Loading...
TC Res. No. 2006-37 APPROVING AND ACCEPTING PUBLIC IMPROVEMENTS ASTOWN OF AVON, COLORADO RESOLUTION NO. 06-37 Series of 2006 A RESOLUTION APPROVING AND ACCEPTING PUBLIC IMPROVEMENTS AS HAVING SUCCESSFULLY COMPLETED THE STIPULATED WARRANTY PERIOD FOR SAID IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH THE SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2 WHEREAS, the Town of Avon entered into a Subdivision Improvements Agreement, dated April 23, 2002, with Buffalo Ridge Affordable Housing Corporation and Buffalo Ridge II LLLP in connection with the approval of the Final Plat for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed in conjunction with said subdivision; and WHEREAS, Town of Avon Resolution No. 04-29, Series of 2004, approved and accepted said public improvements as of July 27, 2004, and established the warranty period for the improvements; and WHEREAS, Town of Avon Resolution No. 05-38, Series of 2005, approved and accepted said public improvements having successfully completed the one-year warranty period, identified specific items consisting of establishment of the required vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9, that did not successfully complete the warranty period; and WHEREAS, Town of Avon Resolution No. 05-38, Series of 2005, extended the warranty period for the lower reach of Basin 10 and the upper reach of Basin 9 to July 27, 2006; and WHEREAS, an on-site warranty inspection was performed with the Project Engineer and Contractor's representative on July 13, 2006; and WHEREAS, it was found that the required vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9 was sufficiently established to be free of visible defects; and WHEREAS, The Project Engineer recommends full warranty release for the completed work. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that: The public improvements constructed in conjunction with the Subdivision Improvements Agreement for The Village (at Avon) Filing 2 have satisfactorily completed the established warranty period and the Town certif es that all obligations of Subdivider, under the Subdivision Improvements Agreement have been satisfied and the security in the form of a dual obligee bond is hereby released. :Sep D , 2006. ADOPTED THIS a Le - DAY OF TOWN COUNCIL TOWN OF AVON, COLORADO (ZAC~ Ronald C. Wolfe, Mayor % OF At ATTEST: r r,. J r .,9 FA1, o- nn U_ Town Resolution No. 06-37 V@A Filing 2 Warranty Release Page 2 of 2 Memo TO: Honorable Mayor and Town Council Thr`1: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Jeffrey Schneider, Engineer II Date: September 19, 2006 Re: The Village (at Avon) Filing 2 (Buffalo Ridge)- Resolution No. 06-37, Series of 2006, A Resolution Approving and Accepting Public Improvements as Having Successfully Completed the Stipulated Warranty Period for Said Improvements Installed and Constructed in accordance with Subdivision Improvements Agreement for The Village (at Avon) Filing 2 Summary: Resolution No. 06-37, attached as Exhibit 1, approves and accepts the public improvements having completed the stipulated warranty period in conformance with the'Subdivision Improvements Agreement (SIA) for The Village (at Avon) Filing 2. Filing 2 generally consists of the Buffalo Ridge affordable housing development and associated infrastructure. The SIA is attached as Exhibit 2. Resolution 04-29, Series of 2004, approved and accepted the public improvements and - -established-the-one-year-warranty period beginning on July 27, 2004. Resolution 04-29 is attached as Exhibit 3. Resolution 04-29 further authorized release of the security deposit and authorized that a dual obligee bond be utilized to secure the warranty period in accordance with the -SIA. The following year, Resolution 05-38, Series of 2005, attached as Exhibit 4, accepted the public improvements having satisfactorily completed the one year warranty period with the exception of the vegetation establishment noted in upper reach of the channel in Basin 9 and the lower reach of the channel in Basin 10. The dual,obligee bond was to remain in place until full completion of the extended warranty period. A field inspection was performed on July 13, 2006 to evaluate the condition of remaining warranty items identified during the warranty inspection performed on July 22, 2005 prior to adoption of Resolution 05- 38. Participants in this field inspection were Sandra E. Mendonca, P.E., Project Engineer with Inter-Mountain Engineering, Ltd.; Bill "Thunder" Thornton, project manager for Colorado First Construction Company; Joe Bair, special inspector for the Town of Avon, and Jeffrey I:\Engineering\Avon VHIW\3.0 Filing 2\Completion\Res 06-37 Final Release-Mena.Doc Schneider, P.E., and Norman Wood, P.E., Town of Avon Engineering Department. In this inspection, the deficient vegetation establishment noted in 2005 appeared to be acceptable. The attached letter (Exhibit 5) dated September 7, 2006, from Sandra Mendonca; P.E. with Inter-Mountain Engineering, Ltd. documents the current condition of these channels, based on the July 13, 2006 field inspection and recommends full warranty release for the completed work. Resolution No. 06-37 approves the public improvements as having successfully completed the stipulated warranty period and authorizes final warranty release. We recommend approval of attached Resolution No. 06-37, A Resolution