A A g ~ 9 ~3pg969 ~ ~ ~ 9A ~W Z 8 ~ g b a^ t~ P,pg - 3 C KK.. a iy 5 W ll I 1 r3 : ' 9 s f c yi ~~33 5 9 1, jjz,jj g c 8. cr,R 3~ l~ 9 "bd B 6 P~~ Ali Hj j, ,@E \ cEFdS oJ~ ~5 al m J ~~~FE 9 6~ ~e~ rS E d W a -wm.n4rc a _.nm... 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N N N N~ O w .y d W I ~ V l~ O N c c c c C a > > c i +N+ ~ ~ mm mvvvv " .4.~ 0 0 0 0 0 0 0 ~ ~ In CO ~4 Q p- n n - w (n o U~ Z O U W W W J S o. 0 \~~sc' , P~ O~ 4 vZ S / / °OS r Sb 66/ , / e ~ d 1Ng/ h° .ts/obrN ~\p~b dB4n4/X64 3 3 °6a136b~ kNy,I Z W 0.~ Q d W z 3 O Q i' F 0 I N. n, II W WI a Q L N > O Q c (3 OL N Q _O W Q nQ OL 4-) O J STATE OF COLORADO COUNTY OF EAGLE) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO ADOPTED ON THE 10TH DAY OF FEBURAY 2004 THE FOLLOWING ORDINANCES: ORDINANCE NO. 04-01, SERIES OF 2004, AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO A copy of said Ordinances are attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty McKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON FEBRUARY 13, 2004 ✓ AVON MUNICIPAL BUILDING, MAIN LOBBY ✓ ALPINE BANK, MAIN LOBBY ✓ AVON RECREATION CENTER, MAIN LOBBY ✓ CITY MARKET, MAIN LOBBY TOWN OF AVON ORDINANCE NO. 04-01 SERIES OF 2004 AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, the Owner, IDG3 LLC, has applied for. approval of a Planned Unit Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 6, 2004, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Development Plan; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of the Town of Avon; and WHEREAS, after notices provided by law, this Council held a public hearing on the V day of , 2004, at which time the public was given an opportunity to express their opinions r ding the proposed PUD Development Plan; and CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc l 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. The hearings before the Planning & Zoning Commission and the Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. That the Lot 61 PUD Development Plan is consistent with the recently adopted Town Center Plan, the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the following conditions: 1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town, as required by Section 17.14. 100 of the Avon Municipal Code, prior to issuance of a building permit to amend the Town's Augmentation Plan. 2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is required to complete subsequent design review approval, which consists of compliance with the Town Center Design Guidelines and the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. 3. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this a day of , 2004, and a public hearing shall be held at the regular meeting of the Town Council o e Town of Avon, Colorado, on the 1(3'- day of, 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council CADocuments and Settings\pmckenny\Local Settingffemporary Intemet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc Mayor ATTEST: nc- I Town erk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the 10tt day of `R , 2004. Town of Avon Colorado y r, ATTEST:"` V\~i~` .y Ali. .fir )C. To C rk Town Council n Mayor APPROVED AS TO FORM: i , To Attorney C:\Documents and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc STATE OF COLORADO ® COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 10T" DAY OF FEBRUARY, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCE: Ordinance No. 04-01, Series Of 2004, An Ordinance Approving The Lot 61 Planned Unit Development (Pud) For Lot 61, Block 2, Benchmark At Beaver Creek Subdivision, Town Of Avon, Eagle County, Colorado. A copy of said Ordinance is attached hereto, and is also on file.at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Px~jd Patty McK n y - Town Clerk, POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON January 30, 2004 ✓ AVON MUNICIPAL BUILDING, MAIN LOBBY ✓ ALPINE BANK, MAIN LOBBY ✓ AVON RECREATION CENTER, MAIN LOBBY ✓ CITY MARKET, MAIN LOBBY 0 1 TOWN OF AVON ORDINANCE NO. 04-01 SERIES OF 2004 AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 61,-Block 2, Benchmark at Beaver Creek Subdivision ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 6, 2004, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Development Plan; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendations on the Lot 61 PUD Development Plan 'to the Town Council of the Town of Avon; and WHEREAS, after notices provided by law, this Council held a public hearing on the 10A day of , 2004, at which time the public was given an opportunity to express their opinions r ding the proposed PUD Development Plan; and • C:\Documents and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc ^ 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. The hearings before the Planning & Zoning Commission and the Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. That the Lot 61 PUD Development Plan is consistent with the recently adopted Town Center Plan, the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the following conditions: 1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town, as required by Section 1.7.14.100 of the ® Avon Municipal Code, prior to issuance of a building permit to amend the Town's Augmentation Plan. 2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is required to complete subsequent design review approval, which consists of compliance with the Town Center Design Guidelines and the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. 3. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application.and in public hearing(s) shall be adhered to and considered binding conditions of approval. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this a day of , 2004, and a public hearing shall be held at the regular meeting of the Town Council o Town of Avon, Colorado, on the 1(3'- day of, 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council n U CADocuments and Settings\pmckennyU ocal SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc ATTEST: 3 n, Town erk L Z)"j, Mayor ;11< INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the day of , 2004. Town of Avon, Colorado Town Council Mayor ATTEST: • Town Clerk APPROVED AS TO FORM: Town Attorney CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc • Exhibit "A" To Lot 61 PUD Development Agreement Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in Book 274 at Page 701 as Reception No. 171107; County of Eagle, State of Colorado. 4) • 13 • 17-~ ,,A • Ordinance 04-01 Exhibit "A" DEVELOPMENT AGREEMENT FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of January , 2004 by and between IDG3, LLC, a Limited Liability Company, its successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town"). RECITALS: A. Owner is a limited liability company, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property generally referred to as "Lot 61" as more particularly described in Exhibit A attached to this agreement ("Lot 61"). C. The Town and the Owner desire to develop Lot 61 as a mixed-use development consistent with the Avon Town Center Implementation Plan thereby creating new property lines for Lot 61, development standards, rights- of-way and a transit center. This new parcel is referred to as the "Property". D. The Property contains specific development standards attached and incorporated herein as a site-specific development plan entitled "Lot 61 PUD Development Plan" (Exhibit "B") and as set forth in Article III of this Agreement. E. The Town has authority to zone and govern development of the Property in accordance w ith t his A greement, t he A von C omprehensive P Ian, T he A von Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61 PUD (as defined herein), and other applicable Town requirements and polices. F. In order to ensure orderly controlled development by establishing minimum design standards, including streets and other forms of vehicular and pedestrian access, drainage, water supply and sanitation improvements to support human occupation, it is necessary to require subdivision consistent with Title 16, Avon Municipal Code. G. The Property includes specific design requirements as set forth by the Town Center Implementation P lan, w hich i s f urther d efined and s upported b y t he ® Town of Avon Residential Commercial and Industrial Design Review Guidelines. 1 1A H. The legislature of the State of Colorado adopted Sections 24-68-101, et se q. 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 see tors 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. 1. Consistent with the Vested Property Rights Statute, Chapter 17.14 of the Municipal C ode a uthorizes t he T own t o e nter i nto d evelopment a greements with landowners and other qualified applicants providing for the vesting of property development rights. - J. Development of the Property in accordance with this Agreement will provide for o.rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he Comprehensive Plan, the Avon Town Center Implementation 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 that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS 1.0 Definitions. The following terms and references shall have the meaning set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town on November S, 1996, or any subsequent duly adopted plans or amendments thereto. 2 ~U 1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD Development Plan" incorporated herein and further defined in Sections 3.2 of this Agreement. 1.3 Effective Date. The effective date of the Town Council Ordinance approving this Agreement and the recording of the relevant subdivisions referenced herein with the.Clerk and Recorder of Eagle County, Colorado. 1.4 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of Lot 61 Exhibit B Lot 61 PUD Development Plan, including Benchmark Court Right of Way and Transportation Hub location 1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Ch. 3.28, Avon Municipal Code-or any similar code provision enacted during the Term o f this Agreement upon any s ales o r rental o f lodging within the Property. 1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code. 1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61 PUD Development Plan as set forth in Exhibit "B". 1.9 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.10 Sanitation District. Eagle River Water and Sanitation District. 1.11 Subdivision. Means to make a disposition of land or airspace which is defined as a subdivision, subdivided land, condominium subdivision, estate in. airspace, specially planned area and/or planned unit development subdivision, minor subdivision, duplex subdivision or time-sharing subdivision consistent with Title 16, Avon Municipal Code. 1.12 Time-share owner. Means a person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 0 3 1.13 Time-share unit. Means a unit the title to which is or is to be divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 1.14 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.15 Town Council. The Town Council of the Town. 1.16 Lot 61. The real property described in Exhibit A attached hereto. 1.17 Vested Property Rights Statute. As defined in Recital H. 1.18 Zoning. The passing of land use ordinances and regulations authorized by the Statutes of the State of Colorado and by Article XX of the Colorado Constitution, and more specifically through the Avon Municipal Code, Title 17, intended to ensure that zoning promotes stated benefits to the citizens of the Town. 1.19 Zoning Application. The zoning application for the parcel comprising the Property submitted to the Town on , 2004. 1.20 Avon Town Center Implementation Plan. The plan adopted bythe Town on November 6, 2001 regarding development in the area commonly known as the Town Center. ARTICLE II COVENANTS; THIS AGREEMENT 2.1 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 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 5th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, provided, however that such termination shall not effect (a) any rights-of-way and uses of property granted to the Town related to the transportation center, or (b) any right arising from Town permits, approvals or other. entitlements for the Property which were granted or approved prior to the 5th anniversary of the Effective Date. 2.2 Amendment of Agreement. . Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice, public hearing and revised ordinance 4 ki ® procedures required for approval of this Agreement stated in Section 17.20.110 (Planned Unit Development) et al of the Avon Municipal Code. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement and in the respective Development Standards. Complete zoning and site plans are attached in Exhibit B, the Lot 61 PUD Development Plan. 3.2 Development Standards. The "Development Standards" set forth the zoning for the Property, and indicate, among other things, setback distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Property and are specifically set forth in Exhibit "B". K. Subsequent Final Plan Approval. Pursuant to this Agreement.the Property is now PUD Zoning pursuant to Section 3.4(a). This constitutes a Site-Specific Development Plan for the purposes of establishing vested rights. Owner and the Town shall, in a manner which is uniform of the Town and consistent with the provisions of Section 2.1 and Section 3.4 (d) further refine the design of the improvements and other details, all consistent with the Development Standards and this Agreement collectively, "Subsequent Final Design Review Plan Approval." The subsequent Final Design Review Plan Approval will consist of compliance with the Town Center Implementation Plan, Town of Avon Residential, Commercial, and Industrial Design Review Guidelines, and relevant portions of the Avon Municipal Code. (a) Development Approval. Simultaneously with the granting of PUD Zoning of the Property .pursuant to Section 3.4 (a), the Town hereby approves the Lot 61 PUD Development Plan (Exhibit "B".). • 5 kR 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards and the Lot 61 PUD Development Plan constitute an approved "site-specific development plan" as defined in the Vested Property Rights Statute and Section 17.14.100 of the Avon Municipal Code and subsequent compliance with Section 17.12.020 of the Avon Municipal Code which the Town acknowledges 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 with the Property in the manner and to the extent set forth in and pursuant to this Agreement, the Development Standards and the Lot 61 PUD Development Plan. (b) The right to develop, plan and engage in land uses with 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 o f 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 properly applied for and complete application approvals necessary for the development of the Property) with conditions and standards determined pursuant to Section 3.2(b) which conform to the regulations and guidelines imposed by the Town 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, delaying or otherwise materially adversely affecting any of Owner's rights set forth in this Agreement or the Development. Standards. (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, delaying or 6 ?.0 otherwise adversely affecting any of Owner's rights that do not apply to other properties in the Town, as set forth in this Agreement or the Development Standards. 