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TC Council Packet 05-27-2003STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON 1 NOTICE IS HEREBY GIVEN THAT A WORK SESSION OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, WILL BE HELD MAY 27, 2003, AT 3:30 P.M. IN THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO FOR THE PURPOSE OF DISCUSSING AND CONSIDERING THE FOLLOWING: 3:30 PM - 4:15 PM 1) Council Committee Updates Water (Councilor D. Buckley) Recreation (Councilor Wolfe) Transit (Councilors Wolfe & Mayor Pro Tern McDevitt) Eagle County Meetings (Mayor Reynolds) 4:15 PM - 4:45 PM 2) Public Safety Discussion on West Beaver Creek Blvd Issues (Jeff Layman) 4:45 PM - 5:00 PM 3) Website Discussion (Jacquie Halburnt) 5:00 PM - 5:30 PM 4) Staff Updates - a. Hurd Lane (Norm Wood) b. Community Development Update Chateau and other questions of Council (Ruth Borne) c. "You are Here" signs (Jacquie Halburnt) Council Questions Consent Agenda Questions AND SUCH OTHER BUSINESS AS MAY COME BEFORE THE COUNCIL. THIS MEETING IS OPEN TO THE PUBLIC. TOWN OF AVON, COLORADO BY: Q K, tty cKenny Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON MAY 23, 2003: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY Avon Council 1` 9eeting.03.05.27 FINANCIAL MATTERS May 27, 2003 1. Detail-Building Permit Report 2. Detail-Real Estate Transfer Taxes 3. Detail-Sales Tax Update 4. Detail-Accomodations Tax Update Town of Avon 970-748-4030 P.O.Box 975 Avon, Co. 81620 748-4094 For Inspection Request Permit Tally Printed: 5/5/2003 For: April, 2003 Page 1 of 3 Permit Purpose: Public: # of Bldgs: Private: 1 # of Bldgs Construction Value: $.00 # of Units: Permit Charges: $.00 Construction Value: $500.00 # of Units: Permit Charges: $.00 Permit Purpose: Commercial Public: Construction Value: $.00 # of Bldgs: # of Units: Permit Charges: $.00 Private: 9 Construction Value: $54,000.00 # of Bldgs: # of Units: Permit Charges: $1,00100 Permit Purpose: New SF Residential A Permit Tally Printed: 5/5/2003 For: April, 2003 Page 2 of 3 Permit Purpose: New SF Residential Public: Construction Value: $.00 # of Bldgs: # of Units: Permit Charges: $.00 Private: 1 Construction Value: $400,000.00 # of Bldgs: 1 # of Units: 1 Permit Charges: $5,735.19 Permit Purpose: Repair/Remodel Comm/Indust Public: Construction Value: $.00 # of Bldgs: # of Units: Permit Charges: $.00 Private: 1 Construction Value: $7,000.00 # of Bldgs: # of Units: Permit Charges: $264.23 Permit Purpose: Repair/Remodel SF Residential Public: Construction Value: $.00 # of Bldgs: # of Units: Permit Charges: $.00 Private: 1 Construction Value: $4,000.00 # of Bldgs: # of Units: Permit Charges: $.00 Permit Tally For: April, 2003 Permit Purpose: Repair/Remodel SF Residential Printed: 5/5/2003 Page 3 of 3 Totals: Public: # of Bldgs Private: 13 # of Bldgs: 1 Construction Value: $.00 # of Units: Permit Charges: $.00 Construction Value: $465,500.00 # of Units: 1 Permit Charges: $7,002.42 Town of Avon Real Estate Transfer Tax Transactions Apr-03 Calendar Year 2003 Purchaser Amount of RET7 Name Property Received March Balance Forward $415,954.54 Title Comp Rockies Christie Lodge Timeshare $201.60 Title Comp Rockies Christie Lodge Timeshare $355.20 Title Comp Rockies Christie Lodge Timeshare $508.80 Title Comp Rockies Christie Lodge Timeshare $758.40 Title Comp Rockies Christie Lodge Timeshare $129.00 Title Comp Rockies Falcon Pointe Timeshare $58.00 Title Comp Rockies Falcon Pointe Timeshare $117.90 Title Comp Rockies Falcon Pointe Timeshare $30.00 Title Comp Rockies Falcon Pointe Timeshare $50.00 Title Comp Rockies Falcon Pointe Timeshare $70.00 Title Comp Rockies Falcon Pointe Timeshare $60.00 Title Comp Rockies Mtn. Vista 3-14 $879.90 Title Comp Rockies Mtn. Vista 3-13 $659.90 Title Comp Rockies Mtn. Vista 03-15 $1,979.70 Title Comp Rockies Mtn. Vista 3-16 $1,399.70 Title Comp Rockies Lakeside Terrace $1,364.40 Title Comp Rockies Lakeside Terrace $1,089.50 Title Comp Rockies Lakeside Terrace $429.80 Title Comp Rockies Lakeside Terrace $429.80 Johnson Janice K Beaver Bench Condo B-4 $2,850.00 Johnson Janice & Brenner John Beaver Bench Condo A-1 $3,250.00 Macdougald Elisabeth Sonner Halde Condo A-6 $3,640.00 Rascon Cesar & Gonzalez Carolina Sonner Halde Condo B-2 $640.00 Nelson Donald & Lisa Season @ Avon 513 $4,600.00 Shapira Am Season Avon 325 $4,080.00 Kullberger Niclas & Villa-Vicencio Tanya Stone Creek Condo 111 $810.00 Gilmore, Joseph & Gilmore Gwendoline Avon Lake Villas Condo H-2 $4,200.00 Clark, Candace & James Avon Lake Villas Condo W-2 $5,040.00 Evans, Stephen & Lisa Avon Lake Villas Condo M-2 $3,900.00 Wintergreen Homes Brett II LLC Sunrid e @ Avon II L-304 $3,000.00 Baker Kevin & Megan Sunridge @ Avon D-105 $2,850.00 Jason Sica Avon Crossing Condo #1302 $800.00 Duffelme er, James Canyon Run Condo 1-301 $3,450.00 Martinez Karen & Orlando Chapel Square BR-223 $3,800.00 Foster Robert The Claivin Lot 6 $4,500.00 Beck Alex M. Rid eline Condo B-3 WR $1,560.00 Rudy Harris Peter & Helen Lot 41-B Blk 1 Wildridge $7,204.00 Kinzler, Brett & Lavigne Any T Lot 16A Blk 2 Wildridge $7,300.00 Tenner Charles & Jessica Lot 28 Blk 1, Wildridge $9,700.00 Schorr, Wagner Lot 23-B Blk 3, Wildridge $10,400.00 De Lucinges, Andre & Josephine Lot 45A Blk 2, Wildridge $6,700.00 Giandomenico Terri-Ann Falcon Townhomes B $6,800.00 Schneider Michael Avon Commercial 224 L. 1&2 $2,650.00 $530,250.14 Total through -----April $530,250.14 Total through ----- March $247,965.28 April Receipts $114,295.60 TOWN Of AVON SALES TAX BY MONTH 1999 January 384,939.69 February 384,939.69 March 384,939.69 April 384,939.69 May 384,939.69 June 384,939.69 July 384,939.69 August 384,939.69 September 384,939.69 October 295,541.62 November 320,335.28 December 564,813.35 YTD Total 4,645,147.46 981-991% 2000 99'-001% 2001 001-01% 2002 01'-02% 2003 02'-03% Total 5-Yr Change Change Change Change Change % Increase 1.45% 359,721.88 -6.55% 408,217.16 13.48% 411,790.30 0.88% 416,475.94 1.14% 8.19% 1.81% 397,291.59 3.21% 401,384.50 1.03% 400,493.88 -0.22% 436,108.60 8.89% 13.29% -16.35% 457,053.94 18.73% 503,411.30 10.14% 482,084.42 -4.24% 493,056.54 2.28% 28.09% 24.09% 337,087.43 -12.43% 344,079.71 2.07% 289,326.67 -15.91% - -100.00% -100.00% 54.54% 286,191.36 -25.65% 317,331.11 10.88% 299,677.89 -5.56% -100.00% -100.00% 14.04% 398,869.89 3.62% 393,695.61 -1.30% 355,084.11 -9.81% -100.00% -100.00% 4.01% 415,978.51 8.06% 434,867.02 4.54% 399,046.84 -8.24% -100.00% -100.00% 6.01% 400,447.52 4.03% 421,012.61 5.14% 391,457.32 -7.02% -100.00% -100.00% 15.42% 375,400.90 -2.48% 356,264.03 -5.10% 335,782.58 -5.75% -100.00% -100.00% -3.11% 320,796.00 8.55% 361,688.95 12.75% 318,052.07 -12.06% -100.00% -100.00% -4.40% 329,170.99 2.76% 333,024.51 1.17% 321,486.88 -3.46% -100.00% -100.00% 2.68% 607,777.58 7.61% 615,165.05 1.22% 679,811.56 10.51% -100.00% -100.00% 6.26% 4,685,787.59 0.87% 4,890,141.56 4.36% 4,684,094.52 -4.21% 1,345,641.08 3.96% 7.15% YTD Through March Collections 1999-2003 1,350,000.00 - --- -- 1,300,000.00 - - 1,250,000.00 / _ - I 1,2001000.00 -- - - 1,150,000.00 /?? - - 1,100,000.00 / - _,.. 1,050,000.00 --' - - -- -_.?.??_?; ---_:?--------y-----------= 1999 2000 2001 2002 2003 Year Monthly Collections for March 1999-2003 TOWN OF AVON ACCOMMODATIONS TAX BY MONTH 1999 981-99% 2000 991-001% 2001 001-011% 2002 01'-02' % 2003 02'-03'% Total 5-Yr Change Change Change Change Change % Increase January 41,102.99 4.44% 24,753.92 -39.78% 35,913.75 45.08% 33,569.05 -6.53% 33,098.93 -1.40% -14.71% February 36,985.03 -13.52% 32,158.10 -13.05% 42,137.63 31.03% 40,888.10 -2.97% 46,317.21 13.28% -4.40% March 42,018.24 -17.67% 42,385.82 0.87% 55,435.56 30.79% 56,372.30 1.69% 71,438.85 26.73% '10.46% April 11,609.15 -14.37% 10,166.11 -12.43% 12,152.00 19.53% 12,536.40 3.16% - -100.00% -7.53% May 6,117.50 6.15% 5,712.27 -6.62% 6,749.18 18.15% 8,424.93 24.83% -100.00% 46.19% June 14,958.28 18.63% 15,610.67 4.36% 15,630.07 0.12% 13,301.20 -14.90% -100.00% 5.49% July 21,120.57 1.32% 21,769.19 3.07% 22,567.70 3.67% 21,435.73 -5.02% -100.00% 2.83% August 16,452.89 -28.08% 17,093.13 3.89% 19,873.96 16.27% 17,483.54 -12.03% -100.00% -23.57% September 10,300.61 -8.54% 12,810.60 24.37% 13,059.89 1.95% 13,041.26 -0.14% -100.00% 15.80% October 7,258.18 -12.72% 9,139.51 25.92% 7,065.21 -22.70% 9,998.17 41.51% - -100.00% 20.23% November 7,889.97 -27.03% 10,233.40 29.70% 7,592.38 -25.81% 10,582.27 39.38% -100.00% -2.14% December 25,606.29 -21.46% 32,309.50 26.18% 29,964.55 -7.26% 32,498.49 8.46% -100.00% -0.32% YTD Total 241,419.70 -11.18% 234,142.22 -3.01% 268,141.88 14.52% 270,131.44 0.74% 150,854.99 15.31% -0.62% YTD Through March Collections 1999-2003 160,000.00 - 140,000.00 '.,:,--.:. :- "i 120,000.00 - _ s: - -- 100,000.00 -- - - 80,000.00 60,000.00 40 000.00 i j - - -; , I 20,000.00 - h 1999 2000 2001 2002 2003 Year Monthly Collections for March 1999-2003 Memo To: Honorable Mayor and Town Council From: Mayor Pro Tern McDevitt Thru: Patty McKenny, Town Clerk Date: May 21, 2003 Re: Enclosure Summary: Mac asked that I include this information in your packets for your review. 1 1 AVON WASTEWATER PLANT ODOR COMPLAINTS 25 w a 20 c? w 15 CL z 10 % .a.4 Q Oi aa+ is++ a 5 +aa, 14 ,: ? O , a a; ? 'jaa?t =: a'a 2000 2001 2002 2003 QUARTERS 1st 02nd 03rd 94th EDWARDS WASTEWATER PLANT ODOR COMPLAINTS 12 w 10 a - 8- w a 6- co H ? 4 a J 2 2 i v 0 a? i . . ?a? ? as++ 2000 2001 2002 2003 QUARTERS CS 1 st 0 2nd 0 3rd 9 4th EDWARDS WASTEWATER PLANT EFFLUENT pH 9.5 9.0 8.5 8.0 x a 7 5 . 7 0 . 6 5 . NPDES Permit Daily Limit 6 0 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 April 2003 EDWARDS WASTEWATER PLANT EFFLUENT FECAL COLIFORM COUNT 500 450 J 7- 400 0 w 350 M y z 300 O J 250 V m 0 200 LL J 150 V J v 100 w LL 50 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 April 2003 MEMORANDUM To: Honorable Mayor and Cou Thru: Larry Brooks, Town Man e From: Jeff Layman, Chief of Poli Date: May 19, 2003 Re: West Beaver Creek Boulevard issues Summary: The purpose of this memo and the accompanying work session discussion is to further explore the observations of a West Beaver Creek Boulevard citizen at the last regular council meeting. The council seemed to be most interested in discussing police activity trends, police staffing and legislation that might enable the police to better serve the Avon citizens in the area. Discussion: Police Activity- I have included several attachments to help illustrate our activities. Attachment A gives an eight-year town wide perspective. The rest of the activity attachments regarding police activity are printed from the Avon Police Department website (www.avonpolice.org). They provide information regarding activity in all geographical areas of the Town of Avon. Police Staffing- Attachment B depicts patrol officer / sergeant allocation by day of the week and during the various work periods of the day. This reflects a current allocation and does not include adjustments we must make to cover for vacations, illness, training or other absences. We constantly review our schedule and our activity levels and make adjustments when necessary. We currently have two vacant police officer positions. We are working to fill them. New hire police officers must undergo a rigorous OJT course of up to 14 weeks. Legislation- There are a variety of ordinances already enacted that are helpful in dealing with the West Avon concerns. Our ordinances regarding drinking alcoholic beverages in public and prohibiting amplified sound, not to mention much of the Model Traffic and Criminal Code are being used to mitigate these problems. There seemed to be a special concern with "cruising". After reading literature related to cruising, it is my opinion that our situation does not rise to the level that would warrant any special legislation. Cruising legislation is most often used in municipalities that find "cruisers" are severely impacting traffic flow, deterring potential customers from a business area and drastically affecting the quality of life of residents. Although it is true that the vehicles driving West Beaver Creek Boulevard may impact some resident's quality of life, we must remember that the street was designed as a major traffic artery through Avon. Our experience indicates that traffic flow is not altered and the businesses in the area have not voiced any concerns about it. After consulting with several police supervisors and officers, there does not seem to be a need to enact any further legislation. Town Manager Comments: Attachment A Avon Police Department 1995-2002 Activity Statistics 1995 1996 1997 1998 1999 2000 2001 2002* Total Crimes Reported 1000 1087 1095 866 1015 965 1153 1033 Group A Crimes 558 578 608 453 498 498 620 588 Group B Crimes 442 509 487 413 517 467 533 445 Clearance Rate .56 .61 .65 .72 .33 .62 .56 .55 Total Reports 2633 3625 3541 3168 3880 4529 5223 5544+ Calls for Service 1464 1986 2157 2291 2787 3214 3608 4294 Traffic Accidents 290 468 369 350 282 310 330 310 Total Arrests 445 517 560 463 385 452 526 500 Adult Arrests 398 454 481 416 325 402 453 440 Juvenile Arrests 47 63 79 47 42 50 73 60 Sexual Offenses 5 4 4 3 4 8 7 11 Burglary 32 29 37 11 19 36 61 45 Larceny 269 290 235 175 158 173 204 200 Motor Vehicle Theft 20 17 10 6 6 14 16 17 Assault 100 85 84 88 65 71 93 70 Arson 0 0 0 1 0 0 4 5 Forgery/Counterfeiting 12 23 10 11 9 20 35 16 Fraud 20 24 30 21 34 42 51 40 Vandalism 66 73 106 46 61 78 96 110 Weapon Offense 3 6 7 5 9 2 4 Narcotics 17 26 82 77 31 39 41 70 DUI 105 90 54 64 70 76 69 85 Liquor Laws 5 9 13 16 12 24 21 15 Disorderly Conduct 43 30 35 40 31 46 33 18 Runaways 13 16 6 1 2 0 0 0 All Other Offenses 184 171 232 172 141 184 201 125 Traffic Summons 570 695 573 449 682 495 555 480 Criminal Summons 231 223 263 286 266 320 329 310 Odor Complaints N/A N/A N/A N/A N/A 28 30 3 Animal Control Summonses N/A N/A N/A N/A N/A 35 32 12 MV Burglary N/A N/A N/A N/A NA/ N/A 37 78 *2002 numbers are projected. +Actual Group A crimes include: Homicide, Mdnapping/Abduction, Robbery, Assault, Arson, Extortion, Burglary, Larceny/Theft, Motor Vehicle Theft, Counterfeiting, Fraud, Embezzlement, Stolen Property, Vandalism, Drug/Narcotic Offenses, Sex Offenses, Pomography/Obscene, Gambling Offense, Prostitution, Bribery and Weapon Violations. Group B crimes include: Bad Checks, Curfew/Loitering, Disorderly Conduct, DUI, Drunkenness, Family Offenses, Liquor Law Violations, Peeping Tom, Runaway, Trespass and All Other Offenses. Wildridge 2002 Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Stats 2001 vs. 2000 Stats Stats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bihe Safety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings Job Application News You Can Use If an Officer Stops You Vehicle Registration Fingerprinting Request a Report Request a Clearance Letter Ale...e Deln^eve Page 1 of 3 January 1 through December 31 Wildridge 2002 2001 % +1- Animal 53 90 -41 Traffic 65 65 0% Burglary + Community Contacts* 35 16 119% Theft + ®0 100% Odor Assault + ?0 2? -100% Fraud Vandalism ?2 0 -33% Narcotics Liquor Laws ?0 -100% Domestics ®® 100% DUls + Accidents 10 43% Noise Complaints 25 21 19% 911 Calls 33 23 43% Alarms 57 24 137% Incident Reports 274 251 9% Total Arrests ® 15 -47% * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs + This data is initial information compiled by CAD (computer aided dispatch) by Vail Communications and does not reflect the final disposition of the call; therefore, there will be http://www.avonpolice.org/html/wildridge_2002.html 05/22/2003 Avon Police Department. PO Box 975. 