TC Council Packet 01-22-2013TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, JANUARY 22, 2013
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
MAYOR RICH CARROLL
MAYOR PRO TEM TODD GOULDING
COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT - COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
1) CALL TO ORDER AND ROLL CALL
2) APPROVAL OF AGENDA
3) PUBLIC COMMENT
4) ACTION ITEMS
a) CONSENT AGENDA
i) Minutes from January 8, 2012
ii) 2012 Audit Engagement Letter with McMahan and Associates (Scott Wright, Finance Director)
iii) Amended Fireworks Contract for the Fire & Ice Fireworks Display to be held on February 17, 2013
(Meryl Jacobs, Recreation Director)
b) ORDINANCES
i) Public Hearing Second Reading on Ordinance No. 13-01, Series of 2013, Ordinance Accepting the
West Avon and Village Parcels in the Eagle Valley Land Exchange; Granting Easements to Holy
Cross Energy; Granting a Conservation Easement on the West Avon Parcel to Eagle Valley Land
Trust; Approving an Intergovernmental Agreement with Eagle County; and Approving an
Intergovernmental Agreement with Eagle County and Berry Creek Metropolitan District
(Eric Heil, Town Attorney)
c) VILLAGE AT AVON SETTLEMENT IMPLEMENTATION (Eric Heil, Town Attorney)
i) Update on Settlement Implementation
ii) Public Hearing on Resolution No. 13-02, Series of 2013, Approving Amendments to Traer Creek
Metropolitan District Service Plan
iii) Public Hearing on Resolution No. 13-03, Series of 2013, Approving Amendments to The Village
Metropolitan District Service Plan
5) WORK SESSION
a) Harry A. Nottingham Park Lake Liner Project - Update on improvements, State Engineer’s review,
schedule and costs (Justin Hildreth, Town Engineer)
b) Financial Report on Year-to-Date Revenue Collections – Report Only (Kelly Huitt, Budget Analyst)
c) Letter from Mayor Pro Tem Goulding regarding “Disclosure of Conflict of Interest” for serving on
several Boards in Eagle County (Information only)
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, JANUARY 22, 2013
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
5) WORK SESSION (CONTINUED)
d) Mayor and Council Committee Updates
i) ECO Meeting (Councilor Reynolds)
ii) Vail Valley Mountain Bike Association (Mayor Carroll)
iii) 2015 Environment Committee Update (Mayor Carroll)
iv) Eagle Air Alliance Meeting Update (Mayor Carroll)
6) MAYOR REPORT
a) Future Agenda Items
b) Town Council Retreat Follow Up
7) ADJOURNMENT
FUTURE COUNCIL AGENDA DATES & PROPOSED TOPICS:
February 12th: MTRiPs Updates, 2012 after Action Report, Lot 61 Applications
February 26th: Lot 61 Applications, Water Topics
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com e-mail: ericheillaw@yahoo.com
TO: Honorable Mayor Carroll and Town Council Members
FROM: Eric Heil, Town Attorney
RE: Eagle Valley Land Exchange:
ORDINANCE NO. 13-01 ACCEPTING THE WEST AVON AND VILLAGE PARCELS IN
THE EAGLE VALLEY LAND EXCHANGE; GRANTING EASEMENTS TO HOLY CROSS
ENERGY; GRANTING A CONSERVATION EASEMENT ON THE WEST AVON PARCEL
TO EAGLE VALLEY LAND TRUST; APPROVING AN INTERGOVERNMENTAL
AGREEMENT WITH EAGLE COUNTY; AND, APPROVING AN
INTERGOVERNMENTAL AGREEMENT WITH EAGLE COUNTY AND BERRY CREEK
METROPOLITAN DISTRICT
DATE: January 15, 2013
Summary: This memorandum reviews Ordinance No. 13-01 and the various documents which the Town
of Avon is required to approve to implement the Town’s part of the Eagle Valley Land Exchange. The Avon
Town Council took action to approve first reading of Ord. No. 13-01 at its regular meeting on January 8,
2013. The Avon Town Council is required to conduct a public hearing on second reading of Ord. No. 13-01
in accordance with the Avon Home Rule Charter. Ord. No. 13-01 includes the approval of an
intergovernmental agreement with a duration longer than 10 years, therefore the concurring vote of five (5)
Council members is required to approve Ord. No. 13-01 in accordance with the Avon Home Rule Charter.
The Town may proceed to closing upon the effective date of Ord. No. 13-01, or no sooner than February
21, 2013.
The form of Ord. No. 13-01 and the Deed of Conservation Easement West Avon Parcel have been
revised to incorporate comments from the January 8, 2013 Council meeting. The revisions are presented
in a redline/strike-out format.
Summary of Revisions:
• Ord. 13-01, Section 2 – The Town must approve the Ordinance prior to finalization of the form of the
Patents for the West Avon Parcel and Village Forest Service Parcel; therefore, language has been
added to allow the Mayor, Town Manager and Town Attorney to review and approve the final form of
the Patent. The forms of the Patents indicate the amount of acreage to be conveyed, the general legal
description, certain reservations which are mandated in federal conveyances (i.e. ditches) and other
reserved interests. The description of reserved interests is stated in the executed Exchange
Agreement.
• Ord. 13-01, Section 4 – The final form of the Deed of Conservation Easement may be revised to
reconcile the legal description and list of title exceptions in Exhibit D based upon the final form of the
Patent(s). Language has been added to authorize the Mayor, Town Manager and Town Attorney to
review and approve the final form of the Deed of Conservation Easement.
• Ord. 13-01, Section 5 – Language has been added to define, authorize and clarify that amendments to
the Management Plan may be administratively approved by the Town Manager without Council action
or passage of a subsequent ordinance provided that any such amendments are consistent with the
Avon Comprehensive Plan and any adopted trails plan.
MEMORANDUM
H EIL L AW
& PLANNING LLC
Town Council and Planning and Zoning Commission
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 2 of 5
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 2 of 5
• Deed of Conservation Easement, Section 4 Management Plan – Language has been added to state
that the Town (Grantor) and EVLT (Grantee) will review the Management Plan “at such times as the
Parties determine is appropriate” rather than annually. This change was requested by the Manager
and is generally good practice to not create mandates for annual meetings, which then leads to
concerns about technical compliance if such meetings do not occur. Language was also added to
define, authorize and clarify that the Town Manager may approve administrative amendments to the
Management Plan to parallel the language revision in Ord. 13-01, Section 5.
• Deed of Conservation Easement, Section 5.a. Existing Improvements – Language was added to
clarify that the existing stairs are existing improvements as well as to reference the Baseline Report
which provides a more detailed inventory of all existing improvements.
