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TC Ord. No. 2006-03 Approving an amendment to the confluence planned unit development PUD TOA Eagle County Co
EAGLE COUNTY, CO 200615957 TEAK J SIMONTON 289 P9s: 35 04:53:07PM 06/15/2006 REC: $186.00 DOC: TOWN OF AVON, CULURADO AN ORDINANCE APPROVING AN AMENDMENT TO THE CONFLUENCE PLANNED UNIT DEVELOPMENT (PUD), TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, East West Partners Inc. has filed an application to amend the existing Planned Unit Development ("PUD") and Development Agreement for the Confluence PUD as more specifically described in the application dated August 8, 2005; and WHEREAS, the proper posting, publication and public notices for the hearings before the Planning & Zoning Commission of the Town of Avon were provided as required by law; and WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public hearing on October 181h, November 151, November 15th, December 6th, and December 20th of 2005 and January 17th, 2006, at which time the applicant and the public were given an opportunity to express their opinions and present certain information and reports regarding the proposed PUD Amendment; and WHEREAS, Ordinance 06-03 incorporates by reference the PUD Development Plan as "Exhibit A" and the Amended and Restated Development Agreement as "Exhibit B", both. documents specifying all conditions of approval for the property; and WHEREAS, following such public hearings, the Planning & Zoning Commission forwarded its recommendation for conditional approval on the PUD amendment application to the Town Council of the Town of Avon through Resolution 06-01; and WHEREAS, after notices provided by law, this Council held public hearings on January 24th, February 14th, February 28th, and March 14th, 2006, at which time the public was given an opportunity to express their opinions regarding the proposed PUD Amendment; and WHEREAS, based upon the evidence, testimony, exhibits, and a study of the Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds said application appears to comply with the following PUD review criteria set forth in Section 17.12.110 of the Avon Municipal Code, including the following: s J~ ORDINANCE NO. 06-03 SERIES OF 2006 1. Conformance with the Town of Avon Comprehensive Plan's and Town Center Implementation Plan Goals and Policies as required by 17.20.110H (1); 2. The overall design concept of this PUD Amendment conforms to the design theme of the Town, and Design Guidelines as required by 17.20.110H(2); 3. The project is compatible with the immediate scale and character of existing properties in the vicinity. 17.20.110H(3); 4. This PUD Amendment application is responsive and compatible to the existing surrounding land-uses. 17.20.11OH (4); 5. The PUD Amendment application has identified and proposes to mitigate or avoid natural or geologic features. 17.20. I OH (5); 6. The site plan, building design and location and open space provisions are designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. 17.20.110H (6); 7. The circulation system is designed for both vehicles and pedestrians addressing on and off site traffic circulation that is compatible with the Town Transportation Plan. 17.20.110H (7); 8. This PUD Amendment application has created functional open space that is responsive to existing views and buffers to open space. 17.20.110H(8); 9. The subdivision plan will maintain a workable, functional, and efficient relationship throughout the development of the PUD. The phasing plan shall clearly demonstrate that each phase can be workable, functional and efficient without relying upon completion of future project phases. 17.20.110H (9); 10. Adequacy of public services such as sewer, water, schools, transportation systems, roads, parks, and police and fire protection has been established. 17.20.110H (10); • 'Zs~ 0 Ordinance No. 06-03 Confluence PUD Amend Page 2 of 2 11. The existing streets and roads are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD. 17.20.11 OH (11); and WHEREAS, this PUD Amendment provides evidence of compliance with the public purpose provisions outlined in Section 17.28.085 of.the Municipal Code. The public benefits include: positive fiscal impacts identified in the economic models provided by staff and the applicant; dedication of approximately 5-acres of the Eagle River and associated high value natural resources; public plaza and lift conveyance; improved access and recreational opportunities; and an equitable capital contribution partnership. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: The Amendment to the Confluence PUD to as more specifically described in the application dated August 5, 2005 is hereby approved, subject to the following conditions: 1. General Conditions: A. Water Rights: The property owner shall dedicate and convey to the Town (or the Town's designee, the Upper Eagle Regional Water Authority) the water rights necessary to serve the approved development. An agreement for dedication of augmentation water and related water rights shall be entered into prior to the issuance of the first building permit on the Confluence; B. The property owner shall submit a master landscaping and public plaza design - plan for Lots 1-7, including Tract A, to be reviewed and approved by the Planning and Zoning Commission prior to issuance of the first building permit for the hotel; C. Tract "A" shall be deeded to the Town and zoned "Open Space, Landscaping and Drainage" in accordance with section 17.20.120 of the Municipal Code no later than three (3) years after the date of recording of final plat; D. The property owner shall construct the proposed Westin Hotel or brand of comparable rating, Public Plaza, and gondola as generally submitted in the August 3, 2005 application and as required in the Development Agreement. Ordinance No. 06-03 Confluence PUD Amend Page 3 of 3 Among other items, significant changes to the Hotel Brand or Brand Equivalent, Tract A, Public Plaza, Conceptual Architectural Illustrations or Lift to the Beaver Creek Landing shall require a major amendment to the PUD; E. Except as otherwise modified by this permit approval, all material representations made by the applicant or applicant representative(s) in this application and in public hearing(s) shall be adhered to and considered binding conditions of approval. 0 INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this day of_. , 2006, and a public hearing shat be held at the regular meeting of the Town Council oft wn of Avon, Colorado, on the ~I,+aIb day of, 2006, at 5:30 P.M. in the Municipal B ' ding of the 3 o-w-\.of Avon, Colorado. d ok 14 To of Avo , Colorado Ck -~C06 C A il Ronald C. Wolfe, Mayor T:..ti C. au Pat Mc enny, wn lerk APPROVED AND ORDERED INTRODUCED PASSED ON SECO'1'+l : REAL 0-611, POSTED the day of OXC\ , 2006. Tow f Avo , Colorado • f I Ronald C. Wolfe, Mayor D AS TO FORM: A TE A RO TA , C tty cKenny, T n Clei c Jo n Dunn, Town Attorney Ordinance No. 06-03 Confluence PUD Amend Page 4 of 4 • • 0 EXHIBIT A To Ordinance 06-03, Series of 2006 Develo ment tandards) l INCORPORATED BY REFERENCE 4~k F_~VJR\B -4~cD o(Z&jo_acQ_ R© . c)L-o~) AMENDED AND RESTATED DEVELOPMENT AGREEMENT The Confluence THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of ~WVJ li , 2006 by and between Avon Confluence LLC, a Delaware limited liability company ("Owner") and the Town of Avon, a municipal corporation of the State of Colorado (the "Town") and constitutes an amendment and restatement with respect to the Confluence of that certain Development Agreement - Confluence and Tract C dated October 27, 1998 (the "1998 Agreement"), as more fully set forth below. Owner and the Town are collectively referred to as the Parties. RECITALS A. Owner is a limited liability company duly organized and in good standing under the laws of the State of Delaware, qualified to do business in the State of Colorado.. B. Owner owns a parcel of real property which was previously annexed to the Town and defined as the "Confluence" in the 1998 Agreement, as more particularly described in Exhibit A attached to this Agreement (the "Confluence"). • C. Owner desires to develop the Confluence as a mixed use development which may include, among other uses, a whole ov,,nership condominium hotel branded as Westin or a brand of comparable rating ("the Hotel"), whole ownership condominiums, townhomes, time-share ownership, restaurants, retail, spa, parking, public transportation facilities, open space, office, commercial, meeting space and other uses. D. Owner is submitting an application for an amendment to the existing Planned Unit Development which was approved with respect to the Confluence as part of the 1998 Agreement. This Agreement amends and restates the 1998 Agreement with respect to the Confluence only. The Parties expressly intend not to modify any of the terms of the 1998 Agreement insofar as the 1998 Agreement refers to and concerns the properties defined therein as "Tract B" and "Tract C" E. The Town has authority to zone and govern development of the Confluence in accordance with this Agreement, the Comprehensive Plan, the Confluence PUD, the Municipal Code, and other applicable Town requirements and polices. Furthermore, the Town has authority to agree to the vesting of property development rights concerning the Confluence. F. The Confluence is expected to contribute substantially to the economic growth of the Town and consequently will increase future tax revenues to the Town. The Town desires to enter into this Agreement affecting the Confluence in order to provide for orderly growth in and around the Town and to increase its tax revenues. The Town desires to make or contribute to certain public improvements relating to the Confluence and to contribute to certain operating expenses of those improvements in order to enhance future tax revenues to the Town and contribute to the common good of the Town and its residents. 