3.5 Exactions. The following exactions are intended to provide adequate facilities, pedestrian and vehicular access, and other related improvements for the public benefit of the Town: (a) Right-of-Way Dedication. The newly created right-of-way referred to as "Benchmark Court" will be. dedicated to the Town by the approved Resubdivision Plat of Lot 61, Block 2, Benchmark at Beaver Creek ("Final Plat") in accordance with Title 16, Avon Municipal Code contemporaneously with the approval of this Agreement and the Lot 61 PUD Development Plan. . (b) Drainage. On site drainage facilities for the Property shall be provided by Owner to handle drainage resulting from the development of the Property. (b) Building Setbacks and Encroachments It is the intention of the Town to provide for necessary at grade and above grade setbacks to allow for the building and/or structure to encroach as depicted on plans shown in Exhibit B. These provisions for allowing the building and/or structure elements over, and on the Town property will be set forth in the Resubdivision of Tract G and Re-subdivided Lot 61, Block 2, Benchmark at Beaver Creek ("Resubdivision") and must be approved contemporaneously with this Agreement. The Resubdivision contains specific plat restrictions, which require as-built drawings upon the construction of 'the Property or the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. (c) Transportation Hub. The Final Plat shall also include an easement for a Transportation Hub, including necessary at grade and above grade setbacks as depicted on Exhibit B. In the event the Town elects to proceed with construction of the Transportation Hub prior to the commencement of construction of the Lot 61 PUD Development Plan, then written notice must be provided to the Owner prior to 180 days of commencement of construction. The Town agrees to provide mechanical ventilation consistent with the current building code at the time of building permit application for the Transportation Hub as part of the construction of the Lot 61 PUD 7 21... Development Plan. Positive chase and ductwork for the Transportation Hub will be provided by the Owner. 0 (d) Transit Administrative Office: A minimum of 400 square feet of floor area on the ground level adjacent to the Town Transportation Hub for typical administrative purposes including rough-in plumbing for public restroom facilities associated with transportation must be dedicated upon construction of the Transportation Hub by the Town and/or with design review approval. for Lot 61. (e) Water Rights: The developer will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if necessary to amend the Town's Augmentation Plan based upon the specific proposal applied for. (g) Timeshare Amenities Fee: Commencing as of the effective date of this Agreement, and continuing in perpetuity, the timeshare ownership association formed to manage the timeshare ownership project located on Lot 61 is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee. The Owner is exempt from the obligation for the timeshare amenities fee until the first-time sale of a timeshare interval. The provisions for the obligation. for each timeshare owner to pay shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and association covenants. Prior to the formation of any timeshare ownership association, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fee. The number of units shall be calculated 'at the time of time-share subdivision. The fee shall be paid to the Town semi-annually and will be based upon the following schedule: Number of Units Constructed Per Timeshare Week* 125 - 149 Timeshare Units $ 58.35 150 - 174 Timeshare Units $ 48.52 175 - over Timeshare Units $ 41.51 * Timeshare Week is defined as seven (7) consecutive days constituting a maximum of fifty-two (52) intervals per calendar year. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded timeshare interests p er semiannual period (January- June, calculated as of June 1, 'and July-December calculated as of December 1), multiplied by the appropriate fee based .8 2~ upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as defined below), divided by 2. The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2005, and on the first day of each year thereafter, the amount of the fee shall be increased by the prior years average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-U"). It shall be the duty of the timeshare association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. Prior to the formation of the timeshare association, the Owner shall have the above-referenced obligation to keep and preserve such records. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written determination of the ® amount due and deliver or mail the same to the office of the condominium timeshare association. The amount properly determined to be owing shall be from the due date of the remittance at the rate of one and one-half percent per month until paid. Prior to formation of the timeshare association such written determination will be delivered to the Owner. 3.6 Timing on Development. In the event the Owner obtains a building permit and complies with all other relevant rules and regulations governing development on the Property consistent with the Lot 61 PUD Development Plan, then the Owner must provide written notice 180-days prior to commencement of construction to the Town of the development schedule. There is no phasing proposed or contemplated for the development of this Property. The Owner and the Town agree to cooperate in construction staging and development to allow for orderly and safe construction of the Property. 3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property and shall have no liability to the Town for its failure to develop the Property. The Town shall have no obligation to permit the Owner to construct under the dedicated road right-of-way or transportation center after 5 years from the Effective Date of the Agreement, and shall have no liability to the Owner or any other party for its failure to develop all or any part of the Property. In the event an amended 9 20 Resubdivision for Tract G and Lot 61 based upon as-built drawings is not recorded, • then the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. 3.7 Compliance with General Regul~ ation. . Except as otherwise provided in this Agreement or the Development Standards, the establishment of vested property rights under this Agreement shall not preclude the application, on a uniform and non-discriminatory basis; of Town regulations of general applicability (including, but not limited to design review, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or the application of s tate o r f ederal regulations, a s a 11 o f s uch r egulations e xist o n t he d ate o f t his Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulation shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, delaying or otherwise adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. Owner does not waive its rights to oppose the enactment or amendment of any such regulations inconsistent with other properties in Town. ARTICLE IV DEFAULTS; REMEDIES, AND TERMINATION 4.0 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, 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. 4.1 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. 4.2 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 5.7, 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. 10 2 4.3 Remedies. (a) If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party's obligation hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by stature. (b) In the event of default by the Owner, notwithstanding other available remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny land use approvals, including but not limited to design review and building permits for the Property. (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond. those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or ® default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to: (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. ARTICLE V MISCELLANEOUS 5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Avon Municipal Code.. 5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. 5.2 Expenses. Except as 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. 11 2h • 5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 5.4 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 PUD, Development Standards, and vesting agreements contained herein are consistent with the Avon Comprehensive Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther applicable r egulations and policies of the Town. 5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 5.6 Further Assurances. Each party shall execute and deliver to the other all such other further instructions and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete . enjoyment of its rights and privileges under this Agreement. 5.7 Notices. Any notice or communication required under this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (1) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days a registered or certified letter containing such notice, properly addressed, with postage prepaid,. is deposited in the United States mail, if personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to that parties at their addresses set forth below: If to Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 If to Owner: IDG 3 LLC c/o C. Philip Smiley 12 2U P.O. Box 5000 Avon, CO 81620 5.8 Assignments. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Except as specifically set forth herein, Owner shall have the right to assign, delegate or transfer all or any portion of it 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 lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval of the assignee or transferee is first obtained, an assumption or transfers providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall be relieved of any further obligations under this Agreement with respect to the matter so 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. 5.10 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. 5.11 Amendments and Waivers. No amendment or waiver of any provision of this Agreement, nor consent to any departure here from, shall in any event be elective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 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 BY: Mayor ® ATTEST 13 • Town Clerk STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this day of , 2004, by as Mayor of Town of Avon, a municipal corporation of the State of Colorado. My Commission Expires: Notary Public STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this day of , 2004, by as Town Clerk of Avon, a municipal corporation of the State of Colorado. My. Commission Expires: _ Notary Public OWNER: By: ATTEST • 14 -A • STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this My Commission Expires: O STATE OF COLORADO ® COUNTY OF EALGE TOWN OF AVON SS day of as 2004, by Notary Public 15 z~ • NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT ON THE DAY OF , AT THE MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. F:\CounciMgreements\L61 B2 BMBC DevAgrmntv.2.doc r-~ 16 L L O EW_ l7N ^ I+ y 6 V ° Q i W^~ Co y S Z O Ox T 0 -Y u> o~ Zk x N $s d o Cd co Cd Q~D cammQQ to- o x ~ > -wG E r4= a rW~ P~ 1PT~ A • Ca N N N N,~~ t~ Q 1- ~ ~ ~ ~C ~ $ ~ ~sg ~ ~ ~ a a Z tills 9i ~9 a a° t r s L' $ e~$ 9 a 8b H N 8 b' '6 E 9 JI o I w N i 5 <s 1 m gts5~ ~'i('t W Q . V N J 4.6 d N--. 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O N > N Q nQ li- O • TOWN OF AVON ORDINANCE NO. 04-01 SERIES OF 2004 AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit Development ("PUD") Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 6, 2004, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Development Plan; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of the Town of Avon; and WHEREAS, after notices provided by law, this Council held a public hearing on the 11A day of , 2004, at which time the public was given an opportunity to express their opinions r ding the proposed PUD Development Plan; and CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc 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. The hearings before the Planning & Zoning Commission and the Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. That the Lot 61 PUD Development Plan is consistent with the recently adopted Town Center Plan, the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the following conditions: 1. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town, as required by Section 17.14. 100 of the Avon Municipal Code, prior to issuance of a building permit to amend the Town's Augmentation Plan. 2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is required to complete subsequent design review approval, which consists of compliance with the Town Center Design Guidelines and the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. 3. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this a`~ day of , 2004, and a public hearing shall be held at the regular meeting of the Town Council o Town of Avon, Colorado, on the I(Sk day of, 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council CADocuments and Settings\pmckenny\Local SettingsUemporary Internet Files\OLKB\Ord 04-01 L61 132 BMBC PUD.doc L ~ik Mayor ATTEST: 3 n,~ Town erk OF F INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the 10t day of 2 , 2004. Town of Avon, Colorado Town Council 1VQ~H OF q~,® ,3rti ATTEST: 6 n nw . To C rk Mayor APPROVED AS TO FORM: -Z llA'_ To 4n Attorney CADocuments and Settings\pmckenny\Local Settings\Temporary Internet Files\OLKB\Ord 04-01 L61 B2 BMBC PUD.doc Exhibit. "A" to Ordinance.04-01 DEVELOPMENT AGREEMENT FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION THIS DEVELLOOPMMEENT AGREEMENT (this "Agreement") is made and entered into as of February , 2004 by and between IDG3, LLC, a Limited Liability Company, its successors and/or assigns (hereinafter "Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town"). RECITALS: A. Owner is a limited liability company, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property generally referred to as "Lot 61" as more particularly, described in Exhibit A attached to this agreement ("Lot 61" C. The. Town and the Owner desire to develop Lot 61 as a mixed-use development consistent with the Avon Town Center Implementation Plan thereby creating new property lines for Lot 61, development standards, rights- of-way and a transportation center. This new parcel is referred to as the "Property" D. The Property contains specific development standards attached and incorporated herein as a site-specific development plan entitled "Lot 61 PUD Development Plan" (Exhibit "B") and as set forth in Article III of this Agreement. E. The Town has authority to zone and govern development of the Property in accordance with this Agreement, the Avon Comprehensive Plan, The Avon Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61 PUD (as defined herein), and other applicable Town requirements and polices. F. In order to ensure orderly controlled development by establishing minimum design standards, including streets and other forms of vehicular and pedestrian access, drainage, water supply and sanitation improvements to support human occupation, it is necessary to require subdivision consistent with Title 16, Avon Municipal Code. G. The Property includes specific design requirements as set forth by the Town Center Implementation Plan, which is further defined and supported by the Town of Avon Residential, Commercial and Industrial Design Review 1 Guidelines. Specifically, the project will comply to the following general design intentions: ■ Building facades will be stepped to avoid long straight walls. All sides of the building must receive equal architectural treatment. ■ The building will be designed as a composition of architectural elements rather than larger single blocks that appear unrelated in form and context. ■ The street-level architecture will activate and enhance pedestrian activity on Main Street (the mall level), encouraging a lively center of retail activity year round. Additionally, the project will comply with the following site-specific guidelines:. Articulation of building facades: Building facades shall be articulated with variations in materials and punctuated with intermediate roof forms and building projections. Varying expressions of decks, windows and surface treatments shall be combined to create a rich texture that will enhance the interest of the facades. The three primary components of the building's base, body and top shall be clearly and deliberately expressed. The building's base shall express mass and support with the use of such materials as stone and architectural concrete. The "body" of the building shall begin to erode materials that express mass to lighter materials and more openings and surface variations such as decks and changes in wall plane. Roofs shall be proportional to the height and scale of the various building elevations. The east end of the primary roof(s) and upper portion of the walls shall be articulated so as to minimize their visual impact to surrounding properties which may include the use of decks and the lowering of roof lines. Roofs at north property line: In addition to the suggested wall treatments noted above, these roofs shall be adequately varied to avoid uninterrupted flat roofs. Approximately 50% of the elevation above 28' above grade shall be articulated through the introduction of discontinuous roof forms such as gables perpendicular to the wall plane and variations in roof edges, relative to the setback line. H. The legislature of the State of Colorado adopted Sections 24-68-101, et se . 