Matter for Discussion: Deed of Conservation Easement, Section 5.k. Recreational Trails – A revision
to the Section 5.k. to add a reference to the 10 foot wide paved trail depicted on Resolution No. 11-12 was
discussed with EVLT since the last Council meeting. EVLT has indicated that they prefer to retain the
existing language in Section 5.k. Recreation Trails but are willing to discuss this issue with Council. My
understanding is that EVLT has concerns about whether a paved trail would be consistent with the purpose
of protecting conservation values. There is little definition, design or planning associated with a prospective
paved trail on the West Avon Parcel at this time, which renders any evaluation of potential negative impacts
to conservation values difficult. The proposed language change to reference the paved trail is set forth as
follows:
First Sentence: “Use of the Property for the recreational purposes set forth in
Section 6.d. of this Easement is limited to the existing trails depicted on Exhibit
B (“Existing Trails”) or on new trails, including but not limited to the ten (10)
foot wide paved trail depicted on Resolution No. 11-12, approved as part of the
Management Plan or otherwise approved by Grantee pursuant to Section 17
(Grantor’s Notice) and 18 (Grantee’s Approval) of this Easement (“New
Trails”).”
An alternative for consideration is to add a specific sentence addressing the paved trail after the third
sentence to read as follows:
“Notwithstanding the foregoing, a new trail may potentially include a maximum
ten (10) foot wide paved trail as depicted on Resolution No. 11-12 provided that
any such paved trail shall be subject to prior review and approval by Grantee to
verify that such paved trail does not negatively impact or degrade the
conservation values protected by this Deed, that such paved trail is located,
designed, constructed and managed in manner to mitigate any potential negative
impacts to greatest practical extent, and that the Management Plan is amended to
incorporate specific guidelines to insure best management practices are utilized
for the paved trail.”
Background: An Exchange Agreement was executed by State of Colorado, Board of Land
Commissioners; the Upper Eagle River Water Authority; Eagle County; and the United States Forest
Service on November 9, 2012. A copy of this Exchange Agreement is attached to this memorandum. The
federal forty-five day period for appeal expired on December 24, 2012. Avon will receive the West Avon
Parcel and the Village Parcel as a part of the Exchange.
Town Council and Planning and Zoning Commission
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 3 of 5
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 3 of 5
The following documents are discussed in this memorandum:
1. Ordinance No. 13-01
2. The United States Patents conveying the parcels to the Town;
3. The two Right-of-Way Easements to Holy Cross Energy (“Holy Cross”);
4. A Conservation Easement (the ”Conservation Easement”) to Eagle Valley Land Trust (“EVLT”) on
the West Avon Parcel;
5. A Management Plan between EVLT and the Town; an intergovernmental agreement (“IGA”)
between the Town and Eagle County to convey a future conservation easement to EVLT on the
Village Parcel; and
6. An IGA between the Town, Eagle County, and Berry Creek Metropolitan District for the
maintenance of the West Avon Parcel.
Ordinance No. 13-01: Ord. No. 13-01 is prepared to combine all the Town’s approvals related to the
implementing the Exchange Agreement into one document.
U.S. Patents: The West Avon and Village parcels will be conveyed to the Town thru U.S. Patents. Once
the appeal period has closed on December 24 the Office of General Counsel for the Forest Service
conducts a preliminary title review. Once the title review is complete, the Forest Service will request the
patent for the land from the Bureau of Land Management and the closing will occur. Forms of the U.S.
Patents are included as Exhibit A and Exhibit B to the Ord. No. 13-01. Closing should occur in late January
or February.
Easements to Holy Cross Energy: Holy Cross Energy currently has a Special Use Permit from the
Forest Service for overhead transmission lines which cross the West Avon Parcel. As a part of the closing
for the land exchange, the Town of Avon must grant replacement easements to Holy Cross for the
overhead transmission lines and for access to those lines.
The Right-of-Way Easement for the transmission lines are one hundred (100) feet in width and allow
the installation of down-guys with anchors and additional poles and related facilities. Holy Cross also has
the right to clear all trees and brush within the easement and the right to cut trees outside of the easement
“which are tall enough to strike the wires in falling.” The Right-of-Way Easement for access facilities allows
Holy Cross to use and maintain an existing road so that it may access the transmission lines. The Right-of-
Way Easement does allow for upgrades, but clarifies that Town’s regulations, including 1041 regulations,
would apply to any upgrade.
Conservation Easement: The Conservation Easement preserves the West Avon Parcel in perpetuity as
open space by conveying the development rights of the property to EVLT. Below is a brief outline of the
notable provisions in the document.
Permitted Actions of the Town under the Conservation Easement: Sub-sections 5.b. and 5.d.
describes the improvements that the Town may build on the West Avon Parcel under the Easement. The
items include trails, trailhead facilities and parking, sheds, restrooms, picnic tables, and trashcans. Sub-
sections 6.b. and 6.c. allows the Town to perform wildfire mitigation such as brush clearing, controlled
burns, and pruning trees and shrubs to control insects and disease. All of which must be done in
compliance with the Management Plan.
Town Council and Planning and Zoning Commission
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 4 of 5
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 4 of 5
Costs Borne by the Town: EVLT is a non-profit and has a very limited budget, for this reason this and
other conservation easements granted to EVLT contain provisions which shift costs to the grantor. Eagle
County agreed to similar cost-shifting language in the Homestead L conservation easement. Below is a
brief description of each of the cost-shifting provisions in the Easement.
• The opening paragraph of Section 6 states that when there is a disagreement over certain
resource management practices used on the property the Parties may consult with a resource
management professional. The paragraph states, “Grantor shall pay the costs for such
consultation, including any fees for the resource management professional, provided that Grantor
is informed of the cost before the resource management professional is retained.”
• Section 8.b. requires the Town to provide commercial general liability insurance at all times and
include EVLT as an additional insured.
• Section 9 outlines the enforcement provisions for violations of the Easement. The second
paragraph in Section 9 states that Grantor shall pay any costs “incurred by Grantee in enforcing
the terms of this Easement against Grantor” including any costs of legal dispute, including
“reasonable attorney’s fees”. If EVLT is not the prevailing party in a legal proceeding then each
party is responsible for its own fees. However, if EVLT acted in bad faith in bringing the legal
action then the Town will not have to pay EVLT’s fees and EVLT will have to pay the Town’s fees
and costs. These latter provisions are subject to the approval of the EVLT board of directors.
• Section 32 discusses the procedure for dispute resolution using mediation. Section 32.e. contains
language where the Town will pay the majority of costs of any mediation: “Grantor shall pay all of
Grantee’s expenses associated with the mediation, including attorneys’ fees and consultant fees,
except that Grantor and Grantee shall share equally the costs of the mediator.”
Value of the Conservation Easement: Section 12 of the Easement states that the Easement is a real
property interest which is valued at thirty percent (30%) of the “full fair market value of the Property”. Per
Section 13, if the Easement is terminated EVLT would be entitled to receive “proceeds equal to the
Proceeds Percentage [30%] multiplied by the fair market value of the Property.” If all or a portion of the
property is taken through eminent domain, under Section 14 EVLT would be entitled to receive “equal to
the Proceeds Percentage [30%] multiplied by the total proceeds from such Condemnation.”
