22.07.22 PIA Eagle River Homes, LLC Eagle County, CO 202213562
Regina O'Brien 08/12/2022
Pgs: 20 03:36:24 PM
REC: $108.00
DOC: $0.00
PUBLIC IMPROVEMENT AND DEVELOPMENT AGREEMENT
THIS PUBLIC IMPROVEMENT AND DEVELOPMENT AGREEMENT ("Agreement") is
made and entered into as of,)uki 21 2022, (the "Effective Date") by and between Eagle
River Homes, LLC, a Colorado limited liability corporation("Owner"), and the Town of Avon,
a home rule municipal corporation of the State of Colorado ("Town") (Owner and Town may be
referred to individually as "Party" and collectively as "Parties").
1. RECITALS
1.1 The Owner owns approximately 3.198 acres within the Town that is legally described as:
See Exhibit A, attached hereto and incorporated herein by this reference. (FINAL
PLAT, MCGRADY ACRES,A RESUBDIVISION OF LOTS 3 AND 6)
Street address: 86 & 95 Post Boulevard, Town of Avon, County of Eagle, State of
Colorado ("Property").
1.2 The Owner submitted an application to the Town for approval of a Major Design and
Development Application and subdivision of the Property for a twenty-four (24) unit multi-
family development project referred to as Lot 3 and Lot 6, McGrady Acres ("Application").
1.3 The Avon Planning and Zoning Commission held Public Hearings for the Application on
the December 7, 2021 and December 21, 2021, and adopted written findings of fact and a record
of decision on January 18, 2022, recommending conditional approval of the Application
1.4 The Avon Town Council held public hearings on February 8, 2022 and March 8, 2022, and
March 22, 2022, after publishing and posting notice as required by law, considered all comments,
testimony, evidence, and reports provided by the Town Staff and the Avon Planning and Zoning
Commission prior to deciding on the Application; and
1.5 The Avon Town Council approved Resolution 22-01 on March 22, 2022 for the 24 unit
development including park land dedication and community housing mitigation.
1.6 The Application includes public improvements that necessitate further review, security,
warranty, and acceptance upon satisfactory completion.
1.7 The current zoning does not allow timeshare uses, and therefore, this Development
Agreement does not include a requirement for a timeshare amenity fee.
1.8 Development of the Property in accordance with this Agreement will provide for
orderly growth in accordance with the policy and goals set forth in the Town's Comprehensive
Plan; ensure reasonable certainty, stability,and fairness in the land use planning process; stimulate
economic growth; secure the reasonable investment-backed expectations of the Owner; foster
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cooperation between the public and private sectors in the area of land use planning; and otherwise
achieve the goals and purposes of the Town.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above, the terms, conditions,
covenants and mutual promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and the
Town agree as follows with respect to the development of the Property:
2. DEFINITIONS:
The following terms shall have the meanings set forth below unless the context in which they are
used clearly indicates otherwise:
2.1 Association. The common interest community association and/or other entity formed or to
be formed for purposes of governing the rights, obligations and interests of owners of
condominiums, townhomes and other interests in the Development upon completion of
construction thereof and prior to the sale or conveyance of any individual residential units. Certain
provisions relating to the rights and obligations of the Association are provided in Section 11 of
this Agreement.
2.2 Association Governing Documents. The declaration of covenants (which are recorded in
the Eagle County Clerk and Recorder's Office and which run with the land), articles of
incorporation, bylaws, rules and regulations, and any other documents creating or governing the
Association and its members, as in existence from time to time.
2.3 Development. The project to be constructed on the Property as described in the
Development Plan.
2.4 Development Plan. The Major Design and Development Plan described and depicted in the
Application that was approved by the Town is made part of the land use approval for the
Development Plan.
2.5 Development Plan Components. The following plan set sheets contained in the
Development Plan are incorporated by reference into and made a part of this Agreement:
A. MCGRADY ACRES, ENCLAVE. DATED June 15, 2022.
2.6 Exhibits. The following Exhibit is to this agreement is incorporated by reference and made
part of this Agreement:
Exhibit A: FINAL PLAT, MCGRADY ACRES, A RESUBDIVISION OF LOTS 3
AND 6;
Exhibit B: Engineer's Estimate of the Costs to Complete the Public Improvements;
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Exhibit C: Phase Plan.
2.7 Landscape&Irrigation Plan. The approved Landscape Plan and Irrigation Plans, Sheets L-
1, L-2, IR-1, IR-2, IR-3, IR-4, IR-5, IR-6, and IR-7 of the Development Plan, is made part
of the land use approval for the Development Plan.
2.8 Municipal Code. The Avon Municipal Code, including the Avon Development Code, as
may be amended from time to time.
2.9 Phasing Plan. The schedule depicted on Exhibit C. Phase 1 includes infrastructure.
2.10 Public Improvements. Those improvements to be acquired, constructed or installed for the
benefit of the public, including, but not limited to, the Public Improvements described in
Section 5 and in the Public Property Improvement Map.