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 2 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. J. Development of the Property in accordance with this Agreement will provide for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he Comprehensive Plan, the Avon Town Center Implementation 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 that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS 1.0 Definitions. The following terms and references shall have the meaning set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the, Planning and Zoning Commission of the Town on November 5, 1996, or any subsequent duly adopted plans or amendments thereto. 1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD Development Plan" incorporated herein and further defined in Sections 3.2 of this Agreement. 3 1.3 Effective Date. The effective date of the Town Council Ordinance approving this Agreement and the recording of the relevant subdivisions referenced herein with the Clerk and Recorder of Eagle County, Colorado. 1.4 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description.of Lot 61 Exhibit B Lot 61 PUD Development Plan, including Benchmark , Court Right of Way and Transportation Center location 1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Ch. 3.28, Avon Municipal Code or any similar code provision enacted during the T erm o f t his A greement a pon a ny s ales o r rental o f t odging w ithin t he Property. 1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code. 1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61 PUD Development Plan as set forth in Exhibit "B". 1.9 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.10 Sanitation District. Eagle River Water and Sanitation District. 1.11 Subdivision. Means to make a disposition of land or airspace which is defined as a subdivision, subdivided land, condominium subdivision, estate in airspace, specially planned area and/or planned unit development subdivision, minor subdivision, duplex subdivision or time-sharing subdivision consistent with Title 16, Avon Municipal Code. 1.12 Time-share owner. Means a person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 1.13 Time-share unit. Means a unit the title to which is or is to be divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 4 1.14 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.15 Town Council. The Town Council of the Town. 1.16 Lot 61. The real property described in Exhibit A attached hereto.. 1.17 Vested Property Rights Statute. As defined in Recital H. 1.18 Zoning. The passing of land use ordinances and regulations authorized by the Statutes of the State of Colorado and by Article XX of the Colorado Constitution, and more specifically through the Avon Municipal Code, Title 17; intended to ensure that zoning promotes stated benefits to the citizens of the Town. . 1.19 Zoning Application. The zoning application for the parcel comprising the Property submitted to the Town on JbKr-.. 2- 3-.,, 2004. 1.20 Avon Town Center Implementation Plan. The plan adopted by the Town on November 6, 2001 regarding development in the area commonly known as the Town Center. ARTICLE II COVENANTS; THIS AGREEMENT 2.1 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 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 5th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, provided, however that such termination shall not effect (a) any rights-of-way and uses of property granted to the Town related to the transportation center, or (b) any right arising from Town permits, approvals or other entitlements for the Property which were granted or approved prior to the 5th anniversary of the Effective Date. 2.2 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice, public hearing and revised ordinance procedures required for approval of this Agreement stated in Section 17.20.110 (Planned Unit Development) et al of the Avon Municipal Code. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined 5 herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity 'of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement and in the respective Development Standards. Complete zoning and site plans are attached in Exhibit B, the Lot 61 PUD Development Plan. 3.2 Development Standards. The "Development Standards" set forth the zoning for the Property, and indicate, among other things, setback distances, building height limitations, site coverage levels, . development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements and other guidelines and limitations for the development of the Property and are specifically set forth in Exhibit "B". (a) Subsequent Final Plan Approval. Pursuant to this Agreement the Property is now PUD Zoning pursuant to Section, 3.4(a). This constitutes a Site-Specific Development Plan for the purposes of establishing vested rights. Owner and the Town shall, in a manner which is uniform of the Town and consistent with the provisions of Section 2.1 and Section 3.4 (d) further refine the design of the improvements and other details, all consistent with the Development Standards and this Agreement collectively, "Subsequent Final Design Review Plan Approval." The subsequent Final Design Review Plan Approval will consist of compliance with the Town Center Implementation Plan, Town of Avon Residential, Commercial, and Industrial Design Review Guidelines, and relevant portions of the Avon Municipal Code. (b) Development Approval. Simultaneously with the granting of PUD Zoning of the Property pursuant to Section 3.4 (a), the. Town hereby approves the Lot 61 PUD Development Plan (Exhibit `B"). 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards and the Lot 61 PUD Development Plan constitute an approved "site-specific development plan" as defined in the Vested Property Rights 6 Statute and Section 17.14.100 of the Avon Municipal Code and subsequent compliance with Section 17.12.020 of the Avon Municipal Code which the Town acknowledges 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 with the Property in the manner and to the extent set forth in and pursuant to this Agreement, the Development Standards and the Lot 61 PUD Development Plan. (b) The right to develop, plan and engage in land uses with 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 in arket c onditions d ictate, s ubj ect t o t he t erms a nd c onditions o f t his 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 properly applied for and complete application approvals necessary for the development of the Property) with conditions and standards determined pursuant to Section 3.2(b) which conform to the regulations and guidelines imposed by the Town 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, delaying or otherwise materially adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. (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, delaying or otherwise adversely affecting any of Owner's rights that do not apply to other properties in the Town, as set forth in this Agreement or the Development Standards. 7 3.5 Exactions. The following exactions are intended to provide adequate facilities, pedestrian and vehicular access, and other related improvements for the public benefit of the Town: (a) Right-of-Way Dedication. The newly created right-of-way referred to as "Benchmark Court" will be dedicated to the Town by the approved Final Plat, A Replat of Lot 61, Block 2; Benchmark at Beaver Creels ("Final Plat") in accordance with Title 16, Avon Municipal Code contemporaneously with the approval of this Agreement and the Lot 61 PUD Development Plan. (b) Drainage. On site drainage facilities for the Property shall be provided by Owner to handle drainage resulting from the development of the Property. (c) Building Setbacks and Encroachments. It is the intention of the Town to provide for necessary at grade and above grade setbacks to allow for the building and/or structure to encroach as depicted on plans shown in Exhibit B. These provisions for allowing the building and/or structure elements over and on the Town property will be set forth in the Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Resubdivision") and. must be approved contemporaneously with this Agreement. The Resubdivision contains specific plat restrictions, which require as-built drawings upon the construction of the Property or the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. (d) Transportation Center. The Final Plat shall also include an easement for a Transportation Center, including necessary at grade and above grade setbacks as depicted on Exhibit B. In the event the Town elects to proceed with construction of the Transportation Center prior to the commencement of construction of the Lot 61 PUD Development Plan, then written notice must be provided to the Owner prior to 180 days of commencement of construction. The Town agrees to provide mechanical ventilation consistent with the current building code at the time. of building permit application for the Transportation. Center as part of the construction of the Lot 61 PUD Development Plan. Positive chase and ductwork for the Transportation Center will be provided by the Owner. 8 Noise generated by public transportation vehicles at the proposed Transportation Center shall be reduced to the maximum extent reasonably possible and in no case shall it raise the ambient sound level above the No Impact for Category 1 or 2 Sites as shown in the following Table 3-1 from Transit Noise and Vibration ImRact Assessment, Final Report April 1995, prepared by Harris Miller Miller & Hanson, Inc. for the Office of Planning, Federal Transit Administration, U. S. Department of Transportation. The existing level of ambient noise, project noise and allowable noise levels shall be established in accordance with applicable procedures, methods and criteria conforming to the above referenced Impact Assessment, Final Report. The owner of Lot 61 will assume responsibility for the isolation of vibration transmission to the structure, supporting the residential and commercial occupancies, from the Transportation Center. The owner of Lot 61 will assume responsibility for the attenuation of sound transmission, from the-Transportation Center to the residential and commercial occupancies such as the introduction of acoustic blankets, resilient suspension devices and the like associated with the base building construction. The Town of Avon will assume the responsibility of constructing the specific Transportation Center shelter and transit administrative office. They will be designed with sufficient mass and structural isolation to provide whatever measures needed to attain the acoustic criteria. 9 3-4 Transit Noise and Vibration Impact, Assessment Table 3-1 Noise Levels Defining Impact for. Transit Projects Existing Project'Nuise dmpact Expos ure,- [,rq(h)>.or Lq,m (dBA) Noise Exposure` i Category 1 or 2 Sites Category 3 Sites L,(h) or L,,,, i j Severe (dBA) No Impact Impact Se vere Impact No Impact Impact f Impact <43 <Pmbient 4 Ambient + Q :>Amtiiant+l5. <ArnbierJt+75 Ambient + { `Arzbient+20 110-to 15 15 to 20 43 <52 52-58 >58 i -57 .57-63 , 163 44 1 <52 52-58, >58 <57 57-63 >63 45 <52 52-58 $ >58 <57 57-63 >63, 46 <53 I 53-59 ' >59 <58, 58-64 >64 47 , <53 53.-5.9 >59 <58 >8-64 >64 48 ( <53 53-59 >59 <58' 58-64, >64 49 I 154 54.59 >59 <59 59-64 >64 50 <54 54-59 >59 <59 59-64 >G4 51 <54 j 5460 >60 ( <59 1 59-65 =s65 52 <55. I 55-60 ! >60' 160 1 60-65 >65 53 I <55 55-60 >60 X60 60-65 >65 54 <55 55-61 >61 <60 60-66 >66 55 1 <56; 56-6'1 >61 <61 I 61-66 56 I <.56 56-62 >62 <61 i 61-67 >67 ,57 <57 57-62 >62 T=62 62-67 I >67 SR <57 57-62' I >62 <62 62-67 >67 59 <58 58-63' >63 <63' f 63-68 :>68 60 <58 58-63. >63 <63 63-68 :>68 61. <59 I 59-64 >64 <64 64-69 >6~) 62 <59 59-64 >64 <64 i, 64-69 >69 63 <60 60-65 } >65 <65 05.70 =>70 64 I , <61 j 611-65 >65 <66 i 6fi-70 >70 65 1 <61 61=(i6 >66 <66 ' 66-71 >71 66 <62 62-67 :>67 { <67 67-92 >772 67 <,63 63-67 >67 ! ='.68 68-72 ~ >72 68 <63 63-63 j >68 «8 68-73 >73 69' <64 64-69 >69, <69 69-74 >74 70 <65 65-69 >69' <70' 70-74 i >74: 71 <6G 66-70 >70 <77 71-75 I >75' 72 <66. 66-71 >7'1 ) <71 71-76 >76 73 <66 66-71 >71 <71 71=76 j >'7+6 74 <66 66-72 >72 <:7'1 ' 71-77 ' >T7 75 ='66 I 66-73 >73 <71. 71-78 I >78 76 ( <66 66-74 >74 <71 71-79 I >79 77 1 <66 66-74 >74 j <71 71-79 >719 >77 ~ <66 ! 66-75 ! >75 I <71 ~ 7I-80 ~ >St7 L~ is used, for land use where nighttime sensitiyitg is i factor; I. ,duri ng'the haucpF' nximum transi t noise expOsUT is used for land -use involving only daytime activities. (e) Transit Administrative Office: A minimum of 400 square feet of floor area on the ground level adjacent to the Town Transportation Center for typical administrative purposes including rough-in plumbing for public restroom facilities associated with transportation must be dedicated upon construction of the Transportation Center by the Town and/or with design review approval for Lot 61. (f) Water Rights: The developer will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if necessary to amend the Town's Augmentation Plan based upon the specific proposal applied for. 10 (g) Timeshare Amenities Fee: Commencing as of the effective date of this Agreement, and continuing in perpetuity, the timeshare ownership association formed to manage the timeshare ownership project located on Lot 61 is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee. The Owner is exempt from the obligation for the timeshare amenities fee until the first-time sale of a timeshare interval. The provisions for the obligation for each timeshare owner to pay shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and association covenants. Prior to the formation of any timeshare ownership association, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fee. The number of units shall be calculated at the time of time-share subdivision. The fee shall be paid to the Town semi-annually and will be based upon the following schedule: Number of Units Constructed 125 - 149 Timeshare Units 150 - 174 Timeshare Units 175 - over Timeshare Units Per Timeshare Week* $ 58.35 $ 48.52 $ 41.51 * Timeshare Week is defined as seven (7) consecutive days constituting a maximum of fifty-two (52) intervals per calendar year. The amount of the semi-annual payments will be calculated according to the following formula: Number o f e xisting o r n ewly d ceded t imeshare i nterests p er s emiannual period (January- June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the appropriate fee based upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as defined below), divided by 2. The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2005, and on the first day of each year thereafter, the amount of the fee shall be increased by the prior years average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-U"). It shall be the duty of the timeshare association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. 11 J Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. Prior to the formation of the timeshare association, the Owner shall have the above-referenced obligation to keep and preserve such records. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written determination of the amount due and deliver or mail the same to the office of the condominium timeshare association. The amount properly determined to be owing shall be from the due date of the remittance at the rate of one and one-half percent per month until paid. Prior to formation of the timeshare association such written determination will be delivered to the Owner. 3.6 Timing on Development. In the event the Owner obtains a building permit and complies with all other relevant rules and regulations governing development on the Property consistent with the Lot 61 PUD Development Plan, then the Owner must provide written notice 180-days prior to commencement of construction to the Town of the development schedule. There is no phasing proposed or contemplated for the development of this Property. The Owner and the Town agree to cooperate in construction staging and development to allow for orderly and safe construction of the Property. 