Management Plan: The Management Plan for the West Avon Parcel provides guidance on the use and
management of the property in the present and future. It discusses the maintenance or trails and other
improvements, plans for development of trailheads and parking lots, recreation uses, maintenance of
noxious weeds, wildlife management, and rules and regulations for the use of the property. There is a
commitment for annual monitoring by EVLT to ensure that the Town is managing the property in
accordance with the Management Plan. This document will be executed by both EVLT and the Town and
pursuant to Section 4 of the Easement is reviewed annually and amended as needed. Any amendments
must be approved by EVLT.
IGA for Future Conservation Easement on Village Parcel: Under Section 1 of this IGA the Town agrees
to grant a future conservation easement to EVLT, or other appropriate organization, on the portion of the
Village Parcel that remains after the road to PA-I is built and after the determination of the boundaries of an
area for construction of affordable housing. Section 3 calls for Eagle County and the Town to also execute
a maintenance agreement for the Village Parcel. Section 4 states that the Town shall bear the
Town Council and Planning and Zoning Commission
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 5 of 5
Eagle Valley Land Exchange/Ordinance No. 13-01
January 15, 2013
Page 5 of 5
responsibility for maintenance costs on the property, but that this expense is subject to annual
appropriation.
IGA for Maintenance of the West Avon Parcel: This IGA outlines the maintenance responsibilities of the
Town. The Town is the sole entity responsible for the maintenance and associated costs, but these costs
are subject to annual appropriation. As outlined in Section 1, Town maintenance responsibilities include:
weed control, trash pickup, stocking of dog waste bags, snow removal and inspection, and general
monitoring of the property. Per Section 5 the IGA’s original term is one (1) year with automatic renewal for
additional one (1) year terms beginning on January 1 of each year.
Requested Action by Council: Approval of Ordinance No. 13-01 on second and final reading.
Proposed Motion: “I move to approve on second and final reading Ordinance No. 13-01 AN ORDINANCE
ACCEPTING THE WEST AVON AND VILLAGE PARCELS IN THE EAGLE VALLEY LAND EXCHANGE;
GRANTING EASEMENTS TO HOLY CROSS ENERGY; GRANTING A CONSERVATION EASEMENT ON
THE WEST AVON PARCEL TO EAGLE VALLEY LAND TRUST; APPROVING AN
INTERGOVERNMENTAL AGREEMENT WITH EAGLE COUNTY; AND, APPROVING AN
INTERGOVERNMENTAL AGREEMENT WITH EAGLE COUNTY AND BERRY CREEK METROPOLITAN
DISTRICT.”
Attachments:
Attachment 1: Ordinance No. 13-01, including the following Exhibits:
A. Form of U.S. Patent for West Avon Parcel
B. Form of U.S. Patent for Village Parcel
C. Holy Cross Energy Right-of-Way Easement (for transmission line)
D. Holy Cross Energy Right-of-Way Easement (for access)
E. Deed of Conservation Easement
F. Management Plan for West Avon Parcel
G. IGA between County of Eagle and Town of Avon re: Village Parcel
H. IGA between County of Eagle, Town of Avon and Berry Creek Metropolitan District re: Trail
Maintenance
Attachment 2: Executed Exchange Agreement
Attachment 3: Resolution No. 11-12
Thanks, Eric
Ord. No. 13-01 Implementing Land Exchange
Jan. 2, 201215, 2013
Page 1 of 5
TOWN OF AVON
ORDINANCE NO. 13-01
SERIES OF 2013
AN ORDINANCE ACCEPTING THE WEST AVON AND VILLAGE PARCELS
IN THE EAGLE VALLEY LAND EXCHANGE; GRANTING EASEMENTS TO
HOLY CROSS ENERGY; GRANTING A CONSERVATION EASEMENT ON
THE WEST AVON PARCEL TO EAGLE VALLEY LAND TRUST; APPROVING
AN INTERGOVERNMENTAL AGREEMENT WITH EAGLE COUNTY; AND,
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH EAGLE
COUNTY AND BERRY CREEK METROPOLITAN DISTRICT
WHEREAS, the White River National Forest - Eagle/Holy Cross Ranger District initiated a
multi-party land exchange involving Eagle County, the Colorado State Land Board, the Upper
Eagle Regional Water Authority, and the United States Forest Service (“Land Exchange”);
WHEREAS, the Town of Avon (“Town”) adopted its support of the multi-party land
exchange and preservation of two parcels of United States Forest Service lands as open space by
adopting Resolution No. 11-12 A RESOLUTION REPEALING RESOLUTION 11-09 AND
APPROVING A NEW RESOLUTION BY THE AVON TOWN COUNCIL SUPPORTING A
MULTI-PARTY LAND EXCHANGE LOCATED IN THE WHITE RIVER FOREST IN
EAGLE COUNTY AND RECOMMENDING EXCEPTIONS TO THE CONSERVATION
EASEMENTS ON THE WEST AVON PARCEL AND THE VILLAGE PARCEL and
Resolution No. 12-14 A RESOLUTION SUPPORTING THE MULTI-PARTY LAND
EXCHANGE LOCATED IN THE WHITE RIVER NATIONAL FOREST IN EAGLE
COUNTY;
WHEREAS, pursuant to the terms of the Land Exchange, the Town is to acquire two parcels
of United States Forest Service lands, grant easements to Holy Cross Energy, grant a
conservation easement to the Eagle Valley Land Trust (“EVLT”), and enter into several
intergovernmental agreements with various parties as further described herein;
WHEREAS, and Section 2.1 of the Avon Home Rule Charter provides that the Town
Council may acquire real property and grant interests in real property and Section 16.2 of the
Avon Home Rule Charter authorizes the Town Council to approve intergovernmental
agreements;
WHEREAS, the Town is acquiring from the United States Forest Service the West Avon
Parcel containing approximately 478.2 acres within the Town of Avon and the East Avon Parcel,
(aka the Village Forest Service Parcel), containing approximately 85.99 acres in Eagle County;
WHEREAS, the Town seeks to grant to Holy Cross Energy one Right-of-Way Easement for
electric transmission lines and one Right-of-Way Easement for access to the lines (“Holy Cross
Easements”) attached hereto as Exhibit C: Holy Cross Right-of-Way Easement and Exhibit
D: Holy Cross Right-of-Way Easement;
ATTACHMENT 1
Ord. No. 13-01 Implementing Land Exchange
Jan. 2, 201215, 2013
Page 2 of 5
WHEREAS, the Town seeks to grant to the Eagle Valley Land Trust a conservation
easement on the West Avon Parcel and to execute the conservation easement attached hereto as
Exhibit E: Deed of Conservation Easement West Avon Parcel (“Conservation Easement”)
and accompanying Management Plan attached hereto as Exhibit F: Management Plan
(“Management Plan”);
WHEREAS, § 38-30.5-101, et. seq., Colorado Revised Statutes, provides authority to grant
conservation easements for the protection of open land, environmental quality and life-sustaining
ecological diversity;
WHEREAS, the Town Council finds that granting the Conservation Easement will promote
Goals H.1 and I.1 of the Town of Avon Comprehensive Plan and will thereby promote the
health, safety and general welfare of the Avon community;
WHERASWHEREAS, pursuant to §29-1-201 and §30-11-101, Colorado Revised Statutes,
as amended, Article XIV, Section 18, of the Colorado Constitution, and Section 16.2 of Avon
Home Rule Charter the Town may enter into intergovernmental agreements;
WHEREAS, the Town seeks to execute an intergovernmental agreement with Eagle County,
attached hereto as Exhibit G: Intergovernmental Agreement Between the County of Eagle
and the Town of Avon;
WHEREAS, the Town seeks to execute an intergovernmental agreement with Eagle County,
attached hereto as Exhibit H: Intergovernmental Agreement Between the County of Eagle,
the Town of Avon, and Berry Creek Metropolitan District Regarding Maintenance of West
Avon Property and Related Trails;
WHEREAS, the Town Council finds that all actions in this Ordinance are related to and
necessary for the implementation of the Land Exchange and therefore all actions are confined to
a single subject and this Ordinance is in compliance with Section 6.2 of the Avon Home Rule
Charter;
WHEREAS, a public hearing was conducted in accordance with Section 6.5(d) of the Avon
Home Rule Charter on January 22, 2013 and the Town Council considered all comments prior to
considering final adoption of this Ordinance; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to present testimony and evidence
regarding the application and that approval of this Ordinance on first reading does not constitute
a representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this ordinance.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY
ORDAINS:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
ATTACHMENT 1
Ord. No. 13-01 Implementing Land Exchange
Jan. 2, 201215, 2013
Page 3 of 5
Section 2. Acceptance of West Avon Parcel and Village Parcel. The Town Council hereby
accepts the conveyance of the West Avon Parcel and the Village Parcel substantially in the form of
the United States Patent attached hereto as Exhibit A: United States Patent for the West Avon
Parcel and Exhibit B: United States Patent for the Village Parcel. The Mayor, Town Manager
and Town Attorney are authorized to review and approve the final form of the patent or patents to
verify that such patent(s) implement the intent of this Ordinance.