2.11 Public Property Improvement Map. The approved Public Property Improvements,
SHEETS A0-1, C1.0, C1.1, C1.2, C1.3, C2.0, C2.1, C3.0, C3.1, C4.0, C4.1, C4.2, C5.0,
C6.0, C7.0, C7.1, C7.2 of the Development Plan, is made part of the land use approval for
the Development Plan.
2.12 ROW. "ROW"shall mean that certain public right of way as described in the Development
Plan.
2.13 Term. The term of this Agreement as provided in Section 4
3. DEVELOPMENT PLAN
3.1 Development Plan. The Development Plan sets forth the approved scope of development
of the Property and has been approved by the Town through action by the Town of Avon Planning
and Zoning Commission.
3.2 Compliance with General Regulations. The approval of the Development Plan and this
Agreement shall not preclude the application of Town ordinances and regulations, or state or
federal laws and regulations, which are general in nature and are applicable to all property subject
to land use regulation by the Town, including, but not limited to, building, exterior energy offset,
fire, plumbing, electrical and mechanical codes, as all such regulations exist on the date of this
Agreement or may be enacted or amended after the date of this Agreement.
4. TERM:
The term of this Agreement shall commence on the Effective Date of this Agreement and shall
continue after construction of the building(s) for so long as the building(s) which comprises the
Development continues to exist and for five(5)years after such time the building(s)that comprises
the Development no longer exist on the Property. In the event the building(s)which comprises the
Development is destroyed by fire or other calamity and then reconstructed within five (5) years,
such reconstructed building shall be deemed the building(s) that comprises the Development and
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this Agreement shall continue in full force and effect until five (5) years after the reconstructed
building no longer exists. The Parties may terminate this Agreement earlier by mutual agreement.
5. PUBLIC IMPROVEMENTS
5.1 Public Improvements. The Owner agrees to construct and install the public improvements
set forth in this Agreement (the "Public Improvements"). Such obligations directly relate to the
Application complying with the minimum required development standards set forth in the Code
and are material to the terms, conditions, covenants and mutual promises bargained for by Town
and the Owner in this Agreement. The Owner shall install or cause to be installed all Public
Improvements that the Owner is required to construct in a good and workmanlike manner in
accordance with the applicable regulations of the Town and applicable Utilities, as defined below,
and in accordance with this Agreement.
A. Utility Improvements. The Owner agrees to install all utility improvements as
described in the Development Plan.
B. Drainage Improvements. The Owner shall install drainage improvements for
stormwater control and quality as described in the Development Plan.
C. Other Public Improvements. Those items described on the Public Improvement Map.
5.2 Security for Public Improvements. Owner shall post sufficient security to guarantee the
installation, performance, or maintenance of any required Public Improvements, and any public
facilities damaged by Developer during construction of the Development or Public Improvements.
The total amount of required security for Public Improvements for the Development shall be 125%
of the Owner's Engineer's Estimate of the Cost to Complete the Public Improvements identified
on the Public Improvement Map. Security shall be in a form acceptable to and approved by the
Town Manager and Town Attorney. As Public Improvements are completed, Developer may
apply to the Town Manager for release of all or part of the security.
5.3 Timing of Public Improvements. The Owner shall complete the Public Improvements and
the Town shall have provided written notification of acceptance of the Public Improvements by
the Town (the "Town's Notification of Acceptance") in accordance with the procedure outlined
in Sections 5.5 and 5.6 on or before the earlier of(1)date of a certificate of occupancy or temporary
certificate of occupancy, whichever is earlier, for Phase 1 the first phase construction of the
Development, or (2) within three (3) years of obtaining a grading permit, foundation permit, or
building permit,whichever is earlier, or(3)December 31,2024. The Owner shall inform the Town
of all construction plans within Town property and within the ROW at least ninety (90) days prior
to the start of construction that is to occur within Town property or the ROW. If the Owner has
not received the Town's Notification of Acceptance from the Town of all Public Improvements,
the Town may withhold the issuance of a Temporary Certificate of Occupancy.
5.4 Warranty Period. The Public Improvements constructed and installed by the Owner shall
be warranted to be free from defects in material, workmanship and quality for a period of two (2)
years after the date of the Town's Notification of Acceptance (the "Warranty Period"). In the
event of any such defect arising during the Warranty Period, the Town may require the Owner to
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correct the defect in material, workmanship or quality. Ten percent (10%) of the total actual cost
of completion of all Public Improvements to be installed and constructed by the Owner shall be
collected by the Town from the Owner as security during such two (2) year period as the
improvement warranty pursuant to Code § 7.32.100, as may be amended. In the event any
corrective work with respect to the material, workmanship and quality is performed during the
Warranty Period then the warranty on said corrected work with respect to the material,
workmanship and quality shall be extended for two (2) years from the date on which it is
completed. Security equal to 125% of the cost of any corrected work with respect to the material,
workmanship and quality,as estimated by the Town, shall be retained by the Town or immediately
paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with
Code § 7.32.100, for a period of two (2) years from the date of completion of the corrected work.
