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05-07-2002 TRAER CREEK LLC ESCROW AGREEMENT50. IV. Rua 4: IJrN! JitVVAKI 1ILt iuv. vou7 I. L • ESCI20W AGREEMEN THIS AGREEMENT, made and entered into this 71, day of /~A , 2002, by and between Traer Creek LLC, a Colorado limited liability company ("Traer', the Town of Avon. a Colorado municipality, by and through its Council (the "Town"), and Stewart Title of Vail, inc. ("Stewart Title"). WITNESSETH: WHEREAS, Traer, in connection with the approval of the final plat for The Village (at. Avon) Filing 1, consisting of 176.90 acres in Section 12, T. 5 S., R. 82 W. and Sections 7 and 8, T. 5 S., R. S 1 W., of the 6th P.M., Town of Avon, Eagle County, Colorado (the "Subdivision"), has entered into a Subdivision Improvements Agreement (the "Improvements Agreement') with the Town and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"); WHEREAS, pursuant to the Improvements Agreement, Traer has agreed to be responsible for the performance and completion of certain improvements to the Subdivision (the "Improvements") and has agreed to deposit in escrow certain sums in accordance with the terms of the Improvements Agreement; WHEREAS, Stewart Title has agreed to act as escrow agent and to administer the escrow • in accordance with the terms of the Improvements Agreement. NOW THEREFORE, in consideration of the following mutual covenants, conditions, and promises, the parties hereby agree as follows: I . Escrow Deposit and Court a Upon execution of this Agreement, Traer shall deposit with Stewart Title the sum of Nine Hundred Four Thousand One Hundred Fifty One Dollars and 60/100 ($904,151.60) (the "Escrow Funds"). The Escrow Funds will be held by Stewart Title to assure proper completion of the Improvements and will bear interest at the rate applicable to the account in which the Escrow Funds are held. Stewart Title agrees to hold and administer the Escrow Funds under the terms and conditions of this Agreement and the Improvements Agreement This Agreement may be executed in counterparts and by facsimile signatures; provided, however, facsimile signatures shall be replaced with original signatures as soon thereafter as practicable. 2. Distribution of Escrow Funds. Upon written notification ("Notice") having been received by Stewart Title and executed by authorized representatives of Traer, Catellus Development Corporation, a Delaware Corporation ("CDC") and the Town, Stewart Title shall release to Traer the progress payment as described in the Notice from the Escrow Funds; provided, however, if the Town fails to respond to a disbursement request for a progress payment • from Traer within 20 days such request will be deemed approved. At the same time Notice is 4367/[raer • • • provided to Stewart Title, Traer will provide notice of the requested disbursement to Commica Bank - California at the following address: Comerica Bank - California, 611 Anton Blvd., Second Floor, Costa Mesa, California 92626, Attention: Suzanne Ladrido-Coniglio. Stewart Title shall have no independent duty to determine if the Improvements related to such progress payment have indeed been completed and may conclusively rely upon such Notice and may disregard any warnings or notice given to the contrary. Stewart Title shall also have no independent duty to ascertain whether or not the person or persons who have executed the Notice had authority to so execute, except that Stewart Title agrees that only the following individuals are authorized to execute the Notice on behalf of CDC: Gardiner )'-Hammond, Ray C. Pittman, - Michael D. Fisk and Ted Antenucci. 3. Termination of Escrow. Upon the completion of alllmprovements and warranty periods as set forth in the Improvements Agreement, the Town, Traer and CDC shall each execute a Notice to Stewart Title authorizing Stewart Title to terminate the escrow account and return all Escrow funds remaining thereunder, together with interest thereon, to Traer. Upon receipt of such completion Notice, Stewart Title will return all Escrow Funds together with interest thereon to Traer. 4. Default. In the event that the Town at any time reasonably deems Traer,to be in default with respect to any portion of the Improvements due to faulty workmanship and/or materials, the Town shall provide Traer and CDC with written notice of such default and Traer shall have 30 days to cure any such default. In the event that the Town at any time reasonably • deems Traer to be in default with respect to any portion of the Improvements due to neglect, as defined below, the Town shall provide Traer with written notice of such default and Traer shall have 30 days to cure any such default. "Neglect" as used herein shall be deemed to mean the failure to commence construction of Improvements as defined in the Improvements Agreement or the failure to pursue completion of the Improvements within the time frame set forth in the Improvements Agreement. Such written notice shall also be delivered to Stewart Title at the time of delivery to Traer and CDC. If, at the end of such notice period, the Town deems by Resolution of the Town Council stating (i) that Traer is in default, and (ii) that the funds are required in order to complete or correct work on the Improvements then the Town shall have the right to unilaterally give Stewart Title written Notice to release to the Town Escrow Funds related to such Improvements. 