Section 3. Grant of Easements to Holy Cross Energy. The Town Council hereby
approves the grant of Holy Cross Energy Right-of-Way Easement and the Holy Cross Energy
Access Right-of-Way Easement attached hereto as Exhibit C: Holy Cross Energy Utility
Right-of-Way Easement and as Exhibit D: Holy Cross Energy Access Right-of-Way
Easement.
Section 4. Grant of Conservation Easement. The Town Council hereby approves the grant
of a conservation easement on the West Avon Parcel in the form attached hereto as Exhibit E:
Deed of Conservation Easement West Avon Parcel. The Mayor, Town Manager and Town
Attorney are authorized to review and approve the final form of legal description and Exhibit D to
the Deed of Conservation Easement West Avon Parcel regarding the list of title exceptions to verify
that the final form of the Deed of Conservation Easement West Avon Parcel implements the intent
of this Ordinance.
Section 5. Approval of Management Plan. The Town Council hereby approves the West
Avon Open Space Management Plan in the form attached hereto as Exhibit F: Management
Plan. The Town Manager is hereby authorized to administratively approve amendments to the
Management Plan in accordance with the terms and procedures for amendments to the
Management Plan as set forth in Section 4 of the Deed of Conservation Easement West Avon
Parcel provided that any such amendments to the Management Plan comply with the Avon
Comprehensive Plan and comply with any trails plan adopted by the Town. Administrative
amendments to the Management Plan shall not require adoption of any ordinance or other action
by the Town Council.
Section 6. Approval of Intergovernmental Agreement with Eagle County. The Town
Council hereby approves the intergovernmental agreement between Eagle County and the Town
in the form attached hereto as Exhibit G: Intergovernmental Agreement Between the County
of Eagle and the Town of Avon.
Section 7. Approval of Intergovernmental Agreement with Eagle County and Berry
Creek Metropolitan District. The Town Council hereby approves the intergovernmental
agreement with Eagle County and Berry Creek Metropolitan District in the form attached hereto
as Exhibit H: Intergovernmental Agreement Between the County of Eagle, the Town of
Avon, and Berry Creek Metropolitan District Regarding Maintenance of West Avon
Property and Related Trails.
Section 8. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and
Town Clerk are authorized to execute documents related to all documents approved in this
Ordinance and take such other actions as may be reasonably necessary to implement the actions
ATTACHMENT 1
Ord. No. 13-01 Implementing Land Exchange
Jan. 2, 201215, 2013
Page 4 of 5
in this Ordinance, including but not limited to designating the order of recording of such
documents and executing other necessary and customary documents at closing which have been
reviewed and approved by the Town Attorney. The Mayor, Town Clerk and Town Attorney
may collectively review and approve the completion of documents, correction of typos,
grammatical errors, cross-reference errors, and revisions which do not alter the substantive terms
of any of the documents approved in this Ordinance.
Section 9. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 10. Effective Date. This Ordinance shall take effect thirty days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 11. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 12. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[Signature page follows]
ATTACHMENT 1
Ord. No. 13-01 Implementing Land Exchange
Jan. 2, 201215, 2013
Page 5 of 5
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for January 22,
2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on January 8, 2013.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Patty McKenny, Town Clerk Eric J. Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on January 22, 2013.
____________________________
Rich Carroll, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
__________________________
Patty McKenny, Town Clerk
ATTACHMENT 1
DRAFT FORM OF PATENT FOR WEST AVON PARCEL
January 15, 2013
WHEREAS, Town of Avon, Colorado, a Colorado municipal corporation is entitled to a
patent pursuant to the General Exchange Act of March 20, 1922, (42 State. 465;16 U.S.C. 485),
as amended by the Act of February 28, 1925 (43 Stat. 1090), the Federal Land Policy and
Management act of October 21, 1976, as amended (90 State. 2743; 43 U.S.C. 1715-1717); and
the Federal Land Exchange Facilitation Act of August 20, 1988 (102 Stat. 1086; 43 U.S.C. 1716
(note), 751 (note) for the following described lands:
Sixth Principal Meridian, Colorado
T. 4 S., R. 82 W.,
sec. 34, SE1/4SE1/4
T. 5 S., R. 82 W.,
sec. 2, lots 3 and 4, S1/2NW1/4, SW1/4
sec. 3, lot 1, SE1/4NE1/4 and NE1/4SE1/4
containing 478.09 acres.
NOW KNOW YE, that there is, therefore, granted by the UNITED STATES unto
Town of Avon, Colorado, a Colorado municipal corporation, the lands above-described; TO
HAVE AND TO HOLD the said lands with all the rights, privileges, immunities, and
appurtenances, of whatsoever nature, thereunto belonging, unto Town of Avon, Colorado, a
Colorado municipal corporation, and to its successors and assigns, forever.
EXCEPTING AND RESERVING TO THE UNITED STATES a right-of-way
thereon for ditches or canals constructed by the authority of the United States. Act of August 30,
1890 (26 Stat. 391; 43 U.S.C. 945).