460 Benchmark Road, Avon, CO 81620. (970) 748-4040 Mountain Star 2002 Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Rats 2001 vs. 2000 Rats Rats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bike Safety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings Job Application News You Can Use If an Officer Stops You Page 1 of 3 January 1 through December 31 Mountain Star 2002 2001 % +/- Animal Traffic Burglary + Community Contacts* Theft + ?0 1? -100% Odor Assault + Fraud Vandalism 1?0 0% Narcotics Liquor Laws Domestics DUls + Accidents 00 -67% Noise Complaints 911 Calls Alarms 56 32 75% Incident Reports 41 47 -13% Total Arrests ?0 0 -300% * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs http://www.avonpolice.org/html/mountain_star_2002.htm1 05/22/2003 Avon Police Department, PO Box 975, 4070 Benchmark Road, Avon, CO 81620, (970) 748-4044 1-702002 POLICE LINE - 00 NOT CROSS POLICE LIN Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Stats 2001 vs. 2000 Rats Stats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bike Safety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings Job Application News You Can Use If an Officer Stops You Page I of 3 January 1 through December 31 1-70 2002 2001 % +/- Animal 20 12 67% Traffic 368 323 14% Burglary + Community Contacts* 77 79 -3% Theft + ?0 1? -100% Odor Assault + Fraud Vandalism ?2 ?0 200% Narcotics Liquor Laws Domestics ?0 1? -100% DUls + ® © 33% Accidents 37 49 -24% Noise Complaints 911 Calls 1? ?0 100% Alarms Incident Reports 248 187 33% Total Arrests 24 16 50% * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs http://www.avonpolice.org/html/i-70_2002.html 05/22/2003 Avon Police Department. PO Box 975, 400 Benchmark Road, Avon, CO 81820, (970) 748-4040 Avon Westside 2002 Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Stats 2001 vs. 2000 Stats Stats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bikze Safety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings Job Application News You Can Use If an Officer Stops You Vehicle Registration Page 1 of 3 January 1 through December 31 Avon Westside 2002 2001 % +/- Animal 37 30 23% Traffic 633 809 -22% Burglary + Community Contacts* 429 244 76% Theft + 70 45 56% Odor ?0 22 -100% Assault + 13 13 0% Fraud Vandalism 29 27 7% Narcotics Liquor Laws 22 28 -22% Domestics 23 27 15% DUIs + 11 19 -42% Accidents 42 50 -16% Noise Complaints 192 159 21 911 Calls 143 92 55% Alarms 28 22 -27% Incident Reports 1163 940 24% Total Arrests 89 94 -5% * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs http://www.avonpolice.org/html/avon_westside_2002.html 05/22/2003 Avon Police Department. PO Box 875, 400 Benchmark Road, Avon, CO 81620, (970) 748-4040 Avon Eastside 2002 Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Rats 2001 vs. 2000 Rats Rats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bihe 5afety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings lob Application News You Can Use If an Officer Stops You Page 1 of 3 January 1 through December 31 Avon Eastside 2002 2001 % +/- Animal 63 65 -3% Traffic 860 1048 -18% Burglary + 11 18 -39% Community Contacts* 2630 2370 11 Theft + 222 185 20% Odor 0 10 -70% Assault + 14 17 -18% Fraud 53 91 -42% Vandalism 62 45 38% Narcotics 15 20 -25% Liquor Laws 57 56 2% Domestics 13 18 --28% DUIs + 41 17 141 Accidents 232 227 2% Noise Complaints 70 74 -5% 911 Calls 1034 325 218% Alarms 219 215 2% Incident Reports 2945 2780 6% Total Arrests 220 214 3% * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs http://www.avonpolice.org/html/avon_eastside_2002.html 05/22/2003 Avon Police Department, PO Box 975, 400 Benchmark Road, Avon, CO 81620. (970) 748-4040 Eaglebend/Hurd Lane 2002 Home Page Staff Who's Who? Neighborhood Assignments Employee Values Avon Crime Statistics 2002 vs. 2001 Stats 2001 vs. 2000 Stats Stats By Location Charts and Graphs Activity Update Top 10 Most Wanted Lids for Kids Bile Safety Program Child Safety Seats After School Enrichment Tips Line Crime & Accident Prevention Driving Roundabouts Animal Control Info Odor Ordinance Crime Prevention Programs Jobs Job Openings Job Application News You Can Use Page 1 of 3 January 1 through December 31 Eaglebend/Hurd Lane 2002 2001 % +/- Animal 16 33 -52% Traffic 44 88 -50% Burglary + Community Contacts* 146 251 -42% Theft + 16 26 -38% Odor Assault + ?0 ?2 -200% Fraud ?5 ?2 150% Vandalism © 11 -45% Narcotics Liquor Laws ® 14 -43% Domestics DUls + Accidents 10 15 -33% Noise Complaints 27 54 -50% 911 Calls 21 24 -13% Alarms Incident Reports 304 365 -17% Total Arrests 12 25 E52%- * Foot patrols, bar and business checks, COPPS, citizen and motorist assists, walk throughs 7 E http://www.avonpolice.org/html/eaglebend_hurd_lane_2002.html 05/22/2003 Avon Police Department. PO Box 975, 400 Benchmark Road, Avon, CO 81620. (970) 748-4440 Attachment B Avon Police Department Patrol Officer Allocation By Day of the Week and Work Periods of the Day May 2003 Sunday Monday Tuesday Wednesday Thursday Friday Saturday Avg. % Workload 0700- 1 1 1 3* 2* 2* 2* 7.1 0900 0900- 2 2+ 2+ 3* 2* 2* 2* 14.7 1200 1200- 2 2+ 2+ 3* 2* 2* 3* 10.1 1400 1400- 3* 3'k 3* 5* 3* 3* 4* 17.5 1700 1700- 2* 2* 2* 3* 2* 2* 2* 13.1 1900 1900- 2* 2* 2* 5* 3* Y 3* 11.4 2100 2100- 3* 3* 3* 6* 4* 5* 4* 5.2 2200 2200- 3* 3* 3* 6* 4* 5* 3* 8.8 0000 0000- 2 2 2 5* 4* 4* 3* 4.9 0200 0200- 2 2 2 3 2 2 2 1.9 0300 0300- 2 2 2 3 2 2 2 1.9 0500 0500- 1 1 1 1 1 2 1 2.2 0700 Avg. % 13.9 14.2 13.9 13.0 13.8 15.8 15.7 ** Daily Workload *includes patrol sergeant +chief as patrol supervisor Detective works Monday-Friday; 0900-1800 **Not 100% due to rounding Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Jacqueline Halbumt, Assistant Town Manager J Date: May 22, 2003 Re: Website Discussion Summary: A couple Council members, as well as a few members of the community, have commented recently on our website, www.avon.org. Comments have included: Can we do it cheaper? Why don't we list Avon businesses? Why don't we have something welcoming Home Depot? Why don't we have more links? The short answer is yes, we could probably do it cheaper. And, we can add anything to the website we want to, it just costs money to do so. Background: Back in 1996, Bill James directed staff to work with InternetWorks to create a website. It was up and ready to go in July 1996. About a year later, our former Mayor Jack Fawcett's son, Travis, took over because the Council thought we could do it cheaper. We ended up going back to IntemetWorks after Travis graduated from high school and no longer had the time to do the site. Discussion: There have been many changes to the website over the years. Believe it or not, we started out with only 5 pages. We have the ability to change or add web pages at any time, we just have to pay InternetWorks to do it. We currently have the ability to update the following pages ourselves: Council Agendas, Council Minutes, P&Z Agendas, P&Z Minutes, Job Opportunities, Links and News Releases. If other pages need to be updated, IntemetWorks does so at $125/hour. We normally save or pool changes to all be done at once in an effort to save money. Financial Implications: There are several costs involved in hosting our site with IntemetWorks. We pay $500/year to host the site plus $250/year to host the pages we can update ourselves. We also pay $995/year to have a link on the www.vail.net website. Last year we paid about $1,000 in site changes and updates. Grand total: $2,745. We previously looked at hosting our website internally. Terry Rounds came up with estimates of $12,000-$15,000 to buy equipment, $450 for Cold Fusion, and $200/month for a T1 line. Plus, there would be the same hourly charges to hire a company to create and maintain the site or we could hire an employee to do this for $50,000 a year. First year costs: $67,850. Following years: $52,000. Recommendation: We believe the Council members should first determine what they want from the website and then determine the best way to host it. We haven't done a RFP for services, so I'm not sure what other companies would charge to host and maintain a website compared to our current situation. If Council feels we can save money, we should create a RFP for services. Alternatives: The idea of doing it in house will probably be the most expensive of all. Of course, we could just stay with our current host, IntemetWorks and have them update the site as we deem necessary. We could also more specifically link our site to the Vail Valley Chamber and Tourism Bureau's site, which includes valley-wide lodging, shopping/dining and an events calendar, among other things. Town Manager Comments: 0 Page 2 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Anne Martens, Assistant Town Engineer Norman Wood, Town Engineer fG Date: May 22, 2003 Re: Hurd Lane Street Improvements Estimated Project Costs - Project Budget Summary: The current temporary delineators at the intersection of Hurd Lane and Avon Road for the Right Turn Only are proposed to be replaced with a permanent treatment. The proposed improvements include rotomilling the existing asphalt at the intersection, removing the existing asphalt at the location of the median and the installation of curb and gutter with a hard surface median. A proposed project budget is listed below and would require a budget amendment prior to advertising for construction bids. The proposed budget includes surveying and engineering design to ensure the design meets the required radius for turning movements. Contract Administration will be handled in house. The total estimated project cost is summarized as follows: Engineering (Design/Surveying) $ 3,500 Testing Services $ 750 Construction $ 28,800 Contingencies @ 20 % $ 6,600 Total Estimated Project Cost $ 39,650 We recommend proceeding with acceptance of proposals for the design and surveying work associated with proposed improvements. If council desires to proceed with this project, a Budget Amendment will be presented to council for approval prior to acceptance of a proposal surveying and design services. I:\CIP\Hurd Lane\Cost Est Memo-I.Doc This project would be funded through the Capital Improvement Fund and will not affect the General Fund balance. Town Manager Comments: ' yile-? I-tl-ta(4151' 0 Page 2 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Ruth Borne, Director of Community Development Date May 23, 2003 Re: Chateau St. Claire Summary The L'Auberge, which is commonly known as Chateau St. Claire, is located on a steep, north-facing 5.8-acre parcel on the south side of Hwy 6, between Beaver Creek and the Folsom Tract. In February 1996, Chateau St. Claire LLC, petitioned the Town for annexation and PUD zoning and development plan approval. The proposed project was a 4-story building with 72,000 square feet of floor area devoted to office, retail and restaurant. Residential uses were not included. On September 24, 1996 C ouncil a pproved t he A nnexation (Ordinance 9 6-16) a nd P UD zoning and Development Plan (Ordinance 96-17) with the condition that the parcel be subdivided into two lots: a 2.42-acre development lot (Lot 1) and a 3.38-acre Public Open Space lot (Lot 2). Lot 2 is to be dedicated to the Town of Avon. In July 1997, the applicants received a building permit, which eventually lapsed due to a lack of progress. In August 5, 1998, Council approved a PUD Amendment allowing for 150 hotel rooms or 110 timeshare units with office, retail, restaurant and service commercial uses. The PUD amendment did not alter the design of the building, it simply modified the