5. Notices. Any notice required under this Agreement shall be hand delivered to an official officer or representative of the party being notified or may be sent certified or registered mail, return receipt requested, and delivery will be effective three days after posting, to the following addresses: The Town: Town of Avon P.O. Box 975 Avon, CO 81620 Attn: Norm Wood • ` 4367/vi= -2- 1,01 U1 LVVL IUL 1 a •'`v uu -1% • Stewart Title: 141 East Meadow Drive Vail, CO 81657 Att: Sandy Capell Traer: William J. Post Traer Creek LLC P.O. Box 640 Vail, CO 81658 0322 East Beaver Creek Blvd. -Avon, CO 81.620 CDC: Gardiner Hammond 165 South Union Blvd. Suite 852 Lakewood, CO 80228 Copies of all notices to: General Counsel for CDC 201 Mission Street, 2nd Floor San Francisco, CA 94105 • • 6. Liability and Indemnification. Stewart Title shall not be held liable for any act it may do or omit to do hereunder as escrow agent, while acting in good faith and in the exercise of its own best judgment, and any act done or omitted by it pursuant to the advice of its own attorney shall be conclusive evidence of such good faith. In consideration of the acceptance of this escrow by Stewart Title, the Town and Traer agree, jointly and severally, for themselves, their heirs, executors, administrators, successors and assigns, and to indemnify and hold it harmless as to any liability by it incurred to any other person or corporation by reason of its having accepted the same, or in connection herewith, and to reimburse it for all its expenses, including, among other things, counsel fees and court costs incurred in connection herewith; and Stewart Title shall have a first and prior lien upon all deposits made hereunder to secure the performance of said agreement of indemnity and the payment of its charges and expenses. 7. Disputes. If at any time a dispute shall exist as to the duty of Stewart Title under the terms hereof, the rights to possession, title or proceeds of any item in escrow, or as to any dispute arising between the parties as to any matter under this Agreement, Stewart Title may deposit the Escrow Agreement and items in escrow with the Clerk of the District Court of the County of Eagle, State of Colorado, and may interplead the parties hereto. Upon so depositing such Escrow. Agreement and items in escrow and filing its complaint in interpleader, Stewart Title shall be released from all liability under the terms hereof, as to the items so deposited. If • 4367/owner -3- • IN UV, Ih'• LUUJ;' 4. 14rIM ~i~rrHni iii LL JON LLr nU" 30442u181 vuu% the Court dots not provide for reimbursement to Stewart Title for attorney fees, costs and expenses related to the into pkadar action out of the interplcad funds, then Stewart Title shall have a claim enfbrr. blc by separate action in Court agsinst the parties, jointly and severally, for said attorney fees, costs and expenses. S. Arnendratmt m R , ecatio , These instructions may be altered, amended, modified or Mvoked by writing only, signed by all of the parties hereto and CDC, and approved by Stewart Title, upon payment oral] fees, costs and expenses incident thereto. 9, Sincling,ggteernrnc. This Agreement thalt be binding upon and inure to the benefit of the parties hereto, their heirs, personal repreSet]1atiV05. successors and assigns. 10. Eafarcem,eW. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. • r~ U TRAER CREEK LLC, a Colorado limited liability company Its. 9; TOWN OF AVON, a Colorado municipality +367muw BY: Its! STEWART TITLE OF VAI" LNC, By: Its: -4- U8 4e0'6 d90:80 20140"Se • • the Court does not provide for reimbursement to Stewart Tale for attorney fees, costs and expenses related to the interpleader action out of the interplead funds, then Stewart Title shall have a claim enforceable by separate action in Court against the parties, jointly and severally, for said attorney fees, costs and expenses. TRAER CREEK LLC, a Colorado limited liability company 0 g. Amendment and Revocation. These instructions may be altered, amended, modified or revoked by writing only, signed by all of the parties hereto and CDC, and approved by Stewart Title, upon payment of all fees, costs and expenses incident thereto. 9. Binding Agreement. This Agreement shall be binding upon and.inure to the benefit of the parties hereto, their heirs, personal representatives, successors and assigns. 10. Enforcement. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. By. Its: TOWN OF AVON, a Colorado municipality any Its: STEWART T Pi'I.E OF VAIL, INC. By: Its: • ..4- 4367tbw IN VV I LUUJ I -*iin vIL iv niti i i:L iuv. UUU7--i. 1 the Court does not provide for reimbursement to Stewart Title for attome fee • costs expenses related to the interpleader action out of the interplead funds, then Stewart Title s have a claim enforceable by separate action in Court against the pasties, •ointl hall said attorney fees, costs and expenses.. J Y d severally, for 8. Amendme t d Revocation. These instructions may be altered, amended modified or revoked by writing only, signed by all of the parties hereto and CDC, and approved by Stewart Title upon payment of all fees, costs and expenses incident thereto. 9. Binds Qreeme t. This Agreement shall be binding upon and inure to benefit of the parties hereto, their heirs, personal representatives, successors and a the ssigns. 10. nforcement. This Agreement shall be construed and enforced in accordan with the laws of the State of Colorado, ce TRAER CREEK LLC, a Colorado limited liability company By: Its: TOWN OF AVON, a Colorado municipality By: Its: STEWART TITLE OF VAIL, INC. By: r~s ► o n1 4367/traer -4-