TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013 MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET

PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM TODD GOULDING COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF

TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY

ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT - COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH

1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. ACTION ITEMS 4.1. Approval of Minutes from February 26, 2013 4.2. Request to Transfer Town of Avon Radio License to Eagle County per Letter to Federal Communication Commission (Lt. Greg Daly) 4.3. Wildridge Point Subdivision (Jared Barnes, Planner I) 4.3.1. Resolution 13-11, Series of 2013, Resolution Approving a Variance for Lots 33 and 34, Block 4, Wildridge Subdivision 4.3.2. First Reading of Ordinance 13-05, Series of 2013, Ordinance Approving A Minor PUD Amendment and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge Subdivision 4.4. Resolution 13-09, Series of 2013, Resolution to Amend the 2013 Avon Capital Projects Fund Budget, 2013 Supplemental Budget Amendment (Scott Wright, Finance Director) 4.5. Village at Avon Settlement implementation (Eric Heil, Town Attorney) 4.5.1. Update on Settlement Implementation 4.5.2. Resolution No. 13- 10, Series of 2013, Resolution Approving the Asphalt Overlay Escrow Account Agreement 4.5.3. Approval by Motion of Revocable License Agreement for Snow Storage 4.5.4. Motion to Continue to April 9 the Public Hearing for Second Reading of Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek Metropolitan District Service Plan 4.5.5. Motion to Continue to April 9 the Public Hearing for Second Reading of Resolution No. 13-03, Series of 2013, Approving Amendments to The Village Metropolitan District Service Plan 5. WORK SESSION 5.1. Planning and Zoning Commission Appointments: Update on Upcoming PZC Appointment Process (Matt Pielsticker, Planner II) 5.2. Hahnewald Barn Report–Historic Status and Relocation Plan (Matt Pielsticker, Planner II) 5.3. Committee Meeting Updates: Councilors and Mayor 5.4. Council Comments TOWN OF AVON, COLORADO AVON REGULAR MEETING FOR TUESDAY, MARCH 26, 2013 MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET

5.5. Mayor Report 5.5.1. Future Agenda Items 5.6. Financial Matters – Sales and Accommodations Tax January 2013 (Report Only,Kelly Huitt, Budget Analyst) 6. ADJOURNMENT

FUTURE COUNCIL AGENDA FOR APRIL 9, 2013 & PROPOSED TOPICS: VILLAGE AT AVON SETTLEMENT DOCUMENTS; REPORT ON 1ST QUARTER STRATEGIC PLAN IMPLEMENTATION TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

CALL TO ORDER AND ROLL CALL Mayor Pro Tem Todd Goulding called the meeting to order at 4:05 PM. A roll call was taken and Council members present were Dave Dantas, Jennie Fancher, Buz Reynolds and Jake Wolf. Rich Carroll was initially absent, but arrived at 4:20 PM. Councilor Chris Evans was absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager/Town Clerk Patty McKenny, Finance Director Scott Wright, Planners Matt Pielsticker and Jared Barnes, as well as other staff members and the public.

APPROVAL OF AGENDA It was noted that there would be

WORK SESSION a) MEET WITH PLANNING AND ZONING COMMISSION: PZC members present included Chris Green, Scott Prince, Phil Struve, Paul Anderson, John Minervini, Timothy Losa, and Jim Clancy. The topics reviewed at the meeting are listed and the 2013/2014 Strategic Plan was reviewed; PZC requested an opportunity to review the work plan at their next meeting.  PZC Roles & Responsibilities.  TOA 2013/2014 Strategic Plan and Work Plan by Quarter  Schedule Next Joint Meeting for Tuesday, August 27, 2013

A TOWN RECEPTION WAS HELD FROM 5:30 PM UNTIL 6 PM FOR RETIRING OFFICER SANTIAGO (JIM) PEREZ IN RECOGNITION OF HIS YEARS OF SERVICE WITH THE AVON POLICE DEPARTMENT.

PUBLIC COMMENT There were no public comments at this time.

ACTION ITEMS a) RESOLUTIONS i) Resolution No. 13-05, Series of 2013, Resolution in Appreciation of Police Officer Santiago Perez’s Years of Service Chief Ticer presented an award to Officer Perez for his years of service and role as a master police officer. Mayor Carroll read Resolution No. 13-05 thanking Officer Perez for his service. Councilor Dantas moved to approve Resolution No. 13-05, Series of 2013, Resolution in Appreciation of Police Officer Santiago Perez’s Years of Service. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans absent).

ii) Resolution No. 13-06, Series of 2013, Resolution In Appreciation of Recreation Director Meryl Jacobs’ Years of Service Mayor Carroll read Resolution No. 13-06 thanking Recreation Director Meryl Jacobs for her service. Mayor Pro Tem Goulding moved to approve Resolution No. 13-06, Series of 2013, Resolution In Appreciation of Recreation Director Meryl Jacobs’ Years of Service. Councilor Reynolds seconded the motion and it passed unanimously by those present (Councilor Evans absent).

EXECUTIVE SESSION At 6:30 pm, Mayor Pro Tem Goulding moved to convene to an Executive Session to discuss the following: 1) Discussion to determine positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. §24-6-402(2)(e) related to Avon Town Council Meeting February 26, 2013 Page 1 of 7

TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

economic development The motion was seconded by Councilor Wolf. Prior to meeting in executive session, Michael Cacioppo, Avon resident, provided the following comments about the executive session agenda language:  The Vail Daily advertisement in newspaper font is too small; requested larger font size.  He expressed that he did not think the Executive Session language was transparent enough for the public to understand the topic to be discussed and requested that the town reveal the details to be discussed. At that time, Town Attorney Eric Heil noted that the language was legally appropriate on the agenda and there was no need to explain anything more specifically at this time.

The Town Council then met in Executive Session. Mayor Carroll noted that the executive session adjourned at 7:15 pm and they were now reconvened in regular session. He asked if any Town Council member believed that any discussion in executive session was inappropriate and not related to the topic and purpose of the executive session to please state the objections at this time; there were no objections.

b) CONSENT AGENDA i) Minutes from February 12, 2013 Councilor Reynolds moved to approve the minutes; Mayor Pro Tem Goulding seconded the motion and it passed unanimously by those members voting (councilor Evans absent).

Mayor Carroll presented the Lot 61 Wyndham Vacation Club Development Application noting the following two items be considered by the Town Council at this time on second reading. He noted that both ordinances were approved on first reading on February 12, 2013. Some introductory comments were made summarizing what would be considered with the ordinances and applications. c) LOT 61 WYNDHAM VACATION CLUB DEVELOPMENT i) Public Hearing on Second Reading on Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership ii) Public Hearing on Second Reading on Ordinance No. 13-03, Series of 2013, Ordinance Approving a Rezoning Application from the Planned Unit Development (PUD) Zone District to the Town Center (TC) Zone District, for Lot 1, a Resubdivision of Lot 61, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County; Approving a Major Development Plan Application; Approving an Alternative Equivalent Compliance Application; and Approving a Development Agreement for “Wyndham – Lot 61”, located on lot 1, a Resubdivision of 61, Block 2, Benchmark at Beaver Creek.

Jared Barnes, Planner I, presented Ordinance No. 13-02, the code text amendment in response to issues brought forth at the December 18th, 2012 Planning and Zoning Commission meeting with regard to the legality of timeshare uses within the Town Center zone district. It was noted that Ordinance 13-02 proposed Code Text Amendments that would amend the following portions of Title 7, Development Code: Chapter 7.08, Definitions; Section 7.24.040, Table of allowed uses; Table 7.24-1, Table of allowed uses; Section 7.24.050, Use-specific regulations; and, Section 7.24.060, Special review uses. He noted that there were no changes to the ordinance from first reading and the proposed legislation addressed the following items: . an amendment to AMC Chapter 7.08, Definitions, is to establish definitions for “Hotel, Motel, and Lodge” and “Vacation Club”.

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TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

. an amendment to AMC Section 7.24.040, Table of allowed uses, and Table 7.24-1, Table of allowed uses, is to establish a use type of “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership/Vacation Club Ownership” and its allowance within each zone district. . an amendment to AMC Section 7.24.050, Use-specific regulations, is to establish specific limitation and conditions for “Dwelling, Timeshare, Interval Ownership or Fractional Fee Ownership (“timeshare”)”. . an amendment to AMC Section 7.24.060, Special review uses, is to establish a special review use process for any conversion of an existing dwelling to a “timeshare” use.

Mayor Carroll opened the public hearing, no comments were made, and the hearing was closed. Mayor Pro Tem Goulding moved to approve Ordinance No. 13-02, Series of 2013, Ordinance Approving amendments to the Avon Development Code to amend definitions, permitted uses in the Town Center Zone District, and amendments to regulations concerning time shares and fractional ownership. Councilor Wolf seconded the motion and it passed with a six to one vote by those present (Councilor Reynolds – nay; Councilor Evans absent).

Mayor Pro Tem Goulding move to waive the application fee for the Code Text Amendment application. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans absent).

Mayor Carroll presented the next agenda item, Ordinance No. 13-03, and noted that the staff report summarized the development application components related to “Wyndham - Lot 61” and that all would be considered as one ordinance. He explained that the owner of the lot, Wyndham Vacation Resorts, Inc. (“Owner”) was seeking approval of a fifty-eight (58) unit timeshare project, with supporting retail space. In addition, he noted that the Ordinance was drafted to include all items relevant to the project such as the Rezoning, the Major Development Plan, the Alternative Equivalent Compliance (“AEC”) application (collectively the “Application”), and related Development Agreement for Lot 61.

Dominic Mauriello, Mauriello Planning Group, noted that there were no additional comments; he did provide some slides that showed a revised site plan, revised Level 1 plan, revised parking level plan, and revised west elevation slide. There was a summary of how the trash containers would be on the lower level and trash will be removed in the underground parking area and around the building; smaller truck would remove the trash.

Matt Pielsticker provided an update on the following items which were reviewed at the February 12, 2013 meeting and required some follow-up, information provided in staff memo: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. Staff Response: This condition has been verified in both the Development Agreement and the Development Plan. The widened path and trash truck exhibit have been removed from the Development Plan drawings (Attachment A). This condition is also made abundantly clear in Section 6.1(b) of the Development Agreement. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. Staff Response: This has been demonstrated in both documents. Staff will continue to coordinate the construction in this area prior to a certificate of occupancy for the project. 3. Applicant shall agree to provide a mock-up of exterior materials, which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. Staff Response: This condition has been added to Ordinance 13-03. Staff is comfortable facilitating the successful implementation of this condition with PZC if the project moves forward.

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TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. Staff Response: After learning more about the timing and frequency that the generator(s) behind the louvers would be utilized, the Council was comfortable with the location of the louvers (near the transit stop underneath the sales center) as long as it was called out in the approval. The Development Agreement now includes language verifying that the generator will be tested no more than once per month. 5. The Development Plan shall be amended to define location and type of bench. Staff Response: The location of the “Landscape Forms, Chase Park Bench in Olive Powder Coat finish” is now indicated on the attached (revised) Landscape Plan. See Page 70 of the attached (revised) Landscape Plan in Attachment A. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. Staff Response: The Town Council requested clarification on the predicted collections for real estate transfer tax, based on the model that was presented jointly by the Applicant and Scott Wright, Finance Director, at the last hearing. This issue is that the percent of interests sold in the timeshare project total more than 100%. For example, in year 3 it is anticipated that 70% of the interest (points) would be sold and then in year 4 there is another 50% being sold, for a total of 120%. As the Applicant indicated at the meeting and now verified by Wyndham, this is due to the anticipation of points that are returned to Wyndham due to foreclosures and similar returns (i.e. voluntary returns). Those interests are then resold by Wyndham and thus, in some cases, trigger another taxable event. Staff is comfortable with the model as presented and feels that it reasonably predicts this particular revenue stream, based on Wyndham’s professional experience with this product type.

Eric Heil, Town Attorney, noted revisions to the development agreement as follows: 1. Development Agreement and Development Plan shall be amended to not permit trash removal on Lettuce Shed Lane. [Applicant added language in Section 6.1(b) which is acceptable]. 2. Development Agreement shall provide that on the west side of the building, Town shall fund, construct and maintain the Lettuce Shed Lane pedestrian path and landscaping to the west side of path. Town and Applicant shall coordinate landscaping on Lettuce Shed Lane to insure consistency in planting. [Language has been revised in Sections 5.2(b) and (c) and Sections 6.1(b) and (c) to incorporate this direction.] 3. Applicant shall agree to provide a mock-up of exterior materials which shall be reviewed by Avon Planning and Zoning Commission with the right to appeal to the Town Council in accordance with the Avon Development Code procedures. [This provision is addressed in the Ordinance as a condition]. 4. The Development Agreement shall be amended to provide that testing of the generator shall occur no more frequently than once a month and shall define hours of testing. [Applicant added language in Section 6.3. The proposed language provides flexibility to test generator outside of established timeframes when Owner for emergencies, equipment failure and other events determined by Owner. The language is acceptable to me because I believe such a provision practically only establishes a guideline, some flexibility must be allowed for emergencies and unforeseen circumstances and strict enforcement would be difficult.] 5. The Development Plan shall be amended to define location and type of bench. [This provision is addressed in the Development Plan]. 6. Town Staff shall verify financial assumptions with Applicant for real estate transfer tax. [This provision is addressed in Town Staff memorandum].

There were additional revisions addressed by the Town Attorney that were noted in the council packet memo provided. Mayor Carroll opened the public hearing. He noted that there were letters included in the materials as follows: 1) Ticino owner Charles Frey dated October 29, 2012, and 2) Johnson & Repucci LLP from Eben Clark dated 12/13/12 representing Avon Center at Beaver Creek. No other comments were heard that evening and the hearing was closed.

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TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

There were some additional Council comments that addressed the following:  Councilor Reynolds expressed a need for more retail for the project especially in that area and was concerned about setting a precedent in that area about not having retail.  Councilor Dantas also requested more retail on the main floor, but expressed concerned about the ability for the business to be sustainable.  Councilor Wolf didn’t want to deter the project from happening and suggested asking the group to sponsor events in the mall area to generate the synergy.  Both Mayor Pro Tem Goulding and Councilor Fancher were supportive of the project.  Mayor Carroll praised the applicant and staff who worked so diligently to complete the application and move through the process.

Mayor Pro Tem Goulding moved to approve Ordinance No. 13-03, Ordinance Approving a Rezoning Application from the Planned Unit Development (PUD) Zone District to the Town Center (TC) Zone District, for Lot 1, a Resubdivision of Lot 61, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County; Approving a Major Development Plan Application; Approving an Alternative Equivalent Compliance Application; and Approving a Development Agreement for “Wyndham – Lot 61”, located on lot 1, a Resubdivision of 61, Block 2, Benchmark at Beaver Creek. . Councilor Dantas seconded the motion. At this time Town Manager Virginia Egger noted that a site walk was completed by staff and that the width of lettuce shed lane might be better served with benches and pedestrian amenities. She suggested that the town would redesign the walkway to create a more attractive area. She suggested language that might address this in the development agreement. Dominic Mauriello noted that the applicant would be favorable as long as there were no impacts to the east side of the project since it was currently in the design phase. It was suggested that the language be included in Section 5.2 with some lettering revisions. Dominic Mauriello noted that he wasn’t certain about having to go through the process again; he would prefer that the design changes not have to come back to the town council. Mayor Pro Tem Goulding amended his motion to include the following language in Section 5.2: Town and Owner agree that areas A, B and C may be redesigned to include seating and other pedestrian amenities. Town will be responsible for recommending at its option, to Owner in a timely manner such changes and upon Owner’s agreement the redesign shall proceed to PZC for design approval. Councilor Wolf seconded the amendment to the motion and both passed with a five to one vote by those members present (Councilor Reynolds – nay; Councilor Evans absent). Councilor Reynolds left the meeting at 8 pm.

d) VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION i) Public Hearing on Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek Metropolitan District Service Plan – Action to continue to the regular Council Meeting of March 12, 2013 ii) Public Hearing on Resolution No. 13-03, Series of 2013, Approving Amendments to The Village Metropolitan District Service - Action to continue to the regular Council Meeting of March 12, 2013 Eric Heil, Town Attorney, presented an update regarding the many settlement documents pending final review and execution per the memo update in the council packet. Mayor Carroll opened the public hearing on Resolution No. 13-02, no comments were made, and the hearing was closed. Mayor Pro Tem Goulding moved to continue the public hearing for the Amendments to the Traer Creek Metropolitan District Service Plan to March 26, 2013. Councilor Fancher seconded the motion and it passed unanimously by those present. (Councilor Evans and Councilor Reynolds absent). Avon Town Council Meeting February 26, 2013 Page 5 of 7

TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

Mayor Carroll opened the public hearing on Resolution No. 13-03, no comments were made, the hearing was closed. Mayor Pro Tem Goulding moved to continue the public hearing for the Amendments to the Village Metropolitan District Service Plan Amendments to March 26, 2013. Councilor Fancher seconded the motion and it passed unanimously by those present. (Councilor Evans and Councilor Reynolds absent).

e) Public Hearing on Second Reading of Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments (Virginia Egger, Town Manager)

Virginia Egger, Town Manager, presented Ordinance No. 13-04 noting that there would be further review of whether or not a Public Works Director would be hired in light of thorough analysis of how each of the divisions operate. She welcomed any council input on the topic. There was a request to review the number of employees reporting to a manager so as not to get out of line with that ratio. Mayor Carroll opened the public hearing, no comments were made and the hearing was closed. Councilor Dantas moved to approve Ordinance 13-04, Series of 2013, Ordinance Amending Section 2.02.010 of Town of Avon Municipal Code to Establish a Parks and Recreation Department and Eliminate the Human Resources and Transportation Administrative Departments. Mayor Pro Tem Goulding seconded the motion and it passed with a four to one vote by those present (Councilor Wolf – nay; Councilor Evans and Councilor Reynolds absent).

f) Action on Resolution No. 13-07, Series of 2013, Resolution Adopting the Town of Avon Strategic Statement and 2013 Strategy developed at the January 14th Council Retreat (Rich Carroll, Mayor) Mayor Carroll noted the final paragraph of the resolution to include a more flexible review schedule. There was strong support for the strategic plan and Mayor Pro Tem Goulding moved to approve Resolution No. 13- 07, Series of 2013, Resolution Adopting the Town of Avon Strategic Statement and 2013 Strategy developed at the January 14th Council Retreat with the addition in the last “Whereas paragraph” as follows: WHEREAS, the Town Council has committed to timely review of the 2013-14 Strategic Plan and 2013 Work Plan, with an opportunity for the Avon Town Council to meet during the 3rd quarter of 2013, or as may be determined, to evaluate and amend these plans accordingly. Councilor Dantas seconded the motion and it passed unanimously by those present (Councilor Evans and Councilor Reynolds absent).

g) Action on Amendment to Town Manager Employment Agreement (Virginia Egger, Town Manager) Town Manager Virginia Egger noted that the amendment to the town manager agreement was drafted as a result of council retreat. There was some discussion about the timing of the review which would determine if it were an “outgoing” or an “incoming” town council. Council addressed numerous topics during the discussion as follows:  Timing of the manager’s review  What type of review will occur  How long with the review process take  When will the rest of the organization be reviewed  How does this coincide with the budget process

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TOWN OF AVON, COLORADO MINUTES FOR THE AVON REGULAR MEETING FOR TUESDAY FEBRUARY 26, 2013 MEETING BEGINS AT 4 PM AVON TOWN HALL, ONE LAKE STREET

After this discussion, there was consensus to revise Section 5.0 Performance Review and a motion was made by Mayor Pro Tem Goulding to approve the “Amendment to Town Manager Employment Agreement with Virginia Egger” with revision to the language as follows: 5.0 PERFORMANCE REVIEW. The Town Council shall review the performance of Manager during the week of July 8, 2013 and thereafter during the first week of October second week of November of each calendar year. The Town Council also may require a performance evaluation at any time a majority of the Council deems a review is necessary. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans and Councilor Reynolds absent).

h) Action on Performance Evaluation Process and Criteria for Town Manager (Rich Carroll, Mayor) Mayor Carroll presented this topic. There was clarification about the use of the “ad hoc” committee in that the meaning includes the “organizers of the process”. There was consensus to think about the information and talk about it again on March 12th.

WORK SESSION - CONTINUED b) Committee and Board Meeting Updates i) Meeting with Chris Romer, Vail Valley Partnership (Councilor Fancher) Virginia Egger met with Chris Romer and became very informed about the group and the kinds of programs they oversee. ii) Meeting with Ceil Folz, Vail Valley Foundation (Councilor Fancher & Councilor Reynolds) Councilor Fancher provided an update on the meeting with VVF which addressed many topics, such as the town’s role with 2015, how the town can identify opportunities, etc. It was noted that town staff would be meeting about this topic as well. c) Financial Matters (Kelly Huitt, Budget Analyst) Memo Only

MAYOR REPORT 1) Future Agenda Items were discussed noting that March 12th would include meeting with Eagle County Commissioners and March 26th would include Village at Avon Service Plans.

There being no further business to come before the Council, the regular meeting adjourned at 9 PM.

RESPECTFULLY SUBMITTED: ______Patty McKenny, Town Clerk

APPROVED: Rich Carroll ______Dave Dantas ______Chris Evans ______Jennie Fancher ______Todd Goulding ______Albert “Buz” Reynolds ______Jake Wolf ______

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TOWN COUNCIL REPORT

To: Honorable Mayor Rich Carroll and Avon Town Council From: Lt. Greg Daly Date: Wednesday, March 26, 2013 Agenda Topic: Request to Transfer Ownership/ Management of Town of Avon Radio License - Call Sign WPRG237.

Background Information: The Town of Avon (TOA) is a subscriber and user of Eagle County’s 800 MHZ Radio System (800 MHZ System). Three Town of Avon departments, Police, Transit and Road and Bridge, rely on the system.

The 800 MHZ System was developed originally for first responders and emergency services, but has expanded to also include transportation, the school district and the water and sanitation districts. The primary County- wide users are the Fire, Police and Ambulance services. The 800 MHZ System is also part of the State-wide digital radio system.

There are eight (8) radio tower sites owned, managed and maintained by Eagle County as part of the 800 MHZ System. In addition, Eagle County employs a radio technician, who maintains the radio infrastructure. These costs are funded through an annual subscriber’s fee, which are calculated primarily upon the number of subscriber radios and percentage timed used by each subscriber entity. TOA, as a subscriber, has been charged $41,800 for 2013, based upon a previous two year running average. The total budget for the 800 MHZ System is $530,000.

The 800 MHZ System is governed by the subscribers (users) of the system, with oversight responsibility for the management and maintenance of the 800 MHZ System. Eagle County manages the collection of fees and expenditures payments. Lieutenant Greg Daly sits on the governing board on behalf of TOA.

When the system was being implemented, the TOA applied for an 800 MHZ Radio License, titled the “AVON, TOWN OF”, Call Sign WPRG237, (“License”) to operate the Dowd Junction radio site. This is one of many licenses used on the County-wide system.

Action before Council is to transfer this License to Eagle County. The primary benefit of transferring the License is to allow central management of all the County licenses by the Eagle County Emergency Manager, rather than coming to the Town of Avon for minor administrative changes within the License. The license is not of financial value to the Town as it is integrated into the County-wide system, and functionally TOA Police, Road and Bridge and Transit Departments cannot operate without use of all of the other County-wide frequencies and licenses. There is no adverse financial implication for the Town of Avon.

Staff Recommendation(s): Council pass a motion authorizing the Mayor to sign the attached letter addressed to the Federal Communications Commission, which will allow for the transfer of the AVON, TOWN OF”, Call Sign WPRG237 License from the Town of Avon, Colorado, to Eagle County, Colorado, in order to streamline management of the County-wide system.

Attachments, if any: Letter to the Federal Communications Commission Post Office Box 975 1 Lake Street Avon, CO 81620

970-748-4000 970-949-9139 Fax 970-845-7708 TTY

March 26, 2013

Federal Communication Commission Public Safety Bureau 445 12th Street SW, Washington, DC 20554

Ladies/Gentlemen:

The Town of Avon desires to assign their frequency license currently in the name “AVON, TOWN OF”, call sign WPRG237, to “EAGLE, COUNTY OF”, Colorado. In doing so, we ask that the Avon’s Federal Communications Commission (FCC) Registration Number (FRN) (13989843) be removed and the Eagle County FCC Registration Number FRN (1620285) be entered in its place. Henceforth, Eagle County will be managing and updating this license.

For the Town or Avon:

______Rich Carroll Date Town Mayor

Attest:

______Patty McKenny Town Clerk

For Eagle County:

On behalf of Eagle County, Colorado, We accept the assignment of License, call sign WPRG237, from the Town of Avon, Colorado and we agree to the FRN change to our FRN #1620285.

______Barry Smith Date Eagle County Radio System Manager

TOWN COUNCIL REPORT

To: Honorable Mayor Rich Carroll and Avon Town Council From: Jared Barnes, Planner I Date: Friday, March 22, 2013 Agenda Topic: Resolution 13-11, Approving A Variance Request for Lots 2 and 3, Wildridge Point Subdivision; and, First Reading of Ordinance 13-05, Approving A Minor PUD Amendment and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge Subdivision

Summary of Requests The Applicant, Dominic Mauriello of Mauriello Planning Group, representing the owner, Mountain C.I. Holdings LTD, has submitted a Minor PUD Amendment, Minor Subdivision, and Variance Applications (“the Application”). The Application requests a Minor Amendment to the Wildridge PUD to modify two (2) duplex lots, Lots 33 & 34, Block 4, Wildridge Subdivision (“the Property”), into three (3) single-family lots, Lots 1-3, Wildridge Point Subdivision. Included with this report are a Vicinity Map (Attachment A), Application Materials dated January 28th, 2013 (Attachment B), Public Comment (Attachment C), Revised Application Materials dated February 25th, 2013 (Attachment D), Revised Application Materials dated March 19th, 2013 (Attachment E), PZC Findings of Fact, Record of Decision, and Recommendation (Attachment F), Applicant’s Appeal Letter dated March 18th, 2013 (Attachment G), Resolution 13-11 (Attachment H), and Ordinance 13-05 (Attachment I).

Application Process (§7.16.020, AMC) Public Notification In order to comply with the Public Hearing and pertinent noticing requirements, a mailed notice was provided to all property owners within 300’ of the property. In addition, a notice was published in the Vail Daily newspaper on Friday, March 15, 2013.

Public Hearings Each of the separate requests within the Application has different review criteria. The Planning and Zoning Commission (PZC) is responsible for review and rendering a decision on the Variance Application. The PZC reviews the PUD Application and provides a recommendation to the Town Council after conducting a public hearing, as discussed below. The Minor Subdivision is reviewed and acted upon by the Town Council after holding a public hearing.