SUBJECT TO a road easement which crosses a portion of the SE1/4SE1/4 of sec. 34, T. 4 S.,
R. 82W., 6th PM issued to BLM on 9-1-1961 for June Berry Creek, BLM Serial #C-069934.
SUBJECT TO an easement issued to Colorado Department of Highways on 10/29/1969,
BLM Serial #C-1129, variable width, 0.4 mile in length across portions of the SW1/4SW1/4
of sec. 2, T. 5 S., R. 82 W., 6th PM and the NE1/4SE1/4 of sec. 3, T. 5 S., R. 82 W., 6th PM.
BLM granted R/W for 1-70 Wolcott-Dowd Junction, Proof of Construction 7/11/1973, Fed
Aid Project #I-70-2(9).
SUBJECT TO BLM plats depict railroad right-of-way across the SW1/4SW1/4 of sec. 2, T. 5
S., R. 82 W., 6th PM, BLM Serial #C-093762.
To have and to hold the same premises above granted and described, unto
Town of Avon, Colorado its assigns, forever.
THE UNITED STATES OF AMERICA
By: _____
Chief, Branch of Lands and Realty, Division of Energy,
Lands and Minerals, Colorado State Office, Bureau of Land
Management U.S. Department of the Interior
EXHIBIT A
DRAFT FORM OF PATENT FOR VILLAGE FOREST SERVICE PARCEL
January 15, 2013
WHEREAS, Town of Avon, Colorado, a Colorado municipal corporation is entitled to a
patent pursuant to the General Exchange Act of March 20, 1922, (42 State. 465;16 U.S.C. 485),
as amended by the Act of February 28, 1925 (43 Stat. 1090), the Federal Land Policy and
Management act of October 21, 1976, as amended (90 State. 2743; 43 U.S.C. 1715-1717); and
the Federal Land Exchange Facilitation Act of August 20, 1988 (102 Stat. 1086; 43 U.S.C. 1716
(note), 751 (note) for the following described lands:
Sixth Principal Meridian, Colorado
Township 5 South, Range 81 West,
Section 8: Lots 1 and 2
containing 85.99 acres
NOW KNOW YE, that there is, therefore, granted by the UNITED STATES unto
Town of Avon, Colorado, a Colorado municipal corporation, the lands above-described; TO
HAVE AND TO HOLD the said lands with all the rights, privileges, immunities, and
appurtenances, of whatsoever nature, thereunto belonging, unto Town of Avon, Colorado, a
Colorado municipal corporation, and to its successors and assigns, forever.
EXCEPTING AND RESERVING TO THE UNITED STATES a right-of-way
thereon for ditches or canals constructed by the authority of the United States. Act of August 30,
1890 (26 Stat. 391; 43 U.S.C. 945).
SUBJECT TO an easement issued to Colorado Department of Highways on 10/29/1969,
BLM Serial # C-1129, variable width, 0.4 mile in length across portions of Lot 3 of sec.
8, T. 5 S., R. 81 W., 6th PM. BLM granted R/W for I-70 Wolcott-Dowd Junction, Proof
of Construction 7/11/1973, Fed Aid Project #I-70-2(9).
To have and to hold the same premises above granted and described, unto
Town of Avon, Colorado its assigns, forever.
THE UNITED STATES OF AMERICA
By: _________________________________________
Chief, Branch of Lands and Realty, Division of Energy,
Lands and Minerals, Colorado State Office, Bureau of Land
Management U.S. Department of the Interior
EXHIBIT B
HOLY CROSS ENERGY
RIGHT-OF-WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
TOWN OF AVON
(hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant unto Holy Cross Energy, a Colorado corporation whose post office address is P.O. Drawer 2150, Glenwood Springs, Colorado
(hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in
the County of Eagle, State of Colorado, described as follows:
A parcel of land situate in the W1/2 of Section 2 and the East1/4 of Section 3, Township 5 South, Range 82
West and the SE1/4 of the SE1/4 of Section 34, Township 4 South, Range 82 West, as more fully described in
Book 331 at Page 978 as recorded in the records of the Eagle County Clerk and Recorder’s Office, Eagle, Colorado.
And, to construct, reconstruct, upgrade (provided that any upgrade shall be subject to applicable regulations of The Town of
Avon, including but not limited to 1041 regulations), operate, maintain and remove an electric transmission or distribution line or
system, within the above mentioned lands, upon an easement described as follows:
Two easements for existing transmission power lines as constructed in place.
Each power line easement will be 100’ in width, extending 50’ in width on either side from center line of the existing
lines as constructed.. The center line of each easement is shown on Exhibit A and
attached hereto and made a part hereof by reference.
The rights herein granted specifically allow Grantee to (1) install down guys with anchors within fifty (50) feet of any pole located
on the above described easement, and, (2) install additional poles, down guys with anchors, overhead conductors and/or related
facilities within the above described easement at any time in the future.
And, in addition, Grantor hereby grants to Grantee, and to its successors and assigns, the right to clear all trees and brush, by
machine work or otherwise, within said easement, and the further right to cut trees, even though outside of said easement, which
are tall enough to strike the wires in falling. In areas where vegetation is disturbed due to Grantee’s use of the Easement, Grantee
shall revegetate the disturbed areas using native vegetation.
Grantor agrees that the surface of the ground will not be changed nor will any other alteration be made within the boundaries of
the easement which would violate National Electrical Safety Code requirements for minimum clearance from the power line
conductors.
Grantor agrees that all poles, wire and other facilities installed by Grantee on the above described lands, shall remain the property
of Grantee, and shall be removable at the option of Grantee.
Grantor covenants, against all those claiming against Grantor, that it is the owner of the above described lands and that the said
lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of
Record.
TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges appertaining
thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of
, 20 .
The individual signing this Holy Cross Energy Right-of-Way Easement hereby represents that he/she has full power and authority
to sign, execute, and deliver this instrument.
TOWN OF AVON
MAYOR
50-02 Town of Avon Land Swap 12/11/12 O’Neil/Town of Avon Land Swap vw Page 1 of 2
EXHIBIT C
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20 , by
as Mayor of the TOWN OF AVON.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
50-02 Town of Avon Land Swap 12/11/12 O’Neil/Town of Avon Land Swap vw Page 2 of 2
EXHIBIT C
B
e
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C
reek Lookout
Trail Beaver Creek Point
Avon/Singletree Trail
June Creek Trailhead
Saddleridge Trailhead
Beaver Creek Lookout Trailhead
Avon/Singletree Trailhead on June Creek Road(signed "June Creek Trail")
Avon/Singletree Trailhead on Nottingham Road
Saddleridge Trail
June Creek Trail
Sa
d
d
l
e
r
i
d
g
e
T
r
a
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Jun
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C
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e
e
k
Date: September 2012
DRAWN BY: D. Reeder
PO Box 1245
Paonia, Colorado 81428
(970) 527-8445
Bing Maps Hybrid Aerial from ESRI
Portion of Eagle County, Colorado, Mosaic
Approximate Scale 1:11,220All Locations Approximate
West Avon Parcel CE
June Creek
Intermittent stream
Big game ramp
Public trailhead
"Fort"
Survey monument
Point
High-voltage powerline
Old road
Forest system trail
Social (bandit) trail
Big game fence
Dilapidated barbed wire fence
0 0.25 0.50.125 Mile
EXHIBIT C
HOLY CROSS ENERGY
RIGHT-OF-WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
TOWN OF AVON
(hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant unto Holy Cross Energy, a Colorado corporation whose post office address is P.O. Box 2150, Glenwood Springs, Colorado
(hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in
the County of Eagle, State of Colorado, described as follows:
A parcel of land located in the S1/2 of section 8, township 5 South, Range 81 West (“Property”)
Access is granted on a right-of-way easement across said land on an existing road as shown on Exhibit A, and attached hereto
and made a part hereof by reference.