1~1'A G. The legislature of the State of Colorado adopted Sections 24-68-101, et seg. of the Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness. in the land use planning process and in order to stimulate economic growth, secure the reasonable investment-backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning; said Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of property development rights. H Consistent with the Vested Property Rights Statute, Chapter 17.14 of the Municipal Code authorizes the Town to enter into development agreements with landowners and other qualified applicants providing for the vesting of property development rights. 1. Development of the Confluence in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment-backed expectations of Owner, foster cooperation between the public and private, sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and Chapter 17.14 of the Municipal Code were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the orderly development of the Confluence, Owner desires to receive the assurance that it may proceed with development of the Confluence pursuant to the terms and conditions contained in. this Agreement. J. The Town's authority to enter into this Agreement stems from the power vested generally in Colorado municipalities to address matters of local concern by contract, ordinance or otherwise. Because any payments by the Town required under this Agreement shall be subject to annual budget appropriation, they shall not be multiple fiscal year contractual undertakings of the Town and shall not be a tax policy change which would otherwise require electoral approval. AGREEMENT • NOW, THEREFORE, in consideration of the premises set forth above, the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as follows, which agreement contains all obligations of the Owner and the Town with respect to the development of the Confluence: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Amended and Restated Development Agreement The Confluence Page 2 of 24 Definitions. The following terms and references shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Accommodation Unit. For purpose of calculation of density (and not for purpose of calculation of water requirements), any room or group of rooms used primarily for transient lodging and accessible from common corridors, elevators, walks or balconies without passing through another Accommodation Unit and shall be no larger than 600 square feet. An Accommodation Unit may include an Efficiency Kitchen. Each Accommodation Unit shall be counted as one-third (1/3) of a Dwelling Unit for purposes of calculating allowable Dwelling Units per acre. 1.2 Amenities Fee. A consensual fee intended to mitigate the impact of a Time-share subdivision, including the cost of transportation and recreational facilities. 1.3 Amiexation Agreement. The conditional Annexation Agreement affecting the Confluence Parcel approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. 1.4 Confluence. The parcel of unimproved real property described on Exhibit A. 1.5 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Town Council on February 28, 2006. 1.6 Development Standards. The Development Standards pertaining to the Confluence contained in the PUD Development Plan attached hereto as Exhibit B. 1.7 District. Shall mean collectively the Confluence Metropolitan District and the Avon Station Metropolitan. District approved by the Town to serve the Confluence, among other properties as described in the 1998 Agreement. 1.8 Dwelling Unit. For purpose of calculation of density (and not for purpose of calculation of water requirements) a Dwelling Unit is one (1) or more rooms, including cooking facilities, intended or designed for occupancy by a family or guests independent of other families or guests, or (2) An aggregate of Accommodation Units provided-as- follows a. Three (3) Accommodation Units shall be counted as one (1) Dwelling Unit, b. Two (2) Accommodation Units in association with a dwelling unit shall be counted as one dwelling unit. 1.9 Effective Date. The effective date of the Town Council ordinance approving this Agreement. 1.10 Efficiency Kitchen. An . Efficiency Kitchen means a room, wet bar or similar facility that may contain a sink, refrigerator, dishwasher, microwave oven, cook top, wet bar or similar facility, but expressly not a stove or oven within an Accommodation Unit or Residential Unit. Stub outs for natural gas, propane, or 220-V electric hook-ups are not allowed. Amended and Restated Development Agreement I)D The Confluence Page 3 of 24 • • • • 1.11 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Legal Description of the Confluence Exhibit B PUD Development Plan for the Confluence 1.12 Hotel. A whole ownership condominium hotel branded as a Westin or a brand of comparable rating to be developed on the Confluence, as described herein. 1.13 Municipal Code. The Avon Municipal Code, as in effect from time to time. 1,14 Owner Rebate. Obligation of the Town to the Owner pursuant to Section 5.1 hereof. 1.15 PIF Collecting Agent. As defined in-Section 5.6 hereof. 11 1.16 Public Improvement Fee or PIF: A public improvement fee collected by the District or an owners association on retail sales, provision of accommodations and sales of real estate. 1.17 PUD. Planned unit development or PUD, as such terms are defined and used in the Municipal Code, as approved by the Town with respect to the Confluence. 1.18 Real Estate Transfer Tax or RETT. For purposes of this Agreement, Real Estate Transfer Tax shall mean any municipal real estate transfer tax imposed by the Town pursuant to Municipal Code Ch. 3.12 or any similar code provision enacted during the Term of this Agreement. 1.19 Residential Unit. One (1) or more bedrooms, including cooking facilities, which has a separate deeded real property interest. 1.20 Sanitation District. Eagle River Water and Sanitation District. 1.21 Subdivision Improvements Agreement. An agreement guaranteeing the construction of public improvements for the Confluence pursuant to Title 16 of the Municipal Code. 1.22 Time-share Owner. A person vested with legal title to an interval estate or a time-share estate, as defined in Section 38-33-110, Colorado Revised Statutes. 1.23 Time-share Interest. The ownership interest of a Time-share Owner. 1.24 Town. The Town of Avon, a municipal corporation of the State of Colorado. 1.25 Town Council. The Town Council of the Town. Amended and Restated Development Agreement The Confluence Page 4 of 24 1.26 Vested Property Rights Statute. As defined in Recital G above. 1.27 Zoning. Formal and final passage of an ordinance and/or resolution by the Town Council confirming a zoning designation on a parcel of land as provided in the Municipal Code. Such final passage shall be deemed to occur after the passage of any applicable period for the filing of a petition for referendum to reverse or nullify such zoning ordinance. 1.28 Zoning Application. The zoning application for the Confluence. ARTICLE II CONDITIONS PRECEDENT; COVENANTS; THIS AGREEMENT 2.1 Condition Precedent. Annexation of the Confluence to the Town was accomplished pursuant to Ordinance No. 98-18 and Resolution No. 98-54, and the Annexation Agreement was approved by the Town on August 25, 1998, and recorded on November 23, 1998, at Reception No. 677379 in the real property records of Eagle County, Colorado. The Parties hereto agree that annexation of the Confluence was in all respects in accordance with the Town charter and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. 31- 12-101, et seq.). Further, this Agreement is expressly conditioned upon the acquisition of fee simple title to the Confluence by Owner. If Owner does not acquire such fee simple title to the Confluence on or before June 15, 2006, this Agreement shall be deemed void and. of no force or effect, the Confluence shall be governed by the 1998 Agreement and the vested property rights established by the 1998 Agreement, and the vested property rights described in this Agreement shall be deemed not established. 