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TC Council Packet 09-25-2012MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL  HELD SEPTEMBER 11, 2012    A regular meeting of the Town of Avon, Colorado was held at the Avon Town Hall, One Lake Street,  Avon, Colorado in the Council Chambers.    Mayor Carroll called the meeting to order at 5:50 PM.  A roll call was taken and Council members  Present were Dave Dantas, Chris Evans, Kristi Ferraro, Todd Goulding, Amy Phillips and Buz Reynolds.   Also present were Town Attorney Eric Heil, Acting Town Manager Patty McKenny, Town Advisor Larry  Brooks, Finance Director Scott Wright, Director PW&T Jenny Strehler, Deputy Town Clerk Catherine  Mythen, as well as other staff members and the public.    APPROVAL OF AGENDA  Mayor Carroll added two items to the Community and Citizen Input as follows:  (A) Melissa Rewold  Thuon, Principal from Avon Elementary School, and (B) Update on the Eagle Valley Land Exchange.    COMMUNITY & CITIZEN INPUT   Melissa Rewold–Thuon, Principal, noted that Avon Elementary school was recognized by the  National Blue Ribbon Schools program as a school of excellence in America.   Scott Turner introduced himself as a candidate running for District Attorney in the fifth Judicial  District.   Jeff Layman introduced himself as running for Eagle County Commissioner in the November  election.   Mayor Carroll gave a brief update on the Eagle Valley Land Exchange noting that the open space  advisory committee met and recommended that the Eagle County Commissioners fund up to $5.3  Million for the land transactions.  He noted that the Town Council would be considering the  approvals of some exchange documents in the near future.     CONSENT AGENDA   a. Minutes from August 28, 2012   Mayor Carroll asked for a motion on item (a) on the Consent Agenda.  Councilor Evans moved to  approve the minutes from August 28 2012; Councilor Reynolds seconded the motion and it passed  unanimously by those present. (Goulding abstained)    b. Agreement to Release Second Deed of Trust and Replace Amended and Restated Promissory Note  with Second and Amended and Restated Promissory Note (Eric Heil, Town Attorney) Revised  paperwork related to Housing Down payment Assistance Program    Mayor Carroll asked for a motion on item (b) on the consent agenda.  Councilor Dantas moved to  approve the Agreement to Release Second Deed of Trust and Replace Amended and Restated  Promissory Note with Second and Amended and Restated Promissory Note; Councilor Phillips seconded  the motion and it passed unanimously by those present.      RECOMMENDATIONS OF PLANNING & ZONING COMMISSION   a. Public Hearing on a Preliminary PUD Application for the Brookside Park PUD (Jared Barnes,  Planner I) Owner Riverview Park Associates application submittal for a request to modify the list  of permitted uses for Lot 1, Brookside Park PUD, to permit up to twenty‐four (24) residential  dwelling units in place of existing office uses.   Regular Council Meeting Page 2 of 4 Minutes 12.09.11 Jared Barnes, Planner I, presented the preliminary PUD application for the Brookside Park PUD. The  applicant requested to modify the list of permitted uses for Lot 1, Brookside Park PUD, to permit up to  twenty‐four (24) residential dwelling units in place of existing office uses.   He gave a brief review on  the application. He noted that the proposed PUD Amendment to allow for potential conversion of the  Brookside Center building from commercial to residential is in compliance with both the intent and  regulations of the Avon Town of Avon Development Code and the Town of Avon Comprehensive Plan.  Frank Navarro,   owner representing Riverview Park Associates, gave a presentation on the preliminary  PUD amendment application.  The review criteria were outlined in the memo and there was some  discussion about “public benefit”; it was noted that the applicant satisfied this criteria with its original  application.  There was some concern from council members about the elimination of the commercial  spaces in the project.  Mayor Carroll opened the public hearing, no comments were heard and the  hearing was closed.      Councilor Reynolds moved to approve the Preliminary PUD Application for the Brookside Park PUD  Councilor Evans seconded and the motion failed.  (Reynolds, Evans, Goulding ‐ yea; Carroll, Ferraro,  Dantas, Phillips ‐ nay).  Further dialogue ensued about public benefit, and several councilors asked the  applicant to address this concern.  Councilor Ferraro moved to continue the public hearing on the  Preliminary PUD Application for the Brookside Park PUD to September 25th, with a request that the  applicant work with town staff to include some public benefits for the project; Councilor Phillips  seconded the motion and it passed with a four to three vote (Carroll, Dantas, Ferraro, Phillip ‐ yea)  (Evans, Reynolds, Dantas ‐‐ nay).    a. Public Hearing on Ordinance No. 12‐10, Series of 2012, First Reading, Ordinance Implementing  Settlement Term Sheet to Resolve Pending Litigation on 2008 CV 385 and 2010 CV 316;  Approving the Consolidated and Restated Annexation and Development Agreement; Approving  an Amendment to Village (at Avon) PUD; Approving Amendments to Chapter 18 of Avon  Municipal Code; and Taking such other Actions as Set Forth Herein to Implement the  Settlement Term Sheet     (The topic for review includes the PUD Guide v16, the Final PUD Application for a Mixed Use Development  known as the Village at Avon related to Implementation of the Settlement Term Sheet dated October 7, 2011  entered into by Town of Avon, BNP Paribas, Traer Creek Metropolitan District, Traer Creek LLC, Traer Creek‐ RP LLC, Traer Creek Plaza LLC, EMD Limited Liability, Traer Creek‐HD LLC and Traer Creek‐WMT LLC)      Eric Heil, Town Attorney, gave a brief overview of the process noting that there would be a  presentation from Town staff, presentation by the applicant, presentation by the school district, some  discussion and then a public hearing.  The following people commented:   Marcus & Michael Lindholm, Traer Creek LLC, spoke on behalf of the project.   Harvey Robertson of RMT Architects, representing the applicant gave a brief presentation on  planning areas A & D.   Brandi Caswell, Faegre Baker Daniels, representing BNP Parribas Bank, introduced Ford Frick with BBC  Research & Consulting who made some comments.   Ford Frick, Managing Director of BBC Research & Consulting, spoke about resort development  economics, and the benefits of development to the community, etc.     Tom Braun, Braun and Associates, representing the Eagle county School District gave a  presentation about the proposed school dedication and future student projections.  There was a  request to wait until a future date to make decisions about school land dedication in light of the  Regular Council Meeting Page 3 of 4 Minutes 12.09.11 district not yet needing land and the fact that there are so many other project issues facing the  town council.      Mayor Carroll opened the Public Hearing and the following comments were heard:    Marcus and Michael Lindholm, developers, noted that they want to continue working with the  neighbors, and that an email was sent to the residents on Hurd Lane addressing the issue regarding  planting trees along the road.   Tamera Underwood, resident, read a letter from Howard Levitt an Avon resident who was not  present.  She also commented on the following topics related to the Staff Reports, PUD Guide, the  Subdivision Code, Master Developer, Commercial Uses, Industrial Uses, and Commercial Density.   Mike Cassioppo, resident, commented on his support of the developer and the project and that the  town needed to settle and commit to the earlier obligations made with the developer.   Bette Todd commented that the process must continue to include the citizens, and that everyone  needs to understand the documents.    Walter Dandy, resident, had concerns with building heights.   Carol Kruger, resident, addressed an email that was sent from Avon residents that was not in favor  of the PUD guide and development of the project as written.   Paul Maloney spoke about some concerns related to the fact that the plan is ambiguous   Kristen Texler, resident, spoke about the need to support settling the disputes.   Mary Bochain, resident, concerned about the lawsuits, and supports development, but need to  understand what business will become part of the project   Neil Masters, resident, spoke about the need to move forward   Roger Wilkensen, resident, concerned about uses and heights   Ron Wolfe, resident, spoke about confusion with the process    The public hearing was closed.  The council members made some comments and reiterated the need to  have a complete package of final documents.  There were some comments related to the need to have  a package that only mirrors the settlement term sheet.  The Mayor thanked the public for its input.   The schedule was also reviewed for the next few meetings.  Councilor Reynolds moved to approve  continuing the Public Hearing on Ordinance No. 12‐10, Series of 2012, First Reading, Ordinance  Implementing Settlement Term Sheet to Resolve Pending Litigation on 2008 CV 385 and 2010 CV 316;  Approving the Consolidated and Restated Annexation and Development Agreement; Approving an  Amendment to Village (at Avon) PUD; Approving Amendments to Chapter 18 of Avon Municipal Code;  and Taking such other Actions as Set Forth Herein to Implement the Settlement Term Sheet to the  September 25th Town Council meeting.  Councilor Phillips seconded the motion and it passed  unanimously.  The public hearing was continued until the next meeting.    Regular Council Meeting Page 4 of 4 Minutes 12.09.11   There being no further business to come before the Council, the regular meeting adjourned at 10:35  PM.           RESPECTFULLY SUBMITTED:        _________________________________        Catherine Mythen, Deputy Town Clerk    APPROVED:  Rich Carroll  ________________________________  Dave Dantas  ________________________________  Chris Evans  ________________________________  Kristi Ferraro  ________________________________  Todd Goulding   ________________________________  Amy Phillips  ________________________________  Albert “Buz” Reynolds ________________________________    1001679.141001679.15 0809/3107/12 CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to time, this “Development Agreement”) is made and entered into as of __________________, 2012 (“Execution Date”) by and among the Parties and the Limited Parties, and with the consent of the Developer Affiliates, BNP and Lenders. RECITALS This Development Agreement is made with reference to the following facts: A. Initially capitalized words and phrases used in this Development Agreement have the meanings set forth in Exhibit G, which definitions are incorporated herein. B. Pursuant to the Original Agreement, the Town and the Original Owners set forth the terms and conditions upon which the land legally described in Exhibit A of the Original Agreement would be annexed into and developed under the jurisdiction of the Town, such legal description having been updated to reflect the Recording of various subdivision plats subsequent to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the “Property”). C. Subsequent to the Original Effective Date, Town Council approved the Service Plans and the formation of TCMD and VMD for the general purposes contemplated by the Original Agreement and more specifically described in the Service Plans. D. Subsequent to the Original Effective Date: (i) the other entities comprising the Original Owner were merged into EMD, which became the sole Original Owner; and (ii) pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in writing, the right to amend the Original Agreement as to all of the Property except Planning Area M as designated in the Original PUD Guide and the Original Agreement (now re-designated Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the right to amend the Original Agreement. E. As of the Effective Date, the current fee owners of the real property comprising the Property are, as their respective interests appear of Record: TC-RP; EMD; TC Plaza; TC-WMT; TC-HD; Alkali Company, a Colorado limited partnership; TCMD; the District Directors; the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation; Buffalo Ridge II LLLP, a Colorado limited liability limited partnership; Eagle River Fire Protection District, a quasi-municipal corporation; Eagle County Health Service District, a quasi-municipal corporation; and Department of Transportation, State of Colorado. F. Other than EMD, each of the Developer Affiliates and other Landowners referred to in Recital E acquired title to the portion of the Property it owns subject to the terms and conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original 2 1001679.14 08/311001679.15 09/07/12 Agreement. None of the conveyances referred to in Recital E were accompanied by a specific written grant of the power to amend the Original Agreement as provided in Section 1.4 of the Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment described in Recital D), no Landowner or other person or entity has been granted any power to consent or object to any amendment of the Original Agreement. As provided in Section 1.4 of the Original Agreement, no person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to execute or acknowledge this Development Agreement as a condition of this Development Agreement being legally effective and binding on all parties to the Original Agreement and all Landowners. G. For ease of administration and in recognition of the fact the ownership of the Property has and will continue to become diverse as the Project develops, the Developer Affiliates have designated Master Developer to act on their behalf for all purposes in connection with this Development Agreement, including but not limited to negotiation and execution of this Development Agreement and any future amendments hereto. H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV 316 (collectively, consolidated as Case No 2008 CV 385, the “Litigation”) and the parties to the Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered into that certain Settlement Term Sheet made and entered into the 7th day of October, 2011, by and between the Town, BNP, TCMD, TCLLC, TC-RP, TC Plaza, EMD, TC-HD LLC and TC-WMT (the “Settlement Term Sheet”). I. In accordance with the terms and conditions of the Settlement Term Sheet, the Parties have entered into this Development Agreement to implement pertinent terms of the Settlement Term Sheet, to effect a full and final settlement of all disputes pertaining to the Original Agreement which were the subject of the Litigation, and to resolve other potential disputes related to development entitlements, interpretation of Original Agreement, equitable allocation of responsibilities and rights, and other matters which are addressed in this Development Agreement and related documents. The Town’s final non-appealable approval of this Development Agreement establishes and implements specific terms and conditions of the Settlement Term Sheet and shall be binding on the Parties hereto and also shall be binding on all parties to the Settlement Term Sheet. J. Various circumstances and changed conditions require mutual execution and approval of this Development Agreement in order to: (i) clarify and implement the intent of the parties to the Original Agreement to promote development of the Property; (ii) amend and restate the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate dismissal of the Litigation with prejudice and minimize the potential for future legal disputes. K. During the period between the Original Effective Date and the Execution Date and in reliance on the revenue sharing and infrastructure financing arrangements established by 3 1001679.14 08/311001679.15 09/07/12 the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer Affiliates have made large investments in Public Improvements located both within the Property and outside of the Property. The foregoing has resulted in: (1) Full satisfaction of the following obligations of TCMD under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) Construction of the Interstate 70 Interchange and the Highway 6 Connector Road as defined in § 4.2 of the Original Agreement; (b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of the Original Agreement, in the amount of $100,000; (c) Construction of the Phase 1 Improvements and the Phase 2 Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement; (d) Construction of the Swift Gulch Road Improvements as defined in § 4.3(c) of the Original Agreement; (e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of the Original Agreement; and (f) Those obligations set forth in § 4.3(j) of the Original Agreement. (2) Partial satisfaction of the following obligation of TCMD under the terms and conditions of the Original Agreement, with performance of the remaining obligations waived pursuant to the Settlement Term Sheet and the provisions establishing such obligation accordingly deleted from this Development Agreement: (a) Payment of nine (9) installments, in the amount of $200,000 each, of the ten (10) such installments comprising the East Avon Exaction as defined in § 4.3(a)(i) of the Original Agreement, the obligation to make the final installment being extinguished by this Development Agreement as contemplated in the Settlement Term Sheet. (3) Full satisfaction of the following obligations of Original Owners under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) The two property conveyances comprising the Public Works Dedication as defined in § 4.3(d) of the Original Agreement; (b) Reimbursement to the Town of those costs required to be reimbursed pursuant to § 4.3(e) of the Original Agreement. L. Continued development of the Project will require substantial additional investments in Public Improvements, and completion of these additional Public Improvements 4 1001679.14 08/311001679.15 09/07/12 will require substantial additional investments by the Districts, the PICs, Master Developer, the Developer Affiliates and/or other Landowners. All such completed and to be constructed Public Improvements will serve the needs of the Project and the Town. Such prior and future investments can be supported only if there are assurances that development of the Project will be permitted to proceed to ultimate completion as contemplated in this Development Agreement and the PUD Guide. M. The Vested Property Rights Statute and the Municipal Code authorize the Town to enter into development agreements which provide for the vesting of property development rights with a term of greater than three (3) years. N. Town Council has determined that granting Vested Property Rights for the duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land use planning process, 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 and development. O. Town Council specifically finds that this Development Agreement provides public benefits including but not limited to the following specific public benefits: (i) development of the Property in accordance with the applicable development standards in the Development Plan and, to the extent not controlled by the Development Plan, the Municipal Code (as amended from time to time); (ii) economic development through construction anticipated to occur in connection with development of the Project; (iii) economic development through the development of various commercial and residential uses that enhance, complement and reinforce the Town’s existing economy, commercial base and ad valorem property tax base; (iv) development of housing to meet the needs of the Avon community; (v) development of significant property within the Town’s municipal boundaries which promotes economies of scale in the provision of public services; and (vi) establishment of a public-private cooperative arrangement that promotes the availability of capital for Public Improvements and promotes the competitiveness and viability of private development within the Town and the Project. P. In exchange for these benefits and the other benefits to the Town contemplated by this Development Agreement, together with the public benefits served by the orderly development of the Property, this Development Agreement and the Vested Property Rights established herein are intended to provide assurance to Master Developer, EMD, the Developer Affiliates, other Landowners, the Districts, lenders providing financing for development of the Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued or to be issued by the Districts that development of the Property pursuant to the terms and conditions of the Development Plan and the Approved SSDPs can occur without impediment or impairment of the Vested Property Rights. Q. The Limited Parties have executed this Development Agreement only for the limited purposes expressly set forth herein and with the express understanding that the Limited Parties shall not be construed to have any rights, duties, obligations or remedies arising under this Development Agreement except to the extent expressly set forth herein with respect to each Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited 5 1001679.14 08/311001679.15 09/07/12 Party shall be strictly limited to those expressly set forth in this Development Agreement as a right, duty, obligation or remedy of such Limited Party. R. Lenders have executed this Development Agreement for the sole purpose of evidencing their respective consent and subordination to the Recording of this Development Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any obligation or acquiring any enforcement right or remedy arising under this Development Agreement. S. BNP, while not a Party, has executed a written consent to this Development Agreement in order to affirm BNP’s approval of the Financing Plan and related matters addressed in this Development Agreement. Additionally, BNP is an Intended Beneficiary with respect to BNP’s right to enforce certain provisions of this Development Agreement, including but not limited to BNP’s right to participate on the AURA board of directors with respect to any urban renewal plans for any portion of the Property. T. As between the Town, AURA, TCMD and VMD, this Development Agreement constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105, and such Parties intend their respective obligations hereunder to be enforceable by specific performance and/or other equitable remedies in addition to any remedies otherwise available at law. U. As between the Town, Master Developer, EMD, Developer Affiliates and other current or future Landowners, this Development Agreement constitutes a development agreement granting Vested Property Rights for a period in excess of three (3) years in accordance with Section 24-68-104(2) of the Vested Property Rights Statute. V. The Parties intend this Development Agreement to amend and restate in its entirety the Original Agreement by consolidating the original document and subsequent amendments thereto into a single document for ease of reference, and additionally by incorporating the amendments necessary and desirable to implement applicable terms and conditions of the Settlement Term Sheet. AGREEMENT NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in this Development Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 Incorporation of Recitals. The Recitals are incorporated into and made substantive provisions of this Development Agreement. 1.2 Effectiveness and Recording of Development Agreement. This Development Agreement shall be effective as of the Effective Date. Any delay or failure to Record this Development Agreement shall not negate or impair the effectiveness of this Development 6 1001679.14 08/311001679.15 09/07/12 Agreement as between the Parties and any other parties having notice of this Development Agreement. The effectiveness and/or Recording of this Development Agreement shall not be construed to negate the effectiveness of any approvals granted by Town Council prior to the Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other Landowner taken in connection with development of the Project prior to the Effective Date. All such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the Settlement Term Sheet shall be construed to be of no further force or effect, its terms and conditions having been incorporated into and implemented by this Development Agreement, the PUD Guide, the Tank Agreement, the TCMD Reissue Documents and/or otherwise performed in full. As of the Effective Date, the obligations of each party to the Original Agreement to any other party to the Original Agreement are expressly discharged, terminated and of no further force or effect except to the extent such obligations are expressly incorporated and set forth in this Development Agreement. 1.3 Covenants. Upon Recording, the provisions of this Development Agreement shall constitute covenants and servitudes that touch, attach to and run with the land comprising the Property and, except as otherwise provided in Section 1.5 with respect to amendments to this Development Agreement, the burdens and benefits of this Development Agreement shall bind and inure to the benefit of all estates and interests in the Property and all successors in interest to the Parties, the Developer Affiliates and any other Landowners as of the Effective Date. 1.4 Vesting Term; Term of Development Agreement. Phased development of the Project as contemplated under this Development Agreement and the Development Plan involves significant acreage and density which will require substantial investment and time to complete. (a) Vesting Term. Due to the size and phasing of the Project, the potential for development of the Project to be affected by economic and financial cycles, the effect of national and statewide markets with regard to retailers, accommodations industry and builders, and the limitation of absorption rates by the local market conditions, the term of the Vested Property Rights established pursuant to Section 2.4 shall continue through and including October 20, 2039 (“Vesting Term”) On October 21, 2039, the Vested Property Rights shall be deemed terminated and of no further force or effect; provided, however, that such termination shall not affect: (i) annexation of the Property to the Town; (ii) any common-law vested rights obtained prior to such termination; (iii) any right arising from Town building permits, development approvals or other zoning entitlements for the Property or the Project which were granted or approved prior to expiration of the Vesting Term; or, (iv) any obligation of a Party under this Development Agreement that has not been fully performed as of the date on which the Vesting Term expires. (b) Term of Development Agreement. Notwithstanding expiration of the Vesting Term, the term of this Development Agreement and the Parties’ obligations hereunder (the “Term ”) shall commence onupon the Effective Date and shall continue in 7 1001679.14 08/311001679.15 09/07/12 full force and effect until the date on which, pursuant to Section 6.1(b), all District Debts have been paid in fullexpire upon the later of: (i) January 2, 2040 (January 1, 2040 being the last date upon which TCMD may issue Supplemental Bonds, notwithstanding that District Debt other than Supplemental Bonds may have been paid in full prior to January 2, 2040); or (ii) such later date upon which payment in full of the District Debts occurs. Upon expiration of the Term, the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit. Notwithstanding the foregoing, the Town may elect to extend the Term of the Agreement in accordance with Section 6.1(d). In no event shall the Term expire before the Town’s obligation to maintain the Tax Credit in effect has terminated as provided in Section 6.1(b). (c) Obligation to Maintain Tax Credit. Without limitation of the foregoing, the Town’s obligation to maintain the Tax Credit in effect pursuant to Sections 4.2(a) and 6.1(b) shall survive expiration of the Vesting Term and shall continue in full force and effect until the conditions set forth in Section 6.1(b) have been fully satisfied. 1.5 Amendment of Development Agreement. This Development Agreement may be amended or terminated only by mutual written consent of the Town, TCMD and Master Developer (but not by their respective successors or assigns or by any non-Party Landowner) following the public notice and public hearing procedures required for approval of this Development Agreement; provided, however: (a) Specific Grant of Amendment Rights. For purposes of this Section 1.5 only, the term “Master Developer” means TCLLC, EMD and those additional parties, if any, to whom TCLLC or EMD has specifically granted, in writing, the power to enter into such amendments. No entity to whom TCLLC or EMD has granted the power to enter into such amendments may further assign or grant such power to another entity except to the extent expressly stated in the grantee’s original grant from TCLLC or EMD. (b) Limited Parties. The written consent of a Limited Party (other than EMD in its capacity as Master Developer, as otherwise set forth in this Section 1.5) shall not be required except to the extent the proposed amendment directly and expressly modifies a provision of this Development Agreement that establishes a right, obligation or remedy of such Limited Party. (c) BNP. The Parties acknowledge that until the obligations under the TCMD Reissue Documents have been fully performed, TCMD’s agreement to any future amendment to the provisions of Article 4, Article 6 or 6.1 of this Development Agreement is subject to BNP’s Paribas’ (or any successor or assignee of BNP Paribas pursuant to Section 8.11) prior written consent. 1.6 Cooperation in Defending Legal Challenges. If, after the Effective Date, any legal or equitable action or other proceeding is commenced by a third party challenging the effectiveness of the ordinance approving this Development Agreement and/or the Development Plan, the effectiveness of this Development Agreement and/or the Development Plan, or the validity of any provision of this Development Agreement and/or the Development Plan, the Parties shall in good faith cooperate in defending such action or proceeding and shall each bear 8 1001679.14 08/311001679.15 09/07/12 their own expenses in connection therewith. Unless the Parties otherwise agree, each Party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. The Parties acknowledge that the obligations of the Town and TCMD pursuant to this Section 1.6 are subject to compliance with the requirements of Section 20 of Article 10 of the Colorado constitution. Accordingly, the Town and TCMD shall in good faith take such steps as may be available to them in response to the filing of any action or proceeding addressed above to set aside, hold and irrevocably pledge adequate present cash reserves to fund the reasonably anticipated costs of defending such action or proceeding; provided, however, if either the Town or TCMD is not in a position to fund from present cash reserves all or any portion of the reasonably anticipated costs of defending such action or proceeding, such Party’s obligation pursuant to this Section 1.6 shall be subject to annual appropriation. 1.7 Role of Master Developer. For the reasons described in Recital G, the Developer Affiliates have designated Master Developer to act on behalf of themselves and their respective successors in interest with respect to and for all purposes of this Development Agreement. The Developer Affiliates may designate a replacement Master Developer from time to time, or may terminate the role of the Master Developer, by delivery of written notice thereof to the Town and to TCMD which is signed by a majority of the Developer Affiliates owning any part of the Property as of the date of such notice. Any replacement Master Developer must be an entity that is a Developer Affiliate. The designation of a replacement Master Developer or termination of the role of Master Developer by the Developer Affiliates shall not require an amendment to this Development Agreement and shall not require the consent of the Town, TCMD or BNP. 1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries. (a) Limited Parties. As more particularly described in Recital Q, each Limited Party is executing this Development Agreement solely with respect to a limited obligation of such Limited Party. With respect to each Limited Party, such obligations, rights and remedies are expressly limited as follows: (i) AURA. AURA’s obligations arising under this Development Agreement are limited to those set forth in Section 4.3. AURA’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(i). (ii) EMD. EMD’s obligations arising under this Development AgreementsAgreement are limited to those set forth in Section 5.4. EMD’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(ii). (iii) The Commercial PIC. The Commercial PIC’s obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Commercial PIC’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iii). (iv) The Mixed Use PIC. The Mixed-Use PIC’s obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Mixed-Use PIC’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iv). 9 1001679.14 08/311001679.15 09/07/12 (b) Intended Beneficiaries. Except to the extent an Intended Beneficiary undertakes obligations as an Applicant in connection with the development of a Site and/or execution of a Public Improvement Agreement as provided in this Development Agreement, no Intended Beneficiary is subject to any obligation arising solely under this Development Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set forth in Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy arising solely under this Development Agreement. ARTICLE 2 ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS 2.1 Annexation. Annexation of the Property was accomplished in accordance with the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31-12-101, et seq.) as in effect in 1998. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies annexation of the Property. 2.2 PUD Zoning. Planned unit development (PUD) zoning of the Property was accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the PUD zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each formal amendment to the PUD Guide and/or PUD Master Plan accomplished prior to the Effective Date, and ratifies all development that has occurred within the Property pursuant to the Original PUD Guide. Concurrently with Recording of this Development Agreement, the Parties caused Recording of the PUD Guide. Accordingly, the Property is zoned PUD pursuant to and as set forth in the PUD Guide. [Notwithstanding expiration of the Vesting Term or expiration of the Term, the PUD Guide shall continue to be the effective zoning of the Property and the effective development standards for the Property unless and until amended in accordance with applicable law, rules, regulations and procedures; provided, however, the Property shall then be subject to all general powers and authority of the Town concerning zoning, rezoning, planned unit development, subdivision, land use regulation, building regulation and other general regulation of the Town to the extent not in conflict with any express terms of the Development Plan including, but not limited to, applicable rules, regulations and procedures regarding amendment of the PUD Guide. . Note: Bracketed, italicized language is not an STS matter and is not in the Original Agreement. Developers are willing to consider the Town’s request for inclusion of this language subject to satisfactory resolution of other open issues. EH is expected to propose additional language.] 2.3 Vesting of Property Rights. The Original Agreement and the Original PUD Guide were Site Specific Development Plans with respect to which the Town granted Vested Property Rights for a term of thirty-five (35) years from the Original Effective Date. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the Vested Property Rights established by the Original Agreement and, as described in Section 1.4(a), extends the term of such Vested Property Rights (including with respect to future amendments to any such Site Specific Development Plan) through and including October 20, 2039. 10 1001679.14 08/311001679.15 09/07/12 Approval of the Development Plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter 16, of the Avon Municipal Code as amended. 2.4 Property Rights Vested. The rights identified below (collectively, the “Vested Property Rights”) are expressly ratified, granted and approved by Town Council: (a) The right to develop, plan and engage in land uses within the Property and the Project in the manner and to the extent set forth in and pursuant to the Development Plan and other Approved SSDP (if any). (b) The right to develop, plan and engage in land uses within the Property and the Project in accordance with the densities, physical development standards and other physical parameters set forth in the PUD Guide and other Approved SSDP (if any). (c) The right to develop the Project in the order, at the rate and at the time as the applicable Developer determines appropriate given market conditions and other factors, subject to the terms and conditions of the Development Plan and other Approved SSDP (if any). (d) The right to develop and complete the development of the Project including, without limitation, the right: (i) to receive all Town approvals necessary for the development of the Project which comply with applicable standards and criteria for review; (ii) the right to Town approvals with conditions, standards and dedications which are no more onerous than those imposed by the Town upon other developers in the Town on a uniform, non-discriminatory and consistent basis, and subject only to the exactions and requirements set forth in the Development Plan and other Approved SSDPs (if any); and (iii) that such conditions, standards and dedications shall not directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer’s, EMD’s, Developer Affiliates’ or any other Landowner’s rights set forth in the Development Plan or other approved SSDP (if any). (e) The right to prevent (by mandamus, mandatory or prohibitory injunction or other form of legal or equitable remedy) the application to the Property or the Project of any Town or citizen initiated zoning, land use or other legal or administrative action that would directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer’s, EMD’s, Developer Affiliates’ or any other Landowner’s rights set forth in the Development Plan and/or other Approved SSDP (if any). Section 7.1 of the Town’s Charter precludes citizen-initiated measures regarding certain matters, including the zoning or rezoning of property. In accordance with Section 7.1 of the Town’s Charter, no initiated measure shall be permitted that would have the effect of modifying or negating the Town ordinance by which Town Council approved implementation of the Settlement Term Sheet, or any instrument implementing the Settlement Term Sheet as approved in such Town ordinance, including but not limited to the Development Plan. 11 1001679.14 08/311001679.15 09/07/12 (f) Notwithstanding any additional or contrary provision of the Municipal Code (as in effect on the Effective Date or as amended from time to time), the Vesting Term with respect to the Development Plan and other Approved SSDPs (if any) shall not expire, be deemed forfeited, or otherwise limited or impaired prior to October 21, 2039. For the avoidance of doubt and notwithstanding any contrary provision of the Municipal Code (as in effect on the Effective Date or as amended from time to time), the scope of Vested Property Rights established by this Development Plan specifically includes the right that all amendments to the Development Plan or other Approved SSDP (if any) approved by the Town shall be and remain vested through and including October 20, 2039, and includes the right to retain and enjoy the remaining period of the Vesting Term for any amendment to the Development Plan or other Approved SSDP (if any). Accordingly, Town Council (or other final decision-maker of the Town) shall not condition approval of any future amendment to the Development Plan or other Approved SSDP (if any) on, nor shall Town Council (or other final decision-maker of the Town) make any such approval subject to the Applicant’s, Landowner’s or Master Developer’s consent to, a reduction of the then-remaining Vesting Term. 2.5 No Obligation to Develop. (a) Master Developer; Other Landowners. Neither Master Developer, EMD nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of the Project, nor shall Master Developer, EMD or any Landowner have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Project. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. Neither Master Developer, EMD nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of any such phase, notwithstanding the development or non-development of any other phase, and neither Master Developer, EMD nor any Landowner shall have any liability to the Town or any other party arising under this Development Agreement for not developing all or any portion of any such phase of the Project. (b) Districts. The Districts’ Service Plans establish the scope of the Districts’ authorized activities and shall not be construed to constitute an obligation of the Districts to cause the development of any particular Public Improvements, or to provide any particular services or to perform any other function for which the Districts have authorization, nor shall such Service Plans be construed to create any obligation of Master Developer, EMD or any Landowner to provide any Public Improvements, any services or to otherwise pay any monies or perform any actions on behalf of or for the benefit of the Districts. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements, nor shall any District have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Public Improvements. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements pertinent to any such phase, notwithstanding the development or non-development of any Public Improvements for any other phase, and no District shall have any liability to the Town or any other party arising under this Development Agreement for not 12 1001679.14 08/311001679.15 09/07/12 developing all or any portion of the Public Improvements pertinent to any such phase of the Project. The foregoing shall not be construed to relieve any District of any obligation established pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a District as contemplated in Section 3.3(a). (c) Construction and Interpretation. For purposes of this Section 2.5 references to Master Developer, EMD, Landowners and the Districts shall be construed to include their respective employees, agents, members, officers, directors, shareholders, consultants, advisors, successors, assigns and similar individuals or entities. 2.6 Compliance with General Regulations. Except as otherwise provided in the Development Plan, the establishment of Vested Property Rights under this Development Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town ordinances and regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Effective Date or as amended from time to time), and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations existed on the Effective Date or may be enacted or amended after the Effective Date; provided, however, that in construing the effect of the foregoing together with the other provisions of this Article 2, Town ordinances and regulations newly enacted or amended after the Original Effective Date shall not be applied within the Property without Master Developer’s and the applicable Landowner’s prior written consent to the extent such application would directly or indirectly have the effect of adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any Landowner’s Vested Property Rights. No Landowner shall be deemed to have waived its right to oppose the enactment or amendment of any such ordinances and regulations. ARTICLE 3 PUBLIC IMPROVEMENTS; DEVELOPMENT STANDARDS; EXACTIONS 3.1 Permitted Uses/Design Standards. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, design standards, road profiles and sections, provisions for reservation or dedication of land for public purposes, the general location of roads and trails, the ability of an Applicant to relocate roads, trails and improvements, and other terms and conditions of development applicable to the Property and the Project shall be those set forth in the PUD Guide and in this Development Agreement. 3.2 Design Review. As contemplated by the Original Agreement and as more particularly described in the PUD Guide, the Design Review Board has been established (and, as required by the Original Agreement, includes a member designated by the Town’s Planning and Zoning Commission), the Design Covenant has been Recorded and the Design Review Guidelines have been promulgated. The Design Covenant shall govern matters related to use and development of all or any part of the Property. Where any conflict between the Design Review Covenant and the Development Plan may occur, the most restrictive provision shall govern. The Design Review Board shall refer to the Town’s Planning and Zoning Commission, for comment only and not for approval or disapproval: (i) all development proposals submitted to the Design Review Board for portions of the Property located south of Interstate 70 and all 13 1001679.14 08/311001679.15 09/07/12 portions of the Property located north of Interstate 70 other than Planning Areas K and RMF-1 (with respect to which the Design Review Board shall have no obligation to refer to the Town’s Planning and Zoning Commission); and (ii) any revisions to the Design Review Guidelines that are proposed after the Effective Date. At Master Developer’s option, one or more separate design review board(s) may be established with respect to such Planning Areas RMF-1 and K. Such design review board(s) shall not be required to include any Town official as a member. 3.3 Allocation of Public Improvement Obligations. Except as otherwise expressly set forth in this Development Agreement, the timing of the design, construction and financing of the Public Improvements, as well as the designation of the specific entity responsible for such design, construction and financing, will be addressed in the applicable Public Improvement Agreement(s) as development of the Project takes place in conjunction with the processing of the applicable Development Application (which may or may not be a subdivision application). The Public Improvement obligations described in this Development Agreement are intended to be allocated among, as applicable, the Districts, Master Developer, a Developer and/or an Applicant based on the relationship between the particular Public Improvement(s), the Site owned by the particular Developer and/or Applicant, and the nature of the development occurring on the Site. This Development Agreement does not specifically allocate such Public Improvement obligations, it being the Parties’ intent that the allocation will be set forth in a Public Improvement Agreement executed in connection with the processing and approval of the applicable Development Application. Public Improvements for which a District does not undertake to finance the design, construction, maintenance and operation shall be undertaken by the applicable Developer and/or Applicant. All such Public Improvements, whether undertaken by a District or undertaken by a Developer and/or Applicant, shall be undertaken and provided in accordance with the terms and conditions of the applicable Public Improvement Agreement executed in connection with approval of the pertinent Development Application. (a) Role of Districts. Subject to the availability of funds therefor, District board of directors authorization, the terms and conditions of this Development Agreement, the Districts’ respective Service Plans and state law, and in consideration of the Town’s performance of its obligations under this Development Agreement (specifically including but not limited to the Financing Plan), the Districts may from time to time (without obligation to do so arising under this Development Agreement) undertake to finance the design, construction, maintenance and operation, as applicable, of the Public Improvements as and when reasonably needed to support development of the Project. References to Master Developer, EMD, Developer Affiliates, Developers, Landowners or Applicants in the context of the Public Improvement obligations addressed in this Development Agreement will be construed to mean and include by reference the applicable Districts to the extent particular Districts have undertaken such obligations pursuant to the terms of a Public Improvement Agreement as contemplated in this Development Agreement. This Development Agreement will not be construed as creating an implied obligation for the Districts to finance or construct any particular Public Improvements prior to such District’s execution of a Public Improvement Agreement pursuant to which the applicable District undertakes specific obligations regarding specific Public Improvements. Any obligation undertaken by a District pursuant to this Section 3.3 shall not be construed to constitute a multiple fiscal year obligation of such District, but shall be subject to annual budget and appropriation unless otherwise agreed to in writing by such District. 14 1001679.14 08/311001679.15 09/07/12 (b) Assurance of Completion. The Applicant for any Development Application submitted after the Effective Date will provide an improvement guarantee assuring completion of the Public Improvements as required by the Municipal Code as then in effect (to the extent not inconsistent with an express provision of this Development Agreement or the PUD Guide), and as more particularly described in the applicable Public Improvement Agreement to be executed in connection with future Development Application approvals. If all or any portion of the Public Improvements required pursuant to a Public Improvement Agreement are being constructed by or for a District, and notwithstanding any provision of the Municipal Code (as in effect on the Effective Date or as amended from time to time) to the contrary, the Town will accept for the assurance of completion under such Public Improvement Agreement the District’s budgeted and appropriated present cash reserves designated specifically for such purpose (whether to be completed in the current or any future fiscal year) in accordance with terms and conditions to be set forth in the applicable Public Improvement Agreement. (c) Warranty Period. All Public Improvements Dedicated to and Accepted by the Town shall be subject to a two (2) year Preliminary Acceptance warranty period (or any shorter warranty period that may be set forth in the Municipal Code as in effect from time to time), and otherwise shall be subject to the procedures for Town Acceptance as set forth in the Municipal Code (as amended from time to time) to the extent not in conflict with the terms and conditions set forth in the definitions of Preliminary Acceptance, Final Acceptance or Acceptance contained in Exhibit G. 3.4 Public Roads and Access. (a) General. Access, ingress and egress to, from and within the Project shall be provided as generally described in the Development Plan. As generally described in Recital K, prior to the Execution Date TCMD has fully performed all road construction obligations specifically required pursuant to the Original Agreement. The PUD Master Plan graphically depicts the alignments of existing permanent roads, the alignments of existing temporary roads, and potential conceptual alignments of some future roads. Subject to the availability of District Revenues not pledged or otherwise encumbered by the obligations of the Districts as set forth herein or under any debt instruments contemplated herein, one or more of the Districts may (as contemplated by and subject to the conditions described in Section 3.3(a)) undertake to finance and/or construct the public roads within the Project. All public roads, whether constructed by or on behalf of a District or a Developer, shall be constructed in accordance with the standards set forth in the PUD Guide and shall be Dedicated to and Accepted by the Town in accordance with clause (b) below. Nothing set forth in the preceding sentence shall prohibit or limit a Landowner’s right to construct and maintain private roads, or to construct and Dedicate public roads to the Town or to a District (subject to the availability of sufficient District Revenues to maintain such public roads). (b) Dedication; Acceptance and Maintenance of Public Roads and Rights-of- Way . Subject to the specific terms and conditions set forth in Article 4 and Article 6: [Note: Town wants its Code to apply regarding dedication of future rights of way. This is under discussion and pending proposed language from EH] 15 1001679.14 08/311001679.15 09/07/12 (i) Existing Public Roads. Contemporaneously with the Effective Date, TCMD conveyed to the Town all of TCMD’s right, title and interest in and to the existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder Avenue), together with the road improvements, streetscape improvements, landscape improvements and drainage improvements located within such rights-of-way. The Town granted Final Acceptance of all such roadways and related improvements for maintenance without reservation or condition, whether related to warranty periods or otherwise, and released all warranty collateral related thereto. [Note: Need to track this and assure it occurs.] (ii) Main Street. As of the Effective Date, the temporary alignment and road surface of East Beaver Creek Boulevard within Lot 1 (redesignated in the PUD Guide as Main Street) is located within the easement established by the Easements with Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8, 2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as each pertinent phase of the final alignment thereof is completed as more specificall y set forth in the PUD Guide. Dedication of each phase of the permanent alignment of Main Street shall be accomplished pursuant to clause (iii) below. During the period prior to Dedication of each phase of the permanent alignment of Main Street, the Town is and shall remain responsible for snow removal, road maintenance, streetscape maintenance and landscape maintenance within the current East Beaver Creek Boulevard easement (it being acknowledged that no streetscape or landscape improvements are located therein as of the Effective Date, but that the Town shall maintain such improvements, if any, that may be installed after the Effective Date); provided, however, asphalt overlays shall not be required prior to Dedication and, as set forth in Section 4.2(d), the Town shall undertake responsibility for asphalt overlays only after Dedication. From and after Dedication of each phase of the permanent alignment of East Beaver Creek Boulevard/Main Street, the terms and conditions of clause (iii) below shall apply to such Dedicated phase. (iii) Future Public Roads and Right-of-Ways . Future public road rights-of-way and improvements located therein (including future phases of the permanent alignment of Main Street) shall be Dedicated to the Town by special warranty deed in the form attached as Exhibit B of this Development Agreement upon generally the same terms and conditions as the conveyances referenced in clause (i) above. Concurrently with the Dedication, the Town shall grant Preliminary Acceptance of the pertinent property interests and Public Improvements. Upon expiration of the warranty period and resolution of any warranty matters that might arise during the Preliminary Acceptance period, the Town shall grant Final Acceptance. With respect to the primary road providing access to Planning Area K, the Town and Master Developer acknowledge it is intended that the road will be a public road from the Post Boulevard roundabout located north of Interstate 70 to a point approximately adjacent to the northwest corner of Lot 73 as indicated on the PUD Master Plan in effect as of the Effective Date, and will be a private road from that point through the remaining area of Planning Area K. The final point of demarcation will be established at the timing of final subdivision plat. The Town shall have no maintenance or snow removal responsibility for the portion of such road that is private. 16 1001679.14 08/311001679.15 09/07/12 (iv) Sidewalk Snow Removal. The Town’s obligation pursuant to this Development Agreement to remove snow from sidewalks shall be limited to Post Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment existing as of the Effective Date and the future final Main Street alignment), Swift Gulch Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along public roads shall be in accordance with generally applicable standards set forth the Municipal Code (as amended from time to time) and applied uniformly throughout the Town. (c) Phased Road Improvements. All roads, including Main Street and East Beaver Creek Boulevard (as such roads are identified on the PUD Master Plan), may be developed in phases in accordance with the road standards set forth in Exhibit F of the PUD Guide and as warranted based on the applicable traffic study. Without limiting the generality of the foregoing, construction of the final alignment of Main Street shall consist of converting the existing alignment and road surface from temporary to permanent by the phased construction thereof in accordance with the road standards set forth in Exhibit F of the PUD Guide. 3.5 Municipal Water; Water Rights Dedications. Pursuant to and as more particularly described in the Tank Agreement: (i) TCMD has conveyed to the Town, and the Town has thereafter conveyed to the Authority, certain water rights that are specifically allocated to serve development within the Property and the Project, including those water rights decreed in Case No. 97CW306 (together with additional water rights, if any, Dedicated to the Town or to the Authority for such purposes after the Effective Date pursuant to Section 3.5(b), the “Water Rights”); (ii) the Water Rights conveyed to the Authority as of the Effective Date equate to 180.6 acre feet of consumptive use as set forth in Case No. 97CW306; and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide that number of single family equivalents (SFE) of water service to the Project which is equivalent to 180.6 acre feet of consumptive use (as of the Effective Date, estimated to be approximately 2,800 SFE, more or less). Additionally, the Tank Agreement provides that the Town has certain obligations with respect to providing municipal water service to the Project under circumstances where the Authority fails to provide such services due to dissolution or otherwise. The Water Rights that have been conveyed to the Authority as of the Effective Date are irrevocably allocated for use within the Property, and may not be re-allocated to serve development outside of the Property without the prior written consent of BNP (for so long as so long as there are outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds), Master Developer and TCMD. Accordingly: [Note: This Section is subject to final review by TCMD’s water counsel. Also, Town Council members and EH had comments/questions regarding the basis and timing of allocation of water rights, having water tied to the property, etc., with objective being that any property that is conveyed to have adequate water rights to support anticipated development. Further note that water allocation/tracking is not a requirement of the STS, nor is it carried forward from the Original Agreement. Therefore, it is unclear whether it should be eliminated based on Town Council’s general direction to eliminate matters not literally required by the STS. For purposes of this submittal, most of this Section has been removed pending further discussion with and direction from the Town.] 17 1001679.14 08/311001679.15 09/07/12 (a) Water Bank. Master Developer and the Town shall establish and jointly maintain a cumulative written record (the “Water Bank”) that documents: (i) the total Water Rights; (ii) the specific allocations of Water Rights to particular Sites; and (iii) the Water Rights remaining available to be allocated for use within the Property. In connection with each final subdivision plat for a Site (whether processed administratively or formally) or building permit (if no Water Rights, or insufficient Water Rights, have previously been allocated for such Site), and subject to Subsection 3.5(c), Master Developer shall designate the portion of Water Rights that is allocated for development of the Site, and concurrently with approval of the final subdivision plat (or issuance of the pertinent building permit(s)) the Water Bank shall be updated to reflect such allocation and to reflect the corresponding reduction in the Water Rights available for use within the Property. The amount of water rights required to service development shall be based on consumptive use of the particular Site as determined in accordance with the generally applicable rules and regulations of the Town and the Authority, as modified by the Tank Agreement if applicable. (b) Return of Water Rights to Water Bank. If the amount of Water Rights allocated for any particular Site exceeds the amount of Water Rights actually required to serve the Site based upon actual development and final build-out thereof (such actual Water Rights demand to be determined in accordance with applicable requirements of the Authority), the excess and unused Water Rights shall be returned to the Water Bank and the Water Bank shall be revised to reflect that such excess and unused Water Rights are available for allocation and no longer allocated to the original Site. Excess and unused Water Rights returned to the Water Bank shall be available for allocation in accordance with Section 3.5(a) as though such Water Rights previously had not been allocated from the Water Bank to serve a particular Site. (c) Additional Water Rights. (i) For the Property. Full build-out of the Project as contemplated by the Development Plan may require in excess of 180.6 acre feet of consumptive use. If the aggregate total Water Rights is insufficient to support full development of the Project in accordance with the PUD Guide and all available Water Rights have been allocated to Sites (whether developed or undeveloped) such that there are no Water Rights remaining in the Water Bank, no further development may occur within the Property unless and until, with respect to the Water Rights required to support such further development: (A) additional water rights are Dedicated and added to the Water Rights available for allocation pursuant to the Water Bank; or (B) payment is made of fees in lieu of additional water rights Dedication; or (C) previously allocated but unused Water Rights are re-allocated from the original Site and returned to the Water Bank in accordance with Section 3.5(b). (ii) For a Specific Site. If the Water Rights allocated to a Site in connection with a Development Application are not sufficient to serve the level of development proposed in the Development Application, the Applicant shall cause either the Dedication of such additional water rights or payment of such fees-in- lieu of water rights Dedication as may be required to fully satisfy the Water Rights requirement for the Development Application. Under such circumstances, 18 1001679.14 08/311001679.15 09/07/12 the additional water rights Dedication or payment of fees-in-lieu shall be a condition precedent to, as applicable, issuance of the building permit or Recording of the final subdivision plat. (iii) Under the circumstances addressed in the foregoing clause (i) and clause (ii), which provisions shall be strictly construed against precluding development, the Town shall have no obligation to Record a final subdivision plat or issue a building permit with respect to a particular Site unless the requisite additional Water Rights obligation is satisfied in accordance with this Section 3.5(c). The determination of whether Dedication of additional water rights or payment of fees in lieu shall be in accordance with generally applicable rules and regulations of the Authority and the Town. Dedications of water rights, if required, shall be made in accordance with generally applicable Town rules, regulations and agreements with the Authority as in effect from time to time, it being acknowledged that the Town’s generally applicable rules, regulations and agreements with the Authority in effect as of the Effective Date require Dedication to the Town and conveyance of such water rights by the Town to the Authority. (d) Building Permits; Moratoria. The Town shall not withhold issuance of building permits, certificates of occupancy or processing/approval of Development Applications, nor shall the Town impose or enforce any moratorium on development within the Project, on the basis of insufficient Dedication of Water Rights for development which does not exceed the consumptive use of the Water Rights that have been Dedicated at such time; provided, however, that: (i) allocation of Water Rights shall be tracked in the manner set forth in Sections 3.5(a) and 3.5(b); and (ii) issuance of building permits and Recording of final subdivision plats may be withheld or conditioned in accordance with the express terms and conditions of Section 3.5(c). (e) Additional Water Tanks. If TCMD, any Applicant or any other party undertakes to construct one or more water storage tanks at an elevation higher than the water storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any contrary provision of the Municipal Code (as in effect on the Effective Date or as amended from time to time), the Town shall not require the Applicant to seek a 1041 permit and shall not require the tank site to be a legally subdivided parcel (provided the owner of the water storage tank has an easement for the operation and maintenance thereof, and further provided that the Town may require the tank site easement area to be platted at such time as the lot(s) or tract(s) adjacent to the tank site is platted). If construction of any such water storage tank is undertaken independent and in advance of development of the portion of the property to be served by the water storage tank, the Town shall not require execution of a Public Improvement Agreement or monetary collateral (cash escrow, letter of credit or similar mechanism) for assurance of completion of the water storage tank; provided, however, that the Town may require a bond for the purpose of ensuring erosion control, mitigation of safety hazards, fencing and other matters related to properly securing the site if construction is discontinued indefinitely prior to completion. If construction of any such water storage tank is undertaken as a condition of approval of a Development Application for development of a Site with respect to which service will be required to be provided from the to be constructed water storage tank, the Town may require construction of the water storage tank and assurance of completion thereof pursuant to the terms 19 1001679.14 08/311001679.15 09/07/12 and conditions of a Public Improvement Agreement as otherwise provided in this Development Agreement. The Town shall have no obligation to issue a temporary or final certificate of occupancy for a habitable structure within any Site with respect to which water service cannot be provided without such water storage tank becoming operational until such time as the pertinent water storage tank becomes operational. The foregoing shall not preclude the Town from issuing a building permit prior to completion of such a water storage tank if the Town determines such action to be consistent with public health, safety and welfare under circumstances then pertaining (for example, the water storage tank is reasonably anticipated to be operational prior to completion of the improvements for which the building permit is issued and the issuance of the building permit is conditioned on the water storage tank becoming operational prior to issuance of a temporary or permanent certificate of occupancy). [Note: This provision implements STS Schedule 3 obligations that “new 1041 regulations” will not apply.] (f) Tap Fees. The Town expressly disclaims any right, title or interest in or to any tap fees payable in connection with development within the Property, and acknowledges that all such tap fees constitute District Revenues and are the property of, and shall be due and payable to, TCMD. The Town shall remit monthly to TCMD 100% of all water tap fees collected by the Town with respect to providing water service to any user of the Property. Alternatively, the Town may direct that all such users remit water tap fees directly to TCMD. [Note: Town Council and EH raised questions regarding the tap fee arrangement. It is carried forward from the Original Agreement and is consistent with other existing water agreements. EH is expected to provide proposed language.] (g) Town Obligations Upon Assuming Authority Obligations. If the Town undertakes to provide water service to the Property in connection with dissolution of the Authority or otherwise, the Town shall charge water tap fees (subject to Section 3.5(f)) and usage charges to users within the Property on a uniform, non-discriminatory basis with other users within the Town. [See above comment to clause (f).] 3.6 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary sewer service to the Project. The topography of Planning Area K, the size of the lots contained in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and from the facilities of the Sanitation District, together with the comparative ease of servicing Planning Area K with individual septic tank and leach field systems, render all or designated areas within Planning Area K appropriate for exclusion from the Sanitation District. Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all or any part of Planning Area K, whether initiated by Master Developer or the Developer of such portion of Planning Area K. [Note: Town Council members questioned this provision. It is carried forward from the Original Agreement.] 3.7 Drainage Plans; Stormwater Management. Drainage plans and stormwater management plans required in connection with the processing of any Development Application shall be in accordance with the terms and conditions of the PUD Guide. 3.8 Land Dedications. As generally described in Recital K, prior to the Execution Date the pertinent Landowner fully performed certain land Dedication obligations specifically required to be performed pursuant to the Original Agreement, and all such Dedications shall be 20 1001679.14 08/311001679.15 09/07/12 deemed to have been granted Final Acceptance. This Section 3.8 sets forth the sole unperformed and/or additional obligations of Master Developer, EMD, the Developer Affiliates, or any pertinent Landowner to Dedicate land, and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in this Section 3.8. Accordingly, except as otherwise set forth below, during the Term and notwithstanding any current or future provision of the Municipal Code to the contrary, the Town shall not impose any land Dedication requirement, impact fee requirement or development exaction of any sort, except for the following, the performance of which together with prior land dedications and related exactions fully satisfies and extinguishes any dedication, impact fee and/or development exaction obligations pertaining to or in connection with development of the Project: (a) School Site Dedication. The Original Agreement set forth certain requirements regarding the Dedication of land or cash in lieu thereof to address the impact of the Project on the school system. Pursuant to the Settlement Term Sheet, the school site provision of the Original Agreement has been modified as set forth in this Section 3.8(a) and, as of the Effective Date, Ordinance No. 06-17 and all conditions and restrictions set forth therein are rendered legally inoperative, void and of no further force or effect. [Note: The Ordinance approving the Development Agreement should contain a specific provision that expressly repeals 06-17. ] (i) Parcels to be Conveyed. The following conveyances (collectively, the “School Site Dedication”) shall constitute full satisfaction of all requirements under the Municipal Code (as in effect on the Effective Date or as amended from time to time) and other current or future Town regulations with respect to mitigation of the Project’s impact on the school system: (A) Concurrently with the Effective Date, TC-RP conveyed to the Town the approximately 3.536 acre Site designated on the PUD Master Plan as Planning Area E (i.e., Lot 3, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)). Neither TC-RP, Master Developer nor TCMD, TCMD , any Developer Affiliate or any Landowner (other than the Town or an educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public Improvements or other on-site or off-site improvements for Planning Area E, all such obligations being the sole responsibility of the Town. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area E. [Note: Foregoing is per the STS. The Town has requested additional acreage. EH is further reviewing the easements affecting this parcel, and is expected to provide proposed language. Also, subsequent to the request for additional acreage in PA -E, EH proposed an alternative arrangement to satisfy the School Site Dedication obligation, but which is directly at odds with the STS. Developers are considering both alternatives, but note that any alternative will potentially affect the administrative plat that creates PA-E and would need to be resolved very quickly. For present purposes, the School Site Dedication provisions have not been revised.] 21 1001679.14 08/311001679.15 09/07/12 (B) EMD (or the Landowner at the pertinent time), shall Dedicate to the Town an approximately 3.764 acre Site within Planning Area I upon Recording of the initial final subdivision plat within Planning Area I. Neither EMD (or the then-Landowner), TCLLC, TCMD, any Developer Affiliate, or any other Landowner (other than the Town or an educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public Improvements for the approximately 3.764 acre Site within Planning Area I. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the Planning Area I Site concurrently with Recording of the conveyance documents and no Acceptance, assurance of completion requirement or warranty period requirements shall apply. Access to the Planning Area I Site from a public street and extension of utilities and other Public Improvements shall be addressed through the final subdivision plat process, and the related Public Improvement Agreement may provide for reimbursement of the cost of shared Public Improvements that benefit the Planning Area I Site and other Sites within PA-I on an equitable pro rata basis. (ii) Use Restriction. Notwithstanding anything to the contrary set forth in the Municipal Code (as in effect on the Effective Date or as amended from time to time) or any other statute, ordinance, regulation or the like, use of the School Site Dedication parcels shall be restricted to state authorized [need to confirm whether this is the appropriate word to replace “licensed” as requested by ECSD] education facilities serving grades K through 12 (or any portion of such grades); provided, however, that prior to construction of school facilities permitted hereunder, the Town may use the School Site Dedication parcels for outdoor recreation, parks or open space purposes and for no other use or purpose (including other municipal purposes, snow storage, equipment storage or similar purposes) without the Town having first obtained Master Developer’s or EMD’s written consent, as applicable, which consent may be given or withheld in Master Developer’s or EMD’s sole discretion. Each special warranty deed conveying a School Site Dedication parcel shall incorporate the foregoing use restriction, which use restriction shall be independently enforceable as a deed restriction and not merged into or construed to preclude enforcement of the use restriction imposed by this Section 3.8(a)(ii); provided, however, that the scope of the use restriction as stated in the applicable deed shall control over any broader or narrower scope set forth herein. (iii) Form of Conveyance. Conveyance of the Planning Area I School Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, shall be without any reversionary clause, subject to all matters of Record other than monetary liens, and shall contain an express use restriction consistent with the foregoing Section 3.8(a)(ii). Conveyance of the Planning Area E School Site Dedication parcel was effected by Recording of a special warranty deed in the form attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens, and containing an express use restriction consistent with the foregoing Section 3.8(a)(ii). 22 1001679.14 08/311001679.15 09/07/12 (iv) Additional Conditions. (A) Any use undertaken and any improvements constructed or installed within the School Site Dedication parcels shall comply with the terms of the Development Plan and shall be subject to review and approval by the Design Review Board. Prior to development of the School Site Dedication parcels for school purposes, the Town shall be responsible for installing and maintaining all improvements to be made within the School Site Dedication parcels and for controlling all noxious weeds within the School Site Dedication parcels. (B) If Eagle County School District demonstrates a need for a school site within the Project based on the impact of development within the Project, the Town, Master Developer and EMD shall use best efforts to combine the park land dedications contemplated in Section 3.8(d) with the Planning Area I School Site Dedication parcel to create a consolidated site of sufficient size to meet the reasonable needs of the Eagle County School District. The preceding sentence shall not be construed to have the effect of: (i) creating a legal right of Eagle County School District to obtain a school site within Planning Area I or any other area of the Property; (ii) creating any legal obligation of the Town, EMD, Master Developer or any Landowner or Applicant to provide a school site on Planning Area I or any other area of the Property to the Eagle County School District; or (iii) creating a legal obligation of the Town, EMD, Master Developer, any Landowner or any Applicant to combine the park land Dedication with the Planning Area I School Site Dedication parcel. Eagle County School District shall not be construed to be, and the Parties expressly intend that Eagle County School District shall not be, an Intended Beneficiary. (C) The Town may lease or convey such School Site Dedication parcels to educational districts or organizations upon such terms as the Town determines in its sole discretion provided that: (i) such lease or conveyance shall be for nominal consideration; and (ii) such lease or conveyance shall be expressly subject to the use restriction established pursuant to Section 3.8(a)(ii) and the applicable deed restriction as contemplated by Section 3.8(a)(iii). (D) Pursuant to the PUD Guide and prior to construction of a school facility on such parcel, the Town shall administratively process and approve subdivision re-platting of either or both the Planning Area E School Site Dedication parcel or the Planning Area I School Site Dedication parcel to adjust the boundaries of such parcels in connection with final development of an adjacent Planning Area or Site. The Town shall not unreasonably deny, condition or delay final action with respect to a Development Application to administratively re-plat the School Site Dedication parcels as provided herein. (b) Dedication of Planning Area B. Concurrently with the Effective Date, TC-RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD Master Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the 23 1001679.14 08/311001679.15 09/07/12 Effective Date)). Neither TC-RP, Master Developer, TCMD nor TCMDany Landowner (other than the Town) shall have any obligation with respect to provision of any Public Improvements or other on-site or off-site improvements for Planning Area B, all such obligations being the sole responsibility of the Town and not of AURA. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area B. Any construction of buildings or facilities or landscaping improvements on Planning Area B, or any Public Improvements required in connection with the Town’s development of Planning Area B, shall be subject to prior approval by the Design Review Board. The Town may create a plan for the development and use of Planning Area B, which may be adopted by the Design Review Board, and which shall then serve as a guide for review of uses and development of Planning Area B by the Design Review Board. Any use or plan for use of Planning Area B shall allow and incorporate the ability to construct for storage and/or augmentation purposes a water feature which can provide at least 2 acre feet of water storage (which shall not exceed a total surface area of .6 acres, including inflow and outflow on Planning Area B). Notwithstanding the preceding sentence, the Town shall have the right to maintain and operate as public open space all or a portion of Planning Area B which is not yet developed in accordance with this Section. Pursuant to the PUD Guide, the Town shall administratively process and approve subdivision re-platting of Planning Area B to adjust the boundary of Planning Area B in connection with final development of an adjacent Planning Area. The Town shall not unreasonably deny, condition or delay final action with respect to a Development Application to administratively re-plat Planning Areas B as provided herein. Until such time as Planning Area B is developed or improvements are constructed thereupon that preclude use of Planning Area B for snow storage, the Town, Master Developer and TCMD shall have the right to use Planning Area B for snow storage in accordance with the terms of the Revocable License Agreement. The Public Improvement Agreement(s) for Planning Areas adjacent to Planning Area B may provide for reimbursement of the cost of shared Public Improvements that benefit the Planning Area B and adjacent Planning Areas on an equitable pro rata basis.[Note: Town Council has raised several issues. (1) Re the proposed access easement, the Town wants a 50’ wide easement rather than a 40’ wide easement. An easement is not specifically/literally required by the STS. (2) The Town requested cost sharing for utilities and other public improvement extensions, but Town Council objected to bilateral cost sharing, which it viewed as “double dipping.” Cost sharing is not required by the STS, and the provision has been removed. (3) Town Council discussed whether it wanted Phase I or other environmental investigation. This is not in the STS. The access easement is not a literal requirement of the STS. While not addressed in this provision, it is noted that the landowner’s agreement to provide an access easement is contingent on resolution of other matters, specifically including the Town’s commitment to provide legal access for the road to access PA-I. Resolution of this issue may require conforming revisions to the plat that is creating PA -B. Revisions to the sentences here and in the School Site Dedication provisions regarding allocation of responsibility for site improvements have been clarified. In particular, note that the STS states that improvements to PA-B are to be at the Town’s cost – not AURA’s cost.] 24 1001679.14 08/311001679.15 09/07/12 (c) Planning Areas OS-5 and OS-6. EMD (or the Landowner at the pertinent time) shall convey Planning Areas OS-5 and OS-6 to the Town concurrently with Recording of the initial final subdivision plat for Planning Area I. Neither EMD (or the then-Landowner), Master Developer nor TCMD shall have any obligation with respect to provision of any Public Improvements for Planning Areas OS-5 and OS-6. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of Planning Areas OS-5 and OS-6 concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. Such conveyance shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, and shall reserve to grantor (or its assigns, including a District) the right to construct a vehicle/pedestrian bridge crossing across Planning Areas OS-5 and/or OS-6 including the ability to construct and maintain bridge abutments and appurtenant roadways. Planning Areas OS-5 and OS-6 shall be conveyed without any reversionary clause, subject to all matters of Record other than monetary liens. The deed shall contain an express use restriction limiting use of the sites to open space and no other purposes (except those uses reserved to grantor as provided above). The Town shall be responsible for installing and maintaining all improvements to be made within the open space parcels (other than those improvements grantor may cause to be installed per the reservation described above), and for controlling all noxious weeds within the open space parcels. Any improvements to be located within Planning Areas OS-5 and/or OS-6 shall be subject to Design Review Board review and approval. (d) Park Site Within Planning Area I, J and/or K. As determined by Master Developer in its sole discretion, Master Developer shall cause the pertinent Developer Affiliate to Dedicate, or EMD (or the Landowner at the pertinent time) shall Dedicate, 5.8 acres of park land to be located within Planning Area I, J and/or K. Neither the then-Landowner, Master Developer nor TCMD shall have any obligation with respect to provision of any Public Improvements for such park land acreage. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the park land acreage concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. The foregoing obligation may be accomplished by one or more conveyances totaling not less than 5.8 acres in the aggregate, provided that each such parcel must comply with the applicable criteria set forth in the PUD Guide (size and related characteristics). Such conveyance(s) shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens. The deed(s) shall contain an express use restriction limiting use of the site(s) to, as applicable to the particular site, public park, trail heads, trail connections, dog park, or natural park (i.e., wetland/natural resource protection area, hillside slopes, view planes, streambed/buffer and similar natural condition preservation areas) and no other purposes. The Town shall be responsible for installing and maintaining all improvements to be made within the park site(s), and for controlling all noxious weeds within the park site(s). [Town Council has expressed some concern with this provision, although EH has acknowledged the PUD Guide incorporates park criteria from the Town’s Code. It is unclear whether an issue exists.] 25 1001679.14 08/311001679.15 09/07/12 (e) Landscaping/Visual Mitigation for Heard Lane/Eagle Bend. [Note: This has been added as a placeholder for the proposed landscaping that Master Developer may install on Town ROW, which proposal is not required or contemplated by the STS and which is currently under discussion. Provision may be added or removed depending the result of discussions and direction from Town Council. If included, it would be contemplated that a landscaping plan might be attached as an exhibit to define the scope of the commitment, and the provision would address timing of the installation by Master Developer, and the Town’s assumption of maintenance, provision of irrigation water, and tree replacements.] 3.9 Exactions, Fees and Payments. As generally described in Recital K, prior to the Execution Date development exactions, fees and payments required to be performed and/or made pursuant to the Original Agreement were fully or partially performed and, to the extent partially performed are hereby waived and extinguished pursuant to the Settlement Term Sheet and this Development Agreement. This Section 3.9 sets forth the sole and exclusive obligations and requirements with respect to exactions, impact fees and payments required in connection with development of the Project during the Term, and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in this Section 3.8. Accordingly, and notwithstanding any current or future provision of the Municipal Code, the Town shall not impose exactions or fees upon development within the Property for impacts related to schools, fire protection, emergency services, municipal facilities, public transit, municipal parks or open space which are in addition to the exactions, fees and payments described in this Development Agreement and/or the PUD Guide, or which have been previously paid or performed under the Original Agreement (such exactions, fees and payments fully satisfying and extinguishing any impact fee and/or development exaction obligations in connection with development of the Project). [Note: EH has indicated this provision needs to be reconciled with § 6.16(e). The basis of the concern is unclear and requires further discussion.] 3.10 Other Generally Applicable Taxes, Assessments and Fees. All current and future taxes, and all current and future assessments and fees (other than the exactions, development impact fees and payments addressed by Section 3.9), imposed by the Town on a uniform and non-discriminatory basis within the Town and not expressly addressed in this Development Agreement or in the PUD Guide shall apply in the same manner and to the same extent within the Property as within the rest of the Town. 3.11 Prioritized Capital Projects. The Parties have identified the subset of Public Improvements set forth in Exhibit D (the “Prioritized Capital Projects”) as having particularly high value in supporting and encouraging the types of development within the areas of the Project that would produce relatively greater District Revenue and Municipal Payment revenues, at relatively less Public Improvement cost, and at a relatively earlier point in the development sequence. It is the Parties’ intent that, subject to market conditions and the terms and conditions of this Development Agreement (including but not limited to Sections 2.5 and 3.3(a)), a non-legally binding priority will be placed on supporting and encouraging investment in the Prioritized Capital Projects in order to support and encourage development to occur within Planning Areas A, C, D, F and J such that the Supplemental Bond capacity available pursuant to the Financing Plan is utilized to encourage development that has a relatively greater probability 26 1001679.14 08/311001679.15 09/07/12 of producing relatively greater increases in District Revenue and Municipal Payments. [The Town has expressed its desire that the Prioritized Capital Projects be in some sense “binding.” That is not required by the STS. EH has acknowledged the Town’s approval of the form of Exhibit D.] ARTICLE 4 MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA 4.1 Municipal Services. The Town shall have the ongoing responsibility and obligation to provide all municipal services to the Property and the Project including, without limitation, police protection, snow removal and road maintenance, maintenance (including repair and replacement) of streetscape improvements and landscaping within public road rights-of-way, bus transportation services, asphalt overlay of public roads, building code enforcement and other administrative services equivalent (except as expressly modified or qualified by Sections 3.4(b), 3.5, 4.2(c) and 4.2(d) ) [Note: Foregoing to be further evaluated to ensure a complete list] to those services provided to any other area of the Town on a uniform and non-discriminatory basis (collectively, the “Municipal Services”). The Town provides public transit services as part of the Municipal Services based on a variety of factors including demand, the Town’s transit planning policies, funding availability and similar considerations and, accordingly, does not provide public transit service within all areas of the Town or make a representation or commitment regarding when and to what extent the Town may provide public transit service within the Property. As such, the Town agrees that no Development Application shall be denied based on a lack of transit services or the inability of the Town to provide transit services, and no approval of a Development Application shall be conditioned upon any party or entity other than the Town providing transit services. The Town’s receipt of Municipal Payments during the Term as generally described in Section 6.5, together with the additional revenues described in Section 6.16, is in consideration of the Town’s providing Municipal Services. The Municipal Payments and additional revenues described in Section 6.16 shall be conclusively deemed and construed to fully offset the Town’s cost of performing its Municipal Services obligations pursuant to this Development Agreement, such that no Party shall assert or claim that such revenues are either inadequate or excessive, no Party shall assert or claim any right to an increase in or a reduction of such revenues, and the Town shall not withhold, suspend or terminate the provision of any of the Town’s Municipal Services obligations pursuant to this Development Agreement. After expiration of the Term, the Town shall continue to provide Municipal Services in accordance with the Town’s general obligation to provide municipal services throughout the Town. 4.2 Town Obligations. Without limiting or negating any Town obligation set forth in another Article of this Development Agreement or narrowing by implication the Town’s obligations pursuant to Section 4.1, the Town shall perform the following obligations: (a) Tax Credit. As contemplated by the Original Agreement and codified at Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the Effective Date), the Town has established the Tax Credit. During the Term, the Town shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Tax Credit from attaching to Taxable Transactions occurring within the Project, including but not limited to enacting any amendment to Sections 3.08.035, 3.12.065 and/or 3.28.075, or to any other provision of the Municipal Code, that would have such effect. 27 1001679.14 08/311001679.15 09/07/12 (b) Cooperation in Implementation of Add-On RSF. As more particularly set forth in Section 6.5(d), the Town will cooperate with the PICs to effect the implementation of the Add-On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating with the PICs in meetings with representatives of such retailers regarding the nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request from time to time. (c) Assumption of TCMD Maintenance Obligations. From and after the Effective Date, the Town shall assume and be responsible for the performance of all of TCMD’s current and future maintenance, repair and replacement obligations with respect to Public Improvements (including but not limited to all Dedicated and Accepted public road right-of-way landscaping, Nottingham Dam (it being acknowledged that the other Parties have no expectation of the Town upgrading Nottingham Dam, maintenance and repair to be as and when the Town determines appropriate), Nottingham-Puder Ditch (it being acknowledged parties other than the Town and TCMD have an interest in Nottingham-Puder Ditch, and that other agreements or arrangement may be in place from time to regarding such parties’ participation in any maintenance), irrigation systems and water wells, the wet well located within PA-F, tree replacements (to be accomplished in phases as determined by the Town, and to be completed prior to the seventh anniversary of the Effective Date) and, subject to Section 3.4(b)(iv)), snow removal. Notwithstanding the forgoing, TCMD shall retain responsibility to cause the following obligations to be performed utilizing District Revenues available to it for such purposes: [Note: The Town requested clarification regarding tree replacement, and responsive revisions have been proposed even though this level of detail is not required by the STS. There was discussion regarding the Town’s obligations regarding Nottingham Dam, but it is not clear whether there is any need to revise the language, as it already makes clear that Town has discretion regarding maintenance and related matters.] (i) Parking Structures. Maintenance of the existing Traer Creek Plaza public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 (identified as “Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date) and, except to the extent TCMD and the Town otherwise agree in writing, any additional public parking facilities or structures that TCMD or another District may construct in the future. (ii) Lot 2 Internal Landscaping. Any landscaping maintenance obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 to the extent arising from TCMD’s status as owner of the Traer Creek Plaza public parking structure located therein (identified as “Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date). (iii) Tract E. Maintenance of the park and flag pole located within Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007. 28 1001679.14 08/311001679.15 09/07/12 (d) Asphalt Overlays. Subject to the terms and conditions of the Asphalt Overlay Agreement and Section 6.6, the Town shall perform asphalt overlays for all Dedicated public roads located in the Project subject to the following terms and conditions: (i) Prior to Termination of Joint Funding. Until the shared funding contributions terminate pursuant to Section 6.6(b): (A) The Town shall commence overlays on Dedicated roads within the Project at such time as jointly determined necessary by the Town and TCMD. (B) As more particularly set forth in the Asphalt Overlay Agreement (including but not limited to Section 5(b) thereof [Note: Need to confirm cross reference in final version of overlay agreement] regarding deemed consent under certain facts), TCMD, Master Developer and the Town each must provide written approval prior to the release of any funds from the Asphalt Overlay Account. (C) The Town’s obligation to perform asphalt overlays shall be limited to the amount accumulated within the Asphalt Overlay Account. (D) The Town’s obligation to deposit funds into the Asphalt Overlay Account shall be limited to the portion of the Municipal Payments the Add-On RSF Collection Agent deposits on behalf of the Town pursuant to Section 5.2(c), and the Town shall have no obligation to contribute funds from any other source. (ii) After Termination of Joint Funding. From and after the date upon which the shared funding contributions terminate pursuant to Section 6.6(b): (A) The Town shall be solely responsible for all costs of asphalt overlays for Dedicated public roads in the Project. (B) The Town shall schedule and perform such asphalt overlays in a manner materially consistent and commensurate with other public roads in the Town having similar characteristics in terms of traffic volume, age of road surface and similar factors. (e) Easement for Access to Planning Area I. As of the Effective Date, the Town is undertaking to acquire fee title to the Forest Service Village Parcel. Within three (3) business days after acquiring Record title to the Forest Service Village Parcel, but in any event prior to permitting the Recording of a conservation easement or similar instrument limiting potential development within the Forest Service Village Parcel or any other conveyance by the Town of the Forest Service Village Parcel or any interest therein, the Town shall execute and deliver the Relocatable Roadway Easement Agreement to EMD (or to the then-Landowner of Planning Area I). The Relocatable Roadway Easement Agreement shall be Recorded as a prior interest to any conservation easement or similar instrument, and any such subsequent 29 1001679.14 08/311001679.15 09/07/12 conveyance or grant by the Town shall be expressly subject to the Relocatable Roadway Easement Agreement. Should the Town not have acquired the Forest Service Village Parcel prior to such time as access is needed to commence the process for constructing an access road to Planning Area I, the Town shall reasonably cooperate with Master Developer regarding, and shall not oppose or obstruct Master Developer’s efforts with respect to, obtaining a legal right of access over the Forest Service Village Parcel. [Town Council has indicated it will not provide an easement or other form of legal access because it does not view that as required by the STS. This is contrary to EH’s representations that the access may be addressed/provided in the transactional documents for the acquisition rather than in the contemplated relocatable easement. This is a significant issue and is contrary to applicants’ view of what the STS requires. Without a legal right of access, the STS provision regarding this topic is illusory. See related discussion regarding access easement to PA-B.] (f) Service Plans. The Town has adopted Ordinance No. [Insert #] which amends Chapter 18 of the Municipal Code to state that certain that provisions concerning material modification do not apply to TCMD and VMD. During the Term, the Town shall maintain the foregoing amendment to Chapter 18 of the Municipal Code in effect without modification, shall not take any action to explicitly or implicitly repeal, reinstate, alter or re- impose those provisions of Chapter 18 of the Municipal Code from which TCMD and VMD were exempted by operation of Ordinance No. [Insert #], and shall not impose other regulations which would have the effect of establishing definitions, requirements or procedures concerning the determination of material modification as applied to TCMD and VMD that are inconsistent with, more rigorous than or otherwise expand the scope of such determination as set forth in Colorado statues as may be amended from time to time. [Town Council has directed that references to VMD be removed, which is contrary to EH’s rational response that both Districts should be treated the same. Town Council’s position apparently is that the STS does not mention VMD. It is noted that VMD was not a party to the STS, which is why VMD wasn’t mentioned.] (g) Urban Renewal. If it is determined that Lot 1 will be included within an urban renewal area, the Town shall, utilizing all authority legally available to it as a home rule municipality under Colorado law, take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7. 4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban renewal area, AURA shall take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7 and the related obligations set forth in Section 6.17. ARTICLE 5 OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND DEVELOPER AFFILIATES 5.1 Obligations of TCMD. Without limiting or negating any TCMD obligation set forth in another Article of this Development Agreement, TCMD shall perform the following obligations: 30 1001679.14 08/311001679.15 09/07/12 (a) Asphalt Overlay. TCMD shall perform its obligations with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iii). (b) Notice of Financings. TCMD shall give to the Town forty-five (45) days’ prior written notice of its intent to finance and/or construct any Capital Projects utilizing Supplemental Bonds and/or Additional Developer Advances. (c) Add-On RSF. TCMD shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add-On RSF. TCMD will cooperate with the PICs to effect the implementation of the Add-On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating in meetings with representatives of such retailers regarding the nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, TCMD shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. (d) Utilization of Credit PIF Revenues. During the Term, TCMD shall utilize Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a) and shall apply Credit PIF Revenues in the priority set forth in Sections 6.9(b) and 6.9(c). 5.2 Obligations of PICs. (a) Credit PIF. During the Term, the PICs shall take no action to modify, terminate, suspend or otherwise interfere with TCMD’s right to receive and utilize the Credit PIF Revenues. (b) Add-On RSF. Concurrently with the Effective Date, the board of directors of each PIC has caused the Recording of an amendment to the respective PIF Covenants having the effect of imposing the Add-On RSF. In order to effectuate the Parties’ intent regarding the collection and remittance of the Add-On RSF Revenues, each PIC, Master Developer, the Town and the Add-On RSF Collection Agent have executed and legally entered into an Add-On RSF Collection Services Agreement. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, each PIC shall: (i) Collection of Add-On RSF. Pursuant to its authority under and in accordance with the terms and conditions of the PIF Covenants, continue to impose the Add-On RSF and undertake to cause the collection and remittance of the Add-On RSF Revenues by or to the Add-On RSF Collection Agent for disposition in accordance with the applicable Add-On RSF Collection Services Agreement and the terms and conditions of this Development Agreement. (ii) Remittance of Municipal Payments. (A) Undertake to cause the Add-On RSF Collection Agent to remit to the Town all Municipal Payments as and when due pursuant to the terms 31 1001679.14 08/311001679.15 09/07/12 and conditions of the applicable Add-On RSF Collection Services Agreement and this Development Agreement. (B) Take no action to modify, terminate, suspend or otherwise interfere with the Town’s right to receive and utilize the Municipal Payments in the manner and for the purposes authorized pursuant to this Development Agreement and the applicable Add-On RSF Collection Services Agreement. (c) Asphalt Overlay Account. As more particularly set forth in the Add-On RSF Collection Services Agreement, the PICs (jointly with the Town) shall cause the Add-On RSF Collection Agent to deposit Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (i) Initial Five Years. Commencing in 2013 and continuing through and including November 1, 2017, the Add-On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF Collection Agent. (ii) Subsequent Years. Commencing in 2018 and continuing through and including the date on which termination occurs pursuant to Section 6.6(b), the Add- On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF Collection Agent. (iii) Post-Termination. From and after the date on which termination occurs pursuant to Section 6.6(b), the PICs (jointly with the Town) shall cause the Add- On RSF Collection Agent to remit all Municipal Payments directly to the Town as otherwise provided in the Add-On RSF Collection Services Agreement and in accordance with the terms and conditions of Section 5.2(b). 5.3 Obligations of Master Developer. Without limiting or negating any Master Developer obligation set forth in another Article of this Development Agreement, Master Developer shall perform the following obligations: (a) Asphalt Overlay. Master Developer shall perform its obligations with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iv). (b) Conveyance of Park Site in Planning Areas I, J and/or K. Pursuant to Section 3.8(d), Master Developer shall cause the then-current Landowner to convey to the Town such sites within Planning Areas I, J and/or K as may be determined necessary or desirable in satisfying such obligation. (c) Add-On RSF. Master Developer shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add-On RSF. Master Developer will cooperate with the PICs to effect the implementation of the Add-On RSF with respect to existing retail businesses within the Project, including but not limited to 32 1001679.14 08/311001679.15 09/07/12 assisting in the coordination and implementation of reporting forms, meetings with representatives of such retailers regarding the nature and purpose of the Add-On RSF and such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, Master Developer shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. (d) Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will be included within one or more urban renewal areas, Master Developer shall take such steps, and cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s), subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be construed to constrain any Landowner from pursuing any property tax appeal proceeding or change in tax classification of any portion of the Property, nor shall it be construed to require any Landowner to cause or consent to a change in tax classification of any portion of the Property. 5.4 Obligations of EMD. Without limiting or negating any EMD obligation set forth in another Article of this Development Agreement, EMD shall perform the following obligations: (a) Conveyance of School Site in Planning Area I. Pursuant to Section 3.8(a)(i)(B), EMD or the then-current Landowner shall convey to the Town an approximately 3.3 acre Site within Planning Area I for school purposes. (b) Potential Combination of Park and School Sites. EMD or the then-current Landowner shall undertake the efforts contemplated pursuant to Section 3.8(a)(iv)(B) regarding a potential consolidated school/park Site within Planning Area I. (c) Conveyance of OS Tracts. Pursuant to Section 3.8(c), EMD or the then-current Landowner shall convey to the Town the parcels designated in the PUD Master Plan as OS-5 and OS-6. (d) Conveyance of Park Site in Planning Area I. Pursuant to Section 3.8(d), EMD or the then-current Landowner shall convey to the Town such sites within Planning Area I as may be determined necessary or desirable in satisfying such obligation. ARTICLE 6 FINANCING PLAN 6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD to finance and construct Capital Projects, to repay the District Debts and to be utilized for other Permitted Uses. The Tax Credit is granted in consideration of the above-stated uses of the Credit PIF. (a) Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs have pledged the Credit PIF Revenues to TCMD and the Credit PIF Collection 33 1001679.14 08/311001679.15 09/07/12 Agent collects the Credit PIF Revenues on TCMD’s behalf pursuant to the Credit PIF Collection Services Agreement. (b) Expiration of Term; Termination of Town Tax Credit. Except as otherwise provided in Section 6.1(d), TCMD’s right to receive Credit PIF Revenues, the Town’s right to receive Municipal Payments, and the Town’s obligation to maintain the Tax Credit in effect each shall terminate, and the Term shall expire, upon the later of: (i) January 2, 2040 (January 1, 2040 being the last date upon which TCMD may issue Supplemental Bonds, notwithstanding that District Debt other than Supplemental Bonds may have been paid in full prior to January 2, 2040); or (ii) such later date upon which payment in full of the District Debts occurs concurrently with expiration of the Term. Upon expiration of the Term and termination of the Town’s Tax Credit, the Town shall be entitled to impose, receive and retain all Town taxes applicable to Taxable Transactions. (c) Termination of Right to Municipal Payments. The Town’s right to receive the Municipal Payments shall terminate concurrently with expiration of the Term and the termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(b). If the Declarant (as defined in the PIF Covenants) elects to continue the imposition of the Add-On RSF, in whole or in part, after discontinuation of the PICs’ obligation to remit the Add-On RSF Revenues to the Town, then the Add-On RSF Revenues may be used for any purpose permitted under the PIF Covenants. Notwithstanding expiration of the Term, the Town shall be entitled to receive Municipal Payments amounts resulting from application of the Add-On RSF to Taxable Transactions that occurred prior to the date upon which expiration of the Term occurs, such amounts to be collected and remitted in accordance with the terms and conditions of the Add-On RSF Collection Services Agreement. Notwithstanding that the Term shall expire upon full payment of the District Debts, the terms and conditions of this Section 6.1(c) shall survive the expiration of the Term. (d) Continuation of Town Tax Credit. If, after all District Debts are paid in full, the Town delivers written notice to the PICs that the Town is precluded from terminating the Tax Credit, and the Town has in good faith pursued and failed to accomplish legally available alternatives for terminating the Tax Credit, then for so long as the Tax Credit remains in effect the PICs shall continue to impose the Credit PIF and shall remit to the Town on a monthly basis all Credit PIF Revenues actually collected, less the costs and expenses incurred by the PICs in connection with collecting such Credit PIF Revenues. In such event, the Town shall have no right or interest in any Add-On RSF Revenues, and neither the PICs, TCMD nor Master Developer shall have any obligation to cause any Municipal Payments to be remitted to the Town. The terms of this Section 6.1(d), if applicable, shall survive termination of this Development Agreement until such time as the Town terminates the Tax Credit. 6.2 Tax Credit; Use of Credit PIF Revenues. As contemplated by the Original Agreement and to partially offset the impact of the Credit PIF, the Town has established the Tax Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the Credit PIF to each Taxable Transaction During the Term, the Town shall maintain the Tax Credit 34 1001679.14 08/311001679.15 09/07/12 in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In implementation of the Settlement Term Sheet, the following terms specify uses of Credit PIF Revenues: (a) Permitted Uses. During the Term, TCMD may utilize Credit PIF Revenues to pay the Cap Amounts and the Non-Cap Amounts (collectively, the “Permitted Uses”) and for no other purpose. (b) Credit PIF Cap; Cap Amounts. Subject to reduction by not more than $10,000,000 (Ten Million Dollars) in accordance with Section 6.7, the amount of the following obligations to which Credit PIF Revenues can be pledged is $96,000,000 (NINETY SIX MILLION DOLLARS) (the “Credit PIF Cap”). Only Net Proceeds shall be counted against the Credit PIF Cap, whether such Capital Project Costs represent the stated amount of any Past Developer Advance or Additional Developer Advance, or the Net Proceeds from any TCMD municipal bond issues other than the TCMD Bond Reissue (as qualified in clause (i) below). Bond Requirements and interest payable on Past Developer Advances and Additional Developer Advances incurred in connection with the principal amountsCapital Project Costs comprising the Cap Amount are Non-Cap Costs that are payable from Credit PIF Revenues, but such Bond Requirements and interest costs do not count against the Credit PIF Cap. The following (collectively, the “Cap Amounts”) shall count against the Credit PIF Cap: [Note: Town Council has directed that it wants the cap defined in terms of the par amount of bonds, and not the Net Proceeds. The STS uses the term “principal” and does not use the term “par amount.” The principal amount of Additional Developer Advances (a form of Supplemental Bonds) is what counts against the Credit PIF Cap, such that only the Capital Project Costs financed through Additional Developer Advances count against the Credit PIF Cap. Other forms of Supplemental Advances (i.e., traditional municipal bonds) should produce the same result – i.e., only the Capital Project Costs financed through municipal bonds count against the Credit PIF Cap. Net Proceeds equate to the Capital Project Costs. Using “par amount” would not only be contrary to the STS’s plain language, it would produce the result that the two forms of Supplemental Bonds would be treated differently for Credit PIF Cap purposes. That disparate treatment would effectively require, as a practical matter, that only Additional Developer Advances be utilized to finance the Supplement Bond capacity. This would result in the use of a higher interest rate financing mechanism rather than a lower interest rate financing mechanism, thereby extending the Term and reimbursing developers at 8% for an extended time period. No revisions have been made, but further discussion is required to resolve this issue.] (i) The Net Proceeds of the TCMD Bond Reissue (for purposes of the Credit PIF Cap and Cap Costs, $52,100,000 (FIFTY TWO MILLION ONE THOUSAND DOLLARS), which is the original principal amount of the TCMD bonds refunded pursuant to the TCMD Bond Reissue, shall be attributed as the Net Proceeds of the TCMD Bond Reissue notwithstanding that the actual Net Proceeds of the TCMD Bond Reissue may be a lower amount due to TCMD’s prior payment of a portion of the principal amount of the bonds refunded pursuant to the TCMD Bond Reissue). 35 1001679.14 08/311001679.15 09/07/12 (ii) The Net Proceeds of the Tank Project Bonds in the approximate amount of $9,000,000 (the precise amount to be established at the time the Water Tank Bonds are issued). (iii) The principal amount of Past Developer Advances for Capital Project Costs in the amount of $12,047,736 (which amount excludes: (i) amounts advanced to enable TCMD’s performance and/or payment of its operations, maintenance and administrative costs including, but not limited to, landscaping snow removal and similar operations/maintenance functions; and (ii) amounts advanced to enable TCMD’s payment of municipal services and sales tax shortfall obligations under the Original Agreement). [Note: The adjustment contemplated in the parenthetical has not been agreed to by the Town and is not reflected in the amount currently stated above. The rationale for the proposed adjustment is the Credit PIF Cap is intended to address a top-side amount of Capital Project Costs. Therefore, the applicants have requested that on the Capital Project Costs portion of the Past Developer Advances be counted against the Credit PIF Cap.] (iv) To the extent issued on or before January 1, 2040, Supplemental Bonds (other than Supplemental Bonds that are Non-Cap Costs pursuant to Section 6.2(c)), whether in the form of Additional Developer Advances (principal amount, including Master Developer contributions to the Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF Revenues) or in the form of other District obligations (Net Proceeds). (v) Capital Project Costs that TCMD funds directly from Credit PIF Revenues budgeted and appropriated for such purpose. (c) Non-Cap Amounts. The following costs (collectively, the “Non-Cap Amounts”) are payable from Credit PIF Revenues but do not count against the Credit PIF Cap: (i) Payments of interest and other Bond Requirements incurred with respect to Cap Amounts. (ii) The principal amount and other Bond Requirements of any refunding bonds or other debt instruments issued to repay, refund and/or defease, in whole or in part, the Cap Amounts. (iii) The Avon Receivable and any refunding thereof. (iv) The principal amount and interest of Town cure payments, if any, pursuant to Section 6.12, and any refunding thereof. (v) Deferred Fees and Deferred Amortization, and any refunding thereof. (vi) TCMD’s contributions to the Asphalt Overlay Account. 36 1001679.14 08/311001679.15 09/07/12 (vii) Subject to Section 6.2(d), the Base O&M Costs. (viii) The principal amount and other Bond Requirements of any Supplemental Bonds issued to defease Replacement Bonds. (d) Minimum Non-Credit PIF District Revenues During the Term. The Parties recognize and acknowledge that during the Term TCMD may pledge VMD property tax revenues and other non-Credit PIF Revenues for the payment of District Debts in order to facilitate and obtain the best financing terms available. The Parties further recognize and acknowledge that TCMD’s ability to comingle various revenue sources in its general fund provides financial advantages and efficiencies. Therefore, for the purpose of allowing TCMD financially advantageous flexibility while at the same time insuring that the Town’s Tax Credit obligation does not become additionally encumbered by TCMD’s obligations in excess of the District Debts and Credit PIF Cap, during the Term, TCMD and the VMD shall raise revenue from sources other than the Credit PIF in an amount at least equal to the Base O&M Costs for each year. Such sources may include, but are not limited to revenue raised from the VMD’s mill levy or a future TCMD mill levy, tap fees or other fees imposed by TCMD or the VMD; provided however, that such revenue is not required to be spent on Base O&M Costs (for example, this obligation shall be met if the Annual Debt Service Pledge Amount equals or exceeds the Base O&M Costs and is paid from VMD property tax revenue). [Note: Although not required by the STS, Developer has provisionally agreed to this,previously indicated it would consider this provision contingent on satisfactory resolution of other matters. Because it is not required or contemplated by the STS, it has been removed for purposes of this revision.] 6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as contemplated in the Original Agreement, the PICs have imposed and shall continue for the duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. Pursuant to the PIF Covenants and in implementation of the Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. (a) Town Real Estate Transfer Tax. In full settlement of any and all claims that could be raised or asserted regarding whether the Town’s real estate transfer tax and the PICs’ Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart occupy their present locations within the Project as of the Effective Date or to apply to any extension(s) of such leases: [Note: Town Council has directed that the HD/WM issue be removed from the Development Agreement. Again, based on its narrow view of what the STS requires. Town Council represented that this issue will be addressed separately, but declined to represent anything about the timing and manner in which it would be addressed. Developers do not agree that this issue is outside the scope of the STS and have not made any revisions to this provision. Further discussion is required.] (i) Existing Wal-Mart and Home Depot Leases. The Town’s real estate transfer tax shall not be construed to apply to the leases pursuant to which 37 1001679.14 08/311001679.15 09/07/12 Home Depot and Wal-Mart occupy their present locations within the Project as of the Effective Date or to apply to the election of lessee to exercise its rights to extend such leases in accordance with the terms of the respective original lessees. (ii) Waiver of Claims. Accordingly, the Town hereby fully and irrevocably waives any and all claim or right to impose its real estate transfer tax, and the Commercial PIC hereby fully and irrevocably waives any and all claim or right to impose the Real Estate Transfer Fee, upon the existing leases (together with extensions and options to extend thereunder) for Wal-Mart and Home Depot. (iii) Applicability of Municipal Code. Concurrently with the Effective Date, the Town has adopted Ordinance [insert number] pursuant to which it has amended Chapter 3.12 of the Municipal Code to clarify various matters relating to the circumstances under which a long term lease constitutes a Taxable Transaction for purposes of triggering an obligation to pay the Town’s real estate transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee shall be administered based Chapter 3.12 of the Municipal Code as amended by Ordinance [insert number] and in effect on the Effective Date. Transactions subject to the Town’s real estate transfer tax shall be subject to the Real Estate Transfer Fee, and payment of the Real Estate Transfer Fee shall result in the automatic and simultaneous application of the Tax Credit. The Real Estate Transfer Fee shall not be construed to be part of the Taxable Transaction, and the Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If, notwithstanding the foregoing, the Town is legally required pursuant to state statute to impose and collect its Real Estate Transfer Tax on the Real Estate Transfer Fee during the Term, the Town shall remit to TCMD 100% of the Real Estate Transfer Tax revenues actually collected. During the Term, no amendment to Ordinance [insert number] or to Chapter 3.12 of the Municipal Code shall apply to real estate transactions occurring within the Property except with the prior written consent of Master Developer. [Note: Town’s draft amendment to the RETT ordinance is under review.] (iv) Applicability to Lease Amendments. The exemption and waivers of applicability of the Town’s real estate transfer tax to long term leases executed prior to the Effective date also shall apply to any amendment to a long term lease that is executed after the Effective Date that has the effect of extending the term of such lease or establishing new or additional rights to extend the term of such lease. [Note: Revision reflects Developer’s position that existing leases should be exempt from any RETT/RETF. Town has not agreed to this.] 6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF Covenants, which require such rates to be set from time to time during the Term at: (a) Credit PIF Rates: 38 1001679.14 08/311001679.15 09/07/12 (i) Retail Sales Fee. The same rate as the corresponding Town sales tax rate as in effect from time to time. As of the Effective Date, the Town sales tax and the Retail Sales Fee each are set at the rate of 4.0%. (ii) Real Estate Transfer Fee. The same rate as the corresponding Town real estate transfer tax rate as in effect from time to time. As of the Effective Date, the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the rate of 2.0%. (iii) Accommodations/Lodging Fee. The same rate as the corresponding Town accommodations/lodging tax rate as in effect from time to time. As of the Effective Date, the Town accommodations/lodging tax and the Accommodations/Lodging Fee each are set at the rate of 4.0%. (iv) Use Tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Effective Date, such use tax shall be automatically incorporated into the definition of Taxable Transaction set forth in Exhibit G without the need of any formal action by the Town. The PICs may establish and impose a building materials use fee, which shall be included in the definition of Credit PIF, corresponding to such use tax and applying to the same transactions and at the same rate as such use tax. The Town may amend its Municipal Code to reflect the automatic Tax Credit for use tax as set forth in this sub-section, but such an amendment shall not be required to implement the automatic Tax Credit. The Parties and any party obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the Tax Credit being applied to such transactions in order to offset the effect of the Credit PIF in the same manner and to the same extent as the Tax Credit applies to retail sales transactions, real estate transfer transactions and accommodations/lodging transactions. Prior to adopting any such use tax, the Town shall coordinate with the PICs and other Parties regarding the implementation of any such use taxes and application of the Tax Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall not be deemed to be part of such Taxable Transaction and shall not be subject to application of the corresponding Town use tax. (b) Add-On RSF Rate. As of the Effective Date, the PICs have set the Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are Taxable Transactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of any other adjustments to such revenues as set forth in this Development Agreement and/or the Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions shall constitute the Municipal Payments. If the Town increases the Town’s retail sales tax rate above 4.0 % during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add-On RSF Revenues which will be construed to be Municipal Payments shall be reduced in the same degree as any Town sales tax rate increase above 4.0%. For example, if the Town increases its retail sales tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add- On RSF Revenues construed to be Municipal Payments shall be that amount equivalent to a reduction of 0.25% in the Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather 39 1001679.14 08/311001679.15 09/07/12 than the revenue realized from a rate of 0.75%). As of the Effective Date, the PICs have not imposed an Add-On PIF on transactions other than retail sales transactions that are Taxable Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF required pursuant to this Section 6.4(b). To the extent the PICs at any time after the Effective Date impose an Add-On PIF on transactions other than retail sales transactions that are Taxable Transactions and/or at a rate higher than the Add-On RSF rate, the resulting Add-On PIF Revenues shall not be construed to constitute Add-On RSF Revenues or Municipal Payments. Any Add-On PIF Revenues that do not constitute Municipal Payments pursuant to this Section 6.4(b) may be utilized as set forth in Section 6.5(b)(ii). [Town Council objected to the mechanism of a reduction to the 0.75% corresponding to any future tax increase even though it is specifically required by Paragraph 2.b. of the STS. Because it is required by the STS, this provision has not been revised.] 6.5 Add-On PIF. In implementation of the Settlement Term Sheet, and in consideration of the Town’s performance of its obligation to provide Municipal Services in accordance with Section 4.1 and the Town’s performance of its obligations pursuant to Section 4.2 and this Article 6: (a) Collection and Remittance. During the Term, the PICs shall collect, or cause the Add-On RSF Collection Agent to collect, the Add-On RSF Revenues. In accordance with the terms and conditions of the Add-On RSF Collection Services Agreement, the Add-On RSF Collection Agent shall: (i) Separate Account. Maintain Add-On RSF Revenues in a separate account from Credit PIF Revenues. (ii) Remittance of Municipal Payments. Calculate that portion of Add- On RSF Revenues received during each calendar month which comprises Municipal Payments, and after calculating that portion of the Municipal Payments required to be deposited into the Asphalt Overlay Account: (A) Deposit the required amount of Municipal Payments into the Asphalt Overlay Account; and (B) Remit any remaining Municipal Payments to the Town. (b) Uses. (i) Municipal Payments. During the Term, the Municipal Payments shall be utilized first to satisfy the Town’s Asphalt Overlay Account funding obligations as set forth in Section and thereafter may be utilized by the Town for any lawful purpose. (ii) Additional Add-On PIF Revenues. To the extent the PICs continue to impose and collect the Add-On RSF on retail sales transactions that are Taxable Transactions after expiration of the Term and/or there are from time to time during the Term Add-On PIF Revenues, including any Add-On RSF Revenues, in excess of the Municipal Payments (for example, due to a reduction in such Municipal Payments pursuant to Section 6.4(b) or due to imposition of an Add-On PIF on transactions other 40 1001679.14 08/311001679.15 09/07/12 than retail sales that are Taxable Transactions), the PICs may retain and utilize such additional Add-On PIF Revenues for any lawful purpose permitted under the terms and conditions of the PIF Covenants. The Town shall have no right or claim to any such Add-On PIF Revenues, including any Add-On RSF Revenues, that do not constitute Municipal Payments. (c) Duration. The Town’s right to receive the Municipal Payments generated through the PICs’ imposition of the Add-On RSF shall terminate concurrently with the termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(c) of this Development Agreement. (d) Implementation Period. [Note – PIC Covenant amendments have been delivered for Town review and will be Recorded when escrow breaks. The Parties will need to discuss the logistics and timing of implementing the Add-On RSF with respect to existing retailers within the Project. The Town’s cooperation/assistance will be needed. EH is consulting with Town’s finance department. Need to insert agreed upon language.] (e) Effect of Expiration of Term. Except to the extent otherwise set forth in the applicable PIF Covenants, expiration of the Term shall not have the effect of terminating the Add-On RSF or the Add-On PIF and, to the extent the PICs continue to impose the Add-On RSF and/or the Add-On PIF and to collect the Add-On RSF Revenues or any other Add-On PIF Revenues after expiration of the Term, all such Add-On PIF Revenues may be utilized as set forth in Section 6.5(b)(ii). 6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD, Master Developer and [First Bank], Avon Branch, have legally delivered and entered into the Asphalt Overlay Agreement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement, the Town has established with [First Bank, Avon Branch – EH needs to provide corrected information], a restricted, segregated account (the “Asphalt Overlay Account”) into which the Master Developer, the Town and TCMD shall deposit funds in the amounts and at the times set forth below. Such funds shall be used exclusively to finance asphalt overlays of public roads located in the Project Dedicated to the Town as described in Section 4.2(d). The Asphalt Overlay Account shall be subject to and administered in accordance with the terms and conditions of the Asphalt Overlay Agreement and the following terms and conditions: (a) Joint Funding Obligations. Commencing on the Effective Date and continuing until terminated pursuant to Section 6.6(b), Master Developer, the Town and TCMD each shall contribute funds to the Asphalt Overlay Account as follows: (i) Due Dates. All payments are due and payable on or before November 1 of each year commencing in 2013. (ii) Town Contribution. Utilizing Municipal Payments to be deposited into the Asphalt Overlay Account in accordance with Sections 6.5(a)(ii)(A) and 6.5(b)(i): 41 1001679.14 08/311001679.15 09/07/12 (A) For calendar years 2013 through 2017, the Town shall contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) per year. (B) For calendar years 2018 through and including the date on which termination occurs pursuant to Section 6.6(b), the Town shall contribute $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year. (iii) TCMD Contribution. Such contributions being Non-Cap Amounts and using available District Revenues: (A) For calendar years 2013 through 2017, TCMD shall contribute $40,000.00 (FORTY THOUSAND DOLLARS) per year. (B) For calendar years 2018 through and including the date on which termination occurs pursuant to Section 6.6(b), TCMD shall contribute $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year. (iv) Master Developer Contribution. Such contributions being Cap Amounts only to the extent reimbursable from TCMD using Credit PIF Revenues (and therefore qualifying as Additional Developer Advances): (A) For calendar years 2013 through 2017, Master Developer shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year. (B) Notwithstanding any continuing obligation of the Town and TCMD to contribute funds to the Asphalt Overlay Account after calendar year 2017, Master Developer shall not have any obligation to contribute funds to the Asphalt Overlay Account after satisfying the obligation set forth in the foregoing clause (A). (b) Termination of Joint Funding Obligations. The joint funding obligations of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the Town and TCMD with respect to the Asphalt Overlay Account shall terminate upon the occurrence of the earlier of: (i) 80,000 square feet of additional commercial (as defined in the PUD Guide) development have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions have increased by at least $20,000,000 over the actual total annual Taxable Transactions in 2011. From and after the date that the joint funding obligations terminate as provided herein: (A) the Town shall be and remain solely responsible for performing and funding asphalt overlays for all public roads within the Project Dedicated to the Town; (B) Master Developer and TCMD shall have no further obligation with respect to funding of asphalt overlays within the Project; (C) the obligations of Master Developer and TCMD to provide such funding shall not be reinstated upon any subsequent reduction of commercial occupancy or reduction of total annual Taxable Transactions; and (D) the expenditures and appropriations by the Town for asphalt overlays in excess of the amounts deposited in the Asphalt Overlay Account shall not be counted against the Credit PIF Cap. 42 1001679.14 08/311001679.15 09/07/12 6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In implementation of the Settlement Term Sheet, the Master Developer and the Landowner(s) of the affected Sites within Lot 1 shall provide their timely, full and reasonable cooperation in assisting the Town and AURA in the creation of an urban renewal plan for Lot 1 in accordance with the terms and conditions of this Section 6.7; provided, however, that Master Developer and any other Landowner(s) shall not be required to cooperate in the creation or implementation of such urban renewal plan unless Master Developer has provided its written consent to all terms and conditions of the urban renewal plan prior to its adoption. Master Developer and any other Landowner(s) shall have the right to oppose any urban renewal plan for Lot 1 (or any other area of the Property) that does not include a provision that expressly prohibits the Town or AURA from exercising eminent domain powers or, unless Master Developer has provided its written consent to such urban renewal plan for Lot 1 as contemplated herein, for any other reason permitted under the laws of the State of Colorado. Master Developer or any Landowner(s) of a Site within Lot 1shall have no obligation to cooperate with the formation of an urban renewal plan area for Lot 1 if Master Developer has not provided prior written consent as required above or if the Town and/or AURA fails to adhere to the following terms and conditions. (a) Limited to Lot 1. The area included within the urban renewal plan is limited to Lot 1 or a portion thereof. (b) Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN MILLION DOLLARS) of Net Proceeds of AURA bonds or other financial obligation (whether in the form of bonds, direct payments, redevelopment agreement(s) and/or cooperation/funding agreement(s)) issued or incurred to pay Cap Amounts may be counted against and thereby reduce the remaining Credit PIF Cap; provided, however, that the cost of improvements to or servicing Town-owned properties (by way of example and not limitation, improvements located within, utilities extensions servicing and/or access to and from Planning Area B, Planning Area E, or park/open space areas Dedicated to the Town ), whether financed utilizing TIF Revenues or other revenues of the Town or AURA, shall not result in a reduction of the Credit PIF Cap. (c) AURA Board Positions. Prior to or concurrently with the effective date of any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an urban renewal plan therefore, the Town and AURA shall take action to appoint an individual designated by Master Developer and shall take action to appoint an individual designated by BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA board. The Master Developer and BNP board members shall be full members of the AURA board with equal rights, duties and responsibilities as other AURA board members with respect to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof) and all AURA activities of any nature that directly or indirectly involve the establishment, implementation and administration of any urban renewal area including or any urban renewal plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with statutory requirements regarding conflicts of interest. If the AURA board for activities affecting Lot 1 is constituted as a separate board from that which operates within other areas of the Town, such BNP and Master Developer board members shall be full members for all purposes having equal standing with other board members. If the AURA board is not constituted as a separate board from that with operates within other areas of the Town, the BNP and Master Developer 43 1001679.14 08/311001679.15 09/07/12 board members shall have no authority or standing to participate in AURA board activities pertaining to areas of the Town other than Lot 1, and shall recuse themselves from all such proceedings. BNP’s right to have a member on the AURA board shall expire and terminate at such time as there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds. (d) TCMD and VMD Taxes. The urban renewal plan for any urban renewal area that includes Lot 1 (or any portion thereof), and all related governing and implementing documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1 (or any portion thereof) within the urban renewal area. No portion of the property tax increment revenues resulting from the Districts’ mill levies shall be retained or utilized by AURA for any purpose, and shall specifically not be pledged or utilized by AURA for repayment of any bonds issued or other financial obligations entered into by AURA. (e) TIF Revenues; Uses. The urban renewal plan(s) shall not contain any provision for capturing the increment of municipal sales taxes, and shall be expressly limited to capturing the increment of property taxes within the urban renewal area (subject to Section 6.7(d)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s) containing all or any part of Lot 1 solely within the Project. Improvements undertaken or financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and approval of the Design Review Board where applicable. (f) Funding Agreement(s) with Districts. AURA may enter into enforceable multiple fiscal year cooperation/funding agreements with a District providing that the TIF Revenues will be assigned to the District for the purpose of financing, through the District’s issuance of bonds or otherwise, eligible Capital Projects. (g) Priority of Use of TIF Revenues. The priority of AURA’s use of TIF Revenues generated from within the urban renewal plan area(s) established within the Property pursuant to this Section 6.7 are: [Town Council objects to what it characterized as a restriction on the priority of use of TIF. This provision does not restrict the Town’s discretion, but instead states a condition of Master Developer’s cooperation being required. It is noted that Schedule 3 of the STS states that “Improvement of Planning Areas B and C will be at TOA’s cost and will be subject to prior review and approval by Village DRB.” Because improvement of PA-B is “at TOA’s cost” and not at AURA’s cost, the following priority of TIF Revenue use is consistent with the STS, is consistent with the Town’s focus on the Prioritized Capital Projects, is consistent with the Town’s objective to accelerate the time when the Term expires and reduce the demand on Credit PIF Revenues, and is appropriate to state as a condition of the plan that would trigger the cooperation obligation. Given that AURA is a separate legal entity from the Town, and that the STS states PA-B improvements are at “TOA’s cost” (and not AURA’s), a strict literal reading of the STS would, in fact, preclude AURA’s use of TIF Revenues for improvements to PA- B, although it is recognized that Paragraphs 10.b.ii. does refer to use of TIF Revenues for 44 1001679.14 08/311001679.15 09/07/12 PA-B. Thus, the STS provisions, at a minimum, require reconciliation and the proposal below addresses that need.] (i) First, until the Credit PIF Cap reduction contemplated by Section 6.7(b) has been accomplished, to fund Prioritized Capital Projects. (ii) Second, to the extent there are sufficient TIF Revenues remaining after satisfaction of clause (i) above, to fund any Prioritized Capital Projects remaining to be financed and completed, any other Capital Projects that result in a reduction of the Credit PIF Cap pursuant to the terms and conditions of Section 6.7(b) (which, for avoidance of doubt, may include structured parking within Lot 1 to provide shared public parking for private improvements and public improvements constructed within Planning Area B (which are otherwise the sole obligation of the Town and not of AURA) and other areas of Lot 1, and may include improvements to Town-owned property within Lot 1). 6.8 Tank Agreement. Prior to the Effective Date and in implementation of the Settlement Term Sheet, certain parties thereto legally delivered and entered into the Tank Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge Agreement has been executed and delivered. As more specifically set forth in the Tank Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i) TCMD is obligated to remit the Annual Debt Service Pledge Amount to the Authority; and (ii) the Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service Pledge Amount revenues to pay debt service on the Tank Project Bonds. As of the Effective Date, BNP has provided the original letters of credit securing payment of the TCMD Bond Reissue, consented to this Development Agreement and consented to the Tank Agreement in reliance on the Town’s performance of its obligation to maintain the Tax Credit in effect as required pursuant to this Development Agreement, and on the remedies provided for herein for the Town’s breach of its obligation to maintain the Tax Credit. 6.9 TCMD Bond Reissue; Priority Use of District Revenues. In implementation of the Settlement Term Sheet: (a) TCMD Bond Reissue. Concurrently with the Effective Date and with the consent of BNP and Master Developer, TCMD has caused the TCMD Bond Reissue to be effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in reliance on the Town’s performance of its obligations pursuant to this Development Agreement (specifically including but not limited to the Town’s obligation to maintain the Tax Credit in effect during the Term), and on the remedies provided for herein for the Town’s breach of its obligations under this Development Agreement (including but not limited to the right to obtain an order requiring specific performance of the Town’s obligation to maintain the Tax Credit). The TCMD Reissue Documents encumber and, consistent with the Settlement Term Sheet, establish the terms and conditions of TCMD’s utilization of District Revenues. Prior to the Effective Date, the Town reviewed and approved the TCMD Reissue Documents for consistency with this Development Agreement. 45 1001679.14 08/311001679.15 09/07/12 (b) Priority of Use of District Revenues. District Revenues are to be utilized to meet TCMD obligations in the following priority: (i) Annual Debt Service Pledge Amount. To the Authority, for the Annual Debt Service Pledge Amount, from such sources, in the amounts and at such times required by the Pledge Agreement. (ii) Other Allowed O&M Expenses. Provided there is no continuing default with respect to its obligations pursuant to the TCMD Bond Documents, to TCMD in the amount of the Base O&M Amount and TCMD’s contributions to the Asphalt Overlay Account. (iii) TCMD Bond Reissue. To TCMD (or the trustee for the TCMD Bond Reissue) for principal repayment or reimbursement and Bond Requirements related to the TCMD Bond Reissue as required by the TCMD Reissue Documents, which includes, without limitation, establishment and, as necessary, replenishment of the required reserve of $3,000,000, and any refunding bonds issued to repay or defease the TCMD Bond Reissue. (iv) Deferred BNP Letter of Credit Fees and Deferred Amortization. To pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization. The prepayment or refinancing of the TCMD Bond Reissue shall require payment in full of, or other extinguishment in full of the payment obligation with respect to, any such Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be applied in inverse order of maturity. (v) Use of Excess Revenues. (A) Prepayment of TCMD Bond Reissue. In any year in which any District Revenues remain after the payment of the items set forth in subsections (i)-(iv) above and the Debt Service Coverage Ratio is less than 150%, such excess revenues shall be applied to early payment of principal of the TCMD Bond Reissue in inverse order of maturity. (B) Other Obligations of TCMD. In any year in which any District Revenues remain after the payment of the items set forth in subsections (i)-(iv) above and the Debt Service Coverage Ratio is 150% or greater: 1. Supplemental Bonds. To the extent Supplemental Bonds have been issued (whether in the form of Additional Developer Advances or municipal bonds), for principal repayment or reimbursement and payment of interest and other Bond Requirements related to such Supplemental Bonds in accordance with the terms and conditions thereof and any refunding bonds issued to repay or defease any such Supplemental Bonds. 46 1001679.14 08/311001679.15 09/07/12 2. Cure Payments. To the extent the Town has exercised any cure rights pursuant to Section 6.11 to cure a deficiency in payment of principal or the Bond Requirements of the Tank Project Bonds or the TCMD Bond Reissue, to reimburse the Town for the amount of such payments and interest thereon at the non-default interest rate commensurate with the interest paid to bondholders at the time of the cure payment. 3. Past Developer Advances and Avon Receivable. To satisfy TCMD’s payment obligations with respect to the Past Developer Advances (including amounts payable to Buffalo Ridge Affordable Housing Corporation) and the Avon Receivable, subject to the following: I. The Past Developer Advances (including any Replacement Bonds issued to repay or defease all or a portion of the Past Developer Advances) and the Avon Receivable shall be paid in the order in which TCMD incurred the obligations, with the oldest obligation to be paid first, except to the extent such priority of payment conflicts with the priority and terms of the instrument creating the obligation in which case such priority and terms shall control. With respect to the Past Developer Advances, the obligations shall be deemed to have been incurred as of the dates set forth in the instruments creating the obligations. With respect to the Avon Receivable, the obligation shall be deemed to have been incurred as of the dates on which payments were due under the terms of the Original Agreement and/or any Municipal Service Invoice (as the Original Agreement defined such term). The Past Developer Advances, the Avon Receivable, and the dates on which such obligations were incurred are more particularly described in Exhibit E. II. Simple interest shall accrue on the principal amount of the Avon Receivable commencing on October 7, 2011, at the rate of 8% per annum until the Effective Date. Commencing on the Effective Date and continuing until the expiration of the Term or payment in full, whichever first occurs, simple interest shall accrue on the principal amount of the Avon Receivable at the rate of 1.5%. The interest accrued at 8% prior to the Effective Date shall not be construed to be a principle amount of the Avon Receivable that is subject to accrual of further interest after the Effective Date. . [Note: Although not in the STS, Developers and TCMD have provisionally agreed to the foregoingpreviously stated they’d consider the Town’s 47 1001679.14 08/311001679.15 09/07/12 request for 8% interest on the Avon Receivable, subject to satisfactory resolution of other matters. For purposes of this revision, the provision has been deleted because it is not in the STS.] III. Except to the extent stated in this clause 3, the interest rate applicable to the Past Developer Advances shall be as stated in the instruments creating such obligations. Notwithstanding the foregoing or any contrary provision of the instruments creating such obligations, the interest rate on certain Past Developer Advances payable to Master Developer or any Developer Affiliate shall: (A) with respect to a principal amount equal to the principal amount of the Avon Receivable be limited to 1.5% simple interest per annum, commencing on the Effective Date; and (B) such reduced interest rate shall be applied first to the principal balance of the latest (i.e., most recently executed) such instrument and then to each subsequent (i.e., next most recently executed) instrument until a principal amount equal to the principal amount of the Avon Receivable is obtained. IV. The rate of interest and priority of payment with respect to that portion of the Past Developer Advances payable to Buffalo Ridge Affordable Housing Corporation shall be as set forth in the document creating such obligation, shall not be modified in any manner by the terms and conditions of this Development Agreement, and shall remain in full force and effect in accordance with the existing terms except to the extent as may be modified by mutual agreement of TCMD, Master Developer and Buffalo Ridge Affordable Housing Corporation. Such agreement to modify the interest rate, priority of payment or other terms is expressly not a condition of this Development Agreement. (C) Direct Payment of Capital Project Costs. After the obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A) and (v)(B) are fully satisfied and to the extent not expressly precluded by any provision of this Development Agreement, that portion of available Credit PIF Revenues shall be deposited to an escrow account to be used exclusively for direct payment of Capital Project Costs. (c) Other Legally Permissible Uses of District Revenues. Subject to the limitations in the Service Plans, the Tank Project Bonds documents and the TCMD Reissue Documents, nothing herein shall be construed as prohibiting the Districts from utilizing District Revenues for any other uses not enumerated above or from imposing a mill levy and retaining 48 1001679.14 08/311001679.15 09/07/12 the revenues derived therefrom for the purpose of paying theirfor Capital Project Costs and/or of paying the Districts’ operation, maintenance and administrative expenses to the extent that such costs exceed the Allowed O&M Expenses and/or capital costs of Public Improvements. The uses of that; provided, however, that the portion of District Revenues comprising Credit PIF Revenues shall be those useslimited solely to the Permitted Uses as set forth in Section 6.2(d) and as otherwise limited in this Development Agreement. a). [Note: This provision has been revised in response to questions from Town Council and EH, with the intent of further clarifying that Credit PIF Revenues are limited to Permitted Uses. The incorrect cross reference to § 6.2(d) has been revised to correctly cross reference § 6.2(a).] (d) Continuation of Priority of Use. If TCMD issues any form of replacement or refunding bonds for the TCMD Bond Reissue and/or issues Supplemental Bonds, TCMD shall cause the pertinent documentation executed in connection therewith to incorporate the general prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve such documentation for the limited purpose of confirming conformance with the general prioritization set forth in Section 6.9(b). 6.10 Supplemental Bonds. If TCMD issues Supplemental Bonds on or before January 2, 2040, TCMD shall continue to receive Credit PIF Revenues until the Tax Credit terminates upon satisfaction of the full Credit PIF Cap. If TCMD has not issued Supplemental Bonds prior to January 2, 2040: (i) the Town shall have no further obligation with respect to satisfaction of the full Credit PIF Cap; (ii) the Tax Credit shall be maintained in effect until all District Debts payable from Credit PIF Revenues as set forth in Section 6.2(d) and outstanding as of January 2, 2040 are fully paid; and (iii) TCMD shall be entitled to retain and utilize all Credit PIF Revenues it has received prior or subsequent to January 2, 2040 to be used for servicing District Debts. Supplemental Bonds shall not be issued with interest rates that exceed market rates. The market rate of interest for Supplemental Bonds shall not exceed the Municipal Market Data rate for Baa investment grade bonds plus one point five percent (1.50%) (“Supplemental Bond Interest Rate”. To the extent the District intends to issue bonds with an interest rate that exceeds or could exceed of the Supplemental Bond Interest Rate, the District will obtain the prior written consent of the Parties to this Agreement. The market rate of interest for Additional Developer Advances shall be eight percent (8%) simple interest until paid in full.[Note: EH has flagged this provision, along with §§ 6.11, 6.21 and 6.23 as requiring further discussion. The reason for this, and the relationship among these provisions is unclear. Further discussion is required. Additionally, it is noted that the STS simply states that Supplemental Bonds are to have “interest at market rates.” The foregoing deleted provisions were considered and previously added at the Town’s request on the theory that it would be mutually beneficial to have a mutual understanding of what is meant by “market rates.” Strict adherence to the literal terms of the STS would dictate removing these artificial upper limits on what “market rates” would be at any given point in time. For purposes of this revision, language tracking the STS has been left and language supplementing the STS has been deleted.] 6.11 Replacement Bonds. Subject to any applicable terms and conditions of the TCMD Reissue Documents, on or after the Effective Date, TCMD shall have the ongoing right to issue bonds payable with District Revenues other than Credit PIF Revenues to extinguish, replace, refund or defease Past Developer Advances (“Replacement Bonds”). The principal amount of the Replacement Bonds shall not exceed $12.4 million without the Town’s prior 49 1001679.14 08/311001679.15 09/07/12 written approval, and the interest rate of such Replacement Bonds shall bear a lower interest rate than such Past Developer Advances. For the purposes of determining the maximum allowable interest rate of Replacement Bonds, the interest rate of Past Developer Advances which are extinguished, replaced, refunded or defeased with Replacement Bonds (but excluding from such calculation those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.III) shall be averaged with regard to the respective interest rate and amount of principal to determine the net effective interest rate. The interest rate of Past Developer Advances (excluding those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.III) shall be as determined by this Development Agreement on the Effective Date. The amount of such Replacement Bonds, or any bonds issued to defease such Replacement Bonds in whole or in part, shall not count against the Credit PIF Cap to avoid counting the amount of the Past Developer Advances more than once which have already been applied to the Credit PIF Cap. To the extent the accrued and unpaid interest payable under the terms of the Past Developer Advance documents is not capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be carried forward as an accrued and unpaid interest obligation under the terms of the Past Developer Advance documents, the unpaid interest obligation shall not bear any interest, and the unpaid interest obligation shall not be discharged until paid in full. [Note: EH has flagged this provision, along with §§ 6.10, 6.21 and 6.23 as requiring further discussion. The reason for this, and the relationship among these provisions is unclear. Further discussion is required.] 6.12 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the Town shall have the right, but not the obligation, to cure any TCMD payment default under the Tank Project Bonds, the TCMD Reissue Bonds or any Supplemental Bonds and to receive reimbursement of any such cure payments in accordance with the terms and conditions of Section 6.9(b)(v)(B)2. 