TC Council Packet 10-23-20121 Eagle County Pre-Disaster Mitigation Plan 2012
Encompassing the following entities:
Eagle County √
Town of Avon √
Town of Eagle√
Town of Gypsum√
Town of Minturn √
Town of Red Cliff √
Town of Vail √
Rock Creek Volunteer Fire Department √
Eagle-Vail Metropolitan District √
Basalt and Rural Fire Protection District√
Eagle River Fire Protection District √
Gypsum Fire Protection District √
Greater Eagle Fire Protection District√
Pre-Disaster Mitigation Plan
2012
2 Eagle County Pre-Disaster Mitigation Plan 2012
Table of Contents
INTRODUCTION 4
DISASTER MITIGATION ACT OF 2000 4
PURPOSE, GOALS AND OBJECTIVES 5
SCOPE OF THE PLAN 5
PROJECT PARTICIPANTS 6
AUTHORITY 7
PLAN ORGANIZATION 8
PROJECT PLANNING AND METHODOLOGY 8
THE PLANNING TEAM 9
PROJECT INITIATION AND TEAM COORDINATION 10
HAZARD IDENTIFICATION 11
PUBLIC INVOLVEMENT 11
THE RISK ASSESSMENT 12
HAZARD IDENTIFICATION AND PROFILES 13
REVIEW OF CURRENT PLANS, STUDIES AND REPORTS 14
MITIGATION PLANNING 16
PLAN MAINTENANCE AND ADOPTION 17
COMMUNITY PROFILES: 17
EAGLE COUNTY, COLORADO 18
AVON, COLORADO 21
EAGLE, COLORADO 23
GYPSUM, COLORADO 25
MINTURN, COLORADO 27
RED CLIFF, COLORADO 29
VAIL COLORADO 31
EAGLE-VAIL METROPOLITAN DISTRICT 33
-FIRE & AMBULANCE DISTRICTS 35
ROCK CREEK VOLUNTEER FIRE DEPARTMENT 36
EAGLE COUNTY AMBULANCE DISTRICT 36
BASALT AND RURAL FIRE PROTECTION DISTRICT 37
EAGLE RIVER FIRE PROTECTION DISTRICT 37
GREATER EAGLE FIRE PROTECTION DISTRICT 38
GYPSUM FIRE PROTECTION DISTRICT 38
HAZARDS IN EAGLE COUNTY 39
PRIORITIZED HAZARDS 39
WILDFIRE 40
FLOODING (INCLUDING FLASH AND SEASONAL FLOODING) 43
WINTER STORMS 46
TRANSPORTED HAZARDOUS MATERIALS (HAZMAT) 46
PANDEMIC DISEASE OUTBREAK 47
LANDSLIDES 48
COLLAPSIBLE SOILS AND EVAPORITE FORMATIONS 49
AVALANCHE 50
TERRORIST ACTIVITY 51
3 Eagle County Pre-Disaster Mitigation Plan 2012
OTHER HAZARDS 52
VULNERABILITY AND RISK ASSESSMENT BY HAZARD TYPE 52
PLAN IMPLEMENTATION AND MAINTENANCE 55
MONITORING, EVALUATING AND UPDATING THE PLAN 57
APPENDIX A – MITIGATION GOALS FOR EAGLE COUNTY 58
APPENDIX B – HAZARD MITIGATION PROJECTS 60
APPENDIX C – PUBLIC SURVEY RISK ASSESSMENT 102
APPENDIX D –HAZARD MAPS 105
APPENDIX E- PLANNING PROCESS WORK PLAN 107
APPENDIX F – REPRESENTATIVE EXAMPLE OF MEETING AGENDA 108
APPENDIX G - ATTENDANCE SHEET 109
APPENDIX H – FLOOD PLAIN MAPS 112
APPENDIX I – HAZARDOUS MATERIALS FLOW STUDY SUMMARY 115
APPENDIX J – STAPLEE EXAMPLES 117
APPENDIX K- CRITICAL INFRASTRUCTURE LIST 120
4 Eagle County Pre-Disaster Mitigation Plan 2012
INTRODUCTION
Natural hazards such as wildfire, avalanche, severe winter storms and others are
common to the mountainous regions of Colorado and can impact, sometimes
significantly, every aspect of life in Eagle County. To provide a roadmap for continued
reduction of the impacts on safety, property and critical infrastructure caused by all
hazards, Eagle County, the incorporated jurisdictions and many of the special districts
have participated in this update of the 2005 Pre-Disaster Mitigation Plan (“PDMP” or the
“Plan”). The previous plan was developed jointly with Pitkin County primarily because
portions of the Town of Basalt lie in both counties. In this update the plans were done
separately.
A requirement of the multi-jurisdictional PDMP is that each jurisdiction requesting
approval of the plan must document that it has participated in the development of the
plan, that it has submitted mitigation projects for inclusion in the plan and that the plan
has been formally adopted by its governing body. In Eagle County, participants that have
adopted this Plan include the incorporated towns of Avon, Eagle, Gypsum, Minturn, Red
Cliff and Vail along with the Basalt & Rural, Eagle River, Greater Eagle and Gypsum
Fire Protection Districts, the Eagle-Vail Metropolitan District and the Rock Creek
Volunteer Fire Department. The Town of Basalt adopted the previous plan but withdrew
from this version in preference of aligning with the Pitkin County plan. All of the fire and
metropolitan districts are new participants for this update of the plan.
DISASTER MITIGATION ACT OF 2000
To better protect the Nation from disasters, particularly natural disasters, the U.S.
Congress passed the Robert T. Stafford Disaster Relief and Emergency Assistance Act,
enacted as the Disaster Mitigation Act of 2000 (DMA 2000). With this legislation the
Federal government has placed renewed emphasis on pre-disaster mitigation of potential
hazards. Most significant to state and local governments under the DMA 2000 are its
amendments to Sections 203 (Pre-Disaster Hazard Mitigation) and 322 (Mitigation
Planning).
Section 203 of the DMA 2000 establishes a "National Pre-Disaster Mitigation Fund"
to support a program that will "provide technical and financial assistance to state and
local governments to assist in the implementation of pre-disaster hazard mitigation
measures that are cost-effective and designed to reduce injuries, loss of life, and damage
and destruction of property, including damage to critical services and facilities under the
jurisdiction of the state or local governments."
Section 322 of the DMA 2000 provides a new and revitalized approach to mitigation
planning by:
• Establishing a requirement and delivering new guidance for state, local and tribal
mitigation plans;
5 Eagle County Pre-Disaster Mitigation Plan 2012
• Providing for states to receive an increased percentage of HMGP funds (from 15
percent to 20 percent) if, at the time of the declaration of a major disaster, they have
in effect an approved State Mitigation Plan that meets criteria defined in the law; and
• Authorizing up to seven percent (7.0%) of the Hazard Mitigation Grant Program
(HMGP) funds available to a state to be used for development of state, local and tribal
mitigation plans.
PURPOSE, GOALS AND OBJECTIVES
The purpose of the PDMP is to:
1. Protect life, property and the environment by reducing the impact of natural and
human-caused hazards.
2. Reduce the economic impact and speed recovery and redevelopment following
future disaster events.
3. Commit to hazard mitigation principles.
4. Proactively prepare to minimize the secondary hazards associated with expected
event.
5. Comply with federal and state legislation and guidance for local hazard mitigation
planning.
6. Review mitigation projects, strategies and actions on an annual basis and modify
plans as necessary.
The output of the PDMP is a set of recommended pre-disaster mitigation actions that
minimize the potential impacts from the prioritized hazards. Specific goals and objectives
have been established to deliver measurable benefits to each County through mitigation
actions that have been justified and prioritized using accepted practices and the
methodology described in this document. Eagle County and the participating entities have
formally adopted this Plan and established a process to periodically evaluate and modify
its goals, objectives and mitigation actions as part of on-going PDMP maintenance.
SCOPE OF THE PLAN
The PDMP is focused on those hazards determined to pose high and moderate risk as
indicated by the Counties’ risk assessment. Priority is given to hazards with greater
potential to affect health and safety, impact emergency response capability or distress
critical infrastructure within the Counties.
Planners have considered a spectrum of natural hazards and human-caused threats,
and the hazards and mitigation actions which are detailed in this plan are those prioritized
by the participants. Future iterations of the Plan will re-evaluate hazards and, if
appropriate, prioritize new hazards and develop associated potential mitigation actions
documented in updated versions to the Plan.
6 Eagle County Pre-Disaster Mitigation Plan 2012
PROJECT PARTICIPANTS
The PDMP leveraged the broad skills and interests associated with the participating
jurisdictions. The Plan was developed by a multi-disciplined group consisting of
emergency planners, emergency responders, local government officials, and other subject
matter experts within the private and public sectors. Project participants represented the
County and the respective jurisdictions which adopted this Plan. Other jurisdictions
participated in the planning process but did not submit a specific project. Residents
within Eagle County contributed to Plan development by participating in the risk
assessment and by providing valuable input to the draft Plan. The following table list
planning participants;
NAME REPRESENTING
Barry Smith Eagle County Emergency Management
Tom Johnson Eagle County Public Works
Eric Lovgren Eagle County Wildfire Mitigation
Barb Smith Town of Red Cliff
Jeff Schneider Town of Avon Planning Department
Robert Narracci Eagle County Planning Department
Chris Cerimele Town of Minturn Planning Department
Tom Kassmel Town of Vail Planning Department
Amy Keeley Eagle County GIS Department
Scott Fleming Eagle County GIS Department
Marilyn Gally Colorado Division of Emergency Management
Deanna Butterbaugh Colorado Division of Emergency Management
Pete Miller Eagle River Water and Sanitation District
Brad Slingerlend Colorow Homeowners Association
Kyle Corcoran Vail Fire and Emergency Services
Wade McCaulley Eagle River Water and Sanitation District
Douglas Paul U.S. Bureau of Land Management
Eric Rebitzke U.S. Forest Service
Thomas Snyder Eagle-Vail Homeowners Association
Jodi Pratt Eagle River Fire Protection District
Shawn Moore Greater Eagle Fire Protection District
Tom Wagenlander Greater Eagle Fire Protection District
Sean Koenig Town of Vail GIS Department
Sam Parker Beaver Creek Resort
Bob Egizi Cordillera Metropolitan District
Carol Gill-Mulson Eagle River Fire Protection District
Jeff Layman Eagle-Vail Metropolitan District
Brita Horn Rock Creek Volunteer Fire Department
Bill Wentworth Cordillera Metropolitan District
Jeff Shreeve Town of Gypsum Public Works
John Willson Eagle River Fire Protection District
Willy Powell Town of Eagle, Manager
7 Eagle County Pre-Disaster Mitigation Plan 2012
Shane Pegram Town of Avon Planning Department
Jim Hancock Town of Gypsum Engineering Department
Ramon Montoya Town of Red Cliff, Mayor
Scott Thompson Basalt & Rural Fire Protection District, Chief
Tom Gosiorowski Town of Eagle, Engineer
Justin Kirkland Gypsum Fire Protection District, Deputy Chief
AUTHORITY
The Plan is developed in accordance with current state and federal rules and
regulations governing local hazard mitigation plans, including:
• Section 322, Mitigation Planning, of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as enacted by Section 104 of the Disaster Mitigation Act
of 2000 (P.L. 106-390);
• FEMA’s Interim Final Rule published in the Federal Register on February 26, 2002 at
44 CFR Part 201; and
The authorities for jurisdictions participating in this PDMP have adopted the plan
effective as of the dates shown in the following table.
Jurisdiction Adopting Authority Plan
Adoption
Date
Eagle County Board of County Commissioners
Town of Avon Avon Town Council
Town of Eagle Eagle Town Council
Town of Gypsum Gypsum Town Council
Town of Minturn Minturn Town Council
Town of Red Cliff Red Cliff Town Council
Town of Vail Vail Town Council
Rock Creek VFD Rock Creek VFD Board
Eagle-Vail Metro. District Eagle-Vail Metro. District Board
Basalt Rural Fire Protection District Basalt Rural Fire Protection District Board of Directors
Eagle River Fire Protection District Eagle River Fire District Board of Directors
Gypsum Fire Protection District Gypsum Fire Protection District Board of Directors
8 Eagle County Pre-Disaster Mitigation Plan 2012
The Plan is monitored and revised periodically in accordance with legislation and
rules covering mitigation planning and as described in a subsequent section of this
document.
PLAN ORGANIZATION
The PDMP follows a format consistent with those adopted by FEMA and the State of
Colorado. The Plan includes sections covering:
• Introduction
• Project Planning and Methodology
• Community Profile
• Hazard Identification and Risk Assessment
• Hazard Mitigation Strategy
• Plan Maintenance and Adoption
• Appendices
The planning effort began with a review and update of all sections of the previous plan.
PROJECT PLANNING AND METHODOLOGY
This section describes the hazard mitigation planning process undertaken by Eagle
County to develop the PDMP and create the framework for continuous Plan
improvement. Eagle County utilized a planning methodology using a process based on
best practices and guidance from FEMA and the Colorado Division of Emergency
Management and input from private sector and from the Counties’ respective constituents
and emergency services professionals. Topics in this section include:
• The planning team and the project process
• Plan coordination and team meetings
• Hazards identification and prioritization
• Risk determination and impact on critical infrastructure
• Identification and selection of mitigation strategies
9 Eagle County Pre-Disaster Mitigation Plan 2012
• Implementation of mitigation strategies
• Plan maintenance and updates
This Plan was developed to meet requirements under the Disaster Mitigation Act of 2000
(DMA 2000).
THE PLANNING TEAM
This Plan was developed using input from a cross-functional set of project
participants.
As listed in the following tables, the project planning team consists of individuals
representing the entities who have adopted this Plan. The project approach is constructed
to involve community residents, community officials, including emergency response
professionals and representatives from the private sector. The planning team considered
guidance from FEMA and interviewed a variety of stakeholders to consider possible
project participants. As this planning process continues the County intends to broaden
participation to improve plan quality.
Participating Jurisdictions
Project Participant General Role
Eagle County:
Emergency Management Director
Public Works Director
Senior Engineer
Wildfire Mitigation Specialist
GIS Manager
Planning Manager
Facilitation of planning process
Plan Administration
Project submission
Project submission
Data submission
Plan Preparation
Town of Avon:
Town Engineer
Planning Process
Project submission
Plan Review
Town of Eagle:
Town Engineer
Town Manager
Planning Process
Project submission
Plan Review
Town of Gypsum;
Town Engineer
Public Works Director
Town Manager
Planning Process
Project submission
Plan Review
Plan Administration
Town of Minturn:
Town Manager
Town Engineer
Planning Process
Project submission
Plan Review
Plan Administration
Town of Red Cliff:
Town Clerk
Mayor
Planning Process
Project submission
Plan Review
10 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Vail:
Town Engineer
GIS
Planning Process
Project submission
Plan Review
Rock Creek Fire Department:
Fire Chief
Planning Process
Project submission
Plan Review
Basalt Rural Fire Protection District:
Fire Chief
Assistant Fire Chief
Planning Process
Project submission
Plan Review
Eagle River Fire Protection District:
Fire Chief
Deputy Chief of Operations
Planning Process
Project submission
Plan Review
Gypsum Fire Protection District:
Fire Chief
Fire Marshall
Planning Process
Project submission
Plan Review
Greater Eagle Fire Protection District
Fire Chief
Fire Marshall
Planning Process
Project submission
Plan Review
Eagle-Vail Metropolitan District
Community Manager
Planning Process
Plan Review
Colorado Division of Emergency Management:
Mitigation Specialist
Planning guidance
The Eagle County Public Safety Council is a group of elected and appointed officials
with responsibilities for public preparedness, prevention and safety in Eagle County. This
group which includes representatives from the local, state and federal levels was involved
in the plan review process. Community members provided input to the hazard mitigation
planning process. The methodology used in developing this PDMP encouraged public
involvement by utilizing a web-based survey to increase the potential for public
participation. As part of this survey process, the planning team also collected input from
professionals in emergency management, fire services, medical and health services, law
enforcement, planning, education, airport management, government administration,
community development, transportation, utilities, and others in public and private sectors.
The community’s opinions of the hazards most threatening to their environment were
used to identify and prioritize hazards and direct mitigation efforts. Public involvement
also helped determine critical infrastructure subject to hazard impact. Sample survey
forms and tabulated survey results are attached to the Plan as Appendix C.
PROJECT INITIATION AND TEAM COORDINATION
The inaugural project planning meeting was held on April 22, 2010 to solicit primary
project participants and confirm contact information as well as project activities,
deliverables, schedules, roles and responsibilities. This meeting resulted in a work plan
created to guide Plan development. Meeting dates were schedule for the third Thursday
of each month until plan completion.
11 Eagle County Pre-Disaster Mitigation Plan 2012
HAZARD IDENTIFICATION
The United States is vulnerable to a wide variety of natural hazards that threaten life
and property, including damage to critical facilities and disruption of vital services.
Furthermore, recent local and national events establish that risks exist from human-
caused hazards ranging from accidents to domestic and international terrorism. The
planning team considered a comprehensive list of hazards and used risk assessment
activities to prioritize certain hazards for mitigation actions on a jurisdictional basis.
PUBLIC INVOLVEMENT
The planning team discussed methods of engaging the public in the planning process.
Given the history of minimal public participation in previous attempts at holding open
house meetings, it was the consensus of the team that public input would be sought via
web based surveys to identify hazards of concern and for review of the draft plan prior to
final submission to the adopting jurisdictions. This tactic resulted in response from 22
individuals which was an increase from the 6 attendees in the three public meeting held
during the review of the previous plan.
THE RISK ASSESSMENT
Public Notice printed in the local newspaper of record
encouraging citizens to review the draft plan and provide
comments.
12 Eagle County Pre-Disaster Mitigation Plan 2012
A risk assessment was conducted to analyze hazards, determine loss estimates and
establish a justified basis for selection of mitigation actions. The risk assessment
encompassed these activities:
• Public input - Using community surveys discussed previously in this section,
citizens provide input on hazards and hazard impact within the planning area.
• Risk assessment – Based on subject matter expertise provided by emergency
services professionals within the County and experts in the private sector, hazards were
ranked and impact estimated.
• Identification of critical infrastructure – Resources, facilities and services within the
planning area was evaluated for hazard impact and loss expectancy (see list of critical
infrastructures in appendix K).
The planning team used this information to determine vulnerabilities and provide the
factual basis for the mitigation actions selected.
The results of the community risk assessment are shown below;
Extreme
Risk
High
Risk
Moderate
Risk
Low
Risk
No
Risk
Wildfire 31.8% 31.8% 27.3% 9.1% 0.0%
Winter Storms 13.6% 36.4% 40.9% 9.1% 0.0%
Transported Hazardous Materials 13.6% 27.3% 40.9% 18.2% 0.0%
Seasonal or flash flooding 4.5% 31.8% 31.8% 27.3% 4.5%
Pandemic disease outbreak 0.0% 9.1% 45.5% 45.5% 0.0%
Landslide (Including rock slides) 0.0% 27.3% 31.8% 31.8% 9.1%
Subsidence (Sinkholes) 0.0% 0.0% 40.9% 50.0% 9.1%
Avalanche 9.1% 9.1% 18.2% 50.0% 13.6%
Terrorist Activity 0.0% 0.0% 27.3% 54.5% 18.2%
Drought 4.5% 31.8% 40.9% 22.7% 0.0%
Tornado 0.0% 0.0% 0.0% 59.1% 40.9%
High Winds 9.1% 18.2% 54.5% 18.2% 0.0%
Lightning/Thunderstorms 9.1% 22.7% 54.5% 13.6% 0.0%
Earthquakes 0.0% 0.0% 9.1% 72.7% 18.2%
Fixed facility hazardous materials 0.0% 0.0% 13.6% 72.7% 13.6%
Urban fires 4.5% 9.1% 27.3% 50.0% 9.1%
Airplane crashes 4.5% 13.6% 22.7% 45.5% 13.6%
Civil disturbance 0.0% 9.1%) 18.2% 63.6% 9.1%
Jail Escape 0.0% 0.0% 27.3% 50.0% 22.7%
Hazard Identification and Profiles
13 Eagle County Pre-Disaster Mitigation Plan 2012
The Eagle County Hazard identification and risk assessments were made by compiling
the assessment data from the community surveys and participating agency summary’s to
develop and aggregate assessment for the entire county. The assessments for each
municipality in the county are included in their community profiles.
The hazards identified in Eagle County are summarized in the following table;
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Likely Critical Medium
Avalanche Likely Critical Medium
Civil Disturbance Occasional Limited Medium
Dam Failure Unlikely Limited Low
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Likely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Occasional Limited Medium
Hail Storm Likely Limited low
Hazardous Materials Occasional Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Highly Likely Critical High
Lightning Highly Likely Limited Medium
Terrorist Events Occasional Limited Medium
Tornado Occasional Limited Low
Urban Fire/Conflagration Unlikely Negligible Low
High Winds Likely Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
The highlighted hazards were prioritized by the planning team based upon frequency of
occurrence and/or the potential magnitude from a life safety and economic viewpoint
using the following criteria;
Critical = Injuries and/or illnesses result in permanent disability. Complete shutdown
of critical facilities for at least 2 weeks.
Limited = Injuries and/or illnesses do not result in permanent disability. Complete
shutdown of critical facilities for more than 1 week. More than 10 percent of property
is severely damaged.
14 Eagle County Pre-Disaster Mitigation Plan 2012
Negligible = Injuries and/or illnesses are treatable with first aid. Minor quality of life
lost. Shutdown of critical facilities and services for 24 hours or less. No more than 1
percent of property is severely damaged.
With the threat of wildfire increasing, so too did the need for interagency
collaboration. In January of 2009, the Eagle County Wildfire Council was formed. The
group meets regularly to review aspects of assessing current wildfire risk and mitigation
strategies; funding opportunities to complement private and public land projects; CWPP
updates and associated projects; and training opportunities. The council consists of
agency representatives and stakeholders from throughout Eagle County, including: the
USFS/BLM; the CSFS; Eagle County; Basalt FPD; Gypsum FPD; Greater Eagle FPD;
Eagle River FPD; Rock Creek VFD; Vail Fire and Emergency Services; Vail Resorts;
Cordillera Metro District; Eagle-Vail Metro District; Eagle River Water and Sanitation
District; the Bellyache Ridge HOA, the Colorow HOA, the Pilgrim Downs HOA, the
West Lake Creek Company, the Beaver Creek Resort Company and Beaver Creek Public
Safety.
REVIEW OF CURRENT PLANS, STUDIES AND REPORTS
The following table identifies the status of mitigation actions identified in the current
PDMP;
Mitigation Action Hazard Status Comment
Promote adoption of regulations within all
municipalities within the County
Wildfire ongoing The Town of Vail, Cordillera
Metropolitan District,
Beaver Creek Metropolitan
District and Bachelor Gulch
Metropolitan District have
all adopted regulations
restricting wood roofs.
Encourage the adoption of “Firewise”
standards for all subdivisions within the County
Wildfire ongoing Cordillera Metropolitan
District has received A
“Firewise” designation.
Other areas have adopted
“Firewise” principles but
have not received a
designation.
Provide backup electrical power supply for
critical infrastructures
Winter Storm Ongoing Upgrade have been made as
funding was available.
Plan for areas to provide snow removal without
compromising road widths
Winter Storm Ongoing Some locations identified
others still being sought
Establish “Storm Ready” programs throughout
the County
Winter Storm Deferred Pending NOAA weather
radio installation.
15 Eagle County Pre-Disaster Mitigation Plan 2012
Expand NOAA weather radio coverage to
include the entire County
Winter Storm Ongoing First transmitter to be
installed in 2012.
Plan and execute hazmat exercises on an
annual basis. Include hazmat component with
other exercises
Transported
Hazardous
Materials
Ongoing Annual exercises are being
conducted.
Improve hazmat response capabilities through
identification of relevant training, equipment
and staffing
Transported
Hazardous
Materials
Completed Desired training, staffing
and equipment needs have
been identified.
Expand current public avalanche training
sessions
Avalanche Completed Colorado Mountain College
has added avalanche safety
courses to their curriculum
Add real time localized avalanche hazard
information to County’s website
Avalanche Complete Posted and updated on the
Eagle County website
Provide additional training for emergency
response personnel
Avalanche Completed Ski patrol and Rescue groups
are conducting joint training
Improve identification and characterization of
avalanche hazards
Avalanche Delete Under control of Colorado
Avalanche Information
Center.
Update mapping of avalanche prone areas with
County and incorporate in GIS for public access
Avalanche Delete Under control of Colorado
Avalanche Information
Center.
Implement response plans to provide for quick
remediation of slide damage
Rockslide/
Landslide
Completed Agreements in place to
share public works
resources
Update mapping of rock/landslide areas within
the County
Rockslide/
Landslide
Ongoing Meeting with Public Works
agencies to update maps
Review high and medium risk landslide hazard
areas and evaluate and prioritize for physical
mitigation actions
Rockslide/
Landslide
Deferred Pending update of mapping
Improve early warning and alert systems on
Gore, Brush and Gypsum Creeks and the
Colorado, Eagle, Roaring Fork and Frying Pan
Rivers
Seasonal/
Flash Flooding
Ongoing Added text message alerting
system to our notification
capabilities. Weather radio
will also help.
Expand NOAA weather radio coverage to
include the entire County
Seasonal/
Flash Flooding
Ongoing See above (Winter Storms)
Establish “Storm Ready” programs throughout
the County
Seasonal/
Flash Flooding
Deferred See above (Winter Storms)
Members of the Eagle County Wildfire Council have worked together over the last
several years to develop and implement community based forestry and fuel reduction
projects; yearly interagency training events; regular public forums; on forest health and
FireWise concepts; updates to Eagle County Land Use Regulations; open burning
guidelines and protocols, and the 2011 revision to the Eagle County CWPP.
16 Eagle County Pre-Disaster Mitigation Plan 2012
The current PDMP was reviewed to remove completed projects from the priority list
and to gleam lessons learned from those projects. The planning team also attempted to
identify any other groups with similar objectives in order to coordinated effort into a
singular mitigation plan. As a result, the Eagle County Wildfire Council, Town of Vail
emergency planning group and Eagle County Public Safety Council efforts were
incorporated into this plan.
MITIGATION PLANNING
The risk assessment process identified hazards considered a priority within Eagle
County and the planning team reviewed the goals from the previous plan and developed
revised goals (included in Appendix A) and objectives to guide mitigation planning
efforts. The goal review confirmed validity of the wildfire goals and some new goals
were developed as a result of flooding incident improvement plans. The team also
developed and evaluated strategies for implementing justified and prioritized mitigation
actions.
The County conducted research and interviewed experts to collect potential
mitigation actions for these prioritized hazards. Potential mitigation actions and strategies
then were evaluated using the FEMA-recommended STAPLEE methodology, which
seeks to identify options acceptable and appropriate for the community. STAPLEE
evaluates mitigation options by comparing them to these criteria: Social acceptance,
Technical merit, Administrative support, Political support, Legal support, Economic
viability and the Environment. Mitigation alternatives were also evaluated for cost-
benefit and compared to current mitigation projects underway. The results of this process
defined the mitigation actions included in this plan.
In accordance with the DMA requirements, an emphasis was placed on the
importance of a benefit-cost analysis in determining project priority. Other criteria used
to recommend what actions might be more important, more effective, or more likely to be
implemented than another included:
Does action protect lives?
Does action address hazards or areas with the highest risk?
Does action protect critical facilities, infrastructure or community assets?
Does action meet multiple objectives (Multiple Objective Management)?
Implementation strategies for prioritized mitigation actions were developed and all
targeted mitigation strategies were assigned points of contact within both Counties.
PLAN MAINTENANCE AND ADOPTION
Eagle County will review the plan at least annually and determine whether any
significant changes have occurred requiring modifications to proposed mitigation actions
and the PDMP document. Public input is important to the development and maintenance
17 Eagle County Pre-Disaster Mitigation Plan 2012
of the plan, and the County will continue to seek input from a variety of sources
including residents within the planning area by including a plan review recommendation
each spring and fall during our seasonal natural hazards awareness efforts.
COMMUNITY PROFILES
The following pages contain detailed information about the communities and special
districts in Eagle County, their vulnerabilities and risks:
18 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County
Community Profile
Figure 1 Eagle County
Eagle County is a western Colorado county that has made a transition from a mining and
agricultural economy to a predominately tourist economy which supports world-class recreational
activities. Communities within the county are popular with second homeowners, (49% of the
homes in Eagle County are not primary residences) causing a significant portion of the population
to be part-time residents.
19 Eagle County Pre-Disaster Mitigation Plan 2012
Land use projections and high property values indicate that residential and commercial
property trends will continue to include development in the wildland-urban interface. This fact
increases risk from hazards such as wildfire, avalanche and rock slides, and places significant
demands on emergency planning and response resources.
Geography
Eagle County, Colorado comprises a land area of 1,701 square miles or 1,088,485 acres with
elevations ranging from about 6,000 feet to more the 14,000 feet above sea level.. More than 82%
of Eagle County’s land is public, including National Forests, wilderness areas, Bureau of Land
Management properties, and state and local public lands. Within the county, the U.S. Forest
Service manages 595,860 acres of the White River National Forest, and the Bureau of Land
Management manages 247,751 acres of land. Along the northeast boundary is the Eagles Nest
Wilderness Areas, in the southeast quadrant is the Holy Cross Wilderness Area, and a small piece
of Flat Tops Wilderness Area is in the northwest corner. There are several State Wildlife and
Resource Management Areas and also Sylvan Lake State Park. The Continental Divide runs
along a portion of the southern boundary, and the Colorado Trail (a non-motorized use trail)
crosses the southeast corner of the county.
Eagle County is predominately situated in the Eagle and Colorado River Valley’s with the
Town of Basalt and the El Jebel area located in the Roaring Fork River valley. Since Basalt is
geographically connected more with Pitkin County (1/3 of the Town of Basalt lies within Pitkin
County), they have chosen to align with that plan as opposed to the Eagle County plan.
History
The Ute Indians claimed Eagle County lands for summer hunting and fishing grounds before
Europeans explored the area. The first reliable account of European presence in the Eagle River
Valley was in 1840 when Kit Carson guided the Fremont party through the region.
Fortune hunters and settlers scoured the state, striking lead carbonate ore in Leadville in 1874.
The strike brought many prospectors to the valley, and by 1879 a permanent camp was
established and the town of Red Cliff was born. Eagle County was carved from Summit County
in 1883 and Red Cliff, named for the surrounding red quartzite cliffs, was the first county seat.
The county government moved west to the town of Eagle in 1921. The evolution of Vail from a
quiet sheep pasture to an international resort is credited to the famous 10th Mountain Division ski
troops who were introduced to the valley while training at Camp Hale in the 1940s. Following
World War II, a group of former Army buddies returned to the Gore Creek Valley to fulfill their
collective dream...to develop a ski resort. Vail later emerged as a ski giant and the county has
flourished ever since.
Airport
The Eagle County Regional Airport (EGE) is a public airport located in the Town of
Gypsum, Colorado. The airport serves Eagle County and visitors to nearby Aspen, Vail and
Beaver Creek ski resorts. The History Channel rated Eagle County Regional Airport as #9 on its
list of Most Extreme Airports in July 2010 due to the altitude, weather variability, an approach
through mountainous terrain and challenging departure procedures. The airport is highly seasonal,
and most of its scheduled flights only operate from EGE during the winter. It logged more than
410,000 passengers traveling in and out of the airport in 2010 on up to 52 commercial flights per
day making it the second busiest airport in Colorado during the ski season, the first being Denver
International Airport. Due to the abundance of flights (and bad weather) during the ski season,
some passengers fly into EGE rather than attempting to fly into Denver or Aspen. The Eagle
County Airport is also popular with private aircraft operators. In 2008, a study commissioned by
the Colorado Department of Transportation Aeronautics Division found that the total quantifiable
20 Eagle County Pre-Disaster Mitigation Plan 2012
impact on the local economy from the airport in that year totaled $982,170,400. In addition, the
Eagle County Regional Airport created 10,467 jobs, paying $293,886,700 in wages
Economy
Average per capita income in 2009 for Eagle County was $35,104 which ranked 4th in the
state. By comparison, Colorado’s 2009 per capita income was $29,697. In Eagle County, the
majority of jobs (80%) are in wage and salary employment. Self-employment accounts for the
remaining jobs (20%).
Demographics
Eagle County encompasses eight communities, which include the towns of Avon, Eagle,
Gypsum, Minturn, Red Cliff, Vail and a portion of Basalt. Edwards and El Jebel are two
significant unincorporated community centers located in Eagle County with a total estimated
population of approximately 25,000. In 2009, approximately 53% of residents resided in Avon,
Basalt, Eagle, Gypsum, Minturn, Red Cliff, and Vail, while 47% of residents resided in
unincorporated Eagle County.
Emergency Services
The County is prepared to respond to emergency incidents with responders well trained in
incident management, law enforcement, structural and wildland firefighting, emergency medical
services, hazardous materials, flood fighting, technical rescue, animal rescue, wilderness search
and rescue and others.
21 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Avon
Community Profile
Figure 2 Town of Avon
22 Eagle County Pre-Disaster Mitigation Plan 2012
The Town of Avon was incorporated in 1978 and is located in east central Eagle
County. It has a population of 6500 year round residents and 3500 part time residents.
The Town of Avon boundaries encompass 8 square miles. Avon is located 20 miles east
of Eagle at 7,400 feet above sea level adjacent to Interstate 70, U.S. Highway 6, and the
Eagle River. Avon is the gateway to the Beaver Creek Resort which lies about two miles
south of the town.
The climate of Avon is semi-arid with an average annual precipitation total of around
20 inches. Normal temperatures range from summer highs of upper 70’s to winter lows in
the single digits.
The vegetation in the Avon area varies between lodgepole pine, aspen, spruce,
juniper, sagebrush, service berry and mountain mahogany on the north side of Interstate
70 and the south side of Highway 6 to typical riparian habitat along the Eagle River.
Hazard Identification and Profiles
The hazards identified in the Avon community are summarized in the following table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Unlikely Limited Low
Avalanche Likely Critical High
Civil Disturbance Occasional Limited Medium
Dam Failure Occasional Limited Low
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Occasional Limited Medium
Hail Storm Likely Limited Medium
Hazardous Materials Occasional Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Highly Likely Critical High
Lightning Highly Likely Critical Medium
Terrorist Events Occasional Limited Medium
Tornado Occasional Limited Low
Urban Fire/Conflagration Unlikely Negligible Low
High Winds Likely Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
23 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Eagle
Community Profile
Figure 3 Town of Eagle
24 Eagle County Pre-Disaster Mitigation Plan 2012
The Town of Eagle was established in 1887 and incorporated in 1905. It is located in the
western portion of Eagle County. In 1921, Eagle became the county seat of Eagle County. It has a
population of about 6,500 residents and sits at an elevation of 6,600 feet above sea level. Eagle
is 135 miles west of Denver on Interstate 70. The Town of Eagle boundaries encompass 4.5
square miles and approximately 1,020 acres are town-owed open space.
There are over 290 days of sunshine per year and the average temperatures range from 35
degrees in January to a high of 85 in July. The average rainfall is about 2 inches per month May
through July while the typical snowfall is 10-12 inches per month December through April.
There are miles of hiking and biking trails, multiple public parks including the Town Park
with an outdoor stage venue. There is a pool and ice rink, bike skills park, golf course, 5 hotels, 1
motel, 1 bed and breakfast, shopping, and dining. Kayaking, fly fishing, rafting, and canoeing are
all within the Town limits as well. Eagle is an access point to Sylvan Lake State Park, the 10th
Mountain division hut system, endless snowmobile trails, and backcountry skiing access.
Hazard Identification and Profiles
The hazards identified in the Eagle community are summarized in the following table:
Identified Hazards in the Eagle Community
Hazard Type
Frequency of
Occurrence Magnitude
Hazard
Level
Airplane Crash Unlikely Critical Medium
Avalanche Unlikely Limited Medium
Civil Disturbance Occasional Limited Medium
Dam Failure Unlikely Limited Medium
Disease Outbreak Occasional Limited Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Occasional Limited Low
Flood Occasional Limited Medium
Hail Storm Likely Limited Low
Hazardous Materials Occasional Critical Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Occasional Limited High
Landslide/Rockfall Occasional Limited High
Lightning Highly Likely Limited Medium
Terrorist Events Unlikely Negligible Low
Tornado Unlikely Negligible Low
Urban Fire/Conflagration Unlikely Limited Low
High Winds Occasional Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
25 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Gypsum
Community Profile
Figure 4 Town of Gypsum
26 Eagle County Pre-Disaster Mitigation Plan 2012
The Town of Gypsum was incorporated in 1911 and is located in the western portion of
Eagle County. The 2010 Census indicates a population of 6,477 for Gypsum and the current
boundaries cover 8.08 square miles. Elevations within the Town of Gypsum range from 6,200
to 6,800 feet above sea level and Gypsum is home to the Eagle County Regional Airport.
Summers in the area are warm to hot in the valleys and cool in the surrounding mountains
with average temperatures ranging from 67 to 86 degrees Fahrenheit. Winter months are
usually milder compared with the other areas of Eagle County which encourages Spring to
arrive earlier and Fall to come later.
The Town of Gypsum lies along both Gypsum Creek and the Eagle River just off the
Interstate 70 corridor.
Native vegetation in Gypsum consists mainly of grasses, forbs, woody shrubs, pinyon
pines, juniper trees and other small conifers. Most undeveloped lands within the Gypsum
Creek Valley consist of farmlands with irrigated hay fields and large livestock.
The hazards identified in Gypsum are summarized in the following table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Occasional Critical Medium
Avalanche Unlikely Negligible Low
Civil Disturbance Occasional Limited Medium
Dam Failure Occasional Limited Low
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Occasional Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Likely Limited Medium
Hail Storm Likely Limited Medium
Hazardous Materials Occasional Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Occasional Limited Low
Lightning Highly Likely Critical Medium
Terrorist Events Occasional Limited Medium
Tornado Unlikely Negligible Low
Urban Fire/Conflagration Occasional Limited Medium
High Winds Likely Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
27 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Minturn
Community Profile
Figure 5 Town of Minturn
28 Eagle County Pre-Disaster Mitigation Plan 2012
The Town of Minturn is located along the banks of the Eagle River approximately
two miles south of the intersection of U.S. Highway 24 and Interstate 70. The population
of the town in 2010 was approximately 1,027 residents, a 3.8% decrease from 2000.
Minturn’s oldest families settled at the confluence of Gore Creek and the Eagle River
in the late 1800’s. Some created homesteads and farmed the land, while others mined
silver in the mountains high above town. With the arrival of the Denver & Rio Grande
Railroad in 1887, Minturn quickly developed into a booming crossroads for
transportation and industry. By the turn of the century, a growing population of mining
and railroad workers and their families raised the demands for business and services in
town. In response, the town was incorporated on November 15, 1904.
The climate of Minturn is semi-arid with an average annual precipitation total of
approximately 20 inches. Temperature ranges from highs in the mid to upper 70’s in the
summer and teens and 20’s in the winter.
The vegetation in Minturn consists primarily of lodgepole pine and various sized
aspen stands.
Hazard Identification and Profiles
The hazards identified in the Minturn community are summarized in the following
table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Unlikely Limited Low
Avalanche Occasional Limited Medium
Civil Disturbance Unlikely Limited Medium
Dam Failure Unlikely Critical High
Disease Outbreak Unlikely Critical Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Occasional Negligible Low
Flood Likely Critical Medium
Hail Storm Likely Limited Medium
Hazardous Materials Occasional Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Unlikely Limited Low
Landslide/Rockfall Likely Critical High
Lightning Highly Likely Critical Medium
Terrorist Events Unlikely Limited Medium
Tornado Occasional Limited Low
Urban Fire/Conflagration Highly Likely Critical High
High Winds Occasional Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
29 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Red Cliff
Community Profile
Figure 6 Town of Red Cliff
The Town of Red Cliff is located in southeast Eagle County and has an estimated
2009 population of 335. Red Cliff is the oldest town in Eagle County. It was the first
County Seat for Summit County, which included the current areas of Summit and Eagle
Counties. Red Cliff is located 25 miles southeast of Eagle at 8,650 feet above sea level.
Red Cliff boomed at the turn of the 20th century as a mining town with saloons, a bank,
30 Eagle County Pre-Disaster Mitigation Plan 2012
sawmills and an opera house. The town was mapped and patented in 1883 by the U.S.
government.
The climate of Red Cliff is semi-arid with an average annual precipitation total of
around 20 inches. Temperature ranges from highs in the upper 60’s to lower 70’s in the
summer and teens and 20’s in the winter.
The vegetation in the Redcliff area consists primarily of lodgepole pine and aspen
with an understory of serviceberry and mountain mahogany.
Hazard Identification and Profiles
The hazards identified in the Red Cliff community are summarized in the following
table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Unlikely Limited Low
Avalanche Occasional Limited Medium
Civil Disturbance Occasional Limited Medium
Dam Failure Unlikely Critical High
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Highly Likely Critical High
Hail Storm Likely Limited Medium
Hazardous Materials Occasional Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Highly Likely Critical High
Lightning Highly Likely Critical Medium
Terrorist Events Occasional Limited Medium
Tornado Occasional Limited Low
Urban Fire/Conflagration Highly Likely Critical High
High Winds Occasional Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
31 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Vail
Community Profile
Figure 7 Town of Vail
32 Eagle County Pre-Disaster Mitigation Plan 2012
The Town of Vail is located along Interstate 70, 100 miles west of Denver and 35
miles east of the Eagle County Regional Airport. Vail is generally recognized as being
8,150 feet above sea level (ASL) with elevations in town ranging from 7780 feet (ASL)
to 9,420 feet (ASL).
Vail is 8.5 miles in length with an area of 4.6 square miles, and is surrounded by
350,000 acres of White River National Forest; primarily consisting of aspen and
lodgepole pine, much of which has been affected by pine beetle infestation.
Vail receives more than 335 inches of snow and records almost 300 days of sunshine
each year, with temperatures averaging 75 degrees in the summer and 45 degrees in the
winter.
Once a sheep-raising and lettuce-growing region at the western edge of the Gore
Range Mountains, Vail is now best known as the premier ski resort in North America,
attracting more than one million skiers each season. On the heels of its success as a
resort, Vail has evolved into an appealing recreation-friendly alpine community now
comprised of approximately 5,300 full-time residents and an estimated 5,000 part-time
residents.
Hazard Identification and Profiles
The hazards identified in the Vail community are summarized in the following table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Unlikely Limited Low
Avalanche Occasional Limited Medium
Civil Disturbance Occasional Limited Medium
Dam Failure Unlikely Critical Medium
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited High
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Highly Likely Critical High
Hail Storm Likely Limited Medium
Hazardous Materials Likely Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Highly Likely Critical High
Lightning Highly Likely Limited Medium
Terrorist Events Occasional Limited High
Tornado Unlikely Limited Low
Urban Fire/Conflagration Highly Likely Critical High
High Winds Occasional Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
33 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle-Vail Metropolitan District
Community Profile
Figure 8 Eagle-Vail
The unincorporated area of Eagle-Vail is
located in the eastern portion of Eagle County
and has an estimated 2000 population of 2887.
Eagle-Vail is located on I-70 between the towns
of Avon and Vail, just west of US-24. Eagle-Vail
is at an elevation of around 7600’.
The community was originally platted in the
early 1970’s. The lands that comprise Eagle-Vail
were once agricultural farms and cattle ranches.
During 1963, Jack Oleson assembled and purchased the various parcels of farm and ranch
lands from the original homesteaders in the area and created a cattle ranch where he
raised Polled Herefords and grew crops including feed hay for the livestock. In 1972,
Fred Green of Grouse Mountain Associates purchased the property from Oleson. Shortly
thereafter, Green and his partners submitted a request to Eagle County for the Eagle-Vail
Planned Unit Development, which became the very first PUD to be created in Eagle
County. The next decade saw Eagle-Vail develop Filings #1 and #2, the Eagle-Vail
Commercial Service Center, the Whiskey Hill Subdivision and Stone Creek Meadows
subdivision. By 1981, Green had finished with a majority of the development and
conveyed the golf course, several other amenities and open space parcels to the Eagle-
34 Eagle County Pre-Disaster Mitigation Plan 2012
Vail Metro District. In 1989, Green’s company sold its final holdings, including the
Community Park site, to the Metro District.
The community continues to offer recreational facilities including a golf course, a par
3 golf course, a swimming pool, tennis courts, hiking paths, a community building and
others amenities. It is governed by a 10 member “joint board” comprised of the Eagle-
Vail Metropolitan District and the Eagle-Vail Property Owners Association.
The climate of Eagle-Vail is semi-arid with an average annual precipitation total of
around 20 inches. Temperature ranges from highs in the upper 60’s to lower 70’s in the
summer and teens and 20’s in the winter.
The vegetation in the Eagle-Vail area consists primarily of Ponderosa and lodgepole
pine and aspen with an understory of serviceberry and mountain mahogany.
Hazard Identification and Profiles
The hazards identified in the Eagle-Vail community are summarized in the following
table.
Hazard Type Frequency of
Occurrence
Magnitude Hazard
Level
Airplane Crash Occasional Limited Low
Avalanche Occasional Limited Medium
Civil Disturbance Unlikely Limited Low
Dam Failure Unlikely Critical High
Disease Outbreak Occasional Critical Medium
Drought Occasional Limited Medium
Earthquake Unlikely Limited Low
Expansive Soils Likely Limited Medium
Extreme Heat Unlikely Negligible Low
Flood Likely Critical High
Hail Storm Likely Limited Medium
Hazardous Materials Likely Limited Medium
Jail/Prison Break Unlikely Negligible Low
Land Subsidence Likely Limited Medium
Landslide/Rockfall Likely Critical Medium
Lightning Highly Likely Critical Medium
Terrorist Events Unlikely Limited Medium
Tornado Unlikely Limited Low
Urban Fire/Conflagration Highly Likely Critical High
High Winds Likely Limited Medium
Wildfire Highly Likely Critical High
Winter Storms Highly Likely Critical High
35 Eagle County Pre-Disaster Mitigation Plan 2012
EMS and Fire
Figure 9 Fire/EMS map
Excluding federal agencies, there are seven agencies that provide fire protection
services in Eagle County. These are; Basalt and Rural Fire Protection District,
Gypsum Fire Protection District, Greater Eagle Fire Protection District, Rock
Creek Volunteer Fire Department, Eagle River Fire Protection District, Vail Fire
and Emergency Services and Eagle County Airport Fire Rescue.
The fire service agencies in Eagle County are prepared to handle a wide range of
emergency situations. In preparing to handle the routine emergency situation for
which they are tasked, fire service agencies are involved in pre-emergency
planning functions to identify hazard potentials in their areas. As a result of these
pre-planning efforts they are usually knowledgeable of issues such as high risk
areas, populations at risk, building layouts, amounts and types of hazardous
materials, etc.
There are three Ambulance Services in Eagle County. These are; Eagle County
Ambulance District, Western Eagle Ambulance District and Basalt and Rural Fire
Protection District.
The Eagle County EMS is a tiered system that begins with bystanders or
witnesses to the emergency medical problem. The emergency medical agencies
offer training to the public enabling them to provide basic lifesaving skills and to
activate the EMS.
36 Eagle County Pre-Disaster Mitigation Plan 2012
Rock Creek Volunteer Fire Department
Community Profile
The Rock Creek Volunteer Fire Department was created in December of 2008. It is
the reconstruction of the first Bond/McCoy Volunteer Fire Department that was
established in 1999. The Department provides first responder/EMS medical services,
wildland firefighting, rural rescue and structure protection to the unincorporated areas of
Bond, McCoy, State Bridge, Sheephorn, Copper Spur and an eastern portion of Burns on
the Colorado River Road.
The District operates out of one station with all volunteer firefighters. Equipment
includes 1 type four engine, 1 rescue truck; 1 type six brush truck and a staff rescue
vehicle.
The boundaries for the district extend roughly from Wolcott Divide (MM 7 on Hwy
131 to The Routt County line (MM 22 on Hwy 131) and from East Burns to the Grand
County line. It is an area of approximately 244 square miles. The permanent year round
population served by the Department is approximately 306. However like much of Eagle
County, that population figure increases greatly in the summer and fall months due to the
recreational opportunities, especially weekends and holidays. Structures in the
Department are a mix of rural single family residences/ranches, agriculture, a few
commercial buildings and small town single family communities.
Eagle County Ambulance District
Community Profile
The Eagle County Health Service District was formed in 1982 to provide ambulance
service to the eastern portion of Eagle County.
The District operates out of three stations providing ALS 911 response as well as
inter-facility critical care transport from Vail Valley Medical Center to tertiary care
centers in Denver and Grand Junction. The District employs 49 full and part time EMT’s
and Paramedics and provides three ALS ambulances round the clock. Additional
ambulances are staffed seasonally or on a demand basis. There are 8 ambulances in the
fleet with an additional four support vehicles and one mass care trailer.
The boundaries for the district extend roughly from four miles west of Wolcott to the
top of Vail pass north to the Routt County line and South to the Lake County line. This
includes 770 square miles of suburban, frontier and wilderness area. The permanent year
round population served by the District is approximately 25,000 however like much of
Eagle County the population approximately triples in the winter months.
37 Eagle County Pre-Disaster Mitigation Plan 2012
Basalt and Rural Fire Protection District
Community Profile
The primary mission of the Basalt & Rural Fire Protection District is to provide
emergency and non-emergency services for the protection of life and property in part of
Pitkin and Eagle County, Colorado. The District encompasses 492 square miles; it
includes all areas of Basalt, El Jebel, Old Snowmass, Thomasville and Meredith. The
District provides 24-hour emergency response to a wide variety of critical situations,
including fires, explosions, hazardous materials incidents, medical emergencies, vehicle
accidents and miscellaneous public assistance requests. In addition, the department
operates active fire prevention and emergency preparedness programs which provide fire
inspections, hazardous process permitting, fire code enforcement, community education
and business emergency planning in accordance with Colorado laws.
The District provides all these functions with a small paid staff and numerous, very
dedicated, volunteer firefighters and emergency medical technicians. The District
provides 24-hour paramedic services each and every day. Due to the nature of emergency
services, the volunteers are called upon all hours of the day and night to respond. The
volunteers amass over 4,000 hours of training every year not to mention all their time
responding to over 600 calls for service, annually.
The volunteers are the backbone of our organization and without them we could not
provide the professional services that we continue to offer our community. The
communities that we serve benefit from our committed volunteer staff. Due to our
volunteers, we have lowered insurance ratings, provided competent services without a
larger paid staff and most importantly to the taxpayers we continue to operate efficiently.
Funding for operations of the Basalt & Rural Fire Protection District comes from a
tax mil levy of 4.95 mils. This equates to $49.50 per $100,000 in the value of your home.
The Fire District strives to work toward keeping a low mil rate by charging for other
services and generating revenue sources such as inspection fees for new construction,
ambulance service fees, impact fees for new development and wildfire response out of
our area.
