Conceptual Design Agreement for Benchmark at Beaver Creek Tract Y
Conceptual Design Agreement
DRAFT: February 25, 2025
Page 1 of 9
CONCEPTUAL DESIGN AGREEMENT
This CONCEPTUAL DESIGN AGREEMENT (“Agreement”) is made and entered into on
February 25, 2025 (“Effective Date”), by and between TOWN OF AVON, a Colorado home-
rule municipality (“Avon”) and ULYSSES ACQUISITION LLC, a Colorado limited liability
company (“Developer”). Avon and the Developer are sometimes referred to herein as the
“Parties” and individually as a “Party.”
RECITALS
A. Avon is pursuing an affordable housing redevelopment project (the “Project”) on an
approximate 4.0-acre parcel of land adjacent to the westbound off-ramp of I-70 at the Avon
Road interchange referred to as the “Slopeside Parcel” (the “Property”). The Property is
identified on the map attached as EXHIBIT A: PROJECT AREA hereto.
B. On July 15, 2024, Avon and the Avon Housing Authority (“Authority”) published a
Request for Qualifications (“RFQ”) from interested developers, and in response to the
RFQ, the Developer submitted its qualifications for the Project.
C. On September 3, 2024, Avon published a Request for Proposals (“RFP”) from the
respondents of the RFQ, and in response to the RFP, Developer submitted its proposal for
the Project dated September 27, 2024 (the “Developer Proposal”).
D. Following additional procurement process steps, including interviews and meetings
participated in by Avon staff, Avon staff recommended Developer to the Avon Town
Council (“Council”) as the preferred Developer for the Project. Avon staff notified the
Developer of its selection on October 8, 2024, and representatives from Avon staff and the
Developer met on October 10, 2024 to discuss preparation of this Agreement and a
subsequent developer services agreement.
E. The Parties desire to enter into this Agreement on the terms set forth below to address the
Parties’ obligations related to the provision of conceptual design services and the
negotiation of a developer services agreement (“DSA”) related to the Project.
F. The Parties intend that the DSA will address the developer services that Developer will
provide to Avon during the period of the DSA to further define the Project and also will set
forth the steps and agreements required for the Developer ultimately to ground lease the
Property and construct, own and operate the Project during the term of the ground lease.
AGREEMENT
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the Parties mutually agree as follows:
I. Conceptual Design
A. Developer shall prepare conceptual designs to present up to three separate options for
consideration by Avon Planning and Zoning Commission (“Avon PZC”) and Council.
Conceptual designs shall depict building locations, size, massing, types of units and
general floor plans, general architectural design and parking configuration. Conceptual
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designs may include a mixture of building types and sizes in response to the highly
visible entrance to Avon.
B. The Conceptual Design process shall include the following:
1. Introductory joint work session with Avon Planning and Zoning Commission and
Council to review project goals, discuss site challenges and opportunities, and
discuss optimizing density balanced with appearance of entry to Town of Avon.
Avon staff will provide guidance on list of project goals and design considerations.
2. Initial presentation of at least two conceptual designs to Avon PZC and Council.
Avon PZC and Council will provide direction and comment on conceptual designs.
3. Prepare revised and preferred conceptual design for presentation to Avon PZC and
Council. Avon PZC and Council will provide direction and comment to finalize the
preferred conceptual design.
4. Submit final revised conceptual design to Avon.
C. Developer shall charge a fee of $105,000.00 for preparing conceptual designs. Avon
shall pay in accordance with the following schedule:
1. $30,000 due within thirty (30) days after preparing materials and attending the joint
work session described in Section I.B.1 above.
2. $30,000 due within thirty (30) days after preparing materials and attending the
initial presentation of at least two conceptual designs before Avon PZC and Council
as described in Section I.B.2 above.
3. $30,000 due within thirty (30) days after preparing materials and presenting a
revised preferred conceptual design to Avon PZC and Council as described in
Section I.B.3. above.
4. $15,000 due within thirty (30) days after providing the final revised conceptual
design to Avon.
5. Additional meeting attendance and additional conceptual design work shall be
charged to Avon at direct cost, including hourly rates, ½ hourly rate for travel time
to and from Avon, and direct expenses without mark-up. Developer shall provide
reasonable estimates of the cost of extra work upon request by Avon. Hourly rates
and expenses are depicted in EXHIBIT B: RATES.
D. Developer shall order property reports (“Property Reports”) required to create
Conceptual Designs, including but not limited to Phase I Environmental Study,
geotechnical study, and addition to survey work. Avon shall reimburse costs for reports
which shall be charged without mark-up by Developer subject to Avon’s prior review
and approval of cost quotes and scope of work and provided that total costs for such
reports does not exceed $25,000 without Avon’s prior written consent.