6.13 Town Funding of Credit PIF Cap. At any time after the TCMD Bond Reissue obligations have been fully satisfied, the Town shall have the right, but not the obligation, to pay off all or a portion of the then-outstanding District Debt and/or satisfy the Town’s obligation with respect to funding the full Credit PIF Cap as follows: (a) Full Funding of Credit PIF Cap. The Town shall have the right to fully fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debt; and (ii) remitting to TCMD the principal amount of any remaining Supplemental Bonds capacity which has not yet been issued as of the date of payoff. The total obligation to TCMD shall not exceed the Credit PIF Cap. For example, if the sum of the principal amount of previously retired TCMD Bond Reissue obligations and other District Debt retired by the Town totals $80 million, the principal amount of unissued Supplemental Bonds to be paid by the Town to TCMD would be $16 million [$96 million - $80 million = $16 million]. Upon remitting the funds to fully fund the payoff amounts pursuant to the foregoing terms and conditions, the Town shall be entitled to terminate the Tax Credit. Simultaneously with Town’s exercise of its right to terminate the Tax Credit, the PICs’ obligation to cause the Municipal Payments to be remitted to the Town pursuant to the terms and conditions of this Development Agreement, and all right or claim of the Town to receive any portion of the Add-On RSF Revenues imposed after the date which Town exercises 50 1001679.14 08/311001679.15 09/07/12 its right to terminate the Tax Credit, shall automatically and without the requirement of further action terminate, be of no further force or effect, and be forever extinguished. (b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to pay off the then-outstanding District Debt but not to advance the funds required to fund the unissued Supplemental Bond capacity remaining available to TCMD. In such event and as otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for the duration of the Term, the PICs shall continue to impose the Credit PIF and cause the collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal Payments to be remitted to the Town. All Credit PIF Revenues available to TCMD (for example, not otherwise encumbered by and required to service debt on Supplemental Bonds issued after the date of the Town’s payoff) shall be placed in escrow by TCMD and applied from time to time toward Supplemental Bonds and/or direct payment of Capital Project Costs. The Credit PIF Revenues placed into escrow shall be subject to an agreement which grants the Town the right to enforce, restrict and limit the use of such escrow funds for payment of Capital Project Costs. 6.14 Internet, Mail Order and Similar Remote Taxable Transactions. The Parties intend that retail sales transactions effected remotely should be subject to the Credit PIF and the Tax Credit whether such remote transactions are effected via the internet, by mail order or otherwise delivered into the Project such that the transaction is a Taxable Transaction. However, due to logistical and practical impediments to causing the Credit PIF and the Tax Credit to attach to such transactions or otherwise tracking and allocating such revenues, it has not heretofore been possible to effect the Financing Plan with respect to such remote transactions. From and after the Effective Date, by not later than March 1 of each year during the Term, the Town shall on an annual basis provide to TCMD, BNP and Master Developer a written accounting of the aggregate sales taxes received by the Town during the prior calendar year as a result of such remote transactions. Concurrently with delivery of the written accounting, the Town shall remit to TCMD a proportionate share of such remote sales tax receipts in an amount equal to the ratio of residential dwelling units within the Project to the total residential dwelling units within the Town pursuant to the following formula: [(total residential dwelling units within the Project / total residential dwelling units within the Town) x sales tax receipts from remote transactions = amount payable to TCMD]. If the Parties identify a more precise and equitable method of implementing the intent of this Section 6.14 (for example, causing the Property to be established as an independent and separate zip code from the rest of the Town to enable precise tracking of sales taxes generated from remote Taxable Transactions effected within the Property), such method may be implemented by amendment to this Development Agreement in accordance with Section 1.5. [Note: Town has not agreed to this provision. BNP is considering its position. It is at issue in the litigation and should be resolved.] 6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose, collect, receive, retain, expend or utilize Town taxes imposed upon PIC fees as described herein. In the event that the Town is legally required by municipal, state or federal law to impose the Town’s tax on a PIC fee as described herein, the Town shall remit the full amount of the Town tax imposed upon the PIC fee to TCMD and such revenues shall be included with and be subject to the same terms, conditions and restrictions as Credit PIF Revenues. 51 1001679.14 08/311001679.15 09/07/12 (a) Use Tax. In the event that the Town enacts and imposes a use tax on building materials, the Town shall not impose such Town use tax on any Use Fee. (b) Real Estate Transfer Tax. The Town’s real estate transfer tax shall not apply to the Real Estate Transfer Fee. (c) Accommodations Tax Applied to PIF. The Accommodations/Lodging Fee shall not be construed to be part of the Taxable Transaction. The Accommodations/Lodging Fee shall not be subject to the Town’s accommodations tax. [Note: The Town requested this provision be included in Section 6.16. The STS does not contemplate Town imposing or retaining this tax, and Developers have therefore relocated it to Section 6.15. ] 6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain, expend and utilize for any lawful Town purpose in the Town’s discretion the following tax revenues: [General Note: Sections 6.15 and 6.16 require re-evaluation if Town Council adheres to the literalist/minimalist STS approach. Various of these matters are at issue in, or implicated by, the litigation, but the STS does not literally require this.] (a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF added to each retail sales transaction shall be included in the Taxable Transaction. The Retail Sales Fee and Add-On RSF shall be subject to the Town’s municipal sales tax and the Town is entitled to collect, receive, retain, expend and utilize such sales tax revenues. (b) Accommodations Tax Applied to PIF. The Accommodations/Lodging Fee shall be included in the Taxable Transaction. The Accommodations/Lodging Fee shall be subject to the Town’s accommodations tax. The Town’s sales tax and accommodations tax shall be cumulatively applied to the Retail Sales Fee, the Add-On RSF and the Accommodations/Lodging Fee and the Town is entitled to collect, receive, retain, expend and utilize such combined sales and accommodations tax revenue. [Note: Developers have not agreed to this provision, which is not in the STS. It should be revised accordingly and moved to § 6.15.] (b) (c) Town Ad Valorem Taxes. The Town is entitled to collect, receive, retain, expend and utilize all ad valorem property tax revenues resulting from imposition of the Town’s property tax mill levy within the Project. (c) (d) Town Share of Eagle County Sales Taxes. The Town is entitled to collect, receive, receive, expend and utilize any portion of Eagle County’s sales revenues generated by transactions occurring within the Project to which the Town is entitled to receive pursuant to any agreements with Eagle County in effect from time to time. (d) (e) Future Taxes, Assessments and Fees. The Town is entitled to collect, receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees imposed by the Town and not addressed in this Development Agreement which are imposed uniformly and non-discriminately throughout the Town. [Note: EH has indicated this provision needs to be reconciled with § 3.9. The basis of the concern is unclear and requires further discussion.] 52 1001679.14 08/311001679.15 09/07/12 6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall maintain adequate books and records to accurately perform and account for their respective obligations under this Development Agreement. Each such Party shall, upon request of any other such Party, permit representatives of such requesting entity reasonable access during normal business hours to review and, at the requesting entity’s expense, audit such books and records in order to permit such requesting entity to determine compliance with the terms of this Development Agreement or the accuracy of any information contained in any statement, notice, invoice or report required to be provided under this Development Agreement. All such Parties shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any such statement, notice, invoice or report or in such requesting entity’s review or audit of the applicable books and records. For so long as BNP is providing a Letter of Credit to secure the TCMD Bond Reissue or any amounts are due and owing to BNP in connection with the TCMD Bond Reissue, BNP shall have the same right to reasonable access to review and audit books and records to determine compliance with the terms of this Development Agreement or the accuracy of any information as set forth above with respect to the Town, AURA, the PICS and the Districts. 6.18 Cooperation Regarding Delinquent Credit PIF RevenuesPublic Improvement Fees. If the PICs are unable to collect any portion of the Credit PIF RevenuesPublic Improvement Fees due to delinquency, deficiency, or failure to file, the PICs may promptly notify the Town in writing, and the Town shall institute the procedures authorized under the Municipal Code to enforce and collect the corresponding Town tax, interest, penalties and costs. The Town shall then remit such tax revenues to the PICs or to the District, subject to the following conditions: (a) the Town shall retain an amount equal to its costs incurred in enforcing its collection of taxes under the Municipal Code, as well as an administrative fee equal to 20% of any tax and/or penalty actually collected; (b) the obligation is subject to any prior lien on such Town taxes securing the Town’s sales tax revenue bonds outstanding as of the date of the Original Agreement; (c) the Town will have no responsibility to collect Add-On RSF RevenuesPublic Improvement Fees which are in excess of the corresponding Town tax or which are assessed against any transaction that is exempt from the corresponding Town tax under the Municipal Code as then in effect; and (d) the Town does not guarantee or insure that it will be able to collect any delinquent or deficient Credit PIF RevenuesPublic Improvement Fees. Under no circumstances shall the Town be subject to any legal liability to the PICs or to the Districts on account of the Town’s failure to collect some or all of the delinquent or deficient Credit PIF RevenuesPublic Improvement Fees on behalf of such entities. The Town acknowledges that if the person or entity which failed to timely remit such Credit PIF RevenuePublic Improvement Fees subsequently remits such Credit PIF RevenuePublic Improvement Fees to the applicable PIC, such payment shall result in the application of a simultaneous creditthe Tax Credit (if applicable) against such person or entity’s corresponding tax obligation (if any), which creditTax Credit shall fully satisfy any corresponding tax liability to the Town. The Town shall nevertheless be entitled to recover from the PICs the administrative fee and any costs incurred in the enforcement and recovery of such Credit PIF Revenues.Public Improvement Fees. [Note: Revisions to this provision have been made to make it more directly consistent with the corresponding provision in the Original Agreement, replacing the term “Credit PIF Revenues” with the term “Public Improvement Fees” and including related language from the Original Agreement.] 53 1001679.14 08/311001679.15 09/07/12 6.19 Creation of Additional PICs and/or Districts. Master Developer reserves the right to create such additional PICs as may be necessary or desirable from time to time. With the prior written consent of BNP (for so long as there are outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds) and Master Developer, the applicable Landowner(s) may petition for the creation of additional Districts to provide services and/or Public Improvements and/or other forms of improvements benefiting all or any portion of the Property. The Town shall reasonably cooperate with Master Developer and such Landowners, as applicable, with respect to the creation of such additional PICs and/or Districts. 6.20 Operation of PICs and Districts. The formation documents of the PICs and the Districts, together with contracts entered into by and between the PICs and the Districts, require the PICs and the Districts to honor their obligations under this Development Agreement, including the obligation of the PICs to cause the Credit PIF Revenues and the Add-On RSF Revenues to be imposed, collected, remitted and utilized as required by the terms of this Development Agreement. The Town shall cooperate with the operation of the Districts, and with implementation of the Financing Plan. 6.21 Dissolution of Districts. Unless Master Developer requests in writing that the Town to do so earlier, the Town shall not initiate or pursue any proceeding to dissolve any District prior to expiration of the Termuntil after the earlier to occur of either: (a) the twenty- fifth (25th) anniversary of the first issuance of bonds by either District; or (b) such time as all infrastructure improvements and public amenities contemplated in the service plans for the Districts have been constructed and no issued general obligations or revenue obligations of the Districts remain outstanding with respect thereto. Any dissolution of any District shall be conducted in accordance with the provisions and procedures set forth in Colorado Revised Statutes §§ 32-1-701, et seq. as may be amended from time to time. [Note: The Town has not approved the initial sentence, which is under discussion but has been deleted and replaced with the corresponding initial sentence from the Original Agreement (§ 4.7). Town Council and EH object to this sentence, in part, on the basis that the STS does not require it. Note: EH has flagged this provision, along with §§ 6.10, 6.11 and 6.23 as requiring further discussion. The reason for this, and the relationship among these provisions is unclear. Further discussion is required.] 6.22 Restrictive Covenant Regarding Relocation of City Market. As of the Effective Date, a City Market grocery store is located within an area of the Town that is not within the Property and the City Market is a significant sales tax generator for the Town. A relocation during the Term of the City Market from its existing location as of the Effective Date to the Property would potentially result in a significant sales tax loss to the Town. Therefore, during the Term this Section 6.22 shall constitute a restrictive covenant precluding any Landowner from consummating the sale or lease of any portion of the Property to the existing City Market (including for purposes hereof its successors and assigns) for purposes of relocating the existing City Market from its current location to a location within the Property without the Parties having first executed, with the prior written consent of BNP (for so long as there are outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds), an amendment to this Section 6.22 which sets forth the terms and conditions upon which BNP (for so long as so long as there are outstanding obligations to BNP under the 54 1001679.14 08/311001679.15 09/07/12 TCMD Reissue Documents or any subsequent reissue or refunding of such bonds), the Parties and the pertinent Landowner have agreed to permit such relocation of the City Market from its current location to a location within the Property. The foregoing restrictive covenant shall not be construed to apply to a City Market locating with the Property following the closure and cessation of business operations of the existing City Market for a period of twenty-four consecutive months. [Note: Developers have provisionallypreviously agreed to consider the foregoing deleted language, dependent on satisfactory resolution of other open matters, including but not limited to, what counts against the Credit PIF Cap, additional commercial density in the PUD and access to PA-I. EH has proposed additional provisions, which the other Parties are reviewing. The STS expressly states that sales tax indemnity is replaced by the Municipal Payments, so this provision, in any form, would be contrary to the STS. For present purposes, it has been deleted for that reason.] 6.23 Relationship to TCMD Service Plan and VMD Service Plan. The obligations and rights of the Districts set forth in this Development Agreement and their performance and exercise thereof, if and to the extent in conflict with any provisions of the TCMD Service Plan or the VMD Service Plan, respectively, are hereby approved by the Town and shall not be interpreted or construed as violations or material modifications to the service plans. [The Town objects to the inclusion of this provision. Applicant’s view this provision as important to retain because it addresses a matter the Town placed at issue in the litigation. It is further noted that VMD was not a party to the STS, and for that reason was not addressed in the STS. Note: EH has flagged this provision, along with §§ 6.10, 6.11 and 6.21 as requiring further discussion. The reason for this, and the relationship among these provisions is unclear. Further discussion is required.] ARTICLE 7 DEFAULT; REMEDIES 7.1 Default by Town. A “breach” or “default” by the Town shall be defined as: (i) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Master Developer’s and the affected Landowner’s or Landowners’ consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise adversely affects any development, use or other rights of the Landowners under this Development Agreement or the Development Plan; or (ii) the Town’s failure to fulfill or perform any obligation of the Town that is expressly set forth in this Development Agreement. 7.2 Default by TCMD. A “breach” or “default” by a TCMD shall be defined as TCMD’s failure to fulfill or perform any obligation of TCMD that is expressly set forth in this Development Agreement. 7.3 Default by Master Developer. A “breach” or “default” by Master Developer shall be defined as Master Developer’s failure to fulfill or perform any obligation of Master Developer that is expressly set forth in this Development Agreement. 7.4 Default by Limited Party. A “breach” or “default” by a Limited Party shall be defined as such Limited Party’s failure to fulfill or perform any obligation of such Limited Party that is expressly set forth in this Development Agreement. 55 1001679.14 08/311001679.15 09/07/12 7.5 No Cross-Defaults. No default by a Party or a Limited Party that is asserted or judicially determined to exist under this Development Agreement shall be construed to constitute a default of any other Party or Limited Party under this Development Agreement. No default of a Party or a Limited Party that is asserted or judicially determined to exist under this Development Agreement shall be construed to constitute a default of such Party or Limited Party under any other agreement to which such Party or Limited Party is a party. No default of a Party or a Limited Party that is asserted or judicially determined to exist under another agreement to which such Party or Limited Party is a party shall be construed to constitute a default by such Party or Limited Party under this Development Agreement. 7.6 Notices of Default. In the event of a default by a Party under this Development Agreement, the non-defaulting Party shall deliver written notice to the defaulting Party of such default, at the address specified in Section 8.12, and the defaulting Party shall have 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 30-day period and the defaulting Party gives written notice to the non-defaulting Party within such 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 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. 7.7 Remedies. (a) General. If any default under this Development Agreement is not cured as described in Section 7.6, any non-defaulting Party and/or any non-defaulting Limited Party shall, except to the extent otherwise limited by an express provision of this Development Agreement, be entitled to enforce the provisions and any remedy provided in this Development Agreement at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance or damages or a combination may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance of the defaulting Party’s or defaulting Limited Party’s obligations and/or damages. All of the remedies permitted or available under this Development Agreement, at law, by statute or in equity shall be cumulative and not in the alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. For the avoidance of doubt and in order to clarify the effect of the foregoing as it relates to the Financing Plan,: (i) the Town hereby forever waives and relinquishes any claim or right to terminate the Tax Credit for so long as any District Debts remain outstanding. Additionally,; and (ii) in consideration of this Development Agreement constituting an intergovernmental agreement by and among the Town, AURA, TCMD and VMD pursuant to C.R.S. §§ 29-1-204 and 29-20-105, each such governmental or quasi governmental entity expressly acknowledges that the Town, AURA, TCMD and VMD each shall have standing to enforce this Development Agreement, including specific performance, and affirms its intent that the obligations of each such governmental or quasi-governmental entity are to be enforced in accordance with their terms and each such entity expressly waives any right to object to or assert any defense against the entry of an order requiring specific performance (or other mandatory or prohibitory injunctive 56 1001679.14 08/311001679.15 09/07/12 relief) of such obligations. [Note: The Town requested the addition of a waiver of right to offset. There is no requirement in the STS to provide for the waiver of the right of offset. If Developers were to consider including it, a clause (iii) might be added as follows: “to the extent any Party could be construed to have a right of offset against the Municipal Payments under any legal or equitable theory, such Party expressly waives any such right of offset.” However, the provision has not been revised at this time pending further discussion on the general topic of the scope of STS obligations and satisfactory resolution of remaining open issues.] (b) Impairment of Vested Property Rights. The Town acknowledges that this Development Agreement and the Development Plan 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 an uncured breach or default by the Town, in addition to any other remedies, Master Developer and any affected Landowner shall be entitled to: (i) recover from the Town the Past Developer Advances and any other damages that would have been specifically available pursuant to C.R.S. § 24-68-105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. (ii) cause the Property, or any portion thereof designated by Master Developer and the pertinent Landowner, to be disconnected from the Town. (c) Limited Parties. The Limited Parties’ remedies shall be as follows: (i) AURA. AURA shall have no rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party. (ii) EMD. EMD shall all rights and remedies available to Master Developer. (iii) The Commercial PIC. The Commercial PIC’s rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: (A) Pursuant to Sections 4.2(a) and 6.1(b), the right to enforce the Town’s obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town’s cooperation in implementing the Add-On RSF. (C) Pursuant to Sections 6.3(a) through (c), the right to enforce the Town’s obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee. 57 1001679.14 08/311001679.15 09/07/12 (D) Pursuant to Section 6.5(b), the right to enforce the Town’s obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. (iv) The Mixed Use PIC. The Mixed-Use PIC’s rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: (A) Pursuant to Sections 4.2(a) and 6.1(b), the right to enforce the Town’s obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town’s cooperation in implementing the Add-On RSF. (C) Pursuant to Sections 6.3(a) through (c), the right to enforce the Town’s obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee. (D) Pursuant to Section 6.5(b), the right to enforce the Town’s obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. (d) Intended Beneficiaries. Each of the following Intended Beneficiaries shall have the right to enforce specified provisions of this Development Agreement, as described below. (i) BNP. For so long as so long as there are outstanding obligations to BNP under the TCMD Reissue Documents (or any subsequent reissue or refunding of such bonds), BNP shall have all rights and remedies available to a Party with respect to enforcement of the following Town and/or AURA and/or other expressly identified obligations: (A) Generally, the obligations set forth in Article 4 and Article 6. (B) Pursuant to Sections 4.2(a) and 6.1(b), the Town’s obligation to maintain the Tax Credit in effect. (C) Pursuant to Section 6.7(c), BNP’s right to participate on the AURA board of directors for with respect to any urban renewal plans for any portion of the Property. (D) To specific enforcement of the restrictive covenant imposed pursuant to Section 6.22. (ii) VMD. 58 1001679.14 08/311001679.15 09/07/12 (A) Pursuant to Section 6.7(d), VMD’s right with respect to any urban renewal plans for any portion of the Property located within VMD’s service area to enforce the obligations of AURA and the Town with respect to VMD’s ad valorem property taxes and the uses of all tax increment revenues collected by AURA. (B) Pursuant to Section 4.2(f), VMD’s right to enforce the Town’s obligation regarding waiver of Chapter 18.01 of the Municipal Code (as in effect on the Effective Date or as amended from time to time). (iii) Developer Affiliates and Landowners. Each Developer Affiliate and each Landowner shall have all rights and remedies available to Master Developer. [Note: Per 8/24 meeting, discussion regarding the applicability of C.R.S. 31- 20-105 as a potential remedial option regarding the Municipal Payments is continuing, as well as consideration of further definition as to the means of assessment/apportionment. While DeveloperThe STS does not believe the STS requiresrequire or contemplate the creation of a special remedy, . Developer has previously indicated it is willing to discuss this issue further to understand the Town’s concerns (as part of an overall resolution of open issues). Direction is needed from the Town as to whether this discussion will be further pursued. Developer is generally opposed to any proposed remedial provision that would shift the risk (as bargained for by the Town in the STS) to other parties to the STS (who bargained in the STS not to have that risk). It is noted that the Town, in the STS, bargained to eliminate what is currently a 100% risk of non-payment from TCMD under the terms of the Original Agreement and accepted what is a very theoretical and low probability risk associated with the Municipal Payments mechanism. The Town’s non-STS request is a material change.] ARTICLE 8 MISCELLANEOUS 8.1 Applicable Law. This Development 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 Development Agreement shall be construed as making Town and Owner joint venturers or partners. 8.3 Expenses. Except as otherwise provided in this Development Agreement, Master Developer, EMD, TCMD, each Developer Affiliate, each Limited Party, each Intended Beneficiary and the Town shall each bear their respective costs and expenses associated with entering into, implementing and enforcing the terms of this Development Agreement. 8.4 Waiver. No waiver of one or more of the terms of this Development Agreement shall constitute a waiver of other terms. No waiver of any provision of this Development Agreement in any instance shall constitute a waiver of such provision in other instances. 59 1001679.14 08/311001679.15 09/07/12 8.5 Town Findings. Town Council hereby finds and determines that execution of this Development Agreement provides a public benefit to the Town and its citizens, is in the best interests of the public health, safety, and general welfare, and the provisions of this Development Agreement are consistent with all applicable development laws, regulations and policies of the Town. Town Council further specifically finds: (i) while Town Council is acting in a legislative capacity in granting the Vested Property Rights, it is acting in a proprietary capacity in approving the Financing Plan (and binding the Town to maintain the Tax Credit in effect during the Term); (ii) the Financing Plan and the Town’s agreement to forego the collection of sales tax revenues, real estate transfer tax revenues and accommodations/lodging tax revenues by maintaining the Tax Credit in effect during the Term do not constitute the creation of a multiple-fiscal year direct or indirect debt or other financial obligation of the Town, and do not constitute a new tax, tax rate increase or tax policy change directly causing a net tax revenue gain to the Town; and (iii) nothing in this Development Agreement constitutes (A) a pledge of the Town’s credit, (B) special legislation under Article V, section 25 of the Colorado constitution, or (C) a grant in aid under Article XI, sections 1 and 2 of the Colorado constitution. 8.6 Severability. If a final order issued by a court of competent jurisdiction holds any term, provision, covenant or condition of this Development Agreement to be invalid, void or unenforceable, the remaining provisions of this Development Agreement shall, unless amended or modified as provided in Section 1.5, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom they are being enforced of a material benefit of the bargain under this Development Agreement or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a determination that the Town’s right to receive the Municipal Payments, is invalid, void, unenforceable or that the remedy of specific performance is not available with respect to the Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited Parties; and (ii) this Development Agreement shall be deemed void and of no further effect unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner that the Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s right to receive Municipal Payments, as applicable, can be materially performed and complied with by alternative means. Unless amended or reformed as provided herein, entry of a final order holding the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable shall entitle Master Developer and affected Landowners to entry of an order enforcing the remedy set forth in Section 7.7(b)(ii). 8.7 Further Assurances. Each Party shall undertake such actions and shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Development Agreement in order to provide and secure to the other Party the full and complete enjoyment of its rights and privileges under this Development Agreement. 60 1001679.14 08/311001679.15 09/07/12 8.8 TCMD Obligations. All obligations of TCMD under this Development Agreement are subject to annual budget and appropriation, and are subordinate to any bonds issued by TCMD. 8.9 Complete Agreement. This Development Agreement constitutes the final, complete and exclusive statement of the terms of the agreement among the Parties pertaining to the subject matter of this Development Agreement and supersedes all prior and contemporaneous understanding or agreements of the Parties. This Development Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements, including but not limited to the Settlement Term Sheet, the Original Agreement and any oral or written communications exchanged during the public review process leading to approval of this Development Agreement. 8.10 Construction. Each Party has participated fully in the review and revision of this Development Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to interpreting this Development Agreement. The language in this Development Agreement shall be interpreted as to its fair meaning and not strictly for or against any Party. 8.11 Assignment. This Development Agreement shall be binding upon and, except as otherwise provided in this Development Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the Parties. Master Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Development 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 to the extent Master Developer assigns any of its obligations under this Development Agreement, the assignee of such obligations shall expressly assume such obligations. The express assumption of any of Master Developer’s obligations under this Development Agreement by its assignee or transferee shall thereby relieve Master Developer of any further obligations under this Development Agreement with respect to the matter so assumed. BNP Paribas shall provide written notice to the Parties of any successor or assignee entity that assumes BNP’s rights and obligations pursuant to this Development Agreement. 8.12 Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Development Agreement shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, three (3) business days after mailed. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): 61 1001679.14 08/311001679.15 09/07/12 To the Town: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attention: Town Manager Telephone: Email: With a required copy to: Town of Avon P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Attorney Telephone: (303) 975-6120 Email: ericheillaw@gmail.com To TCMD : Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 897-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com 62 1001679.14 08/311001679.15 09/07/12 With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To the Limited Parties: Avon Urban Renewal Authority P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attention: Town Manager Telephone: Email: With a required copy to: Avon Urban Renewal Authority P.O. Box 975 400 Benchmark Road Avon, Colorado 81620 Attn: Town Attorney Telephone: Email: EMD Limited Liability Company c/o Lava Corporation P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Michael Lindholm, President Telephone: (970) 949-6776 Email: michaellindholm@traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com The Village (at Avon) Mixed-Use Public Improvement Company 63 1001679.14 08/311001679.15 09/07/12 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 897-0835 Email: ljacoby@sdmsi.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com The Village (at Avon) Commercial Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 897-0835 Email: ljacoby@sdmsi.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To the Intended Beneficiaries: BNP Paribas, an International Bank 787 Seventh Avenue, 9th Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: 212.841.3607 Email: Barbara.eppolito@americas.bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Attn: Brandee Caswell Telephone: (303) 607-3826 64 1001679.14 08/311001679.15 09/07/12 Email: Brandee.Caswell@faegrebd.com Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 897-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com 8.13 Counterparts. This Development Agreement may 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. 65 1001679.14 08/311001679.15 09/07/12 IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this Development Agreement as of the Execution Date, with the intent that this Development Agreement shall be legally binding on each such signatory and legally attach to and encumber the Property upon the occurrence of the Effective Date. PARTIES: TOWN: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Marcus Lindholm Title: Manager 66 1001679.14 08/311001679.15 09/07/12 LIMITED PARTIES: AURA: THE AVON URBAN RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney EMD: EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Lava Corporation, a Colorado corporation, its Manager By: Name: Michael Lindholm Title: President MIXED USE PIC: THE VILLAGE (AT AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: Title: 67 1001679.14 08/311001679.15 09/07/12 COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: Title: 68 1001679.14 08/311001679.15 09/07/12 STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by _____________________ as __________________ of THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) Notary Public STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by Marcus Lindholm as Manager of TRAER CREEK LLC, a Colorado limited liability company. 69 1001679.14 08/311001679.15 09/07/12 Witness my hand and official seal. My commission expires: Notary Public (SEAL) STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by _____________________ as _____________________ of THE AVON URBAN RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 70 1001679.14 08/311001679.15 09/07/12 STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by _____________________ as ________________________ of THE VILLAGE (AT AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation. Witness my hand and official seal. My commission expires: Notary Public (SEAL) STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this ____ day of _________, 2012, by _____________________ as ________________________ of THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 71 1001679.14 08/311001679.15 09/07/12 ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS The undersigned representative of BNP Paribas, an international bank (as defined in the foregoing Tank Agreement, “BNP”), in its capacity as the issuer of irrevocable direct pay letter(s) of credit securing the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002, and the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2004, hereby acknowledges and consents to the foregoing Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon). BNP: BNP PARIBAS, an international bank By: Name: Title: Date: [Do we need a California form of notarization here?] 72 1001679.14 08/311001679.15 09/07/12 ACKNOWLEDGEMENT AND CONSENT OF LENDER The undersigned lien holder hereby consents to the recording of the foregoing Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon). The lien[s] of the undersigned lien holder against the portions of the Property (as legally described therein), Recorded on _________________, 20____ at Reception No. ____________[, and ___________, 2009 at Reception No. ____________], of the official records of Eagle County, Colorado, shall be subordinate to the foregoing Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon). Approved by mortgagee/holder of deed of trust: [Insert Lender Name] By: Title: STATE OF COLORADO ) ) ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 2010, by , as of [Insert Lender Name]. Witness my hand and official seal. My commission expires: Notary Public (SEAL) A-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT A Legal Description of the Property Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 795007; Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 898173; Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon) Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 796831; Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776; and Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 200712166. TOGETHER WITH THE FOLLOWING PARCEL (OS5): That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line, described as follows: Beginning at the N 1/4 corner of said Section 17; thence S89°23'36"E 526.76 feet, along the northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad; thence, departing said northerly line of Section 17, the following two courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks: (1) S80°36'27"W 267.66 feet; (2) 263.93 feet along the arc of a curve to the right, having a radius of 2486.03 feet, a central angle of 06°04'58", and a chord which bears S83°38'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N00°20'55"W 78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (OS6): That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and north of the centerline of the Eagle River, described as follows: Beginning at the Northeast corner of said Section 17; thence S01°41'49"E 96.93 feet, along the easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said A-2 1001679.14 08/311001679.15 09/07/12 easterly line, S01°41'49"E 73.07 feet, to the centerline of said Eagle River; thence the following four courses along said centerline (Filum aquce): (1) N89°24'49"W 1037.9 feet; (2) N86°07'49"W 472.00 feet; (3) N89°29'49"W 538.00 feet; (4) S82°33'11"W 595.15 feet, to the westerly line of said NE 1/4; thence N00°20'55"W 49.18 feet, along said westerly line to the southerly right-of-way line of the Denver & Rio Grande Western Railroad; thence, departing said westerly line of Section 17, the following five courses along the southerly right-of-way line of the Denver & Rio Grande Western Railroad, said southerly right-of-way line being parallel with and 50 feet southerly of the centerline of the existing railroad tracks: (1) 279.72 feet along the arc of a curve to the left, having a radius of 2586.03 feet, a central angle of 06°11'51", and a chord which bears N83°42'23"E 279.58 feet; (2) N80°36'27"E 350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of 3171.27 feet, a central angle of 12°24'07", and a chord which bears N86°48'31"E 685.10 feet; (4) S86°59'25"E 1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a radius of 2549.33 feet, a central angle of 02°31'46". and a chord which bears S85°43'31"E 112.53 feet, to the True Point of Beginning, containing 5.28 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL): Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., described as a whole as follows: Beginning at the Northwest corner of said Section 8; thence the following four courses along the northerly line of said Section 8: (1) N88°40'41"E 1379.49 feet, to the W 1/16 corner of said Section 8 and Section 5 of said Township and Range; (2) N88°40'41"E 1379.49 feet, to the 1/4 corner of said Sections 8 and 5; (3) N88°42'58"E 1385.36 feet, to the E 1/16 corner of said Sections 8 and 5; (4) N88°42'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and Section 4 of said Township and Range; thence the following four courses along the northerly line of said Section 9: (1) N83°29'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4; (2) N83°29'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N83°24'12"E 1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4) N83°24'12"E 1386.30 feet, to the corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the following two courses along the northerly line of said Section 10: (1) N86°39'24"E 1381.29 feet, to the W 1/16 corner of said Sections 10 and 3; (2) N86°39'24"E 1299.94 feet; thence, departing said northerly line, S01°34'07"W 2699.66 feet, to the east-west centerline of said Section 10; thence, along said east-west centerline, S86°32'23"W 1304.06 feet, to the W 1/16 corner of said Section 10; thence S01°32'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, to the SW 1/16 corner of said Section 10; thence S86°32'47"W 1384.91 feet, along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9; thence S77°10'15"W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, to the SE 1/16 corner of said Section 9; thence S01°33'02"W 1475.32 feet, along the easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and Section 16 of said Township and Range; thence S72°20'31"W 1450.43 feet, along the southerly line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N01°34'18"E 1601.52 feet, to the CS 1/16 corner of said Section 9; thence S86°07'30"W 1378.19 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said Section 9; thence S01°33'13"W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 9, to the W 1/16 corner of said Sections 9 and 16; thence N89°55’04”W 1371.96 feet, along the southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9, 16, and 17 of A-3 1001679.14 08/311001679.15 09/07/12 said Township and Range; thence N01°32’00”E 3.82 feet, along the westerly line of Section 9, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks; thence the following two courses along said northerly right-of-way line: (1) 104.48 feet along the arc of a curve to the left, having a radius of 2649.33 feet, a central angle of 02°15’34”, and a chord which bears N85°51’36”W 104.47 feet; (2) N86°59’25”W 1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00°51’07”E 1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8; thence N89°54'54"W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to the CS 1/16 corner of said Section 8; thence N89°58'35"W 1366.46 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence S00°01'37"E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the northerly right-of-way line of Interstate Highway No. 70, as described in the deed recorded in Book 223 at Page 982 in the office of the Eagle County, Colorado, Clerk and Recorder; thence the following ten courses along said northerly right-of-way line: (1) N65°30'20"W 249.79 feet; (2) N78°47'50"W 317.2 feet; (3) N83°08'20"W 506.7 feet; (4) 772.2 feet along the arc of a curve to the right, having a radius of 1462.0 feet, a central angle of 30°15'52", and a chord which bears N54°57'56"W 763.3 feet; (5) N34°37'50"W 331.1 feet; (6) N34°44'20"W 368.5 feet; (7) 804.9 feet along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle of 25°27'04", and a chord which bears N51°29'50"W 798.3 feet; (8) N68°24'50"W 399.7 feet; (9) N49°47'20"W 213.6 feet; (10) N70°20'50"W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7; thence the following two courses along said northerly line: (1) N89°50'40"E 1194.46 feet, to the CE 1/16 corner of said Section 7; (2) N89°50'40"E 1378.25 feet, to the 1/4 corner of said Sections 7 and 8; thence the following two courses along the westerly line of said Section 8: (1) N00°10'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N00°10'53"W 1369.10 feet, to the point of beginning. EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776. Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3 area subtracted. B-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT B Form of Special Warranty Deed for Conveyances to Town SPECIAL WARRANTY DEED [STATUTORY FORM – C.R.S. § 38-30-115] [TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado] (“Grantor”), whose street address is [141 Union Boulevard, Suite 150, c/o Special District Management, Lakewood, CO 80228-1898, County of Jefferson], State of Colorado, for the consideration of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose street address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of Colorado (“Grantee”), the real property that is described on Exhibit A attached hereto and made a part hereof, with all its appurtenances, and warrants the title to the same against all persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof. [TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado] By: Name: Title: STATE OF ___________ ) ) ss: COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ____________________, 200__, by _________________________ as ________________ of _____________________________, a ____________________. Witness my hand and official seal. My commission expires: Notary Public B-2 1001679.14 08/311001679.15 09/07/12 EXHIBIT A TO SPECIAL WARRANTY DEED Description of the Property [insert description of property or property interest to be conveyed] B-3 1001679.14 08/311001679.15 09/07/12 EXHIBIT B TO SPECIAL WARRANTY DEED Restrictions and/or Reservations Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to the following restrictions, which restrictions shall be binding on Grantee and all successors and assigns of Grantee, and which Grantor and its successors and assigns shall have the right to enforce by an action for specific performance, mandamus, mandatory or prohibitory injunction or other equitable or legal remedy: 1. [insert applicable use/other deed restrictions or state non applicable] Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to Grantor’s reservation of the following rights with respect to the Property: 1. [insert applicable reservations or state non applicable] C-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT C Form of Planning Area I Relocatable Roadway Easement Agreement [Pending further communication/direction from the Town regarding the timing and terms of the FS Village Parcel acquisition arrangement] D-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT D Prioritized Capital Projects Prioritized Capital Projects List Budgetary Cost Estimates Item Lot 1 East Beaver Creek Blvd. Lot 1 Main Street Lot 1 North/South Roads (2) Planning Area J (east) East/West Road General Conditions 750,000 715,000 560,000 280,000 Demolition 39,825 1,726,900 166,650 266,675 Earthwork 1,108,275 119,685 123,390 187,440 Roadway 1,630,990 1,349,930 393,310 719,465 Utilities 894,300 1,129,900 227,600 356,800 Erosion Control 27,000 27,000 16,600 9,500 Landscaping 340,238 311,890 128,800 180,050 Electrical & Lighting 347,280 289,400 115,760 185,216 Roundabouts 000 2,000,000 000 000 Subtotal 5,137,908 7,669,705 1,732,110 2,185,146 20% Contingency 1,027,582 1,533,941 346,422 437,029 Total 6,200,000 9,200,000 2,100,000 2,600,000 E-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT E Schedule of Past Developer Advances and Avon Receivable [Under evaluation; requires input from Town on Avon Receivable] F-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT F Form of Public Improvement Agreement [Proposed form inserted below (provided by Town) is pending other Parties’ review and subject to comment and approval of the other Parties] [INSERT NAME OF SUBDIVISION OR PROJECT] PUBLIC IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this ________ day of _______, 201___, is by and among ___________________________________ (“Owner” [“District” shall be substituted for Owner when applicable]), and the Town of Avon, a Colorado home rule municipality, by and through its Council (“Town”). RECITALS WHEREAS, the Owner, in connection with the approval [describe approval by Town] for the _______________________, consisting of _______ acres, ____________________, Town of Avon, Eagle County, Colorado (“Project”), desires to enter into a Public Improvements Agreement (“Agreement”) with the Town as provided for by Section 7.32.100 of the Avon Municipal Code, as may be amended from time to time (“Municipal Code”); and WHEREAS, pursuant to the Municipal Code, the Town desires to make reasonable provisions for completion of certain public improvements (“Public Improvements”) as depicted on the plans approved by the Town for the _______________, dated ________________, (“Approved Plans”) and as set forth in Exhibit A: Approved Plans attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer; and WHEREAS, the Owner is responsible for the completion of the Public Improvements. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Completion of Work. (a) Performance. Owner agrees to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all Public Improvements and work incidental thereto (“Work”) as depicted on the Approved Plans and as set forth in Exhibit A: Approved Plans. Owner further agrees that Owner will be responsible for all costs of Public Improvements as assigned. Said Work shall be performed in accordance with the Approved Plans. (b) Time for Completion of Public Improvements. Owner agrees to complete Public Improvements within two (2) years of the date of this Agreement. Owner agrees to F-2 1001679.14 08/311001679.15 09/07/12 commence construction of Public Improvements prior to the issuance of a building permit for any improvements in the subdivision and to complete the Public Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision served by the Public Improvements. Commencement of construction of Public Improvements shall be deemed to mean the award and execution of contracts for the construction of the Public Improvements as depicted on Exhibit A: Approved Plans. (c) Inspection Procedures. All Work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast or any other utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All Work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or Owner’s agents from any responsibility or obligation to assure that all Work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (d) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in Paragraph 5 below. (e) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Public Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance (“Notice of Non- Compliance”) to the Owner. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non-Compliance must be provided to the Owner within three (3) working days of the date of the inspection. 2. Guarantee for Public Improvements. (a) Form of Guarantee. The Owner shall provided financial security to the Town to secure the completion of the Public Improvements in this Agreement in accordance with the acceptable methods of providing a guarantee set forth in Section 7.32.100(e)(1) of the Municipal Code (“Guarantee”). The form of Guarantee is attached hereto as Exhibit C: Form of Guarantee. (b) Amount of Guarantee for Completion of Public Improvements. Owner shall deliver to the Town a Guarantee in an amount equal to one hundred percent (100%) of the amount of the cost estimate for the Public Improvement as approved by the Town Engineer plus a percentage of the estimated costs as an overrun allowance as set forth in Section 7.32.100(d) of the Municipal Code. F-3 1001679.14 08/311001679.15 09/07/12 (c) Partial Release of Guarantee. The amount of Guarantee may be reduced periodically upon completion of itemized Public Improvements for which cost estimates have been set forth in Exhibit B: Cost Estimates and upon receipt of the Certifications as specified in Paragraph 9 below verifying that itemized portions of the Public Improvements have been completed provided that Owner is not in default under this Agreement and provided that the remaining amount of Guarantee shall be at least one hundred and ten percent (110%) of the estimated costs of completion of all remaining Public Improvements. The Town shall release the remaining Guarantee amount less the amount described in Paragraph 3 below for security during the warranty period within five (5) business days of (i) completion of all Work related to the Public Improvements and (ii) acceptance by the Town and Utilities of the Public Improvements, provided that the Owner is not in default under this Agreement. (d) Default by Owner. In the event of a default in whole or in part by Owner in the performance of this Agreement, the Town shall be authorized to draw on the Guarantee for the purpose of undertaking completion or remediation work on the Public Improvements or otherwise curing Owner’s default hereunder after providing thirty (30) days’ advance written notice of default and providing an opportunity during such period for Owner to cure the default. The Town shall be entitled to draw on the Guarantee after adoption of a resolution of the Town Council stating (i) that Owner is in default and describing the nature of the default, and (ii) that funds are required to complete or correct the Work on the Public Improvements or to otherwise cure Owner’s default. 3. Warranty Period. The Public Improvements shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the Work by the Town. In the event of any such defect, the Town may require Owner to correct the defect in material or workmanship. The Town shall retain a portion of the Guarantee as a financial security during the warranty period. The amount of the Guarantee during the warranty period shall be a percentage of the total actual cost of completion of Public Improvements in the amount set forth in Section 7.32.100(i) of the Municipal Code. In the event any corrective work is performed during the two (2) year warranty period then the warranty on such corrected work shall be extended for two (2) years from the date on which the corrected work is completed. Guarantee equal to one hundred and ten percent (110%) of the cost of any corrected work, as estimated by the Town Engineer, shall be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with Section 7.32.100(i), for a period of two (2) years from the date of completion of the corrected work. 4. Engineering Certification. Upon completion of portions of the Public Improvements, Owner will cause Owner’s engineers (who shall have been actively engaged in observing the construction of the Public Improvements and shall be registered engineers in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on-site observation, review of sufficient construction-observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Public Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance F-4 1001679.14 08/311001679.15 09/07/12 with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as-constructed plans and other supporting documentation shall be submitted with the certification. The as-constructed plans shall be submitted on paper and in one of the following digital formats: AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 5. Inspection Fees. Fees for inspections, if any, shall be paid by the Owner within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such inspection fees exceed five percent (5%) of the actual costs for Public Improvements. 6. No Obligation of Town to Complete Improvements. Owner agrees that in the event Owner shall fail to perform its obligations as set forth herein, the Town shall be under no obligation to complete any of the said Public Improvements or to issue permits for development served by the Public Improvements. 7. Non-Liability of Town; Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said Work. To the extent permitted by law, Owner hereby agrees to indemnify and hold harmless the Town, and any of its officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Owner, as hereinbefore stated. Furthermore, the Owner shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. 8. Rights of Town in Event of Default. In the event that Owner defaults in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Owner of such default during which period of time the Owner fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Public Improvements specified on Exhibit A: Approved Plans. All costs paid by the Town to correct or complete the Public Improvements, including cost of personnel, equipment, materials, studies, legal and other amounts expended by the Town to perform the Public Improvement construction responsibilities of Owner, together with an administrative fee in the amount of fifteen percent (15%) of the total costs incurred by Town shall be paid by Owner. Any such costs relating to the Public Improvements, which have not been reimbursed by Owner, shall be a debt of Owner. In addition to other remedies stated in this Agreement, if the Owner is in default of this Agreement, the Town may withhold the acceptance or processing of development applications and may withhold the approval of development permits for or on any property which would be served by the Public Improvements until such time as the Public Improvements are completed. F-5 1001679.14 08/311001679.15 09/07/12 9. Letter Certifying Completion and Final Acceptance of Improvements. When all Public Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that Owner is not in default under any of its obligations to the Town under this Agreement, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Owner under this Agreement have been satisfied. 10. Non-Liability of Town for Indirect or Consequential Damages or Lost Profits. The Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits, which result or arise from the Town’s declaration that Owner is in default of the Agreement, so long as the Town acts in good faith. 11. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 12. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Owner without the express written consent of the Town Council of the Town. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council of the Town. No assignment shall release the Owner from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 13. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-consultant or sub-contractor of the Owner. Absolutely no third party beneficiaries are intended by this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 14. Amounts Past Due. Any amounts due to the Town of Avon under this Agreement which are past due shall bear interest at the rate set forth in Chapter 3.32 of the Municipal Code. 15. Applicability of Municipal Code. All references to the Municipal Code shall mean the Municipal Code as in effect as of the date of entering into this Agreement. Any amendments to sections of the Municipal Code which are referenced in this Agreement and which are adopted after the date of entering into this Agreement shall not be applicable to this Agreement. 16. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 17. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. F-6 1001679.14 08/311001679.15 09/07/12 18. Venue. Venue for any litigation arising out of this Agreement shall be in the District Court for Eagle County, Colorado. [Signature Page Follows] F-7 1001679.14 08/311001679.15 09/07/12 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. F-8 1001679.14 08/311001679.15 09/07/12 TOWN OF AVON BY:_____________________________ ATTEST:____________________________ Mayor Town Clerk APPROVED AS TO FORM: ___________________________ Town Attorney OWNER BY:__________________________ Owner F-9 1001679.14 08/311001679.15 09/07/12 EXHIBIT A (to Form of Public Improvement Agreement): APPROVED PLANS F-10 1001679.14 08/311001679.15 09/07/12 F-11 1001679.14 08/311001679.15 09/07/12 APPROVED PLANS: ______________________________ Construction Drawings __________________, Town of Avon, Colorado _______________, 20__ Sheets 1 through __ Release Date: _______________, 20__ Prepared by: F-12 1001679.14 08/311001679.15 09/07/12 EXHIBIT B (to Form of Public Improvement Agreement): COST ESTIMATE F-13 1001679.14 08/311001679.15 09/07/12 PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE F-14 1001679.14 08/311001679.15 09/07/12 F-15 1001679.14 08/311001679.15 09/07/12 F-16 1001679.14 08/311001679.15 09/07/12 F-17 1001679.14 08/311001679.15 09/07/12 F-18 1001679.14 08/311001679.15 09/07/12 F-19 1001679.14 08/311001679.15 09/07/12 F-20 1001679.14 08/311001679.15 09/07/12 EXHIBIT C (to Form of Public Improvement Agreement): FORM OF GUARANTEE [Insert Form of Guarantee] F-21 1001679.14 08/311001679.15 09/07/12 G-1 1001679.14 08/311001679.15 09/07/12 EXHIBIT G Definitions 1. Accept(ed)/Acceptance means the Town’s acceptance of Dedicated real property interests and Public Improvements located therein for purposes of ownership and maintenance, consisting of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect on the Effective Date or as amended from time to time) as modified and or exempted by the Development Plan; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 2. Accommodations/Lodging Fee means the Credit PIF imposed pursuant to the PIF Covenants on accommodations/lodging transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Accommodations/Lodging Fee shall not be construed to be part of a Taxable Transaction, and shall not be subject to the Town’s tax on accommodations/lodging transactions. 3. Additional Developer Advances means funds advanced after the Effective Date for Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner to or on behalf of TCMD or another District (whether the corresponding Capital Projects is undertaken directly by such District or acquired by such District after construction by the party entitled to reimbursement for the costs thereof), which advances are subject to reimbursement by such District utilizing Credit PIF Revenues, together with simple interest at the rate of 8% per annummarket rates, and which are secured by such District’s issuance of an instrument (note, bond, funding/reimbursement agreement or similar form of instrument) evidencing such District’s financial obligation to repay such advances; provided, however, that Master Developer’s contributions to the Asphalt Overlay Account pursuant to Section 6.6(a)(iv) shall be construed to be Additional Developer Advances only to the extent reimbursable from a District using Credit PIF Revenues. [Note: The STS states “interest at market rates.” It does not state what “market rates” are or how they are to be determined. Prior discussions with Town staff recognized that establishing now what “market rates” are to be would be of utility. Upon further consideration of this issue in response to Town Council’s direction regarding strict literal adherence to the STS, Developers have revised to track the STS language.] 4. Add-On PIF means that portion of the Public Improvement Fees with respect to which the Tax Credit does not apply or attach. As of the Effective Date, the Add-On PIF consists only of the Add-On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the future to impose the Add-On PIF on other types of transactions and/or at a rate in excess of the Add-On RSF rate required by this Development Agreement. 5. Add-On PIF Revenues means the gross revenues actually collected from imposition of the Add-On PIF in accordance with the PIF Covenants, which may consist of Add-On RSF Revenues, Municipal Payments and other revenues derived from imposition of the Add-On PIF on transactions other than retail sales that are Taxable Transactions or at rates in excess of the Add-On RSF rate. G-2 1001679.14 08/311001679.15 09/07/12 6. Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions that are Taxable Transactions at the rate set forth in Section 6.4(b) and in accordance with the terms and conditions of the Financing Plan. 7. Add-On RSF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Add-On RSF Revenues on behalf of the PICs. 8. Add-On RSF Collection Services Agreement(s) means one or more agreements entered into from time to time by and between the PICs, the Town, Master Developer and the Add-On RSF Collection Agent providing for the administration, collection and distribution of the Add-On RSF Revenues. 9. Add-On RSF Revenues means the gross revenues actually collected from imposition of the Add-On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments to be remitted to the Town during the Term as set forth in Section 6.5 and the remainder of which (including any such revenues the PICs continue to collect after the Term) shall be utilized for other lawful purposes otherwise authorized by the PIF Covenants. 10. Allowed O&M Expenses means the amount of District Revenues to be remitted to and retained by TCMD in each calendar year during the Term for payment of: (i) TCMD’s annual contribution to the Asphalt Overlay Account; (ii) the Annual Debt Service Pledge Amount; and (iii) the annual Base O&M Amount. For each full calendar year during the Term, the Allowed O&M Expenses shall be: (A) for calendar years 2013 through 2017, $1,000,000 (One Million Dollars); (B) for calendar year 2018 and each subsequent calendar year including the calendar year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $1,025,000 (One Million Twenty-Five Thousand Dollars); and (C) for each calendar year after the year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $950,000 (Nine Hundred Fifty Thousand Dollars) per year. 11. Annual Debt Service Pledge Amount has the meaning and is subject to the terms, conditions, restrictions and requirements set forth in the Tank Agreement. 12. Applicant means the Landowner of the real property comprising the Site for which a Development Application is submitted, or an individual or entity whom the Landowner has designated in writing as its authorized representative for the purpose of representing the Landowner and/or acting upon any Development Application or submittal for development of the pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple ownership of the Site or portion thereof with the fee owner’s written consent to any such application or submittal, or which may be an owners’ association for a Condominium project or like common interest ownership project). Notwithstanding any additional or conflicting provision of the Municipal Code (whether as in effect on the Effective Date or as amended from time to time), the definition of “Applicant” shall not be construed to mean any person or entity owning, holding or possessing an easement interest, a leasehold interest, a license, a security interest or any other form of interest in the Site, whether possessory or otherwise, other than fee G-3 1001679.14 08/311001679.15 09/07/12 simple ownership of the Site as reflected in the official records of the Eagle County Tax Assessors office. 13. Approved SSDP(s) means, individually or collectively: (i) the Development Agreement; (ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date, Town Council approves (or otherwise approved by the Town including, for example, an administratively approved final plat, an administratively approved amendment to the PUD Guide or similar previously approved Site Specific Development Plan) and designates as a Site Specific Development Plan that establishes Vested Property Rights, together with amendments (if any) to such approved Development Applications. 14. Article refers to a numbered Article of the Development Agreement, unless otherwise stated. 15. Asphalt Overlay Agreement means that certain Asphalt Overlay Escrow Account Agreement [identify title & date] entered into concurrently with the Effective Date by and among the Town, TCMD, Master Developer and [insert escrow agent] and which establishes the terms and conditions upon which funds shall be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account as generally provided in Section 6.6. 16. Asphalt Overlay Account means a restricted escrow account established pursuant to the Asphalt Overlay Agreement into which Master Developer, the Town and TCMD shall deposit funds for asphalt overlays of public roads in the Project in accordance with the terms and conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii) and 6.6. 17. AURA means the Avon Urban Renewal Authority, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. 18. Authority means the Upper Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado, together with any successor water service provider (whether pursuant to dissolution of the Authority or otherwise). 19. Avon Receivable means TCMD’s past due payment obligation to the Town in the principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with interest thereon as provided in Section 6.9(b)(v)(B)3.II (such principal amount inclusive of $98,798.46 of expenses incurred by the Town in connection with design work for the East Beaver Creek Boulevard Phase 3 obligation as defined in the Original Agreement, which East Beaver Creek Boulevard Phase 3 obligation is extinguished by this Development Agreement). 20. Base O&M Amount means the amount of District Revenues available each year for TCMD’s payment of ongoing operation, maintenance, administrative and other legally authorized costs, which amount shall be equal to that portion of the total Allowed O&M Expenses which is the remainder of the total Allowed O&M Expenses for such year after subtracting: (i) the Annual Debt Service Pledge Amount; and (ii) TCMD’s contribution to the Asphalt Overlay Account. 21. BNP means BNP Paribas, an international bank, together with its successors and assigns. G-4 1001679.14 08/311001679.15 09/07/12 22. Bond Requirements means the interest payments on, and related reasonable and necessary costs incurred in connection with, any bonds, including, without limitation, payments, reimbursements, or replenishments with respect to interest, prepayment premiums, reserve funds; surplus funds; sinking funds; costs of issuance; payments related to any credit enhancement (including, without limitation, the Deferred Fees, if any); arbitrage payments, if any; fees and expenses of any bond trustee, bond registrar, paying agent, authenticating agent, rebate analyst or consultant, calculation agent, remarketing agent, provider of credit enhancement, and any other amounts required or permitted to be paid by the documents governing the issuance of repayment of and security for such bonds, including, without limitation, any bond indenture, interest rate cap, or swap agreement or reimbursement agreement; provided however that Bond Requirements on the Water Tank Bonds shall be limited as provided in the Water Tank Bonds Pledge Agreement. 23. Cap Amounts has the meaning set forth in Section 6.2(b). 24. Capital Project Costs means all costs and expenses incurred in connection with the design and construction of Capital Projects, including but not limited to design, engineering, surveying, soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant fees, and application and permit fees related thereto, but not including Bond Requirements, if any, incurred in connection with the long-term financing of such Capital Projects. 25. Capital Projects means: (i) Public Improvements required by the Town as a condition of approving a Development Application (for example, public streets; wet utilities such as water, sewer, storm drainage; related grading and landscaping, etc.), and specifically including the Prioritized Capital Projects; and (ii) even if not specifically required as a condition of approving a Development Application, Public Improvements that serve or benefit the Project and which are eligible to be financed by TCMD and/or AURA under applicable laws. 26. Commercial PIC means The Village (at Avon) Commercial Public Improvement Company, a Colorado non-profit corporation. 27. Credit PIF means, collectively, the Real Estate Transfer Fee, the Accommodations/Lodging Fee and the Retail Sales Fee with respect to each of which the Tax Credit applies and attaches in accordance with Section 6.1, as implemented by Sections 3.08.035 (with respect to sales tax), 3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with respect to public accommodations tax) of the Municipal Code (as in effect on the Effective Date), and a building materials use fee if adopted in accordance with Section 6.4(a)(iv). 28. Credit PIF Cap has the meaning set forth in Section 6.2(a). 29. Credit PIF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Credit PIF Revenues on behalf of the PICs. 30. Credit PIF Collection Services Agreement(s) means one or more agreements between the Credit PIF Collection Agent, the PICs, Master Developer and TCMD providing for the administration, collection and distribution of the Credit PIF Revenues. G-5 1001679.14 08/311001679.15 09/07/12 31. Credit PIF Revenues means the gross revenues actually collected from imposition of the Credit PIF. 32. Debt Service Coverage Ratio means, for any calendar until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, the Net Revenue received by or on behalf of both Districts during such period divided by Debt Service for such year. For the purposes of calculating the Debt Service Coverage Ratio: (a) “Net Revenue” means, for each such calendar year, that portion of the total of all District Revenues received by the Districts which is the remainder of the total of all such District Revenues received in such year minus: (i) TCMD’s annual contribution to the Asphalt Overlay Account; (ii) the annual Base O&M Amount; (iii) proceeds from Additional Developer Advances; and (iv) Net Proceeds from Supplemental Bonds (other than Additional Developer Advances). (b) “Debt Service” means, for any such calendar year, the sum of the amounts to be paid or deposited for the purpose of paying, pursuant to the requirements of the documents under which such obligations are issued: (i) principal, interest and any other Bond Requirements due in such year on (A) the TCMD Bond Reissue and (B) Supplemental Bonds; plus (ii) the Annual Debt Service Pledge Amount; plus (iii) the Deferred Amortization and Deferred Fee amounts due in such year (which shall be a cumulative total of the Deferred Amortization and Deferred Fee due from prior years, if any, and the current year). 33. Dedicate(d)/Dedication means the conveyance, whether by plat or by special warranty deed in the form attached as Exhibit B, to the Town or other appropriate governmental or quasi- governmental entity of real property for a specified purpose, together with Public Improvements installed thereupon, if any, free and clear of all monetary liens and those non-monetary encumbrances that are not materially inconsistent with the purpose(s) for which Town or other governmental or quasi-governmental entity is acquiring the real property and related Public Improvements. 34. Deferred Amortization means, (i) in any year until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, the difference between the principal amount due on the TCMD Bond Reissue and the principal amount that was due in that year under the financing documents governing the TCMD Variable Rate Revenue Bonds, Series 2002 or the TCMD Variable Rate Revenue Bonds, Series 2004, as applicable; and (ii) as of any date of computation, the sum of all amounts determined as set forth in (i), for years prior to and including (but not subsequent to) the date of computation, that have not been paid as of that date. 35. Deferred Fees means, until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, any Facility Fees (as defined in the Reimbursement Agreement between TCMD and BNP entered into in connection with the TCMD Bond Reissue) that are not required to be paid when accrued in accordance with the terms of the Reimbursement Agreement, including interest thereon calculated at the rate of 2.5% per annum. G-6 1001679.14 08/311001679.15 09/07/12 36. Design Covenant means the Declaration of Master Design Review Covenants For The Village (at Avon) dated May 8, 2002 and Recorded on May 8, 2002 at Reception No. 795011, as amended by the First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated June 4, 2008 and Recorded on June 10, 2008 at Reception No. 200812112 and by the Second Amendment and Ratified First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and Recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended from time to time. 37. Design Review Board means The Village (at Avon) Design Review Board as appointed or elected in accordance with the Design Covenant. 38. Design Review Guidelines means the sole and exclusive architectural design, landscape design, urban design and Site design and use standards applicable within the Property as set forth in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011, together with any amendment(s) the Design Review Board may approve after providing notice thereof in accordance with Section 3.2, as prepared, approved and promulgated by the Design Review Board from time to time. 39. Developer(s) means, with respect to any Site, the individual or entity which is causing the development of infrastructure and/or or vertical improvements within such Site to be performed. 40. Developer Affiliate(s) means, individually or collectively as the context dictates, TC-RP, TC Plaza, TC-HD and TC-WMT, together with any other entity with respect to which TCLLC or EMD is the managing member and which acquires title to any portion of the Property after the Effective Date. 41. Development Agreement has the meaning set forth in the initial paragraph of the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) to which this Exhibit G is attached and incorporated into. 42. Development Application means any form of application or submittal to the Town for review and approval of any form of development within the Property, including but not limited to an application or submittal regarding an amendment to the PUD Guide, an amendment to the PUD Master Plan, a preliminary subdivision plan, a final subdivision plat, a grading permit, a building permit or similar matters. 43. Development Plan means, collectively: (a) the Development Agreement; and (b) the PUD Guide. 44. District(s) means, individually or collectively as the context dictates, TCMD, VMD and any additional metropolitan district(s) that may be formed subsequent to the Effective Date for the purpose of providing services and/or Public Improvements and or other forms of improvements benefiting all or any portion of the Property. G-7 1001679.14 08/311001679.15 09/07/12 45. District Debts means, collectively, the following financial obligations of TCMD (and any refunding of thereof accomplished in accordance with the Development Agreement), the full payment of which shall result in expiration of the Term (unless the Town elects to continue the Tax Credit pursuant to Section 6.1(d)): (i) the Annual Debt Service Pledge Amount; (ii) the principal amount and Bond Requirements of the TCMD Bond Reissue and any Supplemental Bonds issued as municipal bonds; (iii) the Deferred Fees; (iv) the Deferred Amortization; and (v) principal of and interest on Past Developer Advances and Additional Developer Advances. 