Eagle River Fire Protection District
Community Profile
The Eagle River Fire Protection District covers a 240-square-mile area in Eagle
County. The primary communities served by the District include Avon, Arrowhead,
Bachelor Gulch, Beaver Creek, Cordillera, Eagle-Vail, Minturn, Red Cliff, and Wolcott.
In total nine fire stations are in the district, five of which are staffed 24 hours a day. Not
38 Eagle County Pre-Disaster Mitigation Plan 2012
including administrative personnel, there are 53 full-time firefighters. In addition,
approximately 20 interns are a part of the residency program. Additional assistance is
available through mutual aid agreements with Greater Eagle, Vail, and Gypsum fire
departments, as well as support from the Upper Colorado River Interagency Fire
Management Unit (UCR) and from adjacent counties.
Greater Eagle Fire Protection District
Community Profile
Greater Eagle Fire Protection District was created in 1976. It is a combination
department consisting of 18 full-time paid employees; two part-time employees and
approximately 30 volunteers.
The District provides structure protection; EMS; urban interface and wildland
firefighting; ice & river rescue; HazMat response; technical rope rescue; motor vehicle
crash response and other services as deemed necessary. The District is also deeply
involved in numerous community projects.
Communities under the umbrella of Greater Eagle Fire Protection District include
Eagle; portions of Gypsum; portions of Wolcott; Fulford; portions of Sylvan Lake State
Park; and portions of unincorporated Eagle County, including extensive BLM & Forest
Service land. This is an area of approximately 196 square miles.
The response area for Greater Eagle Fire Protection District roughly includes I-70
from mile marker 157 to 142.5; Highway 131 to mile marker 9; South to Eagle
County line; North to Routt County line.
The District operates out of one station located in Eagle. Responding apparatus include:
One structural pumper; one rescue pumper; one tower ladder; one tactical tender; one
type-3 engine; 2 type-4 engines; one type-6 engine; and one HazMat trailer (as an
operational member of Eagle County HazMat Team).
Gypsum Fire Protection District
Community Profile
The Gypsum Fire Protection District is a combination agency of paid and volunteers’
firefighters with a citizens fire corps that assist in a mirad of functions. There are ten paid
firefighters and one paid administration specialist; there are also 44 volunteers’ fire
fighters. This crew handles everything from a cat in the tree to large scale fires, wildland
39 Eagle County Pre-Disaster Mitigation Plan 2012
and structural and multi automobile wrecks. In these recessionary times demands for
service are not decreasing, however we must continue to be responsible and efficient in
the use of our money. With the demands of emergent response and the daily assist to
citizens the many facets of this service are both challenging and rewarding.
The boundaries for the district extend roughly from Hanging lake tunnel on Interstate
70 (mm 125) the Eastern portion of Garfield county all of the Sweetwater drainage and
to 142.5 on I 70. South for the entire Gypsum Creek drainage north to Burns area. It is an
area of approximately 455 square miles. The permanent year round population served by
the District is approximately 8000. However like much of Eagle County, that population
figure increases during several seasons, the ski flights and traffic in the winter as well as
the summer and fall months due to the recreational opportunities, especially weekends
and holidays. Structures in the District are a mix of single family residences/ranches,
agriculture, to very large industrial buildings and airport hangers and typical small town
communities.
HAZARDS IN EAGLE COUNTY
Eagle County is vulnerable to a wide variety of natural hazards that threaten life and
property. Damage to critical facilities and disruption of vital services caused by natural
hazards can have a significant impact on our communities. Furthermore, recent local and
national events establish that risks exist from human-caused hazards ranging from
accidents to domestic and international terrorism. This section discusses all hazards with
potential impact on the County.
Some hazards have significant loss potential for the County, and these hazards are
identified separately as Prioritized Hazards. Other hazards with less potential impact or
with less effective mitigation action possibilities are discussed later in this section and are
referred to as ‘Other Hazards’.
In this plan, the determination of the Prioritized Hazards was made through a multi-
step risk assessment process combining statistical modeling with more qualitative
assessment activities. These qualitative risk tasks consisted of numerous interviews and
surveys of emergency response and planning professionals, online surveys of County
residents and independent historical research, which drew information from many
sources. Through this process, certain hazards were determined to pose the greatest
threats to the planning area and were prioritized as discussed in the following section.
PRIORITIZED HAZARDS
Based on the risk assessment discussed elsewhere in this Plan, the planning team
prioritized these hazards for further analysis and mitigation planning:
1. Wildfire
40 Eagle County Pre-Disaster Mitigation Plan 2012
2. Seasonal / flash flooding
3. Winter storms
4. Transported hazardous material (transported HazMat)
5. Pandemic disease outbreak
6. Landslide, including rockslide and rock fall
7. Subsidence Sinkholes
8. Avalanche
9. Terrorist activity
The planning team recognized that other hazards such as drought occur periodically
and may impact Eagle County however they determined that the prioritized hazards
posed a greater risk on life, safety, critical infrastructure and vital services. Future
iterations of the PDMP will possibly include mitigation actions for hazards other than
those prioritized by this Plan.
HAZARD/RISKS
Although these prioritized hazards affect the entire county, potential impact from
each hazard varies by jurisdiction. Risk assessment activities conducted during this
project provided the Planning Team adequate information to establish risk from each
hazard for the jurisdictions covered by the Plan. The relative impact from each hazard on
the jurisdictions participating in this plan is summarized in the Community Profiles
section of this document as well as the vulnerability and risk assessment chart at the end
of this section.
WILDFIRE
Eagle County and western Colorado have historically been prone to wildfires but in
the past they occurred mostly in remote areas and were of minimal concern. Prior to
1985, several of the largest wildfires in Colorado occurred in Eagle County. Forest
growth, development, drought. disease and insects epidemic have contributed to the ever
increase risk of a catastrophic wildfire event. The PDMP risk assessment determined that
wildfires pose a significant threat to many areas of Eagle County.
Recreational activities in Eagle County place more people in wildland areas. Part time
residents and visitors to these areas are often inadequately educated or prepared for
wildfire issues.
41 Eagle County Pre-Disaster Mitigation Plan 2012
The 2002 Wildfire season was the worst in United States history, with some 2.3
million acres burned, 2.1 million more than in 2000. In Colorado, 4,612 Wildfires burned
over 619,000 acres that year and cost approximately $152 million in suppression costs.
Approximately 81,400 people were evacuated and about 1,000 structures burned. In
addition, nine lives were lost. Based on a ten-year average, Colorado typically
experiences 3,119 Wildfires with a loss of 70,000 acres per year. An estimated 319,184
acres of Eagle County’s 1,088,545 acre total, or 29.32%, falls within the moderate to high
risk range.
Eagle County maintains a comprehensive wildfire risk map that is the guiding
document for mitigation actions. The Wildland Fire map at Appendix D illustrates
clearly where the Wildland Urban Interface (WUI) communities within Eagle County
converge with areas showing a high potential for Wildfire (Appendix B).
There are several Community Wildfire Protection Plans (CWPP) that have been
developed in Eagle County including: Arrowhead CWPP (2008), Bachelor Gulch CWPP
(2008), Beaver Creek CWPP (2007), Cordillera CWPP (2004) and Eagle River
Protection District CWPP (2011). Additional information from these plans is included in
Appendix B.
The Eagle County Community Wildfire Projection Plan was created in 2005,
amended in 2010 and revised in 2011. All fire departments and districts in the county
participated in and signed off on this plan. Below is the Summary of Actions Taken to
Create the Eagle County CWPP and is excerpted from the plan. Note that any reference
to appendices in the italicized portion refers to the Eagle County CWPP.
Eagle County Wildfire Regulations:
In 2002, the Eagle County Interface Evaluation Zone (ECIEZ) committee was formed
to introduce a collaborative approach to addressing wildfire issues in Eagle County. The
initial group consisted of the Eagle County Board of County Commissioners (BOCC), the
Eagle County Department of Emergency Management, and the Northwest Colorado
Council of Governments, representatives from each of the County’s five Fire Protection
Districts (FPDs), USFS personnel, BLM personnel, and CSFS personnel. The committee
later expanded to include town officials, homeowner’s association representatives,
representatives from The Wilderness Society, and State Government officials. Bi-
monthly meetings were convened over a two year period.
In May of 2002, Eagle County Community Development proposed amendments to
chapters two and three of the Eagle County Land Use Regulations, in order to incorporate
language pertaining to Wildfire Hazard Mitigation. The proposed amendments were
referred to the Eagle County Planning Commission and the Roaring Fork Valley Planning
Commission for their comments and recommendations. The Eagle County Board of
County Commissioners held public hearings to consider comments on the proposed
amendments in 2002. Comments from these hearings led the commissioners to hire a
consultant to work towards completing a countywide wildfire hazard map within one year
of the resolution adopting the wildfire regulations. The regulations were adopted on
January 21, 2003. (See Appendix-E: Wildfire Regulations and Building Resolution).
42 Eagle County Pre-Disaster Mitigation Plan 2012
Creation of Eagle County Wildfire Hazard Map and CWPP:
In 2004, the Dynamac Corporation completed the Eagle County Wildfire Hazard
Assessment Map. Due to the large land area covered by this plan, it was determined that
it would be near impossible to provide prescriptive solutions, but to offer guidance
toward areas that need higher level analysis. The map combines GIS data related to slope,
aspect, elevation, vegetation type/density, and then rates any given area Low, Moderate,
High or Extreme wildfire hazard. This initial mapping exercise provided fire managers a
starting point for prescriptive fire mitigation efforts, and has helped guide subsequent
projects in Eagle County ever since. The Eagle County Wildfire Mitigation Specialist and
Emergency Manager drafted the original Eagle County CWPP in the spring of 2005, and
the ECIEZ committee approved and adopted it that summer. (See Appendix-A: Eagle
County Wildfire Hazard Map).
Formation of Eagle County Wildfire Council:
As the need for increased forest management across jurisdictional boundaries
continued to grow, so too did the need for interagency collaboration. In January of 2009,
the Eagle County Wildfire Council was formed. The group meets regularly to review
aspects of assessing current wildfire risk and mitigation strategies; funding opportunities
to complement private and public land projects; CWPP updates and associated projects;
as well as interagency training opportunities. The council consists of agency
representatives and stakeholders from throughout Eagle County, including: the
USFS/BLM; the CSFS; Eagle County; Basalt FPD; Gypsum FPD; Greater Eagle FPD;
Eagle River FPD; Vail Fire and Emergency Services; Rock Creek Volunteer Fire
Department; Vail Resorts; Cordillera Metro District; Eagle-Vail Metro District; Eagle
River Water and Sanitation District; the Bellyache Ridge HOA, the Colorow HOA, the
Pilgrim Downs HOA, the West Lake Creek Company, the Beaver Creek Resort Company
and Beaver Creek Public Safety.
Stakeholder Involvement in 2011 Revision to the CWPP
Revisions to the Eagle County CWPP began in the fall of 2010 as the County
simultaneously worked to update its FEMA Pre-Disaster Mitigation Plan. Monthly
meetings with Eagle County staff and representatives from the Towns and Fire Districts
were held to gather input into revising both plans. It was determined by the group that
the Eagle County CWPP would be the guiding document for all wildfire mitigation
actions associated with the FEMA Plan. The responsibility to revise the existing CWPP
was given to the EC Wildfire Council. The revised CWPP was reviewed by the group
initially in June of 2011; and then again in December of 2011. Representatives from
Eagle County’s five fire districts, the USFS, the BLM, the CSFS, Vail Resorts, Cordillera
Metro District, Eagle-Vail Metro District, Eagle River Water and Sanitation, and the
Bellyache Ridge, Mountain Star and Colorow HOA’s all contributed to the CWPP
revision process. Additional public input to the plan was gathered by the Eagle County
Wildfire Mitigation Specialist during presentations given at several HOA meetings in
Vail, Edwards, Wolcott and Basalt.
43 Eagle County Pre-Disaster Mitigation Plan 2012
All CWPP plans are available on the Colorado State Forest Service website:
http://csfs.colostate.edu/pages/CommunityWildfireProtectionPlans.html.
The Eagle County CWPP contains the detailed countywide wildfire risk assessment.
FLOODING (INCLUDING FLASH AND SEASONAL FLOODING)
According to the National Oceanographic and Atmospheric Agency (NOAA), flash
floods in the United States are responsible for more deaths than any other thunderstorm
phenomena. Year to year in Colorado, only lightning is more deadly.
Flash flooding usually is the byproduct of very heavy rains in a short period of time
over a small geographic area, all of which combine to cause small streams to turn violent.
Flooding as a natural hazard is a long-recognized problem Eagle County, and the extreme
terrain in the area increases the potential for severe flooding. Seasonal flooding occurs
during the spring when the mountain snowpack starts its melting process and heavy
rainfall sometimes combines with the runoff and causes some rivers and streams to swell
out of their banks.
Eagle County is a participant in the National Flood Insurance Program (NFIP). As a
condition to participating in the NFIP, each member has committed to restrict the
building of structures in the flood-hazard areas delineated by FEMA DFIRM (Flood-
Insurance-Rate Map) panels. In Eagle County, the unincorporated areas along with the
towns of Avon, Basalt, Gypsum, Red Cliff, Eagle and Vail are included in the program.
New Eagle County Floodplain Maps were adopted by the Board of County
Commissioners on Jan. 4, 2005, and were adopted by the Federal Emergency
Management Association (FEMA) on December 4, 2007. The new maps replace 25 year
old maps that no longer represent current conditions. The maps cover the Eagle River
from Dowd Junction to its confluence with the Colorado River, the Colorado River from
its confluence with the Eagle River to the Garfield County line, and the portion of the
Roaring Fork River located in Eagle County. The new floodplain maps are listed by river.
Several floodplain studies are available in the Engineering Department. Available studies
include:
Flood Information Report of the Eagle and Colorado Rivers
Flood Information Report of the Roaring Fork River
Supporting Study for the Letter of Map Revision for Brush Creek and Abrams
Creek
Supporting Study for the Letter of Map Revision for the Eagle River at Brett
Ranch
Flood Insurance Study, Eagle County Colorado and Incorporated Areas
(flood plain map examples can be found in appendix H)
44 Eagle County Pre-Disaster Mitigation Plan 2012
The area adjacent to a river channel is its floodplain. In its common usage,
“floodplain” most often refers to that area that is inundated by the 100 year flood, the
flood that has a 1 percent chance in any given year of being equaled or exceeded. Other
types of floods include general rain floods, thunderstorm generated flash floods, alluvial
fan floods, dam failure floods and local drainage floods. The 100 year flood is the
national standard to which communities regulate their floodplains through the National
Flood Insurance Program.
Some flooding can be predicted by weather reports, but many times smaller flash
floods are a result of a microburst system, which simply overwhelms both natural and
constructed drainage systems. Such failures sometimes cause excessive damage to towns
and industry in the flooded areas. Emergency services, transportation, power, water and
wastewater services, business and hazardous materials storage may be disrupted and can
affect the population located in or near the flooded area.
Eagle County has experienced significant seasonal floods in 1918, 1921, 1957, 1983,
1984, 1995 and 2010. The 1957 flood was determined to be a 50-year event and the 2010
flood was deemed a 100 year event. In 2010 the Town of Vail experienced flood damage
to numerous structures, both private and public. The Town of Gypsum experienced some
erosion problems which threatened a waste water treatment facility and Eagle County had
part of a roadway collapse after flood water undermined the embankment.
A Presidential Disaster (DR-1186-CO) was declared in Eagle County due to the
flooding of 1984.
A flash flood south of Basalt in 2007 produced a mudslide that buried a stretch of the
Frying Pan road with mud and destroyed a private bridge which has not yet been
replaced.
In 2008, several concerned citizens contacted the County for assistance with
floodplain questions along Stone Creek. The original mapping effort for Stone Creek was
performed in the early 1980's, and was not accurate in regards to the location of the
Eagle-Vail Subdivision. Specifically, there are areas of Elk Lane, Deer Boulevard, and
other areas that are shown to be within the regulatory floodplain. In these areas, the
regulatory floodplain is completely outside of Stone Creek and Golf Club Creek.
Because of these mapping inaccuracies, many residents were being assessed
mandatory floodplain insurance by their lenders, as required under the National Flood
Insurance Reform Act of 1994. This resulted in substantially large flood insurance
premiums for an area that has a very low probably of flooding; much lower than
properties located adjacent to waterways.
Based upon the mapping inaccuracies, it was determined by FEMA that the
appropriate method to correct the mapping inaccuracies would be the LOMR (Letter of
Map Revision) process and that a LOMA (Letter of Map Amendment) would no longer
45 Eagle County Pre-Disaster Mitigation Plan 2012
be accepted. The LOMR process is much more involved, as it requires that the entire
stream system be mapped and surveyed, the hydrology and hydraulics be studied, a
numerical model be utilized to predict the proposed SFHA (Special Flood Hazard Area),
proposed maps created, and then submitted.
A partnering effort was brought to the attention of the EVMD and EVPOA where the
funding of the project would be split between the following agencies:
Colorado Water Conservation Board (CWCB) - Up to $25,000 Grant; 50% of
project cost.
Eagle-Vail Metropolitan District (EVMD) - Up to $5,000; 10% of project cost.
Eagle-Vail Property Owner's Association (EVPOA) - Up to $5,000; 10% of project
cost.
Stone Creek Committee (Group of Homeowners, as a subcommittee of the
EVPOA) - $6,667; 13.3% of project cost.
Eagle County - Up to $8,333; 16.7% of project cost.
In October 2008 a floodplain mapping project was awarded to Matrix Design Group
to remap Stone Creek in Eagle-Vail, and submit to FEMA a LOMR (Letter of Map
Revision) to revise the inaccurate mapping along Stone Creek. The LOMR was
completed and accepted by FEMA in June 2010.
The revised LOMR did have approximately 16 structures within the SFHA, as well as
numerous structures within a Shaded X zone that has a moderate flood risk. As a a result,
a Flood Mitigation Assistance Program (FMA) grant application was submitted in
December 2009. The grant will improve the flood conveyance of the stream channel and
improve a flood bypass channel and diversion structure. The grant was awarded in 2011
and will be under construction in 2012 with a completion date of late fall 2012.
Eagle County is also home to several dams, and is the inundation zone for several
dams in adjoining counties which if damaged could prove to be severely disruptive and
even deadly. Class I and Class II dams are defined as follows:
Class I:
A dam shall be placed in Class I when failure would result in probable loss of human
life.
There are eight Class I dams: Black Lake #1, Spring Park, Ruedi, Homestake,
Robinson, Eagle Park Reservoir, Sylvan Lake and Western Hillside Reservoir located in
Eagle County with seven more in adjacent counties which would impact Eagle County..
Class II:
Significant damage is expected, but not loss of human life. The phrase “Significant
damage” refers to structural damage where humans live, work or recreate, or to public or
private facilities exclusive of unpaved roads and picnic areas. “Damage” refers to
rendering these structures uninhabitable or inoperable.
46 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County has five Class II dams.
WINTER STORMS
Winter Storms occur frequently in Eagle County, and they vary significantly in size,
strength, intensity, duration and impact. The weather of Eagle County is typical of
Colorado’s mountain areas. Sunny days and clear blue skies often give way to severe
conditions and significant snowfall accumulations. Average December and January highs
are 35-degrees Fahrenheit, while lows during those coldest months average about 8-
degrees Fahrenheit.
Winter road conditions poses the greatest hazard during winter storms, particularly
when it impacts Interstate 70 and the few State highways running through Eagle County
which are the most important corridors for the transport of people and the provisions
needed for the continuity of normal life. A disruption or blockage due to vehicle crashes
on these roads can cause major disruptions to Eagle County and beyond. In 2004 and
again in 2010 rockslides that damaged and closed I-70 in the Glenwood Canyon created
widespread problems in providing normal services in the county.
The recreational areas of Eagle County are also impacted by severe winter storms.
Hunters, skiers, hikers, snowmobilers and others are sometimes trapped in the
backcountry by sudden or unpredicted storms. When these victims are stranded in remote
areas, rescue personnel can be endangered and costly supplies and specialized equipment
are sometimes needed for response.
Winter Storms - Historical Information
Since 1980, Eagle County has not experienced Presidential or SBA Disaster
Declarations for Winter Storms, however, winter Storms do have the potential for
significant impact on resident’s safety, critical infrastructure and vital services as
discussed in the Risk Assessment section of this report.
TRANSPORTED HAZARDOUS MATERIALS (HAZMAT)
FEMA defines Hazardous Materials as chemical substances that, if released or
misused, can pose a threat to the environment or health. These chemicals are used in
industry, agriculture, medicine, research and consumer goods. Hazardous materials come
in the form of explosives, flammable and combustible substances, poisons and
radioactive materials. The U.S. Department of Transportation uses these hazardous
materials categories: explosive; blasting agent; flammable liquid; flammable solid;
oxidizer; organic peroxide; corrosive material; compressed gas; flammable compressed
gas; poison; irritating materials; inhalation hazard; etiological agent; radioactive
materials; and other regulated material. These substances are most often released as a
result of transportation accidents or because of chemical accidents in plants, but the risks
are reduced significantly when these substances are used in the controlled environment
for which they are intended.
47 Eagle County Pre-Disaster Mitigation Plan 2012
According to the Colorado Department of Public Health and Environment (CDPHE),
HAZMAT transportation events are those which involve ground, rail, water, air or
pipeline transport and occur outside the boundaries of a fixed-facility. Also included as
transportation events are the releases which are discovered upon offloading at a fixed-
facility, but which happened during transportation of the materials.
Hazardous materials in transport are especially vulnerable to sabotage or misuse and,
in the wrong hands, pose a significant security threat. The security of hazardous materials
in transportation poses unique challenges as compared to security at fixed facilities
because of the changing environment surrounding a moving vehicle. Most hazardous
materials are frequently transported in large quantities, and once mobile, they are
particularly susceptible to theft, interception, detonation or release. When transported in
proximity to large population centers, accidental or intentional acts could have serious
consequences.
When hazardous materials are not controlled due to improper use or accidents, they
can quickly create a dangerous and/or life threatening situation. Because of the major
interstate highways and mountainous terrain in Eagle County the potential for accidents
involving transported hazardous materials is very real.
According to figures from the Colorado Department of Public Health and
Environment (CDPHE), Eagle County reported 32 events between the years 2005 and
2010. Nine of those were at fixed-facilities, twenty-one were transported events and two
were from an unidentified source.
Eagle County faces greater comparative exposure to a transported HazMat incident
because it has four locations listed as significant risks for hazardous materials
transportation accidents. They are Interstate 70 from the top of Vail Pass to Glenwood
Canyon, U.S. Highway 6 from Dowds Junction to Glenwood Canyon, U.S. Highway 24
from Tennessee Pass to Dowds Junction and the Union Pacific rail line which follows the
Colorado River through the County. All of these routes run parallel to rivers or creeks,
which adds the risk of waterway contamination.
In 2009 Eagle County agencies in conjunction with the Colorado State Patrol
conducted a hazardous materials flow study to identify the types and quantities of
hazardous products being transported by highway through the county (a summary of this
study is included as appendix I of this plan). A similar study for rail transportation is
needed.
PANDEMIC DISEASE OUTBREAK
The pandemic potential in the Eagle County area may be considered somewhat
elevated relative to other communities in the region due to the large annual influx of
visitors from around the world, many of whom travel frequently and widely. The county
48 Eagle County Pre-Disaster Mitigation Plan 2012
has developed pandemic outbreak plans to enable rapid response to, and control,
outbreaks if identified.
Data is not available to estimate losses associated with a pandemic however, all
persons who reside in the area are theoretically at some risk of developing a disease in the
event that an outbreak occurs. Damages and losses that might accompany the epidemic
hazard as related to human disease outbreak are primarily limited to effects on human
populations and health and would not usually affect structures, utilities or transportation.
Impacts on public health and safety facilities could occur, but some structures,
furnishings and belongings that come into contact with a diseased person may need to be
destroyed should these resources be considered infectious.
Primary damages or losses associated with an outbreak or outbreaks could include
economic losses associated with work absences or a decrease in productivity due to
disease; human losses associated with disease and fatality in the community, adverse
impacts on hospitals and other health care
LANDSLIDES
Landslides, including rock fall and other debris flow, as a natural hazard exist in
almost every state in the US, and are a serious geologic hazard. They sometimes present a
threat to human life, but most often result in a disruption of everyday services, including
emergency response capabilities. Landslides can and do block transportation routes, dam
creeks and drainages and contaminate water supplies. When these hazards affect
transportation routes they are frequently expensive to clean-up and can have significant
economic impact to the area.
FEMA describes debris flows, sometimes referred to as mudslides, mudflows, lahars,
or debris avalanches, as common types of fast-moving landslides. These flows most
frequently occur during or after periods of intense rainfall or rapid snow melt. They
typically start on steep hillsides as shallow flows that liquefy and accelerate to speeds that
of about 10 miles per hour, but that can exceed 35 miles per hour. Debris flows have a
consistency ranging from watery mud to thick, rocky mud that can carry large items such
as boulders, trees and cars and can damage road surfaces. Flows from many different
sources can combine in channels, and can increase in destructive power. These flows
continue and grow in volume with the addition of water, sand, mud, boulders, trees and
other materials. When the flows reach flatter ground, the debris spreads over a broad
area, sometimes accumulating in thick deposits that can wreak havoc and cause
significant destruction in developed areas.
In 2002, an update to Colorado’s Landslide plan was completed, and it identified
several areas of vulnerability in Eagle County. Colorado’s plan compiled these areas into
different priorities described in three distinct categories or tiers based upon the criticality
of the threat. The three categories are further described as:
• Tier One listings are serious cases needing immediate or ongoing action or attention
because of the severity of potential impacts.
49 Eagle County Pre-Disaster Mitigation Plan 2012
• Tier Two listings are very significant but less severe; or where adequate information
and/or some mitigation actions have taken place; or where current development
pressures are less extreme.
• Tier Three listings are similar to Tier Two but with less severe consequences or
primarily local impact.
Landslides are a significant problem in Eagle County according to the State’s 2004
mitigation plan. The Vail area alone has 20 locations designated as high hazard earth
flow areas. In 1984, six major earth flows occurred which affected the town and private
property. The Dowds Junction landslide at the intersection of I-70 and highways 6 and 24
is another area of significant concern. A landslide here could threaten the highway and
dam the Eagle River. During the late 1970’s and early 1980’s, several slides caused road
blockages on I-70 and US Highway 6. The Meadow Mountain slide between Minturn and
Dowds Junction has been moving for about 35 years and caused considerable damage to
Highway 6 in 1984 and also covered the railroad tracks near Minturn. Historically, other
Eagle County areas threatened by landslide include Shrine Pass, Basalt, Sweetwater,
Beaver Creek and Red Cliff.
Figure 10 Landslide photo
House built in a flood plain at the toe of a landslide near Wolcott. Photo by D. Noe
COLLAPSIBLE SOILS AND EVAPORITE FORMATIONS
Rockfalls, sinkholes, subsidence, swelling or expansive soils and debris flows are
geologic hazards related to landslides. Many of the soils located in the Colorado, Eagle,
and Roaring Fork River Valleys below an elevation of 8,000 can have a collapse
50 Eagle County Pre-Disaster Mitigation Plan 2012
potential. Foundation movement is generally tolerated unless there is a source of water,
such as water line breaks, that result in deep wetting, and could cause substantial
settlement and foundation failure. Furthermore, the Eagle Valley Evaporite formation
consists of soils that are high in water soluble minerals. Sinkholes and subsidence
depressions are present in areas where the Eagle Valley Evaporite is at or near the
surface. Sinkholes are typically 10 to 50 feet in diameter with depths between 2 to 10
feet. Subsidence depressions are considerably larger and can span several acres to several
hundred acres. Sinkholes can appear in areas that are flood irrigated, but are also present
in non-irrigated areas.
AVALANCHE
Avalanches are a kind of slope failure that sometimes occurs on grades steeper than
about 20 to 30 degrees. Avalanches can reach speeds of 200 miles per hour and can exert
enough force to destroy buildings and uproot large and healthy trees. Avalanche-prone
areas can be determined with some accuracy, since under normal circumstances
avalanches tend to run down the same paths year after year. Exceptional weather
conditions though sometimes produce avalanches that overrun normal path boundaries or
create new paths. Unlike other forms of slope failure, snow avalanches can build up and
be triggered on more than one occasion during a single winter season.
Avalanche - County Profile
From 1950 to 2010, Colorado experienced more than double the number of
avalanche-related fatalities as the next most dangerous state. Eagle County experienced
twelve fatalities during this time. Avalanches are a very significant threat as development
and recreation increase in mountain areas. Data show the incidence of Avalanches has
increased, as has the number of people affected by Avalanche events. Information from
Avalanche accidents shows that this hazard occurs in about one-third of the states and is a
significant hazard in much of the West, where Avalanches are the most frequently
occurring lethal form of mass movement. Mortality due to snow Avalanches exceeds the
average mortality due to earthquakes and all other forms of slope failure combined on an
annual basis. Sometimes, Avalanches pose hazards that affect a significant sector of the
public, involve a number of private organizations and require cooperation and action by
government agencies at the federal, state and local levels. The Avalanche hazard causes
economic loss to residents, businesses, transportation systems and government agencies
and can have a negative impact on the local economy of many mountain regions.
Areas of Eagle County are considered susceptible to Avalanche activity. Many of the
annual visitors to these areas head into the backcountry ill-equipped and without an
adequate appreciation for the dangers that Avalanches pose. Many times in the recent
past people have been caught in these Avalanches and been hurt or have died. The rescue
and recovery of these people is a labor-intensive and dangerous task for the emergency
personnel involved.
Sample Event # 1: Stone Creek, near Beaver Creek
On February 23, 2005, one skier was buried after being swept over a cliff in the Stone
51 Eagle County Pre-Disaster Mitigation Plan 2012
Creek drainage near Beaver Creek. He and his skiing partner were not carrying
beacons or shovels, but fortunately one of his ski tails emerged from the snow, enabling
his partner to reach him. The victim, who had stopped breathing, was resuscitated by his
partner and managed to ski away.
Sample Event# 2: Shrine Ridge, Vail Pass
On December 27, 2008 a group of snowmobile riders were “playing at the base of the
hill” just off the groomed snowmobile trail below Shrine Mountain. They knew “the
avalanche danger was high” so were staying off steep slopes. The group was on the trail,
watching Rider A play. Rider A triggered a large avalanche. He was able to narrowly
outrun the slide. The rest of the riders had to drive out of the way as well, because
avalanche debris ran over the groomed trail. The whole group was equipped with
avalanche gear.
Sample Event#3: Battle Mountain area near Vail Mountain
On January 6, 2010, a snowboarder was caught, partially buried and killed in an
avalanche sometime between January 6 and January 14. Two skiers traveled into this area
and saw a small portion of a snowboard sticking out of the snow. While attempting to
retrieve the board, they realized that it was attached to a body and that the rider was
deceased. The victim was not carrying any avalanche equipment.
Colorado Avalanche statistics 2009-2010 Season
Activity
Caug
ht
Burie
d
Kille
d
Skier † 11 5 3
Snowboarder † 6 2 2
Snowmobiler 1 1 1
Snowshoer/Climber/Hiker 6 2 2
Other 7 2 0
Total 31 12 8
† Inbounds skier/boarder 0 0 0
Figure 11 Avalanche Statistics
TERRORIST ACTIVITY
Terrorism is defined in the Code of Federal Regulations as "the unlawful use of force
and violence against persons or property to intimidate or coerce a government, the
52 Eagle County Pre-Disaster Mitigation Plan 2012
civilian population, or any segment thereof, in furtherance of political or social
objectives." When terrorism strikes, victim communities may receive assistance from
State and Federal agencies operating within the existing Integrated Emergency
Management System. FEMA is the lead Federal agency for supporting State and local
response to the consequences of terrorist attacks.
Terrorism is often categorized as "international" or “domestic”, and this distinction
refers not to where the terrorist act takes place but rather to the origin of the individuals
or groups responsible. For example, the 1995 bombing of the Murrah Federal Building in
Oklahoma City was an act of domestic terrorism, whereas the attacks of September 2001
were international in nature. For the purposes of consequence management, the origin of
the terrorist is less important than the results of the attack on life and property; thus, the
distinction between domestic and international terrorism is not as relevant for the
purposes of mitigation, preparedness, response and recovery than understanding the
destruction such groups can cause.
While the list of confirmed terrorism-related events in Colorado is not long,
nonetheless Eagle County was the site of an act of domestic terrorism committed by the
eco-terrorist group, the Earth Liberation Front (ELF) at the Vail Ski Resort. In October,
1998, three buildings and portions of four chair lifts were destroyed by fire and damages
with a value of approximately $12 million were incurred. In a letter sent to news-media
outlets, ELF claimed responsibility for the arson "...to stop the destruction of natural
habitat and the exploitation of the environment." It stated the Vail expansion plans would
"...ruin the last, best lynx habitat in the state. Putting profits ahead of Colorado's wildlife
will not be tolerated. This action is just a warning. We will be back if this greedy
corporation continues to trespass into wild and unroaded areas."
OTHER HAZARDS
To conform to FEMA guidance for PDMP development and to consider all relevant
hazards with potential impact on the Counties, the planning team reviewed a
comprehensive list of hazards in addition to those prioritized by risk assessment
activities.
VULNERABILITY AND RISK ASSESSMENT BY HAZARD TYPE
General vulnerabilities are included in the overall plan. The following table identifies
the risk associated with the hazard types that scored a highly likely probability of
occurrence and/or a high hazard level or otherwise merit inclusion for Eagle County. The
risk is determined by identifying the life safety concerns base upon population and the
property/economic loss potential based upon valuation of structures in the forecast area
for each type of hazard.
53 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County and the Towns of Avon, Eagle, Gypsum, Minturn, Red Cliff and Vail
all participate in the National Flood Insurance Program. The following tables provide
NFIP participation information for each community including the number of flood
insurance policies in force and number of paid losses. There are no repetitive losses in
Eagle County.
Eagle County - NFIP Participation Information
Category Data Category Data
Date Joined NFIP 11/19/1980 Number of Policies in 98
Countywide Analysis of Hazard Mitigation Areas
Type of Structure
# in
Community
# in
Hazard
Area
% in
Hazard
Area $ in Community$ in Hazard Area
% in
Hazard
Area
# in
Community
# in
Hazard
Area
% in
Hazard
Area
Residential 15,798 $22,836,144,950 52,197
Commercial 8,424 $1,961,816,450
Total 24,222 $24,797,961,400 52,197
Type of Structure
# in
Community
# in
Hazard
Area
% in
Hazard
Area $ in Community$ in Hazard Area
% in
Hazard
Area
# in
Community
# in
Hazard
Area
% in
Hazard
Area
Residential 15,7989,90262.68%$22,836,144,950$16,407,207,47071.85%52,19744,01184.32%
Commercial 8,4245,46564.87%$1,961,816,450$1,283,266,88065.41%
Type of Structure
# in
Community
# in
Hazard
Area
% in
Hazard
Area $ in Community$ in Hazard Area
% in
Hazard
Area
# in
Community
# in
Hazard
Area
% in
Hazard
Area
Residential 15,798 6786 42.95%$22,836,144,950$11,870,144,66051.98%52,197 36086 69.13%
Commercial 8,424 3493 41.46%$1,961,816,450$1,015,039,02051.74%
Type of Structure
# in
Community
# in
Hazard
Area
% in
Hazard
Area $ in Community$ in Hazard Area
% in
Hazard
Area
# in
Community
# in
Hazard
Area
% in
Hazard
Area
Residential 15,798 502 3.18%$22,836,144,950$917,424,3404.02%52,19718,64035.71%
Commercial 8,424 384 4.56%$1,961,816,450$175,449,5908.94%
Flood Hazard
Number of Structures Value of Structures Number of People
Wildfire Hazard (moderate, high, extreme)
Countywide (all areas)
Number of Structures Value of Structures Number of People
Landslide/Rockfall Hazard
Number of Structures Value of Structures Number of People
Number of Structures Value of Structures Number of People
54 Eagle County Pre-Disaster Mitigation Plan 2012
force
CRS class/discount 08 / 10% Insurance in Force $
30,016,000.00
CAV date 5/16/2007 Number of Paid Losses 7
CAC date 2/18/2000 Total Losses Paid $ 22,834.83
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
1
Town of Avon – NFIP Participation Information
Category Data Category Data
Date Joined NFIP 8/19/1987 Number of Policies in
force
4
CRS class/discount N/A Insurance in Force $366,600.00
CAV date 5/10/2007 Number of Paid Losses 0
CAC date Total Losses Paid $0.00
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
0
Town of Eagle – NFIP Participation Information
Category Data Category Data
Date Joined NFIP 3/18/1980 Number of Policies in
force
44
CRS class/discount N/A Insurance in Force $11,200,000.0
0
CAV date 6/18/2007 Number of Paid Losses 0
CAC date Total Losses Paid $0.00
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
0
Town of Gypsum – NFIP Participation Information
Category Data Category Data
Date Joined NFIP 9/16/1981 Number of Policies in
force
74
CRS class/discount N/A Insurance in Force $18,867,000.0
0
CAV date 5/16/2007 Number of Paid Losses 0
CAC date Total Losses Paid $0.00
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
0
Town of Minturn – NFIP Participation Information
Category Data Category Data
55 Eagle County Pre-Disaster Mitigation Plan 2012
Date Joined NFIP 09/17/1980 Number of Policies in
force
7
CRS class/discount N/A Insurance in Force $1,979,000.00
CAV date 5/10/2007 Number of Paid Losses 1
CAC date Total Losses Paid $6,034.97
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
0
Town of Red Cliff – NFIP Participation Information
Category Data Category Data
Date Joined NFIP 04/18/1985 Number of Policies in
force
12
CRS class/discount N/A Insurance in Force $3,729,700.00
CAV date Number of Paid Losses 0
CAC date Total Losses Paid $0.00
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
0
Town of Vail – NFIP Participation Information
Category Data Category Data
Date Joined NFIP 05/02/1983 Number of Policies in
force
235
CRS class/discount 07 / 15% Insurance in Force $51,694,100.0
0
CAV date 09/25/2007 Number of Paid Losses 4
CAC date 08/10/1994 Total Losses Paid $129,193.54
Date of Current FIRM 12/04/2007 Substantial Damage
claims since 1978
1
CAC = Community Assistance Contact
CAV = Community Assistance Visit
CRS = Community Rating System
FIRM = Flood Insurance Rate Map
NFIP = National Flood Insurance Program
PLAN IMPLEMENTATION AND MAINTENANCE
This section provides an overview of the overall strategy for plan implementation and
maintenance and outlines the method and schedule for monitoring, updating, and
evaluating the plan.
Implementation and maintenance are critical to the success of the mitigation plan.
While this plan makes many important recommendations, the jurisdictions will need to
decide which action(s) to take first. Two factors will help with making that decision; the
56 Eagle County Pre-Disaster Mitigation Plan 2012
priority assigned to the recommendations and funding availability. Low or no-cost
actions most easily demonstrate progress toward successful implementation of the plan.
An important implementation mechanism that is highly effective and low-cost is
incorporation of the hazard mitigation plan recommendations and their underlying
principles into other plans such as comprehensive planning, capital improvement
budgeting, and regional plans.
Mitigation is most successful when it is incorporated in the day to day functions and
priorities of government and in land use and development planning.
It is important to maintain a constant monitoring of funding opportunities that can be
leveraged to implement some of the more costly recommended actions. Specific funding
opportunities that should be monitored include; special pre- and post-disaster funds, state
and federal funds, and other grant programs.
The following table summarizes proposed mitigation actions as identified by the
participating jurisdictions. Detailed information about these projects can be found in
appendix B.
Mitigation Action Hazard(s)
Addressed
Responsible
Jurisdiction(s)
Time
frame
Cost Priority
Identify and repair/replace
substandard culverts on
roadway in unincorporated
Eagle County
Seasonal/Flash
Flooding
Eagle County 2 years $2,000 to
$10,000
each
Medium
Maximum flow study Seasonal/Flash
Flooding
Eagle County,
towns
TBD Unknown High
CWPP Fuel Reduction
Projects in Arrowhead,
Bachelor Gulch, Beaver
Creek, Cordillera and Cedar
Drive
Wildfire Eagle County/
Eagle River FPD/
Basalt & Rural FPD
TBD $2,000 to
$3,000 per
acre
Medium
CWPP Fuel Reduction
Project in Cedar Drive area.
Wildfire Eagle County/
Basalt & Rural FPD
TBD $2,000 to
$3,000 per
acre
High
Increase available water
supply for firefighting
Wildfire Eagle County TBD TBD High
CWPP Fuel Reduction
Project in Whiskey Hill
area.
Wildfire Eagle-Vail Metro/
Eagle River FPD
TBD $2,000 to
$3,000 per
acre
High
Develop CWPP for Rock
Creek Fire Department
Service Area
Wildfire Rock Creek
Volunteer Fire
Department
2+ years $15,000 to
$20,000
High
Broken Bridge Removal Seasonal/Flash
Flooding
Town of
Gypsum/CDOT
TBD $80,000 Medium
High Street Bridge Seasonal/Flash
Flooding
Town of Red Cliff TBD $526,000 High
57 Eagle County Pre-Disaster Mitigation Plan 2012
Water Street Bridge Seasonal/Flash
Flooding
Town of Red Cliff TBD $5,000,000 High
Metcalf Gulch, Storm
Drainage Improvements
Seasonal /Flash
Flooding
Town of Avon TBD TBD High
Nottingham Road, Debris
and mudflow Prevention
Seasonal /Flash
Flooding
Town of Avon TBD TBD High
Wildridge, Avalanche
Prevention
Avalanche Town of Avon TBD TBD Medium
Metcalf Road,
Rock/Landslide Prevention
Landslide/Rock
fall
Town of Avon TBD TBD Medium
CWPP Hernage Creek
wildfire fuel reduction
project
Wildfire Town of Eagle/
Greater Eagle FPD
TBD $2,500 per
acre
High
Continue to adhere to
floodplain management
standards
Seasonal/Flash
Flooding
Town of Eagle Ongoing Included in
existing
budget
High
Pine Street Fuel Break Wildfire Town of Minturn TBD $2,500 per
acre
High
Continue manage
floodplains
Seasonal/Flash
Flooding
Town of Minturn Ongoing Included in
existing
budget
low
Gore Creek Stream bank
Stabilization
Seasonal/Flash
Flooding
Town of Vail TBD See project
description
Medium
Replace substandard
culverts on Bighorn Creek
Seasonal/Flash
Flooding
Town of Vail TBD $100,000 -
$300,000
High
Booth Creek Flood Damage
Restoration
Seasonal/Flash
Flooding
Town of Vail TBD $250,000 -
$300,000
High
Remove cobble, sediment
deposits along Gore Creek
Seasonal/Flash
Flooding
Town of Vail TBD $620,000 Medium
Flood protective measures
near the Heathers
Condominium complex on
Gore Creek
Seasonal/Flash
Flooding
Town of Vail TBD $20,000 -
$60,000
M Medium
Revise CWPP for the Town
of Gypsum
Wildfire Gypsum FPD/ Town
of Gypsum
TBD $2,500 -
$5,000
Medium
Implement specific actions
and project identified in the
various CWPP’s
Wildfire Eagle County/ All
Fire Districts
TBD TBD High
Monitoring, Evaluating, and Updating the Plan
With formal adoption of this plan, the jurisdictions will be requested to identify
positions within their organization to meet on an annual basis to monitor, evaluate, and
provide updates for this plan.
58 Eagle County Pre-Disaster Mitigation Plan 2012
The participating jurisdictions and agencies, led by Eagle County Emergency
Management will act as a forum for hazard mitigation issues, provide hazard mitigation
ideas and activities to all jurisdictions, recommended actions and explore opportunity for
funding for high priority projects.
Appendix A
Mitigation Goals for Eagle County
Goals for wildfire mitigation as set forth by this CWPP are as follows:
Protect the life safety of residents and emergency responders in Eagle County.
Identify areas within Eagle County that are at particular risk from catastrophic
wildfire loss.
Develop and implement action plans to reduce potential loss of property, critical
infrastructure and valued resources while protecting the safety of the public and
emergency responders.
Provide framework for implementation and management of hazardous fuel
reduction projects and other wildfire mitigation actions identified by this plan.
Improve understanding of existing fire protection infrastructure in Eagle County.
Continue to develop and implement public awareness campaigns addressing
protection and defense against wildfires. Engage the public in understanding their
responsibilities to mitigate wildfire loss.
After Action Reviews of past flooding events have yielded several goals and possible
actions to prevent and/or reduce the impacts of future flooding events.
Protect the life safety of residents and emergency responders in Eagle County.
Identify areas within Eagle County that are at particular risk of flooding.
Develop and implement action plans to reduce potential loss of property, critical
infrastructure and valued resources while protecting the safety of the public and
emergency responders.
59 Eagle County Pre-Disaster Mitigation Plan 2012
Goals for reducing the impact of transported hazardous materials;
Take measures to reduce the chances of spilled hazardous materials from reaching
critical watersheds.
Goals for improving avalanche awareness.
Increase public awareness campaigns targeting avalanche prone areas.
Goals for rockfall/landslide mitigation.
Identify and map high risk rockfall/landslide areas.
Implement hazard reduction measures in the high risk areas.
60 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix B
Eagle County Pre-Disaster Mitigation Projects
The following pages contain hazard mitigation project summaries submitted by
participating jurisdictions.
61 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Avon
Action Title: Rock Fall Prevention
Priority: Medium
Issue/Background: During the freeze/thaw cycles in the spring, rock falls are
common along the vertical face above upper Metcalf Road.
Implementation: Options that have been considered for preventing injury and/or
damage from rock falls along upper Metcalf Road include lane closures, relocation of the road,
build barriers and installing fencing over the rock face. The preferred option from the technical
and economic standpoint is the installation of fencing.
Responsible Agency: Town of Avon
Partners: CDOT
Potential Funding: Town of Avon, CDOT and other grants
Cost Estimate: Unknown
Benefits: Life safety and public infrastructure protection
Timeline: TBD
62 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Avon
Action Title: Wildridge/Wildwood Linked Defensible Space
Priority: (Medium)
Issue/Background: The community of Wildwood/Wildridge includes the two
different subdivisions and is part of the Town of Avon. It is located on the hillsides north of the
town center. Terrain in the community is steep, and a number of steep drainages are
throughout, all which have homes on the edges of them. The main vegetation types in the
community are grass and sage. These light, flashy fuels will actively promote rapid rates of
spread, especially as a result of the steep terrain within the community. Most homes have some
defensible space, due to the presence of watered lawns and some mowing of grasses and sage.
However, more work needs to be done to protect all of the homes in the community.
Implementation: Linked defensible space around homes on outer edges of the
neighborhood would act as a larger fuel break protecting homes in the neighborhood from
ignitions in the valley below associated with human activity. Linked defensible space around
homes in this area should also be created given the dense fuel loading in the drainage below
homes in the area. Home owners should meet with appropriate fire mitigation experts at the
fire district and county/state level to complete home wildfire hazard assessments, and make
necessary recommendations to minimize wildfire hazards in the home ignition zone. Agency
oversight will be needed to create linked treatment areas across an intermix of private and
public property in the area.
Responsible Agency: Town of Avon
Partners: Eagle County, Colorado State Forest Service, Eagle River FPD
Potential Funding: Grant funding from Colorado State Forest Service and BLM
Cost Estimate:
Benefits:
Timeline:
63 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Avon
Action Title: Debris/Mudflow mitigation
Priority: High
Issue/Background: During heavy rains there are several areas along Metcalf,
Nottingham and Buck Creek Roads where mud and debris flow across roads.
Implementation: Improve storm water drainage, install sediment basins and widen
and re-channel Metcalf Creek.
Responsible Agency: Town of Avon
Partners:
Potential Funding: Town of Avon and grant funding
Cost Estimate: TBD
Benefits: Life safety and limitation of public infrastructure damage
Timeline: TBD
64 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Eagle
Action Title: Hernage Creek Linked Defensible Space
Priority: (Medium)
Issue/Background: Located on the southern edge of the Town of
Eagle, Eagle Ranch surrounds an 18-hole golf course, which will provide great
safety zones in the event of a wildfire. The primary fuels in the community are
grass, sage, and juniper, all of which will actively spread fire, especially during a
strong wind event. During such an event, rates of spread have the potential to be
so fast that firefighters may not be able to respond in time. Most homes have
some level of defensible space due to the presence of the golf course, and
coupled with the fact that the development is relatively new and the type of
landscaping that has been done around the homes. However, combustible fuels
abut most homes on at least one side. A several drainages and open space parcels
run through the middle of the community, which will further act to increase
rates of spread and could potentially result in fire reaching the interior of the
community. Most of the streets in Eagle Ranch end in cul-de-sacs creating one
way in and out of some neighborhoods.
Implementation: Linked defensible space around homes on outer edges of the
neighborhood would act as a larger fuel break protecting homes in the neighborhood from
ignitions in the valley below associated with human activity. Linked defensible space around
homes in this area should also be created given the dense fuel loading in the drainage below
homes in the area. Home owners should meet with appropriate fire mitigation experts at the
fire district and county/state level to complete home wildfire hazard assessments, and make
necessary recommendations to minimize wildfire hazards in the home ignition zone. Agency
oversight will be needed to create linked treatment areas across an intermix of private and
public property in the area.
Responsible Agency: Town of Eagle/ Greater Eagle Fire Protection District.
Partners: Eagle County, Colorado State Forest Service, Greater Eagle FPD
Potential Funding: Grant funding from Colorado State Forest Service and USFS
Cost Estimate: $2500/acre
Benefits: This will limit fire-branding by embers into the community as well as the
potential spread of fire into the forest surrounding the neighborhood as the result of structure
fires.
Timeline: TBD
65 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Eagle
Action Title: Floodplain Management
Priority: Low
Issue/Background:
The Town of Eagle participates in the National Flood Insurance Program. The Town does not
currently have any structures in the 100 year floodplain and desires to continue that trend. This
project reinforces the commitment to continue to adhere to the Towns Flood Damage
Prevention regulations which provide for the mitigation of flood hazards for all new
construction.
Implementation:
Methods of reducing flood losses include;
Restricting or prohibiting uses which are dangerous to health, safety, and
property due to water or erosion hazards, or which result in damaging
increases in erosion or in flood heights or velocities;
Requiring that uses vulnerable to floods, including facilities which serve
such uses, be protected against flood damage at the time of initial
construction;
Controlling the alteration of natural flood plains, stream channels, and
natural protective barriers, which help accommodate or channel flood
waters;
Controlling filling, grading, dredging, and other development which may
increase flood damage; and
Preventing or regulating the construction of flood barriers which will unnaturally divert
flood waters or which may increase flood hazards in other areas.