permitted uses. In September 5, 2000 a revised final design plan was submitted and approved for a 6-story, 118,000 square foot building including 54 condominium units and a restaurant. The condominium units were proposed as a mix of interval ownership, fee simple ownership and employee housing. The revised building design is similar in height and massing to the original design approved in 1996. On September 26, 2000, the Town issued a grading permit to clear debris and topsoil from the site. On August 2001, based upon an approved set of building permit plans and plan review fees, the Town issued a foundation, excavation and retaining wall permit and retained a surety to ensure restoration of the site pending issuance of the complete building permit. A building permit was issued in June 2002, which consisted of 52-timeshare/interval ownership units with a restaurant and spa. Memo to Town Council L'Auberge Due to lack of construction activity on the site, the Town expired the building permit and required the owner/developer to pay half of the building permit fee again to extend the building permit (a provision allowed under the 1997 UBC). In December 2002, the Town issued a new building permit for L'Auberge with specific conditions for construction and development. Based upon the revised conditions for the 2002 building permit, the Owner/Developer was required to commence construction no later than May 3, 2003 and pay a recreational amenity fee in the amount of $58,808.00 and school impact fee in the amount of $11,415.81 for a total of $70,223.81. To date, all impact fees have been paid, a construction trailer placed on the site, and one site inspection and approval obtained. Staff will have a complete building set for your review at the meeting scheduled for May 28, 2003. Town Manager Comments Memo to Town Council L'Auberge Memo To: Honorable Mayor and Town Council Planning & Zoning Commission Thru: Larry Brooks, Town Manager From: Ruth Borne, Director of Community Development Date May 23, 2003 Re: Site Tour in Eagle County Summary: In response to the PUD Amendment filed by the Village at Avon and the potential for a new residential neighborhood on the Vassar Meadows Land Exchange Property, we are proposing a site tour of new attainable residential developments in Eagle County. The site tour will visit the following projects now under construction in Eagle County: • Berry Creek 5"' Filing, Miller Ranch • Chatfield Corners, Gypsum • Village Homes, Eagle Ranch The Planning & Zoning Commission is also invited so that all members can have input on their impressions of these developments. We look forward to seeing all of you there! Town Manager Comment Attac?lrirse ts: Invitation for Eagle County Site Tour Memo to Town Council - April 5, 2003 Page 1 of 1 o IIII ? I o IIII ? I o IIII ? I o 1-211 ? I a IIII ? p I o IIII I p g??? g 9ou arm In,ritod to A site tour of recent attainable housing Developments in Eagle County * Berry Creek, 5th Filing, Miller Ranch * Chatfield Corners, Gypsum * Village Homes, Eagle Ranch Purpose: To become familiar with some of the alternative designs for traditional neighborhoods occurring in our mountain region. When: Tuesday, June 3rd, 12:00pm RSVP: Ruth Weiss, Community Development rweissgavon.org 748.4043 o IIII p I o LI ? I o IIII p I o IIII I? I o III p I o IIII El Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Jacqueline Halburnt, Assistant Town Manager Date: May 22, 2003 Re: "You Are Here" Signs Summary: Our Public Works crew recently installed 10 "You are Here" signs around town. Since the signs have been installed, we've had some concern from the community over the design of the signs. Background: This project was started in early 2002. The original intent behind the signs was geared toward pedestrians. We wanted to direct those who would be walking around Avon's core. People don't generally walk along Nottingham Road or Highway 6 and we didn't anticipate people walking out to the Village, so those areas were not included on the maps. Another decision was to only include retail businesses on the map. The maps were designed so that the panels could be removed and changed as businesses come and go from Avon. These maps were presented to Council and approved. At the time, we realized that we couldn't please everyone and said we would update the maps once a year. We also said if a business came to town and wanted to be on the map before our annual update, the business could pay to have the panels changed. Discussion: We have since placed a sign at the temporary information site at the Village at Avon. The sign is a little awkward because the Village isn't depicted on it. I've had one merchant extremely upset because she was inadvertently left off the map and one business owner from Nottingham Road feeling "left out." Robin Litt with the Chamber expressed that she had spoken with several businesses from Nottingham Road and Highway 6 who weren't happy about not being on the map. Financial Implications: The signs cost $20,000. To replace panels by adding or deleting a business costs around $1,700. For a complete redesign to include Nottingham Road, Highway 6 and the Village, it would cost another $1,200. Recommendation: We believe the Council members should determine if the original intent of the signs should remain or if they should be redesigned to include all of Avon retail businesses. Town Manager Comments: /?-121 TOWN OF AVON REGULAR COUNCIL MEETING AGENDA MAY 27, 2003 - 5:30 PM 1. Call to Order/ Roll Call 2. Citizen Input 3. Ordinances Public Hearing - Second Reading a. Ordinance No. 03-08, Series of 2003, An Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon) (Norm Wood) b. Ordinance No. 03-09, Series of 2003, An Ordinance Amending Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public Service Company of Colorado. (Scott Wright) 4. Resolutions a. Resolution No. 03-20, Series of 2003, a Resolution approving and authorizing execution of the pipeline crossing agreement with the Union Pacific Railroad Company as required for completion of the Buck Creek Stormwater Drainage Project in the Town of Avon, Colorado (Norm Wood) 5. New Business 6. Other Business 7. Unfinished Business 8. Town Manager Report 9. Town Attorney Report 10. Mayor Report 11. Consent Agenda a. Approval of the May 13, 2003 Regular Council Meeting Minutes b. July 4th Salute - Band Contract with Bay City Rollers Band c. July 4th Salute - Band Contract with Aubrey Collins 12. Adjournment Avon Council Meeting. 03.05.27 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer,.;,.'.. Ruth Borne, Director of Community Development'. 51 Date: May 22, 2003 Re: Ordinance No. 03-08, An Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon) - Second Reading (Public Hearing) Summary: Ordinance No. 03-08 Approves the Second Amendment to the Annexation and Development Agreement for The Village (at Avon). The First Amendment to the Annexation and Development Agreement was approved November 13, 2001. The Second Amendment changes the Highway 6 Exaction requirement and replaces it with a Highway 6 Trail Exaction requirement. The Highway 6 Exaction required participation in the cost of constructing roundabouts at the intersections of Stone Creek Drive and Highway 6 and at Eagle Road and Highway 6. The maximum participation required was $250,000 per roundabout. The Highway 6 Trail Exaction is for participation up to $200,000 toward the design and construction costs for sections of a proposed pedestrian trail system along Highway 6. The Highway 6 Trail Exaction is proposed in conjunction with an Intergovernmental Agreement Between the County of Eagle, State of Colorado and Traer Creek Metropolitan District and Eagle-Vail Metropolitan District for the Construction of Pedestrian Trail Improvements Along Highway 6. The Highway 6 Exaction was included in the original Annexation and Development Agreement to address concerns expressed by Eagle-Vail residents regarding anticipated traffic problems on Highway 6. The Highway 6 Trail Exaction requires modification of the Annexation and Development Agreement to address current concerns expressed by Eagle-Vail residents through their Metropolitan District Board and the Eagle County Commissioners regarding construction of sections of pedestrian trail along Highway 6. IAAvon Village\1.0 Geneiul\l.2 Agreerrents\Dev Agmnt-2nd Amndmnt\Ordinance No 03-08 Mena-2.Doc This Ordinance was approved on First Reading at the May 13, 2003 Town Council meeting. We recommend Second Reading approval of Ordinance No. 03-08, Approving The Second Amendment to the Annexation and Development Agreement for The Village (at Avon). Recommendation: Approve on Second Reading, Ordinance No. 03-08, Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon). Proposed Motion: I move to approve Ordinance No. 03-08, An Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon) on Second Reading. Town Manager Comments: 0 Page 2 TOWN OF AVON. COLORADO ORDINANCE NO. 03-08 SERIES OF 2003 AN ORDINANCE APPROVING THE SECOND AMENDMENT (THE "SECOND AMENDMENT") TO THE ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) WHEREAS, the Town of Avon (the "Town") and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"), and Traer Creek LLC, a Colorado limited liability company, EMD Limited Liability Company, a Colorado limited liability company (collectively, the "Owner), have negotiated the terms and conditions of the Second Amendment, which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the Town has timely posted notice of the dates and times of the meetings at which the Town Council considered the Second Amendment; and WHEREAS, the proposed full text of this Ordinance was duly published by posting in the office of the Town Clerk and in three (3) additional public places within the Town, and said publication also set forth the date and time of the public hearing at which the Town Council considered the Second Amendment; and WHEREAS, an Intergovernmental Agreement Between the County of Eagle, State of Colorado and Traer Creek Metropolitan District and Eagle Vail Metropolitan District for the Construction of Pedestrian Trail Improvements Along Highway 6 dated April 22, 2003 (attached hereto as Exhibit "B) requires modification of the terms and conditions of the Highway 6 trail exaction; and WHEREAS, approval of the Second Amendment is in the best interest of the public health, safety and general welfare of the people of the Town; and WHEREAS, the Town Council held a public hearing concerning the Second Amendment, and by this Ordinance sets forth its findings and conclusions. THE TOWN COUNCIL MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS: 1. The Second Amendment complies with all applicable laws and regulations of the State of Colorado and the Town, including, without limitation, Article 68 of Title 24, C.R.S. 2. All notices required for the public hearing at which the Town Council considered the Second Amendment were properly and timely published, posted or mailed in accordance with all applicable laws and regulations of the State of Colorado and the Town. 3. The public hearing held on the Second Amendment was conducted in accordance with all applicable laws and regulations of the State of Colorado and the Town. 4. The Town has authority to enter into the Second Amendment pursuant to Sections 24-68-104(2) and 31-15-101, C.R.S., and pursuant to Section 17.14.100 of the Avon Municipal Code. 5. Pursuant to Section 24-68-103(1), C.R.S., approval of the Second Amendment will not restrict, impair, enlarge, or otherwise modify either the term or the scope of the vested property rights associated with the Development Agreement. 6. The Town's approval of and entering into the Second Amendment is in the best interests of the public health, safety and general welfare of the people of the Town. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, A. The Second Amendment is hereby approved, and the Town shall enter into it and perform its obligations. B. The Mayor of the Town is hereby directed to sign the Second Amendment on behalf of the Town. C. Within fourteen (14) days after passage on Second Reading of this Ordinance, the Town Clerk is hereby authorized and directed to publish the full text of this Ordinance in a newspaper of general circulation within the Town. The effective date of this Ordinance shall be seven (7) days after publication of the notice described in Section C above. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED PUBLISHED this 13th day of May, 2003, and a public hearing on this Ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 27th day of May, 2003, at 5:30 p.m. in the Avon Municipal Complex, 400 Benchmark Road, Avon, Colorado. Town of Avon, Colorado Town Council n I/ ?4 A-A I Albert D. Reynolds, M yor 2 f? ATTEST: t, x Platty cKenny, Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED THIS 27th DAY OF May, 2003. Town of Avon, Colorado Town Council . Albert D. Reynolds, Mayor ATTEST: Patty McKenny, Town Clerk APPROVED AS TO FORM: Town Attorney 576178.1 J EXHIBIT A SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT This SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT (this "Second Amendment") is made as of , 2003, by and between TRAER CREEK LLC, a Colorado limited liability company ("Traer"), EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company ("EMD"), and the TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town"). RECITALS A. Traer and EMD (collectively, "Owner") and the Town have previously executed that certain First Amendment to Annexation and Development Agreement dated as of November 13, 2001, and recorded in the Eagle County, Colorado, real property records at Reception No. 779049 on December 10, 2001 (the "First Amendment"), which First Amendment amended that certain Annexation and Development Agreement dated as of October 13, 1998, and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on November 25, 1998 (the "Original Agreement"). The Original Agreement, as so amended, is referred to in this Second Amendment as the "Agreement." B. The Agreement pertains to certain real property generally known as The Village (at Avon), and more particularly described in Exhibit A attached to the Agreement (the "Property"). C. Section 1.4 of the Agreement provides, 'inter alia, that amendments to the Agreement must be effected in a writing signed by the Town and Owner. Section 1.4 of the Agreement further provides that the term "Owner" for purposes of amending the Agreement means "only the signatories to this Agreement constituting Owner and those parties, if any, to whom such signatories have specifically granted, in writing, the power to enter into such amendment." As more particularly set forth in Recital B of the First Amendment, EMD (with respect to Planning Area M) and Traer (with respect to the remainder of the Property) constitute Owner for purposes of amending the Agreement. D. Subsequent to execution of the Agreement, portions of the Property have been subdivided as more particularly described in the Final Plat, The Village (at Avon) Filing 1, recorded in the Eagle County, Colorado, real property records on May 8, 2002, at Reception No. 795007 ("Filing 1"), and the Final Plat, The Village (at Avon) Filing 2, recorded in the Eagle County, Colorado, real property records on May 29, 2002, at Reception No. 796831 ("Filing 2"). Additionally, certain portions of the Property have been conveyed to other entities and individuals so that the current owners of the Property as of the date of this Second 569662.4 MLAYER 05/9/03 1:23 PM Amendment are: EMD; Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"); Traer Creek-WMT LLC; Traer Creek-HD LLC; Traer Creek-RP LLC; Buffalo Ridge Affordable Housing Corporation; Buffalo Ridge II LLLP; Eric Applegate; Shane Bohart; Mark Evans; Ray Pittman; and William J. Post, as their respective interests appear of record. E. Each of the conveyances referred to in Recital D above was made subject to the terms and conditions of the Agreement, including, without limitation, Section 1.4 of the Agreement. None of the conveyances referred to in Recital D above were accompanied by a specific written grant of the power to amend the Agreement as provided in Section 1.4 of the Agreement. Accordingly, with the exception of the Town, EMD and Traer, no owner of any real property constituting the Property or other person or entity has been granted any power to amend the Agreement. As provided in Section 1.4 of the Agreement, no person or entity other than the Town, EMD and Traer is required to execute or acknowledge an amendment to the Agreement as a condition of such amendment being effective and binding on all parties to the Agreement and all owners of real property constituting the Property. F. The District, while not an Owner for purposes of amending the Agreement, has expressly assumed and undertaken the performance of certain obligations of the Owner under the Agreement, as more particularly set forth in the First Amendment. G. The District, the County of Eagle (the "County"), and Eagle-Vail Metropolitan District ("EVMD") have executed a letter of understanding dated October 22, 2002, which contemplates that the District, the County, and EVMD will cooperate in the financing and construction of certain pedestrian trail system improvements on portions of Highway 6 that abut or are in the immediate vicinity of the Property. The undertakings described in the letter of intent are expressly conditioned on, inter alia, the Town's agreement that Owner and the District be relieved from any further obligation under the Agreement with respect to the Highway 6 Exaction (as defined in the Original Agreement) in consideration of the District undertaking the obligations contemplated by the letter of intent. In order to facilitate the foregoing, the Town and Owner desire to modify certain terms and conditions of the Agreement relating to the Highway 6 Exaction, as set forth in this Second Amendment, and the District wishes to acknowledge and affirm its agreement to perform the obligations described in the letter of intent, pursuant to and as more particularly set forth in this Second Amendment. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the Town and Owner, as more particularly set forth herein, and in consideration of other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Town and Owner covenant and agree as follows: 1. Defined Terms. Unless otherwise defined in this Second Amendment, capitalized terms used herein shall have the meanings ascribed to them in the Agreement. 569662.4 MLAYER 05/9/03 1:23 PM 2 2. Amendments. The Agreement is hereby modified as follows: (a) Section 1.1.19 is amended and restated to read in its entirety as follows: Highway 6 Trail Exaction: As defined in Section 4.3(g). (b) Section 4.3(g) is amended and restated to read in its entirety as follows: (g) Subject to all required rights-of-way, easements, permits, and approvals having been obtained, and further subject to the County of Eagle and Eagle-Vail Metropolitan District having appropriated the requisite funds to finance their respective portions thereof in the manner described below, the District will contribute the . lesser of (i) 40% of the design and construction costs, or (ii) $200,000 (the "Highway 6 Trail Exaction"), toward the construction of segments 1 through 3, inclusive, of a proposed pedestrian trail system on Highway 6 anticipated to be designed over the winter of 2003 and constructed in the summer or fall of 2003. The County of Eagle will administer design and construction related activities for the improvements to be constructed in connection with the Highway 6 Trail Exaction. Funding, and the location, specifications, and other agreements with respect to the design, construction and funding of the Highway 6 pedestrian trail improvements are more fully set forth in that certain Intergovernmental Agreement for Pedestrian Trail dated as of April 22, 2003, by and between the County of Eagle, Eagle-Vail Metropolitan District, and the District. (c) Section 4.3(h) is amended and restated to read in its entirety as follows: (h) Except for the East Avon Exaction, the Chapel Place Exaction, the Swift Gulch Road Improvements, the Public Works Dedication, the East Beaver Creek Boulevard Improvements, the School Site Dedication and the Highway 6 Trail Exaction, neither Owner, the Public Improvement Company nor the District shall be required to pay or provide for any exactions, dedications or the like for any development or subdivision approvals relating to the Project, except as may be otherwise specifically set forth in the PUD Guide. The expenses and fees described in subsection 4.3(e) shall be the only amount required to be paid by Owner, the Public Improvement Company and the District to the Town (other than the East Avon Exaction, the Chapel Place Exaction, the Swift Gulch Road Improvements, the Public Works Dedication, the East Beaver Creek Boulevard Improvements, the School Site Dedication and the Highway 6 Trail Exaction) in connection with the Town's effectuating the Final Approval. 3. Effect of Amendment. Except as expressly modified by this Second Amendment, the Agreement is umnodified, and is hereby ratified and affirmed, and shall remain in full force and effect in accordance with its terms. If there is any inconsistency between the terms of the Agreement and the terms of this Second Amendment, the provisions of this Second Amendment shall govern and control. 569662.4 MLAYER 05/9/03 1:23 PM J 4. Governing Law. This Second Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. 5. Counterparts. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Town and Owner have executed this Second Amendment as of the day and year first set forth above. OWNER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Magnus Lindholm Title: Manager EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: LAVA CORPORATION, a Colorado corporation, its Manager By: Name: Magnus Lindholm Title: President THE TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado Name: Title: Mayor 569662 .4 MI LAYER 05/9/03 1:23 PM 4 Approved as to legal form by: Name: Title: Town Attorney AND IN WITNESS WHEREOF, the District hereby acknowledges and agrees to perform its obligations as set forth in this Second Amendment. THE DISTRICT: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: _ Name Title: Shane Bohart President ATTEST: By: Name: Title: Secretary 569662.4 MLAYER 0519/03 1:23 PM STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 200_, by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO COUNTY OF EAGLE ss: The foregoing instrument was acknowledged before me this day of , 200_, by Magnus Lindholm, as President of LAVA Corporation, a Colorado corporation, as Manager of EMD Limited Liability Company, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 200_, by as Mayor of the Town of Avon, a municipal corporation of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public 569662.4 NfLAYER 05/9/03 123 PM 6 STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 200_, by Shane Bohart as President of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public 569662.4 MLAYER 05/9/03 1:23 PM 7 SENT BY-OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2,29PM ; OTTEN JOHNSON- t9707484075;# J/ 9 ,....? ...., . , ?ua_ ayi_ q??K1.:s Mr(itu dy S 1 sne.ros, Pr Trish Msgm)d-?3039256525 218 I 131-F ?t?..?. ar. A.. INTERGOVFR'VMENTAL AGREEMENT BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO X135,0-34) g AND Sir TRAER CREEK METROPOLITAN D.ISTMICT AND EAGLE-VAIL METROPOLITAN DISTRICT FOR THE CONSTRu(_ ION OF PEDESTRIAN TRAIL IMPROVEMENTS ALONG HIGHWAY 6 This Intergovernmental Agreement is made acrd entered into this;- clay off'' X:. 2003, by and between the County ofF.agle, States of Colorado, a body co orate /' and politic, by and through its Board of County Commissioners (hereinafter "County") and Traer Creek Metropolitan District, a Colorado Special District, acting by and through its Board of Directors (hereinafter "Traer Creek") and Eagle-Vail Metropolitan District, a Colorado Spacial District, acting by and through its Board of Directors (hereinafter "Eagle-Vail"). Collectively these entities are also referred to as the "Parties." WHEREAS, the Constitution and laws of the State of Colorado permit and encourage Inew governmental entities to cooperate with each other to make the most efficient and effective use of their powers and responsibilities; and WHEREAS; the Parties enter into this Agreement under the authority of local govemments of the State of Colorado to contract with one another. C_R.S. § 29-1-201, et seq., Article XIV, Section 18 of the Colorado Constitution; and WHEREAS, the Parties to this Agreement desire to share the costs for the construction of a Pedestrian trail system on Highway 6 (hereinafter the "Trail Improvements") which will benefit the residents and taxpayers of each cif the Parties to this Agreement; and WHEREAS, the Trail improvements are defined as the engineering design, surveying, and construction of, including all necessary pennits and approvals, a pedestrian path approximately one (1) inile in length. 'Ibis path shall be constructed along State k-lighway 6 from its intersection with Eagle Vail Road (approximate Milepost 171) cast to the terminus to be located approximately at the "mini Eisenhower" golf cart tunnel under State Highway 6; and WHEREAS, it is understood and agreed by the Parties that the anticipated costs of construction of the Trail Improvements shall be allocated as follows- 40% Traer `.reek; 35% Eagle- Vail; and 25% the County; and WHEREAS, the total maximum projected cost For the construction of the Trail Improvements is $500,000; and WHEREAS, the Parties acknowledge that all Patties' participation in the 't'rail Improvements is conditioned upon the receipt of the Town of Avon's agreement that neither Traer Received 05-117-03 10:57 Frole-303.592.1385.3 Ta-OTTEN JOHNSON ROBINS Pace 002 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:29PM ; OTTEN JOHNSON-] t9707484078;# 4/ 9 . .- ••? rau_,,f)Yl_4_186-3 Mcarndy Slsncro4, Pc I'rISh Osgnod?3038256525 3/8 Creek nor any other party to the Annexation Agreement (as described in Paragraph 5) shall be obligated Lo provide funding for the construction of Future Roundabouts (as described in Paragraph 5) and upon receipt of 13N'P Paribas' consent to the amendment of the Annexation Agreement- AGREEM hNT NOW, THEREFORE, for and in consideration of the mutual proinisee and other consideration contained herein, the adequacy of which i5 hereby acknowledged, the Parties agree as follows: L DESCRIPTION OF TRAIL IMPRO VEMENTS. The Trail Improvements are defined as the engineering design, surveying, and construction of, including all necessary permits; and approvals, a pedestrian path approximately one (1) mile in length. This path shall be constructed along State Highway 6 from its intersection with Eagle Vail Road (approximate Milepost 1'71) east to the terminus to be located approximately at the "mini Eisenhower" golf can tunnel under State Highway 6. The portion of the Trail Improvements which begins at Stone Creek and tuns east to the "mini Eisenhower" golf can tunnel will be designed and constructed on the south side of State Highway 6. The Parties have determined that the Trail Improvements will benefit the residents and taxpayers of each entity which is a parry to this Agreement and that it would be beneficial for the Trail Improvements to be designed during the winter of 2002-2003 and constructed during the summer of'2003. The costs of the design and construction ofthe Trail Improvements shall be shared by the Parties to this Agreement as set forth in Paragraph 2. 