46. District Director(s) means, individually or collectively, the individuals who from time to time hold a seat on the board of directors of a District. 47. District Revenues means, collectively, the Credit PIF Revenues, the Project Ad Valorem Taxes (and related specific ownership taxes), Net Proceeds of Supplemental Bonds, proceeds from Additional Developer Advances and any other lawful revenues of the Districts, including but not limited to revenues from service charges, development fees, impact fees (net of amounts required to be remitted to Eagle-Vail Metropolitan District), tap fees or similar sources of revenue to the Districts, if any. 48. Effective Date means the date on which the Development Agreement is Recorded. 49. EMD means EMD Limited Liability Company, a Colorado limited liability company. 50. Execution Date has the meaning set forth in the initial paragraph of the Development Agreement. 51. Exhibit means the following exhibits to the Development Agreement, all of which are incorporated by reference into and made a part of the Development Agreement: Exhibit A - Legal Description of Property Exhibit B - Form of Special Warranty Deed for Conveyances to the Town Exhibit C - Form of Planning Area I Relocatable Roadway Easement Agreement Exhibit D - Prioritized Capital Projects Exhibit E - Schedule of Past Developer Advances and Avon Receivable Exhibit F - Form of Public Improvement Agreement Exhibit G - Definitions 52. Final Acceptance means the Town’s undertaking of full responsibility for all operations maintenance, repair, and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights-of-way, management of noxious weeds and similar matters in accordance with Town’s generally applicable procedures and standards) with respect to Dedicated Public Improvements upon G-8 1001679.14 08/311001679.15 09/07/12 expiration of the warranty period and resolution of any warranty matters arising during the period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 53. Financing Plan means the arrangements, obligations and rights set forth in Article 6 with respect to the financing of Capital Projects and other Public Improvements in the manner and for the purposes described in the Development Agreement. 54. Forest Service Village Parcel means that parcel of land located between Planning Areas I and J which, as of the Effective Date, is owned by the U.S. Forest Service. 55. Intended Beneficiary(ies) means, as more particularly described in and subject to the terms and limitations of Section 1.8(b), BNP, VMD, Developer Affiliates and Landowners other than those who are Parties. No other party or entity shall be construed to be an intended beneficiary or to have any legal right to enforce or rely on any provision, obligation, term or condition of the Development Agreement. 56. Landowner(s) means the fee owner of any real property comprising the Property or any portion thereof. 57. Lender(s) means those entities having a security interest in any portion of the Property as of the Effective Date and which have executed the Acknowledgement and Consent form attached to and incorporated within the Development Agreement. 58. Limited Party(ies) means, individually or collectively as the context dictates and as more particularly described in and subject to the terms and limitations of Section 1.8(a), AURA, EMD, the Commercial PIC and the Mixed-Use PIC. 59. Litigation has the meaning set forth in Recital H. 60. Lot 1 means Lot 1, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof Recorded at Reception No. 898173, and amended by The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date). 61. Master Developer means EMD (with respect to Planning Area I only) and TCLLC (in all other respects), which entities (or any successor entities), as more specifically described in Section 1.7, are designated and authorized to act on behalf of all Developer Affiliates. 62. Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company, a Colorado non-profit corporation. 63. Municipal Code means the Town’s municipal code in effect on the Effective Date unless otherwise stated in the Development Agreement. 64. Municipal Payment(s) means, as more particularly described in Sections 6.4(b) and 6.5 and in implementation of the Settlement Term Sheet, that portion of the Add-On RSF Revenues (net of the costs of collection as set forth in the Add-On RSF Collection Services Agreement) G-9 1001679.14 08/311001679.15 09/07/12 derived from application of the Add-On RSF to retail sales transactions only (and not to any other Taxable Transactions) which the Town requires to provide a reliable revenue source with growth potential to compensate the Town, and which the Town is entitled to receive, for: (i) providing Municipal Services (whether prior to or after the Effective Date); (ii) releasing TCMD (and all other parties to the Litigation) from the sales tax indemnity obligations (as such obligations were set forth in the Original Agreement); and (iii) assuming TCMD’s maintenance obligations pursuant to Section 4.2(c). 65. Municipal Services has the meaning set forth in Section 4.1. 66. Net Proceeds means, for any bond issuance (including the Water Tank Bonds), the amount of bond proceeds available for payment of Capital Project Costs. 67. Non-Cap Amounts has the meaning set forth in Section 6.2(c). 68. Original Agreement means that certain Annexation and Development Agreement executed by and between the Town and the Original Owners as of October 13, 1998 and Recorded on November 25, 1998 at Reception No. 67774, as amended by: (i) pursuant to Ordinance 01-16, the First Amendment to Annexation and Development Agreement dated as of November 13, 2001, and Recorded on December 10, 2001 at Reception No. 779049; (ii) pursuant to Ordinance 03-08, the Second Amendment to Annexation and Development Agreement dated as of May 27, 2003, and Recorded on July 30, 2003 at Reception No. 842248; and (iii) pursuant to Ordinance 04-17, the Third Amendment to Annexation and Development Agreement dated as of October 26, 2004, and Recorded on December 22, 2004 at Reception No. 901429. 69. Original Effective Date means October 13, 1998. 70. Original Owners means EMD, PVRT NOTT I LLC, a Colorado limited liability company, PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III LLC, a Colorado limited liability company, which entities owned the Property as of the execution date of and were defined as “Owners” in the Original Agreement (TCLLC being the successor entity to the PVRT entities as described in the Third Amendment of the Original Agreement). 71. Original PUD Guide means The Village (at Avon) PUD Guide dated October 13, 1998 and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at Reception No. 677744, as amended by: (i) PUD Development Plan Administrative Amendment No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439; (ii) PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the real property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254; (iii) PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806; (iv) PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805; and (v) Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25, 2007, G-10 1001679.14 08/311001679.15 09/07/12 and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at Reception No. 200705491. 72. Party(ies) means, individually or collectively as the context dictates, the Town, TCMD and Master Developer. 73. Past Developer Advance(s) means, collectively and as more specifically set forth in Exhibit E, the following TCMD obligations incurred prior to the Effective Date: (i) the principal balance of $10,500,000 (TEN MILLION FIVE HUNDRED THOUSAND DOLLARS) payable to certain of the Developer Affiliates, together with interest thereon at the rate set forth in the documents creating such obligations; and (ii) the principal balance of $1,500,000 (ONE MILLION FIVE HUNDRED THOUSAND DOLLARS) payable to the Buffalo Ridge Affordable Housing Corporation, together with interest thereon at the rate set forth in the documents creating such obligation [Confirm amounts after Exhibit E completed.] 74. Permitted Uses has the meaning set forth in Section 6.2(a). 75. PIC(s) means, individually or collectively as the context dictates, the Commercial PIC and/or the Mixed-Use PIC and/or any other public improvement company established for the Property from time to time. 76. PIF Covenants means, collectively and as amended from time to time, the Declaration of Covenants for The Village (at Avon) Commercial Areas Recorded May 8, 2002 at Reception No. 795012 and the Declaration of Covenants for The Village (at Avon) Mixed Use Areas Recorded May 8, 2002 at Reception No. 795013. [modify to reflect amendments recorded at Effective Date] 77. Planning Area(s) means the portion(s) of the Property described in the PUD Guide and depicted in the PUD Master Plan as “Planning Areas” or identified therein as “PA-[x].” 78. Pledge Agreement has the meaning set forth in the Tank Agreement. 79. Preliminary Acceptance means the Town’s Acceptance of ownership of Dedicated Public Improvements (including real property interests and/or improvements constructed thereupon) and undertaking of full responsibility for all operations maintenance, repair and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights-of-way, management of noxious weeds and similar matters in accordance with Town’s generally applicable procedures and standards) with respect to Dedicated Public Improvements, subject to a two (2) year warranty period (or any shorter period set forth in the Municipal Code as in effect from time to time) and the applicable Developer’s or District’s resolution of any warranty matters arising during such period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 80. Prioritized Capital Projects has the meaning set forth in Section 3.11. G-11 1001679.14 08/311001679.15 09/07/12 81. Project means the mixed-use project proposed to be developed on the Property with the uses, densities and development standards more particularly described in the Development Plan. 82. Project Ad Valorem Taxes means the tax revenues resulting from imposition of the respective mill levies of TCMD and VMD, net of the costs of collection retained by the Eagle County treasurer. 83. Property has the meaning set forth in Recital B. 84. Public Improvement(s) has the meaning ascribed to such term in the PUD Guide, and includes but is not limited to all such improvements specifically or generally described in the Service Plans. 85. Public Improvement Agreement(s) means a public improvement agreement (as such term generally is used in Section 7.32.100 of the Municipal Code (as in effect on the Effective Date or as amended from time to time), subject to the terms and conditions of the Development Plan modifying and/or exempting application of said Section 7.32.100) that is executed, either prior or subsequent to the Effective Date, in connection with the proposed development of a portion of the Property. 86. Public Improvement Fee(s) means the Credit PIF, the Add-On RSF and any future Add-On PIF, which are privately imposed fees (and not taxes) imposed on Taxable Transactions (and such other transactions as may be set forth in the PIF Covenants from time to time) in accordance with the terms and conditions of the PIF Covenants and the Development Agreement. 87. PUD Master Plan means The Village (at Avon) P.U.D. Development Plan/Sketch Plan dated __________, 2012, attached as Exhibit B of the PUD Guide, as amended from time to time, which constitutes the approved sketch plan and master plan for development within the Property. 88. PUD Guide means the Amended and Restated PUD Guide for the Property (and all exhibits thereto, including but not limited to the PUD Master Plan) dated [insert approval date], as amended from time to time. 89. Real Estate Transfer Fee means the Credit PIF imposed pursuant to the PIF Covenants on real estate transfer transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Real Estate Transfer Fee shall not be construed to be part of a Taxable Transaction, and shall not be subject to the Town’s tax on real estate transfer transactions. 90. Recital(s) means, individually or collectively as the context dictates, the information set forth in the provisions of the “Recitals” section of the Development Agreement. 91. Record(ed/ing) means to file, having been filed or appearing in the real property records of the Eagle County Clerk and Recorder’s office. G-12 1001679.14 08/311001679.15 09/07/12 92. Replacement Bonds means bonds that TCMD may issue after the Effective Date for the purpose of extinguishing, replacing, refunding or defeasing all or portions of the Past Developer Advances which: (i) bear a lower effective interest rate than the effective interest rate of the Past Developer Advances, (ii) are not secured by (and cannot be paid from) Credit PIF Revenues; and (iii) unless otherwise agreed to by the Town in writing, do not exceed a par value of $12.4 million in principal; and (iv) do not result in an increase of, or count against, the Credit PIF Cap. 93. Retail Sales Fee means the Credit PIF imposed pursuant to the PIF Covenants on retail sales transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions and, pursuant to Section 6.4(a)(iv), shall be imposed on the use of building materials within the Project to the extent the Town in the future enacts a municipal use tax on building materials. 94. Revocable License Agreement means that certain Revocable License Agreement for Snow Storage executed concurrently with the Effective Date by and among the Town, Master Developer and TCMD, with respect to the rights and obligations of the parties thereto regarding the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)) for snow storage. 95. Sanitation District means the Eagle River Water & Sanitation District. 96. School Sites Dedication has the meaning set forth in Section 3.8(a). 97. Section refers to a numbered section of the Development Agreement, unless otherwise stated. 98. Service Plan(s) means, individually or collectively as the context dictates and as may be amended from time to time, the Service Plan for TCMD and VMD, each dated August 11, 1998, and approved by the Town Council in accordance with Part 2, Article 1, Title 32, C.R.S., together with any other service plan(s) that Town Council may approve for such additional District(s) as may be organized for the Project in the future. 99. Settlement Term Sheet has the meaning set forth in Recital H. 100. Site has the meaning ascribed to such term in the PUD Guide. 101. Site Specific Development Plan means a “site specific development plan” as defined in the Vested Property Rights Statute, but for avoidance of doubt shall not be construed to include a preliminary plat, a grading permit, a building permit, or the continuation of a temporary use beyond the term contemplated therefore in the approval. 102. Supplemental Bonds means additional financial obligations of TCMD (including bonds issued by TCMD and/or Additional Developer Advances) issued at any time during the period commencing on the Effective Date and continuing through and including January 1, 2040: (i) which are payable in whole or in part from Credit PIF Revenues; and (ii) the proceeds of which are utilized to finance Capital Projects and/or (in the case of TCMD bonds) to defease Replacement Bonds. G-13 1001679.14 08/311001679.15 09/07/12 103. Tank Agreement means that certain Traer Creek Water Storage Tank and Water Service Agreement made and entered into as of [insert effective date] by the Authority, the Town, TCMD, Master Developer and certain “Limited Parties” as defined therein. 104. Tank Project has the meaning set forth in the Tank Agreement. 105. Tank Project Bonds has the meaning set forth in the Tank Agreement. 106. Tax Credit means the Town’s obligation to provide tax credits to offset the effect of the Public Improvement Fees as described in Section 4.2(a) and in Article 6, which obligation is implemented by and codified in the Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 107. Taxable Transaction(s) means a retail sales transaction, a real estate transfer transaction, or an accommodations/lodging transaction occurring within the Property which, subject to application of the Tax Credit as set forth in the Development Agreement, is subject to the Town’s sales tax, the Town’s real estate transfer tax or the Town’s accommodations/lodging tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Effective Date such use tax shall be automatically and without the need of any formal action incorporated into the foregoing definition. 108. TC-HD means Traer Creek-HD LLC, a Colorado limited liability company 109. TCLLC means Traer Creek LLC, a Colorado limited liability company. 110. TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 111. TCMD Bond Reissue means bonds issued by TCMD on or prior to the Effective Date to refund its Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds, Series 2004, in implementation of the Settlement Term Sheet. 112. TCMD Reissue Documents means the indenture, the custodial agreement and related documentation executed in connection with closing of the TCMD Bond Reissue and which establish, inter alia, the priority of uses for which District Revenues can be utilized. 113. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company. 114. TC-RP means Traer Creek-RP LLC, a Colorado limited liability company. 115. TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company. 116. Term has the meaning set forth in Section 1.4(b). 117. TIF Revenues means the net revenues actually received by AURA from the property tax increment resulting from creation of one or more urban renewal area(s) including all or any part of Lot 1. For purposes hereof, the term “net revenues” means the revenues remaining available G-14 1001679.14 08/311001679.15 09/07/12 for use by AURA after remitting: (i) to the Districts, 100% of the tax increment revenues resulting from the Project Ad Valorem Taxes; and (ii) to any other taxing authorities having territory within the Property, such portions of the tax increment revenues resulting from the mill levies of the other taxing authorities as AURA may be required to remit pursuant to the terms of separate agreements with such taxing authorities, if any. 118. Town means the Town of Avon, a home rule municipal corporation of the State of Colorado. 119. Town Council means the Town Council of the Town. 120. Vested Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the Original Effective Date. 121. Vested Property Rights has the meaning set forth in Section 2.4. 122. Vesting Term has the meaning set forth in Section 1.4(a). 123. VMD means The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 124. Water Bank has the meaning set forth in Section 3.5. 125. Water Rights has the meaning set forth in Section 3.5. Document comparison by Workshare Compare on Friday, September 14, 2012 3:18:24 PM Input: Document 1 ID PowerDocs://DENVER01/1001679/14 Description DENVER01-#1001679-v14- Amended_and_Restated_Development_Agreement_for_th e_Village_(At_Avon) Document 2 ID PowerDocs://DENVER01/1001679/15 Description DENVER01-#1001679-v15- Amended_and_Restated_Development_Agreement_for_th e_Village_(At_Avon) Rendering set Exact Changes OJ Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 122 Deletions 131 Moved from 4 Moved to 4 Style change 0 Format changed 0 Total changes 261 September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   1 | Page    Staff Report  September 25, 2012 Avon Town Council Meeting  Report Date   September 20, 2012  Application   Final Planned Unit Development (PUD)   File No.   PUD12004  Zoning    Planned Unit Development  Prepared By   Matt Pielsticker, AICP, Planner II  Introduction  The Applicant, Harvey Robertson of RMT Architects, representing the owners of the Village at Avon  property, has submitted a Final PUD Application (“the Application”).  The Application includes an  Amended and Restated PUD Guide (“PUD Guide”) Version 16 (Exhibit A), Amended PUD Map (“PUD  Master Plan”) Version 11, and a Subdivision application (“the Plat”).  Accompanying the Application is a  Project Narrative and Written Statement (Exhibit B).          The Application is intended to implement certain provisions of the Settlement Term Sheet (“STS”) –  made and entered into on October 7, 2011 by and between the Town, Traer Creek LLC, Traer Creek‐RP  LLC, Traer Creek Plaza LLC, EMD Limited Liability, Traer Creek‐HD, LLC, Traer Creek‐WMT, LLC, BNP  Paribas, and Traer Creek Metropolitan District.       Submittal of the Application followed the approval of a Preliminary PUD application by the Town Council  on July 10, 2012.   The Planning and Zoning Commission (“PZC”) reviewed the Application and  recommended that the Town Council approve nine (9) of the eleven (11) STS land use matters, but deny  the application overall.  The PZC findings of fact and recommendations were distributed to Council at  the last public hearing.  All application materials are available for review on the Town’s website at  www.avon.org/referral.    Executive Summary  The Application proposes a number of PUD amendments to the approved zoning control documents for  the property, ranging from minor changes and clarifications to major amendments to development  standards and related processes.  Since the Preliminary PUD was approved by the Town Council, there  have been additional modifications to the PUD Guide, and it should be noted that the PUD Master Plan  is unchanged since Preliminary PUD.      On July 17, 2012, Town Staff sent a redline strikethrough version of the PUD Guide to the Applicant in an  attempt to narrow the review to STS items.  There were a number of items from previous PUD Guide  versions that were not supported by Staff or Council.  The exercise in producing a strikethrough PUD  Guide was intended to communicate a detailed iteration that not only implemented matters of the STS,  but included some mutually beneficial matters for all parties.    On July 24, 2012 the Applicant submitted another redline strikethrough of Staff’s recommended version  of the PUD Guide.  It has become clear that there are some outstanding differences in opinion and/or  interpretation that exist.  Additionally, the applicant acknowledged that numerous matters that “require  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   2 | Page    further discussion”.   Additional changes were incorporated into the Application that have neither been  discussed nor explained in that cover Memorandum.      During PZC review, it became clear that PZC would not be able to adequately review the entire  application.  Instead the PZC focused on the STS items as directed by Council.  On August 27, 2012 the  Applicant addressed the mandatory review criteria with a letter addressed to PZC (Exhibit C).  That  analysis, along with all public comments distributed to Council through the life of the Application,  provide valuable input for Council’s consideration.     This application was submitted on August 31, 2012, after which Town Staff provided a similar  strikethrough iteration of the PUD Guide to compare with the existing PUD Guide and address STS  matters.      Throughout the application process, Staff, public, PZC, and Council have expressed concern to the  apparent lessening of Town regulations.  The root issue is the diminished authority of current (or future  as may be amended) regulations contained in the AMC.  When the property was annexed and originally  zoned, the Municipal Code was defined “as in effect from time to time.”  There are defined regulations  or processes frozen (i.e. vesting, design review); however, including a PUD exhibit devoted to exclusions  from the AMC is neither fully understood nor appropriate given the complexity of the project and the  long range of the contemplated vesting term.                Staff is unable to support the Application as presented, as there are conflicts with the PUD review  criteria for a number of the amendments.  Additionally, no clear rationale or justification has been  provided by the Applicant for amendments not included in the STS.  _____________________________________________________________________________________  Contents  A. PUD Amendments      Permitted Density…………………………………………………………………………………….3    Development Standards…………………………………………………………………………..4     Special Review Use & Temporary Use…….………………………………………………..5    Subdivision……………………..………………………………………………………………………..5    Amendment Procedures…………..………………………………………………………………6   Supplemental Regulations………………………………………………………………………..6    Exhibits …………………………………………………………………………………………………….9  B. PUD Master Plan Amendments…………………………………………………………………………………….12  C. Subdivision Plat     Engineering Summary………..……………………………………………………………………12    Recommendation……………………………………………………………………………………13  D. Review Criteria……………………………………………………………………………………………………………..14  E. Recommendation…………………………………………………………………………………………………………21  Findings of Fact……………………………………………………………………………………….22    September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   3 | Page    A. PUD Amendments     To organize Council’s review, this section of the report is structured with PUD amendments in order of  their appearance in the Amended PUD Guide.  Pertinent PUD Guide sections and headings are  referenced.  Staff recommendations are contained throughout this section, and all recommendations  are collated later in this report.        A.4(g)(i) Street Alignments  This section was amended to reference road designations on the PUD Master Plan as being permanent,  temporary, or conceptual.  Per Staff’s direction, this section was amended to clarify that preliminary  engineered road design plans must be provided if/when portions of “Main Street” are to be constructed.   This would ensure proper phasing and connectivity of future phases.  During the review process with  PZC, there was expressed concern that temporary pedestrian facilities should be provided, connecting  East Avon with Post Boulevard due to safety concerns with the existing conditions.               A.4(g)(ii) Planning Area Boundaries  Currently, Planning Area boundaries run to the Right‐of‐way boundary line when such boundaries abut  streets.  There is new language stating that planning area boundaries would be to the middle of roads  when abutting streets.  The net effect of this modification is not fully understood, but could result in  more density on less land.  For example, Planning Area A contains approximately 2,100’ of Main Street  ROW frontage.  If the future ROW area (approximately 4 acres) is carved out, and the density per/acre is  retained for the remaining developable portions of Planning Area A, it would result in approximately 100  dwelling units (25 dwelling units/acre) on 39 acres instead of 43 acres.  Not included in this example are  the E. Beaver Creek Boulevard and north‐south streets indicated on the PUD Master Plan.  This  amendment is not rationalized by the applicant, and Staff does not recommend approving this change.         B. Total Permitted Density  1(a) Commercial Uses.  The consolidated gross square footage has been increased from 650,000 sq. ft.  to 950,000 sq. ft.  There was no justification provided by the Applicant for the increased commercial  density, and Staff does not recommend approval of any increase without a corresponding public benefit.   The PUD Guide does not address additional exactions (i.e. affordable housing) or dedications to mitigate  the additional impacts of potential density increases.  Additional impacts such as traffic are not currently  understood.         B.2. Planning Area I Density.  New section to include proposed commercial space and dwelling unit  density assignment for Planning Area I.  These numbers were recommended by Staff during Preliminary  PUD review and are based upon acreage and Dwelling Units/ per acre calculations compared to other  planning areas.  This density is in addition to the cumulative density permitted in all other areas of the  PUD.      B.4. Density Calculations.  New section to clarify that actual density per acre could exceed that for a  portion of a planning area as long as total density for the planning area is maintained.  This language  coupled with the size of the planning areas would allow for higher concentrations of dwelling units in  each planning area.  While the ultimate density for each planning area as a whole would be maintained,  it is difficult to understand where concentrations of density may occur and Staff’s preference is to  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   4 | Page    regulate density on a lot by lot basis.   If development is proposed before a planning area is subdivided,  then the area of the individual project should provide the baseline for density calculations.    While this density computation method is generally accepted in the planning field for zoning on a  property‐by‐property basis (i.e. 1 acre property is permitted 25 dwelling units per acre and therefore all  25 of the permitted dwelling units could be built on one half of the site), large tracts of land such as PA‐ A, PA‐I, or PA‐K, present physical constraints and could lead to a disproportionate amount of  development in more sensitive areas.  Staff does not support this language as it provides no certainty to  adjacent properties or future constructed developments as to where density or intensity of  development will occur.    B.6. Commercial/Residential Ratios.  This is a carry‐over from the existing PUD Guide.  Within the  Regional Commercial Planning Areas (now referred to as F, G, H), the residential/commercial ratio mix is  currently 80% minimum commercial.  In the proposed PUD this ratio is removed for these commercially  oriented planning areas allowing potential for all residential.  Staff does not recommend this  modification as it would not ensure mixed‐use development.        B.8. Dwelling Unit Calculations.  This section is taken from the definition section of the 1998 PUD for  “Dwelling Unit” and re‐inserted and amended.  The notable changes include changing the  Primary/Secondary definition to count as one (1) dwelling unit instead of two (2), and the  accommodation units definition was modified such that the average square footage of the units would  not be limited to 600 sq. ft.   The change in Primary/Secondary definition was discussed in length during  the PZC review of the Application and the PZC ultimately recommended against this modification due to  its implications on the hillside residential area and possible negative impacts experienced with such an  increase in potential density.  Staff is in agreement with the Planning Commission’s recommendation, as  this change was not contemplated in the STS and may result in a disproportionate amount of residential  development in the hillside area.   The modification to the PUD Master Plan indicates additional estate  lots, and additional acreage for the multi‐family area (RMF‐1 as proposed).  These two changes are  acceptable, but the changes to the definition of Dwelling Unit are not supported.      D. Development Standards within the Village (at Avon) PUD.         Please refer to the Planning Area by Planning Area comparison chart (Exhibit D) to identify all of the  proposed changes to each Planning Area.  Generally speaking, Staff is supportive of a number of the  changes but would like to submit the following comments for Council’s consideration:  1. Previous Staff Comments.  The Town Attorney provided the applicant and Council with  comments and strikethrough/additions of the proposed PUD Guide.  Planning Staff is supportive  of the strikethrough (“Version 16‐E”) for this section of the PUD Guide, as directed by Town  Council.  2. Purpose Statements.  These were removed from each planning area and no rationale was  provided.  These intent statements provide valuable guidance to the Director when providing  determinations for similar uses to those listed in the permitted categories.  3. 65,000 sq. ft. cap.  The Application proposes an increase in permitted single‐use tenant for  Planning Area A.  Staff does not recommend increasing this cap at this time.  4. 950,000 sq. ft. Commercial.    This proposed change to the overall commercial square footage  cap was not contemplated by the STS and no offsetting affordable housing has been provided to  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   5 | Page    mitigate such impacts.  Staff does not recommend approval of changes to commercial density  until either a need is demonstrated or the increase is properly mitigated elsewhere in the PUD.  5. Telecommunications Equipment.  These uses are not specifically addressed in the 1998 PUD  Guide.  Consistent with the AMC for all zone districts in Town, Staff would recommend that this  particular use, which includes freestanding facilities, towers, etc., be listed as an SRU in all  proposed planning areas.   6. Outdoor Storage.  The Application proposes to add Outdoor Storage as a use by right.  Outdoor  Storage is defined as “any equipment, good, junk material, merchandise or vehicles in the same  place for more than 24 hours in any area other than a roof structure.”  This use is more  appropriately listed in the SRU category for all Planning Areas to ensure proper screening.    E. Special Review Use  The criteria for review, recommendation, and approval of SRU permits are modified with the addition of  two (2) review criteria from the AMC related to mitigating any potential adverse impacts of a proposed  use, all the while maintaining adequate levels of service.  The amendment section was expanded to  mirror the AMC, and would allow PZC to authorize the Director to approve expansions to SRU permits.   Staff supports all of the amendments to Section G and this is seen as an improvement to conform to the  current AMC regulations regarding SRU permits.  While not part of the STS, this is viewed as a mutually  beneficial modification.    F. Temporary Uses and Structures  This is a new section to address the Town’s temporary use (or structure) process in the AMC.  An  applicant would be able to apply to the Town for uses listed in §7.24.080 Temporary Uses and  structures, AMC, with the prior written approval of the Village DRB.  Examples of temporary uses include  outdoor sales, temporary parking, and outdoor special events or festivals.  The inclusion of this section is  appropriate and provides clarity for this particular codified Town process.  The review criteria must be  considered for temporary uses on private and public property, such as Planning Area B.    G. Subdivision  Section G‐ Subdivision.  The intent of subdivision regulations are to create individual lots for sale, ensure  that there are adequate public improvements to serve the lots, and certify that the lots are in  conformance with all applicable regulations.  The subdivision process occurs concurrently with a PUD  approval or, in the case of the Village (at Avon) after the PUD approval process.  Essentially, the  subdivision process implements the development plan outlined in the PUD and is a technical  Engineering exercise.   Section G of the PUD replaces the subdivision procedures, review criteria, and  exceptions in the AMC for Planning Areas A, B, C, D, E, F, and J.  The STS contemplates an administrative  approval for subdivisions, meaning subdivisions will be approved by the Director of Community  Development but not a new procedures, review criteria, and exceptions in the PUD Guide.   Incorporating subdivision procedures, review criteria, and exceptions in the proposed PUD will prevent  changes to the subdivision process without the consent of the Master Developer for the duration of the  PUD Guide, and subsequently the property owner following the vesting period.  This is different than  AMC where the subdivision standards can change based on the Town’s or other entities requirements  over time.  If Town Council supports these procedures in the PUD, it is recommended that they have a  sunset date that coincides with the vesting period.    September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   6 | Page    There are four exceptions to the Subdivision process in addition to what is in the AMC, including: (1)  dedication of right‐of‐way; (2) correction of a legal description in a prior conveyance; (3) any transfer by  operation of law or bequest, leaseholder interests for any period of time; and, (4) division of land  created by the foreclosure, or provision of deed‐in‐lieu of foreclosure, of a lien, mortgage, deed of trust  or any other security instrument.  Of particular concern in the additional exceptions is the dedication of  right‐of‐way.  It is important that the dedication of rights‐of‐way occur through the platting process as it  exists throughout the Town.     The proposed PUD lists submittal requirements for a subdivision application, while the AMC defers to  the Director of Community Development to determine submittal requirements.  The limitation of the  application submittal requirements is a concern because it is impossible to develop a list of submittal  requirements for a subdivision application of unknown scope.  The proposed list is focused solely on  road construction and does not include many items that are typically required such as utility plans or  retaining wall plans and does not contain the flexibility to require plans to address specific site  constraints or construct unique improvements such as a lake or recreation trail.  It would be more  appropriate to default to the AMC or change the Application Submittal requirements to include all  construction documents and supporting reports for all public improvements within the subdivision.    The proposed PUD also includes ten review criteria for approval that focus on the technical adequacy of  the Final Plat, adequate public facilities and compliance with the PUD Master Plan.  These criteria act in‐ lieu of the 23 review criteria listed in the AMC.  Staff recommends following the review criteria in the  AMC because it is more comprehensive and will ensure that the subdivision will have adequate  infrastructure; sufficient financing; proper phasing of roads and utilities; utilities will have ability to serve  the subdivision, and that road layouts are designed to minimize disturbances and maximizes efficiencies.    Section G.3., Material Modifications of Certain Street Extensions or Alignments, is intended to provide a  mechanism that requires any major changes to the road network to be reviewed and approved by Town  Council, as determined by the Director.  This list was a collaborative effort between the Applicant and  Staff.   Road connections would be required for Main Street at Chapel Place and Post Blvd and for East  Beaver Creek Blvd. at the existing East Beaver Creek Blvd near City Market and Post Blvd at Fawcett  Road.  If the Developer desires to modify these connection locations in the future , the Subdivision  application would require Town Council approval.     H. Development Plan Amendment Procedures  1. General.  The existing and proposed PUD both allow the Director of Community Development to  determine which process, administrative or formal, amendments will be processed.  New language was  added to this section to require the Director (or Council) to notify the applicant of the intent to reject or  deny an application to allow for time to amend applications.  This is standard practice when Town staff  reviews any development or zoning application, and the added language does not appear to be  necessary.         3. Administrative Amendments.  The list of eligible administrative amendments is similar to the existing  PUD.  While the existing PUD allows for amendments up to 10% for dwelling units, the Application  proposes to carry this measured amount (up to 10% of affected area) forward for planning area  boundary modifications.  At Staff’s request, language was added to prevent the possibility of relocating  an entire planning area from one location in the PUD to another under the administrative amendment  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   7 | Page    procedures.  Appeal procedures have been added to this section to allow Town Council review if  requested by an applicant.   All of the proposed modifications to this section are acceptable to Staff.      4. Modifications Not Requiring Amendment.   Reference to Planning Area K building envelopes is not  necessary as the language correctly points out that any building envelope created or modified will be  through the formal subdivision process.            I. Supplemental Regulations.  1.  Interim Uses.      This is a new section to formally consent to the land uses that have occurred from  time to time on the Property.  Staff is comfortable with listing these uses as proposed.        2. Solid Fuel Burning Devices.  Staff supports repealing this section and deferring to the codified Town  of Avon regulations in the AMC.  The existing regulations are similar to the Town regulations; the  primary difference being that the AMC version requires EPA‐listed devices.      3. Signs.  This section was amended to articulate the Town’s review authority for signage and  improvements within public rights‐of‐way.  In previous versions of the PUD guide there were references  to billboard advertisement possibilities in portions of the PUD fronting Interstate‐70.  As drafted, the  Town would have no purview over such signage type.   Staff would recommend additional language to  clarify that the Town is the permit authority for all signs, and that “billboard” or similar type signs are  prohibited on the Property.      6. Drainage Requirements.  This is an entirely new section, and is intended to implement portions of the  STS by incorporating the “David Johnson Drainage Study”.  The David Johnson Study analyzed the  vegetative cover on the slopes north of I‐70 and indicated that there is more vegetative cover than what  was assumed in the Town’s Drainage Master Plan.  An increase in the amount of vegetative cover  dramatically decreases the amount of runoff generated from the slopes north of I‐70 so has significant  consequences for several drainages.      Staff agrees that the assumptions were overly conservative in the Drainage Master Plan and they should  be re‐visited.   Staff’s primary concern at this point is that it has not completed a full review of the Study,  and it is rash to incorporate the study without proper review.  Given the timing of this agreement and  the inability to perform an updated Study in the timeframe required to address this term, Staff does not  recommend approving the language in this section as drafted.    8.  Alternative Equivalent Compliance (“AEC”) and Variances.     Currently, there is a subsection within  the Design and Improvement Standards section of the PUD Guide that allows the Town to consider  variances from these particular AMC standards at a Preliminary Plan review stage.  The standards for  which these variances could be considered include things such as maximum road grade, minimum  driving surface width, cul‐de‐sac standards, and drainage provisions.  The “variances” are limited to  Engineering Standards found in Section 16.40 of the AMC; this is a now‐retired AMC section limited to  street engineering and design standards.    As proposed, the concept for reviewing developments that do not meet the literal language of a finite  code section would be extended to allow a discretionary review process for all Development Code (Title  7) standards and requirements that may be applicable to the property – including engineering  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   8 | Page    standards.   Staff does believe that is the intent of this section as drafted, and would recommend that  the section be modified to clarify that the AEC process  is limited to code sections specified in  §7.16.120(a), AMC.  The AEC provisions are currently limited to the following sections elsewhere in  Town:   §7.20.100, Employee Housing Mitigation; §7.28.040, Mobility and Connectivity; §7.28.050,  Landscaping; §7.28.060, Screening; §7.28.070, Retaining Walls; §7.28.080, Fences; §7.28.090, Design  Standards; and §7.32.040, Paved Trail Design.            9.  Supplemental Design Standards: Planning Areas A & D.  This is a new section to address concerns  expressed by neighboring property owners who abut PA‐A and PA‐D.  During Preliminary PUD review  concerns were expressed with the back sides of buildings along Main Street and the possibility of less  architectural attention.  This section carries forward the supplemental design standards for Hotels in PA‐ J to mixed‐use and commercial buildings in PA‐A and PA‐D.  Carbon copying these standards to other  commercial projects adjacent to established neighborhoods appears to be appropriate.          10.  Supplemental Design Standards: PA‐J Hotel, Motel and Lodge.   These standards were identified in  the STS as a priority.   The 1996 Comprehensive Plan calls out this area of the PUD as Subarea 19: I‐70  North District.  The Plan states that when developed attention must be given to visual quality and  gateway treatments.  Specifically, the Plan recommends that “detailed guidelines and requirements for  design considerations for a possible I‐70 interchange” be developed.  The Plan is sensitive to the high  visibility and arid nature of this property.              After discussions with PZC, the standards were modified several times before the final version proposed  in the Application.  PZC recommended language from the AMC be incorporated concerning earth tone  colors, but this language was not incorporated in the final Application.  Staff agrees with PZC’s  recommendation.        13. Natural Resource Protection.   This is a new section to clarify that certain improvements will be  permitted in the Village on slopes in excess of thirty percent (30%) slope, and road improvements could  be on slopes in excess of fifty percent (50%).  This matter is discussed later in this report.    14. Residential Fire Suppression Systems.  This section was modified to clarify that fire suppression  systems in the hillside area (RFM‐1 & K) must meet Eagle River Fire Protection District regulations, as  may be amended.  It explains further that the Town may enforce such regulations but may not adopt  more stringent regulations.    At subdivision, the available water supply for suppression systems must be  verified as recommended by the Fire District.      17. Provision of Certain Amenities.  The existing PUD requires the construction of 50% of the community park be located in Planning Area N  commence prior to the date of the 601st certificate of occupancy for a residential dwelling unit.  The  remaining 50% of the community park will commence upon the issuance of the 1,201st residential  dwelling unit certificate of occupancy.  The pocket park and bike trail improvements must commence  with development immediately adjacent parcels.  Currently a community center is planned in Planning  Area B, with the first phase required when the 601st certificate of occupancy and the second phase when  the 1,201st certificate of occupancy is issued.  An ice skating/events center is required for Planning Area  C with the certificate of occupancy for 200,000SF of commercial space in Planning Area A.    September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   9 | Page    In Lot 1, the old Planning Area B and C (now B) will be combined into one Lot and transferred to the  Town as part of the process.  The terms of the STS transfer the obligation for constructing park  improvements from the Master Developer and TCMD to the Town of Avon for Planning Area B.        Typically, the Town pays for capital improvements with the real estate transfer tax, but in the PUD those  revenues would go to pay for the bonds so the Town does not have a revenue stream other than the  Avon Urban Renewal Authority (AURA) to construct such improvements.  The old Planning Area N‐ South, (now Planning Area J West) land use will be changed from Parkland to commercial development.   The 5.8 acres of Parkland will be relocated to Planning Areas A, C, D, I, J, K, and/or widening of P1, at  Developer’s discretion.  Unless waived by the director, the future dedication(s) must meet the following  minimum requirements:  1) ¼ Acre minimum, 2)Centrally located within or adjacent to neighborhoods  served, 3)sited to provide public surveillance form adjacent or nearby streets, 4)Accessible from the  surrounding neighborhoods by sidewalks and/or trails, and 5) Unless dedicated for linear park purposes  (i.e. bike path), at least fifty (50%) percent of the dedicated parkland shall be well drained and level.    PZC recommended that Council approve the zoning change for N‐South to commercial with the  condition that the displaced 5.8 acres be “materially equal to the usability of the current site” to ensure  an equal trade of land.  The standards mentioned above could result in comparable parkland and it  would be determined in the future during platting.      The effect may result in the 5.8 acres being dedicated as pocket parks rather than a large community  park, adding a level of uncertainty to how the parks will be developed in the PUD.  This approach to park  planning may not improve the ultimate dedications but it is difficult to understand until the time of  platting.  The Council must consider the review criteria that seeks improvements to open space  provisions (§7.16.060(e)(4)(i), Review Criteria, AMC).    Exhibit D. Wildlife Mitigation Plan  The existing PUD includes a Wildlife Mitigation Plan focused on areas north of Interstate 70.  The  Mitigation Plan acknowledges the loss of critical wildlife habitat and regulates the PUD with an identified  critical migration corridor.  The Wildlife Mitigation Plan includes provisions for bear proof trash  receptacles, regulates hours for construction activity, and includes the requirement to establish a  wildlife mitigation fund among other things.  Some of the requirements such as construction hours are  above and beyond the Town’s codified regulations.      Substantively, there have been no changes to the proposed PUD with respect to the Wildlife mitigation  Plan. References to lot numbers for setbacks or wildlife corridors were updated as were the Open Space  tract references.  It must be noted that the Colorado Parks and Wildlife (CPW) provided comments and  suggested that additional density (and roads) north of I‐70 should have corresponding wildlife  protection measures.  The CPW comments also state that a double wide cattle guard should be added  due to the fact that the new interchange opened up an entrance for wildlife and the double wide cattle  guards have proven effective elsewhere.          In written correspondence from the Applicant to PZC, it was stated that the Applicant “will coordinate  with DOW with respect to the use of a double wide cattle guard at the I‐70 interchange at Planning Area  J”.  Staff recommends adding this language to the Wildlife Mitigation Plan, Exhibit D, to make this  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   10 | Page    recommendation binding prior to any further development north of I‐70.  No other specific  recommendations were provided by the CPW.    Exhibit E. Minimum Design Guideline Standards  During PZC review of the Application, this Exhibit was discussed as it is referenced in the Supplemental  Design Standards for Hotel, Motel, and Lodge uses in PA‐J.  While outside the scope of review, PZC  recommended that the current (2011) Design Review Guidelines replace the ones currently carried  forward (1998), as the ones in Exhibit E did not appear to be comprehensive enough to serve as a  baseline set of Guidelines.      Exhibit F. Street Standards   The STS stipulates that the PUD Guide be amended to “depict narrowed E. B.C. Blvd., and allow E. B.C.  Blvd. to be developed in phases as determined by Developer provided that E. B.C. Blvd. is improved as  necessary to provide access to subdivide or developed property.”  Also contemplated with the STS is the  dedication of certain easements and ROW sections to the Town (Exhibit F to this report)  The Application is requesting new road standards, cross‐sections, and layouts.  Page F‐1 shows the new  proposed layout for the PUD and the proposed street classifications.  The new layout proposes two (2)  east‐west connections, one from Chapel Place to Yoder Avenue named Main Street, and the second  from East Beaver Creek Blvd to Fawcett Road named East Beaver Creek Blvd.  Main Street is proposed to  have an 80‐foot wide ROW in the central segment, a 50‐foot wide ROW through the western and  eastern segments.  Instead of approving conceptual cross sections as outlined in Section F, PZC  recommended minimum performance standards to allow flexibility.  PZC recommended: 1) 50’  minimum ROW in all cases, 2) 6’ minimum wide center islands or 6’ landscaping strips on either side of  roads, 3) 5’ minimum sidewalks, 4) Turn lanes be reviewed on as‐needed basis, and 5) pedestrian  facilities must be constructed with each phase.       East Beaver Creek Blvd is proposed to be classified as a rural local road which will have a 50‐foot wide  ROW consisting of a 22‐foot wide drive surface, two‐foot shoulders and the remaining area be used for  drainage and snow storage.  Swift Gulch Road is proposed to be extended to Planning Area I and will  include a detached recreation path.  The road to Planning Area K would be a local rural road and  generally follows the alignment in the previous PUD.  All of the road layouts are conceptual in nature  and can potentially change as the project is designed.  The proposed road layout on Lot 1 is an improvement over the previous PUD because it follows a simple  grid pattern and is more intuitive.  The road cross sections for Main Street are adequate for the  expected land uses fronting the road.  East Beaver Creek Blvd and Road D are proposed to have high  density land uses and pedestrian facilities should be added along these roads to support the  development and address PZC’s concerns.  It is not appropriate to include the curve radius and site  distance standards in the PUD since they are dependent on numerous parameters including grade,  design speed and land use.   The standards should clearly state that they are not intended to replace the  technical standards for road construction.    Exhibit G. Municipal Code Provisions Not Applicable to the Village (at Avon) PUD  Exhibit G is a new Exhibit that includes a number of exceptions to codified regulations and procedures.   This list includes a number of process, use, and design requirements.  While the STS did contemplate  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   11 | Page    that some level of exceptions to be identified, this analysis touches on the provisions that were not  specifically enumerated.      First off, some of the provisions listed in Exhibit G are acceptable to Staff given the structure of the  existing PUD because there is merit to including a clear, concise list of enumerated exceptions; however,  a number of the listed provisions fall within the category of “generally applicable” regulations suitable  for all properties in Town.   For example §7.24 Use Regulations, AMC, includes a number of regulations  that are not contained in the PUD that provide compatibility throughout Town – such as Home  Occupation, Group Living, or Accessory Structure standards.  Removing requirements that limit  development to areas less than 40% slope (§7.28.100(a)(3), AMC) is inconsistent with the intent of  language in existing PUD and should also be universally applied throughout the Town.  Outdoor Lighting  (§15.30, AMC) is another example of a regulation that was enacted to ensure uniform lighting  throughout Town to avoid light pollution and ensure compliance with the Dark Sky Ordinance.     Planning Staff does not support exceptions in addition to those agreed during the STS process.  There  has not been any rationale provided for additional exceptions, and in some cases clearly conflicts with  the mandatory review criteria.  The PUD review criteria require consistency with the Avon  Comprehensive Plan and the purposes of the Development Code, including but not limited to  §7.104.020 (f) “Provide a planned and orderly use of land, protection of the environment and  preservation of viability, all to conserve the value of the investments of the people of the Avon  community and encourage a high quality of life and the most appropriate use of land throughout the  municipality.”  In order to provide for the orderly use and protection of the environment, Exhibit G  should be removed, or amended as suggested elsewhere in this report.  There has been no rationale  demonstrated by the Applicant of the benefit to excluding numerous provisions.    B. PUD Master Plan Amendments  Aside from the general reorganizing, renaming, and resizing of most planning areas, as is further  described in the Planning area by Planning Area comparison chart (Exhibit D), there are some proposed  modifications to the PUD Master Plan (referred to as “Formal Amendment Two – Version 11 DRAFT”)  that warrant further explanation.      Notes   All of the notes from the existing PUD Master Plan (referred to as “Formal Amendment Number One”)  have been removed, and the note regarding the vested property right was updated and reinserted.   A  note has been added to reaffirm language in the PUD Guide that stipulates a maximum density of 280  Dwelling Units for PA‐I until secondary road access to Planning Area I.  Other notes were added  concerning Planning Area K minimum Open Space requirements and the “conceptual, non‐binding”  nature of other map depictions such as bridges, lot layouts on the hillside, and street layouts.    Roads and Hydrology   Road classifications are proposed to differentiate between constructed, temporary, or conceptual road  types.  The Nottingham Puder Ditch was also added to the Plan as it provides a static reference point.   The ditch provides insight to the proposed locations of PA‐P1 and PA‐B.          September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   12 | Page    Open Space & Parkland  The total for all existing and proposed acreage of Open Space and Parkland, at build out, would be as  follows:     Existing PUD Master Plan Proposed PUD Master Plan Open Space 499.9 acres 539 acres Parkland 44.7 acres 24.8 acres  TOTALS: 544.6 acres 563.8 acres   Please refer to the attached maps (Exhibit E) Staff produced to better understand existing and proposed  open space and parkland areas and locations within the PUD.  The existing PUD Master Plan includes a  total of 44.7 acres of parkland; comprised of 15.7 acres of small “pocket” parks (P1‐P6) on the valley  floor and a 29‐acre Community Park, referred to as Area N, on the north side of the Interstate.  The PUD  also includes 499.9 acres of Open Space, which is split between eleven (11) separate areas scattered  throughout the development with the majority located on the northern hillside areas.      Through this amendment process there have been several iterations of the PUD Master Plan Map  produced by the Town’s GIS person.  Per Staff’s direction, subsequent plat approvals, and STS  agreements for areas north of the interstate, the map has been amended.  Some of these changes have  implications with the open space and park numbers.  For example, areas of the Community Park were  converted to Public Facility sites in response to subdivision platting for Filing 3 to create a site for the  Ambulance District (PF2 ‐ 1 acre) and Fire District (PF3 – 1 acre).  The same area was modified by  converting from Community Park to Open Space due to naturally existing conditions such as the Traer  Creek drainage, and steep topography on both side of Swift Gulch Road.  These changes coupled with  the STS agreement to change “N‐South” to a commercially designated planning area, have resulted in a  net reduction in Community Park area.  It must be noted that some former park areas (i.e. P6 between  interstate and railroad tracks east of Lot 5 Town site) were converted to Open Space as they are not  conducive to park use with steep topography and isolated location.           The proposed PUD Master Plan includes a total of 19 acres of parkland; comprised of three (3) different  areas: 1) P1: Linear 4 acre park following the Nottingham Puder ditch, 2) P2: 2‐acre “flagpole” park lot  between big box stores, and 3) P3: 13‐acre site (formerly N) north of Swift Gulch Road.  With an  additional 5.8 acres of parkland dedicated in the future pursuant to the PUD Guide and CARADA, the  application proposes a total of 24.8 acres of parkland.  The Open Space tracts areas have been  consolidated into seven (7) separate planning areas totaling 155 acres.  The total amount of proposed  Open Space is 539 acres and would be comprised of the OS1‐OS7 areas and at least 29.5% of PA‐K,  which equates to 384 acres within PA‐K.  The Proposed map (Exhibit E) is somewhat deceptive given the  fact that the future open space within PA‐K are undefined until the time(s) of platting for that particular  area.    C.  Subdivision Plat  The Applicant has submitted the Second Amended Final Plat, Amended Final Plat, The Village (at Avon)  Filing 1, a Resubdivision of Lot 1, Town  of Avon, Eagle County, Colorado for the purposes of creating two  new lots for a future park and school.  According to §7.16.070 of the Avon Municipal Code (AMC), this  application qualifies as a Minor Subdivision application because it creates less than 4 separate parcels of  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   13 | Page    land and does not require or propose public improvements.  The Town  Council renders the final decision  on a Minor Subdivision application after conducting a public hearing and shall be approved by either  resolution or ordinance.  In this case, the approval would be contingent upon all other approvals and  would be incorporated into Ordinance 12‐10.    As seen in the Staff Recommended Conditions of Approval below, there is concern over the numbering  of the lots.  Currently the applicant is referring to the Park Site as Lot 2 and the School site as Lot 3, but  these lot numbers conflict with the already platted parcels for the Traer  Creek Plaza building (Lot2) and  Wal‐Mart (Lot 3).  Staff recommends that these lots be renumbered Lots 6 and 7.  Furthermore, Staff is  concerned with the dedication of associated easements.  The proposed plat references the reception  number of the previous plat but since this plat is intended to rescind the previous plat and recreate a  new plat the referencing is not adequate.  Staff recommends that the plat be modified to clearly state  that this plat is dedicating associated easements and not reference the reception number.  The proposed  Development Agreement states that the single‐family equivalents (SFEs) shall be dedicated and assigned  to each parcel on the Final Plat.  The Plat needs to be modified to assign SFEs to each lot created.    Lot 2, the park site, is 4.10 acres and has access from East Beaver Creek Blvd (or “Main Street” as in the  future) through a 20‐foot wide access easement as required in §7.32.020(e)(8) of the AMC.   The  necessary access and associated improvements would not fit in a 20‐foot wide access easement as  proposed.  Therefore, Staff recommends the easement be widened to 50‐feet and its language be  modified to include drainage and utility improvements.  Currently, no utilities serve the property and  they will have to be installed in order to develop the park.  Although, the lack of utilities available at the  property boundary is not in conformance with the AMC, it was acknowledged as part of the STS.    Lot 3, the 4.47 acre school site, is also accessed from East Beaver Creek Blvd and is served by all major  utilities from the same ROW area.  The Final Plat is in general conformance with Title 7, Development  Code, of the AMC, with the exception of the seven conditions outlined below.  Staff is recommending  that the Final Plat be approved, subject to the following conditions:  1. Lot 2 and Lot 3 shall be renamed Lot 6 and Lot 7.  2. A purpose statement added to the Final Plat stating that the purpose of this plat is to  create two new lots, Lot 6 and Lot 7.      3. A note added stating that East Beaver Creek Blvd and Chapel Place are temporary  road easements.   4. The note regarding a vested property right shall be removed from the Final Plat  because it is not necessary.  5. The Plat shall be modified to state the associated easements are dedicated by this  plat and not the reception number of the previous plat that is to be rescinded.    6. The access easement to Lot 6 shall be increased to 50 feet wide.   7. As proposed in the Development Agreement, there should be an assignment of SFEs  for the three lots on this plat.    September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   14 | Page    D. Review Criteria   Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the Council shall consider the following review  criteria when evaluating this application.    (i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or  incorporates creative site design such that it achieves the purposes of this Development Code and  represents an improvement in quality over what could have been accomplished through strict  application of the otherwise applicable district or development standards. Such improvements in  quality may include, but are not limited to: improvements in open space provision and access;  environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and  other utilities and services; or increased choice of living and housing environments.  Staff Response:  The stated purposes of §7.04, Development Code, AMC, and §7.16.060, PUD, AMC,  include statements regarding the implementation of the Comprehensive Plan; regulating intensity of  use; regulating and determining the area of open spaces; establishing building lines; avoiding  increased demands on public services and facilities; providing for phased development of  government services; minimizing adverse environmental impacts of development; provide for  compatibility with the surrounding area; preservation of natural features; minimize adverse  environmental impacts; and promoting sufficient, economical and high quality provision of all public  services and public facilities.    PUD zoning, by nature of its composition, inherently affords opportunities to provide creative site  design and planning.  Flexibility and improved quality of development is the basis for PUD zoning;  however, the amount of flexibility proposed is substantial, without providing assurance that an  improvement in quality over the existing PUD will be realized, or improvements to open space  provisions and access.  There is concern with the lack of certainty with where open space will be  provided and whether or not environmental protection is achieved when some of the AMC  provisions enacted to protect these very resources would be relinquished with the Application.   All  of the Natural Resource Protection Standards (§7.28.100, AMC) should govern the property to ensure  environmental protection.  No justification was provided for exempting the sections of code that limit  development of roads to areas less than 50% slope or excessive changes to natural grade.  As  requested in the Application, these exemptions could violate the purposes of the Development Code.   However, approving the PUD commensurate with the STS and addressing Staff’s concerns expressed  in this report is recommended.    Concerning the provision of streets and roads, it must be noted that the road network in the  proposed PUD Master Plan is an improvement over the existing PUD.  Additionally, the language  regarding essential street connections (Section G.3, PUD Guide) is important to maintain adequate  street connectivity within the PUD and to other established networks.    The Town Council must determine whether the Application confers a substantial benefit and/or  incorporates creative site design to achieve the some of the purposes of the Development code cited  above.  The size of the PUD makes it difficult to understand the effects of eliminating select AMC  sections that were enacted to be universally applied, and amended periodically.    This review criteria mentions that an increased choice of housing is a desired improvement in quality;  consistent with the Comprehensive Plan goals and policies.  The housing mix and number of  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   15 | Page    affordable housing options remains the same as the current PUD despite an increase in commercial  square footage.  It is difficult to find that an increase in commercial space, without mitigation, is an  improvement in quality or substantial benefit to the Town, and as noted elsewhere in this report  Staff does not recommend over 650,000 sq. ft. of commercial space.       (ii) The PUD rezoning will promote the public health, safety, and general welfare;  Staff Response:  The Community Development Department recognizes the need to plan for the  protection of the public's health, safety and welfare.  When evaluating this application it became  apparent that the list of PUD amendments must be reviewed both individually and collectively in  order to realize the big picture of the changes.  Understanding the cumulative effects of the  proposed amendments is extremely difficult given the long‐range consequences and potential  impacts on public health and welfare.      Public welfare is broad and inclusive and is often most accurately reflected in the goals and policies  contained in the Town’s Comprehensive Plan and AMC purpose statements.  As noted, Staff is  concerned with most of the proposed exceptions from the AMC, as these regulations were enacted  to promote the public health, safety, and general welfare.  Staff has also illustrated potential negative  impacts with other Supplemental regulations proposed.    The Applicant has argued that implementation of the STS and approval of the PUD application will  result in an increase in tax base available to the Town to fund municipal services, and ending the  Town’s expenditure of limited resources on litigation.  Implementing the STS will undoubtedly reduce  the Town’s legal expenditures, but approving the PUD application, as submitted, is not merited due  to the number of changes outside the scope of the STS.        (iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of the  Development Code, and the eligibility criteria outlined in §7.16.060(b);  Comprehensive Plan  In addition to the Goals and Policies from the Comprehensive Plan (“the Plan”), there was a level  of awareness that the Village (at Avon) could be annexed and developed; therefore, some  additional policy direction can be found in the Plan.  For example, the Plan highlights the  potential for a new interchange, and goes a step further by identifying developable areas such  as PA‐I.  The Plan contains an Overall Land Use plan which indicated large areas of Open Space  and limited residential opportunities, loosely based on topographical lines for the northern  hillside area.  The Plan acknowledges the developable nature of the “Nottingham Ranch south of I‐70 (Stolport  Property).  The development of this parcel will have a significant impact on the Town and is  discussed in detail in the Land Use Plan (p. 21).”    The Land Use Plan, Figure 4.3, indicates a Town Center area in the vicinity of proposed PA‐A.   Also, “Urban Village” is called out for the rest of Lot 1 and the valley floor.  The Plan envisions  Town Center to include the most intensely development part of Town, clearly more urban in  context.  The Plan speaks heavily to mixed‐use, pedestrian friendly development for the entire  valley floor areas.   Open space and trail linkages are also stressed for the “Stolport” property to  link the project east‐west with other networks.  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   16 | Page    The Plan breaks the Town into subareas and the valley floor is referred to as Subarea 20:  Stolport East District.  An excerpt from the Plan with specific recommendations follows:    Pursuant to the PUD approval documents, the PUD is subject to review of the 1996  Comprehensive Plan.  One of the fundamental reasons for implementing the Plan is to clearly  communicate where and how land uses may occur and to promote and protect the health,  safety, and welfare of the residents and visitors of the Town by using goals and policies that  result from a community review process.  Following is a list of Goals and Policies from the Plan  to consider in light of this Application:   Goal A1.  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.  Staff Response:  The amendments can accommodate a mixed use theme (i.e. permitting mixed‐ use in Planning Area A) with a large residential component and mixed‐use opportunities.   Regional commercial uses are maintained and PA‐J refocuses some of the regional commercial  activities to the I‐70 interchange area, which appears to be an appropriate location for these  types of auto‐oriented activities to strengthen regional commerce.  There is a general shift in  allowed uses from residential to mixed‐use in some other areas of the valley floor.         Policy A1.3.  Flexible zoning such as Planned Unit Developments (P.U.D.) should be encouraged  where it results in more effective use of the land. However, such flexible zoning will only be  allowed where it provides a benefit to the community and is compatible with surrounding  development. Variations from standard zoning must be clearly demonstrated, and will be  permitted only as needed to achieve effective development.  Staff Response: The Application would afford the maximum level of flexibility to the property,  and a number of the changes do not demonstrate any clear benefit to the community.  As  noted, the premise of PUD zoning is to permit creative land development patterns.  Planning  Staff has consistently expressed concern with the extensive list of exceptions to various  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   17 | Page    Municipal Code provisions listed in Exhibit G to the PUD Guide.  A number of the listed  variations do not appear to be necessary to achieve “effective” development, and result in little  or no assurance that the 1996 Comprehensive Plan will be reflected in the final product.      Policy A1.4.  Service and light industrial uses, including warehousing and light manufacturing,  should be directed to terrain that supports effective vehicular access and circulation, and  allows effective screening from adjacent uses and public ways.  Staff Response: Light industrial land uses are limited to PA‐I, and heavy industrial uses are  prohibited.     Policy A1.6.  Land for open space should be preserved throughout the community, particularly  on steep slopes and other environmentally sensitive areas.  Staff Response:  The existing PUD includes areas of open space, albeit largely within private lots  or steep hillside areas.   The Application results in open space areas that are less defined but  would be required in the future, at the time of platting, by the Wildlife Mitigation Plan and PUD  Master Plan notations.  Staff’s primary concern with this policy is the exceptions from the  Natural Resource Protection standards related to steep slope development.         Policy A1.7.  The community should include sufficient land for public uses such as schools,  community facilities, and government services.   Staff Response:  Even though there is no immediate need for the proposed community facility  or school sites, these dedications are included in the STS and provide tangible, immediate  benefits.  In most instances, educational and other community facilities should be located  centrally in the community and be combined whenever possible (i.e. there is a symbiotic  relationship between educational facilities and parks).  For example, Nottingham Park is  anchored by Avon Elementary and the Recreation Center and Municipal Building and the land‐ uses prove to be compatible.      In addition to the size and locational considerations, the physical constraints of the sites must be  understood.  PA‐B in its current form is isolated, with no relationship to existing or potential  future adjacent land uses.  In its current form, the land is largely undevelopable without  substantial effort between the Town and the developer to place controlled fill in the site to  achieve the desired public benefit of a park and possible water feature as an amenity.   The  CARADA includes the additional stipulated details for providing an augmentation pond.    Goal A3.  Maintain a compact urban form that respects and preserves the natural beauty of  the valley, river and surrounding mountains, and maintains distinct physical and visual  separations between Avon and surrounding communities.  Staff Response: The changes in areas of open space may negatively impact this Goal if lower  portions of Planning Area K are disturbed and/or developed.  Staff has few concerns with  development in the valley floor portion of the PUD as this is the most developable and readily  available area for contiguous development patterns.   The western boundary of the PUD appears  to match up well with the planned “East Avon” circulation and physical development patterns.  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   18 | Page    The proposed density calculation methods (planning area wide instead of per acre) are not  supportable by Staff given the level of uncertainty with where the permitted density within  planning areas would ultimately be developed.  As proposed, the density could all be located in  one small portion of a planning area which could impair the natural qualities of areas such as  PA‐K or PA‐I.      Policy A3.5.  Since undeveloped land in the Town Center is scarce, it will be developed at  higher density, including a vertically integrated mix of commercial and residential uses, and  rely primarily on underground and/or structured parking.  Staff Response: Like other portions of the Town Center, it is envisioned that the valley floor and  especially PA‐A will be developed as mixed‐use, likely with on‐street parking and structured  parking.  This particular policy is pertinent to the Application, and the commercial/residential  mixed‐use ratio standards would continue to reinforce this planning policy.      Policy A3.7.  Steep slopes in and around the community should be designated and preserved as  open space wherever possible.  Staff Response: The stated purpose of the Natural Resource Protection standards in the AMC is  to “protect the public by preventing or regulating development in locations with steep slopes.”   This application directly conflicts with this Plan policy with Natural Resource Protection  deviations.    Policy B1.1.  Residential neighborhoods should be maintained to a high standard of quality  through effective maintenance of streets, utilities, parks and other public facilities, and  through consistent application of design standards.  Staff Response: The STS stipulates that the Town will accept responsibility for performance of  the Village at Avon Metro District’s existing maintenance obligations.  These obligations include  maintenance of existing right‐of‐way landscaping, repaving, Nottingham Dam, irrigation  systems, and snow removal.  This policy is addressed through the CARADA and has been  modeled to ensure that the Town will be able to provide the high standard of quality consistent  with other areas of Town.        Goal B4.  Create a strong sense of community based on awareness and participation by  residents and businesses in achieving Avon’s vision for the future.  Staff Response: The application was amended to keep all current community participation  processes (i.e. formal amendments, SRU), and now acknowledges the Temporary Use process  that the Town codified recently.                  Policy C2.2.  Wherever possible, affordable housing will be integrated with, rather than be  separate from, the rest of the community.  Staff Response: Half of the proposed 500 affordable housing units are already constructed in  RMF‐2 with 244 units in the Buffalo Ridge project.  