TC Res. No. 2006-25 APPROVING FINAL PLAT, SUBDIVISION IMPROVEMENTSEAGLE COUNTY, CO 200615955
TEAK J SIMONTON
370 Pgs: 2 04:53:01PM -
REC= $11.00 DOC=_S 06/15/2006
TOWN OF AVON, COLORADO
RESOLUTION NO. 06-25
Series of 2006
A RESOLUTION APPROVING FINAL PLAT, SUBDIVISION IMPROVEMENTS
AGREEMENT AND RELATED DOCUMENTS FOR RIVERFRONT SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, East West Partners, Inc. has applied for Final Subdivision Plat approval for
Riverfront Subdivision, a subdivision of a parcel of land commonly known as The Confluence,
located in the South 1/2 of the Northwest 1/4, Section 12, Township 5 South, Range 82 West of
the 6th Principal Meridian, in the Town of Avon, Eagle County, Colorado and containing
approximately 18.9 acres, in accordance with Chapter 16.20 of the Avon Municipal Code; and
WHEREAS, a Preliminary Plan was submitted in conjunction with a proposed
Confluence PUD Amendment and Subdivision Variance application; and
WHEREAS, the proposed Preliminary Subdivision Plan, Subdivision Variance and
proposed Confluence PUD Amendment have been reviewed by the Town Council of the Town
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of Avon; and
WHEREAS, following public hearings and extensive review the Town Council
approved the proposed Confluence PUD Amendment, Subdivision Variance and Preliminary
Subdivision Plan for Riverfront Subdivision; and
WHEREAS, The Preliminary Subdivision Plan for Riverfront Subdivision was approved
subject to thirteen specific conditions by Resolution No. 06-08, Series of 2006, at the March 14,
2006 Council Meeting; and
WHEREAS, a Memorandum of Understanding and the form of a Subdivision
Improvements Agreement (SIA)was approved by Resolution No. 06-18 at the April 25, 2006,
Council Meeting; and
WHEREAS, a Guaranty Agreement for Riverfront Express Gondola Construction
(Gondola Agreement) has been submitted to address the Gondola Construction commitment
which was not included in the form of the SIA approved with the Memorandum of
Understanding; and
WHEREAS, an Addendum to Riverfront Subdivision Subdivision Improvements
Agreement (SIA Addendum) has been submitted to allow a cash deposit furnished by the District
as the initial security to be provided for funding of the Improvements; and
WHEREAS, the Construction Plans and Final Plat for Riverfront Subdivision as
submitted for approval is in general conformance with the Preliminary Plan for Riverfront
Subdivision as approved by Resolution No. 06-08, Series of 2006.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the Final
Plat for Riverfront Subdivision, SIA, SIA Addendum and Gondola Agreement are in general
conformance with the River Front Subdivision Preliminary Plan. as approved by Town of Avon
Resolution No. 06-08 and other applicable development laws, regulations and policies of the
Town of Avon and hereby approves the same subject to completion of technical corrections as
identified by Town Staff and the submission to and acceptance by, the Town of Avon, the
following items prior to recording of the Final Plat, SIA, SIA Addendum and Gondola
Agreement:
A. Copy of "Resolution of Confluence Metropolitan District Regarding Appropriation of
Funds Under Subdivision Improvements Agreement Riverfront Subdivision" as duly adopted
and executed by District Board of Directors (Riverfront Subdivision Improvements Agreement
Exhibit C); and
B. Copy of "Resolution of Confluence Metropolitan District Regarding Appropriation of
Funds Under Guaranty Agreement for Riverfront Express Gondola Construction" as duly
adopted and executed by District Board of Directors (Guaranty Agreement for Riverfront
Express Gondola Construction Exhibit A); and
C. Construction plans, specifications and related documents for construction of public
improvements as identified in Riverfront Subdivision Subdivision Improvements Agreement
Exhibit A as amended to address technical issues identified by Town Staff; and
D. Master Landscape Plan for Riverfront Lane Right-of-Way and Tract A as approved by
the Town of Avon Planning and Zoning Commission shall be included in public improvements
and "Resolution of Confluence Metropolitan District Regarding Appropriation of Funds Under
Subdivision Improvements Agreement Riverfront Subdivision" shall include adequate funds to
complete approved Landscape Plan.
ADOPTED THIS a3 DAY OF 2006.
TO OUNCIL
T O AVON, COL RADO
/~F7~
Ronald C. Wolfe, Mayor
Resolution No. 06-25 Confluence Final Plat
Page 2 of 2
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EAGLE COUNTY. CO 200615951
TEAK J SIMONTON
23 Pgs: 2S 04:52:19PM 06/15/2006
REC: $131.00 DOC: $ I
RIVERFRONT SU1~ll1V1S1 IN
SUBDIVISION IMPROVEMENTS AGREEMENT
THIS AGREEMENT, made and entered into this;BQdday of , 2006, is
by and among Confluence Metropolitan District, a Colorado quasi-munic~orporation
and political subdivision of the State of Colorado (the "District"), and the Town of Avon,
a Colorado municipality, by and through its Council (the "Town").
RECITALS .
WHEREAS, the District, in connection with the approval of the final plat for the
Riverfront Subdivision; consisting of 18.893 acres in the Town of Avon, Eagle County,
Colorado (the "Subdivision"), desires to enter into a Subdivision Improvements
Agreement ("Agreement") with the Town as provided for by Section 16.24. 100 of the
Avon Municipal Code, as amended (the "Code"); and
WHEREAS, pursuant to the Code, the Town desires to make reasonable
provisions for completion of certain public improvements ("Improvements") as depicted
on the plans approved by the Town for the Subdivision dated M-1 ;?0 ZrC4
("Approved Plans") and as identified in Exhibit A attached hereto and incorporated
herein by reference, together with minor changes approved by the Town Engineer; and
WHEREAS, the District is responsible for the completion of the Improvements;
provided, nothing herein shall be construed as relieving the obligations of the Owner (as
defined therein) pursuant to the Amended and Restated Development Agreement dated
March 14, 2006.
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants,
conditions and promises, the parties hereby agree as follows:
1. Final Plat Approval. The Town agrees that upon compliance with all other
conditions of approval, and subject to the terms and conditions of this Agreement, the
Final Plat of Riverfront Subdivision ("Subdivision") shall be promptly filed for recording
with the Office of the Eagle County Clerk and Recorder.
2. Completion of Work.
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(a) Performance. The District agrees to furnish all equipment, labor
and material necessary to perform and complete, in a good and workmanlike manner, all
Improvements and work incidental thereto ("the Work") as depicted on the Approved
Plans. The District further agrees that it will be responsible for all costs of the
Improvements as itemized on Exhibit B attached hereto and incorporated herein. All said
Work shall be performed in accordance with the Approved Plans. The District agrees to
SIA-Riverfront-4 27 cln
commence construction of ,Improvements prior to the issuance of a building permit for
any improvements in the Subdivision and to complete the Improvements prior to the
issuance of a Certificate - of Occupancy for any building _on any lot in the Subdivision
served by the improvements. Commencement of construction of Improvements shall be
deemed to mean, the award and execution of contracts for the construction of the
Improvements as depicted on the Approved Plans
(b) Inspection Procedures.
(1) All work shall be done under the inspection procedures and
standards established by the Town and Holy Cross Energy, Eagle River Water and
Sanitation District, Excel Energy, Qwest- Communications, Comcast or any, other utility.
(`.`Utilities"), as applicable and shall be subject to the reasonable satisfaction of 'the Town
and applicable - Utilities. All work shall not be deemed complete until the reasonable
approval and acceptance of.the Improvements by the Town and/or the Utilities.., Such
inspections by the Town and Utilities shall not.relieve the District or its agents from any
responsibility or obligation to assure that all Work is completed in conformance with all
standards, plans and specifications as submitted to and 'previously'approved by the Town
and Utilities. • The Town will forward copies of observation reports to the District. and the
District's,.engineers (who shall be registered in' the State of Colorado) responsible for
providing the opinion required by Section 6 hereof.
(2) Designation of Inspectors. Prior to commencement of
construction,work on the Improvements, the Town will designate the individuals and/or
independent third parties employed by the Town who are authorized to inspect the
construction of the Improvements. Such inspections by the Town shall not relieve, the
District or its' agents from any responsibility or obligation to assure that all 'work is
completed in conformance with standards, plans and specifications as submitted to and
previously approved by the Town.
(3) . Cost of Inspections. The cost of such inspections, by Town
employees or an independent third party inspector, shall be paid by the District, subject to
the limitations set forth in paragraph 7 below.
(4) Notice of Non-Compliance. In the event that the Town
through its inspectors reasonably determines that the Improvements are not in compliance
with the Approved Plans, or that additional observation or testing by the project engineer
is necessary to assure compliance, it shall give written notice of such non-compliance, or
additional observation or testing requests, to the District's engineers and the District
("Notice of Non-Compliance"). The Notice of Non-Compliance shall include a narrative
describing the unsatisfactory construction work with specific reference to the applicable
construction plans and specifications. The Notice of Non-Compliance must be provided
to the District's engineers and the District within two (2) working days of the date of the .
observation. The notice may be provided in an informal manner agreed upon by the
parties and without compliance with Section 15 hereof.
SIA-Riverfront4 27 cin 2
3. Security for Completion of Improvements and Obligations. To secure
completion of the Improvements and the District's obligations to the Town hereunder, the
District hereby agrees to secure the respective obligations under this Agreement as
provided in this Agreement and in accordance with Section 16.24.100 of the Code.
4. District Obligations Concerning Improvements.
(a) Funding Resolution. The District has adopted a resolution (the
"Funding Resolution") attached hereto as Exhibit C authorizing the District's execution
of this Agreement and providing for the appropriation, segregation and use of funds in an
amount sufficient to guarantee the construction of the Improvements as set forth on the
Approved Plans. The estimated costs of completion of the Improvements are set forth on
Exhibit B.
The Town acknowledges and agrees that funding for the Improvements is subject
to the issuance of bonds by the District for such purposes. In accordance with the terms
of the Indenture of Trust by which the bonds will be issued, the Bond Trustee will serve
as custodian of the bond proceeds to ensure that such proceeds are applied for the
purposes of funding the Improvements. The procedure by which funds are released
involves the filing of "Draw Requests" together with related invoices with the Bond
Trustee. The Indenture of Trust shall contain provisions authorizing the Town to submit
Draw Requests to the Bond Trustee, in order to effectuate the Town's remedies to draw
funds for constructing the Improvements, in the event of a default by the District
hereunder. The Town agrees to use the proceeds of the District's bonds only for the
purpose of paying the costs of the Improvements, and not to apply such funds for
purposes not authorized in the Indenture of Trust.
The Funding Resolution specifically provides that, subject to the terms of the
Indenture of Trust, all funds referenced therein are unencumbered and free from claims of
others such that, if necessary, any requests for payment approved by the Town may be
promptly honored. As a condition to recordation of the Final Plat, the District shall
provide the Town Engineer with evidence that such funds have been appropriated and
segregated in a separate interest bearing account (the "Security Account") and identified
for use in connection with this Agreement. The District shall renew the Funding
Resolution at the beginning of each subsequent calendar year until all Improvements have
received final acceptance or until the District provides substitute collateral acceptable to
the Town.
(b) Progress Payments on Improvements. The District may make
progress payments to its contractors from the Security Account on a monthly basis upon
the partial completion of itemized Improvements and upon fifteen (15) days' prior written
notice, which notice will include an itemized statement of the monthly payment, to the
Town. The District shall retain ten percent (10%) of the amount of each payment until
final completion and acceptance of all work covered by each construction contract;
SIA•Riverfr= 4 27 do 3
provided, however, when the value of work completed has progressed to fifty percent
(50%) of the contract amount, the District shall not be required to withhold additional
retainage for the remainder of the work under such contract. The ten percent (10%)
retainage of the value of the work completed may be reinstated if in the Town's opinion
the lack of progress or other substantial reasons exist. Subject to the foregoing, in no
event shall any progress payment cause the remaining sum to be available in the Security
Account for subsequent disbursements to be less than one hundred ten percent (110%) of
the costs to complete all remaining Improvements as estimated at the time of each
progress payment. Upon completion of all work related to the Improvements, the Town's
acceptance of the Improvements and the expiration of the Warranty Period as set forth in
paragraph 5 below the Town shall release any further interest in the Security Account.
(c) Default by District. In the event of a default in whole or in part by
the District, the Town shall be authorized to access the funds in the Security Account for
the purpose of undertaking completion or remediation work on the Improvements after
providing thirty (30) days' advance written notice of default and providing a opportunity
during such period for the District to cure the default. The Town shall be entitled to draw
on the Security Account by Resolution of the Town Council stating (i) that the District is
in default, and (ii) the funds are required in order to complete or correct work on the
improvements'. District funds identified in the Funding Resolution shall be held,
whether by the District or the Town, in compliance with the requirements of C.R.S.
Section 29-1-803(1) for the purpose of providing for the completion of the Improvements.
5. Warran Period. The Improvements shall be warranted to be free from
defects in workmanship or quality for a period of two (2) years after acceptance of all the
work by the Town. In the event of any such defect, the Town may require the District to
correct the defect in material or workmanship. Five percent (5%) of the total actual cost
of completion of all Improvements shall be retained in the Security Account, or such
amount shall otherwise be secured by a letter of credit or other collateral acceptable to the
Town during such two (2) year period as a guaranty of performance of any work required
pursuant to the above described warranty. In the event any corrective work is performed
during the two-year warranty period, then the warranty on said corrected work shall be
extended for one (1) year from the date on which it is completed and an amount equal to
125% of the cost of any corrected work, as estimated by the Town, shall during such one-
year extension period be retained in the Security Account, or such amount shall otherwise
be secured by a letter of credit or other collateral acceptable to the Town, if sufficient
funds are not held in the Security Account or otherwise secured as provided in this
paragraph 4 above.
6. Engineering Opinion. Upon completion of portions of the Improvements,
the District will cause its engineers (who shall have been actively engaged in observing
the construction of the Improvements and be registered in the State of Colorado) to
provide a written opinion, in a form satisfactory to the Town Engineer, that based upon
on-site observation, review of sufficient construction-observation reports, field test
SIA-River&ont4 27 cln 4
reports and material test reports and certifications by qualified personnel, the installation
of the Improvements, or portions thereof as may be completed from time to time, have
been completed, to the best of their knowledge and professional judgment, in substantial
conformance with all standards, plans and specifications as submitted to and previously
approved by the Town, or the pertinent utility supplier, as depicted on the Approved
Plans, as such Approved Plans may be revised and subsequently approved. The
engineer's opinion shall also include a statement that the opinion is based on a reasonable
review and investigation of all observation reports by the Town inspectors and that all
issues of "Non-Compliance" and additional observation and testing requests that have
been provided to the engineer were addressed to their satisfaction prior to issuance of
engineer's opinion. Inspection reports, test results, as-constructed plans and other
supporting documentation shall be submitted with the engineer's opinion.
7. Subdivision and Inspection Fees. Fees in accordance with the Town's
Subdivision Regulations for the review of Preliminary Plans and Final Plats have been
paid in full. Additional fees shall be paid to the Town by the District within thirty (30)
days after delivery of written invoice for such fees to cover the cost of inspections by the
Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an
administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no
event will the total amount of such additional fees exceed five percent (5%) of
construction costs.
8. No Obligation of Town to Complete Improvements. The District agrees
that in the event the District shall fail to perform its obligations as set forth herein, the
Town shall be under no obligation to complete any of the said Improvements or to issue
permits for development within the Subdivision.
9. Non-Liability of Town; Indemnification. The Town shall not, nor shall
any officer, agent, or employee thereof, be liable or responsible for any accident, loss or
damage related to the Work specified in this Agreement, nor shall the Town, nor any
officer, agent or employee thereof, be liable for any persons or property injured by reason
of the nature of said Work. To the extent permitted by law, the District hereby agrees to
indemnify and hold harmless the Town, and any of its officers, agents and employees
against any losses, claims, damages or liabilities to which the Town or any of its officers,
agents or employees may become subject, because of any losses, claims, damages or
liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or
omissions in the performance of the obligations of the District, as hereinbefore stated.