Responsible Agency: Town of Eagle Engineering Department, Town of Eagle
Building Department
Partners: None
Potential Funding: Funding provided in existing Town budget
66 Eagle County Pre-Disaster Mitigation Plan 2012
Cost Estimate: Minimal
Benefits: Continued availability of flood insurance for residents at lower rates. Reduced
property loss due to flooding
Timeline: Ongoing
67 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Minturn
Action Title: Floodplain Management
Priority: Low
Issue/Background:
The Town of Minturn participates in the National Flood Insurance Program. This project
reinforces the commitment to continue to adhere to the Flood Damage Prevention
regulations which provide for the mitigation of flood hazards for all new construction.
Implementation:
Methods of reducing flood losses include;
Adoption of a flood damage prevention ordinance that prevents any new
construction in a designated floodway and substantial improvements to existing
structures that are located in a designated floodway;
Prohibiting all development within 30’ of the ordinary high water mark of
any live stream;
Restricting or prohibiting uses which are dangerous to health, safety, and
property due to water or erosion hazards, or which result in damaging
increases in erosion or in flood heights or velocities;
Requiring that uses vulnerable to floods, including facilities which serve
such uses, be protected against flood damage at the time of initial
construction;
Controlling the alteration of natural floodplains, stream channels and
natural protective barriers, which help accommodate or channel
floodwaters;
Controlling filling, grading, dredging and other development which may
increase flood damage;
Preventing or regulating the construction of flood barriers which will
unnaturally divert floodwaters or which may increase flood hazards in
other areas.
Responsible Agency: Town of Minturn
68 Eagle County Pre-Disaster Mitigation Plan 2012
Partners: None
Potential Funding: Funding provided in existing Town budget
Cost Estimate: Minimal
Benefits: Continued availability of flood insurance for residents at lower rates;
Reduced property loss due to flooding; Reduced need for rescue and relief
efforts associated with flooding and generally undertaken at the expense of
the general public
Timeline: Ongoing
69 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Minturn
Action Title: Pine Street Fuel Break
Priority: (High)
Issue/Background: The town of Minturn is located in the valley
bottom along Highway 24. The population of the town is approximately 1,100.
The valley sides surrounding the town are steep, and are covered primarily with
grass and sage on the northern side; and grass, sage, aspen, and lodgepole pine
on the southern side. Most lodgepole pine trees within the vicinity of town are
dead, and will eventually blow down if not removed. Rapid rates of fire spread
can be expected in these steep areas, especially those containing grass and sage.
Flame lengths could easily exceed 11 feet in areas of standing dead lodgepole
pine.
Implementation: The project area is located on public/private lands
above Pine Street in Minturn. Remove all dead trees associated with MPB
infestation and thin further to create a fuel break behind the community. This
will limit fire-branding by embers into the community as well as the potential
spread of fire into the forest surrounding the neighborhood as the result of
structure fires. Adjacent home owners should also meet with appropriate fire
mitigation experts at the fire district and county/state level to complete home
wildfire hazard assessments, and make necessary recommendations to minimize
wildfire hazards in the home ignition zone. Agency oversight will be needed to
create linked treatment areas across the intermix of private and public property
in the area.
Responsible Agency: Minturn
Partners: Eagle County, Colorado State Forest Service, Eagle River FPD, White River
National Forest (USDA Forest Service)
Potential Funding: Grant funding from Colorado State Forest Service and USFS
Cost Estimate: $2500/acre
Benefits: This will limit fire-branding by embers into the community as well as the
potential spread of fire into the forest surrounding the neighborhood as the result of structure
fires.
Timeline: TBD
70 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Eagle-Vail Metro District
Action Title: Whiskey Hill Fuel Break – Eagle-Vail
Priority: High
Issue/Background: The community of Eagle-Vail is located on the
western edge of Dowd Junction, near the Interstate 70 and Highway 24
interchange. This unincorporated community includes more than 1,400 homes,
and a large commercial area along Highway 6. The Whiskey Hill neighborhood
is located on the hillside above the Eagle-Vail golf course. The area is accessed
via a narrow, steep one way road that travels through Eagle-Vail (Eagle Drive).
Access and egress during a wildfire are likely to be difficult depending on how
many residents are present. Fuels in the area include aspen and beetle-killed
lodgepole pine. Most homes in this part of the community lack any defensible
space and have wood-shingle roofs. Many homes are located on the edge of the
steep hillsides, and will be more susceptible to fire spread uphill. Rapid rates of
spread can be expected in these steep areas, especially those containing grass and
sage. Flame lengths could easily exceed 11 feet in areas of standing dead
lodgepole pine.
Implementation: The project area is located on public/private lands above Eagle
Drive. Remove all dead trees associated with MPB infestation and thin further to create a fuel
break behind the community. Home owners should also meet with appropriate fire mitigation
experts at the fire district and county/state level to complete home wildfire hazard assessments,
and make necessary recommendations to minimize wildfire hazards in the home ignition zone.
Agency oversight will be needed to create linked treatment areas across an intermix of private
and public property in the area.
Responsible Agency: Eagle-Vail Metro District/Eagle River Fire Protection District
Partners: Eagle County, Colorado State Forest Service, Eagle River FPD, White River
National Forest (USDA Forest Service)
Potential Funding: Grant funding from Colorado State Forest Service and USFS
Cost Estimate: $2100/acre
Benefits: This will limit fire-branding by embers into the community as well as the
potential spread of fire into the forest surrounding the neighborhood as the result of structure
fires.
Timeline: TBD
71 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Rock Creek Volunteer Fire Department
Action Title: Rock Creek Fire CWPP/Copper Spur WUI
Priority: High
Issue/Background:
Issue #1
It is imperative that there is a Community Wildfire Protection Plan developed for the entire
Rock Creek Volunteer Fire Department Service Area. Our planning participants would include a
representative of the CSFS, Eagle County Emergency Manager, Eagle County Wildland Fire
Coordinator, Rock Creek Fire Representative, community members and homeowners for this
project to be successful. It would be extremely important that there is a buy-in and commitment
of the local community members for completion. We would follow all the plan components
outlined in the CSFS Minimum Standards for Developing Community Wildfire Protection Plans
and the Healthy Forests Restoration Act of 2003.
Planning is already in motion with the Firewise education piece and power-point
presentation at a Rock Creek Fire Open House back in 2009. Since then, the fire department has
sent out newsletters to the entire community that had educational information regarding
defensible spaces around a home and web sites that the community members can get more
information.
Issue #2
The primary area of elevated risk for the Rock Creek Fire Service Area would be Copper Spur
Road. Originally called Coppertown back in 1916, it was thought that this area was rich in copper
and ore: and two mines set up shop. The dream of mounds of copper resulted in only one
railroad carload from 1916 to 1918. There were many buildings left from the mining companies
in Coppertown including a large log structure. It was used as a hospital during the construction
of the Moffat Tunnel from 1925-1928. It was then repurposed for the mining operation. After
the bust, the building was dismantled and moved to McCoy to use as the local church, dance
hall, saloon and boarding house. Currently, there are many homes, barns and outbuildings that
are standing in this steep narrow 2.4 miles on Coppertown town sized lots. The upper part of
the Copper Spur Road heads into Routt County.
There are: 2 Large homes (2000-7200 sq ft)
15 Small homes (< 2000 sq ft)
4 Barns
28 Sheds
9 Outbuildings (6 X 6 or smaller)
These numbers are from Highway 131 entrance to mile marker 2.4 to the Routt County Line.
There are approximately 27-30 residents on Eagle County Road 31.
Implementation:
Hazardous Fuel Reduction:
72 Eagle County Pre-Disaster Mitigation Plan 2012
1. Defensible space. There are a great number of older homes that have little to no
defensible space. There is seasonal water available, however all driveways have poor access.
The native vegetation is pinion and juniper. There are seasonal ornamental perennials close to
all the older homes. The newer homes have little vegetation near their homes. All the home
sites should, at a minimum, have fuel reduction mitigation.
2. Fuel Breaks. The community is built at the base of the Copper Spur Road/draw. Many of
the homes have steep slopes (average 25% or more) behind their homes into BLM land.
Landscape fuel reduction projects should be implemented to protect the back side of the
landowners' property.
Improve Firefighting Infrastructure/Response:
1. Water. There is Yarmony Creek that flows from winter to mid July and a pond and dry
hydrant at the first residence on the right. Other than that, the other available seasonal water
would be in Routt County at the Reservoir (winter until July) and a pond with a dock at the
Copper Spur Ranch. Currently, we would shuttle water from the eight railroad hydrants in Bond,
2 miles south.
2. Safety Zones. No reliable safety zones. A few cattle trails used a few times a year. It is
paramount to define and create more safety zones.
Improve Access:
1. Secondary Access (Egress): There are none currently. If it was an emergency, continue
east to Routt County through the Copper Spur Ranch and go south to Radium or north to the
Conger Mesa. 4WD roads ONLY; no cars.
2. Primary Access (Ingress): Needs to be widened, improved and make emergency
turnarounds.
Responsible Agency: Rock Creek Volunteer Fire Dept
Partners: Community, Rock Creek Volunteer Fire Department, Eagle County, BLM, CSFS
Potential Funding: Grants
Cost Estimate: $15,000 to $20,000
Benefits: The benefits are numerous. When Rock Creek Fire develops a successful
Community Wildfire Protection Plan, it will provide the community with a set of objectives and
actions specifically designed to address the threat of wildfire. The objectives would enhance
public life safety, improve community sustainability, protect ecosystem health, raise public
awareness of wildfire hazards and wildfire risk, and educate landowners on how to reduce home
ignitability. Most importantly it would build and improve collaboration at multiple levels.
Timeline: 2 + years
73 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Gypsum Fire Protection District/Town of Gypsum
Action Title: Gypsum CWPP revision
Priority: Medium
Issue/Background:
The Gypsum Fire Protection District completed a CWPP for the Town of Gypsum several
years ago. This plan is outdate and in need of revision.
Implementation:
Complete a revision of the Town of Gypsum CWPP to include a detailed survey following the
guidance included in the National Fire Protection Association standard 1144
Responsible Agency: Gypsum Fire Protection District
Partners: Town of Gypsum, Eagle County, BLM, CSFS
Potential Funding: Grants
Cost Estimate: $2,500 - $5,000
Benefits:
A revised CWPP will help identify vulnerable neighborhoods and lay the groundwork for
specific wildfire mitigation projects.
Timeline: 3 years
74 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Gypsum
Action Title: Broken Bridge Removal
Priority: Medium
Issue/Background: The Old Bridge across the Eagle River at Trail Gulch Road in
Gypsum, just upstream of the current Highway 6 bridge, causes a backwater effect according to
the current FEMA Flood Insurance Study (FIS), raising the water surface elevation by several feet
upstream of the bridge. As such, it appears that removal of this bridge could significantly reduce
the flood impact to the trailer park located just upstream on the north side of the river.
Implementation: The Town hired the firm River Restoration.org to investigate the
recreational benefits afforded by removing the bridge and propose preliminary cost estimates.
Responsible Agency: CDOT, Town of Gypsum
Partners: Eagle County Open Space, ECO Trails GOCO, CDOT,
Local River Recreation Groups, Adjacent property
owners
Potential Funding: Same as above with the Town of Gypsum
Cost Estimate: $80,000
Benefits: Flood damage mitigation, improved boating access and
hazard removal, improved fisherman access, enhanced
fish habitat.
Timeline: No definite timeline as yet.
75 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Red Cliff
Action Title: High Street Bridge
Priority: High
Issue/Background: The bridge across the Eagle River has recently been
downgraded to 8/13/13T and is in poor shape. This bridge is a single lane timber bridge and
offers the only access to the water plant for the Town of Red Cliff.
Implementation: Town and County engineers working with SEH
Responsible Agency: Town of Red Cliff
Partners: Eagle County
Potential Funding: Unclear, as the bridge links the forest service road to the water
plant area which is also part of USFS. The water plant location was built for the Town of Red
Cliff by the US Government prior to 1942 along with the development of Camp Hale.
Cost Estimate: $526,000 (SEH estimate)
Benefits: This would allow continued access to the Town of Red Cliff water tank and
plant.
Timeline: project estimate 90 days
76 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Red Cliff
Action Title: Water Street Bridge
Priority: High
Issue/Background: The bridge across Turkey Creek has recently been
downgraded to 21/33/36T and is in poor shape. The bridge was evaluated for rehabilitation,
however the project would not increase the load limits. The bridge provides a critical means of
economic and social viability as it is the recommended route into town for any large trucks
including emergency vehicles and school buses. The other entry into town is a tight turn with a
narrow road (rock cliff wall on one side, cliff drop off on the other).
Implementation: Town and County engineers working with SEH
Responsible Agency: Town of Red Cliff
Partners: Eagle County
Potential Funding: State or Federal Bridge funds, does not qualify for CDOT funds.
Cost Estimate: $5,000,000
Benefits: Crucial entrance into the town will be preserved.
Timeline:
77 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Gore Creek and Tributaries Aggradation – Vail, CO
Priority: Medium
Issue/Background: The Gore Creek and its tributaries located with in the Town of
Vail have seen minor to extensive aggradation. Extensive aggradation (reach wide
deposition) occurred in Gore Creek from increased supplies of sediment; evidenced by 4
feet deep deposits on gravel bars within the main channel of Gore Creek. Similar
aggradation occurred in the lower Booth, Pitkin and Bighorn tributaries. The confluences
of these tributaries with Gore Creek occur on steep alluvial fans. Significant aggradation
has occurred throughout the main channel of Gore Creek and may impact channel
conveyance and base flood elevations as determined by FEMA. A very detailed flood
study of Gore Creek was performed in 1994 - 1996 including survey of the channel
bottom. A 2010 resurvey of these locations has shown up to 4 feet of channel
aggradation. Preliminary flood modeling of the existing channel conditions shows
increases in the predicted base flood elevations of up to 2 feet.
Implementation: Remove cobble, sediment deposits from creek bed
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund
Cost Estimate: $620,000
Benefits: Restore creek capacity, channel conveyance
Timeline: 5 yrs
78 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Booth Creek – Vail, CO
Priority: High
Issue/Background: Booth Creek is a tributary of the Gore Creek located in east
Vail. The creek channel experienced a significant flood and channel forming event in
2010. Significant channel widening and down cutting and associated erosion, deposition
and loss of land occurred. There was overbank flooding and deposits in the park area
located just north of the N Frontage Rd.
Implementation: Biostabilize creek banks to minimize future erosion, channel
grading to restore creek capacity, install vegetated berms to protect structures (public and
private), construct drainage return channels for control future overbank flooding, modify
existing old US 6 box culvert to increase capacity and prevent blockage
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund
Cost Estimate: $250,000 - $30,000
Benefits: Restore creek capacity, channel conveyance, protect structures from future
flooding.
Timeline: 1-5 yrs
79 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Pitkin Creek at I-70 – Vail, CO
Priority: Medium
Issue/Background: Pitkin Creek crosses I-70 approximately 0.2 miles east of Exit
180. The creek is contained in a corrugated metal pipe. At the I-70 outlet significant
scour and channel down cutting occurred. Footers of the I-70 outlet structure may be
undermined. Channel material was borrowed for bank stabilization (summer 2010),
further compromising channel grade stability. There is potential for downcutting and
collapse of I-70 culvert similar to Bighorn Creek 2003 which resulted in a sinkhole
forming under the interstate and significant flooding downstream.
Implementation: Rebuild the headworks at the outfall and augment the grade
control structure downstream of I-70, stabilize the scour pool at the I-70 outlet.
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund, Colorado Department of
Transportation
Cost Estimate: $100,000 - $200,000
Benefits: Prevent continued scour at outfall, stabilize foundation of outlet structure
Timeline: 2-3 yrs
80 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Vail Rockfall Mitigation – Vail, CO
Priority: High
Issue/Background: The area is located above Lions Ridge Loop approximately ¼
mile west of its intersection with the North Frontage Road. It is identified as a “High
Severity Rockfall” area according to the Town’s hazard maps. It is a bedrock outcropping
exposed along a cliffside above a high density, affordable housing complex (1,200 –
1,500 residents at any one time) and the US Post Office building.
Implementation: Individual stabilization of large rocks. stabilize or remove large
rocks from hillside that may be prone to slide
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund, Colorado Department of
Transportation
Cost Estimate: $140,000 - $200,000
Benefits: minimize hazard to residents and structures below rockfall area
Timeline: 2-5 yrs
81 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Bighorn Creek at Spruce Way – Vail, CO
Priority: High
Issue/Background: Bighorn Creek is a tributary of the Gore Creek located in East
Vail. The culvert crossing of Spruce Way is located just downstream from the 2003 I-70
sinkhole due to the failure of the interstate culvert crossing. A head cut may be
destabilizing Spruce Way by eroding the toe of the fill slope and increasing groundwater
gradients. Large material transporting through the existing corrugated metal pipe has
damaged the integrity of the culvert and created seepage points. Failure of the culvert
crossing could cause possible damage/flooding downstream similar to the 2003 sinkhole
event.
Implementation: Replace the existing culvert with a concrete box culvert with
headwalls and permanent grade control
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund
Cost Estimate: $100,000 - $150,000
Benefits: Prevent failure of culvert and roadway
Timeline: 2012
82 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Gore Creek and Tributaries Bank Stabilization – Vail, CO
Priority: Medium
Issue/Background: The Gore Creek and its tributaries located within the Town of
Vail have seen minor to significant stream bank erosion. In some areas this has resulted
in a potential negative impact to both public (bridges, parks, recreation trails) and private
(homes) investments. In 2010, spring runoff reached the 100 year return event levels in
some reaches of the Gore Creek and its tributaries. This high water event resulted in
significant channel widening and scour and deposition of the channel bed.
Implementation: Biostabilize banks along the creek banks where necessary to
prevent further erosion and NPS (sediment). Install rip-rap along creek banks to
minimize bank erosion. Enhance riparian vegetation
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund
Cost Estimate: $500 - $8000 per lineal foot biostabilize banks, $50 - $150 per cubic
yard rip-rap, $4 - $8 per square foot enhance riparian vegetation
Benefits: Improve riparian zones, prevent further erosion, minimize flooding
Timeline: 5 years
83 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Bighorn Creek at Columbine Dr – Vail, CO
Priority: High
Issue/Background: Bighorn Creek is a tributary of the Gore Creek located in East
Vail. The culvert crossing of Columbine Drive is located just upstream from the 2003 I-
70 sinkhole due to the failure of the interstate culvert crossing. A head cut may be
destabilizing Columbine Drive by eroding the toe of the fill slope and increasing
groundwater gradients. Large material transporting through the existing corrugated metal
pipe has damaged the integrity of the culvert and created seepage points. The existing
outlet grade control is unstable. Failure of the culvert crossing would leave
approximately 10 residential units with out access and cause possible damage/flooding
downstream similar to the 2003 sinkhole event.
Implementation: Replace the existing culvert with a concrete box culvert with
headwalls and permanent grade control
Responsible Agency: Town of Vail
Partners: Town of Vail
Potential Funding: Grants, Town of Vail general fund
Cost Estimate: $100,000 - $150,000
Benefits: Prevent failure of culvert and roadway
Timeline: 1-2 yrs
84 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Town of Vail
Action Title: Gore Creek Bridge at Vail Golf Club Hole #15 – Vail, CO
Priority: Medium
Issue/Background: This pedestrian/golf cart bridge crosses the Gore Creek at the
15th hole. It has significant scour on the north abutment exposing the foundation. A deep
scour hole beneath the bridge has developed which is approximately 4’ lower than the
bottom of the foundation. Potential failure of this structure could cause damage to the
Gore Valley Recreation Trail path which runs parallel to the creek for a distance
upstream from the golf course bridge.
Implementation: Install scour protection - Install rip-rap protection at the bridge
abutments to prevent scour and undermining of the foundation
Responsible Agency: Vail Recreation District
Partners: Town of Vail
Potential Funding: Grants, Vail Recreation District general fund, Town of Vail
general fund
Cost Estimate: $30,000 - $60,000
Benefits: Maintain structural integrity of the structure
Timeline: 5 yrs
85 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Eagle County/Basalt & Rural FPD
Action Title: Cedar Drive Hazardous Fuel Reduction
Priority: (High)
Issue/Background: The area commonly referred to as Cedar Drive is a
neighborhood with approximately 30 home-sites located 4 miles East of Basalt. The subdivision
has one primary access point from Basalt via Cedar/Basalt Mountain Drive. The primary
vegetation throughout the area consists of dense, mature stands of pinon/juniper and gambel-
oak. General topography can be characterized by steep slopes, with homes located on ridgelines
and near natural chimney features. Access to the neighborhood is extremely poor. Property
owners and emergency responders are forced to enter/exit the neighborhood via a single-lane
dirt road, with several switchbacks and severe drop-offs from the roadway. In 2008, a wildland
fire trapped residents when the only route in and out of the neighborhood was compromised
preventing them from evacuating the area.
Implementation: conduct forest thinning and hazardous fuel reduction work along
primary ingress/egress route (Cedar Drive) to neighborhood, and along emergency egress route
through adjacent property. Hand crews to cut and remove trees and brush within 200ft of
roadway in order to create 10-20ft canopy separation and removal of ‘ladder-fuels’.
Masticate/chip/burn remaining slash on-site.
Responsible Agency: Eagle County/ Basalt & Rural FPD
Partners: Cedar Drive HOA; Colorado State Forest Service
Potential Funding: BLM and Colorado State Forest Service assistance grants
Cost Estimate: $1500-2000/acres
Benefits: minimize fuel loading near roadway to reduce fire intensity near evacuation
route and create potential safety zones for residents and emergency providers
Timeline: 2012-2015
86 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Eagle County
Action Title: Culvert inventory and replacement
Priority: Medium
Issue/Background: Even though Eagle County Road and Bridge inspects and cleans
culvert every spring there are still and few culverts that are insufficient for 100 years flows.
There are also several culverts on private property that impact public roads when they over
flow.
Implementation: Evaluate and replace insufficient culverts
Responsible Agency: Eagle County
Partners: CDOT, private property owners
Potential Funding: County funds, grants and private funds
Cost Estimate: Unknown
Benefits: Inventory and ownership of culverts will allow for better planning.
Timeline: Undetermined
87 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Eagle County
Action Title: Maximum Flow Determination
Priority: High
Issue/Background: Eagle County contains many watersheds which contain dead
end public roadways. It is critical to public safety to determine the flows in those waterways that
constitute a danger to travelers and responders.
Implementation: Conduct an engineering study of all applicable watersheds to
determine the maximum flow threshold for closing those roadways.
Responsible Agency: Eagle County
Partners: Towns, CDOT
Potential Funding: County funds, town funds, State funds and grants.
Cost Estimate: Unknown
Benefits: Public Safety planning
Timeline: Undetermined
88 Eagle County Pre-Disaster Mitigation Plan 2012
Wildfire Hazard Area Profiles:
Figure 13 Arrowhead/BG
Arrowhead/Bachelor Gulch/Beaver Creek
Located south of Highway 6, between the towns of Edwards and Avon; are the gated
resort communities of Arrowhead, Bachelor Gulch and Beaver Creek. The area is characterized
by large second homes, and has few year-round residents. The dominant vegetation
throughout these communities ranges from mature stands of quaking aspen (Populus
tremuloides) to mixed stands of lodgepole pine (Pinus contorta) or Douglas fir (Pseudotsuga
menziesii) at higher elevations; with serviceberry, sage and other shrubs at lower elevations.
Fire Management Objectives:
Neighborhood specific CWPP’s have been developed for each of these areas. They can be
viewed on-line at:
http://csfs.colostate.edu/pages/documents/ArrowheadCWPP.pdf
http://csfs.colostate.edu/pages/documents/BachelorGulchCWPP.pdf
http://csfs.colostate.edu/pages/documents/BeaverCreekCWPP.pdf
Figure 14 Cordillera
89 Eagle County Pre-Disaster Mitigation Plan 2012
The Divide - Cordillera
Cordillera is located in central Eagle County, a few miles west of Edwards, accessed by
Highway 6. Cordillera is split into four residential areas: The Divide, The Ranch, The Summit,
and The Valley Club. Predominant vegetation throughout the Cordillera Divide consists of
quaking aspen (Populus tremuloides) (typically with a dense understory of serviceberry (Genus
Amelanchier), chokecherry (Prunus virginiana) and other mountain shrubs), and dense stands
of mixed conifers including lodgepole pine (Pinus contorta), subalpine fir (Abies lasiocarpa),
Douglas-fir (Pseudotsuga menziesii) and Englemann spruce (Picea englemannii). Other flora
that occur commonly, particularly on drier slopes, include Gambel's oak (Quercus gambelii),
pinyon pine (Pinus edulis), Rocky Mountain juniper (Juniperus scopulorum) and various species
of sagebrush (Genus Artemesia).
Fire Management Objectives:
A Neighborhood specific CWPP has been developed for Cordillera. It can be viewed on-line
at:
http://csfs.colostate.edu/pages/documents/CordilleraCWPP.pdf
Figure 15 Cordillera
90 Eagle County Pre-Disaster Mitigation Plan 2012
The Ranch - Cordillera
Cordillera is located in central Eagle County, a few miles west of Edwards, accessed by
Highway 6. Cordillera is split into four residential areas: The Divide, The Ranch, The Summit,
and The Valley Club. Predominant vegetation throughout the Cordillera Ranch consists of
quaking aspen (Populus tremuloides) (typically with a dense understory of serviceberry (Genus
Amelanchier), chokecherry (Prunus virginiana) and other mountain shrubs), and dense stands
of mixed conifers including lodgepole pine (Pinus contorta), subalpine fir (Abies lasiocarpa),
Douglas-fir (Pseudotsuga menziesii) and Englemann spruce (Picea englemannii). Other flora
that occur commonly, particularly on drier slopes, include Gambel's oak (Quercus gambelii),
pinyon pine (Pinus edulis), Rocky Mountain juniper (Juniperus scopulorum) and various species
of sagebrush (Genus Artemesia).
Fire Management Objectives:
A Neighborhood specific CWPP has been developed for Cordillera. It can be viewed on-line
at:
http://csfs.colostate.edu/pages/documents/CordilleraCWPP.pdf
Figure 16 Cordillera
91 Eagle County Pre-Disaster Mitigation Plan 2012
The Summit- Cordillera
Cordillera is located in central Eagle County, a few miles west of Edwards, accessed by
Highway 6. Cordillera is split into four residential areas: The Divide, The Ranch, The Summit,
and The Valley Club. Predominant vegetation throughout the Cordillera Summit consists of
quaking aspen (Populus tremuloides) (typically with a dense understory of serviceberry (Genus
Amelanchier), chokecherry (Prunus virginiana) and other mountain shrubs, and dense stands
of mixed conifers including lodgepole pine (Pinus contorta), subalpine fir (Abies lasiocarpa),
Douglas-fir (Pseudotsuga menziesii) and Englemann spruce (Picea englemannii). Other flora
that occur commonly, particularly on drier slopes, include Gambel's oak (Quercus gambelii),
pinyon pine (Pinus edulis), Rocky Mountain juniper (Juniperus scopulorum) and various species
of sagebrush (Genus Artemesia).
Fire Management Objectives:
A Neighborhood specific CWPP has been developed for Cordillera. It can be viewed on-line
at:
http://csfs.colostate.edu/pages/documents/CordilleraCWPP.pdf
Figure 17 Cordillera
92 Eagle County Pre-Disaster Mitigation Plan 2012
The Valley Club - Cordillera
Cordillera is located in central Eagle County, a few miles west of Edwards, accessed by
Highway 6 and Beard Creek Trail. Cordillera is split into four residential areas: The Divide, The
Ranch, The Summit, and The Valley Club. Predominant vegetation throughout the Cordillera
Valley Club consists of Gambel's oak (Quercus gambelii), pinyon pine (Pinus edulis), Rocky
Mountain juniper (Juniperus scopulorum) and various species of sagebrush (Genus Artemesia),
serviceberry (Genus Amelanchier), chokecherry (Prunus virginiana) and other mountain
shrubs.
Fire Management Objectives:
Hazardous Fuel Reduction: The study area is represented primarily by four fuel models
(Anderson FM): FM 1, 2, 4, 6; other fuel models exist, but not in quantities sufficient to
significantly influence fire behavior in the Wildland Urban Interface. Cordillera Valley Club
fuels can be characterized by old growth trees and mature tall shrubs. In general, the area
is comprised of significant surface fuels with continuous stands of pinon/juniper
surrounding the neighborhood. The Valley Club is a golf-course community, so fuels near
homes area broken-up by irrigated fairways.
93 Eagle County Pre-Disaster Mitigation Plan 2012
o Defensible Space: Many new homes in the study area have adequate defensible
space; most of the older homes in the Valley Club have a combination of native
and ornamental conifers and other flammable vegetation too close to the house
(ie. within the home ignition zone of 30ft). Some homes have irrigated lawns, but
they account for small portion the overall landscape. At a minimum, fuel
reduction within the home ignition zone should be implemented at every home-
site in the Cordillera Valley Club.
Fire Resistant Construction: Homes built in the Valley Club after 2006 have fire resistant
decking, roofing and siding per the Eagle County Wildfire Regulations (see figure 1, page
27). Many, if not all, of the homes built in the Valley Club prior to 2006 have wood shake
roofing and conventional (non-fire rated) decks. Remodels and new construction in the
study area will have to adhere to Eagle County’s Building Requirements for Wildfire Areas
requiring the use of fire resistant building materials.
Figure 18 Cedar Drive
Cedar Drive - Basalt
94 Eagle County Pre-Disaster Mitigation Plan 2012
The area commonly referred to as Cedar Drive is a neighborhood located approximately 4
miles East of Basalt, Colorado (figure 1). The subdivision has one primary access point from
Basalt via Cedar/Basalt Mountain Drive. The dominant vegetation throughout the study area
is Pinyon Pine (Pinus edulis) and Rocky Mountain Juniper (Juniperous scopulorum) with short
grass and sage/oak-brush understory, varying in coverage from uniformly dispersed Pinyon-
juniper stands to continuous stands with significant ladder fuels. General topography in the
area can be characterized by steep slopes, with homes located on ridgelines and near natural
chimney features.
Fire Management Objectives:
Hazardous Fuel Reduction: The study area is represented primarily by 4 fuel models
(Anderson FM): FM 1, 2, 4, 6. Other fuel models exist, but not in quantities sufficient to
significantly influence fire behavior in the Wildland Urban Interface. Cedar Drive fuels can
be characterized by old growth trees and mature tall shrubs. In general, the area is
comprised of closed canopy pinon/juniper stands, with little to no surface fuels at lower
elevations; and mature tall shrubs (primarily sage and gambel oak) at the upper reaches of
the neighborhood.
o Defensible Space: Most homes in the study area have little to no defensible space;
there is a lack of available water and poor access to the home-sites. Many homes
have a combination of native and ornamental conifers and other flammable
vegetation too close to the house (ie. within the home ignition zone of 30ft). At a
minimum, fuel reduction within the home ignition zone should be implemented at
every home-site on Cedar Drive.
o Fuels Breaks: The neighborhood is built at the foot of Basalt Mountain, and is
characterized by extremely steep slopes (Average Slope 30+%), with numerous
ravines and natural chimney features. Many homes are built on the edge these
ridgelines or ravines. Landscape fuel reduction projects should seek to protect
the only ingress/egress point to the area via Cedar Drive.
Improve Fire Fighting Infrastructure/Response:
o Water: There is very little available water On Cedar Drive; limited to a few
small ponds and draught points along the creek running through the
neighborhood. A large community cistern (minimum 10,000gal) to provide
additional water for fire suppression within Cedar Drive will improve
firefighting capabilities and minimize water shuttling along the one point of
access to the neighborhood. On-site water storage is vital to protecting homes
during a wildfire. Additional water storage should be installed at every home on
Cedar Drive.
95 Eagle County Pre-Disaster Mitigation Plan 2012
o Safety Zones: Reliable safety zones are at a premium within the Cedar Drive
neighborhood, but some do exist. There is a large meadow of the area at the
entrance to Basalt Mountain Ranch. This would be a good location for a large tank
or cistern. Given the poor access and fuels below this part of the neighborhood, it
is of paramount importance to maintain this area as a viable safety zone. The tall-
grass in the meadow should be cut, or have animals graze on it, during fire season
to keep it low to the ground.
Improve Access: Access to the neighborhood is extremely poor. Property owners and
emergency responders are forced to enter/exit the neighborhood via a single-lane dirt
road, with several switchbacks and severe drop-offs from the roadway. In 2008, a wildland
fire trapped residents when the only route in and out of the neighborhood was
compromised.
o Secondary Access (Egress): A non-maintained 4WD road connects Cedar Drive to
the Frying Pan Road via an adjacent property. The road is less than 0.8 miles in
length and can be accessed from the end of Basalt Mountain Drive. This non-
maintained road is in need of improvement in order to accommodate 4WD
vehicles, and potentially Type VI engines. Road improvements and access
easements should be investigated and implemented in order to create a viable
secondary access point to the neighborhood.
o Primary Access (Ingress): Road improvements to the lower section of Cedar Drive
are vital to protect the life safety of homeowners and emergency responders
entering the area. Where ever possible, road widths should be increased and
emergency turn-outs should be created to facilitate traffic flow both in and out of
the area during a fire. Guardrails should be installed at several points along the
road to protect large fire-fighting apparatus from slipping off the driving surface.
Figure 19 Colorow
96 Eagle County Pre-Disaster Mitigation Plan 2012
Colorow
Colorow is a residential neighborhood in unincorporated Eagle County approximately 6
miles from Edwards, Colorado. The community is made up of approximately 20 home sites
within the Wildland Urban Interface, and borders public lands on its western and southern
boundaries. The area is considered to be in a Montane Zone (6,000 – 10,000 ft), of the
western slope of the Central Rockies of Colorado¹. The dominant vegetation throughout the
upper reaches of the study area is Aspen (Populus tremuloides) with short grass and mixed
tall-shrub understory. Significant stands of conifers also exist throughout the study area.
These stands are dominated by lodgepole pine (Pinus contorta) or Douglas fir (Pseudotsuga
menziesii). Small sections of riparian vegetation are present near water sources and drainages.
Native and non-native ornamental grass, trees, and shrubs of various types can be found near
home-sites as elements of residential landscaping. Serviceberry, sage, and other tall shrubs
are common at lower elevations at high densities and dominate the area surrounding the one
access point to the neighborhood (Colorow Road)
Fire Management Objectives:
97 Eagle County Pre-Disaster Mitigation Plan 2012
Hazardous Fuel Reduction: The study area is represented primarily by seven fuel models
(Anderson FM): FM 1, 2, 5, 6, 8, 10, 40); other fuel models exist, but not in quantities
sufficient to significantly influence fire behavior in the Wildland Urban Interface. Colorow
fuels are characterized by old growth trees and mature tall shrubs. In general, the area is
comprised of significant surface fuels with a continuous, mixed conifer or aspen canopy.
o Defensible Space: Most homes in the study area have adequate defensible space;
however there is a lack of available water and poor access to many of the home-
sites. Many homes have a combination of native and ornamental conifers and
other flammable vegetation too close to the house (ie. within the home ignition
zone of 30ft). Some homes have irrigated lawns, but they account for small
portion the overall landscape. At a minimum, fuel reduction within the home
ignition zone should be implemented at every home-site in Colorow.
o Fuels Breaks: The neighborhood is built on a hillside, characterized by steep
slopes (Average Slope 20-30%), with numerous ravines and natural chimney
features. Many homes are built on the edge these ridgelines or ravines.
Landscape fuel reduction projects should seek to protect the only
ingress/egress point to the area via Colorow Road. Hazardous fuel build-up
associated with Mtn. Pine Beetle mortality in the lodgepole pine stands
surrounding the neighborhood should be addressed with increased timber
harvesting over the next decade.
Improve Fire Fighting Infrastructure/Response:
o Water: There is very little available water in Colorow; limited to dry-hydrants
at 3 locations (approx. 10,000gal/each) and a few small ponds and draught
points along Squaw Creek Road. A large community cistern to provide
additional water for fire suppression within Colorow will improve firefighting
capabilities and minimize water shuttling along the one point of access to the
neighborhood.
o Safety Zones: Reliable safety zones are at a premium within the Colorow
neighborhood, but some do exist. There is a large meadow surrounded by aspen
at the upper reaches of Colorow Road, within 0.5 miles of the escape route
connecting to Pilgrim Downs. This would be a good location for a large tank or
cistern. Given the poor access and fuels below this part of the neighborhood, it is
of paramount importance to maintain this area as a viable safety zone. The tall-
grass in the meadow should be cut, or have animals graze on it, during fire season
to keep it low to the ground.
Figure 20 Colorow
98 Eagle County Pre-Disaster Mitigation Plan 2012
Improve Access: There is one primary access point to the Colorow neighborhood via
Colorow Road; this will also be the only way in/out during a mandatory evacuation of the
neighborhood.
o Secondary Access (Egress): A non-maintained 4WD road connects Colorow to the
Pilgrim Downs subdivision. The road is less than 0.5 miles in length and can be
accessed from two points on the 2000 block of Colorow Road. This non-
maintained road is in need of improvement in order to accommodate 4WD
vehicles, and potentially Type VI engines. There is a series of old logging roads
connecting Colorow to Pilgrim Downs through public and private properties. Road
improvements and access easements should be investigated and implemented in
order to create a viable secondary access point to the neighborhood.
99 Eagle County Pre-Disaster Mitigation Plan 2012
Figure 21 Eby Creek
Eby Creek Mesa
The Eby Creek Mesa Subdivision is located approximately one mile north of Eagle,
Colorado. The subdivision is accessed by heading north from Interstate 70 via Eby Creek Road.
The area is considered to be in a Montane zone (6,000 – 10,000 ft), of the western slope of the
Central Rockies of Colorado¹. The dominant vegetation throughout the study area is Pinyon
Pine (Pinus edulis) and Rocky Mountain Juniper (Juniperous scopulorum) with short grass and
sagebrush understory, varying in coverage from uniformly dispersed Pinyon-juniper stands to
continuous stands with significant ladder fuels. Small sections of riparian vegetation are
present near water sources and drainages. Native and non-native ornamental grass, trees, and
shrubs of various types can be found near home-sites as elements of residential landscaping.
Invasion of the noxious weed Cheat grass (Bromus secalinus) is evident throughout the
subdivision in areas of recent disturbance. Cheat grass is a concern to fire fighters as it
matures in early summer and can significantly add to rates of fire spread.
Fire Management Objectives:
100 Eagle County Pre-Disaster Mitigation Plan 2012
Hazardous Fuel Reduction: The study area is represented primarily by seven fuel models
(Anderson FM): FM 1, 2, 4, 6. Other fuel models exist, but not in quantities sufficient to
significantly influence fire behavior in the Wildland Urban Interface. . Eby Creek f uels vary
from light to moderate loads of grasses and shrubs. Tall grass and mature sagebrush can
be found throughout the study area in the neighborhood open-space parcels, as well as
patches of mature pinyon-juniper.
o Defensible Space: Most homes in the study area have adequate defensible space;
however several older homes on the neighborhood boundaries have mature too
close to the house (ie. within the home ignition zone of 30ft). At a minimum, fuel
reduction within the home ignition zone should be implemented at every home-
site in Eby Creek.
o Fuels Breaks: In 2004, a 55 acre fuel break was created on the western edge of
the neighborhood through adjacent BLM managed lands. In 2006 a 9 acre hand
treatment of the area known as Neilson Gulch was completed on HOA open-
space within the neighborhood (see figure 3, page 30). Long-term maintenance
of these treatment areas will be needed in order to maintain effective fuel-
breaks. Future landscape fuel reduction projects should seek to expand on
existing treatment areas, specifically to towards the northern reaches of the
neighborhood.
Improve Access: There is one primary access point to the Eby Creek Mesa neighborhood
via Eby Creek Road; this will also be the only way in/out during a mandatory evacuation of
the neighborhood.
o Secondary Access (Egress): a non-maintained, 4WD road connects Eby Creek to
ranch-lands north of the subdivision. The road is less than 0.8 miles in length and
can be accessed from Neilson Gulch Road at the intersection with Mesa Drive. This
non-maintained road is in need of improvement in order to accommodate 4WD
vehicles, and potentially Type VI engines. Road improvements and access
easements should be investigated and implemented in order to create a viable
secondary access point to the neighborhood.
101 Eagle County Pre-Disaster Mitigation Plan 2012
Eagle County Pre-Disaster Mitigation Project
Jurisdiction: Eagle County, Basalt & Rural Fire Protection District, Eagle River Fire
Protection District, Greater Eagle Fire Protection District, Gypsum Fire Protection District and
Rock Creek Volunteer Fire Department
Action Title: Implement mitigation strategies and projects
identified in the Community Wildfire Protection Plans
Priority: High
Issue/Background: Numerous wildfire mitigation actions and projects have been
identified in the Arrowhead CWPP (2008), Bachelor Gulch CWPP (2008), Beaver Creek CWPP
(2007), Cordillera CWPP (2004) and Eagle River Fire Protection District CWPP (2011) and future
CWPP effort will generate even more actions and project. The completed plans can be accessed
at:
http://csfs.colostate.edu/pages/CommunityWildfireProtectionPlans.html
Implementation: The Eagle County Wildfire Council will continue to seek funding,
coordinate and monitor the effectiveness of all wildfire mitigation efforts in Eagle County.
Responsible Agency: Eagle County Community Development
Partners: Towns and fire districts
Potential Funding: County funds, town funds, State funds and grants.
Cost Estimate: Unknown
Benefits: Public Safety planning
Timeline: Undetermined
102 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix C- Public Risk Assessment
A web based community survey was conducted to assess the public opinion regarding
the risks present in Eagle County. The survey contained the flowing questions.
1. What Eagle County community do you reside in?
2. Please rate the following hazards in Eagle County based upon the degree of
risk that you feel they present to you.
3. How well prepared are you as an individual to respond to and recover from
each of these hazards?
4. How well prepared is your community to respond to each of these hazards?
5. For the hazards that you feel present the most risk, what steps do you think
should be taken to reduce those risks?
The comments and graphs highlighting the survey results are included below;
1. What Eagle County community do you reside in?
Avon
Bond/McCoy
Eagle
Edwards
Gypsum
Minturn
Red Cliff
Vail
103 Eagle County Pre-Disaster Mitigation Plan 2012
2. Please Rate the following hazards in Eagle County based upon the degree of risk they
present to you.
3. How well prepared are you as an individual to respond to and recover from each of these
hazards?
0.00%
10.00%
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Not at all prepared
104 Eagle County Pre-Disaster Mitigation Plan 2012
4. How well prepared is your community to respond to and recover from each of these
hazards?
Comments:
Should have some training for the business in area due to I-70
Encourage people to prepare with supplies.
1. Lightning 2. High Winds 3. Airplane Crashes 4. Urban/Wildfires To reduce the
risks... public training
PRAY!
More materials on wildfire prevention More citizen ownership toward flood
preparedness Access to clean drinking water if distribution systems are unavailable
(not store bought)
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105 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix D
Hazard Maps
Wildfire Hazard Map
106 Eagle County Pre-Disaster Mitigation Plan 2012
Landslide Potential Map
107 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix E
Planning Process work Plan
Eagle County Pre-Disaster Mitigation Plan Revision
Work Plan
Hazard Identification, Analysis and Risk Assessment (April – May ‘10)
_ Project Initiation Meeting - April 22, 2010
_ Hazard Identification
_ Hazard Events Profile
_ Public Meeting #1
_ Community Asset Inventory
_ Risk Assessment/Loss Estimation
_ Progress and Coordination Meetings
Capability Assessment (May – June ‘10)
_ Plans, Policies, and Programs Examination - May 27, 2010
_ Assessment of Previous Mitigation Activities
_ Identification of Resources
_ Public Meeting #2
_ Progress and Coordination Meetings
Assessment of Alternative Hazard Mitigation Measures and Needs (June –July ‘10)
_ Develop Goals and Objectives – June 24, 2010
_ Research of Mitigation Alternatives
_ Progress and Coordination Meeting
_ Evaluate the Mitigation Measures
_ Mitigation Recommendations
_ Public Meeting #3
Development of Implementation Strategy (July – August ‘10)
_ Progress and Coordination Meetings - July 22, 2010
_ Mitigation Action Plan
_ Public Meeting #4
_ Public Hearing: present the draft Hazard Mitigation Plan
_ Final Presentation: elected and appointed officials or other designated forum
Production of Final Plan (August – October '10)
_ Draft Plan – October 1, 2010
_ Final Plan - November 1, 2010
_ Adoption of plan by Eagle County and Town Councils - During November 2010
Ongoing Activities (ongoing from April – October 2010)
_ Plan Evaluation
_ Plan Updates
_ Incorporate changes into plan
108 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix F
Meeting Agenda Example
Eagle County Pre-Disaster Mitigation Plan
Organizational Meeting
March 25, 2010 – 2:00 p.m.
Eagle County Building - Holy Cross Room
500 Broadway
Eagle, CO
□ Introductions
□ Purpose of Pre-Disaster Mitigation Plan (PDMP)
□ The Planning Process
□ Participants
□ Agreements
□ Adoption
□ Future Meetings
□ Other Items
109 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix G
Attendance Sheets
110 Eagle County Pre-Disaster Mitigation Plan 2012
111 Eagle County Pre-Disaster Mitigation Plan 2012
112 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix H
Flood Plain Summary Maps
Town of Avon example:
113 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Eagle Example:
Town of Gypsum Example:
114 Eagle County Pre-Disaster Mitigation Plan 2012
Town of Minturn Example:
Town of Red Cliff Example:
Town of Vail Example:
Detailed flood plain mapping can be viewed at the following sites;
http://www.eaglecounty.us/Engineering/Floodplain_Mapping/
http://www.vailgov.com/subpage.asp?dept_id=179
115 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix I
Hazardous Materials Flow Study
Route: I 70 (Eastbound/Westbound)
Location: Eagle County
Intersection: Milepost: 133
Date(s): 5/14-15/09
Period: 0900-0859
Day(s): Thursday/Friday
Agency Participants: CSP, Eagle Fire, Eagle River Fire, Greater Eagle Fire, Garfield County SO
Summary
Total Truck Count % of HAZMAT Trucks (132) of Total Truck
Count*
* Nine (9) multi-placarded vehicles
2796 5%
HAZMAT Class Counts % of Total HAZMAT Class
Count
Class 1 - Explosives 1 1%
Class 2 – Gases 15 11%
Class 3 – Flammable liquids 97 69%
Class 4 – Flammable solids 0 0%
Class 5 – Oxidizers 8 6%
Class 6 – Toxic substances 1 1%
Class 7 – Radioactive materials 0 0%
Class 8 – Corrosive substances 7 5%
Class 9 – Miscellaneous materials 8 6%
Class 10 – Dangerous (mixed loads) 2 1%
Unknown 2 1%
Total 141 101%
(Rounded)
116 Eagle County Pre-Disaster Mitigation Plan 2012
HAZMAT Counts/Percentages by Survey Period:
HAZMAT Class 0900-1659 1700-0059 0100-0859
Class 1 - Explosives 1 0 0
(100%)
Class 2 – Gases 10 3 2
(67%) (20%) (13%)
Class 3 – Flammable liquids 47 15 35
(48%) (16%) (36%)
Class 4 – Flammable solids 0 0 0
Class 5 – Oxidizers 4 0 4
(50%) (50%)
Class 6 – Toxic substances 0 0 1
(100%)
Class 7 – Radioactive materials 0 0 0
Class 8 – Corrosive substances 4 0 3
(57%) (43%)
Class 9 – Miscellaneous materials 4 2 2
(50%) (25%) (25%)
Class 10 Dangerous (mixed loads) 0 0 2
(100%)
Unknown 1 0 1
(50%) (50%)
The full report can be found at;
http://www.colorado.gov/cs/Satellite/StatePatrol-Main/CBON/1251594413197
117 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix J
STAPLEE Examples
118 Eagle County Pre-Disaster Mitigation Plan 2012
119 Eagle County Pre-Disaster Mitigation Plan 2012
120 Eagle County Pre-Disaster Mitigation Plan 2012
Appendix K
Critical Infrastructure List
Facility
Avon Urgent Care
Beaver Creek Medical Center
Edwards / Shaw Pavilion
Eagle Health Care Center
Gypsum Urgent - Emergent Care
Vail Valley Medical Center
Eagle County Ambulance District Edwards Base
Eagle County Ambulance District Traer Creek
Eagle County Ambulance District Vail Base
Eagle County School District-Administration (Critical Systems Operation):
ECSD - Technology Department
West Bus Barn (Transportation)
East Bus Barn (Transportation)
Maintenance Department
MDF Room
Schools:
Avon Elementary School
Battle Mountain High School
Berry Creek Middle School
Brush Creek Elementary School
Eagle Valley Elementary
Eagle Valley High School
Eagle Valley Middle School
Edwards Elementary School
Gypsum Creek Middle School
Gypsum Elementary School
Homestake Peak School
June Creek Elementary School
Red Canyon High School (East Campus)
Red Hill Elementary School
Red Sandstone Elementary School
Vail Ski & Snowboard Academy
Western Eagle County Ambulance District Station 1
Western Eagle County Ambulance District Station 2
Colorado State Patrol - Post
Colorado State Patrol - Post
Vail Police Department/ Municipal Building
CDOT
Avon Police Department
Avon Municipal Building (Admin/Govt)
Vail Fire Station 1
121 Eagle County Pre-Disaster Mitigation Plan 2012
Vail Fire Station 2
Vail Fire Station 3
Vail Public Works Facility
Gypsum Wastewater Plant
Norgaard Water Treatment
Mosher Water Treatment Plant
Sheriff's sub-station
Miturn Police Department
Minturn Water Treatment Plant
Minturn Water Tank #1
Minturn Water Tank #2
Basalt Filtration Plant
Basalt Fire Station 41
Basalt Fire Station 42
Basalt Fire Station 43
Basalt Fire Station 44
Basalt After Hours Clinic
Basalt Police Department
Eagle River Fire Protection District - Station 4
Eagle River Fire Protection District - Station 5
Eagle River Fire Protection District - Station 6
Eagle River Fire Protection District - Station 7
Eagle River Fire Protection District - Station 8
Eagle River Fire Protection District - Station 11
Eagle River Fire Protection District - Station 12
Eagle River Fire Protection District - Station 15
Eagle River Fire Protection District - Station 16
Rock Creek Volunteer Fire Department - Station 25
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com
HEIL LAW
TO: Honorable Mayor Carroll and Council members
FROM: Eric Heil, Town Attorney
RE: Ordinance No. 12-10, Adopting Version 20 of the CARADA, Version 19 of PUD
Guide, and Version 12 of the PUD Plan Map
DATE: October 19, 2012
Summary: The Town has received Version 19 of the PUD Guide, Version 20 of the CARADA, and
Version 12 of the PUD Plan Map. Since the last Town Council meeting, Traer Creek has sought to
respond to numerous concerns and the draft conditions stated by Council at the October 9, 2012
meeting. Although I and other representatives of Town have participated substantially in revisions
to these documents over the last week, I have not had a chance to prepare a review memorandum
explaining changes or to prepare a comparison of these documents to previous comments
submitted on behalf of the Town.