2. COST SHARING. It is understood anti agreed by the Parties that the costs of construction of the Trail Improvements shall be allocated as follows: 40% Traer Creek; 35% Eagle- Vail; and 25% the County. It is further understood that County will contribute the engineering, design, surveying, and construction management of the Trail Improvements in addition to its 25% cash contribution to the construction of the Trail Improvements. The total maximum projected cost for the construction of the Trail Improvements is $500,000_ Based upon the total maximum projected costs, each party's total maximum financial commitrncnt shall be as follows: Truer C:r=k- contributes $200,000; Eagle-Vail contributes $175,000; and the County contributes S 125,000. The Parties agree that the maximum obligation of Truer Creek, Eagle-Vail and the County are the amounts set forth abort tmd Lhut such Patties shall not be deemed to owe their percentage for an amount greater than the anticipcted total project cost of $500,000, unless an altar-native agrce_ment is entered into in writing by the Parties- In the event that the total costs are less than $500,000, each party's share shall be reduced based on the percentage allocation set forth above. 3. APPROPRIATION OF FUNDS. In order to allow for construction of the Trail Improvements to occur in 2003, the Parties agree as follows: A. County sh1.11 appropriate, upon approval by the l3oard ofC.ounty Commissioners, $500,000 for this project to be funded in March. 2003. County's maximum obligation to the construction of the path is $125,000, however County will enter into a construction contract and shall guarantee the total amount ofthis contract with the 2 Received 05-07-03 10:51 from-303.592.d385.3 To•-OTTEN JOHNSON ROBINS page 003 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM OTTEN JOHNSON- +9707484078;# 5/ 9 - •'""'y? °?nr.a MCGendy S1annros, Pr: Trish (Isgood -+303825652.5 418 undersl3nding that Traer Creek and Eagle-Vail shall appropriate and deliver to County their agreed upon contributions as set forth herein; B. Traer Creek, shall appropriate, upon approval of its Board of Directors, $200,000 for this project, which will include 54,000 for its attorney's fees. The amount of $196,000 will be funded and remitted to the County in late September, 2003, subject to the satisfaction of the conditions set forth in Paragraph 5; C:: Eagle-Vail shall appropriate, upon approval of its Board of Directors, $175,000 to be funded in late September, 2003, subject to the satisfaction of the conditions set forth in Paragraph 5, 4. FUNDING OF THE PROJECT. The County, Traer Creek and Eagle-Vail each individually represents and warrants to the other parties that upon approval of its Board and at the time specified above, it will appropriate ana deliver to County to be placed in a segregated or designated accuunt or subaccount ("funding Account") sufficient funds to meet its financial obligations hereunder. S. ANNEXATION AGREENIENT. The Parties to this Agreement acknowledge that pursuant to that curtain Annexation and Development Agreement dated 1998, and subsequently runended, among the Town of Avon, Traer Creek and certain private: parties (hereinafter the "Annexation Agreement"), Traer Creek is obligated to cooperate with Eagle-Vail or some other appropriate enti ty in the construction of two (2) roundabouts at the intersection of Stone Creek Drive and Highway 6 and at the intersection of Eagle Road and Highway 6 (hereinafter "Future Roundabouts") up to a maximum of $250,000 per roundabout. The Parties acknowledge that all Parties' participation in the Trail Improvements is conditioned upon the receipt of the 'rower of Avon's agreement that neither Traer Creek nor any other party to the Annexation Agreement shall be obligated to provide fi ending for the Future Roundabouts and upon receipt of the consent of BNP Paribas to this amendment of the Annexation Agreement- 6. ADMINISTRATION OF PROJECT. The County shall administer any design and construction related activities pertainine to the project in a diligent, good. workmanlike and timely manner. The County shrill prepare a construction budget and construction schedule for the project and iqubmit it to Traer Creek and Eagle-Vail prior to construction. It shall submit to Traer Creek and Eagle-Vail written monthly status reports and be available to meet monthly (ifneeded) to report and answer questions regarding the status of the construction budget and the construction schedule. All Parties to this Agreement shall have an opportunity to review and provide input un the design and plans for the Trail Improvements. Such input shall be provided within thirty (30) days of receipt of the design and/or places- 7. FINAL RECONCILIATION. Within thirty (30) days of "Substantial Completion" (dt+fined }terem as the date upon which the County determines that the Trail Improvements are substantially complete) of the 'f'rail lrnproveencnts, the County shall prepare and present to Traer Creek and Eagle-Vail is final reconciliation ("Final Reconciliation") setting forth the project costs 3 Received 05-07-03 10.57 From-303.592,4305.3 To-OTTEN J01iNSON ROBINS page BOA SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OTTEN JOHNSON- t9707484078;# 6/ 9 '""-'yf-At-iX 1.J McGnady Sisnerns. Pc Tr1Sh Osgood-?303R256.525 5J8 and expenditures. If upon Suhstantial Completion excess money is available in the Funding Account, the County shall, within thirty (30) days of Substantial Completion, remit payment In all parties based on each party's percentage allocation of costs set forth in Section 2 herein. S. STATUS AFTER COMPLETION. Upon Substantial Completion the County shall own the Trail improvcments. Maintenance of the Trail Improvements will be funded pursuant to future arrangements between the County and Eagle-Vail. Traer Creek will have no maintenance responsibilities for the Trail Improvements, nor will Traer Creek own the Trail fmprovetnents. 9. ASSIGNA BILIT'Y. This Agreement may not be assigned or delegated without the prior written consent of the Panics. 10. RELATIONSHIP OF TIM PARTIES. By executing this Agreement, no parry shall be deemed to assume any liability for intentional or negligent acts, ernors, or omissions of another parry or any officer or employer thereof: No agent, employee or volunteer of any party hereto shall be deemed an agent, employee or volunteer o F any other party under this Agreement. Nothing herein is intended to or waives any party's immunities at law, including provisions of the Govemmental Tmmunity Act. 1.1. NO TURD PARTY BENEFICIARIES. Nothing in this Agreement is intended to create or grant to any third party or person any right or claim for damages or the right to bring or rrfaintain any action at law, nor does any party waive its immunities at law, including immunity granted under the Colorado Governmantal Immunity Act. 12. NONWAIVER OF RIGHTS. No waiver of default by the Parties of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other Parties shall be construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed,. kept and observed by the other Parties. 13. .SEVERABILITY. It is understood and agreed by and between the Parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, orotherwiac appears to be invalid, such invalidity shall not affect the validity of a»y other covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice any of the Parties in their respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 14. INTEGRATION. This Agreement is intended as the complete integration of all understandings, between the Parties and constitutes the entire Agreement between the Parties hereto. No prior or contemporaneous addition, deletion or other amendment shall have any force of effect, unless embodied herein in writing- 4 Received 05-07-03 10:57 Fran-303,592.4385.3 . TO-OTTEM JOHNSON ROBINS page 005 StA'1'.BY:O'ITEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OTTEN JOHNSON- t9707484078;# 7/ 9 - ..,va_nsc.wan?..? Mrtic:ady Sisneros, Pc 'rr1sh 0590001-1 ?:W38256?25 6/R 15. MODIFICATION. Modification or waiver of this Agreement or of any covenant, condition, or provision herein contained shall not be valid unless in writing and duly executed by the Parties hererrt. 16. CAPTIONS. The headings and sections and paragraph, are included only for convenience and reference. If any conflict between any heading and the text of this Agreement exists, the text shall control. 17. INDEMNIFICATION. To the extent allowable by state law, the Parties agree that each shall indemnify the other, their officers, employees and agents from and against any claims, damages, losses or expenses which are the result of negligent acts or omissions of their respective officers, employees or agents in connection with this Agreement, 13. GOVERNING LAW AND JURISDICTION. This Agreement and all disputes arising hereunder shall be governed by the internal laws of the State of Colorado and the Parties agree that venue and jurisdiction over any claim arising from this Agreement shall lie in the courts of the Fifth Judicial District of Colorado. In the event of litigation, the prevailing party shall be entitled to its attorney's fees and costs. 19. APPROPRIATION LIMITATION. The Parties hereto agree that this Agreement is contingent upon all funds necessary far the performance of this Agreement being budgeted, appropriated and otherwise made available at the times set forth in Paragraph 3. It is expressly understood that any financial obligations that may arise hereunder, whether direct or contingent, shall only extend to payment of monies duly and lawfully appropriated by the goycrning body of each of the Parties. Should any of the Parties tail t4 undertake the project because necessary funds have not been budgeted or duly appropriated, this Agreement ttnay be terminated by any of the Parties to this Agreement. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement, nor shall any payment be made in respect of any period after any December 31 of each calendar year during the term of this Agreement, without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with applicable provisions of law. 20. NOTICE. Any written notice required by this Agreement shall be deeined delivered on she happening of'any ol't10e fr.)llowing: (1) hand delivery to the person at the address below; (2) delivery by facsimile with confirmation of receipt to the fax number below; or (3) within three (3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: (1) Eagle County Eagle County Attorney P.Q. Box 850 Eagle, Colorado 81631 Fax: (970) 328-8699 Phone: (970) 328-8685 Reemlved 05-07-03 10:57 From-303.582.4385.3 To-OTTEN JOHNSON ROBINS Pase 006 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2=31PM OTTEN JOHNSON +9707484078;# 8/ 9 _.- .. _.... .. _.,. m Jua_avr.4.fif7_.7 McGoady Slgncras, rc Trish M900d-?3038256525 7/8 and (2) Traer Creek Metropolitan District Board of Directors Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, Colorado 80228 Fax: (970) 748-8900 Phone: (970) 949-6776 and (3) Eagle-Vai11V1etropolitan District Board of Directors F.agln- Vail Metropolitan District P.O. Box 5660 Avon, Colorado 81620 Fax: (970) 949-5400 Phunc: (970) 949-0520 All Parties shall have the right, by giving written notice to the others, to change the address at which its notices ere to be received. 6 Received 05-07-03 10:57 From-303.592.4305.3 To-OTTEN JOHNSON ROBINS Pale 007 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:31PM OTTEN JOHNSON t9707484078;# 9/ 9 T _1 -298.9-o)vl-4_JXb.3 McGrndy SIsnPl'c)v, PC 'rrlsh nsgood-1-3038256525 R/R ?N WITNESS WHEREOF, the Parties hereto have affixed their signatures thins 'Oy of t?,?