Furthermore, the District shall reimburse the Town for any and all legal or other expenses
reasonably incurred by the Town in connection with investigating or defending any such
loss or claim.
10. Rights of Town in Event of Default. In the event that the District defaults
in whole or in part in the performance of this Agreement, and after the expiration of thirty
(30) days after having given written notice to the District of such default, during which
period of time the District fails to correct said default, the Town may, at its sole
SIA-Riverfr= 4 27 cin 5
discretion, exercise its rights under Section 4(c) above and proceed with the construction
or completion of the Improvements specified on the Approved Plans. All such costs paid
by the Town for such Improvements, together with an administrative fee in the amount of
fifteen percent (15%) of total direct costs including cost of personnel, equipment and
other amounts expended by the Town in furtherance of the construction responsibilities of
the District, shall be paid by the District2. The Town may bring a mandatory injunction
action against the District to require installation and construction of the Improvements. If
any such action is brought by the Town and the Town prevails in its legal action against
the District, the Town shall be awarded its court costs, attorneys' fees and an amount to
compensate the Town for the time of its employees in the preparation of and participation
in such action.
11. Town Acceptance of Improvements.
(a) Procedures for Acceptance. Upon completion of all construction by the
District, the District's engineers shall submit a written request to the Town Engineer
stating that to the best of their knowledge the installation of all Improvements are
complete in accordance with the Approved Plans and requesting a joint inspection. Upon
receipt of such request the Town Engineer will schedule and perform a joint inspection
with the District's engineer. Following the joint inspection and review of all field
observation reports, test reports, material certifications and other documentation, the
Town Engineer will prepare a written Final Acceptance Punch List. The District shall
make all corrections as so itemized and upon completion of the Final Acceptance Punch
List work, the District's engineer shall submit to the Town Engineer a written request for
a joint inspection and final acceptance. Following a joint inspection with the District's
engineer and review of supporting documentation the Town Engineer will issue a revised
written Final Acceptance Punch List to the District and the same procedures as described
herein shall apply to such revised Final Acceptance Punch List. When the Town
Engineer finds the Final Acceptance Punch List Work has been satisfactorily completed a
Resolution will be prepared for Town Council action making a determination that the
Improvements are complete and establishing the start of the warranty period. The
warranty period set forth in paragraph 5 above with respect to the Improvements shall
commence upon the date as set forth in the Town's Resolution making the determination
that the Final Acceptance Punch List has been satisfactorily completed.
(b) Letter Certifying Completion and Final Acceptance of Improvements.
When all Improvements have been completed and accepted by the Town, or the pertinent
utility supplier, and the Warranty Period has expired and provided that the District is not
in default under any of its other obligations to the Town, the Town agrees that it will
issue a letter, after consultation with the 'pertinent utility supplier if necessary, in
recordable form, certifying that all obligations of the District under this Agreement have
been satisfied.
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SIA-Riverfront4 27 On 6
12. Amendments. This Agreement may be amended from time to time,
provided that such amendment is in writing and signed by all parties hereto.
13. Covenants Running with the Land. This Agreement and the obligations
hereof shall be deemed to be covenants running with the land and shall be binding on the
successors and assigns of the parties hereto.
14. Venue. Venue for any litigation arising out of this Agreement shall be in
the District Court for Eagle County, Colorado.
15. Notices. All notices, demands or other communications required or
permitted to be given hereunder shall be in writing and any and all such items shall be
deemed to have been duly delivered upon personal delivery; or as of the third business
day after mailing by United States mail, certified, return receipt requested, postage
prepaid, to the address set forth below; or as of 12:00 noon on the immediately following
business day after deposit with Federal Express or a similar overnight courier service, to
the address set forth below; or as of the third business hour (a business hour being one of
the hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient) after
transmitting by facsimile to the number set forth below and evidenced by an electronic
delivery receipt:
If to the District:
White Bear and Ankele Professional Corporation
1805 Shea Center Drive, Suite 100
Highlands Ranch, CO 80129
Attn: William P. Ankele, Jr., Esq.
District Counsel
Telephone: (303) 858-1800
Facsimile: (303) 858-1801
with a copy to:
Wear,-Travers &-Perkins,-P.C. -
1000 South Frontage Road West
Suite 200
Vail, Colorado 81657
Attn: Richard D. Travers, Esq.
Telephone: (970) 476-7646
Facsimile: (970) 476-7118
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SIA-Riverfr=4 27 cin 7
If to the Town:
Town of Avon
P.O. Box 975
Avon, CO 81620
Attn: John W. Dunn, Town Attorney
Telephone: (970) 748-6400
Facsimile: (970) 748-8881
The parties hereto have executed this Agreement as of the date first above written.
O 4'
TOWN OF AVON, a Colorado Municipal
Corporation
_SE A
ATT
C ` t By:
P c nny, o Ronald C. Wolfe, Mayor
APP VE AS TO FORM:
John . Dunn, Town Attorney
DISTRICT:
CONFLUENCE METROPOLITAN
DISTRICT
Eagle County, Colorado
By:
Nam .
T' r•• ~ L-
E
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SIA-Riverfront-4 27 cln 8
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EXHIBIT A
Subdivision Improvements Agreement
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APPROVED PLANS:
Construction Drawings
, Town of Avon, Colorado
20
Sheets 1 through_
Release Date: , 20
Prepared by:
Technical Specifications
, Town of Avon, Colorado
,20
Sheets 1 through
Release Date: , 20_
Prepared by:
S1A-Riverfr= 4 27 cln
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EXHIBIT A
Subdivision Improvements Agreement
APPROVED PLANS:
1. Riverfront Subdivision Construction Plans Road, Grading, Drainage, Water,
Sewer and Utility Plans Revision Date May 12, 2006, subject to resolution of all
comments in attached letter dated May 1, 2006 to East West Resorts Development XIV
LP LLLP from Norman Wood, P.E., Town Engineer, Town of Avon, Colorado.
As Prepared by: Alpine Engineering, Inc.
Technical Specifications:
Technical Specifications for Riverfront Subdivision
March 2006
Owner: East West Partners
P.O. Box 2770
Avon, CO 81620
Engineer: Alpine Engineering
P.O. Box 97
Edwards. CO 81632
2. The Riverfront Village Overall Landscape Master Plan Avon, Colorado Revision
Date March 24, 2006 (Progress Set - Not for Construction), subject to compliance with
all conditions in attached letter dated April 10, 2006 to East West Partners from Matt
__Pielsticker; Planner_I,-T9wn-ofAvon,_Color_ado. _
As Prepared by:
Terrasan Planning & Landscape Architecture
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SIA-Riverfront4 27 On
C 0 i 0 8 A D 0
May 1, 2006
East West Resorts Development XIV LP LLLP
Atten: Andy Gunion
P.O. Drawer 2770
Avon, CO 81620
Re: Riverfront Subdivision - Final Plat (Construction Plans)
Road, Grading, Drainage, Water, Sewer and Utility Plans
Dear Mr. Gunion:
The following comments are in response to our review of the Construction Plans for
Riverfront Subdivision as received in this office on April 12, 2006.
Riverfront Subdivision - Construction Plans:
Post ffce Bar 975
400 Benchmark Road
Avon. Colorado 81620
970-748-4000
970-949-9139 Fax
970-845-7708 77;'
1. It should be noted that the Subdivision Variance and Preliminary Subdivision
Plan approvals included the condition, "The Variance from the minimum cul-de-sac
right-of-way diameter requirements is subject to the submittal and approval of an
acceptable design conforming to minimum pavement diameter and guardrail installation
contained within the cul-de-sac right-of-way." The proposed "Wall Easement" does not
meet this requirement. Please submit revised plan per approval condition.
2. Please submit letters from all applicable utility companies verifying approval of
the Construction Plans as they relate to their proposed facilities. Typically this would
include copies of service agreements with Holy Cross Energy and Excel Energy along
with costs for installation or documentation that service charges have been paid.
3. Landscape Plans for public ways must be submitted with subdivision
improvement plans. It should also be noted that all retaining walls and landscaping in
public ways are subject to Town of Avon Planning and Zoning Commission (P & Z)
Design Review approval. Please submit appropriate retaining wall and landscape
architectural plans for P & Z review.
4. Fire Hydrants along the north side of Riverfront Lane should be relocated to the
south side adjacent to the developable property.
5. Connecting Bikepath between Eagle River Path and Riverfront Lane should be
realigned at north end for more clearance from parking area and to obtain a more
perpendicular connection with the sidewalk.
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I:~EnemeertngtConfluence\Subdivisian,, inal%Construcuon Plan Review-I.Doc
May, 1, 2005
Re: Riverfront Subdivision - Final Plat (Construction Plans)
- Road, Grading, Drainage, Water, Sewer and Utility Plans
6. Riverfront Lane pedestrian crossing between Town of Avon Transportation
Center and Pedestrian Plaza area must be consistent with P & Z approval and compatible
master plaza railroad crossing designs. Related comments from P & Z review Include:
a. Bollard alignment between Riverfront Lane and railroad to be curved to
match the auto lane curve on the western side of this intersection.
b. Concrete pan extending from Riverfront ROW to western edge of auto
lane shall be deleted. Concrete shalfbe flush with material at this area.
C. Stamped or scored concrete to be utilized at crosswalk with no greater
than a 2'. score to create a material difference of the crosswalk. The crosswalk
will be elevated at least 2 inches in 2 feet at the transition from both approaches.
d. Traffic calming devices such as a flower box shall be introduced in the.
Riverfront ROW at the crosswalk. The approach to this pedestrian crosswalk
shall be designated as a 15 MPH speed limit at location's noted in this report.
We ina}' want to incorporate, a streetscape light in to each end oJ'a raised median
through the pedestrian, crossing. This could possibly be incorporated with J1olver
boxes or as alternative to flower boxes, but either.way will help address some vJ
the lighting concerns at this crossing.
7. Revegetation /Landscape Plans are not included with submittal. Please submit
Revegetation i Landscape Plans for all areas within public rights-of--way and areas
disturbed by constructidn-of public improvements.
8. ' "Proposed Sales Center" improvements should be deleted from subdivision
improvement plans or at least noted"that work is not part of public improvements and is
subject to additional permits-and approvals.
9. It is noted that future building outlines as depicted on Construction Plans appear
to overlap drainage ways along connecting Bikepath and into existing Town-of Avon
Drainage Easement and into' existing' Water and' Sewer- Easement. Also it appears future
building outline does not leave adequate space to maintain or reconstruct retaining wall at
cul-de-sac.
10. Southerly Avon Road crosswalk should be located closer to end of extended
median to be compatible with vehicle storage lane and intersection with Hurd Lane.
11. Consider slight increase in grades on lower portion of new upper,bike path to
reduce 8% grade and provide better connection to sidewalk at Avon Road.
12. Consider small drainage swale along upper edge of new upper bike path and small
culvert under existing path at connection point to existing path.
L•tBngmeennWConOuence~S ubd:%iswn Final•Curotruction Plan Review-I Doc
May 1, 2005
Re: Riverfront Subdivision - Final Plat (Construction Plans)
Road, Grading, Drainage, `Water, Sewer and Utility Plans
13. There appears to be adequate space to relocate the shallow utilities vault shown as
located in the sidewalk at the southwestern corner of the intersection of Avon Road and
Riverfront Lane. This vault should be relocated accordingly.
14. It appears that the area of relocation of the existing path along the Eagle'River
needs to be extended to the west to optimize alignment and maintain path width.
(Sheet 7)
15. Should lighting conduit location along bike path be revised to.2 feet from outside
of widened path?
16. Utility service stub outs should be extended far enough beyond right-of-way line
to avoid sidewalk or street damage when excavating to "make connections. .
17. Retaining wall plans 'appear to be inconsistent. with- grading plans especially in the
area around on street parking area and connecting Bikepath.
18. Please submit copies-of Sediment and Erosion Control Best Management
Practices and State Stormwater Control Permit. Maintenance notes on plans should
match BMP and Permit conditions.
19. Please include proposed dust control and mitigation plan,as part of construction
documents.
20. Please note that a'Permit for Work Within Public Ways will be required for work
within Avon Road right-of-way and that this work will be subject to the conditions of
such permit in addition to compliance with the Subdivision Improvements Agreement.
21. Projected traffic loading of 25 EDLA for pavement design seems to be reasonable
after project is built out, however it does seem to be adequate to include construction
traffic during the anticipated 3 to 5 year build out period. How does this affect pavement
sect-ion?
22. Avon Road Crosswalk Details should be revised to match existing Avon Road
crosswalks at Beaver Creek Boulevard and,-Benchmark Road. (We may be able to help
with details if desired:)
23. Pedestrian Crossing Ramps must be revised to conform to ADA requirements
including truncated dome pavers.
24. The small asphalt areas between crosswalks and drainage pans at the Riverfront
Lane / Avon Road intersection should be changed to concrete pavement.
25. All Avon Road widening and asphalt patch backs must be existing asphalt
thickness plus I-inch.
-26. Additional signage should be provided to emphasize pedestrian crossing area and,
to reduce Speed Limit through crossing area to Pedestrian Plaza to 15 MPH.
27. It appears that the addition of a Yield Sign in the island and dashed yield line
striping for the right turn lane at Riverfront Lane /Avon Road intersection may help
clarify intended traffic flow in this area.
1:1Engtneering\Cnnfluence•Subdivrswn\Final`.Construcuon Plan Review-i.boc
May 1, 2005
Re: Riverfront Subdivision - Final Plat (Construction Plans)
Road, Grading, Drainage, Water, Sewer and Utility Plans
28. The street identification signs (Riverfront Lane) appear to be undersized at 4-
inches tall. I believe the standard street identification signs in Town are 6-inches tall.
29. It is not clear how drainage gets from box culvert under railroad to Inlet 42 at the
cul-de-sac. It does not appear that the 15-inch pipe between the Inlet 42 and the box
culvert under the railroad will carry the 100 efs flow projected per Drainage Report, and
contour lines seern to indicate that surface flow will be to the west away from the inlet.
30. The guardrail at the cul-de-sac should not be necessary with the curb and gutter
section and posted speed limits.
31. Please provide details for the pedestrian railing proposed at the cul-de-sac.
32. The lighting plan is subject to Town of Avon Planning and Zoning Commission
Design Review for both fixture types and lighting levels. Comments will be forthcoming
following that review.
We will continue our review upon receipt of a response to the above comments.
Additional comments will be forthcoming as we continue our review of the Riverfront
Subdivision related documents.
~Sincerely,
Norman Wood, P.E.
Town Engineer
Cc: Tambi Katieb
Eric Heidemann
Larry Brooks
Mike Sliper
L
t
•
E
1:1Eneineerinti.ConriuenceLSubdivision;Fznal,Consinicnon Pian Review-1-Doc
•
April 10, 2006
East West Partners
Attn: Andy Gunion
P.O. Drawer 2770
Avon, CO 81620
RE: RIVERFRONT VILLAGE - MASTER LANDSCAPING & PLAZA PLAN
CONDITIONALLY APPROVED BY PLANNING COMMISSION
Andy:
At their April 4, 2006 meeting,. the Planning and Zoning Commission approved the
above-mentioned plan with the following conditions:
1/ All lighting submitted is only conceptually approved, and will require
submittal of a site lighting plan in conformance with Chapter 15.30
0 ("Outdoor Lighting Standards") prior to final approval. Street lighting
fixtures will match those selected for use in the Town Center project. The
Tract A bollard option shall be resubmitted (both concrete and wood are
not approved as submitted). Lighted bollards shall be used at the
pedestrian crossing of Riverfront Lane.
2/ Bollard alignment between Riverfront Lane and railroad to be curved to
match the auto lane curve on the western side of this intersection.
3/ Concrete pan extending from Riverfront ROW to western edge of auto
lane shall be deleted. Concrete shall be flush with material at this area.
4/_ Stamped or scored concrete to be utilized at crosswalk with no greater
than a 2' score to create a material difference of the crosswalk. The
crosswalk will be elevated at least 2 inches in 2 feet at the transition from
both approaches.
5/ Traffic calming devices such as a flower box shall be introduced in the
Riverfront ROW at the crosswalk. The approach to this pedestrian
crosswalk shall be designated as a 15 MPH speed limit at locations noted
in this report.