3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property and shall have no liability to the Town for its failure to develop the Property. The Town shall have no obligation to permit the Owner to constrict under the dedicated road right-of-way or transportation center after 5 years from the Effective Date of the Agreement, and shall have no liability to the Owner or any other party for its failure to develop all or any part of the Property. In the event an amended Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek based upon as-built drawings is not recorded, then the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. 3.8 Compliance with General Regulation. Except as otherwise provided in this Agreement or the Development Standards, the establishment of vested property rights under this Agreement shall not preclude the application, on a uniform and non-discriminatory basis, of Town regulations of general applicability (including, but not limited to design review, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulation shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, delaying or otherwise adversely affecting any of Owner's rights set forth in this 12 Agreement or the Development Standards. Owner does not waive its rights to oppose the enactment or amendment of any such regulations inconsistent with other properties in Town. ARTICLE IV DEFAULTS, REMEDIES, AND TERMINATION 4.0 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, 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. 4.1 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. 4.2 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 5.7, 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. 4.3 Remedies. (a) If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party's obligation hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by stature. (b) In the event of default by the Owner, notwithstanding other available remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny 13 land use approvals, including but not limited to design review and building permits for the Property. (c) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to: (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. ARTICLE V MISCELLANEOUS 5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Avon Municipal Code.. 5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this, Agreement shall be. constructed as making Town and Owner joint venturers or partners. 5.2 Expenses. Except as 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. 5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 5.4 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 PUD, Development Standards, and vesting agreements contained herein are consistent with the Avon Comprehensive Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations and policies of the Town. 5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s held by a court of competent jurisdiction to be invalid, void or unenforceable, the 14 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. 5.6 Further Assurances. Each party shall execute and deliver to the other all such other further instructions and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges under this Agreement. 5.7 Notices. Any notice or communication required under this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (1) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, if personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written 'notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to that parties at their addresses set forth below: If to Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 If to Owner: IDG 3 LLC c/o C. Philip Smiley P.O. Box 5000 Avon, CO 81620 5.8 Assignments. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Except as specifically set forth herein, Owner shall have the right to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval of the assignee or transferee is first obtained, an assumption or transfers providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall be relieved of any further obligations under this Agreement with respect to the matter so assumed. The Town's obligations 15 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. 5.10 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. 5.11 Amendments and Waivers. No amendment or waiver of any provision of this Agreement, nor consent to any departure here from, shall in any event be elective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. TOWN: OF OZ, SEAL TOWN OF AVON, a municipal corporation of the State of Colorado BY. Mayor ATTEST t0 P Tow Clerk STATE OF COLORADO ) )ss. COUNTY OF `tom L.rL ) Subscribed before me this day of 0.L ~ T fl . CL as municipal corporation o the State of Colorado. My Commission Expires: '-I 18 a L. 2004, by ✓1 von, a 6T A OF COLO 16 My Commission Expires 0410612006 Notary ubl STATE OF COLORADO ) )ss. COUNTY OF Subscribed before me this day of I-e-4,3 , 2004, by Pa f ec e_ r"o, as Town Clerk o Avon, a municipal corporation o the State of Colorado. My Commission Expires: WONAMM ATTEST STATE OF COLORADO ) )ss. COUNTY OF~'Q.j ) Notary Public Subscribed before rrle this day of i7e-- in r Lkck , 2004, by m \C ~,-Q f(~ as M M0b Cr C 0---) LL~ My Commission Expires: t "1. 0 0 LAG. O ~~F COQ-APP My CoMMMM Expires 1212004 17 Exhibit "A" To Lot 61 PUD Development Agreement Lot 61, Block 2, Benchmark.at Beaver Creek, according to the.Final - Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in Book 274.at Page 701 as Reception No. 1711.07, County of Eagle, State of Colorado. Aq, f OUI{i - L'¢II1. J N a. ~ ,'~C 3 0 Of t"►r'Y~' r ® iii 1} Sid t .t 4 O N' O O N x,l5. ~1 S 4 1 C . ~ ~ .xt ~q I{ F CCtl LrE L f I ® 1 _ t ' 111 YF~ ~Z OF'F' x4{ p',,1 \ ~r , 'y 0 CL) s f ' 13 .tn ( ) - _ ti. C ~ H < 00 ~ R P4 ' k&k6. _ l cd 0 C,3 W) gz 7d O O { t t ate.. O U ~ ~ Cm-ti:,~,-n `y i _ ;^s" .yY ~c .f. ~ '~'ssf j ' ~ rn O ' I .6 > i~s '1' E + fYl 't! O -P C Q) O E .D N z O _ y [1. N of y 3 cQ Cd E c 3 C a7 O En ^ Y ~ (4. r O F ~ a rA ` m a O b co p s ON ON E rn to E y a E (L y ! C ~ a ( O C_ N L ' j R Ci E ~ L) E 5S 3 b 00 cd C H -5-0 c 3 O H Y 21 7' w i IP t c E Y a~ • ~ -cs a~ -ss c cd on ~ U ~ N Y ov ZO co a~ ca C> wo ~Q w 06 O O 0 O O H a o o U 'l7 V O G1. cd o. b R C -10 Cd b dq ~ C, V 3 ;a o w •w O C4 E a M a~ Q W Y a) 'C Q~ H U A POWER OF ATTORNEY MAY AFFECT YOUR LEGAL RIGHTS, LEGAL ADVICE SHOULD BE OBTAmm IN. THE DRAPTING OF ANY POWER OF ATTORNEY PO'VYM OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS., THAT, t, C. PHILIP S1v11LEY, repestng special trust and confidenre in NvITCHAEL A. HAZARD, havo made, constituted and appointed, and by these presents do make, constitute and appoint the said MTC14ARL A, HAZARD, to be my true and lawful attorney in fact, to act for me and in my stead, and to refinance, hypothecate, and give a dood of trust affecting the following property: 'REPLAT OF LOT 61, BLOCK 2, BENCHMARK AT BRAVER CREEK, TOWN OF AVON COUNTY OF EAGLE STATE OF COLORADO My agent is hereby authorized to sign, seal and dolivtr, as my act and deed any contract, deed, deed of trust, promissory note, or other instrument in execution of any agreement for retimmoo,made by me or my agent in such manner that the estate and Interest In said land may be e5c tually and assured to the Public Trusree of the County in which the above describad prop" is situate, or to such other person or endLy as my agent may name or appoint; and T hereby declare that any and all of the contracts, deeds, rocotpts, notes, plats or matters, and things which shall be by my said agent given, made or done for the aforesaid purposes shall be as good, valid, and effectual as if they had boon signed, sealed and delivered by me in my own proper Person; and I hereby undertake at all times to ratify wha aver my said agent shall lawfully do or cause to be done in or concerning the premises by virtue of these presonla, % IN WITNESS WHEREOIF', T have hereunto set my hand and seal this - / day of~ 20 Of- -37-- - STATE OF-COLORADO COUNTY OF } Dawn R Anyson } Notary PubllGGc State of Colorado The fore gp-ng m9truumpt was acknowladged hofum me this. 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Plan and Development Agreement (PUBLIC HEARING) Summary: IDG3 LLC, the Owner of Lot 61, Block 2, Benchmark at Beaver Creek Subdivision has been working with staff over the last year on finalizing a new PUD Development Plan for Lot 61 as part of an extension of the original PUD development rights. This new PUD plan establishes a reconfigured development site, a dedication of right-of-way to the Town (Benchmark Court), provisions for a Transportation Hub and development standards specifying new densities and permitted uses. At your last meeting on January 27, 2004, the Lot 61 PUD application was approved on first reading. Accompanying this PUD application are two subdivision applications: one which approves the new surface lot configuration and Right-of-Way dedication, and the other which defines the below and above grade buildable areas. Council approved the original Lot 61 PUD in 1999 through Ordinance 99-16. In 2001, the Town adopted a sub-area plan entitled the Town Center Implementation Plan, which established specific goals of development for this critical part of Town as it relates to long-term public improvements. The new PUD Development Plan and accompanying development agreement set forth basic development objectives that Town staff and the applicant have concluded as mutually beneficial. The proposed development standards reflect a thorough analysis by the Town's financial consultant (Stan Bernstein and Associates), and set both minimums and maximums of development consistent with these financial projections. On January 6, 2004 the Planning & Zoning Commission recommended approval of the Lot 61 PUD Development Plan with conditions as set forth in Resolution 04-03. This process has been a groundbreaking endeavor between the Owner and the Town to create a development plan and agreement, which include both private and public benefits. The Owner is receiving a greatly enhanced development package and the Town is receiving an expanded transportation center location and improved road and circulation system. The PUD Development Plan is consistent with the goals of vitalizing Town Center, enhancing the Town transportation system and physically achieving a logical and desired connectivity to the Confluence site. Recommendation: Staff recommends approval of Ordinance 04-01 on second reading. This approval should only be in conjunction with approval of the two accompanying subdivision applications. Recommend Motion: " I move to approve Ordinance 04-01 on second reading, approving the Lot 61 PUD Development Plan and Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision". Town Manager Comments: J. Exhibits: A. Staff Report to Planning & Zoning Commission (January 6, 2004 hearing) B. Planning & Zoning Commission Resolution 04-03 C. Town Council Ordinance 04-01 approving the Lot 61 PUD Development Plan and Development Agreement. D. Letter from Mark Donaldson dated January 13, 2004 E. Letter from Johnson & Repucci LLP dated January 12, 2004 F. Letter from IDG 3 LLC dated January 22, 2004 G. Letter from Mark Davis dated January 29, 2004 (new) Lot 61 PUD, Lot 61, Block 2, BMBC Subdivision Second Reading of Ordinance 04-01, February 10, 2004 (PUBLIC HEARING) 2 Staff Report • PUD. wy~ A 'R 4 VO N r n i n n. n n January 6, 2004 Planning & Zoning Commission meeting Report date Project type Legal description Current zoning Address Introduction December 28, 2003 Lot 61 PUD Lot 61, Block 2, Benchmark at Beaver Creek Subdivision Planned Unit Development 75 Benchmark Road The purpose of the Lot 61 PUD Development Plan (herein referred to as "Lot 61 PUD") is to formalize the new building area, including development standards for Lot 61 and.the corresponding road alignments and transit center. The PUD for Lot 61 has been extended twice to allow time to evaluate development opportunities for implementation of the Town Center Plan between the Town and the developer. The current Lot 61 PUD is valid until February 3, 2004. On December 16, 2003 this application was tabled to allow additional time for staff and applicant to work through the development standards, development agreement and finalize the plans. There are a few remaining issues regarding the development standards and the revised application received on January 31, 2004. The most significant elements contained in the new development plan benefiting the Town are as follows: • 50'0" right-of-way dedication.for the new Benchmark Road alignment to the Town of Avon. • Transit center to accommodate five (5) buses at a time with a 300 sq.ft. administrative/visitor center. • Enhanced pedestrian and vehicular circulation. • Implementation of significant master plan concepts of the Town Center Plan. In exchange, Lot 61 is receiving the following: • Timeshare as a use-by-right. • Increased building height, setbacks, site coverage, and.density. The history of the zoning approval for Lot 61, Block 2, BMBC submitted by the developer, IDG3 LLC is as follows: 1978 Lot 61 zoned Town Center. 1991 Town Center zoning modified. • Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 - ...b ..v1111-bbivu meeting Page 2 of 8 1999 Lot 61 applied for PUD zoning as set forth in Ordinance 99-16 (July 27, 1999) which had a 3-year approval. 2002 Town Center Implementation Plan was adopted on January 8, 2001 (Resolution 02-01). , 2002 PUD extension for a 6-month time period was granted to explore planning and development of the Town Center Plan on July 23, 2002 (Ordinance 0247). 2003 In January, a PUD extension for one year was granted to allow the developer time to pursue implementation of the Town Center Plan on January 28, 2003 (Ordinance 03-01). 2003 In July, Council authorized funds be allocated to begin initial studies for the new property boundaries and road alignment. Over the past few months, staff has met with the developer and its representatives, including the Community Development Committee to.arrive at a development plan that includes the im plementation of the Town Center Plan in accordance with the existing PUD approval. The development plan -A=-th2t accomModatesliP-40 five (5) buses, preserving pedestrian connections with the Confluence, and a new 50'0" right of way for Benchmark Road. On December 9, 2003 Town Council reviewed the initial fiscal analysis of the Lot 61 development agreement prepared by Stan Bernstein, the Town's financial consultant. Of utmost importance was the implication of timeshare as a use-by-right, including the imposition of a recreational amenity fee to offset the impact of timeshare units. Council endorsed moving forward with the process, including the refinement of the financial model to reflect the contemplated land entitlements. PUD Design Criteria According to the Town of Avon Zoning Code, Section 17.20.110, the following shall be used as the principal criteria in evaluating a PUD. It shall be the burden of the applicant to demonstrate that submittal material and the proposed development plan comply with each of the following design criteria, or demonstrate that one or more of them is not applicable, or that a particular development solution is consistent with the public interest. 