This existing arrangement is by no means  integrated into the community.  While pedestrian bridges would be allowed, the bridge  graphical representation was removed from the PUD Master Plan map, and no justification was  provided for such change.        September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   19 | Page       Purposes of the Development Code  The Purposes of the Development Code are broad, extensive, and enumerated in §7.04.030,  AMC.  Many of the stated purposes of the Development Code mimic those of the PUD Section of  the Development Code, including: dividing the Town into zones and restricting improvements  within each zone, regulating intensity of use and areas of open spaces, implementing the  Comprehensive Plan, avoiding sprawl of population, protecting the watershed, providing a  diverse range of housing types, and promoting sufficient public services.    Given the fluid nature of the planning area boundaries, road locations, and subsequent  improvements within planning areas, the amount of flexibility proposed for the Project is  substantial.  The level of flexibility would exceed that of the existing PUD and in some ways  result in less certainty with where different types of uses or density can occur.  As mentioned  above, Section B.2 of the PUD Guide renders the density per/acre calculations for each planning  area nearly inconsequential.  As proposed, densities within portions of planning areas can be far  less or greater than the intended density per/are allowances.      Open space is less defined, and undefined for the 5.8 acres of displaced parkland from Planning  Area N‐South.  Additionally, any increase in density for the hillside area of the project directly  conflicts with the state purposes of the Development Code.              Eligibility Criteria outlined in §7.16.060(b) of the AMC   This criterion is to some degree a moot point since the property is already zoned.   At any rate,  Staff finds recognizable public benefits, and there appears to be sufficient land area for the  proposed uses.          (iv) Facilities and services (including roads and transportation, water, gas, electric, police and fire  protection, and sewage and waste disposal, as applicable) will be available to serve the subject  property while maintaining adequate levels of service to existing development;  Staff Response:  The Application provides or accommodates the Town’s ability to serve the property,  all the while maintaining adequate levels of service.  As mentioned elsewhere in this report, the  Town would assume several service and maintenance responsibilities in addition to those already  provided (i.e. police, permitting).  The property is served by utilities, and the Water Tank is being  handled separately through the CARADA and separate agreement.    (v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse  impacts upon the natural environment, including air, water, noise, storm water management,  wildlife, and vegetation, or such impacts will be substantially mitigated;  Staff Response:   The property was annexed and zoned PUD without any underlying zone districts.   Throughout this report Staff has compared the Application with the existing PUD to address this  criterion.  In many cases the resulting changes are difficult to weight given the remaining  undeveloped acreage of the property.  Potential development scenarios will be determined in large  part by the DRB without any other development review.      There is clear potential for adverse impacts to the natural environment such as steep slope  development.  The utmost concern is limited oversight by the Town to ensure that any such impacts  September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   20 | Page    would be substantially mitigated.  As a result, the DRB and Master Developer retain the majority of  the review control, with limited Town review.  It is recognized that PUD zoning is intended to be  flexible but only when it can be demonstrated that there is creative planning approaches to land  development.  Any less oversight for a PUD of this size and scale owes future review and  enforcement of AMC regulations to ensure compliance with environmental and other regulations,  such as the Dark Sky Ordinance.        (vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant  adverse impacts upon other property in the vicinity of the subject tract; and  Staff Response:  As mentioned, some of the proposed uses by right, and building height increases via  the SRU process, could result in adverse impacts to other properties.  The Planning Area comparison  chart demonstrates that some areas may experience increased intensity of use and/or include a  substantial list of new proposed uses by right.  Additionally, some areas would be allowed increased  height (80’ hospital use or 135’ hotel use) via the SRU process.   The Town will likely be receptive to  zoning amendments (i.e. building height) if there is a site specific development plan to respond to.   Handling building height increases through the SRU process is not the proper mechanism to ensure  that massing implications of a building over 100’ tall.  The SRU process is intended to address uses  and not traditional zoning standards such as height or setbacks.                    (vii) Future uses on the subject tract will be compatible in scale with uses or potential future uses on  other properties in the vicinity of the subject tract.  Staff Response: As proposed, the Application raises questions of compatibility. There are examples of  zoning standards (i.e. 135’ hotel) or changes in the allowable uses/standards of properties, or new  processes.  For example, opening the AEC process to any standard or requirement of the  Development code could open the door to future interpretation conflicts.  This particular process is  limited to select standards of the Development Code and is not intended to be a general waiver as it  is presented in Section I.8 of the PUD Guide.  Staff would recommend that the AEC/Variance section  (I.8) of the PUD Guide be modified to clarify that AEC is only eligible to the Sections allowed by  §7.16.120(a), Alternative Equivalent Compliance Applicability, AMC.                         September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   21 | Page    E. Staff Recommendation  There are a number of amendments that Staff supports in the Application; however, as submitted,  concerns with various amendments lead to Staff’s overall recommendation that Council DENY the  application.  The difficulty with recommending denial is the known financial implications and impeding  litigation if such action were taken.  While Staff is not in complete support of all the STS listed land use  issues, the resulting benefits with approving the strict STS amendments and settling the lawsuit would  profit all parties involved and open opportunities for successful development of the PUD as we move  forward.      Staff has fundamental concerns with the following specific amendments (as outlined throughout this  report), and could offer support if the following recommendations were addressed:    1. A.4 (g)(ii) Planning Area Boundaries.  Staff recommends that the language in this section be  amended such that “wherever a planning area abuts a street, the boundary is the abutting  right‐of‐way line of such street.”    2. B. 1(a) Total Permitted Density.   Staff recommends maintaining 650,000 sq. ft. maximum  of  commercial space.       3. B.4. Density Calculations.  Staff recommends that this section be amended such that Dwelling  Units per acre may not exceed the maximum number of Dwelling Unit per acre within a final  plat and/or site.      4. B.6. Residential/Commercial Ratios.  Staff recommends that the maximum residential  percentage permitted in PA‐F, G, and H be 20%, and not 100% as proposed.      5. B.8. Dwelling Unit Calculations.  Staff recommends no changes to the Dwelling Unit  Calculations.  Dwelling Unit calculation for “Primary/Secondary” should read two (2) dwelling  units and not one (1) dwelling unit.  Additionally, Staff recommends that the average square  footage of accommodation units be limited to 600 sq. ft. as currently defined.    6. D. Development Standards.  Staff recommends that this section be amended to match the  strikethrough/additions provided to Council (Exhibit G to this report).  Additionally, Staff  recommends that Outdoor Storage and Telecommunications be listed in the SRU category in  all Planning Areas.    7. G. Subdivision.   Staff recommends that Section G of the PUD Guide be amended to state that  all subdivisions within Planning Areas A, B, C, D, E and J qualify for the Administrative  Subdivision procedures as outlined in §7.16.070(b)(3), Administrative Subdivisions, AMC, and  §7.16.070(d)(3), Administrative Subdivisions, AMC.    Further, all other requirements for  subdivision shall be in accordance with §7.16.070, Subdivision, AMC.    8. I.3 Signs.  Staff recommends that this section be amended to clarify that the Town of Avon  retains permit authority for all signs, and that billboards or other similar highway‐orientated  signage and advertisements be prohibited in the PUD.     September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   22 | Page    9. I.6. Drainage.  Staff recommends that the David Johnson Vegetative Cover Study be  incorporated into future drainage studies, with the condition that prior to acceptance by the  Town a thorough evaluation of the Study be conducted and approved by Engineering Staff.    10. I.8. Alternative Equivalent Compliance & Variances.  Staff recommends that the language be  expanded to clarify that the AEC process is only eligible to sections of the Development Code  enumerated in §7.16.120(a), Alternative Equivalent Compliance Applicability, AMC.   Additionally, the Variance process is only eligible for standards enumerated in §7.16.110,  Variances, AMC.       11. I.10. Supplemental Design Standards.  PZC and Staff recommend that Section 10(a)(2) of the  PUD be modified with insertion of following language “Indigenous natural or earth tones such  as brown, tan, grey, green, blue, or red in muted, flat colors..”    12. Exhibit D. Wildlife Mitigation.  Staff recommends that Exhibit D, Wildlife Mitigation Plan, be  amended to require a double‐wide cattle guard be installed prior to any further development  north of Interstate‐70.    13. Exhibit G. AMC Exceptions.  Staff recommends that the following code sections be removed  from Exhibit G of the Amended PUD Guide:   §7.24.050 Use‐Specific Regulations    §7.24.060 Use‐Specific Regulations for Special Review Uses    §7.24.070(e) Standards for Specific Accessory Uses and Structures    §7.28.070(2) & (3) Retaining Walls    §7.28.100(a)(3)(v), (x), (xiii)(E) Natural Resource Protection   §15.28 Sign Code    §15.30 Outdoor Lighting   §7.32.101(c)(2) & (6) Engineering Improvement Standards   §7.32.040(c) Paved Trail Design Minimum Width    §7.32.040(e) Paved Trail Design: Grades     Staff recommends that Council consider the following Findings of Fact for incorporation into an  Ordinance:       A. Mandatory Review Criteria  The Avon Town Council has considered all public input, PZC recommendations, Matt  Pielsticker’s September 20, 2012 Staff Report, and reviewed the Application against the  review criteria outlined in §7.16.060(e)(4), Review Criteria, AMC.    B. School Site Dedication.   The Application proposes approximately 3.6 acres in what is now referred to as Planning  Area E (or Lot 3 according to the Amended Final Plat Application) and the remaining 3.7  acres will be satisfied through future conveyance in Planning Area I.  Planning Area E is  encumbered by utility easements which bisect the usable acreage of the site.  The PZC  cited concerns with locating a school facility within 500’ of gas utility transmission lines,  mentioning safety concerns and citing best practice studies.   September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   23 | Page      The Stone Creek Charter School provided correspondence dated June 5, 2012 and June  13, 2012 which states that the utility easements and encumbrances limit the ability of  the school to fully utilize the property.  The Eagle County School District (ECSD) provided  written comments on May 29, 2012 and has on multiple occasions provided oral  comments objecting to the split school site proposal.  At the September 11, 2012  Council meeting the ECSD acknowledged that no current need exists for a school site,  and recommended that Council delay any action on the school site in order to move  forward with other STS items and address school dedication at a future date.      After future investigation of the easements, they do not appear to encumber the  usability of the property.  As proposed, Planning Area E is suitable for a school site.  A  future 3.7 acre site in Planning Area I co‐located with park use is in compliance with  Policy A1.7 of the Comprehensive Plan by preserving land for school use.  The split  school site proposal promotes “flexibility that will encourage innovative and imaginative  approaches in land development”, consistent with Purpose Statement (1) of the  Development Code.      C. Extension to Vested Property Rights   The PZC recommended approval of a six year extension of vested property rights along  with reasons and conditions stated in the PZC Final PUD Findings and  Recommendations.  The six year extension is warranted in light of all relevant  circumstances, including but not limited to size of development, response to the  economic downturn, and market conditions.  The extension complies with the  mandatory review criteria and is in compliance with the Comprehensive Plan;  specifically, Goal D.1 is to ensure cost effective development of public facilities and  services to support the health, safety, and welfare (§7.16.060(e)(4)(ii), Review Criteria,  AMC) of all residents in the Town of Avon.  Additional time will make up for lost  development opportunities during litigation.    D. Planning Area N‐South/Parkland Dedication   The application proposes changing a portion of the Community Park in existing Planning  Area N (PA‐N South) situated adjacent to the northwest corner of the I‐70/Post  Boulevard interchange side from park use to commercial zoning (proposed Planning  Area J) to specifically allow hotel/lodging, commercial uses such as gas station,  convenience retail, restaurant and other similar uses.  Due to the construction of the  Post Boulevard interchange and Swift Gulch road, existing Planning Area N has become  bifurcated by Swift Gulch road which negatively impacts the functionality of Planning  Area N as a cohesive regional park site.  The location of existing Planning Area N‐South  adjacent to the I‐70 interchange reduces the utility and attractiveness of this area for  outdoor park uses.  The application proposes to relocate the 5.8 acres park land in  proposed Planning Area I, J, and/or K to be determined at the discretion of the  developer.  The PUD Guide also provides the ability for the Developer to dedicate any or  all of the 5.8 acres within Planning Areas A, C and/or D, or enlarging PA‐P1.      September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   24 | Page    PZC recommended approval of the change of use of existing Planning Area N‐South from  park land to commercial in the PZC Final PUD Findings and Recommendation with the  condition that the displaced 5.8 acres of park land be detailed by the applicant and  materially equal to the usability of the current N‐South land.  Section 3.8(d) of the  CARADA sets forth details requiring Master Developer and/or the Developer Affiliates to  dedicate 5.8 acres in the aggregate within Planning Areas I, J, and/or K to ensure that  the displaced park land will be transferred to the Town in the future.     The application includes minimum requirements for park land dedications (i.e. minimum  ¼ acre, centrally located in neighborhoods).  The dedication requirements proposed in  Section I.17 of the Amended PUD Guide may or may not ensure that the net useable  acreage of future conveyed parkland will equal that of the existing Planning Area N‐ South area.    The displaced PA‐N South parkland could be located within low density  neighborhoods within PA‐K that are less convenient for the majority of Avon residents,  or all in the valley floor connecting mixed‐use neighborhoods.      E. Hotel Use and Design Standards for Planning Area J.    Hotel use adjacent to or in close proximity to the I‐70/Post Boulevard interchange is  likely to be a viable commercial use.  Development of PA‐J would be visible from I‐70,  which presents both opportunities for marketability and commercial viability as well as  concerns about design and character of the Town of Avon’s primary eastern gateway.   The Comprehensive Plan includes the interchange area as Subarea 19: I‐70 North  District, and also recognizes that while the area provides for future development,  “attention should be given to 1‐70 corridor treatments, visual quality, and gateway  treatments.”  The PUD Guide includes Supplemental Hotel Design Standards in addition  to other applicable design standards.      The PZC reviewed the Supplemental Design Standards over the course of two public  meetings.  The Final PUD Application incorporates the PZC recommended Supplemental  Design Standards.  The Standards will ensure a higher design standard for any potential  hotel‐oriented hotel(s); and require the Town of Avon Director to confirm compliance  prior to building permits being issued.  The Supplemental Design Standards further the  policy recommendation in the Comprehensive Plan which suggests minimum design  standards for the highly visible portions of the development near the I‐70/Post  Boulevard interchange.    F. Road Access to Proposed Planning Area I (current Planning Area M).  Planning Area I is  currently isolated and surrounding by steep topography, the Eagle River and the Union  Pacific Rail Road line.  Viable alignments for the construction of a road to access PA‐ I  are limited and complicated by property ownership patterns.  Construction of a road  across the Forest Service Village Parcel (situated between proposed PA‐ J and proposed  Planning Area I) will be highly visible from I‐70 and other locations.  The amount of cut  and fill required for construction of an access road can be reduced by reducing the  minimum required road width profile and by constructing a pedestrian/recreation path  separately from the road in a manner similar to the Swift Gulch road construction.    September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   25 | Page    The PZC recommended that the Council approve the map depiction of a road crossing  the USFS property to access PA‐I with the condition that access be prioritized as follows:  1) Bridge over the Eagle River to I be first priority, 2) “Lower” road as indicated on the  PUD Master Plan be second priority, and 3) Upper road concept studied by Alpine  Engineering is not an option for access to PA‐ I.    A “Conceptual” road access is indicated on the PUD Master Plan, Version 11, to cross  through Planning Area J and the USFS parcel to access Planning Area I.  This conceptual  road access, and associated road profile design in Exhibit F of the PUD Guide, will allow  for the potential access to Planning Area I in the future.      G. Water Allocation Calculation and Tracking.  The water rights are described as Single  Family Equivalent, which does not conform with the description of consumptive use  credits in the Traer Creek Water Storage Tank Agreement, 1997 Water Service  Agreement, and the 1999 First Amendment to Water Service and Tap Fee Agreement.   The proposed on‐going control and approval of water rights allocation by the Master  Developer presents unique implications for the administration of the build‐out of the  Project.    H. Hillside Density (Proposed Planning Areas K and RMF‐1).  The existing PUD Guide and  PUD Master Plan permit 91 Single‐Family units (each with a primary/secondary  configuration), 1 caretaker unit on Lot 1, and 98 Multi‐Family units totaling 190  “Dwelling Units” as defined by the PUD Guide (or 280 residential units).  The Final PUD  Application proposes up to 280 “Dwelling Units” on the hillside area.  PZC recommended  that Council approve the increase in density for the hillside area with the condition that  there are no modifications to the Primary/Secondary definition in the PUD Guide.  The  PUD Master Plan indicates additional Primary/Secondary lots in PA‐K.  The PUD Guide  modifies the Dwelling Unit definition for Primary/Secondary to count as one (1) Dwelling  Unit instead of two (2) dwelling units currently.  This definition change would allow for  up to 560 residential units in the hillside, which is inconsistent with PZC’s  recommendation, and not contemplated with STS implementation.          I. Commercial Density Increase.  The application proposes an increase of 300,000 sq. ft.  for “Commercial” land uses, as defined in the PUD Guide.  Potential impacts of  increasing the maximum commercial density from 650,000 sq. ft. to 950,000 sq. ft. will  result in impacts to uses or potential future uses on other property in the vicinity of the  PUD.  In response to the increase in Commercial square footage, there have been no  compensating amendments.  The lack of mitigation conflicts with §7.16.060(e)(4)(i),  Review Criteria, AMC, by not providing increased housing options.  The proposal  increases commercial square footage and dwelling unit allowances in the PUD, without  any subsequent update to the Affordable Housing Plan (Section J.15, PUD Guide).  The  potential increase in commercial square footage is not addressed with the quantity  and/or timing of affordable housing.  This position is consistent with the Comprehensive  Plan’s housing strategies which seek a diverse range of housing options      September 25, 2012 Town Council Meeting – PUBLIC HEARING  Village at Avon ‐ Final PUD   26 | Page    J. Municipal Code Exceptions.  The application proposes Exhibit G, which itemizes specific  sections of the Avon Municipal Code (AMC) that would not apply to the PUD.  Exhibit G  establishes a new regulatory format along with changes to the Vested Property Rights  language and the change to utilize the AMC as exists on the “Effective Date” as defined  in the CARADA.  The exceptions related to design standards already governed by the  Village Design Guidelines such as Landscaping are appropriate to avoid any potential  future conflicts between the Town and Developer because these standards and design  review process are already established in the existing PUD.  Processes including Special  Review Use and Design Review provide clarity given the current PUD structure which  governs such processes.  No clear rationale is provided for carving out sections including  §15.40, Outdoor Lighting, AMC, as these regulations were enacted to protect the health,  safety, and general welfare of residents and visitors of the Town.  Protecting the health,  safety, and welfare is the foundation of the development code and Final PUD review  criteria in §7.16.060(e)(4)(ii), Review Criteria, AMC.        K. Wildlife Mitigation Plan.  The Town received comments from Colorado Parks & Wildlife  (“CPW”) which may not accurately assess the potential wildlife impacts of the  application.  The CPW comments recommended that a double‐wide cattle guard be  utilized on the north side of Interstate‐70, as similar wildlife mitigation efforts on other  state highways have proven effective.   In light of increased development potential  north of Interstate‐70, and in order to fully comply with §7.16.060(e)(4)(v) this measure  must be incorporated into the Wildlife Mitigation Plan.    L. Subdivision.  The PUD Guide proposes administrative subdivision procedures for  Planning Areas A, B, C, D, E, F and J.  The Application proposes significant changes to the  applicable subdivision review criteria and procedures that limit the Town’s ability to  review.  Proposed changes to subdivision submittal requirements, exemptions, and  review criteria do not appear to promote the health, safety, or welfare of the Town  (§7.16.060(e)(4)(ii), Review Criteria, AMC).   Assurance that public improvements are  designed and constructed to current standards is not being provided, and the proposed  Subdivision review criteria do not allow for adequate analysis of the sustainability and  adequacy of subdivisions.  Land subdivisions would not be required to demonstrate  adequacy of the land, compliance with the AMC requirements (as may be amended  from time to time) or Comprehensive Plan policies.    Exhibits  A‐PUD Guide, Version 16  B‐Project Narrative and Written Statement   C‐August 27, 2012 Letter from Kim Martin  D‐Planning Area Comparison Chart (1998 vs. Version 16)  E‐Open Space and Parkland Maps  F‐Easement and ROW dedication Maps  G‐Staff recommended Strikethrough of Section D, Development Standards, Amended PUD Guide  999369.16 The Village (at Avon) Amended and Restated PUD Guide [Insert Approval Date] Pursuant to Section 7.16.140(d) of the Development Code: Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter 16 of the Avon Municipal Code as amended. Exhibit A TABLE OF CONTENTS Page 999369.16 -i- A. PURPOSE/GENERAL PROVISIONS .............................................................................. 1 1. Defined Terms ....................................................................................................... 1 2. Purpose ................................................................................................................... 1 3. Vested Property Rights .......................................................................................... 2 4. General Provisions ................................................................................................. 2 5. Applicability of Other Regulations ........................................................................ 5 6. Conflict .................................................................................................................. 6 7. Expiration of Vested Property Rights Term .......................................................... 6 B. TOTAL PERMITTED DENSITY ..................................................................................... 6 C. GENERAL LAND USE DESIGNATIONS ...................................................................... 9 1. Designations ........................................................................................................... 9 2. Permitted Uses ..................................................................................................... 10 D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD .......... 10 1. General ................................................................................................................. 10 2. Planning Area A - Village Center Mixed Use Project ......................................... 11 3. Planning Area B - Community Facilities ............................................................. 15 4. Planning Areas C and D - Village Residential Mixed Use Projects .................... 16 5. Planning Area E - School ..................................................................................... 19 6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects ....... 21 7. Planning Area J – Regional/Neighborhood Commercial and Residential Mixed Use Projects .............................................................................................. 25 8. Planning Area K - Hillside Residential ................................................................ 27 9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family ......................... 30 10. Planning Areas P1-P3: Parkland ......................................................................... 32 11. Planning Areas OS1 – 0S7: Natural Open Space ............................................... 33 12. Planning Areas PF-1 – PF-3: Public Facility ..................................................... 35 E. SPECIAL REVIEW USE ................................................................................................ 36 1. Special Review Use Permit .................................................................................. 36 2. Application Filing and Processing ....................................................................... 37 3. Submittal Requirements for Special Review Use ................................................ 37 Exhibit A TABLE OF CONTENTS (continued) Page 999369.16 -ii- 4. Criteria for Review, Recommendation, and Approval of Special Review Uses ...................................................................................................................... 38 5. Amendments to Special Review Use Permit ....................................................... 38 F. TEMPORARY USES AND STRUCTURES .................................................................. 39 G. SUBDIVISION ................................................................................................................ 39 1. General ................................................................................................................. 39 2. Final Plat .............................................................................................................. 40 3. Material Modification to Certain Street Connections .......................................... 43 H. DEVELOPMENT PLAN AMENDMENT PROCEDURES........................................... 43 1. General ................................................................................................................. 43 2. Formal Amendments ............................................................................................ 44 3. Administrative Amendments ............................................................................... 44 4. Modifications Not Requiring Amendment .......................................................... 47 I. SUPPLEMENTAL REGULATIONS ............................................................................. 47 1. Interim Uses ......................................................................................................... 47 2. Solid Fuel Burning Devices ................................................................................. 48 3. Signs ..................................................................................................................... 48 4. Parking Requirements .......................................................................................... 48 5. Surface Parking Landscaping Requirements ....................................................... 49 6. Drainage Requirements ........................................................................................ 49 7. Sidewalk and Trail Standards .............................................................................. 49 8. Alternative Equivalent Compliance and Variances ............................................. 49 9. Supplemental Design Standards: Planning Areas A and D ................................ 50 10. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge Requirements ....................................................................................................... 50 11. Wildlife Mitigation Plan ...................................................................................... 51 12. Design Review Guidelines ................................................................................... 51 13. Natural Resource Protection ................................................................................ 52 14. Residential Fire Suppression Systems ................................................................. 52 15. Park, Recreation and Trail Access ....................................................................... 52 16. Affordable Housing Plan ..................................................................................... 53 Exhibit A TABLE OF CONTENTS (continued) Page 999369.16 -iii- 17. Provision of Certain Amenities ............................................................................ 55 EXHIBIT A Legal Description ................................................................................................... 1 EXHIBIT B PUD Master Plan ................................................................................................... 1 EXHIBIT C The Village (at Avon) Parking Regulations........................................................... 1 EXHIBIT D Wildlife Mitigation Plan ........................................................................................ 1 EXHIBIT E Minimum Design Guideline Standards .................................................................. 1 EXHIBIT F Street Standards ..................................................................................................... 1 EXHIBIT G Municipal Code Provisions Not Applicable to The Village (at Avon) PUD ............ 1 EXHIBIT H Definitions.............................................................................................................. 1 Exhibit A 999369.16 The Village (at Avon) Amended and Restated PUD Guide [Insert Approval Date] A. PURPOSE/GENERAL PROVISIONS. 1. Defined Terms. Capitalized words and phrases used in this PUD Guide have the meanings set forth in Exhibit H of this PUD Guide. Words and phrases which are not defined in Exhibit H of this PUD Guide but are defined in the Development Code shall have the meaning as defined in the Development Code. Where any word or phrase defined in Exhibit H of this PUD Guide is the same or substantially similar to a word or phrase defined or used in the Development Code, the word or phrase defined in Exhibit H of this PUD Guide shall be the sole and exclusive definition of such word or phrase. Any words or phrase which is not defined in Exhibit H of this PUD Guide and not defined in the Development Code, but is defined elsewhere in the Municipal Code, shall not be presumed to have the specific meaning given such word or phrase in the Municipal Code unless expressly stated herein. 2. Purpose. (a) The Village (at Avon) PUD encompasses the Property, which is a large parcel of land under unified development control of the Master Developer (together with and on behalf of the Developer Affiliates) as of the Effective Date. This PUD Guide (including each Exhibit attached hereto) shall control the zoning, Uses, Development Standards, development application review procedures for the Property to the extent set forth in this PUD Guide, pursuant to Section 7.16.060 Planned Unit Development (PUD) of the Development Code, adopted pursuant to C.R.S. §24-67-104 and pursuant to the Avon’s Home Rule Authority, which implements the Planned Unit Development Act of 1972, Sections 24-67-101 et seq., C.R.S. (b) In accordance with the terms and conditions of that certain SETTLEMENT TERM SHEET made and entered into the 7th day of October, 2011, by and between the Town of Avon, BNP Paribas, Traer Creek Metropolitan District, Traer Creek LLC, Traer Creek-RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer Creek-HD LLC, and Traer Creek-WMT LLC (the “Settlement Term Sheet”), the Town’s final non-appealable approval of this PUD Guide establishes and implements specific terms and conditions of the Settlement Term Sheet and shall be binding on all parties to the Settlement Term Sheet. Exhibit A 999369.16 2 (c) The Original PUD Guide previously was amended by and includes (collectively, the “Prior Amendments”): (i) PUD Development Plan Administrative Amendment No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439. (ii) PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the real property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254. (iii) PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806. (iv) PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805. (v) Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25, 2007, and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at Reception No. 200705491. (d) The purpose of this PUD Guide is to amend and restate in its entirety the original PUD Guide, including the incorporation into a single document of the Prior Amendments and the amendments contemplated in the Settlement Term Sheet, for ease of reference and to implement the terms and conditions of the Settlement Term Sheet. Accordingly, this PUD Guide expressly replaces and supersedes the Original PUD Guide and the Prior Amendments and any additional or conflicting provisions of the Municipal Code with respect to the subject matter contained herein. 3. Vested Property Rights. The Vested Property Rights approved for the Development Plan are as set forth in Article 2 of the Development Agreement. 4. General Provisions. (a) Control Over Use, Location and Bulk. The Development Plan shall control the Use, location and bulk of Buildings and Structures from and after the Effective Date, and subject to compliance with the Development Standards set forth in the Development Plan for the affected Planning Area and any additional or more restrictive standards and requirements set forth in the Design Review Guidelines or the Design Covenant: (i) For any new Building or Structure, and any parcel of land or Site; and (ii) For any changes or extensions of Use of any existing Building, Structure, parcel of land or Site; and Exhibit A 999369.16 3 (iii) The Design Review Board shall, in conformance with the Development Plan, establish the final location, Use and bulk of all future Buildings, Structures and improvements; and (iv) Any existing Building or Structure may be enlarged, reconstructed, structurally altered, converted or relocated for any purpose or Use permitted or required by the provisions of this PUD Guide that is applicable to the Site in which such Building, Structure, Site or parcel of land is located, and for no other purposes or Uses. (b) Incorporation of PUD Master Plan. The PUD Master Plan, together with everything shown thereon and all amendments thereto approved by the Town subsequent to the Effective Date, is hereby incorporated by reference into this PUD Guide as Exhibit B. (c) Comprehensive Plan. The Comprehensive Plan applies to the Village at (Avon), and no amendments to the Comprehensive Plan approved by the Town subsequent to the Effective Date shall apply to The Village (at Avon). (d) Design Covenant. The Property is encumbered by and subject to the Design Covenant, which governs matters related to Uses and development of all or any portion of the Property. Where any conflict between the Design Covenant and the Development Plan may occur, the more restrictive provision shall govern. (e) Design Review Board. As contemplated by the Design Covenant, the Design Review Board has been organized to administer and enforce the Design Covenant and Design Review Guidelines. In accordance with the Design Covenant, the Design Review Board shall have authority to review and the sole and exclusive authority to approve the architectural design, landscape design, urban design and site design within the Property, subject to the Town Council’s right of enforcement the Design Review Guidelines as set forth in Section I.12(c). The Design Review Board shall (i) refer to the Planning and Zoning Commission, for comment only and not for approval, ratification or disapproval, all development proposals submitted to the Design Review Board for portions of the Property located south of Interstate 70 and all portions of the Property located north of Interstate 70 other than Planning Areas K and RMF-1 (with respect to which the Design Review Board shall have no obligation to refer development proposals to the Planning and Zoning Commission); and (ii) give prior written notice to the Director, or his designee, of each meeting of the Design Review Board at which the Design Review Board shall initially consider any submitted development proposal(s), which notice shall include the date, time, location and general subject matter of the meeting. At Master Developer’s option, one or more separate design review board may be established with respect to such Planning Areas RMF-1 and K. Such design review board(s) shall not be required to include any Town appointed representative as a member. The Town’s approval of any building permit within the Property is conditioned upon the Town’s prior receipt of a certificate of approval executed by the President of the Design Review Board. (f) Design Review Guidelines. Pursuant to the Design Covenant, Design Review Board has prepared, approved and promulgated the Design Review Guidelines to supplement and complement this PUD Guide. Where any conflict may occur between the Exhibit A 999369.16 4 Design Review Guidelines and the Development Plan, the more restrictive provision shall govern. (g) Planning Areas and Boundaries, Road Alignments, Lot Lines. (i) The street and road alignments depicted on the PUD Master Plan are either designated thereon as either permanent, temporary (not permanent and intended to be replaced in the future) or conceptual alignments. Notwithstanding any contrary provision of this PUD Guide, until such time as made permanent or temporary in connection with an approved and executed Public Improvements Agreement, the conceptual alignments are non-binding and provided only for illustrative purposes to show one of various potential alignments and vehicular ingress and egress between Planning Areas. The alignment of future temporary and permanent streets shall be subject to review and approval by the Town in connection with subdividing the applicable portion of the Property and submittal by the Applicant of engineered road design plans, as set forth in Section G of this PUD Guide. The Applicant shall be required to submit engineered road design plans for, and shall be required to construct, only the portion of a street that is necessary to serve the phase and property subject to the applicable Application. Notwithstanding the foregoing, if such street is depicted on the PUD Master Plan to extend and continue further than such phase and property subject to the Application and connect to existing or future planned street(s), such Applicant shall submit as a part of its Application Preliminary Engineering for the planned extension and continuation of the subject street which is sufficient to demonstrate that the alignment and grade of the construction of a portion of the street shall be adequately designed to allow extension and continuation of the subject street in compliance with applicable road, utility and drainage standards. (ii) Planning Area boundaries shall be construed as follows: (i) whenever a Planning Area abuts an exterior boundary of the Property, the Planning Area shall be construed to coincide with such exterior boundary of the Property; (ii) wherever a street abuts a Planning Area as shown in the PUD Master Plan, the Planning Area boundary shall be construed to coincide with the center line of such abutting street; and (iii) wherever a Planning Area contains or otherwise does not abut a street or the exterior boundary of the Property, the Planning Area boundary shall be as shown in the PUD Master Plan. (h) Issuance of Building Permits; Design Review Board Certification. (i) Provided an Application for issuance of a building permit (or grading permit, etc.) complies with the Town’s Building Code (as defined in the Development Code) and the Development Plan, the Town shall issue such building permit (or grading permit, etc.) for any construction, improvements or alterations of a Building, Structure or other form of development requiring a building permit (or grading permit, etc.) for which the plans, specifications and details have been reviewed and approved by the Design Review Board as defined herein. A certificate of approval executed by the President of the Design Review Board shall be affixed to the plans and specifications made a part of each building permit, grading permit, temporary certificate Exhibit A 999369.16 5 of occupancy, permanent certificate of occupancy, etc. Application prior to the Town’s approval thereof. To facilitate efficient review and approval of building permits (grading permits, etc.), the Town’s building department may accept for processing a building permit (or grading permit, etc.) concurrently with such Applicant’s submittal of plans, specifications and details to the Design Review Board for review and approval of such permit; provided, however, the Town shall not approve any Application for a building permit (or grading permit, etc.) or temporary or permanent certificate of occupancy unless a certificate of Design Review Board approval is affixed thereto as required by this Section A.4(h)(i), such issued certification of Design Review Board approval being an express condition precedent to the Town’s approval of any Application for a building permit (or grading permit, etc.) or temporary or permanent certificate of occupancy. (ii) Additionally, the Design Review Board certification shall affirmatively state the Design Review Board’s confirmation, and the Director shall confirm, an Application’s compliance with the supplemental design and improvement standards set forth in Section I.9 prior to issuing a building permit for construction of a Building designated for Hotel, Motel and Lodging Uses within Planning Area J. 5. Applicability of Other Regulations. (a) General. Except as otherwise expressly provided in the Development Plan, the establishment of Vested Property Rights pursuant to the Development Agreement shall not preclude the application on a uniform, non-discriminatory and consistent 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), or the application of state or federal regulations, as all of such regulations existed on the Original Effective Date or may be enacted or amended after the Original Effective Date; provided, however that such newly enacted or amended Town regulations shall not directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer’s, Developer Affiliates’ or other Landowners’ substantive or procedural rights set forth in the Development Agreement, this PUD Guide or any approved Final Plat for any portion of the Property. Neither Master Developer, Developer Affiliates nor any Landowner waive their right to oppose the enactment or amendment of any such regulations. (b) Modifications and Exceptions. As set forth in Sections F through I of this PUD Guide, certain provisions of the Municipal Code either are superseded in their entirety by this PUD Guide or apply within The Village (at Avon) but are subject to the modifications set forth in such sections. Additionally, the provisions of the Municipal Code which are set forth in Exhibit G of this PUD Guide are, without limiting any other present or future regulations or provisions of the Municipal Code which have similar effect from being similarly excepted, specifically identified as provisions that directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting Master Developer’s, Developer Affiliates’ or other Landowners’ rights (whether Vested Property Rights or other right) set forth in the Development Agreement, this PUD Guide or any approved Final Plat for any portion of the Property, and therefore shall not be applicable within The Village (at Avon) PUD. Exhibit A 999369.16 6 6. Conflict. The Development Standards and other terms, conditions and criteria set forth in the Development Plan shall prevail and govern the development of The Village (at Avon). Where the Development Plan does not address a specific subject, the applicable provisions of the Municipal Code shall, to the extent such Municipal Code provisions are not in conflict or otherwise inconsistent with any provision of the Development Plan, control the development of The Village (at Avon). Additionally, application of such Municipal Code provisions shall not directly or indirectly have the effect of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying, or otherwise materially adversely affecting any of Master Developer’s, Developer Affiliates’ or other Landowners’ Vested Property Rights set forth in the Development Plan. Provisions of the Design Review Guidelines which are more restrictive than either the Development Plan or the Municipal Code shall prevail in any instance where there is a conflict. The interpretation, priority and application of this PUD Guide in relationship to the Municipal Code shall be governed by [Section 2.6(b)] of the Development Agreement. 7. Expiration of Vested Property Rights Term. Upon and after expiration of the term of the Vested Property Rights pursuant to [Section 1.4] of the Development Agreement, this PUD guide and any amendments thereto shall continue to be the zoning for the Property, provided that the Town shall have the authority, if any, to amend this PUD guide without the consent of the Master Developer or any other owner of the Property, or any portion thereof, in accordance with applicable law. B. TOTAL PERMITTED DENSITY. The total permitted density for The Village (at Avon) PUD shall not exceed: 1. Planning Areas A, C, D, E, F, G, H, J, K, RMF 1 and RMF 2 shall not exceed: (a) Commercial Uses. 950,000 consolidated Gross Square Footage of Commercial Space. (b) Dwelling Units. 2,400 Dwelling Units. Five hundred of the 2,400 Dwelling Units shall be constructed as affordable housing, pursuant to the Affordable Housing Plan. 2. The permitted Commercial Use and Dwelling Unit densities within Planning Area I shall be determined in the future pursuant to the formal amendment procedures set forth in Section H of this PUD Guide, provided however that the permitted Commercial Space for Planning Area I shall not be less than 196,970 consolidated Gross Square Footage (which shall be in addition to the 950,000 square feet of permitted Commercial Space stated above in Section B.1(a)) and that the permitted Dwelling Units shall not be less than 750 Dwelling Units. The Town acknowledges that Planning Area I is entitled to be developed as mixed-use development, and Uses may include Residential Uses, Commercial Uses, and public and institutional uses at densities in addition to those set forth above as approved by the Town. Until such time as a secondary access road is constructed, no non-Residential Uses shall be allowed and the maximum density of Dwelling Units shall not exceed 280 Dwelling Units. Exhibit A 999369.16 7 3. Density calculations, as applicable, for development of Dwelling Units within all Planning Areas where Residential Uses are permitted shall be based on the gross acreage within the applicable Planning Area as reflected in the land use table contained in the PUD Master Plan. Density calculations shall be on a Planning Area by Planning Area basis rather than on a Final Plat by Final Plat basis or on a Site by Site basis. 4. Subject to the requirement that the maximum number of Dwelling Units within any particular Planning Area, as applicable, shall not exceed that permitted under the terms and conditions of this PUD Guide, as applicable, the actual number of Dwelling Units per acre within a particular Final Plat or Site within the affected Planning Area may exceed the maximum number of Dwelling Units per acre based on the acreage within such Final Plat or Site. By way of example, in a Planning Area containing 20 acres and subject to a maximum residential density of 18 Dwelling Unit per acre (i.e., a total of 360 Dwelling Units), a 10 acre Site within that Planning Area would be permitted to be developed with 300 Dwelling Units (i.e., 30 Dwelling Units per acre) but the remaining 10 acres could be developed with no more than 60 Dwelling Units, with the resulting density within such Planning Area in the aggregate being 18 Dwelling Units per acre (i.e., (300 + 60 = 360 Dwelling Units) / 20 acres = 18 Dwelling Units per acre). 5. Density calculations for development of Residential Uses within Planning Areas A through I, RMF 1 and RMF 2 shall exclude areas with slopes exceeding 40%. 6. At final build-out of the particular Planning Area, the following minimum and maximum ratios of consolidated Gross Square Footage of Commercial Space and consolidated Gross Square Footage of Residential Uses, stated as a percentage of the aggregate Gross Square Footage the Planning Area [e.g., Gross Square Footage of Commercial Space ÷ (Gross Square Footage of Commercial Space + consolidated Gross Square Footage of Residential Uses) = percentage of Gross Square Footage of Commercial Space], shall apply within the following Planning Areas: Planning Area Residential Commercial Min% Max% Min% Max% Planning Area A 30% 80% 20% 70% Planning Areas C and D 90% 100% 0% 10% Planning Areas F, G. and H 0% 100% 0% 100% 7. Although classified as a Commercial Use, Accommodations Units (including those within Bed and Breakfasts, Extended Stay Hotels, Hotel, Motel and Lodge, Temporally Divided Dwelling Units, Vacation Homes and similar Commercial Uses) are considered Dwelling Units for purposes of Dwelling Unit calculation and tracking and are considered Residential Uses for purposes of Section B.6. 8. In calculating the number of Dwelling Units within The Village (at Avon): (a) Each Single-family Dwelling shall be counted as one (1) Dwelling Unit. Exhibit A 999369.16 8 (b) Each Duplex Dwelling shall be counted as two (2) Dwelling Units. (c) Each Multi-family Dwelling shall be counted as one (1) Dwelling Unit. (d) Each Accommodation Unit within a Hotel, Motel and Lodge shall be counted as one-third (1/3) of a Dwelling Unit. (e) Each Primary/Secondary Structure or Structures situated on the same Lot shall be counted as one (1) Dwelling Unit. (f) Each guest bedroom within a Bed and Breakfast shall be counted one-third (1/3) of a Dwelling Unit. (g) Temporally Divided Dwelling shall be counted as one (1) Dwelling Unit. (h) Vacation Club shall be counted as one (1) Dwelling Unit. (i) Group Home shall be counted as one (1) Dwelling Unit. 9. The President of the Design Review Board shall submit a Dwelling Unit and Commercial Space report to the Town along with its certificate of Design Review Board approval for each development proposal approved by the Design Review Board. This report shall be a detailed statement by Planning Area of the number of Dwelling Units and amount of Gross Square Footage of Commercial Space within The Village (at Avon) to ensure that the total permitted density for The Village (at Avon) PUD is not exceeded. 10. Commercial Space is any Building which is intended to be used, rented or leased for a Commercial Use, except as expressly excepted in Sections B.10(a) and B.10(b) below. (a) The following Uses shall not considered Commercial Space: (i) Lodging Uses, including without limitation, Bed and Breakfast, Hotel, Motel and Lodge, Accommodation Units, Extended Stay Hotel, Temporally Divided Dwelling and Vacation Club; (ii) Residential Uses; (iii) Group Home; (iv) Short term rentals; (v) Employee housing; (vi) Hospitals, long-term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; and (vii) Uses which the Director determines to be similar. Exhibit A 999369.16 9 (b) For purposes of calculating the total amount (in square feet) of Commercial Space permitted pursuant to this PUD Guide, Commercial Space shall be Gross Square Footage that is available for leasing to a tenant, with the following additional qualifications: (i) The following types of facilities operated for public activities shall not constitute Commercial Space: (1) schools, and (2) except to the extent such facilities exceed an aggregate of 200,000 consolidated Gross Square Footage, unless the Town has consented to construction of such excess Gross Square Footage, Religious Facilities, skating arenas, cultural and community centers and facilities, and recreational centers and facilities. (ii) In office and retail Buildings, hallways, lobby and reception areas, stairwells, elevator areas, landings and entranceways, mechanical areas, public restrooms, permanently designated corridors, public lobbies, and common mall areas shall not constitute Commercial Space for purposes of calculating the total amount (in square feet) of Commercial Space permitted pursuant to this PUD Guide unless actually leased to an individual tenant. (iii) In Lodging Uses, hallways, lobby and reception areas, stairwells, elevator areas, public restrooms, permanently designated corridors, landings, entranceways, meeting and banquet rooms and facilities, sundries shops, breakfast shops and other shops intended to cater primarily to Lodging Uses guests shall not constitute Commercial Space for purposes of calculating the total amount (in square feet) of Commercial Space permitted pursuant to this PUD Guide, but retail areas intended to cater primarily to non-Lodging Use guests and full-service Restaurants shall constitute Commercial Space for such purposes. (iv) In any Building, parking areas and Parking Structures shall not constitute Commercial Space for purposes of calculating the total amount (in square feet) of Commercial Space permitted pursuant to this PUD Guide. C. GENERAL LAND USE DESIGNATIONS. 1. Designations. The following list identifies Planning Areas within The Village (at Avon) PUD and their respective general land use designations: (a) Planning Area A: Village Center Mixed-Use Projects (b) Planning Area B: Community Facilities (c) Planning Areas C and D: Village Residential Mixed-Use Projects (d) Planning Area E: School (e) Planning Areas F, G, H and I: Regional Commercial Mixed Use Projects Exhibit A 999369.16 10 (f) Planning Area J: Regional/Neighborhood Commercial and Residential Mixed Use Projects (g) Planning Area K: Hillside Residential (h) Planning Areas RMF-1 and RMF-2: Multi-Family Residential (i) Planning Areas OS1 through OS7, inclusive: Natural Open Space (j) Planning Areas P1 through P3, inclusive: Parkland (k) Planning Areas PF-1 through PF-3, inclusive: Public Facilities 2. Permitted Uses. Notwithstanding the generality of the foregoing land use designations, Uses and Use Categories permitted within each Planning Area are set forth in Section D (Development Standards), Section F (Temporary Uses and Structures) and Section I (Supplemental Regulations) of this PUD Guide, and certain of such Uses and Use Categories are defined in Exhibit H of this PUD Guide. D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD. 1. General. (a) The following Development Standards shall govern development of the referenced Planning Areas. Uses permitted within The Village (at Avon) include all Use Categories and all Uses within each Use Category, together with Accessory Uses, Primary Structures and Accessory Structures relating to such Uses. Within each individual Planning Area, such Uses are designated as Uses by Right, Special Review Uses or Prohibited Uses. A Use by Right within a particular Planning Area includes all Uses within the specified Use Category except to the extent specifically designated as a Special Review Use or a Prohibited Use. (b) Where particular Uses within a Use Category are listed as Uses by Right within a particular Planning Area and the Use Category also is listed as a Use by Right, such particularly listed Uses shall be construed as examples and clarifications of the Use Category and not as limitations on other Uses within the Use Category being developed as Uses by Right. Where particular Uses within a Use Category are listed as Uses by Right with a particular Planning Area but the Use Category is not listed as a Use by Right, then such particularly listed Uses shall be construed as Uses by Right that are exceptions to the Use Category and the remainder of Uses with the Use Category shall be interpreted to not be Use(s) by Right. (c) Temporary Uses may be permitted in The Village (at Avon) in accordance with the Development Code, even though such Uses otherwise may be within a Use Category that is not permitted within the applicable Planning Area. (d) Uses not identified as a Use by Right, Special Review Use, Temporary Use or Interim Use shall be a Prohibited Use unless determined by the Director that the proposed use is substantially similar to a Use by Right, Special Review Use, Temporary Use, or Interim Exhibit A 999369.16 11 Use. The listing of Prohibited Uses for each Planning Area is not exhaustive and shall not limit the interpretation of Uses by Right, Special Review Uses, Temporary Uses or Interim Uses stated in the preceding sentence. (e) In all Planning Areas, Architectural Projections may project ten (10) feet or less beyond the applicable Building Envelope with the prior written consent of the Design Review Board. Architectural Projections may project greater than ten (10) feet beyond the applicable Building Envelope with the prior written consent of the Design Review Board and the Town. 2. Planning Area A - Village Center Mixed Use Project. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.2(b) below or specifically prohibited in Section D.2(c) below, the following Primary Uses and Accessory Uses: (i) Commercial Uses; provided, however, no single retail business shall occupy more than 65,000 of consolidated Gross Square Footage. (ii) Animal Boarding (excluding outdoor Animal Boarding) as an Accessory Use to another Commercial Use only, and subject to review and written approval by the Design Review Board authorizing such Use. (iii) Kennels (excluding outdoor Kennels) as an Accessory Use to another Commercial Use only, and subject to review and written approval by the Design Review Board authorizing such Use. (iv) Convenience Retail (without fuel). (v) Restaurants (without drive-through window service). (vi) Financial institutions (without drive-through window service). (vii) Residential Uses. (viii) Mixed Use Projects; provided, however, (a) no Uses specifically prohibited in Section D.2(c) below shall be included in such Mixed Use Project, and (b) no Uses specifically identified as Special Review Uses in Section D.2(b) below shall be included except pursuant to the review and approval processes set forth in Section E below. (ix) Educational facilities including, but not limited to public and private schools, universities, and colleges. (x) Cabled Telecommunications Equipment, Cabled Telecommunications Facilities and Cabled Telecommunications Services. Exhibit A 999369.16 12 (xi) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (xii) Dry Utilities. (xiii) Infrastructure. (xiv) Indoor recreation and/or entertainment facilities. (xv) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xvi) Parks and Open Space. (xvii) Tramways, gondolas and lifts. (xviii) Outdoor Storage, only as an Accessory Use to a retail Use. (xix) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xx) Agricultural Use (as an Interim Use only). (xxi) Rodeo and ancillary carnival (as an Interim Use only). (xxii) Recycling Facility (as an Interim Use only). (xxiii) Snow storage (as an Interim Use only). (xxiv) Mobile Home office/storage Use and community garden (as an Interim Use only). (xxv) Driving course and accessory hospitality services related to automobile demonstrations, promotions and sales, not to exceed 10 days in the aggregate in a calendar year (as an Interim Use), provided that such Use exceeding 10 days in the aggregate in a calendar year shall be a Temporary Use. (xxvi) Additional Uses which the Director determines to be similar to uses by right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Single retail businesses occupying more than 65,000 of consolidated Gross Square Footage. (ii) Automobile Repair Shop (Minor). Exhibit A 999369.16 13 (iii) Outdoor entertainment facilities that include the use of amplified music. (iv) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (v) Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) which exceed 80 feet in Building Height. (vi) Car wash. (vii) Drive-in Uses. (viii) Religious Facility. (ix) Service Station (for the sale of only electric form of fuel for motorized vehicles). (x) Restaurants (with drive-through window service). (xi) Financial institutions (with drive-through window service). (xii) Recycling Facilities (except as permitted in Section D.2(a) above). (xiii) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Animal Boarding (outdoor). (ii) Automobile Repair Shop (Major). (iii) Family Child Care Home. (iv) Group Home. (v) Industrial Uses. (vi) Kennels (outdoor). (vii) Mobile Homes. (viii) Medical Marijuana Businesses. (ix) Nude Entertainment Establishments. (x) Outdoor Storage (except as expressly allowed as a Use by Right in Section D.2(a)). Exhibit A 999369.16 14 (xi) Recycling Processing Facility. (xii) Service Station (except as specifically identified as a Special Review Use in Section D.2(b)). (xiii) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Southerly and Westerly boundaries of Planning Area A: 20 feet. (2) All others: None, except as may be necessary to accommodate utilities, drainage, access, fire and building code regulations and the flood plain of live streams. (ii) Maximum Building Height: (1) Portions of Planning Area A located less than 250 feet from the southerly boundary of Planning Area A: 55 feet. (2) Portions of Planning Area A located 250 or more feet from the southerly boundary of Planning Area A: 80 feet, provided that hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) exceeding 80 feet shall be permitted up to a maximum Building Height of 135 feet as a Special Review Use as specifically identified in Section D.2(b). (iii) Maximum Site Coverage: (1) Portions of Planning Area A located less than 250 feet from the southerly boundary of Planning Area A: 80% (2) Portions of Planning Area A located 250 or more feet from the southerly boundary of Planning Area A: 100% (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 25 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. Exhibit A 999369.16 15 3. Planning Area B - Community Facilities. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.3(b) below or specifically prohibited in Section D.3(c) below, the following Primary Uses and Accessory Uses: (i) Parks and Open Space. (ii) Community Facilities and related amenities as may be mutually approved by the Town and the Design Review Board. (iii) Agricultural Use (as an Interim Use only). (iv) Infrastructure. (v) Dry Utilities. (vi) Snow storage (as an Interim Use only). (vii) Water storage and water resource management facilities. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Outdoor entertainment facilities that include the use of amplified music. (c) Prohibited Uses: (i) Commercial Uses. (ii) Residential Uses. (iii) Industrial Uses. (iv) Mixed Use Projects (except as specifically included as a Use By Right in Section D.3(a) above). (d) Building Envelope Requirements: (i) Minimum Building Setbacks: 25 feet from the adjacent road right-of-way. 20 feet from property line abutting Planning Area A. None from property line abutting Main Street. There shall be no other setback requirements except as may be necessary to accommodate utilities, drainage, access, fire and building code regulations and flood plain of live streams. (ii) Maximum Building Height: 60 feet. (iii) Maximum Site Coverage: 20% Exhibit A 999369.16 16 (iv) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations, and as provided therein, parking requirements may be satisfied by provision of off-site parking, including without limitation, off-site shared parking, in accordance with the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 4. Planning Areas C and D - Village Residential Mixed Use Projects. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.4(b) below or specifically prohibited in Section D.4(c) below, the following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Commercial Uses; provided, however, no single retail business shall occupy more than 5,000 of consolidated Gross Square Footage. (iii) Agricultural Use (as an Interim Use only). (iv) Community Facilities. (v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings and short-term rentals. (vi) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.4(c) below shall be included in such Mixed Use Project, and no Uses specifically identified as Special Review Uses in Section D.4(b) below shall be included except pursuant to the review and approval processes set forth in Section E below). (vii) Commercial Parking, Private Parking and Public Parking, including but not limited to Parking Structures, Bus Stops, Bus Shelters, tramways, gondolas and lifts. (viii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (subject to review and written approval of such Use by the Design Review Board). (ix) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (subject to review and written approval of such Use by the Design Review Board). Exhibit A 999369.16 17 (x) Infrastructure. (xi) Dry Utilities. (xii) Indoor recreation and/or entertainment facilities. (xiii) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xiv) Parks and Open Space. (xv) Minor Home Occupations. (xvi) Planning Area D Only: (1) Recycling Facility and accessory trash facility (as an Interim Use only). (xvii) Accessory Uses and Structures customarily appurtenant to the foregoing Uses by Right. (xviii) Additional Uses which the Director determines to be similar to the foregoing Uses by Right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Single retail businesses occupying more than 5,000 of consolidated Gross Square Footage. (ii) Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes exceeding a Building Height of 48 feet, provided that any such Use shall be located 250 or more feet from the southerly boundary of Planning Area D. (iii) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (iv) Churches, museums, libraries and public buildings. (v) Outdoor Storage, only as an Accessory Use to a retail Use. (vi) Car wash. (vii) Drive-in Uses. (viii) Religious Facility. Exhibit A 999369.16 18 (ix) Convenience Retail (with fuel). (x) Restaurants (with drive-through window service). (xi) Financial institutions (with drive-through window service). (xii) Major Home Occupations. (xiii) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (xiv) Within Planning Area C only: (1) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.4(c) below shall be included in such Mixed Use Project). (2) Hotel, Motel and Lodge. (xv) Within Planning Area D only in areas having frontage on Main Street only: (1) Automobile Repair Shops (Minor). (2) Educational facilities including, but not limited to public and private schools, universities, and colleges. (3) Outdoor entertainment facilities that include the use of amplified music (subject to review and written approval by the Design Review Board authorizing such Use). (c) Prohibited Uses: (i) Automobile Repair Shops (Major). (ii) Animal Boarding (outdoor). (iii) Industrial Uses. (iv) Kennels (outdoor). (v) Mobile Homes. (vi) Medical Marijuana Businesses. (vii) Nude Entertainment Establishments. (viii) Outdoor Storage, except as specifically identified as a Special Review Use in Section D.4(b). Exhibit A 999369.16 19 (ix) Recycling Processing Center. (x) Service Stations. (xi) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Front: 25 feet (2) Side: None (3) Rear: 10 feet (4) Southerly boundary of Planning Area D: 20 feet (ii) Maximum Building Height: (1) Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes: 80 feet, as specifically identified as a Special Review Use in Section D.4(b). (2) All other Uses: 48 feet. (iii) Maximum Site Coverage: 80% (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 18 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 5. Planning Area E - School. (a) Purpose: To mitigate the impact of the Residential Uses proposed for development within The Village (at Avon) by providing land for school needs generated by the Residential Uses proposed for development within The Village (at Avon) directly for the benefit of the children of the Town as reasonably necessary to serve The Village (at Avon) and future residents thereof. Exhibit A 999369.16 20 (b) Uses by Right: The following Primary Uses and Accessory Uses: (i) Educational uses, limited to use as a state [authorized] educational facility serving grades K-12 (or any portion of such grades). (ii) Agricultural Use (as an Interim Use only). (iii) Subject to prior written approval from the Design Review Board authorizing such Uses, the following education-related Uses: (1) Child Care Facilities. (2) Pre-school facilities. (3) Community/adult educational facilities. (4) Cultural and/or art classes. (5) Recreational facilities. (6) Museums. (iv) Infrastructure. (v) Dry Utilities. (vi) Such other cultural/community service oriented Uses and facilities as the Design Review Board may authorize in writing. (c) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Front: 25 feet (2) Side: 7.5 feet (3) Rear: 10 feet (ii) Maximum Building Height: 35 feet. (iii) Maximum Site Coverage: 80% (iv) Minimum Lot Area: Not applicable. (d) Parking Requirements: As set forth in the Parking Regulations. (e) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. Exhibit A 999369.16 21 (f) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.6(b) below or specifically prohibited in Section D.6(c) below, the following Primary Uses and Accessory Uses: (i) Commercial Uses. (ii) Residential Uses. (iii) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.6(c) below shall be included in such Mixed Use Project, and no Uses specifically identified as Special Review Uses in Section D.6(b) below shall be included except pursuant to the review and approval processes set forth in Section E below). (iv) Agricultural Uses (as an Interim Use only). (v) Educational facilities including, but not limited to public and private schools, universities, and colleges. (vi) Community Facilities. (vii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing being subject to review and written approval of such Use by the Design Review Board). (viii) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the foregoing being subject to review and written approval of such Use by the Design Review Board). (ix) Infrastructure. (x) Dry Utilities. (xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts. (xii) Churches, museums, libraries and public buildings. (xiii) Indoor recreation and/or entertainment facilities that do not include the use of amplified music. (xiv) Outdoor entertainment facilities that include the use of amplified music (subject to review and written approval of such Use by the Design Review Board). Exhibit A 999369.16 22 (xv) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xvi) Parks and Open Space. (xvii) Child Care Center. (xviii) Animal Boarding (excluding outdoor Animal Boarding), subject to review and written approval by the Design Review Board authorizing such Use (xix) Kennels (excluding outdoor Kennels), subject to review and written approval by the Design Review Board authorizing such Use. (xx) Construction staging (as an Interim Use only). (xxi) Planning Areas F and I Only: (1) Recycling Facility. (2) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (xxii) Planning Area I Only: (1) Pedestrian and vehicular bridges, bridge abutments and improvements reasonably related thereto. (2) Automobile Repair Shops (Major and Minor). (3) Light Industrial Uses. (xxiii) Additional Uses which the Director determines to be similar to the foregoing Uses by Right. (xxiv) Accessory Uses and Structures customarily appurtenant to the foregoing Uses by Right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Service Station. (ii) Animal Boarding (outdoor), subject to review and written approval by the Design Review Board authorizing such Use (iii) Kennels (outdoor), subject to review and written approval by the Design Review Board authorizing such Use. Exhibit A 999369.16 23 (iv) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (v) Planning Areas G and H Only: (1) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic (subject to review and written approval by the Design Review Board authorizing such Use). (vi) Planning Areas F, G and H Only: (1) Animal Boarding (outdoor). (2) Kennels (outdoor). (vii) Planning Area I Only: (1) Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) which exceed 48 feet in Building Height. (c) Prohibited Uses: (i) Heavy Industrial Uses. (ii) Medical Marijuana Businesses. (iii) Nude Entertainment Establishments. (iv) Planning Areas F, G and H Only: (1) Automobile Repair Shops (Major). (2) Family Child Care Home. (3) Group Home. (4) Mobile Homes. (5) Recycling Processing Center. (6) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Commercial Uses: Exhibit A 999369.16 24 a. Front: 25 feet b. Side: None c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (2) Industrial and Residential Uses: a. Front: 25 feet b. Side: 7.5 feet. c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (3) Vertically-integrated Mixed Use Projects: a. Front: 25 feet b. Side: None c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (ii) Maximum Building Height: (1) Commercial Uses: a. Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) exceeding 48 feet shall be permitted up to a maximum Building Height of 135 feet as specifically identified as a Special Review Use in Section D.6(b). b. Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes: 80 feet. c. All other Commercial Uses: 48 feet. (2) Industrial Uses: 48 feet. Exhibit A 999369.16 25 (3) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (4) Vertically-integrated Mixed Use Projects (except as set forth in Section D.6(d)(ii)(1) with respect to hotels comprising a portion of a Mixed Use Project): 48 feet. (iii) Maximum Site Coverage: 80%. (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: (i) Planning Areas F, G and H: 18 Dwelling Units per acre. (ii) Planning Area I: 15 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 7. Planning Area J – Regional/Neighborhood Commercial and Residential Mixed Use Projects. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.7(b) below or specifically prohibited in Section D.7(c) below, the following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Commercial Uses. (iii) Mixed Used Projects; provided, however, (a) no Uses specifically prohibited in Section D.7(c) below shall be included in such Mixed Use Project, and (b) no Uses specifically identified as Special Review Uses in Section D.7(b) below shall be included except pursuant to the review and approval processes set forth in Section E below. (iv) Automobile Repair Shops (Minor). (v) Community Facilities. Exhibit A 999369.16 26 (vi) Agricultural Use (as an Interim Use only). (vii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services. (viii) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (ix) Infrastructure. (x) Dry Utilities. (xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts. (xii) Recreational facilities. (xiii) Parks and Open Space. (xiv) Additional uses which the Director determines to be similar to Uses by right. (xv) Accessory Uses and Structures customarily appurtenant to Uses by Right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Churches, museums, libraries and public buildings. (ii) Child Care Center. (iii) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Automobile Repair Shops (Major). (ii) Medical Marijuana Businesses. (iii) Nude Entertainment Establishments. (iv) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Building Setback Requirements: (1) Residential Uses: Exhibit A 999369.16 27 a. Front: 20 feet (except as provided below). b. Side: 10 feet (except as provided below). c. Rear: 10 feet (except as provided below). (2) Commercial Uses: a. Front: 20 feet (except as provided below). b. Side: None (except as provided below). c. Rear: 10 feet (except as provided below). (3) Notwithstanding the foregoing, the minimum Building Setback abutting the Interstate 70 right-of-way shall be 20 feet. (ii) Maximum Building Height: (1) Commercial (excepting Hotel, Motel and Lodge Uses) and Light Industrial Uses: 48 feet. (2) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (3) Vertically-integrated Mixed Use Projects: 48 feet. (4) Hotel, Motel and Lodge Uses: 55 feet. (iii) Maximum Site Coverage: 80% (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 18 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 8. Planning Area K - Hillside Residential. Exhibit A 999369.16 28 (a) Uses by Right: Except as specifically prohibited in Section D.8(b) below, the following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Agricultural Use (as an Interim Use only). (iii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (iv) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (v) Infrastructure. (vi) Dry Utilities. (vii) Recreational facilities. (viii) Parks and Open Space. (ix) Public Facilities. (x) Community Facilities. (xi) Homeowner association facilities including, but not limited to, a caretaker unit (as a Secondary Structure), clubhouse and restaurant, community meeting facilities, recreational facilities, and other similar facilities and amenities. (xii) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xiii) Additional uses which the Director determines to be similar to Uses by Right. (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Commercial Uses. (ii) Industrial Uses. Exhibit A 999369.16 29 (d) Building Envelope Requirements: The layout, location, size and number of Lots within Planning Area K as depicted on the PUD Master Plan are conceptual, non-binding and provided only for illustrative purposes only. The precise layout, location, size and number of Lots and the precise location of the Building Envelope for each Lot within Planning Area K will be as established by and reflected in the Final Plat creating the Lot, and shall be based on various site specific features of the Lot such as the topography, grade, natural vegetation and similar matters, but shall generally comply with the following requirements unless such compliance is determined to be impractical or unreasonable. (i) Minimum Building Setbacks: (1) Front: 25 feet (except as set forth below). (2) Side: 20 feet (except as set forth below). (3) Rear: 20 feet (except as set forth below). (4) For conceptual Lot 1 (as depicted on the PUD Master Plan): 20 feet from the property line, except as otherwise required to accommodate utilities, drainage, access, fire and building code regulations, and the flood plain of live streams. (ii) Maximum Building Height: (1) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (2) Homeowner association amenities and Community Facilities: 35 feet. (iii) Maximum Site Coverage: (1) Single-Family Residential Uses: the lesser of (a) 1 acre of the applicable Lot; or (b) 80% of the applicable Lot, provided that the final Site coverage shall be the Building Envelope for each Lot on the Final Plat creating the applicable Lot, provided further that, in any event, such Building Envelope shall comply with the requirements of this Section. (2) All other Uses: the final Site coverage shall be the Building Envelope for each Lot on the Final Plat creating the applicable Lot, provided further that, in any event, such Building Envelope shall comply with the requirements of this Section. (iv) Minimum Lot Area: 1 acre. Exhibit A 999369.16 30 (e) Residential Density Maximum: Building permits may be issued for no more than 280 Dwelling Units in the aggregate for Planning Area K and Planning Area RMF-1 (provided that Primary/Secondary Dwelling Units situated on the same Lot in Planning Area K or the same Lot in Planning Area RMF-1 shall be considered one Dwelling Unit). (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family. (a) Uses By Right: The following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Community Facilities. (iii) Agricultural Use (as an Interim Use only). (iv) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings and short-term rentals. (v) Infrastructure. (vi) Dry Utilities. (vii) Recreational facilities. (viii) Temporary real estate offices and construction offices. (ix) Residential management office. (x) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xi) Additional uses which the Director determines to be similar to Uses by Right. (xii) Planning Area RMF-2 Only: (1) Pedestrian bridges. (b) Special Review Uses: Exhibit A 999369.16 31 (i) Preschool, nursery school, in-home child care, and Child Care Center. (ii) Group Home. (iii) Commercial Parking, Private Parking and Public Parking. (iv) Bus Stops, Bus Shelters, tramways, gondolas and lifts. (v) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (vi) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (vii) Planning area RMF-1 Only: (1) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Commercial Uses (except as specifically included in Sections D.9(a) or D.9(b)). (ii) Industrial Uses. (iii) Mobile Homes. (d) Building Envelope Requirements: (i) Building Setback Requirement: 20 feet from Interstate-70 right- of-way, provided there shall be no other setback requirements except as may be necessary to accommodate utility improvements, lines and mains, facilities, services and buildings. (1) Front: 20 feet. (2) Side: 10 feet. (3) Rear: 10 feet. (ii) Maximum Building Height: (1) Single-family Dwellings and Duplex Dwellings: 35 feet. (2) Multi-family Dwellings: 48 feet. Exhibit A 999369.16 32 (3) Commercial: 48 feet. (iii) Maximum Site Coverage: 80%. (iv) Minimum Landscaped Area: 20%. (v) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: (i) Planning Area RMF-2: 12 Dwelling Units per acre. (ii) Planning Area RMF-1: 6 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 10. Planning Areas P1-P3: Parkland. (a) Uses By Right: Except as specifically prohibited in Section D.10(b) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Community Facilities (subject to review and written approval of such Uses by the Design Review Board). (iii) Equestrian, pedestrian and bicycle trails. (iv) Landscape improvements. (v) Indoor and outdoor, sports, training and recreation facilities. (vi) Lakes, ponds, reservoirs and irrigation ditches. (vii) Parks, picnic facilities and temporary entertainment for special events. (viii) Open Space (ix) Infrastructure. (x) Dry Utilities. Exhibit A 999369.16 33 (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Residential Uses. (ii) Commercial Uses. (iii) Industrial Uses. (d) Building Envelope Requirements: (i) Building Setback Requirement: No minimum except must be sufficient to accommodate utilities, drainage, access, fire and building code regulations and flood plain of live streams. (ii) Maximum Building Height: 35 feet. (iii) Maximum Site Coverage: Not applicable. (iv) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 11. Planning Areas OS1 – 0S7: Natural Open Space. (a) Uses By Right: Except as specifically identified as Special Review Uses in Section D.11(b) below or specifically prohibited in Section D.11(c) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Equestrian, pedestrian and bicycle trails. (iii) Landscape improvements. (iv) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services. Exhibit A 999369.16 34 (v) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (vi) Infrastructure. (vii) Dry Utilities. (viii) Snow storage. (ix) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings; provided, however, such uses which are located in Planning Area OS6 shall be oriented on a generally north-south axis. (x) OS1 – 0S5 and OS7: (1) Lakes, ponds, reservoirs and irrigation ditches. (2) Park and picnic facilities and related parking. (xi) OS5 and OS6 (subject to review and written approval of such Uses by the Design Review Board): (1) Community Facilities. (2) Recreational Uses including public river access. (3) Pedestrian and vehicular access, roads, bridges, bridge abutments and improvements reasonably related thereto. (xii) OS3: (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (ii) OS6 only: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (1) Lakes, ponds, reservoirs and irrigation ditches. (2) Park and picnic facilities and related parking (subject to review and written approval of such Uses by the Design Review Board). (c) Prohibited Uses: All Uses other than Uses by Right and Special Review Uses specifically listed above. Exhibit A 999369.16 35 (d) Building Envelope Requirements: (i) Building Setback Requirement: Not applicable. (ii) Maximum Building Height: Not applicable. (iii) Maximum Site Coverage: Not applicable. (iv) Minimum Lot Area: Not applicable. (v) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 12. Planning Areas PF-1 – PF-3: Public Facility. (a) Uses By Right: Except as specifically identified as Special Review Uses in Section D.12(b) below or specifically prohibited in Section D.12(c) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Public Facilities. (iii) Landscape improvements. (iv) Infrastructure. (v) Dry Utilities (subject to review and written approval of such Use by the Design Review Board). (vi) Within Tract E, Final Plat, The Village At Avon Filing 3 (Planning Area PF-3), and Tract F, Final Plat, The Village At Avon Filing 3 as amended (Planning Area PF-2), in accordance with and subject to the terms and conditions of Ordinance No. 06-16: (1) emergency services facilities such as ambulance, fire protection; and (2) similar uses and services as determined by the Director. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: Exhibit A 999369.16 36 (i) Lakes, ponds, reservoirs and irrigation ditches. (ii) Park and picnic facilities and related parking. (c) Prohibited Uses: All Uses other than Uses by Right and Special Review Uses specifically listed above. (d) Building Envelope Requirements: (i) Building Setback Requirement: Not applicable. (ii) Maximum Building Height: (1) Planning Area PF-1: 48 feet. (2) Planning Areas PF-2 and PF-3: 35 feet. (iii) Maximum Site Coverage: Not applicable. (iv) Minimum Landscaped Area: 20%. (v) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. E. SPECIAL REVIEW USE. 1. Special Review Use Permit. (a) A Special Review Use shall require a special review use permit prior to the issuance of a building permit or the commencement of the use identified as a Special Review Use in the Development Standards. (b) A Special Review Use shall not be considered a Use by Right without review and approval, as set forth in Section E.2 below, nor shall a Special Review Use be permitted unless the Design Review Board approves a development plan for the applicable Site. (c) The procedural and substantive requirements set forth in this Section E constitute the sole and exclusive special review use regulations applicable within The Village (at Avon) PUD and expressly supersede any additional or conflicting provisions of the Municipal Code. Exhibit A 999369.16 37 2. Application Filing and Processing. (a) An Application with required materials (see Section E.3 below) shall be filed with Community Development. Only complete submittals shall be accepted. (b) Staff shall review the Application in accordance with the criteria established in this section and present the Application at a public hearing before the Planning and Zoning Commission in accordance with Section 7.16.020(e) of the Development Code, as amended. (c) Developments and uses granted by special review use permit shall be developed or established in accordance with the timeframe provided in the approved special review use permit, or within two years of the date of approval if the timeframe is not established in the approved special review use permit. Subject to extension in accordance with Section E.5(b) below, failure to develop or establish such development or Uses in accordance with the timeframe established on the permit (or two years from the date of approval if no timeframe is established on the permit) shall result in the expiration of the permit. (d) A special review use permit is valid as long as conditions of approval are maintained by the Applicant, unless a specific time limit for the use is set forth as part of the approval. Subject to extension in accordance with Section E.5(b) below, if an approved Use ceases operation for any reason for a period of one year, the special review use permit shall be deemed expired. (e) If the conditions of a permit become the responsibility of a person or entity other than the Applicant, Community Development shall be notified in writing, identifying the new person or entity responsible for maintaining the conditions of the approval/permit. Until such notice is received, the Applicant shall remain responsible. Such notice shall be attached to the permit on file at Community Development. (f) If conditions of approval are not maintained, it shall be considered a violation of the Development Plan and the special review use permit shall be subject to revocation proceedings in accordance with the applicable provisions of the Municipal Code, the Design Review Guidelines and the Design Covenant. 3. Submittal Requirements for Special Review Use. Only complete submittals shall be accepted. No Application shall be deemed complete unless the Applicant has submitted to Community Development any or all of the following materials which are, in the opinion of the Director, relevant to the particular permit being requested: (a) A complete special review use permit Application and required fee; (b) A legal description of the parcel; (c) A site plan showing proposed Uses and structures on the property; (d) Scaled elevations and/or perspective drawings of any proposed structures; Exhibit A 999369.16 38 (e) A proposed development schedule indicating: (i) Date of the beginning of the Use and/or construction; (ii) Phases in which the project may be developed and the anticipated rate of development; (iii) The anticipated date of completion of the project; (f) Any agreements, provisions or covenants to be recorded; (g) Restoration or reclamation plans shall be required for all Uses requiring extensive grading, for extractive Uses, and may be required for other Uses as necessary; (h) A statement regarding any provisions for proper ongoing maintenance of the Use and site; (i) Any additional materials, which, in the opinion of the Director, are necessary to adequately review the Application. 4. Criteria for Review, Recommendation, and Approval of Special Review Uses. The staff and the planning and zoning commission shall consider the following criteria when evaluating an Application for a special review use permit: (a) Whether the proposed Use otherwise complies with all requirements imposed by the Development Plan; (b) Whether the proposed Use is compatible with adjacent uses. Such compatibility may be expressed in appearance, architectural scale and features, site design, and the control of any adverse impacts including noise, dust, odor, lighting, traffic, safety and other similar Development Standards; (c) Any significant adverse impacts (including but not limited to, hours of operation, traffic generation, lighting, noise, odor, dust, and other external impacts) anticipated to result from the use shall be mitigated or offset to the maximum extent practicable; and (d) Facilities and services (including sewage and waste disposal, water, gas, electricity, police and fire protection and roads and transportation, as applicable) shall be available to serve the subject property while maintaining adequate levels of service for existing development. 5. Amendments to Special Review Use Permit. (a) No approved Special Review Use may be modified, structurally enlarged or expanded in ground area, unless such modification, enlargement or expansion receives the prior approval of the Planning and Zoning Commission, which shall be obtained by repetition of the granting procedures provided in this Section E or the Planning and Zoning Commission expressly authorizes modifications, enlargement or expansions of the Special Review Use in the Exhibit A 999369.16 39 prior approval of the Special Review Use. The Planning and Zoning Commission may authorize administrative approval of modifications, enlargement and expansion of Special Review Uses and may define a percentage or other parameter change to square footage of such Use, hours of operation, traffic or other aspects of the approved Special Review Use. (b) At least thirty (30) days prior to the expiration date of a special review use permit due to cessation of an approved Special Review Use for any reason for a period of one year, due to failure to develop or establish an approved Special Review Use in accordance with the timeframe established on the permit (or two years from the date of such approval if no timeframe is established on the permit) as provided for in Section E.2 above, or due to expiration of a term established in the Special Review Use approval, an Applicant may request, in writing, approval of an extension of such expiration date. The Director may administratively approve up to a one-year extension of an approved Special Review Use. The Planning and Zoning Commission may approve an extension of the Special Review Use for longer than one year in accordance with the procedures and criteria for review established in this Section F. F. TEMPORARY USES AND STRUCTURES. Temporary Uses and Structures shall be allowed in accordance with the substantive and procedural requirements of the Development Code, as amended from time to time; provided, however, no Temporary Use or Structure shall be permitted unless the Design Review Board approves a development plan for the applicable Site as evidenced by the issuance of a certificate of Design Review Board approval affixed to the Application. G. SUBDIVISION. 1. General. (a) The procedural and substantive requirements set forth in this Section G constitute the sole and exclusive subdivision regulations for Planning Areas A, B, C, D, E, F and J (collectively, the “Administrative Subdivision Areas”) and expressly supersede any additional or conflicting provisions of the Municipal Code with respect to such Planning Areas. Subdivision within all Planning Areas excepting the Administrative Subdivision Areas shall be in accordance with Section 7.16.070 of the Development Code, except as otherwise expressly set forth in this Section G. (b) Except as set forth in Subsection 1 below, subdivisions, subdivision amendments and re-subdivisions within the Administrative Subdivision Areas (including without limitation, any amendments to or re-subdivisions of Lot 1, Final Plat of The Village (at Avon) Filing 1) shall require Final Plat review and approval only (no Preliminary Plan approval shall be required), which review and approval shall be administrative with an administrative decision rendered on such Final Plat by the Director. (c) Notwithstanding any provision of this Section G, subdivision review and approval shall not be required for any division of land within The Village (at Avon) for any of the following: (i) Creation of a lien, mortgage, deed of trust or any other security instrument; Exhibit A 999369.16 40 (ii) Creation of any interest in an investment entity; (iii) Creation of cemetery lots; (iv) Creation of an interest or interests in oil, gas, minerals or water that are severed from the surface ownership of real property; (v) Acquisition of an interest in land in the name of a husband or wife or other persons in joint tenancy, or as tenants in common of such interest, and any interest in common owned in joint tenancy shall be considered a single interest; (vi) Dedication of land for right-of-way or other public use, or conveyances relating to the vacation of land designated for public use; (vii) Correction of a legal description in a prior conveyance; (viii) Any transfer by operation of law or bequest; (ix) Lease of property (granting of leasehold interests) for any period of time; (x) Division of land created by the foreclosure, or provision of deed- in-lieu of foreclosure, of a lien, mortgage, deed of trust or any other security instrument. 2. Final Plat. (a) Application Filing and Processing. (i) An Application with required materials (see Subsection (b) below) shall be filed with Community Development. Only complete submittals shall be accepted. (ii) Subject to Subsection 1 below, staff and the Director shall review the application in accordance with the criteria established in this section and the Director shall administratively render a decision on the Final Plat in accordance with the criteria for review and approval of this section. Public hearings shall not be required except as may be requested by the Applicant. (iii) As set forth in Section I.8 of this PUD Guide, requested variances and/or alternative equivalent compliance approvals shall be considered by the Town. (iv) Except as set forth in Subsection 1 below, the sole public notice requirement applicable to the processing and approval of Final Plats within The Village (at Avon) shall be the provision of posted notice by the Town in the designated official places of posting by the Town and mailed notice by the Town (at the expense of the Applicant) by first-class mail to all real property owners within 300 feet of the property which is the subject of the applicable Final Plat Application, as measured from the boundary of the subject property. Notice shall be posted, and mailed notice shall be Exhibit A 999369.16 41 postmarked, at least 11 days prior to the Director rendering a decision on the Final Plat Application. The content of the posted and mailed notice shall include those matters set forth in Section 7.16.020(d)(3) of the Development Code. (v) Prior to the Director rendering a decision to reject or deny a Final Plat Application, the Director shall give the Applicant prior written notice of the Director’s intent to reject or deny such Application, which notice shall include a good faith detailed accounting of the reasons for such intended rejection or denial and proposed recommendation(s) for satisfactorily addressing such deficiencies, and the Applicant shall have an opportunity to amend such Application prior to the Director finally rejecting or denying the Final Plat. (vi) The Director shall render a decision on the Final Plat Application and the Town shall post such decision in the same manner as the posting of Town ordinances. The Director’s decision on the Final Plat Application may be appealed by a party with standing to the Town Council pursuant to Section 7.16.160 of the Development Code. The date of the Director’s decision shall be the final approval date for purposes of any appeal of or legal challenge to such decision. (vii) The approved Final Plat shall be recorded within 90 days from the date of approval, unless a later time is set forth in the Director’s approval. If the Final Plat is not recorded in such timeframe, the approval shall be deemed voidable in the discretion of the Director. If the Director gives written notice that the Final Plat is void pursuant to this section, such Final Plat shall not thereafter be recorded; provided that if a fully executed and, as applicable, notarized, Final Plat is recorded after 90 days from the date of approval (after any such later deadline for recordation as may be set forth in the Director’s approval), such recordation shall be conclusive evidence that the Final Plat is not void and is in full force and effect. (b) Application Submittal Items. Only complete submittals shall be accepted. No Application shall be deemed complete unless the Applicant has submitted to Community Development any or all of the following materials which are, in the opinion of the Director, relevant to the particular Final Plat Application: (i) A complete Final Plat application and required fee; (ii) A legal description of the parcel; (iii) Title commitment; (iv) Survey plat; (v) SFE water allocation assigned to the property, as applicable; (vi) Utility approval and verification form; (vii) Final plat; Exhibit A 999369.16 42 (viii) Public Improvements Agreement, as applicable; (ix) Transportation impact study; (x) Drainage study; and (xi) Street plan and profiles. With respect to any submittal item, if the Applicant disagrees with the determination of the Director with respect to the required substance or quality of such submittal item, the Town and the Applicant shall jointly appoint a third party having experience in engineering and subdivision matters to review the Application and decide upon the appropriateness of the required substance and quality of such submittal item. Such third party’s determination as to the required substance or quality of such submittal item shall be binding upon the Town and the Applicant. (c) Criteria for Review and Approval. The Director shall consider the following criteria when evaluating an Application for Final Plat approval: (i) The proposed subdivision shall comply with all applicable Use, density and dimensional standards set forth in the Development Plan that would affect the layout of Lots, blocks and streets; (ii) There are adequate public facilities for potable water supply, sewage disposal (or if other methods of sewage disposal are proposed, adequate evidence that such system shall comply with state and local laws and regulations), solid waste removal, electrical supply, fire protection and streets; (iii) The proposed road extensions are materially consistent with the matters set forth in Subsection 1 below as depicted on the PUD Master Plan; (iv) Appropriate utilities, including water, sewer, electric, gas and telephone utilities, have provided “capacity to serve” letters for the proposed subdivision; (v) Evidence that all areas of the proposed subdivision that may involve soil or topographical conditions presenting hazards or requiring special precautions have been identified by the applicant and that the proposed use of such areas is compatible with such conditions or adequate mitigation is proposed; (vi) The subdivision application addresses the responsibility for maintaining all streets, open spaces, and other public and common facilities in the proposed subdivision; (vii) The legal descriptions of all Lots and other parcels within the proposed subdivision close and contain the entirety of the area indicated; (viii) The Final Plat is correct in accordance with surveying and platting standards of the State of Colorado; Exhibit A 999369.16 43 (ix) The Final Plat substantially complies with all generally applicable technical standards adopted by the Town, except where (a) modified or superseded by this PUD Guide; (b) alternative equivalent compliance has been granted as contemplated in Section I.8; (c) a variance has been granted in accordance with the provisions of the Development Code; or (d) otherwise waived by the Director; and (x) The Final Plat does not result in any contiguous land in common ownership (with the ownership of the land subject to the applicable Final Plat) of less than 35 acres. 3. Material Modification to Certain Street Connections. (a) If there is any express or implied conflict between the terms and conditions of the Development Plan and the terms and conditions of the Transportation Master Plan, the Development Plan shall control. (b) If an Application for an Administrative Subdivision Area proposes an elimination of one or more of the following street connections (the “Required Street Connections”), the Director may, in the Director’s sole discretion, determine that such Application shall not be subject to administrative approval and may direct that such Application be submitted to Town Council for review and decision: (i) Main Street connection to Chapel Place; (ii) Main Street connection to Post Boulevard roundabout; (iii) East Beaver Creek Boulevard connection at northern boundary of Planning Area A to existing East Beaver Creek Boulevard adjacent to the Property; (iv) East Beaver Creek Boulevard connection at Post Boulevard connecting to Fawcett Road; and (v) Connection from westernmost roundabout on Main Street to East Beaver Creek Boulevard. (c) For any Application for an Administrative Subdivision Area submitted to Town Council pursuant to Section G.3(b), Town Council shall render a decision on the Application after conducting a public hearing, and public notice of the Town Council hearing on such Application shall be given in accordance with Section 7.16.020(d) of the Development Code. H. DEVELOPMENT PLAN AMENDMENT PROCEDURES. 1. General. (a) Amendments to this PUD Guide may be processed by the Town either formally or administratively, with the determination of the applicable procedure to be made in strict compliance with the terms and conditions of this Section H. Exhibit A 999369.16 44 (b) During the term of the Vested Property Rights, no amendment to or variance from the terms of the Development Plan, and no application for rezoning of all or any part of the property included within The Village (at Avon) PUD, shall be accepted for processing, or approved or undertaken by the Town without the prior written consent of the Master Developer. (c) Any such amendment shall contain the statement required pursuant to Section 7.16.140(d) of the Development Code, shall be processed and otherwise implemented in compliance with the terms and conditions set forth in Section A.3 above, and shall create Vested Property Rights for the duration of the term set forth in Section A.3 above. No such amendment shall divest, limit or otherwise impair any Vested Property Right set forth in Section A.3 above. (d) Prior to the Director or Council, as applicable, rendering a decision to reject or deny an Application for an amendment to the Development Plan, the Director or Council, as applicable, shall give the Applicant prior written notice of the Director’s, or Council’s, as applicable, intent to reject or deny such Application, which notice shall include a detailed accounting of the reasons for such intended rejection or denial and proposed recommendation(s) for satisfactorily addressing such deficiencies, and the Applicant shall have an opportunity within the timeframes afforded by the Development Code to amend such Application prior to the Director or Council, as applicable, finally rejecting or denying the Application. 2. Formal Amendments. Amendments to this PUD Guide which do not qualify for the administrative amendment process described in Section H.3 below shall follow the formal amendment process set forth in Section 7.16.060 of the Development Code, as amended, except that the provisions of Section H.1 above shall apply to all formal amendments of this PUD Guide. Nothing herein shall be deemed to prevent an Applicant from voluntarily choosing to apply for a formal amendment, or from appealing to Council or the courts the Director’s determination of eligibility for administrative amendment and/or denial of a request for an administrative amendment. 3. Administrative Amendments. (a) Intent; Determination of Applicable Amendment Procedure. The intent of this Section H.3 is to provide a simplified amendment procedure for minor modifications to this PUD Guide. As used herein, the term “minor modifications” means an Application meeting the criteria stated Section H.3(b)(i) through H.3(b)(iv) below, which shall be processed as an administrative amendment application, and an Application meeting the criteria stated in Section H.3(b)(vi) below, which may be processed as an administrative amendment application in the discretion of the Director. (b) Qualifying Administrative Amendments. An Application for administrative amendment that complies with (I) the specific criteria for approval set forth in Sections H.3(b)(i) through H.3(b)(v) below, as applicable, shall be processed and approved administratively, and shall be entitled to a presumption of compliance with the general criteria for approval set forth in Section H.3(b)(vi) below; or (II) the general criteria for approval set forth in Section H.3(b)(vi) below may be processed and approved administratively: Exhibit A 999369.16 45 (i) Density Allowance. Provided the aggregate number of Dwelling Units within Planning Areas A, C, D, F, G, H, J, K, RMF 1 and RMF 2 does not exceed 2,400, a ten percent (10%) increase in the number of Dwelling Units allowed within any Planning Area stated herein. (ii) Road Alignments. Changes to public or private street locations, internal circulation design/pattern (including without limitation, the Required Street Connections) or traffic capacity of the overall road network within the Property that may require a confirming amendment to this PUD Guide shall be processed and approved administratively. (iii) Public Improvements. Amendments to the Development Agreement, if any, that affect the scope of Public Improvements may require a conforming administrative amendment to this PUD Guide, if the revision affects Development Standards for a particular Site or Planning Area. (iv) Subdivision Related Changes Affecting Development Plans. If the Town approves any Preliminary Plan or Final Plat that incorporates any subdivision related element that is inconsistent or conflicts with any Development Standard or other element of this PUD Guide, including without limitation, any modifications to street extension(s) and/or street alignment(s) as described in Section G.1 of this PUD Guide (including without limitation, the Required Street Connections), any conforming amendment to this PUD Guide that may be required shall be processed and approved administratively. Examples of subdivision related elements that may require a conforming amendment to this PUD Guide include, without limitation, lot line locations, right-of-way locations, internal public or private roadway locations, emergency access locations, utility locations, vacations, Planning Area boundaries, Building Envelope locations and/or areas, and other similar elements. Such conforming amendments shall apply only to the specific Lot(s) or Planning Area(s) affected by the Preliminary Plan or Final Plat the approval of which necessitated the conforming amendment. (v) Planning Area Boundaries and Lot Lines. With the written consent of the Master Developer, an Applicant may amend the PUD Master Plan to increase or decrease the size of any Planning Area to conform the PUD Master Plan to an approved Final Plat or Application therefor that is being processed concurrently with such PUD Master Plan amendment. In addition, with the consent of the Master Developer, an Applicant may amend the PUD Master Plan to relocate or otherwise modify Lot lines and Planning Area boundaries and locations due to site planning or engineering considerations that are not directly associated with an approved or in-process Final Plat or other Application. The foregoing PUD Master Plan amendments and any other conforming amendments to this PUD Guide (to the extent that such modifications are necessary or desirable in connection with such PUD Master Plan amendments) shall be processed and approved administratively so long as the size of largest affected Planning Area is not increased or decreased by more than 10 percent. [e.g., if Planning Area X is 30 acres and Planning Area Y is 10 acres and abuts Planning Area X, Planning Area X (being the larger of the two planning areas) may be increased by three acres (30 acres X 10% = 3 acres) and Planning Area Y may be decreased by the corresponding Exhibit A 999369.16 46 three acres, and such amendment to the PUD Master Plan shall be administratively approved.] The relocation of an entire Planning Area to another location within The Village (at Avon) PUD shall follow the formal amendment process. (vi) Compatible and Adequately Mitigated Modifications. In addition to the specific criteria for approval set forth in Sections H.3(b)(i) through H.3(b)(v) above, the Director may approve Applications that request modifications to Development Standards which comply with the following general criteria for approval: (1) are not materially incompatible with immediately adjacent Uses; and (2) are not fundamentally inconsistent with the Development Standards set forth in this PUD Guide other than the specific Development Standard addressed by the requested amendment; and (3) incorporate measures which adequately address significant impacts, if any, to immediately adjacent Uses. (c) Procedure. (i) Applicants must meet with the Director or his or her designated representative prior to submittal of an administrative amendment request (unless waived by the Director) in order to obtain input into the appropriateness of the request and the materials required to be submitted with the request. (ii) Upon a complete submittal of the required materials, the Director shall determine, within fifteen (15) days after submittal of the request, the completeness of the request and whether it qualifies to be processed administratively. (iii) If the administrative amendment request complies with Sections H.3(b)(i) through H.3(b)(vi) above, as applicable, it shall be processed administratively and the Director is authorized to approve the request. If the request does not comply with Sections H.3(b)(i)(b)(i) through H.3(b)(vi), as applicable, Section H.2 above shall apply to the request. (iv) The Applicant may appeal any action or decision of the Director with respect to an administrative amendment request to Council by filing a written request for such appeal with the Town Clerk by not later than 5:00 p.m. on the 30th day following the action or decision being appealed. Such appeal may request a review of the Director’s determination of an Application’s eligibility for administrative processing and/or the Director’s decision to deny or approve with conditions an administrative amendment Application. (v) Upon approval of an administrative amendment, the Applicant shall submit to Community Development a revised PUD Guide, or applicable portion thereof. Such revised documentation shall be signed by the Master Developer, the Exhibit A 999369.16 47 owner(s) of record and the Director, will be kept on file at Community Development, and shall be recorded in the real property records for the County of Eagle, State of Colorado. 4. Modifications Not Requiring Amendment. (a) No amendment (formal or administrative) to the Development Plan, or applicable component thereof, shall be required to modify the following Development Standards: (i) Maximum and Minimum Development Standards. No amendment shall be required for (x) reductions to density allowance, maximum Building Height, square footage allowance and Site Coverage Development Standards, or (y) increases to minimum Building Setback, Lot Area and parking requirements. (ii) Planning Area K Building Envelopes. No PUD Guide amendment shall be required with respect to the establishment of the final Building Envelope of a Lot or Site within Planning Area K, it being the intent of this PUD Guide that Building Envelopes within Planning Area K shall be established only pursuant to a Final Plat as otherwise set forth in this PUD Guide. (b) If a modification to this PUD Guide does not require an amendment pursuant to this Section H.4, the Applicant shall submit to Community Development a revised PUD Guide setting forth such modification. Such revised documentation shall be signed by the Master Developer and the owner(s) of record, will be kept on file at Community Development, and shall be recorded in the real property records for the County of Eagle, State of Colorado. I. SUPPLEMENTAL REGULATIONS. 1. Interim Uses. Interim Uses shall be permitted within The Village (at Avon) PUD as follows: (a) The following Uses or structures, in existence from time to time prior to development of the applicable portion of The Village (at Avon) PUD, shall be considered approved Interim Uses without the requirement of further action, but subject to approval, modification and/or termination as provided above in connection with Design Review Board processing of applications therefor in accordance with the Design Review Guidelines and Design Covenant: (i) Agricultural Uses within undeveloped portions of The Village (at Avon) PUD generally. (ii) The rodeo and ancillary carnival use within Planning Area A to the extent of such use for the last three years including a maximum 20% expansion of the square footage of the existing rodeo area and related parking and expansion of seasonal timeframe of operations (expansion in excess of 20% or expansion of hours of operation shall require a Temporary Use permit). (iii) Driving course and accessory hospitality services related to automobile demonstrations, promotions and sales in Planning Area A, not to exceed 10 Exhibit A 999369.16 48 days in the aggregate in a calendar year, provided that such Use exceeding 10 days in the aggregate in a calendar year shall require a Temporary Use permit. (iv) Recycling Facility and trash drop-off within Planning Areas A and D existing as of the Effective Date. (v) Snow storage within undeveloped portions of The Village (at Avon) PUD generally. (vi) The Mobile Home office/storage Use existing as of the Effective Date and community garden within Planning Area A. (b) Agricultural and snow storage Uses (unless specifically designated as an Prohibited Use within the applicable Planning Area) shall be permitted on undeveloped land within all Planning Areas until such time as the Town approves an initial building permit Application for construction of a Building on the applicable Site, provided that such Uses may continue on the portion of the applicable Planning Area for which a building permit Application has not been approved by the Town. 2. Solid Fuel Burning Devices. Development within The Village (at Avon) PUD shall comply with Chapter 15.24, Solid Fuel Burning Devices, of the Municipal Code. 3. Signs. Signs shall be permitted in all Planning Areas within The Village (at Avon) PUD provided they are in conformance with Design Review Guidelines, the terms and requirements of which comprise the sole and exclusive sign regulations within the Village (at Avon) PUD and expressly supersede any sign regulations set forth in the Municipal Code. All signage and streetscape improvements, including any future modifications to built signage and streetscape improvements, located within public rights-of-way within The Village (at Avon) shall be in conformance with the Manual of Uniform Traffic Control Devices for Streets and Highways. Except as otherwise provided in this Section I.2, the Design Review Board is the sole and exclusive authority for approval of signs within The Village (at Avon) PUD. The Town has approval authority with respect to confirming that signs and landscaping approved by the Design Review Board in the public rights-of-way within The Village (at Avon) PUD relating to safety and traffic control comply with the Manual of Uniform Traffic Control Devices for Streets and Highways. 4. Parking Requirements. Parking within The Village (at Avon) shall be in conformance with Parking Regulations set forth in Exhibit C to this PUD Guide, which shall be the sole and exclusive parking regulations applicable within The Village (at Avon) PUD and which expressly supersede any parking regulations set forth in the Municipal Code, including without limitation, any additional or conflicting such provisions. Notwithstanding the foregoing, parking within The Village (at Avon) shall comply with the requirements of the American with Disabilities Act and any other applicable federal regulation as may be amended and as may be applicable in accordance with the provisions of such federal regulations. 5. Surface Parking Landscaping Requirements. A 10’ wide perimeter landscape buffer shall be installed and maintained for all outdoor surface parking lots within The Village (at Avon) PUD, except for points of ingress and egress to the parking lot, and except for those Exhibit A 999369.16 49 portions of the perimeter that abut existing or planned outdoor surface parking areas. The landscaping plan for such landscape buffers shall comply with applicable provisions of the Design Review Guidelines, and shall be subject to prior approval of the Design Review Board. 6. Drainage Requirements. (a) In addition to the Town’s drainage provisions, the following provisions shall also apply to drainage: (i) Floodplains that are a result of manmade structures can be eliminated by enlarging the existing drainage conveyance facilities such that excessive backwater/floodplains would be diminished, but in no event shall such enlargement of existing facilities cause an increase in the 100-year flood level elevation on adjacent or downstream properties. (ii) If demonstrated that the release of flows directly into the Eagle River does not result in an increase of the 100-year flood level elevation of the Eagle River, such developed releases shall be allowed. This determination shall be based upon analysis of the Eagle River basin hydrograph and the site-developed hydrograph being combined. (b) In processing any Application for development within the Property, the Town shall incorporate the assumptions of the drainage study prepared by David Johnson for the Property (the “Johnson Study”) with respect to reducing the calculated stormwater flows, management and detention requirements based on the mitigating effect of vegetation within the Property. The assumptions set forth in the Johnson Study shall govern and control over any conflicting provisions or assumptions in the Town’s drainage master plan; provided, however, if the Town amends its drainage master plan, which amendment results in less restrictive or less burdensome provisions than set forth in the Johnson Study, such less restrictive or less burdensome provisions in the Town’s drainage master plan shall apply to the Property. 7. Sidewalk and Trail Standards. The minimum sidewalk and trail width standards shall be as follows: (a) Sidewalk: Except as set forth in Exhibit F, 4’ minimum width for local streets and 6’ minimum width for collector and arterial streets. (b) Multi-use trails: 8’ minimum width. 8. Alternative Equivalent Compliance and Variances. Deviations from strict application of a standard or requirement of the Development Code shall be considered by the Town on a case by case basis in accordance with (a) Section 7.16.120 (alternative equivalent compliance) of the Development Code; or (b) Section 7.16.110 (variances) of the Development Code. 9. Supplemental Design Standards: Planning Areas A and D. The supplemental design standard set forth in this Section I.9 shall apply to any Building developed for Commercial Use(s) or as a Mixed-Use Project constructed on a Site abutting the southerly Exhibit A 999369.16 50 boundary of Planning Area A or Planning Area D and having the rear of such Building facing the southerly boundary of Planning Area A or Planning Area D, as applicable (“Affected Building”). Any Affected Building shall utilize architecture and exterior materials on the rear of such Affected Building that is consistent in quality and finish with the architecture and exterior materials utilized on the front of the Building. The foregoing design standard shall be in addition to other applicable design standards set forth in this PUD Guide, including without limitation, the Minimum Design Guideline Standards. Compliance with this Section I.9 shall be confirmed by the Design Review Board and the Director prior to issuance of any building permit for any Affected Building. Deviations from this design standard may be considered and approved in accordance with Section 7.16.120 (alternative equivalent compliance) of the Development Code. 10. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge Requirements. The following supplemental design and improvement standards shall apply to any Hotel, Motel and Lodge Uses developed within Planning Area J (“Supplemental Hotel Design Standards”) in addition to other applicable design standards set forth in this PUD Guide, including without limitation, the Minimum Design Guideline Standards. Compliance with these Supplemental Hotel Design Standards shall be confirmed by the Design Review Board and the Director prior to issuance of any building permit for a Building designated for Hotel, Motel and Lodging Uses. Deviations from these Supplemental Hotel Design Standards may be considered and approved in accordance with Section 7.16.120 (alternative equivalent compliance) of the Development Code. The Supplemental Hotel Design Standards are as follows: (a) Exterior Building Materials and Color. (i) Requirements (1) A minimum of 20% of the vertical surfaces on each side of the exterior building elevation shall be comprised of stone, brick, precast concrete or cast stone. (2) Colors shall have a LRV (Light Reflective Value) of sixty (60) or less. (3) All window frames shall be metal clad or alloy extrusions. (ii) Prohibited (1) Colors shall not have a LRV greater than sixty (60). (2) Asphalt siding, imitation brick, asbestos cement shingles or siding, imitation log siding, aluminum or vinyl siding and exterior insulated finishing system (EIFS) are not permitted. (3) Reflective glass shall not be permitted. (b) Roofs. (i) Pitched Exhibit A 999369.16 51 (1) All pitched roofs shall be no less than a four-to-twelve (4:12) slope. (2) Roof materials shall be unglazed concrete tiles, slate, copper, zinc, standing seam pre-patina metal (CorTen or equivalent) or synthetic shakes. Solar and thermal collectors are permitted. (3) Overhangs are required. Buildings two (2) stories or less shall have an overhang of no less than eighteen (18) inches, measured from the point where the wall meets the roof. Three (3) to four (4) story Buildings shall have an overhang of no less than twenty-four (24) inches, measured from the point where the wall meets the roof. (ii) Flat. Flat roofs shall have concrete pavers or stone ballast. Grass roofs and solar and thermal collectors are permitted. (c) Screening. All mechanical, communications and electrical equipment (wall and roof mounted) shall be screened from view of the adjacent street level with siding and/or roofing materials consistent with the Structure. All vent terminations, flashings, flues, safety apparatus and similar features shall utilize adjacent materials. (d) Articulation. Walls shall not span more than fifty (50) feet horizontally without a minimum of two (2) feet variation in the horizontal wall plane. Walls shall not span more than thirty (30) feet on any floor level without a minimum of one (1) architectural element. 11. Wildlife Mitigation Plan. Development within The Village (at Avon) PUD shall comply with the Wildlife Mitigation Plan attached as Exhibit D to this PUD Guide, which is and shall constitute the sole and exclusive wildlife mitigation measures required for The Village (at Avon) PUD and expressly supersedes any wildlife mitigation regulations set forth in the Municipal Code. 12. Design Review Guidelines. (a) The Master Developer previously has prepared, and the Design Review Board previously has adopted, a Design Review Guidelines which the Design Review Board utilities and shall utilize for review of all development proposals within The Village (at Avon). For portions of the Property south of Interstate 70 and all portions of the Property north of Interstate 70 other than Planning Area RMF-1 and Planning Area K, the Design Review Guidelines shall contain, among other matters, requirements and standards that meet or exceed the Minimum Design Review Standards. (b) The Master Developer or the Design Review Board may, in accordance with the terms and conditions of the Design Covenant and the Design Review Guidelines, as applicable, amend the approved and adopted Design Review Guidelines. Amendments to the Design Review Guidelines that do not conflict with any term of or are more stringent than any Development Standard established by this PUD Guide shall not require an amendment to this PUD Guide, and shall not require review by the Town. Amendments to the Design Review Guidelines which are less stringent than any Development Standard established by this PUD Exhibit A 999369.16 52 Guide may require an amendment to this PUD Guide which, in the discretion of the Director, may be processed formally or administratively pursuant to Section H of this PUD Guide. (c) The Design Review Board shall have primary responsibility for enforcing the Design Review Guidelines. If Council determines in good faith at a public hearing after notice to the Design Review Board (which notice shall be in writing and given no later than twenty (20) days prior to the date of such hearing by certified mail addressed to the President of the Design Review Board) that the Design Review Board is not properly enforcing the Design Review Guidelines, Council shall provide written notice to the Design Review Board of such determination. Such notice shall state with particularity the alleged failure and Council’s factual findings supporting such determination. If the Design Review Board fails to correct the stated deficiency within thirty (30) days after receipt of such notice, Council may, but shall not be obligated to, enforce the Design Review Guidelines with respect to the matters addressed in the notice. (d) Nothing in this Section I.12 shall be deemed to prevent Master Developer and/or the Design Review Board from appealing to the courts the disapproval of the Design Review Guidelines by the Town or enforcement of the Design Review Guidelines, or from pursuing in the courts any remedy otherwise available at law or in equity. 13. Natural Resource Protection. Development within The Village (at Avon) PUD shall comply with Section 7.28.100 of the Development Code, except as set forth in this section or expressly exempted in Exhibit G to this PUD Guide. Notwithstanding any contrary provision of the Municipal Code, as in effect from time to time, development within The Village (at Avon) PUD may occur on slopes of thirty percent (30%) or greater for public improvements, other infrastructure improvements, streets, drive lanes, driveways, utilities and similar improvements. 14. Residential Fire Suppression Systems. All single-family and multi-family residential structures constructed in Planning Area RMF-1 and in Planning Area K shall include fire suppression systems as required by applicable Eagle River Fire Protection District regulations, as may be amended from time to time and applied on a uniform and nondiscriminatory basis within the Town. With Respect to Planning Area RMF-1 and Planning Area K, the Town may enforce the applicable Eagle River Fire Protection District regulations but may not adopt or apply any residential fire suppression system regulations which are more stringent or inconsistent with residential fire suppressions system regulations adopted by the Eagle River Fire Protection District for Planning Area RMF-1 and Planning Area K. 15. Park, Recreation and Trail Access. All parks, recreation and trails facilities the construction, maintenance and operation of which the “Districts” (as described in Exhibit G of the Development Agreement) finance shall be open, on a uniform and nondiscriminatory basis, to all residents of the Town at such times and subject to such rules and regulations as the Districts shall prescribe. Additionally, the Master Developer shall facilitate, but shall have no obligation to construct or install, non-motorized access through the Property to off-site trail systems as follows, which obligations shall constitute the sole and exclusive off-site trail connection requirements for The Village (at Avon) PUD and expressly supersede any off-site trail connection regulations set forth in the Municipal Code: Exhibit A 999369.16 53 (a) Master Developer previously has provided a public trail head location in Planning Area RMF-2, connected by a trail to United States Forest Service property located north of Planning Area OS1, and Master Developer’s obligations with respect to public trail connectivity between Planning Area RMF-2 and Planning Area OS1 have thereby been fully satisfied as of the Effective Date; and (b) Master Developer shall facilitate, but shall not have the obligation to construct, a trail, sidewalk and/or road to be oriented on a generally east-west axis, and which shall cross the Property solely through Planning Areas I, J, P4, RMF-2 and the most southerly quarter section of Planning Area K. Master Developer shall determine in its sole discretion the location within the Property of such trail, sidewalk and/or road. 16. Affordable Housing Plan. Master Developer will provide for affordable housing within the Property at locations determined by Master Developer in its sole discretion and in accordance with the following terms, conditions and requirements set forth in this Section I.16. The obligations set forth in this Section I.16 shall constitute the sole and exclusive affordable housing requirements for The Village (at Avon) PUD and expressly supersede any affordable housing regulations set forth in the Municipal Code. (a) Master Developer will provide a total of 500 affordable housing units, or assure that the same are supplied by others, as set forth below. As of the Effective Date, Master Developer has provided 244 affordable housing units, and, therefore, Master Developer’s obligation after the Effective Date is to provide the remaining 256 affordable housing units [500 – 244 = 256]. (b) Priority in the sale and rental of the units will first go to people employed in the Property, second to people employed in the Town outside of the Property, and third to people employed in Eagle County outside of the Town; provided, however, that within Planning Area RMF-2 the priority in the rental of units qualified as required affordable housing units will first go to people employed in the Town and second to people employed in Eagle County outside of the Town. (c) For-sale units will be targeted to households earning 80% - 120% of the Eagle County Median Family Income (the “ECMFI”) as determined by the Department of Housing and Urban Development guidelines or by the Town in the event such guidelines cease to be maintained by the Department of Housing and Urban Development. Not more than fifty percent (50%) of such units may be targeted for sale to households earning 120% of the ECMFI. (d) For-sale units shall be deed restricted to require the following: (i) The sale of units shall be restricted to “Qualified Buyers,” defined as follows: (1) An owner who occupies the unit as his or her primary place of residence; (2) An owner who is a full time employee working at least thirty hours per week in the Town or Eagle County, or a retired person who has Exhibit A 999369.16 54 been a full time employee in the Town or Eagle County a minimum of four years immediately prior to his or her retirement, or a person having a medical disability who has been a full time employee in the Town or Eagle County a minimum of two years immediately prior to his or her determination of disability, or the spouse or dependent of any such persons who resides with them; (3) An owner whose household income does not exceed 120 percent of the ECMFI; and (4) An owner whose total current family net assets are not in excess of $225,000.00 ($337,500.00 for a retired person) or whose total current family net assets have not been in excess of $225,000 ($337,500 for a retired person) during the two years preceding if the same were transferred or disposed of to confer eligibility hereunder. The foregoing limitations shall annually be adjusted for inflation on the basis of the applicable Consumer Price Index (the “CPI”). For purposes of this subparagraph (4), the CPI shall mean Series ID: CUUSA433SA0 (All Urban Consumers; Not Seasonally Adjusted; Denver- Boulder-Greeley, CO; All items; Base Period 1982-84=100; 1st half of 1998 = 160.5). (ii) An annual price appreciation cap of 3%, or such higher percentage as the Town Council may approve from time to time, will be established. (iii) If and when an owner moves out of his or her unit, he or she will be required to sell his or her unit to Master Developer (which unit shall be resold or rented by Master Developer in accordance with this deed restriction) or a Qualified Buyer. (iv) The rental units will be targeted to households earning between 50% - 80% of the ECMFI. Rents shall not exceed 30% of the tenant’s monthly income, adjusted for household size, including utilities, for which allowances are determined annually by the Colorado Housing Finance Agency. (v) Capital improvements to a for-sale unit may be made up to ten percent (10%) of the original purchase price of the unit every ten (10) years. No restrictions on capital improvements shall be placed on rental units. (vi) In addition to the annual price appreciation, real estate commissions not to exceed three percent (3%) and closing costs shall be allowed for re-sales of for-sale units after the initial sales of such for-sale units by the Master Developer. (vii) First time home buyers shall be exempt from Real Estate Transfer Fees as set forth in the Development Agreement. 17. Provision of Certain Amenities. (a) Community Park (Planning Area P3). Exhibit A 999369.16 55 (i) Construction of the initial fifty percent (50%) of the community park shall be commenced prior to the date that the Town’s obligation arises to issue a certificate of occupancy for the Dwelling Unit constituting the 601st Dwelling Unit within the Property that otherwise is eligible to receive a certificate of occupancy. (ii) Construction of the second fifty percent (50%) of the community park shall be commenced prior to the date that the Town’s obligation arises to issue a certificate of occupancy for the Dwelling Unit constituting the 1200th Dwelling Unit within the Property that otherwise is eligible to receive a certificate of occupancy. (iii) Once commenced, construction of the improvements contemplated in (i) and (ii) above shall be prosecuted with due diligence in accordance with sound construction practices. (b) Pocket Parks (Planning Areas P1 and P2): (i) As of the Effective Date, the Master Developer and the Developer Affiliates have fully satisfied all obligations with respect to provision of a pocket park within Planning Area P2. (ii) The Master Developer and/or Developer Affiliates shall dedicate to the Town a pocket park generally comprising Planning Area P1 contemporaneously with the Town’s approval of the first Final Plat within Planning Area C, provided that any and all improvements to and within Planning Area P1 shall be the sole responsibility of the Town. (c) Additional Parkland Dedication. As and when set forth in [Section 3.8(d)] of the Development Agreement, Master Developer and/or the Developer Affiliates shall dedicate certain additional parkland to the Town comprising 5.8 acres in the aggregate within Planning Areas K, J and I; provided however, Master Developer and/or the Developer Affiliates may, in their sole discretion, dedicate any or all of such additional parkland in Planning Areas A, C and/or D, which dedicated parkland may be adjacent to Planning Area P1 resulting in the enlargement or widening of Planning Area P1. Unless waived by the Director, such parkland shall comply with the following minimum requirements: (i) Minimum one quarter (1/4) acre in size; (ii) Centrally located within, adjacent or to neighborhoods served; (iii) Sited to provide for public surveillance from adjacent or nearby streets; (iv) Accessible from the surrounding neighborhoods by sidewalks and/or trails; and (v) Unless dedicated for linear park purposes (i.e., multi-use trails, bikepaths, etc.), at least fifty percent (50%) of the dedicated parkland shall be well- drained and level. Exhibit A 999369.16 56 (d) Planning Area B. (i) Contemporaneously with the Effective Date and as contemplated by the Settlement Term Sheet, the Town has approved a Final Plat for Planning Area B and Traer Creek-RP has executed and delivered to the Town a special warranty deed for the purpose of conveying to the Town fee simple ownership of Planning Area B, subject to the terms and conditions set forth in the special warranty deed and further subject to compliance with all applicable terms, conditions, regulations and requirements of this PUD Guide and the Design Covenant. (ii) At such time as the Town determines desirable, the Town shall be responsible for the cost of all design, construction, operation and maintenance of improvements within or upon Planning Area B. All such Uses and improvements within or upon Planning Area B shall be subject to review and written approval of the Design Review Board. (iii) As and when Master Developer determines it to be necessary or desirable in connection with development within Planning Areas that abut or are adjacent to Planning Areas B and upon submittal of an Application for such purposes, the boundaries of Planning Area B shall be modified pursuant to the administrative platting procedures set forth in Section G of this PUD Guide, subject to the following conditions: (1) The Town has not previously constructed improvements within or upon Planning Area B that make such modifications impossible or that would cause such modifications to unreasonably interfere with the Town’s operation and use of such previously constructed improvements; (2) Such modifications shall not result in a reduction in the aggregate acreage of Planning Area B without the Town’s written consent; (3) Concurrently with recording such Final Plat, the Town and the Applicant(s) shall exchange special warranty deeds conveying the applicable modified areas to the appropriate grantee, subject to matters of record and deed restrictions, if any, reasonably acceptable to the applicable grantee; and, (4) Such modifications may be accomplished as part of an Final Plat that establishes Lots or Blocks with respect to the adjacent or abutting Planning Area(s), in the discretion of the Applicant. Exhibit A 999369.16 A-1 EXHIBIT A Legal Description Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 795007; Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 898173; Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon) Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 796831; Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776; and Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 200712166. TOGETHER WITH THE FOLLOWING PARCEL (OS5): That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line, described as follows: Beginning at the N 1/4 corner of said Section 17; thence S8923'36"E 526.76 feet, along the northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad; thence, departing said northerly line of Section 17, the following two courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks: (1) S8036'27"W 267.66 feet; (2) 263.93 feet along the arc of a curve to the right, having a radius of 2486.03 feet, a central angle of 0604'58", and a chord which bears S8338'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N0020'55"W 78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (OS6): That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and north of the centerline of the Eagle River, described as follows: Exhibit A 999369.16 A-2 Beginning at the Northeast corner of said Section 17; thence S0141'49"E 96.93 feet, along the easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said easterly line, S0141'49"E 73.07 feet, to the centerline of said Eagle River; thence the following four courses along said centerline (Filum aquce): (1) N8924'49"W 1037.9 feet; (2) N8607'49"W 472.00 feet; (3) N8929'49"W 538.00 feet; (4) S8233'11"W 595.15 feet, to the westerly line of said NE 1/4; thence N0020'55"W 49.18 feet, along said westerly line to the southerly right-of-way line of the Denver & Rio Grande Western Railroad; thence, departing said westerly line of Section 17, the following five courses along the southerly right-of-way line of the Denver & Rio Grande Western Railroad, said southerly right-of-way line being parallel with and 50 feet southerly of the centerline of the existing railroad tracks: (1) 279.72 feet along the arc of a curve to the left, having a radius of 2586.03 feet, a central angle of 0611'51", and a chord which bears N8342'23"E 279.58 feet; (2) N8036'27"E 350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of 3171.27 feet, a central angle of 1224'07", and a chord which bears N8648'31"E 685.10 feet; (4) S8659'25"E 1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a radius of 2549.33 feet, a central angle of 0231'46". and a chord which bears S8543'31"E 112.53 feet, to the True Point of Beginning, containing 5.28 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL): Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the Department of the Interior General Land Office in Washington, D.C., described as a whole as follows: Beginning at the Northwest corner of said Section 8; thence the following four courses along the northerly line of said Section 8: (1) N8840'41"E 1379.49 feet, to the W 1/16 corner of said Section 8 and Section 5 of said Township and Range; (2) N8840'41"E 1379.49 feet, to the 1/4 corner of said Sections 8 and 5; (3) N8842'58"E 1385.36 feet, to the E 1/16 corner of said Sections 8 and 5; (4) N8842'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and Section 4 of said Township and Range; thence the following four courses along the northerly line of said Section 9: (1) N8329'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4; (2) N8329'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N8324'12"E 1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4) N8324'12"E 1386.30 feet, to the corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the following two courses along the northerly line of said Section 10: (1) N8639'24"E 1381.29 feet, to the W 1/16 corner of said Sections 10 and 3; (2) N8639'24"E 1299.94 feet; thence, departing said northerly line, S0134'07"W 2699.66 feet, to the east-west centerline of said Section 10; thence, along said east-west centerline, S8632'23"W 1304.06 feet, to the W 1/16 corner of said Section 10; thence S0132'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, to the SW 1/16 corner of said Section 10; thence S8632'47"W 1384.91 feet, along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9; thence S7710'15"W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, to the SE 1/16 corner of said Section 9; thence S0133'02"W 1475.32 feet, along the easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and Section 16 of said Township and Range; thence S7220'31"W 1450.43 feet, along the southerly line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N0134'18"E 1601.52 feet, to the CS 1/16 corner of said Section 9; thence S8607'30"W 1378.19 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said Section 9; thence S0133'13"W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of Exhibit A 999369.16 A-3 said Section 9, to the W 1/16 corner of said Sections 9 and 16; thence N89°55’04”W 1371.96 feet, along the southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9, 16, and 17 of said Township and Range; thence N01°32’00”E 3.82 feet, along the westerly line of Section 9, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks; thence the following two courses along said northerly right-of-way line: (1) 104.48 feet along the arc of a curve to the left, having a radius of 2649.33 feet, a central angle of 02°15’34”, and a chord which bears N85°51’36”W 104.47 feet; (2) N86°59’25”W 1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00°51’07”E 1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8; thence N8954'54"W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to the CS 1/16 corner of said Section 8; thence N8958'35"W 1366.46 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence S0001'37"E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the northerly right-of-way line of Interstate Highway No. 70, as described in the deed recorded in Book 223 at Page 982 in the office of the Eagle County, Colorado, Clerk and Recorder; thence the following ten courses along said northerly right-of-way line: (1) N6530'20"W 249.79 feet; (2) N7847'50"W 317.2 feet; (3) N8308'20"W 506.7 feet; (4) 772.2 feet along the arc of a curve to the right, having a radius of 1462.0 feet, a central angle of 3015'52", and a chord which bears N5457'56"W 763.3 feet; (5) N3437'50"W 331.1 feet; (6) N3444'20"W 368.5 feet; (7) 804.9 feet along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle of 2527'04", and a chord which bears N5129'50"W 798.3 feet; (8) N6824'50"W 399.7 feet; (9) N4947'20"W 213.6 feet; (10) N7020'50"W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7; thence the following two courses along said northerly line: (1) N8950'40"E 1194.46 feet, to the CE 1/16 corner of said Section 7; (2) N8950'40"E 1378.25 feet, to the 1/4 corner of said Sections 7 and 8; thence the following two courses along the westerly line of said Section 8: (1) N0010'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N0010'53"W 1369.10 feet, to the point of beginning. EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776. Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3 area subtracted. All of the above-described Property containing 1,780 acres, more or less. Exhibit A 999369.16 B-1 EXHIBIT B PUD Master Plan [to be inserted] Exhibit A K I 2 OS1 A J C D F RMF2 H 1 H 103 97 RMF1 110 104 P3 101 87 102 108 107 98 OS3 OS2 86 91 109 J 81 82 88 G 95 93 94 E 106 B 76 105 100 79 92 96 K 122 OS2 90 78 113 99 85 84 83 89 114 77 119120 75 121 112 111 53 31 6 PF1 41 3 4 118 16 5 115 18 116 117 9 73 32 78 80 40 72 42 37 39 62 11 25 61 33 38 14 48 13 28 70 36 64 60 2729 7151 12 30 23 OS7 P1 OS6 OS4 15 20 67 17 35 19 5649 66 P2 65 68 5747 22 21 63 74 43 10 50 55 34 5946 24 69 44 5854 52 26 45 PF3 PF2 OS5 This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 05/24/12 The Village (at Avon) PUD Master PlanFormal Amendment Two - Version 11 DRAFTTown of Avon, Colorado TOWN CERTIFICATE (PUD MAP AMENDMENT) WITNESS MY HAND AND SEAL OF THE TOWN OF AVON BY MAYOR: _________________________________ ATTEST: TOWN CLERK _________________________________DRAFT DRAFTA - Village Center Mixed Use Project B - Community Facilities C - Village Residential Mixed Use Project D - Village Residential Mixed Use Project E - School F - Regional Commercial Mixed Use Project G - Regional Commercial Mixed Use Project H - Regional Commercial Mixed Use Project I - Regional Commercial Mixed Use Project J - Regional/Neighborhood Commercial and Residential Mixed Use Project K - Hillside Residential RMF1 - Residential Multi Family RMF2 - Residential Multi Family OS - Natural Open Space OS1 - OS7 P1 - Parkland P2 - Parkland P3 - Parkland PF1 - Public Facility PF2 - Public Facility PF3 - Public Facility Constructed Roads Temporary Roads Conceptual Roads Nottingham Puder Ditch Parks, Open Space and Public Facilities Roads and Hydrology Planning Areas --------------------------------------------------------------------------SUBTOTAL 180 155 4 --------------------------------------------------------------------------SUBTOTAL 0 LAND USE Acres 43 ------------------------------------------------------------------------------------------------------------SUBTOTAL 1599 24 ---------------------------------------------------------------------------------------------------PROJECT TOTAL 1779 16 13 4 26 57 38 USFS USFS 1303 27 39 1 1 NOTES 1. Until such time as a secondary road access to Planning Area I is constructed and open for use, (a) building permits may be issued for no more than 280 dwelling units in Planning Area I, provided that "Primary/Secondary Dwelling Units" (as defined in The Village (at Avon) PUD Amended and Restated PUD Guide) situated on the same lot shall be considered one dwelling unit; and (b) no building permits may be issued for Commercial Uses or Industrial Uses. 2. Pursuant to Section 7.16.140(d) of the Avon Municipal Code: “Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended and Title 7, Chapter 16 of this Municipal Code, as amended.” 3. A minimum of 29.5% of the acreage of Planning Area K shall be reserved and maintained as open space, and such open space shall be subject to the development standards for open space planning areas as set forth in Section E.14 of The Village (at Avon) PUD Amended and Restated PUD Guide. 4. The street and road alignments depicted hereon are either designated as either permanent, temporary (not permanent and intended to be replaced in the future) or conceptual alignments. Until such time as made permanent or temporary in connection with an approved final plat, the conceptual alignments are non-binding and provided only for illustrative purposes to show one of various potential alignments, general circulation patterns, vehicular ingress and egress to and from planning areas and traffic connectivity to adjacent property outside of The Village (at Avon). 5. The layout, location, size and number of lots within Planning Area K as depicted hereon are conceptual, non-binding and providedonly for illustrative purposes. The precise layout, location, size and number of lots and the precise location of the building envelopefor each lot within Planning Area K will be as established by and reflected in the final plat creating the lot, and shall be based on varioussite specific features of the lot such as the topography, grade, natural vegetation and similar matters, but shall generally comply with thebuilding envelope requirements set forth in Section E.11(c) of The Village (at Avon) PUD Amended and Restated PUD Guide unless suchcompliance is determined to be impractical or unreasonable. 6. The layout and location of the Future Bridge and the Future Pedestrian Path as depicted hereon are conceptual, non-binding and provided for illustrative purposes only. There shall be no obligation to construct the Future Bridge or the Future Pedestrian Path, provided that if the Future Bridge and/or the Future Pedestrian Path shall be constructed, the precise layout and location of the same will be established by the building permit and/or construction plans, as applicable, approved by the Town of Avon for such construction. 7. See Exhibit F of The Village (at Avon) PUD Amended and Restated PUD Guide for street types and standards applicable to the roads depicted hereon.0 1,200600Feet ROW ROW 4 5 Acres 2 13 4 ROW K FutureBridge Eagle River Future PedestrianPath 999369.16 C-1 EXHIBIT C The Village (at Avon) Parking Regulations Exhibit A 999369.16 C-2 Exhibit A 999369.16 C-3 Exhibit A 999369.16 C-4 Exhibit A 999369.16 C-5 Exhibit A 999369.16 C-6 Exhibit A 999369.16 C-7 Exhibit A 999369.16 D-1 EXHIBIT D Wildlife Mitigation Plan 1. Introduction. This Wildlife Mitigation Plan was developed to avoid, minimize, and mitigate wildlife impacts resulting from The Village (at Avon) development proposal. The specifics contained herein have evolved from existing wildlife information, results of field surveys, discussions, meetings, and site visits with Colorado Division of Wildlife (“CDOW”) representatives, and meetings and discussions with staff and professionals representing owners. 2. Wildlife Mitigation Plan. The Master Developer and Developer Affiliates, their respective successors or assigns, including the possibility of one or more homeowners or property owner association(s), and/or one or more public improvement companies (any of which shall be referred to as an “Association”), which have been or may be formed and which may undertake the Master Developer’s and Developer Affiliates’ responsibilities under this Agreement, hereby agree to the following stipulations in conjunction with The Village (at Avon) PUD. 3. Winter Range Compensation. (a) To compensate for the Elk Winter Range habitat loss associated with the development, a private The Village (at Avon) Wildlife Trust Fund (“Fund”) shall be established at or before the issuance of the first building permit associated with residential development north of I-70. Interest generated by this Fund shall be spent only in Game Management Unit 36 or 35 to benefit animals in the herd actually affected by winter range loss north of I-70. Furthermore, interest generated by this Fund shall only be used to actually implement enhancement efforts. The Fund shall not be used to pay for Fund administration, consultants, and other incidental expenses. Disbursement and use of funds shall be overseen by an Association. CDOW participation shall be requested at meetings where habitat enhancement is being considered. Fund disbursement may include payments to the CDOW or a similar trust fund (e.g., the Colorado Wildlife Heritage Foundation) to allow the CDOW to coordinate enhancement efforts in the Eagle Valley. This approach should help maintain the functional value of the affected winter range, (b) Fund principal shall be based on winter range losses associated with the development. At full build-out, The Village (at Avon) development would encroach upon 155 acres of native habitat on the property designated elk winter range. Compensation is based on (a) the loss of 155 acres of winter range; (b) the need to treat (via aerial fertilization) 1.57 acres of habitat once every three years in perpetuity to offset each 1.0 acre of habitat affected; (c) current fertilization costs of $65.00/acre (in 1998 dollars); and (d) an interest rate of 5%, which would require $5,275.98 to implement the enhancement in 1998. Fund principal required to generate this amount of interest every three years would require a one-time payment of principal totaling $105,519.70 (in 1998 dollars). This amount shall be deposited into the Fund upon the Fund’s establishment. 