The PZC held a public hearing at their February 5th, 2013 meeting and continued the item to the March 5th, 2013 meeting. The PZC made a recommendation on the Minor PUD Amendment with conditions affecting the Minor Subdivision to the Town Council for Final Action, which is included as Attachment F, and will be discussed later in this report.

PUD Process In the fall of 2012, the Applicant approached the Town inquiring about the process for a Minor PUD amendment for parcels within the Wildridge Subdivision. The Town produced a letter for the applicant stating that such request would be processed under Section 7.16.060(h), Amendments to a Final PUD. This section refers to Section 7.16.020(g), Minor Amendments, which is allowed so long as the application does not result in a change to the housing mix. This section also allows the Community Development Director to render a decision on a Minor Amendment so long as there is not a material change to the approved development application. Staff determined that the proposed Application did not result in a change to the housing mix, but did result in a material change to the approved development Application, and as such, the Director referred the Application to both the PZC and Town Council for public hearings.

Background Benchmark Properties created the Wildridge Subdivision in 1979, shortly after the incorporation of the Town of Avon on February 28, 1978. The Plat was amended a few times with the most recent version being “Wildridge Replat No. 2”. According to the Wildridge Final Plat for Wildridge and Wildwood Subdivisions (currently Mountain Star PUD and Subdivision), the overall development concept was for “abundant open space recreation areas around lots” with a density of “barely one dwelling unit per acre”.

Proposed Application The Application proposes to convert two (2) duplex lots into three (3) single-family lots. In order to process this request, Town Staff determined that three (3) separate applications are required as follows: (1) a Minor PUD Amendment application; (2) a Minor Subdivision application; and, (3) a Variance application. The Minor PUD Amendment and Minor Subdivision are required to change the zoning of the two (2) existing lots and plat three (3) new lots, while the Variance is required to allow for development on slopes in excess of forty percent (40%) and to allow for a building envelope to include area in excess of thirty percent (30%). Each of these requests will be discussed as a whole in the forthcoming sections of this memo.

PZC Review The PZC held two (2) public hearings for the proposal on February 5th, 2013 and March 5th, 2013. They discussed the proposed Application with respect to the existing zoning, impacts on the property, public input, and compliance with the applicable codes. At their February 5th, 2013 meeting, the PZC ultimately requested additional information regarding building footprint sizes and illustrations representing the potential development from Wildridge Road. The Applicant provided revised drawings to respond to the PZC comments and a response to the Colorado Geologic Survey’s (CGS) concerns in their resubmission dated February 25th, 2013 and attached to this memo as Attachment D.

The PZC also requested additional information regarding the intent of the Steep Slopes section, when discussed during the Development Code adoption by Town Council. Staff reviewed the minutes of those meetings and was unable to determine the exact discussion, but generally speaking the Town Council viewed amendments to the Wildridge PUD as a resubdivision not a new subdivision, but failed to address the PUD or Zoning Amendment aspect of the applicability section, as discussed later in this report. Staff recommended the PZC act on a Variance request through one (1) of two (2) draft resolutions; a denial as recommended by Staff; or, approval as the PZC directed Staff to prepare. Through their review, the PZC determined that a Variance was not warranted because the Application was a re-subdivision and not a new subdivision, therefore, it did not meet the applicability criteria.

Ultimately the PZC approved a “Findings of Fact, Record of Decision, and Recommendation” (Attachment F) with twelve (12) Findings and two (2) conditions. The conditions are as follows:

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 2 1. The Building footprint on Lot 2 shall be limited to 3,000 gross sq. ft. (including garage) and the building footprint on Lot 3 shall be limited to 2,500 gross sq. ft. (including garage) and, 2. The above mentioned condition shall be included on the Final Plat for the Wildridge Point Subdivision as a plat note.

PZC Variance Review The Variance Application was one of the more intensely discussed aspects of this Application and pertains to the following sections of the Municipal Code, §7.28.100(a), Steep Slopes, §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes. Each of these sections discuss how to develop on lots that contain areas in excess of thirty (30) or forty (40) percent slope. The Steep Slopes section prohibits all development on natural slopes exceeding forty percent (40%), as well as provides limitations on changing these natural grades. The Buildable Area section requires all lots to contain a buildable area less than forty percent (40%) that is of a size large enough to be consistent with the minimum lot size for the governing zone district. The Building Envelopes section requires a platted building envelope for all lots that contain slopes steeper than thirty percent (30%).

The Applicant states in Attachment B that the proposal is solely a resubdivision and addition of a lot line and should not be subject to the above-referenced regulations. Section 7.28.100(a)(2), Applicability, requires the standards of the Steep Slopes section (§7.28.100(a)) of the Natural Resources Chapter (§7.28.100) to apply to “any new subdivision, PUD or zoning amendment when any portion of the lot contains naturally occurring slopes of thirty percent (30%) or greater”. The PZC discussed this request and agreed with the Applicant that the proposal is a resubdivision, not a new subdivision. They also made the determination that the PUD zone district classification is not changing therefore the Application is not a zoning amendment. These determinations are formalized through Findings #4 and #6 of Attachment F.

Section 7.32.020(e)(1), Applicability, requires the standards of §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes, to apply to “all new lots, replats of lots, tracts and blocks, with the exception of condominium and duplex subdivisions that are in conformance with their preliminary plan.” Staff has determined that these code sections do apply to this Application since the Application is a replat of a lot. The PZC determined, through Findings #8 and #9, the Application either does comply with these standards or doesn’t need to comply with the standards.

With regard to the Building Envelope Section (§7.32.020(e)(7)), the PZC determined that platting of non- developable areas and inclusion of maximum building footprint sizes creates a de facto building envelope thus complying with the intent of this section. The PZC determined that the Buildable Area Section (§7.32.020(e)(6)) should not apply because the property is already permitted to develop on areas exceeding forty percent (40%).

In the preparation of actions on the Application for Council consideration, Staff concluded based on the above discussion, PZC made accurate Findings with regard to the applicability for §7.28.100(a), Steep Slopes. The PZC did not adequately consider the requirements of §7.32.020(e)(7), Building Envelopes, or §7.32.020(e)(7), Buildable Area, which prohibit lots from containing slopes in excess of thirty percent (30%) and forty percent (40%) respectively. Therefore, a Variance approval is required.

The Applicant agrees with the Staff determination that a Variance is needed and has appealed the PZC’s lack of action on the Variance Application to the Town Council to act upon. This will allow the Application to be heard by Council on March 26th versus the Variance being re-noticed for a PZC action. As illustrated in

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 3 Attachment F, Findings#8 and #9, the PZC had clearly supported the requested Variance for §7.32.020(e)(6), Buildable Area, and §7.32.020(e)(7), Building Envelopes. As such, Staff has prepared Resolution 13-11 (Attachment H) to approve the Variance request pursuant to the discussion and Findings made by the PZC during their review.

Planning Analysis The original Wildridge “Specially Planned Area” (now considered a “PUD” by default) and the accompanying Subdivision plat were established with a specific purpose and intent: to offer a diverse range of housing types and options to serve a diverse local population. As such, the housing types in the Wildridge PUD and Plat are diverse: single-family homes, duplexes, triplexes, four-plexes, and other forms of multi- family structures because the housing needs of the local population were, are, and continue to be diverse.

At their February 5th, 2013 meeting, the PZC discussed the purpose of the Wildridge PUD and the intent of the accompanying plat were discussed. The PZC determined the proposed PUD Amendment would not significantly alter the housing types provided for in the original PUD and Plat due to the location of the property along with the anticipated development pattern that would occur on the site.

When a multi-family structure, or a duplex, gets “down-zoned” to separate single-family houses, the corresponding site disturbance with such a configuration increases proportionally with each newly separated-out unit (individual excavation for each foundation, impervious surfaces, roof forms, site retaining, etc). The Colorado Geologic Survey (CGS) commented on the potential for increased site disturbances in their public comment (Attachment C). The Applicant responded to these concerns through their proposed revisions in Attachment D. These revisions show potential designs of limited building footprint sizes ranging from 2,500 to 3,500 square feet. These building footprint limitations also show potential driveway locations and preliminary grading and site retention for the driveways. As stated earlier, the PZC analyzed these options and recommended a 3,000 sq. ft. cap for Lot 2 and a 2,500 sq. ft. cap for Lot 3.

Over the years, there have been amendments wherein development rights have been altered and replatted through the PUD and Subdivision process. The most recent amendment was for the Dry Creek PUD in Block 2 of the Wildridge subdivision, wherein a four-plex lot was converted to three (3) single-family residences. This PUD amendment was also predicated on approval of a subdivision variance, and reduced the number of dwelling units by one (1) and limited the maximum site coverage allowed per lot.

Other PUD Amendment approvals include: Western Sage PUD in Block 4; Point View PUD in Block 1; Wildridge Acres in Block 2; and, Lots 42 & 43 in Block 4. Each of these examples provided multiple public benefits including, but not limited to: loss of at least a single development right; platted non-developable areas; capped unit size; and/or, maximum footprint size. In each case, these PUDs were approved prior to the inclusion of the Public Benefit Criteria being added to the PUD review criteria and prior to the adoption of the Avon Development Code.

The Property, as platted and zoned today, can be developed with either two (2) duplex structures, two (2) single-family structures, or one (1) duplex structure and one (1) single-family structure. The Application proposes to amend these development rights by creating a new PUD and Subdivision within the Wildridge PUD, called “Wildridge Point”. As is exhibited on page 8 of Attachment B, the new lots will meet the

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 4 minimum lot size standards for the Residential Low Density (RLD) zone district and the Wildridge Subdivision. Page 3 of the proposed Final Plat (Exhibit A to Ordinance 13-05 (Attachment I)) shows the topographic map, shading areas that exceed forty percent (40%) in slopes. As seen on this survey, a majority of Lot 34 is developable with areas less than forty percent (40%) slope, while a majority of Lot 33 contains areas exceeding forty percent (40%) slope. Upon further review of the survey, some of the area that exceed forty percent (40%) slope approaches sixty percent (60%) slope within the proposed developable area, with some of the areas exceeding seventy percent (70%) slope in the proposed “non- developable” area. In summary, a vast majority of Lot 33 is extremely steep.

The Wildridge Point subdivision will also plat “non-developable” areas on each new lot. The proposed “non-developable” areas encompass the downhill portions of the lots and likely areas that would not be affected by the existing or proposed style of development, due to the existence of a thirty foot (30’) wide utility easement. Previously, Staff raised concerns about Plat Note #4 which set forth the types of development that cannot occur in “non-developable” areas by limiting it to “buildings, fences, signs, and roads”. The Applicant has addressed this issue with a revised Final Plat and limited all forms of development from the non-developable areas unless approved by the Town.

The proposed subdivision also includes a no-build/view easement on proposed Lot 1. This easement is for the benefit of the neighboring property to the west: Lot 35, Block 4, Wildridge. It is governed by Plat Note #5 and states that berming and landscaping may occur in this area only with written approval from the owner of Lot 35.

Through the PZC review a recommendation was made to limit the building footprints on Lots 2 and 3 to 3,000 gross sq. ft. and 2,500 gross sq. ft. respectively, inclusive of garage area. The applicant has agreed to this restriction and included it as Plat Note #6.

Additional Staff analysis will be included in the Staff response to each individual review criteria.

Review Criteria - PUD Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the PZC and Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a PUD plan: (i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or incorporates creative site design such that it achieves the purposes of this Development Code and represents an improvement in quality over what could have been accomplished through strict application of the otherwise applicable district or development standards. Such improvements in quality may include, but are not limited to: improvements in open space provision and access; environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and other utilities and services; or increased choice of living and housing environments. Staff Response: The Application is to modify existing platted lots within the Wildridge PUD. The Application states that the proposed no-build zone, reduction in density, development pattern ensuring light and air between the structures, and smaller building footprints are a public benefit as stated on pages 17-18 of Attachment B. Staff agrees with this determination in light of the revisions provided in Attachment D. The reduction in density coupled with the limitation on maximum building footprint size will likely reduce the impacts on the land by not allowing the lots be developed with side-by-side or “coast-to-coast” structures. The inclusion of non-developable areas and limitations on building

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 5 footprint sizes create a de facto building envelope, but afford the property owner some flexibility in the location of the structures once detailed access design and building design are pursued. These limitations also ensure that the proposed increase in light and air between structures will be achieved. The Applicant has agreed to the PZC recommended limitations for maximum building footprint sizes of 3,000 sq. ft. for Lot 2 and 2,500 sq. ft. for Lot 3. Staff is of the opinion that these sizes are suitable for the subject lots and based on the potential development pattern, illustrated in Attachment D, the proposed public benefits can be achieved. The Application does not ensure that the total size of the structures will be of a smaller size than duplex structures or that they will utilize less water rights (SFEs) than duplexes, but the inclusion of maximum building footprint sizes will provide a clearer understanding of the maximum bulk of the structures on Lots 2 and 3. Ultimately the public comments (Attachment C) by the Eagle River Water and Sanitation District (ERWSD) will need to be addressed if a building permit is requested for a structure exceeding 3,000 sq. ft. or the equivalent square footage of an SFE at the time.

(ii) The PUD rezoning will promote the public health, safety, and general welfare; Staff Response: The current allowed development rights and the proposed development rights will create the same ongoing impacts, with respects to this criterion, for the immediate neighborhood and Wildridge as a whole.

(iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b); Staff Response: The proposed PUD amendment appears to generally comply with the Avon Comprehensive Plan. The Application complies with the Future Land Use Plan by modifying the zoning to a development pattern, single-family residences, which is allowed within the RLD zone district. Furthermore, the proposed average density of one and a quarter (1.24) complies with the maximum allowed in the RLD zone district. The following policies of the Comprehensive Plan are identified where the Application is not in strict compliance with the Comprehensive Plan. Policy B.2.3: Encourage cluster style development in areas of less density to promote creative and efficient site design that avoids impacts on environmental resources and augments open space Staff Comment: Although the Application proposes “non-developable” areas and building footprint limitations, it is not clear that these areas will further cluster development. However they do ensure, with the revisions provided, that impacts of development will avoid the steepest slopes. By restricting the non-developable areas from all forms of development, the Applicant has provided areas that will visually appear as open space, although public access will not be allowed. Policy H.2.1: Avoid development in environmental hazard areas such as floodplains, steep slopes, areas with geologic hazards, wildfire hazard areas, and areas with erosive soils. Staff Comment: The existing platted lots would allow development on these steep lots and development is proposed within areas of steep existing topography. Although the Application does not avoid all development on steep slopes, it does help further this policy of the Comprehensive Plan by providing building footprint limitations on Lots 2 and 3, where the steeper slopes occur. This provision will ensure that the buildings are limited in their impact on the steep slopes, which cannot be ensured under the current zoning.

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 6 Based on the discussions the PZC meetings, the Application meets all of the eligibility criteria as outlined in §7.16.060(b). Most notably, §7.16.060(b)(5), Public Benefit, states: “A recognizable and material benefit will be realized by both the future residents and the Town as a whole through the establishment of a PUD, where such benefit would otherwise be infeasible or unlikely.” As discussed in Review Criteria #1, above, and stated throughout this report, Staff does believe the Application proposes public benefits that would otherwise be infeasible or unlikely under the current zoning. The inclusion of building footprint limitations and non-developable areas ensure that the development pattern that will occur on the property will be responsive to the natural environment and will provide increased access to light and air. The Application, as proposed, does ensure that the public benefits, as presented by the applicant, would be better achieved through this rezoning than would be achieved by the existing zoning.

(iv) Facilities and services (including roads and transportation, water, gas, electric, police and fire protection, and sewage and waste disposal, as applicable) will be available to serve the subject property while maintaining adequate levels of service to existing development; Staff Response: As proposed, the PUD amendment will have little to no effect on most services. As mentioned previously in this report, the future development may create the need for additional water rights (SFEs) due to the un-capped size of units, even though the building footprints will be limited. This need will be mitigated through a surcharge applied to each building at the time of Building Permit issuance if required.

(v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife, and vegetation, or such impacts will be substantially mitigated; Staff Response: The property was originally zoned and platted as a “Specially Planned Area” and therefore does not have an underlying zoning. When the proposed PUD Amendment is compared to the existing Wildridge PUD, there is evidence that the proposal will reduce the impacts on the natural environment. The proposed three (3) single-family structures, and associated lots, with building footprint limitations and platted non-developable areas will ensure a reduced impact on the existing topography and natural environment that cannot be achieved with the development of two (2) duplexes as the current zoning permits.

(vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon other property in the vicinity of the subject tract; and Staff Response: As discussed in the previous review criteria, the uncertain pattern of existing and the more certain pattern of proposed development will likely reduce the impact the other properties in the vicinity. Due to the limitation on maximum building footprint size for Lots 2 and 3 and the non- developable area, the project could experience reduced aesthetic impacts by ensuring light and air and limitations on the structures “growing” down the hillside. These limitations will also likely reduce the need for additional site retention on the steeper slopes that exist on the southern and southeastern portions of the property. The proposed massing studies included in Attachment D illustrate potential visual impacts of these structures next to the existing single-family residence on Lot 35 as viewed from the properties along Wildridge Road East above.

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 7 (vii) Future uses on the subject tract will be compatible in scale with uses or potential future uses on other properties in the vicinity of the subject tract. Staff Response: The single-family residential use provides an efficient, workable relationship with surrounding uses and activity, as does the duplex land use. There is a mix of single-family and duplex buildings in close proximity to these lots.

Review Criteria - Subdivision Pursuant to §7.16.070(f), Final Plat Review Criteria, AMC, the Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a Minor Subdivision: (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 letter including, but not limited to, water, sewer, electric, gas, and telecommunication facilities. Staff Response: The Town Engineer has reviewed the proposed Final Plat and has deemed that it is accurate in describing the property and complies with the technical requirements of the Development Code, with the exception of the two previously discussed code sections, §7.32.020(e)(7), Building Envelopes , and §7.32.020(e)(6), Buildable Area, that limit building envelopes and buildable area to areas in excess of thirty percent (30%) and forty percent (40%) in slope respectively. A Preliminary Plan for Subdivision is not a requirement of a Minor Subdivision process; therefore review criteria 2 and 3 should not apply.

Review Criteria - Variance Pursuant to §7.16.110(c), Review Criteria, AMC, the Town Council shall consider a number of review criteria when evaluating this Application. The following criteria must be considered when forming the basis of a recommendation or decision on a Variance: (c) Review Criteria. The PZC shall use the following review criteria as the basis for a decision on an application for a variance: (1) The degree to which relief from the strict or literal interpretation and enforcements of a specified regulation is necessary to achieve compatibility and uniformity of treatment among

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 8 sites in the vicinity, or to attain the objectives of the Development Code without grant of special privilege; (2) The effect of the requested variance on light and air, distribution of population, transportation and traffic facilities, public facilities and utilities, and public safety; (3) Such other factors and criteria related to the subject property, proposed development, or variance request as the decision-making body deems applicable to the proposed variance. Staff Response: Staff has provided an analysis of this process in the PZC Variance Review section above.

Council Action: If the Council is satisfied with the PZC recommendations and Application, they should take two courses of action. 1. First, approve Resolution No: 13-11. 2. Second, approve the First Reading of Ordinance No: 13-05 and, schedule a public hearing and Second Reading of Ordinance No: 13-05 on April 9th, 2013.

Attachments: A: Vicinity Map B: Application Materials dated January 28th, 2013 C: Public Comment D: Revised Application Materials dated February 25th, 2013 E: Revised Application Materials dated March 19th, 2013 F: PZC Findings of Fact, Record of Decision, and Recommendation G: Applicant’s Appeal Letter dated March 18th, 2013 H: Resolution 13-11 I: Ordinance 13-05

Lots 33-34, Block 4, Wildridge – Wildridge Point PUD and Subdivision Page 9 Lots 33 & 34, Blk 4, Wildridge Attachment A

L ON GSUN LN

WILDRIDGE RD E

Lot 33

Lot 34

Source: Esri, i-cubed, USDA, USGS, AEX, GeoEye, Getmapping, Aerogrid, IGN, IGP, and the GIS User Community

Lots 33 and 34 This map was produced by the Community Development Department. Feet Use of this map should be for general purposes only. Town of Avon does not warrant the accuracy of the data contained herein. Property Boundaries I 0 80 160 Author: JKoenig, Date: 03/20/13 Attachment B

WILDRIDGE POINT

Minor PUD Amendment Minor Subdivision Variance A Resubdivision of Lots 33 and 34, Block 4, Wildridge Subdivision

Submitted: November 21, 2012 Rev. Dec 31, 2012 Rev. January 28, 2013

1 Attachment B

TABLE OF CONTENTS

A. Introduction 3

B. Background 4

C. Precedent and Other Similar Applications 6

D. Zoning Analysis 8

E. Criteria for Review - Minor Subdivision 9

F. Criteria for Review - Final Plat 15

G. Criteria for Review - Variance 16

H. Criteria for Review - Planned Unit Development 17

I. Adjacent Addresses 23

J. Appendices 24

1. Proposed Final Plat and Topo Survey of Wildridge Point

2. 1981 Wildridge Final Plat

3. Letter from Staff 9/19/12

4. Title Reports

2 Attachment B

A. INTRODUCTION The applicant, Mountain C.I. Holdings LTD, represented by Mauriello Planning Group, is requesting a Minor Amendment and Minor Subdivision for Lots 33 and 34, Block 4, Wildridge Subdivision. In addition, the applicant is requesting a variance from the standards of Sections 7.28.100.a. and 7.32.020.e.6. Lots 33 and 34 are duplex lots, allowing for a total of 4 units on the site. The applicant is requesting to create Lots 1, 2, and 3 of Wildridge Point Subdivision, which would be single-family lots, therefore reducing the total to 3 dwelling units on the site. Because the lots are located within the Wildridge PUD, a minor amendment and a minor subdivision are required. The proposed final plat is included in the Appendix. Below is a portion of the plat, indicating the lot line to be vacated and the new proposed lot lines creating Lots 1, 2, and 3.

Lot lines to be Lot lines to created.

Lot line to be vacated.

By reducing the density and allowing for 3 smaller lots, the overall building mass and footprints are reduced in overall scale. The three units are appropriately spaced and allow for views, light, and air between the homes, giving a feeling of more openness. The drawings that follow give an example of the perception of open space as viewed from the roadway vs. the duplex format.

3 Attachment B

Duplex Format Single-Family Format

B. BACKGROUND The Town of Avon was incorporated in 1978, and Benchmark Properties created the Wildridge and Wildwood Subdivisions shortly thereafter. Subsequently, the Wildridge Subdivision was completely replatted in 1981. The Wildridge PUD and Subdivision are unique in comparison to more recent PUDs created in the Town of Avon. In general, the requirements of the PUD are provided on the 1981 plat of Wildridge. It is this plat that includes all of the allowable land uses, building heights, setbacks, etc., which are regulated by the Town. Along with these standards, the 1981 plat provides the “developable area” of certain lots within the subdivision. The developable area is indicated in the following manner:

Lots 33 and 34 do not include any non-developable area, as indicated on the 1981 plat:

4 Attachment B

As a result, Lots 33 and 34 are entirely developable and the requirements of Sections 7.28.100.a. and 7.32.020.e.6 are therefore not applicable since this PUD specifically allows for developable areas and is a resubdivision of existing platted lots. A variance application has been submitted to vary from standards that are “applicable to a new subdivision.” The Applicant disagrees that these standards were ever intended to apply to an amended plat or a Minor PUD amendment but has applied for the variance in deference to the staff opinion. The variance request is reviewed by the Planning and Zoning Commission, and the review can be called-up by the Town Council. Various amendments within the PUD have occurred within the subsequent 30 years. These amendments have been in various forms: amendments to the PUD, new PUDs within the PUD, etc. However, with the recently adopted Avon Development Code, the process has been simplified to a minor amendment (Section 7.16.020): (g) Minor Amendment. The applicant may apply to the Director for minor amendments to an approved development application. Minor amendments to an approved development application may be approved, approved with conditions, or denied administratively by the Director. The Director is authorized to approve minor amendments only if the development approval, as so amended, complies with the standards of the Development Code. The Director may refer a minor amendment to the decision-making body that was responsible for the original approval if the Director determines the amendment may result in a material change to the approved development application. Proposed amendments to an approved development application which are determined by the Director to not be a minor amendment shall be reviewed and processed in the same manner as would be required under this Development Code for the original application for which the amendment is sought and shall include full application fees. Minor amendments shall consist of any of the following: (1) Any change to any permit or other form of approval that was originally subject only to administrative review and was approved by the Director, provided such change would not have disqualified the original application from administrative review under this Development Code had it been requested at that time; and provided that the minor amendment does not result in an increase of more than ten percent (10%) in the amount of square footage of a land use or structure and does not result in a change in the types of uses in the project. (2) Correction of any errors caused by mistakes that do not materially alter the substance of the development plan or plat as represented to the Council. (3) A change to an approved design which results in a ten percent (10%) or less increase to lot coverage; ten percent (10%) or less increase to building height; adjustments to building footprints, access and parking configurations which are less than ten (10) feet; alterations to the landscaping plan or drainage plan which substantially comply with the original approval; and, changes to doors, windows, roofs, or building articulation which are less than two (2) feet and which do not alter or diminish the overall design character as approved; as are all determined by the Director. (4) Changes to an approved development application which do not result in: (i) An increase in the approved number of dwelling units; (ii) An increase in the amount of square footage of a non-residential land use or structure; (iii) A change in the housing mix or use mix ratio; or, (iv) A change in the character of the development.

5 Attachment B

In this case, the Planning Staff interpreted that the change from two duplex residences to three single family residences does not constitute a change in the housing mix and that this application will be reviewed as a Minor Amendment since today the property can either be developed with 2 single family houses or 2 duplexes (4 units). However, Staff is referring the application to both the Planning and Zoning Commission and the Town Council for public hearings. The letter of this determination by staff is included in the Appendix. In addition to the Minor Amendment process, the proposal is reviewed as a minor subdivision, which is described as follows: (2) Minor Subdivisions. 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. Condominium and timeshare subdivisions more than four (4) units which do not propose public improvements shall be processed as minor subdivisions. Because the proposal creates 3 lots from 2 existing lots, the application is reviewed as a Minor Subdivision. As such, the Wildridge Point Subdivision is reviewed only by the Town Council and the Planning and Zoning Commission has no review authority over the Minor Subdivision.

C. PRECEDENT AND OTHER SIMILAR APPLICATIONS Similar projects have been approved by the Town of Avon in the past. For example, the following plat shows a resubdivision of Lot 10 and 11, Block 2, Wildridge approved by the Town of Avon in 2002. This plat took 2 existing duplex lots and re-platted them as 3 single- family lots, a reduction of one dwelling unit.