E. Ownership of Documents. Upon payment as provided in sub-section I.C. above, the
conceptual design materials provided to Town and any Property Reports paid for by the
Town under sub-section I.D. shall be deemed work made for hire and made in the course
of the conceptual design work performed under this Agreement and will be the exclusive
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property of the Town. Town will have unlimited right to use the conceptual design
materials and Property Reports, in whole or in part, in the Town’s sole discretion.
Developer warrants that prior to beginning any work on the conceptual designs, it will
have enforceable written agreements with all of its personnel and subcontractors to be
involved in performing the conceptual design work that assign to Developer ownership
of all patents, copyrights, and other proprietary rights created in the course of their
employment or engagement.
II. Exclusive Negotiations
A. Concurrently with the Conceptual Design process, Avon and Developer shall negotiate
exclusively and in good faith with each other concerning the terms and conditions of
the DSA and the ultimate development of the Project.
B. Each Party shall continue to use commercially reasonable efforts to cooperate in all
respects as reasonably necessary to negotiate the terms and conditions of the DSA,
including but not limited to, directing staff to attend scheduled meetings, direct its
respective consultants to cooperate with the other Party, to provide information to the
other Party that may be reasonably necessary to further completion of the DSA, and to
promptly review and return with comments all correspondence, reports, documents, or
agreements received from the other Party that require such comments.
C. The Parties shall continue to use commercially reasonable efforts to ensure those staff,
principals, and consultants that each respective Party identifies as authorized to speak
responsibly and authoritatively for each Party participate in meetings and
communications by and among the Parties.
D. Avon will not negotiate with any other person or entity concerning the development of
the Project as described in the Developer Proposal.
III. Agreement Term
A. The “Agreement Term” will commence on the Effective Date and terminate August
15, 2025, provided, however, if on the final day of the Agreement Term, the Developer
has executed the DSA and submitted it to the Town Council for approval, this
Agreement shall not terminate until the Town Council either approves or rejects the
DSA.
B. Either Party may terminate this Agreement at any time following consultation with the
other Party and upon fifteen (15) days’ advance written notice if such Party determines
in its reasonable discretion that (i) the other Party is not negotiating the DSA in good
faith or fulfilling its obligations under this Agreement or (ii) despite the Parties
negotiating in good faith, the Parties cannot agree on the terms of the DSA. In addition,
the Parties may mutually agree to terminate this Agreement if they determine, after
consultation with each other, that the Project is not financially feasible. Alternatively,
this Agreement shall automatically terminate if the Council rejects the DSA as executed
by the Developer or requires amendments which are not acceptable to the Developer.
C. Unless the Parties otherwise agree in writing, except for the costs described in Section
I(C)(5) above which will be charged to Avon, any amounts expended by each Party
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during the Agreement Term shall be that Party’s expense and shall not be reimbursed
by the other Party.
IV. Performance During Agreement Term.
A. During the Agreement Term, the Parties shall use good faith, commercially reasonable
efforts to reach agreement on the terms of the DSA. The Parties intend that the DSA
will address, without limitation, the following obligations of the Parties:
1. The development services that the Developer will provide, or cause consultants to
provide, to Avon related to the Project, which services will include, but not be
limited to, preparing documents for and coordinating a pre-application meeting with
Avon staff, conceptual design review and a major development plan application
(the “Development Services”).
2. Avon’s commitment to pay the costs identified by the Developer and approved by
Avon for the Development Services.
3. The obligations of the Parties to work together on the terms of a ground lease,
restrictive covenant and related agreements to enable the Developer to develop and
operate the Project.
4. Such other terms and conditions that the Parties deem appropriate for the DSA.
B. Any public announcements concerning the Project will be handled by Avon unless
otherwise agreed. Avon shall strive to coordinate with the Developer on any public
announcements concerning the Project. All negotiations between the Parties under this
Agreement shall be confidential to the extent permitted by law.
V. Further Duties and Obligations. Except as expressly provided herein, neither Party
shall have any obligation or duty to the other Party in the event the Parties fail for any
reason to timely execute and deliver the DSA. Nothing herein shall be construed as a
binding commitment by either Party to proceed with the Project.
VI. Amendment; Attorneys’ Fees; Time. This Agreement may not be amended except in
writing signed by the Parties. Each Party is responsible for its own attorney’s fees and
costs in the event of any dispute or legal action related to this Agreement.
VII. General. If any provision of this Agreement is held invalid or unenforceable in
accordance with its express terms in any legal proceeding, such invalidity or
unenforceability shall not affect the validity and enforceability of any other part of this
Agreement. Nothing contained in this Agreement shall be deemed to constitute a joint
venture or partnership relationship or any other arrangement, business, financial or
otherwise, between Avon and the Developer. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
VIII. Remedies; Termination. Termination of this Agreement shall be the sole and exclusive
remedy in the event of default. In the event of a default under this Agreement, the non-
defaulting Party shall provide written notice (a “Default Notice”) to the defaulting Party,
and the defaulting Party will have fourteen (14) days from receipt of the Default Notice
to cure the default. During such time period, the Parties will work diligently with one
another to help mutually cure the default, including meeting at least two (2) times to
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discuss and seek to resolve the issues associated with the Default Notice. If after such
meetings and the end of such 14-day cure period, the Parties are unable to reach
agreement regarding the subject default, either Party may terminate this Agreement by
written notice to the other Party.