2.2 Term. In recognition of the size of the development contemplated under this Agreement, the substantial investment and time required to complete the development of the Confluence, the potential for phased development of the Confluence, and the possible impact of economic cycles and varying market conditions during the course of development, Owner and the Town agree that the term of this Agreement and the vested property rights established under this Agreement shall commence on the Effective Date and shall continue until the 12th anniversary of the Effective Date. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however that such termination shall not effect (a) the annexation of the Confluence to the Town; (b) any common-law vested rights obtained prior to such termination, (c) any operating agreement entered into between the Town and the District, or (d) any right arising from legislative, quasi-judicial or administrative approvals occurring prior to, concurrently with, or subsequent to the approval of this Agreement and the Development Standards. 2.3 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or tenninated only by mutual consent of the Town and Owner in writing following the public notice and public hearing procedures required for approval of this Agreement. For the purpose of any amendment to this Agreement, "Owner" shall mean only the Amended and Restated Development Agreement The Confluence Page 5 of 24 • • • • Owner as defined herein and those parties, if any, to whom such signatories have specifically been granted, in writing by Owner, the power to enter into such amendments. 2.4 'Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Standards, Owner and the Town agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Town and Owner otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE III .ZONING, VESTED RIGHTS AND EXACTIONS 3.1 PUD Zoning. The Confluence shall be zoned as a separate PUD as provided in this Agreement and in the Development Standards. 3.2 Development Standards and Phasing. E (a) Development Standards. The Development Standards contained in the PUD Development Plan attached as Exhibit B set forth the guidelines for development of the Confluence and are approved by the Town as the zoning for the Confluence, and indicate, among other things, set back distances, building height limitations, site coverage levels, development densities, allowed uses (both permitted uses by right and those permitted upon special review), parking requirements. and other guidelines and limitations for the development of the Confluence. The Development Standards, as contained in the PUD Development Plan, are part of.the zoning regulations of the Municipal Code and take precedence over other zoning regulations except insofar as the Development Standards are silent. (b) Subsequent Development Approval. Areas requiring a minor modification to roadway aligmnent, building location, or other related changes to the PUD Development Plan, may be approved by the Community Development Director subject to the following criteria: i. Modification is not materially incompatible with adjacent uses unless modification incorporates measures which adequately mitigate impacts to those uses; and ii. Modification is not materially inconsistent with the Development Standards set forth in the PUD Development Plan or the approved Development Agreement; and iii. Modification does not materially alter the intent of the zoning privileges vested herein. • The Commmunity Development Director shall determine whether a modification requested is a minor modification or a major modification. A major modification shall require a formal amendment application and noticed public hearing. The Community Development Amended and Restated Development Agreement The Con uence Page 6 of 24 Director's determination may be appealed to the Planning and Zoning Commission within seven (7) days after the determination is made. 3.3 Vesting of Property Rights. Owner and Town agree that (a) this Agreement and the Development Standards constitute an approved "site-specific development plan" as defined in the Vested Property Rights Statute and Section 17.14.100 of the Municipal Code and as adopted pursuant to the requirements of Section 17.12.020 of the Municipal Code which the Town acknowledges hereby has been approved by proper procedure under the Town's charter and the . Municipal Code, and (b) that Owner as the legal owner of the Confluence shall have vested property rights to undertake and complete development and use of the Confluence as provided in this Agreement and the Development Standards. Pursuant to Section 17.14.050 of the Municipal Code, approval of this Agreement and the Development Standards constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended. 3.4 Property Rights Vested. The rights identified below shall constitute the vested property rights under this Agreement: (a) The right to undertake and complete the development and use of the property within the Confluence in the manner and to the extent set forth in and pursuant to this Agreement and the Development Standards. (b) The Town shall not initiate any zoning or land use action that would have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development and use of the property as set forth in this Agreement or the Development Standards. ions. 3.5 Obligations. (a) Public Transportation. Owner shall, at its sole expense, construct a gondola from the Confluence to the Tarnes/Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola"). . The location and construction of the upper terminal shall be governed by the final plat and shall be so configured and aligned as to provide the most cost effective future connection of the Gondola with the alignment of the Lower Beaver Creek Express lift. Operation of the Gondola shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance and operation of the Gondola. The Town acknowledges and accepts that there are no plans for extension of the Gondola and that the Gondola shall also be governed by a management agreement pursuant to which The Vail Corporation or an associated entity under the control of the owner of Beaver Creek Resort shall manage and operate the Gondola on behalf of the District. (b) Linear Park/Connection to Town Core. Owner shall establish a "Linear Park" (identified as Tract A on the Development Plan and the preliminary plat) along the Eagle River, which park shall remain in its natural state with certain site improvements as determined by Owner, and reasonably approved by the Town. Owner shall also create a combination of pathways and walkways together with associated landscaping; which shall provide public access to the Eagle Amended and Restated Development Agreement The Con Page 7 of 24 • River. The improvements shall conform in all material respects to the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town. Owner shall convey Tract A to the Town by special warranty deed at such time as all public improvements within the Linear Park have been accepted by the Town pursuant to a Subdivision Improvements Agreement but no later than three (3) years after the date of recording of the final plat. The Town agrees that the Linear Park shall be subject to a deed restriction limiting it to public ownership forever in its scenic and open space condition and used solely as a recreation area for the enjoyment of the public, including spectator events, and prohibiting uses and other activities or development inconsistent with this purpose and the residential nature of the adjacent property.. The Town shall agree in such instrument to monitor and police the activities on the Linear Park. The owners and guests of the Confluence shall enjoy a perpetual easement of use and enjoyment of the Linear Park, subject to the foregoing restrictions and the reasonable regulations of the Town. • • (c) Public Plaza/Public Restroorns. Ov gier shall construct a Public Plaza and related Public Restrooms in accordance with the description of such improvements as contained in the PUD Development Plan, as finally approved by the Town, and in accordance with a Subdivision Improvements Agreement entered into between Owner and the Town. The Restrooms shall contain at a minimum a capacity of three persons of each sex. The Public Plaza shall be subject to an easement granted to the Town at the time of recording of the final subdivision plat, for the benefit of the public and shall provide access to the Gondola, Public Restrooms and to connections to the pathways to the Linear Park. Operation of the Public Plaza and Public Restrooms shall be governed by an operational agreement between the Town and the District pursuant to which the Town shall make annual payments to the District toward the costs of maintenance. and operation of the Public Plaza and Public Restrooms. (d) Access Roads. All roadways and associated right-of-way improvements and landscaping as described in the PUD Development Plan, as finally approved by the Town ("Roads"), within the Confluence shall be constructed.by Owner and dedicated to the Town. Owner retains the right to place signage within such rights-of-way with the approval of the Town, as described in Section 3.5(1) below. Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance therewith, the Town shall accept such Roads for maintenance. All such Roads shall be constructed to the standards for roadways, which standards shall be as set forth in the Final Subdivision Plat for the Confluence approved by the Town and as set forth in the Subdivision Improvements Agreement. Owner, the District or a master property owners' association for the Confluence shall have the right to improve such landscaping and/or place signage within rights-of-way from time to time with the Town's consent. (e) Affordable Housing. Owner shall be obligated to the Town in the amount of $846,000 in recognition of its obligation to provide affordable housing, which financial obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to Article V. hereof. (f) Railroad Crossings. The Town has received approval from the Colorado Public Utilities Commission ("PUC") for two at-grade crossings ("the Crossings") over the existing railroad tracks in order to connect the Confluence to the western Town center located (1) at the west end of the Confluence and (2) near the Seasons at Avon building at locations and pursuant to terms Amended and Restated Development Agreement The Conflue e Page 8 of 24 reasonably satisfactory to Owner and the Town (the "Crossings"). The Town shall bear the expense for construction of the Crossing improvements in accordance with the requirements of the PUC and the railroad. The Town shall further be responsible for any future improvements to the Crossings ordered by the PUC. Upon completion of the Crossings, but subject to the right-of-way of the railroad, the same shall become a part of the Town's road system for maintenance purposes. If either or both Crossings are in the future closed or required to be protected by additional warning devices, the Town shall at its sole expense implement any orders entered by the PUC including but not limited to construction of a grade-separated pedestrian crossing at the eastern crossing. Owner shall grant to the Town such rights-of-way for public ingress and egress as are reasonably necessary for the full and convenient use of the Crossings by the public, at such locations and upon such terms as are reasonably agreed upon by the Owner and the Town. (g) Water and Water Rights. (i) The Town's augmentation plan decreed in Water Division No. 5 Case No. 84CW225 allocated 5.52 consumptive acre feet for the development of the Confluence (Avon Station): The allocated consumptive use was based upon the development of 200 Dwelling Units, 10,000 square feet of commercial area and 1.8 acres irrigated area. Water requirements for the Confluence. will be higher than that allocated in the Town's augmentation plan. The difference between the 5.52 consumptive acre-feet and the water requirements for the proposed Confluence development is hereinafter defined as the "Increased Water Requirements." (ii) Owner shall, as a condition of water service for the Increased Water Requirements, dedicate and convey to the Town (or the Town's designee, the Upper Eagle Regional Water Authority ("the Authority") sufficient water rights and water storage rights that can be used to make up the amounts needed to serve the Increased Water Requirements. Any water rights to be dedicated and conveyed shall be subject to the Town's approval and acceptance, provided, however, Eagle Park Reservoir water shall be deemed an acceptable source of dedication water under this Agreement. An agreement for dedication of augmentation water and related water rights shall be entered into prior to the issuance of the first building permit on the Confluence. (iii) As part of the above and subject to the approval of the Colorado Water Conservation Board ("CWCB"), the Parties also will enter into an agreement with the Authority for construction of a gravity pipeline to deliver water from the Avon Wastewater Treatment Plant upstream to a site on the Eagle River near the Raw Water Booster Pump in order to eliminate the need to augment the Owner's diversions Approval of the CWCB shall not be a condition to water service but, if approval is not obtained, Owner shall be obligated to dedicate and convey sufficient additional water rights as are made necessary by reason of such failure of approval. Amended and Restated Development Agreement • 1 ] ,IA-~ The Confluence Page 9 of 24 (h) Hurd Lane Land and Improvements. Street improvements, including landscaping, as indicated in the Subdivision Plans and Subdivision Improvements Agreement at the intersection of Hurd Lane with Avon Road ("the Hurd Lane Improvements") shall be constructed by Owner and completed prior to the time the first certificate of occupancy is issued within the Confluence. The Town shall issue a right-of-way permit for construction of any needed improvements within the Avon Road or Hurd Lane rights-of-way. The Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Town shall accept the Hurd Lane Improvements for maintenance. Owner, the District or a master property owners' association for the Confluence shall have the right to place and maintain landscaping at its expense from time to time at its discretion, subject to the consent approval of the Town. Owner reserves the right to install and maintain resort signage within such rights-of-way with the consent of the Town, as described in Section 3.5(k) below. (i) Amenities Fee. (i) Commencing at the time of a first-time sale and conveyance of a Time- share Interest to a third party purchaser and continuing in perpetuity with respect to such Time- share Interest, the Owner or property owners' association for any Time-share Ownership subdivision within the Confluence ("Association") is obligated to collect from each Time-share Owner and remit to the Town on a semi-annual basis an Amenities Fee in the amount of $28.05 per year per fractional interest, or the equivalent of $28.05 per year per weekly interest if conveyed in some fractional interest other than a one week period. Owner agrees that no Time- share Interest will be conveyed until the Association governing such Time-share Interest is validly organized and in good standing with the Colorado Secretary of State. The provisions for the obligation for each Time-share Owner to pay shall be a covenant running with the land and reflected accordingly on the final subdivision plat and all Association covenants. . The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded Time-share Interests per semiannual period (January-June, calculated as of June 1, and July-December calculated as of December 1), multiplied by an amount equivalent to $28.05 per weekly interest as defined above (or as adjusted by CPI-U, as defined below), divided by 2. • The due dates for the semiannual payments are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2006, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley Amended and Restated Development Agreement The Con e Page 10 of 24 metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI-U"). It shall be the duty of the Association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written demand of the amount due and deliver or mail the same to the office of the delinquent Association. The amount properly determined to be owing shall bear interest from the due date of the remittance at the rate of one and one-half percent per month until paid. (ii) Owner, on behalf of all Associations and to the extent permitted under applicable law, hereby assigns and grants a continuing security interest in each Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Amenities Fee. Upon default of any Association in collection and/or remittance of the Amenities Fee and notice thereof to the Time-share Owners, the Town shall have the right to directly receive common expense assessments and to foreclose the lien therefor. 0) Fee for Fire Station Expansion. Owner shall be obligated to the Town in the amount of $160,000 for reimbursement of the cost of expansion of fire station facilities, which obligation has been considered in the calculation of the financial obligations of the Town to Owner pursuant to Article V hereof. (k) Signage. The Town agrees that Owner shall be permitted to place signage in visible locations within the rights-of-way for Avon Road and Benchmark Road, as well as within the rights-of-way to be created within the Confluence, subject, however, to the Town's approval as to specific locations, dimensions, materials and design, which approval will not be unreasonably withheld if such items do not present a safety concern and the design is approved by the Town's Planning and Zoning Commission as part of a master sign plan. Provided, nothing contained herein shall prevent the Town from removing any signs in-the exercise of its police power. 