6 Attachment B

In 2005, the Western Sage PUD allowed for 3 triplex lots and 1 duplex lot to be re-platted into 8 single-family homes, a reduction of 3 dwelling units for the site.

The Dry Creek PUD, approved in 2006, was another similar approval by the Town of Avon. The Dry Creek PUD allowed for Lot 44 which was permitted 4 units to be re-platted into 3 single-family lots, a reduction of one dwelling unit.

While these examples were processed in different ways (PUD within a PUD, amendment to a PUD, etc.) the recently adopted Avon Development Code provides a clear process for minor amendments to an existing PUD, simplifying the approval process for applications such as these.

7 Attachment B

D. ZONING ANALYSIS

Current:

Standard Lot 33 Lot 34 Total

Lot Size (acres) 1.34 1.07 2.41

Units Allowed 2.00 2.00 4.00

Density (du/acre) 1.49 1.87 1.66

Lot Frontage 142 ft. 88 ft. 230 ft.

Proposed:

Standard Lot 1 Lot 2 Lot 3 Total

Lot Size (acres) 1.037 0.572 0.809 2.41

Units Allowed 1.00 1.00 1.00 3.00

Density (du/acre) 0.96 1.75 1.24 1.24

Lot Frontage 70 ft. 83 ft. 77 ft. 230 ft.

There are no changes to any other standards of the Wildridge PUD, with setbacks and height remaining as outlined on the plat. Front setbacks are 25 ft. while side and rear setbacks are 10 ft. The maximum height limitation is 35 ft.

8 Attachment B

E. CRITERIA FOR REVIEW - MINOR SUBDIVISION The Avon Development Code provides the criteria for review for a Minor Subdivision as follows: (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. As a result, the criteria for a preliminary plan are provided below, along with the criteria for final plat review:

(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; Applicant Response: Because the proposal is a minor subdivision of 2 lots into 3 lots, with a reduction in density from 4 units to 3 units, this criterion is not applicable. The subdivision complies with all use, density, development and design standards and has no affect on the layout of other lots, blocks or streets.

(2) The subdivision application shall comply with the purposes of the Development Code; Applicant Response: The purpose of the Development Code is provided in Section 7.04.030 Purposes of the Avon Development Code: The Development Code is intended to promote and achieve the following goals and purposes for the Avon community, including the residents, property owners, business owners and visitors: (a) Divide the Town into zones, restricting and requiring therein the location, erection, construction, reconstruction, alteration and use of buildings, structures and land for trade, industry, residence and other specified uses; regulate the intensity of the use of lot areas; regulate and determine the area of open spaces surrounding such buildings; establish building lines and locations of buildings designed for specified industrial, commercial, residential and other uses within such areas; establish standards to which buildings or structures shall conform; establish standards for use of areas adjoining such buildings or structures; (b) Implement the goals and policies of the Avon Comprehensive Plan and other applicable planning documents of the Town; (c) Comply with the purposes stated in state and federal regulations which authorize the regulations in this Development Code; (d) Avoid undue traffic congestion and degradation of the level of service provided by streets and roadways, promote effective and economical mass transportation and enhance effective, attractive and economical pedestrian opportunities;

9 Attachment B

(e) Promote adequate light, air, landscaping and open space and avoid undue concentration or sprawl of population; (f) Provide a planned and orderly use of land, protection of the environment and preservation of viability, all to conserve the value of the investments of the people of the Avon community and encourage a high quality of life and the most appropriate use of land throughout the municipality; (g) Prevent the inefficient use of land; avoid increased demands on public services and facilities which exceed capacity or degrade the level of service for existing residents; provide for phased development of government services and facilities which maximizes efficiency and optimizes costs to taxpayers and users; and promote sufficient, economical and high-quality provision of all public services and public facilities, including but not limited to water, sewage, schools, libraries, police, parks, recreation, open space and medical facilities; (h) Minimize the risk of damage and injury to people, structures and public infrastructure created by wild fire, avalanche, unstable slopes, rock fall, mudslides, flood danger and other natural hazards; (i) Achieve or exceed federal clean air standards; (j) Sustain water sources by maintaining the natural watershed, preventing accelerated erosion, reducing runoff and consequent sedimentation, eliminating pollutants introduced directly into streams and enhancing public access to recreational water sources; (k) Maintain the natural scenic beauty of the Eagle River Valley in order to preserve areas of historical and archaeological importance, provide for adequate open spaces, preserve scenic views, provide recreational opportunities, sustain the tourist-based economy and preserve property values; (l) Promote architectural design which is compatible, functional, practical and complimentary to Avon's sub-alpine environment; (m) Achieve innovation and advancement in design of the built environment to improve efficiency, reduce energy consumption, reduce emission of pollutants, reduce consumption of non-renewable natural resources and attain sustainability; (n) Achieve a diverse range of attainable housing which meets the housing needs created by jobs in the Town, provides a range of housing types and price points to serve a complete range of life stages and promotes a balanced, diverse and stable full time residential community which is balanced with the visitor economy; (o) Promote quality real estate investments which conserve property values by disclosing risks, taxes and fees; by incorporating practical and comprehensible legal arrangements; and by promoting accuracy in investment expectations; and (p) Promote the health, safety and welfare of the Avon community. As demonstrated by this document and the plans submitted, the proposal is consistent with and in substantial compliance with the purpose of the Development Code by reducing the number of units, providing for greater open space and reducing building footprints within an existing subdivision.

(3) The subdivision application shall be consistent with the Avon Comprehensive Plan and other community planning documents;

10 Attachment B

Applicant Response: The Avon Land Use Map indicates the property as Residential - Low Density as indicated on the map below:

The Comprehensive Plan defines “Residential-Lot Density” as follows: Areas designated for residential low density are intended to provide sites for single-family, duplex, and multi-family dwellings at a density no greater than 7.5 dwelling units per acre. As indicated in zoning analysis of Section D of this submittal, the proposed minor subdivision complies with the density as recommended by the Comprehensive Plan.

(4) The land shall be physically suitable for the proposed development or subdivision; Applicant Response: As indicated on the 1981 Wildridge Plat, the Wildridge PUD establishes that the entirety of the area of the proposed lot is “developable.” As the guiding document for this PUD, the land has been previously determined to be physically suitable for development. In addition, the proposal is actually a reduction in allowable density, making the impact on the land less than is currently allowed.

(5) The proposed subdivision shall be compatible with surrounding land uses; Applicant Response: As indicated in the map below, surrounding land uses include Town of Avon-owned open space to the south, east and southwest of the property. Directly to the north and east are residential uses. The current land use allowed on the site is residential, as the site is currently permitted 4 dwelling units. The proposed minor subdivision would allow for 3 dwelling units, a reduction of one unit for this site.

11 Attachment B

Because there is no change to the proposed land use (residential) but there is a net reduction in density, this subdivision is compatible with the surrounding land uses.

Open Space

Residential

(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; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application. As a reduction in allowable density, there is less need for these public facilities and a new increase in water rights by the return of one SFE to the Town.

(7) The proposed utility and road extensions are consistent with the utility’s service plan and are consistent with the Town of Avon Comprehensive Plan & Comprehensive Transportation Master Plan; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application. No utility or road extensions are necessary.

(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; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application. Because this proposal reduces the allowable density, there will be less demand on utilities and utility lines are sized appropriately for the current allowable density.

12 Attachment B

(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 area; Applicant Response: The proposed subdivision is compatible and consistent with the character of the existing land uses in the area. As indicated previously, surrounding land uses are Town-owned open space tracts and other residential uses. The map below provides an analysis of the residential lots nearby as a comparison to the proposed subdivision:

SFR Duplex 1.15 ac Duplex .61 ac .49 ac Duplex .79 ac Duplex .78 ac

SFR .89 ac Lot 3 SFR .81 ac 1.1 ac

Lot 2 .57ac Lot 1 1.04 ac

As indicated in the analysis, the proposed lot sizes are similar to those in the area and are compatible with the existing land uses. The surrounding residential lots are all currently developed, but this subdivision will not affect the future redevelopment of these sites. Photos of the surrounding properties are provided below:

13 Attachment B

(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; Applicant Response: The Wildridge PUD is unique in that the PUD Plan is generally outlined on the 1981 Wildridge Plat. Based on this plat (included in the Appendix), the proposal is consistent with the PUD.

(11) Appropriate utilities, including water, sewer, electric, gas and telephone utilities, shall provide an “conditional capacity to serve” letter for the propose subdivision; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application.

(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; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application.

(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; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application.

(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; Applicant Response: As a minor subdivision of existing, platted lots within Wildridge, this criterion is not applicable to this application.

(15) The subdivision application addresses the responsibility for maintaining all roads, open spaces, and other public and common facilities in the subdivision and that Town can afford any proposed responsibilities to be assumed by the Town; Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application.

(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

14 Attachment B

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, Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application. The Wildridge Covenants remain in effect.

(17) As applicable, the proposed phasing for development of the subdivision is rational in terms of available infrastructure capacity and financing. Applicant Response: As a minor subdivision of existing platted lots within Wildridge, this criterion is not applicable to this application.

F. CRITERIA FOR REVIEW - FINAL PLAT The review criteria for a final plat are provided below:

(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. Applicant Response: The proposed minor subdivision meets the above criteria.

(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; Applicant Response: As a minor subdivision, no preliminary plan is required.

(3) The final plat conforms to all preliminary plan criteria; Applicant Response: The proposed minor subdivision meets the above criteria and a review has been provided above.

(4) The development will substantially comply with all sections of the Development Code; Applicant Response: The proposed minor subdivision substantially complies with all sections of the Development Code.

(5) The final plat complies with all applicable technical standards adopted by the Town; and,

15 Attachment B

Applicant Response: The proposed minor subdivision complies with all applicable technical standards adopted by the Town.

(6) Appropriate utilities shall provide an ability to serve letter including, but not limited to, water, sewer, electric, gas, and telecommunication facilities. Applicant Response: The proposed minor subdivision is already served by utilities.

G. CRITERIA FOR REVIEW - VARIANCE Section 7.28.100.a. Natural Resource Protection, provides regulations for development on steep slopes. The standards of this section apply to the following: Applicability. The standards in this section shall apply to any new subdivision, PUD, or zoning amendment when any portion of the lot contains naturally-occurring slopes of thirty percent (30%) or greater. Staff has interpreted that this application is subject to this section. This section was written to apply to “any new subdivision” but in this case the subdivision is a resubdivision of existing platted lots within a existing platted subdivision within an existing PUD. In addition, Section 7.32.020.e.6 requires that buildable area cannot include areas with 40% slopes. Due to the existing 40% slopes encompassing a significant portion of the existing platted lots, this regulation in not possible to comply with, and is not a requirement of the Wildridge PUD. Due to the strict requirements of this Section of the Avon Development Code (which would not have allowed Wildridge to be platted today) the applicant is requesting a variance from Section 7.28.100.a. “Steep Slopes” and Section 7.32.020.e.6. “Buildable Area”. The review criteria for a variance are provided below:

(1)The degree to which relief from the strict or literal interpretation and enforcements of a specified regulation is necessary to achieve compatibility and uniformity of treatment among sites in the vicinity, or to attain the objectives of the Development Code without grant of special privilege;

Applicant Response: The proposed request is a reduction in density for this property, reducing the number of units from 4 dwelling units to 3 dwelling units. Applying the requirements of Sections 7.28.100.A. and 7.32.020.e.6 to this resubdivision of existing platted lots would render the property undevelopable, contrary to what has been defined as undevelopable in the Wildridge PUD. This would unfairly apply criteria for a “new subdivision” to a resubdivision, treating this property differently than all other similar lots within the Wildridge subdivision. As a result, the granting of this variance would not be a grant of special privilege and is necessary to achieve compatibility and uniformity of treatment among sites in this existing platted subdivision.

(2)The effect of the requested variance on light and air, distribution of population, transportation and traffic facilities, public facilities and utilities, and public safety;

16 Attachment B

Applicant Response: As a reduction in density, this variance will improve the light and air. The construction of 3 units vs. 4 units will increase the feeling of openness and green space for this property. In addition, as a reduction in allowable density and therefore a reduction in population, there is a reduction of impacts on all transportation facilities, public facilities, and utilities.

(3)Such other factors and criteria related to the subject property, proposed development, or variance request as the decision-making body deems applicable to the proposed variance.

Applicant Response: These code sections are clearly intended to apply to new subdivisions within Avon, not on the resubdivision of existing platted lots within an existing subdivision. The application of these standards to minor lot line adjustments that actually serve to reduce density creates a situation where even “administrative subdivisions” would be required to comply with these same requirements. This is not possible within a subdivision that was platted long before these regulations were enacted.

H. CRITERIA FOR REVIEW - PLANNED UNIT DEVELOPMENT Staff has requested that this submittal include a section reviewing the Review Criteria for a new Planned Unit Development as outlined in Section 7.16.060.e.4, which states:

Review Criteria. The PZC and Town Council shall consider the following criteria as the basis for a recommendation or decision to rezone a property to PUD Overlay and approve a preliminary PUD plan.

While the applicant is not proposing a new PUD but rather is proposing to amend the existing Wildridge PUD to allow two duplex lots to be converted to three single-family lots, we have provided responses to the PUD review criteria which are really intended for a new PUD. The criteria are addressed below:

(1)The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or incorporates creative site design such that it achieves the purposes of this Development Code and represents an improvement in quality over what could have been accomplished through strict application of the otherwise applicable district or development standards. Such improvements in quality may include, but are not limited to: improvements in open space provision and access; environmental protection; tree/vegetation preservation; efficient provision of streets, roads, and other utilities and services; or increased choice of living and housing environments.

Applicant Response: The Town of Avon was incorporated in 1978 and Benchmark Properties created the Wildridge and Wildwood Subdivisions shortly thereafter. The Wildridge PUD and Subdivision are unique in comparison to more recent PUDs created in the Town of Avon. It was the original Wildridge PUD which met the above-referenced criteria and this proposed minor amendment has no adverse effect on the originally approved Planned Unit Development and all of the public benefits it provided to the

17 Attachment B

community including things like open space and the increased choice of housing and living environments. In this particular situation, the entirety of the subject property is buildable under the original PUD. The proposal protects areas of the proposed lots as a no-build zone, protecting slope area in excess of 40%. The lot configuration allows for development to occur in such a way as to provide more light and air and green space than could be developed currently without the proposed minor amendment. Furthermore, as a reduction in density, there is a public benefit by reducing traffic impacts, reducing water demand, lessening demand for public services such as police and fire, reducing impacts to the school system, etc.

(2)The PUD rezoning will promote the public health, safety, and general welfare;

Applicant Response: As a reduction in allowable density and the corresponding reduction in traffic and demand on public utilities and services, the streets of Wildridge will be safer than under the current allowance. While there is no PUD rezoning associated with this application, the proposal will promote the public health, safety, and general welfare.

(3)The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b);

Applicant Response: The Avon Land Use Map indicates the property as Residential - Low Density as indicated on the map below:

18 Attachment B

The Comprehensive Plan defines “Residential-Lot Density” as follows: Areas designated for residential low density are intended to provide sites for single-family, duplex, and multi-family dwellings at a density no greater than 7.5 dwelling units per acre. As indicated in zoning analysis of Section D of this submittal, the proposed minor subdivision complies with the density as recommended by the Comprehensive Plan with an overall density of 1.24 units per acre proposed.

The purpose of the Development Code is provided in Section 7.04.030 Purposes of the Avon Development Code: The Development Code is intended to promote and achieve the following goals and purposes for the Avon community, including the residents, property owners, business owners and visitors: (a) Divide the Town into zones, restricting and requiring therein the location, erection, construction, reconstruction, alteration and use of buildings, structures and land for trade, industry, residence and other specified uses; regulate the intensity of the use of lot areas; regulate and determine the area of open spaces surrounding such buildings; establish building lines and locations of buildings designed for specified industrial, commercial, residential and other uses within such areas; establish standards to which buildings or structures shall conform; establish standards for use of areas adjoining such buildings or structures; (b) Implement the goals and policies of the Avon Comprehensive Plan and other applicable planning documents of the Town; (c) Comply with the purposes stated in state and federal regulations which authorize the regulations in this Development Code; (d) Avoid undue traffic congestion and degradation of the level of service provided by streets and roadways, promote effective and economical mass transportation and enhance effective, attractive and economical pedestrian opportunities; (e) Promote adequate light, air, landscaping and open space and avoid undue concentration or sprawl of population; (f) Provide a planned and orderly use of land, protection of the environment and preservation of viability, all to conserve the value of the investments of the people of the Avon community and encourage a high quality of life and the most appropriate use of land throughout the municipality; (g) Prevent the inefficient use of land; avoid increased demands on public services and facilities which exceed capacity or degrade the level of service for existing residents; provide for phased development of government services and facilities which maximizes efficiency and optimizes costs to taxpayers and users; and promote sufficient, economical and high-quality provision of all public services and public facilities, including but not limited to water, sewage, schools, libraries, police, parks, recreation, open space and medical facilities; (h) Minimize the risk of damage and injury to people, structures and public infrastructure created by wild fire, avalanche, unstable slopes, rock fall, mudslides, flood danger and other natural hazards; (i) Achieve or exceed federal clean air standards; (j) Sustain water sources by maintaining the natural watershed, preventing accelerated erosion, reducing runoff and consequent sedimentation, eliminating pollutants introduced directly into streams and enhancing public access to recreational water sources;

19 Attachment B

(k) Maintain the natural scenic beauty of the Eagle River Valley in order to preserve areas of historical and archaeological importance, provide for adequate open spaces, preserve scenic views, provide recreational opportunities, sustain the tourist-based economy and preserve property values; (l) Promote architectural design which is compatible, functional, practical and complimentary to Avon's sub-alpine environment; (m) Achieve innovation and advancement in design of the built environment to improve efficiency, reduce energy consumption, reduce emission of pollutants, reduce consumption of non-renewable natural resources and attain sustainability; (n) Achieve a diverse range of attainable housing which meets the housing needs created by jobs in the Town, provides a range of housing types and price points to serve a complete range of life stages and promotes a balanced, diverse and stable full time residential community which is balanced with the visitor economy; (o) Promote quality real estate investments which conserve property values by disclosing risks, taxes and fees; by incorporating practical and comprehensible legal arrangements; and by promoting accuracy in investment expectations; and (p) Promote the health, safety and welfare of the Avon community. As demonstrated by this document and the plans submitted, the proposal is consistent with and in substantial compliance with the purpose of the Development Code by reducing the number of units, providing for greater open space and reducing building footprints by adding a lot line and the required setbacks it creates within an existing subdivision.

Finally, Section 7.16.060(b) provides the Eligibility Criteria for a property to be eligible for PUD approval. These criteria are as follows: (1) Property Eligible. All properties within the Town of Avon are eligible to apply for PUD approval. (2) Consistency with Comprehensive Plan. The proposed development shall be consistent with the Avon Comprehensive Plan. (3) Consistent with PUD Intent. The proposed development shall be consistent with the intent and spirit of the PUD purpose statement in §7.16.060(a). (4) Compatibility with Existing Uses. The proposed development shall not impede the continued use or development of surrounding properties for uses that are permitted in the Development Code or planned for in the Avon Comprehensive Plan. (5) Public Benefit. A recognizable and material benefit will be realized by both the future residents and the Town as a whole through the establishment of a PUD, where such benefit would otherwise be infeasible or unlikely. (6) Preservation of Site Features. Long-term conservation of natural, historical, architectural, or other significant features or open space will be achieved, where such features would otherwise be destroyed or degraded by development as permitted by the underlying zoning district. (7) Sufficient Land Area for Proposed Uses. Sufficient land area has been provided to comply with all applicable regulations of the Development Code, to adequately serve the needs of all

20 Attachment B

permitted uses in the PUD projects, and to ensure compatibility between uses and the surrounding neighborhood. As demonstrated by this document and the plans submitted, the proposal is consistent with and in substantial compliance with the these reducing the number of units, providing for greater open space, and reducing building footprints within an existing subdivision. The property is located within the Town of Avon; the property is consistent with the Comprehensive plan as indicated above with a development density of 1.24 units per acre and with a residential use proposed; the proposal is consistent with the PUD intent as indicated above; the proposal is consistent with adjacent residential uses as indicated below; the proposed amendment does not change the public benefits it received when the Wildridge PUD was originally created in 1978 and additionally the addition of no build zones, the additional provision of light and air, and the reduction in impacts from the reduction in density all provide recognizable and material benefit to the residents and the Town; the preservation of site features through the establishment of a no build zones; and the proposal has demonstrated sufficient land area for the proposed uses.

(17)Facilities and services (including roads and transportation, water, gas, electric, police and fire protection, and sewage and waste disposal, as applicable) will be available to serve the subject property while maintaining adequate levels of service to existing development;

Applicant Response: The proposed minor subdivision is already served by utilities. As a reduction in density, there will be less demand on these utilities.

(18)Compared to the underlying zoning, the PUD rezoning is not likely to result insignificant adverse impacts upon the natural environment, including air, water, noise, storm water management, wildlife, and vegetation, or such impacts will be substantially mitigated;

Applicant Response: There is no underlying zoning and no rezoning associated with this application. As a reduction in allowable density, any impacts that were associated with the existing allowable density will be reduced.

(19)Compared to the underlying zoning, the PUD rezoning is not likely to result in significant adverse impacts upon other property in the vicinity of the subject tract; and

Applicant Response: There is no underlying zoning and no PUD rezoning associated with this application. As a reduction in density, any possible impacts of development on this property will be reduced.

(20)Future uses on the subject tract will be compatible in scale with uses or potential future uses on other properties in the vicinity of the subject tract.

Applicant Response: The proposed subdivision is compatible and consistent with the character of the existing land uses in the area. As indicated previously, surrounding land

21 Attachment B

uses are Town-owned open space tracts and other residential uses. The map below provides an analysis of the residential lots nearby as a comparison to the proposed subdivision:

SFR Duplex 1.15 ac Duplex .61 ac .49 ac Duplex .79 ac Duplex .78 ac

SFR .89 ac Lot 3 SFR .81 ac 1.1 ac

Lot 2 .57ac Lot 1 1.04 ac

As indicated in the analysis, the proposed lot sizes are similar to those in the area and are compatible with the existing land uses. The surrounding residential lots are all currently developed, but this subdivision will not affect the future redevelopment of these sites. Photos of the surrounding properties are provided below:

22 Attachment B

I. ADJACENT ADDRESSES (within 300 Feet)

1943-354-01-002 1943-351-03-025 1943-351-01-001 ZUMBO, PAUL, JR & MARIE A. TOWN OF AVON 3029 SHORE DR PO BOX 975 MERRICK, NY 11566 AVON, CO 81620 1943-351-03-023 1943-351-03-002 GERRITY, MICHAEL J. & JUDY - ETAL WORK FAMILY US REAL PROPERTY TRUST 2202 N ROGERS 3240 RIVER RD RR5 OLATHE, KS 66062 N0A1E0 CAYUGA ONTARIO CANADA 1943-351-03-022 BAUMANN, BARBARA M. & FREDERICK J. 1943-351-03-004 110 EUDORA ST ALLEN, TERENCE C. DENVER, CO 80220 468 GLEN RD SPARTA, NJ 07871 1943-351-03-021 KARSH, BRICE W. 1943-351-03-026 53 GLENMOOR WAY STRANDJORD, DAVID ENGLEWOOD, CO 80113-7120 PO BOX 9669 AVON, CO 81620 1943-351-03-020 DECKER, MICHAEL GEORGE - KRAJICEK, CATHERINE 1943-351-03-027 LEE HARRY S. GREENBERG RESIDENCE TRUST 4238 CANARY ISLE CT AGREEMENT #1 - ETAL KATY, TX 77450 2611 WYLIE RD DEXTER, MI 48130-9781

1943-351-03-007 BACA, BRUCE A. & SUSAN S. PO BOX 2033 AVON, CO 81620

1943-351-02-020 SCHWARTZ, ROBERTA A. & JONATHAN M.D. PO BOX 1120 AVON, CO 81620

1943-351-03-024 REISINGER FAMILY TRUST 8170 E KALIL DR SCOTTSDALE, AZ 85260

23 Attachment B

J. APPENDICES 1. Proposed Final Plat and Topo Survey of Wildridge Point 2. 1981 Wildridge Final Plat 3. Letter from Staff 9/19/12 4. Title Reports

24 Attachment B

1. Proposed Final Plat and Topo Survey of Wildridge Point Attachment B Attachment B Attachment B Attachment B

2. 1981 Wildridge Final Plat Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B Attachment B

3. Letter from Staff 9/19/12 Attachment B Attachment B Attachment B

4.Title Reports Attachment B

First American Title Insurance Company

A L T A C O M M I T M E N T Our Order No. VB50033720-2

Schedule A Cust. Ref.:

Property Address: 5091 WILDRIDGE RD. AKA LOT 33 BLK 4 WILDRIDGE SUB AVON, CO 81620

1. Effective Date: May 25, 2012 at 5:00 P.M.

2. Policy to be Issued, and Proposed Insured:

"ALTA" Owner's Policy 06-17-06 $436,500.00

Proposed Insured: MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION

3. The estate or interest in the land described or referred to in this Commitment and covered herein is:

A Fee Simple

4. Title to the estate or interest covered herein is at the effective date hereof vested in:

WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY

5. The Land referred to in this Commitment is described as follows:

LOT 33, BLOCK 4, WILDRIDGE ACCORDING TO THE FINAL SUBDIVISION PLAT, RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78, COUNTY OF EAGLE, STATE OF COLORADO. Attachment B

A L T A C O M M I T M E N T

Schedule B - Section 1

(Requirements) Our Order No. VB50033720-2

The following are the requirements to be complied with:

Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured.

Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit:

Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable.

Item (d) Additional requirements, if any disclosed below:

1. EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF AVON TRANSFER TAX HAVE BEEN SATISFIED.

2. RELEASE OF DEED OF TRUST DATED MAY 29, 2007 FROM WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE USE OF MILLENIUM BANK TO SECURE THE SUM OF $377,300.00 RECORDED JUNE 04, 2007, UNDER RECEPTION NO. 200714292.

MODIFICATION AGREEMENT IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED MAY 12, 2011 UNDER RECEPTION NO. 201108610.

3. EVIDENCE SATISFACTORY TO THE COMPANY THAT MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION IS AN ENTITY CAPABLE OF ACQUIRING TITLE TO SUBJECT PROPERTY.

4. WARRANTY DEED FROM WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY TO MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION CONVEYING SUBJECT PROPERTY.

NOTE: AFFIDAVIT/STATEMENT OF AUTHORITY RECORDED DECEMBER 27, 2011 UNDER RECEPTION NO. 201124071 DISCLOSES DAVID DANTAS AS MEMBER(S) WHO MAY ACQUIRE, CONVEY, ENCUMBER, LEASE OR OTHERWISE DEAL WITH INTERESTS IN REAL PROPERTY FOR WILDAVON ENTERPRISES LLC, A COLORADO LIMITED LIABILITY COMPANY.