6/ Concrete from terminus of public plaza to river path shall be stained or
colored to compliment retaining wall and plaza color and material palette.
•
F,Tlanning & Zoning CommissionWeeting Leuers000610404061Riverfronl Landscaping & plaza approveddoc
7/ The restroom/gondola operations building will be resubmitted in context
with the hotel design review. Snow shedding will be incorporated and
reviewed as part of the snow management plan for this building.
8/ Minimum quantities for landscape plan shall be increased to 6-8 trees for
each 650 square feet of landscape plan to conform to submitted plans
shown for public areas (Riverfront Lane & Entrance and below retaining of
plaza). One tree and three shrubs per 650 square feet (ten shrubs may be
substituted for one tree) is approved as the minimum for each individual
lot, and shall be reviewed separately during design review for each
submittal.
9/ Fencing along Railroad ROW will be specified and approved separately.
10/ Additional evergreen trees shall be introduced at the base of the retaining
wall below the public plaza and the minimum height of these trees shall be
15' tall at time of installation.
11/ The crosswalk at Riverfront Lane shall be installed by the opening day of
the gondola.
12/ Snowmelt down the stairs of the public plaza to the river access trail shall
be reviewed with the hotel design review.
13/ Use of Spruce trees behind the Avon Transit Directional Sign shall be
slightly tapered and pulled to the east to avoid obstruction of view.
Feel free to call our office if you have any questions regarding your approval at
970.748.4030.
Kind Regards,
Matt Pielsticker
Planner I
Cc: File
•
EXHIBIT B
Subdivision Improvements Agreement
PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE
•
•
SIA-Riverfront-4 27 cln
10
EXHIBIT B
Subdivision Improvements Agreement
PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE
Road, Grading, Drainage, Water, Sewer and Utilities
Per,Riverfront Subdivision Bid Tab (Attached) $ 4,141,457
Landscape Master Plan
Per Riverfront Drive ROW Cost Estimate (Attached) $ 349,221
Natural Gas Service (Excel Energy)
Town of Avon Estimated Cost $ 200,000
Contract Administration & Contingencies
Town of Avon Estimate at 15% $ 703,602
Total Estimated Cost $ 5,394,-280
•
•
•
SIA-Rivekront-4 27 cin 2
RIVERFRONT SUBDIVISION -ALPINE
BID TAB
ENGINEERING INC
March 28, 2006
•
•
B& B Excavatin
Item
Description
Unit
Quantity
Unit Price
Total
1
Mobilization
LS
1
$ 263,500.00
$ 263,500.00
2
Traffic Control
LS
1
$ 99,075.00
$ 99,075.00
3
Obstruction Removal
LS
1
$ 190,000.00
$ 190,000.00
4
Clearing
LS
1
$ 35,000.00
$ 35,000.00
Subtotal
S 587,575.00
ROADS
5
Topsoil Remove and Stockpile
CY
2,594
$ 5.10
$ 13,229.40
6
Tops il Replace (6"
CY
2,038
$ 8.15
$ 16,609.70
7
Excavation
CY
12,344
$ 4.70
$ 58,016.80
8
Embankment
CY
33,402
$ 4.50
$ 150,309.00
9
Borrow, Haul, and Embankment
CY
22,365
$ 4.12
$ 92,143.80
10
Export o Unsuitable Material
CY
4,200
$ 17.00
$ 71,400.00
11
Borrow, Haul, and Embankment (for
replacing unsuitable material)
CY
4,200
$ 4.12
$ 17,304.00
12
Overexcavation of Man-placed Fill
CY
8,713
$ 4.00
$ 34,852.00
13
Embankment for Overexcavation of Man-
placed Fill
CY
10,020
$ 4.50
$ 45,090.00
14
MSE Walls using Modular Block
SF
1,770
$ 50.82
$ 89,951.40
15
MSE Walls with Modular Block and
Veneer
SF
1,282
$ 82.93
$ 106,316.26
16
Guardrail
LF
141
$ 186.00
$ 26,226.00
17
Jersey Barricade (CDOT Type 4
LF
130
$ 34.00
$ 4,420.00
18
Removable Bollards
EA
2
$ 605.00
$ 1,210.00
19
Concrete Curb and Gutter (2.5)
LF
3,711
$ 25.31
$ 93,925.41
20
6"Median Curb and Gutter
LF
34
$ 47.39
$ 1,611.26
21
4" Mountable Median Curb and Gutter
LF
III
$ 32.48
$ 3,605.28
22
4' Concrete Pan
LF
731
$ 57.79
$ 42,244.49
23
Concrete Sidewalk
SF
11,613
$ 7.59
$ 88,142.67
24
Class 6 ABC (for roads
TON
2,353
$ 26.18
$ 61,601.54
25
Class 6 ABC (for connecting the
TON
583
$ 25.50
$ 14,866.50
26
Class 6 ABC (Sales Center Parkin
TON
159
$ 26.25
$ 4,173.75
27
Asphalt for roads)
TON
1,687
$ 58.50
$ 98,689.50
28
Asphalt (for connecting paths)
TON
189
$ 64.00
$ 12,096.00
29
Asphalt Overlay (path)
TON
341
$ 65.60
$ 22,369.60
30
Asphalt (Sales Center Parkin
TON
74
$ 64.00
$ 4,736.00
31
Widen Existing Path
LF
1,598
$ 34.00
$ 54,332.00
32
ADA Ram
EA
26
$ 962.90
$ 25,035.40
33
Stop Bar Striping
EA
1
$ 397.00
$ 397.00
34
Turn Arrows
EA
4
$ 350.00
$ 1,400.00
35
4" Solid Line Striping
LF
3,486
$ 0.76
$ 2,649.36
36
6" Dashed Line Striping
LF
90
$ 1.20
$ 108.00
37
8" Dashed Line Striping
LF
53
$ 1.52
$ 80.56
38
811 Solid Line Stri in
LF
225.
$ 1.52
$ 342.00
39
Parkin Area Striping
LS
1
2266
$ 2,266.00
40
Signs
EA
21
$ 345.00
$ 7,245.00
41
Paver Crosswalks
EA
6
$ 14,619.27
$ 87,715.62
42
Paver Transit Area
LS
1
$ 26,240.92
$ 26,240.92
B & B Excavatin
43
Pedestrian Rail
LF
223
$ 133.00
$ 29,659.00
44
Path Rail
LF
303
$ 100.00
$ 30,300.00
45
Concrete Wheel Stops
EA
7
$ 90.00
$ 630.00
Subtotal
S 1,443,541.22
DRAINAGE
46
Sand Oil interceptor
EA
2
$ 16,814.00
$ 33,628.00
47
Manhole 4' Diameter
EA
10
$ 1,455.00
$ 14,550.00
48
Manhole 5' Diameter
EA
1
$ 2,333.00
$ 2,333.00
49
Manhole 6' Diameter
EA
1
$ 7,750.00
$ 7,750.00
50
Curb Inlet
EA
2
$ 2,300.00
$ 4,600.00
51
Inlet T e C
EA
2
$ 2,565.00
$ 5,130.00
52
Inlet Type D
EA
1
$ 3,303.00
$ 3,303.00
53
Inlet Type R-5 Foot
EA
11
$ 6,740.00
$ 74,140.00
54
Inlet Type R-10 Foot
EA
2
$ 6,616.00
$ 13,232.00
55
Inlet Type R-15 Foot
EA
1
$ 6,550.00
$ 6,550.00
56
18" RCP Class III)
LF
1,451
$ 84.96
$ 123,276.96
57
24" RCP (Class III)
LF
631
$ 99.68
$ 62,898.08
58
48" RCP (Class III
LF
114
172.2
$ 19,630.80
59
18" Concrete End Section
EA
2
$ 408.00
$ 816.00
60
24" Concrete End Section
EA
3
$ 477.00
$ 1,431.00
61
48" Concrete End Section
EA
1
$ 1,750.00
$ 1,750.00
62
4" PVC
LF
62
$ 96.85
$ 6,004.70
63
12" PVC
LF
18
$ 80.76
$ 1,453.68
64
Concrete Collar
EA
1
$ 692.00
$ 692.00
Subtotal
$ 383,169.22
EROSION AND SEDIMENT CONTRO
L
65
Stabilized Construction Entrance
EA
1
$ 3,330.00
$ 3,330.00
66
Silt Fence
LF
2,525
$ 4.34
$ 10,958.50
67
Rip Rap (inlet/outlet protection) d50=12"
SY
18
$ 75.00
$ 1,350.00
68
Rip Rap (inlet/outlet protection) d50=24"
SY
75
$ 129.00
$ 9,675.00
69
Erosion Control Mat
SY
451
$ 8.35
$ 3,765.85
70
Sediment Trap
LS
1
$ 8,500.00
$ 8,500.00
Subtotal
$ 37,579.35
WATER
71
12" DIP
LF
2,466
$ 92.43
$ 227,932.38
72
8" DIP
LF
81
$ 84.28
$ 6,826.68
73
6" DIP
LF
96
$ 67.18
$ 6,449.28
74
4" DIP
LF
42
$ 97.42
$ 4,091.64
75
2" Type K Copper Water Service
LF
25
$ 61.86
$ 1,546.50
76
1 " T e K Copper Water Service
LF
20
37.9
$ 758.00
77
24" Gate Valve
EA
4
20,735.00
$ 82,940.00
78
12" Gate Valve
EA
11
$ 2,096.00
$ 23,056.00
79
8" Gate Valve
EA
2
$ 1,153.00
$ 2,306.00
80
6" Gate Valve
EA
3
$ 800.00
$ 2,400.00
81
4" Gate Valve
EA
1
$ 669.00
$ 669.00
82
Air Release Vault
EA
3
$ 7,381.00
$ 22,143.00
83
Fire Hydrant assembly
EA
8
$ 6,490.00
$ 51,920.00
Subtotal
$ 433,038.48
SEWER
84
30" DIP (class 56)
LF
321
515.5
$ 165,475.50
85
10" Yelomine
LF
1,760
$ 79.20
$ 139,392.00
86
8" PVC Sevice
LF
226
$ 59.05
$ 13,345.30
87
6" Yelomine Service
LF
22
$ 115.50
$ 2,541.00
•
•
•
C
•
B & B Excavatin
88
4" PVC Service
LF
67
$ 62.00
$ 4,154.00
89
Manhole (4' diameter
EA
11
$ 1,852.00
$ 20,372.00
90
Manhole (5' diameter)
EA
3
$ 2,492.00
$ 7,476.00
91
Manhole (6' diameter
EA
4
$ 4,012.00
$ 16,048.00
92
Sewer Video
LF
2,081
$ 2.89
$ 6,014.09
Subtotal
$ 374,817.89
SHALLOW UTILITIES
93
Trenching
LF
3,948
$ 16.86
$ 66,563.28
94
Trenching (Path Lighting Conduit
LF
2,005
$ 7.60
$ 15,238.00
95
Electric Conduit 4" Primary (install)
LF
4,360
$ 2.42
$ 10,551.20
%
Electric Conduit 4"Secondary
LF
6,321
$ 4.16
$ 26,295.36
97
Telephone Conduit 4"
LF
3,484
$ 4.16
$ 14,493.44
98
Fiber Optic Conduit 4"
LF
6,411
$ 4.16
$ 26,669.76
99
Cable Television Conduit 4"
LF
3,404
$ 4.16
$ 14,160.64
100
Spare Conduit 4"
LF
6,978
$ 4.16
$ 29,028.48
101
Transformer UMI-13S (install)
EA
3
753.32
$ 2,259.96
102
Transformer UMI-1 IS (install)
EA
7
$ 753.32
$ 5,273.24
103
Communication 4484-TCA Vault
EA
7
$ 9,720.00
$ 68,040.00
104
Electric UM35L Slice Vault (install)
EA
2
$ 753.32
$ 1,506.64
105
Fiber tic/Phone 38y-5106-TCA Vault
EA
2
$ 14,800.00
$ 29,600.00
106
Handhole
EA
12
$ 2,100.00
$ 25,200.00
107
Gas Trenching
LF
2,108
$ 15.07
$ 31,767.56
Subtotal
$ 366,647.56
ELECTRICAL
108
City of Avon Light Fixture
EA
25
5343
$ 133,575.00
109
Bike Path Low Level Bollard
EA
77
3191
$ 245,707.00
110
Holiday Lighting Receptacles
EA
38
552
$ 20,976.00
i l l
Electrical Service
EA
1
16312
$ 16,312.00
112
Electrical Service to Future Signs
EA
2
2549
$ 5,098.00
113
Electrical Branch Circuit Wiring
EA
1
93420
$ 93,420.00
Subtotal'
$ 50,088.00
]
GRAND TOT~i~ (Base Bid Price) -
,
-
F7
$ 4,141,456.72
•
SIA - Landscape Estimate.XLS
RIVERFRONT VILLAGE
LANDSCAPE MASTER PLAN
Riverfront Dr ROW
Cost Estimate
Terrasan
3/30/2006
;.:..A1tt17.:`
EARTHWORK $25,000.00
Imported Topsoil 1000 cy $25.00 $25,000.00
IRRIGATION $43,100.00
Planting Beds 16700 sf $1.00 $16,700.00
Backflow/Controller 2Is $3,000.00 $6,000.00
Sod 24000 sf $0.85 $20,400.00
SOIL PREPARATION
$25,685.00
Planting Beds/Sod
467.00 sf
$0.50
$23,350.00
Fine Grading
46700 sf
$0.05
$2,335.00
LAWNS & GRASSES
$25,500.00
Reseed Disturbed Area
10,000 sf
$0.25
$2,500.00
Sod
24,000 sf
$0.75
$18,000.00
Erosion Control
1 Is
$5,000.00
$5,000.00
TREES, SHRUBS, VINES, GRD.COVERS,PERENNIALS
$229,936.00
Aspen 2 1/2"
20 ea
$250.00
$5,000.00
Aspen 3"
35 ea
$300.00
$10,500.00
Aspen 4"
29 ea
$450.00
$13,050.00
Spruce 18'-20'
/ 7 ea
$3,000.00
$21,000.00
Spruce 16'
7 ea
$2,000.00
$14,000.00
Spruce 14'
20 ea
$1,400.00
$28,000.00
Spruce 12'
40 ea
$900.00
$36,000.00
Spruce 10'
69 ea
$750.00
$51,750.00
Deciduous Shrub 5gal
500 ea
$30.00
$15,000.00
B& B Evergreen Shrubs
0 ea
$250.00
$0.00
Peren./Grd.Cover 1 gal
1500 sf
$6.00
$9,000.00
Annuals
5000 ea
$1.75
$8,750.00
Mulch
16700 sf
$0.50
$8,350.00
Steel Edging
1192 If
$8.00
$9,536.00
TOTAL
$349,221.00
•
Page 1
EXHIBIT C'
Subdivision Improvements Agreement
DISTRICT FUNDING -RESOLUTION
•
•
SIA-Riverfront-4 27 cln . I 1
EXHIBIT C _
Subdivision Improvements Agreement
DISTRICT FUNDING RESOLUTION
•
S1A-Riverfront4 27 cln
11
r~
RESOLUTION
OF
CONFLUENCE METROPOLITAN DISTRICT
REGARDING APPROPRIATION OF FUNDS UNDER
SUBDIVISION IMPROVEMENTS AGREEMENT
RIVERFRONT SUBDIVISION
WHEREAS, the Confluence Metropolitan District (the "District") is a quasi-
municipal corporation and political subdivision of the State of Colorado; and
WHEREAS, the District is authorized, pursuant to Section 32- 1 - 100 1 (1)(d)(I),
C.R.S., to enter into contracts and agreements affecting the affairs of the District; and
WHEREAS, the District has entered in to a certain "Riverfront Subdivision
Subdivision Improvements Agreement," dated as of , 2006, together
with the Addendum to the Subdivision Improvements Agreement attached thereto (the
"SIA") with the Town of Avon, Colorado (the "Town") regarding the funding and/or
construction of public infrastructure improvements in connection with the approval of the
"Amended and Restated Development Agreement for The Confluence" (the "Project"
and the "Development Agreement, respectively"), which will now be replatted as
Riverfront Subdivision; and
0 WHEREAS, the District is responsible for the performance and completion of
public improvements set forth on Exhibit A of the SIA (the "Improvements");
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS
OF THE CONFLUENCE METROPOLITAN DISTRICT AS FOLLOWS:
1. The Board of Directors hereby finds, determines and declares that it is in
the best interests of the District to execute and deliver to the Town the SIA, and the
appropriate officers and directors of the District are hereby authorized to execute and
deliver the SIA to the Town.