3.7 No Obligation to Develop. Owner shall have no obligation to develop all or any portion of the Confluence and shall have no liability to the Town or any other party for its failure to develop all or any part of the Confluence. Provided, the obligation of the Town pursuant to Article 5 hereof shall be conditioned upon 1) Owner entering into a 20-year lease or contract for operation of the Hotel, 2) inclusion of a commitment within the project covenants to be recorded by Owner against the Hotel that mandates owners of units within the Hotel, among others, to fund through homeowner assessments at a minimum the operation and maintenance costs of the following: a portion of front desk operations, a swimming pool, ski valet, fitness center and locker rooms, 3) Owner obtaining a building permit for the Hotel and 4) Owner or District entering into a contract for purchase and installation of the Gondola. Amended and Restated Development Agreement .~~D The Conf e Page 1 ] of 24 • • • 18 Compliance with General Regulations. Except as otherwise provided in this Agreement or the PUD Development Plan, the establishment of vested property rights under this Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code, and other Town rules and regulations, except as otherwise provided in this Agreement and the PUD Development Plan) or the application of state or federal regulations, as all of such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement, provided that such newly enacted or amended Town regulations shall not directly or indirectly have the effect. of materially. altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise. adversely and materially affecting any of Owner's rights set forth.in this Agreement or the PUD Development Plan. Owner does not waive its right to oppose the enactment or amendment of any such regulations. ARTICLE IV WATER SERVICES Upon Owner's compliance with Section 3.5(g) hereof, the Town shall cause water service to be provided to the Confluence upon notification of need by Owner as required for the development of the Confluence. Water infrastructure/capital facilities which are necessary for the Town to provide water to the Confluence shall be provided by Owner and/or in accordance with the plans for same included in the PUD Development Plan, as finally approved by the Town. The Owner or the District and the Town shall enter into a Subdivision Improvements Agreement, and upon compliance with the terms thereof, the Owner or the District shall convey the water improvements to the Town by good and sufficient bill of sale, and the Town shall accept such water improvements for maintenance. The Town shall charge water tap fees within the Confluence on a uniform, non-discriminatory basis with other users within the Town. . ARTICLE V SHARING OF PUBLIC AREA COSTS 5.1 Obliyation of the Town. In consideration of the performance by Owner of the public improvement obligations identified in Sections 3.5(a), (b), (c), and (d) under this Agreement, and after deduction for offset of the obligations of Owner contained in Paragraphs 3.5(e) and 0), the Town agrees, to rebate a net amount of $1,557,000 in Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.030 of the Municipal Code on all real property located within the Confluence according to the procedures identified in this. Section 5.1. Commencing on the Effective Date and continuing until the Owner Rebate is paid in full, together with accrued interest, the Town shall account for all Real Estate Transfer Tax revenues received from the imposition of tax pursuant to Section 3.12.03 )0 of the Municipal Code on all real property located within the Confluence ("Confluence RETT"). No less than fifty percent (50%) of the Confluence RETT received, not to exceed a cumulative amount of $1,557,000, shall be deposited and maintained in a separate "Confluence RETT Account". The Confluence RETT Account shall be separately accounted for and shall not be used, pledged or otherwise encumbered except as specifically set forth herein. Provided all the conditions Amended and Restated Development Agreement The Conflue Page 12 of 24 contained in Section 3.7 hereof have been met, amounts deposited into the Confluence RETT Account shall be paid to the Owner within thirty (30) days following the end of the calendar month when collected, plus an additional amount equal to any accrued interest calculated at seven percent (7%) per annum compounded annually on the unpaid balance of such $1,557,000 commencing on the date of issuance of a building permit for the Hotel until paid in full. Following the full payment to Owner of the Owner Rebate, the Town shall receive all Confluence RETT thereafter collected. 5.2 Gondola Operations. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Gondola operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.2 (a) and (b) below. (a) Upon licensure of the Gondola by the Colorado Passenger Tramway Safety Board initial payment shall be due no.later than November 1 of the year in which operations of the Gondola begin and the Hotel receives a temporary certificate of occupancy (TCO) from the Town. (b) Such initial payment shall be in an amount up to fifty percent (50%) of the District's Gondola operating and maintenance budget, but shall not exceed $240,000 in 2005 dollars. On January 1, 2006, and on the first day of each year thereafter, the not-to-exceed amount shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi- annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. (c) The Town agrees to execute an operational agreement or agreements with the District and other political subdivisions, to the extent the District determines such is required under Section 32-1-1004(5), C.R.S., in order to pen-nit the District to establish and operate the Gondola, and to cooperate with and assist the District in obtaining the execution of such intergovernmental agreement by other political subdivisions, as contemplated therein. 5.3 Public Plaza and Restrooms. Owner or the District shall retain ownership of the Public Plaza and Public Restrooms. The public shall enjoy a perpetual easement of use and enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations of Owner or the District, as applicable, acceptable to the Town staff. Pursuant to a separate joint operating agreement between the Town and the District, the Town shall make annual payments to the District for Public Plaza and Restroom operations and maintenance costs pursuant to the terms and amounts as set forth in paragraphs 5.3 (a) and (b) below. (a) Initial payment shall be due no later than November 1 of the year in which operations of the Gondola begin and the Hotel receives a temporary certificate of occupancy (TCO) from the Town. (b) Such initial payment shall be in an amount up to fifty percent (50%) of the District's Public Plaza and Restroom operating and maintenance budget, but shall not exceed $40,000 in 2005 Amended and Restated Development Agreement The Con e Page 13 of 24 dollars. On January 1, 2006, and on the first day of each year thereafter,the not to exceed amounts shall be increased or decreased by the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi-annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. • • 5.4 Reduction in Payments. The not-to-exceed annual payments for Gondola operations and maintenance, as identified in Section 5.1(b) hereof, and the not-to-exceed annual payment for Public Plaza and Restroom operations and maintenance, as identified in Section 5.3(b) hereof, both as adjusted for inflation (the "Payment Obligation"), shall be decreased pro-ratably, on a dollar for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into the Districts subsequent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subsequent to the effective date of this Agreement. The reduction shall be calculated based on the sum total of the amounts arrived at in 5.4(a), (b), (c), and (d) below and at such time as the revenues received by operation of those subparagraphs results in the reduction of the Payment Obligation to zero, the Town shall be relieved permanently of the Payment Obligation. (a) Operating mill rate for the District multiplied by the assessed valuation for the year being levied for each included property not within the District as of the date of this Agreement. (b) Operating mill rate for the District multiplied by the assessed valuation of any new development that has occurred on Lot B subsequent to the date of this agreement. (c) Any additional amounts of operating revenues received from Mountain Vista Metropolitan District pursuant to additional development occurring., within Mountain Vista Metropolitan District subsequent to the date of this Agreement. (d) The Payment Obligation shall also be decreased pro-ratably, on a dollar for dollar basis, to reflect any amounts received or otherwise due to be received subsequent to the date of this Agreement, through the contribution by entities other than the Town and the District by agreement or otherwise, supporting Gondola and/or the Public Plaza and Restrooms. operations and maintenance costs. In the event that any revenues described in this subparagraph 5, when taken together with other revenues received-under-subsections-5.4-(a), (b) and (c), results in the reduction of the Payment Obligation to zero, the Town shall be relieved of the Payment Obligation, but only to the extent and so long as such additional operating revenues remain in place and their