Approving and Accepting Public Improvements as Having Successfully Completed the Stipulated Warranty Period for said improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for the Village at (Avon) Filing 2. Recommendation: Approve Resolution No. 06-37, Series of 2006, A Resolution Approving and Accepting Public improvements as Having Successfully Completed the Stipulated Warranty Period for Said Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 2. Proposed Motion: I move to approve Resolution No. 06-37, Series of 2006, A Resolution. Approving and Accepting Public Improvements as Having Successfully Completed the Stipulated Warranty Period for Said Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 2 Town Manager Comments: -37 I:\Engine *\A,on Village\3.0 Filing 2\Completion\Res 06 Final Release-Memo.Doc Page 2 Attachments: Exhibit 1- Resolution No. 06-37, Series of 2006 Exhibit 2 - Subdivision Improvements Agreement Exhibit 3 - Resolution No. 04-29, Series of 2004 Exhibit 4 - Resolution No. 05-38, Series of 2005 Exhibit 5 - Inter-Mountain Engineering, Ltd. Letter of September 7, 2006 i.\Eng,w,ing\Avon Vii]agcM.0 Filing 2\Completion\Res 06-37 Final Release Memo.Doc Page 3 TOWN OF AVON RESOLUTION NO. 06-37 Series of 2006 A RESOLUTION APPROVING AND ACCEPTING PUBLIC IMPROVEMENTS AS HAVING SUCCESSFULLY COMPLETED THE STIPULATED WARRANTY PERIOD FOR SAID IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH THE SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2 WHEREAS, the Town of Avon entered into a Subdivision Improvements Agreement, dated April 23, 2002, with Buffalo Ridge Affordable Housing Corporation and Buffalo Ridge II LLLP in connection with the approval of the Final Plat for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed in conjunction with said subdivision; and WHEREAS, Town of Avon Resolution No. 04-29, Series of 2004, approved and accepted said public improvements as of July 27, 2004, and established the warranty period for the improvements; and WHEREAS, Town of Avon Resolution No. 05-38, Series of 2005, approved and accepted said public improvements having successfully completed the one-year warranty period, identified specific items consisting of establishment of the, required vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in-Basin 9, that did not successfully complete the warranty period; and WHEREAS, Town of Avon Resolution No. 05-38, Series of 2005, extended the warranty period for the lower reach of Basin- 10 and the upper reach of Basin 9 to July 27, 2006; and WHEREAS, an on-site warranty inspection was performed with the Project Engineer and Contractor's representative on July 13, 2006; and WHEREAS, it was found that the required vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9 was sufficiently established to be free of visible defects; and WHEREAS, The Project Engineer recommends full warranty release for the completed work. 1:\Engineering\Avon Village\3.0 Filing 2\Completion\Res 06-37 Warranty Release.Doc , ` NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that: The public improvements constructed in conjunction with the Subdivision Improvements Agreement for The Village (at Avon) Filing 2 have satisfactorily completed the established warranty period and the Town certifies that all obligations of Subdivider, under the Subdivision Improvements Agreement have been satisfied and the security in the form of a dual obligee bond is hereby released. ADOPTED THIS DAY OF -2006. TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe,' Mayor ATTEST: Patty McKenny, Town Clerk 1:\EngineeringWvon Villagel3.0 Filing Mbn1pletioMites 06-37 Warranty Release.DOC IP Jill, I1961$33 it 05/26/2002•01:53P Sara J Fisher Easle• CO ~I 370 R 10.00 0 0.00 TOWN OF AVON RESOLUTION NO. 02-20 Series of 2002 A RESOLUTION APPROVING FINAL PLAT AND SUBDIVISION IMPROVEMENTS AGREEMENT FOR _ THE VILLAGE (at Avon) FILING 2, TOWN OF AVON, EAGLE COUNTY, COLORA-D O-- ZI~0 WHEREAS, Buffalo Ridge Affordable Housing Corporation, a Colorado nonprofit corporation, Buffalo Ridge II LLLP and Traer Creek LLC, the owner of the applicable portion of The Village (at Avon) has filed a Final Plat and Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado for approval in accordance with Chapter 16.20 of the Avon Municipal Code; and WHEREAS, on November 13, 2001, the Town held a public hearing at which it received evidence and testimony concerning the Preliminary Plan for The Village (at Avon) Filing 2, at-the conclusion of which the Town Council considered such evidence and testimony and approved the Preliminary Plan by adoption of Resolution No. 01-34; and WHEREAS„the Final Plat is in general conformance with the Preliminary Plan "as approved by Resolution No. 01-34; and WHEREAS; the Final Plat is subject to the terms and conditions of the Annexation and Development Agreement dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, the Final Plat is subject to the terms and conditions of the P.U.D. Development / Sketch Plan dated October 13, 1998 and any amendments or modifications thereto; and WHEREAS, the-attached Subdivision Improvements Agreement and associated public improvement plans provides for the construction o)f-the publid-i provemen - required for development of The Village (at Avon) Filing 2 Subdivision and the securities to assure completion of the public improvements as required by Section 16.24. 