5.5 Engineering Certification. Upon completion of portions of the Public Improvements to be
installed and constructed by the Owner, the Owner will cause its engineers (who shall have been
actively engaged in observing to a commercially reasonable degree the construction of the Public
Improvements and who are licensed in the State of Colorado) to provide a written opinion. The
written opinion shall be in form and content reasonably satisfactory to the Town's Engineer, and
based upon on-site observation, review of sufficient construction- observation reports, field test
reports, and material test reports and certifications by qualified personnel, shall opine that the
installation of the Public Improvements, or portions thereof as may be completed from time to
time, have been completed, and that to the best of the opining engineer's knowledge and
professional judgment,the Public Improvements are in conformance with all Standards(as defined
below), plans, and specifications as submitted to and previously approved by the Town, or the
pertinent utility supplier,as depicted on Sheets C3.0 and C3.1 of the Development Plan. Inspection
reports, test results, as-constructed plans, including surveys, and other supporting documentation
shall be submitted with the certification. The as-constructed plans shall be submitted on paper and
in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
5.6 Inspection Procedures. All Public Improvement work shall be done under the published
inspection procedures and standards (collectively, "Standards") established by the Town, Holy
Cross Energy, Eagle River Water and Sanitation District, Upper Eagle Regional Water Authority,
Xcel Energy, CenturyLink, Comcast, or any other utility ("Utilities"), as applicable and shall be
subject to the reasonable satisfaction of the Town and applicable Utilities. No work shall be
deemed complete until the reasonable approval and acceptance of the Public Improvements by the
Town or the Utilities. Inspections by the Town and Utilities shall not relieve the Owner or the
Owner's agents from any responsibility or obligation to ensure that all work is completed in
conformance with all Standards,plans, and specifications as submitted to and previously approved
by the Town and Utilities.
A. Cost of Inspections: The cost, if any, of inspections, by Town employees, or an
independent third-party inspector, shall be paid by the Owner.
B. Notice of Non-Compliance: In the event that the Town, through its inspectors,
reasonably determines that the Public Improvements to be installed and constructed by the
Owner are not in compliance with the Development Plan, it shall give written notice of such
non-compliance ("Notice of Non-Compliance") to the Owner. The Notice of Non-
Compliance shall include a narrative describing the unsatisfactory construction work with
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specific reference to the applicable construction plans and specifications with which the Public
Improvements fail to comply. The Notice of Non- Compliance must be provided to the Owner
within two (2) working days of the date of the inspection.
5.7 Indemnification and Hold Harmless.The Owner shall indemnify,defend and hold harmless
the Town (and its officials, agents, representatives, employees, contractors, and successors and
assigns) from all claims, demands, damages (including, without limitation, consequential
damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses
(including reasonable attorneys' fees) resulting from claims for bodily injury (including death) to
any person or damage to any property, arising during the construction of the Public Improvements
or otherwise arising on the Property or from the Owner's activities while performing this
Agreement (including, without limitation, maintenance, repair and replacement activities),
including without limitation any claim that all or any portion of the Public Improvements installed
and constructed by the Owner on Town property or ROW constitute a dangerous and/or unsafe
condition within a public right-of-way; provided, however, that this indemnity shall not apply to
any claims, demands, damages (including, without limitation, consequential damages), causes of
action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable
attorneys' fees) resulting from any act or omission of the Town or its officials, agents,
representatives, employees, inspectors, including independent third-party inspectors, contractors,
and successors and assigns.
5.8 Insurance. With respect to Owner's obligation to, and/or any claims arising from, the
construction or installation of the Public Improvements, all Owner's or Owner's contractor's
insurance policies related in any way to the Public Improvements shall be endorsed to include the
Town and the Town's officers and employees as additional insureds/loss payees,applicable within
each policy. Every policy covering the Public Improvements shall be primary insurance, and any
insurance carried by the Town, its officers, or its employees, or carried by or provided through any
insurance pool of the Town, shall be excess and not contributory insurance to that provided by the
Owner or the Owner's contractors.No additional insured endorsement to the policy required herein
shall contain any exclusion for bodily injury or property damage arising from completed
operations. The Owner and its contractor shall be solely responsible for endorsement/additional
insured costs, premiums and deductible losses under any policy required above.
6. WATER PROVISION,WATER USE AND ENFORCEMENT
6.1 Water Rights. The Property has been allocated water rights by the Town to serve 24 SFEs.
6.2 Indoor Water Usage Limit. The individual Owners and the Association shall adhere to an
indoor usage water budget of no more than 300 gallons per day, per unit, and shall be responsible
for managing use to this limit. Any use in excess of this limit may be subject to an excess use fee
as determined by the Authority and may be subject to penalties and enforcement actions by the
Town. This Agreement shall not restrict or prevent the Town of Avon from imposing indoor water
usage limitations which are less than 300 gallons per day by and through water conservation
regulations which are applicable generally in the Town of Avon.