receipt is required to reduce the Payment Obligation to zero. 5.5 No Debt or Pecuniary Liability; No Multiple-Fiscal Year Obligation. All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple-fiscal year financial obligation of the Town.within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing the District and acceptable to the Town, it is determined that Amended and Restated Development Agreement The Confl 4of2 Page 14 the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State of Colorado to be subject to annual appropriation without regard to approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 5.6 Public Improvement Fees. (a) The Parties acknowledge and agree that the owner/developer of the Confluence has recorded a covenant ("PIF Covenant") binding on the land requiring the collection of public improvement fees ("PIF") on all sales of real estate occurring within the Confluence. Such PIFs shall be at the same rates and apply to the same transactions as the existing Town RETT imposed under Chapter 3.12 of the Municipal Code, and shall be payable at the same time and have the same exemptions and conditions as the Town RETT. Such PIFs shall be collected pursuant to the rules and procedures set forth in the PIF Covenant upon written notice to the Town from Owner that the Town has not appropr' d all of the funds necessary to pay the @4;~, or the as been determined by a court of competent jurisdiction to be invalid. Any period of time during which the PIT is being collected shall be referred to herein as a "PIF Collection Period." Each such PIF Collon Period shall continue until the earlier of the collection in full of the le Town failed to appropriate or was barred from collecting annually or in the aggregate, or the end of the year before the next succeeding budget year for which the Town gives Owner notice that it has appropriated the 941itek ei 1 for that budget year. (b) During each PIF Collection Period, PIF revenue shall be collected by a collecting agent ("PIF Collecting Agent") appointed by Owner pursuant to the PIF Covenants, and the Parties acknowledge and agree that, so long as the duties of the PIF Collecting Agent are being performed to the reasonable satisfaction of Owner, Owner shall appoint the Town's Finance Director as PIF Collecting Agent as and when necesry. Any amounts of PIF revenue collected in excess of the unappropriated nnually or in the aggregate, shall be paid to the Town by the PIF Collecting Agent within 10 business days of receipt. Public Plaza (c) In-consideration of Owners agreement to construct-the Gondo a, t he and Restrooms, and other public improvements in the Confluence, the Town will grant a RETT credit ("Tax Credit") to purchasers who are subject to and actually pay the PIF to the PIF Collecting Agent during the PIF Collection Period in accordance with the terms and conditions of this Agreement. In order to implement the Town's obligation under this Agreement with respect to the Tax Credit, Town Council will approve an ordinance amending its Municipal Code provisions regarding the RETT Tax within 15 days of the effective date of this Agreement, to provide for and implement the Tax Credit substantially as follows: During each PIF Collection Period, each person or entity otherwise liable to the Town for Town RETT Tax under the Municipal Code with respect to taxable transactions occurring within the Confluence will receive a Tax Credit against such RETT Tax obligation in an amount equal to the amount of the PIF Revenues collected and received by the PIF Collecting Agent. Such Tax Credit will be automatic and will take effect immediately upon the applicable taxpayer's (as refle+ted on the Amended and Restated Development Agreement +0vilit✓'s R t" nce The Confl Page 15 o 10 E • • taxpayer's periodic tax reports to the Town) remittance to and receipt by the PIF Collecting Agent of the PIF revenues; provided, however, that the transactions and payments supporting the Tax Credit for any given period will nevertheless be subject to audit by the Town to the same extent, for the same limitation periods and in the same manner as the items which are required to be reported on the taxpayer's return relating to the period in which the transaction occurs. If Town Council fails to adopt the ordinance contemplated in this subsection 8.C., Owner will be entitled in its sole discretion either to: (i) declare the failure of a condition precedent and terminate this Agreement; or (ii) extend the period for satisfaction of the foregoing contingency to a date certain set forth in a written notice of extension, not to exceed 60 days from the date of the extension notice. • • (d) At the termination of each PIF Collection Period, if there are PIF revenues remaining on deposit with the Owner, Owner shall remit all remaining PIF revenues to the Town for the purpose of the Town satisfying its obligations under this Agreement or, if no further obligations exist at that time, for any lawful purpose. Upon reasonable notice to the other party, the Town will have the right at its own expense to audit Owner's books and records, and CMD will have the right at its own expense to audit the Town's books and records, related to their respective obligations under this Agreement. (e) The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant to or otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time; so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek to reform this Agreement in a manner that will best effect their intent. If a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed to include in the budget proposals for each year sufficient funds to meet the party's obligations under this Agreement. -5.7 -Books and- Records. The Town, the District and any PIF Collecting Agent shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Representatives thereof shall be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. Best efforts shall be used to resolve any issues, discrepancies, or inaccuracies discovered in any review of any entity's books and records. 5.8 Legal Challen eg_to Agreement. In the event any agreement contained herein is ever the subject of a successful legal challenge, the Town shall diligently resist such challenges in cooperation with the Owner and the District as set forth in Section 2.4 above. Amended and Restated Development Agreement The Co uen Page 16 o 4 ARTICLE VI SPECIAL DISTRICTS The Parties agree to take all reasonable action necessary to approve any necessary amendment to the service plan for the District to conform to the financial provisions of this Agreement and to permit the District to carry out any obligations of the Owner delegated to it pursuant to the amended service plan. The Town also agrees to permit the Owner to form qualifying non-profit corporations to undertake obligations of the Owner delegated to them with the consent of the Town, which consent may be withheld by the Town in its sole and absolute discretion. ARTICLE VII DEFAULTS, REMEDIES, AND TERMINATION . 7.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as any of the following, after the applicable cure period described below: (a) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Owner's consent, that materially alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise materially and adversely affects any development, use or other rights of Owner under this Agreement, the PUD Development Plan or the Development Standards; or (b) the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement, including, without limitation, the timely payment of any monetary obligation hereunder. 7.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement following the applicable cure period described below or Owner's failure to fulfill or perform any material obligation of Owner contained in any other agreement between the Town and Owner or Owner's assignee following any applicable cure period contained in that agreement. 7.3 Notices of Default. In the event of a default by either party under this Agreement, the non-defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Section 8.8, and the defaulting party shall have ten thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non- defaulting party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 7.4 Remedies. Amended and Restated Development Agreement The nc Page 17 of 24 • (a) If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. Notwithstanding Section 3.4 or other prohibitions contained herein, in the event of a breach or default by the Owner, the Town may impose a moratorium on zoning or subdivision applications or approvals or withhold issuance of any building permit for property located within the Confluence. (b) The Town acknowledges that since this Agreement and the Development Standards constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute, in the event of a breach or default by the Town, in addition to any of the foregoing remedies, Owner shall be entitled to recover from the Town any damages that should have been specifically available to Owner as contemplated in Colorado Revised Statutes Section 24-68- 105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. 