2. The Board of Directors hereby appropriates and reserves to the Town
pursuant to the SIA the amount of $ to guarantee construction of the
Improvements, such amount to be subject to replacement by the proceeds of bonds to be
issued by the District and certified to the Town as provided in the SIA, and as further set
forth in Paragraph 3 below (the "Interim Funds").
3. At such time as the District issues Bonds to replace the remaining balance
in the Interim Security Account (as that term is defined in the Addendum to the SIA), the
Board of Directors shall appropriate, and reserve to the Town pursuant to the SIA, and
subject to the terms of the Indenture of Trust between the District and its Indenture
Trustee (the "Indenture Trustee"), relating to the issuance of the District's Tax Supported
is Variable Rate Revenue Bonds (the "Bonds"), proceeds of the Bonds in the amount of the
deposit required to replace monies then on deposit in the Interim Security Account (the
"Bond Funds") to guarantee construction of the Improvements.
4. The Board of Directors hereby certifies to the Town Council that the
Interim Funds are unencumbered -and free from claims from third parties, so that any
requests-by the Town for payment under the SIA may be promptly honored in accordance
with the terms of the SIA. The Board of Directors further certifies that the Interim
Security Account is a separate' account and reserved for the uses specified in the SIA,
and shall,be held in compliance with the requirements of Section 2971-803(l), C.R.S., for
the purposes of providing for the completion the Improvements.
3.: To the extent that Bond Funds-are used to replace the Interim Funds, the
Board of Directors. hereby certifies to the Town Council,that.the'Bond Funds are being,-
held by the Indenture Trustee pursuant to the Indenture of Trust, and are otherwise
unencumbered and free from claims frorn third"parties, so-that any'requests by the Town
for payment under the SIA may be promptly, honored if presented to the Indenture _
Trustee as provided in the Indenture of Trust. The Board of Directors further,.certifes
that Construction Fund~in-which the Bond Funds are held under the Indenture of Trust, is
a separate account (the "Security Account") and-reserved for the uses specified in the -
SIA, and shall be held in compliance with, the requirements of,Section 294-803(1),
C.R.S., for the purposes of providing for the completion the Improvements,
4. This Resolution shall be renewed at the beginning of :each subsequent
calendar year until all the Improvements have received final acceptance,or until the
District provides substitute collateral'acceptable'to the Town.
APPROVED AND ADOPTED THIS _ DAY OF , 2006
CONFLUENCE METROPOLITAN DISTRICT
ATTEST
By-
President
By:
Secretary
•
TEAKEJCSIMONTONO 200615952
23
EC: 16 00 DOC: $04:52:20Pn 06/15/2006
` R
I~
f
ADDENDUM TO
THIS ADDENDUM TO RIVERFRONT SUBDIVISION IMPROVEMENTS
AGREEMENT ("this Addendum"), made and entered into thisa-)ziay of
2006, is by and among Confluence Metropolitan District, a Colorado quasi-muni ]p
corporation and political subdivision of the State of Colorado (the "District"), and the
Town of Avon, a Colorado municipality, by and through its Council (the "Town"). /
RECITALS
WHEREAS, the District, in connection with the approval of the final plat for the
Riverfront Subdivision, consisting of 18.89" acres in the Town of Avon, Eagle County,
Colorado (the "Subdivision"), will enter into a Subdivision Improvements Agreement
("Agreement") with the Town as provided for by Section 16.24.100 of the Avon
Municipal Code, as amended (the "Code"); and
WHEREAS, pursuant to the Code, the Town desires to make reasonable
provisions for completion of certain public improvements ("Improvements") as depicted
on the plans approved by the Town for the Subdivision dated M cf~c -,5,0 ;ar~~
("Approved Plans") and as identified in Exhibit A attached to the Agreement, together
with minor changes approved by the Town Engineer; and
WHEREAS, the initial security to be provided for funding of the Improvements
will be a cash deposit furnished by the District. which cash deposit is expected to be
replaced by cash proceeds from the issuance of bonds by the District;
WHEREAS, this Addendum will supersede the Agreement in part until the cash
deposit is replaced by cash proceeds from the issuance of bonds by the District;
AGREEMENT
NOW THEREFORE, the parties hereby agree that the following sections of the
Agreement shall be superseded as follows until such time as the cash deposit is replaced
by cash proceeds from the issuance of bonds by the District:
4. District Obligations Concerning Improvements.
(a) Funding Resolution. The District has adopted a resolution (the
"Funding Resolution") attached as Exhibit C to the Agreement authorizing the District's
execution of this Addendum and the Agreement and providing for the appropriation.
segregation and use of funds in an amount sufficient to guarantee the construction of the
RIVERFRONT SUBDIVISION
SUBDIVISION IMPROVEMENTS AGREEMENT
SlA 051106 redline
Improvements as set forth on the Approved Plans., The estimated costs of completion of
the Improvements are set forth on Exhibit'B to"ihe Agreement.
The Town acknowledges and agrees that the initial security'to be provided
for funding of the Improvements will be a cash deposit furnished by the District, which
cash deposit is expected-to be replaced by.cash proceeds from the issuance of bonds by
the District. The Town shall have access to such cash deposit as provided for in this
Addendum.
Following the issuance of bonds by the District, the District shall provide
evidence that bond proceeds equal to the amount of security required for the
Improvements under this Agreement are on deposit with the Bond Trustee. At such time
the remainder of the cash deposit shall be released. The Town agrees to use ,the cash
deposit only for the purpose of paying,the costs of the Improvements, and not to apply
such funds for purposes not authorized in the Indenture.of Trust.
The Funding Resolution " specifically provides that all funds referenced
therein are unencumbered and free from claims of others such that, if necessary, any
requests for payment approved by the Town may be promptly honored. As a condition to
recordation of the Final Plat, the District shall provide evidence to the Town that such
funds have been segregated in a separate, interest bearing account (the "Interim Security
Account") and identified for use in connection with this Agreement.
(b) Progress Payments on Improvements. The District may make
progress payments to -its contractors from the Interim Security .Account on a monthly
basis upon the partial completion of itemized Improvements and upon.fifteen (15) days'
prior written notice, which notice will include an itemized statement of the monthly
payment, to the Town. The District shall retain ten percent (10%) of the amount of each
payment until final completion and acceptance of all work covered by each construction
contract; provided, however, when the value of work completed has progressed, to fifty,
percent (50%) of the contract amount, the District shall not be required to withhold
additional retainage for the remainder of the work under such contract. The ten percent
(10%) retainage of the value of the work completed may be reinstated if in the Town's
opinion the lack of progress or other substantial reasons exist. Subject to the foregoing,
in no event shall any progress payment cause the remaining sum to be available in the
Interim Security Account for subsequent disbursements to be less than one hundred ten
percent (I 10%) of the costs to complete all remaining Improvements as estimated at the
time of each progress payment. Upon completion of all work related to the
Improvements, the Town's acceptance of the Improvements and the expiration of the
Warranty Period as set forth in paragraph 5 below the Town shall release any further
interest in the Interim Security Account, unless earlier released pursuant to Section 4(a)
above.
(c) Default by District. In the event of a default in whole or in part by
the District, the Town shall be authorized to access the funds in the Interim Security
SIA 051106 redline 2
Account for the purpose of undertaking completion or remediation work on the .
Improvements after providing thirty (30) days' advance written notice of default and
providing a opportunity during such period for the District to cure the default. The Town
shall be entitled to draw on the Interim Security Account by Resolution of the Town
Council stating (i) that the District is in default, and (ii) the funds are required in order to
complete or correct work on the Improvements.
The parties heretp;ha:executed this Addendum as of the date first above written.
TOWN OF AVON, a Colorado Municipal
Vi=n 11 Corporation
A7 "n.
By:
Patty teny, To
7ler Ronald C. Wolfe, Mayor
V(!-
APPROV 7 AS TO FORM: -
John . Dunn, Town Attorney
DISTRICT:
CONFLUENCE METROPOLITAN
DISTRICT
Eagle County, Colorado
By: j
Nam r s
Tit e: 5?,!
i
SIA 051106 redline
EAGLE COUNTY, CO 200615953
TEAK J SIMONTON 06/ 15/2006
23 Pgs: 10 04 52=21PM
REC: $51.00 DOC: $
GUARANTY AGREEMENT
FOR
RIVERFRONT EXPRESS GONDOLA CONSTRUCTION
THIS GUARANTY AGREEMENT, made and entered into this d2 'day of
, 2006, is by and among confluence Metropolitan District, a Colorado quasi-
m ci al corporation and political subdivision of the State of Colorado (the "District") o
and e Town of Avon, a Colorado municipality, by and through its Council (the
"Town").
RECITALS
WHEREAS, the District, in connection with the Riverfront Subdivision,
consisting of 18.893 acres in the Town of Avon, Eagle County, Colorado (the
"Subdivision"), desires to enter into this Guaranty Agreement For Construction of
Riverfront Express Gondola ("Agreement") with the Town to secure the funding for
construction of the Riverfront Express Gondola (the "Gondola") as contemplated by that
certain "Amended and Restated Development Agreement, by and between the Town and
Avon Confluence, LLC (as then assigned to East West Resort Development XIV, L.P.,
L.L.L.P., a Delaware limited partnership registered as a limited liability limited
partnership, "East West"), dated March 14, 2006, and as provided for in that certain
"Purchase and Installation Agreement" by and between East West and
Doppelmayr/CTEC, Inc. ("Doppelmayr"), dated March 23, 2006 (the "Gondola
Construction Agreement"); and
WHEREAS, the Gondola is not a public improvement being constructed for the
purpose of dedication to the Town for ownership, operations and maintenance, and
accordingly the Town has not established specific design standards therefor; and
WHEREAS, East West has completed design of the Gondola with the advice and
approval of the Town, and has issued a Notice to Proceed to Doppelmayr under the
Gondola Construction Agreement, to commence pre-construction activities for the
Gondola; and
WHEREAS, the District intends to issue bonds to fund the construction of the
Gondola, in advance of which East West intends to assign the Gondola Construction
Agreement to the District, and loan sufficient funds to the District to fund the cost of
construction as set forth therein; and
WHEREAS, the parties desire to establish the terms and conditions upon which
the District shall guarantee construction of the Gondola;
•
Gondola Guaranty Agreement Q wpa051506.doc
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants,
conditions and promises, the parties hereby agree as follows:
1. Completion of Work.
(a) Performance. The District agrees to furnish all 'equipment, labor
and material necessary to construct in a good and workmanlike manner, the Gondola
pursuant to the design as set forth in the Gondola Construction Agreement. The District
shall have the right to amend or modify the Gondola Construction Agreement as may be
necessary to facilitate completion of the Gondola in substantial conformity 'to the design
as presently set forth in the Gondola Construction Agreement.
(b) Observation of Construction by Town.
(i) The Town shall have the right to observe the construction
of the Gondola and to' enter onto the project site for such purposes. Observation of
construction by the Town shall not relieve the District or its respective agents 'from any
responsibility or obligation to assure that all work is, completed in conformance with the
specifications set forth in the Gondola Construction Agreement. .The Town shall be
responsible for any costs associated with such observation activities provided the District
has paid all building permit fees.
(ii) Notice of Material Non-Compliance. In the event that the
Town reasonably determines that construction of the Gondola is proceeding in material
violation of the design 'specifications set forth in the Gondola Construction Agreement,
and that such material violation will prevent the Gondola from being used for its intended
purpose, it shall give written notice 'of such material non-compliance to the' District
("Notice of Material Non-Compliance"). The Notice of Material Non-Complia nce shall
include a narrative describing the unsatisfactory construction work with specific ieference
to the,applicable construction plans and specifications. The Notice of Material Non-
Compliance must be provided to the District within two (2) working days of the date of
the observation. The notice may be provided in an informal manner agreed upon by the
parties and without compliance with Paragraph 9 hereof. Thereafter, the parties shall
cooperate in good faith to resolve the issue,- failing which: the Town shall have the
remedies specified in Paragraph 4(a) hereof.
(iii.) Enforcement of Building Codes. Nothing contained herein
shall limit the_ rights and remedies of the Town contained in the applicable building
codes.'
•
Gondola Guaranty Agreement Q wpa051506.doc 2
2. Security for Completion of the Gondola. To secure completion of the
Gondola the District hereby, agrees to secure the respective obligations under this
Agreement as hereinafter provided.
(a) District Guaranty. Upon assignment of the .Gondola Construction
Agreement from East West to the District, the District shall be responsible, - for
guaranteeing construction of the Gondola., The, District shall guarantee,the balance of the
costs of construction of the Gondola due under. the Gondola Construction Agreement,
taking into account all prior payments made by East West thereunder, and all reductions
or increases to the contract price resulting from change orders or other contract
modifications approved in writing by East West and Doppelmayr prior to the effective
date of the assignment of the Gondola Construction Agreement to the District. - The
District shall comply with the following to fulfill its guarantee requirements:
(i) Funding Resolution. At the time of execution hereof, the
District shall have adopted a resolution (the "Funding- Resolution") attached hereto as
Exhibit A authorizing the -District's, execution of this Agreement, .and providing for the
appropriation, segregation and use of funds in an, amount -sufficient to guarantee the
construction of the Gondola required in subparagraph 2(a), above. A separate account
shall be established, to track funds reserved for use in funding Gondola costs., The Town
shall be entitled to examine the Indenture Trustee's bank records to assure compliance
with these terms. The District shall renew the Funding Resolution at the beginning. of
each subsequent calendar year until final payment to Doppelmayr has been made. The
Funding Resolution specifically provides that, subject to the terms of the Indenture of
Trust, all funds referenced therein are unencumbered and free from claims of others such
that, if necessary, any requests for payment approved by the Town-may be promptly
honored. - The District shall provide evidence to the Town that such funds have been ,
segregated, in a-separate, interest bearing account and identified for use in connection with
this Agreement.
(ii) Initial Security/Substitute Securi ty. The Town
acknowledges and agrees that the initial security to be provided for, funding of the
Gondola will be a cash deposit. furnished by--the-District ("the Initial-Gondola Account"),
which cash deposit is expected to be replaced by cash proceeds from the issuance of
bonds, by ,the District ("the Gondola Bond Account"). The Town shall have access to
such cash ' deposit in the event of default as provided for in, this Agreement. Following
the issuance of bonds by the District, the District shall provide evidence that bond
proceeds equal to the amount of security required for the Gondola under Paragraph 2(a)
hereof are on deposit with the Bond Trustee in an account segregated for funding of the
Gondola Bond Account. At such time the remainder of the initial cash deposit in the
Initial Gondola Account shall be released. The Town 'agrees to use, any deposits
furnished as security by the District hereunder only for the .purpose of paying the
costs of the Gondola, and not to apply such funds for purposes not authorized in the
Indenture of Trust.
Gondola Guaranty Agreement Q wpa05l5O6.doc
(iii) Indenture of Trust Procedures. In accordance with the
terms of the Indenture of Trust by which the District's bonds will be issued, the Bond
Trustee will serve as custodian of the bond proceeds to ensure that such proceeds are
applied for the purposes of funding the Gondola. The procedure by which funds are
released involves the filing of "Draw Requests" together with related invoices with the
Bond Trustee. The Indenture of Trust shall contain provisions authorizing the Town to
submit Draw Requests to the Bond Trustee, in order to effectuate the Town's remedies to
draw funds for constructing the Gondola, in the event of a default by the District
hereunder.