6.3 Outdoor Water Usage.
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A. The Owner and Association shall install a separate irrigation meter pursuant to Code §
7.28.050(6)(ii)(D). This section establishes a maximum allowable outdoor water use limit for
the development to ensure this Development does not exceed its outdoor water allocation as
established by the Authority's Water Dedication Requirement and Water Service Agreement
between the Owner and the Authority. During the first two growing seasons, the Owner and
Association shall not exceed 121,255 gallons of outdoor water use in any calendar year.
Thereafter, the Owner and Association shall not exceed_121,255 gallons of outdoor water
use in any calendar year.
B. Outdoor Water Usage on the Property may be curtailed by the Authority and/or Town
during periods of low stream flows, and/or during instream flow calls. Once connected, the
Authority and/or Town will monitor water usage of the Property.
6.4 Enforcement.
A. The Town or Authority, upon determining that the Owner or Association has exceeded
the Water Usage Limits prescribed above in Sections 6.2 and 6.3, may provide written notice
by mail or e- mail to the Owner or its successors and assigns of the violation of this Section
and demand that the excessive water usage cease immediately.
B. In the event that the water usage of the Property exceeds the Water Usage Limits in
this Section, the Owner and Association shall be obligated to either reduce its water usage to
within the Water Usage Limits, or, at the Town's and Authority's sole discretion, and only
with the approval of both the Town and Authority, pay additional cash in lieu of a water rights
dedication fees for the excess water use. If the Town or Authority, in its sole discretion, does
not accept an additional cash in lieu of water rights dedication fee, the Owner or its successors
and assigns, and the Association, shall be obligated to reduce its water use to the Water Usage
Limits in accordance with all remedies set forth in this Agreement.
C. Even if the Owner or Association ceases excessive water usage immediately, the
Authority, in its sole discretion, may impose excess water usage fees on the Property for the
period of excess usage.
D. Failure to correct excessive outdoor irrigation water use may result in a seven (7) day
Notice of Disconnection, at the sole discretion of the Authority or other enforcement action
commenced by the Authority and/or Town.
E. The Town has the right, but not the obligation, to enforce the provisions of Section 6.
The Town may take such action to enforce water usage limitations, impose fines and penalties,
and take such other actions as may be authorized by this Agreement, or the ordinances of the
Town, as the Town deems necessary to protect the public health, safety and welfare. Nothing
in this Agreement shall be construed to restrict or limit the Town's rights to enforce and
regulate water usage as such rules and regulations may be adopted the Town generally.
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7. MAINTENANCE AND ONGOING OBLIGATIONS
7.1 Operations and Maintenance. The Owner understands and acknowledges that those certain
aspects of the maintenance, operation and use of the Development, including drainage,
infrastructure, landscaping, and sidewalks ("Owner Maintained Public Improvements"), as
delineated on Sheets C1.2, C1.3 C2.0, C2.1, C5.0,A111,Al 11 and A112 of the Development Plan
and incorporated herein, require maintenance by Owner.
A. Except in the event such liability arises from the action or omission of Town or its
officials, agents, representatives, employees, inspectors, including independent third-party
inspectors, contractors, and successors and assigns, but without waiving governmental
immunity, the Owner agrees that the Town is not liable, and will not assume any liability,
responsibility, or costs for any damage, maintenance, or repair of any Owner Maintained
Public Improvements erected or maintained by the Owner under this Agreement.
B. If the Owner fails to maintain the Owner Maintained Public Improvements, the Town
may perform the necessary maintenance and/or repair, as determined by the Town in its sole
discretion, after providing at least thirty (30) days written notice to the Owner detailing the
necessary maintenance and/or repair. If, after the remedy period set in the notice, the Owner
fails to perform the necessary maintenance and/or repair, the Town may perform such
maintenance and/or repair. The actual costs of the maintenance and/or repair, together with a
fifteen percent (15%) charge for administration, shall be assessed against the Property. The
Town shall send a notice of assessment to the Owner and upon the expiration of the thirty (30)
period provided in such notice, the costs, including the administrative charge, shall be a lien
upon the Property. If the assessment is not paid within thirty (30) days of the lien, the Town
may impose interest upon such costs and upon the administrative charge, at the rate of eighteen
percent (18%) per year. All costs, interest and charges, including the costs of collection, may
be certified to the County Treasurer and collected in the same manner as taxes.
8. SUBDIVISION
8.1 Subdivision. The Owner's preliminary subdivision application was approved by the Town
Council on March 22, 2022 subject to the following conditions:
A. Final Plat. Before acceptance of the Public Improvements, the Owner shall submit for
Town review and approval a complete application for Final Plat of land prepared by Licensed
Colorado Surveyor pursuant to the Municipal Code. Easements for Public Improvements shall
be provided for public pedestrian usage of the sidewalk, and for the usage of the stormwater
and drainage improvements for their intended purposes.