7.5 Arbitration. Any controversy or claim arising out of or relating to this Agreement, including, without limitation, any breach or interpretation hereof, shall be settled by binding arbitration in Eagle County, Colorado, in accordance with the Uniform Arbitration Act, § 13-22-201, C.R.S., et seq. The parties shall each appoint one arbitrator and attempt to select a third arbitrator agreeable to all, but if they are unable to do so within twenty (20) days after a request for arbitration, then such arbitrator may be appointed by any judge of a competent state court having jurisdiction in Eagle County, Colorado, upon application of any party. The arbitrator jointly selected by the parties or appointed by the court must be an attorney who has substantial experience in real estate development. Any such arbitration panel shall have the power to grant any relief, including equitable relief as just and appropriate. Any award in such arbitration shall have the effect of a judgment and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs of arbitration. ARTICLE VIII MISCELLANEOUS 8.1 Applicable Law. Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Owner, and nothing contained in this Agreement shall be construed as making Town and Owner joint venturers or partners. Amended and Restated Development Agreement The Con e Page 18 of 24 8.3 Expenses. Owner will reimburse the Town all third party out-of-pocket costs incurred by the Town directly related to the implementation of this Agreement, including but not limited to legal fees charged by the Town Attorney and outside counsel, but excluding costs arisaing under Section 2.4 above or otherwise relating to any challenge to this Agreement or any provision hereof. The Town agrees to keep Owner generally informed with respect to matters as to which it expects reimbursement from Owner and the anticipated costs related to same. The Town agrees to consult with Owner prior to securing the services of any new consultant or professional for which the Town expects reimbursement. Owner's obligation in that regard shall terminate upon issuance of a final certificate of occupancy for the Hotel; provided, Owner's obligations with respect to the Linear Park, Public Plaza and Public Restrooms shall not terminate until those amenities are conveyed to, or become subject to an easement granted to, the Town. Thereafter, Owner and the Town shall each bear their respective costs and expenses associated with implementing and enforcing the terms of this Agreement 8.4 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 8.5 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. 8.6 Further Assurances. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the frill and complete enjoyment of its rights and privileges under this Agreement. 8.7 Notices. Any notice or communication required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended fecipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having adelivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below: If to Town: Town of Avon P.O. Box 975 Avon, Colorado 81620 Attention: Town Manager Telephone: 970-748-4005 Facsimile: 970-748-4078 Amended and Restated Development Agreement The Con Zn Page 19 of 24 And: John W. Dunn, Esq. P.O Box 7717 Avon, Colorado 81620 Telephone: 970-748-6400 Facsimile: 970-748-8881 If to Owner: Avon Confluence LLC. c/o Chuck Madison P.O. Drawer 2770 100 E. Thomas Place Avon, Colorado 81620 Facsimile: (970) 845-7205 And: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476-7646 Facsimile: (970) 476-7118 Each party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 8.8 Assignment. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto;-provided, the-rights--of-Owner-pursuant-to- Section-5-.-1- to the rebate of RETT revenues, shall be personal to Owner, shall not run with the land and shall not benefit Owner's successors in title. Owner shall have the unilateral right and power to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement (a) to the District, including, without limitation, the obligations set forth herein in Sections 3.5(a), 3.5(b), 3.5(c), 3.5(d), 3.5(h) and roads and utility infrastructure obligations and (b) to an entity or entities formed for the purpose of developing the Confluence which are managed by an affiliate of Owner and comprised of affiliates of Owner and other investment member(s). Further, Owner shall have the right to assign, delegate or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Confluence, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Confluence; provided, however, that the lt*rd Amended and Restated Development Agreement The Con e Page 20 of 24 party assignee fully assumes in writing all obligations of Owner assigned to such party and the Town consents in writing to such third party assignment, which consent will not be unreasonably withheld or delayed in the event that Owner has reasonably demonstrated that the third party assignee has the financial capability to perform the obligations under this Agreement so assigned. Provided, any assumption or transfers by or to the District providing for the express assumption of any of Owner's obligations under this Agreement by the District as permitted herein shall not relieve or release Owner of and from any further obligations under this Agreement with respect to the matter so assumed. The Town's obligations hereunder may not be assigned or delegated without Owner's written consent, and any attempted assignment or delegation by the Town not in compliance herewith shall be null and void. Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance of property within the Confluence. 8.9 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 8.10 Amendments, Waivers and Consents. No amendment or waiver of any provision of this Agreement, nor consent to any departure herefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Any consent required under this Agreement by a party will not be unreasonably withheld or delayed by such party. 8.11 Effect. This Agreement contains all obligations of the Owner with respect to the development of the Confluence and fully replaces the 1998 Agreement as it relates to the Confluence. The 1998 Agreement shall continue to control the obligations of the owners of the properties defined therein as Tract B and Tract C. No failure of the owners of Tract B or Tract C to comply with the requirements of or satisfy the obligations of the 1998 Agreement shall affect the development of the Confluence pursuant to the terms of this Agreement and the owner of the Confluence or the District shall have no responsibility to comply with the requirements of or satisfy the obligations in the 1998 Agreement except as amended and restated in this Agreement. Further, no failure of the owners of the Confluence to comply with the requirements of or satisfy the obligations of this Agreement shall affect the development of Tract B or Tract C. IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as. of.the date first written above. TOWN: TOWN OF AVON, a municipal corporation of the State of CQleradn, Ronald C. Wolfe, Mayor Amended and Restated Development Agreement The Co en Page f 2 • • C' STATE OF COLORADO • ) ss. COUNTY OF° he_ ) Subscribed before me this day of Wolfe as Mayor of Town of Avon, Colorado and Patty McKenny as Town! My commission expires: cvl.L STATE OF COLORADO ) ss. COUNTY OF OWNER: \ C. - :0 G; ~'-oF Cole MY Commission Expires o4/08lm AVON CONFLUENCE LLC. a Deleware limited liability company By* - Its: Su cribed before the this day of 2006, by D'j .0-8 as \j L +Ye~st~1L~ of Avon Confluence ~ility pany.. • ,•;~yA n C;\ expires: •.c e 4. i F" G o P i of coL~~ fL 1y My Commission Expires 0410812006 Amended and Restated Development Agreement c The Conflu e Page 22 0 • . EXHIBIT A (legal description) • • Amended and Restated Development Agreement The Confluence Page 23 of 24 • EXHIBIT B To Amended and Restated Development Agreement (Development Standards) C~-u Q (o~VVICV4 ewe'4) • P-.