THE FOLLOWING DELETIONS/MODIFICATIONS ARE FOR THE OWNER'S POLICY. Attachment B

A L T A C O M M I T M E N T

Schedule B - Section 2

(Exceptions) Our Order No. VB50033720-2

The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company:

1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.

2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.

3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.

4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records.

5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment.

6. Any and all unpaid taxes, assessments and unredeemed tax sales.

7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.

8. RIGHTS OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES, AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 23, 1949, IN BOOK 134 AT PAGE 524.

9. RESERVATION OF ALL THE COAL AND OTHER MINERALS IN THE LAND TOGETHER WITH THE RIGHT TO PROSPECT FOR MINE AND REMOVE THE SAME PURSUANT TO THE PROVISIONS AND LIMITATIONS OF THE ACT OF DECEMBER 29, 1916 AS RESERVED IN DOCUMENT RECORDED NOVEMBER 23, 1949 IN BOOK 134 AT PAGE 524.

10. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED SEPTEMBER 14, 1982, IN BOOK 345 AT PAGE 844.

11. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE WILDRIDGE SUBDIVISION FINAL PLAT RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78. Attachment B

First American Title Insurance Company

A L T A C O M M I T M E N T Our Order No. V50033531-2

Schedule A Cust. Ref.:

Property Address: 5081 WILDRIDGE ROAD EAST AKA LOT 34 BLK 4 WILDRIDGE AVON, CO 81620

1. Effective Date: May 09, 2012 at 5:00 P.M.

2. Policy to be Issued, and Proposed Insured:

"ALTA" Owner's Policy 06-17-06 $685,000.00

Proposed Insured: MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION

3. The estate or interest in the land described or referred to in this Commitment and covered herein is:

A Fee Simple

4. Title to the estate or interest covered herein is at the effective date hereof vested in:

MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST

5. The Land referred to in this Commitment is described as follows:

LOT 34, BLOCK 4, WILDRIDGE ACCORDING TO THE FINAL SUBDIVISION PLAT, RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78, COUNTY OF EAGLE, STATE OF COLORADO. Attachment B

A L T A C O M M I T M E N T

Schedule B - Section 1

(Requirements) Our Order No. V50033531-2

The following are the requirements to be complied with:

Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured.

Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit:

Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable.

Item (d) Additional requirements, if any disclosed below:

1. EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF AVON TRANSFER TAX HAVE BEEN SATISFIED.

2. CERTIFIED COPY OF RESOLUTION OF THE GOVERNING BOARD OF MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION (AUTHORIZING THE PURCHASE OF THE SUBJECT PROPERTY AND THE EXECUTION OF NECESSARY DOCUMENTS) AND RECITING THAT THE BOARD HAS BEEN DULY AUTHORIZED IN THE PREMISES BY THE CORPORATION. SAID RESOLUTION MUST BE PROPERLY CERTIFIED BY AN OFFICER OF THE CORPORATION. SAID RESOLUTION MUST BE SUBMITTED TO AND APPROVED BY LAND TITLE GUARANTEE COMPANY BUT NEED NOT BE RECORDED.

3. WARRANTY DEED FROM MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST TO MOUNTAIN C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION CONVEYING SUBJECT PROPERTY.

THE FOLLOWING DELETIONS/MODIFICATIONS ARE FOR THE OWNER'S POLICY.

NOTE: ITEMS 1-3 OF THE GENERAL EXCEPTIONS ARE HEREBY DELETED.

UPON THE APPROVAL OF THE COMPANY AND THE RECEIPT OF A NOTARIZED FINAL LIEN AFFIDAVIT, ITEM NO. 4 OF THE GENERAL EXCEPTIONS ON THE OWNER'S POLICY WILL BE AMENDED AS FOLLOWS:

ITEM NO. 4 OF THE GENERAL EXCEPTIONS IS DELETED AS TO ANY LIENS OR FUTURE LIENS RESULTING FROM WORK OR MATERIAL FURNISHED AT THE REQUEST OF MATT IVY AND JANE IVY AS TO AN UNDIVIDED 50% INTEREST AND DAVID LISCIO AS TO AN UNDIVIDED 50% INTEREST. FIRST AMERICAN TITLE INSURANCE COMPANY SHALL HAVE NO LIABILITY FOR ANY LIENS ARISING FROM WORK OR MATERIAL FURNISHED AT THE REQUEST OF MOUNTAIN Attachment B

A L T A C O M M I T M E N T

Schedule B - Section 1

(Requirements) Our Order No. V50033531-2

Continued:

C.I. HOLDINGS LIMITED, AN ONTARIO CORPORATION.

NOTE: ITEM 5 OF THE GENERAL EXCEPTIONS WILL BE DELETED IF LAND TITLE GUARANTEE COMPANY CONDUCTS THE CLOSING OF THE CONTEMPLATED TRANSACTION(S) AND RECORDS THE DOCUMENTS IN CONNECTION THEREWITH.

NOTE: UPON PROOF OF PAYMENT OF ALL TAXES, ITEM 6 WILL BE AMENDED TO READ:

TAXES AND ASSESSMENTS FOR THE YEAR 2012 AND SUBSEQUENT YEARS. Attachment B

A L T A C O M M I T M E N T

Schedule B - Section 2

(Exceptions) Our Order No. V50033531-2

The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company:

1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.

2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.

3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.

4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records.

5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment.

6. Any and all unpaid taxes, assessments and unredeemed tax sales.

7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.

8. RIGHTS OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES, AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 23, 1949, IN BOOK 134 AT PAGE 524.

9. RESERVATION OF ALL THE COAL AND OTHER MINERALS IN THE LAND TOGETHER WITH THE RIGHT TO PROSPECT FOR MINE AND REMOVE THE SAME PURSUANT TO THE PROVISIONS AND LIMITATIONS OF THE ACT OF DECEMBER 29, 1916 AS RESERVED IN DOCUMENT RECORDED NOVEMBER 23, 1949 IN BOOK 134 AT PAGE 524.

10. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED SEPTEMBER 14, 1982, IN BOOK 345 AT PAGE 844.

11. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE WILDRIDGE SUBDIVISION FINAL PLAT RECORDED OCTOBER 8, 1981 IN BOOK 330 AT PAGE 78. Attachment C

Jared Barnes

From: Tug Birk Sent: Monday, January 14, 2013 9:25 AM To: Jared Barnes Subject: RE: Wildridge Point PUD Referral

Jared,

Thanks for the referral. I see only a couple of potential issues. The first potential issue is the ability of the developer to keep construction debris out of the easement. The second is that there are a total of 4 SFE’s associated with these two properties and these 4 SFE’s cannot be exceeded by the 3 new lots without water rights becoming an issue. Please let me know if you have any questions for me.

Thanks,

Tug Birk Development Review Coordinator Eagle River Water and Sanitation District 970‐477‐5449 [email protected]

From: Jared Barnes [mailto:[email protected]] Sent: Friday, January 04, 2013 3:19 PM Subject: Wildridge Point PUD Referral

Hello, Pursuant to the Town of Avon’s development code, I am providing you with a referral request for the proposed Wildridge Point PUD and Subdivision. Attached is a summary of the request as well as a link to the Town of Avon’s website, where the application documents are stored.

Thank you in advance for your time and please feel free to contact me with any questions you may have. If you could also provide me with any comments you have no later than February 4, 2013 at 5:00pm, I can make sure they are presented at the public hearing the following day.

Regards,

Jared Barnes Planner I Community Development Town of Avon PO Box 975 Avon, CO 81620 970-748-4023

1 Attachment C COLORADO GEOLOGICAL SURVEY

1313 Sherman Street, Room 715 Denver, Colorado 80203

Phone 303.866.2611 Fax 303.866.2461

Karen Berry February 5, 2013 Acting State Geologist

Jared Barnes Town of Avon Location: Community Development SW¼ NE¼ Section 35, P.O. Box 975 T4S, R82W of the 6th P.M. Avon, CO 81620 Subject: Wildridge Point PUD and Subdivision Application Case #s PUD12004, SUB12005, and VAR13001; Eagle County, CO; CGS Unique No. EA-13-0006

Dear Jared:

Colorado Geological Survey has completed its site visit and review of the above-referenced project. I understand the applicant proposes to convert two duplex lots within the Wildridge subdivision into three single family lots of approximately 0.5 to one acre each. The applicant seeks a variance to exempt the proposed PUD and subdivision from complying with minimum lot size requirements and steep slope development limitations. With this referral, I received a Final Plat (Peak Land Consultants, October 24, 2012), and a Wildridge Point Minor PUD Amendment, Minor Subdivision, and Variance application document (Mauriello Planning Group, December 31, 2012). No geologic or geotechnical information was provided. No description of how the applicant intends to achieve site grading necessary for driveways and building pads was provided.

According to available geologic mapping (Tweto et al, 1978, Geologic map of the Leadville 1° x 2° quadrangle, northwestern Colorado: U.S.G.S., Miscellaneous Investigations Series Map I-999, scale 1:250,000), the site is underlain by the Eagle Valley Formation, consisting of "siltstone, shale, sandstone, carbonate rocks, and local lenses of gypsum." The shale and siltstone fractions are often associated with slope instability, and the carbonate and gypsum fractions are often associated with hydrocompaction (collapse under wetting), and dissolution features such as subsurface voids and sinkholes.

CGS opposes approval of the variance request. All but approximately 4000 sq. ft. of existing Lot 33 contains very steep slopes of 50% to 60%. It appears that insufficient attention may have been given during the original Wildridge platting process to the existing slope conditions on Lot 33, corresponding to proposed Lots 2 and 3. Regardless of their designation at platting in 1981, we disagree with the applicant's statement (page 5) that "Lots 33 and 34 are entirely developable."

The proposed resubdivision would result in one of the proposed lots (Lot 3) containing virtually no area with slopes less than 50%. Some combination of very large, retained fills and/or substantial cuts and retaining walls would be required to develop proposed Lots 2 and 3. The retaining walls would require extensive site characterization, analysis, and design. Slope stability analysis would be required to verify that temporary cuts would be stable during retaining wall construction. Stability analysis would be required to determine the potential impact on slope stability of large fill(s) and structures placed at the head (upper portion) of the slope below proposed lots 2 and 3. Eagle County geologic hazard mapping indicates that potentially unstable slopes are a concern in this area, so it is possible that the steep slope on and below proposed Lots 2 and 3 would be destabilized as a result of changes to the existing slope, loading and drainage configuration.

EA-13-0006_1 Wildridge Point PUD and Subdivision 3:20 PM, 02/05/2013 Attachment C Jared Barnes January 5, 2013 Page 2 of 2

Slope movement or failure could result in disruption (damming) and subsequent flooding or catastrophic release of water in Metcalf Creek below the site. It appears that the lower slope and Metcalf Creek are located within Town of Avon open space.

CGS recommends that the town require, at a minimum and in support of its deliberations regarding the requested slope variance, (1) conceptual grading and drainage plans that reflect all of the grading (driveways, building pads, etc.), retaining walls and drainage that will be needed for development of the lots as proposed, and (2) that the feasibility and long-term stability of proposed cuts, fills and retaining walls be evaluated by a qualified geotechnical engineer. CGS looks forward to reviewing any grading plans or additional documentation provided by the applicant.

Thank you for the opportunity to review and comment on this project. If you have questions or need clarification of issues identified during this review, please call me at (303) 866-2611 ext. 8316, or e-mail [email protected].

Sincerely,

Jill Carlson, C.E.G. Engineering Geologist

EA-13-0006_1 Wildridge Point PUD and Subdivision 3:20 PM, 02/05/2013 Attachment D

February 25, 2013

Jared Barnes, Town Planner Town of Avon PO Box 975 Avon, Colorado 81620

RE: Wildridge Point

Dear Jared:

The applicant is submitting this letter as a formal response to the comments of the Avon Planning and Zoning Commission, along with some of the comments from staff and referral agencies.

At the previous hearing, the Planning and Zoning Commission recommended a limitation on building footprints on Lots 2 and 3. It was stated at the hearing that Lot 1 should not be restricted at all. We have submitted some studies indicating footprint limitations of 2,500 sq. ft., 3,000 sq. ft., and 3,500 sq. ft. As you can see from the studies, these footprints can be accommodated on the lots with the impact of grading relatively the same in each square footage study. We believe that a footprint limitation of 3,000 sq. ft. for Lot 2 and 2,500 sq. ft. for Lot 3 will accommodate an appropriate amount of development while allowing for adequate open space and minimizing site disturbance to a reasonable degree. The applicant is acceptable to a condition placed on the PUD amendment as stated above.

In addition to the studies for building footprints, we have provided conceptual view analyses for the buildings from Wildridge Road East to better understand how the proposed development will be viewed from the public road. As you can see, the development is consistent with the neighborhood and will be advantageous to the Wildridge subdivision.

We would like to take this opportunity to respond to the February 13, 2013, letter from the Colorado Geological Survey. There were some inaccuracies in the letter which are addressed below: 1. The letter states: “we disagree with the applicant's statement (page 5) that ‘Lots 33 and 34 are entirely developable.’” While understanding that the CGS Geologist may have some concern about the process to develop the property, as existing platted lots within the Wildridge Subdivision, these lots are developable under existing zoning and building code requirements. When originally platted, the Wildridge Subdivision did identify certain portions of lots as “undevelopable,” however, these lots do no include this designation. As a result, the existing Lots 33 and 34 are entirely developable per Avon regulations. In recognition of this, the proposed plat for Wildridge Point designates the steepest areas of the lot as undevelopable and improves the current situation for these properties.

Mauriello Planning Group MPGVail.com P.O. Box 4777 [email protected] Eagle, CO 81631 970-376-3318 Attachment D

2. The CGS Geologist noted concerns about site grading for driveways and building pads. In response, we have provided conceptual designs for driveways and building sites. At building permit, the required technical studies and reports needed for development will be provided and reviewed by the Town Staff, as is the process for development on any site in Wildridge and the Town of Avon. 3. The CGS Geologist states that “the applicant seeks a variance to exempt the proposed PUD and subdivision from complying with minimum lot size requirements.” This statement is inaccurate as there is no request to vary from the minimum lot size requirements.

Thank you for your time and consideration on this matter. Should you have any additional questions or concerns, please do not hesitate to contact me at 970.376.3318 or by email at [email protected].

Sincerely,

Dominic F. Mauriello, AICP Principal

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Sheet PROGRESS SET Date 02-21-13 Wildridge Point

FP-1 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

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Sheet PROGRESS SET Date 02-21-13 Wildridge Point

FP-2 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

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Sheet PROGRESS SET Date 02-21-13 Wildridge Point

FP-3 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

2/21/2013 3:59:32 PM 1 - 3DViewfromroad#1(northbound)

Sheet PROGRESS SET Date 02-21-13 Wildridge Point

RD-1 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

2/21/2013 3:59:39 PM 1 - 3DViewfromroad#2(northbound)

Sheet PROGRESS SET Date 02-21-13 Wildridge Point

RD-2 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

2/21/2013 3:59:44 PM 1 - 3DViewfromroad#3(northbound)

Sheet PROGRESS SET Date 02-21-13 Wildridge Point

RD-3 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

2/21/2013 3:59:48 PM 1 - 3D Viewfrom road #1(southbound) road - 3DViewfrom

Sheet PROGRESS SET Date 02-21-13 Wildridge Point

RD-4 Wildridge Road East Avon, CO 81620 PO Box 1587, Eagle, CO 81631

www.martinmanleyarchitects.com Project number 1225 Attachment Attachment D

2/21/2013 3:59:54 PM Attachment E

March 19, 2013

Avon Town Council C/O Jared Barnes, Town Planner P.O. Box 975 Avon, CO 81620

Re: Wildridge Point Subdivision and Minor Amendment Application

Dear Town Council members:

Thank you for your consideration on the Wildridge Point Subdivision and Minor Amendment application for Lots 33 and 34, Block 4, Wildridge Subdivision. As you may be aware, the Planning and Zoning Commission recommended approval of the Minor Amendment request at their March 5, 2013, hearing. At that time, the Planning and Zoning Commission was also reviewing a variance request for the project, but ultimately decided that the variance was unnecessary for the project. The Minor Subdivision request is only acted upon by the Town Council. This letter is intended to provide you with some background for the Planning and Zoning Commission’s decision on the variance.

We submitted applications to the Town of Avon for the Minor PUD Amendment and Minor Subdivision on November 21, 2012. The proposal is to add a lot line to create three single family lots from two duplex lots, thereby reducing number of units by one. This is not the subdivision of unplatted land, but is a simple replat. Based on our understanding of the Avon Development Code, the code sections which deal with slopes did not apply to this project as Section 7.28.100 provides the following:

Applicability. The standards in this section shall apply to any new subdivision, PUD, or zoning amendment when any portion of the lot contains naturally--occurring slopes of thirty percent (30%) or greater.

Because our application was not a new subdivision, PUD, or zoning amendment, this section of the Avon Development Code was not applicable to our proposal for a minor subdivision of existing platted lots within an existing PUD. Furthermore, the Wildridge PUD identifies non- developable areas of lots and neither of the lots included any area identified as non- developable. However, during staff’s completeness review, the staff determined that a variance application would be required prior to scheduling the applications for a public hearing. Though we did not agree to this requirement, we submitted the associated application and fee of $500.00 so that the application would be allowed to move forward in the process.

Mauriello Planning Group MPGVail.com P.O. Box 4777 [email protected] Eagle, CO 81631 970-376-3318 Attachment E

The Planning and Zoning Commission reviewed the proposal on February 5, 2013, then again on March 19, 2013. At the meetings, there was a great deal of discussion regarding the applicability of Section 7.28.100 of the Avon Development Code, due to staff’s interpretation of the applicability of this section, along with the staff recommendation of denial of the variance. Ultimately, the Planning and Zoning Commission found that a variance from Section 7.28.100 was not necessary as the proposal did not fall into the application types which would make it applicable and that specifically in this case the variance was not warranted. The P&Z supports the proposed application because of the additional limitations proposed by the applicant including non-buildable areas and building footprint restrictions. We believe that the P&Z would have voted in favor of the variance had they determined that the standard had been applicable given the specific circumstances of these properties.

The application before you today includes the Minor Subdivision to add the additional lot line and the Minor PUD Amendment (Planning and Zoning Commission recommended approval). Because the Planning and Zoning Commission found that the variance was not applicable to this project, no action was taken on the variance request, and no further action is required by the Town Council.

Thank you for your consideration on this matter.

Sincerely,

Dominic F. Mauriello, AICP Principal

2 Attachment F Attachment F Attachment F Attachment G

March 18, 2013

Avon Town Council C/O Jared Barnes, Town Planner P.O. Box 975 Avon, CO 81620

Re: Appeal and Waiver of Notice

Dear Town Council:

In order to remedy a potential procedural flaw whereby the Planning and Zoning Commission determined that no variance was required for the Wildridge Point project, I, as the applicant’s representative, hereby appeal the decision by the Commission and waive my right to notice as provided for in the Avon Municipal Code.

This was done to ensure that the Town Council will be able to take final action on the proposed applications without the need for remand back to the Commission.

Thank you for your consideration on this matter.

Sincerely,

Dominic F. Mauriello, AICP Principal

Mauriello Planning Group MPGVail.com P.O. Box 4777 [email protected] Eagle, CO 81631 970-376-3318 Attachment H

TOWN OF AVON RESOLUTION NO. 13-11 Series of 2013

A RESOLUTION CONDTIONALLY APPROVING A VARIANCE FROM SECTIONS 7.32.020(e)(6) and 7.32.020(e)(7) FOR LOTS 2 AND 3, WILDRIDGE POINT, A RESUBDIVISION OF LOTS 33-34, BLOCK 4, WILDRIDGE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO

WHEREAS, the Town of Avon (“Town”) adopted Ordinance No. 10-14 adopting the Avon Development Code (“ADC”); and

WHEREAS, the ADC includes provisions for Natural Resource protection through steep slope, buildable area, and building footprint requirements; and

WHEREAS, Mountain C.I. Holdings LTD, the owner of properties in the Town described as 5081 & 5091 Wildridge Road E., Avon, CO 81620, or Lots 33 & 34, Block 4, Wildridge Subdivision has submitted a Variance application through its authorized representative Dominic Mauriello, Mauriello Planning Group LLC, (“Applicant”) ; and

WHEREAS, the Variance application requests exemption from Section 7.28.100(a), Steep Slopes, and Section 7.32.020(e)(6), Buildable Area, and Section 7.32.020(e)(7), Building Envelopes, to allow the Wildridge Point Subdivision and PUD to permit development on Lots 2 and 3 for two (2) single-family residences in areas over forty percent (40%) slope and to not be required to plat specific building envelopes for those lots; and

WHEREAS, the Planning and Zoning Commission held public hearings on February 5, 2013 and March 5, 2013 after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided; and

WHEREAS, the Planning and Zoning Commission did not act on the Variance application after discussing the applicability of Section 7.28.100(a), Steep Slopes, and determining that the application was: (a) not a zoning amendment due to the zoning classification, PUD, remaining the same; and, (b) a resubdivision and not a new subdivision, which would have required a Variance, and, therefore, did not discuss or apply the requirements of Section 7.32.020(e), Lots; and

WHEREAS, the Applicant acknowledges that the Community Development Director has interpreted the code that a Variance application is required to be acted upon in order to permit development on these lots and for procedural purposes the Applicant has requested Town Council to consider the Variance application pursuant to the appeals procedures in Sections 7.16.110(b) and 7.16.160 of the ADC; and Attachment H

WHEREAS, the Town Council reserves the authority to render a final decision on all decisions rendered under the ADC; and

WHEREAS, the Town Council of the Town of Avon held a public hearing for Variance review on the 26th day of March, 2013, after posting notice as required by law, considered all comments, testimony, evidence and staff reports provided by the Town staff prior to taking any action on the Variance application; and

WHEREAS, the Town Council has examined the review criteria set forth in Section 7.16.110(c); and

WHEREAS, the Town Council of the Town of Avon has made the following findings regarding the Variance Application:

1. The granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same district because the Property is unique in its topography, site characteristics and accessibility from the adjacent roadway and the Property has an existing right to develop a similar or greater density with a similar or greater site disturbance without the requested variance.

2. The granting of the variance will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity because the variance does not increase the overall site density or potential site disturbance.

3. The variance is warranted because the strict, literal interpretation and enforcement of the specified regulation would result in practical difficulty or unnecessary physical hardship inconsistent with the objectives of the Development Code by limiting the development of the Property to two duplex structures which may require more site disturbance and less design flexibility on steep slopes than three single family structures; and, there are exceptional or extraordinary conditions on the Property, particularly steep slopes, that do not apply generally to other properties in the same zone.

4. The Property is allowed to develop on areas exceeding forty percent (40%) slope under existing zoning and the resubdivision of the Wildridge Point Subdivision and should be allowed to develop in the same manner; therefore, Lots 2 and 3, Wildridge Point Subdivision should not be subject to Section 7.32.020(e)(6), Buildable Area.

5. The Wildridge Point Subdivision through the platting of non-developable areas and inclusion of maximum building footprint limitations are platting a de facto building envelope thus complying with the intent of Section 7.32.020(e)(7), Building Envelope.

NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Variance application for Lots 2 and 3, Wildridge Point Subdivision, A Resubdivision of Lot 33 and 34, Block 4, Wildridge Subdivision, Town of Avon, Eagle County Colorado, is hereby approved by the Town of Avon, subject to the following conditions:

1. The Variance is approved and effective only upon approval of Ordinance 13-05. Attachment H

ADOPTED THIS DAY OF , 2013.

TOWN COUNCIL TOWN OF AVON, COLORADO

Rich Carroll, Mayor ATTEST:

Patty McKenny Town Clerk Attachment I

TOWN OF AVON, COLORADO ORDINANCE 13-05 SERIES OF 2013

AN ORDINANCE APPROVING A MINOR PUD AMENDMENT AND MINOR SUBDIVISION FOR WILDRIDGE POINT ON LOTS 33-34, BLOCK 4, WILRIDGE SUBIDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO

WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and

WHEREAS, Dominic Mauriello, Mauriello Planning Group (the “Applicant”) on behalf of Mountain C.I. Holdings LTD (the “Owner”) has submitted a Minor PUD amendment, Minor Subdivision, and Variance Application (collectively, the “Application”) to modify the platted development rights to allow for the construction of three (3) single family residences on the subject property; and

WHEREAS, the Planning and Zoning Commission held public hearings on February 5, 2013 and March 5, 2013 after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking action; and

WHEREAS, the Planning and Zoning Commission recommended to the Town Council approval of the Application through the Planning and Zoning Commission Findings of Fact, Record of Decision, and Recommendations dated March 12, 2013; and

WHEREAS, pursuant to Section 7.16.060(e)(4), Review Criteria, and Section 7.16.070(f), Final Plat Review Criteria, Avon Municipal Code, the Town Council has considered the applicable review criteria for the Application; and

WHEREAS, the Town Council held public hearings on March 26, 2013 and April 9, 2013 after posting notice of such hearing in accordance with the requirements of Section 7.16.020(d), Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking action; and

WHEREAS, the Town Council finds that the health, safety and welfare of the Avon community will be enhanced and promoted by the adoption of this Ordinance; and

WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance.

Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 1 of 4

Attachment I

NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following:

Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council.

Section 2. Wildridge Point Minor PUD Amendment. The Wildridge Point Minor PUD Amendment application for Lots 33 and 34, Block 4, Wildridge Subdivision is hereby approved as follows:

A. The Wildridge PUD and Replat No. 2 (Exhibit A) is amended for Lots 33 and 34, Block 4, Wildridge Subdivision to modify the allowable maximum density of “2 Units Each” for each lot to a total of three (3) single family for the newly platted Lots 1-3, Wildridge Point Subdivision.

Section 3. Wildridge Point Minor Subdivision. The Final Plat for the Wildridge Point Subdivision, A Resubdivision of Lots 33 and 34, Block 4, Wildridge Subdivision, Town of Avon, County of Eagle, State of Colorado is hereby approved.

Section 4. Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross-reference, or other errors which may be discovered in any documents associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents.

Section 5. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town.

Section 6. Effective Date. This Ordinance shall take effect thirty days after final adoption in accordance with Section 6.4 of the Avon Home Rule Charter.

Section 7. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and

Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 2 of 4

Attachment I

welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained.

Section 8. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title at the Avon Town Hall, Avon Recreation Center and Avon Public Library, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section 7.16.140(d)(2) of the Avon Municipal Code.