Thank you, Eric
MEMORANDUM
& PLANNING, LLC
1001679.20
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 F, 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 Execution 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
1001679.20
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. Accordingl y, 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 (b y virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted an y power to
consent or object to an y amendment of the Original Agreement (except for the rights of BNP,
derived in its capacity as the issuer of an irrevocable direct pay letter 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, to consent to TCMD’s
execution of any such amendment). 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
3
1001679.20
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
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;
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(b)Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L.The Town has adopted Ordinance No. 12-10, which approved this Development
Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and
took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term
Sheet.
M.Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
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.
N.The Vested Propert y Rights Statute and the Municipal Code (as in effect on the
Execution Date) authorize the Town to enter into development agreements which provide for the
vesting of propert y development rights with a term of greater than three (3) years.
O.Town Council has determined that granting Vested Propert y 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.
P.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 Im provements and promotes the
competitiveness and viability of private development within the Town and the Project.
Q.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 Propert y 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
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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.
R.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
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.
S.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.
T.BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s consent to approval of the Financing Plan and related
matters addressed in this Development Agreement. Additionally, BNP is an Intended
Beneficiarywith respect to BNP’s right to enforce certain provisions of this Development
Agreement, including but not limited to BNP’s right to have a lawfully eligible candidate
designated at the option of BNP to hold the office of director of TCMD, BNP’s right to be
conveyed and to hold a property interest sufficient to qualify its designee for holding the position
of director until such time as there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds,and BNP’s right to
participate on the AURA board of directors with respect to any urban renewal plans for any
portion of the Property.
U.As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-203 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.
V.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.
W.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.
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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:
ARTICLE1
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
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 Section1.5 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 Ve sting Te rm; Te rm 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 Section2.3 shall continue through and including October 20, 2039
(“Vesting Term”). If the Term expires prior to expiration of the Vesting Term, the Vesting Term
shall continue in full force and effect and shall survive expiration of the Term in accordance with
and subject to the terms, conditions and limitations set forth in this Agreement. On October 21,
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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 To wn;
(ii)any common-law vested rights obtained prior to such termination;
(iii)any right arising from To wn building permits, development
approvals or other zoning entitlements for the Property or the Project which were granted
or approved prior to expiration of the Ve sting Te rm; 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 Te rm expires.
(b)Te rm of Development Agreement. Notwithstanding any prior expiration
of the Ve sting Te rm (or survival of the Ve sting Te rm after expiration of the Te rm), the term of
this Development Agreement and the Parties’obligations hereunder shall commence upon the
Effective Date and shall terminate upon expiration of the Term. Upon expiration of the Te rm,
the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit.
Notwithstanding the foregoing, the To wn may elect to extend the Te rm in accordance with
Section 6.1(d). In no event shall the Te rm expire before the To wn’s obligation to maintain the
Ta x Credit in effect has terminated as provided in Section 6.1(b).
(c)Obligation to Maintain Ta x Credit. Without limitation of the foregoing,
the To wn’s obligation to maintain the Ta x Credit in effect pursuant to Sections 4.2(a)and 6.1(b)
shall survive expiration of the Ve sting Te rm 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 To wn, 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 Section1.5) shall not be
required except to the extent the proposed amendment directly and expressly modifies a
provision of this Development Agreement that establishesa right, obligation or remedy of such
Limited Party.
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(c)BNP. The Parties acknowledge that until such time as there are no
outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue
or refunding of such bonds, TCMD’s agreement to any future amendment to the provisions of
this Development Agreement that run in favor of BNP, including without limitation, this
Section 1.5(c),Section 1.6,Article 4,Section 5.1(e),Section 5.3(e),Article 6 and Article 7 is
subject to BNP Paribas’ (or an y successor or assignee of BNP Paribas pursuant to Section8.11)
prior written consent. The Parties further acknowledge that until such time as there are no
outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue
or refunding of such bonds, TCMD is required by the provisions of the TCMD Reissue
Documents to obtain the consent of BNP (or a written acknowledgement that such consent is not
required) to any future amendment to the provisions of this Development Agreement, and failure
on the part of TCMD to obtain such consent prior to entering into any such amendment will be a
default under the TCMD Reissue Documents, as to which BNP will have the right to exercise its
remedies.
1.6 Cooperation in Defending Legal Challenges. If, after the Execution 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
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 To wn 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 To wn
or TCMD is not in a position to fund from present cash reserves all or any portion of the
reasonabl y anticipated costs of defending such action or proceeding, such Part y’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. An y 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.
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1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries.
(a)Limited Parties. As more particularly described in Recital R, 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 Section4.3. 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
Agreement 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).
(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 Im provement 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. Notwithstanding the foregoing, TC-RP shall
have the obligation set forth in Section 5.5.
ARTICLE2
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 Te rm 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 Te rm 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
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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.
2.3 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.
2.4 Ve sting of Property Rights.The Original Agreement and the Original PUD Guide
were Site Specific Development Plans with respect to which the To wn granted Ve sted 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 Te rm Sheet, this Development Agreement
ratifies the Ve sted Property Rights established by the Original Agreement and the Original PUD
Guide and, as described in Section 1.4(a),extends the term of such Ve sted Property Rights
(including with respect to future amendments to any such Approved SSDP) through and
including October 20, 2039.
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.
Accordingly, 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 an y).
(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 to receive all To wn approvals necessary for the
development of the Project with conditions, standards and dedications which are no more
onerous than those imposed by the To wn upon other developers in the To wn 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); provided 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
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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
To wn 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 To wn’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 To wn ordinance by
which To wn Council approved implementation of the Settlement Te rm Sheet, or any instrument
implementing the Settlement Term Sheet as approved in such To wn ordinance, including but not
limited to the Development Plan.
(f)Notwithstanding any additional or contrary provision of the Municipal
Code (as in effect from time to time),and notwithstanding any prior expiration of the Te rm, the
Ve sting 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 an y contrary provision of the Municipal Code (as in
effect time to time), the scope of Ve sted 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 To wn 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,during
the Vesting Term (and notwithstanding any prior expiration of the Term) To wn Council (or other
final decision-maker of the To wn) shall not condition approval of any future amendment to the
Development Plan or other Approved SSDP (if any)on, nor shall To wn 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 Ve sting 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 To wn 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 To wn or any other party arising under this
Development Agreement for not developing all or any portion of any such phase of the Project.
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(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 To wn 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 To wn or an y other party arising under this Development Agreement for not
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 3.2(a).
(c)Construction and Interpretation. For purposes of this Section2.5
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 Ve sted 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 Original
Effective Date or as amended from time to time), and other To wn 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 Effective Date; provided, however, that
To wn ordinances and regulations newly enacted or amended after the Original Effective Date
shall not 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.
ARTICLE3
PUBLIC IMPROVEMENTS;DEVELOPMENT STANDARDS; EXACTIONS
3.1 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
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Guidelines have been promulgated. During the Term, the Design Review Board shall continue
to consist of not more than five (5) members, one (1) of whom shall be a member of the Town’s
Planning and Zoning Commission designated by the Town from time to time and the remainder
of whom shall be appointed as provided in the governing documents of the Design Review
Board. 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: (A)all development proposals submitted to the Design Review Board
for portions of the Property located south of Interstate 70; (B)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 to the Town’s Planning and Zoning
Commission); and (C) all proposed amendments to the Design Covenant. At Master Developer’s
option, separate design review board(s) may be established with respect to Planning Areas RMF-
1 and K. Such separate design review board(s), if any,created for Planning Areas RMF-1 and K
shall not be required to include any Town official as a member.
3.2 Allocation of Public Im provement 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 To wn’s performance
of its obligations under this Development Agreement (specificall y 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
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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 Section3.2 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.
(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 from time to time)to the contrary,the To wn 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.
3.3 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 3.2(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 To wn 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 To wn or to a District (subject to theavailability of
sufficient District Revenues to maintain such public roads).
(b)Dedication; Acceptance and Maintenance of Public Roads and Rights-of-
Wa y. Subject to the specific terms and conditions set forth in Article 4 and Article 6:
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(i)Existing Public Roads. Contemporaneously with the Effective
Date, TCMD conveyed to the To wn all of TCMD’s right, title and interest in and to the
existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yo der
Av enue), together with the road improvements, streetscape improvements, landscape
improvements and drainage improvements located within such rights-of-way. The To wn
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 Execution 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 specifically 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 To wn is and
shall remain responsible for snow removal, road maintenance, streetscape maintenance
and landscape maintenance within the current East Beaver Creek Boulevard easement.
The Parties acknowledge that no streetscape or landscape improvements are located
within the East Beaver Creek Boulevard easement as of the Execution Date, but that the
To wn shall maintain such streetscape or landscape improvements, if any, that may be
installed after the Execution Date. Asphalt overlays shall not be required prior to
Dedication of each phase of Main Street and, as set forth in Section 4.2(d), the To wn shall
undertake responsibility for asphalt overlays for Main Street only after Dedication of
each phase of Main Street. From and after Dedication of each phase of the permanent
alignment of Main Street, the terms and conditions of clause (iii)below shall apply to
such Dedicated phase.
(iii)Future Public Roads and Right-of-Wa ys. Future public road
rights-of-way (including future phases of the permanent alignments of Main Street and
East Beaver Creek Boulevard) shall be Dedicated to the To wn by Recording of the
pertinent final plat or, if acceptable to the Town, by Recording of a 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. Upon
completion of construction, Public Improvements located within public road rights-of-
way shall be Dedicated to the Town by bill of sale. Concurrently with the Dedication, the
To wn 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 To wn 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
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the remaining area of Planning Area K. The final point of demarcation will be
established at the timing of final subdivision plat. The To wn shall have no maintenance
or snow removal responsibility for the portion of such road that is private.
(iv)Sidewalk Snow Removal. The To wn’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 Execution Dateand the future final Main Street alignment), Swift
Gulch Road, Fawcett Road and Yo der Av enue. 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
To wn.
(c)Phased Road Improvements.
(i)Generally. 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.
(ii)Main Street. 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.
(iii)East Beaver Creek Boulevard. The Town shall not require
completion of East Beaver Creek Boulevard as a through road until the earlier of:
(A)such time as it becomes necessary to construct a particular phase of East Beaver
Creek Boulevard to provide a means of ingress to and egress from Sites within Lot1 that
are undergoing vertical development and do not otherwise have access to a public street;
or (B)such time as a particular development proposal within Lot 1 requires completion of
the connection in order to preclude the impact of the approved development proposal
from reducing the level of service (LOS) on Main Street below a designation of “C”
(estimated to be in the range of approximately 8,000 to 11,000 vehicle trips per day) as
established by traffic studies to be provided in connection with the particular approved
development proposal. The north/south alignment of East Beaver Creek Boulevard
within Planning Areas C and D may be established to include an interim or permanent
connection to Main Street (e.g., East Beaver Creek Boulevard can connect to Main Street
east of Planning Area A and either continue to the roundabout at the southeast corner of
Planning Area F in an interim condition or separate from Main Street and connect to the
roundabout at the northeast corner of Planning Area F in either an interim or permanent
condition) so long as the easterly (roundabout at Post Boulevard) and westerly (where
East Beaver Creek Boulevard enters the Project) connections depicted on the PUD
Master Plan are maintained and each segment of Main Street is maintained at not lower
than LOS “C”(e.g., if the traffic studies demonstrate that LOC “C” can be maintained on
the easterly segment of Main Street with an interim connection as described above,
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completion of the final through connection alignment of East Beaver Creek Boulevard
would not be required).
(d)Dry Utilities. In connection with the Dedication of any public road
rights-of-way (whether by special warranty deed or by final plat),including those rights-of-way
Dedicated pursuant to Section 3.3(b)(i)and subject to such reserved rights,Master Developer or
the pertinent Landowner shall have the right to reserve the exclusive right to install, own,
operate, maintain, repair, replace and control access to all “Dry Utilities” (as defined in the PUD
Guide) located or to be located within Dedicated public road rights-of-way; provided, however,
that such activities shall be coordinated with the Town and all such Dry Utilities shall be located
in such a manner as to comply with Town requirements regarding separation from public utilities
located or to be located within such rights-of-way.
3.4 Municipal Water; Water Rights Dedications. Certain water rights have been
conveyed to, or otherwise acquired by, the Authority to be used in connection with the
development of the Project and to serve uses within the Project, including some of the water
rights and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to
the Authorit y equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights
to water supplied by the Colorado River Water Conservation District (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 3.4(c),the “Water Rights”). Pursuant to and as more
particularl y described in the Tank Agreement: (i)as of the Effective Date, TCMD has conveyed
to the Town, and the Town has thereafter conveyed to the Authority, certain interests in the
Water Rights; (ii) the Water Rights conveyed to the Authority as of the Effective Date are
deemed sufficient to provide potable water service up to a maximum of 106.3 acre-feet of
consumptive use per year in accordance with depletion factors decreed in Case No.97CW306;
and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide
the number of single family equivalents (SFE) of potable water service to the Project that is
equivalent to 106.3 acre-feet of consumptive use per year, as more fully set forth in the
augmentation plan approved in Case No.97CW306. The amount of consumptive use
attributable to potable water service pursuant to the depletion factors and other assumptions set
forth in the plan for augmentation decreed in Case No.97CW306 is calculated as 180.6 acre-feet
per year less 74.3 acre-feet per ye ar reserved by the Town for raw water irrigation and lake
evaporation purposes [180.6 –74.3 = 106.3]. The 106.3 acre-feet of consumptive use is referred
to for purposes of this Section3.4 as the “potable water allocation” and the 74.3 acre-feet of
consumptive use is referred to herein as the “raw (non-potable) water allocation.” 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.
(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, stated as the total “potable water allocation” and the total “raw (non-potable) water
allocation;”(ii)the specific portion of the “potable water allocation”that is assigned to particular
Sites; (iii)the specific portion of the “raw (non-potable) water allocation”that is assigned to each
parcel of irrigated area or lake surface for evaporation replacement within the Property
(including such raw water uses as the Town has agreed to serve pursuant to this Development
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Agreement and the Tank Agreement)and (iv)the “potable water allocation” and the “raw (non-
potable) water allocation”remaining available to be assigned 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 allocation, or insufficient water allocation, has
previously been assigned to such Site), and subject to Subsection 3.4(c), Master Developer shall
designate the portion of the “potable water allocation” and the “raw (non-potable) water
allocation”that is assigned for development of the Site, and concurrently with approval of the
pertinent 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
“potable water allocation” and the “raw (non-potable) water allocation”remaining available for
use within the Property. Lot 1 as it is configured on the Effective Date shall be exempt from the
foregoing requirement, but parcels within Lot 1 that are created by further subdivision of Lot 1
for purposes of development shall be subject to the foregoing requirement. The amount of
consumptive use required to service development shall be based on the estimated demand,
depletion factors and other assumptions set forth in the plan for augmentation decreed in Case
No. 97CW306.
(b)Return of Water Rights to Water Bank. If the amount of the “potable
water allocation” and the “raw (non-potable) water allocation”assigned for any particular Site
exceeds the amount of the “potable water allocation” and the “raw (non-potable) water
allocation”actually required to serve the Site based upon actual development and final build-out
thereof (such actual “potable water allocation” and “raw (non-potable) water allocation”demand
to be determined in accordance with generally applicable requirements of the Authority and in
accordance with the depletion factors decreed in Case No.97CW306), the excess and unused
portion of such water allocation shall be returned to the Water Bank and the Water Bank shall be
revised to reflect that such excess and unused portion of such water allocation is available for
assignment and is no longer assigned to the original Site. Excess and unused water allocation
amounts returned to the Water Bank shall be available for allocation in accordance with
Section 3.4(a)as though such water allocation amounts had not previously been allocated from
the Water Bank to serve a particular Site. The determination of excess portion of any water
allocation shall be determined by the Town and subject to the approval of the Authority, pursuant
to their respective generally applicable requirements,and shall be based on consumptive use of
the final build-out of any Site in accordance with the depletion factors and other provisions of the
decree in Case No.97CW306. The Town may require water usage restrictions or maintenance
requirements to prevent any future increase of consumptive water use above the amount
determined necessary to serve the final build-out of any 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 decree in Case No.97CW306 and the PUD Guide,and all
available water allocations under the Water Rights have been assigned to Sites (whether
developed or undeveloped) such that there is no water allocation remaining in the Water
Bank, no further development may occur within the Property unless and until, with
respect to the water allocation required to support such further development:
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(A)additional water rights are Dedicated resulting in additional water allocation amounts
being available for assignment 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 allocation amounts are re-assigned from the original Site,and/or from raw (non-
potable) water uses to potable uses, and returned to the Water Bank in accordance with
Section 3.4(b). Acceptance of fees in lieu of additional water rights Dedication shall be
subject to the sole discretion of the Town.
(ii)For a Specific Site. If the water allocation amounts assigned to a
Site in connection with a Development Application are not sufficient to serve the level of
development proposed in the Development Application, the Town may condition
approval of the Development Application on the Applicant satisfying the water allocation
requirements for the Development Application by one or a combination of: (A)obtaining
Master Developer’s allocation of additional water allocation amounts from the Water
Bank; (B)Dedicating such additional water rights (meeting the generally applicable
requirements of the Authority and the Town) as may be required to support the proposed
level of development; or (C)paying such fees-in-lieu of water rights Dedication as may
be required to fully satisfy the water allocation amounts requirement for the Development
Application. The Dedication of additional water rights and the payment of fees-in-lieu of
water rights Dedication shall be subject to review by the Town in accordance with the
Municipal Code, and subject to approval by the Authority or its successor. Under such
circumstances, 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 allocation
amounts obligation is satisfied in accordance with this Section 3.4(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 To wn 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 pursuant to the Ta nk Agreement
(or which does not exceed the consumptive use of any such additional water rights that may
subsequently be Dedicated or otherwise conveyed) at such time.
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(e)Additional Wa ter Ta nks. 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 from time to time), the To wn 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 pertinent lot(s) or tract(s) within Planning Area K are platted). If
construction of an y 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 To wn 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 To wn may require construction of the water storage tank
and assurance of completion thereof pursuant to the terms and conditions of a Public
Improvement Agreement as otherwise provided in this Development Agreement. The To wn 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 To wn 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).
(f)Tap Fees; 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 and usage charges to users
within the Property on a uniform, non-discriminatory basis with other users within the Town.
The Town shall remit monthly to TCMD,subject to annual appropriation to the extent required
by Section 20 of Article 10 of the Colorado Constitution,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. 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.
3.5 Sanitary Sewer. The Sanitation District, rather than the To wn, 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
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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.
3.6 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. Wi thout limitation of
the foregoing, in processing any A pplication for development within the Property, the Town shall
incorporate the assumptions of the drainage study prepared by David Johnson for the Property
with respect to reducing the calculated stormwater flows, management and detention
requirements based on the mitigating effect of vegetation within the Property, and the
assumptions set forth therein shall govern and control over any conflicting provisions or
assumptions in the To wn’s drainage master plan. However, if the To wn amends its drainage
master plan, which amendment results in less restrictive or less burdensome provisions than set
forth in the David Johnson drainage study, such less restrictive or less burdensome provisions in
the Town’s drainage master plan shall apply to the Property.
3.7 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
deemed to have been granted Final Acceptance. This Section 3.7 sets forth the sole unperformed
and/or additional obligations of Master Developer, EMD, the Developer Affiliates, or any
pertinent Landowner to Dedicate land (subject, however, to adjustment pursuant to
Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly
based upon and reliant on the specific land Dedication requirements set forth in this Section3.7.
Accordingly, except as otherwise set forth below, during the Te rm and notwithstanding any
current or future provision of the Municipal Code to the contrary (except pursuant to
Section 3.9(b), if applicable), the To wn 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 3.7(a)and, as of the
Effective Date, Ordinance No. 06-17 and all conditions and restrictions set forth therein are
rendered legall y inoperative, void and of no further force or effect.
(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 from time to time)and other current or future Town
regulations with respect to mitigation of the Project’s impact on the school system:
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(A)Concurrently with the Effective Date, TC-RP conveyed to
the To wn 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, TCMD , any Developer
Affiliate or an y Landowner (other than the Town or a state accredited educational
entity to which the To wn has conveyed such Site) shall have an y 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 To wn. Accordingly, the To wn hereby grants Final
Acceptance with respect to Dedication of Planning Area E.
(B)EMD (or the Landowner at the pertinent time), shall
Dedicate to the To wn 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 To wn or a state accredited educational
entity to which the To wn 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 To wn 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.
(ii)Use Restriction. Notwithstanding anything to the contrary set forth
in the Municipal Code (as in effect 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
accredited education facilities serving grades K through 12 (or any portion of such
grades). 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 3.7(a)(ii). Any use of the
School Site Dedication parcels shall be subject to prior approval by the Design Review
Board, including potential future uses including but not limited to pre-school, day care,
community education, cultural, and/or are classes, museum, or recreational.
(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 3.7(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
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clause, subject to all matters of Record other than monetary liens, and containing an
express use restriction consistent with the foregoing Section 3.7(a)(ii).
(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 To wn shall be responsible for installing and maintaining any
improvements permitted to be made within the School Site Dedication parcels in
accordance with the use restriction referenced in Section 3.7(a)(ii). After
Dedication of the School Site Dedication parcels to the Town, the Town shall be
responsible 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 To wn, Master Developer and EMD shall use best efforts to combine
the park land dedicationscontemplated in Section 3.7(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 To wn, 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 To wn, 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 To wn may lease or convey such School Site
Dedication parcels to educational districts or organizations upon such terms as the
To wn 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 3.7(a)(ii)
and the applicable deed restriction as contemplated by Section 3.7(a)(iii).
(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 Effective Date)).
Neither TC-RP, Master Developer, TCMD nor any Landowner (other than the To wn) shall have
any obligation with respect to provision of any Public Im provements or other on-site or off-site
improvements for Planning Area B, all such obligations being the sole responsibility of the Town
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and not of AURA. Accordingly, the To wn 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
To wn’s development of Planning Area B,shall be subject to prior approval by the Design
Review Board. The To wn 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 To wn 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 To wn 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 To wn 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.
(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 To wn 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 To wn 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 To wn 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).
After Dedication to the To wn, the To wn shall be responsible 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 Wi thin 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. After Dedication, the To wn shall be
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responsible for improving and maintaining the park lands Dedicated pursuant to this
Section 3.7(d)in the To wn’s sole discretion with regard to timing and appropriations. Neither
the then-Landowner, Master Developer nor TCMD shall have any obligation with respect to
provision of any Public Improvements for, or otherwise to improve,such Dedicated park land
acreage. Accordingly, the To wn 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 warrant y 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. Such
conveyance(s) shall be by special warrant y 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 purposes and no other purposes,but
which may include 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). The To wn 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).
3.8 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 Section3.8sets 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 Te rm (subject, however, to adjustment pursuant to
Section 3.9(b), if applicable),and the assumptions underlying the Finance Plan are expressly
based upon and reliant on the specific land Dedication requirements set forth in Section3.7.
Accordingly, and notwithstanding any current or future provision of the Municipal Code (except
pursuant to Section 3.9(b), if applicable), the To wn 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).
3.9 Other Generally Applicable Ta xes, Assessments and Fees.
(a)General. 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 3.8), 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.
(b)Density Increases by PUD Guide Amendment. The land dedication
obligations set forth in Section3.7 and the exaction, fee and payment obligations set forth in
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Section3.8 are, as stated in such provisions, the sole and exclusive obligations with respect to
such matters; provided, however, that such obligations are predicated on the maximum
residential and commercial densities permitted by the PUD Guide in effect as of the Effective
Date (including the minimum residential and commercial densities set forth therein for Planning
Area I). Accordingly, to the extent the PUD Guide in effect as of the Effective Date is amended
after the Effective Date to increase the maximum commercial and/or residential densities
permitted by the PUD Guide (as so amended), the Town shall have the right to evaluate the
impacts of such increased densities and to condition approval of such PUD Guide amendment on
the imposition of additional land dedication and/or exaction, fee or payment obligations that
correspond to the increment of increased density approved in such amendment. The additional
requirements, if any, shall be based on the Municipal Code requirements in effect as of the
submittal date of the pertinent PUD Guide amendment as applied only to the increment of
increased density approved in such PUD Guide amendment. By way of example, if a PUD
Guide amendment is approved which increases the maximum commercial density within the
Project by 100,000 square feet, the maximum additional obligation with respect to matters
addressed in Sections3.7 and 3.8 shall be limited to what would be required to mitigate 100,000
square feet of commercial density under the Municipal Code requirements in effect on the
submittal date of the PUD Guide amendment application. With respect to Planning Area I, any
future PUD Guide amendment which establishes the minimum residential and commercial
densities stated in the PUD Guide in effect as of the Effective Date shall not result in the
imposition of an y additional obligations with respect to matters addressed in Sections 3.7 and
3.8, but any amendment which has the effect of approving commercial or residential densities for
Planning Area I in excess of the minimum densities stated in the PUD Guide in effect as of the
Effective Date may require additional mitigation for the increment of increased density in the
manner described above.
3.10 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 Sections2.5 and 3.3), 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 capacit y available pursuant to the Financing Plan is utilized to encourage
development that has a relatively greater probability of producing relatively greater increases in
District Revenue and Municipal Payments. Accordingl y, unless the Town and Master Developer
agree otherwise in writing, the following requirements shall be binding:
(a)East Beaver Creek Boulevard. Until such time as AURA has fully funded
completion of East Beaver Creek Boulevard as contemplated by Section 6.7(g)(i)or such earlier
time as East Beaver Creek Boulevard has been completed as a through road, $6,200,000
(adjusted as stated below) of the Credit PIF Cap shall be reserved to fund completion of East
Beaver Creek Boulevard in its permanent alignment in the manner contemplated by and subject
to the terms, conditions, phasing,design standards and construction timing obligations set forth
in the PUD Guide and Sections 3.3(b)(iii)and 3.3(c)of this Development Agreement. The
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foregoing amount shall be reduced from time to time in an amount equal to the amount of
Capital Project Costs (whether utilizing Credit PIF Revenues or TIF Revenues) for each phase of
East Beaver Creek Boulevard that is granted Preliminary Acceptance, excluding from such
reduction the Capital Project Costs, if any, attributable to any interim connection that is not
incorporated into the permanent alignment of East Beaver Creek Boulevard as a through road
pursuant to Section 3.3(c)(iii). Any portion of the foregoing reserved amount that has not been
utilized upon completion of the permanent alignment of East Beaver Creek Boulevard as a
through road, or upon a determination that the LOS requirement stated in Section 3.3(b)(iii)has
been satisfied upon full build-out of Lot 1, shall be released and made available to fund other
Cap Amounts as provided in clause (c) below.
(b)Other Reserved Funds. Of the total Supplemental Bond capacity available
under the Credit PIF Cap, a total of $15,000,000 (inclusive of the $6,200,000 reserved pursuant
to Section 3.10(a)) shall be reserved to fund Capital Project Costs incurred in connection with
construction of the Prioritized Capital Improvements.
(c)Balance of Supplemental Bond Capacity. The balance of Supplemental
Bond Capacity available under the Credit PIF Cap (after reservation and utilization of the
funding capacity as described in clauses (a) and (b) above) may be utilized in TCMD’s discretion
to fund other Cap Amounts.
3.11 Landscaping/Visual Mitigation for Hurd Lane/Eagle Bend. In order to provide
off-site mitigation for the benefit of the residents of Hurd Land and Eagle Bend, Master
Developer will, subject to receiving the right-of-way license or other form of approval from the
Town and as otherwise subject to the terms and conditions of this Section 3.11,cause the
following to be installed, in locations mutually determined by Master Developer and the Town,
within the Hurd Lane right-of-way (which is owned by the Town): (i) 75 each of 10’ Colorado
Spruce Trees (either Blue or Green); (ii)55 each of 6-7’ Lilacs; and (iii)Irrigation –Drip poly
tubing with three emitters per plant. Master Developer will be responsible for the cost of the
planting materials, delivery of same to the site, labor and equipment for planting of the plant
materials, and for parts and installation of the irrigation system. Installation will be undertaken
during the planting season in the spring of the year following the Effective Date. The Town will
be solely responsible, at its sole expense, to provide the water tap(s) and water rights (from the
Town’s water rights inventory) for irrigation of the plant materials, any vaults(s) required for the
tap connection, for irrigation of the plant materials, and for maintenance and replacement of the
planted materials commencing on the day of installation. Additionally, the Town shall have the
obligation to provide a license or other form of legal right as may be necessary to enable Master
Developer to perform such plantings, and Master Developer shall have no obligation to perform
such plantings unless/until the Town has issued the appropriate license or similar form of
approval to perform the work in the right-of-way. From and after the initial installation, Master
Developer shall have no further obligation with respect to the plant material or irrigation system,
such obligations being fully assumed by the Town as of the date of installation.
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ARTICLE4
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 3.3(b),
3.4, 4.2(c)and 4.2(d))to those services provided to any other area of the To wn on a uniform
and non-discriminatory basis (collectively, the “Municipal Services”). The Parties acknowledge
the To wn provides public transit services as part of the Municipal Services based on a variety of
factors including demand, the To wn’s transit planning policies, funding availability and similar
considerations and, accordingly, does not provide public transit service within all areas of the
To wn 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 To wn shall not deny any
Development Application based on a lack of transit services or the inability of the To wn to
provide transit services, and no approval of a Development Application shall be conditioned
upon any party or entity other than the To wn 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 Section6.16
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 Municipal Payments revenues are either inadequate or excessive,
no Party shall assert or claim any right to an increase in or a reduction of such Municipal
Payments 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 Execution
Date), the To wn has established the Ta x Credit. During the Te rm, the To wn shall not take any
action to modify, reduce, terminate, suspend or otherwise prevent the Ta x Credit from attaching
to Ta xable Tr ansactions 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.
(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;
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(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 To wn 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, Nottingham-Puder Ditch, irrigation systems and water wells, the
wet well located within PA -F, tree replacements and, subject to Section 3.3(b)(iv)), snow
removal. The To wn shall have sole discretion to determine the appropriate maintenance of
Nottingham Dam, which shall include but is not limited to maintenance,repair, replacement,
improvement, expansion, decommission, removal and deferral of any activity. Notwithstanding
the forgoing, TCMD shall retain responsibility to cause the following obligations to be
performed utilizing District Revenues available to it for such purposes:
(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.
(d)Asphalt Overlays. Subject to the terms and conditions of the Asphalt
Overlay Agreement and Section6.6, the To wn shall perform asphalt overlays for all Dedicated
public roads located in the Project subject to the following terms and conditions:
(i)Prior to Te rmination 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 and the Town each must provide
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written approval prior to the release of any funds from the Asphalt Overlay
Account.
(C)The To wn’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay A ccount.
(D)The To wn’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 To wn pursuant to
Section 5.2(c), and the To wn shall have no obligation to contribute funds from
any other source.
(ii)After Te rmination 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 To wn 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 Execution Date, the
Town is undertaking to acquire fee title to the Forest Service Village Parcel. The Town agrees
and covenants that, if the Town acquires fee title to the Forest Service Village Parcel,the Town
shall provide consent as the owner to EMD (or to the then-Landowner of Planning Area I) to
submit a subdivision application for the Forest Service Village Parcel to plat and dedicate a
public road right-of-way and to construct a public road in accordance with the applicable
procedures and standards set forth in the PUD Guide and the Code. The Town shall execute and
Record the Covenant and Temporary Easement Agreement in the form set forth in Exhibit C
within three (3) business days after acquiring fee title to the Forest Service Village Parcel and
prior to the Town Recording any conservation easement or any other real estate instrument
which may limit the ability to plat a public road right-of-way or construct a public road. The
Covenant and Temporary Easement Agreement shall run with the land and any conveyance or
grant by the Town of any interest in the Forest Service Village Parcel shall be expressly subject
to the Covenant and Temporary Easement Agreement. The Town, as owner of the Forest
Service Village Parcel, shall cooperate with EMD (or the then-Landowner of Planning Area I)
with respect to establishing the alignment and platting of the right-of-way for the public road
over the Forest Service Village Parcel. Construction, Dedication and Acceptance of the public
road over the Forest Service Village Parcel shall be pursuant to the pertinent Public
Improvements Agreement and the Covenant and Temporary Easement Agreement shall
terminate upon Final Acceptance of the pertinent Public Improvements on the Forest Service
Village Parcel. 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 agree to acknowledge, confirm and represent to the owner of the
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Forest Service Village Parcel that the PUD Master Plan approved by the Town depicts a road
crossing the Forest Service Village Parcel to provide access to Planning Area I.
(f)Service Plans. The Town has adopted Ordinance No.12-10 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 an y 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.12-10, 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.
(g)Urban Renewal. If it is determined that Lot 1 will be included within an
urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section6.7, 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 Section6.7.
4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban
renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section6.7, 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
Section6.17.
ARTICLE5
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:
(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.
(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
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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).
(e)Cooperation and Compliance. TCMD shall provide its reasonable
cooperation and compliance with applicable legal requirements to allow a lawfully eligible
candidate designated at the option of BNP to be elected or appointed as a director of TCMD.
5.2 Obligations of PICs.
(a)Credit PIF. During the Term, the PICs shall take all legally available
actions to maintain the Credit PIF in effect and 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 legall y 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,take all legally available
actions to maintain the Credit PIF in effect,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
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.
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(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 the designated portion of the Municipal Payments into the
Asphalt Overlay Account on behalf of the Town as follows:
(i)Initial Five Ye ars. 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 Ye ars. 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-Te rmination. From and after the date on which termination
occurs pursuant to Section 6.6(b), the PICs (jointly with the To wn) shall cause the Add-
On RSF Collection Agent to remit all Municipal Payments directly to the To wn 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 AreasI, J and/or K. Pursuant to
Section 3.7(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
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 Te rm and
provided the Town is performing its obligation to maintain the Tax Credit in effect, Master
Developer shall take all legally available action to cause the PICs to impose, collect and remit
the Add-On PIF as required pursuant to this Development Agreement, and Master Developer
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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.
(e)Property Interest. Concurrently with the Effective Date, Master Developer
has caused the execution and delivery of an instrument conveying to BNP’s designee a property
interest sufficient to qualify such BNP designee for election or appointment to hold the office of
director of TCMD. Pursuant to this Section 5.3(e)and the terms and conditions of such
instrument (and any replacement instrument executed to accommodate a BNP replacement
designee or any replacement property interest), Master Developer shall have an ongoing
obligation to cause such BNP designee (or any replacement designee) to hold a sufficient
property interest until such time as there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds.
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 3.7(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 3.7(a)(iv)(B)regarding a
potential consolidated school/park Site within Planning Area I.
(c)Conveyance of OS Tracts. Pursuant to Section 3.7(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 3.7(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.
5.5 Obligation of TC-RP Regarding Add-On RSF. Concurrently with the Effective
Date, TC-RP, in its capacity as the “declarant” with respect to the PIF Covenants has caused to
be recorded amendments to the PIF Covenants to implement the Add-On RSF. During the Term
and provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP
shall take all legally available action to cause the PICs to impose, collect and remit the Add-On
PIF as required pursuant to this Development Agreement, and TC-RP shall not take any action to
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modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to
applicable retail sales transactions occurring within the Project.
ARTICLE6
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 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 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 Municipal
Payments 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 the Town’s obligation to
maintain the Tax Credit in effect has been satisfied 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
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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 To wn has established the Ta x
Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the
Credit PIF to each Ta xable Tr ansaction. During the Te rm, the To wn shall maintain the Ta x
Credit in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In
implementation of the Settlement Te rm 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 Section6.7 and as otherwise set forth
below with respect to unfunded Supplemental Bond capacity, 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 (as qualified in clause (i) below). If the Net Proceeds of all Supplemental Bonds
issued on or before January 1, 2040, are less than the otherwise unfunded portion of the Credit
PIF Cap, the Credit PIF Cap will be reduced in equal amount to the unfunded Supplemental
Bond capacity. The following (collectively, the “Cap Amounts”) shall count against the Credit
PIF Cap:
(i)$52,100,000 (FIFTY TWO MILLION ONE HUNDRED
THOUSAND DOLLARS), which is the original amount of the TCMD bonds refunded
pursuant to the TCMD Bond Reissue.
(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 Net Proceedsof the Past Developer Advances in the amount
stated in Exhibit D.
(iv)To the extent issued on or before January 1, 2040,the Net
Proceeds of Supplemental Bonds (including Master Developer contributions to the
Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF
Revenues).
(v)Capital Project Costs that TCMD funds directl y 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:
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(i)Payments of interest and other Bond Requirements incurred with
respect to Cap Amounts and any principal of bond obligations included as District Debts
which is in excess of the Cap Amounts.
(ii)Except as otherwise provided in Section 6.12, the principal amount
and 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 Section6.13, and any refunding thereof.
(v)Deferred Amortization, and any refunding thereof.
(vi)TCMD’s contributions to the Asphalt Overlay Account.
(vii)The Base O&M Costs.
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 To wn’s real estate transfer tax and the
PICs’ Real Estate Tr ansfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart
occup y their present locations within the Project as of the Execution Date or to apply to any
extension(s) of such leases:
(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 Home
Depot and Wal-Mart occupy their present locations within the Project as of the Execution
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 lease documents as in effect on the
Execution Date.
(ii)Waiver of Claims. Accordingl y, 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.
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(iii)Applicability of Municipal Code. Contemporaneously with the
Execution Date, the Town has adopted Ordinance No.12-10, pursuant to which it has,
effective on the Effective Date,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 No.12-10 (in the form and in substance as adopted contemporaneously with
the Execution Date) 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, subject to
annual appropriation to the extent required by Section 20 of Article 10 of the Colorado
Constitution,100% of the Real Estate Transfer Tax revenues actually collected. During
the Term, no amendment to Ordinance No.12-10 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.
(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 Execution Date also shall apply to any amendment to a long term lease that is
executed after the Execution Date that does not have the effect of extending the term of
such lease. With respect only to amendments or modifications of such existing leases
that have the effect of extending the term for a period in excess of 25 years or adding new
options to extend the term for a period in excess of 25 years: (A)the Town’s real estate
transfer tax shall apply to such 25 year or greater extension period to the extent required
by application of Ordinance No.12-10; (B)the consideration upon which the Town’s real
estate transfer tax calculation is based shall be based only upon the lease payments
(exclusive of common area maintenance, taxes, insurance and similar costs)for the
period of the extension greater than 25 years (i.e., the original term of such lease,
inclusive of all extension rights thereunder, shall be disregarded such that there is no
“look back” beyond the date of the extension which triggers the real estate transfer tax
obligation); (C)the Tax Credit shall apply to such lease extensions with respect to which
the real estate transfer tax otherwise would apply such that the PICs shall impose and
collect the Real Estate Transfer Fee and the Town shall collect no real estate transfer tax
as otherwise provided in this Agreement, subject to Section6.18; and (D)the Town and
the PICs shall coordinate in advance to establish an agreed upon methodology for
calculating the amount and timing of Real Estate Transfer Fee payments due with respect
to lease term extensions with respect to which the Town’s real estate transfer tax
otherwise would appl y.
(b)Internet, Mail Order and Similar Remote Taxable Transactions. The
Parties intend that retail sales transactions effected remotely should be subject to the Credit PIF
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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.
The Parties further recognize that national and state laws and business practices of retailers
regarding imposition of state and local sales tax is evolving and soon may require retailers to
identify and report the address of the point of purchase for internet based retail sales. The Town
agrees that if and when address information of the point of sale for retailers is available to the
Town such that the Town can determine the internet based retail sales specifically attributable to
points of purchase within the Village (at Avon) for which sales taxes are imposed and collected
(or another mechanism is identified), the Town shall use best efforts to cooperate with the PICs
to impose the Retail Sales Fee and Add-On RSF if possible or,in the alternative if imposition of
such fees is not possible, the Town shall cooperate with the PICs to impose,collect and remit the
Town’s retail sales tax to the PICs in accordance with Section6.18 If the Parties identify a
method of implementing the intent of this Section 6.3, such method may be implemented without
the requirement of an amendment to this Development Agreement.
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:
(i)Retail Sales Fee. The same rate as the corresponding To wn sales
tax rate as in effect from time to time. As of the Execution Date, the To wn sales tax and
the Retail Sales Fee each are set at the rate of 4.0%.
(ii)Real Estate Tr ansfer Fee. The same rate as the corresponding
To wn real estate transfer tax rate as in effect from time to time. As of the Execution
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 To wn accommodations/lodging tax rate as in effect from time to time. As
of the Execution Date, the To wn 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 Execution Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in
Exhibit F 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 an y party
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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
Ta xable Tr ansactions. 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 Ta xable Tr ansactions
shall constitute the Municipal Payments.
(i)Increase in Town Sales Tax Rate. 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 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).
(ii)Exception for “Project-Specific” Town Tax Rate Increase.
Notwithstanding an yt hing set forth in Section 6.4(b)(i)to the contrary and subject to the
terms and conditions set forth in this Section 6.4(b)(ii), the Town shall be entitled to
retain the revenues resulting from an increase in the Town’s 4.0% sales tax rate or 4.0%
accommodations tax rate as in effect on the Execution Date to the extent: (A)such tax
rate increase is dul y adopted by the Town after the Effective Date and applies on a
uniform basis throughout all areas of the Town; (B) the proceeds of such tax rate increase
are specifically dedicated and pledged solely to a specific project identified in connection
with such adoption;(C) the financing period for such specific project does not exceed 30
years;and (D) for the purposes of sales tax and not accommodations tax such increased
tax rate does not exceed 0.75%. For purposes of the foregoing, a “specific project” shall
mean only a specific municipal capital project (by way of example, construction of a
municipal building; construction of a library; acquisition of specifically identified parcels
of real property that are being acquired by the Town for open space, park or construction
of a specific municipal capital project to be constructed on such property; or similar
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purposes), and expressly excludes tax rate increases for the purpose of providing ongoing
municipal services (by way of example, to fund ongoing provision of transit services,
trash services or similar open-ended municipal services funding obligations) or for
general fund purposes. With respect to tax rate increases, for a specific project as set
forth above, the Tax Credit shall not apply to such increased rate and the corresponding
Credit PIF rate shall not be raised to match the increased tax rate, but the Add-On RSF
rate shall be reduced correspondingly to the increased tax rate as set forth in
Section 6.4(b)(i)with respect to retail sales transactions. With respect to any Town sales
tax rate increases that are not for a specific project, the terms and conditions of
Section 6.4(b)(i)shall apply.
(iii)Increased Add-On PIF Rate. 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).
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 Section4.1 and the Town’s performance of its obligations pursuant to
Section4.2 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 A ccount:
(A)Deposit the required amount of Municipal Payments into
the Asphalt Overlay A ccount; and
(B)Remit any remaining Municipal Payments to the To wn.
(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.
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(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
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. From and after the Execution Date, the Town will
cooperate with the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as
“declarant” under the PIF Covenants) in implementing the Add-On RSF with existing retailers
within the Project, including but not limited to attending meetings with such retailers upon the
request of the PICs and Master Developer (and not independently), coordinating with the PICs
and the Add-On RSF Collection Agent with respect to preparation and dissemination of
reporting forms and similar matters related to the collection and remittance of the Add-On RSF,
and such other matters as the PICs, the Add-On RSF Collection Agent, Master Developer and
TC-RP (as “declarant” under the PIF Covenants) reasonably request in connection with
implementing and facilitating the collection of the Add-On RSF.
(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 A greement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement,
the Town has established with First Bank, Av on Branch,a restricted, segregated account (the
“Asphalt Overlay Account”) into which the Master Developer, the To wn 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
To wn 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:
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(a)Joint Funding Obligations. Commencing on the Effective Date and
continuing until terminated pursuant to Section 6.6(b), Master Developer, the To wn 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)To wn Contribution. Utilizing Municipal Payments to be deposited
into the Asphalt Overlay Account in accordance with Sections 5.2(c), 6.5(a)(ii)(A)and
6.5(b)(i):
(A)For calendar years 2013 through 2017, the To wn 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 To wn 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 ye ars 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 an y obligation to contribute funds to the
Asphalt Overlay Account after satisfying the obligation set forth in the foregoing
clause (A).
(b)Te rmination of Joint Funding Obligations. The joint funding obligations
of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the To wn and
TCMD with respect to the Asphalt Overlay Account shall terminate in the earliest calendar year
in which one of the following occurs: (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 Ta xable Transactions have increased by at least
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$20,000,000 over the actual total annual Ta xable Transactions in 2011. From and after the date
that the joint funding obligations terminate as provided herein: (A) the To wn shall be and remain
solely responsible for performing and funding asphalt overlays for all public roads within the
Project Dedicated to the To wn; (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 Ta xable
Tr ansactions; and (D) the expenditures and appropriations by the To wn for asphalt overlays in
excess of the amounts deposited in the Asphalt Overlay A ccount shall not be counted against the
Credit PIF Cap.
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 Section6.7; 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.
Nothing in this Section 6.7(b)constitutes a limit on AURA’s ability to finance improvements it
deems appropriate. The restriction in this Section 6.7(b)relates only to whether bonds issued by
AURA to pay for the costs of such improvements count against 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
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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
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
propert y 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 an y 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:
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(i)First, until the Credit PIF Cap reduction contemplated by
Section 6.7(b)has been accomplished or unless Master Developer and AURA otherwise
agree in writing, to fund any then-uncompleted phases of East Beaver Creek Boulevard
as a through road in accordance with Section 3.10(a).
(ii)Second, to the extent the Credit PIF Cap reduction contemplated
by Section 6.7(b)has not been accomplished by satisfaction of the foregoing clause (i), to
fund from the remaining amount of Credit PIF Cap reduction contemplated by
Section 6.7(b)the Capital Project Costs of any Prioritized Capital Projects within Lot 1
that have not previously been financed and completed.
(iii)Third, in a priority to be determined by AURA:
(A)improvements to or servicing Sites that the Town owns
within Lot 1 (which may include structured parking within Lot 1 to provide
shared public parking for private improvements and public improvements
constructed within Planning Area B and other areas of Lot 1);and
(B)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).
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 Obligation to the Authority; and (ii) the
Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service
Obligation 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,
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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.
(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 Obligation. To the Authority, for the Annual
Debt Service Obligation, 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
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and any refunding bonds issued to repay or defease any such
Supplemental Bonds.
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 at the rate of 1.5%shall
accrue on the principal amount of the Avon Receivable
commencing on the Effective Date and continuing until the
expiration of the Term or payment in full, whichever first occurs.
III.Except to the extent stated in this
Section6.9(b)(v)(B)3.III, the interest rate applicable to the Past
Developer Advances shall be as stated in the instruments creating
such obligations (as identified in Exhibit E). 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
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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
the revenues derived therefrom for the purpose of paying for 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; provided, however, that the portion of District
Revenues comprising Credit PIF Revenues shall be limited solely to the Permitted Uses as set
forth in Section 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 expiration of the
Term. If TCMD has not issued Supplemental Bonds prior to January 2, 2040: (i)the Town shall
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have no further obligation with respect to any unissued Supplemental Bonds capacity; (ii)the
Tax Credit shall be maintained in effect until all District Debts payable from Credit PIF
Revenues and outstanding as of January 2, 2040,are fully paid and the Term expires as provide
in Section 6.1(b); and (iii)TCMD shall be entitled to retain and utilize all Credit PIF Revenues it
has received prior or subsequent to January 2, 2040, for servicing District Debts or direct
payment of Capital Project Costs. The District shall make commercially reasonable efforts to
obtain the lowest cost of borrowing when issuing Supplemental Bonds. The District may issue
Supplemental Bonds (other than Additional Developer Advances)at fixed interest rates without
the Town’s consent so long as the interest rate for such bonds does not exceed the Municipal
Market Data rate (or, if the foregoing index is no longer published,then the Bond Buyer
Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds
being issued,for Baa investment grade fixed interest rate bonds plus 150 basis points. The
issuance of Supplemental Bonds (other than Additional Developer Advances)which bear interest
at a fixed rate higher than that set forth in in preceding sentence,or which are variable rate
bonds,shall require the prior written consent of the Parties.
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 Past Developer Advances being extinguished, replaced, refunded or defeased by
such Replacement Bonds shall be deducted from and reduce the amount counted against the
Credit PIF Cap. The principal amount of the Replacement Bonds shall not exceed $12.4 million
without the Town’s prior 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.II)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.II)shall be as determined by this Development Agreement on the Effective
Date. 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.
6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the
limitations set forth in Section 6.12(b), TCMD shall have the ongoing right to issue refunding
bonds or other debt instruments to repay, refund and/or defease, in whole or in part the Cap
Amounts and, except as stated in Section 6.12(a), the principal amount of such refunding bonds
or other debt instruments shall not count against the Credit PIF Cap. The interest rates on
refunding bonds are subject to the requirements governing interest rates for Supplemental Bonds
set forth in Section 6.10, and subject to the following:
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(a)Variable Rate Refunding Bonds. The issuance of refunding bonds or other
debt instruments which bear interest at a variable rate shall require the prior written consent of
the Parties.
(b)No In crease in Total Debt Service. Without the Town’s prior written
consent, the aggregate principal and interest due on fixed rate refunding bonds or other debt
instruments with fixed interest rates, from their date of issuance to final maturity (disregarding
any option to redeem prior to maturity),shall be less than or equal to the aggregate principal and
interest due on the debt to be repaid, refunded, defeased or otherwise refinanced, from the date of
the refunding to final maturity (disregarding any option to redeem prior to maturity).
(c)Refunding of TCMD Bond Reissue. Notwithstanding the foregoing, if the
principal amount of any bonds or other debt instruments issued to repay, refund and/or defease or
otherwise refinance the TCMD Bond Reissue exceeds the then outstanding principal amount of
the TCMD Bond Reissue, only that portion of the increased principal which is in excess of
$52,100,000 (Fifty Two Million One Hundred Thousand Dollars) shall be included in the Cap
Amounts and count against the Credit PIF Cap.
6.13 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.
6.14 Town Funding of Credit PIF Cap. At any time after the TCMD Bond Reissue
obligations have been fully satisfied (including through payment by the Town pursuant to this
Section6.14), the Town shall have the right, but not the obligation, to pay off all or a portion of
the then-outstanding District Debts 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 Debts; and (ii)remitting
to TCMD the amount, if any, of available but unutilized Credit PIF Cap capacity 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 Net Proceedsof previously retired TCMD Bond Reissue obligations and other
District Debts retired by the Town totals $80 million, the amount of unutilized Credit PIF Cap
capacity 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 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.
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(b)Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debts but not to advance the funds required to fund the
unutilized Credit PIF Cap capacit y 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.
6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose,
collect, receive, retain, expend or utilize Town taxes imposed upon Public Improvement 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, subject to annual
appropriation to the extent required by Section 20 of Article 10 of the Colorado Constitution,
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.