~ Amended and Restated Development Agreement 4 The Confluence Page 24 of 24 EXHIBIT A A PARCEL OF LAND LOCATED IN THE SOUTH ONE-HALF (1/2) OF THE NORTHWEST ONE-QUARTER (114) OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, EAGLE COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER CORNER OF SAID SECTION 12, TOWNSHP 5 SOUTH, RANGE 82 WEST; THENCE N. 02 DEGREES 08 MINUTES 18 SECONDS W. 595.00 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF THE DENVER AND RIO GRANDE WESTERN RAILROAD AND THE TRUE POINT OF BEGINNING; THENCE N. 65 DEGREES 58 MINUTES 08 SECONDS W. 1762.75 FEET ALONG SAID SOUTH RIGHT OF WAY LINE MORE OR LESS TO A POINT ON THE SOUTH BOUNDARY OF BENCHMARK AT BEAVER CREEK SUBDIVISION, REVISED FINAL PLAT, EAGLE COUNTY, COLORADO, SAID POINT BEING THE SOUTHEAST CORNER OF TRACT "H" OF SAID SUBDIVISION; THENCE S. 89 DEGREES 50 MINUTES 48 SECONDS W. 397.29 FEET ALONG THE SOUTH BOUNDARY OF TRACT "H" OF SAID SUBDIVISION TO A POINT FROM WHICH THE NORTHWEST CORNER OF THE SOUTH ONE-HALF (1/2) OF THE NORTHWEST ONE-QUARTER (1/4) OF SAID SECTION 12 BEARS S. 89 DEGREES 50 MINUTES 48 SECONDS W. 629.76 FEET; THENCE ALONG THE FOLLOWING TEN COURSES OF THE APPROXIMATE CENTERLINE OF THE EAGLE RIVER: 1.) S. 48 DEGREES 46 MINUTES 06 SECONDS E. 132.70 FEET 2.) S. 57 DEGREES 59 MINUTES 37 SECONDS E. 341.00 FEET 3.) S. 50 DEGREES 27 MINUTES 44 SECONDS.E. 455.67 FEET 4.) S. 48 DEGREES 24 MINUTES 11 SECONDS E. 293.81 FEET 5.) S. 44 DEGREES 17 MINUTES 20 SECONDS E. 152.41 FEET 6.) S. 50 DEGREES 47 DEGREES 24 SECONDS E. 154.96 FEET 7.) S. 54 DEGREES 19 MINUTES 56 SECONDS E. 187.29 FEET 8.) S. 82 DEGREES 03 MINUTES 45 SECONDS E. 214.88 FEET 9.) N. 85 DEGREES 23 MINUTES 48 SECONDS E. 162.21 FEET 10.) N. 85 DEGREES 58 MINUTES 54 SECONDS E. 225.41 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY OF THE COLORADO STATE HIGHWAY; THENCE ALONG SAID WESTERLY RIGHT OF WAY ON THE FOLLOWING THREE COURSES: 1.) N. 09 DEGREES 23 MINUTES 26 SECONDS E. 93.73 FEET 2.) N. 42 DEGREES 47 MINUTES 36 SECONDS E. 37.43 FEET 3.) N. 10 DEGREES 32 MINUTES 54 SECONDS E. 54.70 FEET TO A POINT OF CURVE; THENCE CONTINUNING ALONG SAID COLORADO STATE HIGHWAY RIGHT OF WAY 181.09 FEET ALONG THE ARC OF A 1101.84 FOOT RADIUS CURVE TO THE LEFT WHOSE CENTRAL ANGLE IS 09 DEGREES 25 MINUTES 00 SECONDS AND WHOSE LONG CORD BEARS N. 05 DEGREES 50 MINUTES 24 SECONDS E. 180.89 FEET TO THE TRUE POINT OF BEGINNING; TOGETHER WITH EASEMENT AS DESCRIBED IN EASEMENT AGREEMENT RECORDED JULY 30, 1993 IN BOOK 615 AT PAGE 169. EXCEPT THE FOLLOWING 3 PARCELS: V PARCEL 1: A PARCEL OF LAND NO. TK-10 OF THE TOWN OF AVON, STATE OF COLORADO, SITUATED IN THE SE1/4 OF THE NW1/4 OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, MORE. PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION: THENCE N. 00 DEGREES 06 MINUTES 14 SECONDS EAST ALONG THE MERIDIONAL CENTERLINE OF SAID SECTION, A DISTANCE OF 449.22 FEET; THENCE N. 89 DEGREES 53 MINUTES 46 SECONDS WEST A DISTANCE OF 35.59 FEET TO THE POINT OF BEGINNING, SAID POINT ALSO BEING A POINT ON CURVE FROM WHENCE THE RADIUS POINT BEARS N. 81 DEGREES 13 MINUTES 35 SECONDS WEST 1095.90 FEET SAID POINT ALSO BEING ON THE WESTERLY RIGHT OF WAY OF AVON ROAD, AND SAID CURVE NOT BEING TANGENT TO THE PREVIOUSLY DESCRIBED COURSE; THENCE ALONG SAID WESTERLY RIGHT OF WAY THE FOLLOWING THREE COURSES: 1. THENCE ALONG SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 01 DEGREES 49 MINUTES 48 SECONDS, A RADIUS OF 1095.90 FEET, AN ARC LENGTH OF 35.00 FEET; 2. THENCE S. 10 DEGREES 36 MINUTES 13 SECONDS WEST A DISTANCE OF 54.70 FEET; 3. THENCE S. 42 DEGREES 36 MINUTES 43 SECONDS WEST A DISTANCE OF 37.70 FEET; THENCE N. 41 DEGREES 09 MINUTES 04 SECONDS WEST A DISTANCE OF 30. 00 FEET; THENCE N. 11 DEGREES 30 MINUTES 40 SECONDS EAST A DISTANCE OF 86.00 FEET; THENCE N. 78 DEGREES 15 MINUTES 47 SECONDS EAST A DISTANCE OF 45.00 FEET TO THE POINT OF BEGINNING. PARCEL 2: A PARCEL OF LAND NO. PE-10 OF THE TOWN OF AVON, SATE OF COLORADO, SITUATED IN THE SE1/4 OF THE NW1/4 OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION; THENCE N. 00 DEGREES 06 MINUTES 14 SECONDS EAST ALONG THE MERIDIONAL CENTERLINE OF SAID SECTION, A DISTANCE OF 449.22 FEET; THENCE N. 89 DEGREES 53 MINUTES 46 SECONDS WEST A DISTANCE OF 35.59 FEET TO THE POINT OF BEGINNING, SAID POINT ALSO BEING ON THE WESTERLY RIGHT OF WAY OF AVON ROAD; THENCE S. 78 DEGREES 15 MINUTES 47 SECONDS WEST A DISTANCE OF 45.00 FEET; THENCE N. 20 DEGREES 40 MINUTES 24 SECONDS EAST A DISTANCE OF 52.00 FEET; THENCE N. 3 DEGREES 53 MINUTES 04 SECONDS EAST A DISTANCE OF 119.79 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY OF THE DENVER AND RIO GRANDE WESTERN RAILROAD; THENCE S. 65 DEGREES 58 MINUTES 08 SECONDS EAST ALONG SAID SOUTHERLY RIGHT OF WAY, A DISTANCE OF 33.06 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY OF AVON ROAD, SAID POINT ALSO BEING A POINT ON CURVE FROM WHENCE THE RADIUS POINT BEARS N. 88 DEGREES 52 MINUTES 13 SECONDS WEST A DISTANCE OF 1095.90 FEET, SAID CURVE ALSO BEING NOT TANGENT TO THE PREVIOUSLY DESCRIBED COURSE; THENCE ALONG SAID WESTERLY RIGHT OF WAY AND ALONG SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 07 DEGREES 38 MINUTES 38 SECONDS, A RADIUS OF 1095.90 FEET, AN ARC LENGTH OF 146.20 FEET TO THE POINT OF BEGINNING. PARCEL 3: A PARCEL OF LAND NO. TK-10-A OF THE TOWN OF AVON, STATE OF COLORADO, SITUATED IN THE SE1/4 OF NW1/4 OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION; THENCE N. 00 DEGREES 06 MINUTES 14 SECONDS EAST ALONG THE MERIDIONAL CENTERLINE OF SAID SECTION, A DISTANCE OF 333.13 FEET; THENCE N. 89 DEGREES 53 MINUTES 46 SECONDS WEST A DISTANCE OF 76.86 FEET TO THE POINT OF BEGINNING, SAID POINT ALSO BEING ON THE WESTERLY RIGHT OF WAY OF AVON ROAD; THENCE S. 09 DEGREES 28 MINUTES 13 SECONDS WEST ALONG SAID WESTERLY RIGHT OF WAY A .DISTANCE OF 94.50 FEET TO A POINT ON THE CENTERLINE OF THE EAGLE RIVER; THENCE S. 85 DEGREES 58 MINUTES 54 SECONDS WEST ALONG SAID CENTERLINE A DISTANCE OF 28.16 FEET; THENCE N. 11 DEGREES 28 MINUTES 18 SECONDS EAST A DISTANCE OF 120.18 FEET; THENCE S. 41 DEGREES 09 MINUTES 04 SECONDS EAST A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING. REC: llll''~0If iI IIYI 11111 llil 11111 11111 1111! ASSIGNMENT OF AMENDED AND RESTATED DEVELOPMENT AGREEMENT 06/15/2086 This Assignment of Amended and Restated Development Agreement (this "Assignment") is made and entered into this -5 1i ` ` day of 2006, by and between Avon Confluence LLC, a Delaware limited liability company ("Assignor"), and East West Resort Development XIV, L.P., L.L.L.P., a Delaware limited partnership registered as a limited liability limited partnership ("Assignee"). WHEREAS, Assignor (as "Owner") has entered into a certain Amended and Restated Development Agreement with the Town of Avon, a municipal corporation of the State of Colorado (the "Town"), dated 2006 (as amended or otherwise modified from time to time, the "Development . Agreement"), regarding the Confluence Site, Avon, Colorado, as further described therein; WHEREAS, Assignor desires to assign to Assignee all of Assignor's rights and obligations as Owner pursuant to the Development Agreement, and Assignee agrees to the assignment of such rights and the assumption of such obligations; and WHEREAS, pursuant to Section 8.8 of the Development Agreement, Assignor may unilaterally assign its rights and obligations under the Development Agreement to an entity or entities formed for the purpose of developing the Confluence Site, which is managed by an affiliate of Owner and comprised of affiliates of Owner and other investment members, and Assignee is such an entity. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignor hereby assigns and conveys to Assignee all of Assignor's right, title and interest in and to the Development Agreement. Assignor represents to Assignee that Assignor has not previously assigned its right, title and interest in and to the Development Agreement. Assignee hereby accepts such assignment and specifically assumes and agrees to perform timely all of Assignor's obligations under the Development Agreement. Such rights and obligations include, byway of example rather than of limitation, all of Assignor's rights to certain remedies if the Town defaults, and the assumption of all liability in the event Assignee defaults under any provision of the Development Agreement after this Assignment occurs. This Assignment also includes, without limitation, all of Assignor's right, title and interest in the Confluence RETT revenues described in Section 5.1 of the Development Agreement. 2. This Assignment shall be governed under the laws of the State of Colorado, and the parties agree that venue is proper in the.District Court of Eagle County, Colorado. 3. This Assignment maybe executed in counterparts, which when taken together, shall constitute the entire agreement of the parties. E:\Clients\E WPartners\Confluence\Assignment-DevelopmentAgreement.doc EXECUTED, by the parties hereto on the day and the date first above written. ASSIGNOR: AVON CONFLUENCE LLC, a Delaware limited liability company By: EAST WEST RESORT DEVELOPMENT XIV, L.P., L.L.L.P., a Delaware limited partnership registered as a limited liability limited partnership Its: Manager By: HF Holding Corp., a Colorado corporation Its: General Partner By c _ Name: , G P .fir , . Title: . ~ , .4. P, c ASSIGNEE: EAST WEST RESORT DEVELOPMENT XIV, L.P., L.L.L.P., a Delaware limited partnership registered as a limited liability limited partnership By: HF Holding Corp., a Colorado corporation Its: General~tner i y: r`•f~ Name: Fr Title: y , • 0 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) Su cribed before me this , 3 day of ( o-P-C-[\ 2006, by aIVL~S GZ~cL1V~S as -N6~- of HF Holding Corp., a Colorado corporation, General Partner for East West Resort Development XIV, L.P., L.L.L.P., a Delaware limited partnership registered as a limited liability limited partnership, Manager of Avon Confluence LLC, a limi ' ' ' company. y~~ERLE-~~of res: aQ; o..ol c ct~ .o G • : p Notary 1 •9j~ ~B Lo~oPQO My Commission Expires 04/0812006 STATE OF COLORADO ) ) ss. 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