Section 9. Final Action. Approval and final adoption of this Ordinance on second reading constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum seeking reconsideration of the decision of the Town Council with respect to this Ordinance and matters approved hereby in accordance with Section 7.16.020(f)(5) of the Avon Municipal Code and in accordance with Chapters VI and VII of the Avon Home Rule Charter.

[EXECUTION PAGE FOLLOWS]

Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 3 of 4

Attachment I

INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on March 26, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on April 9, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado.

______Rich Carroll, Mayor

Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least seven days prior to final action by the Town Council.

ATTEST: APPROVED AS TO FORM:

______Patty McKenny, Town Clerk Eric Heil, Town Attorney

INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on 9th day of April, 2013.

______Rich Carroll, Mayor

Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk.

ATTEST:

______Patty McKenny, Town Clerk

Ord 13-05 Wildridge Point Minor PUD Amendment and Minor Subdivision March 26, 2013 Page 4 of 4

Exhibit A to Ordinance 13-05 Exhibit A to Ordinance 13-05

H EIL L AW M EMORANDUM & PLANNING, LLC

TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Implementation Update DATE: March 21, 2013 Summary: This memorandum provides an update on the settlement implementation for the Village (at Avon) litigation. Attached is the latest document list with notes used by the respective attorneys. Amendments to the Traer Creek Metropolitan District and The Village Metropolitan District Service Plans: The Town received a revised draft of the proposed amendments to the Service Plans for the Traer Creek Metropolitan District and The Village Metropolitan District Service on March 1, 2013. I provided comments and proposed revisions on March 19, 2013, and subsequently met with representatives of the Metropolitan Districts and discussed proposed amendments with representatives of Traer Creek LLC this week. At this time I cannot estimate the timeframe for completing revisions to the Service Plans except to say that I do not believe it will by March 29, 2013 in time to submit materials to Council ten days in advance of a regular Council meeting. Therefore, I suggest that Council consider continuing the public hearing on the Service Plans to the April 23, 2013 meeting. The Add-On Retail Sales Fee Collection Services Agreement: I understand that the minor comments I submitted on behalf of the Town are acceptable and that a final version of this document will be produced within the next week. Amendments to the Mixed-Use and Commercial Declarations: I understand that a final version of this document responsive to comments I provided will be produced within the next week. Various Conveyance Documents: The title insurance commitments have been updated and appear to be on track to finalize in a form acceptable to Town in the next couple weeks. Other conveyance documents, namely the Nottingham Dam Easement Agreement and Wet Well Easement Agreement are slowly making progress. Receipt and Closing Escrow Agreement: We are waiting for Developer’s review of the latest revised Receipt and Closing Escrow Agreement. Review of Bond Documents: I understand that drafts of bond documents may be available for review in the next couple weeks. Status Conference with Court: A Status Conference was held on Thursday, March 21 2013. Although I and other parties reported that the parties are making progress and working cooperatively, I did express concern that the process was taking longer than desired and that we had missed an opportunity to combine the water storage tank bonds with another bond issuance by the Upper Eagle River Water Authority and save funds. The Judge stated that he would resume status conferences every other week and scheduled the next status conference for Monday, April 8, 2013 at 1:00 p.m. Requested Action: No Council action is requested at this time. Thank you, Eric

Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: [email protected] e-mail: [email protected] Heil Notes March 21, 2013

CLOSING ESCROW RECORDING ORDER WORKSHEET

Green = Done Blue = Document subject to further review and/or execution by Town Gray = recording not applicable

Document or Instrument to be Date Signed By Deposited Recd (notes re status) 1. Ordinance No. 12-10 (approving Development Agreement, PUD, Lot 1 Re- Plat, Traer Creek Plaza, acceptance and Town Done conveyance of water rights, acceptance of real property and equipment, amendments to AMC Ch.18) Town, TCMD, TCLLC, AURA, 2. Consolidated, Amended and Restated EMD, Mixed Use PIC, Annexation and Development Agreement EH sent revised version with correction of Commercial PIC, and for The Village (At Avon) (“Development typos on 3/20 VMD, BNP and Agreement”) lenders as limited parties (BoW?) 3. Resolution Approving CARADA with TCMD Done Conditions 4. Amended and Restated PUD Guide n/a Done for The Village (At Avon) (“PUD”) 5. Condominium Plat/Map Town, TC Plaza, BoW Done 6. Traer Creek Plaza Condominium TC Plaza, BoW Done Declaration This doc can either be eliminated (per M. 7. Subordination to Condo Plat by BoW BoW Repucci) or changed to a subordination agreement 8. Quit Claim Deed to TCMD for TC Plaza Done. Executed? Parking Unit 9. Re-Plat of Lot 1 Town, TC-RP Done 10. Release of Deed of Trust as to Lot 2 EH forwarded form of release to D. BoW (PA-B) Thatcher. Form of deeds is finalized; Avon wants to 11. Special Warranty Deed Conveying TC-RP see DOT releases (item 10). Goal date to Lot 2 (PA-B) to Town finalize is 3/15. 12. Access Easement to PA-B TC-RP, Town, BoW Form is finalized 13. Release of Deed of Trust as to Lot 3 EH forwarded form of release to D. BoW (PA-E) Thatcher. 14. Special Warranty Deed Conveying Form of deed is finalized; Avon wants to TC-RP Lot 3 (PA-E) to Town see #13 Goal date to finalize is 3/15. All lenders will have to subordinate their BoW, Alpine, 15. Subordination Agreements interests to…[the CARADAand revised Laramie, RBS Plat?] Developer to meet with lenders. 16. Covenant and Temporary Easement Town EMD Exhibit to CARADA: Done (to Planning Area I) 17. Resolution Concerning Water Service to Traer Creek(Rescinding Water Service Authority Done; signed copy sent to BC & MS Moratorium) Heil Notes March 21, 2013

Document or Instrument to be Date Signed By Deposited Recd (notes re status) 18. Special Warranty Deed Conveying TCMD Done Water Rights to Town 19. Special Warranty Deed Conveying Town Done Water Rights to Authority 20. Water Rights Opinion PF Opinion is Done. 21. Water Storage Tank Special Warranty TC-RP, Authority Form agreed upon but not executed Deed E. Jorgenson will need an update when Implementation Date is set. 22. Title Commitment to Tank Site n/a Only outstanding item is subordination agreement by Laramie (see below). 23. Subordination to Tank Site by Laramie Approval by Sandy? Approval by Laramie? Laramie 24. Easement Agreement for Tank Site Repucci working with Jorgenson. Title TC-RP, Authority access road issue 25. Special Warranty Deed to Town for Public Road Tracts & Detention Pond TCMD Executed by District (Done) (Tract D) 26. Special Warranty Deed to Town for TC-RP Executed by District Public Road Tract G 27. Special Warranty Deed to Town for EH has final form, doesn’t think any TCMD Raw Water changes will be needed. Water Bank doc will probably address 28. Raw Water System O&M Agreement TCMD, Town water use issues. MS to add reference to O&M agreement 29. Partial Assignment of Amended and Restated Conveyance of Roadways and Easements (Conveying easement rights TCMD Executed by District pertinent to E. Beaver Creek and Chapel Place to Town) K. Martin to add cross-reference to 30. Second Amendment to Commercial Traer Creek-RP, CARADA PIF Covenants Commercial PIC EH sent additional revisions 2/24. Developer going through now. K. Martin to add cross-references to 31. Amendment to Mixed-Use PIF Traer Creek-RP, CARADA EH sent additional revisions Covenants Mixed-Use PIC 2/24. Developer going through now. 1st Bank, TCMD, Done and ready to be re-adopted and re- 32. Asphalt Overlay Escrow Agreement Town signed. 33. Resolution No. ______(approving Will be re-done. Town Asphalt Overlay Agreement) EH to provide Res. No. 34. Bill of Sale to Town for Wet Well TCMD Executed by District (Done) 35. Wet Well Easement Agreement TC-RP, Town, BoW EH to provide additional revisions 36. Bill of Sale to Town for Water TCMD Executed by District (Done) Dissipater 37. Bill of Sale to Town for Road TCMD Executed by District (Done) Improvements 38. Amended and Restated Nottingham Town, EH and Developer to finalize based on Dam Easement and Assignment District, TC-RP recent comments and revisions Agreement 39. Memorandum of Termination of Developer to send to Repucci. Waiting on TCMD, TCP Parking Facility Easement Agreement BoW? Executed by District.

2 Heil Notes March 21, 2013

Document or Instrument to be Date Signed By Deposited Recd (notes re status) 40. Memorandum of Termination of Developer to send to Repucci. Waiting on TCMD, TCP Common Easement Agreement BoW? Executed by District. Commercial PIC, 41. Add-On RSF Collection Services Mixed Use PIC, Close to done. EH sent minor comments. Agreement SDMS, Town 42. Revised Point-Of-Sale Placards SDMS Done. 43. Revised PIF Return Forms, SDMS Done Instructions and Notice to Retailers 44. Pledge Agreement (Water Storage BNP, TCMD, Done Tank Project) Authority, VMD 45. Purchase and Sale Agreement (qualifying BNP representative to TCMD ALK, BNP Draft was sent to BNP on 3/21 and VMD Boards) 46. Resolution Appointing BNP to TCMD TCMD Drafted. MS to send to BC Board 47. Resolution Appointing BNP to VMD VMD Drafted. MS to send to BC Board TCMD, VMD, District waiting for comments from 48. Repayment Agreement – Operations TCLLC Developer TCMD, VMD, District waiting for comments from 49. Repayment Agreement – Capital TCLLC Developer 50. Amendment to TCMD Service Town EH provided comments on 3/19 Plan/Approving Resolution by Town 51. Amendment to VMD Service EH provided comments on 3/19 Town Plan/Approving Resolution by Town 52. Revocable License Agreement for Done and ready for execution. TCMD Town, TCLLC Snow Storage removed as a party. BNP, Town, TCMD, 53. Stipulated Motion to Dismiss County, TCLLC, BNP circulated Litigation TC-RP, TC-HD, TC-WMT, TC Plaza, EMD 54. First Amendment to Amended & Restated Conveyance of Roadways, TCMD, TC-RP Done; executed by District Parkland & Easements 55. First Amendment to Conveyance of TCMD, TC-RP Done; executed by District Roadway Tract 56. Bill of Sale to TC-RP (shallow TCMD Executed by District (done) utilities) 57. Plat for Tank Site Done

3 H EIL L AW M EMORANDUM & PLANNING, LLC

TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Implementation Documents DATE: March 15, 2013 Summary: This memorandum presents two documents to Town Council for review and approval which are required for implementation of the Village (at Avon) Settlement. A memorandum providing an update on the status of other documents required to fully implement the Village (at Avon) Settlement will be provided separately in the March 26, 2013 Avon Town Council regular packet.

Town Staff has prepared charts depicting various agreements and documents related to the Village (at Avon). This material is included with this memorandum for Council’s information. Although this document is primarily an internal Town Staff resource, specific slides will likely be referenced for explanation to Council when other remaining settlement implementation documents are presented to Council.

Asphalt Overlay Escrow Account Agreement: The Town Council previously approved the Asphalt Overlay Escrow Account Agreement on December 11, 2012 by Resolution No. 12-30 by and among the Town of Avon, Traer Creek Metropolitan District, the Master Developer and First Bank as the escrow agent. Subsequent to the Town’s approval, the Master Developer asked to be removed from the Asphalt Overlay Escrow Account Agreement as a party. The Asphalt Overlay Escrow Account Agreement has been revised to remove the Master Developer as a party. The attached Version 11 is compared to the prior Version 9 which Council previously approved on December 11, 2012 by Resolution No. 12-30.

The removal of the Master Developer as a party to the Asphalt Overlay Escrow Account Agreement does not affect the Master Developer’s obligations in the Development Agreement (aka “CARADA”) to contribute to the Asphalt Overlay Escrow Account. The Asphalt Overlay Escrow Account Agreement only establishes rights and obligations of the Escrow Agent and of the Town and TCMD to request release of funds for asphalt overlay projects. Therefore, the removal of the Master Developer as a party to the Asphalt Overlay Escrow Account Agreement does not nor diminish any rights that the Town has to enforce payment contributions for asphalt overlays from the Master Developer and TCMD. Section 6.6 of the Development Agreement will be revised to reflect that the only parties entering into the Asphalt Overlay Escrow Account Agreement. A new resolution has been prepared to repeal Resolution No. 12-30 and re- approve the Asphalt Overlay Escrow Account Agreement, which is attached to this memorandum.

Requested Town Council Action: Approve Resolution No. 13-x.

Revocable License Agreement for Snow Storage: Section 3.7(b) of the Development Agreement requires the Town to provide a “Revocable License Agreement” to allow snow storage on Lot 2 (Planning Area B). Specifically, Section 3.7(b) of the Development Agreement states, “Until such time as Planning Area B is developed or improvements are constructed thereupon that preclude the 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.” As defined in the Development Agreement, “Revocable License Agreement means that certain Revocable License

Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: [email protected] e-mail: [email protected] Avon Town Council Village (at Avon) Settlement Implementation Documents March 15, 2013 Page 2 of 2

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.”

Traer Creek Metropolitan District has requested to be removed as a party from the Revocable License Agreement because they do not anticipate utilizing Lot 2 for snow storage. The Master Developer has requested that that the Revocable License Agreement designate Traer Creek-RP, LLC and EMD-CM LLC (aka Trees of Colorado) as licensees. Section 8.11 of the Development Agreement allows for assignment of Master Developer’s rights to other parties, which is acknowledged in Section 2.4 of the Revocable License Agreement.

The snow storage has been depicted in a graphic attached as Exhibit B to the Revocable License Agreement. Practically, it is very unlikely that Lot 2 would actually be used for snow storage because Traer Creek dumps snow on the east side of the large hole and the snow storage area on Lot 2 is the west side of the hole. Section 3.2 defines Hazardous Materials in a standard legal ease language which references the definitions established by federal environmental law. Section 3.3 allows the Town to summarily suspend the Snow Storage License if the Licensees dump or release Hazardous Materials in excess of incidental snow removal operations.

Section 3.5 of the Revocable License Agreement states that the Licensees shall repair any damage to Lot 2 resulting from dumping or release of Hazardous Materials. Actual enforcement of restoration of any environmental damage would be complicated and very expense to pursue, particularly with multiple parties utilizing the area for snow storage; therefore, it is more important practically that the Town monitor any snow dumping activities to prevent release of Hazardous Materials before any such practice causes significant environmental damage. Typical snow storage and snow dumping activities have minimal risk of releasing Hazardous Materials. Section 10.0 of the Revocable License Agreement clarifies that Town’s general permitting and licensing requirements still apply for any snow dumping and trucking activities.

Requested Town Council Action: Approve the Revocable License Agreement for Snow Storage by motion. NOTE: The affirmative concurring vote of four Council members is required to approve a contract. Without TCMD as a party, this Revocable License Agreement for Snow Storage is not an intergovernmental agreement, therefore, a super-majority vote is not required.

Attachments:

• Version 11 Compared to Version 9 of Asphalt Overlay Escrow Account Agreement • Resolution No. 13-x with Exhibit A: Version 11 of Asphalt Overlay Escrow Account Agreement • Revocable License Agreement for Snow Storage, Feb. 27, 2013 version • Village Document Flow Charts, dated March 15, 2013.

Thanks, Eric

ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT (“Asphalt Overlay Agreement”) is made and entered into as of January 22March 26, 2013, with an Effective Date of ______[insert Implementation Date as defined in Receipt and Escrow Agreement] by and between FirstBank Escrow Services, LLC (“Escrow Agent”); the Town of Avon, a home rule municipal corporation of the State of Colorado (“Town”);”) and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”); and Traer Creek LLC, a Colorado limited liability company (“Master Developer”) (individually referred to as “Party” and collectively as “Parties”). RECITALS

A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the Consolidated, Amended and Restated Annexation and Development Agreement for the Village (at Avon) (“Development Agreement”).

B. Master Developer, Town and TCMD seek to enter into this Asphalt Overlay Agreement in order to duly satisfy all provisions in the Development Agreement concerning the establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of the Development Agreement.

C. Master Developer, Town and TCMD are entering into this Asphalt Overlay Agreement with Escrow Agent in order to establish a restricted escrow account (as required by and defined in the Section 6.6 of the Development Agreement, the “Asphalt Overlay Account”) for the purpose of the deposit, administration and disbursement of their respective shares of certain funds (“Funds”) to be deposited, held and disbursed in accordance with the terms and conditions of this Asphalt Overlay Agreement.

D. In consideration of the payment of its fees and the performance of the respective obligations of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay Agreement, to administer the Asphalt Overlay Account and to perform its duties and obligations as set forth herein.

AGREEMENT

NOW, THEREFORE, for and in consideration of the foregoing, the Parties’ performance of their respective obligations hereunder, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties agree as follows:

1. Asphalt Overlay Account.

(a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay Account, which is a restricted non-interest bearing internal escrow account compliant with C.R.S. §24-75-601.1 regarding investment of public funds, at FirstBank, Avon Branch, located at 11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow Services, LLC, Asphalt Overlay Account No. ______.

Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 1 of 15

(b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town, TCMD and Master DeveloperTraer Creek, LLC (“TC-LLC”) to be used by the Town exclusively for asphalt overlay of constructed public roads in the Project which have been dedicated to and accepted by the Town in accordance with the terms of the Development Agreement.

(c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this Asphalt Overlay Agreement.

(d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non- interest bearing, internal escrow account in the name of Town, entitled “Village (at Avon) Asphalt Overlay Escrow Account,” which shall be segregated from other escrow accounts or assets held by the Escrow Agent.

(e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt overlays for certain public roads dedicated to the Town in the Village (at Avon) as described in the Development Agreement.

2. Fees. Master Developer, Town and TCMD agree to pay the Escrow Agent’s fees and to reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree that such fees will be deducted from Funds upon commencement of the Escrow Account and on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be deducted from the Funds upon issuance of each check.

3. Contributions. The Master DeveloperTC-LLC, Town and TCMD will deposit their individual contribution as required by Section 6.6 of the Development Agreement, which contributions shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance with the terms of the Development Agreement. The Parties’ individual contributions of TC-LLC, Town and TCMD are defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent shall not be liable for the failure of any PartyTC-LLC, Town and/or TCMD to contribute their respective contribution to the Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall not be construed to modify the Parties’ respective obligations of TC-LLC, Town and/or TCMD pursuant to the Development Agreement, shall not be used as parole evidence with respect to any dispute among the parties to the Development Agreement, and shall not be construed to impose any obligation on PartyTC-LLC, Town and/or TCMD with respect to the timing or amount of any Party’s obligation of TC-LLC, Town and/or TCMD to cause the deposit of its respective share of Funds (it being the intent of the foregoing only to describe the Parties’ obligations of TC-LLC, Town and TCMD pursuant to the Development

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Agreement and not to create nownew or additional obligations arising solely pursuant to this Section 3.).

4. Standard of Care and Liabilities. During the Term the Escrow Agent shall have the following standard of care and liabilities:

(a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent. This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent and the other parties hereto in connection with the subject matter of the Funds placed into escrow, and no other agreement entered into between the parties, or any of them, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be referred to herein or deposited with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow Agent’s rights and responsibilities shall be governed solely by this Asphalt Overlay Agreement.

(b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not incur any such liability with respect to (i) an action taken or omitted in good faith upon advice of its counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including written notices provided for herein, not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or for the identity of authority of any person executing or depositing such subject matter.

(c) The Escrow Agent shall hold Funds in trust for the benefit of the Town, TCMD and the Master DeveloperTCMD, and has a fiduciary duty to preserve and account for all Funds in the Asphalt Overlay Account.

(d) The Escrow Agent shall make and maintain such records as expressly required in this Asphalt Overlay Agreement and those records which are required by law .

(e) In the event Funds are lost by reason of the Escrow Agent’s breach of its fiduciary duty, then the liability of the Escrow Agent to Master Developer,the Town and/or TCMD shall be limited to the Master Developer’s, Town’s and/or TCMD’s direct damages, which shall be computed by determining:

(i) the amount of Funds contributed by each Party;TC-LLC, Town and TCMD;

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(ii) less the amount of any Escrow Fees previously paid;

(iii) less the amount of Funds previously released pursuant to the terms of this Asphalt Overlay Agreement; and

(iv) less the balance available in the Asphalt Overlay Account.

(f) The Escrow Agent shall not be liable to Master Developer, Town, TCMD and/or TCMDTC-LLC for indirect, punitive, special or consequential damage or loss, including, but not limited to, lost profits.

(g) Escrow Agent shall have no liability for the failure of any Party to contribute their respective portion of the Funds, and shall have no obligation to notify any Party of such Party’s or another Party’s failure to deposit Funds, it being the Parties’ intent that each Party shall be responsible for the timely deposit of its pro rata share of the Funds at the times and in the amounts required by the Development Agreement, and each Party shall be responsible to monitor the other Parties’ performance of their respective obligations to deposit Funds based on their review of the statements and other financial records required to be delivered pursuant to Section 6.

(h) Master Developer, Town and TCMD agree that the Escrow Agent (i) shall be obligated only for the performance of the duties set forth in this Asphalt Overlay Agreement and any other duties or obligations imposed by law, (ii) may rely on written notice, direction and instruction jointly from Master Developer, the Town and TCMD regarding the Funds, including, without limitation, wire transfer instructions, (iii) may rely on any documents from the Town, Master Developer or TCMD which appear to the Escrow Agent, in the exercise of its fiduciary duty, to be genuine and to have been authorized by the Town, Master Developer or TCMD and (iv) unless the documents appear questionable, the Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or validity of same.

(i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being shared equally among the Town, TCMD and Master DeveloperTCMD in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in accordance with the advice of such counsel.

5. Release of Funds. The Escrow Agent shall release funds to the Town according to the following procedures:

(a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a joint written request to Escrow Agent (“Joint Instruction”) for the release of Funds, or portion thereof, for the asphalt overlay project which request shall include: (i) the amount of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or segment of public road for which an asphalt overlay will occur within the Village (at Avon) project area (as defined in the Development Agreement), and (iii) instruction for to

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whom the monies released from the Asphalt Overlay Account should be paid.

(b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly executed by the Town and TCMD, the Escrow Agent is authorized and directed to deliver the Funds in accordance with such instruction.

6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account statements to Master Developer, Town, and TCMD on a monthly basis. The Escrow Agent, upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all financial records of the Asphalt Overlay Account to the requesting Party by the end of the second (2nd) business day after the date that a written request for financial records is received. Statements shall be sent via the United States Postal Service’s standard delivery.

7. Audit. The Master Developer, Town and TCMD shall each have the right to audit the Asphalt Overlay Account and any of Escrow Agent’s financial records related thereto at any time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three (3) business days after the date on which Escrow Agent receives the request, make all records pertaining to the Asphalt Overlay Account available during normal business hours to the Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own expenses in connection therewith unless the audit discloses any instance of Escrow Agent’s non-compliance with the terms and conditions of this Asphalt Overlay Agreement, in which case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable costs in expenses in connection therewith, including but not limited to the costs and expenses of any such Party(ies) employees, agents and consultants engaged in and/or performing the audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with any such audit.

8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by one of the following methods (“Term”):

(a) The Master DeveloperTC-LLC has fulfilled all obligations of the Master DeveloperTC- LLC to contribute funds, the obligation of Town and TCMD to contribute funds is terminated, the Town assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in accordance with Section 6.6(b) of the Development Agreement and the Master Developer, Town and TCMD send written notification to Escrow Agent that the requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met, provides instructions for the release and disbursement of Funds, and includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate have been met and such agreement is thereby terminated; or,

(b) the Town, Master Developer, and TCMD provide a joint written notice to terminate this Asphalt Overlay Agreement, which is: (i) signed by Town, Master Developer and TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate; or

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(c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below.

9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after receiving joint written notice from the Town, Master Developer and TCMD that Asphalt Overlay Agreement may be terminated in accordance with Section 6.6(b) of the Development Agreement. The written notice shall include a statement that the Town assumes all responsibility and liability for future asphalt overlays in accordance with the terms of the Development Agreement and shall be copied to the Master Developer and TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.

10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its obligations under this Asphalt Overlay Agreement as follows:

(a) The Escrow Agent shall deliver a written and dated resignation to the other Parties.

(b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of sixty (60) days from the date of the resignation or (ii) the date upon which Escrow Agent completes transfer of the Funds to the Successor EA (defined below) pursuant to Section 10(d).

(c) It shall be joint duty of Master Developer,the Town and TCMD to promptly secure a Successor Escrow Agent (“Successor EA”) and notify the Escrow Agent of the name and address of the Successor EA no later than the effective date of Escrow Agent’s resignation under this Section 10. Master Developer, Town, and TCMD agree to cooperate in a prompt, diligent and professional manner to secure a Successor EA. Master Developer, Town, and TCMD each agree that consent and approval of a Successor EA shall not be unreasonably withheld.

(d) The current Escrow Agent shall retain physical custody and control of the Funds until it receives (i) written notification by Master Developer, Town, and TCMD of the name and address of the Successor EA, and (ii) written notification from the Successor EA stating that the Successor EA has accepted the appointment. Upon receipt of the written notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the Successor EA within three (3) business days. In the event that the Escrow Agent does not receive both the written notification from the Master Developer, Town, and TCMD regarding the name and address of the Successor EA and the acceptance of the appointment by the Successor EA by the end of the sixtieth (60th) day after the date of the written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.

(e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA nor shall Escrow Agent have any liability for the failure of Master Developer, Town, and TCMD to appoint a Successor EA.

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(f) Town shall promptly, but no later than ten (10) days from the effective date of the new agreement, forward a copy of the new executed asphalt overlay escrow agreement entered into by Master Developer, Town, TCMD, and the Successor EA to the Escrow Agent.

11. Conflicting Claims. In the event of any disagreement between any of the Parties to this Asphalt Overlay Agreement, or between any of them and any other person, resulting in adverse claims or demands being made in connection with the matters covered by this Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Escrow Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjudged and all doubt resolved by agreement amount all of the interested persons, and Escrow Agent shall have been notified thereof in writing signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow Agent is hereby authorized in its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative of all other rights which it may have by law or otherwise.

12. Indemnification. To the extent permitted by law, Master Developer, Town, and TCMD, jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers, directors, employees, and agents from any and all “Claims” and “Losses” as defined in this Section 12., as a result of or in connection with the Escrow Agent’s acts under this Asphalt Overlay Agreement, other than claims made by Master Developer, Town, and/or TCMD for gross negligence of Escrow Agent, or willful misconduct of Escrow Agent.

(a) “Claims” shall mean all claims, lawsuits, causes of action, or other legal actions and proceedings of whatever nature brought against the Escrow Agent or any officer, director, employee, or agent, whether by way of direct action, counterclaim, cross action, or impleader, even if such claim is groundless, false, or fraudulent, so long as the claim, lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i) acts or omissions of Master Developer, Town, or TCMD, (ii) appointment of the Escrow Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the Escrow Agent of its powers and duties under this Asphalt Overlay Agreement.