B. Ability to Serve from Eagle River Water and Sanitation District, and final utility
verifications.
C. Preparation, establishment, execution and recording of a Homeowners Association
declarations document which includes maintenance responsibilities, indemnification of Town
and pedestrian access requirements, in a form acceptable to the Town.
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D. The dedication of two park parcels as indicated on Preliminary/Conceptual plat,
totaling not less than 6,079.5 sq. ft. for land adjacent to pocket park, and not less than 12,231.8
sq. ft. for river access parcel, which may also be conveyed through a special warranty deed or
other form acceptable to the Town.
E. Dedication of a platted 4' minimum width Public Pedestrian Access Easement
connecting Eaglebend Drive cul-de-sac with Post Boulevard on the Final Plat with final
location and language approved by the Town.
F. On or prior to Final Plat Submittal, Developer will submit design changes made to the
Development Plan and landscape plan which will be subject to review and approval by the
Town and the revised plans will demonstrate compliance with minimum landscape standards
on the property.
G. Tender Cash in lieu of Park Land Dedication payment in the amount of$249,667.00 to
the Town.
8.2 Community Housing Units. Owners agrees to provide one unit of Community Housing.
The use of such unit shall be restricted to Community Housing(as that term is defined in the Code)
in accordance with such deed restrictions as approved by the Town Council, in Town Council's
sole discretion. The form a deed restriction shall be finalized and approved by Avon Town Council
prior to the issuance of a Temporary Certicate of Occupancy or Certificate of Occupancy.
9. RESTORATION OF SITE
9.1 Restoration Due to Inactivity. Unless a building permit extension is granted in writing by
the building official upon justifiable cause demonstrated by the Owner, any building permit shall
become invalid after 180 days of suspended work. If the building permit becomes invalid, the
Owner shall restore the site to the condition the site was in at the time of issuance of the building
permit (subject to changes reasonably necessary for public safety or preservation of land and
adjoining land, or to prevent waste) within thirty (30) days from the date of notice by the Town
that restoration is required. Upon restoration of the Property in accordance with this Section and
to the reasonable satisfaction of the Town, this Agreement shall automatically terminate.
9.2 Restoration Funds. Owner shall provide $83,000.00 as security for any possible future
required restoration. If the obligation to restore arises (i.e., if the permit becomes invalid) and if
the Owner thereafter fails to restore the Property in compliance with this Section and to the Town's
satisfaction, the Town may use such funds to cover the costs of any required restoration work. The
Town shall maintain an accounting of such costs and once restoration work is completed,the Town
shall return any remaining funds along with such accounting. If the funds are insufficient to
perform the restoration work, the Owner, upon demand from the Town, shall deposit additional
required funds as determined by the Town. If the Owner fails to provide such funds, the Town's
costs of restoration over the amount of funds current held, shall be a lien upon the Property to be
collected in the same manner as property tax and the Town may certify such amount to the County
Assessor for collection, including an additional 10% imposed by the Town for costs of collection.
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9.3 Return of Funds. After the issuance of a Certificate of Occupancy for Phase 1 of the
Development,the Town shall refund 50%of the restoration funds to the Owner. After the issuance
of a final Certificate of Occupancy for the last building to be constructed within the Development,
the Town shall refund the remaining resorations funds to the Owner.
10. DEFAULTS, REMEDIES AND TERMINATION
10.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be
defined as the Town's failure to perform its obligations under this Agreement, after the applicable
cure period described in Section 10.3, below.
10.2 Default by Owner. A "breach" or "default" by the Owner shall be defined as the Owner's
failure to fulfill or perform any obligation of the Owner contained in this Agreement following the
applicable cure period described in Section 10.3,below, or the Owner's failure to fulfill or perform
any obligation of the Owner contained in any other written agreement relating to the Property
between the Town and the Owner or the Town following any applicable cure period contained in
such agreement.
10.3 Notices of Default. In the event of a default by either Party under this Agreement,the non-
defaulting Party shall deliver written notice to the defaulting Party of such default, at the address
specified in Section 12.6, and the defaulting Party shall have five(5)days for monetary obligations
and thirty(30)days for non-monetary obligations from and after receipt of such notice to cure such
default. With respect to non-monetary obligations, if such default is not of a type that with the
exercise of reasonable diligence can be cured within such thirty (30)day period and the defaulting
Party gives written notice to the non-defaulting Party within such thirty (30) day period that it is
actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of
time up to one hundred eighty (180) days given the nature of the default to cure such default,
provided that such defaulting Party is at all times within such additional time period actively and
diligently pursuing such cure.