- 2003. aS Bh4rxi ATTEST: s C erk to the AoiWd- of ' County Commissioners ATTEST: ATTEST: 62?,?? COUNTY OF EAGLE, STATE OF COLORADO By and/Through Its BOARD OF COUNTY Ct)Mlv[IC?Ir1lvRUd By: Mic;hae! L. Gallagher, Received 05-07-03 10:57 From-303.582.4305,3 TRAFP, CRELK METROPOLITAN DISTRICT By: EAGLE-VAIL METROPOLITAN DISTRICT By: ( Z? 7 Ta-0TTEN JQIINSON ROBINS PHire 008 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Scott Wright, Finance Director Date: May 22, 2003 Re: Ordinance to Extend Gas Franchise Summary: An ordinance to extend for one year the Town's gas franchise agreement with Xcel Energy (formerly Public Service Co.) will be presented for second reading this Tuesday. This will be a public hearing. The Town's current gas franchise agreement expires May 24'1'. The original franchise was adopted in 1983. There have been a number of changes in the industry, including partial deregulation, over the past twenty years. The one-year extension will give Town staff and Xcel an opportunity to thoroughly review the provisions within the current agreement and begin negotiations for a new franchise agreement. In addition, the Colorado Municipal League has been working with Xcel to create a model franchise agreement that could be used by Colorado municipalities. Recommendation: I recommend that the Council adopt on second reading the above referenced ordinance. Town Manager Comments: i Page 1 ORDINANCE NO. 03-09. SERIES OF 2003 AN ORDINANCE AMENDING ORDINANCE NO. 83-20, SERIES OF 1983, GRANTING A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,COLORADO: Section 1. Section 3 of Article VI of Ordinance No. 83-20, Series of 1983, is amended to provide as follows: "Section 3. Term-Effective Date. This ordinance shall be in full force and effect from and after its passage, approval and publication, as required by law, and the terms, conditions and covenants hereof shall remain in full force and effect through May 31, 2004." INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED the 13th day of May, 2003, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on the 27th day of May, 2003, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Albert D. Reynolds, May ATTEST: c P tty cKenny, Clerk INTRODUCED, FINALLY APPROVED, PASSED ON SECOND READING AND ORDERED POSTED the 27th day of May, 2003. Albert D. Reynolds, Mayor ATTEST: Patty McKenny, Town Clerk APPROVED AS TO FORM: John W. Dunn, Town Attorney Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager r- From: Norm Wood, Town Engineer,," Anne Martens, Assistant Town Engineer Date: 5/22/03 Re: Buck Creek Stormwater Drainage Project / Railroad Crossing Agreement Resolution No. 03-20, Series of 2003 Summary: The Union Pacific Railroad Company requires execution of the attached Pipeline Crossing Agreement for the installation of two proposed 48-inch underground drainage pipelines crossing railroad property. This installation is a necessary part of the Buck Creek Stormwater Drainage Project. The railroad also requests a resolution authorizing the execution of this document. Attached Resolution 03-20, Series of 2003 approves and authorizes the execution of this Agreement. The costs associated with this agreement will be covered by the project contingency fund. We recommend approval of Resolution 03-20, Series of 2003, A Resolution Approving and Authorizing Execution of a Pipeline Crossing Agreement with the Union Pacific Railroad Company as Required for Completion of the Buck Creek Stormwater Drainage Project in the Town of Avon, Colorado. Recommendations: Approve Resolution 03-20, Series of 2003, A Resolution Approving and Authorizing Execution of the Pipeline Crossing Agreement with the Union Pacific Railroad Company as Required for Completion of the Buck Creek Stormwater Drainage Project in the Town of Avon, Colorado. Town Manager Comments: C:\Documents And Settings\Nwood\Local Settings\Ternporary Internet Files\OLK2\Pipeline Resolution McIDO.Doc TOWN OF AVON RESOLUTION NO. 03-20 SERIES OF 2003 A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF THE PIPELINE CROSSING AGREEMENT WITH THE UNION PACIFIC RAILROAD COMPANY AS REQUIRED FOR COMPLETION OF THE BUCK CREEK STORMWATER DRAINAGE PROJECT IN THE TOWN OF AVON, COLORADO WHEREAS, the Union Pacific Railroad Company requires a Pipeline Crossing Agreement for the installation of the two proposed 48-inch underground drainage pipelines crossing railroad property; and WHEREAS, the installation of the two proposed 48-inch underground drainage pipelines crossings of railroad property is necessary to complete the Buck Creek Storm Drainage Project. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Pipeline Crossing Agreement between the Town of Avon and the Union Pacific Railroad Company for the installation of two (2) 48- inch Underground Drainage Pipelines Crossing of Railroad Property at Mile Post 308.38 on the Tennessee Pass Subdivision at or near Avon, Eagle County, Colorado is hereby approved and execution is authorized by the Town of Avon, Colorado. ADOPTED THIS DAY OF MAY, 2003. TOWN COUNCIL TOWN OF AVON, COLORADO Albert D. Reynolds, Mayor ATTEST: Patty McKenny Town Clerk C:\Documents And Settings\Nwood\Local Settings\Temporary Internet Fi1es\0LK2\Pipeline Agmnt Resolution.Doc May 1, 2003 Folder No. 02152-42 NORMAN WOOD TOWN OF AVON P.O. BOX 975 AVON, CO 81620 Re: Proposed Underground Storm Runoff Pipeline Crossing Consisting of Two (2) 48-inch steel pipelines on and across Railroad Property at Mile Post 308.38 on the Tennessee Pass Subdivision at or near Avon, Eagle County, Colorado. Dear Mr. Wood: Attached are duplicate originals of an agreement covering your use of the Railroad Company's right of way. Please execute or arrange for execution of the attached document and have the signatures witnessed or attested, as indicated. Please RETURN ALL COPIES of the document for execution on behalf of the Railroad Company in, the enclosed self-addressed envelope. Your copy of the fully- executed document will be returned to you, if approved by the Railroad Company. Also, please provide a resolution or other authorization for the party executing the documents, and Insurance Certificates, as required by the agreement. Also attached is Contractor's Right of Entry Agreement which must be executed and returned in accordance with the attached agreement, if work is to be performed by a contractor. Payment in the amount of Six Thousand Seven Hundred Forty Dollars ($6,740.00) is due and payable upon your execution of the agreement. Please include your check, with Folder No. 02152-42 written on the front, made payable to Union Pacific Railroad Company, with the return of the documents. This agreement will not be accepted by the Railroad Company until the initial payment is received and all Insurance Certificates are in proper form. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Service's policy regarding Form 1099, I certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. If we have not received the executed documents within six months from the date of this letter, this proposed offer of an agreement is withdrawn and becomes null and void. Real Estate UNION PACIFIC RAILROAD 1800 Farnam Street, Omaha, NE 68102 fx. (402) 997-3601 Please contact me with any questions or concerns at (402) 997-3498. Sincerely yours, Bill Ince Manager - Contracts PL X 940206 Form Approved, AVP-Law Folder No: 02152-42 PIPELINE CROSSING AGREEMENT Mile Post: 308.38, Tennessee Pass Subdivision Location: Avon, Eagle County, Colorado THIS AGREEMENT is made and entered into as of May 1, 2003, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and the TOWN OF AVON, a Colorado municipal corporation, whose address is P.O. Box 975, Avon, Colorado 81620 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of SIX THOUSAND SEVEN HUNDRED FORTY DOLLARS ($6,740.00). Article II. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one underground storm runoff pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated February 7, 2003, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Article III. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article V. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B-1, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder No. 02152-42, issued by its insurance carrier confirming the existence of such insurance and that the policy or policies contain the following endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the 'Pipeline' located on Railroad right-of-way at Mile Post 308.38 on the Tennessee Pass Subdivision, at or near Avon, Eagle County, Colorado. B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No. 02152-42 Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Article VI. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VII. SPECIAL PROVISIONS. 1. The edge of the boring pits shall be a minimum of 30 feet from the centerline of track. 2. A Railroad Inspector shall be present during pipeline installation to monitor the track for movement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY TOWN OF AVON By: By: Assitant Director - Contracts Title: (-IL(-Zoo3 )LACE ARROW INDICATING NORTH DIRECTION RELATIVE TO CROSSING NO SCALE tt TO IN ENCASED NON-FLAMMABLE FORM REV. www.uprr.com PIPELINE CROSSING NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. (OR LEGAL SURVEY LINE, WHERE APPLICABLE) RRQ E14T FT. '_ 1,766.0 FT. (SEE NOTE 3 8 5) ?G MAIN TRACK \-E-36"X24" CULVERT (SEE NOTE 5r- / I - (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) FT. (NOTE: THIS DIMENSION REQUIRED IN ALL CASES. AT LOCATIONS NOT USING SECTIONS, DISTANCE _ TO A LEGAL SURVEY LINE IS REQUIRED) RR'S R/W 2 FT. (? FT. - I I MIN. DIST (5ee Note 2) e 1'Ib? RR i FT. ;ST -186.D( FT. (SEE NOTE 3 8 5) So FT. 1e • ' ANGLE OF CROSSING) TO W-36"X36" CULVERT/ (SEE NOTE 5)y RR' S R/W ?j L7 FT. Lat. 39.63 Lon. -106.53 - ?y FT. ?t 11.E'FT. (4.57T- MIN.) (20 FT. MAX.) II 1 CASING PIPQ (See Note 4) GROUND _P CASI SURFAC SURFACE I STHICKNESSNCHARTL FT. SEAL CASING (3 FT., MIN.) I . caw I.+ 14 NIC LLD? .3125" 5/16" OVER 12 .3750" 3/8" OVER 18" .4375" 7/16' OVER 22"-28' 5000" 1/2' OVER 28'-34' .5625' 9/16" OVER 34'-42" .6250" 5/8" OVER 421-48" OVER 48' MUST BE APPROVED BY R. R. CO. I I I i ? I f 2D 15 FT.-I 5 FT. 30 FT. -?I Ir 30 FT. I 75 FT. 75 FT. NOTES) (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) 11 ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIGHT ANGLES FROM CL OF TRACK. 2) CASING TO EXTEND BEYOND THE 4- OF TRACK AT RIGHT ANGLES THE GREATER OF 2D . 20 FT.. 011 30 FT., AND BEYOND LIMIT OF RAILROAD RIGHT-OF-)FAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK. 3) MINIMUM OF 50' FROM THE END OF ANY RAILROAD BRIDGE. t OF ANY CULVERT, OR FROM ANY SNITCHING AREA. 4) SIGNAL REPRESENTATIVE MUST BE PRESENT "ING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSING. 5) ALLOWABLE FIXED OBJECTS INCLUDE[ BACKWALLS OF BRIDGES; t OF ROAD CROSSINGS B OVERHEAD VIADUFT5 (GIVE ROAD NAME), OR CULVERTS. 6) CASING AND CARRIER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION REQUIRED WITHIN 5 FEET OF THE EXISTING FIBER OPTIC CABLE MUST BE HAND DUG. A) IS PIPELINE CROSSING WITHIN DEDICATED STREET ? YES;y_NO; EXHIBIT "A" B) IF YES, NAME OF STREET C) DISTRIBUTION LINE OR TRANSMISSION LINEX (FOR RA[LAOAO UM ONLY) D) CARRIER PIPE : UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED STORM RUNOFF OPERATING PRESSURE 0.00 PSI (enao-S$eG Q'SS WALL THICKNESS 0.00 ;DIAMETER 0.00 ;MATERIALO ; E) CASING PIPE M. P 30$.34 Iswo1V1SE. S. ZQ3?gs? WALL THICKNESS 0.75 ;DIAMETER?-;MATERIALSTEEL NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST ENCASED sTnRM RIINnFFCROSS ING AT OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF AVON F+'lt CO CARRIER PIPE AND INSIDE OF CASING PIPE. I NEAREST CITY) (COUNTY) I STATE) F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): TOWN OF AVON _X _DRY BORE AND JACK (WET BORE NOT PERMITTED) ; IMYL ICANTI TUNNEL ; OTHER RR FILE N0. n??s?a? DATE G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES;_ _NO; H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND W A R N I N G JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK cDMAA I) APPLICANT HAS CONTACTED 1-800-336-9193, (30' MIN) IN ALL OCCASIONS, u P. ICATIONS U. P. COMMUNICATION DEPARTMENT, AND HAS DETERMINED FIBER DEPARTMENT MUST BE CONTACTED IN N ADVANCE OPTIC CABLE DOES ; Of ANY WORK TO DETERMINE EXISTENCE AND -X.._.DOES NOJ20b21204010IN VICINITY OF LOCATION OF TIBER OPTIC CABLE. WORK TO BE PERFORMED . TICKET NO. PHONE : I-WO-336-9193 FORMULA TO FIGURE CASING LENGTH WITH ANGLE OF CROSSING OTHER THAN 90- B A SIzT B MI N.DIST. (HOT[ 2) PL X 980112 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAIN'T'ENANCE AND OPERATION (a) The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of the Vice President-Engineering Services or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. plx.exb Page 1 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, reinforce the Pipeline, or move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor shall find such action-necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would fn any manner impair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense -whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. •(b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (1) any damage to or destruction of any telecommunications system on Licensor's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL: TAXES. (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as compared plx.exb Page 2 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law with the entire value of such property. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNFTY. (a) As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). (b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: The prosecution of any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof; or The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost.and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. plx.exb Page 3 of4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement maybe terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. plx.exb Page 4 of 4 Exhibit B PLIWLIDRAINAGE INS. 02116/01 Form Approved, AVP-Law EXHIBIT B-1 Union Pacific Railroad Company Insurance Provisions For Pipeline / Wireline / Drainage License Agreements Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage -Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Licensee's (and Licensor's) employees shall not be excluded • Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $2,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: • Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Licensee in states that require participation in state workers' compensation fund, Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. Page 1 of 2 PLNVUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law Other Requirements E. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of insurance. H. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished. 1. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's insurance coverage will be primary. •K. The fact that insurance is obtained by Licensee or Licensor on behalf of Licensee shall not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. Page 2 of 2 PL X 940206 Form Approved, AVP-Law Folder No: 02152-42 PIPELINE CROSSING AGREEMENT Mile Post: 308.38, Tennessee Pass Subdivision Location: Avon, Eagle County, Colorado THIS AGREEMENT is made and entered into as of May 1, 2003, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and the TOWN OF AVON, a Colorado municipal corporation, whose address is P.O. Box 975, Avon, Colorado 81620 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of SIX THOUSAND SEVEN HUNDRED FORTY DOLLARS ($6,740.00). Article II. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one underground storm runoff pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated February 7, 2003, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Article III. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article V. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B-1, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder No. 02152-42, issued by its insurance carrier confirming the existence of such insurance and that the policy or policies contain the following endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the 'Pipeline' located on Railroad right-of-way at Mile Post 308.38 on the Tennessee Pass Subdivision, at or near Avon, Eagle County, Colorado. B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No. 02152-42 Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Article VI. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VII. SPECIAL PROVISIONS. 1. The edge of the boring pits shall be a minimum of 30 feet from the centerline of track. 2. A Railroad Inspector shall be present during pipeline installation to monitor the track for movement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY TOWN OF AVON By: By: Assitant Director - Contracts Title: I - IL( - -4 o0-_? 01 )LACERECTION ARROW RELATIVE INDICATING TO CROSSING ENCASED NON-FLAMMABLE REV. D2-1-B www. uprr. oom PIPELINE CROSSING NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. 4OR LEGAL SURVEY LINE, WHERE APPLICABLE) LINE OF SECTION- TOWNSHIP- RANGE _ MERIDIAN NO SCALE RR'S R/W RR 1? RR_ MILEP Si ?l9GD FT. ??1o FT. MI E?P?5 T tt'40? -1,766.0 FT. 188.0( FT: tt0?G (SEE NOTE 3 8 5) (SEE NOTE 3 8 5) S o FT. 90 A= (NEAREST R.R. TOWN) fL MAIN TRACK ANGLE OF CROSSING) T?NEAREST R.R. TOWNIJ CE-36,X24" CULVERT W-36"X36" CULVERT uo?c..y „ )uexn.ocE— E 5) (SEE NOTE 5) (SE NOTE (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) FT. I FT. Lat. 39.63 (NOTE: THIS DIMENSION REQUIRED IN ALL CASES. / - - AT LOCATIONS NOT USING SECTIONS, DISTANCE Lon. -106.53 TO A LEGAL SURVEY LINE IS REQUIRED) - FT. ' (7 FT. FT. I I . GROUND STEEL CASING WALL MIN DUST I sLwfLCE THICKNESS CHART (See Note 2?-? MINIMLM DIAMETER OF SlJOGRADE THICKNESS CASING PIPE ROADBED .2500- 114' 12" LE .3125' 5/16" OVER 12"-1.8' 11.E FT. I .3750" 3/8" OVER IB"-22" (4.5 FT MIN.) .4375' 7/16" OVER 22'-28' q Z--FT. (20 FT. MAX.) - I FT. SEAL CASING .5000" 1/2" OVER 28"-34" SEAL CASING LASING PIPEJ(See Note 4) (3 FT. MIN.) .5625" 9/16" OVER 34'-42" .6250' 5/8' OVER 42"-48" r - - -- ------- ------------ -- I CARRIER PIPE APP OVED BY RS R.BE O. I NOTE: THIS CHART IS ONLY I ® ' FOR SMOOTH STEEL CASING I PIPES WITH MINIMUM YIELD STRENGTH OF 35,000 PSI. i 2 D 15 FT.-> .. I 5 FT. 30 FT. - ?I It--- 30 FT, I FORMULA TO FIGURE CASING LENGTH WITH ANGLE OF 75 FT: CROSSING OTHER THAN 90- '75 FT. B NOTES ) (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) yf' 1) ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIGHT ANOI.ES FROM Q Of TRACK. A SIN 2) CASING TO EXTEND BEYOND THE E OF TRACK AT RIGHT ANGLES THE GREATER OF 20 • 20 FT.. Oft 30 FT., B AND BEYOND LIMIT OF RAILROAD RIGNT-OF-WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK. 3) MINIMUM OF 50' FROM THE END OF ANY RAILROAD BRIDGE. E Of ANY CULVERT, OR FROM ANY SWITCHING AREAL M(IKITE 2)T' SGNAL REPRESENTATIVE MST BE PRESENT DURING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSING. 5) ALLOWABLE FIXED OBJECTS INCLUDE) RACKWALLS Of BRIDGES; 4L OF ROAD CROSSINGS a OVERHEAD VIADUFTS (GIVE ROAD NAME), OR CULVERTS. 6) CASING AND CARRIER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION REQUIRED WITHIN 5 FEET OF THE EXISTING FIBER OPTIC CABLE MUST K HAND DUO. A) IS PIPELINE CROSSING WITHIN DEDICATED STREET ? YES;-X-NO; EXHIBIT "A» B) IF YES) NAME. OF STREET (FOR RAILROAD USE ONLY) C) DISTRIBUTION LINE OR TRANSMISSION LINER D) CARRIER PIPE : UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED STORM RUNOFF OPERATING PRESSURE 0.00 PSI J enIILw- SSGG f ,S5 WALL THICKNESS 0.00 ;DIAMETER 0.00 ;MATERIALO ; ISUSD1V1SION) E) CASING PIPE : 1. WALL THICKNESS 0.75 ;DIAMETER ;MATER IAL STEEL Me P 30t.3Q E. S. 2?3tgs? NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST ENCASED STORM RI INnFFCROSS I NG AT OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF AVON CO CARRIER PIPE AND INSIDE OF CASING PIPE. INEAREST CITY) (COUNTY) ISTATE) F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): DRY BORE AND JACK l WET BORE NOT PERM TT TOWN nF AVON x_ I ED) ; IAPLICANT) -TUNNEL ; OTHER RR FILE N0. ngaFgag DATE 1-17-21 G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES;-N0; H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND W A R N I N G JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK I) APPLICANT HAS CONTACTED 1-800--336-9193, (30' MIN.) IN ALL OCCASIONS, U. P. COMMUNICATIONS U. P. COMMUNICATION DEPARTMENT AND HAS DETERMINED FIBER DEPARTMENT MST DE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND OPTIC CABLE DOES ;--1G-DOES NOT EXIST IN VICINITY OF 20621204010 LDCA71ON OF FIBER OPTIC CABLE. WORK TO BE PERFORMED . TICKET NO. PHONE: 1-500.336-9193 PL X 9801 ] 2 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION (a) The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of the Vice President-Engineering Services or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d). The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. pix.exb Page 1 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, reinforce the Pipeline, or move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor shall find such action-necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor,. and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. (b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (1) any damage to or destruction of any telecommunications system on l icensor's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as compared plx.exb Page 2 of4 Exhibit B PL X 980112 Form Approved, AVP-Law with the entire value of such property. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. (a) As used in this Section, "licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the licensor, or property in its care or custody). (b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: The prosecution of any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof; or 2. The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost. and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. plx.exb Page 3 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default in the performance of any covenant. or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. plx.exb Page 4 of 4 Exhibit B PUWUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law EXHIBIT B-1 Union Pacific Railroad Company Insurance Provisions For Pipeline / Wireline / Drainage License Agreements Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage:' A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage-Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law.". • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. Coverage for Licensee's (and Licensor's) employees shall not be excluded Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $2,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: • Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Licensee in states that require participation in state workers' compensation fund, Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. Page 1 of 2 PUWUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law Other Requirements E. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of insurance. N. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance.company(ies) issuing such policy(ies) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished.. 1. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's insurance coverage will be primary. ' K. The fact that insurance is obtained by Licensee or Licensor on behalf of Licensee shall not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. Page 2 of 2 MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD MAY 13, 2003 A regular meeting of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado in the Council Chambers. Mayor Buz Reynolds called the meeting to order at 5:30 PM. A roll call was taken with Councilors Michael Brown, Debbie Buckley, Peter Buckley, Brian Sipes, Ron Wolfe and Mayor Pro Tern Mac McDevitt present. Also present were Town Manager Larry Brooks, Town Attorney Inga Causey, Town Clerk Patty McKenny, Human Resource Director Jacquie Halbumt, Town Engineer Norm Wood, Recreation Director Meryl Jacobs, Public Works Director Bob Reed, Transit Director Harry Taylor, Finance Director Scott Wright, Police Chief Jeff Layman, Community Development Director Ruth Borne, as well as members of the press and public. Citizen Input Drew Dodd, resident of Avon & President of Sunridge Phase II Homeowners Association, was present to address a number of public safety concerns that exist in his neighborhood of West Beaver Creek Boulevard. Such concerns included amplified sound, drinking, cruising vehicles, peddlers, and trespassing. He expressed his concern that there was not enough public safety personnel presence in that area of Avon and that there were not enough personnel in general to provide the services required with the amount of activity going on in the community. Council asked numerous questions of Dodd and Chief Layman. It was decided that further discussion should take place on the topic at the next work session. Steve Miller, resident of Avon, was present to inform the Council of his new position with Qwest, one that provides customer service for that company in this region. He indicated that if there were any questions or concerns to contact him. Mike Cacioppo, publisher of Speakout, was present to comment on the fact that some of the problems facing both phases of Sunridge have been continuous problems for many years. He suggested that the properties consider employing full-time on-site managers. Adam Swensen, Store Manager of the new Home Depot, addressed the Council with regard to the opening of the store on Wednesday, May 14, 2003. He invited everyone to come to the opening the following evening. Ordinances At this time, Councilor Sipes informed the Council that he would step down from the discussion and any action on this topic due to a conflict of interest. Community Development Director Ruth Borne presented Ordinance No. 03-07 on second reading. She explained that the applicant, EXWMT, LLC, a subsidiary of the Traer Creek, LLC and the developers for the Village at Avon, submitted a PUD amendment for the purpose of creating fagade improvements for three (3) new tenants and to expand the existing Wal-Mart store (Tract B1) by 12,000 square feet. The additional square footage requested arises as a result of discrepancies that exist between the existing Chapel Square PUD and other related documents. The additional square footage and adequate parking was contemplated in the original approval for Chapel Square PUD. She noted that P&Z Commission unanimously approved the PUD amendment. There was some concern from both parties over the 90-day time requirement to obtain a certificate of occupancy on the improvements. Councilor P. Buckley affirmed that the sales tax generated by the new square footage would become revenues collected by Traer Creek Metro District. Councilor McDevitt asked who the new tenants would be leasing the space. Shane Bohart, Village (at Avon) developer, responded that there was still nothing confirmed about the tenants for the building. He also noted that P&Z Commission made several suggestions to improve the fapade of the building that they have incorporated into their plan. The public hearing was opened, no comments were made and the hearing was closed. Councilor D. Buckley moved to approve Ordinance No. 03-07 on second reading, Series of 2003, an Ordinance approving a PUD Amendment to the Chapel Square PUD for Lots 22, 22A, Tracts A, B1 & B2, Block 2, Benchmark at Beaver Creek Subdivision, Town of Avon, Eagle County, Colorado. Councilor Brown seconded the motion and it passed unanimously (Sipes abstained). Councilor Sipes joined the podium at this time. Town Engineer Norm Wood presented Ordinance No. 03-08, Series of 2003 on first reading, an Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon). He