And, in addition, Grantor does hereby grant to Grantee, and to its successors and assigns, the right to maintain the existing road
as needed to access Grantee’s facilities.
Grantor does agree that no alteration be made within the easement which would impede access to Grantee’s facilities.
Grantor does covenant, against all those claiming under Grantor, that it is the owner of the above described lands and that the
said lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of
Record.
TO HAVE AND TO HOLD, said right-of-way easement, together with all and singular, the rights and privileges appertaining
thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of
, 20 .
The individual signing this Holy Cross Energy Right-of-way Easement hereby represents that he/she has full power and authority
to sign, execute, and deliver this instrument.
TOWN OF AVON
MAYOR
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20 , by
as Mayor of the TOWN OF AVON.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
EXHIBIT D
EXHIBIT D
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DEED OF CONSERVATION EASEMENT
WEST AVON PARCEL
THIS DEED OF CONSERVATION EASEMENT (“Deed”) is granted this _____ day of
_______________, 2013, by TOWN OF AVON, a home rule municipal corporation of the State
of Colorado, having its address at One Lake Street, P.O. Box 975, Avon, CO 81620,
(“Grantor”), to EAGLE VALLEY LAND TRUST, a Colorado nonprofit corporation, whose
address is P.O. Box 3016, Edwards, Colorado 81632 (“Grantee”) (Grantor and Grantee are
individually referred to as “Party” and collectively referred to as the “Parties”).
RECITALS:
A. Description of Property. Grantor is the sole owner in fee simple of approximately
478.09 acres of real property located in Eagle County, Colorado, more particularly described in
Exhibit A attached hereto and generally depicted on the map attached hereto as Exhibit B, both
of which are incorporated herein by this reference (the “Property”).
B. Qualified Organization. Grantee is a “qualified organization,” as defined in I.R.C. §
170(h) and a charitable organization exempt under I.R.C. § 501(c)(3), as required under C.R.S. §
38-30.5-104(2). Grantee is certified to hold conservation easements for which a state tax credit
is claimed by the State of Colorado’s Division of Real Estate pursuant to C.R.S. § 12-61-720,
and Rule A-1 of the Code of Colorado Regulations, Qualifications for Certification to Hold
Conservation Easements (4 C.C.R. 725-4, Rule A-1). Grantee is also accredited by the Land
Trust Accreditation Commission, a national accreditation program sponsored by the Land Trust
Alliance. Grantee’s primary purpose is to preserve and protect the natural, scenic, agricultural,
historical, and open space resources of Eagle County and surrounding areas, including the area in
which the Property is located, by assisting landowners who wish to protect their land in
perpetuity to preserve and conserve natural areas, environmentally significant land, and working
landscapes for ecological, scenic, aesthetic, scientific, charitable and educational purposes.
C. Conservation Purposes. According to I.R.C. § 170(h)(4)(A) and Treas. Regs. § 1.170A-
14(d), the conservation purposes of a qualified conservation contribution must include one or
more of the following: (1) to preserve land for outdoor recreation by or education of the general
public; (2) to protect relatively natural habitat of fish, wildlife or plants; (3) to preserve open
space; and (4) to preserve historically important land or structures. The conservation purposes
set forth in this Recital C and referred to hereafter in this Deed are collectively referred to as the
“Conservation Values.”
The Conservation Values of the Property are as follows:
1. Relatively Natural Habitat [Treas. Regs. § 1.170A-14(d)(3)]. The Property features
Any time the Property is transferred by Grantor to any third party, Grantor shall pay a transfer
fee of $500 to Grantee and notify Grantee pursuant to the requirements of Section 11 of this
Deed.
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sagebrush shrublands and shrubsteppe, pinyon-juniper woodlands, small aspen stands,
and montane riparian areas at an average elevation of 7,800 feet in the Eagle River
watershed. June Creek, a perennial stream, flows through the northwest part of the
Property, and an unnamed seasonal stream crosses through the west-central part of the
Property. The Property provides food, shelter, breeding ground, and migration corridors
for a variety of wildlife species, including migratory songbirds, raptors, small mammals,
and big game. The Property provides summer and winter range for mule deer and elk,
overall range for mountain lion, and lies within a summer concentration area for black
bear. The habitat on the Property is significant because it is habitat or potential habitat
for a number of significant species including, winter range and winter foraging range for
the bald eagle (State Species of Concern), wintering habitat for the greater sage grouse
(Candidate for listing under the U.S. Endangered Species Act), suitable breeding habitat
for the northern leopard frog (State Species of Concern) and the presence of the
Harrington penstemon is documented on the Property (a rare endemic plant recognized
by the Colorado Natural Heritage Program as vulnerable).
2. Open Space [Treas. Regs. § 1.170A-14(d)(4)]. The Property qualifies as open space
because it is being preserved for the scenic enjoyment of the general public, pursuant to
clearly delineated federal, state or local governmental conservation policies (set forth in
Recitals D and E below), and the Property’s preservation will yield a significant public
benefit.
(i) Scenic enjoyment. The Property features a mosaic of natural vegetation
communities across dramatic topography which adds to the scenic character of the
local rural landscape in which it lies, contains a harmonious variety of shapes and
textures, and provides a degree of openness, contrast and variety to the overall
landscape. A large portion of the Property is visible to the general public traveling
along Interstate 70 which is open to and actively utilized by residents of Eagle County
and the State of Colorado and visitors from across the United States and around the
world. The Property is also visible from U.S. Highway 6, Metcalf Road, Nottingham
Road, and many other public roads around Eagle Valley, all of which are open to and
actively utilized by residents of and visitors to the Town of Avon, Eagle County and
the State of Colorado.
(ii) Significant public benefit. There is a foreseeable trend of intense development in
the vicinity of the Property in the near future, including but not limited to the Town of
Avon, Eagle-Vail, Edwards and Singletree. There is a strong likelihood that
development of the Property would lead to or contribute to degradation of the scenic
and natural character of the area, additional congestion, and loss of open space which
serves as a community separator. Preservation of the Property will continue to
provide an opportunity for the general public to appreciate its scenic values.
It should also be noted that the terms of the Easement do not permit a degree of intrusion
or future development that would interfere with the essential scenic quality of the land.