10.4 Remedies for Default by Town. If a default by Town under this Agreement is not cured as
described in Section 10.3, the Owner shall have the right to enforce the Town's obligations by an
action for any equitable remedy, including, without limitation, injunction or specific performance
or an action to recover damages. Each remedy in this Section 10.4 is cumulative and is in addition
to every other remedy provided for in this Agreement or otherwise existing at law or in equity.
10.5 Remedies for Default by the Owner or Association. If any default by the Owner or the
Association under this Agreement is not cured as described in Section 10.3, the Town shall have
the right to enforce the Owner's or the Association's obligations hereunder by an action for any
equitable remedy, including injunction or specific performance, or an action to recover damages.
Each remedy in this Section 10.5 is cumulative and is in addition to every other remedy provided
for in this Agreement or otherwise existing at law or in equity. In addition, if a default of this
Agreement by the Owner or the Association also constitutes a violation of the Code and non-
compliance with the Development Plan for this Property then the Town shall have all enforcement
rights as described in the Code and other applicable sections of the Code concerning enforcement
and penalties for violations, as the Code may be amended from time to time.
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10.6 Mediation. The Parties agree that prior to submitting any controversy or claim arising out
of or relating to this Agreement,including,without limitation,any breach,default,or interpretation
hereof, to a legal process, and as a prerequisite to initiating any legal process, the Parties shall
attempt to resolve the controversy or claim in good faith in accordance with the procedures stated
in this Section 10.6.The Party asserting the breach,default,controversy,or claim shall first provide
written notice to the other Party, citing this Section 10.6, and requesting consideration by the other
Party to resolve the controversy or claim. The Parties shall use reasonable efforts to resolve the
dispute within thirty (30) days from the date of the notice commencing this process. If the dispute
is not resolved within thirty (30) days of the date of the notice, or by such longer period as may be
mutually agreed by the Parties, then either Party may initiate a legal action. At any time after the
written notice citing Section 10.6,the Parties may mutually agree to appoint an independent neutral
third party (the "Mediator") to assist them in resolving the dispute. In such an instance, (i) each
Party agrees to provide the Mediator access to all relevant and non-privileged documents and may
impose reasonable confidentiality provisions; (ii) the Parties may make representations and
submissions to the Mediator but there shall be no formal hearing unless the Mediator requires a
formal hearing and provides a written notice to the Parties; (iii) the Mediator shall make his
recommendations in writing as soon as is reasonably possible but not later than thirty (30) days
following the receipt of representations and submissions by each Party; (iv) the Mediator's
recommendation shall not be binding upon the Parties,but would become binding upon the Parties
if voluntarily accepted by both Parties in writing; and (v) the fees of the Mediator shall be paid
equally by the Parties. Following receipt by the Parties of the recommendations made by the
Mediator,the Parties shall have ten(10) days, or such longer period as may be mutually agreed by
the Parties, to accept said recommendation or a mutually acceptable alternative. Submission of the
dispute to the Mediator shall be deemed by the Parties to toll the applicable statute of limitations
until the mediation process is concluded.
11. ASSOCIATION MATTERS
11.1 The Owner shall form the Association upon prior to the issuance of a Temporary Certificate
of Occupancy or Certificate of Occupancy for the first building to be constructed within the
Development and prior to any occupancy thereof; provided, however, that in the event that the
Association has not been formed as required, the Owner shall be liable for all obligations of the
Association hereunder until such time as the Association is formed.
11.2 In addition to the rights and obligations of the Association, as specifically stated in this
Agreement, at such a time as the Association is formed, except for any right of Owner to a refund
of any deposit or other monetary security held by Town hereunder,the Association shall be deemed
to be the Owner with respect to the provisions, rights, and obligations of this Agreement. The
provisions of any other Section of this Agreement necessary to give effect to the Association's
rights and obligations under the foregoing Sections shall also be deemed to control. The
Association shall indemnify and hold harmless the Town for Owner Maintained Public
Improvements. The Association Governing Documents will contain a provision stating that the
Association shall be subject to this Agreement as provided herein, and recite the Association's
obligations in this Agreement,including the obligation to indemnify the Town,as described herein.
In addition,the Association Governing Documents shall state that the Town is a limited third-party
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 11 of 17
beneficiary solely for the purpose of enforcing the performance of the Association's obligations
under this Agreement.
11.3 Any failure of the Association Governing Documents to contain provisions required by
this Agreement shall be a default by the Owner and the Association under this Agreement, and the
Town shall be entitled as a remedy therefor to obtain an order for reformation of the Association
Governing Documents so that they are in compliance with this Agreement.
12. MISCELLANEOUS
12.1 Applicable Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado.
12.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between
the Town and the Owner, and nothing contained in this Agreement shall be construed as making
the Town and the Owner joint venturers or partners.
12.3 Applicability of Avon Municipal Code. All matters not covered by this Agreement are
controlled by the Code to the extent applicable. This Agreement does not prevent the Town from
imposing additional requirements not inconsistent with this Agreement as conditions for approval
of a subdivision or the granting of a building permit.