1. Conformance with the Town of Avon Comprehensive Plan's Goals and Objectives. The proposed PUD now complies with the Town Center Plan and conforms to the following goals and polices of the Town Comprehensive Plan: Policy A 1.3 Flexible zoning such as PUD should be encouraged where it results in more effective use of land The planning process with staff and the developer for Lot 61 is a new process for the Town and incorporatesllexible zoning to benefit both public and private sectors. Policy A3.5 Since undeveloped land in the Town Center is scarce, it will be developed at higher density, included vertically integrated mix of commercial and residential uses, and rely primarily on underground and/or structured parking • Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 A LVL V 1, 1 L, 171Y117t, -Ouivls]on, Lot bI PUD 2004 January 6, 2004 Planning & Zoning Commission meeting Page 3 of 8 . The underground parking structure for this project extends under the Town right of way to allow for more parking and does not preclude the opportunity for a private/public partnership for parking improvements and includes a higher density mixed -use development. Goal B 1 Enhance the Town's role as a principal, year-round residential community and regional commercial center This development plan will help vitalize Town Center with a more efficient transit hub to encourage year-round use of mass transit. and pedestrian circulation for its citizens, which is further reinforced by the following policy B1.2. Policy B 1.2 Commercial areas will be supported through creation and maintenance of effective vehicle access and parking, transit services, all-season pedestrian and non-motorized vehicle access, and consistent application of design Goal B2 Establish the Town Center Area as an inviting, vibrant and safe-pedestrian . oriented cultural, retail and entertainment hub The purpose of the Town Center Plan is to further enhance a vibrant hub in Town Center, which has been implemented in the Lot.61 development plan. Policy B2.2 Encourage a range of uses in the Town Center, including retail, offices, hotels, recreation, tourism, and entertainment • The Lot 61 development plan will include a range of uses and special review uses. Policy B2.4 Encourage joint development of structured parking, pedestrian and landscape improvements, and promotion of activities and events in the Town Center This is a joint development, which benefits both the developer and the Town to help synergize Town Center. Policy B3.2 Promote effective transit and access with Beaver Creek and Arrowhead Resorts, including gondola connections, trails, and pedestrian connections The revised property lines and pedestrian connections will promote transit and access to include potential opportunities for accessing the Confluence site and gondola. Policy E1.6 All new development and redevelopment should include or otherwise provide for effective transit, pedestrian and bicycle facilities This new development plan includes plans for effective transit, and enhances pedestrian circulation. Policy E2.1 Joint development of a structured parking facility in Town Center to support private and public uses should be pursued to the extent possible Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 .5 January 6, 2004 Planning & Zoning Commission meeting Page 4 of 8 The joint planning for Lot 61 includes structured parking on the Town right-of-way and does not preclude the potential for a shared parking facility. At a minimum, the Town and developer are moving forward in a , joint effort to support Town Center development. Goal E3 Promote the development of an enhanced transit system for the Town The revised transit plan accommodates more buses and will improve'the effectiveness of mass transit in the Town Policy E3.2 Maintain the existing regional and Town-wide bus system, and enhance as necessary to provide services to the community as it grows The new transit hub contained on the Lot 61 development plan accommodates the existing service demands for the ECO bus system as well as the Town-wide system. 2. Conformity and compliance with the overall design theme of the town, the sub area design recommendations and design guidelines of the Town. The development plan for Lot 61 is limited in scope and defines building setback, density, heights and new property boundaries. Previously, management indicated concerns that the development standards provided too much flexibility to recommend the proposal to constitute a site-specific development plan without complying with the financial model. As a .result, staff has refined the development standards to ensure the proposed uses are specific enough to constitute a site-specific development plan consistent with the financial model. In addition, design guidelines are set forth in the Town Center Plan, which must be fulfilled as the project moves through the design review process. These additional considerations include: active street frontages, suggested access points, required pedestrian walkways (which have been provided for), and other site planning and architectural considerations. 3. Design compatibility with the immediate environment, neighborhood, and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, character, and orientation. The new property boundaries for Lot 61 include criteria established in the Town Center Plan, such as 10'0" minimum sidewalks, new Benchmark Road alignment, requirements for stepping the building as it increases in height, clearances to accommodate a transit center while maintaining effective pedestrian movement in exchange for increased height, new development standards, and effective orientation on the site. 4. Uses, activity, and density provide a compatible, efficient, and workable relationship with surrounding uses and activity. The new development standards for this mixed-use project combined with the new transit center will enhance the vitality and efficiency of Town Center. 5. Identification and mitigation or avoidance of natural and/or geologic hazards that affect the property upon which the PUD is proposed. There are no known natural and/or geologic hazards on Lot 61 at this time. A Subdivision Improvement Agreement may be required to ensure there are no unforeseen natural or Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 iwt vi, yiva.n c, uiTiaa%, ououlv151011, Lot W PUD 2UU4 January 6, 2004 Planning 13-Zoning Commission meeting Page 5 of 8 geologic hazards, specifically at it relates to infrastructure improvements such as water, sewer, and/or drainage associated with this development. • 6. Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. The proposed development plan for Lot 61 is more responsive to improving the aesthetic quality of Town Center. The Planning & Zoning Commission will further clarify the building design through implementation of the Town Center design guidelines, and design review. 7. A circulation system designed.for both vehicles and pedestrians addressing on and off site traffic circulation that is compatible with the Town Transportation Plan. The Town Center Plan and the Town Transportation Plan have been considered and implemented in this development plan and improves the circulation for pedestrians, mass transit, and v 8. Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. Specific provisions for allowing the building to encroach onto Town right-of-way and in other areas to step back from pedestrian ways have been carefully considered and implemented with this development plan to optimize and preserve views and overall function. 9. Phasing plan or subdivision plan that will maintain a workable, functional,.and efficient • relationship throughout the development of the PUD. The phasing plan shall clearly demonstrate that each phase can be workable, functional and efficient without relying upon completion of future project phases. There is no phasing plan proposed by this PUD. There will be timing requirements set forth in the development agreement to allow the developer and/or the Town time to exercise their rights for construction. 10. Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire protection. IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if needed to amend the Town's Augmentation Plan. 11. That the existing streets and roads are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD. The new 50'0" road right-of-way alignment and transit center provisions improve the overall adequacy, carrying capacity, and mobility patterns of Town Center. 12. Development Standards The Development Standards including lot area, site dimensions, setbacks, height, density control, site coverage, landscaping and parking are being modified with this proposal and are proposed as follows: • 1 own of Avon -pnonunny --ropment (970) 7484030 Fax (970) 949-5749 January 6, 2004 Planning & Zoning Commission meeting Page 6 of 8 a. Uses by-right: • Retail stores • Specialty shops . • Restaurants, excluding drive-thru windows ■ Cocktail lounges ■ Personal service shops ■ Timeshare, interval ownership, and fractional fee ownership above grade with the condition that recreational amenity fees are paid - Of- terms.and . conditions of which will be negotiated with the development agreement. Staff recommends a minimum of 150-timeshare, interval ownership, or fractional fees units with a minimum of 900 net sq. ft each to comply with the premise of the financial analysis. The applicant is seeking a minimum o 125-units ■ Hotel/accommodation units on floors above grade. Staff is recommending a minimum of200 accommodation units and the applicant is seeking to limit the minimum to 180 units. ■ Condominiums on floors above grade. Staff is recommending a minimum of125 units @ 1,250 net sq.ft. to comply with the financial model and the applicant is seeking a minimum of 90-condominium units 1,250 net sq ft. ■ Indoor recreation and/or entertainment facilities ■ Theaters Public transportation facilities including 300 S.F. transit/administrative office at grade, immediately adjacent to transit center. Staff is recommending that these transportation facilities include public restroom facilities. ■ A minimum of 17,000 square feet of commercial/retail space. Staff is recommending an additional requirement that this minimum not include personal service shops to ensure tax revenues on the minimum requirement on the commercial/retail space. The revised application dated 12131103 does not comply with this recommendation. b. Special Review Uses: Conference/convention facilities Above ground public utility installations Professional offices on grade. Public parking facilities Medical Facilities Financial Institutions Additional uses to be determined similar to the allowed uses in accordance with the same zone district. As this is a PUD with no specific uses, staff would prefer to restrict the development standards to the enumerated uses. Town of Avon Community uevelopment (970) 748-4030 Fax (970) 949-5749 Q Lot 61, Block 2, BMBC Subdivision, Lot 61 PUD 2004 January 6, 2004 Planning & Zoning Commission meeting Page 7 of 8 c. Development Standards Lot Area 1.07 Acres Projections such as columns, roofs, unenclosed floors and decks may encroach into setbacks and/or right of ways with specific Town of Avon design review approval Building Height A height, as defined by The Town of Avon Title 17, Chapter 17.08, Section 160, of 108.5'. This height shall be to the top of roof structures over enclosed, habitable space. Elevator penthouses, chimneys, parapets and similar appurtenances shall be allowed to exceed this datum Maximum Density: Commercial /retail 40,000 sq.ft. Condominium 330,000 sq.ft. Timeshare/Interval 330,000 sq.ft. Accommodation Units 375 units Landscape/Hardscape Coverage: Shall be determined during the design review process. d. Parkin : All parking shall comply with the Lot 61 PUD Development Agreement. Staff has consistently requested the Avon Municipal Code parking standards be • implemented. The applicant is still seeking rebates and a reduction in parking under the Development Agreement. e. Provisions for stepping back the building as it increases in height on the Town Center (north elevation). There are also encroachments authorizing the building over the transit center (south elevation) and over the new Benchmark Road right- of-way alignment enhancing the density and architectural interest for IDG3 LLC as set forth in the Lot 61 PUD Development Plan. Staff Comments & Recommendation Although some outstanding issues remain with the revised application associated with the development standards and corresponding development agreement for the Lot 61 PUD Development, it is staff's position these are policy and legislative decisions, which rests with the Avon Town Council. Therefore, staff recommends approval of Resolution 04-03 for the Lot 61 PUD Development Plan, subject to the following conditions: The new Benchmark Road alignment (50'0" Benchmark Court Right-of Way) must be conveyed by subdivision plat prior to approval of the Lot 61 PUD Development Plan. 2. Development Standards shall be as follows: A minimum of 150-timeshare, interval ownership, and fractional fee ownerships units @ 900 net sq.ft. above grade including a recreational amenity fees. Town of Avon Community Development . (970) 748-4030 Fax (970) 949-5749 A January b, 1uu4 riannmg at Lonmg Commission meeting Page 8 of 8 • A minimum of 125 condominium units above grade @ 1,250 net sq.ft. • A minimum of 200 hotel/accommodation units above grade • Public transportation facilities including 300 S.F. transit/administrative offices and public restroom facilities at grade, immediately adjacent to transit center. • A minimum of 17,000 square feet of commercial/retail space, which does not include personal service shops. • All parking shall comply with the Avon Municipal Code parking standards. 3. A requirement that the developer will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if necessary to amend the Town's Augmentation Plan prior to issuance of a building permit. 4. Failtife obtain final design app, val, inelt! g compliatwe v6th the Town Center design guidelines of the site-specific development plan by January 31, 2012 shall automatically terminate these development standards and conditions. 5. This PUD is contingent upon a valid Development Agreement between IDG3 LLC and the Town of Avon being approved. 6. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. Recommended Motion i "I hereby approve Resolution 04-03 recommend approval of the Lot 61 PUD Development Plan subject to the conditions contained therein." If you have any questions regarding this project or any planning matter, please call me at 748- 4030, or stop by the Community Development Department. Respectfully submitted, Ruth O. 'B'orne, Director Community Development Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749 \0 C] TOWN OF AVON PLANNING & ZONING COMMISSION RESOLUTION NO. 04-03 SERIES- OF 2004 A RESOLUTION RECOMMENDING TO THE TOWN COUNCIL OF THE TOWN OF AVON APPROVAL OF A PUD DEVELOPMENT PLAN FOR LOT 61, BLOCK 2, 111 1, 1, "1 111 11 1 1 11 111 -01 7 9 kGLE COUNTY, COLORADO WHEREAS, the Applicant., IDG3 LLC has applied for approval of the Lot 61 PUD Development Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, after notices required by law, a public hearing on said application was held by the Planning,.& Zoning Commission of the Town of Avon; and WHEREAS, said application is consistent with all legal requirements. NOW, THEREFORE, BE IT RESOLVED that the Planning and Zoning Commission hereby recommends approval to.the Town Council of the Town of Avon for the Lot 61 PUD. Development Plan dated January 2, 2003 with the following conditions: 1. The new Benchmark Road alignment (50'0" Benchmark Court Right-of Way) must be conveyed by subdivision plat prior to approval of the Lot 61 PUD Development Plana 2. Development Standards shall be as follows: • A minimum of 150-timeshare, interval ownership, and fractional fee ownerships units @ 900 net sq.ft. above grade including a recreational amenity fees. • A minimum of 125 condominium units above grade @ 1,250 net sq.ft. • A minimum of 200 hotel/accommodation units above grade. • Public transportation facilities including 300 S.F. transit/administrative offices and public restroom facilities at grade, immediately adjacent to transit center. i • A minimum of 17,000 square feet of commercial/retail space, which does not include personal service shops. • All parking shall comply with the Avon Municipal Code parking standards. . 3. This PUD Amendment is contingent upon a valid Development Agreement between IDG3 LLC and the Town of Avon being approved. 4. If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town prior to issuance of a building permit to amend the Town's Augmentation Plan. 5. Failure to develop and obtain final design approval, including compliance with the Town Center design guidelines of the site-specific development plan by January 31, 2012 shall automatically terminate these development standards and conditions. 