EXHIBIT E
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Page 3 of 27
3. Recreation or Education [Treas. Regs. § 1.170A-14(d)(2)]. The Property is intended to
be used for passive public recreation and education including, but not limited to, public
trails and a parking area. The Property includes a trail system which is interconnected
with the surrounding area.
These Conservation Values are of great importance to Grantor, Grantee, the residents of
Eagle County, and the State of Colorado. It should also be noted that the terms of the Easement
do not permit a degree of intrusion or future development that would interfere with the
Conservation Values.
D. State Policy Concerning Conservation Easements.
1. C.R.S . § 33-1-101 provides in relevant part that "it is the policy of the state of Colorado
that the wildlife and their environment are to be protected, preserved, enhanced, and
managed for the use, benefit, and enjoyment of the people of this state and its visitors."
2. C.R.S. § 35-3.5-101 states, in part, that "it is the declared policy of the state of Colorado
to conserve, protect, and encourage the development and improvement of its agricultural
land for the production of food and other agricultural products."
3. C.R.S. § 38-30.5-102 provides for the creation of conservation easements to maintain
land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural,
horticultural, wetlands, recreational, forest or other use or condition consistent with the
protection of open land, environmental quality or life sustaining ecological diversity ... "
4. The voters of the State of Colorado by adoption of Article XXVII to the Constitution of
the State of Colorado, the legislature of the State of Colorado by adoption of enabling
legislation, and the State Board of the Great Outdoors Colorado Trust Fund, by adopting
and administering competitive grants application and rigorous due diligence review
processes, have established that it is the policy of the State of Colorado and its people to
preserve, protect, enhance and manage the state's wildlife, park, river, trail and open
space heritage, to protect critical wildlife habitats through the acquisition of lands, leases
or easements, and to acquire and manage unique open space and natural areas of
statewide significance.
5. The Colorado Department of Transportation statutes (C.R.S. § 43-1-401, et seq.) provide
that the "preservation and enhancement of the natural and scenic beauty of this state" are
of substantial state interest.
6. The Western Governors' Association Policy Resolution 08-21 supports "voluntary
incentive-based methods for preserving open space, maintaining land and water for
agricultural and timber production, wildlife and other values.
E. Other Supporting Government Policy.
EXHIBIT E
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1. Town of Avon Comprehensive Plan Goal H.1 states that it is the goal of the Town to:
“Protect Avon’s unique natural setting and its open spaces.”
2. Town of Avon Comprehensive Plan Policy H.1.2 provides that it is Town policy to:
“Acquire or otherwise permanently protect important/significant open space.”
3. Town of Avon Comprehensive Plan Goal I.1 states that it is the goal of the Town to:
“Provide an exceptional system of parks, trails, and recreational programs to serve the
year-round leisure needs of area residents and visitors.”
4. Town of Avon Comprehensive Plan Policy I.1.2 provides that it is Town policy to:
“Acquire parcels or easements for open space, trails, and recreation.”
5. Town of Avon Comprehensive Plan Policy I.1.5 provides that it is Town policy to:
“Coordinate with Eagle County and other government and non-profit agencies in
planning, protecting, and managing public open space…”
6. Eagle County Resolution No. 02-123 provides for the creation of an open space mill levy
for the purpose of acquiring, maintaining, or permanently preserving open space to
preserve wildlife habitat, protect working farms and ranches, conserve scenic landscapes
and vistas, protect wetlands and floodplains, or provide public access points to rivers and
streams.
7. The Eagle County Comprehensive Plan, Policy 3.7.3.d, states that: “Development in
areas critical to the continued well being of Eagle County’s wildlife populations should
not be allowed.”
8. The Eagle County Comprehensive Plan, Policy 3.7.2.a, states that: “The integrity, quality
and interconnected nature of critical wildlife habitat in Eagle County should be
preserved.”
F. Documentation of Present Conditions. Pursuant to Treas. Regs. § 1.170A-14(g)(5) and
in order to document the condition of the Property as of the date of this Deed, a report has been
prepared by Rare Earth Science and dated October 3, 2012 (“Baseline Report”). The Baseline
Report contains a natural resources inventory and also documents the Conservation Values and
the characteristics, current use, and status of improvements on and development of the Property.
The Baseline Report is acknowledged by Grantor and Grantee as an accurate representation of
the Property at the time of the transfer. The Baseline Report has been provided to both Parties
and will be used by Grantee to assure that any future changes in the use of the Property will be
consistent with the terms of the Easement (defined below). However, the Baseline Report is not
intended to preclude the use of other evidence to establish the condition of the Property as of the
date of this Deed.
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G. Grantor further intends, as owner of the Property, to convey to Grantee the right to
preserve and protect the Conservation Values in perpetuity.
H. Grantee agrees by accepting this Easement (defined below) to preserve and protect in
perpetuity the Conservation Values for the benefit of this and future generations.
NOW, THEREFORE, in consideration of the recitals set forth above, incorporated herein
by reference, and the mutual covenants, terms, conditions, and restrictions contained herein, and
pursuant to the laws of the State of Colorado, Grantor hereby voluntarily grants and conveys to
Grantee and Grantee voluntarily accepts, a perpetual conservation easement in gross over the
Property (“Easement”), an immediately vested interest in real property defined by C.R.S. § 38-
30.5-101 et seq., of the nature and character and to the extent hereinafter set forth for the purpose
of preserving and protecting the Conservation Values in perpetuity, subject to and without
affecting, any currently existing easements of record (“Existing Third Party Easements”).
1. Purpose. The purpose of this Easement is to preserve and protect the Conservation
Values in perpetuity in accordance with I.R.C. § 170(h), Treas. Regs. § 1.170A-14, and C.R.S. §
38-30.5-101, et seq. (“Purpose”). The Parties intend to permit acts on and uses of the Property
that are consistent with the Purpose, and that are not expressly prohibited by this Easement and
to restrict or prohibit acts on and uses of the Property that are not consistent with the Purpose. In
this Easement, "consistent with the Purpose" shall mean acts on and uses of the Property that
have a positive impact, neutral impact, or no impact on the Conservation Values as determined
by Grantee in its discretion as a land trust accredited by the Land Trust Alliance and certified by
the State of Colorado 's Division of Real Estate pursuant to C.R.S. § 12-61-720, and Rule A-I of
the Code of Colorado Regulations, Qualifications for Certification to Hold Conservation
Easements. (4 C.C.R. 725-4, Rule A-I), as amended. This Easement sets forth certain uses and
activities that are expressly permitted and consistent with the Purpose, but subject to specified
qualifications, conditions, and requirements of, and procedures for, prior notice to or approval of
Grantee.
2. Rights of Grantee. To accomplish the Purpose of this Easement, the following rights are
hereby conveyed to Grantee, its employees and its representatives.
a. To preserve and protect the Conservation Values;
b. To enter upon the Property at reasonable times to monitor Grantor’s compliance with,
and, to enforce the terms of this Easement; provided that such entry shall be upon prior
reasonable notice to Grantor, and Grantee shall not unreasonably interfere with Grantor’s
use and quiet enjoyment of the Property;
c. To prevent any activity on or use of the Property that is inconsistent with the Purpose of
this Easement, Grantee may require the restoration of such areas or features of the
Property that are damaged by any inconsistent use, all as set forth more fully herein;
d. To enforce the terms and provisions of this Easement; and
EXHIBIT E
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e. To place signs on the Property that identify the land as being protected by this Easement,
the size, number, and location of which signs are subject to Grantor’s reasonable
approval.