12.4 Waiver. No waiver of one or more of the terms of this Agreement shall be effective unless
in writing. No waiver of any provision of this Agreement in any instance shall constitute a waiver
of such provision in other instances.
12.5 Severability. If any term, provision, covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of
this Agreement shall continue in full force and effect so long at the intent of this Agreement is not
frustrated.
12.6 Notices. Any notice or communication required or permitted under the terms of this
Agreement shall be in writing, may be given by the Parties hereto or such Party's respective legal
counsel, and shall be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) upon acknowledgment of receipt
when sent via electronic mail to intended recipient's electronic mail address,provided below. Any
notice shall be delivered, mailed, or sent, as the case may be, to the appropriate address set forth
below:
If to Town: Town of Avon
Attention: Town Manager
P.O. Box 975
Avon, Colorado 81620
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 12 of 17
Telephone: 970-748-4004
Email: townmanager@avon.org
And: Town of Avon
Attention: Town Attorney
P.O. Box 975
Avon, Colorado 81620
Telephone: 970-748-4001
Email: townattorney@avon.org
If to Owner: Eagle River Homes, LLC
Andrea McMillen
Email: mcmillen.andrea@gmail.com
And:
Email:
Each Party may change its addresses and/or email addresses for notices pursuant to a
written notice that is given in accordance with the terms hereof. As used herein, the term
"business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday
for which U.S. Mail service is not provided. Whenever any date or the expiration of any
period specified under this Agreement falls on a day other than a business day, then
such date or period shall be deemed extended to the next succeeding business day
thereafter.
12.7 Amendment of Agreement.For the purpose of any amendment to this Agreement,"Owner"
shall mean only the Owner as defined herein and those parties, if any, who have specifically been
granted, in writing by the Owner,the power to enter into such amendments.No amendment to this
Agreement shall be valid unless signed in writing by Owner and Town.
12.8 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the
successors in interest or the legal representatives of the Parties hereto. The Owner shall have the
right to assign or transfer all or any portion of its interests, rights or obligations under this
Agreement: (a) to the Association; and (b) to an entity or entities formed for the purpose of
developing the Property which are managed by an affiliate of the Owner and comprised of affiliates
of the Owner. Further, the Owner shall have the right to assign or transfer all or any portion of its
interests, rights or obligations under this Agreement to third parties acquiring an interest or estate
in the Property, including, but not limited to, purchasers or long-term ground lessees of individual
lots, parcels, or of any improvements now or hereafter located within the Property.
Notwithstanding the forgoing, any assignee shall fully assume in writing all obligations of the
Owner assigned to such assignee and Owner must obtain the Town's written consent to such
assignment, which consent will not be unreasonably withheld or delayed if the Owner has
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 13 of 17
reasonably demonstrated to the Town that the assignee has the financial capability to perform the
obligations under this Agreement so assigned.
12.9 Counterparts. This Agreement shall be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Any electronically delivered counterparts shall have the same force and effect as an
"ink-signed" original.
12.10 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to
waive, limit, or otherwise modify any governmental immunity that may be available by law to the
Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the
Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes..
IN WITNESS WHEREOF,the Owner and the Town have executed this Agreement as of the date
first written above.
TOWN: 0OF0
� t '
BYcr 1 ti �� 1 7 ATTEST: �SEAL
Sat/a Uv' "Smith Hymes, Mayor ' nda Tones, Town C k••.
COL ORAD0•
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 14 of 17
OWNER: EAGLE RIVER HOMES, LLC
By:
Its: 1" 1'1Gt�,er— --
STATE OF COLORADO )
) ss.
COUNTY OF e- ..p,, .l0 (:)
Acknowledged before me this.•, day of 3 V 2022, by DNk•-A (,m'AU...)1,1
as M hl H Cni-,--\ of Eagle River Homes,LLC, a Colorado limited liability company.
My commission expires: 'l -ZU 2-9
JENNIFER L. SCHULER
NOTARY PUBLIC
State of Colorado otary Pu 1C
Notary ID#20204030508
My Commission Expires 09/01/2024
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 15 of 17
EXHBIT A
FINAL PLAT
MCGRADY ACRES
A RESUBDIVISION OF LOTS 3 AND 6
A PARCEL OF LAND IN SEC. 7, T5S R81W, 6TH P.M.