(iv) Progress Payments by District. The District may withdraw
funds from the Initial Gondola Account or the Gondola Bond Account as needed to pay
costs under the Gondola Construction Agreement; provided, however, the District shall
not be authorized to withdraw funds from the Initial Gondola Account or the Gondola
Bond Account , as applicable, to the extent doing so would reduce the balance remaining
in the Initial Gondola Account or the Gondola Bond Account , as applicable, to an
amount below the unpaid balance of the contract price or the estimated costs of
completion, whichever is greater. The Town shall be entitled to examine the District's
financial records to assure compliance with these terms. Further, upon fifteen (15) days
written notice from the Town, the District agrees to provide a written statement to the
Town containing the following details: the total amount on deposit in the Initial Gondola
Account or Gondola Bond Account, as applicable; and the unpaid balance of the contract
price.
3. Retainage Provisions. The Town acknowledges that the Gondola
Construction Agreement contains agreed-upon terms governing retainage for progress
payments, and that such amounts are established pursuant to the provisions concerning
retainage on public works projects. The District agrees that the retainage provisions set
forth in the Gondola Construction Agreement shall not be modified, except with the
concurrence of the Town.
4. Default.
(a) In the event of the issuance of a Notice of Material Non-
Compliance as permitted in Paragraph 1(b)(ii) hereof, and the failure of the parties to
reach settlement thereof within sixty (60) days, the Town shall have the right to seek
injunctive relief against the District to enforce the terms of this Agreement.
(b) The following events shall entitle the Town to access the Initial
Gondola Account or the Gondola Bond Account , as appropriate, to complete
construction of the Gondola, following written notice to the District and a period of thirty
(30) days thereafter for the District to cure such default:
•
Gondola Guaranty Agreement Q wpa05l 506.doc 4
(i) The filing of an action by Doppelmayr claiming breach of
contract on the part of the District, due to failure to pay for.work performed in accordance
with the Gondola Construction Agreement;
(ii) Termination of the Gondola Construction Agreement by the
District, as applicable, without the execution of anew construction agreement within
sixty (60) days thereof, by which the Gondola will - be constructed or completed
substantially in accordance 'with the design specifications applicable to the Gondola
Construction, Agreement;
(iii) The filing of a voluntary petition under- federal or state
bankruptcy or insolvency_ laws,~by the District, as applicable, ~ or. the appointment of a
receiver for any of the assets of the District, as applicable, .which is not remedied or cured
within 30 days of such filing or appointment;
(iv) The dissolution, insolvency, or, liquidation of the District,
as applicable, and a failure.to cure such dissolution, insolvency or liquidation within ten
days of receipt, of written notice.
(c) Where the Town - is authorized to . draw . on the- Initial Gondola
Account or the Gondola Bond Account , as applicable, such draw shall be preceded by
the adoption of a,Resolution of the,Town Council stating (i) that the District is in default
under applicable provisions of Paragraph 4(b), and (ii) the funds are required in order to .
complete work on the Gondola.
(d) following compliance with the provisions of Paragraph 4(b)
above, and subject to compliance with the terms of accessing the Initial Gondola Account
or the Gondola Bond Account ''the Town shall proceed-:*with the construction or
completion of the Gondola to the extent that funds are available in either Account. The
Town may bring a mandatory injunction action against the-District to require installation
and construction of the Gondola. If any'such action is brought by the Town and the Town
prevails in its legal action, the Town shall be awarded its court costs; attorneys' fees and
an amount to compensate the Town for the time of its employees in the preparation of and
- -------participation in-such action. - -
5. No Obligation of Town to Complete Improvements. The District agrees
that in the event it shall fail to perform its obligations as set forth herein, the Town shall
be under no obligation to complete the Gondola (except as set forth in Paragraph 4(d), or
to issue permits for development within the project.
6. Non-Liability of Town; Indemnification. The Town shall not, nor shall
any officer, agent, or employee thereof, be liable or responsible for any accident, loss or
damage related to the construction of the Gondola, nor shall the Town, nor any officer;
agent or employee thereof, be liable for any persons or property injured by reason of the
nature of said construction. To the extent permitted by law, the District hereby agrees to
indemnify and hold harmless the Town, and any of its officers, agents and employees
Gondola Guaranty Agreement v2 wpa051506.doc 5
against any losses, claims, damages or liabilities to which the Town or any of its officers,
agents or employees may become subject, because of any losses, claims, damages or
liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or
omissions in the performance of their respective obligations, as hereinbefore stated.
Furthermore, the District shall reimburse the Town for any and all legal or other expenses
reasonably incurred by the Town in connection with investigating or defending any such
loss or claim.
7. Amendments. This Agreement may be amended from time to time,
provided that such amendment is in writing and signed by all parties hereto.
8. Venue. Venue for any litigation arising out of this Agreement shall be in
the District Court for Eagle County, Colorado.
9. Notices. All notices, demands or other communications required or
permitted to be given hereunder shall be in writing and any and all such items shall be
deemed to have been duly delivered upon personal delivery; or as of the third business
day after mailing by United States mail, certified, return receipt requested, postage
prepaid, to the address set forth below; or as of 12:00 noon on the immediately following
business day after deposit with Federal Express or a similar overnight courier service, to
the address set forth below; or as of the third business hour (a business hour being one of
the hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient) after
transmitting by facsimile to the number set forth below and evidenced by an electronic
delivery receipt:
If to the District:
White Bear and Ankele Professional Corporation
1805 Shea Center Drive, Suite 100
Highlands Ranch, CO 80129
Attn: William P. Ankele, Jr., Esq.
District Counsel
Telephone: (303) 858-1800
Facsimile: (303) 858-1801
with a copy to:
Wear, Travers & Perkins, P.C.
1000 South Frontage Road West
Suite 200
Vail, Colorado 81657
Attn: Richard D. Travers, Esq.
Telephone: (970) 476-7646
Facsimile: (970) 476-7118
If to the Town:
r1
Gondola Guaranty Agreement Q wpa05l506.doc 6
Town of Avon
P.O. Box 975
Avon, CO 81620
Attn: John W. Dunn, Town Attorney
Telephone: (970) 748-6400
Facsimile: (970) 748-8881
The parties hereto have executed this Agreement as of the date first above written.
;a7 . .
T:
att~ Mc envy, Clerk
APPRO ED AS TO FORM:
, i" ll_
Jo W. Dunn, Town Attorney
•
TOWN OF AVON, a Colorado Municipal
Corporation
By:
DISTRICT:
CONFLUENCE METROPOLITAN
DISTRICT
Eagle County, Colorado
By:
Name:
Title:
Gondola Guaranty Agreement Q wpa051506.doc
EXHIBIT A
DISTRICT FUNDING RESOLUTION
•
•
is
Gondola Guaranty Agreement v2 wpa05l 5O6.doc $
RESOLUTION
OF
CONFLUENCE METROPOLITAN DISTRICT
REGARDING APPROPRIATION OF' FUNDS UNDER
GUARANTY AGREEMENT FORtRIVERFRONTEXPRESS GONDOLA
CONSTRUCTION
WHEREAS, the Confluence Metropolitan District (the "'District") is a quasi-
municipal corporation and political subdivision of the State of Colorado; and
WHEREAS, the District is authorized, pursuant to Section 32-1- 1001(1)(d)(I);.
C.R.S., to enter into contracts and agreements affecting'the affairs of the District;-and
WHEREAS, the'District has entered in to a certain "Guaranty Agreement for
Riverfront Express Gondola Construction" dated as of , 2006 (the
"Guaranty Agreement") with the Town of Avon, Colorado (the "Town") regarding the
funding and/or construction of the Riverfront Express Gondola (the "Gondola") is,
contemplated by the "Amended and Restated Development Agreement for.The
Confluence" (the "Development Agreement");-and _
WHEREAS, the District is responsible for the completion of construction of the
Gondola;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS.
OF THE CONFLUENCE METROPOLITAN DISTRICT AS FOLLOWS:
1. The Board of Directors hereby finds, determines and declares that it is in
the best interests of the District to execute and deliver to the Town the Guaranty
Agreement, and the appropriate officers and directors of the District are hereby
authorized to execute and deliver the Guaranty- Agreement to the Town.
2. The Board of Directors hereby appropriates and reserves to the Town
pursuant to the Guaranty Agreement in the amount'of $ ~S D to guarantee
construction of the'Gondola, such amount to be subject to replacement by the proceeds of
bonds to be issued by the District and certified to the Town as provided in the Guaranty
Agreement,, and as further set forth in Paragraph 3 below (the "Gondola Funds").
3. " At such time as the District issues Bonds to replace the remaining balance
in the Interim Gondola Account (as that term is defined in the Guaranty Agreement), the
Board of Directors shall appropriate and reserve to the Town pursuant to the Guaranty
Agreement, and subject to the terms of the Indenture of Trust between the District and its
Indenture Trustee (the "Indenture Trustee"), relating to the issuance of the District's Tax
Supported Variable Rate Revenue Bonds (the "Bonds"), proceeds of the Bonds in the
amount of the deposit required to replace monies then on deposit in the Interim Gondola
Is Account to guarantee construction of the Gondola (the Gondola Bond Account).
4. The Board of Directors hereby certifies to the Town Council that the
Interim Gondola Funds are unencumbered and free from claims from third parties, so that
any requests by the Town for payment under the Guaranty Agreement may be promptly
honored in accordance with the terms of the Guaranty Agreement. The Board of
Directors further certifies that the Interim Gondola Account is a separate account and
reserved for the uses specified in the Guaranty Agreement, and shall be held in
compliance with the requirements of Section 29-1-803(1), C.R.S., for the purposes of
providing for the completion the Gondola.
3. To the extent that Bond Funds are used to replace the Interim Funds, the
Board of Directors hereby certifies to the Town Council that the Bond Funds are being
held by the Indenture Trustee pursuant to the Indenture of Trust, and are otherwise
unencumbered and free from claims from third parties, so that any requests by the Town
for payment under the Guaranty Agreement may be promptly honored if presented to the
Indenture Trustee as provided in the Indenture of Trust. The Board of Directors further
certifies that Construction Fund in which the Bond Funds are held under the Indenture of
Trust, is a separate account (the "Gondola Bond Account") and reserved for the uses
specified in the Guaranty Agreement, and shall be held in compliance with the
requirements of Section 29-1-803(1), C.R.S., for the purposes of providing for the
completion the Gondola.
4. This Resolution shall be renewed at the beginning of each subsequent
calendar year until all the Gondola have received final acceptance or until the District
provides substitute collateral acceptable to the Town.
APPROVED AND ADOPTED THIS _ DAY OF , 2006
CONFLUENCE METROPOLITAN DISTRICT
ATTEST
By:
President
By:
Secretary
0
06-0'•06 01:20pm From-John W Dunn 8 Assoc +6707488881 T-665 P-004/005 F-7922
RESOLUTION
OF
CONFLVMCE METROPOLITAN DISMICT
gIGpRDYr1G APPIt ~PRiA ~ItRSB GONDOLA
GIIA►RANZ'Y A F
CONSTRUCTION
W~EAS, the Coritlueac . Metropolitan District (tbe "`Distici,cn is a quasi -
{p, corporadon and political 6ub&vWgn of the State of Colorado; and
WXERpAS, the Disffict is aathoriad, p==mt to Section 32-1-1001(1)(d)(1),
C.R.S., to eater into contracts and agreeaAeoata atfeeftS the at?fatzs of the District; and
WBEp.,S, the District has entered in to a certain " Glwrauy for
Rivarfiont ress Omdola Construction" dated as of 2006 (the
• j, Agreeiaeat'~ with the Town of Avon, Colorado ( "Town") regardiaa dM
f=ft and/or construction of the Ri G&mt Express Gondola (the `Twndowa as
contemplated by the -Amended and Restated DMlopment A$Teernent for The
ContluenW (*a "Development Agree=V);
WBEREAS, the District is responsible for the completion of constntctioa of the
C3rondola;
WS DIRECTORS
NOW, THUMORB, BE IT RESOLVED ~ E BOARD OF
DISTRICT
Ol? TM CONFLUENCE METRWOLITAN
1. The Board of Directors hereby finds, deteMIANB and declares that it is in
the beet interests of the District to excaute and deliver to the Town din Guaranty
Agreen=t, and the Vp vptiatc oMOM and dhWtora of the District are hereby
m4wrised to execute =d deliver the Gum* Agreement to the Town.
2. 'Me Board of Directors hereby app and reserves to the Town
pursuant to the Guaranty Agreement in the amount of S A I V 6111 j to puzdze
construction of the Gondola, mwh amount to be subject to replacement by the proeee & of
bonds to be issued by the District and certified to the Town ea provided in the ChUMMtY
Agreetaent, and as further set forth in Paragraph 3 below (the -Gondola Funds').
3. At such tune as the District issues Bonds to replace the T=Lfi balance
in tfie Interim Gondola Account (as that term is defined in the Guaranty Agreement), t1M
Board of Directors shall appropriate and reserve to the Town pmw=t to dxe C3ueraatq
Agreemeat, and subject too theta= of the Indenture of Trust between the District and its
Indenture Trustee (rise "radeu=c Trrustee'), relating to the issuance of the District's Tax
Supported Variable Rate Revenue Bonds (the'Box&"), proceeds of the Bonds in the
amount of the deposit required to replace monies tbea on deposit in the Interim Gondola
Accouax to guar=Iw construction of the Gondola (the Gondola Bond Account).
06-Pr'-06 01:20pm FrwJohn W Dunn 8 Assoc
+9707488681 T-665 P.005/005 F-792
the
The Board of Diced= hereby certifies to the Town Couneril that
4. that
efrom claims f~ thiard P ~ so
Intexim le Ptimds are vaencumbeyed and fre ~nt ~y
est by the Town for payma~t undor the GmaM ~eTh®S be
d is acoordanee with the farms of die Agre"en"
state account end
M e c t a ft f u r t h e r c e r t i fi e s t h a t t h e I n t e r i m Gondola A c c o u n t is a sep
Bement, sad shall be held in
reserved for the uses specified is the Ovateaty A8z C.R.S., for the purposes of
complianco wAh the requiromente of Section 29-1-803(l),
ceding for the completion the Gondola.
3. To the wrtent that Bond f=ds are used to replace the rntcdm Funds, the
Board of Direotors hereby certifies to the Town Count Trust and are ndo ar is ft
held by the Indenture Ttvsbee P~~ to ~ h' o
uaencumbmd and free from claims from third parties, so that arty requests by the Tows
for psymmt Cadet the auxmnty Agreement may be promp* honored if pmenxed to the
Indenture T nmtce as provided in 1he Indenture of Trust. Board of 1*~ f141
~e ladesitum of which the Bond Trust, certst, lfie6 is t s hat separate 'uc socdottaunt (the Pend Qondola Bond Account") sad reserved for the vase specified in the Guaranty Agreements and shall be hold in oomphsate with the
requirements of Section 29-1-803(1), CSR S., for the pwposee of providing for the
completion the Gondola.
4. This Resolution shall be renewed at the begftn in of each
the e t
Calendar year uaul all the Gondola have received final accep
provides substitute collateral acceptable to the Town.
APPROVED AND ADOPTED TBIS 2 -3 DAY OF 2006
CONFLUENCE MTROPOLITAN DISTRICT
ATTEST
By.
J,J-. Secretary
0
r '
F ,
• COUNTY, CC ieldift 1 0=14
:".`f'~m. ~•:v-+~ ~p06/15n/200u6
REC: INI IpI 1111111111111111111111111111111111111111 lill 111111111111111 lill
PURCHASE AND INSTALLATION AGREEMENT
BETWEEN
DOPPELMAYR/CTEC, INC.