(a)Use Tax. If 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.
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:
(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 and the Town is entitled to collect, receive, retain,
expend and utilize such sales tax revenues.
(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
propert y tax mill levy within the Project.
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(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.
(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.
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 Public Im provement Fees. If the PICs are
unable to collect any portion of the Public 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, subject to annual appropriation to
the extent required by Section 20 of Article 10 of the Colorado Constitution, 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 Public 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 Public 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 Public
Improvement Fees on behalf of such entities. The Town acknowledges that if the person or
entity which failed to timely remit such Public Improvement Fees subsequently remits such
Public Improvement Fees to the applicable PIC, such payment shall result in the application of
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the Tax Credit (if applicable) against such person or entity’s corresponding tax obligation (if
any),which Tax 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 Public Improvement Fees.
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 the Town to do so
earlier, the Town shall not initiate or pursue any proceeding to dissolve any District until 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 in effect as of the Original
Effective Date.
6.22 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.
ARTICLE7
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
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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.
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 or by a Limited Party
under this Development Agreement, anon-defaulting Party, non-defaulting Limited Party and/or
Intended Beneficiary may deliver written notice to the defaulting Party or defaulting Limited
Party (with a copy to each other Party, Limited Party and Intended Beneficiary) of such default,
at the address specified in Section 8.12, and the defaulting Party or defaulting Limited 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 or defaulting
Limited Party gives written notice to each non-defaulting Party, non-defaulting Limited Party
and Intended Beneficiary within such 30-day period that it is actively and diligently pursuing
such cure, the defaulting Party or defaulting Limited 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 or defaulting Limited Party is at all times within such
additional time period actively and diligently pursuing such cure. Failure or delay in the delivery
of a notice of default pursuant to this Section7.6 shall not be construed to constitute a waiver of
any such default, and such notice of default may be delivered at any time during which a default
has occurred and not been cured. The defaulting Party’s or defaulting Limited Party’s obligation
to cure shall not arise until such notice of default has been delivered as provided herein, and no
claim shall be filed with respect to a default prior to delivery of a default notice and expiration of
the cure period as set forth above.
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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,any non-defaulting Limited Party and/or
Intended Beneficiary 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 Part y’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; 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. §§ 29-1-203 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 an y right to object to or assert
any defense against the entry of an order requiring specific performance (or other mandatory or
prohibitory injunctive relief) of such obligations.
(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.
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(ii)EMD. EMD shall have 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 Section 6.3(a), 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.
(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), 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:
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(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)Pursuant to Sections 5.1(e)and 5.3(e), BNP’s right to
participate on the TCMD board of directors and right for its designee to hold a
property interest sufficient to qualify for appointment or election to be a TCMD
director.
(ii)VMD.
(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 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.
ARTICLE8
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.
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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 specificall y finds: (i) the Town’s approval of this Development
Agreement and the Development Plan generally is pursuant to the authority of the Vested
Property Rights Statute and the Municipal Annexation Act of 1965 set forth at CRS § 31-12-101,
et seq.,and therefore shall bind the Town with regard to the Town’s rights and obligations during
the Term, particularly with regard to the Town’s obligation to maintain the Tax Credit in effect,
in accordance with the terms and remedies set forth in this Development Agreement; (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 does not constitute the creation of a multiple-fiscal year direct or
indirect debt or other financial obligation of the Town, and does 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 Section1.5, 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)and, correspondingly, entry of a final order holding the
Town’s right to receive Municipal Payments invalid or unenforceable shall entitle the Town to
disconnect the Property.
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
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Party the full and complete enjoyment of its rights and privileges under this Development
Agreement.
8.8 TCMD Obligations. Except with respect to funding of the Asphalt Overlay
Account in accordance with the terms and conditions of Section 6.6(a)(iii)and funding of the
Annual Debt Service Obligation, all obligations of TCMD under this Development Agreement to
pay money 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
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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):
To the Town:
To wn of Av on
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Manager
Te lephone:
Email:
Wi th a required copy to:
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, Colorado 80222
Attn:Eric Heil
Te lephone: (303) 975-6120
Email: ericheillaw@gmail.com
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 897-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
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To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Av on, CO 81620
Attn: Marcus Lindholm, Manager
Te lephone: (970) 949-6776
Email: marcuslindholm@traercreek.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Limited Parties:
Av on Urban Renewal Authority
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Manager
Te lephone:
Email:
Wi th a required copy to:
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, Colorado 80222
Attn:Eric Heil
Te lephone: (303) 975-6120
Email: ericheillaw@gmail.com
EMD Limited Liability Company
c/o Lava Corporation
P.O. Box 9429
0101 Fawcett Road, Suite 210
Av on, CO 81620
Attn: Michael Lindholm, President
Te lephone: (970) 949-6776
Email: michaellindholm@traercreek.com
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Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
The Village (at Av on) Mixed-Use Public Improvement Company
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 897-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
The Village (at Av on) Commercial Public Improvement Company
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 897-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Intended Beneficiaries:
BNP Paribas, an International Bank
787 Seventh Av enue, 9th Floor
New Yo rk, NY 10019
Attn:Barbara Eppolito
Te lephone: 212.841.3607
Email: Barbara.eppolito@americas.bnpparibas.com
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Wi th a required copy to:
Faegre Baker Daniels
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203-4532
Attn: Brandee Caswell
Te lephone: (303) 607-3826
Email: Brandee.Caswell@faegrebd.com
Developer Affiliates
c/o Tr aer Creek LLC
[Utilizing the Master Developer contact and required copy information set forth above.]
The Vi llage Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Li sa Jacoby
Te lephone: (303) 897-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (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.
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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
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EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
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
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
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COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
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STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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)
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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)
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STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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)
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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.
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My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
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.
COUNTY OF ______________)
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)
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ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representative of BNP Paribas, an international bank (as defined in the
foregoing Development 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 PARIBAS:
By:
Name:
Title:
BNP PARIBAS:
By:
Name:
Title:
STATE OF NEW YORK )
)ss.
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
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STATE OF NEW YORK )
)ss.
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2012, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
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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)
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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 S8923'36"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)S8036'27"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 0604'58", and a chord which bears
S8338'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N0020'55"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 S0141'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
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easterly line, S0141'49"E 73.07 feet, to the centerline of said Eagle River; thence the following
four courses along said centerline (Filum aquce): (1)N8924'49"W 1037.9 feet; (2)N8607'49"W
472.00 feet; (3)N8929'49"W 538.00 feet; (4)S8233'11"W 595.15 feet, to the westerly line of said
NE 1/4; thence N0020'55"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 0611'51", and a chord which bears N8342'23"E 279.58 feet;
(2)N8036'27"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 1224'07", and a chord which bears N8648'31"E 685.10 feet;
(4)S8659'25"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 0231'46". and a chord which bears S8543'31"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)N8840'41"E 1379.49 feet, to the W 1/16 corner of said
Section 8 and Section 5 of said Township and Range; (2)N8840'41"E 1379.49 feet, to the 1/4
corner of said Sections 8 and 5; (3)N8842'58"E 1385.36 feet, to the E 1/16 corner of said
Sections 8 and 5; (4)N8842'58"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)N8329'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and
4; (2)N8329'30"E 1386.64 feet, to the 1/4 corner of said Sections9 and 4; (3)N8324'12"E
1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4)N8324'12"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)N8639'24"E 1381.29 feet,
to the W 1/16 corner of said Sections 10 and 3; (2)N8639'24"E 1299.94 feet; thence, departing
said northerly line, S0134'07"W 2699.66 feet, to the east-west centerline of said Section 10;
thence, along said east-west centerline, S8632'23"W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S0132'50"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 S8632'47"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 S7710'15"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 S0133'02"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 S7220'31"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 N0134'18"E
1601.52 feet, to the CS 1/16 corner of said Section 9; thence S8607'30"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 S0133'13"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,
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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
N8954'54"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 N8958'35"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
S0001'37"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)N6530'20"W 249.79 feet;
(2)N7847'50"W 317.2 feet; (3)N8308'20"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 3015'52", and a chord which
bears N5457'56"W 763.3 feet; (5)N3437'50"W 331.1 feet; (6)N3444'20"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 2527'04", and a chord which bears N5129'50"W 798.3 feet; (8)N6824'50"W 399.7 feet;
(9)N4947'20"W 213.6 feet; (10)N7020'50"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)N8950'40"E
1194.46 feet, to the CE 1/16 corner of said Section 7; (2)N8950'40"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)N0010'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence
N0010'53"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.
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EXHIBIT B
Form of Special Warranty Deed for Conveyances to To wn
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
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EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
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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]
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EXHIBIT C
Form of Covenant and Temporary Easement Agreement
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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
Landscaping340,238 311,890 128,800 180,050
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
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EXHIBIT E
Schedule of Past Developer Advances and Av on Receivable
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EXHIBIT F
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 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 Ta x Credit, are Ta xable Tr ansactions. The Accommodations/Lodging Fee
shall not be construed to be part of a Taxable Transaction, and shall not be subject to the To wn’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 a rate equal to the
Municipal Market Data rate (or, if the foregoing index is no longer published,then the Bond
Bu yer Revenue Bond index rate), for a term most closely related to the term of the Supplemental
Bonds being issued,for Baa investment grade bonds on the date of such advance plus 375 basis
points, 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.
4.Add-On PIF means that portion of the Public Im provement Fees with respect to which
the Ta x 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 Ta xable Transactions or at rates in excess of the
Add-On RSF rate.
6.Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions
that are Ta xable Transactions at the rate set forth in Section 6.4(b)and in accordance with the
terms and conditions of the Financing Plan.
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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 To wn, Master Developer and the Add-On
RSF Collection Agent providing for the administration,collection and distributionof the Add-On
RSF Revenues.
9.Add-On RSF Revenues means the gross revenues actuall y 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 Section6.5 and the remainder of which
(including any such revenues the PICs continue to collect after the Te rm) 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 Obligation; and
(iii)the annual Base O&M Amount. For each full calendar year during the Term, the Allowed
O&M Expenses (in each case, to be reduced in an amount equal to the amount, if any, by which
the Annual Debt Service Obligation is less than $500,000 per year)shall be: (A) for calendar
years 2013 through 2017, $1,000,000 (One Million Dollars); (B) for calendar year 2018 and each
subsequent calendar ye ar 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 ye ar 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 Fift y Thousand Dollars) per year.
11.Annual Debt Service Obligation has the meaning and is subject to the terms, conditions,
restrictions and requirements set forthin the Pledge 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 Execution 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 an y 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 Ta x
Assessors office.
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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,
To wn Council approves (or otherwise approved by the To wn 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 Ve sted 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 First Bank, Avon Branch 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 To wn 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 Av on 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 Wa ter 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 Obligation; and (ii) TCMD’s contribution to the Asphalt
Overlay A ccount.
21.BNP means BNP Paribas, an international bank, together with its successors and assigns.
22.Bond Requirements means the following costs incurred in connection with the issuance
of any District Debts other than principal payments (including mandatory sinking fund
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payments): (a)interest payments on the outstanding principal of District Debts; (b)payments to
replenish bond reserve accounts, provided that a bond reserve for any District Debts shall not
exceed maximum annual debt service on such District Debts; (c)periodic fees related to credit
enhancements (including, without limitation, the Deferred Fees, if any);(d)prepayment
premiums; (e)arbitrage rebate payments;(f)fees and expenses of any bond trustee, bond
registrar, paying agent, authenticating agent, rebate analyst or consultant, calculation agent,
remarketing agent;(g)payments to any rating agency for maintaining a rating on the District
Debt;(h)payments due to any provider of an interest rate swap or interest rate cap;and (i)any
other amount approved by the Town. Notwithstanding the foregoing, Bond Requirements on the
Wa ter Ta nk Bonds shall be limited as provided in the Pledge Agreement. Bond Requirements
does not include any such costs which are capitalized and paid with the Net Proceeds of District
Debts.
23.Cap Amounts has the meaning set forth in Section 6.2(b).
24.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.
25.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, if any,Bond
Requirements or an y costs described in the first sentence of the definition of Bond Requirements
which are capitalized and incurred in connection with issuance of District Debts with respect to
such Capital Projects.
26.Commercial PIC means The Village (at Avon) Commercial Public Im provement
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 Ta x
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 Execution
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 an y
successor entity engaged from time to time,to administer the collection and distribution of the
Credit PIF Revenues on behalf of the PICs.
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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.
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 Obligation; plus (iii) the Deferred Amortization and Deferred Fee amounts due in
such ye ar (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 To wn 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 To wn 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
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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.
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 Section3.1, 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
Execution 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 Vi llage
(at Av on) to which this Exhibit Fis attached and incorporated into.
42.Development Application means any form of application or submittal to the To wn 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.
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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 Execution 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.
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) principal and Bond Requirements of bond obligations
the Net Proceeds of which are included as Cap Amounts (excluding Capital Project Costs that
TCMD funds directly from Credit PIF Revenues pursuant to Section 6.2(b)(v)); and (ii) the
Deferred Amortization.
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), proceeds of Supplemental Bonds (other than
Additional Developer Advances), 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 To wn
Exhibit C -Form of Covenant and Temporary Easement Agreement
Exhibit D -Prioritized Capital Projects
Exhibit E-Schedule of Past Developer Advances and Av on Receivable
Exhibit F-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
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improvements, maintenance of streetscape improvements within the Dedicated rights-of-way,
management of noxious weeds and similar matters in accordance with To wn’s generally
applicable procedures and standards)with respect to Dedicated Public Improvements upon
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 Execution 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 Execution 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 Developermeans 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 To wn’s municipal code as in effect from time to time unless
otherwise stated in the Development Agreement.
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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)
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 has the following meanings:(i) for the Water Tank Bonds, the amount of
bond proceeds available for payment of Capital Project Costs;(ii) for Past Developer Advances
and any Additional Developer Advances, the full amount of the advances made to TCMD or
another District for Capital Project Costs; and (iii) for Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances, the Total Repayment Cost Comparison
amount calculated as follows: (A)if the Total Repayment Cost Comparison amount is a positive
number, the Net Proceeds of such Supplemental Bonds shall be defined as the amount that is
equal to the amount of the proceeds available from such Supplemental Bonds for payment of
Capital Project Costs; and (B)if the Total Repayment Cost Comparison amount is a negative
number, the Net Proceeds of such Supplemental Bonds shall defined as the amount that is equal
to the sum of the amount of bond proceeds available from such Supplemental Bonds for payment
of Capital Project Costs plus the Total Repayment Costs Comparison amount expressed as a
positive number.
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
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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
propert y 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, 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 To wn, 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
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 payable to the Buffalo
Ridge Affordable Housing Corporation, together with interest thereon at the rate set forth in the
documents creating such obligation
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 means that certain Water Tank Bonds Pledge Agreement mad and
entered into by and among TCMD, VMD and the Authority, and having an effective date
concurrent with the Effective Date.
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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 To wn’s generally applicable procedures and standards)with respect
to Dedicated Public Improvements, subject to the warranty period (as 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 3.10.
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 Va lorem Ta xes 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 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 other than the Add-On RSF, 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 Vi llage (at Av on) 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.
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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
Ta x Credit, are Ta xable Tr ansactions. The Real Estate Tr ansfer Fee shall not be construed to be
part of a Ta xable Tr ansaction, and shall not be subject to the To wn’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.
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
Ta xable 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 To wn in the future enacts a municipal use tax on
building materials.
94.Revocable License Agreement means that certain Revocable Li cense 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 Dedicationhas the meaning set forth in Section 3.7(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 To wn Council in accordance with Part 2, Article 1, Title 32, C.R.S., together
with any other service plan(s) that To wn 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.
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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 in a cumulative
amount up to the portion of the otherwise unfunded portion of the Credit PIF Cap (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)some or all of the
proceeds of which are utilized to finance Capital Projects and/or to refund and defease
Replacement Bonds.
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.Ta nk Project has the meaning set forth in the Ta nk Agreement.
105.Tank Project Bonds has the meaning set forth in the Tank Agreement.
106.Ta x Credit means the To wn’s obligation to provide tax credits 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 Execution 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 Execution 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 Va riable Rate Revenue Bonds, Series 2002, and its Va riable Rate Revenue Bonds,
Series 2004, in implementation of the Settlement Te rm Sheet, including but not limited to any
refunding bonds issued to repay or defease such bonds as to which BNP is a credit enhancer,
letter of credit provider or bondholder.
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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 means the period commencing on the Effective Date and continuing through and
including the date upon which payment in full of all issued and outstanding District Debts occurs
(or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to
Section 6.14(a)); provided, however, the Term shall not be deemed to have expired prior to
January 2, 2040, unless, prior to January 2, 2040: (A) (i) TCMD has issued Supplemental Bonds
up to the full amount of the Credit PIF Cap; and (ii) all such Supplemental Bonds and all other
District Debts have been fully paid; or (B) the Town has exercised its option to fully fund the
Credit PIF Cap pursuant to Section 6.14(a).
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
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.Total Repayment Cost Comparison means the Total Repayment Costs of Additional
Developer Advances minus the Total Repayment Cost of Supplemental Bonds issued in the form
of obligations other than Additional Developer Advances.
119.Total Repayment Cost of Additional Developer Advance means (i) the amount available
to pay Capital Project Costs from the proceeds of the Supplemental Bonds for which the Total
Repayment Cost Comparison is being calculated plus (ii) the total amount of interest which
would accrue from the date of issuance of such Supplemental Bonds to the respective maturity
dates of such Supplemental Bonds calculated by multiplying the Principal Amount Maturing by
the Municipal Market Data rate (or, if the foregoing index is no longer published,then the Bond
Buyer Revenue Bond index rate), for a term most closely related to the term of the Supplemental
Bonds being issued,for Baa investment grade bonds on the date of issuance of such
Supplemental Bonds plus 375 basis points. For purposes of this calculation, Principal Amount
Maturing means the principal amount maturing on each maturity date for such Supplemental
Bonds multiplied by the percentage obtained by dividing the amount available to pay Capital
Project Costs from such Supplemental Bonds by the total principal amount of such Supplemental
Bonds. For purposes of this calculation, a maturity date is the date on which principal is
scheduled to be paid including a mandatory sinking fund date.
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120.Total Repayment Cost of Supplemental Bonds means, with respect to Supplemental
Bonds issued in the form of obligations other than Additional Developer Advances, the sum of:
(i)the total principal amount of such Supplemental Bonds less the amount of the principal, if
any, representing capitalized interest as identified in the indenture of trust or other financing
document governing the payment of such Supplemental Bonds,plus (ii) the total amount of
interest to accrue on the Supplemental Bonds from their date to their respective maturities
calculated by multiplying the principal amount maturing on each maturity date by the applicable
TRC Interest Rate, plus (iii) the sum of any other known Bond Requirements that will be
required to administer the Supplemental Bonds.
121.To wn means the Town of Avon, a home rule municipal corporation of the State of
Colorado.
122.To wn Council means the Town Council of the Town.
123.TRC Interest Rate means, with respect to Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances: (i)if the interest rate is fixed during the
term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable (subject
to the Town’s consent as set forth in Section 6.10), the 30-year average, as of the
issuance/closing date,of the interest rate index used to determine the variable rate on such
Supplemental Bonds as stated in the documents governing the issuance of such Supplemental
Bonds plus any adjustment or spread to such index.
124.Ve sted Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the
Original Effective Date.
125.Vested Property Rights has the meaning set forth in Section2.4.
126.Vesting Term has the meaning set forth in Section 1.4(a).
127.VMD means The Village Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
128.Water Bank has the meaning set forth in Section 3.4(a).
129.Water Rights has the meaning set forth in Section3.4.
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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 F, 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 Execution 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
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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 (except for the rights of BNP,
derived in its capacity as the issuer of an irrevocable direct pay letter 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, to consent to TCMD’s
execution of any such amendment). 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
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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 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;
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(b) Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L. The Town has adopted Ordinance No. 12-10, which approved this Development
Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and
took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term Sheet.
M. Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
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.
N. The Vested Property Rights Statute and the Municipal Code (as in effect on the
Execution Date) 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.
O. 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.
P. 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.
Q. 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
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Development Plan and the Approved SSDPs can occur without impediment or impairment of the
Vested Property Rights.
R. 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 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.
S. 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.
T. BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s consent to 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 have a lawfully eligible candidate designated at the option of BNP to
hold the office of director of TCMD, BNP’s right to be conveyed and to hold a property interest
sufficient to qualify its designee for holding the position of director until such time as there are no
outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or
refunding of such bonds, and BNP’s right to participate on the AURA board of directors with
respect to any urban renewal plans for any portion of the Property.
U. As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-203 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.
V. 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.
W. 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.
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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
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 th e
limitation of absorption rates by the local market conditions, the term of the Vested Property
Rights established pursuant to Section 2.3 shall continue through and including October 20, 2039
(“Vesting Term”). If the Term expires prior to expiration of the Vesting Term, the Vesting Term
shall continue in full force and effect and shall survive expiration of the Term in accordance with
and subject to the terms, conditions and limitations set forth in this Agreement. On October 21,
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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 any prior expiration of
the Vesting Term (or survival of the Vesting Term after expiration of the Term), the term of this
Development Agreement and the Parties’ obligations hereunder shall commence upon the
Effective Date and shall terminate upon expiration of the Term. 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 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
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the provisions of this Development Agreement that run in favor of BNP, including without
limitation, this Section 1.5(c), Section 1.6, Article 4, Section 5.1(e), Section 5.3(e), Article 6 and
Article 7 is subject to BNP Paribas’ (or any successor or assignee of BNP Paribas pursuant to
Section 8.11) prior written consent. The Parties further acknowledge that until the obligations
under the TCMD Reissue Documents have been fully performed, TCMD is required by the
provisions of the TCMD Reissue Documents to obtain the consent of BNP to any future
amendment to the provisions of this Development Agreement, and failure on the part of TCMD to
obtain such consent prior to entering into any such amendment will be a default under the TCMD
Reissue Documents, as to which BNP will have the right to exercise its remedies. [subject to
TCMD counsel approval of last sentence]
1.6 Cooperation in Defending Legal Challenges. If, after the Execution 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 their own
expenses in connection therewith. Unless the Parties otherwise agree, each Party shall se lect 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 R, 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:
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(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
Agreement 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).
(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. Notwithstanding the foregoing, TC-RP shall
have the obligation set forth in Section 5.5.
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.
2.3 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
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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.
2.4 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 the Original PUD
Guide 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 Approved SSDP) through and including
October 20, 2039.
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.
Accordingly, 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 to receive all Town approvals necessary for the
development of the Project 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); provided 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
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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.
(f) Notwithstanding any additional or contrary provision of the Municipal
Code (as in effect from time to time), and notwithstanding any prior expiration of the Term, 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
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, during the
Vesting Term (and notwithstanding any prior expiration of the Term) 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, notwit hstanding 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 Publi c Improvements, nor shall any
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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 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 3.2(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 Original
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 Original
Effective Date or may be enacted or amended after the Effective Date; provided, however, that
Town ordinances and regulations newly enacted or amended after the Original Effective Date shall
not 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 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. During the Term, the Design Review Board shall continue to consist of
not more than five (5) members, one (1) of whom shall be a member of the Town’s Planning and
Zoning Commission designated by the Town from time to time and the remainder of whom shall
be appointed as provided in the governing documents of the Design Review Board. 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: (A) all
development proposals submitted to the Design Review Board for portions of the Property located
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south of Interstate 70; (B) 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 to the Town’s Planning and Zoning Commission); and (C) all proposed
amendments to the Design Covenant. At Master Developer’s option, separate design review
board(s) may be established with respect to Planning Areas RMF-1 and K. Such separate design
review board(s), if any, created for Planning Areas RMF-1 and K shall not be required to include
any Town official as a member.
3.2 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 3.2 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.
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(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 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.
3.3 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 3.2(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:
(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.]
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(ii) Main Street. As of the Execution 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 specifically 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. The
Parties acknowledge that no streetscape or landscape improvements are located within the
East Beaver Creek Boulevard easement as of the Execution Date, but that the Town shall
maintain such streetscape or landscape improvements, if any, that may be installed after the
Execution Date. Asphalt overlays shall not be required prior to Dedication of each phase
of Main Street and, as set forth in Section 4.2(d), the Town shall undertake responsibility
for asphalt overlays for Main Street only after Dedication of each phase of Main Street.
From and after Dedication of each phase of the permanent alignment of 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 (including future phases of the permanent alignments of Main Street and
East Beaver Creek Boulevard) shall be Dedicated to the Town by Recording of the
pertinent final plat or, if acceptable to the Town, by Recording of a 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. Upon completion
of construction, Public Improvements located within public road rights-of-way shall be
Dedicated to the Town by bill of sale. 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.
(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 Execution 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.
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(c) Phased Road Improvements.
(i) Generally. 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.
(ii) Main Street. 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.
(iii) East Beaver Creek Boulevard. The Town shall not require
completion of East Beaver Creek Boulevard as a through road until the earlier of: (A) such
time as it becomes necessary to construct a particular phase of East Beaver Creek
Boulevard to provide a means of ingress to and egress from Sites within Lot 1 that are
undergoing vertical development and do not otherwise have access to a public street; or (B)
such time as a particular development proposal within Lot 1 requires completion of the
connection in order to preclude the impact of the approved development proposal from
reducing the level of service (LOS) on Main Street below a designation of “C” (estimated
to be in the range of approximately 8,000 to 11,000 vehicle trips per day) as established by
traffic studies to be provided in connection with the particular approved development
proposal. The north/south alignment of East Beaver Creek Boulevard within Planning
Areas C and D may be established to include an interim or permanent connection to Main
Street (e.g., East Beaver Creek Boulevard can connect to Main Street east of Planning Area
A and either continue to the roundabout at the southeast corner of Planning Area F in an
interim condition or separate from Main Street and connect to the roundabout at the
northeast corner of Planning Area F in either an interim or permanent condition) so long as
the easterly (roundabout at Post Boulevard) and westerly (where East Beaver Creek
Boulevard enters the Project) connections depicted on the PUD Master Plan are maintained
and each segment of Main Street is maintained at not lower than LOS “C” (e.g., if the
traffic studies demonstrate that LOC “C” can be maintained on the easterly segment of
Main Street with an interim connection as described above, completion of the final through
connection alignment of East Beaver Creek Boulevard would not be required).
(d) Dry Utilities. In connection with the Dedication of any public road
rights-of-way (whether by special warranty deed or by final plat), including those rights-of-way
Dedicated pursuant to Section 3.3(b)(i) and subject to such reserved rights, Master Developer or
the pertinent Landowner shall have the right to reserve the exclusive right to install, own, operate,
maintain, repair, replace and control access to all “Dry Utilities” (as defined in the PUD Guide)
located or to be located within Dedicated public road rights-of-way; provided, however, that such
activities shall be coordinated with the Town and all such Dry Utilities shall be located in such a
manner as to comply with Town requirements regarding separation from public utilities located or
to be located within such rights-of-way.
3.4 Municipal Water; Water Rights Dedications. Certain water rights have been
conveyed to, or otherwise acquired by, the Authority to be used in connection with the
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development of the Project and to serve uses within the Project, including some of the water rights
and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to the
Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights to
water supplied by the Colorado River Water Conservation District (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 3.4(c), the “Water Rights”). Pursuant to and as more particularly described in
the Tank Agreement: (i) as of the Effective Date, TCMD has conveyed to the Town, and the Town
has thereafter conveyed to the Authority, certain interests in the Water Rights; (ii) the Water
Rights conveyed to the Authority as of the Effective Date are deemed sufficient to provide potable
water service up to a maximum of 106.3 acre-feet of consumptive use per year in accordance with
depletion factors decreed in Case No. 97CW306; and (iii) as of the Effective Date, the Authority is
legally obligated to issue taps and to provide the number of single family equivalents (SFE) of
potable water service to the Project that is equivalent to 106.3 acre-feet of consumptive use per
year, as more fully set forth in the augmentation plan approved in Case No. 97CW306. The
amount of consumptive use attributable to potable water service pursuant to the depletion factors
and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306 is
calculated as 180.6 acre--feet per year less 74.3 acre-feet per year reserved by the Town of Avon
for raw water irrigation and lake evaporation purposes [180.6 – 74.3 = 106.3]. The 106.3
acre--feet of consumptive use is referred to for purposedpurposes of this Section 3.4 as the
“potable water allocation” and the 74.3 acre-feet of consumptive use is referred to herein as the
“raw (non-potable) water allocation.” 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.
(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, stated as the total “potable water allocation” and the total “raw (non-potable) water
allocation;” (ii) the specific portion of the “potable water allocation” that is assigned to particular
Sites; (iii) the specific portion of the “raw (non-potable) water allocation” that is assigned to each
parcel of irrigated area or lake surface for evaporation replacement within the Property (including
such raw water uses as the Town has agreed to serve pursuant to this Development Agreement and
the Tank Agreement) and (iv) the “potable water allocation” and the “raw (non-potable) water
allocation” remaining available to be assigned 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 allocation, or insufficient water allocation, has previously been assigned to
such Site), and subject to Subsection 3.4(c), Master Developer shall designate the portion of the
“potable water allocation” and the “raw (non-potable) water allocation” that is assigned for
development of the Site, and concurrently with approval of the pertinent 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 “potable water allocation” and the “raw
(non-potable) water allocation” remaining available for use within the Property. Lot 1 as it is
configured on the Effective Date shall be exempt from the foregoing requirement, but parcels
within Lot 1 that are created by further subdivision of Lot 1 for purposes of development shall be
subject to the foregoing requirement. The amount of water rightsconsumptive use 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
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modified by the Tank Agreement if applicable.1the estimated demand, depletion factors and other
assumptions set forth in the plan for augmentation decreed in Case No. 97CW306.
(b) Return of Water Rights to Water Bank. If the amount of the “potable water
allocation” and the “raw (non-potable) water allocation” assigned for any particular Site exceeds
the amount of the “potable water allocation” and the “raw (non-potable) water allocation” actually
required to serve the Site based upon actual development and final build-out thereof (such actual
“potable water allocation” and “raw (non-potable) water allocation” demand to be determined in
accordance with generally applicable requirements of the Authority and in accordance with the
depletion factors decreed in Case No. 97CW306), the excess and unused portion of such water
allocation shall be returned to the Water Bank and the Water Bank shall be revised to reflect that
such excess and unused portion of such water allocation is available for assignment and is no
longer assigned to the original Site. Excess and unused water allocation amounts returned to the
Water Bank shall be available for allocation in accordance with Section 3.4(a) as though such
water allocation amounts had not previously been allocated from the Water Bank to serve a
particular Site. The determination of excess portion of any water allocation shall be determined by
the Town and subject to the approval of the Authority, pursuant to their respective generally
applicable requirements, and shall be based on consumptive use of the final build-out of any Site in
accordance with the depletion factors and other provisions of the decree in Case No. 97CW306.
The Town may require water usage restrictions or maintenance requirements to prevent any future
increase of consumptive water use above the amount determined necessary to serve the final
build-out of any 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 decree in Case No. 97CW306 and the PUD Guide, and all available
water allocations under the Water Rights have been assigned to Sites (whether developed
or undeveloped) such that there is no water allocation remaining in the Water Bank, no
further development may occur within the Property unless and until, with respect to the
water allocation required to support such further development: (A) additional water rights
are Dedicated resulting in additional water allocation amounts being available for
assignment 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 allocation amounts
are re-assigned from the original Site, and/or from raw (non-potable) water uses to potable
uses, and returned to the Water Bank in accordance with Section 3.4(b). Acceptance of
fees in lieu of additional water rights Dedication shall be subject to the sole discretion of
the Town.
1 Language requested in EH email of 10/17/12 has been partially incorporated. Linking the Water Rights allocation to
cover all “Uses by Right” that could theoretically be developed as contrasted with what is intended to be developed,
combined with the effect of §3.4(c)(i), is overlay broad and would result in gross over-allocation of Water Rights
compared to what is actually built, thereby tying up Water Rights in the subdivided pre-development phase that would
create impediments for other development that is on a faster track. §3.4(c)(ii) provides an mechanism that protects the
Town, and has been revised to further address the concern.
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(ii) For a Specific Site. If the water allocation amounts assigned to a
Site in connection with a Development Application are not sufficient to serve the level of
development proposed in the Development Application, the Town may condition approval
of the Development Application on the Applicant satisfying the water allocation
requirements for the Development Application by one or a combination of: (A) obtaining
Master Developer’s allocation of additional water allocation amounts from the Water
Bank; (B) Dedicating such additional water rights (meeting the generally applicable
requirements of the Authority and the Town) as may be required to support the proposed
level of development; or (C) paying such fees-in-lieu of water rights Dedication as may be
required to fully satisfy the water allocation amounts requirement for the Development
Application. The Dedication of additional water rights and the payment of fees-in-lieu of
water rights Dedication shall be subject to review by the Town in accordance with the
Municipal Code, and subject to approval by the Authority or its successor. Under such
circumstances, 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 allocation
amounts obligation is satisfied in accordance with this Section 3.4(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 pursuant to the Tank Agreement (or
which does not exceed the consumptive use of any such additional water rights that may
subsequently be Dedicated or otherwise conveyed) at such time.
(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 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 pertinent lot(s) or tract(s) within Planning Area K are platted). If construction of
any such water storage tank is undertaken independent and in advance of development of the
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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 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).
(f) Tap Fees; 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 and usage charges to users within the
Property on a uniform, non-discriminatory basis with other users within the Town. The Town
shall remit monthly to TCMD, subject to annual appropriation to the extent required by Section 20
of Article 10 of the Colorado Constitution, 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. 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.
3.5 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.
3.6 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. Without limitation of the
foregoing, in processing any Application for development within the Property, the Town shall
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incorporate the assumptions of the drainage study prepared by David Johnson for the Property
with respect to reducing the calculated stormwater flows, management and detention requirements
based on the mitigating effect of vegetation within the Property, and the assumptions set forth
therein shall govern and control over any conflicting provisions or assumptions in the Town’s
drainage master plan. However, if the Town amends its drainage master plan, which amendment
results in less restrictive or less burdensome provisions than set forth in the David Johnson
drainage study, such less restrictive or less burdensome provisions in the Town’s drainage master
plan shall apply to the Property.
3.7 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 deemed to
have been granted Final Acceptance. This Section 3.7 sets forth the sole unperformed and/or
additional obligations of Master Developer, EMD, the Developer Affiliates, or any pertinent
Landowner to Dedicate land (subject, however, to adjustment pursuant to Section 3.9(b), if
applicable), and the assumptions underlying the Finance Plan are expressly based upon and reliant
on the specific land Dedication requirements set forth in this Section 3.7. Accordingly, except as
otherwise set forth below, during the Term and notwithstanding any current or future provision of
the Municipal Code to the contrary (except pursuant to Section 3.9(b), if applicable), 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 3.7(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.
(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 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, TCMD , any Developer
Affiliate or any Landowner (other than the Town or a state accredited 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.
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(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 a state accredited 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.
(ii) Use Restriction. Notwithstanding anything to the contrary set forth
in the Municipal Code (as in effect 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
accredited education facilities serving grades K through 12 (or any portion of such grades).
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 3.7(a)(ii). Any use of the School Site Dedication
parcels shall be subject to prior approval by the Design Review Board, including potential
future uses including but not limited to pre-school, day care, community education,
cultural, and/or are classes, museum, or recreational.
(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 3.7(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 3.7(a)(ii).
(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 any
improvements permitted to be made within the School Site Dedication parcels in
accordance with the use restriction referenced in Section 3.7(a)(ii). After
Dedication of the School Site Dedication parcels to the Town, the Town shall be
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responsible 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 3.7(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 3.7(a)(ii) and the
applicable deed restriction as contemplated by Section 3.7(a)(iii).
(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 Effective Date)). Neither
TC-RP, Master Developer, TCMD nor any 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
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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.
(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). After Dedication to the Town, the
Town shall be responsible 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. After Dedication, the Town shall be responsible for
improving and maintaining the park lands Dedicated pursuant to this Section 3.7(d) in the Town’s
sole discretion with regard to timing and appropriations. Neither the then-Landowner, Master
Developer nor TCMD shall have any obligation with respect to provision of any Public
Improvements for, or otherwise to improve, such Dedicated 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. 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 purposes and no other purposes, but which may include 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). The Town
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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).
3.8 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 3.8 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 (subject, however, to adjustment pursuant to Section
3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly based upon
and reliant on the specific land Dedication requirements set forth in Section 3.7. Accordingly, and
notwithstanding any current or future provision of the Municipal Code (except pursuant to Section
3.9(b), if applicable), 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).
3.9 Other Generally Applicable Taxes, Assessments and Fees.
(a) General. 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 3.8), 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.
(b) Density Increases by PUD Guide Amendment. The land dedication
obligations set forth in Section 3.7 and the exaction, fee and payment obligations set forth in
Section 3.8 are, as stated in such provisions, the sole and exclusive obligations with respect to such
matters; provided, however, that such obligations are predicated on the maximum residential and
commercial densities permitted by the PUD Guide in effect as of the Effective Date (including the
minimum residential and commercial densities set forth therein for Planning Area I). Accordingly,
to the extent the PUD Guide in effect as of the Effective Date is amended after the Effective Date
to increase the maximum commercial and/or residential densities permitted by the PUD Guide (as
so amended), the Town shall have the right to evaluate the impacts of such increased densities and
to condition approval of such PUD Guide amendment on the imposition of additional land
dedication and/or exaction, fee or payment obligations that correspond to the increment of
increased density approved in such amendment. The additional requirements, if any, shall be
based on the Municipal Code requirements in effect as of the submittal date of the pertinent PUD
Guide amendment as applied only to the increment of increased density approved in such PUD
Guide amendment. By way of example, if a PUD Guide amendment is approved which increases
the maximum commercial density within the Project by 100,000 square feet, the maximum
additional obligation with respect to matters addressed in Sections 3.7 and 3.8 shall be limited to
what would be required to mitigate 100,000 square feet of commercial density under the Municipal
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Code requirements in effect on the submittal date of the PUD Guide amendment application. With
respect to Planning Area I, any future PUD Guide amendment which establishes the minimum
residential and commercial densities stated in the PUD Guide in effect as of the Effective Date
shall not result in the imposition of any additional obligations with respect to matters addressed in
Sections 3.7 and 3.8, but any amendment which has the effect of approving commercial or
residential densities for Planning Area I in excess of the minimum densities stated in the PUD
Guide in effect as of the Effective Date may require additional mitigation for the increment of
increased density in the manner described above.
3.10 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), 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 of producing relatively greater increases in
District Revenue and Municipal Payments. Accordingly, unless the Town and Master Developer
agree otherwise in writing, the following requirements shall be binding:
(a) East Beaver Creek Boulevard. Until such time as AURA has fully funded
completion of East Beaver Creek Boulevard as contemplated by Section 6.7(g)(i) or such earlier
time as East Beaver Creek Boulevard has been completed as a through road, $6,200,000 (adjusted
as stated below) of the Credit PIF Cap shall be reserved to fund completion of East Beaver Creek
Boulevard in its permanent alignment in the manner contemplated by and subject to the terms,
conditions, phasing, design standards and construction timing obligations set forth in the PUD
Guide and Sections 3.3(b)(iii) and 3.3(c) of this Development Agreement. The foregoing amount
shall be reduced from time to time in an amount equal to the amount of Capital Project Costs
(whether utilizing Credit PIF Revenues or TIF Revenues) for each phase of East Beaver Creek
Boulevard that is granted Preliminary Acceptance, excluding from such reduction the Capital
Project Costs, if any, attributable to any interim connection that is not incorporated into the
permanent alignment of East Beaver Creek Boulevard as a through road pursuant to Section
3.3(c)(iii) . Any portion of the foregoing reserved amount that has not been utilized upon
completion of the permanent alignment of East Beaver Creek Boulevard as a through road, or upon
a determination that the LOS requirement stated in Section 3.3(b)(iii) has been satisfied upon full
build-out of Lot 1, shall be released and made available to fund other Cap Amounts as provided in
clause (c) below.
(b) Other Reserved Funds. Of the total Supplemental Bond capacity available
under the Credit PIF Cap, a total of $15,000,000 (inclusive of the $6,200,000 reserved pursuant to
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Section 3.10(a)) shall be reserved to fund Capital Project Costs incurred in connection with
construction of the Prioritized Capital Improvements. 2
(c) Balance of Supplemental Bond Capacity. The balance of Supplemental
Bond Capacity available under the Credit PIF Cap (after reservation and utilization of the funding
capacity as described in clauses (a) and (b) above) may be utilized in TCMD’s discretion to fund
other Cap Amounts.
3.11 Landscaping/Visual Mitigation for Hurd Lane/Eagle Bend. In order to provide
off-site mitigation for the benefit of the residents of Hurd Land and Eagle Bend, Master Developer
will, subject to receiving the right-of-way license or other form of approval from the Town and as
otherwise subject to the terms and conditions of this Section 3.11, cause the following to be
installed, in locations mutually determined by Master Developer and the Town, within the Hurd
Lane right-of-way (which is owned by the Town): (i) 75 each of 10’ Colorado Spruce Trees
(either Blue or Green); (ii) 55 each of 6-7’ Lilacs; and (iii) Irrigation – Drip poly tubing with three
emitters per plant. Master Developer will be responsible for the cost of the planting materials,
delivery of same to the site, labor and equipment for planting of the plant materials, and for parts
and installation of the irrigation system. Installation will be undertaken during the planting season
in the spring of the year following the Effective Date. The Town will be solely responsible, at its
sole expense, to provide the water tap(s) and water rights (from the Town’s water rights inventory)
for irrigation of the plant materials, any vaults(s) required for the tap connection, for irrigation of
the plant materials, and for maintenance and replacement of the planted materials commencing on
the day of installation. Additionally, the Town shall have the obligation to provide a license or
other form of legal right as may be necessary to enable Master Developer to perform such
plantings, and Master Developer shall have no obligation to perform such plantings unless/until
the Town has issued the appropriate license or similar form of approval to perform the work in the
right-of-way. From and after the initial installation, Master Developer shall have no further
obligation with respect to the plant material or irrigation system, such obligations being fully
assumed by the Town as of the date of installation.
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 3.3(b),
3.4, 4.2(c) and 4.2(d) ) to those services provided to any other area of the Town on a uniform and
non-discriminatory basis (collectively, the “Municipal Services”). The Parties acknowledge the
Town provides public transit services as part of the Municipal Services based on a variety of
2 The $11,500,000 amount is Developers’ proposed compromise on the issue of whether and to what extent the
Prioritized Capital Projects would be binding. Recognizing that the STS did not require it to be binding, a 50/50
arrangement is viewed as equitable and appropriate taking into consideration the Town’s commitment to prioritize the
use of TIF Revenues up to $10mm for the Prioritized Capital Projects which, together with the $11,500,000 would
cover more than 100% of the Prioritized Capital Project costs.
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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 shall not deny any
Development Application 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 Municipal Payments revenues are either inadequate or excessive, no Party shall
assert or claim any right to an increase in or a reduction of such Municipal Payments 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 Execution
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.
(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, Nottingham-Puder Ditch, irrigation systems and water wells, the
wet well located within PA-F, tree replacements and, subject to Section 3.3(b)(iv)), snow removal.
The Town shall have sole discretion to determine the appropriate maintenance of Nottingham
Dam, which shall include but is not limited to maintenance, repair, replacement, improvement,
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expansion, decommission, removal and deferral of any activity. Notwithstanding the forgoing,
TCMD shall retain responsibility to cause the following obligations to be performed utilizing
District Revenues available to it for such purposes:
(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.
(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 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.
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(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 Execution Date, the
Town is undertaking to acquire fee title to the Forest Service Village Parcel. The Town agrees and
covenants that, if the Town acquires fee title to the Forest Service Village Parcel, the Town shall
provide consent as the owner to EMD (or to the then-Landowner of Planning Area I) to submit a
subdivision application for the Forest Service Village Parcel to plat and dedicate a public road
right-of-way and to construct a public road in accordance with the applicable procedures and
standards set forth in the PUD Guide and the Code. The Town shall execute and Record the
Covenant and Temporary Easement Agreement in the form set forth in Exhibit C [pending
review/approval of EH proposed revisions to document] within three (3) business days after
acquiring fee title to the Forest Service Village Parcel and prior to the Town Recording any
conservation easement or any other real estate instrument which may limit the ability to plat a
public road right-of-way or construct a public road. The Covenant and Temporary Easement
Agreement shall run with the land and any conveyance or grant by the Town of any interest in the
Forest Service Village Parcel shall be expressly subject to the Covenant and Temporary Easement
Agreement. The Town, as owner of the Forest Service Village Parcel, shall cooperate with EMD
(or the then-Landowner of Planning Area I) with respect to establishing the alignment and platting
of the right-of-way for the public road over the Forest Service Village Parcel. Construction,
Dedication and Acceptance of the public road over the Forest Service Village Parcel shall be
pursuant to the pertinent Public Improvements Agreement and the Covenant and Temporary
Easement Agreement shall terminate upon Final Acceptance of the pertinent Public Improvements
on the Forest Service Village Parcel. 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 agree to acknowledge, confirm and represent to the
owner of the Forest Service Village Parcel that the PUD Master Plan approved by the Town
depicts a road crossing the Forest Service Village Parcel to provide access to Planning Area I.
(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
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otherwise expand the scope of such determination as set forth in Colorado statues as may be
amended from time to time.
(g) Urban Renewal. If it is determined that Lot 1 will be included within an
urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section 6.7, 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 and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section 6.7, 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:
(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.
(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).
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(e) Cooperation and Compliance. TCMD shall provide its reasonable
cooperation and compliance with applicable legal requirements to allow a lawfully eligible
candidate designated at the option of BNP to be elected or appointed as a director of TCMD.
5.2 Obligations of PICs.
(a) Credit PIF. During the Term, the PICs shall take all legally available
actions to maintain the Credit PIF in effect and 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, take all legally available
actions to maintain the Credit PIF in effect, 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
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 the designated portion of the Municipal Payments into the Asphalt
Overlay Account 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.
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(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 3.7(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 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 take all legally available
action to cause the PICs to impose, collect and remit the Add-On PIF as required pursuant to this
Development Agreement, and 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.
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(e) Property Interest. Concurrently with the Effective Date, Master Developer
has caused the execution and delivery of an instrument conveying to BNP’s designee a property
interest sufficient to qualify such BNP designee for election or appointment to hold the office of
director of TCMD. Pursuant to this Section 5.3(e) and the terms and conditions of such instrument
(and any replacement instrument executed to accommodate a BNP replacement designee or any
replacement property interest), Master Developer shall have an ongoing obligation to cause such
BNP designee (or any replacement designee) to hold a sufficient property interest until such time
as there are no outstanding obligations to BNP under the TCMD Reissue Documents or any
subsequent reissue or refunding of such bonds.
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
3.7(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 3.7(a)(iv)(B) regarding a
potential consolidated school/park Site within Planning Area I.
(c) Conveyance of OS Tracts. Pursuant to Section 3.7(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 3.7(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.
5.5 Obligation of TC-RP Regarding Add-On RSF. Concurrently with the Effective
Date, TC-RP, in its capacity as the “declarant” with respect to the PIF Covenants has caused to be
recorded amendments to the PIF Covenants to implement the Add-On RSF. During the Term and
provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP shall
take all legally available action to cause the PICs to impose, collect and remit the Add-On PIF as
required pursuant to this Development Agreement, and TC-RP 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.
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
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pledged the Credit PIF Revenues to TCMD and the Credit PIF Collection 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 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 Municipal
Payments 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 the Town’s obligation to
maintain the Tax Credit in effect has been satisfied 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
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.
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(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 and as otherwise set forth below
with respect to unfunded Supplemental Bond capacity, 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 (as
qualified in clause (i) below). If the Net Proceeds of all Supplemental Bonds issued prior toon or
before January 2,1, 2040, are less than the otherwise unfunded portion of the Credit PIF Cap, the
Credit PIF Cap will be reduced in equal amount to the unfunded Supplemental Bond capacity.]
The following (collectively, the “Cap Amounts”) shall count against the Credit PIF Cap: [I
continue to disagree with deleting the foregoing language, which is accurate as far as I can
tell, and clarifying – as is the language in clause (i) below that I also continue to disagree with
deleting. With the new definition of Net Proceeds, I believe that defined term works as used
below. ]
(i) The Net Proceeds of the TCMD Bond Reissue (for purposes of the
Credit PIF Cap and Cap Amounts, $52,100,000 (FIFTY TWO MILLION ONE
THOUSAND DOLLARS), which is the original 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). .
(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 Net Proceeds of the Past Developer Advances in the amount
stated in Exhibit D.
(iv) To the extent issued on or before January 1, 2040, the Net Proceeds
of Supplemental Bonds (including Master Developer contributions to the Asphalt Overlay
Account only to the extent reimbursable from TCMD using Credit PIF Revenues).
(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 and, if any, principal of Supplemental Bonds in excess of the Cap
Amounts.3
3 This sounds ok, but I’m not sure what it actually means. Please explain (I don’t follow Kathy’s explanation in
response to Eric’s question on this point.
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(ii) Except as otherwise provided in Section 6.12, 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 6.13, and any refunding thereof.
(v) Deferred Fees and Deferred Amortization, and any refunding
thereof.
(vi) TCMD’s contributions to the Asphalt Overlay Account.
(vii) The Base O&M Costs. 41
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 Execution Date or to apply to any extension(s) of such
leases:
(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 Home Depot and
Wal-Mart occupy their present locations within the Project as of the Execution 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 lease documents as in effect on the Execution Date.
(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. Contemporaneously with the
Execution Date, the Town has adopted Ordinance [insert number] pursuant to which it
41 With respect to deleted clause (vii), please confirm it is the intent that any Supplemental Bonds issued to defease
Replacement Bonds must, per the definition, be issued prior to January 2, 2040. See fn to § 6.11
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has, effective on the Effective Date, 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] (in the form and in substance as adopted
contemporaneously with the Execution Date) 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, subject to
annual appropriation to the extent required by Section 20 of Article 10 of the Colorado
Constitution, 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
Execution Date also shall apply to any amendment to a long term lease that is executed
after the Execution Date that does not have the effect of extending the term of such lease.
With respect only to amendments or modifications of such existing leases that have the
effect of extending the term for a period in excess of 25 years or adding new options to
extend the term for a period in excess of 25 years: (A) the Town’s real estate transfer tax
shall apply to such 25 year or greater extension period to the extent required by application
of Ordinance [insert number]; (B) the consideration upon which the Town’s real estate
transfer tax calculation is based shall be based only upon the lease payments (exclusive of
common area maintenance, taxes, insurance and similar costs) for the period of the
extension greater than 25 years (i.e., the original term of such lease, inclusive of all
extension rights thereunder, shall be disregarded such that there is no “look back” beyond
the date of the extension which triggers the real estate transfer tax obligation); (C) the Tax
Credit shall apply to such lease extensions with respect to which the real estate transfer tax
otherwise would apply such that the PICs shall impose and collect the Real Estate Transfer
Fee and the Town shall collect no real estate transfer tax as otherwise provided in this
Agreement, subject to Section 6.18; and (D) the Town and the PICs shall coordinate in
advance to establish an agreed upon methodology for calculating the amount and timing of
Real Estate Transfer Fee payments due with respect to lease term extensions with respect
to which the Town’s real estate transfer tax otherwise would apply.