noted that the first amendment to the Annexation & Development Agreement was approved on November 13, 2001. The Second Amendment changes the Highway 6 Exaction requirement and replaces it with a Highway 6 Trail Exaction requirement. He explained the details of both exactions and noted that the trail exaction was for the design and construction costs for sections of a proposed pedestrian trail system along Highway 6. This exaction is a result of public concerns expressed by Eagle-Vail residents through their Metro District Board and the County Commissioners. Councilor Sipes stepped down from taking any action from this vote. Councilor Brown moved to approve Ordinance No. 03-08, Series of 2003 on first reading, an Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon). Councilor D. Buckley moved to second the motion, a roll call vote was take and the motion passed unanimously (Sipes abstained). Finance Director Scott Wright presented Ordinance No. 03-09, Series of 2003, An Ordinance Amending Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public Service Company of Colorado on first reading. The ordinance extends for one year the Town's gas franchise agreement with Xcel Energy (formerly Public Service Co.). Some discussion occurred regarding length of agreement, etc. He noted that the current agreement expires May 24th and an extension would provide staff and Xcel an opportunity to thoroughly review the provisions within the current agreement prior to negotiating the new agreement. Councilor P. Buckley asked about the fee collected from the gas company. Scott noted that the fee was not currently collected with Xcel Energy, and he has already raised the question with the company. Council asked that the question be pursued. Councilor McDevitt moved to approve Ordinance No. 03- 09, Series of 2003, An Ordinance Amending Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public Service Company of Colorado. Councilor Sipes seconded the motion, a roll call vote was taken, and the motion passed unanimously. Consent Agenda Mayor Reynolds asked for a motion on the Consent Agenda items. Councilor D. Buckley moved to approve the consent agenda. Councilor McDevitt seconded the motion and it passed unanimously. a. Approval of the April 22, 2003 Regular Council Meeting Minutes b. "Bill of Sale" - Disc Golf Court Equipment Regular Council Meeting Page 2 of 3 May 13, 2003 There being no further business to come before the Council, the meeting adjourned at 6:30 PM. RESPECTFULLY SUBMITTED: Patty McKenny, Town Clerk APPROVED: Michael Brown Debbie Buckley Peter Buckley Mac McDevitt Buz Reynolds Brian Sipes Ron Wolfe Regular Council Meeting May 13, 2003 Page 3 of 3 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Julie Kessenich, Admin Recreation Coordinator Meryl Jacobs, Director of Recreation Date: May 22, 2003 RE: Salute Band Contract Summary: Attached you will find two contracts between In Mitchell/Rollermania and the Town of Avon for the performances at the 2003 Salute to the USA. Ian Mitchell is an original member of The Bay City Rollers. Rollermania brings a 70's review and the joys of yesteryear. They find their audience throughout generations. I have attached a list of songs they play for your review. Financial Implications: The entertainment for the Salute to the USA is included in the 2003 budget. Recommendation: We recommend that Council approve and sign the attached contract for performance services at the Salute to the USA in the amount of $5000.00. Town Manager Comments: Town of Avon • P.O. Box 975 9 Avon, CO 81620 9 970-748-4032 Rolling Thunder 52 Hurd Street Lynn, MA 01905 (781)598-8048 1) AGREEMENT made on 2-Apr-03 and between Ian Mitchell/Rollermania (herein referred to as ARTIST) an Dae:,De!BeseeiR ek ERte?te* "ems (herein referred to as PURCHASER) tC%,4; N 0; Oi 2) PERFORMANCE CONDITIONS _ Venue Nottingham Park Purchaser d? r1°,Rncrn/Rnc?nr+?? F -+am----- t r"? Type of show Outside Venue Date of show(s) Friday July 4, 2003 Venue Address Nottingham Park, Avon, CO Performance times /-7-0 /mwt, eS & 7:*S r, Load In: Afternoon Sound Check Contact Dana DelBosco Phone (970)926-7770 Terms of contract $5,000.00 & $200.00 (cash) for ground transportation from airport Sound, lights, backline, hot meal and lodging provided by venue 3) PAYMENT PURCHASER to make all payments as follows 50% to be paid by cashier's check 40 days prior to show balance due day of show, prior to performance. 4) Venue Capacity: 8000 Ticket Prices: Free Gross Potential: $0.00 ADDITIONAL INFORMATION Purchaser to provide hot meals for five people, 1-2 hours prior to show, also included are sufficient beverages and a deli or fruit platter for after the show. (Or buyout of $15.00/person) Purchaser to provide sound and light system, sufficient to handle dimensions of room and capable of producing a quality show. Purchaser to provide, close to venue, (3) three clean double hotel rooms. (;Z) 5 LL7?rF.oM;n;, s Hotel (`I4 ?p 117Ir- L Address/Phone 9?D - p ! yf " fait /??+ C? boo DAMAGE/CANCELLATION PURCHASER agrees to pay for all damages to ARTISTS equipment, due to wrongful acts of PURCHASER, it's employees, agents, or guests. PURCHASER also agrees to pay for all costs of collecting payment, included, but not limited to reasonable legal fees. This contract is binding on both parties. PURCHASER shall be responsible for payment, in full; in the event the PURCHASER should cancel the performance. This agreement is subject to ARTIST'S proven detention by sickness, riots, acts of God, or by any other legitimate conditions beyond their control. PROMOTER INFORMATION PA-Beae-1.11 --? Pc O x cv_1, 0C.. C-, IiC2C', Purchaser. - C?F Signature: ARTIST INFORMATION Ian Mitchell 52 Hurd Street Lynn, MA 01905 Phone: q`1C ??t?=y Phone: (781)595-9890 flay hie it 101a 61986166" Six 6111 fiella semi: s Rich Girl, Daryl Hall 8v John Oates J' New Kid In Town, Eagles .r Rock and Roll Love Letter J' Rock Me Gently, Andy Kim J' You Made Me Believe in Magic r Bennie And The Jets, Elton John J' I Only Wanna Be With You r Rock On, David Essex J' Bye Bye Baby r Hooked On A Feeling, Blue Swede J' Money Honey J' Fame, David Bowie J' Let's go r One Of These Nights, Eagles J' Saturday Night f The Night Chicago Died, Paper Lace 1' Dedication J' Black Water, Doobie Brothers J' Way I feel tonight r Ballroom Blitz, Sweet J' Yesterday's heroes r Play That Funky Music, Wild Cherry 1' Elevator J' -Margaritaville, Jimmy Buffet J' Turn on the Radio J' Chevy Van, Sammy Johns f Hotel California, Eagles 16% 61&6616666 s I'd Really Love To See You Tonight, J' Bad Bad Leroy Brown, Jim Croce England Dan & John Ford Coley Jr Crocodile Rock, Elton John r Fox On The Run, Sweet J' Will It Go Round In Circles, Billy J' Young Americans, David Bowie Preston J' Goodbye Yellow Brick Road, Elton f Little Willy, Sweet John f Stuck In The Middle With You f Magic, Pilot Stealers Wheel r You're 16, Ringo Starr J' American Pie, Don McClean Jr Smokin' In The Boys Room, J' Dancing In The Moonlight, King Brownsville Station Harvest f * This is not a complete play list and J' Horse With No Name, America songs listed are not guaranteed to be J' Beach Baby, First Class performed. Rollermania rotates set lists according to individual venue. Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Julie Kessenich, Admin Recreation Coordinator kc, Meryl Jacobs, Director of Recreation Date: May 22, 2003 RE: Salute Band Contract Summary: Attached you will find two contracts between Aubrey Collins and the Town of Avon for the performances at the 2003 Salute to the USA. Aubrey Collins is a young raising star in country music. Recently back from Nashville we are excited to have her be part of the Salute to the USA celebration. Financial Implications: The entertainment for the Salute to the USA is included in the 2003 budget. Recommendation: We recommend that Council approve and sign the attached contract for performance services at the Salute to the USA in the amount of $500.00 Town Manager Comments: Z?? 4 Z- Town of Avon • P.O. Box 975 • Avon, CO 81620 • 970-748-4032 SpinAction Productions 855 Miller Street Lakewood, CO 80215 303-202-5044 ENGAGEMENT CONTRACT This Contract, Made ft 22nd day of April, 2pq?, between Aube Collins/AFC Productions hereinafter referred to as "Artist" and Rese went, PO Box 1a, CO hereinafter referred to as "Purchaser". It is mutually agreed between the parties as follows: Purchaser hereby engages Artist and for consideration, the sufficiency of which is herein set forth, Artist hereby agrees to perform the engagement, upon all the terms and conditions set forth herein. SpinAction Production acts only as agent for Artist and assumes no liability hereunder. 1. ADDRESS OF PERFORMANCE: Nottingham Park, Avon, CO. 2. . DATES AND TIMES OF ENGAGEMENT: Friday, July 4, 2003; 5:30 pm-7:30. 3. DESCRIPTION OF PERFORMANCE TO BE PROVIDED: Country Music performance of Aubrey Collins and 5 piece band as opener for Bay City Rollers performance, July 4`h Celebration for Town of Avon. 4. CONTRACT PRICE: $500.00 + 3 bedroom condo for the night of July 4th. CONTRACT PRICE TO BE PAID AS FOLLOWS: The full amount of $500.00 is due at the engagement. Make checkpayable to the order ofAFCProductions/Aubrey Collins. In lieu ofa 50% non-refundable deposit, if Purchaser should default on the contract for any reason at any time prior to the event, Purchaser is responsible for 50% of the agreed upon wage. 5. ACT OF GOD: If Artist is unable to perform portion of this Contract because of any Act of God, which includes without limitation any event, such as a tornado, power failure, storm, strikes, or such that is outside of the control of the Artist that prevents the Artist from performing under the Contract, the Artist shall be released from all liability with regard to their non-performance of the affected portion of this contract. SPECIAL PROVISIONS: Purchaser to provide sound reinforcement per Artist stage plot, and appropriate lighting. Load in time TBD. Artist to provide own back line equipment. Artist to be provided with area/table for merchandise sales. 7. PROMOTIONAL MATERIAL: Artist hereby grants permission to the Event to use Artist's likeness and recorded music as provided by Artist, in appropriate promotional material and advertisements for the event. Artist to be available for radio on-air interviews by telephone or on the day of show as possible. 8. SOLE CONTRACT: This Contract constitutes the sole, complete and final contract of the parties. There are no representations, promises or understandings between the parties other than those set forth herein. 9. MODIFICATION: This Contract shall not be modified in whole or in part, unless reduced to writing and signed by the parties. 10. SEVERABILITY: If a portion of this Contract shall be held to be invalid, the remainder shall nevertheless continue in full force and effect. We acknowledge and confirm that we have read and approved the terms and conditions set forth in this Contract. z3 43 pmAction Productions, Artist Representative Date Purchaser AFC Productions Date Authorized Representative Date Additional Terms THIS PAGE IS ATTACHED TO AND PART OF THE CONTRACT DATED 4/22/03 BETWEEN PURCHASER: Rr"HTrtte hWnment AND ARTIST: Aubrey Collins -AFCProductions 1. Best Efforts and Supervisory Control. In performing Engagement, Artist shall use their best effort to conform to the rules and policies of both the venue and the purchaser. Any additional rules or policies not herein explained must be brought to the attention of the artist 30 days before the engagement. At the same time the Artist reserves the right to control the nature of their performance during the Engagement. 2. Theft and Damage. Purchaser assumes responsibility for theft, damages, and/or destruction of any of Artist's musical, light, and sound equipment that is left in the care and custody of Purchaser, including, but not limited to, accidents caused by patrons, guests, or employees of Purchaser. 3. Independent Contractor. Artist signs this contract as an independent contractor, not as an employee. This Contract shall not in any way be construed so as to create a partnership or joint venture between the parties. 4. Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by the courts of the State of Colorado and in accordance to the laws therein. If a judgment is reached and not collected within 30 days, debtor shall pay all collection costs and attorney's fees associated with any collection. 5. Agency Fee. Purchaser is not responsible for any Agency fee whatsoever. Artist shall pay Spin-Action Productions an agency fee of fifteen percent (15%) of gross compensation due under the terms of this Contract. This fee shall be made payable to Spin-Action Productions and paid within 5 days of the conclusion of the engagement. In the event Artist, or any technician, designer or supplier contracted by SpinAction Productions are re-booked on any event or in any establishment owned or controlled by Purchaser within 18 months of termination of this agreement, Artist and Purchaser are to be jointly and severally liable for payment of commission to agent at the same rate as provided under this agreement. Any questions regarding the additional terms for this contract please contact: Spin-Action Productions 855 Miller Street, Lakewood, CO. 80215 email: baburri@comcast.net Bev Burri Office (303) 202-5044 X Signature of Purchaser/Date X A x a" Signature of ist or Representative/Date SpinAction Productions, Artist Representative X Signature of Artist/Date