AND
EAST WEST RESORT DEVELOPMENT MV L.P., L.L.L.P
FOR THE
RIVERFRONT EXPRESS GONDOLA
AVON,COLORADO
•
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TABLE OF CONTENTS
PARAGRAPH PAGE
RECITALS :.............................................................................................................1
AGREEMENT ........................................................:................................................1
CONTRACT DOCUMENTS .....................:..........................................................1
SCOPE OF AGREEMENT .....................................................................................2
EQUIPMENT TO BE PURCHASED AND DELIVERED ....................................3
LIFT PRICES'AND PAYMENT ............................::...............................................4
RISK OF LOSS .........................................................................................:.............:5
OWNERSHIP 5
MARKING 5
TAXES ..................................:..................................................................................5
DELIVERY OF COMPONENTS 6
PREPARATION AND RESTORATION OF JOB SITE ........................................6
PROJECT REPRESENTATIVES ...........................................................................6
INSTALLATION OF LIFT .....................................................................................6--
CHANGES ..............................................................................................................6
COMPLETION AND ACCEPTANCE .............................................:.....................7
LIQUIDATED DAMAGES 7
WARRANTY; BREACH OF WARRANTY ..........................................................8
REMEDIES CUMULATIVE ..................................................................................10
FORCE MAJEURE .................................................................................................10
INFORMATION DISCLOSURE 10
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APPROVAL OF CONTRACTORS AND EMPLOYEES; MECHANIC'S
LIENS ...............................................................................11
COMPLIANCE WITH LAWS; SAFETY PROGRAM ..........................................11
ROADS AND ACCESS WAYS .............................................................................12
COORDINATION AT JOB SITE .......:...................................................................12
CLEANUP ...............................................................................................................12
RULES AND REGULATIONS ..............................................................................12
INSURANCE AND BONDS ..................................................................................12
INDEMNITY ...........................................................................................................14
DEFAULT AND REMEDIES ................................................................................14
WAIVER OF DEFAULT ........................................................................................15
DELEGATION/ASSIGNMENT .............................................................................15
SUCCESSORS AND ASSIGNS .............................................................................15
NOTICES ................................................................................................................15
NONDISCRIM[INATION .......................................................................................16
MISCELLANEOUS ........................................................................16
ENTIRE AGREEMENT........................ 18
EXHIBIT A TECHNICAL SPECIFICATIONS FOR LIFT DESIGN,
ENGINEERING, MECHANICAL AND STRUCTURAL
EQUIPMENT, REVISION 2005 Dated 12/15/2005
(AND ALL ADDENDA THERETO)
EXHIBIT B TECHNICAL SPECIFICATIONS FOR ELECTRICAL SYSTEMS,
DRIVES AND LOW VOLTAGE CONTROLS,
REVISION 2005 Dated 12/15/2005 (AND ALL ADDENDA THERETO)
0 EXHIBIT C DOPPELMAYR/CTEC BID PACKAGE
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EXHIBIT D CHANGE ORDER FORM
EXHIBIT E LIEN WAIVER FORMS
EXHIBIT F MILESTONE DATES
EXHIBIT G DOPPELMAYR/CTEC SAFETY MANUAL
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PURCHASE AND INSTALLATION AGREEMENT
THIS PURCHASE AND INSTALLATION AGREEMENT (the "Agreement"), made
effective this 23 day of Ma .,J,, , 2006, by and between DOPPELMAYRICTEC, INC., a
Utah corporation ("Seller"), whose Federal Identification Number is 41-2030626 and EAST WEST
RESORT DEVELOPMENT XIV L.P., L.L.L.P, a Delaware limited partnership registered as a
limited liability limited partnership ("Buyer"), whose Federal Identification Number is
RECITALS
A. Buyer is the developer of a project known as "Riverfront Express Gondola" (the
"Premises").
B. Buyer desires to install a new eight (8) passenger high-speed, detachable gondola
(the "Lift").
C. Seller desires to sell, deliver and install the Lift to Buyer and Buyer desires to
purchase the same from Seller, as defined in the equipment described below and pursuant to the
terms and conditions contained herein.
AGREEMENT
In consideration of the terms, covenants, conditions and purchase price set forth herein, the
parties hereto agree as follows:
1. CONTRACT DOCUMENTS. The "Contract Documents" shall consist of this
Agreement, Bid Documents, Addendum, and the following documents, all of which are attached to
and the terms, covenants and conditions of which are specifically incorporated into and made a part
of this Agreement except to the extent that the terms of such exhibits may be inconsistent with the
terms contained in the body of this Agreement in which case the terms of the Agreement shall
control:
Exhibit A Technical Specifications for Lift
Design, Engineering, Mechanical
and Structural Equipment,
Revision 2005 Dated 12/15/05 (and all addenda
thereto).
Exhibit B Technical Specifications for
Electrical Systems, Drives and Low
Voltage Controls, Revision 2005 Dated 12/15/05
(and all addenda thereto).
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Exhibit C Doppelmayr/CTEC Bid Package
Exhibit D Change Order Form
Exhibit E Lien Waiver Form
Exhibit F Milestone Dates
Exhibit G Doppelmayr/CTEC Safety Manual
All modifications to this Agreement, or other of the Contract Documents; executed by both parties
following execution of this Agreement shall-automatically become a part of the Agreement upon
execution. The intent of the Contract Documents js to include all items necessary for the proper
completion of the work described herein.
2. SCOPE OF AGREEMENT.
(a) Seller agrees to finish Buyer with the following in connection with this
Agreement:
(i) Lift design and engineering, as more specifically described herein and in
the Contract Documents;
(ii) 'Mechanical and structural equipment, including electrical systems, drives
and low voltage controls, as more specifically described herein and in the Contract Documents;
(iii) Erection and installation of the Lift (as defined in Paragraph 3 below);
and
(iv) Other lift related materials and services '(as described in Exhibit Q.
(v) The Construction Engineer as, defined in the Colorado Passenger
Tramway Safety Board Rules and Regulations, shall be considered an additional representative of
the Buyer. As'such, Seller shallprovide any additional information on the Lift to the Construction
Engineer (on a-timely basis ;as developed); that he or_ she may request. Upon review of either the
original Lift specifications or such additional information, the Construction Engineer may add any
reasonable measurement(s) or test(s) that-he or she deems necessary.
(vi) Seller shall consult with Buyer's designated representative concerning
installation of the new Lift before any earth disturbance, tree removal, or wetlands issues are
initiated.
(b) Buyer shall-be responsible for the following, at its sole cost and expense, in
connection with this Agreement:
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(i) Preparation and restoration of the job site as described in Paragraph 10
hereof; Construction Engineering, as defined in the Colorado Passenger Tramway Safety Board
rules and regulations, in connection with the installation of the Lift; and
(c) Buyer is entering into this Agreement with reliance on Seller's
professional skill and judgment in designing, manufacturing and installing the Lift.
(d) Milestone Dates. The parties mutually agree to accept the Milestone Dates set
forth on Exhibit F, attached hereto and incorporated herein by thus reference. Seller agrees to
provide to Buyer a proposal for the remaining milestone dates prior to April 15, 2006. Buyer and
Seller shall use best efforts to agree upon a complete and final list of milestone dates by May 1,
2006, which list shall then amend and replace Exhibit F. In the event either party believes it will be
unable to meet any of the Milestone Dates, such party shall be obligated to comply with the
following procedure:
(i) Delays Beyond the Control of Seller. If the delays are caused by
circumstances beyond the control of Seller, as defined in Paragraph 18, to specifically include those
delays wholly within the control of Buyer's obligations hereunder and including Buyer's Milestone
Dates, Seller shall immediately notify Buyer that a delay has occurred and provide within five (5)
working days, a cost proposal for measures to mitigate the delays and Buyer shall either:
(a) reject such proposal and equitably adjust the Milestone Dates to
incorporate the delays; or
(b) accept such proposal and issue a Change Order which directs
Seller to implement the measures for the agreed costs.
(ii) Delays Within the Control of Seller. If the anticipated or actual failure to
meet any Milestone Dates is caused by circumstances within the control and/or those which would
be within the control and responsibility of a reasonably prudent Seller, Seller shall notify Buyer of
the measures it proposes (without additional cost to Buyer or increase in the Lift Price) to regain the
lost time and correct and update any subsequent Milestone Dates as often as necessary until the Lift
_ install ion is back on schedule.
3. EQUIPMENT TO BE PURCHASED AND DELIVERED.
(a) Seller agrees to deliver to Buyer, at Buyer's cost and expense one (1) high-speed
detachable gondola, as described in Exhibit C ("the Lift'). Such Lift shall conform to the Technical
Specifications attached hereto as Exhibits A and B and shall be delivered and installed for
completion in accordance with Section 14 hereof, no later than September 30, 2007, provided that
such completion date shall be dependent on Buyer's completion of its respective obligations set
forth in the Milestone Dates.
(b) Seller acknowledges that Buyer intends to use the Lift as important and
extensively used passenger tramways to transport members of the general public between the
Riverfront site in Avon and the Beaver Creek Resort.
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4. LIFT PRICES AND PAYMENT, SPECIAL PAYMENT SCHEDULE COSTS AND
PAYMENT: RETAINAGE AND FINAL PAYMENT.
(a) Lift Price and Payment. Buyer shall pay to Seller Fig►e-million, Two-hundred
and fifty-eight thousand, Nine-hundred and sixty Dollars (USD $5,258,960) for the Lift, which sum
includes all costs and fees associated with the design, manufacture, delivery, installation and
engineering of the Lift and other lift-related materials and services as described in Exhibit C. These
sums are referred to herein as the "Lift Price." Payment of the Lift Price shall be made by Buyer to
Seller within thirty (30) days of receipt of a proper invoice sent to Buyer from Seller in accordance
with the following schedule:
(i) A deposit of 25% of the total Lift Price, 10% of which shall be paid upon
receipt of an invoice from Seiler, and 15% of which shall be paid on May 15, 2006.
(ii) 10% of the Lift Price upon completion of the lower terminal foundations
for the Lift, if completed;
(iii) 10% of the Lift Price upon completion of the upper terminal foundations
for the Lifts if completed;
(iv) 10% of Lift Price upon completion of tower foundations for the Lift, if
completed;
(v) 10% of the Lift Price, upon completion of tower erection for the Lift, if
completed;
(vi) 10% of the Lift Price, plus all change orders to date, upon completion of
the lower terminal machinery erection for the Lift, if completed;
(vii) 10% of the Lift Price, plus all change orders to date, upon completion of
the upper terminal machinery erection for the Lift, if completed;
(viii) 10% of the Lift Price upon completion of final assembly of the Lift,
with exception of the lower control booth (lift house), if completed;
(ix) 5% of the Lift Price, on that date which all installation obligations have
been satisfied for the Lift (as described in the Contract Documents), including a load test of the Lift,
and the necessary operations permit from the Colorado Passenger Tramway Safety Board has been
obtained.
(b) Retainaae and Final Payment. In anticipation of the assignment of this
Agreement to the Confluence District, and in compliance with the provisions of Section 24-91-103,
C.R.S., retainage in the amount of 10% of each progress payment shall be withheld by Buyer until
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such time as 50% of the Work has been completed; thereafter, provided that Buyer is satisfied with
the progress of the Work, no further retainage shall be withheld. If the Seller desires a release of the
retainage, the Seller can request that the retainage be released early if the Seller
deposits acceptable securities with an escrow agent with a value at least equal to the amount
of retainage being released as specified in Article 91 of Title 24 of the Colorado Revised Statutes.
Final payment on the Project shall be made in accordance with the provisions of Section 38-26-107,
C.R.S., relating to the publishing of notice of final settlement on construction contracts, and the
procedures for filing of verified statements of claim by subcontractors relating thereto. Seller shall
indemnify and hold harmless Buyer from any cost or expense, including reasonable attorney fees,
incurred by Buyer in responding to a verified statement of claim submitted in connection with the
Project, or to a lis pendens or court action filed in connection with such claim for payment.
(c) Interest on Late Payments. Any invoice not paid within thirty (30) days
of receipt will accrue interest at the rate of twelve percent (12%) A.P.R. beginning on the thirty-first
day until the invoice is paid.
(d) Cancelation or Extended Delay by Buyer. Buyer shall have the right to
terminate this contract and order a cessation of work at any time prior to completion of Lift
construction. Seller shall cease work immediately upon receipt of a written request for termination
from Buyer. In the event of termination by Buyer, Buyer shall be responsible for payment to Seller
the cost of all work completed or committed to at the time Seller receives termination notice. In the
event Buyer causes a delay in work in excess of sixty (60) days, Seller may request payment for the
cost of all work completed or committed to at the time the work delay began and Buyer shall be
responsible for such payment to Seller within 30 days, subject to the retainage requirements Section
38-26-107, C.RS., if applicable.
5. RISK OF LOSS. Seller shall bear the risk of any loss or damage to, or the deterioration
of, the Lift from the time the Lift leaves Seller's premises until the Lift's License Date (defined
below). Buyer will bear the cost of any damage that is not caused by the Seller between the time
the installation is complete and the operating permit is granted by the Colorado Passenger Tramway
Safety Board.
6. OWNERSHIP. Ownership to the Lift shall pass to Buyer on the License Date (defined
-below) for the Lift, provided,- however, that Buyer has paid Seller at least ninety percent (90%) of
the Lift Price as described in Paragraph 4 above, and provided further, that Buyer has notified Seller
of any particular objections, under the Contract Documents, to payment of the unpaid balance of the
Lift Price, provided further that Buyer acknowledges that Seller may use the Lift as security for the
remaining balance of 10% of the Lift Price.
7. MARKING. Buyer shall not remove or obliterate any metal plates or similar
identification devices which may be attached to the Lift setting forth the name and address of Seller,
any trade name or trademark of Seller or any references to patents or patent applications applicable
to the Lift. Buyer shall have the right to approve the location and size of any such plates and/or
devices upon the Lift. This Paragraph shall survive the passage of title to Buyer.
8. TAXES. To the extent permitted by law, Buyer will seek exemption from payment of
state sales tax due to the Seller. If an exemption is not granted, Buyer agrees to pay any sales,
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excise, use or other similar tax when due in connection with the purchase and installation of the
Lift. Buyer shall not pay taxes on the field labor and other services rendered by Seller hereunder if
such services are not subject to sales tax under Colorado law under a tax-board ruling. Seller's
invoices to Buyer shall describe the amounts of such charges in detail adequate to allow Buyer to
verify the appropriate taxable amounts. Seller shall pay all import duties, customs charges or other
taxes associated with foreign manufacture. Seller shall cooperate with Buyer in connection with the
expected assignment of the Contract Documents to the Confluence District (as permitted in
Paragraph 30 hereof), and the assumption by the Confluence District of all of Buyer's rights, duties
and obligations hereunder, to obtain any relief from the payment of any sales, excise, use or other
similar tax to which the Confluence District may be entitled by virtue of its status as a political
subdivision of the State of Colorado.
9. DELIVERY OF COMPONENTS. All component parts of the Lift, whether
manufactured in the United States or any other country, shall be delivered or caused to be delivered
by Seller to the Job Site (defined below) so as to meet the scheduled License Date (defined below).
10. PREPARATION AND RESTORATION OF JOB SITE. Buyer shall, at its own cost
and expense, clear, grade and re-vegetate the lift line areas upon which the Lift is to be installed (the
"Job Site"). Upon completion of such clearing and grading, Seller shall inspect the Job Site and
provide Buyer with profile drawings indicating any additional clearing and grading which must be
performed to ensure proper operation of the Lift. Upon receipt of such profile drawings, Buyer
shall perform the additional clearing and grading in substantial compliance with the profile
drawings. Upon completion of the grading and clearing, Seller shall construct all foundation
excavation, bases, footings and/or other structures and shall proceed with the installation of the Lift
in accordance with the Contract Documents.
11. PROJECT REPRESENTATIVES.
(a) Seller shall notify buyer of the representative it proposes to designate for
coordination and oversight of the Lift installation on or before March 31 , 2006. Buyer shall have
five (5) business days to verbally accept or reject such designated representative. If Buyer accepts
such representative, such individual shall be so designated as "Seller's Representative." If Buyer
does not accept such initially proposed representative, Seller shall immediately, and successively,
_ -propose_otherindb6duals until Buyer-accepts one of them, provided hat_this process is completed
no later than April 30, 2006.
(b) Vail Associates, Inc. ("VAI") is Buyer's representative for purposes of the
Work, and for purposes of coordinating ancillary activities necessary or incident to the performance
of the Work (such as site preparation, utility relocation, installation of new utilities, and similar
matters). VAI shall notify Seller of the individual(s) it proposes to administer VAI's functions as
Buyer's representative.