(b) “Losses” shall mean losses, costs, damages, expenses, judgments, and liabilities of whatever nature (including, but not limited to, attorneys, accountants, and other professional’s fees, litigation and court costs and expenses, and amounts paid in settlement), directly or indirectly resulting from, arising out of, or relating to one or more Claims. Upon the written request of Escrow Agent or any officer, director, employee, or agent of Escrow Agent, Master Developer, Town, and TCMD agreesagree to jointly

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assume the investigation and defense of Escrow Agent against any Claims or Losses, including the employment of counsel acceptable to Escrow Agent and the payment of all expenses related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have the right, and Master Developer, Town, and TCMD agree to pay the costs and expense, to employ separate counsel with respect to any such Claim and to participate in the investigation and defense thereof. Master Developer, Town and, TCMD and Escrow Agent shall use all reasonable efforts to fully cooperate with each other in the defense of any Claims or Losses.

13. Notices. Any notice or communication, exclusive of periodic statements, required under this Asphalt Overlay Agreement between the Parties must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section 13, designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:

To Escrow Agent: With a Required Copy to:

FirstBank Escrow Services, LLC 1707 N Main St. Longmont, CO 80501 Attn: Carol Croft

To Master Developer: With a Required Copy to:

Traer Creek LLC Otten, Johnson, Robinson, Neff & Ragonetti, P.O. Box 9429 P.C. 0101 Fawcett Road, Suite 210 950 17th Street, Suite 1600 Avon, CO 81620 Denver, Colorado 80202 Attn: Marcus Lindholm, Manager Attention: Munsey L. Ayers, Esq. and Kimberly Martin, Esq.

To Town: With a Required Copy to:

Town of Avon Town of Avon P.O. Box 975 P.O. Box 975 One Lake Street One Lake Street Avon, CO 81620 Avon, CO 81620

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Attn: Town Manager Attn: Town Attorney To TCMD: With a Required Copy to:

McGeady Sisneros, P.C. Traer Creek Metropolitan District 450 E. 17th Avenue, Suite 400 141 Union Boulevard, Suite 150 Denver, CO 80203 Lakewood, CO 80228 Attn: Mary Jo Dougherty, Esq. Attn: Lisa Jacoby

14. Funds Unencumbered.

(a) Master Developer, Town and TCMD each warrant to the others that the respective Funds placed in the Asphalt Overlay Account are not subject to, nor will they become subject to, any claims of creditors of the Party contributing such Funds. Master Developer, Town and TCMD each agree that each Party will not use the Funds as security for any transaction, nor will Master Developer, Town or TCMD pledge the Funds or list the Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real or personal property.

(b) Master Developer, Town and TCMD each warrant that, during the term of this Asphalt Overlay Agreement, the Funds shall remain unencumbered by any legal interest that would violate the Asphalt Overlay Agreement.

(c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any security interest exists in any Funds in the Asphalt Overlay Account.

(d) The Escrow Agent will promptly notify the other Parties within two (2) business days if there is an attempt to encumber the Funds.

15. Third-Party Beneficiary. Nothing contained in this Asphalt Overlay Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third-party receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended beneficiary only.

16. Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of this Asphalt Overlay Agreement that require continued performance, compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply.

17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party

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without the express written consent of the other Parties. Any written assignment shall expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved in writing, signed and notarized by the other Parties, and with respect to an assignment of a Party’s obligations or responsibilities shall be expressly assumed in writing by the assignee. Any attempted assignment without written consent by all other Parties to this Asphalt Overlay Agreement shall be void ab initio and unenforceable.

18. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town and TCMD are subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Asphalt Overlay Agreement to the contrary, all payment obligations of the Town and TCMD are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town’s and TCMD’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town and TCMD payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Town and of TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish, supplement or supersede the provisions in the Development Agreement concerning default for non-payment of by Town and/or TCMD in the performance of their respective obligations to deposit Funds into the Asphalt Overlay Account.

19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Asphalt Overlay Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Asphalt Overlay Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Asphalt Overlay Agreement.

20. Construction and Interpretation. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Asphalt Overlay Agreement. If there is any conflict between the language of this Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt Overlay Agreement shall govern. If there is any conflict between the language of this Asphalt Overlay Agreement and the Development Agreement, then language in the Development Agreement shall control between the Town, TCMD and Master DeveloperTCMD, so long as such interpretation does not affect the rights or obligations of the Escrow Agent, and the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and any of the Parties.

21. No Waiver of Rights. A waiver by any Party to this Asphalt Overlay Agreement of the breach of any term or provision of this Asphalt Overlay Agreement shall not operate or be

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construed as a waiver of any subsequent breach by any Party. No covenant or term of this Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing signed by a person expressly authorized to sign such waiver for such Party and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. Notwithstanding any provision to the contrary in this Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protections provided to the Town and TCMD under the Colorado Governmental Immunity Act.

22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter herein, and is intended as the Parties’ final expression and complete and an exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. This Asphalt Overlay Agreement may be amended or modified only by an instrument in writing signed by all Parties with express approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement are incorporated herein by reference.

23. Force Majeure. Escrow Agent shall not be liable to the Town, or TCMD or Master Developer for any loss or damage arising out of any acts of nature, strikes or transmission line failure, war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow Agent.

24. Calculation of Days. If the last day for any act, deadline, expiration of a right, or date to provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of Colorado as set forth in C.R.S. §24-11-101, then the next business day which is not a Saturday, Sunday or such legal holiday shall be deemed the last day.

25. Counterparts. This Asphalt Overlay 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. All joint written instructions from the Town and TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Escrow Agent, Master Developer, Town and TCMD have executed this Asphalt Overlay Agreement as of the date first written above.

THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE UNDERSIGNED PARTIES:

Escrow Agent: FirstBank Escrow Services, LLC

By:______Carol Croft, Escrow Officer

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______

2013, by ______. Carol Croft, Escrow Officer

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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Master Developer: Traer Creek LLC

By:______Marcus Lindholm, Manager

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______2011, by Marcus Lindholm, Manager.

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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Town: Town of Avon, Colorado

By:______Attest:______Rich Carroll, Mayor Patty McKenny, Town Clerk

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______2011, by Rich Carroll, Mayor.

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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Traer Creek Metropolitan District

By:______Dan Leary, President

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______2011, by Dan Leary, President Traer Creek Metropolitan District.

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

Asphalt Overlay Agreement V11 – FINAL March 7, 2013 V9 – December 3, 2012 Heil Page 15 of 15 TOWN OF AVON RESOLUTION NO. 13-x Series of 2013

A RESOLUTION REPEALING RESOLUTION NO. 12-30 AND RE-APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT

WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos. 2008 CV 385 and 2010 CV 316, Eagle County District Court;

WHEREAS, the Avon Town Council (“Council”) approved the Consolidated, Amended and Restated Annexation and Development Agreement (“CARADA”) by Ordinance No. 12-10 which set forth obligations in section 6.6 of the CARADA for the Town, Traer Creek Metropolitan District and the Master Developer (as “Master Developer” is defined in the CARADA) to establish an Asphalt Overlay Escrow Account Agreement (defined in the CARADA as the “Asphalt Overlay Agreement”) and also set forth that the Asphalt Overlay Agreement would occur concurrently with the Effective Date of the CARADA (as the “Effective Date” is defined in the CARADA);

WHEREAS, the Council approved Resolution No. 12-30 A RESOLUTION APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT on December 11, 2012, and subsequent to such approval, the Master Developer requested the removal of Master Developer as a party to the Asphalt Overlay Escrow Account Agreement and the Council desires to accommodate this request and re-approve the Asphalt Overlay Escrow Account Agreement without the Master Developer as a party; and,

WHEREAS, the Council approved the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation by Ordinance No. 12-10 which set forth various terms concerning the execution and deposit of documents and agreements into escrow and the effectiveness or voiding of such documents and agreements.

NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Resolution No. 12-30 A RESOLUTION APPROVING THE ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT is hereby rescinded, repealed, and replaced in its entirety with this Resolution.

BE IT FURTHER RESOLVED that the Asphalt Overlay Escrow Account Agreement, attached hereto as Exhibit A, is hereby approved by the Town of Avon subject to the terms and conditions of the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation and that the Mayor, Town Manager and Town Attorney are hereby authorized to collectively review and approve the completion of blanks in the document, revisions to correct typos, grammatical errors, cross-references and definitions, completion or revision of exhibits, and other revisions to the agreement and exhibits which do not constitute substantive changes to the agreement.

Res. 13-x Approving Asphalt Overlay Escrow Account Agreement March 15, 2013 ejh Page 1 of 2 ADOPTED MARCH 26, 2013

TOWN COUNCIL ATTEST:

By:______By:______Rich Carroll, Mayor Patty McKenny, Town Clerk

APPROVED AS TO FORM:

By:______Eric J. Heil, Town Attorney

Res. 13-x Approving Asphalt Overlay Escrow Account Agreement March 15, 2013 ejh Page 2 of 2 EXHIBIT A to Resolution 13-x

ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT (“Asphalt Overlay Agreement”) is made and entered into as of March 26, 2013, with an Effective Date of ______[insert Implementation Date as defined in Receipt and Escrow Agreement] by and between FirstBank Escrow Services, LLC (“Escrow Agent”); the Town of Avon, a home rule municipal corporation of the State of Colorado (“Town”) and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”) (individually referred to as “Party” and collectively as “Parties”). RECITALS

A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the Consolidated, Amended and Restated Annexation and Development Agreement for the Village (at Avon) (“Development Agreement”).

B. Town and TCMD seek to enter into this Asphalt Overlay Agreement in order to duly satisfy all provisions in the Development Agreement concerning the establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of the Development Agreement.

C. Town and TCMD are entering into this Asphalt Overlay Agreement with Escrow Agent in order to establish a restricted escrow account (as required by and defined in the Section 6.6 of the Development Agreement, the “Asphalt Overlay Account”) for the purpose of the deposit, administration and disbursement of their respective shares of certain funds (“Funds”) to be deposited, held and disbursed in accordance with the terms and conditions of this Asphalt Overlay Agreement.

D. In consideration of the payment of its fees and the performance of the respective obligations of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay Agreement, to administer the Asphalt Overlay Account and to perform its duties and obligations as set forth herein.

AGREEMENT

NOW, THEREFORE, for and in consideration of the foregoing, the Parties’ performance of their respective obligations hereunder, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties agree as follows:

1. Asphalt Overlay Account.

(a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay Account, which is a restricted non-interest bearing internal escrow account compliant with C.R.S. §24-75-601.1 regarding investment of public funds, at FirstBank, Avon Branch, located at 11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow Services, LLC, Asphalt Overlay Account No. ______.

(b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town, TCMD and Traer Creek, LLC (“TC-LLC”) to be used by the Town exclusively for

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asphalt overlay of constructed public roads in the Project which have been dedicated to and accepted by the Town in accordance with the terms of the Development Agreement.

(c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this Asphalt Overlay Agreement.

(d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non- interest bearing, internal escrow account in the name of Town, entitled “Village (at Avon) Asphalt Overlay Escrow Account,” which shall be segregated from other escrow accounts or assets held by the Escrow Agent.

(e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt overlays for certain public roads dedicated to the Town in the Village (at Avon) as described in the Development Agreement.

2. Fees. Town and TCMD agree to pay the Escrow Agent’s fees and to reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree that such fees will be deducted from Funds upon commencement of the Escrow Account and on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be deducted from the Funds upon issuance of each check.

3. Contributions. TC-LLC, Town and TCMD will deposit their individual contribution as required by Section 6.6 of the Development Agreement, which contributions shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance with the terms of the Development Agreement. The individual contributions of TC-LLC, Town and TCMD are defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent shall not be liable for the failure of TC-LLC, Town and/or TCMD to contribute their respective contribution to the Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall not be construed to modify the respective obligations of TC-LLC, Town and/or TCMD pursuant to the Development Agreement, shall not be used as parole evidence with respect to any dispute among the parties to the Development Agreement, and shall not be construed to impose any obligation on TC-LLC, Town and/or TCMD with respect to the timing or amount of any obligation of TC-LLC, Town and/or TCMD to cause the deposit of its respective share of Funds (it being the intent of the foregoing only to describe the obligations of TC-LLC, Town and TCMD pursuant to the Development Agreement and not to create new or additional obligations arising solely pursuant to this Section 3).

4. Standard of Care and Liabilities. During the Term the Escrow Agent shall have the following standard of care and liabilities:

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(a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent. This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent and the other parties hereto in connection with the subject matter of the Funds placed into escrow, and no other agreement entered into between the parties, or any of them, shall be considered as adopted or binding, in whole or in part, upon the Escrow Agent notwithstanding that any such other agreement may be referred to herein or deposited with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow Agent’s rights and responsibilities shall be governed solely by this Asphalt Overlay Agreement.

(b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not incur any such liability with respect to (i) an action taken or omitted in good faith upon advice of its counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including written notices provided for herein, not only as to its due execution and the validity and effectiveness of its provision, but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or for the identity of authority of any person executing or depositing such subject matter.

(c) The Escrow Agent shall hold Funds in trust for the benefit of the Town and TCMD, and has a fiduciary duty to preserve and account for all Funds in the Asphalt Overlay Account.

(d) The Escrow Agent shall make and maintain such records as expressly required in this Asphalt Overlay Agreement and those records which are required by law.

(e) In the event Funds are lost by reason of the Escrow Agent’s breach of its fiduciary duty, then the liability of the Escrow Agent to the Town and/or TCMD shall be limited to the Town’s and/or TCMD’s direct damages, which shall be computed by determining:

(i) the amount of Funds contributed by TC-LLC, Town and TCMD;

(ii) less the amount of any Escrow Fees previously paid;

(iii) less the amount of Funds previously released pursuant to the terms of this Asphalt Overlay Agreement; and

(iv) less the balance available in the Asphalt Overlay Account.

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(f) The Escrow Agent shall not be liable to Town, TCMD and/or TC-LLC for indirect, punitive, special or consequential damage or loss, including, but not limited to, lost profits.

(g) Escrow Agent shall have no liability for the failure of any Party to contribute their respective portion of the Funds, and shall have no obligation to notify any Party of such Party’s or another Party’s failure to deposit Funds, it being the Parties’ intent that each Party shall be responsible for the timely deposit of its pro rata share of the Funds at the times and in the amounts required by the Development Agreement, and each Party shall be responsible to monitor the other Parties’ performance of their respective obligations to deposit Funds based on their review of the statements and other financial records required to be delivered pursuant to Section 6.

(h) Town and TCMD agree that the Escrow Agent (i) shall be obligated only for the performance of the duties set forth in this Asphalt Overlay Agreement and any other duties or obligations imposed by law, (ii) may rely on written notice, direction and instruction jointly from the Town and TCMD regarding the Funds, including, without limitation, wire transfer instructions, (iii) may rely on any documents from the Town or TCMD which appear to the Escrow Agent, in the exercise of its fiduciary duty, to be genuine and to have been authorized by the Town or TCMD and (iv) unless the documents appear questionable, the Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or validity of same.

(i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being shared equally among the Town and TCMD in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in accordance with the advice of such counsel.

5. Release of Funds. The Escrow Agent shall release funds to the Town according to the following procedures:

(a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a joint written request to Escrow Agent (“Joint Instruction”) for the release of Funds, or portion thereof, for the asphalt overlay project which request shall include: (i) the amount of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or segment of public road for which an asphalt overlay will occur within the Village (at Avon) project area (as defined in the Development Agreement), and (iii) instruction for to whom the monies released from the Asphalt Overlay Account should be paid.

(b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly executed by the Town and TCMD, the Escrow Agent is authorized and directed to deliver the Funds in accordance with such instruction.

6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account statements to Town and TCMD on a monthly basis. The Escrow Agent, upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all financial records of

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the Asphalt Overlay Account to the requesting Party by the end of the second (2nd) business day after the date that a written request for financial records is received. Statements shall be sent via the United States Postal Service’s standard delivery.

7. Audit. The Town and TCMD shall each have the right to audit the Asphalt Overlay Account and any of Escrow Agent’s financial records related thereto at any time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three (3) business days after the date on which Escrow Agent receives the request, make all records pertaining to the Asphalt Overlay Account available during normal business hours to the Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own expenses in connection therewith unless the audit discloses any instance of Escrow Agent’s non-compliance with the terms and conditions of this Asphalt Overlay Agreement, in which case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable costs in expenses in connection therewith, including but not limited to the costs and expenses of any such Party(ies) employees, agents and consultants engaged in and/or performing the audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with any such audit.

8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by one of the following methods (“Term”):

(a) TC-LLC has fulfilled all obligations of TC-LLC to contribute funds, the obligation of Town and TCMD to contribute funds is terminated, the Town assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in accordance with Section 6.6(b) of the Development Agreement and the Town and TCMD send written notification to Escrow Agent that the requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met, provides instructions for the release and disbursement of Funds, and includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate have been met and such agreement is thereby terminated; or,

(b) the Town and TCMD provide a joint written notice to terminate this Asphalt Overlay Agreement, which is: (i) signed by Town and TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds as requested in the joint written notice to terminate; or

(c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below.

9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after receiving joint written notice from the Town and TCMD that Asphalt Overlay Agreement may be terminated in accordance with Section 6.6(b) of the Development Agreement. The written notice shall include a statement that the Town assumes all responsibility and liability for future asphalt overlays in accordance with the terms of the Development Agreement and shall be copied to TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a

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notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.

10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its obligations under this Asphalt Overlay Agreement as follows:

(a) The Escrow Agent shall deliver a written and dated resignation to the other Parties.

(b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of sixty (60) days from the date of the resignation or (ii) the date upon which Escrow Agent completes transfer of the Funds to the Successor EA (defined below) pursuant to Section 10(d).

(c) It shall be joint duty of the Town and TCMD to promptly secure a Successor Escrow Agent (“Successor EA”) and notify the Escrow Agent of the name and address of the Successor EA no later than the effective date of Escrow Agent’s resignation under this Section 10. Town and TCMD agree to cooperate in a prompt, diligent and professional manner to secure a Successor EA. Town and TCMD each agree that consent and approval of a Successor EA shall not be unreasonably withheld.

(d) The current Escrow Agent shall retain physical custody and control of the Funds until it receives (i) written notification by Town and TCMD of the name and address of the Successor EA, and (ii) written notification from the Successor EA stating that the Successor EA has accepted the appointment. Upon receipt of the written notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the Successor EA within three (3) business days. In the event that the Escrow Agent does not receive both the written notification from the Town and TCMD regarding the name and address of the Successor EA and the acceptance of the appointment by the Successor EA by the end of the sixtieth (60th) day after the date of the written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.

(e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA nor shall Escrow Agent have any liability for the failure of Town and TCMD to appoint a Successor EA.

(f) Town shall promptly, but no later than ten (10) days from the effective date of the new agreement, forward a copy of the new executed asphalt overlay escrow agreement entered into by Town TCMD, and the Successor EA to the Escrow Agent.

11. Conflicting Claims. In the event of any disagreement between any of the Parties to this Asphalt Overlay Agreement, or between any of them and any other person, resulting in adverse claims or demands being made in connection with the matters covered by this Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as

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such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and Escrow Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjudged and all doubt resolved by agreement amount all of the interested persons, and Escrow Agent shall have been notified thereof in writing signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow Agent is hereby authorized in its sole discretion, to comply with and obey any such orders, judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative of all other rights which it may have by law or otherwise.

12. Indemnification. To the extent permitted by law, Town and TCMD, jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers, directors, employees, and agents from any and all “Claims” and “Losses” as defined in this Section 12., as a result of or in connection with the Escrow Agent’s acts under this Asphalt Overlay Agreement, other than claims made by Town and/or TCMD for gross negligence of Escrow Agent, or willful misconduct of Escrow Agent.

(a) “Claims” shall mean all claims, lawsuits, causes of action, or other legal actions and proceedings of whatever nature brought against the Escrow Agent or any officer, director, employee, or agent, whether by way of direct action, counterclaim, cross action, or impleader, even if such claim is groundless, false, or fraudulent, so long as the claim, lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i) acts or omissions of Town or TCMD, (ii) appointment of the Escrow Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the Escrow Agent of its powers and duties under this Asphalt Overlay Agreement.

(b) “Losses” shall mean losses, costs, damages, expenses, judgments, and liabilities of whatever nature (including, but not limited to, attorneys, accountants, and other professional’s fees, litigation and court costs and expenses, and amounts paid in settlement), directly or indirectly resulting from, arising out of, or relating to one or more Claims. Upon the written request of Escrow Agent or any officer, director, employee, or agent of Escrow Agent, Town and TCMD agree to jointly assume the investigation and defense of Escrow Agent against any Claims or Losses, including the employment of counsel acceptable to Escrow Agent and the payment of all expenses related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have the right, and Town and TCMD agree to pay the costs and expense, to employ separate counsel with respect to any such Claim and to participate in the investigation and defense thereof. Town, TCMD and Escrow Agent shall use all reasonable efforts to fully cooperate with each other in the defense of any Claims or Losses.

13. Notices. Any notice or communication, exclusive of periodic statements, required under this Asphalt Overlay Agreement between the Parties must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered

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or certified mail, the same shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section 13, designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:

To Escrow Agent: With a Required Copy to:

FirstBank Escrow Services, LLC 1707 N Main St. Longmont, CO 80501 Attn: Carol Croft

To Town: With a Required Copy to:

Town of Avon Town of Avon P.O. Box 975 P.O. Box 975 One Lake Street One Lake Street Avon, CO 81620 Avon, CO 81620 Attn: Town Manager Attn: Town Attorney To TCMD: With a Required Copy to:

McGeady Sisneros, P.C. Traer Creek Metropolitan District 450 E. 17th Avenue, Suite 400 141 Union Boulevard, Suite 150 Denver, CO 80203 Lakewood, CO 80228 Attn: Mary Jo Dougherty, Esq. Attn: Lisa Jacoby

14. Funds Unencumbered.

(a) Town and TCMD each warrant to the others that the respective Funds placed in the Asphalt Overlay Account are not subject to, nor will they become subject to, any claims of creditors of the Party contributing such Funds. Town and TCMD each agree that each Party will not use the Funds as security for any transaction, nor will Town or TCMD pledge the Funds or list the Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real or personal property.

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(b) Town and TCMD each warrant that, during the term of this Asphalt Overlay Agreement, the Funds shall remain unencumbered by any legal interest that would violate the Asphalt Overlay Agreement.

(c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any security interest exists in any Funds in the Asphalt Overlay Account.

(d) The Escrow Agent will promptly notify the other Parties within two (2) business days if there is an attempt to encumber the Funds.

15. Third-Party Beneficiary. Nothing contained in this Asphalt Overlay Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third-party receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended beneficiary only.

16. Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of this Asphalt Overlay Agreement that require continued performance, compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply.

17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party without the express written consent of the other Parties. Any written assignment shall expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved in writing, signed and notarized by the other Parties, and with respect to an assignment of a Party’s obligations or responsibilities shall be expressly assumed in writing by the assignee. Any attempted assignment without written consent by all other Parties to this Asphalt Overlay Agreement shall be void ab initio and unenforceable.

18. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town and TCMD are subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Asphalt Overlay Agreement to the contrary, all payment obligations of the Town and TCMD are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town’s and TCMD’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town and TCMD payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Town and of TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish, supplement or supersede the provisions in the Development Agreement concerning default

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for non-payment of by Town and/or TCMD in the performance of their respective obligations to deposit Funds into the Asphalt Overlay Account.

19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Asphalt Overlay Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Asphalt Overlay Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Asphalt Overlay Agreement.

20. Construction and Interpretation. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Asphalt Overlay Agreement. If there is any conflict between the language of this Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt Overlay Agreement shall govern. If there is any conflict between the language of this Asphalt Overlay Agreement and the Development Agreement, then language in the Development Agreement shall control between the Town and TCMD, so long as such interpretation does not affect the rights or obligations of the Escrow Agent, and the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and any of the Parties.

21. No Waiver of Rights. A waiver by any Party to this Asphalt Overlay Agreement of the breach of any term or provision of this Asphalt Overlay Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. No covenant or term of this Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing signed by a person expressly authorized to sign such waiver for such Party and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. Notwithstanding any provision to the contrary in this Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protections provided to the Town and TCMD under the Colorado Governmental Immunity Act.

22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter herein, and is intended as the Parties’ final expression and complete and an exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral. This Asphalt Overlay Agreement may be amended or modified only by an instrument in writing signed by all Parties with express approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement are incorporated herein by reference.

23. Force Majeure. Escrow Agent shall not be liable to the Town or TCMD for any loss or damage arising out of any acts of nature, strikes or transmission line failure, war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow Agent.

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24. Calculation of Days. If the last day for any act, deadline, expiration of a right, or date to provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of Colorado as set forth in C.R.S. §24-11-101, then the next business day which is not a Saturday, Sunday or such legal holiday shall be deemed the last day.

25. Counterparts. This Asphalt Overlay 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. All joint written instructions from the Town and TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Escrow Agent, Town and TCMD have executed this Asphalt Overlay Agreement as of the date first written above.

THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE UNDERSIGNED PARTIES:

Escrow Agent: FirstBank Escrow Services, LLC

By:______Carol Croft, Escrow Officer

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______

2013, by ______. Carol Croft, Escrow Officer

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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Town: Town of Avon, Colorado

By:______Attest:______Rich Carroll, Mayor Patty McKenny, Town Clerk

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______2011, by Rich Carroll, Mayor.

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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Traer Creek Metropolitan District

By:______Dan Leary, President

STATE OF COLORADO ) ) ss. COUNTY OF EAGLE )

The foregoing instrument was acknowledged before me this ____ day of ______2011, by Dan Leary, President Traer Creek Metropolitan District.

WITNESS MY HAND AND OFFICIAL SEAL.

______NOTARY PUBLIC My commission expires:

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REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE

AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON, TRAER CREEK-RP LLC AND EMD-CM LLC FOR THE GRANT OF A REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE.

1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage (this “Agreement”) dated as of ______, 20____ (the “Execution Date”) are the Town of Avon, a home rule municipal corporation of the State of Colorado (the “Town” and a “Party”), Traer Creek-RP LLC, a Colorado limited liability company (“Traer Creek” a “Licensee” and a “Party”), and EMD-CM LLC, aka Trees of Colorado, a Colorado limited liability company (“EMD” a “Licensee” and a “Party”), together with Traer Creek, the “Licensees.” Within this Agreement, the “Parties” is the plural of the defined term “Party” but does not necessarily include all the parties (the Town, Traer Creek and EMD).