100 of the Avon Municipal Code. c:\wINDOWS\Tcmpo=y Intcmct Filcs\0LK4322\Res 02-20 Final PlaLDoc 9 mill Ins ! I1 , ~{!796833 I I , Page : 2 a, 2 I i ` E! 06 2812002 01 :53P Sara J Fis r Eagle. CO 370 R 10.00 0 0.00 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 and Subdivision Improvements Agreement for The Village (at Avon) Filing 2 is in general conformance with the Preliminary Plan-as approved by Town'of Avon Resolution No. 01-34 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 prior to recording of Final Plat and the submission to and acceptance by, the Town of Avon, of the following items prior to the issuance of any permits or start of any construction within the subdivision: A. Irrevocable Letter of Credit or other acceptable security in an amount of not less than $2,440,635.00 to assure completion of Subdivider public improvements; and B. Approved construction plans, specifications and related documents for construction of public improvements as identified in Subdivision Improvements . . Agreement Exhibits A and B; and C. Revised Debris Flow Mitigation Report conforming to Memo dated April 18, 2002, from Leslie Hope of High Country Engineering; and D. Written approval of emergency access and fire hydrant spacing by Eagle River Fire Protection District; and E. Written approval of plans for water and sewer facilities by Eagle River Water & Sanitation District; and F. Written approval by applicable utility companies of construction plans for utility services including electric, natural gas, telephone and cable TV. ADOPTED THIS aDAY OF April 2002. Z y ~.l ATTES 4 ~ ~ ! . C:\W wwS\Temporary Internet Files\OLK43221Res 02-20 Final P1at.Doc TOWN COUNCIL TOWN OF AVON, COLORADO J Yoder r 2 -1 SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this *Ili day of April, 2002, is by and among BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation and BUFFALO RIDGE II LLLP, a Colorado limited liability limited partnership (collecti vely "Subdivider"), and the TOWN OF AVON, a Colorado municipality, by and through its Council (the "Town"). RECITALS - WHEREAS, Subdivider, in connection with the approval of the final plat for The Village (at Avon) Filing 2, consisting of approximately 138.469 acres in Section 12, T. 5 S., R. 82 W. and Section 7, T. 5 S., R. 81 W., of the 6th P.M., Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision Improvements 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 (the "Improvements") set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the performance and completion of the Improvements and the parties desire to set forth their agreement with regard to compliance with the same; and WHEREAS, the Town and Subdivider are parties to those certain bond issuance and HUD insured financing documents ("HUD Financing") Pertaining to the financing and construction of the Buffalo Ridge Apartments. 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 The Village (at Avon) Filing 2 ("Final Plat") shall be promptly filed for record with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. Subdivider 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 as set forth in Exhibit A. Subdivider further i ri ; : ! E j' i jI !i i''' ! •j i 796332 h! c f 16 51"15.10 cis -2a • 200 U.: sz Sa-a J =iahe~ cage. ~4 5~ R so 00 D 00 0 110 agrees that it will be responsible for all costs of Improvements. All said work shall be performed in accordance with the construction plans and specifications as submitted to and approved by the Town prior to commencement of construction of Improvements. All improvements shall be completed within twenty-four (24) months of the date of the Town's approval of the Final Plat for the Subdivision. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town, shall be subject to the-reasonable satisfaction of the Town and shall not be deemed complete until the reasonable- approval and acceptance of the Improvements by the Town. (2) Designation of Inspectors. ' Prior to commencement of construction work on the 'Improvements, the Town shall designate the individuals 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 Subdivider 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. (3), Cost of Inspections. The cost of such inspections, whether by town employees or an.independent third-party inspector, shall be paid by.Subdivider and, subject to the limitations set forth in paragraph 8 below. (4) Notice of Non-Compliance. In the event that the Town, through the inspectors, reasonably determines that the Improvements are not in compliance with the pre-approved construction plans and specifications, it shall give written notice of such non-compliance to Subdivider ("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 Subdivider'within two (2) working days of the date of the inspection. 3. Security for Completion of Improvements. (a) Securi . To secure completion of the Improvements, Subdivider hereby agrees to secure its respective obligations under this Agreement with Collateral in accordance with Section 16.24.100 of the Code. Collateral shall be one, or a combination of the following: cash 'or its equivalent; securities of acceptable value; letter of credit; bond (for warranty period only); and land of acceptable value by deed of trust. (b) Substitution of Security. Subdivider may substitute another form of collateral acceptable to the Town in place of the forms of security set forth above in order to guaranty the faithful completion of the Improvements and the performance of the terms of this Agreement. i11;i ' s ' 796 832 1111,111111111,111111,11111111, i !ii 1111 page. 2 of 1C 514415.8 I ! j 1!! 