6.: Except as otherwise modified by this approval, all material representations made by the applicant i an in public hearing(s). s 1511 be adhered to and considered binding conditions of approval. Adopted this 6th day of January, 2003 Signed. Date: Chris.Evans, Chairman Attest: Date: Terry Smith, ecretary • Nil.*' TOWN OF AVON ORDINANCE NO. 04-01 SERIES OF 2004 AN ORDINANCE APPROVING THE LOT 61 PLANNED UNIT DEVELOPMENT (PUD) FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, the Owner, IDG3 LLC, has applied for approval of a Planned Unit Development ("PUD') Plan for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision; and WHEREAS, the Town and the Owner have negotiated the terms and conditions of the • Development Agreement for Lot 61, Block 2, Benchmark at Beaver Creek Subdivision ("Agreement"), which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on January 6, 2004, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Development Plan; and WHEREAS, following such public hearing, the Planning & Zoning Commission forwarded its recommendations on the Lot 61 PUD Development Plan to the Town Council of the Town of Avon; and WHEREAS, after notices provided by law, this Council held a public hearing on the day of , 2004, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Development Plan; and FACounci1\0rdinances\2004\0rd 04-01 L61 B2 BMBC PUD.doc \y' 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. The hearings before the Planning &Zoning Commission and the , Town Council were both extensive and complete and that all pertinent facts, matters and issues were submitted at those hearings. 2. That the Lot 61 PUD Development Plan is consistent with the recently adopted Town Center Plan, the goals and objectives of the Town's Comprehensive Plan, and is compatible with surrounding neighborhood and the public interest. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Lot 61 PUD Development Plan and Development Agreement is hereby approved with the following conditions: If necessary, IDG3 LLC will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town, as required by Section 17.14. of the. Avon Municipal Code, prior to issuance of a building permit to amend the Town's Augmentation Plan. 2. The Lot 61 PUD Development Plan constitutes a site-specific development plan and is required to complete subsequent design review approval, which consists of compliance with the Town Center Design Guidelines and the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. 3. Except as otherwise modified by this approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this day of , 2004, and a public hearing shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the day of, 2004, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Town of Avon, Colorado Town Council • FACounci1\0rdinances\2004\0rd 04-01 L.61 B2 BMBC PUD.doc \A Mayor ATTEST: Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED the day of .2004. Town of Avon, Colorado Town Council Mayor ATTEST: • Town Clerk APPROVED AS TO FORM: Town Attorney • FACounci1\0rdinances\2004\0rd 04-01 L61 B2 BMBC PLJD.doc \ "a • • \lp . . Exhibit "A" to Ordinance 04-01 DEVELOPMENT AGREEMENT FOR LOT 61, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of January , 2004 by and between IDG3, LLC, a Limited Liability Company, its successors and/or ssigns (hereinafter "Owner") and the Town of Avon, a municipal corporati6if ofd . , ,,Ve of Colorado (the "Town"). RECITALS: A. Owner is a limited liability company, duly organized and in good standing under the laws of the State of Colorado. B. Owner owns a parcel of real property generally referred to as "Lot 61" as more particularly described in Exhibit A attached to this agreement ("Lot 61" C. The Town and the Owner desire to develop Lot 61 as a mixed-use development consistent with the Avon Town Center Implementation Plan thereby creating new property lines for Lot 61, development standards, rights- of-way and a transportation center. This new parcel is referred to as the "Property" D. The Property contains specific development standards attached and incorporated herein as a site-specific development plan entitled "Lot 61 PUD Development Plan" (Exhibit "B") and as set forth in Article III of this Agreement. E. The Town has authority to zone and govern development of the Property in accordance w ith t his A greement, t he A von C omprehensive P Ian, T he A von Town Center Implementation Plan, The Avon Municipal Code, and the Lot 61 PUD (as defined herein), and other applicable Town requirements and polices. F. In order to ensure orderly controlled development by establishing minimum design standards, including streets and other forms of vehicular and pedestrian access, drainage, water supply and sanitation improvements to support human occupation,. it is necessary to require subdivision consistent with Title 16, Avon Municipal Code. G. The Property includes specific design requirements as set forth by the Town Center Implementation Plan, which is further defined and supported by the Town of Avon Residential, Commercial, and Industrial Design Review 1 Guidelines. Specifically, the project will comply to the. following general design intentions: ■ Building facades will be stepped to avoid long straight walls. All sides of the building must receive equal architectural treatment. ■ The building will be designed as a composition of architectural elements rather than larger single blocks that appear unrelated in form and context. ■ The street-level architecture will activate and enhance pedestrian activity on Main Street (the mall level), encouraging a lively center of retail activity year round. Additionally, the project will comply with the following site-specific guidelines: Articulation of building facades: Building facades should be articulated with variations in materials and punctuated with intermediate roof forms and building projections. Varying expressions of decks, windows and surface treatments should be combined to create a rich texture that will enhance the interest of the facades. The three primary components of the building's base, body and top should be clearly and deliberately expressed. The building's base should express mass and support with the use of such materials as stone and architectural concrete. The "body" of the building should begin to erode materials that express mass to lighter materials and more openings and surface variations such as decks and changes in wall plane. Roofs should be proportional to the height and scale of the various building elevations. The east end of the primary roof(s) and upper portion of the walls shall be articulated so as to minimize their visual impact to surrounding properties which may include the use of decks and the lowering of roof lines. Roofs at north property line: In addition to the suggested wall treatments noted above, these roofs should be adequately varied to avoid uninterrupted flat roofs. Approximately 50% of the elevation above 28' above grade shall be articulated through the introduction of discontinuous roof forms such as gables perpendicular to the wall plane and variations in roof edges, relative to the setback line. H. The legislature of the State of Colorado adopted Sections 24-68-101, et sea. 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 2 I'Q 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 C ode a uthorizes t he T own t o e nter i nto d evelopment a greements with landowners and other qualified applicants providing for the vesting of property development rights. J. Development of the Property in accordance with this Agreement will provide for o rderly growth i n accordance w ith t he p olicy and goals se t f orth i n t he Comprehensive Plan, the Avon Town Center Implementation 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 that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS 1.0 Definitions. The following terms and references shall have the meaning set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town on November 5, 1996, or any subsequent duly adopted plans or amendments thereto. 1.2 Development Standards. As set forth in Exhibit "B" entitled "Lot 61 PUD Development Plan" incorporated herein and further defined in Sections 3.2 of this Agreement. 3 1.3 Effective Date. The effective date of the Town Council Ordinance approving this Agreement and the recording of the relevant subdivisions referenced herein with the Clerk and Recorder of Eagle County, Colorado. 1.4 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of Lot 61 Exhibit B Lot 61 PUD Development Plan, including Benchmark Court Right of Way and Transportation Center location 1.5 Lodging Tax. For purposes of this Agreement, Lodging Tax shall mean any municipal lodging or accommodations tax imposed by the Town pursuant to Ch. 3.28, Avon Municipal Code or any similar code provision enacted during the T erm o f t his A greement u pon a ny s ales o r rental o f t odging w ithin t he Property. 1.6 Municipal Code. The Town's Municipal Code, as in effect from time to time. 1.7 Parking Requirements. As defined in Title 17, Avon Municipal Code. 1.8 Propert y. The newly created Lot 61 more specifically described as the Lot 61 PUD Development Plan as set forth in Exhibit "B". 1.9 PUD. Planned unit development or PUD, as such terms are defined and used in Section 17.20.110 of the Municipal Code. 1.10 Sanitation District. Eagle River Water and Sanitation District. 1.11 Subdivision. Means to make. a disposition of land or airspace which is defined as a subdivision, subdivided land, condominium subdivision, estate in airspace, specially planned area and/or planned unit development subdivision, minor subdivision, duplex subdivision or time-sharing subdivision consistent with Title 16, Avon Municipal Code. 1.12 Time-share owner. Means a person vested with legal title to a timeshare estate in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 1.13 Time-share unit. Means a unit the title to which is or is to be divided into interval estates or time-span estates in accordance with Section 38-33-110, Colorado Revised Statutes (2003). 4 - 1.14 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.15 Town Council. The Town Council of the Town. 1.16 Lot 61. The real property described in Exhibit A attached hereto. 1.17 Vested Property Rights Statute. As defined in Recital H. 1.18 Zoning. The passing of land use ordinances and regulations authorized by the Statutes of the State of Colorado and by Article XX of the Colorado Constitution, and more specifically through the Avon Municipal Code, Title 17, intended to ensure that zoning promotes stated benefits to the citizens of the Town. 1.19 Zoning Application. The zoning application for the parcel comprising the Property submitted to the Town on ; 2004. 1.20 Avon Town Center Implementation Plan. The plan adopted by the Town on November 6, 200 regarding development in the area commonly known as the Town Center. ARTICLE II COVENANTS; THIS AGREEMENT 2.1 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 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 5th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, provided, however that such termination shall not effect (a) any rights-of-way and uses of property granted to the Town related to the transportation center, or (b) any right arising from Town permits, approvals or other entitlements for the Property which were granted or approved prior to the 5th anniversary of the Effective Date. 2.2 Amendment of A geement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and Owner in writing following the public notice, public hearing and revised ordinance procedures required for approval of this Agreement stated in Section 17.20.110 (Planned Unit Development) et al of the Avon Municipal Code. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Owner as defined 5 a\ herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.3 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The property shall be zoned as PUD as provided in this Agreement and in the respective Development Standards. Complete zoning and site plans are attached in Exhibit B, the Lot 61 PUD Development Plan. 3.2 Development Standards. The "Development Standards" set forth the zoning for the Property, and indicate, among other things, setback distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking .requirements and other guidelines and limitations for the development of the Property and are specifically set forth in Exhibit "B". (a) Subsequent Final Plan Approval. Pursuant to this Agreement the Property is now PUD Zoning pursuant to Section 3.4(a). This constitutes a Site-Specific Development Plan for the purposes of establishing vested rights. Owner. and the Town shall, in a manner which is uniform of the Town and consistent with the provisions of Section 2.1 and Section 3.4 (d) further refine the design of the improvements and other details, all consistent with the Development Standards and this Agreement collectively, "Subsequent Final Design Review Plan Approval." The subsequent Final Design Review Plan Approval will consist of compliance with the Town Center Implementation Plan, Town of Avon Residential, Commercial, and Industrial Design Review Guidelines, and relevant portions of the Avon Municipal Code. (b) Development Approval. Simultaneously with the granting of PUD Zoning of the Property pursuant to Section 3.4 (a), the Town hereby approves the Lot 61 PUD Development Plan (Exhibit `B"). 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards and the Lot 61 PUD Development Plan constitute an approved "site-specific development plan" as defined in the Vested Property Rights 6 Statute and Section 17.14.100 of the Avon Municipal Code and subsequent compliance with Section 17.12.020 of the Avon Municipal Code which the Town acknowledges 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 with the Property in the manner and to the extent set forth in and pursuant to this Agreement, the Development Standards and the Lot 61 PUD Development Plan. (b) The right to develop, plan and engage in land uses with the Property in accordance with the densities, physical development standards and other physical parameters sefforth in the Development Standards. (c) The right to develop the Property in the order, at the rate, and at the time as in arket c onditions d ictate, s ubject t o t he t erms and c onditions o f t his 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 properly applied for and complete application approvals necessary for the development of the Property) with conditions and standards determined pursuant to Section 3.2(b) which conform to the regulations and guidelines imposed by the Town 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, delaying or otherwise materially adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. (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, delaying or otherwise adversely affecting any of Owner's rights that do not apply to other properties in the Town, as set forth in this Agreement or the Development Standards. 7 3.5 Exactions. The following exactions are intended to provide adequate facilities, pedestrian and vehicular access, and other related improvements for the public benefit of the Town: (a) Right-of-Way Dedication. The newly created right-of-way referred to as "Benchmark Court" will be dedicated to the Town by the approved Final Plat, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Final Plat") in accordance with Title 16, Avon Municipal Code contemporaneously with the approval of this Agreement and the Lot 61 PUD Development Plan. (b) Drainage. On site drainage facilities for the Property shall be provided by Owner to handle drainage resulting from the development of the Property. (c) Building Setbacks and Encroachments. It is the intention of the Town to provide for necessary at grade and above grade setbacks to allow for the building and/or structure to encroach as depicted on plans shown in Exhibit B. These provisions for allowing the building and/or structure elements over and on the Town property will be set forth in the Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek ("Resubdivision") and must be approved contemporaneously with this Agreement. The Resubdivision contains specific plat restrictions, which require as-built drawings upon the construction of the Property or the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. (d) Transportation Center. The Final Plat shall also include an easement for a Transportation Center, including necessary at grade and above grade setbacks as depicted on Exhibit B. In the event the Town elects to proceed with construction of the Transportation Center prior to the commencement of construction of the Lot 61 PUD Development Plan, then written notice must be provided to the Owner prior to 180 days of commencement of construction. The Town agrees to provide mechanical ventilation consistent with the current building code at the time of building permit application for the Transportation Center as part of the construction of the Lot 61 PUD Development Plan. Positive chase and ductwork for the Transportation Center will be provided by the Owner. 