2.0 RECITALS AND PURPOSE.

2.1 The Town is the fee owner of certain property located in the Town of Avon, County of Eagle, State of Colorado, as more particularly described in EXHIBIT A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated herein by this reference (the “Property”); and

2.2 The Town and Traer Creek are also certain of the parties to that certain Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of ______, 20___ and recorded on ______, 20___ in the real property records of the Clerk and Recorder for Eagle County, Colorado (the “Records”) at Reception No. ______(the “Development Agreement”), which is hereby incorporated by this reference; and

2.3 Master Developer caused Traer Creek to convey the Property to the Town in accordance with Section 3.7(b) of the Development Agreement which provides that until such time that the Property is developed or improvements are constructed thereupon that would preclude use of the Property for snow storage, the Town and Master Developer (as “Master Developer” is defined in the Development Agreement) shall have the right to use the Property for snow storage; and

2.4 The Master Developer has the right to assign any portion of its rights under the Development Agreement to third parties acquiring an interest or estate in the Property pursuant to Section 8.11 of the Development Agreement and has elected to assign its rights to this Agreement to Traer Creek and EMD; and

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 1 of 12 2.5 The Town desires to grant, and the Licensees desire to accept, a revocable license for the purpose of snow storage upon the Property consistent with the terms of the Development Agreement.

3.0 LICENSE TERMS AND CONDITIONS.

3.1 Grant of License. The Town hereby grants to Licensees a revocable license for snow storage purposes (the “Snow Storage License”) on, over and upon the Property for the area depicted in EXHIBIT B: SNOW STORAGE AREA, which is subject to change pursuant to Section 3.7(b) of the Development Agreement.

3.2 Hazardous Materials. The applicable Licensee or Licensees agree to use reasonable commercial efforts to avoid the dumping or release of Hazardous Materials (defined below) on the Property, provided that the Town acknowledges and agrees that Licensees intend to store snow on the Property that has been removed from streets, drive lanes, parking lots and other paved vehicular travel and storage surfaces, and, in connection therewith, there may occur incidental dumping of the by-products of such surfaces and vehicles, such as petroleum, gasoline products, products associated with snow removal such as cinders and magnesium chloride. The term “Hazardous Materials” as used herein includes, without limitation, gasoline, petroleum products, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos or any material containing asbestos, or any other substance or material as may be defined as a hazardous or toxic substance by any Federal, state or local environmental law, ordinance, rule, or regulation including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section 1801, et seq.) the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.) and in the regulations adopted and publications promulgated pursuant thereto.

3.3 Term; Termination. This Agreement and the Snow Storage License granted to the Licensees hereby shall commence on the Effective Date (as “Effective Date” is defined in the Development Agreement) and terminate on the date the Property is so developed or such improvements are constructed thereupon that preclude use of the Property for snow storage (the “Snow Storage Termination Date”). Any and all improvements constructed on the Property are subject to approval by the Design Review Board (as defined in the Development Agreement) pursuant to the terms of the Development Agreement. Pursuant to paragraph 5 below, the Town shall give the Licensees sixty (60) days prior written notice of the Town’s commencement of development or commencement of construction of such improvements on the Property that preclude use of the Property for snow storage. The Town’s notice of termination in any given year must be received by

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 2 of 12 September 30, so that the Licensees can enter into contracts for snow storage for the upcoming snow season. For clarification purposes, grading the Property does not in itself make the Property unsuitable for snow storage use. The Snow Storage License may be earlier revoked only if the Town Council of the Town has made a legislative determination at a duly noticed public hearing that revocation of the Snow Storage License is necessary to protect the public health, safety and welfare of the Town; provided, however, the Town shall give the Licensees written notice specifying the nature of public health, safety and welfare concern and the Licensees shall have 30 days from such written notice to cure or correct such concern (or such longer time as is reasonably necessary to cure or correct such concern so long as the Licensees have in good faith commenced and are diligently pursuing efforts to correct the condition specified in such notice). If the Licensees fail to cure or correct such concern within such timeframe, the Town shall thereafter give Licensees written notice of revocation of the Snow Storage License. The Town may summarily suspend the Snow Storage License granted to Licensees if Licensees dump or release Hazardous Materials in excess of incidental dumping of the by-products of streets, drive lanes, parking lots and other paved vehicular travel and storage surfaces and vehicles as described in paragraph 3.2 above until such time as Licensees repair the damage caused by such dumping or release of Hazardous Materials or the Town takes legislative action to revoke the Snow Storage License according to the procedures stated in this paragraph 3.3. From and after the Snow Storage Termination Date, the Licensees shall have no right to use the Property for snow storage purposes, the Snow Storage License shall automatically be revoked and this Agreement shall terminate and be of no further force or effect, provided that Licensees’ obligation to repair any damage to the Property caused by Licensees as set forth in paragraph 3.5 below shall survive the termination of this Agreement.

3.4 Indemnity. To the extent permitted by law, the applicable Licensee or Licensees expressly agree to, and shall, indemnify and hold harmless the Town, as licensor, and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including reasonable costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation (collectively, the “Claims”), in connection with or arising out of any act or omission by the Licensees or any of their respective employees, agents, partners, or lessees, in exercising their rights under this Agreement; provided, however, such indemnity and hold harmless shall not extend to any Claims in connection with or arising out of the negligence or willful misconduct of the Town. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensees shall, to the extent permitted by law, indemnify the Town from all Claims in connection with or arising out of any claim in whole or in part that all or any portion of the snow storage permitted by this Agreement constitutes a dangerous and/or unsafe condition within a public right-of-way; provided, however, such indemnity shall not extend to any Claims in connection with or arising out of the negligence or

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 3 of 12 willful misconduct of the Town. Notwithstanding the foregoing, EMD shall have no liability for any Claims arising by or through the actions or inactions of Traer Creek and Traer Creek shall have no liability for any Claims arising by or through the actions or inactions of EMD and the Town agrees to look solely to the applicable Licensee hereunder with respect to any Claim and hold harmless hereunder the other Licensee not the cause of the Claim.

3.5 Damage; Environmental Conditions. During the term of this Agreement, the applicable Licensee or Licensees shall promptly repair, at no cost to the Town, any damage caused by the applicable Licensee or Licensees to the Property and improvements thereon, including without limitation, the dumping or release of Hazardous Materials, and shall return the Property and such improvements to the condition existing immediately prior to the occurrence of the damage. In no event, however, shall the Town claim the Property or the improvements thereon are damaged due to the dumping or release of Hazardous Materials associated with the snow dumping operation, unless the Town can prove such dumping or release of Hazardous Materials are in excess of what is considered commercially reasonable. Upon termination of this Agreement, the applicable Licensee or Licensees agree to repair, at no cost to the Town, any damage to the Property caused by the Licensees, including without limitation, removal and/or remediation of any Hazardous Materials placed on the Property by the applicable Licensee or Licensees, and the Town hereby grants an encroachment license to Licensees for the limited purpose of performing such repair, removal and clean up, if any, which encroachment license shall survive termination of this Agreement. Notwithstanding the foregoing, Traer Creek shall have no liability for any damage arising by or through the actions or inactions of EMD and EMD shall have no liability for any damage arising by or through the actions or inactions of Traer Creek and the Town agrees to look solely to the applicable Licensee hereunder with respect to any damage and hold the other Licensee that did not cause the damage harmless hereunder.

3.6 Insurance. The applicable Licensee or Licensees agree to procure and maintain, at their own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the Property in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured.” However, the applicable Licensee or Licensees’ failure to take such steps to obtain such insurance shall not waive, affect, or impair any obligation of the applicable Licensee or Licensees to indemnify or hold the Town harmless in accordance with this Agreement. If applicable, Licensees agree to apportion the cost of any such insurance between them on a commercially reasonable basis.

4.0 ASSIGNMENT. This Agreement shall not be assigned by any of the Parties without the prior written consent of all the Parties, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, Traer Creek and EMD shall have the right to assign or transfer all or any portion of their respective interests, rights or obligations under this Agreement to any related parties or any third parties acquiring an interest or

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 4 of 12 estate in the property legally described in Exhibit A to the Development Agreement, and generally known as The Village (at Avon), including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within such property, provided that to the extent Traer Creek or EMD assigns or transfers any of their respective obligations under this Agreement, the assignee/assignees or transferee/transferees of such obligations shall expressly assume such obligations. The express assumption of any of Traer Creek’s or EMD’s respective obligations under this Agreement by their respective assignee/assignees or transferee/transferees shall thereby relieve Traer Creek and EMD of any further obligations under this Agreement with respect to the matter so assumed. Additionally, and under the same terms and conditions just outlined, Traer Creek or EMD may assign or transfer their respective rights herein to any successors in interest, heirs, assigns, transferees, etc.

5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a Party desires or is required to give to the other Parties shall be in writing and either personally delivered, sent by registered or certified United States mail, postage prepaid, or sent by overnight courier. 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 registered or certified United States mail, postage prepaid, return receipt requested, three (3) business days after mailed. Notices shall be addressed as follows (or to such other address as may be subsequently specified by notice given in accordance herewith):

To Traer Creek: With Copy to:

Traer Creek LLC Otten, Johnson, Robinson, Neff & Ragonetti, P.C. P.O. Box 9429 950 17th Street, Suite 1600 0101 Fawcett Road, Suite 210 Denver, Colorado 80202 Avon, CO 81620 Attention: Munsey L. Ayers, Esq. Attn: Marcus Lindholm, Manager Telephone: 303.825.8400 Telephone: 970.949.6776

To EMD: With Copy to:

EMD-CM LLC Otten, Johnson, Robinson, Neff & Ragonetti, P.C. P.O. Box 9429 950 17th Street, Suite 1600 0101 Fawcett Road, Suite 210 Denver, Colorado 80202 Avon, CO 81620 Attention: Munsey L. Ayers, Esq. Attn: EMD Limited Liability Telephone: 303.825.8400 Company, Manager Telephone: 970.949.6776

To Town: With Copy to:

Town of Avon Town of Avon

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 5 of 12 P.O. Box 975 P.O. Box 975 One Lake Street One Lake Street Avon, CO 81620 Avon, CO 81620 Attn: Town Manager Attn: Town Attorney Telephone: 970.748.4000 Telephone: 970.748.4000

6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between the Parties as to the subject matter of this Agreement and no prior representations or statements, verbal or written, shall modify, supplement or change the terms of this Agreement. This Agreement may not be amended, modified or supplemented except in writing executed by all the Parties (or their successors or assigns, as applicable).

7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado.

8.0 WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances.

9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein.

10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful misconduct of the Town, it is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the Snow Storage License granted by this Agreement and that the risk of loss, liability, obligation, damages, and claims associated with the Snow Storage License shall be borne by the Licensees. This Agreement does not confer upon the Licensees any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. In addition, it is the intent of this Agreement to be consistent with the terms of the Development Agreement to provide for snow storage for Licensees, as so bargained for in the Development Agreement and in this Agreement.

11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of their respective Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority.

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 6 of 12 12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below, in the event that a Party institutes an action or proceeding for a declaration of rights of the Parties under this Agreement, for injunctive relief, for an alleged breach or default of this Agreement, or any other action arising out of this Agreement, or the transactions contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs and attorney’s fees.

13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed under the laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the State District Court in and for the County of Eagle, Colorado. Each Party shall also have the right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe, the applicable Parties agree to submit any disputes under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding resolution in accordance with the Colorado Uniform Arbitration Act.

14.0 RECORDING. This Agreement may be recorded by any Party in the Records.

15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership exists between Traer Creek, EMD and the Town, and nothing contained in this Agreement shall be construed as making Traer Creek, EMD and/or the Town joint venturers or partners.

16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be construed to create any third party beneficiaries or confer any rights on any person or entity not named as a party hereto.

[signature pages follow]

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 7 of 12 IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this Agreement as of the Effective Date.

TOWN:

Town of Avon, a home rule municipal corporation of the State of Colorado

By: ______Attest:______Rich Carroll, Mayor Patty McKenny, Town Clerk Town of Avon

Approved as to Form:

Eric Heil, Esq., Town Attorney

STATE OF COLORADO ) ) ss. COUNTY OF ______)

The foregoing instrument was acknowledged before me this ______day of ______, 20___, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town of Avon, a home rule municipal corporation of the State of Colorado.

(SEAL) Notary Public Commission Expires:

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 8 of 12 LICENSEES:

TRAER CREEK:

Traer Creek-RP LLC, a Colorado limited liability company By: Traer Creek LLC, a Colorado limited liability company, its Manager

By: ______Marcus Lindholm, Manager

STATE OF COLORADO ) ) ss. COUNTY OF ______)

The foregoing instrument was acknowledged before me this ______day of ______, 20___, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company.

(SEAL) Notary Public Commission Expires:

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 9 of 12 LICENSEES (continued):

EMD:

EMD-CM LLC, a Colorado limited liability company By: EMD Limited Liability Company, a Colorado limited liability company, its Manager By: Lava Corporation, a Colorado corporation, its Manager

By: ______Michael Lindholm, President

STATE OF COLORADO ) ) ss. COUNTY OF ______)

The foregoing instrument was acknowledged before me this _____ day of ______, 20___, personally by Michael Lindholm as President of Lava Corporation, a Colorado corporation.

(SEAL) Notary Public Commission Expires:

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 10 of 12 Traer EMD Revisions_20130225

EXHIBIT A Legal Description of the Property

Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1, Eagle County, Colorado.

Revocable License Agreement for Snow Storage Feb. 25, 2013 Page 1 of 12 EXHIBIT B Snow Storage Area

Revocable License Agreement for Snow Storage Feb. 27, 2013 Page 2 of 12 Village (at Avon) Process Flows Financial and Land Based

Asphalt Overlay Buffalo Ridge

Water Related Bond Documents Town of Avon

Village Metro District (VMD) Traer Creek Metro District (TCMD) Master Developer/Owner

Public Improvement Company (PIC) Agreements/Documents Eagle Vail Metro District Traer Creek Project Revenue Flow Chart Existing Agreements

MIXED-USE & COMMERCIAL PICS – The Village Metro District Town of Avon (TOA) CREDIT PIF (VMD) • 4% Sales Tax on • Retail Sales Fee (4%) Tap Fees • Property Tax 4% Credit PIF • Lodging Fee (4%) • Specific Ownership Tax • Town Property Tax • Real Estate Transfer Fee (2%)

20% 80% EAGLE-VAIL Metro District (EVMD) Traer Creek Metro District (TCMD) REVENUE BOND FUND

Municipal Services Payment TCMD BOND REQUIREMENTS Town of Avon • O&M Costs: $900, 000 from Bond Fund Sales Tax Indemnity Payments + Developer O&M Advances • Capital Costs: Developer Capital LOC, Trustee & Advances & Additional Bonds Custodian Fees • Capital Advances O&M Advances Interest (variable) & • Land Owner Principal Payments (Master Developer) Reimbursements of Debt Service Reserve Advances ($1,894,000 required) BUFFALO RIDGE

Pledged Revenue Reserve Account

3/15/2013 Created by Town of Avon 2 Village (at Avon) 1998 Agreements

Land Owner Town of Avon (Master Developer) 1998 Development Agreement requires affordable housing (i.e.: Buffalo Ridge) This is the connection to the Sign Documents Buffalo Ridge slide TOA Tax Credit Obligation 1. 1998 Development Agreement (Annexation) (from Development Agreement) 2. 1998 PUD Guide TOA sponsors Buffalo Ridge Housing Authority Concurrently with Development Agreement and PUD Guide being signed: TOA to receive 68 units once paid Service Plans Assessed and Collected Required to create 1. TCMD Resolution 98-50 by PIC’s 1. Metro Districts (by Service Plan) 2. VMD Resolution 98-51 Use Fee (could impose) 2. Public Improvement Companies (PIC’s) (by Declarations) Accommodations Fee Retail Sales Fee Real Estate Transfer Fee TCMD Infrastructure Funded by 2002 and 2004 Bonds This is the connection to this slide

Imposed, collected, and Village Metro District Traer Creek Metro District remitted to TCMD (Levy Tax) (Issues Bonds) Fee Assignment Servicing Agreement 8/8/02 (two separate agreements, same title) 1. TOA provides a tax credit SO LONG AS PIC’s impose and collect a fee 1. Property tax imposition and tax remittance to for the payment any District's obligations. TCMD and VMD (Commercial PIC and Mixed Use PIC – no overlap in areas) 2. TOA still collects tax if PIC does not collect. This is the connection to the 2012 Financial Agreements Mixed Use PIC Commercial PIC Facilities Funding, Construction and Operations Agreement 7/31/01 (Between VMD and TCMD) TCMD BOND FUND CUSTODIAN Indenture of Trust provides flow of funds Assess and Collect Fees Use Fee (could impose) Accommodations Fee Requires remittance of net property taxes Retail Sales Fee All but $900K to Debt Service collected by VMD to TCMD Real Estate Transfer Fee

3/15/2013 Created by Town of Avon Balance back to TCMD 3 2012 Financial Agreements

CARADA – Article 6 Financing Plan LIMITED PARTIES

Avon URA Master Developer Town of Avon TCMD EMD (Land Owner) Commercial PIC Mixed Use PIC

Provides Tax Credit

Assessed and Collected by PIC’s $96M in Principal Owed Use Fee (could impose) (see below for itemized list) 1. TOA provides a tax credit SO LONG AS there is an Accommodations Fee $3M reserve required – outstanding obligation for repayment of a maximum of Retail Sales Fee 2002 and 2004 Bonds = $51M This is the connection to the $96 million principal of qualified District debt. Real Estate Transfer Fee (Commercial PIC and Mixed Use PIC – no overlap in areas) Refinanced at variable rate ($35M + $16M) 2012 Village at Avon 2. TOA still collects tax if PIC does not collect. Parties Flow of Funds Chart This is the connection to the Water Storage Tank = New financing $9M Village (at Avon)1998 Agreements Imposed, collected, and $3.5M at 1.5% (simple interest) remitted to TCMD $8.5M at 8% (simple interest) Past Developer Advances = $12M 1. Developer Advances repayment begins once refinanced bonds are paid off Supplemental Bonds = $24M 1. CARADA 6.9 (d) Right of Review

Must issue by 2040 or lose right to TOA’s tax credit

Once principal is issued and repaid, To the extent issued on or before January 1, 2040, the Net TOA has satisfied the tax credit obligation Proceeds of Supplemental Bonds (including Master Developer contributions to the Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF Revenues). CARADA 6.2 (b) (iv) 3/15/2013 Created by Town of Avon 4 2012 Village (at Avon) Parties Flow of Funds Chart

MIXED-USE and COMMERCIAL PICS VMD MIXED-USE and COMMERCIAL PICS Tap Fees 0.75% ADD-ON RSF 1. Property Tax CREDIT PIF 1. 1999 1st Amended Water Service 1. Retail Sales Fee (RSF) A. State Statute 1. Retail Sales Fee (RSF) (4%) and Tap Fee Allocation Agreement 2. Village PIC B. Up to 50 mils 2. Use Fee (If TOA imposes a Use Tax) 2. 2001 Assignment and Assumption A. CARADA 2. VMD Service Plan 3. Accommodations Fee (4%) of Water Service Agreement and B. 2nd Amend. Comm. PIF Covenants A. Original 1998 4. Real Estate Transfer Fee (2%) Related Water Rights C. Amend. to Mixed Use PIF Covenants B. Amend. to VMD Service D. Add-On Retail Sales Fee Collection Services Agreement Plan/Approving Resolution by TOA 3. Specific Ownership Tax 1. CARADA 2. Declarations A. State Statute 3. Fee Assignment Servicing Agreement 8/8/02 $120,000/yrs.1-5 4. Bond Documents $75,000 thereafter 1. CARADA 6.6 (a), (b) 80% Asphalt Overlay Account 1. Facilities Funding, Construction 1. Asphalt Overlay Escrow Agreement and Operations Agreement 7/31/01 2. Resolution No. 13-XX Approving Agreement (TBD) 3. CARADA 20% This is the connection to the Asphalt Over Agreement Town of Avon 1. 4% Sales Tax on 0.75% add UERWA on RSF and 4% existing RSF $500,000 for TCMD BOND FUND CUSTODIAN A. CARADA Storage Tank Project Bonds Bond Docs – not completed yet EVMD 2. Town Property Tax Bond Docs – not completed yet Then once A. State Statute $120,000 is met 1. Pledge Agreement (Water Storage Tank Project) $40,000 yrs. 1-5 1. CARADA 6.6 (a), (b) $75,000 thereafter 1. Bond Docs 2. CARADA 6.6 (a), (b) TCMD Bond Reissue Town of Avon CARADA 6.9 (a) TCMD 1. O&M Costs: $450,000 per year (net of deposits into

Annual Debt Service Obligation UERWA Bond Fund & Asphalt Overlay Account) A. CARADA Town Operation and Maintenance CARADA 6.9 (b) (i) $80,000 yrs. 1-5 2. Capital Costs: Developer Advances & Supplemental Bonds 1. CARADA 6.6(a), (b) Obligations B. CARADA 1. CARADA 4.1 and 4.2 (c) Other Allowed O&M Expenses CARADA 6.9 (b) (ii)

Flow of Funds of Flow Master Developer TCMD Bond Reissue Capital Advances CARADA 6.9 (b) (iii) (Land Owner)

Deferred BNP LOC Fees and Deferred Amortization CARADA 6.9 (b) (iii) Other Obligations of TCMD Sweep Prepayment of TCMD Bond Reissue Supplemental Bonds, Cure Payments, Past Direct Payment of Capital Project Costs CARADA 6.9 (b) (v) (A) Developer Advances and Avon Receivable CARADA 6.9 (b)(v)(C) CARADA 6.9 (b) (v) (B)

3/15/2013 Created by Town of Avon 5 Asphalt Overlay Agreement

MIXED-USE & COMMERCIAL PICS 0.75% ADD-ON PIF 1. Retail Sales Fee Master Developer 2. Village PIC TCMD A. CARADA (Land Owner) B. 2nd Amend. Comm. PIF Covenants C. Amend. to Mixed Use PIF Covenants D. Add-On Retail Sales Fee Collection Services Agreement $80,000 yrs. 1-5 1. CARADA 6.6 (a), (b) $40,000 yrs. 1-5 $75,000 thereafter until Agreement Termination $120,000/yrs.1-5 1. Bond Docs $75,000 thereafter until 2. CARADA 6.6 (a), (b) Agreement Termination ASPHALT OVERLAY ACCOUNT 1. CARADA 6.6 (a), (b) (In Town’s Name) 1. Asphalt Overlay Escrow Agreement 2. Resolution No. 13-XX Approving Agreement (TBD) 3. CARADA Then once $120,000 is met CARADA 6.6 (a), (b) Upon TOA and TCMD mutual approval – Town of Avon monies are distributed to be used for roads in Village

Town of Avon

Agreement Terminates Upon - CARADA 6.6 (b) 1. $20 million in all taxable transactions OR 2. 80,000 sq. ft. of new additional commercial built

3/15/2013 Created by Town of Avon 6 Add-On Retail Sales Fee (RSF)

CARADA Declarations Add-On RSF Collection Services Agreement CD – Commercial Declaration MUD – Mixed-Use Declaration

1. 5.2(b) Obligation to impose Add-On RSF 1. Commercial PIC Covenants 1. SDMS = agent to collect and remit 2. 5.3(c) Developer cooperation to establish Add-On RSF 2. Mixed Use PIC Covenant a) Commercial PIC 3. 5.5 Obligation Traer Creek-RP to establish Add-On RSF 3. 7.4 CD/9.4 MUD Retail Sales Fee defined as b) Mixed Use PIC 4. Def. 6: Add-On RSF is the rate set forth in 6.4(b) a) Credit RSF c) Town of Avon 5. 6.4(b) 0.75% b) Add-On RSF 2. Collect from Village Vendors and remit to TOA a) Increase in TOA’s sales tax rate reduces the 0.75% 4. 7.5(c) CD/9.5(c) MUD Add-On RSF Rate 3. Connects to Asphalt Overlay Agreement Municipal Payment defined as rate set forth in Section 6.4(b) b) Except for specific project of the Development Agreement. 1. Not to exceed 30 years and for a 5. 7.11 CD/9.11 MUD Town has right to specific Capital Project enforce payment of Add-On RSF directly against property owners and leasehold owners in the Village (at Avon). 6. 13.3 CD/16.3 PICs cannot amend Declarations or Add-On RSF Collection Services Agreement without Town consent in any manner which would impair ability of PIC to collect and remit the portion of Add-On RSF Revenues which comprise Municipal Payments.