1; ;1 05,'28,12002 Z. '52Z1 . sara : hlshe~ £aale CO E? R 80.00 U 0 00 q 4. Subdivider Improvements. (a) Security for Completion of Subdividees Improvements. Subdivider shall deliver to the Town irrevocable letter(s) of credit issued by a reputable financial institution or other collateral acceptable to the Town and consistent with Section 16.24.100 of the Code in an amount equal to one hundred percent (1001%) of the estimated cost of completion of Subdivider's Improvements set forth on Exhibit B. The Town. hereby acknowledges that the Final Plat for the Subdivision may be recorded prior to the closing of the HUD Financing; but Subdivider acknowledges and agrees that if the HUD Financing has not closed and the letter(s) of credit or other collateral. acceptable to the Town has not been delivered to the Town within 15 days after recordation of the Final Plat for the Subdivision, either Traer Creek LLC ("Traer Creek"), a Colorado limited liability company, the current owner of 'the real property covered by the Final Plat of the Subdivision or the Town shall have the unilateral right to vacate the Final Plat for the Subdivision. (b) Progress Payments on Subdivider's Improvements. Subdivider agrees that a separate schedule of values for the Improvements shall be included in the construction contracts for the Buffalo Ridge. Apartments.- The Subdivider may make progress payments to its contractors on a monthly basis upon (i) the partial completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon written request to the Town including an itemized statement and certification of the Subdivider of completion and. acceptance of itemized improvements by Subdividees engineer, and (ii) the written approval of the Town or its designee; provided, however, if the Town fails to respond to a disbursement request within seven days such request will be deemed approved. The itemized statement and certification by the Subdivider shall certify that all work for which progress payments have been requested has been completed in accordance with the approved -plans and specifications. Upon the approval of such progress. payments, the amount of collateral shall be reduced by the amount of such payment; provided, however, that.. in no event will 'any such. reduction cause the amount of remaining collateral to be less than an amount equal to one hundred percent (100%) of the estimated costs of completion of all remaining Subdivider's Improvements. - ---Such_ppRgress 1~aYments shall be disbursed to the contractor in accordance with the construction contract executed for the construction of the Improvements 'and--approv in connection with the HUD Financing; provided, however, retainage of ten percent (100/0) shall be withheld with respect to all disbursements until the Improvements have been completed. Upon completion of all work related to Subdividees,improvements and the Town's acceptance of the completion of Subdivider's Improvements, the entire amount of remaining collateral, less the amounts or other security described in paragraph 5, shall be released. (c) Default by Subdivider. In the event of a default in whole or in part by Subdivider, the Town shall be authorized to take all such actions necessary or desirable to enforce its rights hereunder for the purpose of undertaking completion or remediation work on the Improvements after providing thirty (30) days' advance written 11I { 11,11111 f 11 ~I 11? 1,i ` 'x'96832 Pae' 514415.8 111111111, 1 I~050! 2P.l2@22 0~ S 52P Sara J <<s"^ Easle. .085 R 80.00 D 0.00 10 notice of default and providing an opportunity during such period for Subdivider to cure the default. 5. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. The amounts for completion of all warranty work on Subdividees Improvements shall be secured by a dual obligee bond ("Bond") in form approved by the Town, from the subcontractor constructing ,the Improvements, naming Subdivider and Subdividees prime contractor as obligees, in the amount of one hundred percent (100%) of the cost of such corrective work, to be held by the Town during such one (1) year warranty period, as a guaranty of performance of any work required under the above-described warranty. In the event any corrective work is performed during the one (1) 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 The Bond shall be maintained for the entire warranty period. ~6. Condition of Public Dedicated Roadways. The Subdivider shall at "all times prior to acceptance of any publicly dedicated roadways within the Subdivision by the Town give good and adequate warning to the traveling public of, each and every known dangerous condition existent in said roads and shall protect the traveling public from such - defective or dangerous conditions. Until the completion of all the improvements herein agreed to be constructed, roads not accepted as improved shall be under the charge and control of the Subdivider for purposes of this Agreement; and the Subdivider may close all or a portion of any street or road, within the Subdivision whenever it is necessary to 'protect the traveling public during the construction or installation of the Improvements herein agreed to be made. 7. Engineering Certification. Upon completion of portions of the Improvements, Subdivider will- cause its engineers (who- shall be registered in the State of Colorado) to certify in writing that the installation of the. Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town. Inspection reports, test results and other supporting documentation - shall"be submitted with the certification. 8. 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, Subdivider within thirty, (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees 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. fill 796832 Pege: 4 o!" 16 514415.8 t i t+ ! fll~ i, I 05a i Sara J Fisher Eagle CO q5 R 86:01D 2~ D 20 L^! .52P A 00 9. No Obligation of Town to Complete Improvements. Subdivider 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 or perform any of the said Improvements. No one, individually or, otherwise, other than the Subdivider-, shall acquire, as a result of this Agreement, any rights, claims or obligations from or against the Town, its agents, employees or officers. Actions by the Town against Subdivider to enforce any provision of this Agreement shall be at the sole discretion of the Town. No third parties shall have any rights to require any action by the Town pursuant to this Agreement; and this Agreement shall not create a liability on the part of or be a cause of action against the Town, for any personal' or property damage that may result to any third parties from the failure of the Subdivider to complete the Improvements herein specified. 10. 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 properly injured by reason of the nature of said work. To the extent permitted by law, Subdivider 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 Subdivider; as hereinbefore stated, but not with regard to any losses, claims; damages or liabilities to which the Town or any of its officers, agents or employees may be. subject and resulting from the Town's gross negligence or willful misconduct Furthermore, Subdivider 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, unless it is determined that such claim resulted from the gross negligence or willful misconduct of the Town. 11. Rights of Town in Event of Default In the event that Subdivider defaults in whole or in,patt in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Subdivider of such default during which period of time the Subdivider failed to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and other matters expended by the Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the Town may bring a mandatory injunction action against Subdivider to require installation and construction of the Improvements, if not constructed within the time limits described in this Agreement. If any such action is brought by the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. I1 1 (I i~l111 ; ?age : 5 of 15 I`its I i III' pF i28~2r~'• 0~ 52? 514415.8 11111~.J'lt . ii• " 1~; i f~1 83 R 80 . @0 Sara J Gisner Eagle CO iZ . j, S 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, and the Warranty Period has expired;. the Town agrees that it will issue a letter, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. 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. 15. Acquisition of Property and Non-Liability of Traer Creek. Subdivider hereby discloses and the Town hereby, acknowledges that Subdivider does not currently own any portion of the real property, shown on the Final Plat for the Subdivision. Subdivider has contracts to acquire portions of the real property covered by the Final Plat contemporaneously with the closing of the HUD Financing from Truer Creek. The Town agrees that -Traer Creek shall have no liability or obligation under this Agreement and shall look solely to Subdivider for performance hereunder upon its acquisition of title to any portion of the real property covered by the Final Plat. executed this Agreement as of the date first above written. TOWN OF AVON, a Colorado municipal corporation ATTEST: By: M o BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation By ame. ~F as«.- fid 514415.8 II i `i I 'I~~~ I'' i i~l 96832 i ll ( I +I~~ !j ii 1 age of Is i t~ i I ~ Ij l 1 t~~! •i ~ i~~ tip ! 1 rs~28~~efx. T1 •5?~ Sara J fisher Eagle. CC 99 ) R 80.00 APP 0V AS TO FORM: To Attorney Title: V1+4-6 ~C^~S►'°r~~~ BUFFALO RIDGE II LLLP,. a Colorado limited liability limited partnership BY: CORUM BUFFALO RIDGE LLC, a Colorado limited liability company, General Partner BtjJam III, Managing BY: WINTERGREEN HOMES - BUFFALO RIDGE LLC, a Colorado limited liability company, General Partner y: jeffery .Span 1, Manager The undersigned hereby consents to the execution and recording of the Final Plat for the Subdivision and this Agreement. TRAER CREEK LLC, a Colorado limited liability company By: N e• w woo Title: Iy1M A1.. mac, 796832 I 1i I~+ Ali i Page' of 16 It.i I I 0F 128/2M 1 52P Sara J Fishe• Eagie. CC 89 R 30.00 0 0 0@ 514415.8 7 IL4 STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 2 day of 11/'- 200L a, by Itdt, v 11 as WL(af-,, of dLejrqjvn of Avon, a Colorado municipal corporation. Witness my hand and official seal. My commission expires: My cor.-imiSsian 1::N' °s Not Ail -i ° e r.' Lbl c STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this o?d'~' day of r~ 200a_ , by S6trA iMo~~„~..