12. INSTALLATION OF THE LIFT. All work to be performed by Seller with regard to
the installation of the Lift under this Agreement shall be referred to as the "Work." The Work shall
be performed in accordance with the Contract Documents, subject nonetheless to the provisions of
Paragraph 12 hereof. Seller shall supply all labor and supervision, supplies, materials, tools,
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machinery and services necessary to perform the Work required by the Contract Documents for the
installation of the Lift. Buyer shall have the right to inspect the Lift' and the Lift installation at any
time and shall specifically inspect the Work at the occurrence of the following: excavation,
installation of the reinforcing steel, completion of the finished concrete, final assembly and load
test. If any of the Work shall be determined by Buyer to be deficient, Buyer shall-notify Seller of
such deficiency and Seller shall immediately rectify such deficiency to conform to the Contract
Documents at Seller's sole cost and expense. All Work shall be performed in a workmanlike manner
in accordance with all of the terms, covenants and conditions set forth in the Contract Documents.
13. CHANGES.
(a) Seller shall immediately notify Buyer of any material changes which occur prior
to the completion of the installation of the Lift, including without limitation, any matters which
affect the Lift Price; the component delivery schedule or the completion dates hereunder. Any such--
notice shall be given to Buyer in writing in accordance with Paragraph 32 hereof.
(b) If changes are required in the Contract Documents, such changes shall be
proposed to Buyer on a Change Order in the form attached hereto as Exhibit D. Buyer reserves the
right to propose changes to Seller via Change Order as well. Seller shall have ten (10) days from
the date on which the need for a Change Order is evidenced to inform Buyer of the proposed
change. Any Change Order must be signed by authorized representatives of both parties to be
effective. If such changes affect the Lift Price, such price shall be adjusted by good faith
negotiation-on the basis of the Lift Price originally established. If such changes affect the date
scheduled for the Lift's License Date (defined herein), the dates shall be adjusted to the date or dates
agreed upon by both parties.
14. COMPLETION AND ACCEPTANCE. Seller agrees to cause the License Date for the
Lift to occur on or before September 30, 2007. When Seller has completed installation of the Lift,
Seller shall notify Buyer in writing that such lift is ready for inspection. Upon receipt of such
notice, Buyer shall promptly cause the inspection of the Lift as installed. For the purpose,of this
Agreement, the term "License Date" shall mean the date on which the Lift has been installed in
accordance vvith the Contract Documents, has been load tested, all defects noted by- the Colorado
_ Passenger Tramway Safety Board (that are the responsibility, of SeIIer) 'have been corrected and
such Board has granted Buyer a license to operate the Lift for the purpose intended. If Buyer
determines that the Lift has not been installed in accordance with the Contract Documents, and/or
the load test requirements have not been met, and/or all the defects'noted by the Colorado Passenger
Safety Tramway Board (that are the responsibility of;Seller) have not been corrected, and%or the
public license is not-granted, Seller shall be subject to the provisions of Paragraph, l5 herein, shall
immediately rectify all deficiencies at its sole cost and shall notify Buyer when such deficiencies
have been rectified.
15. LIQUIDATED DAMAGES. For purposes of when liquidated damages will become
due and payable, Seller agrees that if the Lift is not installed and "ready to operate" by'September
30, 2007, and other than date otherwise in accordance with the terms of Section 14 above, Seller
will pay Buyer liquidated-damages as set forth below as Buyer will suffer damages in an amount
which will be difficult to determine and it shall be infeasible for Buyer to otherwise obtain an
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adequate remedy. The liquidated damages shall be paid unless the delay is caused by a material
default of Buyer under any of the terms of this Agreement or unless the delay is and to the extent
permitted as a justifiable delay under Paragraph 18 hereof. Seller acknowledges that the liquidated
damages set forth below are reasonable and were determined through negotiations between the
parties in which both were represented by counsel. In light of the anticipated harm caused by such
breach, Seller agrees as follows:
(a) If the License Date for the Lift does not occur on or before the appropriate date
set forth in this Section, Seller shall pay Buyer liquidated damages in an amount as specified,
below. For each day following such date which the License Date does not occur for the Lift, Seller
shall pay Buyer additional liquidated damages in the amount as specified below for each day until
the License Date for such Lift occurs.
Name of Lift
Date on Which Liquidated
Amount of liquidated
Amount of liquidated
Damages are Due and
danages if Completion and
damages each day
Payable
License Date not met by
thereafter
S tember 30, 2007
River&ont Express
September '30,2007
$25,000
$2,500 per day
Gondola, Avon, Colorado
(b) Notwithstanding the foregoing, if Buyer, after March 25, 2007, causes the
Milestone Dates to be delayed in excess of a cumulative of fifteen (15) days, the scheduled License
Date for such Lift shall be extended by the number of additional days which Buyer's delay caused.
Such change in the scheduled License Date shall be documented by a Change Order in accordance
with Paragraph 13 hereof. Seller shall give Buyer prompt written notice of any delays claimed
under this provision and such delays shall be addressed as set forth in Paragraph 2(d) hereof. If
Seller does not so notify Buyer, any scheduled date(s) shall not be extended.
16. WARRANTY, BREACH OF WARRANTY. For purposes of this Section 16 the term
"Lift" shall be deemed to apply to the Riverfront Express Gondola independently and all periods of
time or hours of operation shall apply to such Lift.
(a) Materials Warranty. Seller warrants that, when used and maintained
substantially in accordance with Seller's instructions, from the License Date for the Lift and for five
(5) years thereafter (the "Materials Warranty Period"), the Lift materials and-parts and-related
workmanship shall be: (i) free from defects, (ii) merchantable and fit for the purpose for which such
are intended, and (iii) not require repair or replacement. This warranty shall not apply to those parts
which are annually replaced during Buyer's typical Lift maintenance program, which program Seller
shall have the opportunity to review upon written request delivered to Buyer prior to the License
Date, or those parts requiring replacement due to abuse or lack of maintenance by Buyer (the
"Excluded Parts"). Should VAI cease to be Buyer's Lift maintenance and operations contractor, the
Material Warranty Period will default to a period of two calendar (2) years of operation from the
License Date for the Lift.
(b) Design Warranty. Seller warrants that, when used and maintained
substantially in accordance with Seller's instructions, for a period of fifteen (15) years or 15,000
hours of operation as appropriate from the License Date for the Lift (the "Design Warranty Period"),
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the Lift design and workmanship, including without limitation, the installation and manufacture of
the Lift, shall be: (i) free from defects, (ii) merchantable and fit for the purpose for which such are
intended, and (iii) not require repair or replacement. The items set forth on Exhibit F, if any, are the
only exceptions to this warranty. Should VAI cease to be Buyer's Lift maintenance and operations
contractor, the Material Warranty Period will default to a period of two calendar (2) years of
operation from the License Date for the Lift.
(c) For the purposes of this warranty, a defect in design, manufacture,
installation and/or workmanship shall be deemed to exist (A) if agreed upon by Buyer and Seller or
(B) if so stated by an independent qualified third parry who shall be appointed by Buyer and Seller
(or, in the event Buyer and Seller cannot agree on the appointment of such a third parry, settled by
arbitration in Denver, Colorado in accordance with the then governing rules of the Judicial Arbiter
Group of Denver, Colorado or its successor organization). Notwithstanding the above, Buyer and
Seller agree that such a defect is anticipated to include, without limitation: (Y) a latent or patent
design error, miscalculation, misapplication or misjudgment; or (Z) a defect of the Lift or Lift-
related materials or parts designed by Seller, or its affiliates, which causes a relatively simultaneous
failure of a substantial portion of similar parts, such as structural failures, fatigue failures, cracks or
the like, but excluding normal wear and tear to sheave liners, bushings or the like.
(d) Compliance Warranty. Seller warrants that, for the life of Buyer's ownership
of the Lift or the ownership of any person or entity acquiring all or substantially all of the assets of
Buyer (the "Compliance Warranty Period"), the Lift shall operate in accordance with the Contract
Documents and all other written representations made by Seller to Buyer in connection therewith,
and be continually in compliance with the Contract Documents and all Colorado Passenger
Tramway Safety Board rules and regulations in effect at the License Date.
(e) Breach of Warranties. Seller agrees to promptly remedy any breach of
warranty, including, without limitation:
(i) during the Materials Warranty Period, at no cost to Buyer, promptly
repairing or replacing any Lift materials or parts, except Excluded Parts, and performing all related
workmanship and labor;
- - - - - (ii) during the Design V1tan-anty Period, promptly redesigning, reworking,
reinstalling or remanufacturing, any defect in Lift design, workmanship, installation or manufacture.
During the Materials Warranty Period Seller shall bear all expenses related to the remedy.
Following expiration of the Materials Warranty Period but during the Design Warranty Period,
Buyer will be responsible for a share of parts, materials, manufacture and labor costs associated
with remedying a defect in Lift parts, materials, design, workmanship, installation or manufacture
(the "Corrective Costs") according to the following formula:
(No. of hours or years Amount of
of Lift operation prior 15,000 hours or 15 years Corrective Corrective Costs
to identification of as appropriate.) X Costs = paid by Buyer
defect
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Seller shall have the option of choosing whether such calculation shall be based on operating hours
or years. Seller shall be responsible for the balance of Corrective Costs and all costs associated
with redesigning, reworking, reinstalling or remanufacturing any defect and for all costs of
redesign. For example, if, in the tenth year or after 10,000 operating hours following the License
Date, a part fails due to a defect in design, Buyer shall pay 66.7% of Corrective Costs and Seller
shall pay 33.3% of Corrective Costs; and
(iii) during the Compliance Warranty Period, at no cost to Buyer,
promptly correcting or otherwise remedying any non-compliance with the Contract Documents and
Colorado Passenger Tramway Safety Board rules and regulations in effect on the License Date.
(f) Failure to Cure. In the event Seller fails or refuses to so redesign, replace
and/or repair any defect in the Lift, Buyer may do so and Seller shall reimburse Buyer for the full
cost of such redesign, replacement and/or repair. If Buyer encounters any problem with the Lift,
Seller will consult with Buyer and use its best efforts to assist Buyer in resolving such problem.
(g) Buyer's Representations. The above warranties of Seller are made in reliance
on Buyer's representation that the Job Site will be properly prepared in substantial compliance with
Seller's profile drawings and Paragraph 10 hereof. It is understood and agreed that all warranties of
Seller herein provided shall be null and void if Buyer materially changes or moves the location of
the installation without Seller's knowledge and acceptance.
(h) No Other Warranties. Except as provided for in this Paragraph 16 and
elsewhere in the Contract Documents, Seller gives no other express or implied warranty.
(i) Contrai-~Law. Seller warrants the Lift as described in this Agreement
notwithstanding any law, judgment, order, rule or regulation to the contrary whatsoever. Seller
specifically waives any statute of limitation or other defense which may limit remedies under these
warranties in any way, with respect to the warranties set forth in Paragraph 16.
17. REMEDIES CUMULATIVE. All the rights and remedies of Buyer under this
Agreement are intended to be distinct, separate and cumulative.
- 18.- FORCE MAJEURE.
(a) Time is of the essence with respect to the parties' respective obligations under
this Agreement. However, neither of the parties hereto shall be liable for any liquidated, direct,
indirect, or consequential damages due to delays or inability to perform caused by factors beyond its
control, including acts of God, flood, war, riot, fire, explosion, wildcat labor strikes, transoceanic
shipping casualty or acts of Government, with the specific exceptions, however, that weather on the
Premises, regulations concerning the Job Site (whether related to noise, construction, labor disputes
(other than wildcat labor strikes) and/or a delay in the delivery of the Lift or any part thereof to
Seller shall not be considered justification for delay.
(b) If, by reason of the occurrence of one or more of the events described above for
which delay is justifiable, airfreight of some portions of the Lift is necessary to complete the project
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on time, then Buyer and Seller agree to negotiate the splitting of the additional airfreight cost. If
airfi-eight would not enable Seller to complete the project on time or if no agreement regarding
splitting of additional airfreight cost can be reached, Seller shall receive a reasonable extension of
time to complete the project.
(c) Subject to Buyer's rights under Section 13 herein, the parties hereto acknowledge
that orders for parts cannot be canceled or changed or deliveries deferred, and, if Buyer refuses to
accept delivery of items reasonably ordered, Seller shall be entitled to charge reasonable storage,
interest, loading and unloading expenses, extra freight, if applicable, and all other reasonable, direct
and actual costs caused by delay in delivery.
19. INFORMATION DISCLOSURE.
(a) Information considered by either party to be proprietary information, shall be
held in confidence by the other party for a period of eight (8) years from the License Date, unless
such period is extended by notice in writing to the other party prior to the expiration of the then-
current period of confidentiality. This confidentiality commitment shall not apply to any
information:
(i) known by the recipient of the information at the time of disclosure;
(ii) generally available to the public;
(iii) lawfully disclosed to the recipient of the information by a third party
subsequent to disclosure;
(iv) approved in writing by the disclosing party for disclosure by the
recipient of the information; or
(v) required by law to be disclosed by the recipient of the information. No
information relevant to the operation of the Lift shall be withheld from Buyer. At such time as this
Agreement is assigned to the Confluence Metropolitan District as permitted under Paragraph 30
hereof, Seller acknowledges and agrees that the terms of this Agreement and any other information
-provided by Seller to Buyer, may be subject to disclosure in accordance with and subject to any
applicable limitations of the Colorado Open Records Act, Section 24-72-201,C.R.S.
(b) Seller shall use its best efforts to notify Buyer in writing of any information that
Seller may have concerning the Lift which may have a material affect on the safety, maintenance or
servicing of the Lift which comes to the attention of Seller by virtue of any known safety defects in
similar lifts or any material changes in Seller's policy and procedures with respect to the service and
maintenance of the Lift. The provisions of this subsection shall survive the end of this Agreement
so long as the Lift is being utilized in its present location without substantial modification unless
such Lift modification is done by Seller or with Seller's consent.
20. APPROVAL OF CONTRACTORS AND EMPLOYEES: MECHANIC'S LIENS.
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(a) Buyer shall have the right to approve of or disapprove of any of Seller's
contractors, subcontractors or employees engaged by Seller in connection with the Work, which
approval may be withheld in Buyer's sole discretion. Seller shall provide Buyer, prior to the
engagement of any contractor, subcontractor or employee, with a list of the contractors,
subcontractors and employees of Buyer that Seller intends to engage. Buyer shall, within seven (7)
days of receipt of such list, notify Seller of any contractor, subcontractor or employee which Buyer
disapproves. If Seller has not received such notice from Buyer within such seven (7) day period,
the list of contractors, subcontractors and employees submitted by Seller shall be deemed approved
by Buyer and Buyer shall have waived its right of disapproval under this Paragraph 20.
(b) Notwithstanding the foregoing, Seller agrees it is responsible to Buyer for the
acts or omissions of Seller's subcontractors, their respective employees and agents, during the
course of their respective subcontract agreement. Nothing contained herein shall create any
obligation on the part of Buyer to pay any sums to any of Seller's subcontractors. Seller agrees it
will pay and discharge in the ordinary course all amounts due to its subcontractor(s) in connection
with the Work; Seller shall promptly discharge or "bond over," in its discretion, any mechanics lien
or the like filed by its subcontractor(s) and Buyer may withhold the amount of any such claim from
the next payment(s) due Seller until satisfactory evidence that such lien claim has been finally
resolved or bonded over.
21. COMPLIANCE WITH LAWS, SAFETY PROGRAM.
(a) Seller agrees to comply with all applicable laws, ordinances, rules and
regulations whether federal, state, local or otherwise affecting the Lift, the installation thereof or the
Job Site (including, without limitation, the most current rules of the Colorado Passenger Tramway
Safety Board and applicable local laws, rules and/or regulations including but not limited to the
Town of Avon.
(b) Seller shall be responsible for its own safety program which shall comply with
all applicable Federal, State and local laws and regulations, including but not limited to the
occupational Health and Safety Act ("OSHA") and shall provide Buyer and VAI with a copy of
Seller's safety manual, attached hereto as Exhibit G and incorporated herein by this reference. If
Buyer and/or VAI find deficiencies in said safety manual which include but are not limited to non-
compliance with.OSHA, Buyer and/or VAI shall notify Seller and Seller shall correct such
deficiencies. Further, Seller warrants that in performing the Work, Seller, its agents and
subcontractors shall maintain compliance with applicable OSHA regulations. During performance
of the Work, if Buyer and/or VAI detennines Seller is not adhering to its safety manual or is in non-
compliance with OSHA, Buyer and/or VAI shall notify Seller and Seller shall correct the non-
compliance. Any non-compliance which is not corrected shall be deemed to be a breach of this
Agreement and handled as contemplated herein.