8 a'~ Noise generated by public transportation vehicles at the proposed Transportation Center shall be reduced to the maximum extent reasonably possible and in no case shall it raise the ambient sound level above the median between the No Impact and the Impact Levels for Category 1 or 2 Sites as shown in the following Table 3-1 from Transit Noise and Vibration Impact Assessment Final Report April 1995, prepared by Harris Miller Miller & Hanson, Inc. for the Office of Planning, Federal Transit Administration, U. S. Department of Transportation. The existing level of ambient noise, project noise and allowable noise levels shall be established in accordance with applicable procedures, methods and criteria conforming to the above referenced Impact Assessment, Final Report. 3-4 Transit Noise and Vibration Impact Assessment Table 3-1 Noise Levels Defining Impact for Transit Projects Existing Project Noise Impact Exposure; L,a(h) or L, (dBA) Noise ~ Exposure' I Category 1 or 2 Sites Category 3 Sites L«(h) or Le. I I . Severe (dBA) No Impact Impact Severe Impact No Impact Impact Impact <43 ii i <Ambient+10 Ambient + >Ambient+l5 <Ambient+15 Ambient r I i >Ambienbt-20 10 to 15 i 15 to 20 43 <52 52-58 >58 <57 57-63 I >63 44 ! ! <52 52-58 158 <57 57-63 >63 45 <52 52-58 i >58 <57 57-63 >63 46 <53 I 53-59 ' >59 I <58 1 58-G4 I >64 47 <53 j 53-59 >59 j <58 1 58-64 1 >G4 48 <53 I 53-59 >59 I <58 58-64 j >64 49 I <54 54-59 >59 <59 59-64 >64 50 <54 54-59 >59 <59 j 59-64 >64 51 <54 j 54-60 I >60 <59 59-65 >65 52 I <55 I 55-60 >60 <60 60-65 >65 53 I <55 55-60 >60 <60 l 60-65 j >65 54 I <55 55-61 >61 <60 i 60-66 >66 55 j <56 56-61 >61 <61 I 61-66 >66 56 I <56 I 56-62 1 >62 ' <61 I 6)-67 j >67 I 57 <57 I 57-62 r >62 <62 I 62-67 I >67 58 i <57 57-62 >62 j <62 62-67 ! >67 59 <58 58-63 >63 j <63 1 63-68 >68 60 <58 I 58-63 >63 <63 63-68 >68 61 <59 I 59-64 >64 I <64 1 64-69 >69 62 <59 I 59-64 >64 <64 j 64-69 >69 63 <60 60-65 > >65 <65 i 65-70 >70 64 I <61 61-65 >65 <66 i 66-70 >70 65 <61 61-66 >66 <66 I 66-71 >71 66 j <62 62-67 >67 I <67 ( 67-72 >72 67 <63 I 63-67 >67 r <68 68-72 I >72 68 I <63 63-68 >68 <68 ? 68-73 ! >73 69 I <64 64-69 >69 <69 69-74 >74 70 <65 65-69 a >69 <70 I 70-74 j >74 71 I <66 66-70 >70 <71 71-75 >75 72 <66 66-71 X71 I <71 71-76 >76 73 <66 66-71 >71 I <71 71.76 >76 74 <66 I 66-72 >72 <71 71-77 I >77 75 <66 1 66-73 >73 <71 l 71-78 ' >78 76 I <66 1 66-74 >74 <71 71-79 >79 77 <66 I 66-74 11 >74 <71 71-79 >79 >77 j <66 66-75 >7j I <71 71-80 >80 L,,„ is used for l and use where n ighttime sensitivity is a factor; L,,, during the hour of t roaximum transit noise exposure is used for land use involving o nly daytime activities. 9 (e) Transit Administrative Office: A minimum of 400 square feet of floor area on the ground level adjacent to the Town Transportation Center for typical administrative purposes including rough-in plumbing for public restroom facilities associated with transportation must be dedicated upon construction of the Transportation Center by the Town and/or with design review approval for Lot 61. (f) Water Rights: The developer will be responsible for the acquisition of additional water rights and their subsequent dedication to the Town if necessary to amend the Town's Augmentation Plan based upon the specific proposal applied for. (g) Timeshare Amenities Fee: Commencing as of the effective date of this Agreement, and continuing in perpetuity, the timeshare ownership association formed to manage the timeshare ownership project located on Lot 61 is obligated to collect from each timeshare owner and remit to the Town a Timeshare Amenities Fee. The Owner is exempt from the obligation for the timeshare amenities fee until the first-time sale of a timeshare interval. The provisions for the obligation for each timeshare owner to pay shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and association covenants. Prior to the formation of any timeshare ownership association, the Owner shall be obligated to collect and remit any and all Timeshare Amenities Fee. The number of units shall be calculated at the time of time-share subdivision. The fee shall be paid to the Town semi-annually and will be based upon the following schedule: Number of Units Constructed Per Timeshare Week* 125 - 149 Timeshare Units $ 58.35 150 - 174 Timeshare Units $ 48.52 175 - over Timeshare Units $ 41.51 * Timeshare Week is defined as seven (7) consecutive days constituting a maximum of fifty-two (52) intervals per calendar year. The amount of the semi-annual payments will be calculated according to the following formula: Number o f existing or newly deeded timeshare interests p er s emiannual period (January- June, calculated as of June 1, and July-December calculated as of December 1), multiplied by the appropriate fee based upon the Deeded Timeshare Units schedule (or as adjusted by CPI-U, as defined below), divided by 2. 10 ap The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2005, and on the first day of each year thereafter, the amount of the fee shall be increased by the prior years average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-U"). It shall be the duty of the timeshare association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. Prior to the formation of the timeshare association, the Owner shall have the above-referenced obligation to keep and preserve such records. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written determination of the amount due and deliver or mail the same to the office of the condominium timeshare association. The amount properly determined to be owing shall be from the due date of the remittance at the rate of one and one-half percent per month until paid. Prior to formation of the timeshare association such written determination will be delivered to the Owner. 3.6 Timing on Development. In the event the Owner obtains a building permit and complies with all other relevant rules and regulations governing development on the Property consistent with the Lot 61 PUD Development Plan, then the Owner must provide written notice 180-days prior to commencement of construction to the Town of the development schedule. There is no phasing proposed or contemplated for the development of this Property. The Owner and the Town agree to cooperate in construction staging and development to allow for orderly and safe construction of the Property. 3.7 No Obligation to Develop. Owner shall have no obligation to develop the Property and shall have no liability to the Town for its failure to develop the Property. The Town shall have no obligation to permit the Owner to construct under the dedicated road right-of-way or transportation center after 5 years from the Effective Date of the Agreement, and shall have no liability to the Owner or any other party for its failure to develop all or any part of the Property. In the event an amended Resubdivision of Lot 61, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek based upon as-built drawings is not recorded, then the Resubdivision will be vacated subject to the terms and conditions of Section 2.1. 11 1 3.7 Compliance with General Regulation. Except as otherwise provided in this Agreement or the Development Standards, the establishment of vested property rights under this Agreement shall not preclude the application, on a uniform and non-discriminatory basis, of Town regulations of general applicability (including, but not limited to design review, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or the application of s tate o r federal regulations, a s all o f s uch regulations e xist o n the d ate o f this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulation shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, delaying or otherwise adversely affecting any of Owner's rights set forth in this Agreement or the Development Standards. Owner does not waive its rights to oppose the enactment or amendment of any such regulations inconsistent with other properties in Town. . ARTICLE IV DEFAULTS, REMEDIES, AND TERMINATION 4.0 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, 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. 4.1 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. 4.2 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 5.7, 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. 12 ;16 4.3 Remedies. (a) If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party's obligation hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by stature. (b) In the event of default by the Owner, notwithstanding other available remedies s et forth h erein, t he T own i s u nder n o o bligation t o i ssue a ny land use approvals, including but not limited to design review and building permits for the Property. (c) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to: (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. ARTICLE V MISCELLANEOUS 5.0 Applicable Law. Agreement shall be constructed and enforced in accordance with the laws of the State of Colorado and the relevant portions of the Avon Municipal Code.. 5.1 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be constructed as making Town and Owner joint venturers or partners. 5.2 Expenses. Except as 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. 13 Z~ 5.3 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. Nor waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 5.4 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 PUD, Development Standards, and vesting agreements contained herein are consistent with the Avon Comprehensive Plan, A von M unicipal Code, T own C enter P Ian, a nd o ther a pplicable r egulations and policies of the Town. 5.5 Severability. If a ny t erm, p rovision, c ovenant or c ondition o f t his A greement i s held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining. 5.6 Further Assurances. Each party shall execute and deliver to the other all such other further instructions and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges under this Agreement. 5.7 Notices. Any notice or communication required under this Agreement between the Town and Owner must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five days a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail, if personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to that parties at their addresses set forth below: If to Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 If to Owner: IDG 3 LLC c/o C. Philip Smiley P.O. Box 5000 Avon, CO 81620 14 3p 5.8 Assignments. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Except as specifically set forth herein, Owner shall have the right to assign, delegate or transfer all or any portion of its interests, r ights o r o bligations u nder t his A greement t o t hird p arties a cquiring a n interest or estate in the Property, including, but not limited to; purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. Provided that the Town's approval of the assignee or transferee is first obtained, an assumption or transfers providing for express assumption of any of Owner's obligations under this Agreement by its assignee or transferee shall be relieved of any further obligations under this Agreement with respect to the matter so 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. 5.10 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. 5.11 Amendments and Waivers. No amendment or waiver of any provision of this Agreement, nor consent to any departure here from, shall in any event be elective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 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 BY: Mayor ATTEST 15 2)\ Town Clerk STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this day of , 2004, by as Mayor of Town of Avon, a municipal corporation of the State of Colorado. My Commission Expires: STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this Notary Public day of , 2004, by as Town Clerk of Avon, a municipal corporation of the State of Colorado. My Commission Expires: ATTEST Notary Public OWNER: By: 16 3a STATE OF COLORADO ) )ss. COUNTY OF ) Subscribed before me this day of My Commission Expires: STATE OF COLORADO COUNTY OF EALGE TOWN OF AVON SS as 2004, by Notary Public 17 -P NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT ON THE DAY OF , AT THE MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. F:\Council\Agreements\L61 B2 BMBC DevAgmmtv.2.doc 18 34 • Exhibit "A" To Lot 61 PUD Development Agreement Lot 61, Block 2, Benchmark at Beaver Creek, according to the Final Subdivision Plat - Amendment Number 4, recorded September 5, 1978, in Book 274 at. Page 701 as Reception No. 171107, County of Eagle, State of Colorado. 0 3Lp Jan-13-04 11:57am From-VICTOR DARK DONALDSON 9709495205 T-589 P.01/03 F-331 N 0048 E SEAVER CREEK E SUITE BOX AV~O V CO E 870. 949 • vmda@ vmda FAX • 949.5 LETTER OF TRANSMITTAL °yw.wtvwi ty be~l0pm" -c WE ARE SENDING YOU VIA _8FAX Q DELIVERED BY ❑ SHOP DRAWINGS ❑ SPECIFICATIONS # COPIES DATE ~/J/rtot DATE I ` lb-0 i i VMDA JOB NO. 0 3 ATTENTION ZIA-14 t~p~# SeI• cx> Lvr 61 ❑ ATTACHED C3 EMAIL THE FOLLOWING ITEMS.- 0 PRINTS ❑ PRODUCT INFORMATION ❑ CHANGE ORDER ❑ COPY OF LETTER ❑ADDENDA ❑ OTIMR DESCRIPTION ~V! S~~ SEGZlOa7S THESE ARE TRANSMITTED AS CHECKED BELOW.- 101Z G~ ❑ FOR YOUR APPROVAL ❑ REVIEWED BY VMDA VAS REQUESTED ❑ FOR YOUR USE ❑ FURNISH AS CORRECTED ❑ REJECTED ❑ REVISE AND SUBMIT ❑ _ COPIES ❑ FOR REVIEW AND COMMENT ❑ PRINTS RETURNED AFTER LOAN TO US REMARKS s -cam k3K-- lsr-iWr,6 170 W~ Ac-ok)c eoplb. PvuA e~WMW QW~1OS, maser s,K~~ 74L6RC wrTM Tw JpL?" ~-r v wt" 1w At C.XbVN GA L t wrx susst Owj -t o ~ ~u~ ow,v~.cs c<7%1 c,A~~ COPY TO SIGNED 31' Jan-13-04 11:57am From-VICTOR MARK DONALDSON 0 n --t O 9709495205 T-568 P.02/03 F-331 .