(b) 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,
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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. The Parties further
recognize that national and state laws and business practices of retailers regarding imposition of
state and local sales tax is evolving and soon may require retailers to identify and report the
address of the point of purchase for internet based retail sales. The Town agrees that if and when
address information of the point of sale for retailers is available to the Town such that the Town
can determine the internet based retail sales specifically attributable to points of purchase within
the Village (at Avon) for which sales taxes are imposed and collected (or another mechanism is
identified), the Town shall use best efforts to cooperate with the PICs to impose the Retail Sales
Fee and Add-On RSF if possible or, in the alternative if imposition of such fees is not possible, the
Town shall cooperate with the PICs to impose, collect and remit the Town’s retail sales tax to the
PICs in accordance with Section 6.18 If the Parties identify a method of implementing the intent
of this Section 6.14, such method may be implemented without the requirement of an amendment
to this Development Agreement.
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:
(i) Retail Sales Fee. The same rate as the corresponding Town sales tax
rate as in effect from time to time. As of the Execution 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 Execution 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 Execution
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 Execution Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in Exhibit F
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
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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.
(i) Increase in Town Sales Tax Rate. 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 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).
(ii) Exception for “Project-Specific” Town Tax Rate Increase.
Notwithstanding anything set forth in Section 6.4(b)(i) to the contrary and subject to the
terms and conditions set forth in this Section 6.4(b)(ii), the Town shall be entitled to retain
the revenues resulting from an increase in the Town’s 4.0% sales tax rate or 4.0%
accommodations tax rate as in effect on the Execution Date to the extent: (A) such tax rate
increase is duly adopted by the Town after the Effective Date and applies on a uniform
basis throughout all areas of the Town; (B) the proceeds of such tax rate increase are
specifically dedicated and pledged solely to a specific project identified in connection with
such adoption; (C) the financing period for such specific project does not exceed 30 years;
and (D) for the purposes of sales tax and not accommodations tax such increased tax rate
does not exceed 0.75%. For purposes of the foregoing, a “specific project” shall mean only
a specific municipal capital project (by way of example, construction of a municipal
building; construction of a library; acquisition of specifically identified parcels of real
property that are being acquired by the Town for open space, park or construction of a
specific municipal capital project to be constructed on such property; or similar purposes),
and expressly excludes tax rate increases for the purpose of providing ongoing municipal
services (by way of example, to fund ongoing provision of transit services, trash services or
similar open-ended municipal services funding obligations) or for general fund purposes.
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With respect to tax rate increases, for a specific project as set forth above, the Tax Credit
shall not apply to such increased rate and the corresponding Credit PIF rate shall not be
raised to match the increased tax rate, but the Add-On RSF rate shall be reduced
correspondingly to the increased tax rate as set forth in Section 6.4(b)(i) with respect to
retail sales transactions. With respect to any Town sales tax rate increases that are not for a
specific project, the terms and conditions of Section 6.4(b)(i) shall apply.
(iii) Increased Add-On PIF Rate. 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).
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
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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
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. From and after the Execution Date, the Town will
cooperate with the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as
“declarant” under the PIF Covenants) in implementing the Add-On RSF with existing retailers
within the Project, including but not limited to attending meetings with such retailers upon the
request of the PICs and Master Developer (and not independently), coordinating with the PICs and
the Add-On RSF Collection Agent with respect to preparation and dissemination of reporting
forms and similar matters related to the collection and remittance of the Add-On RSF, and such
other matters as the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as
“declarant” under the PIF Covenants) reasonably request in connection with implementing and
facilitating the collection of the Add-On RSF.
(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, 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:
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(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 5.2(c), 6.5(a)(ii)(A) and
6.5(b)(i):
(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 in the earliest calendar year in which
one of the following occurs: (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
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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.
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. Nothing in
this Section 6.7(b) constitutes a limit on AURA’s ability to finance improvements it deems
appropriate. The restriction in this Section 6.7(b) relates only to whether bonds issued by AURA
to pay for the costs of such improvements count against 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
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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 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:
(i) First, until the Credit PIF Cap reduction contemplated by Section
6.7(b) has been accomplished or unless Master Developer and AURA otherwise agree in
writing, to fund any then-uncompleted phases of East Beaver Creek Boulevard as a
through road in accordance with Section 3.10(a).
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(ii) Second, to the extent the Credit PIF Cap reduction contemplated by
Section 6.7(b) has not been accomplished by satisfaction of the foregoing clause (i), to
fund from the remaining amount of Credit PIF Cap reduction contemplated by Section
6.7(b) the Capital Project Costs of any Prioritized Capital Projects within Lot 1 that have
not previously been financed and completed.
(iii) Third, in a priority to be determined by AURA:
(A) improvements to or servicing Sites that the Town owns
within Lot 1 (which may include structured parking within Lot 1 to provide shared
public parking for private improvements and public improvements constructed
within Planning Area B and other areas of Lot 1); and
(B) 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).
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 Obligation to the Authority; and (ii) the Authority is
obligated to construct the Tank Project and to utilize the Annual Debt Service Obligation 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.
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(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 Obligation. To the Authority, for the Annual
Debt Service Obligation, 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.
2. Cure Payments. To the extent the Town has
exercised any cure rights pursuant to Section 6.11 to cure a deficiency in
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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 at the rate of 1.5% shall
accrue on the principal amount of the Avon Receivable
commencing on the Effective Date and continuing until the
expiration of the Term or payment in full, whichever first occurs.
III. Except to the extent stated in this Section
6.9(b)(v)(B)3.III, the interest rate applicable to the Past Developer
Advances shall be as stated in the instruments creating such
obligations (as identified in Exhibit E). 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
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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 the
revenues derived therefrom for the purpose of paying for 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; provided, however, that the portion of District Revenues
comprising Credit PIF Revenues shall be limited solely to the Permitted Uses as set forth in
Section 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 expiration of the Term. If
TCMD has not issued Supplemental Bonds prior to January 2, 2040: (i) the Town shall have no
further obligation with respect to any unissued Supplemental Bonds capacity; (ii) the Tax Credit
shall be maintained in effect until all District Debts payable from Credit PIF Revenues and
outstanding as of January 2, 2040, are fully paid and the Term expires as provide in Section 6.1(b);
and (iii) TCMD shall be entitled to retain and utilize all Credit PIF Revenues it has received prior
or subsequent to January 2, 2040, for servicing District Debts or direct payment of Capital Project
Costs. The District shall make commercially reasonable efforts to obtain the lowest cost of
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borrowing when issuing Supplemental Bonds. The District may issue Supplemental Bonds (other
than Additional Developer Advances) at fixed interest rates for a term most closely related to the
term of the Supplemental Bonds being issued without the Town’s consent so long as the interest
rate for such bonds does not exceed the Municipal Market Data (or, if the foregoing index is no
longer published, then the Bond Buyer Revenue Bond index) rate for Baa investment grade fixed
interest rate bonds plus one point five percent (1.5%)150 basis points. The issuance of
Supplemental Bonds (other than Additional Developer Advances) which bear interest at a fixed
rate higher than that set forth in in preceding sentence, or which are variable rate bonds, shall
require the prior written consent of the Parties.
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 Past Developer Advances being extinguished, replaced, refunded or defeased by such
Replacement Bonds shall be deducted from and reduce the amount counted against the Credit PIF
Cap. The principal amount of the Replacement Bonds shall not exceed $12.4 million without the
Town’s prior 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.II) 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.II) shall be as
determined by this Development Agreement on the Effective Date. 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.5
6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the
limitations set forth in Section 6.12(b), TCMD shall have the ongoing right to issue refunding
bonds or other debt instruments to repay, refund and/or defease, in whole or in part the Cap
Amounts and, except as stated in Section 6.12(a), the principal amount of such refunding bonds or
other debt instruments shall not count against the Credit PIF Cap. The interest rates on refunding
bonds are subject to the requirements governing interest rates for Supplemental Bonds set forth in
Section 6.10, and subject to the following:
(a) Variable Rate Refunding Bonds. The issuance of refunding bonds or other
debt instruments which bear interest at a variable rate shall require the prior written consent of the
Parties.
5 With respect to the footnote that was here regarding the inserted versus the deleted language, it seems to me that the
inserted language must be used rather than the deleted language if § 6.2(c)(vii) is to be deleted.
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(b) No Increase in Total Debt Service. Without the Town’s prior written
consent, the aggregate principal and interest due on fixed rate refunding bonds or other debt
instruments with fixed interest rates, from their date of issuance to final maturity (disregarding any
option to redeem prior to maturity), shall be less than or equal to the aggregate principal and
interest due on the debt to be repaid, refunded, defeased or otherwise refinanced, from the date of
the refunding to final maturity (disregarding any option to redeem prior to maturity).
(c) Refunding of TCMD Bond Reissue. Notwithstanding the foregoing, if the
principal amount of any bonds or other debt instruments issued to repay, refund and/or defease or
otherwise refinance the TCMD Bond Reissue exceeds the thenoutstandingthen outstanding
principal amount of the TCMD Bond Reissue, only that portion of the increased principal which is
in excess of $52,100,000 (Fifty Two Million One Hundred Thousand Dollars) shall be included in
the Cap Amounts and count against the Credit PIF Cap.62
6.13 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.
6.14 Town Funding of Credit PIF Cap. At any time after the TCMD Bond Reissue
obligations have been fully satisfied (including through payment by the Town pursuant to this
Section 6.13), the Town shall have the right, but not the obligation, to pay off all or a portion of the
then-outstanding District Debts 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 Debts; and (ii) remitting to
TCMD the amount, if any, of available but unutilized Credit PIF Cap capacity as of the date of
payoff.73 The total obligation to TCMD shall not exceed the Credit PIF Cap. For example, if the
sum of the Net Proceeds of previously retired TCMD Bond Reissue obligations and other District
Debts retired by the Town totals $80 million, the amount of unutilized Credit PIF Cap capacity 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 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.
62 Deletion of prior clause (d) is subject to Saranne’s approval. 73 I’ve not included “or direct payment of Capital Project Costs” since I can’t see how that comes into play because if
TCMD hasn’t already undertaken the obligations I don’t know how the improvements would be known, and if TCMD
has (or hasn’t yet) undertaken the obligations the Town should remit the funds to TCMD so it can perform either by
direct payment or issuance of bonds.
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(b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debts but not to advance the funds required to fund the
unutilized Credit PIF Cap 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.
6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose,
collect, receive, retain, expend or utilize Town taxes imposed upon Public Improvement 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, subject to annual
appropriation to the extent required by Section 20 of Article 10 of the Colorado Constitution, 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.
(a) Use Tax. If 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.
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:
(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 and the Town is entitled to collect, receive, retain, expend and
utilize such sales tax revenues.
(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.
(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
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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.
(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.
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 Public Improvement Fees. If the PICs are
unable to collect any portion of the Public 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, subject to annual appropriation to the
extent required by Section 20 of Article 10 of the Colorado Constitution, 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 Public 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 Public 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 Public Improvement Fees on behalf of
such entities. The Town acknowledges that if the person or entity which failed to timely remit
such Public Improvement Fees subsequently remits such Public Improvement Fees to the
applicable PIC, such payment shall result in the application of the Tax Credit (if applicable)
against such person or entity’s corresponding tax obligation (if any), which Tax Credit shall fully
satisfy any corresponding tax liability to the Town. The Town shall nevertheless be entitled to
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recover from the PICs the administrative fee and any costs incurred in the enforcement and
recovery of such Public Improvement Fees.
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 the Town to do so
earlier, the Town shall not initiate or pursue any proceeding to dissolve any District until after the
earlier to occur of either: (a) the twenty-fifth (25th) anniversary of the first issuance of bonds b y
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 in effect as of the Original Effective
Date.8
6.22 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. [E.H. wants to tie to
specific D.A. provisions – need language from EH - confirm w/ EH and TCMD counsel]
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
8 Re Eric’s comment about “District” – language is verbatim from the original agreement.
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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.
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 or by a Limited Party under
this Development Agreement, a non-defaulting Party, non-defaulting Limited Party and/or
Intended Beneficiary may deliver written notice to the defaulting Party or defaulting Limited Party
(with a copy to each other Party, Limited Party and Intended Beneficiary) of such default, at the
address specified in Section 8.12, and the defaulting Party or defaulting Limited 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 or defaulting Limited Party
gives written notice to each non-defaulting Party, non-defaulting Limited Party and Intended
Beneficiary within such 30-day period that it is actively and diligently pursuing such cure, the
defaulting Party or defaulting Limited 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 or defaulting Limited Party is at all times within such additional time period
actively and diligently pursuing such cure. Failure or delay in the delivery of a notice of default
pursuant to this Section 7.6 shall not be construed to constitute a waiver of any such default, and
such notice of default may be delivered at any time during which a default has occurred and not
been cured. The defaulting Party’s or defaulting Limited Party’s obligation to cure shall not arise
until such notice of default has been delivered as provided herein, and no claim shall be filed with
respect to a default prior to delivery of a default notice and expiration of the cure period as set forth
above.
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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, any non-defaulting Limited Party and/or
Intended Beneficiary 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; 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. §§ 29-1-203 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 relief) of such
obligations.
(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.
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(ii) EMD. EMD shall have 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 Section 6.3(a), 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.
(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), 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:
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(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) Pursuant to Sections 5.1(e) and 5.3(e), BNP’s right to
participate on the TCMD board of directors and right for its designee to hold a
property interest sufficient to qualify for appointment or election to be a TCMD
director.
(ii) VMD.
(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 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.
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.
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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) the Town’s approval of this Development
Agreement and the Development Plan generally is pursuant to the authority of the Vested Property
Rights Statute and the Municipal Annexation Act of 1965 set forth at CRS § 31-12-101, et seq.,
and therefore shall bind the Town with regard to the Town’s rights and obligations during the
Term, particularly with regard to the Town’s obligation to maintain the Tax Credit in effect, in
accordance with the terms and remedies set forth in this Development Agreement; (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 does not constitute the creation of a multiple-fiscal year direct or indirect
debt or other financial obligation of the Town, and does 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) and, correspondingly, entry of a final order holding the Town’s right to receive
Municipal Payments invalid or unenforceable shall entitle the Town to disconnect the Property.
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
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Party the full and complete enjoyment of its rights and privileges under this Development
Agreement.
8.8 TCMD Obligations. Except with respect to funding of the Asphalt Overlay
Account in accordance with the terms and conditions of Section 6.6(a)(iii), all obligations of
TCMD under this Development Agreement to pay money are subject to annual budget and
appropriation, and are subordinate to any bonds issued by TCMD. [confirm w/ TCMD counsel –
should Annual Debt Service Obligation also be excepted here?]
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
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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):
To the Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attention: Town Manager
Telephone:
Email:
With a required copy to:
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, Colorado 80222
Attn: Eric Heil
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
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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
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
One Lake Street
Avon, Colorado 81620
Attention: Town Manager
Telephone:
Email:
With a required copy to:
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, Colorado 80222
Attn: Eric Heil
Telephone: (303) 975-6120
Email: ericheillaw@gmail.com
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
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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
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
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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
Email: Brandee.Caswell@faegrebd.com
Developer Affiliates
c/o Traer Creek LLC
[Utilizing the Master Developer contact and required copy 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.
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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
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EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
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
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
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COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
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STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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)
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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)
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STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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)
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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.
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My commission expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
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.
COUNTY OF ______________ )
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)
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ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representative of BNP Paribas, an international bank (as defined in the foregoing
Development 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 PARIBAS:
By:
Name:
Title:
BNP PARIBAS:
By:
Name:
Title:
STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2012,
by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
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STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2012,
by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
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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
1001679.191001679.20
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 easterly
A-2
1001679.191001679.20
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 said Township and Range; thence N01°32’00”E
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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.
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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
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EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
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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]
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EXHIBIT C
Form of Covenant and Temporary Easement Agreement
[Pending further communication/direction from the Town regarding the timing and terms of
the FS Village Parcel acquisition arrangement]
1001679.14 08/31/12
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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
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EXHIBIT E
Schedule of Past Developer Advances and Avon Receivable
[Note: Below is “near final.” Minor adjustments may be required to reflect offsets for net
amounts owed by/to Developer to/by TCMD, which would potentially affect the most recent
advances, likely resulting in reduction of Past Developer Advance total; pending Town
review/approval of Avon Receivable calculation and prioritization]
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EXHIBIT F
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 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 a rate equal to the
Municipal Market Data (or, if the foregoing index is no longer published, then the Bond Buyer
Revenue Bond index) rate for Baa investment grade bonds on the date of such advance plus three
point five percent (3.5%) [do we have verification this is the correct spread?]375 basis points,
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.
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.
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.
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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 Obligation; and (iii) the
annual Base O&M Amount. For each full calendar year during the Term, the Allowed O&M
Expenses (in each case, to be reduced in an amount equal to the amount, if any, by which the
Annual Debt Service Obligation is less than $500,000 per year) 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 Obligation has the meaning and is subject to the terms, conditions,
restrictions and requirements set forth in the Pledge 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 Execution 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 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,
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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 First Bank, Avon Branch 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 Obligation; and (ii) TCMD’s contribution to the Asphalt Overlay Account.
21. BNP means BNP Paribas, an international bank, together with its successors and assigns.
22. Bond Requirements means the following costs incurred in connection with the issuance of
any District Debts other than principal payments (including mandatory sinking fund payments):
(a) interest payments on the outstanding principal of District Debts; (b) payments to replenish
bond reserve accounts, provided that a bond reserve for any District Debts shall not exceed
maximum annual debt service on such District Debts; (c) periodic fees related to credit
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1001679.18
enhancements (including, without limitation, the Deferred Fees, if any); (d) prepayment
premiums; (e) arbitrage rebate payments; (f) fees and expenses of any bond trustee, bond registrar,
paying agent, authenticating agent, rebate analyst or consultant, calculation agent, remarketing
agent; (g) payments to any rating agency for maintaining a rating on the District Debt; (h)
payments due to any provider of an interest rate swap or interest rate cap; and (i) any other amount
approved by the Town; provided however that Bond Requirements on the Water Tank Bonds shall
be limited as provided in the Pledge Agreement. Bond Requirements does not include any such
costs which are capitalized and paid with the Net Proceeds of District Debts.94
23. Cap Amounts has the meaning set forth in Section 6.2(b).
24. 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.
25. 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, if any, Bond Requirements or
any costs described in the first sentence of the definition of Bond Requirements which are
capitalized and incurred in connection with issuance of District Debts with respect to such Capital
Projects.
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 Execution 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.
94 An initial question – is the “provided however” clause at the end of clause (i) intended to modify only clause (i) or
to modify it and the preceding clauses. If it’s not just clause (i), suggest it be relocated to clarify.
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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 Obligation; 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.
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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 3.1, 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
Execution 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 F 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 Execution 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.
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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) principal and Bond Requirements of the Cap Amounts
(excluding Capital Project Costs that TCMD funds directly from Credit PIF Revenues pursuant to
Section 6.2(b)(v)); and (ii) the Deferred Amortization. [Need to resolve Saranne’s comments re
Capital Project Costs]
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 (other than
Additional Developer Advances) [with all the changes to definitions, does “Net Proceeds” still
work here since the revised definition contains the various permutations in calculating it?],
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 Covenant and Temporary Easement Agreement
Exhibit D - Prioritized Capital Projects
Exhibit E - Schedule of Past Developer Advances and Avon Receivable
Exhibit F - 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 expiration of the warranty period
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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 Execution 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 Execution 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 as in effect from time to time 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) derived
from application of the Add-On RSF to retail sales transactions only (and not to any other Taxable
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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 has the following meanings: (i) for the Water Tank Bonds, the amount of
bond proceeds available for payment of Capital Project Costs; (ii) for Past Developer Advances
and any Additional Developer Advances, the full amount of the advances made to TCMD or
another District for Capital Project Costs; and (iii) for Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances, the Total Repayment Cost Comparison
amount calculated as follows: (A) if the Total Repayment Cost Comparison amount is a positive
number, the Net Proceeds of such Supplemental Bonds shall be defined as the amount that is equal
to the amount of the proceeds available from such Supplemental Bonds for payment of Capital
Project Costs; and (B) if the Total Repayment Cost Comparison amount is a negative number, the
Net Proceeds of such Supplemental Bonds shall defined as the amount that is equal to the sum of
the amount of bond proceeds available from such Supplemental Bonds for payment of Capital
Project Costs plus the Total Repayment Costs Comparison amount expressed as a positive
number.10
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).
10 Note: (1) I’ve proposed moving the calculation language (modified slightly) from the definition of Total
Repayment Cost Comparison to clauses (iii)(A) and (B) of the Net Proceeds definition. Because Supplement Bonds is
defined as both/either Additional Developer Advances and/or municipal/other bond obligations, I’ve qualified uses of
the term Supplemental Bonds in clause (iii) by adding “issued in the form of obligations other than Additional
Developer Advances.”
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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, 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].”
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78. Pledge Agreement means that certain Water Tank Bonds Pledge Agreement mad and
entered into by and among TCMD, VMD and the Authority, and having an effective date
concurrent with the Effective Date.115
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 the warranty period (as 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 3.10.
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 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 other than the Add-On RSF, 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.
115 Note, I’ve slightly modified this because the Pledge Agreement and the Development Agreement will both be
legally effective/binding only on the Effective Date (as defined in the Development Agreement, which is the same as
the “Implementation Date” – i.e., the date on which the bonds issue and the master escrow closes. Avoids need to later
remember to fill in this obscure blank.)
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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.
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 3.7(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,
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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 in a cumulative
amount up to the portion of the otherwise unfunded portion of the Credit PIF Cap (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) some or all of the
proceeds of which are utilized to finance Capital Projects and/or to refund and defease
Replacement Bonds.
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 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 Execution 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
Execution 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.
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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, including but not limited to any refunding
bonds issued to repay or defease such bonds as to which BNP is a credit enhancer, letter of credit
provider or bondholder.
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 means the period commencing on the Effective Date and continuing through and
including the date upon which payment in full of all issued and outstanding District Debts occurs
(or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to Section 6.13(a));
provided, however, the Term shall not be deemed to have expired prior to January 2, 2040, unless,
prior to January 2, 2040: (A) (i) TCMD has issued Supplemental Bonds up to the full amount of
the Credit PIF Cap; and (ii) all such Supplemental Bonds and all other District Debts have been
fully paid; or (B) the Town has exercised its option to fully fund the Credit PIF Cap pursuant to
Section 6.13(a).
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 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. Total Repayment Cost Comparison means the Total Repayment Costs of Additional
Developer Advances minus the Total Repayment Cost of Supplemental Bonds issued in the form
of obligations other than Additional Developer Advances.12
119. Total Repayment Cost of Additional Developer Advance means (i) the amount available
to pay Capital Project Costs from the proceeds of the Supplemental Bonds for which the Total
Repayment Cost Comparison is being calculated plus (ii) the total amount of interest which would
accrue from the date of issuance of such Supplemental Bonds to the respective maturity dates of
such Supplemental Bonds calculated by multiplying the Principal Amount Maturing by the
Municipal Market Data (or, if the foregoing index is no longer published, then the Bond Buyer
12 Note that I’ve proposed moving the calculation portion of this to the definition of Net Proceeds and made the
distinction required by the definition of Supplemental Bonds (i.e., both Additional Developer Advances and other
forms of bond obligations).
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1001679.18
Revenue Bond index) rate for Baa investment grade bonds on the date of issuance of such
Supplemental Bonds plus three point five percent (3.5%) [do we have verification this is the
correct spread?]375 basis points. For purposes of this calculation, Principal Amount Maturing
means the principal amount maturing on each maturity date for such Supplemental Bonds
multiplied by the percentage obtained by dividing the amount available to pay Capital Project
Costs from such Supplemental Bonds by the total principal amount of such Supplemental Bonds.
For purposes of this calculation, a maturity date is the date on which principal is scheduled to be
paid including a mandatory sinking fund date.
120. Total Repayment Cost of Supplemental Bonds means, with respect to Supplemental Bonds
issued in the form of obligations other than Additional Developer Advances, the sum of: (i) the
total principal amount of such Supplemental Bonds, plus (ii) the total amount of interest to accrue
on the Supplemental Bonds from their date to their respective maturities calculated by multiplying
the principal amount maturing on each maturity date by the applicable TRC Interest Rate, plus (iii)
the sum of any other known Bond Requirements that will be required to administer the
Supplemental Bonds. [Need to address Saranne’s comment re excluding Cap I from TRC –
here & 119?]
121. Town means the Town of Avon, a home rule municipal corporation of the State of
Colorado.
122. Town Council means the Town Council of the Town.
123. TRC Interest Rate means, with respect to Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances: (i) if the interest rate is fixed during the
term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable (subject to
the Town’s consent as set forth in Section 6.10), the 30-year average, as of the date of calculation
[should this be calculated as of the issuance date of the bonds for purposes of the test? “date
of calculation” seems unclear], of the interest rate index used to determine the variable rate on
such Supplemental Bonds as stated in the documents governing the issuance of such Supplemental
Bonds plus any adjustment or spread to such index.
124. Vested Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the
Original Effective Date.
125. Vested Property Rights has the meaning set forth in Section 2.4.
126. Vesting Term has the meaning set forth in Section 1.4(a).
127. VMD means The Village Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
128. Water Bank has the meaning set forth in Section 3.4(a).
129. Water Rights has the meaning set forth in Section 3.4.
999369.16
999369.18
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.
TABLE OF CONTENTS
Page
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999369.18
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
TABLE OF CONTENTS
(continued)
Page
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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
TABLE OF CONTENTS
(continued)
Page
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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
999369.16 999369.18
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.1 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
1 The Applicant retains in this submittal the terms defined in Exhibit H, which terms have been included in every
submittal of this PUD Guide since the initial submittal of the preliminary PUD Guide was made. Expressly defining
terms, including “Commercial Uses,” will provide clarity for the Master Developer, the Town and future Applicants in
connection with interpretation and enforcement of this PUD Guide, for the benefit of all parties. Such defined terms
are utilized consistently throughout this PUD Guide.
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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.
(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, as may be amended from time to time,
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.Development Plan
and any subsequently approved Preliminary Plans and Final Plats, together with any amendments
to any of the foregoing, constitutes an approved “site-specific development plan” as defined in the
Vested Property Rights Statute and pertinent provisions of the Municipal Code. Without limiting
the generality of the foregoing, the Landowners of the Property shall have Vested Property Rights
to undertake and complete development and use of the Property as provided in the Development
Plan, and as set forth in [Section 2.3] of the Development Agreement. The Vested Property Rights
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so established shall be and remain vested for the “Vesting Term” (as defined in the Development
Agreement). Pursuant to the Municipal Code, as in effect on the Effective Date:2
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.
Upon and after expiration of the “Vesting Term” (as defined in 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.3
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
(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).
2 Consistent with Town direction, this provision has been carried forward from the existing PUD Guide with
conforming definitions utilized.
3 The Town has requested that this paragraph be included, and, although it is not contemplated by the Settlement Term
Sheet, the Applicant is agreeable to its inclusion.
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(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.1312(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.4 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 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
4 The Town Attorney and Town staff have requested this notice provision be included, although its inclusion is not
contemplated by the Settlement Term Sheet. At such request, and to address comments made by the adjacent
neighbors regarding notice of development applications, the Applicant has included such provision.
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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, and the
Applicant shall not be required to extent or continue such street beyond the Property Line
of the Site that is the subject of 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 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
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standards set forth in Section I.109 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.
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
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relationship to the Municipal Code shall be governed by [Section 2.6(b)] of the Development
Agreement.5
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.
950,000900,000 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.
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
5 Consistent with Town direction, this provision has been deleted as it is not in the existing PUD Guide and is not
contemplated by the Settlement Term Sheet.
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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 slopesnatural, undeveloped slopes
(specifically excluding existing or future dirt stockpiles) exceeding 40%.6
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.
(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.
6 Clarification was added to address the current status of the Property regarding dirt removal operations occurring after
the approval of the Original PUD Guide, as amended.
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(d) Each Accommodation Unit within a Hotel, Motel and Lodge shall be
counted as one-third (1/3) of a Dwelling Unit.
(d) (e) Each Primary/Secondary Structure or Structures situated on the same
Lot shall be counted as onetwo (12) Dwelling UnitUnits.
(e) (f) Each guest bedroom within a Bed and Breakfast shall be counted
one-third (1/3) of a Dwelling Unit.
(f) (g) Temporally Divided Dwelling shall be counted as one (1) Dwelling
Unit.
(g) (h) Vacation Club shall be counted as one (1) Dwelling Unit.
(h) (i) Group Home shall be counted as one (1) Dwelling Unit.
(i) Accommodation Units shall be counted in accordance with the following
calculation:7
(i) The aggregate Gross Square Footage of all of the Accommodation
Units within the applicable Hotel, Motel and Lodge Use, but specifically excluding
hallways, lobby and reception areas, stairwells, elevator areas, landings and entranceways,
mechanical areas, public restrooms, permanently designated corridors, public lobbies,
common mall areas and all other areas exterior to the individual lodging rooms (the
“Lodging Square Footage”), shall be measured and calculated.
(ii) The Lodging Square Footage shall be divided by 1,800 square feet,
and the result of such calculation shall be the number of Dwelling Units attributable to such
Hotel, Motel and Lodge Use. Any resulting fractional number of Dwelling Units shall be
rounded up or rounded down, as applicable, to the next whole number. [In example, the
Lodging Square Footage of a Hotel, Motel and Lodge Use having 50 Accommodation
Units each measuring 650 square feet of Gross Square Footage and 50 Accommodation
Units each measuring 850 square feet of Gross Square Footage is 75,000 square feet of
Gross Square Footage ((50 X 650) + (50 X 850) = 75,000). Such Hotel, Motel and Lodge
Use shall be counted as 42 Dwelling Units (75,000 / 1,800 = 41.67 (rounded to 42)).]
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
7 The existing PUD Guide provides that each Accommodation Unit in a Hotel, Motel and Lodge Use is counted as 1/3
of a Dwelling Unit (in other words, three Accommodation Units counts as one Dwelling Unit), provided that the
average of all Accommodations Units within such Use does not exceed 600 square feet. However, the existing PUD
Guide does not address how Accommodation Units are calculated if such average exceeds 600 square feet. This
provision corrects the gap in the existing PUD Guide using the calculations generally contemplated by the existing
PUD Guide as follows: Under the existing PUD Guide, three Accommodation Units each comprising 600 square feet
(totaling 1,800 square feet) counts as one Dwelling Unit. Here, dividing the aggregate square footage of the
Accommodation Units by this 1,800 square feet (comprising one Dwelling Unit) results in the number of Dwelling
Units attributable to the particular Hotel, Motel and Lodge Use.
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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 be 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
(vi) (vii) Uses which the Director determines to be similar.
(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 BuildingsBuildings, retail Buildings, Hospital
Buildings, 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, 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.
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(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
(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.
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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 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 65,00060,000 of consolidated Gross Square Footage.
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(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.
(ix) (x) Cabled Telecommunications Equipment, Cabled
Telecommunications Facilities and Cabled Telecommunications Services.
(x) (xi) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(xi) (xii) Dry Utilities.
(xii) (xiii) Infrastructure.
(xiii) (xiv) Indoor recreation and/or entertainment facilities.
(xiv) (xv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) (xvi) Parks and Open Space.
(xvi) (xvii) Tramways, gondolas and lifts.Commercial Parking, Private
Parking, Public Parking and public and private transportation and transit facilities,
including but not limited to, Parking Structures, Bus Stops, Bus Shelters, rail stations,
tramways, gondolas and lifts.
(xvii) (xviii) Outdoor Storage, only as an Accessory Use to a retail Use.
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(xviii) (xix) Accessory Uses and Structures customarily appurtenant to
Uses by Right.
(xix) (xx) Agricultural Use (as an Interim Use only).
(xx) (xxi) Rodeo and ancillary carnival (as an Interim Use only).
(xxi) (xxii) Recycling Facility (as an Interim Use only).
(xxii) (xxiii) Snow storage (as an Interim Use only).
(xxiii) (xxiv) Mobile Home office/storage Use and community garden (as
an Interim Use only).
(xxiv) (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.
(xxv) (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 65,00060,000 of
consolidated Gross Square Footage.8
(ii) Educational facilities, including but not limited to, public and
private schools, universities and colleges.
(iii) (ii) Automobile Repair Shop (Minor).
(iv) (iii) Outdoor entertainment facilities that include the use of
amplified music.
(v) (iv) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(vi) (v) Hotel Uses (including without limitation, hotel Uses comprising
a portion of a Mixed Use Project) which exceed 80 feet in Building Height.
(vii) (vi) Car wash.
8 As previously discussed with Council, the Town Attorney and Town staff, special review uses (including uses
relating to maximum building height and maximum gross square footage) have been added to those special review
uses included in the existing PUD. We note that such uses may only be approved by the PZC after a public hearing in
accordance with the terms of this PUD Guide.
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(viii) (vii) Drive-in Uses.
(ix) (viii) Religious Facility.
(x) (ix) Service Station (for the sale of only electric form of fuel for
motorized vehicles).
(xi) (x) Restaurants (with drive-through window service).
(xii) (xi) Financial institutions (with drive-through window service).
(xiii) (xii) Recycling Facilities (except as permitted in Section D.2(a)
above).
(xiv) (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)).
(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:
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(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:9
(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:10
(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.
9 The existing PUD Guide ties maximum building height to Main Street, distinguishing maximum heights south and
north of Main Street. Although not contemplated by the Settlement Term Sheet, in response to concerns articulated by
the adjacent neighbors with respect to the possibility of increased heights nearer to the southern boundary of Planning
Area A if Main Street is located at such southerly boundary, the Applicant has provided for a 250 foot minimum
distance from the southerly boundary to definitely delineate the locations for the maximum building heights.
10 The existing PUD Guide does not provide for a maximum site coverage or minimum landscaped area. Although not
contemplated by the Settlement Term Sheet, in response to concerns articulated by the adjacent neighbors with respect
to the Applicant’s requested increase in the Commercial Space cap, the Applicant has limited the maximum site
coverage for the southerly portion of Planning A area to 80 percent.
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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, including without
limitation, accessory Commercial Uses, including food and beverage concessions, as may
be mutually approved by the Town and the Design Review Board.11
(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: 2520 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.
11 Accessory Commercial Uses, subject to Design Review Board approval, has been included consistent with the
existing PUD Guide, as modified to reflect the provisions of the Settlement Term Sheet.
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(ii) Maximum Building Height: 60 feet.
(iii) Maximum Site Coverage: 20%12
(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 that have frontage on Main
Street.
(iii) Agricultural Use (as an Interim Use only).
(iv) Community Facilities.
(v) Bed and Breakfast, Vacation Club, and Temporally Divided
Dwellings and short-term rentals.13
(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).
12 Maximum Site Coverage is included to reflect the Settlement Term Sheet discussions and intent of the parties with
respect to development of Planning Area B. The Applicant is willing to further discuss the Maximum Site Coverage
percentage with the Town.
13 We note that interval ownership is permitted by right in the existing PUD Guide. The addition here is consistent
with the existing PUD Guide and accounts for the defined terms included in this PUD Guide.
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(vii) Commercial Parking, Private Parking and, Public Parking, and
public and private transportation and transit facilities, including but not limited to, Parking
Structures, Bus Stops, Bus Shelters, rail stations, 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).
(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.14
(xvi) Planning Area C Only:
(1) Pedestrian bridges.
(2) Hotel, Motel and Lodge.
(3) Bed and Breakfast.
(xvii) (xvi) Planning Area D Only:
(1) Recycling Facility and accessory trash facility (as an Interim
Use only).
(xviii) (xvii) Accessory Uses and Structures customarily appurtenant to the
foregoing Uses by Right.
(xix) (xviii) Additional Uses which the Director determines to be similar
to the foregoing Uses by Right.
14 Please see the definition of Home Occupation (Minor) in Exhibit H. It benefits the Town and future Applicants and
residents of the Town to allow these types of home occupations, which will not result in external effects. As a
practical matter, these Uses do and will occur within the Town without regard to zoning.
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(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.In Planning Area D having frontage on Main Street only:
(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.
(1) Hotel, Motel and Lodge.
(2) Bed and Breakfast.
(3) Educational facilities, including but not limited to, public
and private schools, universities, colleges and Child Care Centers.
(4) Hospitals.
(5) (iii) Heliport, only as an Accessory Use to a Hospital or
other medical facility, including but not limited to a clinic.
(6) (iv) ChurchesReligious Facilities, 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) 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:
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(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.
(7) (3) Outdoor entertainment facilities that include the use of
amplified music (subject to the review and written approval byof the Design
Review Board authorizing such Use).
(ii) 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) 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:
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(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%15
(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] or state
accredited educational facility serving grades K-12 (or any portion of such grades).
(ii) Agricultural Use (as an Interim Use only).
15 Maximum Site Coverage, as opposed to Minimum Landscaped Area, is utilized throughout the PUD Guide,
consistent with the Development Code with respect to the Town Center.
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(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%
(iii) (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.
(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.
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(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, however, no single retail business on
Planning Area F shall occupy more than 60,000 of consolidated Gross Square Footage.
(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.
(v) (vi) Community Facilities.
(vi) (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).
(vii) (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).
(viii) (ix) Infrastructure.
(ix) (x) Dry Utilities.
(x) (xi) Private and public transportation and transit, including without
limitation, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(xi) (xii) ChurchesReligious Facilities, museums, libraries and public
buildings.
(xii) (xiii) Indoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xiii) (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).
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(xiv) (xv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) (xvi) Parks and Open Space.
(xvi) (xvii) Child Care Center.
(xvii) (xviii) Animal Boarding (excluding outdoor Animal Boarding),
subject to review and written approval by the Design Review Board authorizing such Use
(xviii) (xix) Kennels (excluding outdoor Kennels), subject to review and
written approval by the Design Review Board authorizing such Use.
(xix) (xx) Construction staging (as an Interim Use only).
(xx) (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.
(xxi) (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.
(xxii) (xxiii) Additional Uses which the Director determines to be similar
to the foregoing Uses by Right.
(xxiii) (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) Single retail businesses on Planning Area F occupying more than
60,000 of consolidated Gross Square Footage.
(ii) Educational facilities including, but not limited to public and private
schools, universities, and colleges.
(iii) (i) Service Station.
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(iv) (ii) Animal Boarding (outdoor), subject to review and written
approval by the Design Review Board authorizing such Use
(v) (iii) Kennels (outdoor), subject to review and written approval by
the Design Review Board authorizing such Use.
(vi) (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:
(vii) (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).
(viii) (vi) Planning Areas F, G and H Only:
(1) Animal Boarding (outdoor).
(2) Kennels (outdoor).
(3) Hospitals.
(ix) (vii) Planning Area I Only:
(1) Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) which exceed 4855 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.
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(6) Tattoo parlor, body piercing.
(d) Building Envelope Requirements:
(i) Minimum Building Setbacks:
(1) Commercial Uses:
a. Front: 25 feet
b. Side: None16
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 shallon
16 The existing PUD Guide requires a 7.5 foot side setback. The Applicant has proposed a change to no setback
requirement in order to reflect the reality of in-line Commercial development, as has been developed in the Town
Center.
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Planning Area I only: 55 feet, provided that such Uses may 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. on
Planning Area I only: 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) 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:
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(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.
(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) ChurchesReligious Facilities, 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:
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999369.18
(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:
(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.
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(4) Hotel, Motel and Lodge Uses: 55 feet.17
(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.
(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 Dwelling.
(ii) Duplex Dwelling.
(iii) Primary/Secondary Structure
(iv) (ii) Agricultural Use (as an Interim Use only).
(v) (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).
(vi) (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).
(vii) (v) Infrastructure.
(viii) (vi) Dry Utilities.
(ix) (vii) Recreational facilities.
17 Consistent with the Settlement Term Sheet, the Applicant has provided for supplemental design standards for Hotel,
Motel and Lodge Uses on Planning Area J, the result of which is that only mid-tier upscale Hotel, Motel and Lodge
Uses may be developed on Planning Area J. Those mid-tier upscale Uses require a minor increase in building height
to accommodate their required prototype buildings. Accordingly, the maximum building height for such Use has been
increased here, in connection with the provision of the supplemental design standards, to implement the terms of the
Settlement Term Sheet.
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(x) (viii) Parks and Open Space.
(ix) Public Facilities.
(x) Community Facilities.
(xi) Conceptual Lot 1 (as depicted on the PUD Master Plan) Only:
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.
(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.
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(ii) Maximum Building Height: 35 feet.
(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.
(e) Residential Density Maximum: BuildingUntil such time as a secondary
access road is constructed, 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).1.
(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.
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(iii) Preschool, nursery school, in-home child care and Child Care
Center.
(iv) (iii) Agricultural Use (as an Interim Use only).
(v) (iv) Bed and Breakfast, Vacation Club, Temporally Divided
Dwellings and short-term rentals.
(vi) (v) Infrastructure.
(vii) (vi) Dry Utilities.
(viii) (vii) Recreational facilities.
(ix) (viii) Temporary real estate offices and construction offices.
(x) (ix) Residential management office.
(xi) (x) Accessory Uses and Structures customarily appurtenant to Uses
by Right.
(xii) (xi) Additional uses which the Director determines to be similar to
Uses by Right.
(xiii) Planning Area RMF-1 Only:
(1) Assisted living facilities.
(xiv) (xii) Planning Area RMF-2 Only:
(1) Pedestrian bridges.
(b) Special Review Uses:
(i) Preschool, nursery school, in-home child care, and Child Care
Center.Religious Facilities, museums, libraries and public buildings.
(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
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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.
(3) Commercial: 48 feet.
(iii) Maximum Site Coverage: 80%.
(iv) Minimum Landscaped Area: 20%.
(iv) (v) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Area RMF-2: 12 Dwelling Units per acre.
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(ii) Planning Area RMF-1: 6 Dwelling Units per acre., provided that
until such time as a secondary access road is constructed, building permits may be issued
for no more than 280 Dwelling Units in the aggregate for Planning Area K and Planning
Area RMF-1.
(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.
(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.
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(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.
(v) Wireless Telecommunications Equipment, Wireless
Telecommunications Facilities and Wireless Telecommunications Services.
(vi) Infrastructure.
(vii) Dry Utilities.
(viii) Snow storage.
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(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.
(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.
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(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:
(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:
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(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, as may be amended from time to time.
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.
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(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;
(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;
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(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 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
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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, as may be amended from time to time, 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;
(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;
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(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.98 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 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.
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(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;
(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
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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;
(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.98; (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.
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(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”),18 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.
(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
18 “Required Street Connections” are not addressed in the existing PUD Guide or contemplated by the Settlement
Term Sheet. The Town Attorney, Town staff and the Applicant have discussed including such provisions to add
clarity to what matters are considered material with respect to which Town review and approval process applies to
Applications proposing to alter or modify such matters.
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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:
(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
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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 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:
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(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 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
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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
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.
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(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, as may be
amended from time to time, 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
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.
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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, as may be amended
from time to time; 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.109 shall apply to any Building developed for
Commercial Use(s) or as a Mixed-Use Project constructed on a Site abutting the southerly
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
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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.109 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.19
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
19 This provision is not included in the existing PUD Guide and is not contemplated by the Settlement Term Sheet.
The Applicant has provided this provision for the purpose of addressing certain concerns articulated by the adjacent
neighbors. However, the Applicant notes that it is continuing to evaluate the drafting of this provision.
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(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 Guide may
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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.1312 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:
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(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.17.16.
The obligations set forth in this Section I.1716 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) The Master Developer will have an obligation to provide an additional 32
affordable housing units, or assure that the same are supplied by others, as set forth below and as
follows: The Master Developer will have the obligation to provide such additional 32 affordable
housing units only upon the satisfaction of the conditions precedent as set forth in this subsection.
The Master Developer will have the obligation to provide 13 of the additional 32 affordable
housing units only upon the Town’s issuance of final certificates of occupancy for Commercial
Space within the Property in the aggregate of 750,000 square feet of consolidated Gross Square
Footage. The Master Developer will have the obligation to provide an additional 13 of such 32
affordable housing units (for a total of 26 additional affordable housing units) only upon the
Town’s issuance of final certificates of occupancy for Commercial Space within the Property in
the aggregate of 850,000 square feet of consolidated Gross Square Footage. The Master
Developer will have the obligation to provide an additional 6 of such 32 affordable housing units
(for a total of 32 additional affordable housing units) only upon the Town’s issuance of final
certificates of occupancy for Commercial Space within the Property in the aggregate of 900,000
square feet of consolidated Gross Square Footage.20
20 In connection with the Applicant’s request of an increase in the Commercial Space cap of 250,000 square feet, the
Applicant proposes providing additional affordable housing units calculated in accordance with the are requirements
of the Municipal Code, as currently in effect. The Applicant notes, however, that the 500 units required under the
existing PUD Guide exceeds the number of units required for the Project as proposed by this PUD Guide, as calculated
in accordance with the Municipal Code, as currently in effect.
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(c) (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.
(d) (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.
(e) (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 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.
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(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.
(f) In accordance with the terms of the Original PUD, a minimum of 100
affordable housing units were constructed in conjunction with the initial phase of commercial
and/or residential construction within the Project, and the Master Developer has fully satisfied all
obligations under this PUD Guide with respect to timing of construction of all affordable housing
units required to be provided by the Master Developer (or others), including without limitation, the
affordable housing units described in Section I.16(b), as set forth in this Section I.16.21
17. Provision of Certain Amenities.
(a) Community Park (Planning Area P3).
(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.
21 This provision is in the existing PUD Guide and has been reinserted, updated and revised to reflect satisfaction of
the prior provision of the required initial 100 affordable housing units and to include reference to the new additional 32
affordable housing units.
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(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:22
(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.
(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
22 The Applicant acknowledges the Town Attorney’s prior comment that the Town Attorney and Town staff requested
this language be included but that it is not contemplated by the Settlement Term Sheet, and, as a result, the Town
Attorney’s suggested deletion of the language. Notwithstanding the foregoing, the Applicant remains agreeable to the
inclusion of the language in this PUD Guide as previously requested.
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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.
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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 S8923'36"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) S8036'27"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 0604'58", and a chord which bears S8338'57"W
263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N0020'55"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:
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Beginning at the Northeast corner of said Section 17; thence S0141'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
easterly line, S0141'49"E 73.07 feet, to the centerline of said Eagle River; thence the following
four courses along said centerline (Filum aquce): (1) N8924'49"W 1037.9 feet; (2) N8607'49"W
472.00 feet; (3) N8929'49"W 538.00 feet; (4) S8233'11"W 595.15 feet, to the westerly line of said
NE 1/4; thence N0020'55"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 0611'51", and a chord which bears N8342'23"E 279.58 feet; (2)
N8036'27"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 1224'07", and a chord which bears N8648'31"E 685.10 feet; (4)
S8659'25"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 0231'46". and a chord which bears S8543'31"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) N8840'41"E 1379.49 feet, to the W 1/16 corner of said Section
8 and Section 5 of said Township and Range; (2) N8840'41"E 1379.49 feet, to the 1/4 corner of
said Sections 8 and 5; (3) N8842'58"E 1385.36 feet, to the E 1/16 corner of said Sections 8 and
5; (4) N8842'58"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) N8329'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4; (2) N8329'30"E
1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N8324'12"E 1386.30 feet, to the E
1/16 corner of said Sections 9 and 4; (4) N8324'12"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) N8639'24"E 1381.29 feet, to the W 1/16 corner of said
Sections 10 and 3; (2) N8639'24"E 1299.94 feet; thence, departing said northerly line,
S0134'07"W 2699.66 feet, to the east-west centerline of said Section 10; thence, along said
east-west centerline, S8632'23"W 1304.06 feet, to the W 1/16 corner of said Section 10; thence
S0132'50"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 S8632'47"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 S7710'15"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 S0133'02"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 S7220'31"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 N0134'18"E 1601.52 feet, to the CS 1/16 corner of said
Section 9; thence S8607'30"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 S0133'13"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
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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 N8954'54"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 N8958'35"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
S0001'37"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) N6530'20"W 249.79 feet; (2)
N7847'50"W 317.2 feet; (3) N8308'20"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 3015'52", and a chord which bears
N5457'56"W 763.3 feet; (5) N3437'50"W 331.1 feet; (6) N3444'20"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 2527'04", and
a chord which bears N5129'50"W 798.3 feet; (8) N6824'50"W 399.7 feet; (9) N4947'20"W
213.6 feet; (10) N7020'50"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) N8950'40"E 1194.46 feet, to the
CE 1/16 corner of said Section 7; (2) N8950'40"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)
N0010'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N0010'53"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.
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EXHIBIT B
PUD Master Plan
[to be inserted]
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EXHIBIT C
The Village (at Avon) Parking Regulations
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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.
(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
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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.
(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
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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 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
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“PWH”) shall be restricted during the winter range occupancy period extending from December
15 to April 15. Recreational use, including nordicNordic 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.
(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.
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(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.
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.
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(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
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.
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(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.
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.
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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.
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EXHIBIT E
Minimum Design Guideline Standards
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Street Standards
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1025827.181025827.19
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.