4. Setbacks. Exhibit A 999369.16 D-2 (a) A 100-foot setback from the closest edge of Building Envelopes of conceptual Lots 76, 78, 80, 81, 82, 86, 87, 96, 97, 109, 110, 119 and 120 adjacent to U.S. Forest Service lands along the northern property boundary of Planning Area K to both buffer residential activities from public lands and public activities (e.g., principally hunting and other recreational uses) from the adjacent residences shall be provided. (b) The stream setback provisions set forth in Section J.13 of The Village (at Avon) PUD shall apply to The Village (at Avon). Impacts to jurisdictional wetlands shall be protected by the Clean Water Act. 5. Building Envelopes. (a) Building envelopes and rules governing the location and distribution of all structures, surrounding yards, and all disturbance to native vegetation, with the exceptions of utilities, driveways, etc., for single-family Residential Uses north of I-70 are set forth in Section D (Development Standards) of The Village (at Avon) PUD and are governed by The Village (at Avon) PUD. It is the intent that Building Envelopes in Planning Area K be clustered to concentrate disturbance areas and leave large blocks of undeveloped habitat. This measure helps insure that development follows a design minimizing habitat losses and facilitating continued wildlife movements through, and use of, the Property. No vegetative manipulation shall be permitted outside of designated Building Envelopes except as allowed by the PUD Guide and/or where manipulation is required as part of any valid wildlife enhancement program, as authorized to reduce wildfire potential, or for access roads, driveways, parking areas and utility installation. The objective of this measure is to minimize the amount of natural habitat loss and maintain existing vegetation buffering visual and acoustic disturbances from sensitive adjacent habitats. Homeowners shall be educated to appreciate and maintain the existing vegetative community, particularly forests and shrubby areas which provide critical wildlife cover and forage values. (b) Upon conceptual Lots 90-113 any required tree/shrub clearing for wildfire mitigation shall be contained within the designated envelope. (c) The area of fertilized, irrigated landscaping each Dwelling Unit is permitted to have shall be restricted to ≤ 5,000 square feet. Residents shall also be educated to recognize that they have moved into wildlife habitat, that some wildlife shall have strong compulsions to eat what homeowners plant, and that the CDOW shall not be liable for wildlife damage to landscaping. 6. Open Space. (a) Approximately 483 acres (OS-1 and a portion of Planning Area K as set forth on the PUD Master Plan) north of I-70 have been designated as Open Space. These areas include some of the most valuable winter range, migration corridors, and other important wildlife habitat on the Property. It is the intention that OS-1 and at least 384 acres of Planning Area K function primarily as wildlife habitat. Other subdivision uses may occur in these areas, however, these areas shall be preserved primarily in their undeveloped condition and managed to further enhance wildlife values. Exhibit A 999369.16 D-3 (b) In addition, the portion of Planning Area K that shall be located within future Lots for single family Residential Use but outside of the future designated Building Envelopes of those Lots shall function as private Open Space. To facilitate habitat management and enhancement on these Lots and as an additional measure precluding development outside of envelopes, areas on all such Lots outside of designated Building Envelopes and easements north of I-70 shall be protected as Open Space under provisions of The Village (at Avon) protective covenants to be recorded in connection with future subdivision of Planning Area K. 7. Main Deer Movement Corridor. The Village (at Avon) agrees to maintain a deer movement corridor of a minimum width of 800 feet between the western edge of the Building Envelope for conceptual Lots 112 and 113 and the eastern edge of the Building Envelopes for conceptual Lots 108, 110 and 111 as depicted on the PUD Master Plan. No amendment to the location of these Building Envelopes shall be permitted that results in any encroachment into this 800’ wide designated movement corridor. 8. Roads North of Interstate Highway 70. (a) Road design and use through portions of The Village (at Avon) has the potential to disrupt migratory elk movements, local elk movements, and affect habitat use. The posted speed limit (25 mph) is generally slow enough to avoid most wildlife mortality; however, residents, guests, and contractors frequently exceed posted speed limits in similar, adjacent residential developments. The Village (at Avon) roads shall be designed to incorporate features requiring low vehicle speeds to reduce road-kill mortality and facilitate migratory movements across roads. (b) Road widths shall be as set forth in Exhibit E (Street Standards) to the PUD Guide to force slower operating speeds and adjusted to the number of residences being served by the road. There shall be no bike lanes or paved road shoulders beyond conceptual Lot 84. Cut and fill slopes in the vicinity of the main migration corridor and along gulches may require additional grading or design to facilitate wildlife movements. Any necessary guard rails installed along road sections within wildlife corridors shall be designed to allow wildlife movements. Standard guard rails restrict wildlife movements and can increase wildlife-vehicle collisions. Signage providing for restricted access to all single family Residential Uses within Planning Area K shall be installed. 9. Trails. (a) With the exception of public access through the Property along an existing trail through OS-1, there shall be no public access through the Property to U.S. Forest Service lands to the north. Public access and access for The Village (at Avon) along the trail through OS-1 shall be limited to foot traffic only. Seasonal restrictions shall be associated with this trail to ensure use is compatible with important wildlife use on and adjacent to the Property (see below). (b) No other trails shall be developed within the Protected Wildlife Habitat (defined below in Section 10) on the Property without the agreement of the CDOW, except for Exhibit A 999369.16 D-4 an access trail/path/emergency vehicle access connecting Planning Area RMF-2 to OS-2 and P- 3. 10. Seasonal Use Restrictions. Seasonal use restrictions shall be imposed and enforced on homeowners, guests, employees, and the public to optimize wildlife use on and adjacent to the Property. (a) General Protected Wildlife Habitat Restrictions. Recreational uses of OS- 1 and the Open Space areas of Planning Area K (hereinafter “Protected Wildlife Habitat” or “PWH”) shall be restricted during the winter range occupancy period extending from December 15 to April 15. Recreational use, including nordic skiing, hiking, bicycling, equestrian use, etc., within these areas should be restricted from the above defined PWH from December 15 to April 15. (b) Additional Restrictions Within the Main Deer Movement Corridor. (i) In addition to the seasonal, winter range-related restrictions presented above in Section 10(a), road and home construction activities east of Traer Creek, within the designated 800’ wide main deer movement corridor, shall be restricted to reduce conflicts with deer migration. Road construction within the designated 800’ wide corridor is prohibited during the spring (May 1 to June 15 [dates inclusive]) and fall (October 1 to December 1 [dates inclusive]) migration periods. The purpose of this measure is to eliminate disturbances (i.e., human activity) and barriers (e.g., incomplete cut and fill slopes) within the migration corridor that could alter movements. (ii) Home construction on conceptual Lots 105-112 could occur throughout the year, however, daily outdoor construction periods on individual lots (excluding construction worker travel (i.e., arrival and departure) shall be restricted to the period between 6:30 a.m. and 5:30 p.m. hours during spring migration (defined above) and 7:30 a.m. and 4:15 p.m. hours during fall migration (defined above). This shall facilitate the largely nocturnal and crepuscular migration to occur through the existing corridor with reduced human disturbance. (c) Access Restrictions to U.S. Forest Service Lands. To protect spring deer migration and elk winter range, migration, and calving values on U.S. Forest Service lands north of The Village (at Avon), the public trail running through OS-1 shall be closed to all use from December 15 to June 30, dates inclusive. (d) Enforcement. These seasonal/areal restrictions shall be enforceable by the Master Developer, the Developer Affiliates and/or Association(s), as applicable. Homeowners shall also be educated about these closures on and adjacent to the Property via a “Living with Wildlife” homeowners book. Furthermore, because these conditions are part of The Village (at Avon) PUD, the Town, CDOW, and U.S. Forest Service may also enforce these restrictions, within their respective jurisdictions. 11. Reclamation/Landscaping. Exhibit A 999369.16 D-5 (a) Native wildlife habitats disturbed by construction activity outside of Building Envelopes in PWH should be reseeded or replanted with those native plant species originally present. Where service access is required, the re-planting of trees could be prohibited from utility corridors. Re-planting along road shoulders can exclude trees and shrubs to maximize vertical and horizontal sight-distances and reduce the probability of road-killed wildlife. Vehicle speeds within the development on roads north of I-70 should be slow enough that road shoulders could be reseeded with plants palatable to big game without increasing the probability of road-kills. (b) Homeowners are strongly encouraged to landscape with native plant species to avoid wildlife damage. The CDOW shall not be liable for wildlife damage to landscaping. The Design Review Board shall provide a list of suitable landscaping materials, their maintenance and protection, to homeowners. 12. Dogs and Pet Control. (a) Owners of each residential lot shall be permitted to harbor up to two dogs and offspring up to three months old. Residents shall be prohibited from harboring dogs outside on their property unless they have adequate facilities (i.e., a fenced yard, dog run, or kennel) to contain the animals. Enclosed runs must be located immediately adjacent to the home, within the applicable Building Envelope, and shall not exceed 1,000 square feet. Homeowners are encouraged to completely cover runs (including tops) to protect dogs from possible mountain lion predation. If facilities are inadequate to contain the resident’s dog(s), the animals shall be immediately removed from the subdivision until adequate structures can be built. (b) At no time are dogs to be allowed to run freely anywhere on the Property. When dogs move beyond their owner’s property line, the dog must be controlled by a leash of no more than 12 feet in length, under the direct control of its owner or authorized representative. Visitors shall be discouraged from bringing dogs on-site. (c) The Master Developer, Developer Affiliates and/or Association(s), as applicable, shall be responsible for enforcing the dog and pet covenants set forth herein. Stray dogs may also be controlled by the Town and CDOW. Homeowners not in compliance with these dog restrictions shall be responsible for any and all costs incurred by the Master Developer, Developer Affiliates, Association(s), the County of Eagle and/or CDOW for enforcing these provisions. (d) Homeowners should be educated that they should not feed dogs and other pets outside their homes, including decks, to avoid attracting nuisance wildlife or predators. (e) Contractors shall be prohibited from bringing dogs onto the Property, even if they would be kept inside vehicles. 13. Fencing. (a) Fencing within The Village (at Avon) north of I-70 shall be restricted to facilitate local and migratory wildlife movements, optimize habitat availability, and reduce wildlife mortality. Fencing approval shall be under the purview of the Design Review Board. Exhibit A 999369.16 D-6 Homeowners shall be permitted a 6’ high privacy fence to enclose up to 2,500 square feet, provided it is immediately adjacent to the house and it is entirely within the designated Building Envelope, unless specifically approved by the Design Review Board. All other fencing shall be prohibited. Where fencing is required to be installed to restrict domestic livestock on adjacent properties, it shall be compatible with wildlife movements and conform to the following specifications: (i) Wildlife compatible fencing is permitted to a maximum of 3 strands of wire (smooth wire preferred) or 3 rails. Rails shall not be more that 4 inches tall. (ii) The top rail or wire strand shall not be higher than 42 inches above mean ground level. With the exception of a split rail design, a rail fence shall not have a top rail oriented horizontally whose width perpendicular to the ground exceeds 1 inch. This measure is to prevent snow accumulation on the top rail from restricting big game movements. (iii) The middle wire strand shall be no higher than 30 inches above mean ground level, providing a 12 inch kickspace below the top strand. (iv) The bottom rail or wire strand shall be at least 18 inches above mean ground level, to provide sufficient clearance for passage of elk calves, deer fawns, and other wildlife. (b) Fencing may be subject to more restrictive provisions as stated in the Design Guidelines. 14. Bears and Mountain Lions/Trash Removal/Nuisance Wildlife. (a) Bear and Related Issues. The following measures shall be required to reduce potential bear problems: (i) There shall be no outside storage of any trash or garbage, no matter how briefly (e.g. overnight), at any Dwelling Unit or anywhere within the development, unless it is contained within individual bear-proof containers which meet North American Bear Society, CDOW or U.S. National Park Service specifications. (ii) Prior to disposal, any refuse that might attract bears should be kept within the garbage in a suitable receptacle with a tight-fitting lid. Refuse should not be kept within detached garages or sheds because these structures are more likely to be broken into by bears. Trash containers should be taken to the collection points (e.g., the end of the driveways) the morning of collection and not put out the night before. (iii) There shall be no dumps or underground disposal of refuse within The Village (at Avon). Buried garbage may attract bears. (iv) Residents should be discouraged from using a garden compost pile, unless the compost pile is bear-proof, meeting North American Bear Society, CDOW or Exhibit A 999369.16 D-7 U.S. National Park Service specifications. Residents shall also be educated that household and garden waste contributions to compost piles compose the materials that can attract bears and other nuisance wildlife (e.g. skunks), creating conflicts. Composted yard waste consisting of leaves, grass, small branches, etc. do not usually attract bears. (v) Pets shall not be fed outside. Bowls of pet food left on the back deck may attract bears and other predators (e.g., coyotes) and nuisance species (e.g., skunks) of wildlife. Some of these wildlife species may carry diseases that can be transmitted to pets. (vi) With the exception of bird feeders, the feeding, baiting, salting, or other means of attracting wildlife to individual yards is illegal and shall be prohibited within the Property. (vii) Homeowners shall be educated about bears and other local wildlife via the CDOW’s brochure entitled “Living with Wildlife in Bear Country.” One copy of the brochure shall be provided to each homeowner at closing. (b) Mountain Lions. (i) All residents and perspective residents shall receive a copy of the CDOW’s brochure entitled “Living with Wildlife in Mountain Lion Country.” One copy of the brochure shall be provided to each homeowner at closing. (ii) With the exception of bird feeders, the feeding, baiting, salting, or other means of attracting wildlife to individual yards is illegal and shall be prohibited within the Property. 15. Horses. Except as may be permitted in the PUD Guide and except for pre- existing uses, there shall be no boarding of horses or other livestock, including but not limited to llamas, on individual Lots or community facilities within the Property. Any horses owned by residents of the Village (at Avon) shall be boarded off-site. Residents of The Village (at Avon) shall not be permitted a temporary “saddle-up” area, corral, or other fenced areas to allow horses to be kept overnight, over a weekend, or for any length of time on their Lot. 16. Wildlife Mortality on Local Roads. (a) Posted vehicle speed limits on proposed roads within The Village (at Avon) north of I-70 shall be as set forth in Exhibit E (Street Standards) to the PUD Guide. To reduce road mortality associated with speeding, road design is recommended (see Section 7 above) to force motorists to obey the speed limit. (b) The Village (at Avon) is also accessed by high speed roads, including I-70 and Highway 6, where moderate numbers of deer and elk are killed by vehicles each year. Obeying posted speed limits would not only reduce wildlife mortality, but would also reduce the risks of damage to personal property and injury to motorists. The Village (at Avon) residents should be educated about avoiding wildlife mortality on roads in any educational information that is developed. Exhibit A 999369.16 D-8 17. Hunting. Hunting is the primary management tool the CDOW uses to balance wildlife populations with available habitat. Inadequate hunter access and/or hunter harvest shall allow populations to grow, increasing game damage on the Property and adjacent properties. Hunting by authorized residents of The Village (at Avon) or guided guests, could continue on the Property as long as safely allowed. However, it is required that all prospective hunters must receive written permission to hunt a specified area by the Master Developer or its designee. Secondly, the Master Developer shall decide what type and level of hunting, if any, is compatible with development, what areas may be safely hunted, and when all hunting on the Property shall be terminated as the Property builds out. 18. Educating Residents. Homeowners shall be educated about wildlife issues within the Property by providing each homeowner one copy of this Wildlife Mitigation Agreement at the time of closing and copies of the CDOW bear and mountain lion brochures. Other wildlife- related education sources could include a “Living with Wildlife” book similar to that prepared for other surrounding subdivisions located in sensitive wildlife habitats. Exhibit A 999369.16 E-1 EXHIBIT E Minimum Design Guideline Standards Exhibit A 999369.16 E-2 Exhibit A 999369.16 E-3 Exhibit A 999369.16 E-4 Exhibit A 999369.16 E-5 Exhibit A 999369.16 E-6 Exhibit A 999369.16 E-7 Exhibit A 999369.16 E-8 Exhibit A 999369.16 E-9 Exhibit A 999369.16 E-10 Exhibit A 999369.16 E-11 Exhibit A 999369.16 E-12 Exhibit A 999369.16 F-1 EXHIBIT F Street Standards [Follows This Page] Exhibit A 999369.16 F-2 Exhibit A 999369.16 F-3 Exhibit A 999369.16 F-4 Exhibit A 999369.16 F-5 Exhibit A 999369.16 F-6 Exhibit A 99 9 3 6 9 . 1 6 F- 7 Exhibit A 99 9 3 6 9 . 1 6 F- 8 Exhibit A 99 9 3 6 9 . 1 6 F- 9 Exhibit A 99 9 3 6 9 . 1 6 F- 1 0 Exhibit A 99 9 3 6 9 . 1 6 F- 1 1 Exhibit A 99 9 3 6 9 . 1 6 F- 1 2 Exhibit A 99 9 3 6 9 . 1 6 F- 1 3 Exhibit A 99 9 3 6 9 . 1 6 F- 1 4 Exhibit A 99 9 3 6 9 . 1 6 F- 1 5 Exhibit A 99 9 3 6 9 . 1 6 F- 1 6 Exhibit A 99 9 3 6 9 . 1 6 F- 1 7 Exhibit A 99 9 3 6 9 . 1 6 F- 1 8 Exhibit A 99 9 3 6 9 . 1 6 F- 1 9 Exhibit A 99 9 3 6 9 . 1 6 F- 2 0 Exhibit A 999369.16 G-1 EXHIBIT G Municipal Code Provisions Not Applicable to The Village (at Avon) PUD 1. Development Code Provisions: (a) § 7.16.060(i) Lapse of a Final PUD (b) §§ 7.16.060(j)(1)(ii) & (iii) Revocation of a Final PUD (c) § 7.16.090 Design Review (d) § 7.16.100 Special Review Use (e) § 7.16.140(b)(2) Vested Property Rights Created (only the second sentence reading, “Amendments to any site specific development plan shall be subject to this Chapter and shall have a new vested property right as determined by the Town Council.”) (f) § 7.16.140(g) Forfeiture of Vested Property Rights (g) § 7.20.100 Employee Housing Mitigation (h) Select sections of Chapter 7.24, specifically listed as follows: § 7.24.040, § 7.24.050, § 7.24.060, § 7.24.070(e) (i) §§ 7.28.020(b)(4) & (5) Applicability and Location: Location and Ownership (j) § 7.28.020(e) Off-Street Parking (k) § 7.28.020(g) Computation of Parking and Loading Requirements (l) § 7.28.020(h) Off-Site Parking (m) § 7.28.050 Landscaping (n) § 7.28.060 Screening (o) § 7.28.070(2) & (3) Retaining Walls (p) § 7.28.090 Design Standards, provided that subsection (c)(5) shall apply (q) §§ 7.28.100(a)(3)(v), (x), (xiii)(D) & (xiii)(E) Natural Resource Protection (r) Chapter 15.30 (Outdoor Lighting Standards) of the Development Code (s) §§ 7.32.010(c)(2) & (6) Engineering Improvement Standards: Standards and Specifications Exhibit A 999369.16 G-2 (t) § 7.32.030(l) Engineering Improvement Standards: Streets; Grades, Curves, and Sight Distances (u) § 7.32.030(m) Engineering Improvement Standards: Streets; Cul-de-sacs (v) § 7.32.040(c) Paved Trail Design: Minimum Width (w) § 7.32.040(e) Paved Trail Design: Grades (x) § 7.32.080 School Site Dedication (Pursuant to [Section 3.8(a)] of the Development Agreement, Section 7.32.080 of the Development Code with respect to school site dedications) (y) § 7.32.090 Park Land Dedication (z) § 7.40 1041 Regulations 2. Other Municipal Code Provisions: (a) Chapter 3.40 Impact Fees (b) Chapter 8.32 Wildlife Protection (c) Chapter 15.28 Sign Code (d) Chapter 15.30 Outdoor Lighting Standards (e) Impact fees enacted or adopted after the Effective Date, the impacts of The Village (at Avon) being adequately mitigated by, among other matters, the payment of the impact fees set forth in [Section 3.9] of the Development Agreement. (f) Pursuant to Section I.16 of this PUD Guide, any affordable housing, attainable housing and/or employee workforce housing provisions of the Municipal Code. 3. Any other provision of the Municipal Code expressly superseded in whole or in part pursuant to any other provision of this PUD Guide. Exhibit A 999369.16 I-1 EXHIBIT H Definitions The definitions of words and phrases set forth in this Exhibit H expressly supersede any additional or conflicting definitions of the same words or phrases or same general intent as set forth in the Municipal Code and constitute the sole and exclusive definitions for the purpose of this PUD Guide and the interpretation, application and enforcement of this PUD Guide and related components of the Development Plan. When not inconsistent with the text, words used in the present tense include the future, words used in the singular number include the plural, words in the plural include the singular, and the masculine includes the feminine. The words “will” or “shall” are mandatory, and the word “may” is permissive. Accessory Building, Structure or Use means a subordinate Building, Structure or Use located on the same Lot (or on a contiguous Lot in the same ownership) on which the main Building, Structure or Use is situated, which is customarily incidental to that of the main Building or to the main Use of the Site, and which is reasonably necessary and incidental to the conduct of the Use of such Building, Structure or main Use. Administrative Subdivision Areas has the meaning set forth in Section G.1(a) of this PUD Guide. Accommodation Unit(s) means any room or group of rooms used primarily for transient lodging and accessible from common corridors, walks, or balconies without passing through another Accommodation Unit. Affected Building has the meaning set forth in Section I.9 of this PUD Guide. Affordable Housing Plan means the sole and exclusive affordable housing requirements for The Village (at Avon) PUD, as set forth in Section I.16 of this PUD Guide, which expressly supersede any additional or conflicting provisions of the Municipal Code. Agricultural Use means those agricultural activities commonly pursued in Eagle County including but not limited to the planting, cultivation and harvesting of crops, trees, grasses and similar crops used for production of hay and other animal feedstock, and the grazing of livestock; provided, however, that Animal Boarding, cultivation in connection with operation of a Medical Marijuana Business and large contained animal feeding operations (feed lots) and/or slaughter houses shall not be construed as an Agricultural Use. Animal Boarding means the operation of an establishment, excluding the operation of Kennels, in which domesticated animals other than household pets are housed, groomed, bred, boarded, trained or sold. Animal Boarding shall not be construed to be an agricultural Use eligible for being designated an approved Interim Use. Applicant means the Landowner of the real property comprising the Site for which an Application is submitted, or an individual or entity whom the Landowner has designated in writing as its authorized representative for the purpose of representing the Landowner and/or acting upon any application or submittal for development of the pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple ownership of the Site or portion Exhibit A 999369.16 I-2 thereof with the fee owner’s written consent to any such application or submittal, or which may be an owners’ association for a Condominium project or like common interest ownership project). Notwithstanding any additional or conflicting provision of the Municipal Code, the definition of “Applicant” shall not be construed to mean any person or entity owning, holding or possessing an easement interest, a leasehold interest, a license, a security interest or any other form of interest in the Site, whether possessory or otherwise, other than fee simple ownership of the Site as reflected in the official records of the Eagle County Tax Assessors office. Application means any form of application or submittal to the Town for review and approval of any form of development within The Village (at Avon), including but not limited to an application or submittal regarding an amendment to this PUD Guide, a Preliminary Plan, a Final Plat, a grading permit, a building permit or similar matters. Appurtenances means the visible, functional, or ornamental objects accessory to and part of a building. Arcade means a series of arches or similar architectural features supported on piers or columns. Architectural Projection means a building element (i.e., Appurtenance, Arcade, Awning, Balcony, tower, steeple, portico, chimney, cupola and similar non-habitable features) which physically projects beyond the plane of a required limitation (i.e., height, setback, etc.). Automobile Repair Shop (Major or Minor) means an establishment that does not sell fuel, gasoline or petroleum products which is primarily engaged in the service, repair or maintenance (including but not limited to paint, body and fender, major and minor engine and engine part overhaul, muffler, upholstery work, tire repair and change, lubrication, tune ups and transmission work, vehicle washing, detailing polishing similar services) of: (i) with respect to Major Uses, commercial and heavy truck oriented motor vehicles, trailers and similar large mechanical equipment; and (ii) with respect to Minor Uses, passenger and light truck oriented motor vehicles, trailer and similar mechanical equipment. Awning means a roof-like cover (whether canvas, metal, masonry or other material) that extends in front of or over a doorway, window, deck, Balcony or entryway to provide protection from the sun, rain or snow. Balcony means that portion of a Structure that is essentially open and outward from the main Building with a floor and a railing, with or without a ceiling or other form of cover, and higher than four (4) feet above ground level. Bed and Breakfast means an establishment operated in a private residence or portion thereof that provides temporary accommodations to overnight guests for a fee and which is occupied by the operator of such establishment. Exhibit A 999369.16 I-3 Block means a unit of land designated as a “block” on a recorded Final Plat and which contains within its boundaries a group of individually platted Lots as designated on such recorded Final Plat. Building means any permanent Structure constructed for the shelter or enclosure of persons, animals, chattels or property of any kind, which is permanently affixed to the land and has one (1) or more floors and a roof. Building Envelope means the physical boundaries within which Buildings, Structures or other above-ground improvements may be constructed on a particular Site, being a three (3) dimensional volume circumscribed by: (i) the applicable Building Setback requirements; (ii) the applicable Building Height requirements; (iii) the applicable Site Coverage requirements; and (iv) the applicable Lot Area requirements. (v) building envelopes as depicted on approved Final Plats for Lots in Planning Area K as contemplated by Section D.8(d) of this PUD Guide. Notwithstanding the foregoing, the following improvements are permitted outside of the Building Envelope: Sidewalks, Drive Aisles, Driveways, landscape features, Infrastructure and Dry Utilities. Building Height means the distance measured vertically from the reference elevation (defined below) to the top of a flat roof or mansard roof or to the highest ridgeline of a sloping roof (also referred to as the parallel slope method and depicted by diagram in Section __________ of the Development Code), but excluding from the calculation of Building Height any non-habitable Architectural Projections. The “reference elevation” shall be: (i) within Planning Areas I, K, RMF-1 and RMF-2, the Natural Grade (ii) within all other Planning Areas, the Finished Grade Building Setback means the distance from a specified Site boundary line, a creek or a stream measured horizontally to a line or location within the Site which establishes the permitted location of Uses, Structures, or Buildings on the Site. The location within a Site of Sidewalks, Drive Aisles, Driveways, landscaping features and fences required pursuant to applicable Town or other governmental ordinances, regulations and requirements (i.e., fence enclosures for swimming pools) are not restricted by the Building Setback requirements. Bus Stop means a facility for the loading and discharging of passengers by publicly or privately operated buses. Exhibit A 999369.16 I-4 Cabled Telecommunication Equipment means any equipment used to provide Cabled Telecommunication Service, but which is not affixed to or contained within a Cabled Telecommunication Facility, but is instead affixed to or mounted on an existing Building or Structure the Primary Use of which is not for the provision of Cabled Telecommunications Services. Cabled Telecommunication Equipment also includes a ground mounted base station used as an Accessory Structure that is connected to an antenna or dish mounted on or affixed to an existing Building. Cabled Telecommunication Facility means any freestanding facility, Building, pole, tower or other Structure used to provide only Cabled Telecommunication Services, and which consists of, without limitation, antennae, equipment, storage and other Accessory Structures used to provide Cabled Telecommunications Services. Cabled Telecommunication Service means services providing for the transmission through Dry Utilities facilities of analog or digital communications of any form and any similar services transmitted by or through fiber optic or other forms of below or above ground cabling, including but not limited to cable television, high speed data, telephony, and satellite television systems providing services to a Multi-family Dwelling, a collection of Single-family Dwellings, or a collection of Buildings within a Mixed Use Project. Child Care Center means a facility, however named or denominated (for example, day-care centers, day nurseries, nursery schools, preschools, play groups, day camps, summer camps, centers for developmentally disabled, dependent and/or neglected children, but specifically excluding Family-care Homes), which is maintained, for the whole or part of a day, for the care of: (i) five (5) or more children under the age of sixteen (16) years who are not related to the owner, operator or manager of such facility, whether operated with or without compensation for such and with or without stated education purposes; or (ii) children under the age of six (6) years with stated education purposes which are operated in conjunction with a public, private or parochial educational facility, except for a kindergarten maintained in connection with a public, private or parochial elementary school system of at least six (6) grades so long as the school system is not also providing extended day care services. Commercial Parking means a surface parking lot or Parking Structure that does not provide accessory parking to a specific Building or Use, is available for parking by the general public for a fee, may include reserved parking spaces, and which is owned by a private, non-governmental entity. Commercial Space means, as more particularly described and qualified in Section B.10 of this PUD Guide, the square footage of a Building developed for Commercial Uses. Commercial Use(s) means the following Uses: (a) Accommodations Units; Exhibit A 999369.16 I-5 (b) Animal Boarding; (c) Automobile Repair Shop (Major or Minor); (d) bakeries; (e) bar and tavern; (f) barber and beauty shops; (g) Bed and Breakfast; (h) beverage stores, coffee shops; (i) Bus Stop; (j) business and professional offices; (k) Cabled Telecommunications Equipment; (l) Cabled Telecommunications Facilities; (m) Cabled Telecommunications Services; (n) car wash (as the Principal Use); (o) Child Care Center; (p) Churches; (q) cinema; (r) clinic, intermediate medical care facility (i.e., out-patient services only); (s) clothing stores; (t) Community Facilities; (u) commercial offices; (v) Commercial Parking; (w) Convenience Retail; (x) department stores; (y) Drive-in Uses; (z) employment agency Exhibit A 999369.16 I-6 (aa) Extended Stay Hotel; (bb) Family Child Care Home; (cc) Grocery Store; (dd) Financial institutions; (ee) fitness centers and health clubs; (ff) furniture stores; (gg) hardware stores; (hh) Hotel, Motel and Lodge; (ii) Home Occupations, Minor and Major; (jj) Hospitals, long-term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; (kk) indoor entertainment facility; (ll) indoor storage; (mm) Kennels; (nn) laboratory; (oo) landscaping and snow removal services; (pp) laundromat/dry cleaning; (qq) Medical Marijuana Businesses; (rr) medical and dental offices; (ss) meeting facility; (tt) newspaper and commercial printing shops; (uu) Nude Entertainment Establishments; (vv) nursery or garden supply; (ww) Outdoor Storage; Exhibit A 999369.16 I-7 (xx) pet shop (for the sale of pets, pet supplies and/or for domesticated animal grooming) (yy) professional offices; (zz) real estate sales offices; (aaa) photocopy and blueprint businesses; (bbb) Public Facilities; (ccc) Private Parking; (ddd) Public Parking; (eee) Recycling Facility; (fff) Recycling Processing Facility; (ggg) repair shops, small electronics repair; (hhh) Restaurants; (iii) Retail sales, specialty and gift shops; ski tuning; bike assembly (jjj) service and social clubs; (kkk) Service Stations; (lll) Studios (music, dancing, photography, movie, art and broadcasting) (mmm)tailor, seamstress, clothing alterations (nnn) tattoo parlor, body piercing (ooo) Temporally Divided Dwelling (ppp) theaters; (qqq) trade schools and colleges; (rrr) Transit Shelter; (sss) Wireless Telecommunications Equipment; (ttt) Wireless Telecommunications Facilities; (uuu) Wireless Telecommunications Services; (vvv) Vacation Clubs; Exhibit A 999369.16 I-8 (www) Uses which the Director determines to be similar. Community Development means the Town of Avon Department of Community Development. Community Facility means a publicly or privately owned facility, Building or Structure which is primarily intended to serve the recreational, educational, cultural administrative or entertainment needs of the community as a whole and is operated on a non-commercial, not for profit, non- profit or similar basis. Comprehensive Plan means the Town of Avon Comprehensive Plan, effective as of date the Town approved the Original PUD. Condominium means any group of Condominium Units developed as a unitary project within a Site on which one or more Buildings are located. Condominium Unit means an individual air space unit (as defined in C.R.S. § 38-33-103(4)) together with the interest in the common elements (as defined in C.R.S. § 38-33-103(3)) of the Condominium appurtenant to such unit. For purposes of Dwelling Unit calculation, only Condominium Units which are designated for Residential Use shall be counted as Dwelling Units. Convenience Retail means a retail store containing less than five thousand (5,000) square feet of gross floor area which sells everyday good and services, which may include, without limitation, ready-to-eat food products, groceries, over-the-counter drugs and sundries. Design Covenant means the Declaration of Master Design Review Covenants For The Village (at Avon) dated May 8, 2002 and recorded on May 8, 2002 at Reception No. 795011, as amended by the First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated June 4, 2008 and recorded on June 10, 2008 at Reception No. 200812112 and by the Second Amendment and Ratified First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended from time to time. Design Review Guidelines means The Village (at Avon) Design Review Guidelines dated March 15, 2011, as may be further amended and/or supplemented from time to time, and as prepared, approved and promulgated by the Design Review Board and which establish the sole and exclusive architectural design, landscape design, urban design and site design standards applicable within The Village (at Avon). Design Review Board means The Village (at Avon) Design Review Board as appointed or elected in accordance with the Design Covenant. Developer Affiliates means, collectively, together with their respective successors and assigns and together with any other entity with respect to which Traer Creek LLC is the managing member and which acquires title to any portion of the Property after the Effective Date, Traer Creek-RP LLC, EMD Limited Liability Company, Traer Creek Plaza LLC, Traer Creek-HD LLC and Traer Creek-WM LLC. Exhibit A 999369.16 I-9 Development Agreement means the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) concerning the Property dated as of _________________, 2012, as amended from time to time. Development Code means Title 7 of the Municipal Code, as in effect on the Effective Date unless otherwise stated. Development Plan means, as referenced in Section A.4(b) of this PUD Guide, collectively, (i) this PUD Guide (together with each Exhibit hereto), as amended from time to time; and (ii) the Development Agreement. Development Standards means the planning requirements and regulations governing the development of the Property as set forth in Sections D and I of this PUD Guide. Director means the Director of Community Development. Drive Aisle means the lane(s) within a parking lot or facility devoted to the passage of vehicles, as opposed to the parking stalls, and does not include lanes used only or primarily for drive-in customer service. Drive-in Use means an establishment which by design, physical facilities, service or packaging procedures encourages or permits customers to receive services, obtain goods or be entertained while remaining in their motor vehicles. Driveway means a constructed vehicular access serving one (1) or more properties and connecting directly to a public or private road. Dry Utilities means, excluding Infrastructure, conduit and sleeving for, and the installations contained therein, telephone, cable, fiberoptic and similar “dry” utilities intended to be privately owned, maintained and/or operated. Duplex Dwelling means a single architecturally integrated Structure that contains two separate and independent residences intended to be occupied by two (2) families (or groups of people) living independently of one another, but does not encompass Primary/Secondary Structures. For purposes of the Dwelling Unit calculation, each residence within a Duplex Structure counts as a separate Dwelling Unit, thereby counting as two Dwelling Units per Duplex Structure. If the Site on which a Duplex Structure is constructed is subsequently subdivided into two separate Lots, each of the Lots and Dwelling Units can be owned separately as fee simple estates and ownership can then be conveyed or transferred independently. Dwelling means a Building or portion thereof the occupancy of which is exclusively for Residential Use as a Single-family Dwelling, Duplex Dwelling, Multi-family Dwelling (including Condominium Units designated for Residential Use), Primary/Secondary Dwelling or Major or Minor Home Occupation. Dwelling Unit(s) means one or more rooms which is designed, occupied or intended for occupancy as separate living quarters for the exclusive use of a single family (or group of people) or individual independently from any other family or group of people and having not Exhibit A 999369.16 I-10 more than one (1) primary indoor kitchen (i.e., butler kitchens, catering kitchens, bar kitchens and the like shall not be deemed to be primary kitchens) and at least one (1) bathroom. Effective Date means ____________________, 2012, and is intentionally distinguished from Original Effective Date. Extended Stay Hotel means a Hotel/Motel/Lodge with Accommodation Units that have complete kitchen and bathroom facilities intended and utilized primarily for transient or semi-transient occupancy. Family Child Care Home means a facility for Child Care in a place of residence of a family or person for the purpose of providing less than twenty-four (24) hour care for children under the age of eighteen (18) years who are not related to the head of such home, and may include any such other types of family Child Care homes as may be designated by rules of the State Department of Social Services pursuant to C.R.S. § 26-9-106(2)(p). Final Plat means a final subdivision plat for the Property, or any portion thereof, including any replats thereof or amendments thereto, approved by the Town pursuant to Section G of this PUD Guide and/or Section 7.16.070 of the Development Code, as applicable. Finished Grade means the final elevation of the ground surface after development. Grocery Store means a retail establishment which primarily sells food for home consumption, beverages and other convenience and household goods. Gross Square Footage means the total floor area designed for occupancy and use, including basements, mezzanines, stairways and upper floors, if any, expressed in square feet and measured from the interior surface of joint partitions and exterior surface of outside walls. Group Home means a Structure within which a state licensed facility for the care and/or housing of developmentally disabled persons, mentally ill persons, sex offenders, parolees or similar distinct groups of individuals is undertaken. Home Occupation, Major means an occupation or business activity which results in a product or service and is conducted in whole or in part in a Dwelling Unit and does not qualify as a Minor Home Occupations because it: produces noise audible outside the Dwelling Unit; causes or requires customers, delivery persons, employees or any person to enter the property on or within which the Dwelling Unit is located; requires alteration to the Dwelling Unit to satisfy applicable fire, building or health codes or regulations; requires or allows any signs to be visible from the outside of the property on or within which the Dwelling Unit is located; and/or changes the appearance or residential character of the Structure.. A Major Home Occupation Use shall be considered a Commercial Use. Home Occupation, Minor means any occupation, profession or other activity (including any activity associated with a non-profit group) that takes place entirely within a Dwelling Unit and which does not: produce noise audible outside the Dwelling Unit; cause or require customers, delivery persons, employees or any person to enter the property on or within which the Dwelling Unit is located; require alteration to the Dwelling Unit to satisfy applicable fire, building or Exhibit A 999369.16 I-11 health codes or regulations; require or allow any signs to be visible from the outside of the property on or within which the Dwelling Unit is located; or change the appearance or residential character of the Structure. A Minor Home Occupation shall be considered a Residential Use. Hospital means an institution providing health services primarily for human inpatient medical or surgical care for the sick or injured and including related facilities such as laboratories, out- patient departments, cafeteria and food preparation areas, training and central services facilities and staff offices. Hotel, Motel and Lodge means a Building, including an Extended Stay Hotel but excluding a Bed and Breakfast, containing three (3) or more Accommodation Units and which may include Accessory Use facilities such as offices, laundry facilities, recreation facilities, lobbies, lounges, kitchen and dining facilities, meeting rooms, retail and other similar accessory uses commonly associated with hotels, motels and lodges. Industrial Use(s), Heavy or Light means: (i) with respect to Heavy Industrial Uses, those uses engaged in the basic processing and manufacturing of material or products predominately from extracted or raw materials, or a use engage in storage of, or manufacturing processes using flammable or explosive materials, or storage or manufacturing process that potentially involve hazardous conditions. Heavy Industrial Uses shall also mean those uses engaged in the operation, parking and maintenance of vehicles (but specifically excluding Automobile Repair Shops), cleaning of equipment or work processes involving solid waste or sanitary waste transfer stations, recycling establishments, and transport terminals (truck terminal, public works yard, container storage). (ii) with respect to Light Industrial Uses, those uses engaged in the manufacturing, predominantly from previously prepared materials, of finished products or parts, including processing, fabrication, assembly, treatment, packaging, incidental storage, sales or distribution of such products. Further Light Industrial Uses shall mean uses such as the manufacture of electronic instruments, preparation of food products, pharmaceutical manufacturing, research and scientific laboratories or the like. Light Industrial Uses shall not include uses such as mining and extracting industries, petro- chemical industries, rubber refining, primary metal, or related industries. Infrastructure means, excluding Dry Utilities, those man-made structures which serve the common needs of the population and are generally intended to be dedicated to, owned by and maintained by the Town, another governmental or quasi-governmental entity and/or a public utility provider, including but not limited to potable water systems; wastewater disposal systems; solid waste disposal sites or retention areas; storm drainage systems; electric, gas or other utilities; bridges; roadways; bicycle paths or trails; pedestrian sidewalks, paths or trails; and transit stops. Interim Use means a Use that is permitted on a case-by-case basis within a particular Planning Area or on a specific Site during the period prior to or during development of a Site upon an Applicant’s receipt of written approval from the Design Review Board (as applicable) in Exhibit A 999369.16 I-12 accordance with Section I.1 of this PUD Guide; provided, however, that Agricultural Uses as an Interim Use shall be construed to be a Use by Right within all Planning Areas without the requirement of written approval from the Design Review Board. Kennel means a facility licensed to house dogs, cats or other household pets and/or where grooming, breeding, boarding, training or selling of animals is conducted as a business. Landowner means the owner(s) of fee simple title to a Block, Lot, Tract or other parcel of real property as reflected in the official records of the Eagle County Tax Assessor. Notwithstanding any additional or conflicting provision of the Municipal Code, the definition of “Landowner” shall not be construed to mean any person or entity owning, holding or possessing an easement interest, a leasehold interest, a license, a security interest or any other form of interest, whether possessory or otherwise, other than fee simple ownership as reflected in the official records of the Eagle County Tax Assessors office. Landscaped Area means that portion of a parcel of land with any combination of living plants, such as trees, shrubs, vines, groundcover, flowers, or lawns; natural features and nonliving groundcover such as rock, stone and bark; and structural features, such as fountains, reflecting pools, art works, screen walls, fences and benches; but shall not include parking areas. Lot(s) means a parcel of real property as shown with a separate and distinct “lot” number or letter on a Final Plat. Lot Area means the gross area contained within the external boundary lines of a Lot, expressed in acres or in square feet. Main Street means, as described and conceptually depicted in Exhibit F of this PUD Guide, the primary east-west roadway connecting Post Boulevard to Chapel Place. Manufactured Home means a Single-family Dwelling which is: partially or entirely manufactured in a factory; at least twenty-four (24) feet wide and thirty-six (36) feet long; permanently affixed to and installed on an engineered permanent foundation; covered by a pitched or cosmetically equivalent roof and brick or wood exterior siding; in compliance with HUD or UBC standards, as applicable, or meets or exceeds equivalent requirements and performance engineering standards. Master Developer means EMD Limited Liability Company, a Colorado limited liability company (with respect to Planning Area I only) and Traer Creek LLC, a Colorado limited liability company (in all other respects), which entities (or any successor entities) are designated and authorized to act on behalf of all Developer Affiliates. The Developer Affiliates have designated the Master Developer to act on behalf of themselves and their respective successors in interest with respect to and for all purposes of this PUD Guide. The Developer Affiliates may designate a replacement Master Developer from time to time, or may terminate the role of the Master Developer, by delivery of written notice thereof to the Town and to Traer Creek Metropolitan District, its successors or assigns, which is signed by a majority of the Developer Affiliates owning any part of the Property as of the date of such notice. Any replacement Master Developer must be an entity that is a Developer Affiliate. The designation of a replacement Exhibit A 999369.16 I-13 Master Developer or termination of the role of Master Developer by the Developer Affiliates shall not require an amendment to this PUD Guide and shall not require the consent of the Town. Medical Marijuana Business means the Use of a Site, or portion thereof, for the cultivation, manufacture, production, distribution, acquisition or sale of marijuana, including for Medical marijuana Centers, manufacturing of Medical Marijuana-Infused Products, or Optional Premises as such terms are defined by C.R.S. § 12-43.3-104, as may be amended, regardless of whether such Use is for profit or not for profit. Minimum Design Guideline Standards means the minimum design guideline standards for The Village (at) Avon set forth in Exhibit E of this PUD Guide. Mobile Home means a Single-family Dwelling partially or entirely manufactured in a factory, built on a permanent chassis, which is designed to be transported on streets to the place where it is to be occupied as a Dwelling Unit, and is: at least twenty-four (24) feet wide and thirty-six (36) feet long; permanently affixed to and installed on an engineered permanent perimeter foundation; covered by a pitched or cosmetically equivalent roof and brick or wood exterior siding; in compliance with HUD or UBC standards, as applicable, or meets or exceeds equivalent requirements and performance engineering standards. Mixed Use Project means the development of a Site, Building or Structure with two or more different Uses in accordance with the Development Standards and which is designed, planned and constructed as a unified project. Mixed Use Projects may be horizontally integrated or vertically integrated, or both. Multi-family Dwelling means a Building containing three or more Dwelling Units, whether such Dwelling Units are for sale or for lease (including Condominium Units designated for Residential Use). Municipal Code means the Town’s Municipal Code, as in effect on the Effective Date unless otherwise stated. Natural Grade means the elevation of the ground surface in its natural state, before man-made alterations. Nude Entertainment Establishments means establishments open for business to the public in which persons appear in a state of nudity for the purpose of entertaining the patrons of such establishments, as more particularly described in Chapter 8.26 of the Municipal Code. Off-street Parking Area means all off-street areas and spaces designed, used, required or intended to be used for the parking, storage or operation of motor vehicles, including Driveways or access ways in and to such areas, but not including any Outdoor Storage area used principally for storage of recreational vehicles, landscaping materials or other bulk items, or public streets and rights-of-way. Open Space means any land or water area with its surface open to the sky which serves specific Uses of providing park and recreation opportunities, conserving natural areas and environmental resources, structuring urban development form, and protecting areas of agricultural, Exhibit A 999369.16 I-14 archeological or historical significance, but shall not be construed to mean vacant or undeveloped land that is zoned for development. Original Effective Date means October 13, 1998, and is intentionally distinguished from Effective Date. Original PUD Guide. The version of this PUD Guide originally approved by the Town on October 13, 1998 and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at Reception No. 677744, as amended by the Prior Amendments. Outdoor Storage means the storage of any equipment, good, junk material, merchandise or vehicles in the same place for more than twenty-four (24) hours in any area other than within a roofed Structure. Parking Regulations means, as set forth in Exhibit C to this PUD Guide, the sole and exclusive Development Standards regulating parking within The Village (at Avon) PUD, which expressly supersede any additional or conflicting provisions of the Municipal Code (including but not limited to the parking standards set forth in Chapter 7.28 of the Development Code, as amended from time to time), including without limitation, any additional or conflicting such provisions. Parking Structure(s) means an above ground or below ground Structure of one or more levels containing Drive Aisles and parking stalls, which may be a stand-alone Structure or be integrated into or within a Structure as an Accessory Use or Accessory Structure, and which may provide Commercial Parking, Public Parking or Private Parking. Planning and Zoning Commission means the Town’s Planning and Zoning Commission. Planning Area means an area indicated as a planning area on the PUD Master Plan, the Use and development of which shall be regulated by and be undertaken in accordance with the Development Plan. Planning Department means the Town’s Planning Department. Preliminary Engineering means the following submittals in connection with certain future street improvements within The Village at (Avon) as described in Section A.4(g) of the PUD Guide: utilities locations (excluding utility sizing), preliminary drainage report, preliminary grading plan and street cross sections, including transitions between any different cross sections. Preliminary Plan means a preliminary subdivision plat for the Property, or any portion thereof, approved by the Town pursuant to Section G of this PUD Guide and/or Section 7.16.070 of the Development Code, as applicable. Primary/Secondary Structure means a structure that consists of two Dwelling Units within a single fee simple estate: one primary unit (containing the Principal Use) and one secondary unit (i.e, a “mother-in-law suite, carriage house or caretaker’s quarters). The primary unit must be a Single-family Dwelling. Within all Planning Areas, the secondary unit can be no more than 40% of the floor area of the primary unit. The secondary structure may attached to or detached from the primary unit; provided that the two units cannot be subdivided or separately conveyed or Exhibit A 999369.16 I-15 transferred in ownership and the secondary unit may not be leased or subject to a leasehold interest separate from the primary unit. The Residential Use of the Secondary Structure shall be construed to be an Accessory Use to the Principal Use of the Primary Structure. For all purposes under this PUD Guide, the primary unit and secondary unit, whether attached or detached, shall be counted as two Dwelling Units; provided, however, any primary unit and secondary unit, whether attached or detached, located in Planning Area K on any Lot east of Lot 73 (as depicted on the PUD Master Plan) shall be counted as one Dwelling Unit in the aggregate. Principal Use means the primary or main Use of a Site or Structure as distinguished from a subordinate or Accessory Use. Prior Amendments has the meaning set forth in Section A.2(c) of this PUD Guide. Private Parking means a surface parking lot or Parking Structure that provides accessory parking to a specific Building or Use, is available for parking by the owners, tenants and/or customers of the Building or Use, may include reserved parking spaces, and which is owned by a private, non-governmental entity such as an owners association. Prohibited Use means a Use which is specifically not permitted within a particular Planning Area, as distinguished from a Use by Right, a Special Review Use, a Temporary Use or an Interim Use. Property means the real property commonly known as The Village (at Avon) PUD, the boundaries of which are legally described in Exhibit A to this PUD Guide. Property Line means the boundary of any Lot, Block, Tract, Site or other parcel of land as the same is described in the pertinent Final Plat or instrument of conveyance to the Landowner, as applicable. Public Improvement(s) means any drainage ditch, storm water improvement, potable water line, sanitary sewer line, similar utility extension, roadway, parkway, sidewalk, pedestrian way, tree lawn, landscaped Open Space, Off-street Parking area, Lot improvement or similar facility or improvement which benefits the public, is required by the Town to be provided by or on behalf of the Applicant and assurance of completion to be provided as a condition of any development approval, and is documented in a Public Improvements Agreement. Public Improvements may include and generally will be comprised of Infrastructure and/or Dry Utilities, but may include types of improvements other than Infrastructure and Dry Utilities or exclude certain types of improvements that are Infrastructure or Dry Utilities. Public Improvements Agreement means an agreement to be entered into between the Town and the party responsible for constructing public infrastructure in connection with the applicable Application as contemplated by Section 7.32.100 of the Development Code, which agreement shall be in the form set forth in Exhibit F to the Development Agreement, or as otherwise mutually agreed upon by the Master Developer and the Town. Public Improvement Company means, collectively, The Village (at Avon) Commercial Public Improvement Company and The Village (at Avon) Mixed-Use Public Improvement Company, Exhibit A 999369.16 I-16 which the Master Developer has created in accordance with and for the purposes stated in the Development Agreement. Public Facility(ies) means constructed facilities that are owned by the Town, a District or another governmental or quasi-governmental entity, including but not limited to: transportation systems or facilities; water systems or facilities; wastewater systems or facilities; storm drainage systems or facilities; fire, police and emergency services systems or facilities; electric, gas, telecommunications utilities or facilities; and other publicly owned buildings or facilities. Public Parking means a surface parking lot or Parking Structure that is available for parking by the general public and which is owned by the Town, a quasi-governmental entity (specifically including Traer Creek Metropolitan District and Village Metropolitan District and any other quasi-governmental entity or urban renewal authority approved by the Town after the Effective Date and having all or any part of its boundaries or service area located within The Village (at Avon)). PUD Guide means this The Village (at Avon) Amended and Restated PUD Guide dated __________________, 2012, and all exhibits attached hereto. PUD Master Plan means The Village (at Avon) P.U.D. Master Plan attached hereto as Exhibit B and incorporated herein. The PUD Master Plan depicts, among other things, Planning Areas and permanent, temporary and conceptual road alignments for the development of The Village (at Avon). Recycling Facility means a facility, which may be either contained and conducted within a Structure or conducted outside of a Structure so long as all materials are stored within an enclosed container, for the collection and temporary storage (prior to relocating to a Recycling Processing Center) of empty beverage containers, aluminum, glass, paper, cardboard, clothing or other materials for recycling purposes. Recycling Processing Center means a facility in which recycling materials received from a Recycling Facility or from other sources are processed for subsequent use or distribution. Religious Facility means a Building containing a hall, auditorium or other suitable room or rooms used for the purpose of conducting religious worship or other services or meetings of the occupants of such structure, including churches, synagogues, mosques or the like, but excluding any Buildings used for commercial endeavors. Residential Use means the Use of a Building (or applicable potion thereof) for purposes of a Single-family Dwelling, Duplex Dwelling, Multi-family Dwelling, Minor or Major Home Occupation (portion of the Building not used for Commercial or Industrial Uses), Primary/Secondary Structure or Group Home. Restaurant(s) means an establishment engaged in the Use or Accessory Use of a building or structure for the sale of foods and beverages to the customer in a ready-to consume state, and in which the design or principal method of operation includes the following characteristics: Exhibit A 999369.16 I-17 (i) With respect to “drive-through” Restaurants, allows for or beverages to be served directly to the customer in a motor vehicle without the need for the customer to exit the motor vehicle. (ii) With respect to “fast food” Restaurants: (a) Food and beverages are usually served in paper, plastic or other disposable containers; (b) The consumption of food and beverages is encouraged or permitted within the Restaurant building, within a motor vehicle parked upon the premises or at other facilities on the premises outside the restaurant building, or for carry-out; and (c) Drive-through facilities are allowed, subject to Design Review Board review and approval of Site-internal traffic patterns, Site-internal vehicle stacking areas, and entrance and exit locations. (iii) With respect to “standard” Restaurants, which may but are not required to include as an Accessory Use the on-premises production of fermented (alcoholic) malt beverages and/or malt, special malt or vinous and spirituous liquors: (a) Customers are served their food and/or beverages by a restaurant employee at the same table or counter at which the items are consumed; and/or (b) Customers are served their food and/or beverages by means of a cafeteria type operation where the food or beverages are consumed within the Restaurant building. Required Street Connections has the meaning giving it in Section G.3(b) of this PUD Guide. Service Station(s) means a facility equipped for the sale of gasoline, diesel, electricity or other forms of fuel for motorized vehicles, and which may but is not required to include as an Accessory Use Convenience Retail, fast food Restaurants, drive-through Restaurants, and/or automated or self car washes. Settlement Term Sheet has the meaning set forth in Section A.2(b) of this PUD Guide. Single-family Dwelling means a Building designed exclusively for occupancy by one (1) family (or individual or group of individuals living independently as a unit), but expressly excluding a Mobile Home. Site means a specifically described area of land which is the subject of a development Application, and which may be a Lot, an aggregation of Lots within a Mixed Use Project or any other form of designation or combination of designations of specifically described areas of land that are otherwise eligible to be developed under the terms of this PUD Guide and applicable law. Exhibit A 999369.16 I-18 Site Coverage means the ratio, expressed as a percentage, of the area of a Site which is rendered impermeable by Buildings compared to the Lot Area (or in the case of an assemblage of Lots, the gross area contained with the entire Site). Special Review Use means a Use or Uses permitted to be developed or conducted within The Village (at Avon) PUD only upon further Town review and approval of such Use in accordance with and subject to compliance with the terms and conditions of Section E of this PUD Guide. Any such Special Review Uses are further subject to compliance with the applicable Development Standards, the Design Review Guidelines, the Subdivision Regulations and approval by the Design Review Board, and issuance of a building permit in accordance with Section A.4(h) above and any applicable Town use permit or business permit in accordance with applicable requirements of the Municipal Code, as superseded or modified by the Development Plan. Stream Setback Provisions means the provisions and requirements set forth in Section I.13 of this PUD Guide. Structure means a combination of materials to form a construction for Use, occupancy or ornamentation whether installed on, above or below the surface of land or water. Subdivision Regulations means Section 7.16.070 of the Development Code, as modified and/or superseded by the provisions of Section G of this PUD Guide. Supplemental Hotel Design Standards has the meaning given it in Section I.10 of this PUD Guide. The Village (at Avon) PUD means the zone district authorized for the Property by the Town, and which constitutes the sole and exclusive zoning regulations applicable within the Property and expressly supersedes any additional or conflicting provisions of the Municipal Code, as superseded or modified by the Development Plan. Temporally Divided Dwelling means any Dwelling with respect to which more than four (4) persons (or entities), whether by fee interest, leasehold or contractual right, are entitled to the use, occupancy or possession of such Dwelling according to a fixed or floating time schedule occurring periodically over any period of time (the use, occupancy or possession by each person being exclusive of that by the others. Temporally Divided Dwelling includes but is not limited to a timeshare estate as defined in C.R.S. § 38-33-110, any form of interval ownership, any form of fractional fee ownership, and any form of vacation club or similar venture. For purposes of this definition, the Use of the Dwelling rather than the form of ownership of the Dwelling (i.e., whether owned in fee by a single owner, a corporate entity engaged in the business of providing services to those entitled to the use, occupancy or possession of a Temporally Divided Dwelling, or similar forms of ownership) shall be determinative of whether a Dwelling is a Temporally Divide Dwelling; provided, however that ownership of an interest in joint tenancy by two (2) persons shall be considered one (1) person. Temporary Use means any Use that is not classified as a Permitted Use, Special Review Use or Interim Use with respect to the applicable Planning Area. Exhibit A 999369.16 I-19 Town means the Town of Avon, a municipal corporation of the State of Colorado. Town Council means the Town Council of the Town. Tract means a parcel of real property as shown with a separate and distinct “tract” number or letter on a Final Plat. Transit Shelter means a Structure which provides protection from the weather to persons who are waiting to board a publicly or privately operated bus or other form of mass transit. Transportation Master Plan. The Transportation Master Plan adopted by the Town, as amended from time to time. Use(s) means the primary or principal purpose for which land or a building or structure is designated, arranged, or intended, or for which it either is or may be occupied or maintained. Use(s) by Right means a Use or Uses permitted to be developed or conducted within The Village (at Avon) PUD without the requirement of further Town review or approval, subject to compliance with the applicable Development Standards, the Design Review Guidelines, the Subdivision Regulations and approval by the Design Review Board, and with respect to which a building permit shall be issued in accordance with Section A.4(h) of this PUD Guide and/or any applicable Town use permit or business permit in accordance with applicable requirements of the Municipal Code, as superseded or modified by the Development Plan. Use Category means one of the following general categories of Use that may be permitted within The Village (at Avon) on a Planning Area by Planning Area basis: (i) Residential Uses. (ii) Commercial Uses. (iii) Industrial Uses. (iv) Interim Uses. (v) Mixed Use Projects. (vi) Public Facilities. Vacation Club means a corporate entity that is the record owner, as reflected in the records of the Eagle County Tax Assessor, of a Temporally Divided Dwelling which Dwelling it makes available to its members and/or guests of its members for their accommodation on a periodic basis in consideration of such members’ interest or membership in the entity. Vested Property Right(s) has the meaning set forth in [Section 2.4] of the Development Agreement. Vested Property Rights Regulations means Section 7.16.140 of the Development Code, as modified by this PUD Guide. Exhibit A 999369.16 I-20 Vested Property Rights Statute means Sections 24-68-101 et seq. of the Colorado Revised Statutes as in effect on October 13, 1998. Wildlife Mitigation Plan means, as set forth in Exhibit D to this PUD Guide, the sole and exclusive Development Standards for wildlife mitigation measures applicable within The Village (at Avon) PUD, and which expressly supersedes any additional or conflicting provisions of the Municipal Code. Wireless Telecommunication Equipment means any equipment used to provide Wireless Telecommunication Service, but which is not affixed to or contained within a Wireless Telecommunication Facility, but is instead affixed to or mounted on an existing Building or Structure the Primary Use of which is not for the provision of Wireless Telecommunications Services. Wireless Telecommunication Equipments also includes a ground mounted base station used as an Accessory Structure that is connected to an antenna mounted on or affixed to an existing Building. Wireless Telecommunication Facility means any freestanding facility, Building, pole, tower or other Structure used to provide only Wireless Telecommunication Services, and which consists of, without limitation, antennae, equipment, storage and other Accessory Structures used to provide Wireless Telecommunications Services. Wireless Telecommunication Service means services providing for the transmission of wireless communications utilizing frequencies authorized by the Federal communications commission for paging systems, enhanced specialized wireless telecommunication, persona communication services, cellular telephone service and any similar services provided by means other than Cabled Telecommunication Services. Exhibit A 1019858.1 Final PUD Application The Village (at Avon) Amended and Restated PUD Guide and PUD Master Plan Project Narrative Traer Creek, LLC (“Applicant”) submits the enclosed application for a final PUD (“PUD”), including The Village (at Avon) Amended and Restated PUD Guide (“PUD Guide”) and PUD MasterPlan (“PUD Map”). Applicant submits the PUD on behalf of the “Owners” as defined in the existing The Village (at Avon) PUD Guide dated October 13, 1998, as amended (“Existing PUD”), for the purpose of implementing certain provisions of the “Settlement Term Sheet,” as more specifically discussed and defined below. In accordance with the terms and conditions of that certain Settlement Term Sheet made and entered on October 7, 2011, by and between the Town of Avon (“Town”), Traer Creek LLC, Traer Creek-RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer Creek-HD LLC, Traer Creek-WMT LLC (collectively, the “Developer Entities”), BNP Paribas and Traer Creek Metropolitan District (the “Settlement Term Sheet”), the Developer Entities agreed to submit, and the Town agreed to process and decide upon, the PUD (and a final PUD) for the purposes of implementing certain land use related matters as follows:  Extension of the vested property rights period;  Dedication of a school site;  Allowing commercial as a permitted use on (existing) Planning Areas N South and RMF-1, including hotel and lodging uses (subject to objective minimum design requirements reviewable by the Town at the time of building permit application);  Modified street standards for access to (existing) Planning Area M;  Increased density and development standards for the “hillside residential”;  Modified street width and phased development for Main Street;  Application of the “David Johnson Study” regarding drainage requirements for the hillside residential; and  Administrative subdivision processing for certain portions of The Village (at Avon). In addition to the above-referenced land use matters that have been incorporated into the PUD, certain additional modifications to the Existing PUD are proposed. A “redlined” comparison of the proposed PUD Guide against the Existing PUD Guide is included with this application for the PUD to facilitate a more efficient review of the proposed modifications. Certain of the proposed modifications include changes to the uses permitted in certain planning areas (including providing for a more specific definition of “Commercial Uses,” removal of the overall density limitations for the project for commercial and residential uses, allocation and tracking of water rights to serve development of the project, incorporation of the temporary use permit provisions of the Development Code, provision of street standards applicable to the project, revisions to the parking regulations governing all parking uses within the project and clarification regarding certain provisions of the Development Code and Municipal Code that do not apply to the project). Exhibit B 1019858.1 2 Consist with the terms of the Existing PUD, proposed PUD Guide, existing “Annexation and Development Agreement” (as defined in the Existing PUD) and proposed Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) (“Agreement”) submitted to the Town concurrently with the PUD, upon approval, the PUD (including the PUD Guide and the PUD Map) shall each be a “site specific development plan” and have vested property rights under state statute and the Town Development Code (“Development Code”), as modified by the terms of the Agreement and PUD Guide, for the remainder of the term prescribed in the Agreement and PUD Guide. The appropriate vesting language is provided on the cover page of the PUD Guide. The Applicant submits the most current draft of the PUD Map (version 8) produced and disseminated by the Town as a part of the application for this PUD. However, the Applicant notes that the PUD Map requires further revision with respect to the planning area boundaries as the same relate to rights-of-way that bisect planning areas, consistent with the provisions set forth in Section A.4(f) of the PUD Guide. Pursuant to Section 7.16.070(e)(4) of the Town Development Code (“Development Code”), the Planning and Zoning Commission and Town Council shall consider certain criteria as the basis for a recommendation or decision, respectively, to rezone a property to the planned unit development zone district and to approve a PUD. As noted above, the PUD is an amendment to the Existing PUD previously approved by the Town for The Village (at Avon); however, in accordance with the Development Code, the approval process with respect to such amendments are the same as for the original approval. The following are the review criteria set forth in Section 7.16.070(e)(4) of the Development Code, and describe how the PUD satisfies such review criteria, to the extent applicable. 1. The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or incorporates creative site design such that it achieves the purposes of the Development Code and represents an improvement in quality over what could have been accomplished through strict application of the otherwise applicable district or development standards. Such improvements in quality may include, but are not limited to: improvements in open space provision and access; environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and other utilities and services; or increased choice of living and housing environments. The PUD provides for a large-scale, master-planned mixed-use development that would not otherwise be possible under the Town Euclidian zone districts. The uses, dimensional limitations and development standards, among other matters, set forth in the PUD Guide will provide for flexibility in the development of The Village (at Avon) and will encourage innovative and coordinated development and design, consistent with Section 7.16.060 of the Development Code. The PUD provides for a mix of integrated uses and public facilities and amenities, including natural open space, community and pocket parks, trail and pedestrian connectivity, a diverse housing mix and retail and commercial services for The Village (at Avon) and the Town as a whole. A Declaration of Master Design Review Covenants for The Village (at Avon) and The Village (at Avon) Design Review Guidelines provide for high quality design with respect to the built environment and preservation of open space and existing vegetation. 2. The PUD rezoning will promote the public heath, safety and general welfare. Exhibit B 1019858.1 3 As discussed in response no. 1 above and response no. 5 below, the PUD, together with the Agreement (and the existing Annexation and Development Agreement), provide for public amenities, development and design standards and development review processes to ensure development of The Village (at Avon) as contemplated by the PUD will promote the public health, safety and general welfare of the owners and residents within The Village (at Avon) and the residents of the Town. 3. The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of the Development Code and the eligibility criteria outlined in Section 7.16.060(b) of the Development Code. The eligibility criteria applicable to the PUD (see Section 7.16.060(b) of the Development Code) are addressed in the Written Statement submitted as a part of the application for the PUD. It is the Applicant’s position that the current Avon Comprehensive Plan does not apply to The Village (at Avon) as the Existing PUD was approved under a prior comprehensive plan and the Exhibit PUD is a “site specific development plan” and has vested property rights. Notwithstanding the foregoing, the Applicant submits that the PUD is consistent with the following (among other) policies of the Avon Comprehensive Plan: A.1.5, B.1.1, B.1.3, B.1.5, B.1.6, B.1.8, B.2.1, B.2.3, B.3.1, B.3.4, C.1.2, C.1.3, C.1.5, C.1.6, C.1.8, C.2.1, C.2.2, C.2.3, C.3.1, C.3.2, C.4.3, C.5.1, C.5.2, C.5.3, D.1.1, D.1.2, D.1.4, D.2.2, D.2.5, D.2.6, D.3.1, D.3.4, E.1.2, E.3.8, E.3.10, F.1.1, F.1.2, F.2.1, F.2.3, F.2.4, F.2.8, G.1.1, G.1.4, G.1.7, G.1.9, G.1.12, G.1.15, H.1.3, H.2.1, H.2.2, H.4.2, I.1.1, I.1.4, V.2.2, and V.2.3. 