~q Jan-13-04 11:57am From-VICTOR MARK DONALDSON I~ N Q. I~ N~ O O~ n TTT r m -4 o O wa 7- MZ! 1 O 9709495205 T-568 F.03/OS F-331 I jail 11V, 10V10'i-[G.V1V1 I V1/ 11 Johnson & Repucci LLP . Attorneys and Counselors at Law 2521 Broadway RECEIVED Suite A Boulder, Colorado 80304 JAN 1 2 2004 (303) 442-1900 Fax: (303) 442-0191 FACSIMILE COVER SHEET Community Development BOULDFR FACSINUI/E NUMBER: (303) 442-0191 WINTER PARK DATE: January 12, 2004 FROM: Michael J. Repucci TIME: CLIENT NO.: To: Name Company/Firm Facsimile No. Town Council Town of Avon (970) 949-9139 Geor a Pakozdi (905 522-0100 Pete Lan dorf 303) 796-9176 Ski l~ornseif (970 949-7757 Keith Elliott 314) 962-9255 MESSAGE: Please see the attached letter dated January 12, 2004 regarding Lot 61. PUD Development Plan Amendment. NUMBER OF PAGES FOLLOWING THIS COVER SHEET: 10 IF YOU NEED A CONFIRMATION OR ANY OF THE PAGES RE-SENT, PLEASE CALL OUR OFFICE AT THE FOLLOWING NUMBER: (303) 442-1900 IF YOU DO NOT CALL WITHIN 15 MINUTES, WE WILL ASSUME YOU HAVE RECEIVED THE PAGES SATISFACTORILY. SENT BY: Tami OUR FACSIMILE NUMBER: (303) 442-0191 CONFIDENTIALI'T'Y NOTE:. The information contained in this facsimile transmittal sheet and document(s) that follow are for the exclusive use of Elie addressee and may contain confidential, privileged and nondisclosable information. If the recipient of this facsimile is not the addressee, or a person responsible for delivering this facsimile to the addressee, such recipient is strictly prohibited from reading, photocopying, distributing or otherwise using this facsimile transmission, or its contents, in any way. If the recipient has received this facsimile transmission in error,.please call us immediately and return the facsimile transmission to us via the United States Postal Service. Thank you. a` JtIIY-1 C-0004 nun UG - GU rl1 Jars LLr rMA IYU. 3UJ44i 1 X71 F. UJ/ 1 1 Town of Avon Town Council January 12, 2004 Page: 2 Design Criteria of Section 17.20.110(H) of the Zoning Code and the referenced Staf..f. Reports, as follows: 1. Conformity with the Avon Comprehensive Plan foals and objectives. The Association has reviewed the careful analysis of the goals and policies of the Avon Comprehensive Plan employed by the Planning and Zoning Commission, and the Association agrees that certain aspects of the development proposed, by the applicant's Lot 61. PUD Amendment fulfill the goals and policies described in the January 6, 2004 Staff Report. However, various goals and policies of equal importance to the Town are not satisfied by the current proposal. Goal Al Ensure a balanced system of land uses that maintains and enhances Avon's identity as a residential community, and as a regional commercial, tourism and entertainment center. Policy A. 1.1 Development and redevelopment will be of a scale and intensity appropriate for the neighborhood in which it is located. The scale and intensity of the new development contemplated by the Lot 61 PUD Amendment is inappropriate for the Avon Town Center. The scale and intensity of the proposed development ci recommended for approval by the Planning and Zoning Commission far exceed those that currently characterize the Avon Town Center neighborhood or that are contemplated by the Iti~ Towns Comprehensive Plan, Implementation Plan and Design i Review Guidelines. ,,Oz~ V~ Policy AL3 Flexible zoning such as Planned Unit Developments (P. UD.) should he encouraged where it results in more effective use of the 4l} land. However, such flexible zoning will only be allowed where j5 it provides a benefit to the community and is compatible with surrounding development. Variations from standard zoning must be clearly demonstrated, and will he permitted only as needed to achieve effective development. The Association concurs with the Planning and Zoning Commission's assessment that the development of Lot 61 can and should benefit from flexible zoning entitlements. However, as more particularly discussed below, the Lot 61 PUD Amendment is not compatible with the surrounding development 14667/aeon a~ JHN-i&nu4 nUN Ue_;eo rri J&K LLr rnn 11U, 3U3144cU1e1 r, uoi 1i ~e Town of Avon Town Council January 12, 2004 Page 4 Square as a single unified parcel, including maximizing the view corridor through the development parcel. As shown on the conceptual drawing of Lot 61 and the Avon Town Square, the Implementation Plan conte plates multiple buildings on Lot 61, allowing for a view corridor to th mountains and a pedestrian connection from the center of Lot 61 to the Av n Town Square Parcel. In contrast, the proposed Lot 61 PUD Amendmint contemplates development of only one building on the site with little or no setbacks from adjacent property and rights-of-way. Furthermo , the proposed Lot 61 PUD Amendment contemplates that multiple building projections, such as columns, roofs, unenclosed floors and decks, be permitted to encroach. into setbacks and/or rights-of-way. Contrary to the design intent expressed in the Implementation Plan, the view corridor through Lot 61 will be entirely eliminated, and pedestrian traffic impeded, if the proposed Lot 61 PUD Amendment is approved in its current form. As part of the Design Philosophy of the Town, the Design Review Guidelines provide: The Town should continue to be perceived as a contemporary mountain town, complementary to the natural landscape and unbuilt environs. The Town should appear as a cohesive unit comprised of sitnple building forms, subdued colors, and predominantly pitched roofs , . Form, scale, proportion, and materials should support the natural environs and reinforce those characteristics that uniquely identify a neighborhood's built environ as it relates to the Town. To that end, Section 5A of the Design Review Guidelines recommends: "The site and its relationship to other structures, scenic values, views, and climatic orientation should be the dominant factors in the design and sighting of buildings." To satisfy this objective, Section 5A requires that "(s)ite layout and proposed improvements shall consider the use of passive and active solar use, and the retention of neighboring properties `view corridors'." The proposed Lot 61 PUD Amendment fails to comply with any of the referenced recommendations and requirements of the Design Review Guidelines. Specifically, the height and bulk of the proposed building are not characteristic of a contemporary mountain town and do not complement the natural landscape and environment. In addition, the proposed building will stand out conspicuously from existing structures rather than become part of a cohesive unit of development in the Avon Town Center. Finally, the proposed Lot 61 development plan seemingly ignores the unambiguous direction expressed in the Design Review Guidelines that the use of passive and active 14667/aeon ~17 Town of Avon Town Council January 12, 2004 Page 6 14667/avon 5. Identification and mitigation or avoidance of natural and/or geologic hazards that affect the property upon which the PUD is proposed. The Association concurs with the Planning and Zoning Commission's recommendation that a Subdivision Improvements Agreement be required to ensure no unforeseen natural or geologic hazards impact the Lot 61 development or adjacent properties. 6. Site plan building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. The Association understands that the building design will, be further clarified during the design review process. Nevertheless, as described above, the features of the development contemplated by the proposed Lot 61 PUD Amendment are not responsive and sensitive to the natural features and overall aesthetic quality of the community. Section 5B of the Design Review Guidelines identifies solar access as primary importance within the Town core. Specifically, the Design Review Guidelines recognize the importance of solar access studies showing the effect on adjacent buildings and outdoor spaces. The Association is concerned that the height of the proposed building will shade the Avon Mall and future Main Street, producing a cold, dark, windy and inhospitable pedestrian corridor. Therefore, the Association urges the Town Council to require the developer to provide solar studies prior to approving any amendment of the existing Lot 61 PUD Amendment to ensure that solar exposure is maximized in the Town Center Area_ 7. A circulation system designed for both vehicles and pedestrians addressing on- and off-site traffic circulation that is compatible with the Town transportation plan. The Association has serious concerns about the revised traffic circulation design contemplated by the Implementation Plan. The Town's outdated diesel buses traveling on the new Main Street will pass within ten (10) yards of the Condominiums, emitting nauseating, noxious exhaust fumes that will permeate the Condominiums, creating an unsafe and unhealthy living environment. Moreover, the proximity of the bus traffic to the Condominiums will greatly increase traffic noise audible within the Condominiums. Since the Condominiums do not have central air conditioning, owners are required to open their windows during the warm weather months, thereby further OA 7 Town of Avon Town Council January 12, 2004 Page 8 11. The Association is familiar with the long-term plans for the Benchmark Road extension and the construction of Main Street. However, the Association is unaware of the schedule of completion of these projects vis-a-vis occupation of the proposed development of Lot 61. The existing streets and roads are clearly inadequate for the substantial increase in traffic that will be generated by the Lot 61. PUD Amendment, and the Association is concerned that even the proposed road expansion may be insufficient to handle increased traffic flows. Section 17.20.110(1) of the Zoning Code directs the Town Council to determine the development standards of a PUD including lot area, site dimensions, setbacks, height, density controls, site coverages, landscaping and parking based upon compliance with the above design criteria. The Association has reviewed the development standards recommended by the Planning and Zoning Commission listed in the January 6, 2004 Staff Report, and has the following comments thereto: a. Uses Bv-Right: The Association notes that the uses by-right recommended by Town Staff and the Planning and Zoning Commission are even more intense than those requested by the Lot 61 developer. The Association believes that many of these uses are much too intense for the site and incompatible with the character of the Avon Town Center_ h. Special Review Uses: The Association -has no further comments on these uses. Development Standards. As previously explained, the proposed height and density contemplated by the proposed Lot 61 PUD Amendment greatly exceeds the height and density that characterizes the Avon Town Center. This increased height and density will result in numerous negative effects as described above. d. Parkin . The January 6, 2004 Staff Report recommends that the Avon Municipal Code parking standards be implemented. The off-street parking 14667/avon "\f Lot 61 PUD Amendment. Furthermore, the Association is concerned that the reported $3 million plus cost to construct the new Main Street in order to implement the Lot 61 PUD Amendment, is not a fiscally responsible use of limited Town funds. 1 Town of Avon Town Council January 12, 2004 Page 10 Association requests that the Lot 61 PUD Amendment be tabled pending completion of further evaluation and studies including, without limitation, traffic impact studies, solar access and view studies, and evaluations of the impacts of the reconm-fended densities on the character of the Avon Town Center area, On behalf of the Association, we thank you for the opportunity to comment and be heard on this matter. Very truly yours, Michael r. ucci cc: George Pakozdi (by facsimile) Pete Langdorf (by facsimile) Skip Dornseif (by facsimile) Keith Elliott (by facsimile) Jon Grantham (by email) Michael Smith (by email) Tom Crosbie (by email) Bob Roman (by email) Stuart Borne (by email) Steve MacDonald (by email) 14667/avon t-lxf 1l4 ll IDG 3 ILILC O. Box 1068 ail, Colorado 81658 970.949.4958 F. 970 949.4838 mha@vail.net January 21, 2004 The Avon Town Council P.O. Box 975 Avon, CO 81620 Re.: Lot 61 proposed PUD Ordinance 01-04 Block 2 Benchmark @ Beaver Creek Amendment 4 Avon, Colorado Dear Mayor Council Members, In preparing for our return to Council on the 27`s of January, we wanted to address the • issues you listed, for which we are responsible: Building Setbacks in reviewing the concerns for setback, we have decided to revise our setbacks on both the southeast and southwest property lines. We are no longer proposing building limits over the Benchmark Road right of way but instead will be bounded by either property line. We are asking to be able to build to our permitted height along this elevation so that we may be able to relegate the majority of the highest portions of our structure to the south of the property thus permitting more substantial reductions in height along the north property line where adverse shading to the Mall and adjacent properties would be objectionable. We would also suggest that any concerns for the severity of the perceived height and treatment of facades, along this elevation, be addressed in the Design Review stage. As a further consideration to our neighbors we have increased the horizontal step, along our north property line to 70' (versus 25') as illustrated in our revised PUD drawings. Height As you know, we have worked with you, staff and the Planning Commission to adopt the principles of the Town Center Plan as they affect Lot 61. In this process we have relinquished a 50' right of way plus a 10' setback along our west property line. In return we have requested the ability to build above this right of • way and in doing so must maintain an 18.5' clearance for vehicles. With the need for approximately 3.5' of structure, mechanical space and finishes this places our first finished floor elevation at approximately 22' above the proposed finished grade of the road below. With the projected grade at the north edge of our 80' wide building limit of 7445.5 This would place our first finished floor level, above grade at 7467.5. or 7.5' higher than our current first finished floor elevation of 7460.0' Please see the attached exhibit A to this letter. We are simply requesting that we maintain our net, usable residential height of 81.5'. We were asked to state our height, according to the definition of height prescribed by the Town Code, namely as a fixed distance above the grade, below. Given that we foresee the highest portion of the structure above the sites lowest grade of 7443 we had to state the height as 108' We would be willing to revise the height to 105' with an absolute cap to be set at a datum of 7548.0' that is 98' above the finished pavement elevation of 7450.0' at the Mall. As you will see we are not gaining any effective height and any further reduction in height would cause us to loose a floor which could likely amount to a loss of 18,200 S.F. (325' x 70' x 80% (efficiency factor of gross to net area)) of net residential area which at $275/S. F. could amount to over $5,000,000 in sales or $100,000 in transfer taxes. Massing We are preparing some computer base massing analyses to address two concerns.. It will illustrate the massing, currently approved and show the minor increase in height that we are seeking. It will also serve to illustrate the maximum proposed density relative to the constraints of the building envelope. Transit Center We would like the Town to understand that we and our prospective developers have acknowledged the potential benefits of a transit center designed within the established criteria. Parking As stated, our PUD is bound to provide parking according to the current Town code. The minimum allowable density would render a requirement the following parking: 125 Timeshare @ 1.5/Unit x 85% 160 Spaces 17,000 Retail @ 5.511,000 S.F. x 85% 80 Spaces 240 Spaces Our current development plan illustrated that 158 spaces could be parked per full level. With the required additional required guest parking we can attain our requirements on 2 levels of parking. Thanks to the slope of our side the first level would be at grade with Benchmark Road and thus our lower level of parking would be only 10' below the elevation of The Mall, to the north. C C h'i • After nearly eight months of working cooperatively with staff, the Council and The Planning Commission on this most recent proposal, we are intent in bringing this process to a successful conclusion for all the proverbial "win-win". We trust that you will agree that in all our work on this parcel over the last five years, our partnership has always worked fairly and openly to achieve positive, working entitlements that will play a major role for the future of Avon. We look forward to moving this project to its next phase and set the nucleus for The Town Center and Avon. Sincerely, • • \1\1~ f .a D 0 a. A cis 0 0 a L 8 V b d M CCU Fni W N U 00 a - 4.4 O u OD U z y a M 80' Air Rights over Benchmark Court Exhibit A Site Section T/Flr. = 7445.5' 194.45' a~ F t ~o E- I _ 7550-01ANk 7442.4' 1" = 40'-0" 0 Calculations: Slope of Road= 7.4' Rise/ 194.45 Run= 3.8% slope (.038) Rise to N. Edge of Air Rights =.038 x 80' Run = 3.04' Rise 6R IxV(W- Mark W. Davis 1267 Pilgrim Ave Birmingham, MI 48009 (248) 642-8878 January 29, 2004 Town of Avon 400 Benchmark Road PO Box 975 Avon, Colorado 81620 To whom it may concern: I have learned that you are planning on developing Lot 61 as well as developing a bus turnaround very close to the building where my condominium is. At my time of purchase years ago, I never anticipated writing such a letter that I would have to be a part of a team trying to keep our building a top notch complex. I am concerned that what you are attempting to do will drop my property value by hampering the view and adding pollution to a beautiful setting. This area of Avon is known for being out of the way and a great place to come and relax. Added bus traffic is against what this part of Avon is all about. Please do not go forward with this proposal. Than u. ark W. Davis Avon Center, Unit 806 Owner RECEIVED B 00 2 2004. 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