3/15/2013 Created by Town of Avon 7 2013 TCMD and VMD Service Plan

Town of Avon Governing Jurisdiction (Approves Service Plan and Amendments)

Traer Creek Metro District UERWA Control District Service Area District

Sign Document Construction and Finance IGA Agreement

Service Plan Elements

1. TOA – governing jurisdiction that approves Service Plan and Amendments 2. Description of Services – Able to do anything a Title 32 District is allowed A. “Applicable Town Standards and Specifications” shall mean those Town standards and specifications which are applicable and are not in conflict with standards and/or specifications set forth in the Development Plan. B. Construction and Finance IGA Agreement between TCMD and UERWA 3. Estimated Cost Facilities A. Prioritized Capital Projects 4. O&M Costs 5. IGA – This is the connection to the 2013 TCMD and VMD Service Plan IGA’s 6. Financial Plan A. Debt Limit $158M 7. PIF/Tax Credit Obligation not to exceed $96M A. New issuance of bonds submitted to TOA 20 days prior for administrative review

3/15/2013 Created by Town of Avon 8 2013 TCMD and VMD Service Plan – IGA’s

1. With TOA Traer Creek Metro District Village Metro District A. Subdivision Improvements Agreement 11/13/01 B. Annexation and Development Agreement 10/13/98 (TCMD) (VMD) C. Annexation, Development and Subdivision Improvement Agreement 10/23/01 D. Subdivision Improvements Agreement 06/08/04 E. Nottingham-Puder Ditch Repair, Maintenance and Management Agreement 06/27/06

1. 2000-2001 Operation and Funding Agreement 12/13/00 1. With TOA and EMD LLC 2. 2002 Operation and Funding Agreement 01/01/02 A. Agreement for Payment Concerning the Nottingham and Puder Ditch 11/24/09 3. 2003 Operation and Funding Agreement 01/01/03 4. 2004 Operation and Funding Agreement 01/01/04 1. With UERWA and TOA 5. 2006 Operation and Funding Agreement 01/01/06 A. Water Service Agreement 05/15/97 6. 2007 Operation and Funding Agreement 11/30/06 B. Letter Agreement 03/19/08 7. 2008 Operation and Funding Agreement 12/14/07 8. Facilities Funding, Construction and Operations Agreement 07/31/01 1. With UERWA 9. Amended and Restated Reimbursement Agreement – BNP 06/01/04 A. Agreement for Payment of Costs of Water Storage Tank Design 03/02/12 10. Amended and Restated Custodial Agreement 06/01/04 1. With EVMD, TOA, UERWA A. Agreement 11/04/02 B. Tap Fee Allocation Agreement 05/15/97

1. With Eagle River Water and Sanitation District (ERW&SD) A. Incremental Sewer Tap Fee Agreement 11/19/98 B. Water Main Bill of Sale 03/21/07 C. Sewer Main Bill of Sale 03/21/07 D. Letter Agreement 12/06/07 E. Sewer Main Bill of Sale 12/20/07

1. With United States of America A. U.S. Department of Agriculture Forest Service Public Road Easement 05/03/02

1. With Colorado River Water Conservation District A. Water Supply Contract 02/03/03

1. With Federal Highway Administration A. Letter Agreement 05/27/03

1. With TOA, BNP Paribas, Traer Creek LLC, Traer Creek Plaza LLC, EMD LLC, Tracer Creek- HD LLC, and Traer Creek-WMT LLC 3/15/2013 Created by Town of Avon A. Settlement Term Sheet 10/07/11 9 TCMD Infrastructure Funded by 2002 and 2004 Bonds

2002 and 2004 Bonds This is the connection the to Village (at Avon) 1998 Agreements

2002 Bonds 2004 Bonds

TCMD issues bonds TCMD issues bonds

Bonds for $35M to fund Capital Improvements: Bonds for $16M to fund Capital Improvements: Phase 1 Street Network (Filing 1) Tract E Park Tract E Park Storm, Sewer and Water Flagpole Nottingham Dam Swift Gulch Rd Lot 2 Garage Tract N Grading Nottingham-Puder Ditch Buffalo Ridge 1 Buffalo Ridge 2 Lot 1 Sewer Main Facilities Funding, Construction and Traer Creek Run Operations Agreement 7/31/01 Water Tanks (Between VMD and TCMD) Wetlands

3/15/2013 Created by Town of Avon 10 2013 Bonds Source and Use

TCMD Reissues Bonds 1. CARADA 6.2 (b) (i) 2. TOA has right to review and approve bond documents prior to reissue CARADA 6.9 (a)

Gross Bonds Proceeds 1. Approximate $46M

Redemption of 2002 ($____) and $3M Require Reserve Bond Issuance Cost 2004 ($____) Bonds

UERWA Issues Water Tank Bonds - $9M Gross Proceeds 1. TOA has right to review and approve bond documents prior to reissue CARADA 6.9(a)

Construction Escrow Bond Issuance Cost

Paid to UERWA

3/15/2013 Created by Town of Avon 11 Buffalo Ridge Affordable Housing Corporation

1998 Development Agreement requires affordable housing *

Buffalo Ridge I Affordable Housing Corporation Buffalo Ridge II, LLLP Organized – 10/31/2001 Limited Liability Limited Partnership organized under 1. TOA has one invitational seat on Board Colorado Laws 12/28/01 (no legal obligation)

Build and operate an apartment project under Build and operate an apartment project under Section 221(d)(4) of the national Housing Act. Section 221(d)(4) of the national Housing Act. Includes 176 units and operates as Buffalo Ridge Apartments II Includes 68 units and operates as Buffalo Ridge Apartments I

05/01/02 - $15,650,000 Multifamily Housing Project Revenue Amended and Restated Articles of Incorporation – Bonds were issued to provide funds to finance acquiring, All property of Buffalo Ridge is owned for the benefit of TOA and constructing, equipping and furnishing a multifamily residential upon dissolution of all property remaining after the payment of rental housing facility comprised of 176 units to be owned by liabilities shall be transferred to TOA. Buffalo Ridge II, LLLP.

05/01/02 - $10,315,000 Multifamily Housing Project Revenue Bonds were issued to provide funds to finance acquiring, constructing, equipping and furnishing a multifamily residential rental housing facility comprised of 68 units to be owned by the Corporation. *1. PUD Guide Section I.15 - 500 units required A. I.15(c) restrictions B. Priority of residency is Buffalo Ridge Apartments inconsistent with the Bond 1. 244 Total Units Constructed Revenue Docs – to be addressed 2. 256 Units Remaining in the future 3. 23 Additional Units if Commercial reaches 825K

3/15/2013 Created by Town of Avon 12 Village (at Avon) Water Service Agreements Current Parties: TOA, TCMD, EVMD, UERWA

1. A. 1997 Water Service Agreement 1. EVMD sponsored property owned by EMD LLC into UERWA 2. Paragraphs 1 and 2(a) (UERWA will provide water service) 3. Paragraph 1(b) – EMD LLC (now TCMD) shall have equal treatment 4. EMD LLC, UERWA, EVMD – parties in agreement to provide service

B. 1999 First Amended Water Service and Tap Fee Allocation Agreement 1. Paragraph 2B – Avon accepts EVMD responsibilities (except revenue sharing of tap fees) 2. Sponsorship transferred to TOA and EVMD (EVMD retained revenue equal to 20% tap fees) 3. EMD LLC, EVMD, UERWA, TOA as parties

C. 2001 Assignment and Assumption of Water Service Agreement and Related Water Rights 1. 2002 agreement Recitals K and L – EMD LLC, TOA, TCMD, UERWA as parties 2. Assigns obligations from EMD LLC to TCMD

2. A. Water Rights - Traer Creek Water Storage Tank Agreement 1. 180.6 AC/FT of consumptive use conveyed to UERWA on day of settlement a. Paragraph 7 – Raw water irrigation 74.3 AC-FT; Domestic Water 106.3 AC-FT 2. Raw Water O&M Agreement – TBD

3. A. Storage Tank 1. Traer Creek Water Storage Tank Agreement a. UERWA has obligation to build 2M GAL tank b. UERWA obligation to provide water service to Village c. TCMD obligation to provide funds to build tank d. Tank site conveyed to UERWA via Special Warranty Deed; Paragraph 11

4. A. Water Tap Fees 1. 80% to TCMD, 20% to EVMD 2. 1999 First Amended Water Service and Tap Fee Allocation Agreement - Paragraph 3B 3. 2001 Assignment and Assumption of Water Service Agreement and Related Water Rights a. Assigns 80% tap fee from EMD LLC to TCMD

5. A. Infrastructure (everything outside Water Tank) 1. 1997 Water Service Agreement – Paragraph 5 and 6 2. TCMD constructs distribution system 3. Dedicated to UERWA after completion 4. UERWA maintains 3/15/2013 Created by Town of Avon 13 Village (at Avon) Timeline of Water Service Agreements Current Parties: TOA, TCMD, EVMD, UERWA 1997 5/15/97 Water Service Agreement

5/15/97 Water Tap Allocation Agreement

1/1/98 Amended and Restated Master Service Contract

11/19/98 Incremental Sewer Tap Fee Agreement

6/22/99 First Amended to Water Service and Tap Fee Allocation Agreement *Amends sections of both 1997 agreements

11/29/01 Assignment and Assumption of Water Service Agreement and Related Water Rights *EMD assigns obligations to TCMD *EMD assigns obligations, rights, duties to Traer Creek, LLC *Traer Creek, LLC assigns obligations, rights duties to TCMD

12/19/01 TCMD Water Service Resolution

12/19/01 TCMD Sewer Service Resolution

11/4/02 Agreement *Dedicated required increment additional water rights *Parties: EVMD, TOA, UERWA, TCMD

TBD Traer Creek Water Storage Tank Agreement *Supersedes portions of the 1997 Water Service Agreement *Village Water Decree

TBD Village (at Avon) Raw Water System Operations and Maintenance Agreement

TBD Nottingham Dam Easement 2013 3/15/2013 Created by Town of Avon 14 Village (at Avon) Amended PUD Guide – 11/21/12

Town of Avon Land Owner (Developer)

Signed Documents 1. 1998 Development Agreement (Annexation) 2. 1998 PUD Guide

AMC Exemptions Special Review Use (SRU) Administrative Subdivision Review *Lighting Standards *PZC Approves w/ Public Hearing *Approved by Director *Landscaping *Only Planning Areas A, B, C, D, E, F and J *Sign Code Design Review Board (DRB) *Approval certified by DRB President *Hotel Design Standards Required Street Connections Amended PUD Guide – signed 11/21/12 *One member from TOA PZC *Council Review if altered 1. 825K Total permitted Commercial density *Validated by Traffic Study 2. 2,400 Dwelling Units (500 affordable) *244 constructed(Buffalo Ridge) PUD Amendments *Administrative vs. formal process

Interim Uses Park Provisions *Acknowledges continuance of uses that pre-existed 2012 *Planning Areas P-1, P-2, P-3 & Pocket Parks (E.g. Rodeo, recycling facility, agricultural, etc.) *Additional 5.8 Acres required in addition to above *Minimum Park Standards

Parking Regulations PUD Master Plan Map Wildlife Mitigation *Supersede TOA Regulations *Planning Areas = Zone Districts *Wildlife Mitigation Fund *Shared Parking/Structure Provisions *Street Networks

3/15/2013 Created by Town of Avon 15

TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Matt Pielsticker, Planner II Date: March 20, 2013 Agenda Topic: PZC Appointment Process

Summary This Memorandum is to provide Council with an update on the upcoming Planning and Zoning Commissioner (“PZC”) term expirations and process for interviews, including solicitation and selection.

Three (3) positions on the PZC will expire on May 1, 2013. Interviews and appointments of members to the PZC will be included on Town Council’s April 23rd Agenda.

Expiring Terms (5/1/13 Term Expiration): Chris Green Architect, Ago Studios / Non-Resident Paul Anderson Engineer, Marcin Engineering / Non-Resident James Clancy Patroller, Beaver Creek & Construction Professional / Resident Continuing Terms (5/1/14 Term Expiration): Timothy Losa Architect, Zehren & Associates / Non-Resident Phil Struve Retired (Technology Management) / Resident Scott Prince Home Mortgage Consultant, Wells Fargo Bank / Resident John Minervini Retired (Currently teaching Business at CMC) / Resident Interview Process In order to solicit interested candidates, a press release was issued on Tuesday, March 19th and the vacancy notice was also listed on the Town’s website a week earlier. Additionally, the posting was recently listed on the Town’s Facebook page for additional exposure.

A deadline for application submittals is set for April 16th. Applications will be provided in the April 23rd Council packet. Interviews of the applicants will take place during the Work Session, followed by voting during the Regular Meeting. The Council typically has voted to appoint new PZC members through open voting. Ballets are provided by the Town Clerk, and after voting takes place, the Town Clerk states for the record who each Council member voted for, with a final tabulation announced. The candidates with the top number of votes become PZC members.

Municipal Code Requirements The Avon Municipal Code (‘AMC”) requires that at least five (5) PZC members shall be registered electors of the Town at the time of their appointment. The AMC also recommends that a minimum of two (2) to three (3) industry professionals hold positions at all times, and that two (2) of these professionals be architects, landscape architects or designers.

After consideration has been given first to industry professionals, the Avon Municipal Code states that Council should then consider the following criteria in descending order: 1. Registered electors of the Town shall be preferred over persons who are not registered electors. 2. Persons having special skills and experience of particular value to the Commission shall be.

PZC Appointments March 26, 2013 Town Council Work Session Page 1 of 1

TOWN COUNCIL REPORT

To: Honorable Mayor Rich Carroll and Avon Town Council From: Matt Pielsticker, Planner II Date: March 20, 2013 Agenda Topic: Hahnewald Barn – Historic Status Report

Background On February 5, 2013, representatives from the Eagle River Water and Sanitation District (“ERWSD”) met with the Town to hold a Water Summit to identify matters of mutual interest. Several items were identified for resolution over the next year, including the request of ERWSD to remove the Hahnewald Barn (“the Barn”) from their property. ERWSD wants to remove or relocate the Barn by no later than October, 2013 in order to better utilize the property. The Barn is located at the Wastewater Treatment Plant, and has been used for storage purposes since ERWSD acquired the property in 1985. The Town agreed to provide ERWSD with a Historic Status Report on the Barn in April, 2013.

Historic Landmark Designation The Barn is not listed as a Historic Landmark at the local, state, or national level. The Town does not have any historic preservation regulations or criteria that would limit the ERWSD from applying for a Town demolition or removal approval for the structure.

The Town had a Historic Preservation Ordinance in effect from 2007-2010 and appointed members to the Town of Avon Historic Preservation Committee (“Committee”). During that period, twelve sites or structures in Avon were identified as having historic interest. The Nottingham Waterwheel was designated as a Historic Landmark; no other properties received a designation. In 2010, the Hahnewald Barn Historic Background and Field Analysis (Field Analysis) was completed by a historic preservation consultant, who was retained by the Town. The Field Analysis found historic significance despite changes that had taken place over the years, i.e. new roof material and design. In summary, the Barn is at least 100 years old and is one of the only remnants of Avon’s agricultural heritage dating back to the early 20th century. The complete Field Analysis is attached to this report

When the Avon Development Code (“ADC”) was codified in November, 2010, the then existing procedures related to the establishment of a Historic Preservation and the procedures for nominating properties or structures for listing were inadvertently removed from the Municipal Code. This was brought to the attention of the Town Council by the Committee, and Council ultimately directed staff to start the process to re-establish these procedures and related regulations. With higher work priorities assigned to planning staff since then, this work has not been completed. At this time, therefore, the ADC does not include historic sites or structures designation procedures. The Committee has not been meeting, absent the supporting regulatory procedures; but is still enabled under the establishing resolution which set-up the Historic Preservation Committee.

Hahnewald Barn March 26, 2013 Town Council Work Session Page 1 of 2

Town of Avon Process for Barn Removal or Demolition If ERWSD desires to demolish or remove the Barn from the property, a demolition permit must first be obtained from the Avon Building Department. The permit process requires stormwater control measures and dust suppression, and a clear reclamation plan or reconstruction plan once the structure is removed. The Town does not have other criteria, including historic preservation, to apply in reviewing the application for approval. A demolition permit can typically be obtained within fourteen (14) days from the time of application submittal.

One structure, the Red House, owned by Vail Resorts, was listed as one of the twelve site or structures. It was approved for demolition last year.

Council Action The Council’s adopted 2013 Work Plan, which implements the 2013-14 Strategic Plan includes notification to the ERWSD on the historic and relocation status of the Hahnewald Barn by April 1st. Council is requested to provide direction on this determination prior to reporting findings to the ERSWD.

Attachment Hahnewald Barn Historic Background and Field Analysis (December 22, 2010)

Hahnewald Barn March 26, 2013 Town Council Work Session Page 2 of 2

Historical Background and Field Analysis

HAHNEWALD BARN Eagle River Water & Sanitation District 950 W. Beaver Creek Blvd.

Avon, Colorado

Completed by Tatanka Historical Associates, Inc. 612 S. College Ave., Suite 21 Fort Collins, CO 80524 [email protected] 970.221.1095

22 December 2010

Tatanka Historical Associates Inc. Bringing the Past to Life

Tatanka Historical Associates, Inc.

612 S. College Ave., P.O. Box 1909 Fort Collins, Colorado 80524 [email protected] 970.221.1095

22 December 2010

Matt Pielsticker Town of Avon Planning Department P.O. Box 975 Avon, CO 81620

Subject: Historical Background & Analysis Hahnewald Barn

Dear Matt,

In response to a request from Avon’s Historic Preservation Committee, Tatanka Historical Associates Inc. has completed its historical research and field analysis of the Hahnewald Barn in Avon. Please accept the following report, which presents the results of this study.

Sincerely,

Ron Sladek President

Tatanka Historical Associates Inc. Bringing the Past to Life

1

Hahnewald Barn Eagle River Water & Sanitation District 950 W. Beaver Creek Blvd. Avon, Colorado

Location, Setting, Use & Ownership

The Hahnewald Barn is located on the north bank of the Eagle River, within a complex of buildings owned and operated by the Eagle River Water & Sanitation District. It is reached by way of an east-west access road known as Millie’s Lane that extends toward the east from W. Beaver Creek Blvd. and ends at the fenced, restricted access Water & Sanitation District property.

The barn is located close to the river, in the southwest corner of the complex. It is surrounded by the Water & Sanitation District yard and buildings to the north and east; the Eagle River to the south; and a residential complex to the west. The building is currently used for storage. The yard area to the south of the barn is filled with piles of sand and gravel.

Despite several requests, the Water & Sanitation District denied access to the barn. Consequently, the description and analysis found in this report had to be completed by viewing the building from Nottingham Park to the north and from across the Eagle River to the south. Despite these limitations, a reasonably adequate amount of information was obtained about the building. Future up- close inspection of the barn is likely to reveal additional information about its construction.

Description of the Barn

The Hahnewald Barn is a large wood frame building with a rectangular footprint. Measurements could not be obtained. It rests upon a raised concrete foundation that rises at least five feet above grade. The barn faces toward the west, although it appears to have a lower level entry on the north that is currently in use. The size and configuration of the barn suggests that it consists of either two or three levels on the interior. The lower level(s) would have historically housed livestock and farm equipment, and the upper level would have been used as a hayloft. On the exterior, the building’s walls are constructed of old, if not original, board and batten siding.

The west elevation of the barn contains an entry into the lower level of the building. This entrance pierces the concrete foundation, and holds a pair of horizontal wood-plank doors with wood surrounds. A large handicap access

Tatanka Historical Associates Inc. Bringing the Past to Life

2 symbol is painted on one of these doors. The concrete foundation along this elevation is angled along the top. Flanking the entry are two small windows, also set into the concrete foundation. One of these is boarded closed, and the other (near the southwest corner of the barn) is infilled with boards and a modern electric meter. Conduit rises upward from this meter, piercing the wall at a point just below the eave. The upper area of the west elevation holds a large hayloft door constructed of vertical wood planks. Centered above this is the projecting end of the hay rail. Two small windows are present in the upper wall. One of these holds a four-light window, and the other is boarded closed.

The north and east elevations could not be documented because views were blocked by vegetation and buildings.

View of the Barn from the Southwest. West and South Elevations.

The south elevation is dominated by its raised concrete foundation, above which is the building’s board and batten wall. There are no entries on this elevation. A series of windows that are boarded closed are located along the length of the foundation wall. The wood wall above holds what appear to be two small windows that may also be boarded closed. Two broken lines of horizontal boards are found on the wall. One set is located just below the halfway point, and the other is just below the eaves. These may mark the locations of interior floors in the building, suggesting that there could be three levels rather than two.

The barn’s roof is gabled with a clipped end on the west, and hipped on the east. It is finished with modern standing seam metal paneling. Standing along the ridgeline are three box-shaped ventilators. These are constructed of wood, with

Tatanka Historical Associates Inc. Bringing the Past to Life

3 board and batten siding on the east and west, and louvers on the north and south. They each have a gabled standing seam metal roof. Alterations to the Barn

While the historic Barn appears to be in good condition, it has been altered with one evident non-historic change. This involved replacement of what was probably a wood shingle roof with the standing seam metal roof that is found there today. This appears to have been completed during the past two decades. The current roof is bright and highly reflective. While functional, it detracts from the historic appearance of the building. In addition, several of the windows have been boarded closed. While this is an alteration, it does not appear to have damaged the building and can be reversed. Since it was not possible to inspect the building up close, or to see the north and east elevations, other changes that might have taken place there are currently unknown.

View of the Barn from the Southeast. South Elevation.

Historical Background

The history of the Hahnewald Barn was assembled through a combination of archival research and interviews. A bibliography of the sources consulted is found at the end of this document.

Constructed sometime between 1900 and 1910, the barn was originally owned by Albert and Frances Hahnewald. The couple arrived in the Avon area around that time and established a ranch along the north bank of the Eagle River. In the early 1980s, the log residence associated with the farmstead was moved a short

Tatanka Historical Associates Inc. Bringing the Past to Life

4 distance to the north. This remains standing today along the southeast shore of Nottingham Lake. The fate of other farmstead buildings is unknown. Albert Hahnewald was born in Germany in 1867 and immigrated to the United States in 1881. His wife Frances was from Fredricksburg, Texas, a German immigrant town in the hill country where the couple appears to have met and married. They had three children and by the mid-1890s were living in Leadville, where Albert worked as a saloonkeeper. He had several brothers in the area who were engaged in mining and ranching. The family also owned the Colorado Bakery, which in addition to baked goods sold groceries, produce and confections.

Albert and Frances left Leadville sometime between 1900 and 1910 and resettled down the Eagle River in the Avon area, where they acquired 160 acres in the vicinity of today’s Nottingham Lake. It appears that Albert’s father may have purchased the land and left it to his sons following his death. There the Hahnewalds constructed a log home and a large barn that formed the nucleus of a farmstead where they spent the following years raising livestock and growing feed crops such as grains and hay.

The ranch operated under the corporate name Hahnewald Land & Livestock Co., and ran cattle from Red Canyon on the west to Gore Creek on the east. The Hahnewalds soon acquired additional acreage closer to Edwards, and it appears that by 1917 they had moved onto that property. In 1920 alone, the ranch operation produced more than 700 tons of hay. The following year, Albert participated in the formation of the Avon Stockgrowers’ Association. With twenty- six initial members, the organization elected Hahnewald secretary-treasurer. Albert died sometime around 1924.

Paul Frederick Kroelling acquired the Avon property from the Hahnewalds in 1915 and moved his family there. He was born in Germany in 1864 and immigrated to the United States in 1889, where he settled in Leadville. In 1892, Paul married Anna Winters, who was also a native of Germany. They had two children, one of whom (Frederick) lived to adulthood. By the mid-1890s, the Kroellings were still residing in Leadville, where Paul owned a butcher shop and was a member of the volunteer fire department. They remained in Leadville until 1915, when they moved down the Eagle River to Avon.

In October 1917, the Kroellings were busy harvesting ninety acres that they had planted with crops. This included twelve acres of potatoes producing two hundred sacks to an acre, thirty acres of oats, and the remainder in hay to feed their livestock. Much of the hay was likely stored in the large hayloft in their barn. The cattle were pastured on the property as well as along the Piney Divide. In 1921, Paul Kroelling was elected vice-president of the newly formed Avon Stockgrowers’ Association. During the 1920s, the Kroellings added head lettuce to the crops grown on their ranch. Paul died in 1938 on his Avon ranch and was buried in Leadville. Anna moved back to Leadville following her husband’s

Tatanka Historical Associates Inc. Bringing the Past to Life

5 death. She passed on there in 1950. Their son Fred became a long-time resident of Carbondale. Around 1949, the former Hahnewald-Kroelling ranch was purchased by Allan Nottingham, a son of Harry A. Nottingham. He moved into the home there with his wife and children, and the family remained on the ranch until around 1972. During that time, Allan continued to operate the ranch. He eventually donated the land for Avon’s water treatment plant. Allan served on Avon’s first town council and was mayor for twelve years.

In 1985, the historic ranchstead was dismantled, except for the barn, to make room for the Eagle River Water & Sanitation District’s water treatment plant. The large historic barn was left in place and converted into a storage facility. It remained standing for the next twenty-five years, and at around one hundred years old is still in use today for the same purpose.

Conclusions

Based upon the findings of this project, the following conclusions are made regarding the building:

 The Hahnewald Barn is an important early 20th century remnant of the Avon community and its agricultural heritage. It was an essential part of the farmstead established between 1900 and 1910 by Albert and Frances Hahnewald on the north side of the Eagle River. From 1915 to 1938, the ranch was owned by, and served as the home of, Paul and Anna Kroelling. Both of these pioneer families lived in Leadville from the late 1800s to the early 1900s, and then migrated down the Eagle River into the Avon area to establish themselves as ranchers and farmers. In doing so, they followed a pattern of settlement that was common to the years immediately following the mining era.

From around 1949 to 1972, the family of Allan Nottingham owned the farm. The Nottinghams were also prominent pioneers in the Avon area, and have been actively involved in civic affairs there through the present time. Allan was a town council member and served as Avon mayor for twelve years.

Due to the barn’s history of ownership and use, it should probably be known as the Hahnewald-Kroelling-Nottingham Barn. This lengthy name could be shortened to just the “Hahnewald Barn” in recognition of the family that originally had it constructed. However, while the varied and important contributions of the Nottingham family to the settlement and development of Avon are well known and recognized, the lengthier name for this barn would allow the community to celebrate two more of Avon’s pioneer families.

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 Although the building is presumably in relatively good condition, access to the barn was not provided during the course of this study. Consequently, the building could not be inspected to determine more about its construction, uses, alterations, and condition. Alterations that could be observed were limited to changes to the roof and windows. The bright, reflective metal roof and boarded windows appear to be non-historic alterations, and have moderately diminished the building’s architectural integrity. Because of these changes, combined with a loss of integrity to the setting, the barn is unlikely to be eligible for National or State Register designation. However, it is a good candidate for local listing.

 The Eagle River Water & Sanitation District has owned and maintained the barn since acquiring the property around 1985. It views the building as a large utility shed, and does not appear to be interested in any effort to document, landmark, or restore the barn. It would be helpful if the City could eventually convince the District to at least allow access for further inspection and documentation of this important resource, the single largest historic building that survives in Avon.

Bibliography

Carbonate Chronicle (Leadville) “The officers elected are as follows...” 22 April 1901, p. 2 “Society.” 4 September 1911, p. 6

Eagle Valley Enterprise “Brand Directory.” 18 August 1916, p. 4 “Brand Directory.” 1 March 1918, p. 4 “Albert Hahnewald was down from the ranch…” 28 January 1921, p. 5 “Stockgrowers of Avon District Form Association.” 25 March 1921, p. 4 “Obbie Hahnewald Commits Suicide.” 20 August 1926, p. 1 “Frances Hahnewald Buried in Denver.” 16 March 1950, p. 1 “Eagle County Farmers Are Still Busy.” 19 October 1917, p. 1 “Paul Hahnewald Dies,” 12 November 1937, p. 1 “Paul Kroelling one of the…” 24 February 1922, p. 5 “P. F. Kroelling Dies.” 13 July 1938 “Paul Kroelling.” 22 July 1938, p. 1 “Anna Kroelling.” 27 July 1950, p. 1

Hart, Bobby. Bob-O’s Turn in Avon, Colorado. Bloomington, IN: AuthorHouse, 2005.

Leadville Daily Chronicle

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“The Colorado Bakery.” (advertisement) 26 May 1894, p. 3 “The Exciting Adventure of Two Young Men Who Went to the Woods.” 23 December 1897, p. 4

Nottingham, Allan. Interview with Ron Sladek. Conducted on 18 December 2009.

United States Census Records. Lake County, Colorado, 1900 & 1910.

United States Census Records. Eagle County, Colorado, 1910 & 1920.

Tatanka Historical Associates Inc. Bringing the Past to Life