¢ Q , as r- . o Buffalo Ridge Affordable Corporation, a Colorado nonprofit corporation. ~•~A•YUN Q • ~.9 ;Witness my hand and official seal. :•p O T A F j), My commission expires: tom- a~-p • !59 PUBLIC; Notary Public 796832 ff fl I Cage : S of :6 I ~ ~ i ~ ~ , ~Ii f ~ , ~I ~ I ss~zs: z~►~z ~ sza Sara .Fisrar Eaa!a. Co 99 R 80,00 D 0.00 8 514415.8 V I5 Y STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this t2~ day of 2001, by James G. Fitzpatrick, III, as Managing Member of Corum Buffalo Ridge LLC, a Colorado limited liability company, General Partner of Buffalo Ridge H LLLP, a Colorado limited liability limited partnership. Witness my hand and official seal. My commission expires: 1 101 - Q 4- Public e: •;9 NOTARY :P(JI8LIG STATE OF COLORADO ) )ss. COUNTY OF~ ) The foregoing instrument was acknowledged before me this s.~day of r• 200 by Jeffery M: Spank, as Manager of Wintergreen Homes- B alo Ridge LLC, a Colorado limited liability company, General .Partner of Buffalo Ridge II LLLP, a Colorado limited liability limited partnership. Witness my hand and official seal. My commission expires: 111~1 i lI! 79ro8326 page: 9 of ~ ~11 69 R y~.00 ! a CO Sara J Fisher _ag. 9 514415.8 i1 STATE OF COLORADO ) )ss. COUNTY OF EWAM ) The foregoing instrument was acknowledged before me this 2ST% day of MUM , 2002 , by ('4%U %j% UmcWOt,M as WM gl%UER. of Traer Creek LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: i I ! I I i(~ I t Page' ;0 of '16 II t II ~ 1 j -5~2P12TFi2 <1 ~~Z~ Sara J Pis-er Eagle CO 89 R 80.00 0 t:.OG! to 514415.8 I-t EXHIBIT' A Description of Improvements 796832, II ! ~I(; i +i tflf ► IIf I{I1 , I+1;~ i~ ItI i~II1 + ~ ~ ~•;gf . ,1 0 ~ : 5 1 1 . 25 Zb 2@3c , . 52. Sara a E1 "@r 8aa:a. CO 8~ R 89.@0 0 0.2'0 11 514415.8 Exhibit A Village (at Avon) Filing 2 Subdivision Improvements Agreement The public Improvements for the Village (at Avon) Filing 2 shall include the following described work: 1. General, including contractor mobilization. 2. Demolition, including the removal of the gate at the westerly property line. 3. Earthwork, which is limited to clearing, excavation and the placement of compacted earth fill within the right of way for Swift Gulch Road. 4. Road Construction, including the preparation of the subgrade, placement of road base, placement of asphalt paving, installation of guardrail, installation of concrete sidewalks, roadway striping and signage and two bus stops for Swift Gulch Road. The preparation, of the subgrade, placement of road base and placement of asphalt paving for the bike path. 5. Drainage and Debris Flow Mitigation, including the construction of debris retention ponds, storm water detention ponds, storm sewers, and outlet structures. This work also includes the enclosure of the Nottingham - Puder Ditch into a pipeline. 6. Revegetation & Erosion Control, including erosion control during construction, and reseeding all portions of the Swift Gulch Road right of way disturbed by this construction. 7. Utilities, including the construction of sanitary sewer and domestic water mainlines. 8. Retaining Walls includes the construction of boulder and/or MSE retaining walls within the Swift Gulch Road right of way. 9. Booster Pump Station includes the construction of a temporary, above ground pump station to provide adequate domestic water pressure and required fire flows. - In the eventthat Traer Creek Metropolitan District completes a "loop line" across Interstate Highway 70 connecting the easterly end of the Village (at Avon) Filing 2 water main to the water mains on the south side of the highway in advance of the completion of the first apartment building, this station will not be required or constructed. 10. Construction Management includes the general contractors fee, liability insurance and performance bond. These improvements are more fully delineated on the construction plans on file at the Town Office entitled FINAL PLAN, THE VILLAGE (AT AVON) FILING 2, BUFFALO RIDGE IMPROVEMENTS, dated 1 !i' j l 1 tfl+i 796832 1: 1 -"ape: 12 of I I~ , ~il I r f II I ~I I 1 05 -'7.8/2007 O'~ r,20 Sara J Fi"r Eagle CO 99 R 80 02 D 0.00 i q 1. 514415.10 EXHIBIT B Cost of Improvements !i . iI i ► i f,1 t 796 832 Sara,i Filsher'Eial9!e CO Ii~ 09 R 80.00 0 0.06 12 Villasae tat_Avan) Filing 2 SubdjWston Improvements Agreement - Exhffi t B Wintersmen Homes 6:40 PM 5242002 SIA budget Page 1 of 3 1 General 1.1 Mobilization 1 LS 52,611.00 $52,611 subtotal a 2 Demolition 1 Fence & barricade removal 2 1 LS 500.00 $500 N r . o i9 subtotal 0 14 ' ~ 0 ~ 40 3 Earthwork 11150 CY 2.64 $29,436 N a a 3.1 Clear & Grub 2 Topsoil - replace 3 2000 CY 5.08 $10,160 . 3 Excavation 3 58548 CY 2.81 $164,518 - . 3.4 Embankment 72254 CY 1.90 $137,282 oc subtotal 4 Road Construction 4.1 Subgrade prep. 13430 SY 0.59 $7,924 4.2 Bike path subgrade prep. 4205 SY 0.73 $3,070 3 Class 6 road base 4 V . a 10" 8047 Tons 13.71 $110,324 p d Bike path 1245 Tons 18.06 $22,485 4 Asphaltic concrete 4 ,L . a 4" 3428 Tons 39.70 $136,092 M L. c 3" bike path 520 Tons 39.97 $20,784 5 Guardrail 4 2171 LF 19.20 $41,683 . 6 Guardrail anchorage 4 8 EA 720.00 $5,760 . 7 Traiihead parking & improvements 4 1 LS 3,155.00 $3,155 . 4.8 Striping 1 LS 2,400.00 $2,400 4.9 Signs 11 EA 123.96 $1,364 11 Sidewalk (incl prep) 4 10026 SF 8.77 $87,928 . 