IX. Assignment. This Agreement and all rights and obligations of the Parties hereunder are
personal to the Parties and may not be transferred or assigned without the prior written
consent of the other Party. Avon agrees to review in good faith and agrees to not
unreasonably withhold approval of any proposed assignment by the Developer of
Developer’s rights and obligations in this Agreement to a wholly owned subsidiary of the
Developer or to a new entity under the same ownership and control of the Developer.
X. Notices. All notices required or permitted hereunder shall be in writing and shall be
delivered in person or by email (which shall be deemed received when acknowledged by
the recipient) by overnight courier, or by registered or certified mail, postage prepaid,
return receipt requested, to such Party at its address shown below, or to any other place
designated in writing by such Party:
Avon: Town of Avon
Town Manager
100 Mikaela Way
Avon, CO 81620
(970) 748-4004
townmanager@avon.org
With a copy to: Town of Avon
Town Attorney
100 Mikaela Way
Avon, CO 81620
(303) 376-8512
townattorney@avon.org
nina@wwfdlaw.com
Developer: Kevin Knapp, Vice President
c/o Ulysses Development Group LLC
210 University Blvd, Suite 460
Denver, CO 80206
(720) 615-1010
Kevin.Knapp@ulyssesdevelopment.com
With a copy to: Sarah Rockwell, General Counsel
Ulysses Development Group LLC
210 University Blvd., Ste. 460
Denver, CO 80206
(720) 615-1010
Sarah.rockwell@ulyssesdevelopment.com
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Any such notice shall be deemed received upon delivery, if delivered personally, upon
acknowledgement of receipt by the recipient of an email, one (1) day after delivery to the
courier, if delivered by courier, and three (3) days after deposit into the United States mail,
if delivered by registered or certified mail.
[EXECUTION PAGE FOLLOWS]
Conceptual Design Agreement
DRAFT: February 25, 2025
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
AVON:
TOWN OF AVON, COLORADO
By: __________________________
Title: _________________________
DEVELOPER:
ULYSSES ACQUISITION LLC,
a Colorado limited liability company
By: ______________________________
Title: ____________________________
ATTEST:
By: __________________________
Authorized Signatory
Avon Town Clerk
Eric Heil (Mar 7, 2025 06:55 MST)
Eric Heil
Town Manager
A-1
EXHIBIT A
PROJECT AREA
The “Project Area” is depicted below as two parcels outlined in blue and orange adjacent to Swift
Gulch Road and the I-70 west bound off-ramp to the Avon Road interchange:
B-2
EXHIBIT B - RATES
Ulysses Development Group
• Developer: $300/hour
• Associate Developer: $200/hour
• Counsel: $300/hour
• Paralegal: $200/hour
Architect
• Principal: $300/hour
• Lead Designer: $200/hour
• Associate: $150/hour
Engineer
• Principal: $300/hour
Cost Estimator
• Principal: $200/hour
Slopeside - Conceptual Design Agreement -
03.06.2025 Final EXE
Final Audit Report 2025-03-07
Created:2025-03-07
By:Miguel Jauregui Casanueva (mjauregui@avon.org)
Status:Signed
Transaction ID:CBJCHBCAABAAOZHjq6-ea7-twswDYvMO200C7oTGyyq6
"Slopeside - Conceptual Design Agreement - 03.06.2025 Final E
XE" History
Document created by Miguel Jauregui Casanueva (mjauregui@avon.org)
2025-03-07 - 1:03:14 AM GMT
Document emailed to eheil@avon.org for signature
2025-03-07 - 1:04:28 AM GMT
Agreement modified by Miguel Jauregui Casanueva (mjauregui@avon.org)
2025-03-07 - 1:20:08 AM GMT
Agreement modified by Miguel Jauregui Casanueva (mjauregui@avon.org)
2025-03-07 - 1:28:32 AM GMT
Email viewed by eheil@avon.org
2025-03-07 - 1:54:36 PM GMT
Agreement modified acknowledged by eheil@avon.org
2025-03-07 - 1:54:44 PM GMT
Signer eheil@avon.org entered name at signing as Eric Heil
2025-03-07 - 1:55:08 PM GMT
Document e-signed by Eric Heil (eheil@avon.org)
Signature Date: 2025-03-07 - 1:55:10 PM GMT - Time Source: server
Agreement completed.
2025-03-07 - 1:55:10 PM GMT