TABLE OF CONTENTS
Page
-i-
1025827.181025827.19
A. PURPOSE/GENERAL PROVISIONS .............................................................................. 1
1. Defined Terms ....................................................................................................... 1
2. Purpose ................................................................................................................... 1
3. Vested Property Rights .......................................................................................... 2
4. General Provisions ................................................................................................. 3
5. Applicability of Other Regulations ........................................................................ 6
6. Conflict .................................................................................................................. 6
B. TOTAL PERMITTED DENSITY ................................................................................... 76
C. GENERAL LAND USE DESIGNATIONS .................................................................... 10
1. Designations ......................................................................................................... 10
2. Permitted Uses ..................................................................................................... 11
D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD .......... 11
1. General ................................................................................................................. 11
2. Planning Area A - Village Center Mixed Use Project ......................................... 12
3. Planning Area B - Community Facilities ............................................................. 16
4. Planning Areas C and D - Village Residential Mixed Use Projects ................ 1817
5. Planning Area E - School ................................................................................. 2120
6. Planning Areas F, G, H and I – Regional Commercial Mixed Use Projects ... 2221
7. Planning Area J – Regional/Neighborhood Commercial and Residential
Mixed Use Projects .......................................................................................... 2726
8. Planning Area K - Hillside Residential ................................................................ 29
9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family ......................... 31
10. Planning Areas P1-P3: Parkland ......................................................................... 33
11. Planning Areas OS1 – 0S7: Natural Open Space ............................................... 35
12. Planning Areas PF-1 – PF-3: Public Facility ..................................................... 36
E. SPECIAL REVIEW USE ................................................................................................ 38
1. Special Review Use Permit .................................................................................. 38
2. Application Filing and Processing ....................................................................... 38
3. Submittal Requirements for Special Review Use ................................................ 39
4. Criteria for Review, Recommendation, and Approval of Special Review
Uses ...................................................................................................................... 39
TABLE OF CONTENTS
(continued)
Page
-ii-
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5. Amendments to Special Review Use Permit ....................................................... 40
F. TEMPORARY USES AND STRUCTURES .................................................................. 40
G. SUBDIVISION ............................................................................................................ 4041
1. General .............................................................................................................. 402. Final Plat ; Applicability
3.5. Material Modification to Certain Street Connections ...................................... 4443
H. DEVELOPMENT PLAN AMENDMENT PROCEDURES ...................................... 4544
1. General ............................................................................................................. 4544
2. Formal Amendments ........................................................................................ 4544
3. Administrative Amendments ........................................................................... 4644
4. Modifications Not Requiring Amendment ...................................................... 4847
I. SUPPLEMENTAL REGULATIONS ......................................................................... 4948
1. Interim Uses ..................................................................................................... 4948
2. Solid Fuel Burning Devices ............................................................................. 4948
3. Signs ................................................................................................................. 4948
4. Parking Requirements ...................................................................................... 5049
5. Surface Parking Landscaping Requirements ................................................... 5049
6. Drainage Requirements .................................................................................... 5049
7. Sidewalk and Trail Standards .......................................................................... 5150
8. Alternative Equivalent Compliance and Variances ......................................... 5150
9. Supplemental Design Standards: Planning Areas A and D ........................... 5110. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge Requirements
11. 10. Wildlife Mitigation Plan .................................................................................. 5351
12. 11. Design Review Guidelines ............................................................................... 5352
12. Natural Resource Protection ................................................................................ 52
13. Natural Resource Protection ........................................................................... 5414. Residential Fire Suppression Systems
15. 14. Park, Recreation and Trail Access ................................................................... 5453
15. Affordable Housing Plan ..................................................................................... 53
16. Affordable Housing Plan ................................................................................ 5417. Provision of Certain Amenities
EXHIBIT A Legal Description ............................................................................................... A-1
EXHIBIT B PUD Master Plan ............................................................................................... B-1
EXHIBIT C The Village (at Avon) Parking Regulations....................................................... C-1
TABLE OF CONTENTS
(continued)
Page
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EXHIBIT D Wildlife Mitigation Plan .................................................................................... D-1
EXHIBIT E Minimum Design Guideline Standards .............................................................. E-1
EXHIBIT F Street Standards ................................................................................................. F-1
EXHIBIT G Municipal Code Provisions Not Applicable to The Village (at Avon) PUD ..... G-1
EXHIBIT H Definitions.......................................................................................................... H-1
EXHIBIT I Section 7.16.070 of Development Code ............................................................. I-1
1025827.181025827.19
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.1 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. Notwithstanding any provision of this Section
A.1, if, subsequent to the Effective Date, the Town amends from time to time any definitions set
forth in the Development Code, the Master Developer, in its sole discretion, may consider
amendment of this PUD Guide to incorporate such amended definitions herein, which
amendment(s), if any, shall be processed in accordance with the administrative amendment
procedure set forth in Section H.3.
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.
1 The Applicant retains in this submittal the terms defined in Exhibit H, which terms have been included in every
submittal of this PUD Guide since the initial submittal of the preliminary PUD Guide was made. Expressly defining
terms, including “Commercial Uses,” will provide clarity for the Master Developer, the Town and future Applicants in
connection with interpretation and enforcement of this PUD Guide, for the benefit of all parties. Such defined terms
are utilized consistently throughout this PUD Guide.
1025827.181025827.19 2
(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.
(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, as may be amended from time to time,
with respect to the subject matter contained herein.
3. Vested Property Rights. The Development Plan and any subsequently approved
Preliminary Plans and Final Plats, together with any amendments to any of the foregoing,
constitutes an approved “site-specific development plan” as defined in the Vested Property Rights
Statute and pertinent provisions of the Municipal Code. Without limiting the generality of the
foregoing, the Landowners of the Property shall have Vested Property Rights to undertake and
complete development and use of the Property as provided in the Development Plan, and as set
forth in [Section 2.3] of the Development Agreement. The Vested Property Rights so established
shall be and remain vested for the “Vesting Term” (as defined in the Development Agreement).
1025827.181025827.19 3
Pursuant to the Municipal Code, as in effect on the Effective Date:2execution date of the
Settlement Term Sheet,:
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.
Upon and after expiration of the “Vesting Term” (as defined in 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.3
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
(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).
2 Consistent with Town direction, this provision has been carried forward from the existing PUD Guide with
conforming definitions utilized.
3 The Town has requested that this paragraph be included, and, although it is not contemplated by the Settlement Term
Sheet, the Applicant is agreeable to its inclusion.
1025827.181025827.19 4
(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 is 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.1211(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.4 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, the 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 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
4 The Town Attorney and Town staff have requested this notice provision be included, although its inclusion is not
contemplated by the Settlement Term Sheet. At such request, and to address comments made by the adjacent
neighbors regarding notice of development applications, the Applicant has included such provision.
1025827.181025827.19 5
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, and the
Applicant shall not be required to extentextend or continue such street beyond the Property
Line of the Site that is the subject of the applicable Application provided that such street
terminates in a turn-around, cul-de-sac or like termination (temporary or permanent, as
applicable) to permit emergency vehicle turn-around in accordance with the requirements
of the Development Code. 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 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.
1025827.181025827.19 6
(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.
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
1025827.181025827.19 7
restrictive than either the Development Plan or the Municipal Code shall prevail in any instance
where there is a conflict.5
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.
900,000825,000 consolidated Gross Square Footage of Commercial Space.
(b) Dwelling Units.
2,400 Dwelling Units. Five hundredPursuant to the terms of the Affordable
Housing Plan, 500 of the 2,400 Dwelling Units shall be constructed as
affordable housing, pursuant toand, subject to satisfaction of the conditions
precedent set forth in the Affordable Housing Plan., an additional 23 of the
2,400 Dwelling Units shall be constructed as affordable housing.
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, 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
825,000 square feet of consolidated Gross Square Footage stated in Section B.1(a)), and 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.
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
5 Consistent with Town direction, this provision has been deleted as it is not in the existing PUD Guide and is not
contemplated by the Settlement Term Sheet.
1025827.181025827.19 8
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 natural, undeveloped slopes (specifically
excluding existing or future dirt stockpiles) exceeding 40%.6slopes exceeding 40%.
Notwithstanding the foregoing, areas with slopes exceeding 40% created by the placement of dirt
stockpiles shall not be excluded for density calculations for development of Residential Uses
within Planning Areas A through I, RMF 1 and RMF 2.
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% 10050% 050% 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.
(b) Each Duplex Dwelling shall be counted as two (2) Dwelling Units.
(c) Each Dwelling Unit in a Multi-family Dwelling shall be counted as one (1)
Dwelling Unit.
6 Clarification was added to address the current status of the Property regarding dirt removal operations occurring after
the approval of the Original PUD Guide, as amended.
1025827.181025827.19 9
(d) Each Primary/Secondary Structure or Structures situated on the same Lot
shall be counted as two (2) Dwelling Units.
(e) Each guest bedroom within a Bed and Breakfast shall be counted one-third
(1/3) of a Dwelling Unit.
(f) Each Temporally Divided Dwelling shall be counted as one (1) Dwelling
Unit.
(g) Vacation Club shall be counted as one (1) Dwelling Unit.
(h) Group Home shall be counted as one (1) Dwelling Unit.
(i) Accommodation Units shall be countedin a particular Hotel, Motel and
Lodge Use shall be counted as the greater of (X) one-third (1/3) Dwelling Unit for each
Accommodation Unit within such Use (any resulting fractional number of Dwelling Units shall be
rounded up or rounded down, as applicable, to the next whole number); or (Y) in accordance with
the following calculation:7
(i) The aggregate Gross Square Footage of all of the Accommodation
Units within the applicable Hotel, Motel and Lodge Use, but specifically excluding
hallways, lobby and reception areas, stairwells, elevator areas, landings and entranceways,
mechanical areas, public restrooms, permanently designated corridors, public lobbies,
common mall areas and all other areas exterior to the individual lodging rooms (the
“Lodging Square Footage”), shall be measured and calculated.
(ii) The Lodging Square Footage shall be divided by 1,800 square feet,
and the result of such calculation shall be the number of Dwelling Units attributable to such
Hotel, Motel and Lodge Use. Any resulting fractional number of Dwelling Units shall be
rounded up or rounded down, as applicable, to the next whole number. [In example, the
Lodging Square Footage of a Hotel, Motel and Lodge Use having 50 Accommodation
Units each measuring 650 square feet of Gross Square Footage and 50 Accommodation
Units each measuring 850 square feet of Gross Square Footage is 75,000 square feet of
Gross Square Footage ((50 X 650) + (50 X 850) = 75,000). Such Hotel, Motel and Lodge
Use shall be counted as 42 Dwelling Units (75,000 / 1,800 = 41.67 (rounded to 42)).]
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
7 The existing PUD Guide provides that each Accommodation Unit in a Hotel, Motel and Lodge Use is counted as 1/3
of a Dwelling Unit (in other words, three Accommodation Units counts as one Dwelling Unit), provided that the
average of all Accommodations Units within such Use does not exceed 600 square feet. However, the existing PUD
Guide does not address how Accommodation Units are calculated if such average exceeds 600 square feet. This
provision corrects the gap in the existing PUD Guide using the calculations generally contemplated by the existing
PUD Guide as follows: Under the existing PUD Guide, three Accommodation Units each comprising 600 square feet
(totaling 1,800 square feet) counts as one Dwelling Unit. Here, dividing the aggregate square footage of the
Accommodation Units by this 1,800 square feet (comprising one Dwelling Unit) results in the number of Dwelling
Units attributable to the particular Hotel, Motel and Lodge Use.
1025827.181025827.19 10
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 be not be 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; and
(vi) Uses which the Director determines to be similar.
(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 Buildings, retail Buildings, Hospital Buildings, 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,
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
1025827.181025827.19 11
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
(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
1025827.181025827.19 12
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 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 60,000 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).
1025827.181025827.19 13
(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) Cabled Telecommunications Equipment, Cabled
Telecommunications Facilities and Cabled Telecommunications Services, each of the
foregoing being subject to review and written approval by the Design Review Board
authorizing such Use.
(x) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, each of the foregoing being subject to review and written
approval by the Design Review Board authorizing such Use..
(xi) Dry Utilities.
(xii) Infrastructure.
(xiii) Indoor recreation and/or entertainment facilities.
(xiv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) Parks and Open Space.
(xvi) Commercial Parking, Private Parking, Public Parking and public
and private transportation and transit facilities, including but not limited to, Parking
Structures, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(xvii) Outdoor Storage, only as an Accessory Use to a retail Use.
(xviii) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xix) Agricultural Use (as an Interim Use only).
(xx) Rodeo and ancillary carnival (as an Interim Use only).
(xxi) Recycling Facility (as an Interim Use only).
(xxii) Snow storage (as an Interim Use only).
1025827.181025827.19 14
(xxiii) Mobile Home office/storage Use and community garden (as an
Interim Use only).
(xxiv) 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.
(xxv) 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 60,000 of
consolidated Gross Square Footage.8
(ii) Educational facilities, including but not limited to, public and
private schools, universities and colleges.
(iii) Automobile Repair Shop (Minor).
(iv) Outdoor entertainment facilities that include the use of amplified
music.
(v) Hospital
(vi) (v) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(vii) (vi) Hotel Uses (including without limitation, hotel Uses comprising
a portion of a Mixed Use Project) which exceed 80 feet in Building Height.
(viii) (vii) Car wash.
(ix) (viii) Drive-in Uses.
(x) (ix) Religious Facility.
(xi) (x) Service Station (for the sale of only electric form of fuel for
motorized vehicles).
(xii) (xi) Restaurants (with drive-through window service).
8 As previously discussed with Council, the Town Attorney and Town staff, special review uses (including uses
relating to maximum building height and maximum gross square footage) have been added to those special review
uses included in the existing PUD. We note that such uses may only be approved by the PZC after a public hearing in
accordance with the terms of this PUD Guide.
1025827.181025827.19 15
(xiii) (xii) Financial institutions (with drive-through window service).
(xiv) (xiii) Recycling Facilities (except as permitted in Section D.2(a)
above).
(xv) (xiv) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(xvi) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing such
Use..
(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.
1025827.181025827.19 16
(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:9
(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
135110 feet as a Special Review Use as specifically identified in Section D.2(b).
(iii) Maximum Site Coverage:10
(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.
9 The existing PUD Guide ties maximum building height to Main Street, distinguishing maximum heights south and
north of Main Street. Although not contemplated by the Settlement Term Sheet, in response to concerns articulated by
the adjacent neighbors with respect to the possibility of increased heights nearer to the southern boundary of Planning
Area A if Main Street is located at such southerly boundary, the Applicant has provided for a 250 foot minimum
distance from the southerly boundary to definitely delineate the locations for the maximum building heights.
10 The existing PUD Guide does not provide for a maximum site coverage or minimum landscaped area. Although not
contemplated by the Settlement Term Sheet, in response to concerns articulated by the adjacent neighbors with respect
to the Applicant’s requested increase in the Commercial Space cap, the Applicant has limited the maximum site
coverage for the southerly portion of Planning A area to 80 percent.
1025827.181025827.19 17
(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, including without
limitation, accessory Commercial Uses, including food and beverage concessions, as may
be mutually approved by the Town and the Design Review Board.11
(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: 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.
11 Accessory Commercial Uses, subject to Design Review Board approval, has been included consistent with the
existing PUD Guide, as modified to reflect the provisions of the Settlement Term Sheet.
1025827.181025827.19 18
(iii) Maximum Site Coverage: 20%12
(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 that have frontage on Main Street.
(iii) Agricultural Use (as an Interim Use only).
(iv) Community Facilities.
(v) Vacation Club and Temporally Divided Dwellings.13
(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, Public Parking, and public
and private transportation and transit facilities, including but not limited to, Parking
Structures, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services (, each of the foregoing being subject
12 Maximum Site Coverage is included to reflect the Settlement Term Sheet discussions and intent of the parties with
respect to development of Planning Area B. The Applicant is willing to further discuss the Maximum Site Coverage
percentage with the Town.
13 We note that interval ownership is permitted by right in the existing PUD Guide. The addition here is consistent
with the existing PUD Guide and accounts for the defined terms included in this PUD Guide.
1025827.181025827.19 19
to review and written approval of such Use by the Design Review Board) authorizing such
Use..
(ix) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services (, each of the foregoing being subject to review and written
approval of such Use by the Design Review Board) authorizing such Use.
(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.14
(xvi) Planning Area C Only:
(1) Pedestrian bridges.
(2) Hotel, Motel and Lodge.
(3) Bed and Breakfast.
(xvii) Planning Area D Only:
(1) Recycling Facility and accessory trash facility (as an Interim
Use only).
(xviii) Accessory Uses and Structures customarily appurtenant to the
foregoing Uses by Right.
(xix) 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) In Planning Area D having frontage on Main Street only:
14 Please see the definition of Home Occupation (Minor) in Exhibit H. It benefits the Town and future Applicants and
residents of the Town to allow these types of home occupations, which will not result in external effects. As a
practical matter, these Uses do and will occur within the Town without regard to zoning.
1025827.181025827.19 20
(1) Hotel, Motel and Lodge.
(2) Bed and Breakfast.
(3) Educational facilities, including but not limited to, public
and private schools, universities, colleges and Child Care Centers.
(4) Hospitals.
(5) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(6) Religious Facilities, museums, libraries and public
buildings.
(7) Outdoor entertainment facilities that include the use of
amplified music (subject to the review and written approval of the Design Review
Board authorizing such Use).
(ii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD, each of the foregoing being
subject to review and written approval by the Design Review Board authorizing such Use..
(iii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being 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.
1025827.181025827.19 21
(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: 48 feet.
(iii) Maximum Site CoverageMinimum Landscaped Area: 8020%15
(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 or state
accredited educational facility serving grades K-12 (or any portion of such grades).
(ii) Agricultural Use (as an Interim Use only).
15 Maximum Site Coverage, as opposed to Minimum Landscaped Area, is utilized throughout the PUD Guide,
consistent with the Development Code with respect to the Town Center.
1025827.181025827.19 22
(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) 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.
(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:
1025827.181025827.19 23
(i) Commercial Uses, provided, however, no single retail business on
Planning Area F shall occupy more than 60,000 of consolidated Gross Square Footage.
(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) Community Facilities.
(vi) 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).
(vii) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, (each of the foregoing being subject to review and written
approval of such Use by the Design Review Board) authorizing such Use.
(viii) Infrastructure.
(ix) Dry Utilities.
(x) Private and public transportation and transit, including without
limitation, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(xi) Religious Facilities, museums, libraries and public buildings.
(xii) Indoor recreation and/or entertainment facilities that do not include
the use of amplified music.
(xiii) Outdoor entertainment facilities that include the use of amplified
music (subject to review and written approval of such Use by the Design Review Board).
(xiv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) Parks and Open Space.
(xvi) Child Care Center.
(xvii) Animal Boarding (excluding outdoor Animal Boarding), subject to
review and written approval by the Design Review Board authorizing such Use
1025827.181025827.19 24
(xviii) Kennels (excluding outdoor Kennels), subject to review and written
approval by the Design Review Board authorizing such Use.
(xix) Construction staging (as an Interim Use only).
(xx) Planning Areas F and I Only:
(1) Recycling Facility.
(xxi) 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.
(xxii) Additional Uses which the Director determines to be similar to the
foregoing Uses by Right.
(xxiii) 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) Single retail businesses on Planning Area F occupying more than
60,000 of consolidated Gross Square Footage.
(ii) Educational facilities including, but not limited to public and private
schools, universities, and colleges.
(iii) Service Station.
(iv) Animal Boarding (outdoor), subject to review and written approval
by the Design Review Board authorizing such Use
(v) Kennels (outdoor), subject to review and written approval by the
Design Review Board authorizing such Use.
(vi) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(vii) 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).
1025827.181025827.19 25
(viii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing such
Use.
(ix) (viii) Planning Areas F, G and H Only:
(1) Animal Boarding (outdoor).
(2) Kennels (outdoor).
(3) Hospitals.
(x) (ix) Planning Area I Only:
(1) Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) which exceed 55 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:
a. Front: 25 feet
1025827.181025827.19 26
b. Side: None16
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) on Planning Area I only: 55
feet, provided that such Uses may 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 on Planning Area I only: 80 feet.
c. All other Commercial Uses: 48 feet.
(2) Industrial Uses: 48 feet.
16 The existing PUD Guide requires a 7.5 foot side setback. The Applicant has proposed a change to no setback
requirement in order to reflect the reality of in-line Commercial development, as has been developed in the Town
Center.
1025827.181025827.19 27
(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 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, provided that
cul-de-sacs may exceed 1,000 feet in length and service not more than 280 Dwelling Units;
provided, however, that the portion of the cul-de-sac that is in excess of 1,000 feet shall not
service Commercial Uses.
(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).
1025827.181025827.19 28
(v) Community Facilities.
(vi) Agricultural Use (as an Interim Use only).
(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services, each of the foregoing being subject to
review and written approval by the Design Review Board authorizing such Use.
(viii) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, each of the foregoing being subject to review and written
approval by the Design Review Board authorizing such Use.
(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) Child Care Center.
(ii) (i) Religious Facilities, 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.
(iv) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing such
Use.
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
1025827.181025827.19 29
(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:
(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.17
17 Consistent with the Settlement Term Sheet, the Applicant has provided for supplemental design standards for Hotel,
Motel and Lodge Uses on Planning Area J, the result of which is that only mid-tier upscale Hotel, Motel and Lodge
Uses may be developed on Planning Area J. Those mid-tier upscale Uses require a minor increase in building height
to accommodate their required prototype buildings. Accordingly, the maximum building height for such Use has been
1025827.181025827.19 30
(iii) Maximum Site CoverageMinimum Landscaped Area: 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.
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) Single-Family Dwelling.
(ii) Duplex Dwelling.
(iii) Primary/Secondary Structure
(iv) Agricultural Use (as an Interim Use only).
(v) 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) authorizing such
Use.
(vi) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, (each of the foregoing being subject to review and written
approval of such Use by the Design Review Board) authorizing such Use.
(vii) Infrastructure.
(viii) Dry Utilities.
(ix) Recreational facilities.
(x) Parks and Open Space.
(xi) Religious Facilities, including without limitation, cemeteries.
increased here, in connection with the provision of the supplemental design standards, to implement the terms of the
Settlement Term Sheet.
1025827.181025827.19 31
(xii) (xi) Conceptual Lot 1 (as depicted on the PUD Master Plan) Only:
Homeowner association facilities including, but not limited to, a caretaker unit (as a
Secondary Structure), clubhouse, recreational facilities and other similar facilities and
amenities.
(xiii) (xii) Accessory Uses and Structures customarily appurtenant to
Uses by Right.
(xiv) (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.
(ii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing such
Use.
(c) Prohibited Uses:
(i) Commercial Uses (except as specifically included in Sections
D.8(a) or D.8(b)).
(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).
(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
1025827.181025827.19 32
utilities, drainage, access, fire and building code regulations, and the flood plain of
live streams.
(ii) Maximum Building Height: 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.
(e) Residential Density Maximum: Until such time as a secondary access road
is constructed, building permits may be issued for noCul-de-sacs may exceed 1,000 feet in length
and service not more than 280 Dwelling Units in the aggregate for Planning Area K and Planning
Area RMF-1.; provided, however, that the portion of the cul-de-sac that is in excess of 1,000 feet
shall not service Commercial Uses those Commercial Uses specifically included in Sections
D.8(a) or D.8(b).
(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) Preschool, nursery school, in-home child care and Child Care
Center.
(iv) Agricultural Use (as an Interim Use only).
1025827.181025827.19 33
(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(vi) Infrastructure.
(vii) Dry Utilities.
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Service, each of the foregoing being subject to
review and written approval by the Design Review Board authorizing such Use.
(ix) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, each of the foregoing being subject to review and written
approval by the Design Review Board authorizing such Use.
(x) (viii) Recreational facilities.
(xi) (ix) Temporary real estate offices and construction offices.
(xii) (x) Residential management office.
(xiii) (xi) Accessory Uses and Structures customarily appurtenant to Uses
by Right.
(xiv) (xii) Additional uses which the Director determines to be similar to
Uses by Right.
(xv) (xiii) Planning Area RMF-1 Only:
(1) Assisted living facilities.
(xvi) (xiv) Planning Area RMF-2 Only:
(1) Pedestrian bridges.
(b) Special Review Uses:
(i) Religious Facilities, museums, libraries and public buildings.
(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).
1025827.181025827.19 34
(v) (vi) Wireless Telecommunications Equipment, (antenna towers
only) and Wireless Telecommunications Facilities and Wireless Telecommunications
Services (antenna towers only), each of the foregoing being subject to review and written
approval of such Use by the Design Review Board) authorizing such Use.
(vi) (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.
(3) Commercial: 48 feet.
(iii) Maximum Site CoverageMinimum Landscaped Area: 8020%.
(iv) Minimum Lot Area: Not applicable.
(e) Residential Density Maximum:
(i) Planning Area RMF-2: 12 Dwelling Units per acre.
1025827.181025827.19 35
(ii) Planning Area RMF-1: 6 Dwelling Units per acre, provided that
until such time as a secondary access road is constructed, building permits may be issued
for nocul-de-sacs may exceed 1,000 feet in length and service not more than 280 Dwelling
Units in the aggregate for Planning Area K and Planning Area RMF-1.; provided, however,
that the portion of the cul-de-sac that is in excess of 1,000 feet shall not service
Commercial Uses except those Commercial Uses specifically included in Sections D.9(a)
or D.9(b).
(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.
(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:
1025827.181025827.19 36
(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.
(v) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and Wireless
Telecommunications Services, each of the foregoing being subject to review and written
approval by the Design Review Board authorizing such Use.
(vi) Infrastructure.
(vii) Dry Utilities.
1025827.181025827.19 37
(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).
(iii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing such
Use.
(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.
1025827.181025827.19 38
(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:
(i) Lakes, ponds, reservoirs and irrigation ditches.
(ii) Park and picnic facilities and related parking.
1025827.181025827.19 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:
(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, as may be amended from time to time.
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.
1025827.181025827.19 40
(b) Staff shall review the Application in accordance with the criteria
established in this section and present the Application at a public hearing, which public hearing
before the Planning and Zoning Commission shall be 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;
(e) A proposed development schedule indicating:
(i) Date of the beginning of the Use and/or construction;
1025827.181025827.19 41
(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.
TheWhen evaluating an Application for a special review use permit, 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 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
1025827.181025827.19 42
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; Applicability.
(a) TheExcept as modified by this Section G, the procedural and substantive
requirements set forth in this Section G constitute the sole and exclusive subdivision regulations
forSection 17.16.070 of the Development Code, as in effect on the date of execution of the
Settlement Term Sheet, as attached as Exhibit I to this PUD Guide, shall apply to 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, as may be amended
from time to time, 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..
Notwithstanding the foregoing, if, subsequent to the Effective Date, the Town amends from time
to time Section 17.16.070 of the Development Code, the Master Developer, in its sole discretion,
may consider amendment of this PUD Guide to incorporate such amended provisions herein,
which amendment(s), if any, shall be processed in accordance with the administrative amendment
procedure set forth in Section H.3.
(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.modified by Section G.1(c), subdivision within all
1025827.181025827.19 43
Planning Areas excepting the Administrative Subdivision Areas shall be in accordance with
Section 7.16.070 of the Development Code.
(c) Notwithstanding any provision of this Section G, subdivisionSubdivision
review and approval shall not be required for any division of land within the The Village (at Avon)
for any of the following:
(i) Creation of a lien, mortgage, deed of trust or any other security
instrument;
(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, if subdivision
review and approval is waived by the Town;
(vii) Correction of a legal description in a prior conveyance, if
subdivision review and approval is waived by the Town;
(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 G.2(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
1025827.181025827.19 44
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 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:
1025827.181025827.19 45
(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;
(viii) Public Improvements Agreement, as applicable;
(ix) Transportation impact study;
(x) Drainage study; and
(xi) Street plan and profiles.
2. Application Submittal Items. With respect to any submittal item for a Final Plat
Application within the Administrative Subdivision Areas required by the Town, if the Applicant
disagrees with the determination of staff or the Director, as applicable, with respect to the necessity
of such submittal item or the required substance or required 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 Final Plat Application and decide upon the appropriateness of
requiring such submittal item or the appropriateness of the required substance andor required
quality of such submittal item, as applicable. 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.
Notwithstanding the foregoing, in no event shall the Town require any submittal item for a Final
Plat Application that relates to matters that are within the exclusive authority of the Design Review
Board to approve, including without limitation, architectural design, landscape design, urban
design and site design.
3. Procedure. Except as set forth in Section G.5, 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. Public hearings shall not be required except as may be
requested by the Applicant. Notice of a subdivision Application shall be posted and mailed to
property owners within the vicinity of the property subject to the applicable Application in
accordance with the requirements of the Development Code. Prior to the Director rendering a
decision to reject or deny an 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
1025827.181025827.19 46
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. The Director shall render a written decision on the Final Plat Application and shall post a
notice of such decision in the same manner as the posting of Town ordinances, and the date of such
posting shall be the date of the final decision of the Director for appeal purposes.
4. (c) Criteria for Review and Approval. TheSubject to this Section G.4, the
Director shall consider the following criteria set forth in Sections 17.16.070(e) and (f) of the
Development Code, as in effect on the date of execution of the Settlement Term Sheet, when
evaluating an Application for Final Plat approval, as modified as follows:
(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;Director shall not consider the review criteria set forth in
the following sections, which sections shall not apply to the Administrative Subdivision
Areas: Sections 17.16.070(e)(5) & (9) and Sections 17.16.070(f)(2) & (3).
(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;
(ii) (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)review criteria set forth in Section 17.16.070(e)(1) is
modified as follows: The proposed subdivision shall comply with all applicable use,
density, development and design standards set forth in this PUD Guide that have not been
1025827.181025827.19 47
otherwise modified or waived through the 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;
andprocess and that would affect or influence the layout of lots, blocks and streets.
Applicants shall not create lots or patterns of lots in the subdivision that will make
compliance with such development and design standards infeasible or impossible.
(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.
(iii) The review criteria set forth in Section 17.16.070(e)(3) is modified
as follows: The subdivision application shall be consistent with the Comprehensive Plan
and other community planning documents, as modified by the Development Plan.
(iv) The review criteria set forth in Section 17.16.070(e)(7) is modified
as follows: The proposed utility and road extensions are consistent with the utility’s
service plan and are consistent with the Comprehensive Plan and the Transportation
Master Plan, as modified by the Development Plan.
(v) The review criteria set forth in Section 17.16.070(f)(4) is modified
as follows: The development will substantially comply with all sections of the
Development Code, as modified by the Development Plan.
5. 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”),18 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;
18 “Required Street Connections” are not addressed in the existing PUD Guide or contemplated by the Settlement
Term Sheet. The Town Attorney, Town staff and the Applicant have discussed including such provisions to add
clarity to what matters are considered material with respect to which Town review and approval process applies to
Applications proposing to alter or modify such matters.
1025827.181025827.19 48
(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.
(vi) Connection across Planning Area J located east of Post
Boulevard/Swift Gulch Road roundabout to northeast corner of the “Forest Service parcel”
located east of Planning Area J and west of Planning Area I.
(c) For any Application for an Administrative Subdivision Area submitted to
Town Council pursuant to Section G.35(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)the requirements 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.
(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.
1025827.181025827.19 49
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)(ivvi) below, which shall be processed as an
administrative amendment application, and an Application meeting the criteria stated in Section
H.3(b)(vivii) 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)(vvi) 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)(vivii) below; or (II) the general criteria for approval set forth
in Section H.3(b)(vivii) below may be processed and approved administratively:
(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, elimination of 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, elimination of 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
1025827.181025827.19 50
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. Any proposed elimination of a Required
Street Connection that is not processed and approved in connection with a Preliminary Plan
or Final Plat shall be subject to the formal amendment process set forth in Section H.2.
(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 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) Certain Text Amendments. Amendments to this PUD Guide as
contemplated by Section A.1 (definitions) and Section G (subdivision) and Section I.15
(affordable housing plan) shall be processed and approved administratively. Any
amendment to this PUD Guide shall be processed and approved administratively. If the
Master Developer, in its sole discretion, submits an Application to the Town to amend this
PUD Guide to substitute Chapter 15.30 of the Municipal Code for the lighting standards set
forth in Exhibit E, such amendment, if any, shall be processed and approved
administratively.
(vii) (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)(vvi) 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
1025827.181025827.19 51
(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)(vivii) 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) through H.3(b)(vivii), 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 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.
1025827.181025827.19 52
(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
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.
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(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, as in effect
on the date of execution of the Settlement Term Sheet.
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. Sign installation shall be subject to the requirements of Section 15.28.050(c) of the
Municipal Code.
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, as may be
amended from time to time, 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
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:
1025827.181025827.19 54
(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, as may be amended
from time to time; 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, provided that such deviations may only be considered b y
the Town for those subject matters expressly set forth in Section 7.16.120; 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 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
1025827.181025827.19 55
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.19
9. 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
(1) All pitched roofs shall be no less than a four-to-twelve (4:12)
slope.
19 This provision is not included in the existing PUD Guide and is not contemplated by the Settlement Term Sheet.
The Applicant has provided this provision for the purpose of addressing certain concerns articulated by the adjacent
neighbors. However, the Applicant notes that it is continuing to evaluate the drafting of this provision.
1025827.181025827.19 56
(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.
10. 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.
11. 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 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.
1025827.181025827.19 57
(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.1211 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.
12. 13. Natural Resource Protection. Development within The Village (at Avon)
PUD shall comply with Section 7.28.100 of the Development Code, as in effect on the date of
execution of the Settlement Term Sheet, 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.
13. 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.
14. 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:
(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
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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.
15. 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.16.15. The obligations set forth in this Section I.1615 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. Notwithstanding the foregoing, if,
subsequent to the Effective Date, the Town amends from time to time Section 17.20.100 of the
Development Code, the Master Developer, in its sole discretion, may consider amendment of this
PUD Guide to incorporate such amended provisions herein, which amendment(s), if any, shall be
processed in accordance with the administrative amendment procedure set forth in Section H.3.
(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) The Master Developer will have an obligation to provide an additional 3223
affordable housing units, or assure that the same are supplied by others, as set forth below and as
follows: The Master Developer will have the obligation to provide such additional 3223
affordable housing units only upon the satisfaction of the conditions precedent as set forth in this
subsection. The Master Developer will have the obligation to provide 13 of the additional 3223
affordable housing units only upon the Town’s issuance of final certificates of occupancy for
Commercial Space within the Property in the aggregate of 750,000 square feet of consolidated
Gross Square Footage. The Master Developer will have the obligation to provide an additional
1310 of such 3223 affordable housing units (for a total of 2623 additional affordable housing units)
only upon the Town’s issuance of final certificates of occupancy for Commercial Space within the
Property in the aggregate of 850,000825,000 square feet of consolidated Gross Square Footage.
The Master Developer will have the obligation to provide an additional 6 of such 32 affordable
housing units (for a total of 32 additional affordable housing units) only upon the Town’s issuance
of final certificates of occupancy for Commercial Space within the Property in the aggregate of
900,000 square feet of consolidated Gross Square Footage.20
20 In connection with the Applicant’s request of an increase in the Commercial Space cap of 250,000 square feet, the
Applicant proposes providing additional affordable housing units calculated in accordance with the are requirements
of the Municipal Code, as currently in effect. The Applicant notes, however, that the 500 units required under the
1025827.181025827.19 59
(c) 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.
(d) 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.
(e) 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 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.
existing PUD Guide exceeds the number of units required for the Project as proposed by this PUD Guide, as calculated
in accordance with the Municipal Code, as currently in effect.
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(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.
(f) In accordance with the terms of the Original PUD, a minimum of 100
affordable housing units were constructed in conjunction with the initial phase of commercial
and/or residential construction within the Project, and the Master Developer has fully satisfied all
obligations under this PUD Guide with respect to timing of construction of all affordable housing
units required to be provided by the Master Developer (or others), including without limitation, the
affordable housing units described in Section I.1615(b), as set forth in this Section I.1621.15.
16. 17. Provision of Certain Amenities.
(a) Community Park (Planning Area P3).
(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.
21 This provision is in the existing PUD Guide and has been reinserted, updated and revised to reflect satisfaction of
the prior provision of the required initial 100 affordable housing units and to include reference to the new additional 32
affordable housing units.
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(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:22
(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.
(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
22 The Applicant acknowledges the Town Attorney’s prior comment that the Town Attorney and Town staff requested
this language be included but that it is not contemplated by the Settlement Term Sheet, and, as a result, the Town
Attorney’s suggested deletion of the language. Notwithstanding the foregoing, the Applicant remains agreeable to the
inclusion of the language in this PUD Guide as previously requested.
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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.
1025827.181025827.19 A-1
EXHIBIT A
Legal Description
1025827.181025827.19 A-2
1025827.181025827.19 A-3
1025827.181025827.19 B-1
EXHIBIT B
PUD Master Plan
[to be inserted]
1025827.181025827.19 C-1
EXHIBIT C
The Village (at Avon) Parking Regulations
1025827.181025827.19 C-2
1025827.181025827.19 C-3
1025827.181025827.19 C-4
1025827.181025827.19 C-5
1025827.181025827.19 C-6
1025827.181025827.19 C-7
1025827.181025827.19 D-1
EXHIBIT D
Wildlife Mitigation Plan
1025827.181025827.19 D-2
1025827.181025827.19 D-3
1025827.181025827.19 D-4
1025827.181025827.19 D-5
1025827.181025827.19 D-6
1025827.181025827.19 D-7
1025827.181025827.19 D-8
1025827.181025827.19 D-9
1025827.181025827.19 D-10
1025827.181025827.19 D-11
1025827.181025827.19 D-12
1025827.181025827.19 D-13
1025827.181025827.19 D-14
1025827.181025827.19 D-15
1025827.181025827.19 E-1
EXHIBIT E
Minimum Design Guideline Standards
1025827.181025827.19 E-2
1025827.181025827.19 E-3
1025827.181025827.19 E-4
1025827.181025827.19 E-5
1025827.181025827.19 E-6
1025827.181025827.19 E-7
1025827.181025827.19 E-8
1025827.181025827.19 E-9
1025827.181025827.19 E-10
1025827.181025827.19 E-11
1025827.181025827.19 E-12
1025827.181025827.19 E-13
1025827.181025827.19 E-14
1025827.181025827.19 E-15
1025827.181025827.19 E-16
1025827.181025827.19 E-17
1025827.181025827.19 F-1
EXHIBIT F
Street Standards
1025827.181025827.19 F-2
1025827.181025827.19 F-3
1025827.181025827.19 F-4
1025827.181025827.19 F-5
1025827.181025827.19 F-6
1025827.181025827.19 F-7
1025827.181025827.19 F-8
1025827.181025827.19 F-9
1025827.181025827.19 F-10
1025827.181025827.19 F-11
1025827.181025827.19 F-12
1025827.181025827.19 F-13
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1025827.181025827.19 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, §
7.24.050,7.24.050(a) and (b), § 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
(n) (o) § 7.28.070(2b) & (34) Retaining Walls
(o) § 7.28.060 Screening
(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) §§ 7.28.100(a)(3)(xiii)(E) Natural Resource Protection (only with respect to
Planning Areas I, K and RMF-1)
1025827.181025827.19 G-2
(s) (r) §§ 7.32.010(c)(2) & (6) Engineering Improvement Standards: Standards and
Specifications
(t) (s) § 7.32.030(l) Engineering Improvement Standards: Streets; Grades, Curves,
and Sight Distances
(u) (t) § 7.32.030(m) Engineering Improvement Standards: Streets; Cul-de-sacs
(v) (u) § 7.32.040(c) Paved Trail Design: Minimum Width
(w) (v) § 7.32.040(e) Paved Trail Design: Grades
(x) (w) § 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, subject to the provisions of [Section 3.9(b)] of the
Development Agreement)
(y) (x) § 7.32.090 Park Land Dedication, subject to the provisions of [Section 3.9(b)]
of the Development Agreement
(z) (y) § 7.40 1041 Regulations
2. Other Municipal Code Provisions:
(a) Chapter 3.40 Impact Fees, subject to the provisions of [Section 3.9(b)] of the
Development Agreement
(b) Chapter 8.32 Wildlife Protection
(c) Chapter 15.28 Sign Code (excluding Section 15.28.050(c) (sign installation
permit))
(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, subject to the
provisions of [Section 3.9(b)] of the Development Agreement.
(f) Pursuant to Section I.1615 of this PUD Guide, any affordable housing, attainable
housing and/or employee workforce housing provisions of the Municipal Code,
subject to the provisions of [Section 3.9(b)] of the Development Agreement.
3. Any other provision of the Municipal Code expressly superseded in whole or in part
pursuant to any other provision of this PUD Guide.
1025827.181025827.19 H-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, as may be amended from time to time, 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.1615 of this PUD Guide, which expressly
supersede any additional or conflicting provisions of the Municipal Code, as may be amended
from time to time.
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
1025827.181025827.19 H-2
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, as may be
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 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.
1025827.181025827.19 H-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, as in effect on the Effective Date), 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.
1025827.181025827.19 H-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;
(b) Animal Boarding;
1025827.181025827.19 H-5
(c) assisted living facility;
(d) Automobile Repair Shop (Major or Minor);
(e) bakeries;
(f) bar and tavern;
(g) barber and beauty shops;
(h) Bed and Breakfast;
(i) beverage stores, coffee shops;
(j) Bus Stop;
(k) business and professional offices;
(l) Cabled Telecommunications Equipment;
(m) Cabled Telecommunications Facilities;
(n) Cabled Telecommunications Services;
(o) car wash (as the Principal Use);
(p) Child Care Center;
(q) cinema;
(r) clinic, intermediate medical care facility, urgent care facility, rehabilitation centers
and x-ray/MRI centers (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
(aa) Extended Stay Hotel;
1025827.181025827.19 H-6
(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, group and congregate care facilities and nursing homes (but specifically
excluding clinic, laboratory, medical and dental offices, urgent care and assisted
and independent living facilities);
(kk) independent living facility;
(ll) indoor entertainment facility;
(mm) indoor storage;
(nn) Kennels;
(oo) laboratory;
(pp) landscaping and snow removal services;
(qq) laundromat/dry cleaning;
(rr) long-term care facilities and other medical facilities including, but not limited to,
group and congregate care facilities, nursing homes and independent living
facilities;
(ss) (rr) Medical Marijuana Businesses;
(tt) (ss) medical and dental offices;
(uu) (tt) meeting facility;
(vv) (uu) newspaper and commercial printing shops;
(ww) (vv) Nude Entertainment Establishments;
1025827.181025827.19 H-7
(xx) (ww) nursery or garden supply;
(yy) (xx) Outdoor Storage;
(zz) (yy) pet shop (for the sale of pets, pet supplies and/or for domesticated animal
grooming)
(aaa) (zz) professional offices;
(bbb) (aaa) real estate sales offices;
(ccc) (bbb) photocopy and blueprint businesses;
(ddd) (ccc) Public Facilities;
(eee) (ddd) Private Parking;
(fff) (eee) Public Parking;
(ggg) (fff) Recycling Facility;
(hhh) (ggg) Recycling Processing Facility;
(iii) (hhh) Religious Facility;
(jjj) (iii) repair shops, small electronics repair;
(kkk) (jjj) Restaurants;
(lll) (kkk) Retail sales, specialty and gift shops; ski tuning; bike assembly
(mmm)(lll) service and social clubs;
(nnn) (mmm) Service Stations;
(ooo) (nnn) Studios (music, dancing, photography, movie, art and broadcasting)
(ppp) (ooo) tailor, seamstress, clothing alterations
(qqq) (ppp) tattoo parlor, body piercing
(rrr) (qqq) Temporally Divided Dwelling
(sss) (rrr) theaters;
(ttt) (sss) trade schools and colleges;
(uuu) (ttt) Transit Shelter;
(vvv) (uuu) Wireless Telecommunications Equipment;
1025827.181025827.19 H-8
(www) (vvv) Wireless Telecommunications Facilities;
(xxx) (www) Wireless Telecommunications Services;
(yyy) (xxx) Vacation Clubs;
(zzz) (yyy) 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 Comprehensive Plan, Town of Avon, Colorado, 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.
1025827.181025827.19 H-9
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-WMT LLC.
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, as
amended from time to time, 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 may be amended from time to time; and (ii) the
Development Agreement, as may be amended from time to time.
Development Standards means the planning requirements and regulations governing the
development of the Property as set forth in Section D, Development Standards within The Village
(at Avon) PUD, and Section I, Supplemental Regulations, 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.
1025827.181025827.19 H-10
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 more than one
(1) primary indoor kitchen (i.e.,provided that secondary “kitchenettes” such as 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
1025827.181025827.19 H-11
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 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. Hospitals expressly exclude Uses not incorporated into an institution providing health
services primarily for human inpatient medical or surgical care, including without limitation, the
following: long-term care facilities, group and congregate care facilities, nursing homes, assisted
and independent living facilities, clinics, laboratory, medical and dental offices, urgent care,
rehabilitation centers and x-ray/MRI centers.
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
1025827.181025827.19 H-12
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
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, as may be amended from time to
time, 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 landSite 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; and pedestrian hardscaping features such as
sidewalks and plazas; but shall not include parking areas and drive lanes.
Lodging Square Footage has the meaning set forth in Section B.8(i)(i) of this PUD Guide.
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
1025827.181025827.19 H-13
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 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, as amended
from time to time, unless otherwise stated.
1025827.181025827.19 H-14
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, as in effect
on the Effective Date.
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, 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, as may be amended
from time to time (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.
1025827.181025827.19 H-15
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 25%
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
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.
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 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
1025827.181025827.19 H-16
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,
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
1025827.181025827.19 H-17
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:
(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.35(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.
1025827.181025827.19 H-18
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.
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.1312 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.109 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 may be
amended from time to time), 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
1025827.181025827.19 H-19
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.
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 may be
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.
1025827.181025827.19 H-20
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.
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, as may be amended from time to time.
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 Equipment 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.
1025827.19 I-1
EXHIBIT I
Section 7.16.070 of Development Code
7.16.07 Subdivisions.
The purpose of the subdivision review procedures is to ensure compliance with all the standards and
requirements in this Development Code and encourage quality development consistent with the goals,
policies and objectives in the Comprehensive Plan.
(a) Applicability. The procedures of this Section and the standards in Chapter 7.32, Engineering
Improvement Standards, shall apply to all subdivisions or re-subdivisions that result in the portioning,
dividing, combining or altering of any lot, parcel or tract of land, including land used for condominiums,
apartments or any other multiple dwelling units or creation of an estate in airspace, except any subdivisions
that are specifically excluded by state law. If a tract of land that has been created or subdivided in the past
is later described as a single tract in deeds or plat by the legal or equitable owners, any later subdivisions of
that tract, even if along the lines of the earlier subdivision, shall be subject to the requirements of these
regulations. If any tract of land or airspace has been subdivided as one (1) type of subdivision and thereafter
is subdivided so as to create a different type of subdivision (for example, conversion of a condominium
subdivision to a timesharing subdivision), the conversion shall be subject to the requirements of this
Development Code. Unless the method of disposition is adopted for the purpose of evading the
requirements of the Development Code, this procedure shall not apply to any division of land that:
(1) Is created by a lien, mortgage, deed of trust or any other security instrument;
(2) Is created by any interest in an investment entity;
(3) Creates cemetery lots;
(4) Creates an interest or interests in oil, gas, minerals or water that are severed from the surface
ownership of real property;
(5) Is created by the acquisition of an interest in land in the name of a husband and wife or other
persons in joint tenancy or as tenants in common of such interest. For the purpose of this Paragraph,
any interest in common owned in joint tenancy shall be considered a single interest;
(6) Creates a leasehold interest with a term of less than twenty (20) years and involves no change
in use or degree of use of the leasehold estate;
(b) Subdivision Categories. Categories of subdivisions are established and defined as follows for the
purpose of determining the appropriate subdivision review procedure:
(1) Major Subdivision. Major subdivisions include all subdivisions which would create four (4)
or more separate parcels of land or which would require or which propose public improvements.
(2) Minor Subdivision. Minor subdivisions include all subdivisions which would create less than
four (4) separate parcels of land, subdivisions which do not require or propose public improvements,
subdivisions which consolidate two (2) or more lots into a single lot in a previously recorded
subdivision plat and subdivisions which move any lot lines by more than two (2) feet; but shall not
include subdivisions which are administrative subdivisions. Condominiums and timeshare
subdivisions more than four (4) units which do not propose public improvements shall be processed as
minor subdivisions.
1025827.19 I-2
(3) Administrative Subdivisions. Administrative subdivisions are subdivisions which include
dividing a parcel of land for a duplex, subdivisions for the purpose of correcting survey errors,
condominium and timeshare subdivisions up to four (4) units and subdivisions which adjust lot lines by
two (2) feet or less and which do not change the number of lots. The Director shall have the authority to
determine that an administrative subdivision application shall be processed as a minor subdivision
where the character of the subdivision application or multiple applications presents issues which
warrant review and approval by the Town Council. All administrative subdivisions are exempt from
notice requirements outlined in Subsection 7.16.020(d).
(c) Review Procedures. Applications for a subdivision shall follow the general review procedures set
forth in Section 7.16.020, General Procedures and Requirements. Applications for subdivision must be
initiated by the owner of the real property. The Director may combine preliminary plan and final plat
review where the subdivision application can be reviewed efficiently and effectively with a combined
process. Where subdivision approval will be required to implement development in a proposed PUD, the
applicant shall file a single preliminary plan incorporating the application requirements of both the PUD
and subdivision preliminary plans. The provisions and procedures for public notice, hearing and review for
a PUD as prescribed in the Development Code shall apply to the application.
(d) Review Authority. The review authority for a subdivision application shall be determined by the
subdivision category.
(1) Major Subdivision. Major subdivisions shall be required to obtain approval for a preliminary
plan and for a final plat. The PZC shall review a preliminary plan for a major subdivision application
and shall provide a recommendation to the Town Council after conducting a public hearing. The Town
Council shall render the final decision on a preliminary plan for a major subdivision application after
conducting a public hearing. The Town Council shall review the final plat for major subdivision
applications and render a final decision after conducting a public hearing. The preliminary plan and
final plat for major subdivisions shall be approved by resolution or ordinance of the Town Council.
(2) Minor Subdivision. Minor subdivisions shall require final plat review and approval only
where no public improvements are proposed; however, the review criteria for a preliminary plan shall
apply to review of minor subdivision final plats in addition to the review criteria for a final plat. The
Town Council shall render the final decision on a minor subdivision application after conducting a
public hearing. Minor subdivisions shall be approved by resolution or ordinance of the Town Council.
(3) Administrative Subdivisions. Administrative subdivisions shall require final plat review and
approval only; however, the review criteria for a preliminary plan shall apply to review of
administrative subdivisions in addition to the review criteria for a final plat. The Director shall review
and render decisions on administrative subdivisions. A decision of the Director may be appealed to the
Town Council pursuant to Section 7.16.160, Appeal.
(e) Preliminary Plan Review Criteria. The reviewing authority will use the following review criteria as
the basis for recommendations and decisions on applications for preliminary plan subdivision applications:
(1) The proposed subdivision shall comply with all applicable use, density, development and
design standards set forth in this Development Code that have not otherwise been modified or waived
pursuant to this Chapter and that would affect or influence the layout of lots, blocks and streets.
Applicants shall not create lots or patterns of lots in the subdivision that will make compliance with
such development and design standards difficult or infeasible;
(2) The subdivision application shall comply with the purposes of the Development Code;
1025827.19 I-3
(3) The subdivision application shall be consistent with the Avon Comprehensive Plan and other
community planning documents;
(4) The land shall be physically suitable for the proposed development or subdivision;
(5) The proposed subdivision shall be compatible with surrounding land uses;
(6) There are adequate public facilities for potable water supply, sewage disposal, solid waste
disposal, electrical supply, fire protection and roads and will be conveniently located in relation to
schools, police, fire protection and emergency medical services;
(7) The proposed utility and road extensions are consistent with the utility’s service plan and are
consistent with the Avon Comprehensive Plan and Comprehensive Transportation Master Plan;
(8) The utility lines are sized to serve the ultimate population of the service area to avoid future
land disruption to upgrade under-sized lines;
(9) The subdivision is compatible with the character of existing land uses in the area and shall not
adversely affect the future development of the surrounding areas;
(10) A proposed subdivision for an existing PUD shall be consistent with the relevant PUD Master
Plan as reflected in the approval of that PUD;
(11) Appropriate utilities, including water, sewer, electric, gas and telephone utilities, shall provide
a “conditional capacity to serve” letter for the proposed subdivision;
(12) That the general layout of lots, roads, driveways, utilities, drainage facilities and other services
within the proposed subdivision shall be designed in a way that minimizes the amount of land
disturbance, minimize inefficiencies in the development of services, maximizes the amount of open
space in the development, preserves existing trees/vegetation and riparian areas, protects critical
wildlife habitat and otherwise accomplishes the purposes of this Development Code.