4.12 Bus stop concrete paving 5452 SF 10.64 $58,009 subtotal 5 Drainage & Debris Mitigation 5.1 Pond excavation 32942 CY 3.50 $115,297 2 Pond embankment 5 5504 CY 3.97 $21,851 . 3 18" HDPE 5 1233 LF 32.84 $40,492 . 4 18" RCP 5 94 LF 30.24 $2,843 . 5 30" HDPE 5 689 LF 49.19 $33,892 . 6 48" HDPE 5 379 LF 93.38 $35,391 . 7 60" HDPE 5 304 LF 15328 $46,597 . 5.8 18" HDPE end section 31 EA 298.31 $9,248 $52,611 $500 $341,396 $500,977 21 r Village (at Avon) Filing 2 Subdhrlston Improvements Agreement - Exhibit B 5.9 30" HOPE end section 5.1 48" HDPE end section 5.11 Storm-manholes 5.12 Inlets 5.13 Mprap 5.14 Concrete headwalls 5.15. Nottingham - Puder ditch a 36" HDPE b V manholes c Slide gate d R/R existing 36"end sections a e Tie to existing 24" RCP E.. s m 5.21 Detention pond outlet structure ~ A p 1 EA 2 EA 5 EA 6 EA 4688 Tons 2 EA 82.24 1328.85 3202.64 2906.38 30.00 4800.00 - - 843 LF 5 EA 1 EA 2 EA 1 EA 6 EA ,n m N o subtotal LID M N Q m m a Revegetedon & Erosion Control 6.1 Erosion control CO 6.6 Seed & mulch subtotal ,moo W . 7 tldliBes 7.1. Water Main 8 a 12" DIP b 12" bends ®W c Fire hydrant assembly ® d 4" water service line LL e Air vac/prv manhole ® 7.2 Sanitary Sewer Main ® a 8" PVC b Manholes c Sanitary service lines subtotal 56.72 3181.98 1128.00 268.44 874.28 4431.60 1 LS 10,596.30 5 Acre 3,660.00 4096 LF 11 EA 5 EA 15 EA 1 EA 5200 LF -18-EA- 15 EA 37.71 405.62 3,992.64 2,81229 2,635.36 21.87 2,209.65 1,699.85 8 Retaining .1#8118 8.1 MSE walls 6289 SF 19.20 $120,749 8.2 Wall Excavation 4100 CY 5.45 $22,345 8.3 Wall backfill 2500 CY 11.04 $27,600. 8.4 Boulder retaining wail 6289 SF 5 $31,445 subtotal 9 Booster Pump Station 9.1 Package (above ground from EFI) 1 EA 100,000.00 $100,000 9.2 Site electrical & concrete 1 EA 25,000.00 $25,000 Wintergreem Homes 6:40 PM 512412002 SIA budget Page 2_ of 3 $2,658 $16,613 $17,438 $140,640 $9,600 - - $47,815 $15,910 $1,128 $537 $874 $26,590 $10,596 $18,300 $154,460 $4,462 $19,963 $42,184 $2,635 $0 $113,724 $39,774 $25,498 $584,895 $28,896 $402,700 $202,139 ZZ- village (at Avon) Filing 2 Subdivision Improvements Agreement - Exhibit B ' IX Y. ' •Y %J 9\r:' • i 'IX7.+}W.i{ria, y M.•r4+` :.1. : ..{•:`•S: xi lr .,r~, {.T.r;:::<•r}fT•,i •.,vf,}:•.~r.••.^•.':.•:i" iT.s~:~p5,,.;. , . has ~ 3Q : Y. r. ..,y rte ,r } n S•}+ r ,r:'4 •(}:f:+.+vl ii S}'{+<%•Yii S:: '•i : YT~iYr' ri.'K%;:,'i:r}~C >~~i'%Yf?;t.~f.}:i i*~~}..•:~•'.Yi'.:.~•:'f.{Y~ ,};,`.PS:255i:Ei~S: h':• 'Y.}i 'ir}T:C: i%iJ:'v:: ~•A:h,:• >.::T i{i:{'+,•}:.. . : 4v h{.:f:: i I subtotal 10 Consbruedon Management 10.1 Insurance, bond & fee 1 EA subtotal' 1111-1. +}T: .4 ~ ~Si~•+S''~2Sri:~SS?. {yam v •.v v.Jf :'C}: :y'r,}}.. ;r: v. : }•:;:;fi.+,Y;p., ; • fr:•r.c:,.~:+~'•f%;+,,f K%:i,.:. • . rr ft' r:::. `.:::f 796832 Page: Is of Is IIIll !bl! 0512812002 01 5 { I~ I! Sara J Fisher Eagle, CO BS R 80.00 D @.00 Wintergreen Homes 6:40 PM 5/242002 SIA budget Page 3 of 3 i. 3• .f Y ..ir :•ki,v v d$~ •z N1f: +.'.Y}:JTF.!..v.....::4:•;}}::T%•}.v,•};i.Vf•T::Ti .i.H.•:2}%•: _t~~ $125,000 9.00% $201,520 $201,520 2 ale-/.S /1- 3 TOWN OF AVON, COLORADO RESOLUTION NO. 04-29 Series of 2004 A RESOLUTION APPROVING AND ACCEPTING THE PUBLIC IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2 AND ESTABLISHING WARRANTY PERIOD FOR SAID IMPROVEMENTS WHEREAS, the Town of Avon entered into a SUBDIVISION IMPROVEMENTS AGREEMENT, dated April 23, 2002, with Buffalo Ridge Affordable Housing Corporation and Buffalo Ridge II LLLP in connection with the approval of the Final Plat for The Village (at Avon) Filing 2, Town of Avon, Eagle Couniy, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed in conjunction with said subdivision; and WHEREAS, said Agreement established requirements for the provision of security deposits to assure completion of the improvements in accordance with the Agreement and the subsequent release of the security deposits upon completion and the stipulated warranty period; and WHEREAS, said public improvements were substantially complete as of July 27, 2004; and WHEREAS, all required documentation for approval and acceptance of the improvements has been submitted. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that: 1. The, public improvements required to be constructed in conjunction with The Village (at Avon) Filing 2 are "substantially complete as of July 27, 2004, in accordance with the SUBDIVISION IMPROVEMENTS AGREEMENT and the stipulated one-year warranty period for said improvements shall extend to July 27, 2005. 2. The public improvements are hereby approved and accepted by the Town of Avon with the exception of items of warranty work, which are identified during the warranty period, which items shall have a warranty period, which extends for one year from the date of satisfactory correction of the warranted item. Resolution No. 04-29 Public Improvements V@A Page 1 of 2 2y V 3. Effective July-27,-2004, the security deposit may be released and warranty work on Subdivider's Improvements will be secured by a dual obligee bond in accordance with the . Subdivision Improvements Agreement. ADOPTED THIS DAY OF 2004. TOWN COUNCIL TOWN OF AVON, COLORADO OF Q Albert D. Reynolds, May ATTES'1 IA, - - Pa envy, Town Clerk Resolution No. 0429 Public Improvements V(aJA Page 2 of 2 - Z5 TOWN OF AVON RESOLUTION NO. 05-38 Series of 2005 A RESOLUTION APPROVING AND ACCEPTING PUBLIC IMPROVEMENTS HAVING SUCCESSFULLY COMPLETED THE ONE YEAR WARRANTY PERIOD FOR SAID IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2 