4. Facilities and services (including roads and transportation, water, gas, electric, police and fire protection, and sewage and waste disposal) will be available to serve the subject property while maintaining adequate levels of service to existing development. The PUD Guide sets forth certain development limitations and standards specific to each planning area within the PUD Map, including limitations on site coverage, landscape requirements (as applicable) and appropriate setback and building height limitations, which will result in appropriate uses and building envelopes for each site developed within The Village (at Avon) to facilitate the provision of adequate facilities (including roads) and utility services. The PUD is consistent with the Town Transportation Master Plan, providing for adequate transportation facilities and connectivity to abutting properties. The Village (at Avon) includes, among other public facilities and services, fire protection and ambulance service uses. 5. Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife, and vegetation, or such impacts will be substantially mitigated. The PUD, together with the Agreement (and the existing Annexation and Development Agreement), provide, and have provided for, mitigation of impacts of the proposed development of The Village (at Avon), including the prior provision of certain impact fees, public dedications, public facilities, natural open space and roads. A wildlife mitigation plan is included as a part of the PUD Guide. Section C of the PUD Guide sets forth certain requirements for allocation of water rights to serve The Village (at Avon). A significant portion of The Village (at Avon) will be maintained as natural open space. Further, a comprehensive storm drainage study has been Exhibit B 1019858.1 4 produced for The Village (at Avon). The development of the subject property as contemplated by the PUD will not result in any significant adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife or vegetation. 6. Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon other property in the vicinity of the subject tract. For the reasons provided in response no. 5 above, and because the PUD is compatible in scale with other uses or potential future uses on other adjacent properties as discussed in response no. 7 below, the PUD is not likely to result in significant adverse impacts upon other property in the vicinity of The Village (at Avon). 7. Future uses on the subject tract will be compatible in scale with uses or potential future uses on the other properties in the vicinity of the subject tract. The uses, densities and dimensional limitations set forth in the PUD Guide are compatible internally with respect to abutting planning areas within the project and allow for a mix of uses and densities, while providing for a reasonable transition among abutting planning areas, generally providing for more dense development on the valley floor, less dense development north of I-70 and within the “hillside residential” portion of the PUD as depicted on the PUD Map and more intense uses immediately north of I-70. The most adjacent development to the Village (at Avon) is the Town Center to the west of The Village (at Avon). The uses, densities and dimensional limitations of Planning Area A as depicted on the PUD Map, which abuts the Town Center, are generally consistent and complementary to the uses, densities and dimensional limitations applicable to the Town Center. Exhibit B 1019859.1 Final PUD Application The Village (at Avon) Amended and Restated PUD Guide and PUD Master Plan Written Statement Pursuant to Section 7.16.070(b) of the Town Development Code, the following are the eligibility criteria for a property to be eligible to apply for PUD approval. A response describing how the application for a final PUD (the “PUD”), including The Village (at Avon) Amended and Restated PUD Guide (the “PUD Guide”) and PUD Master Plan (the “PUD Map”), satisfies such eligibility criteria, to the extent applicable, follows each eligibility criteria. 1. Property Eligible: All properties within the Town of Avon are eligible to apply for PUD approval. The property subject to the PUD, The Village (at Avon), is wholly within the jurisdictional boundaries of the Town of Avon (“Town”). 2. Consistency with Comprehensive Plan: The proposed development shall be consistent with the Avon Comprehensive Plan. Please see response no. 3 of the project narrative submitted with the application for the PUD, which addresses the Avon Comprehensive Plan. 3. Consistent with PUD Intent: The proposed development shall be consistent with the intent and spirit of the PUD purpose statement in §7.16.060(a). As discussed in the project narrative submitted with the application for the PUD, the PUD provides for a large-scale master-planned mixed use development that would not otherwise be possible under the Town Euclidian zone districts. The uses, dimensional limitations and development standards, among other matters, set forth in the PUD Guide will provide for flexibility in the development of The Village (at Avon) and will encourage innovative and coordinated development and design, consistent with the intent and spirit of Section 7.16.060 of the Development Code. The PUD provides for a mix of integrated uses and public facilities and amenities, including community facilities to be constructed by the Town on Planning Area B (as depicted on the PUD Map), preservation of natural open space, community and pocket parks, trail and pedestrian connectivity, school sites, a diverse housing mix (including affordable housing) and retail and commercial services for The Village (at Avon) and the Town as a whole. Existing and planned roads and utilities are contemplated to facilitate convenient and efficient extension of such services to comprehensively serve The Village (at Avon). A Declaration of Master Design Review Covenants for The Village (at Avon) and The Village (at Avon) Design Review Guidelines provide for high quality design with respect to the built environment and preservation of natural features and open space and existing vegetation. The Village (at Avon) includes, among other public facilities and services, fire protection and ambulance service uses. Impact fees and public dedications previously have been provided to mitigate development Exhibit B 1019859.1 2 impacts of The Village (at Avon), and certain future public dedications are contemplated as discussed in the project narrative submitted with the application for the PUD. 4. Compatibility with Existing Uses: The proposed development shall not impede the continued use or development of surrounding properties for uses that are permitted in the Development Code or planned for in the Avon Comprehensive Plan. As discussed in response no. 7 of the project narrative submitted with the application for the PUD, the uses, densities and dimensional limitations set forth in the PUD Guide for The Village (at Avon) are compatible internally with respect to abutting planning areas within the project and allow for a mix of uses and densities, while providing for a reasonable transition among abutting planning areas, generally providing for more dense development on the valley floor, less dense development north of I-70 and within the “hillside residential” portion of the PUD as depicted on the PUD Map and more intense uses immediately north of I-70. The Town Center is adjacent to and west of The Village (at Avon). The uses, densities and dimensional limitations of Planning Area A as depicted on the PUD Map, which abuts the Town Center, are generally consistent with and complementary to the uses, densities and dimensional limitations applicable to the Town Center. The roads as constructed within The Village (at Avon) and as conceptually set forth on the PUD Map are consistent with the Town Transportation Master Plan. 5. Public Benefit: A recognizable and material benefit will be realized by both the future residents and the Town as a whole through the establishment of a PUD, where such benefit would otherwise be infeasible or unlikely. As discussed in response no. 3 above, in response no. 6 below and in the project narrative included as a part of the submittal of the PUD, many substantial public benefits have been and will be provided in connection with the establishment of the PUD, including dedications for public facilities (such as fire and ambulance facilities), school sites, community facilities, trail connections to public lands and natural open space. Substantial natural open space will be preserved by the establishment of the PUD. 6. Preservation of Site Features: Long-term conservation of natural, historical, architectural, or other significant features or open space will be achieved, where such features would otherwise be destroyed or degraded by development as permitted by the underlying zoning district. A significant portion of The Village (at Avon) will be preserved as natural open space. As contemplated by the Settlement Term Sheet (as defined in the project narrative for the application for the PUD), certain open space parcels within The Village (at Avon) will be dedicated to the Town. Planning Area B (as depicted on the PUD Map) will be conveyed to the Town for community facilities, including the construction of a natural amphitheater and preservation and development of a water body, along with other complementary public amenities. Trail connections to off-site public lands will be provided as set forth in the PUD Guide. Cluster development is anticipated for the “hillside residential” lots (Planning Area K as depicted on the PUD Map), preserving open space and steep slope features. Exhibit B 1019859.1 3 7. Sufficient Land Area for Proposed Uses: Sufficient land area has been provided to comply with all applicable regulations of the Development Code, to adequately serve the needs of all permitted uses in the PUD projects, and to ensure compatibility between uses and the surrounding neighborhood. The Village (at Avon) comprises nearly 1780 acres, including land designated for residential (including affordable housing), commercial, industrial, mixed use, open space, parks, school sites, public facilities and other public amenities. The PUD, Declaration of Master Design Review Covenants for The Village (at Avon) and The Village (at Avon) Design Review Guidelines provide for a comprehensive, master-planned mixed use development with appropriate development and design standards to provide for a high quality development and to adequately serve the needs of all uses contemplated within The Village (at Avon). Development of The Village (at Avon) will comply with the density and dimensional limitations set forth in the PUD Guide. As discussed in response no. 4 above, the PUD provides for compatibility between uses within The Village (at Avon) and with adjacent properties. Exhibit B Ex h i b i t C Ex h i b i t C Ex h i b i t C Ex h i b i t C Ex h i b i t C Ex h i b i t C Ex h i b i t C   Page 1 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide   EXISTING/PROPOSED PLANNING AREA COMPARISON TABLES  Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area A N/A A Acres 33 N/A 43 Max Density 25 DU/Acre N/A 25 DU/Acre Allowed Uses  Single retail use less than 60,000sf  Residential  Lodging  Transportation facilities  Churches  Museums  Libraries  Public buildings  Indoor/Outdoor recreation  Entertainment facilities  Parks and Open space  Day care  Temporary real estate offices  Commercial uses: Retail stores; Professional offices and businesses; Banks and financial institutions; Personal services; Food and beverage establishments; Clubs and recreation; Entertainment uses. N/A  Single retail uses less than 65,000 sf.  Convenience retail (without fuel)  Restaurants (without drive-through window service)  Financial institutions (without drive-through window service)  Residential uses  Mixed use projects (unless use is listed as prohibited or SRU)  Educational facilities  Cabled telecommunication equipment, facilities, and services  Wireless telecommunication equipment, facilities, and services  Dry utilities  Infrastructure  Indoor recreation/entertainment facilities  Outdoor recreation/entertainment facilities without amplified music  Parks and Open space  Tramways, gondolas, and lifts  Accessory uses & structures  Additional uses as determined by Director  Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Bus stop; Business and professional offices; Child care center; Churches; Cinema; Clinic, Intermediate medical care facility (i.e., out-patient services only); Clothing stores; Community facilities; Commercial offices; Commercial parking; Convenience retail; Department stores; Domesticated animal grooming; Drive-in uses; Employment agency; Extended stay hotel; Grocery store; Financial institutions; Fitness centers and health clubs; Furniture stores; Hardware stores; Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long- term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; Indoor entertainment facility; Indoor storage; Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting facility; Newspaper and commercial printing shops; Nursery or garden supply; Outdoor storage; Professional offices; Real estate sales offices; Photocopy and blueprint businesses; Public facilities; Private parking; Public parking; Recycling facility; Repair shops, Small electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and social clubs; Studios (music, dancing, photography, movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation clubs; Uses which the Director determines to be similar. Exhibit D   Page 2 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide   SRUs  Medical facilities  Education  Emergency heliport  Outdoor entertainment N/A  Single use retail over 65,000 sf.  Automobile repair shop (minor)  Outdoor entertainment with amplified sound  Heliport only as an accessory use to a hospital or medical facility  Hotel uses which exceed 80 feet in building height  Car wash  Drive-in uses  Religious facility  Service station for electric vehicles  Restaurants (with drive-through window service).  Financial institutions (with drive-through window service)  Recycling facilities (excepted as permitted in uses by right)  Rock and gravel crushing Accessory Uses N/A N/A  Animal boarding/Kennel (excluding outdoor)  Outdoor storage  Heliport for hospital or other medical facility Interim Uses N/A N/A  Agricultural  Rodeo and ancillary carnival  Recycling facility  Snow storage  Mobile home office and storage  Driving course and accessory hospitality services related to automobile demonstrations, promotions and sales, not to exceed 10 days/year Prohibited Uses N/A N/A  Animal boarding/Kennels (outdoor)  Automobile repair shop (major)  Family child care home  Group home  Industrial uses  Mobile homes  Medical marijuana businesses  Nude entertainment establishments  Outdoor storage (except as allowed under Use-by-right)  Recycling processing facility  Service station (except as allowed under SRU)  Tattoo parlor, body piercing Height  80’ north of E Beaver Creek Blvd  55’ south of E Beaver Creek Blvd N/A  80’ if located more than 250 feet from the southerly boundary of PA-A  135’ north of Main St. (Hotel Only)  55’ if located less than 250 feet from the southerly boundary of PA-A Setbacks 20’ from E Beaver Creek Blvd & N, S, and W boundaries of area N/A 20’ from West and South Boundaries Site Coverage N/A N/A  80% if located less than 250 feet from the southerly boundary of PA-A  100% if located more than 250 feet from the southerly boundary of PA- A Exhibit D   Page 3 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area B, C B, C B Acres 4.1 combined N/A 4.1 Max Density 14 Dwelling Units Maximum N/A N/A Allowed Uses  Cultural, Recreational, and Educational including: Performing arts, outdoor amphitheaters; Museums and galleries; Community meeting facilities; Classrooms; Libraries; Accessory Retail; Day Care  Accessory employee housing  Temporary real estate offices  Public/Private roads & utilities  C only: Ice skating  Work with TCMD for pond/ impoundment water feature for water augmentation purposes  Parks and Open space  Community facilities  Infrastructure  Dry utilities  Water storage and water resource management facilities SRUs None N/A  Outdoor entertainment with amplified sound Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural Use  Snow storage Prohibited Uses N/A N/A  Commercial uses  Residential uses  Industrial uses  Mixed use projects (except as allowed under Use-by-right) Height 60’ + Architectural Projections N/A 60 feet Setbacks 20’ from E. Beaver Creek Blvd & N,S, and W boundaries of area N/A  25’ from adjacent road right-of-way  20’ from Planning area A Site Coverage Not Defined N/A 20% Exhibit D   Page 4 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area D, E, F N/A C, D Acres 28.2 combined N/A 39 combined Max Density 18 DUs/Acre N/A 18 DUs/Acre Allowed Uses  Residential uses  Temporary real estate offices  Public/Private transportation  Bus, rail, tramways, gondola  Public/Private utilities  Indoor/Outdoor recreation/ entertainment facilities  Parks and Open space  Accessory uses  E&F if fronting E. Beaver Creek Blvd: Commercial uses: Retail stores; Professional offices and businesses; Banks and financial institutions; Personal services; Food and beverage establishments; Clubs and recreation; Entertainment uses.  D only: Pedestrian bridges  D only: Lodging N/A  Residential uses  Single retail uses under 5,000 SF  Community facilities  Ben and breakfast, vacation club, temporally divided dwellings and short-term rentals  Mixed use projects (unless use is listed as prohibited or SRU)  Commercial parking, private parking, public parking including but not limited to parking structure, bus stops, bus shelters, tramways, gondolas and lifts  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Indoor recreation and entertainment facilities  Outdoor recreation and entertainment facilities without amplified sound  Parks and Open space  Minor home occupations  Accessory uses and structures  Additional uses as determined by Director  Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber and beauty shops; Beverage stores/Coffee shops; Business and professional offices; Child care center; Churches; Cinema; Clinic, Intermediate medical care facility (i.e., out-patient services only); Clothing stores; Community facilities; Commercial offices; Commercial parking; Convenience retail; Department stores; Domesticated animal grooming; Drive-in uses; Employment agency; Extended stay hotel; Family child care home; Grocery store; Group home; Financial institutions; Fitness centers and health clubs; Furniture stores; Hardware stores; Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long-term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; Indoor storage; Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting facility; Newspaper and commercial printing shops; Nursery or garden supply; Professional offices; Real estate sales offices; Photocopy and blueprint businesses; Public facilities; Recycling facility; Repair shops, Small electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and social clubs; Studios (music, dancing, photography, movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation clubs; Uses which the Director determines to be similar. SRUs E&F:  Lodging  Medical  Educational N/A  Single retail uses over 5,000 SF  Hospitals, long-term care facilities and other medical facilities up to a maximum of 80 feet of building height  Heliport if accessory to hospital or other medical facility Exhibit D   Page 5 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide   facilities  Churches  Museums  Heliport  Outdoor entertainment  Churches, museums, libraries and public buildings  Outdoor Storage (as accessory use)  Car wash  Drive-in uses  Religious facilities  Convenience retail (with fuel)  Restaurants (with drive-through window service)  Financial institutions (with drive-through window service)  Major home occupations  C only: Mixed use projects (unless use is listed as prohibited)  C only: Hotel, motel, lodge  D only with Main street frontage: Automobile repair shops (minor)  D only with Main street frontage: Educational facilities  D only with Main street frontage: Outdoor entertainment with amplified sound Accessory Uses N/A N/A Outdoor storage if accessory to retail use Interim Uses N/A N/A  Agricultural use  D only: Recycling facility and accessory trash facility Prohibited Uses N/A N/A  Automobile repair shops (major)  Outdoor Animal boarding/Kennels  Industrial uses  Mobile homes  Medical marijuana businesses  Nude entertainment establishments  Outdoor storage (except as allowed by SRU)  Recycling processing center  Service stations  Tattoo parlor, body piercing Height 48 feet N/A 48 feet, but Hospitals and other medical facilities up to 80 feet as allowed but SRU Setbacks  25’ Front  0’ Side  10’ Rear N/A  25’ Front  0’ Side  10’ Rear  20’ from southerly boundary of PA-D Site Coverage Not Defined N/A 80% Exhibit D   Page 6 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area G I, M E, I (school site dedication only, see I for additional standards) Acres 7.3 3.6 (I), 3.7 (M) 4 (3.52 according to Plat + Balance in Planning Area I) Max Density N/A N/A N/A Allowed Uses  Educational  Recreational  Public/Private roads/utilities  Parks and Open space  Day care facilities  I only: Stone Creek Charter school  M only: Educational facility serving K- 12 or portion of such grades  Pre- school, day care, community educational, cultural, and/or art classes, museum, or recreational  Educational uses  Child care facilities  Pre-school facilities  Community facilities  Adult educational facilities  Cultural and/or art classes  Recreational facilities  Museums  Infrastructure  Dry utilities  Other cultural/community service oriented uses and facilities SRUs N/A N/A N/A Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A N/A Height 35 feet + Architectural Projections N/A 35 Feet Setbacks  25’ Front  7.5’ Side  10’ Rear N/A  25’ Front  7.5’ Side  10’ Rear Site Coverage Not Defined N/A 80% Exhibit D   Page 7 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area H, J, K N/A F, G, H Acres 41.5 N/A 41 Max Density 15 DUs/Acre N/A 18 DUs/Acre Allowed Uses  Residential  Public/Private transit/parking  Public/Private roads/utilities  Churches, museums, libraries  Public buildings  Indoor/Outdoor recreation  Parks and Open space  Temporary real estate offices  Entertainment facilities  Commercial uses: Retail stores; Professional offices and businesses; Banks and financial institutions; Personal services; Food and beverage establishments; Clubs and recreation; Entertainment uses.  J&K: Lodging, no more than 2 retail stores not to exceed 60,000sf  K only: Service commercial uses N/A  Residential uses  Mixed use projects (unless use is listed as prohibited or SRU)  Educational facilities  Community facilities  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Bus stops, shelters, tramways, gondolas, and lifts  Churches, museums, libraries, and public buildings  Indoor recreation and entertainment facilities without amplified sound  Outdoor entertainment facilities with amplified sound  Outdoor recreation and entertainment facilities without amplified sound  Parks and Open space  Child care center  Indoor Animal boarding/Kennels  F only: Recycling Facility  F only: Heliport if accessory to a hospital or other medical facility  Accessory uses and structures  Additional uses as determined by Director  Commercial uses: Accommodations units; Automobile repair shop (minor); Bakeries; Bar and tavern; Barber and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Business and professional offices; Car wash (as the principal use); Child care center; Cinema; Clinic, Intermediate medical care facility (i.e., out-patient services only); Clothing stores; Community facilities; Commercial offices; Commercial parking; Convenience retail; Department stores; Domesticated animal grooming; Drive-in uses; Employment agency; Extended stay hotel; Family child care home; Grocery store; Group home; Financial institutions; Fitness centers and health clubs; Furniture stores; Hardware stores; Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long- term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; Indoor storage; Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting facility; Newspaper and commercial printing shops; Nursery or garden supply; Outdoor storage; Professional offices; Real estate sales offices; Photocopy and blueprint businesses; Private parking; Public parking; Recycling facility; Repair shops, small electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and social clubs; Service stations; Studios (music, dancing, photography, movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation clubs; Uses which the Director determines to be similar. Exhibit D   Page 8 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide   SRUs  Medical facilities  Educational  Emergency heliport  Amplified sound  H only: Lumber sales and yard, service, auto repair, car wash  J only: Service commercial uses N/A  Service station  Outdoor Animal boarding/Kennels  Rock and gravel crushing  G and H only: Heliport only as an accessory use to a hospital or medical facility Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use  Construction staging Prohibited Uses N/A N/A  Heavy industrial uses  Medical marijuana businesses  Nude entertainment establishments  Automobile repair shops (major)  Family child care home  Group home  Mobile home  Recycling processing center  Tattoo parlor, body piercing Height  48’  35’ SF/ Duplex  H Only: 42’ N/A  80’ Hospital  48’ Commercial/MF Residential/Mixed-Use/Industrial  135’ for Hotel subject to SRU approval  35’ SF/Duplex Setbacks  25’ Front  7.5’ Side  10’ Rear  20’ adjacent to Railroad N/A  25’ Front  0’ Side (Commercial/Mixed use projects); 7.5’ Side (Industrial/Residential)  10’ Rear  20’ abutting I70 or Railroad ROW Site Coverage Not Defined N/A 80% Exhibit D   Page 9 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area M M I Acres 47.7 N/A 57 Max Density 15 DUs/Acre N/A 15 DU/acre; but not less than 196,970 GSF of commercial and 750 DUs, but no commercial and a maximum of 280 DUs until a second access is constructed Allowed Uses  Residential  Public/Private transit/parking  Public/Private roads/utilities  Churches, museums, libraries  Public buildings  Indoor/Outdoor recreation  Entertainment facilities  Commercial uses: Retail stores; Professional offices and businesses; Banks and financial institutions; Personal services; Food and beverage establishments; Clubs and recreation; Entertainment uses.  Portion or all of 5.8 acre park land from N- South used for park, trail head, trail connections, dog park, natural park  PUD Plan amended to depict road access to Planning Area M.  Road to be narrowed two lane profile with ability to construct separated pedestrian/ recreational trail  Residential uses  Mixed use projects (unless use is listed as prohibited or SRU)  Educational facilities  Community facilities  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Bus stops, shelters, tramways, gondolas, and lifts  Churches, museums, libraries, and public buildings  Indoor recreation and entertainment facilities without amplified sound  Outdoor entertainment facilities with amplified sound  Outdoor recreation and entertainment facilities without amplified sound  Parks and Open space  Child care center  Indoor Animal boarding/Kennels  Recycling Facility  Heliport if accessory to a hospital or other medical facility  Pedestrian and vehicular bridges, bridge abutments and related improvements  Automobile repair shops (major and minor)  Light industrial uses  Accessory uses and structures  Additional uses as determined by Director  Commercial uses: Accommodations units; Bakeries; Bar and tavern; Barber and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Business and professional offices; Car wash (as the principal use); Cinema; Clinic, Intermediate medical care facility (i.e., out-patient services only); Clothing stores; Commercial offices; Commercial parking; Convenience retail; Department stores; Domesticated animal grooming; Drive-in uses; Employment agency; Extended stay hotel; Family child care home; Grocery store; Group home; Financial institutions; Fitness centers and health clubs; Furniture stores; Hardware stores; Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long-term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; Indoor storage; Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting facility; Newspaper and commercial printing shops; Nursery or garden supply; Outdoor storage; Professional offices; Real estate sales offices; Photocopy and blueprint businesses; Public facilities; Private parking; Public parking; Recycling processing facility; Small electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and social clubs; Service stations; Studios (music, dancing, photography, movie, art Exhibit D   Page 10 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide   and broadcasting); Tailor, seamstress, clothing alterations; Tattoo parlor, body piercing; Temporally divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation clubs; Uses which the Director determines to be similar. SRUs  Medical facilities, emergency heliport, educational  Amplified sound N/A  Service station  Outdoor Animal boarding/Kennels  Rock and gravel crushing  Hotel Uses exceeding 80 feet in building height Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use  Construction staging Prohibited Uses N/A N/A  Heavy industrial uses  Medical marijuana businesses  Nude entertainment establishments Height  48’  35’ SF/Duplex N/A  135’ Hotel uses subject to SRU approval  80’ Hospital  48’ Commercial/MF Residential/Mixed-Use/Industrial  35’ SF/Duplex Setbacks  25’ Front  7.5’ Side  10’ Rear N/A  25’ Front  0’ Side (Commercial/Mixed use projects); 7.5’ Side (Industrial/Residential)  10’ Rear  20’ abutting I70 or Railroad ROW Site Coverage Not Defined N/A 80% Exhibit D   Page 11 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area RMF-1 / N-South RMF-1/ N-South J Acres 35.1 / 5.8 (40.9 combined) N/A 37 Max Density 6 DUs/Acre / N/A N/A 18 DUs/Acre Allowed Uses RMF-1  Residential  Professional office  Personal service  Food and beverage  Recreational facilities  Temporary real estate office  Public/Private roads  Parks and Open space  Commercial uses: Retail stores; Professional offices and businesses; Banks and financial institutions; Personal services; Food and beverage establishments; Clubs and recreation; Entertainment uses. N-South  Trails  Landscaping  Indoor/Outdoor recreation  Lakes, ponds, reservoirs  Parks, picnic facilities  Public/Private roads  Commercial zoning  Hotel  Lodging  Gas station  Convenience retail  Restaurant  Similar uses  Portion or all of 5.8 acre park land from N-South used for park, trail head, trail connections, dog park, natural park  Residential uses  Mixed use projects (unless use is listed as prohibited or SRU)  Automobile repair shops (minor)  Community facilities  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Bus stops, shelters, tramways, gondolas, and lifts  Recreational facilities  Parks and Open space  Accessory uses and structures  Additional uses as determined by Director  Commercial uses: Accommodations units; Animal boarding; Bakeries; Bar and tavern; Barber and beauty shops; Bed and breakfast; Beverage stores/Coffee shops; Business and professional offices; Car wash (as the principal use); Churches; Cinema; Clinic, Intermediate medical care facility (i.e., out-patient services only); Clothing stores; Community facilities; Commercial offices; Commercial parking; Convenience retail; Department stores; Domesticated animal grooming; Drive-in uses; Employment agency; Extended stay hotel; Family child care home; Grocery store; Group home; Financial institutions; Fitness centers and health clubs; Furniture stores; Hardware stores; Hotel, motel and lodge; Home occupations, minor and major; Hospitals, long-term care facilities and other medical facilities including, but not limited to clinics, group and congregate care facilities, independent and assisted living facilities and nursing homes; Indoor entertainment facility; Indoor storage; Kennels; Laboratory; Landscaping and snow removal services; Laundromat/dry cleaning; Medical and dental offices; Meeting facility; Newspaper and commercial printing shops; Nursery or garden supply; Outdoor storage; Professional offices; Real estate sales offices; Photocopy and blueprint businesses; Public facilities; Private parking; Public parking; Recycling facility; Recycling processing facility; Repair shops, Small electronics repair; Restaurants; Retail sales, specialty and gift shops; Ski tuning; Bike assembly; Service and social clubs; Service stations; Studios (music, dancing, photography, movie, art and broadcasting); Tailor, seamstress, clothing alterations; Temporally divided dwelling; Theaters; Trade schools and colleges; Transit shelter; Vacation clubs; Uses which the Director determines to be similar. SRUs RMF-1  Churches  Museums N/A  Churches, museums, libraries and public buildings  Child care center  Rock and gravel crushing Exhibit D   Page 12 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Libraries  Day Care N-South – N/A Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A  Automobile repair shops (major)  Medical marijuana businesses  Nude entertainment establishments  Tattoo parlor, body piercing Height RMF-1  48’  35’ SF/Duplex N-South – 35’ N/A  48’ Commercial/MF Residential/Mixed-Use/Industrial  35’ SF/Duplex  55’ Hotel, Motel , Lodge Setbacks RMF-1  20’ Front  10’ Side/Rear  Adjacent to I-70: 20’ N-South – N/A N/A  20’ Front  0’ Side (Commercial); 10’ Side (Residential)  10’ Rear  20’ abutting I70 ROW Site Coverage Not Defined  Adjustable by Traer appropriate for this site  Design requirements enforced at building permit 80% Exhibit D   Page 13 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area Res - SF Hillside area K Acres 916.4 N/A 1,302 Max Density  91 Primary  91 Secondary  1 Caretaker on Lot 1  98 Multi-family maximum  No minimum lot area  Amended to increase to maximum amount of units allowed on cul-de-sac  Supersede TOA standards from 2011  280 DUs for Planning Area K and RMF-1 (Primary/Secondary DUs are considered 1 DU)  Minimum lot area is 1 acre Allowed Uses Lot 1:  HOA, clubhouse, recreational facilities  Public/Private roads/utilities  Temporary real estate office Lots 6-96:  SF residential  Primary/secondary structure  Temporary real estate office  Portion or all of 5.8 acre park land from N-South used for park, trail head, trail connections, dog park, natural park  Residential uses  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Recreational facilities  Parks and Open space  Public facilities  Community facilities  Homeowner association facilities  Accessory uses and structures  Additional uses as determined by Director SRUs N/A N/A Rock and gravel crushing Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A  Commercial Uses  Industrial Uses Height 35’ + Non-habitable Architectural Projections N/A  48’ MF residential  35’ SF/Duplex/HOA amenities and Community facilities Setbacks  20’ for Lot 1 only  70% of footprint within building envelope N/A  25’ Front  20’ Side  20’ Rear  20’ for Lot 1 only Site Coverage Not Defined N/A  SF: Lesser of 1 acre of lot or 80% of lot  Other uses: building envelope Exhibit D   Page 14 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area OS1-11 OS9-10 Open Space Acres 499.9 OS9-10 dedicated to Town at time of platting Area M 539 (155 from OS-1 – OS-7 and 384 Minimum from K) Max Density N/A N/A N/A Allowed Uses  Equestrian, pedestrian and bicycle trails  Landscape improvements  Public/private roads/ utilities, except in OS10 shall be generally n/s axis  OS1-OS9 – Lakes, ponds, reservoirs, irrigation ditches, park and picnic facilities  Open space purposes Easement allowing construction of bridge and bridge abutments  Equestrian, pedestrian and bicycle trails  Landscape improvements  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Infrastructure  Dry utilities  Snow storage  Public or private roads and utilities  OS1-5,7 only: Lakes, ponds, reservoirs and irrigation ditches  OS1-5,7 only: Park and picnic facilities and related parking  OS5-6 only: Community Facilities  OS5-6 only: Recreational uses including public river access  OS5-6 only: Pedestrian and vehicular access, roads, bridges, bridge abutments, and related improvements SRUs  OS-10: Lakes, ponds, reservoirs  Park/Picnic facilities  Public/Private roads/utilities N/A  Rock and gravel crushing  OS6 only: Lakes, ponds, reservoirs and irrigation ditches  OS6 only: Park and picnic facilities and related parking Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A All uses not allowed by right or SRU Height N/A N/A N/A Setbacks N/A N/A N/A Site Coverage Not Defined N/A N/A Exhibit D   Page 15 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area N, L N/A PF1-3 Acres varies N/A 4 (PF1), 2 (PF2), and 13 (PF3) Max Density N/A N/A N/A Allowed Uses  Area N- Community park uses  Regional commercial uses N/A  Community facilities  Equestrian, pedestrian and bicycle trails  Landscape improvements  Sports, training, and recreation facilities (indoor/outdoor)  Lakes, ponds, reservoirs and irrigation ditches  Parks, picnic facilities, temporary entertainment of special events  Open space  Infrastructure  Dry utilities SRUs  Medical facilities  Educational facilities  Emergency heliport  Outdoor entertainment N/A  Rock and gravel crushing Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A  Residential uses  Commercial uses  Industrial uses Height  Area N – 35’ + Projections  Area L – 48’ N/A  35 feet Setbacks N/A N/A N/A Site Coverage Not Defined N/A  N/A Exhibit D   Page 16 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area RMF-3 N/A RMF-1 Acres 16.3 N/A 27 Max Density 6 DUs/Acre N/A 6 DUs/Acre Allowed Uses  Residential  Child care  Residential facilities  Residential management office  Temporary real estate office  Public/Private roads/utilities  Accessory uses N/A  Residential uses  Community facilities  Bed and breakfast, vacation club, temporally divided dwellings and short-term rentals  Infrastructure  Dry utilities  Recreational facilities  Temporary real estate offices and construction offices  Residential management office  Accessory Uses and structures  Additional uses as determined by Director SRUs N/A N/A  Preschool, nursery school, in-home child care, child care center  Group home  Commercial parking, private parking, and public parking  Bus Stops, shelters, tramways, gondolas, lifts  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services  Rock and gravel crushing Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A  Commercial uses except as allowed by right or SRU  Industrial uses  Mobile homes Height  48’ Multi-family  35’ SF/Duplex + Arch Projections N/A  48 feet (Commercial/MF Residential)  35 feet (SF/duplex) Setbacks 20’ from I-70 ROW N/A  20’ Front  10’ Side  10’ Rear Site Coverage Not Defined N/A  80%  Minimum landscaped area: 20%   Exhibit D   Page 17 Tables Comparing Existing and Proposed Planing Areas Ver 16 PUD Guide    Current   Settlement  Term Sheet  Proposed (Version 16) Planning Area RMF-2 N/A RMF-2 Acres 43.6 N/A 39 Max Density 12 DUs/Acre N/A 12 DUs/Acre Allowed Uses  SF, Duplex, Multi-family  Child care  Recreational facilities  Residential management offices  Temporary real estate offices  Public/Private roads/utilities N/A  Residential uses  Community facilities  Bed and breakfast, vacation club, temporally divided dwellings and short-term rentals  Infrastructure  Dry utilities  Recreational facilities  Temporary real estate offices and construction offices  Residential management office  Accessory Uses and structures  Additional uses as determined by Director  Pedestrian bridges SRUs N/A N/A  Preschool, nursery school, in-home child care, child care center  Group home  Commercial parking, private parking, and public parking  Bus Stops, shelters, tramways, gondolas, lifts  Cabled telecommunication equipment, facilities, and services  Wireless telecommunications equipment, facilities, and services Accessory Uses N/A N/A N/A Interim Uses N/A N/A  Agricultural use Prohibited Uses N/A N/A  Commercial uses except as allowed by right or SRU  Industrial uses  Mobile homes Height  35’ SF or Duplex  48’ Other Uses N/A  48 feet (Commercial/MF Residential)  35 feet (SF/duplex) Setbacks 20’ from I-70 ROW N/A  20’ Front  10’ Side  10’ Rear Site Coverage Not Defined N/A  80%  Minimum landscaped area: 20%   Exhibit D 0 2,0001,000 Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 09/20/12Existing PUD Open Space and Parkland I Parkland - 45AC Open Space - 500AC The Village at Avon - Other Planning Areas Constructed Roads Temporary Roads Lakes and Rivers Ex h i b i t E 0 2,0001,000 Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 09/20/12Proposed PUD Open Space and Parkland I Open Space - 155AC/ 539AC at Build Out Parkland - 19AC/24.8AC at Build Out The Village at Avon - Other Planning Areas Constructed Roads Temporary Roads Lakes and Rivers i. “5.8 acres of additional parkland to be dedicated to the Town within Planning Areas A, C, D, I, J, K, I, and/or widening P1”ii. “In addition to Planning Areas OS-1-OS-7, at least 29.5% (384 acres) of PA-K to be designated as Open Space.”Ex h i b i t E 0 800400 Feet This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 08/31/12Easements to be Transferred to Town of Avon Swift G u l c h R d Po s t B l v d Chapel Pl East B e a v e r C r e e k B l v d 70 70 Eagle River 6 Lakes and Rivers Easements to be Transferred Railroad 25' Irrigation Easement Eagle R i v e r Road Access Easement Nottingham Gulch Dam Energy Dissapater Water Well Easement Ex h i b i t F This map was produced by the Community Development Department.Use of this map should be for general purposes only.Town of Avon does not warrant the accuracy of the data contained herein.Author: JTK, 08/29/12Aerial: September 2011. (c) 2010 Microsoft Corporation and its data suppliers Public Road Tracts for the Village (at Avon)0 680340 Feet Pu b l i c R o a d T r a c t s f o r t h e V i l l a g e ( a t A v o n ) Town of Avon Boundary Property Boundaries Road Tracts Rivers POST BLVD SWIFT GULCH RD E BEAVER CREEK BLVD YODER AVE6 70 70 Ex h i b i t F 999369.16 – V16-E 12 (c) Temporary Uses may be permitted in The Village (at Avon) in accordance with the Development Code, even though such Uses otherwise may be within a Use Category that is not permitted within the applicable Planning Area. (d) Uses not identified as a Use by Right, Special Review Use, Temporary Use or Interim Use shall be a Prohibited Use unless determined by the Director that the proposed use is substantially similar to a Use by Right, Special Review Use, Temporary Use, or Interim Use. The listing of Prohibited Uses for each Planning Area is not exhaustive and shall not limit the interpretation of Uses by Right, Special Review Uses, Temporary Uses or Interim Uses stated in the preceding sentence. (e) In all Planning Areas, Architectural Projections may project ten (10) feet or less beyond the applicable Building Envelope with the prior written consent of the Design Review Board. Architectural Projections may project greater than ten (10) feet beyond the applicable Building Envelope with the prior written consent of the Design Review Board and the Town. 2. Planning Area A - Village Center Mixed Use Project. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.2(b) below or specifically prohibited in Section D.2(c) below, the following Primary Uses and Accessory Uses: (i) Commercial Uses; provided, however, no single retail business shall occupy more than 65,00060,00019 of consolidated Gross Square Footage. (ii) Animal Boarding (excluding outdoor Animal Boarding) as an Accessory Use to another Commercial Use only, and subject to review and written approval by the Design Review Board authorizing such Use. (iii) Kennels (excluding outdoor Kennels) as an Accessory Use to another Commercial Use only, and subject to review and written approval by the Design Review Board authorizing such Use. (iv) Convenience Retail (without fuel). (v) Restaurants (without drive-through window service). (vi) Financial institutions (without drive-through window service). (vii) Residential Uses. (viii) Mixed Use Projects; provided, however, (a) no Uses specifically prohibited in Section D.2(c) below shall be included in such Mixed Use Project, and (b) no Uses specifically identified as Special Review Uses in Section D.2(b) below shall 19 This tracks language in 1998 PUD. Exhibit G 999369.16 – V16-E 13 be included except pursuant to the review and approval processes set forth in Section E below. (ix) Educational facilities including, but not limited to public and private schools, universities, and colleges. (x) Cabled Telecommunications Equipment, Cabled Telecommunications Facilities and Cabled Telecommunications Services. (xi) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (xii) Dry Utilities. (i) Infrastructure. Public or private transportation, transit or parking facilities including, but not limited to bus, rail stations, tramways, gondolas and lifts. (xiii)(x) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (xiv)(xi) Indoor recreation and/or entertainment facilities. (xv)(xii) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xvi)(xiii) Parks and Open Space. (xvii) Tramways, gondolas and lifts. (xviii)(xiv) Outdoor Storage, only as an Accessory Use to a retail Use. (xix)(xv) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xx)(xvi) Agricultural Use (as an Interim Use only). (xxi)(xvii) Rodeo and ancillary carnival (as an Interim Use only). (xxii)(xviii) Recycling Facility (as an Interim Use only). (xxiii)(xix) Snow storage (as an Interim Use only). (xxiv)(xx) Mobile Home office/storage Use and community garden (as an Interim Use only). (xxv)(xxi) Driving course and accessory hospitality services related to automobile demonstrations, promotions and sales, not to exceed 10 days in the aggregate Exhibit G 999369.16 – V16-E 14 in a calendar year (as an Interim Use), provided that such Use exceeding 10 days in the aggregate in a calendar year shall be a Temporary Use. (xxvi)(xxii) Additional Uses which the Director determines to be similar to uses by right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Educational facilities including, but not limited to public and private schools, universities, and colleges.20 (ii) Hospitals and medical facilities, but not limited to clinics, group and congregate care facilities, nursing homes and hospitals.21 (i)(iii) Single retail businesses occupying more than 65,000 of consolidated Gross Square Footage.22 (ii)(iv) Automobile Repair Shop (Minor). (iii)(v) Outdoor entertainment facilities that include the use of amplified music. (iv)(vi) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (v)(vii) Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) which exceed 80 feet in Building Height. (vi)(viii) Car wash. (vii)(ix) Drive-in Uses. (viii) Religious Facility. (ix)(x) Service Station (for the sale of only electric form of fuel for motorized vehicles). (x)(xi) Restaurants (with drive-through window service). (xi)(xii) Financial institutions (with drive-through window service). (xii)(xiii) Recycling Facilities (except as permitted in Section D.2(a) above). 20 This tracks language in1998 PUD. 21 This tracks language in 1998 PUD. 22 1998 PUD did not allow single retail use over 60,000 sq.ft. by Special Review Use. Exhibit G 999369.16 – V16-E 15 (xiii)(xiv) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Animal Boarding (outdoor). (ii) Automobile Repair Shop (Major). (iii) Family Child Care Home. (iv) Group Home. (v) Industrial Uses. (vi) Kennels (outdoor). (vii) Mobile Homes. (viii) Medical Marijuana Businesses. (ix) Nude Entertainment Establishments. (x) Outdoor Storage (except as expressly allowed as a Use by Right in Section D.2(a)). (xi) Recycling Processing Facility. (xii) Service Station (except as specifically identified as a Special Review Use in Section D.2(b)). (xiii) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Southerly and Westerly boundaries of Planning Area A: 20 feet. (2) All others: None, except as may be necessary to accommodate utilities, drainage, access, fire and building code regulations and the flood plain of live streams. (ii) Maximum Building Height: (1) Portions of Planning Area A located less than 250 feet from the southerly boundary of Planning Area A: 55 feet. Exhibit G 999369.16 – V16-E 16 (2) Portions of Planning Area A located 250 or more feet from the southerly boundary of Planning Area A: 80 feet, provided that hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) exceeding 80 feet shall be permitted up to a maximum Building Height of 135 feet as a Special Review Use as specifically identified in Section D.2(b).23 (iii) Maximum Site Coverage: (1) Portions of Planning Area A located less than 250 feet from the southerly boundary of Planning Area A: 80% (2) Portions of Planning Area A located 250 or more feet from the southerly boundary of Planning Area A: 100% (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 25 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 3. Planning Area B - Community Facilities. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.3(b) below or specifically prohibited in Section D.3(c) below, the following Primary Uses and Accessory Uses: (i) Parks and Open Space. (ii) Community Facilities and related amenities as may be mutually approved by the Town and the Design Review Board. (ii) Accessory retail uses and commercial uses, food and beverage establishments. 24 (iii) Day care facilities.25 (iii) Agricultural Use (as an Interim Use only). (iv) Infrastructure. 23 This provision was not in the 1998 PUD Guide or in the Settlement Term Sheet. 24 This provision is consistent with language in 1998 PUD Guide for Planning Area C. 25 This provision is consistent with language in 1998 PUD Guide for Planning Area C. Exhibit G 999369.16 – V16-E 17 (v) Dry Utilities. (iv) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings.26 (vi)(v) Snow storage (as an Interim Use only). (vii)(vi) Water storage and water resource management facilities. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Outdoor entertainment facilities that include the use of amplified music. (c) Prohibited Uses: (i) Commercial Uses. (ii) Residential Uses. (iii) Industrial Uses. (iv) Mixed Use Projects (except as specifically included as a Use By Right in Section D.3(a) above). (d) Building Envelope Requirements: (i) Minimum Building Setbacks: 25 20 feet from the adjacent road right-of-way. 20 feet from property line abutting Planning Area A. None from property line abutting Main Street. There shall be no other setback requirements except as may be necessary to accommodate utilities, drainage, access, fire and building code regulations and flood plain of live streams. (ii) Maximum Building Height: 60 feet. (iii) Maximum Site Coverage: 20%27 (iv)(iii) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations, and as provided therein, parking requirements may be satisfied by provision of off-site parking, including without limitation, off-site shared parking, in accordance with the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. 26 This is the language in the 1998 PUD Guide. 27 This provision is not the 1998 PUD Guide. Exhibit G 999369.16 – V16-E 18 (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 4. Planning Areas C and D - Village Residential Mixed Use Projects. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.4(b) below or specifically prohibited in Section D.4(c) below, the following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Commercial Uses; provided, however, no single retail business shall occupy more than 5,000 of consolidated Gross Square Footage that have frontage on Main Street.28 (iii) Agricultural Use (as an Interim Use only). (iv) Community Facilities. (v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings and short-term rentals. (vi) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.4(c) below shall be included in such Mixed Use Project, and no Uses specifically identified as Special Review Uses in Section D.4(b) below shall be included except pursuant to the review and approval processes set forth in Section E below). (vii) Commercial Parking, Private Parking and Public Parking, including but not limited to Parking Structures, Bus Stops, Bus Shelters, tramways, gondolas and lifts. (iv) Public or private transportation, transit or parking facilities including, but not limited to bus, rail stations, tramways, gondolas and lifts. (viii) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings.29 (viii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (subject to review and written approval of such Use by the Design Review Board). 28 This language is consistent with the 1998 PUD Guide. 29 This language is consistent with the 1998 PUD Guide. Exhibit G 999369.16 – V16-E 19 (ix) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (subject to review and written approval of such Use by the Design Review Board). (x) Infrastructure. (xi)(ix) Dry Utilities. (xii)(x) Indoor recreation and/or entertainment facilities. (xiii)(xi) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xiv)(xii) Parks and Open Space. (xv) Minor Home Occupations. (xiii) Planning Area C Only: (1) pedestrian bridges and lodging facilities including, but not limited to hotel, motel, and bed and breakfast.30 (xvi)(xiv) Planning Area D Only: (1) Recycling Facility and accessory trash facility (as an Interim Use only). (xvii)(xv) Accessory Uses and Structures customarily appurtenant to the foregoing Uses by Right. (xviii)(xvi) Additional Uses which the Director determines to be similar to the foregoing Uses by Right. (b) Special Review Uses:31 The following Uses shall be permitted within Planning Area D in areas that have frontage on Main Street pursuant to the review and approval processes set forth in Section E below: (i) Lodging facilities including, but not limited to hotel, motel, and bed and breakfast. (ii) Medical facilities including, but not limited to offices, clinics, group and congregate care facilities, nursing homes and hospitals. (iii) Educational facilities including, but not limited to public and private schools, universities, colleges and day care. 30 This is consistent with 1998 PUD Guide. 31 These language changes are consistent with the 1998 PUD Guide. Exhibit G 999369.16 – V16-E 20 (iv) Churches, museums, libraries and public buildings. (v) Emergency heliport. (vi) Outdoor entertainment facilities that include the use of amplified music. (i) Single retail businesses occupying more than 5,000 of consolidated Gross Square Footage. (ii) Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes exceeding a Building Height of 48 feet, provided that any such Use shall be located 250 or more feet from the southerly boundary of Planning Area D. (iii) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (iv) Churches, museums, libraries and public buildings. (v) Outdoor Storage, only as an Accessory Use to a retail Use. (vi) Car wash. (vii) Drive-in Uses. (viii) Religious Facility. (ix) Convenience Retail (with fuel). (x) Restaurants (with drive-through window service). (xi) Financial institutions (with drive-through window service). (xii)(vii) Major Home Occupations. (xiii)(viii) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (xiv) Within Planning Area C only: (1) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.4(c) below shall be included in such Mixed Use Project). (2) Hotel, Motel and Lodge. Exhibit G 999369.16 – V16-E 21 (xv) Within Planning Area D only in areas having frontage on Main Street only: (1) Automobile Repair Shops (Minor). (2) Educational facilities including, but not limited to public and private schools, universities, and colleges. (3) Outdoor entertainment facilities that include the use of amplified music (subject to review and written approval by the Design Review Board authorizing such Use). (c) Prohibited Uses: (i) Automobile Repair Shops (Major). (ii) Animal Boarding (outdoor). (iii) Industrial Uses. (iv) Kennels (outdoor). (v) Mobile Homes. (vi) Medical Marijuana Businesses. (vii) Nude Entertainment Establishments. (viii) Outdoor Storage, except as specifically identified as a Special Review Use in Section D.4(b). (ix) Recycling Processing Center. (x) Service Stations. (xi) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Front: 25 feet (2) Side: None (3) Rear: 10 feet (4) Southerly boundary of Planning Area D: 20 feet Exhibit G 999369.16 – V16-E 22 (ii) Maximum Building Height: (1) Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes: 80 feet, as specifically identified as a Special Review Use in Section D.4(b). (2)(1) All other Uses: 48 feet.32 (iii) Maximum Site CoverageMinimum Landscaped Area: 33 8020% (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 18 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 5. Planning Area E - School. (a) Purpose: To mitigate the impact of the Residential Uses proposed for development within The Village (at Avon) by providing land for school needs generated by the Residential Uses proposed for development within The Village (at Avon) directly for the benefit of the children of the Town as reasonably necessary to serve The Village (at Avon) and future residents thereof. (b) Uses by Right: The following Primary Uses and Accessory Uses: (i) Educational uses, limited to use as a state [authorized]authorized or accredited educational facility serving grades K-12 (or any portion of such grades). (ii) Agricultural Use (as an Interim Use only). (iii) Subject to prior written approval from the Design Review Board authorizing such Uses, the following education-related Uses: (1) Child Care Facilities. (2) Pre-school facilities. 32 48’ is consistent with 1998 PUD Guide. 33 This change is consistent with the 1998 PUD Guide. Exhibit G 999369.16 – V16-E 23 (3) Community/adult educational facilities. (4) Cultural and/or art classes. (5) Recreational facilities. (6) Museums. (iv) Infrastructure. (v) Dry Utilities. (iv) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings.34 (vi)(v) Such other cultural/community service oriented Uses and facilities as the Design Review Board may authorize in writing. (c) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Front: 25 feet (2) Side: 7.5 feet (3) Rear: 10 feet (ii) Maximum Building Height: 35 feet. (iii) Maximum Site Coverage: 80%35 (iv)(iii) Minimum Lot Area: Not applicable. (d) Parking Requirements: As set forth in the Parking Regulations. (e) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (f) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects. 34 This language is consistent with the 1998 PUD Guide. 35 The 1998 PUD Guide did not have a maximum site coverage for the school Planning Area. Exhibit G 999369.16 – V16-E 24 (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.6(b) below or specifically prohibited in Section D.6(c) below, the following Primary Uses and Accessory Uses: (i) Commercial Uses, provided that no retail store occupied by a single retail business shall exceed 60,000 sq.ft. of Commercial Space on the southern 3.2 acres of Planning Area F.36 (ii) Residential Uses. (iii) Mixed Use Projects (provided, however, no Uses specifically prohibited in Section D.6(c) below shall be included in such Mixed Use Project, and no Uses specifically identified as Special Review Uses in Section D.6(b) below shall be included except pursuant to the review and approval processes set forth in Section E below). (iv) Agricultural Uses (as an Interim Use only). (v) Educational facilities including, but not limited to public and private schools, universities, and colleges. (vi) Community Facilities. (vii) Public or private transportation, transit or parking facilities including but not limited to bus and rail stations. (viii) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (vii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing being subject to review and written approval of such Use by the Design Review Board). (viii) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the foregoing being subject to review and written approval of such Use by the Design Review Board). (ix) Infrastructure. (x) Dry Utilities. (xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts. 36 This incorporates the language from the 1998 PUD Guide which placed the 60,000 sq.ft. limitation on existing Planning Area H (now southern part of PA-F) and I (now PA-E) but not on existing Planning Area J (now northern part of PA-F). Exhibit G 999369.16 – V16-E 25 (xii)(ix) Churches, museums, libraries and public buildings. (xiii)(x) Indoor recreation and/or entertainment facilities that do not include the use of amplified music. (xiv)(xi) Outdoor entertainment facilities that include the use of amplified music (subject to review and written approval of such Use by the Design Review Board). (xv)(xii) Outdoor recreation and/or entertainment facilities that do not include the use of amplified music. (xvi)(xiii) Parks and Open Space. (xvii)(xiv) Child Care Center. (xviii)(xv) Animal Boarding (excluding outdoor Animal Boarding), subject to review and written approval by the Design Review Board authorizing such Use (xix)(xvi) Kennels (excluding outdoor Kennels), subject to review and written approval by the Design Review Board authorizing such Use. (xx)(xvii) Construction staging (as an Interim Use only). (xxi)(xviii) Planning Areas F and I Only: (1) Recycling Facility. (2) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic. (xxii)(xix) Planning Area I Only: (1) Pedestrian and vehicular bridges, bridge abutments and improvements reasonably related thereto. (2) Automobile Repair Shops (Major and Minor). (3) Light Industrial Uses. (xxiii)(xx) Additional Uses which the Director determines to be similar to the foregoing Uses by Right. (xxiv)(xxi) Accessory Uses and Structures customarily appurtenant to the foregoing Uses by Right. (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: Exhibit G 999369.16 – V16-E 26 (i) Hospitals and medical facilities including, but not limited to offices, clinics, group and congregate care facilities, nursing homes and hospitals. (ii) Educational facilities including, but not limited to public and private schools, universities, colleges and day care. (i)(iii) Service Station. (ii)(iv) Animal Boarding (outdoor), subject to review and written approval by the Design Review Board authorizing such Use (iii)(v) Kennels (outdoor), subject to review and written approval by the Design Review Board authorizing such Use. (iv)(vi) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (v) Planning Areas G and H Only: (1) Heliport, only as an Accessory Use to a Hospital or other medical facility, including but not limited to a clinic (subject to review and written approval by the Design Review Board authorizing such Use).37 (vi)(vii) Planning Areas F, G and H Only: (1) Animal Boarding (outdoor). (2) Kennels (outdoor). (vii)(viii) Planning Area I Only: (1) Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) which exceed 48 feet in Building Height. (c) Prohibited Uses: (i) Heavy Industrial Uses. (ii) Medical Marijuana Businesses. (iii) Nude Entertainment Establishments. (iv) Planning Areas F, G and H Only: (1) Automobile Repair Shops (Major). 37 This is consistent with 1998 PUD Guide which only allowed hospital use as Special Review Use. Exhibit G 999369.16 – V16-E 27 (2) Family Child Care Home. (3) Group Home. (4) Mobile Homes. (5) Recycling Processing Center. (6) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Minimum Building Setbacks: (1) Commercial Uses: a. Front: 25 feet b. Side: None7.5 feet c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (2) Industrial and Residential Uses: a. Front: 25 feet b. Side: 7.5 feet. c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (3) Vertically-integrated Mixed Use Projects: a. Front: 25 feet b. Side: None c. Rear: 10 feet d. Abutting Interstate 70 or railroad right-of-way: 20 feet (ii) Maximum Building Height: 48 feet. Single-family or duplex residential structures shall not exceed 35 feet. Non-habitable architectural features such Exhibit G 999369.16 – V16-E 28 as chimneys, towers, steeples and similar features shall be excluded from the calculation of building height.38 (1) Commercial Uses: a. Hotel Uses (including without limitation, hotel Uses comprising a portion of a Mixed Use Project) exceeding 48 feet shall be permitted up to a maximum Building Height of 135 feet as specifically identified as a Special Review Use in Section D.6(b). b. Hospitals, Long-term Care Facilities and other medical facilities including, but not limited to clinics, independent and assisted living facilities (including cafeteria and food preparation areas), group and congregate care facilities and nursing homes: 80 feet. c. All other Commercial Uses: 48 feet. (2) Industrial Uses: 48 feet. (3) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (4)(1) Vertically-integrated Mixed Use Projects (except as set forth in Section D.6(d)(ii)(1) with respect to hotels comprising a portion of a Mixed Use Project): 48 feet. (iii) Maximum Site CoverageMinimum Landscaped Area: 8020%. (iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: (i) Planning Areas F, G and H: 18 Dwelling Units per acre. (ii) Planning Area I: 15 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 38 This is the language in the 1998 PUD Guide. Exhibit G 999369.16 – V16-E 29 7. Planning Area J – Regional/Neighborhood Commercial and Residential Mixed Use Projects. (a) Uses by Right: Except as specifically identified as Special Review Uses in Section D.7(b) below or specifically prohibited in Section D.7(c) below, the following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Commercial Uses. (iii) Mixed Used Projects; provided, however, (a) no Uses specifically prohibited in Section D.7(c) below shall be included in such Mixed Use Project, and (b) no Uses specifically identified as Special Review Uses in Section D.7(b) below shall be included except pursuant to the review and approval processes set forth in Section E below. (iv) Automobile Repair Shops (Minor). (v) Community Facilities. (vi) Agricultural Use (as an Interim Use only). (vii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services. (viii) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (ix) Infrastructure. (x) Dry Utilities. (xi) Bus Stops, Bus Shelters, tramways, gondolas and lifts. (vii) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (xii)(viii) Recreational facilities. (xiii)(ix) Parks and Open Space. (xiv)(x) Additional uses which the Director determines to be similar to Uses by right. (xv)(xi) Accessory Uses and Structures customarily appurtenant to Uses by Right. Exhibit G 999369.16 – V16-E 30 (b) Special Review Uses: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (i) Churches, museums, libraries and public buildings. (ii) Child Care Center. (iii) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Automobile Repair Shops (Major). (ii) Medical Marijuana Businesses. (iii) Nude Entertainment Establishments. (iv) Tattoo parlor, body piercing. (d) Building Envelope Requirements: (i) Building Setback Requirements: (1) Residential Uses: a. Front: 20 feet (except as provided below). b. Side: 10 feet (except as provided below). c. Rear: 10 feet (except as provided below). (2) Commercial Uses: a. Front: 20 feet (except as provided below). b. Side: None (except as provided below). c. Rear: 10 feet (except as provided below). (3) Notwithstanding the foregoing, the minimum Building Setback abutting the Interstate 70 right-of-way shall be 20 feet. (ii) Maximum Building Height: 48 feet. Single-family or duplex residential structures shall not exceed 35 feet. Non-habitable architectural features such as chimneys, towers, steeples and similar features shall be excluded from the calculation of building height. Exhibit G 999369.16 – V16-E 31 (4) Commercial (excepting Hotel, Motel and Lodge Uses) and Light Industrial Uses: 48 feet. (5) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (6) Vertically-integrated Mixed Use Projects: 48 feet. (7) Hotel, Motel and Lodge Uses: 55 feet. (ii)(iii) Maximum Site CoverageMinimum Landscaped Area: 8020% (iii)(iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: 18 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 8. Planning Area K - Hillside Residential. (a) Uses by Right: Except as specifically prohibited in Section D.8(b) below, the following Primary Uses and Accessory Uses: (i) Residential Uses.Single family residential dwelling. (ii) Primary/Secondary structure. (ii)(iii) Agricultural Use (as an Interim Use only). (iv) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (iii) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (iv) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the Exhibit G 999369.16 – V16-E 32 foregoing subject to review and written approval of such Use by the Design Review Board). (v) Infrastructure. (vi) Dry Utilities. (vii)(v) Recreational facilities. (viii)(vi) Parks and Open Space. (ix) Public Facilities. (x) Community Facilities. (xi)(vii) For Lot 1 only, Hhomeowner association facilities including, but not limited to, a caretaker unit (as a Secondary Structure), clubhouse and restaurant, community meeting facilities, recreational facilities, and other similar facilities and amenities. (xii)(viii) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xiii)(ix) Additional uses which the Director determines to be similar to Uses by Right. (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Commercial Uses. (ii) Industrial Uses. (d) Building Envelope Requirements: The layout, location, size and number of Lots within Planning Area K as depicted on the PUD Master Plan are conceptual, non-binding and provided only for illustrative purposes only. The precise layout, location, size and number of Lots and the precise location of the Building Envelope for each Lot within Planning Area K will be as established by and reflected in the Final Plat creating the Lot, and shall be based on various site specific features of the Lot such as the topography, grade, natural vegetation and similar matters, but shall generally comply with the following requirements unless such compliance is determined to be impractical or unreasonable. (i) Minimum Building Setbacks: (1) Front: 25 feet (except as set forth below). Exhibit G 999369.16 – V16-E 33 (2) Side: 20 feet (except as set forth below). (3) Rear: 20 feet (except as set forth below). (4) For conceptual Lot 1 (as depicted on the PUD Master Plan): 20 feet from the property line, except as otherwise required to accommodate utilities, drainage, access, fire and building code regulations, and the flood plain of live streams. (ii) Maximum Building Height: (1) Residential Uses: a. Single-family Dwellings and Duplex Dwellings: 35 feet. b. Multi-family Dwellings: 48 feet. (2) Homeowner association amenities and Community Facilities: 35 feet. (iii) Maximum Site Coverage:39 (1) Single-Family Residential Uses: the lesser of (a) 1 acre of the applicable Lot; or (b) 80% of the applicable Lot, provided that the final Site coverage shall be the Building Envelope for each Lot on the Final Plat creating the applicable Lot, provided further that, in any event, such Building Envelope shall comply with the requirements of this Section. (2) All other Uses: the final Site coverage shall be the Building Envelope for each Lot on the Final Plat creating the applicable Lot, provided further that, in any event, such Building Envelope shall comply with the requirements of this Section. (iv) Minimum Lot Area: 1 acre. (e) Residential Density Maximum: Building permits may be issued for no more than 280 Dwelling Units in the aggregate for Planning Area K and Planning Area RMF-1 (provided that Primary/Secondary Dwelling Units situated on the same Lot in Planning Area K or the same Lot in Planning Area RMF-1 shall be considered one Dwelling Unit).40 (f) Parking Requirements: As set forth in the Parking Regulations. 39 This method of maximum site coverage and building envelope determination is superior to the existing definition and was requested by Town staff. With Council direction to narrowly implement the Settlement Term Sheet, the Applicant may prefer the 1998 PUD Guide definition. If such is the case I do not object or recommend against re- including the building envelop definition in the 1998 PUD Guide. 40 The 1998 PUD Guide counts Primary/Secondary Dwelling Units as 2 Dwelling Units. Exhibit G 999369.16 – V16-E 34 (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family. (a) Uses By Right: The following Primary Uses and Accessory Uses: (i) Residential Uses. (ii) Community Facilities. (iii) Preschool, nursery, in-home child care and child care. (iii)(iv) Agricultural Use (as an Interim Use only). (iv)(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings and short-term rentals. (vi) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (v) Infrastructure. (vi)(vii) Dry Utilities. (vii)(viii) Recreational facilities. (viii)(ix) Temporary real estate offices and construction offices. (ix)(x) Residential management office. (x)(xi) Accessory Uses and Structures customarily appurtenant to Uses by Right. (xi)(xii) Additional uses which the Director determines to be similar to Uses by Right. (xii)(xiii) Planning Area RMF-2 Only: (1) Pedestrian bridges. (b) Special Review Uses: (i) Churches, museums, libraries and public buildings. Exhibit G 999369.16 – V16-E 35 (i)(ii) Preschool, nursery school, in-home child care, and Child Care Center. (ii)(iii) Group Home. (iii)(iv) Commercial Parking, Private Parking and Public Parking. (iv) Bus Stops, Bus Shelters, tramways, gondolas and lifts. (v) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (vi)(v) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services (each of the foregoing subject to review and written approval of such Use by the Design Review Board). (vii)(vi) Planning area RMF-1 Only: (1) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Commercial Uses (except as specifically included in Sections D.9(a) or D.9(b)). (ii) Industrial Uses. (iii) Mobile Homes. (d) Building Envelope Requirements: (i) Building Setback Requirement: 20 feet from Interstate-70 right- of-way, provided there shall be no other setback requirements except as may be necessary to accommodate utility improvements, lines and mains, facilities, services and buildings. (1) Front: 20 feet. (2) Side: 10 feet. (3) Rear: 10 feet. (ii) Maximum Building Height: (1) Single-family Dwellings and Duplex Dwellings: 35 feet. (2) Multi-family Dwellings: 48 feet. Exhibit G 999369.16 – V16-E 36 (3) Commercial: 48 feet. (iii) Maximum Site Coverage: 80%. (iv)(iii) Minimum Landscaped Area: 20%. (v)(iv) Minimum Lot Area: Not applicable. (e) Residential Density Maximum: (i) Planning Area RMF-2: 12 Dwelling Units per acre. (ii) Planning Area RMF-1: 6 Dwelling Units per acre. (f) Parking Requirements: As set forth in the Parking Regulations. (g) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (h) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 10. Planning Areas P1-P3: Parkland. (a) Uses By Right: Except as specifically prohibited in Section D.10(b) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Community Facilities (subject to review and written approval of such Uses by the Design Review Board). (iii) Equestrian, pedestrian and bicycle trails. (iv) Landscape improvements. (v) Indoor and outdoor, sports, training and recreation facilities. (vi) Lakes, ponds, reservoirs and irrigation ditches. (vii) Parks, picnic facilities and temporary entertainment for special events. (viii) Open Space (ix) Infrastructure. (x) Dry Utilities. Exhibit G 999369.16 – V16-E 37 (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (c) Prohibited Uses: (i) Residential Uses. (ii) Commercial Uses. (iii) Industrial Uses. (d) Building Envelope Requirements: (i) Building Setback Requirement: No minimum except must be sufficient to accommodate utilities, drainage, access, fire and building code regulations and flood plain of live streams. (ii) Maximum Building Height: 35 feet. (iii) Maximum Site Coverage: Not applicable. (iv) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 11. Planning Areas OS1 – 0S7: Natural Open Space. (a) Uses By Right: Except as specifically identified as Special Review Uses in Section D.11(b) below or specifically prohibited in Section D.11(c) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Equestrian, pedestrian and bicycle trails. (iii) Landscape improvements. (iv) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. Exhibit G 999369.16 – V16-E 38 (iv) Cabled Telecommunications Equipment, Cabled Television Facilities and Cabled Telecommunications Services. (v) Wireless Telecommunications Equipment, Wireless Telecommunications Facilities and Wireless Telecommunications Services. (vi) Infrastructure. (vii) Dry Utilities. (viii)(v) Snow storage. (ix)(vi) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings; provided, however, such uses which are located in Planning Area OS6 shall be oriented on a generally north-south axis. (x)(vii) OS1 – 0S5 and OS7: (1) Lakes, ponds, reservoirs and irrigation ditches. (2) Park and picnic facilities and related parking. (xi)(viii) OS5 and OS6 (subject to review and written approval of such Uses by the Design Review Board): (1) Community Facilities. (2) Recreational Uses including public river access. (3) Pedestrian and vehicular access, roads, bridges, bridge abutments and improvements reasonably related thereto. (xii)(ix) OS3: (b) Special Review Uses: (i) Rock and gravel crushing operations related to rock and gravel materials excavated within The Village (at Avon) PUD. (ii) OS6 only: The following Uses shall be permitted pursuant to the review and approval processes set forth in Section E below: (1) Lakes, ponds, reservoirs and irrigation ditches. (2) Park and picnic facilities and related parking (subject to review and written approval of such Uses by the Design Review Board). Exhibit G 999369.16 – V16-E 39 (c) Prohibited Uses: All Uses other than Uses by Right and Special Review Uses specifically listed above. (d) Building Envelope Requirements: (i) Building Setback Requirement: Not applicable. (ii) Maximum Building Height: Not applicable. (iii) Maximum Site Coverage: Not applicable. (iv) Minimum Lot Area: Not applicable. (v) Minimum Lot Area: Not applicable. (e) Parking Requirements: As set forth in the Parking Regulations. (f) Supplemental Regulations: All development is further subject to the supplemental regulations set forth in Section I below. (g) Street Requirements: Streets are subject to the standards set forth in Exhibit F of this PUD Guide. 12. Planning Areas PF-1 – PF-3: Public Facility.41 (a) Uses By Right: Except as specifically identified as Special Review Uses in Section D.12(b) below or specifically prohibited in Section D.12(c) below, the following Primary Uses and Accessory Uses: (i) Agricultural Use (as an Interim Use only). (ii) Public Facilities. (iii) Landscape improvements. (iv) Public or private roads and utilities including but not limited to utility improvements, lines and mains, facilities, services and buildings. (iv) Infrastructure. (v) Dry Utilities (subject to review and written approval of such Use by the Design Review Board). (vi)(v) Within Tract E, Final Plat, The Village At Avon Filing 3 (Planning Area PF-3), and Tract F, Final Plat, The Village At Avon Filing 3 as amended (Planning 41 This is a new Planning Area designation which I and Town staff asked the Applicant to create to treat certain lots dedicated to public entities differently. Exhibit G