22. ROADS AND ACCESS WAYS. Buyer will provide seller free and unrestricted access
to the Job Site.
23. COORDINATION AT JOB SITE. By executing this Agreement, Seller represents it has
visited the Job Site, familiarized itself with the local conditions under which the Work is to be
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performed and correlated its observations with the requirements of the Contract Documents. Seller
and Buyer understand that there may be other contractors working on and in close proximity to the
Job Site. Seller and Buyer shall use their best effort to coordinate the installation of the Lift with
the work of other contractors in order to minimize work delays and inefficiencies and further agree
that Seller may not be entitled to.additional compensation or extensions of time from Buyer,on
account of the actions of other contractors working at or around the Job Site.
24. CLEANUP.
(a) Seller at all times shall keep the areas in and around the Job Site flee from
accumulation of waste materials or rubbish caused by its operations.- At the completion of the
installation, Seller shall rem-ove all waste-materials and rubbish from and about the Job Site as well
as allits-tools, equipment, machineryand'surplus materials. •
(b) Buyer shall provide a sediment control pond for the excavation of the Lower
Terminal Foundation.. Seller will be responsible for transporting sediment to the pond and also
responsible for any additional localized sediment control required for any other excavation.
(c) If Seller fails to clean up its construction materials and rubbish at the completion
of the installation of the Lift,-Buyer-may do so and the-cost thereof shall be deducted from- any- - - -
amounts due Seller or if the cost of the cleanup exceeds the amount- due Seller, the cleanup costs
shall be charged to Seller and Seller agrees to promptly reimburse Buyer for such cleanup costs.
0 25. RULES AND REGULATIONS. All rules and regulations in effect with regard to
access to the Premises regarding passes, lists of employees, safety and-conduct on the property shall
be strictly observed by Seller, its agents, contractors, subcontractors, materialmen, suppliers and
employees, provided such rules and regulations are provided to Seller in writing prior to the start of
construction.
26. INSURANCE AND BONDS.
(a) Seller's Insurance. At all times during the manufacture, delivery and installation
of the Lift and throughout the Materials Warranty Period and the Design Warranty Period, as set
forth in Paragraph 16'hereof, Seller shall use its best efforts to carry afi&mafiJfid ; in full force-and,
effect, at its sole cost and expense, the following insurance policies with insurance companies
satisfactory to Buyer.
(i) Comprehensive general liability insurance in an occurrence format in an
amount of at least $20,000,000 per occurrence, including the following coverages: contractual
liability, personal injury, broad form property damage, independent contractors,. premises
operations, underground explosion and collapse hazard and producWcompleted-operations. , Buyer
shall be listed as additional insured as their respective interests may appear on such policy.
(ii) Comprehensive automobile liability insurance on all vehicles used in
connection with this Agreement, in an amount of $2,000,000 combined single limits for bodily
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injury and property damage, per occurrence. Buyer shall be listed as additional insured as their
respective interests may appear on such policy.
(iii) Workers' Compensation insurance in accordance with the provisions of
the Workers' Compensation Act of the State of Colorado for all its employees engaged in the Work.
(iv) Builders Risk insurance for the Lift in the amount of the Lift Price or
such amount to provide for all risk of loss of the Lift, with coverage to continue until the License
Date.
(v) In the event helicopters are used in the performance of the Work, Seller
shall cause the helicopter operator to provide comprehensive or commercial general liability
insurance including coverage for premises operations, underground explosion and collapse hazard,
products/completed operations, contractual, independent contractors, broad form property damage,
personal injury, aviator liability, load coverage and hull coverage with aggregate limits of at least
$10,000,000 for property damage and bodily injury, including death. Seller shall provide Buyer
with evidence of the helicopter operator's insurance coverage prior to the performance of its
services to Seller. Buyer shall be listed as additional insured as their respective interests may
appear on such policy.
(b) General Insurance Provisions. Each policy shall include a provision requiring a
minimum of thirty (30) days' notice to Buyer of any change or cancellation.
(c) Certificates of Insurance Declarations Page and Policy Manuscri pt. Certificates
of all insurance required, together with the appurtenant declarations page(s) and policy manuscript
shall be submitted to Buyer prior to commencement of the Work. The coverage required herein
shall be provided by insurance companies which are licensed to do business in the United States and
the State of Colorado, and with a Best Rating of "A" or "A+."
(d) Subcontractors. In the event any portion of the Work is subcontracted, Seller
shall require the subcontractor to provide the identical insurance listed in Subparagraph 26(a). In
the event any subcontractor does not have such identical coverage, Seller shall name such
subcontractor(s) as additional insured's on it respective policy(ies) during the construction period.
For the purpose of this _sub-section, suppliers of materials shall not be considered subcontractors.
(e) Performance and Payment Bonds. At the time of execution of this Agreement,
Seller shall furnish a Performance Bond and a Payment Bond, each in an amount equal to 100% of
the Lift Price, in forms attached as Section 6 and 7 to the Project Manual for the project.
(fl The entity providing Lift maintenance and operation will carry a minimum of
$20,000,000 per occurrence of General Liability Insurance coverage until the expiration of the
warranty period.
27. INDEMIq=.
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(a) General Indemnity. Seller agrees to forever indemnify, defend and hold
harmless Buyer, its subsidiaries and affiliates, their respective: agents, officers, directors,
contractors, servants and employees of and from any and all liability, claims, liens, demands,
actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury,
including death, of any person or damage to property of any kind caused by Seller's operations or
the misconduct or negligent acts, errors or omissions of Seller, its subcontractors, materialmen or,
any other person directly or indirectly employed by them, or any of them, while engaged in any
activity, associated with the Lift or this Agreement, including without limitation, the design and/or
manufacture of the Lift, the installation thereof, the breach of the warranties set forth in Paragraph
16-or any activity related thereto or associated therewith, whether contractually or otherwise.
(b) Patent Indemnity: Seller agrees to forever indemnify, defend and hold harmless
Buyer, their respective= agents, officers, directors, contractors, servants and employees of and from
any and all liability, claims, liens, demands, actions and causes of action whatsoever arising out of
or related to any loss, cost or damage, of any person or damage to property of any kind caused by
SeIer's alleged infringement of any patent, copyright, trade secret, trademark or other legally
protected ,pr`opriety right of any third party, in connection with the Lift or any part or component
thereof. If the Lift or any part or component thereof is held to infringe, or in Seller's opinion, is
likely to be held to infringe, any third party intellectual property right, Seller shall, at its expense,
secure the right for Buyer to.continue use of the Lift or replace or modify.the Lift to make it non-
infringing; provided that, such replacement or modification yields substantially equivalent results.
28. DEFAULT AND REMEDIES. (a) In addition to Buyer's remedy as set forth in
Paragraph 15 hereof, if either parry to this Agreement fails to perform in accordance with any of the
terms, covenants or conditions of this Agreement or is otherwise in default of any of the terms of
this Agreement, after giving fifteen (15) days' prior written notice to the other party of the alleged
default and.upon said defaulting party's failure to make agood-faith effort to cure such breach
within fifteen (15) days after receipt of the notice of default, the non-defaulting party shall have the
right to pursue any remedy available at law or in equity, including but not limited to, any remedy set
forth in this Agreement.
(b) After adhering to Section 34(k), if either.party to this contract materially breaches
any of the terms, covenants or conditions of this Contract, the nonbreaching party, so long as it is
no alleged default, shall
t mmaterial breaeli hereof, upon giving tyirty`30)clayswritten notice of the
have the right to terminate this Contract or stop the Work and pursue any remedy available at law or
equity. Without limitation, a material breach shall include: (i) The Buyer encumbering the property,
including without lunitation, the Lift, without prior written consent of the Seller, or the property is
seized or levied upon under any legal or governmental process, (ii) either party becomes insolvent,
or is subject to any bankruptcy proceeding, (iii) either party makes an assignment for the benefit of
creditors, (iv) either party's business fails or terminates, (v) a receiver is appointed for a party or all
or a substantial part of its assets or business, (vi) either party reasonably believes that the prospect
of payment or performance is impaired, (vii) the Lift or any portion thereof is transferred or
hypothecated to a third party (except as allowed in this contract) or (viii) either party fails to make
any payment or perform any obligation hereunder when due.
0 29. WAIVER OF DEFAULT.
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(a) Failure to insist upon strict compliance with any of the terms, covenants and
conditions hereof shall not be deemed a waiver of such terms, covenants and conditions, nor shall
any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a
waiver or relinquishment of such right or power at any other time or times. No waiver shall be
valid unless in writing and signed by authorized officers of the parties hereto.
(b) Buyer agrees that Seller may, at its option, accept payments past due, or part
payments of monies due without in any manner modifying the terms of this Agreement, that the
acceptance of partial payments shall not constitute a waiver of any default created by the failure of
Buyer to pay in accordance with the terms hereof, nor shall the acceptance of any sums in full or
partial payment of any delinquent installments constitute or be construed as a waiver of time as the
essence of this Agreement or of any subsequent defaults of Buyer. Any action to enforce payment
of any indebtedness shall not waive any of Seller's rights hereunder.
30. DELEGATION/ASSIGNMENT. Neither of the parties may delegate its respective
duties under this Agreement nor assign this Agreement without the prior written consent of the
other parties; provided, however, Buyer may assign all of its rights under this Agreement,
including, without limitation, its rights under Paragraph 16 hereof, to any person or entity acquiring
all or substantially all of the assets of Buyer, and to the Confluence Metropolitan District and/or the
Avon Station Metropolitan District (collectively the "Confluence District'), subject to the
Confluence District demonstrating an ability to pay the balance then due under this Agreement. In
connection with any such assignment, Seller shall substitute the name of the assignee for that of
Buyer on the Performance and Payment Bonds, as an additional insured under any policy of
insurance so required, and on any other certificate, permit or other instrument naming Buyer as the
holder, beneficiary or authorized party relating to the rights established thereunder. Upon any such
assignment, Buyer shall be released and discharged from any further liability or obligation under
this Agreement.
31. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph 30 herein, the
terms, covenants and conditions of this Agreement shall be binding on the successors and assigns of
each of the parties.
32. NOTICES. Any notice, demand or communication which any parry may desire or be
required to give to the other party shall be in writing and shall be deemed sufficiently given or
rendered if delivered personally or sent by first class United States mail, certified or registered mail,
postage prepaid, addressed as follows:
If to Buyer:
EAST WEST RESORT DEVELOPMENT)UV L.P., L.L.L.P
Attn: Andy Gunion
P.O. Drawer 2770
100 East Thomas Place
Avon, Colorado 81620
With a copy to: William P. Ankele, Jr.
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1805 Shea Center Drive, Suite 100
Highlands Ranch, Colorado 80129
And: George Hudspeth, Director of Lifts
Beaver Creek Resort
P.O. Box 7, Internal Box B33
Vail, Colorado 81658
And: Richard D. Travers
1000 South Frontage Road West
Suite 2
Vail, Colorado 81657
If to Seller: Doppelmayr CTEC, Inc.
Attn: Jan Leonard
3160 West 500 South
Salt Lake City, Utah 84104
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With a copy to: Doppelmayr CTEC, Inc.
Attn: Randy Woolwine
6452 Fig Street, Unit B
Arvada, CO 80004
And: Mark Bee
(At same address immediately above)
Such notice, demand or communication shall be deemed to be given at such time as it is personally
delivered or mailed. The parties shall have the right to designate in writing, served as provided
above, a different address to which any notice, demand or communication is to be mailed.
33. NONDISCRIMINATION. During the term of this Agreement, Contractor agrees that it
shall not discriminate:
(a) against any employee or applicant for employment because of race, color,
religion, sex, national origin, age or handicap (Ref. Title VII of the Civil Rights Act of 1964 as
amended.); and
(b) by segregation or otherwise against any person on the basis of race, color,
religion, sex, national origin, age or handicap, by curtailing or refusing to furnish accommodations,
facilities, services or use privileges offered to the public generally. (Ref. Title VI of the Civil
Rights Act of 1964 as amended, Section 504 of the Rehabilitation Act of 1973, Title IX of the
Education Amendments, and the Age Discrimination Act of 1975.)
34. MISCELLANEOUS.
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(a) If any clause or provision of this Agreement shall be held.to be invalid in whole
or in part, then the remaining clauses and provisions, or, portions thereof, shall nevertheless be and
remain in full force and effect.
(b) No amendment, alteration,'modification of or-addition to this Agreement shall be
valid or binding unless expressed in writing and, signed by the,parties to be bound thereby. -
(c) The captions of each section are added, as a matter of convenience only and shall
be considered of no effect in the construction of any provision of this Agreement.
(d) If any party hereto shall bring any suit or action against another for relief,
declaratory or otherwise, arising out of this Agreement, the prevailing party. shall have and-recover
against the other party, in addition to all court costs and disbursements, such sum as the Court may
adjudge to be reasonable attorneys' fees.
(e) This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado. Exclusive jurisdiction for any and all legal action regarding this
Agreement shall lie in the District Court, Eagle County, Colorado.
(fl Any and all warranties, provisions,-rights and obligations-of the parties herein
described and agreed to be performed subsequent to the termination of this Agreement shall survive
the termination of this Agreement.
(g) Time is of the essence with respect to the performance of each of the covenants
and agreements herein set forth.
(h) The parties and their respective counsel have reviewed this Agreement in its
entirety and acknowledge that each has had a full opportunity to negotiate the Agreement's terms.
Therefore, the parties expressly waive any.and all applicable common law and statutory rules of
construction that any provision of this Agreement should.be construed against the Agreement's drafter,
and agree and affirm that the Agreement and all provisions thereof shall in all cases be construed as a
whole, according to the fair meaning of the language used.
(i) Failure to insist upon strict compliance with any of the terms, covenants and .
conditions hereof shall not be deemed a waiver of such terms, covenants and conditions, nor shall
any waiver or relinquishment of any right or power hereunder at any one or more tunes.be deemed a
waiver or relinquishment of such right or power at any other time or times. No waiver shall be valid
unless in writing and signed by an authorized officer of Owner.
0) This Agreement constitutes a valid and binding agreement of the parties,
enforceable against each in accordance with its terms. To the extent the parties are not natural
Persons, the persons executing this.document on such party's behalf have actual power and authority
to bind the corporation or other entity and to execute and deliver this Agreement.
(k) If the Buyer or Seller believes a conflict exists as to the interpretation or
performance of the contract, the party shall explain this belief to the other party in writing. Once the
18
explanation of the conflict is received, the Buyer and Seller shall first attempt to mediate any conflicts
related to the interpretation of or performance under the Contract Documents. Should the parties fail
to reach a resolution of the conflict within ten (10) days, the matter shall be referred to the Judicial
Arbiters Group, Inc., located in Denver, Colorado, for binding arbitration. In no way does this sub-
section prohibit the Buyer or Seller from bringing suit or action against another for relief, declaratory
or otherwise, arising out of this agreement.
35. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto constitute
the understanding of the parties with respect to the entire subject matter hereof, and, except where
provided herein, there are no representations, inducements, promises or agreements, oral or
otherwise, not embodied herein. Any and all prior discussions, agreements, proposals, negotiations
and representations relating thereto are merged herein. In the event of conflict between the terms
and conditions of this Agreement and any of the exhibits, this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
respective dates set forth below to become effective as of the day and year first set forth above.
SELLER:
DOPPLEMAYR CTEC, INC.,
a Utah Corporati n
E/
Date: 3 - oZ 3 ~ By:
Name: /~itst/Qn, L C.aaGCJi.vL''
ATTEST: Title: ke; AC~C
`aL
Secretary/Other Title:VLCv ka .
IE(pKb )d , \f BUYER:
EAST WEST RESORT DEVELOPMENT XIV L.P.,
L.L.L.P
A Delaware limited partnership registered as a limited
liability ' 'ted partnership
Date: 3-Z Lo k By: U w 0
Name: c.~ tfirLt~7~ ,v g XO? r 9L!
Title: Vice l~rz~s•ve•-,
ATTEST:
b.a~ a L'n
Secretary/Other-Title: R-64 _
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