TOWN OF AVON, EAGLE COUNTY, COLORADO
RECORDED AT RECEPTION NO. O 'Z- 12,C 100
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 16 of 17
EXHIBIT B
ENGINEERS OPINION OF PROBABLE COST FOR PUBLIC IMPROVEMENTS
Public Improvements and Development Agreement:Lots 3&6 McGrady Acres Subdivision—Town of Avon
July 5,2022
Page 17 of 17
The Nest, McGrady Acres ALPINE
Public Improvements Cost Estimate AEI
June 20, 2022
ENGINEERING INC
ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL
SITE DEMO
Mill existing asphalt drive SF 20 $ 3.00 $ 60.00
Sawcut/remove existing curb LF 125 $ 10.00 $ 1,250.00
Sawcut/remove existing concrete walk SF 576 $ 7.00 $ 4,032.00
Relocate sign EA 1 $ 450.00 $ 450.00
Remove sign EA 1 $ 150.00 $ 150.00
Remove Fence LF 457 $ 7.00 $ 3,199.00
TOTAL DEMO $ 9,141.00
SITE
Asphalt-(4"deep) TN 358 $ 160.00 $ 57,280.00
Asphlat-(8"deep-bus stop) TN 24 $ 160.00 $ 3,840.00
8'wide Concrete walk SF 584 $ 9.00 $ 5,256.00
4'wide Concrete walk SF 1932 $ 9.00 $ 17,388.00
3'wide Concrete Drainage Pan SF 1815 $ 10.00 $ 18,150.00
6"tall vertical Curb and Gutter LF 127 $ 42.00 $ 5,334.00
Basecourse(drive,walk, pan, c/g) TN 686 $ 45.00 $ 30,870.00
Concrete Pavers SF 220 $ 12.00 $ 2,640.00
Truncated Dome Plates SF 42 $ 60.00 $ 2,520.00
Boulder walls SF 1912 $ 30.00 $ 57,360.00
Thermoplastic crosswalk SF 60 $ 22.00 $ 1,320.00
Thermoplastic stop bar SF 20 $ 22.00 $ 440.00
Bus Shelter LS 1 $ 25,000.00 $ 25,000.00
Erosion log wattles LF 775 $ 1.50 $ 1,162.50
Silt Sacks EA 4 $ 180.00 $ 720.00
Erosion Logs at inlets EA 10 $ 100.00 $ 1,000.00
Revegetation LS 1 $ 8,000.00 $ 8,000.00
Landscaping LS 1 $ 75,000.00 $ 75,000.00
TOTAL SITE $ 313,280.50
UTILITY
8" PVC Sewer Main LF 382 $ 70.00 $ 26,740.00
Sewer Video&Testing LF 382 $ 5.00 $ 1,910.00
4' Diameter Sewer Manhole EA 5 $ 4,100.00 $ 20,500.00
Adjust Sewer Manhoel to grade EA 1 $ 800.00 $ 800.00
8" DIP Water Main LF 405 $ 75.00 $ 30,375.00
16" Gate Valves EA 4 $ 3,800.00 $ 15,200.00
8" Gate Valves EA 2 $ 2,100.00 $ 4,200.00
8" Mechanical Bends EA 3 $ 700.00 $ 2,100.00
16"x 8"Tee EA 2 $ 2,200.00 $ 4,400.00
Fire Hydrant Assembly EA 2 $ 4,900.00 $ 9,800.00
The Nest, McGrady Acres ALPINE
Public Improvements Cost Estimate AlE1
June 20, 2022
ENGINEERING INC
ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL
16"x 6"Tee EA 1 $ 1,400.00 $ 1,400.00
8" x 6"Tee EA 1 $ 800.00 $ 800.00
6" Gate valves EA 2 $ 1,200.00 $ 2,400.00
TOTAL UTILITY $ 120,625.00
SHALLOW UTILITY
Trenching-Joint Mains(elec. &comm) LF 380 $ 20.00 $ 7,600.00
Trenching-Joint Services(elec&comm) LF 1110 $ 20.00 $ 22,200.00
Electric Transformer(install) EA 3 $ 1,200.00 $ 3,600.00
4" PE Gas Main (trenching) LF 320 $ 22.00 $ 7,040.00
TOTAL UTILITY $ 40,440.00
STORM
6" HDPE Storm LF 62 $ 30.00 $ 1,860.00
8" HDPE Storm LF 168 $ 40.00 $ 6,720.00
12" HDPE Storm LF 685 $ 55.00 $ 37,675.00
12" Flared End Section EA 2 $ 450.00 $ 900.00
Water Quality Vaults EA 2 $ 12,000.00 $ 24,000.00
2'x3'Valley Inlet EA 3 $ 2,800.00 $ 8,400.00
2'x3'Curb Inlet EA 1 $ 2,800.00 $ 2,800.00
12" Nyloplast Drain Inlet EA 15 $ 500.00 $ 7,500.00
TOTAL STORM $ 89,855.00
GRAND TOTAL $ 532,952.50
I his takeoff does not include engineering, Holy Cross Energy material fees,Xcel Gas material fees, Communication
material fees,tap fees, materials testing, Surveying, Construction Admin., Permit Fees, Town Fees, irrigation, off-site
utility upgrades, or other off-site improvements. The actual cost may vary significantly based upon final design,
hauling and disposal of excess materials, amount of unsuitable material encountered,the cost and availability of
labor,equipment, material and market conditions.
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EXHIBIT C
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