(13) Evidence that provision has been made for a public sewage disposal system or, if other
methods of sewage disposal are proposed, adequate evidence that such system shall comply with state
and local laws and regulations;
(14) 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 these areas are compatible with such conditions or that adequate mitigation is
proposed;
(15) The subdivision application addresses the responsibility for maintaining all roads, open spaces
and other public and common facilities in the subdivision and that the Town can afford any proposed
responsibilities to be assumed by the Town;
(16) If applicable, the declarations and owners’ association are established in accordance with the
law and are structured to provide adequate assurance that any site design standards required by this
Development Code or conditions of approval for the proposed subdivision will be maintained or
performed in a manner which is enforceable by the Town; and
1025827.19 I-4
(17) As applicable, the proposed phasing for development of the subdivision is rational in terms of
available infrastructure capacity and financing.
(f) Final Plat Review Criteria. After approval of a preliminary plan, the applicant may submit an
application for a final plat. The following criteria shall apply to review of a final plat subdivision
application:
(1) The Town Engineer shall compare the legal description of the subject property with the
County records to determine that:
(i) The property described contains all contiguous single ownership and does not create a
new or remaining unrecognized parcel of less than thirty-five (35) acres in size;
(ii) The lots and parcels have descriptions that both close and contain the area indicated; and
(iii) The plat is correct in accordance with surveying and platting standards of the State.
(2) The final plat conforms to the approved preliminary plan and incorporates all recommended
changes, modifications and conditions attached to the approval of the preliminary plan;
(3) The final plat conforms to all preliminary plan criteria;
(4) The development will substantially comply with all sections of the Development Code;
(5) The final plat complies with all applicable technical standards adopted by the Town; and
(6) Appropriate utilities shall provide an ability to serve letters, including but not limited to water,
sewer, electric, gas and telecommunication facilities.
(g) Public Improvements Guarantee. Guarantees for public improvements shall comply with
Subsection 7.32.100(c).
(h) Revocation. An approval of a final plat is revoked pursuant to this Section.
(1) Recording. The applicant shall cause the final plat and restrictive covenants, if any, to be
recorded within ninety (90) days from the date of approval and acceptance of the Council. In the event
that the plat is not recorded, the approval of the Council shall be deemed to be void and such plat shall
not thereafter be recorded, unless and until the Mayor executes a written authorization for recording the
final plat.
(2) Vacation. The final plat approval shall include a determination of a reasonable time by which
the project should be completed. All plats given final approval shall contain a notation indicating the
date by which a project is expected to be completed, that shall be prima facie evidence of a reasonable
time by which the project should have been completed. A plat or any portion thereof that has been
finally approved by the Council and has been recorded shall be subject to vacation proceedings if the
project that is the subject of the subdivision is not completed within the time set by Council.
(3) Extension. Extensions of the time limit for project completion may be obtained from the
Council for good cause shown, upon request by the applicant or owner of the tract, if made before the
vacation proceedings are instituted. (Ord. 10-14 §3)
Document comparison by Workshare Compare on Thursday, October 18, 2012
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Input:
Document 1 ID PowerDocs://DENVER01/1025827/1
Description DENVER01-#1025827-v1-New_Amended_and_Restated_
PUD_Guide
Document 2 ID PowerDocs://DENVER01/1025827/3
Description DENVER01-#1025827-v3-New_Amended_and_Restated_
PUD_Guide
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1014810.4
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.
(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
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1014810.4
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.
(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
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1014810.4
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 EF (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.
(c) If requested by the Town, The Village (at Avon) shall coordinate with the
Town and the CDOW with respect to the installation of a double-wide cattle guard in the general
vicinity of the Interstate 70 and Post Boulevard interchange.
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 an
access trail/path/emergency vehicle access connecting Planning Area RMF-2 to OS-2 and P-3.
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1014810.4
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.
(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 excluded
from utility corridors. Re-planting along road shoulders can exclude trees and shrubs to maximize
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1014810.4
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.
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
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1014810.4
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
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.
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1014810.4
(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 EF (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.
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
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1014810.4
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.
Document comparison by Workshare Compare on Wednesday, October 17, 2012
4:46:20 PM
Input:
Document 1 ID PowerDocs://DENVER01/1014810/3
Description DENVER01-#1014810-v3-VaA_-_Wildlife_Mitigation_Plan
_(PUD_Guide_Exhibit_D)
Document 2 ID PowerDocs://DENVER01/1014810/4
Description DENVER01-#1014810-v4-VaA_-_Wildlife_Mitigation_Plan
_(PUD_Guide_Exhibit_D)
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1011313.101011313.11
A. Street Design and Improvement Standards. Development within The Village (at
Avon) shall comply with the street design and improvement standards contained
within Sections 7.28 and 7.32 of the Development Code, as modified by the
standards set forth in this Exhibit F.
1. Street Descriptions and Types.
(i) Post Boulevard (constructed): this Urban Arterial Road
extends south from Swift Gulch Road (constructed) to US 6 and has an
interchange with I-70. Curb, gutter, and attached sidewalks are provided
along both sides of the roadway, and on the eastern side only between
Fawcett Rd. and Yoder Ave., within an 84’ - 100’ R.O.W. The posted speed
limit on Post Boulevard is 30 MPH, changing to 35 MPH at the north end.
(ii) Yoder Avenue (constructed): this Urban Collector
Cul-de-sac Road extends east from Post Boulevard (constructed) to the
Cul-de-sac. Curb, gutter, and attached sidewalks are provided along both
sides of the roadway, and on the south side only from Fawcett Rd. to the
cul-de-sac, within a 60’ R.O.W. A center turn lane is provided. The posted
speed limit is 25 MPH.
(iii) Fawcett Road (constructed): this Urban Collector Road
extends between Post Boulevard (constructed) and Yoder Avenue
(constructed). Curb, gutter, and sidewalk are provided along both sides of
the roadway, and along the western side only from the Wal-Mart entry to
Yoder Ave., with-in a 60’ – 71’ R.O.W. A center turn lane is provided. The
posted speed limit is 25 MPH.
(iv) East Beaver Creek Boulevard (temporary): this Rural Local
Road extends from Avon Road to Post Boulevard (constructed). The posted
speed limit of 30 MPH.
(v) Swift Gulch Road (constructed): this Rural Local Road
extends from Avon Road to Post Boulevard (constructed). An 8’ wide
multi-use trail exists within the varying width R.O.W.
(vi) East Beaver Creek Boulevard (conceptual): this Urban
Local Road extends from Avon Road at the western edge of Lot 1, to Post
Boulevard (constructed). Curb, gutter, and sidewalk shall be provided along
the roadway, within a 50’ (min.) R.O.W. as generally depicted on the
conceptual illustration attached as a part of this Exhibit F (illustration 7 or
8).
(vii) Main Street (conceptual): this Urban Local Road extends
from the western edge of Lot 1 at Chapel Place to the roundabout at Post
Boulevard (constructed). Curb, gutter, and sidewalk shall be provided along
the roadway, within a 50’ (min.) R.O.W. for the eastern and western
segments, and 80’ (min.) R.O.W. for the central segment as generally
1011313.101011313.11
depicted on the conceptual illustration attached as a part of this Exhibit F
(for the central segment; illustration 2, 3, or 4; for the western segment
illustration 5, or 6, for the eastern segment illustration 7 or 8).
(viii) Swift Gulch Road (conceptual): this Rural Local Road
extends east from the roundabout at Post Blvd. (constructed) through
Planning Area J, the United States Forest Service parcel, to Planning Area I.
Paved shoulders, and either a bike lane or a multi-use trail shall be provided
within a 50’ (min.) R.O.W. as generally depicted on the conceptual
illustration attached as a part of this Exhibit F (illustration 10, 11, or 12).
The bike lane or multi-use trail, or applicable phase thereof, shall be
provided in connection with and contemporaneously with the construction
of Swift Gulch Road, or applicable phase thereof.
(ix) Road A (conceptual): this Urban Local Road extends from
East Beaver Creek Blvd. (conceptual) to Main Street (conceptual). Curb,
gutter, and sidewalk shall be provided along both sides of the roadway,
within a 50’ (min.) R.O.W. as generally depicted on the conceptual
illustration attached as a part of this Exhibit F (illustration 5 or 6).
(x) Road B (conceptual): this Urban Local Road extends from
the western roundabout of Main Street (conceptual) to the eastern
roundabout of Main Street (conceptual). Curb, gutter, and sidewalk shall be
provided along one side of the road, within a 50’ (min.) R.O.W. as generally
depicted on the conceptual illustration attached as a part of this Exhibit F
(illustration 5, 6, or 9).
(1) At the option of the applicant this may be designated
as a one-way street.
(xi) Road C (conceptual): this Urban Local Cul-de-sac Road
extends north from the eastern roundabout of Main Street (conceptual) to
the cul-de-sac. Curb, gutter, and sidewalk shall be provided along both
sides of the road, within a 50’ (min.) R.O.W. as generally depicted on the
conceptual illustration attached as a part of this Exhibit F (illustration 5 or
6).
(xii) Road D (conceptual): this Rural Local Cul-de-sac Road
extends east from East Beaver Creek Blvd. (conceptual) to the cul-de-sac.
Hard shoulders and a pedestrian path (attached or separated) shall be
provided, within a 50’ (min.) R.O.W. as generally depicted on the
conceptual illustration attached as a part of this Exhibit F (illustration 10 or
12).
(xiii) Road E (conceptual): this Rural Local Cul-de-sac Road
extends north and east from the roundabout at Post Blvd. (constructed) and
Swift Gulch Rd. (constructed) to the cul-de-sac. paved shoulders shall be
1011313.101011313.11
provided, within a 50’ (min.) R.O.W. as generally depicted on the
conceptual illustration attached as a part of this Exhibit F (illustration 10 or
12 for that section of the road below RMF-1, and illustration 10 for that
section of road above RMF-1).
(xiv) Spur Roads F-N (conceptual): these Rural Local Cul-de-sac
Roads extend from Road E (conceptual) to their cul-de-sacs. Paved
shoulders shall be provided, within a 50’ (min.) R.O.W. as generally
depicted on the conceptual illustration attached as a part of this Exhibit F
(illustration 10).
(xv) Roads located within Planning Areas I, K, and RMF-1
(conceptual): Any additional roads not currently designated shall be Rural
Local Roads with paved shoulders within a 50’ (min.) R.O.W. as generally
depicted on the conceptual illustration attached as a part of this Exhibit F
(illustration 10 or 12).
2. The engineering, installation and construction of any road within The
Village (at Avon) may, at the discretion of the Applicant, be phased. Only
the portion of a road that is necessary to serve the property that is the subject
of the applicable Application shall be required to be engineered, installed
and constructed in connection with the development of such property;
provided, however, if any such road is depicted on the PUD Master Plan to
extend and continue further than such phase, the Applicant shall submit
Preliminary Engineering for the extended road as a part of its Application in
accordance with Section A.4(g) of the PUD Guide.
3. Modifications to Street Standards.
(a) Minimum Driving Surface: 22 feet
(i) Except, those lots within PA-K, above RMF-1, which are
limited to 20 feet per Exhibit D, Wildlife Mitigation Plan.
(b) Minimum Shoulder: 2 feet each side, paved
(i) Shoulders shall not be required if curb and gutter are
installed. Median areas shall not require a sidewalk and, if curb and gutter is
installed, shall not require a shoulder.
(c) Design Speed: 30 MPH except as listed below
(i) Post Boulevard (constructed): 35 MPH
(ii) East Beaver Creek Boulevard (temporary): 35 MPH
(iii) Spur roads F – N (conceptual): 25MPH
1011313.101011313.11
(d) Maximum Grade: 6% except as listed below
(i) East Beaver Creek Blvd.: 8%, provided that:
(1) the grade is not maintained for a distance in excess of
500 feet; and
(2) no spur roads or driveways will have access points
during the run of 8%; provided, however, reduction of the grade to
6% at a spur road or driveway access points and thereafter returning
the grade to 8% shall be permitted.
(ii) Swift Gulch Road (conceptual): 10%, provided that:
(1) the grade is not maintained for a distance in excess of
800 feet; and
(2) no spur roads or driveways will have access points
during the run of 10%; provided, however, reduction of the grade to
8% at a spur road or driveway access points and thereafter returning
the grade to 10% shall be permitted.
(iii) Spur Road F (conceptual): 10%
(iv) Road E (conceptual): 10%, provided that:
(1) the grade is not maintained for a distance in excess of
800 feet; and
(2) no spur roads or driveways will have access points
during the run of 10%; provided, however, reduction of the grade to
8% at a spur road or driveway access points and thereafter returning
the grade to 10% shall be permitted.
(e) Minimum Curve Radius: 100 feet
(i) The driving width does not included curve widening if
required by AASHTO.
(f) Minimum Site Distance: 200 feet
(g) Cul-de-Sacs
(i) Cul-de-sacs within Planning Area C may exceed 1,000 feet
in length; provided, however, they shall not serve more than 450 Dwelling
Units. The portion of any such cul-de-sac serving 250 or more Dwelling
Units shall be constructed to Rural Collector Road, and the portion of such
1011313.101011313.11
cul-de-sac serving less than 250 Dwelling Units shall be constructed to
Rural Local Road.
(ii) Cul-de-sacs located north of Interstate 2570 may exceed
1,000 feet in length and service not more than 280 Dwelling Units;
provided, however, the portion of any such cul-de-sac that is in excess of
1,000 feet shall not serve Commercial Uses except those Commercial Uses
specifically included in Sections D.8(a), D.8(b), D.9(a) or D.9(b) of this
PUD Guide.1
(h) Retaining walls
(i) Retaining walls over four feet in height or any wall
supporting a vehicular load or structure shall be structurally designed and
certified by a Colorado licensed professional engineer.
(ii) Retaining walls over ten (10) feet that support naturally
occurring topography and other site development constraints shall be
designed with a series of retaining walls with landscaped terraced steps.
The width of the terrace between any two ten (10)-foot vertical walls shall
be at least four (4) feet. Retaining walls higher than ten feet shall be
separated from any other retaining wall by a minimum of five (5) feet
horizontally. Terraces created between the retaining walls shall be
permanently landscaped.
(iii) Retaining walls supporting a vehicular load or structure
(below-road retaining wall) shall not exceed twenty-nine (29) feet in height.
Retaining walls supporting naturally occurring topography (above-road
retaining wall) shall not exceed twenty-nine (29) feet in height. An
above-road retaining wall and a below-road retaining wall meeting the
above requirements may abut the same portion of the right-of-way or road
(such that they are above and below, respectively, the same right-of-way or
road). The Town Planning and Zoning CommissionDirector shall have the
authority to review and approve retaining walls that exceed the foregoing
height limitation. Notwithstanding the foregoing to the contrary, retaining
walls occurring along Road E (conceptual) between SP 241.00 and SP
260.00 (as generally depicted on the conceptual illustration map of the
Project included in this Exhibit F) shall have no height restrictions.
4. Dedication to Town. All streets installed and constructed in accordance
with the street design and improvement standards contained within Sections
7.28 and 7.32 of the Development Code, as modified by this Exhibit F,
shall be accepted by the Town for ownership and maintenance in
accordance with the terms and conditions of the applicable Public
Improvements Agreement.
1 This provision is in the existing PUD Guide and has been reinserted.
1011313.101011313.11
5. Implementation of Settlement Term Sheet. With respect to streets to serve
Planning Areas K and RMF-1, the modifications set forth in this Exhibit F
to the street design and improvement standards contained within Sections
7.28 and 7.32 of the Development Code are intended to implement the
terms of the Settlement Term Sheet in order that, among other matters,
access be provided to the Uses permitted on Planning Areas K and RMF-1
pursuant to the Development Standards. As detailed engineering cannot be
accomplished with respect to such streets as of the Effective Date, it is the
Master Developer’s and the Town’s intent that this Exhibit F be modified
from time to time, as reasonably necessary, in order to provide for such
financially feasible access, all in accordance with the applicable procedures
as set forth in this PUD Guide.
Document comparison by Workshare Compare on Wednesday, October 17, 2012
3:41:28 PM
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_Street_Standards
Document 2 ID PowerDocs://DENVER01/1011313/11
Description DENVER01-#1011313-v11-VaA_-_PUD_Guide_Exhibit_F
_Street_Standards
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Version 19 – October 18, 2012
1025827.19
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.
TABLE OF CONTENTS
Page
-i-
1025827.19
A. PURPOSE/GENERAL PROVISIONS .............................................................................. 1
1. Defined Terms ....................................................................................................... 1
2. Purpose ................................................................................................................... 1
3. Vested Property Rights .......................................................................................... 2
4. General Provisions ................................................................................................. 3
5. Applicability of Other Regulations ........................................................................ 6
6. Conflict .................................................................................................................. 6
B. TOTAL PERMITTED DENSITY ..................................................................................... 6
C. GENERAL LAND USE DESIGNATIONS .................................................................... 10
1. Designations ......................................................................................................... 10
2. Permitted Uses ..................................................................................................... 11
D. DEVELOPMENT STANDARDS WITHIN THE VILLAGE (AT AVON) PUD .......... 11
1. General ................................................................................................................. 11
2. Planning Area A - Village Center Mixed Use Project ......................................... 12
3. Planning Area B - Community Facilities ............................................................. 16
4. Planning Areas C and D - Village Residential Mixed Use Projects .................... 17
5. Planning Area E - School ..................................................................................... 20
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 .............................................................................................. 26
8. Planning Area K - Hillside Residential ................................................................ 29
9. Planning Areas RMF 1 and RMF 2 - Residential Multi-Family ......................... 31
10. Planning Areas P1-P3: Parkland ......................................................................... 33
11. Planning Areas OS1 – 0S7: Natural Open Space ............................................... 35
12. Planning Areas PF-1 – PF-3: Public Facility ..................................................... 36
E. SPECIAL REVIEW USE ................................................................................................ 38
1. Special Review Use Permit .................................................................................. 38
2. Application Filing and Processing ....................................................................... 38
3. Submittal Requirements for Special Review Use ................................................ 39
4. Criteria for Review, Recommendation, and Approval of Special Review
Uses ...................................................................................................................... 39
TABLE OF CONTENTS
(continued)
Page
-ii-
1025827.19
5. Amendments to Special Review Use Permit ....................................................... 40
F. TEMPORARY USES AND STRUCTURES .................................................................. 40
G. SUBDIVISION ................................................................................................................ 41
1. General; Applicability .......................................................................................... 41
5. Material Modification to Certain Street Connections .......................................... 43
H. DEVELOPMENT PLAN AMENDMENT PROCEDURES .......................................... 44
1. General ................................................................................................................. 44
2. Formal Amendments ............................................................................................ 44
3. Administrative Amendments ............................................................................... 44
4. Modifications Not Requiring Amendment .......................................................... 47
I. SUPPLEMENTAL REGULATIONS ............................................................................. 48
1. Interim Uses ......................................................................................................... 48
2. Solid Fuel Burning Devices ................................................................................. 48
3. Signs ..................................................................................................................... 48
4. Parking Requirements .......................................................................................... 49
5. Surface Parking Landscaping Requirements ....................................................... 49
6. Drainage Requirements ........................................................................................ 49
7. Sidewalk and Trail Standards .............................................................................. 50
8. Alternative Equivalent Compliance and Variances ............................................. 50
9. Supplemental Design Standards: Planning Area J Hotel, Motel and Lodge
Requirements ....................................................................................................... 50
10. Wildlife Mitigation Plan ...................................................................................... 51
11. Design Review Guidelines ................................................................................... 52
12. Natural Resource Protection ................................................................................ 52
13. Residential Fire Suppression Systems ................................................................. 52
14. Park, Recreation and Trail Access ....................................................................... 53
15. Affordable Housing Plan ..................................................................................... 53
16. Provision of Certain Amenities ............................................................................ 55
TABLE OF CONTENTS
(continued)
Page
-iii-
1025827.19
EXHIBIT A Legal Description ............................................................................................... A-1
EXHIBIT B PUD Master Plan ............................................................................................... B-1
EXHIBIT C The Village (at Avon) Parking Regulations....................................................... C-1
EXHIBIT D Wildlife Mitigation Plan .................................................................................... D-1
EXHIBIT E Minimum Design Guideline Standards .............................................................. E-1
EXHIBIT F Street Standards ................................................................................................. F-1
EXHIBIT G Municipal Code Provisions Not Applicable to The Village (at Avon) PUD ..... G-1
EXHIBIT H Definitions.......................................................................................................... H-1
EXHIBIT I Section 7.16.070 of Development Code ............................................................. I-1
Version 19 – October 18, 2012
1025827.19
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. Notwithstanding any
provision of this Section A.1, if, subsequent to the Effective Date, the Town amends from time to
time any definitions set forth in the Development Code, the Master Developer, in its sole
discretion, may consider amendment of this PUD Guide to incorporate such amended definitions
herein, which amendment(s), if any, shall be processed in accordance with the administrative
amendment procedure set forth in Section H.3.
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
Version 19 – October 18, 2012
1025827.19 2
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.
(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 Development Plan and any subsequently approved
Preliminary Plans and Final Plats, together with any amendments to any of the foregoing,
constitutes an approved “site-specific development plan” as defined in the Vested Property
Rights Statute and pertinent provisions of the Municipal Code. Without limiting the generality
of the foregoing, the Landowners of the Property shall have Vested Property Rights to undertake
and complete development and use of the Property as provided in the Development Plan, and as
set forth in [Section 2.3] of the Development Agreement. The Vested Property Rights so
established shall be and remain vested for the “Vesting Term” (as defined in the Development
Agreement). Pursuant to the Municipal Code, as in effect on the execution date of the Settlement
Term Sheet,:
Version 19 – October 18, 2012
1025827.19 3
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.
Upon and after expiration of the “Vesting Term” (as defined in 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.
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
(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
Version 19 – October 18, 2012
1025827.19 4
Design Review Guidelines. In accordance with the Design Covenant, the Design Review Board
shall have authority to review and is 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.11(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, the 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
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, and the Applicant shall not be required to extend or continue such
street beyond the Property Line of the Site that is the subject of the applicable
Application provided that such street terminates in a turn-around, cul-de-sac or like
termination (temporary or permanent, as applicable) to permit emergency vehicle turn-
around in accordance with the requirements of the Development Code. 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
Version 19 – October 18, 2012
1025827.19 5
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
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.
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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.
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.
B. TOTAL PERMITTED DENSITY. The total permitted density for The Village (at
Avon) PUD shall not exceed:
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1. Planning Areas A, C, D, E, F, G, H, J, K, RMF 1 and RMF 2 shall not
exceed:
(a) Commercial Uses.
825,000 consolidated Gross Square Footage of Commercial Space.
(b) Dwelling Units.
2,400 Dwelling Units. Pursuant to the terms of the Affordable Housing
Plan, 500 of the 2,400 Dwelling Units shall be constructed as affordable
housing, and, subject to satisfaction of the conditions precedent set forth in
the Affordable Housing Plan, an additional 23 of the 2,400 Dwelling Units
shall be constructed as affordable housing.
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, 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 825,000 square feet of consolidated Gross Square Footage stated in
Section B.1(a)), and 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.
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%.
Notwithstanding the foregoing, areas with slopes exceeding 40% created by the placement of dirt
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stockpiles shall not be excluded for density calculations for development of Residential Uses
within Planning Areas A through I, RMF 1 and RMF 2.
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% 50% 50% 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.
(b) Each Duplex Dwelling shall be counted as two (2) Dwelling Units.
(c) Each Dwelling Unit in a Multi-family Dwelling shall be counted as one
(1) Dwelling Unit.
(d) Each Primary/Secondary Structure or Structures situated on the same Lot
shall be counted as two (2) Dwelling Units.
(e) Each guest bedroom within a Bed and Breakfast shall be counted one-third
(1/3) of a Dwelling Unit.
(f) Each Temporally Divided Dwelling shall be counted as one (1) Dwelling
Unit.
(g) Vacation Club shall be counted as one (1) Dwelling Unit.
(h) Group Home shall be counted as one (1) Dwelling Unit.
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1025827.19 9
(i) Accommodation Units in a particular Hotel, Motel and Lodge Use shall be
counted as the greater of (X) one-third (1/3) Dwelling Unit for each Accommodation Unit within
such Use (any resulting fractional number of Dwelling Units shall be rounded up or rounded
down, as applicable, to the next whole number); or (Y) in accordance with the following
calculation:
(i) The aggregate Gross Square Footage of all of the Accommodation
Units within the applicable Hotel, Motel and Lodge Use, but specifically excluding
hallways, lobby and reception areas, stairwells, elevator areas, landings and
entranceways, mechanical areas, public restrooms, permanently designated corridors,
public lobbies, common mall areas and all other areas exterior to the individual lodging
rooms (the “Lodging Square Footage”), shall be measured and calculated.
(ii) The Lodging Square Footage shall be divided by 1,800 square feet,
and the result of such calculation shall be the number of Dwelling Units attributable to
such Hotel, Motel and Lodge Use. Any resulting fractional number of Dwelling Units
shall be rounded up or rounded down, as applicable, to the next whole number. [In
example, the Lodging Square Footage of a Hotel, Motel and Lodge Use having 50
Accommodation Units each measuring 650 square feet of Gross Square Footage and 50
Accommodation Units each measuring 850 square feet of Gross Square Footage is
75,000 square feet of Gross Square Footage ((50 X 650) + (50 X 850) = 75,000). Such
Hotel, Motel and Lodge Use shall be counted as 42 Dwelling Units (75,000 / 1,800 =
41.67 (rounded to 42)).]
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 be 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; and
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(vi) Uses which the Director determines to be similar.
(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 Buildings, retail Buildings, Hospital Buildings, 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,
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
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(e) Planning Areas F, G, H and I: Regional Commercial Mixed Use
Projects
(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.
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1025827.19 12
(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 60,000 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) Cabled Telecommunications Equipment, Cabled
Telecommunications Facilities and Cabled Telecommunications Services, each of the
foregoing being subject to review and written approval by the Design Review Board
authorizing such Use.
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(x) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use..
(xi) Dry Utilities.
(xii) Infrastructure.
(xiii) Indoor recreation and/or entertainment facilities.
(xiv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) Parks and Open Space.
(xvi) Commercial Parking, Private Parking, Public Parking and public
and private transportation and transit facilities, including but not limited to, Parking
Structures, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(xvii) Outdoor Storage, only as an Accessory Use to a retail Use.
(xviii) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xix) Agricultural Use (as an Interim Use only).
(xx) Rodeo and ancillary carnival (as an Interim Use only).
(xxi) Recycling Facility (as an Interim Use only).
(xxii) Snow storage (as an Interim Use only).
(xxiii) Mobile Home office/storage Use and community garden (as an
Interim Use only).
(xxiv) 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.
(xxv) 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 60,000 of
consolidated Gross Square Footage.
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(ii) Educational facilities, including but not limited to, public and
private schools, universities and colleges.
(iii) Automobile Repair Shop (Minor).
(iv) Outdoor entertainment facilities that include the use of amplified
music.
(v) Hospital
(vi) Heliport, only as an Accessory Use to a Hospital or other medical
facility, including but not limited to a clinic.
(vii) Hotel Uses (including without limitation, hotel Uses comprising a
portion of a Mixed Use Project) which exceed 80 feet in Building Height.
(viii) Car wash.
(ix) Drive-in Uses.
(x) Religious Facility.
(xi) Service Station (for the sale of only electric form of fuel for
motorized vehicles).
(xii) Restaurants (with drive-through window service).
(xiii) Financial institutions (with drive-through window service).
(xiv) Recycling Facilities (except as permitted in Section D.2(a) above).
(xv) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(xvi) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use..
(c) Prohibited Uses:
(i) Animal Boarding (outdoor).
(ii) Automobile Repair Shop (Major).
(iii) Family Child Care Home.
(iv) Group Home.
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(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.
(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
110 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%
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(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, including without
limitation, accessory Commercial Uses, including food and beverage concessions, 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.
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(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: 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%
(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 that have frontage on Main Street.
(iii) Agricultural Use (as an Interim Use only).
(iv) Community Facilities.
(v) Vacation Club and Temporally Divided Dwellings.
(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).
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(vii) Commercial Parking, Private Parking, Public Parking, and public
and private transportation and transit facilities, including but not limited to, Parking
Structures, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services, each of the foregoing being subject
to review and written approval by the Design Review Board authorizing such Use..
(ix) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
(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 C Only:
(1) Pedestrian bridges.
(2) Hotel, Motel and Lodge.
(3) Bed and Breakfast.
(xvii) Planning Area D Only:
(1) Recycling Facility and accessory trash facility (as an
Interim Use only).
(xviii) Accessory Uses and Structures customarily appurtenant to the
foregoing Uses by Right.
(xix) 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) In Planning Area D having frontage on Main Street only:
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(1) Hotel, Motel and Lodge.
(2) Bed and Breakfast.
(3) Educational facilities, including but not limited to, public
and private schools, universities, colleges and Child Care Centers.
(4) Hospitals.
(5) Heliport, only as an Accessory Use to a Hospital or other
medical facility, including but not limited to a clinic.
(6) Religious Facilities, museums, libraries and public
buildings.
(7) Outdoor entertainment facilities that include the use of
amplified music (subject to the review and written approval of the Design Review
Board authorizing such Use).
(ii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD, each of the foregoing being
subject to review and written approval by the Design Review Board authorizing such
Use..
(iii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being 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.
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(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: 48 feet.
(iii) Minimum Landscaped Area: 20%
(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 or state
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:
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(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) 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.
(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, however, no single retail business on
Planning Area F shall occupy more than 60,000 of consolidated Gross Square Footage.
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(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) Community Facilities.
(vi) 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.
(vii) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
(viii) Infrastructure.
(ix) Dry Utilities.
(x) Private and public transportation and transit, including without
limitation, Bus Stops, Bus Shelters, rail stations, tramways, gondolas and lifts.
(xi) Religious Facilities, museums, libraries and public buildings.
(xii) Indoor recreation and/or entertainment facilities that do not include
the use of amplified music.
(xiii) Outdoor entertainment facilities that include the use of amplified
music (subject to review and written approval of such Use by the Design Review Board).
(xiv) Outdoor recreation and/or entertainment facilities that do not
include the use of amplified music.
(xv) Parks and Open Space.
(xvi) Child Care Center.
(xvii) Animal Boarding (excluding outdoor Animal Boarding), subject to
review and written approval by the Design Review Board authorizing such Use
(xviii) Kennels (excluding outdoor Kennels), subject to review and
written approval by the Design Review Board authorizing such Use.
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(xix) Construction staging (as an Interim Use only).
(xx) Planning Areas F and I Only:
(1) Recycling Facility.
(xxi) 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.
(xxii) Additional Uses which the Director determines to be similar to the
foregoing Uses by Right.
(xxiii) 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) Single retail businesses on Planning Area F occupying more than
60,000 of consolidated Gross Square Footage.
(ii) Educational facilities including, but not limited to public and
private schools, universities, and colleges.
(iii) Service Station.
(iv) Animal Boarding (outdoor), subject to review and written approval
by the Design Review Board authorizing such Use
(v) Kennels (outdoor), subject to review and written approval by the
Design Review Board authorizing such Use.
(vi) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(vii) 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).
(viii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use.
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(ix) Planning Areas F, G and H Only:
(1) Animal Boarding (outdoor).
(2) Kennels (outdoor).
(3) Hospitals.
(x) Planning Area I Only:
(1) Hotel Uses (including without limitation, hotel Uses
comprising a portion of a Mixed Use Project) which exceed 55 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:
a. Front: 25 feet
b. Side: None
c. Rear: 10 feet
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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) on Planning Area I only: 55
feet, provided that such Uses may 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 on Planning Area I only: 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.
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(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) Minimum Landscaped Area: 20%.
(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, provided that cul-de-
sacs may exceed 1,000 feet in length and service not more than 280 Dwelling Units;
provided, however, that the portion of the cul-de-sac that is in excess of 1,000 feet shall
not service Commercial Uses.
(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.
(vi) Agricultural Use (as an Interim Use only).
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(vii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services, each of the foregoing being subject
to review and written approval by the Design Review Board authorizing such Use.
(viii) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
(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) Child Care Center.
(ii) Religious Facilities, museums, libraries and public buildings.
(iii) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(iv) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use.
(c) Prohibited Uses:
(i) Automobile Repair Shops (Major).
(ii) Medical Marijuana Businesses.
(iii) Nude Entertainment Establishments.
(iv) Tattoo parlor, body piercing.
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(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:
(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) Minimum Landscaped Area: 20%
(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.
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(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) Single-Family Dwelling.
(ii) Duplex Dwelling.
(iii) Primary/Secondary Structure
(iv) Agricultural Use (as an Interim Use only).
(v) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Services, each of the foregoing being subject
to review and written approval by the Design Review Board authorizing such Use.
(vi) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
(vii) Infrastructure.
(viii) Dry Utilities.
(ix) Recreational facilities.
(x) Parks and Open Space.
(xi) Religious Facilities, including without limitation, cemeteries.
(xii) Conceptual Lot 1 (as depicted on the PUD Master Plan) Only:
Homeowner association facilities including, but not limited to, a caretaker unit (as a
Secondary Structure), clubhouse, recreational facilities and other similar facilities and
amenities.
(xiii) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xiv) Additional uses which the Director determines to be similar to
Uses by Right.
(b) Special Review Uses:
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(i) Rock and gravel crushing operations related to rock and gravel
materials excavated within The Village (at Avon) PUD.
(ii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use.
(c) Prohibited Uses:
(i) Commercial Uses (except as specifically included in Sections
D.8(a) or D.8(b)).
(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).
(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: 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.
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(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: Cul-de-sacs may exceed 1,000 feet in
length and service not more than 280 Dwelling Units; provided, however, that the portion of the
cul-de-sac that is in excess of 1,000 feet shall not service Commercial Uses those Commercial
Uses specifically included in Sections D.8(a) or D.8(b).
(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) Preschool, nursery school, in-home child care and Child Care
Center.
(iv) Agricultural Use (as an Interim Use only).
(v) Bed and Breakfast, Vacation Club, Temporally Divided Dwellings
and short-term rentals.
(vi) Infrastructure.
(vii) Dry Utilities.
(viii) Cabled Telecommunications Equipment, Cabled Television
Facilities and Cabled Telecommunications Service, each of the foregoing being subject to
review and written approval by the Design Review Board authorizing such Use.
(ix) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
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1025827.19 32
(x) Recreational facilities.
(xi) Temporary real estate offices and construction offices.
(xii) Residential management office.
(xiii) Accessory Uses and Structures customarily appurtenant to Uses by
Right.
(xiv) Additional uses which the Director determines to be similar to
Uses by Right.
(xv) Planning Area RMF-1 Only:
(1) Assisted living facilities.
(xvi) Planning Area RMF-2 Only:
(1) Pedestrian bridges.
(b) Special Review Uses:
(i) Religious Facilities, museums, libraries and public buildings.
(ii) Group Home.
(iii) Commercial Parking, Private Parking and Public Parking.
(iv) Bus Stops, Bus Shelters, tramways, gondolas and lifts.
(v) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use.
(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.
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(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.
(3) Commercial: 48 feet.
(iii) Minimum Landscaped Area: 20%.
(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, provided that
cul-de-sacs may exceed 1,000 feet in length and service not more than 280 Dwelling
Units; provided, however, that the portion of the cul-de-sac that is in excess of 1,000 feet
shall not service Commercial Uses except those Commercial Uses specifically included
in Sections D.9(a) or D.9(b).
(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).
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(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.
(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.
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(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.
(v) Wireless Telecommunications Equipment (excluding antenna
towers), Wireless Telecommunications Facilities (excluding antenna towers) and
Wireless Telecommunications Services, each of the foregoing being subject to review
and written approval by the Design Review Board authorizing such Use.
(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.
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(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).
(iii) Wireless Telecommunications Equipment (antenna towers only)
and Wireless Telecommunications Facilities (antenna towers only), each of the foregoing
being subject to review and written approval by the Design Review Board authorizing
such Use.
(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.
(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:
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(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:
(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.
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(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.
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, which public hearing
before the Planning and Zoning Commission shall be in accordance with Section 7.16.020(e) of
the Development Code.
(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.
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(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;
(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.
When evaluating an Application for a special review use permit, staff and the planning and
zoning commission shall consider the following criteria:
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(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
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; 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.
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G. SUBDIVISION.
1. General; Applicability.
(a) Except as modified by this Section G, the procedural and substantive
requirements set forth Section 17.16.070 of the Development Code, as in effect on the date of
execution of the Settlement Term Sheet, as attached as Exhibit I to this PUD Guide, shall apply
to Planning Areas A, B, C, D, E, F and J (collectively, the “Administrative Subdivision
Areas”). Notwithstanding the foregoing, if, subsequent to the Effective Date, the Town amends
from time to time Section 17.16.070 of the Development Code, the Master Developer, in its sole
discretion, may consider amendment of this PUD Guide to incorporate such amended provisions
herein, which amendment(s), if any, shall be processed in accordance with the administrative
amendment procedure set forth in Section H.3.
(b) Except as modified by Section G.1(c), subdivision within all Planning
Areas excepting the Administrative Subdivision Areas shall be in accordance with
Section 7.16.070 of the Development Code.
(c) Subdivision review and approval shall not be required for any division of
land within the The Village (at Avon) for any of the following:
(i) Creation of a lien, mortgage, deed of trust or any other security
instrument;
(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, if subdivision
review and approval is waived by the Town;
(vii) Correction of a legal description in a prior conveyance, if
subdivision review and approval is waived by the Town;
(viii) Any transfer by operation of law or bequest;
(ix) Lease of property (granting of leasehold interests) for any period of
time;
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(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. Application Submittal Items. With respect to any submittal item for a Final Plat
Application within the Administrative Subdivision Areas required by the Town, if the Applicant
disagrees with the determination of staff or the Director, as applicable, with respect to the
necessity of such submittal item or the required substance or required 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 Final Plat Application and decide upon the
appropriateness of requiring such submittal item or the appropriateness of the required substance
or required quality of such submittal item, as applicable. Such third party’s determination shall
be binding upon the Town and the Applicant. Notwithstanding the foregoing, in no event shall
the Town require any submittal item for a Final Plat Application that relates to matters that are
within the exclusive authority of the Design Review Board to approve, including without
limitation, architectural design, landscape design, urban design and site design.
3. Procedure. Except as set forth in Section G.5, 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. Public hearings shall not be required except as may
be requested by the Applicant. Notice of a subdivision Application shall be posted and mailed to
property owners within the vicinity of the property subject to the applicable Application in
accordance with the requirements of the Development Code. Prior to the Director rendering a
decision to reject or deny an 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. The Director shall render a written decision on the Final Plat Application and shall
post a notice of such decision in the same manner as the posting of Town ordinances, and the
date of such posting shall be the date of the final decision of the Director for appeal purposes.
4. Criteria for Review and Approval. Subject to this Section G.4, the Director
shall consider the criteria set forth in Sections 17.16.070(e) and (f) of the Development Code, as
in effect on the date of execution of the Settlement Term Sheet, when evaluating an Application
for Final Plat approval, as modified as follows:
(i) The Director shall not consider the review criteria set forth in the
following sections, which sections shall not apply to the Administrative Subdivision
Areas: Sections 17.16.070(e)(5) & (9) and Sections 17.16.070(f)(2) & (3).
(ii) The review criteria set forth in Section 17.16.070(e)(1) is modified
as follows: The proposed subdivision shall comply with all applicable use, density,
development and design standards set forth in this PUD Guide that have not been
otherwise modified or waived through the alternative equivalent compliance process and
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that would affect or influence the layout of lots, blocks and streets. Applicants shall not
create lots or patterns of lots in the subdivision that will make compliance with such
development and design standards infeasible or impossible.
(iii) The review criteria set forth in Section 17.16.070(e)(3) is modified
as follows: The subdivision application shall be consistent with the Comprehensive Plan
and other community planning documents, as modified by the Development Plan.
(iv) The review criteria set forth in Section 17.16.070(e)(7) is modified
as follows: The proposed utility and road extensions are consistent with the utility’s
service plan and are consistent with the Comprehensive Plan and the Transportation
Master Plan, as modified by the Development Plan.
(v) The review criteria set forth in Section 17.16.070(f)(4) is modified
as follows: The development will substantially comply with all sections of the
Development Code, as modified by the Development Plan.
5. 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.
(vi) Connection across Planning Area J located east of Post
Boulevard/Swift Gulch Road roundabout to northeast corner of the “Forest Service
parcel” located east of Planning Area J and west of Planning Area I.
(c) For any Application for an Administrative Subdivision Area submitted to
Town Council pursuant to Section G.5(b), Town Council shall render a decision on the
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Application after conducting a public hearing, and public notice of the Town Council hearing on
such Application shall be given in accordance with the requirements 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.
(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, 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)(vi) below, which shall be processed as an
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administrative amendment application, and an Application meeting the criteria stated in
Section H.3(b)(vii) 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)(vi) 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)(vii) below; or (II) the general criteria for approval set
forth in Section H.3(b)(vii) below may be processed and approved administratively:
(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, elimination of 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) (including without limitation, elimination of 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. Any proposed elimination of a Required Street Connection that
is not processed and approved in connection with a Preliminary Plan or Final Plat shall be
subject to the formal amendment process set forth in Section H.2.
(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
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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
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) Certain Text Amendments. Amendments to this PUD Guide as
contemplated by Section A.1 (definitions) and Section G (subdivision) and Section I.15
(affordable housing plan) shall be processed and approved administratively. Any
amendment to this PUD Guide shall be processed and approved administratively. If the
Master Developer, in its sole discretion, submits an Application to the Town to amend
this PUD Guide to substitute Chapter 15.30 of the Municipal Code for the lighting
standards set forth in Exhibit E, such amendment, if any, shall be processed and
approved administratively.
(vii) 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)(vi)
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.
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(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)(vii) 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) through H.3(b)(vii), 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
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.
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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
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, as in
effect on the date of execution of the Settlement Term Sheet.
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
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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. Sign installation shall be subject to the requirements of Section 15.28.050(c) of the
Municipal Code.
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
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.
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(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, as may be amended
from time to time; 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, provided that such deviations may only be considered by
the Town for those subject matters expressly set forth in Section 7.16.120; or
(b) Section 7.16.110 (variances) of the Development Code.
9. 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.
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(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
(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.
10. 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.
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11. 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
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.11 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.
12. Natural Resource Protection. Development within The Village (at Avon) PUD
shall comply with Section 7.28.100 of the Development Code, as in effect on the date of
execution of the Settlement Term Sheet, 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.
13. 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
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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.
14. 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:
(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.
15. 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.15.
The obligations set forth in this Section I.15 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. Notwithstanding the foregoing, if,
subsequent to the Effective Date, the Town amends from time to time Section 17.20.100 of the
Development Code, the Master Developer, in its sole discretion, may consider amendment of this
PUD Guide to incorporate such amended provisions herein, which amendment(s), if any, shall be
processed in accordance with the administrative amendment procedure set forth in Section H.3.
(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].
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(b) The Master Developer will have an obligation to provide an additional 23
affordable housing units, or assure that the same are supplied by others, as set forth below and as
follows: The Master Developer will have the obligation to provide such additional 23 affordable
housing units only upon the satisfaction of the conditions precedent as set forth in this
subsection. The Master Developer will have the obligation to provide 13 of the additional 23
affordable housing units only upon the Town’s issuance of final certificates of occupancy for
Commercial Space within the Property in the aggregate of 750,000 square feet of consolidated
Gross Square Footage. The Master Developer will have the obligation to provide an additional
10 of such 23 affordable housing units (for a total of 23 additional affordable housing units) only
upon the Town’s issuance of final certificates of occupancy for Commercial Space within the
Property in the aggregate of 825,000 square feet of consolidated Gross Square Footage.
(c) 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.
(d) 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.
(e) 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
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
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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.
(f) In accordance with the terms of the Original PUD, a minimum of 100
affordable housing units were constructed in conjunction with the initial phase of commercial
and/or residential construction within the Project, and the Master Developer has fully satisfied all
obligations under this PUD Guide with respect to timing of construction of all affordable housing
units required to be provided by the Master Developer (or others), including without limitation,
the affordable housing units described in Section I.15(b), as set forth in this Section I.15.
16. Provision of Certain Amenities.
(a) Community Park (Planning Area P3).
(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.
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(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.
(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
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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.
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EXHIBIT A
Legal Description
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EXHIBIT B
PUD Master Plan
[to be inserted]
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EXHIBIT C
The Village (at Avon) Parking Regulations
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EXHIBIT D
Wildlife Mitigation Plan
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EXHIBIT E
Minimum Design Guideline Standards
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EXHIBIT F
Street Standards
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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(a) and (b), § 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) § 7.28.070(b)(4) Retaining Walls
(o) § 7.28.060 Screening
(p) § 7.28.090 Design Standards, provided that subsection (c)(5) shall apply
(q) §§ 7.28.100(a)(3)(v), (x) & (xiii)(D) Natural Resource Protection
(r) §§ 7.28.100(a)(3)(xiii)(E) Natural Resource Protection (only with respect to
Planning Areas I, K and RMF-1)
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(s) §§ 7.32.010(c)(2) & (6) Engineering Improvement Standards: Standards and
Specifications
(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, subject to the provisions of [Section 3.9(b)] of the
Development Agreement)
(y) § 7.32.090 Park Land Dedication, subject to the provisions of [Section 3.9(b)] of
the Development Agreement
(z) § 7.40 1041 Regulations
2. Other Municipal Code Provisions:
(a) Chapter 3.40 Impact Fees, subject to the provisions of [Section 3.9(b)] of the
Development Agreement
(b) Chapter 8.32 Wildlife Protection
(c) Chapter 15.28 Sign Code (excluding Section 15.28.050(c) (sign installation
permit))
(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, subject to the provisions of [Section 3.9(b)] of the Development
Agreement.
(f) Pursuant to Section I.15 of this PUD Guide, any affordable housing, attainable
housing and/or employee workforce housing provisions of the Municipal Code,
subject to the provisions of [Section 3.9(b)] of the Development Agreement.
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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.
Affordable Housing Plan means the sole and exclusive affordable housing requirements for The
Village (at Avon) PUD, as set forth in Section I.15 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
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
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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.
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.
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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, as in effect on the Effective Date), 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.
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
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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;
(b) Animal Boarding;
(c) assisted living facility;
(d) Automobile Repair Shop (Major or Minor);
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(e) bakeries;
(f) bar and tavern;
(g) barber and beauty shops;
(h) Bed and Breakfast;
(i) beverage stores, coffee shops;
(j) Bus Stop;
(k) business and professional offices;
(l) Cabled Telecommunications Equipment;
(m) Cabled Telecommunications Facilities;
(n) Cabled Telecommunications Services;
(o) car wash (as the Principal Use);
(p) Child Care Center;
(q) cinema;
(r) clinic, intermediate medical care facility, urgent care facility, rehabilitation
centers and x-ray/MRI centers (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
(aa) Extended Stay Hotel;
(bb) Family Child Care Home;
(cc) Grocery Store;
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(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;
(kk) independent living facility;
(ll) indoor entertainment facility;
(mm) indoor storage;
(nn) Kennels;
(oo) laboratory;
(pp) landscaping and snow removal services;
(qq) laundromat/dry cleaning;
(rr) long-term care facilities and other medical facilities including, but not limited to,
group and congregate care facilities, nursing homes and independent living
facilities;
(ss) Medical Marijuana Businesses;
(tt) medical and dental offices;
(uu) meeting facility;
(vv) newspaper and commercial printing shops;
(ww) Nude Entertainment Establishments;
(xx) nursery or garden supply;
(yy) Outdoor Storage;
(zz) pet shop (for the sale of pets, pet supplies and/or for domesticated animal
grooming)
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(aaa) professional offices;
(bbb) real estate sales offices;
(ccc) photocopy and blueprint businesses;
(ddd) Public Facilities;
(eee) Private Parking;
(fff) Public Parking;
(ggg) Recycling Facility;
(hhh) Recycling Processing Facility;
(iii) Religious Facility;
(jjj) repair shops, small electronics repair;
(kkk) Restaurants;
(lll) Retail sales, specialty and gift shops; ski tuning; bike assembly
(mmm)service and social clubs;
(nnn) Service Stations;
(ooo) Studios (music, dancing, photography, movie, art and broadcasting)
(ppp) tailor, seamstress, clothing alterations
(qqq) tattoo parlor, body piercing
(rrr) Temporally Divided Dwelling
(sss) theaters;
(ttt) trade schools and colleges;
(uuu) Transit Shelter;
(vvv) Wireless Telecommunications Equipment;
(www) Wireless Telecommunications Facilities;
(xxx) Wireless Telecommunications Services;
(yyy) Vacation Clubs;
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(zzz) 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 Comprehensive Plan, Town of Avon, Colorado, 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-WMT LLC.
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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 amended from time to time, 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 may be amended from time to time;
and (ii) the Development Agreement, as may be amended from time to time.
Development Standards means the planning requirements and regulations governing the
development of the Property as set forth in Section D, Development Standards within The
Village (at Avon) PUD, and Section I, Supplemental Regulations, 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
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people) or individual independently from any other family or group of people and having not
more than one (1) primary indoor kitchen (provided that secondary “kitchenettes” such as 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,
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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
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. Hospitals expressly exclude Uses not incorporated into an institution providing
health services primarily for human inpatient medical or surgical care, including without
limitation, the following: long-term care facilities, group and congregate care facilities, nursing
homes, assisted and independent living facilities, clinics, laboratory, medical and dental offices,
urgent care, rehabilitation centers and x-ray/MRI centers.
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
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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
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 Site 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; structural features, such as fountains, reflecting pools, art works,
screen walls, fences and benches; and pedestrian hardscaping features such as sidewalks and
plazas; but shall not include parking areas and drive lanes.
Lodging Square Footage has the meaning set forth in Section B.8(i)(i) of this PUD Guide.
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.
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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
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 amended from time to time, 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
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establishments, as more particularly described in Chapter 8.26 of the Municipal Code, as in
effect on the Effective Date.
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,
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, 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:
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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 25%
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
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.
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 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.
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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,
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
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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:
(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.5(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.
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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.
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.12 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.9 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.,
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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.
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 may be
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.
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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.
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 Equipment 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.
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EXHIBIT I
Section 7.16.070 of Development Code
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