WHEREAS, the Town of Avon entered into a SUBDIVISION IMPROVEMENTS AGREEMENT, dated April 23, 2002, with Buffalo Ridge Affordable Housing Corporation and Buffalo Ridge, II LLLP in connection with the approval of the Final Plat for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed in conjunction with said subdivision; and WHEREAS, Town of Avon Resolution No. 04-29, Series of 2004, approved and accepted said public improvements as of July 27, 2004, pending completion of one year warranty period extended to July 27, 2005; and WHEREAS, the warranty work on the Subdivider's Improvements are secured by a dual obligee bond in accordance with the Subdivision Improvements Agreement; and WHEREAS, an on-site warranty inspection was performed with the Project Engineer and Contractor's representative on July 22, 2005; and WHEREAS, all public improvements required by the Subdivision Improvements Agreement were found to be in satisfactory condition at the end of the stipulated one year warranty period with the exception of the required establishment of vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9. [:\Engineering\Avon Village\3.0 Filing ZCompletion\Warranty Res.Doc 2J~a NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF. AVON, that: 1. The public improvements required to be constructed in conjunction with the SUBDIVISION IMPROVEMENTS AGREEMENT for The Village (at Avon) Filing 2 have satisfactorily completed the established one year warranty period ending July 27, 2005 and are hereby approved and accepted, with the exception of the establishment of the required vegetation in the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9. 2. The warranty period for the lower reach of the channel in Basin 10 and the; upper reach of the channel in Basin 9 is hereby extended one year for a period ending July 27, 2006, for the establishment of the required vegetation. 3. The dual obligee bond shall remain in full force and effect through the extended warranty period ADOPTED THIS I DAY OF fx~g , 2005. TOWN COUNCIL TOWN OF AVON, COLORADO I _ Z -z V:.. Ronald C. Wolfe, Mayor ATTEST: P4ty cKe" , To Jerk 1:\Engineering\Avon Village\3.0 Filing ZCompletionMarmanty Rcs.Doc 1 11' eAmlolf- • Inter-Mou--- Main Ft>tl~l►eelL~~iil »a. September 7, 2006 Norman Wood Town of Avon P.O. Box 975--- - - - - - Avon, CO 81620' Re: Buffalo Ridge SIA Final Acceptance and Warranty Release Dear Norman: As you know, we revisited the site July 13, 2006 to check those portions of the lower reach of the channel in Basin 10 and the upper reach of the channel in Basin 9, where minimal or no vegetation was observed on 8-18-05, to determine whether additional re-vegetation occurred' following corrective actions taken by CFCC last year. Per the Stormwater Management Plan,for this project, final stabilization of vegetated areas is achieved when vegetation reaches 70%0 of 50 to 75% vegetative cover (or 35 to 53% vegetative cover). - Closeup phorograph show between buildings b and 7 As you can see from the photographs above, significant re-vegetation was observed in the lower teach of the channel in basin 10. In this area, vegetative cover exceeds 35% and final stabilization has been achieved. However, stability of the fabric lining in the channel requires 50 to 75% vegetative cover, so the temporary erosion and sediment controls (straw logs and hay bales) should be left in place to slow runoff velocities until this coverage is achieved. There is also substantial new growth in the bottom of the upper reach of the ,debris flow mitigation pond spillway/emergency overflow channel in Basin 9 (designed by High Country Engineering, HCE) and some new sprouts were observed on the side slopes, as shown in the photographs below. Leslie Hope (HCE) reviewed the photographs and, in her opinion, it appears that re-vegetation sufficient for warranty release has occurred. She expects the native vegetation in this area will continue to spread. And, although she is comfortable with the degree of re- 6551 S. Revere Parkway., Suite #165 a Centennial, Colorado 80111 • Phone: 303 948 6220 • Fax: 303/948 6526 40801 U.S. Hwy. 6, Suite 203 • P.O. Box 978 • Avon, Colorado 81620 • Phone: 970 949 5072 • Toll Free: 800 856 2258 916 Palmer St.* Salida, Colorado 81201 • Phone: 719 539 1183 Fax: 719 539 1183 2~ vegetation she saw between 2005 and 2006, she would expect more -vegetation to occur if the channel is re-seeded one more time (in the winter before snowfall or early next spring). D, n side slopes. 7-13-06 Thus, based on` observations made during this and previous site visits conducted in July and August of 2005 and High Country Engineering's opinion regarding the overflow spillway for debris flow mitigation pond 9, to my knowledge, information and. belief these improvements are substantially free of visible defects. Inter-Mountain Engineering is recommending full, warranty release for the completed work at this time. This document is not a guaranty or warranty, either expressed or implied. It was prepared for the exclusive use of the Town of Avon. Should you have any questions regarding the information contained in this letter, please contact the undersigned at your convenience. 4353 n : x Sandra onca, P.E. cc: Bill "Thunder" Thornton, CFCC E. J. Olbright, CFCC James Fitzpatrick, Corum F.,,.&&.m~W CONST•REQG ESTS1A 6=-O `m Lv Final Aco*Lu ce 8-3146 doe 2°1