Nothing in this Section shall preclude the right of Grantee to enforce the preservation and
protection of the Conservation Values of the Property, or any other provision of this
Easement.
3. Rights Retained by Grantor. Grantor retains the right to perform any act on or use of
the Property that is not prohibited or restricted by this Easement, provided that such acts or uses
are consistent with the Purpose.
4. Management Plan. Grantor and Grantee have prepared and mutually agreed to a land
management plan (the “Management Plan” or the “Plan”) dated ______, 20122013, a copy of
which will be kept on file in the offices of Grantor and Grantee. The Property shall be operated
and managed in accordance with the management issues addressed in the Management Plan or as
otherwise set forth in this Easement. If Grantor intends to undertake any activities not expressly
permitted by this Easement or addressed in a current Management Plan, Grantor shall not
undertake such activities until Grantor has first prepared an amended Management Plan. Grantor
and Grantee shall review the Management Plan annually at the time of Grantee's monitoring of
the Propertyat such times as the Parties determine is appropriate, and the Plan shall be amended
if determined necessary by the Parties. Any amendment to the Management Plan shall be
approved by Grantee in accordance with Sections 17 (Grantor’s Notice) and 18 (Grantee’s
Approval). The Town Manager may approve administratively amendments on behalf of the
Grantor provided that any such amendments to the Plan comply with the Avon Comprehensive
Plan and any trails plan adopted by the Town.
5. Property Improvements. Improvements existing as of the date of this Deed are
permitted. The installation, placement, or construction of any other improvement(s) is prohibited
unless expressly permitted by this Section 5.
a. Existing Improvements. At the time of the granting of this Deed, there are no existing
improvements except for fences, trails, stairs, erosion control infrastructure and signage,
(as existing improvements are described in the Baseline Report) which may be
maintained, repaired and replaced in their current location.
b. New Improvements. Grantor may place, install and construct the following new
improvements within two (2) building envelopes (collectively, “Building Envelope”)
each not to exceed two (2) acres in size to be designated by Grantor as part of the
Management Plan: trailhead facilities and associated parking areas (including
landscaping berms and landscaping), sheds, restroom facilities, and accessory uses and
structures (“New Improvements”). Grantor will use reasonable efforts to seek advice,
consultation, input and recommendations of Grantee in matters regarding the location,
construction, replacement or enlargement of the foregoing New Improvements.
Grantee’s comments will be incorporated to the extent reasonably practicable as
determined by Grantor. In addition to the foregoing New Improvements, Grantor may
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also place, install and construct other similar improvements within the Building Envelope
if approved by Grantee pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee’s
Approval) of this Easement.
c. Construction of Buildings and Other Structures. At the time of construction of any
New Improvements, Grantor shall notify Grantee in accordance with Section 17
(Grantor’s Notice) of this Easement. Once constructed, Grantor may maintain, repair,
replace and enlarge New Improvements within the Building Envelope.
d. Improvements Outside Building Envelope. Grantor may construct or place anywhere
on the Property unenclosed minor recreational improvements, including but not limited
to: picnic tables, unenclosed shelters, seating areas, interpretive and directional signs,
information kiosks, and wildlife resistant trash containers (“Minor Improvements”), all
to be constructed in accordance with the Management Plan. Prior to the construction or
placement of any such Minor Improvements, Grantor shall notify Grantee in accordance
with Section 17 (Grantor’s Notice) of this Easement. In addition to the foregoing Minor
Improvements, Grantor may also place, install and construct other similar improvements
outside the Building Envelope if approved by Grantee pursuant to Sections 17 (Grantor’s
Notice) and 18 (Grantee’s Approval) of this Easement.
e. Residential, Recreational, and Commercial Improvements. Under no circumstances
shall any new residential structures be constructed on the Property. Under no
circumstances shall any new recreational building, structure or improvement be built on
the Property, including but not limited to, athletic fields, golf courses or ranges, race
tracks, airstrips, helicopter pads, or shooting ranges, except as specifically reserved in this
Section 5. Under no circumstances shall any new commercial buildings, structures, or
improvements be built on the Property.
f. Agricultural Improvements. Except as provided in Section 6.a. below, no agricultural
improvements may be constructed anywhere on the Property.
g. Road Construction and Paving. For purposes of this Section, “Roads” shall mean any
permanent road that is graded, improved or maintained, including any seasonal
unimproved roads. Grantor shall not construct or establish new Roads unless approved
by Grantee pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval) of
this Easement. Grantor shall not pave or otherwise surface any Road without Grantee’s
approval pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval) of this
Easement, except as set forth in the Management Plan.
h. Fences. Grantor may repair, replace, move, or remove existing fences and gates, and
construct new fences in accordance with the Management Plan. Grantor may install gates
at various locations in new or existing fences.
i. Utility Improvements. With the exception of Existing Third Party Easements, which
shall be governed by the terms of those Existing Third-Party Easements, and Grantor’s
existing utility improvements, if any, including but not limited to: (i) transformers and
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power lines; and (ii) telephone lines (“Utility Improvements”), may be repaired or
replaced with an improvement of similar size and type at their current locations on the
Property without further permission of Grantee. The construction of renewable energy
generating systems including, but not limited to, wind, solar, geothermal or hydroelectric
(also, “Utility Improvements”), is permitted provided that such activity: (i) is solely for
uses permitted on the Property; (ii) is consistent with the Purpose; and (iii) is approved by
Grantee in accordance with Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval)
of this Easement. Grantor may install Utility Improvements needed to serve permitted
improvements and uses within the Building Envelope in accordance with the
Management Plan. Except as provided in the foregoing sentences, Grantor shall not
install, place, construct, or enlarge any other new Utility Improvements without Grantee’s
approval pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval) of this
Easement. Following the repair, replacement, enlargement or construction of any Utility
Improvements by Grantor, Grantor shall promptly restore and re-vegetate any disturbed
area to a condition consistent with the Purpose. Any easement, right of way or other
interest granted to a third party by Grantor or otherwise reserved by Grantor, to be used
for Utility Improvements is subject to Section 7.i.
j. Signs. Grantor may place and maintain signs on the Property identifying the Existing
Trails (defined below) and New Trails (defined below) and trailheads and public use of
such trails, provided that no individual sign exceeds twelve (12) square feet.
k. Recreational Trails. Use of the Property for the recreational purposes set forth in
Section 6.d. of this Easement is limited to the existing trails depicted on Exhibit B
(“Existing Trails”) or on new trails approved as part of the Management Plan or
otherwise approved by Grantee pursuant to Section 17 (Grantor’s Notice) and 18
(Grantee’s Approval) of this Easement (“New Trails”). The Management Plan shall set
forth general guidelines for the use and maintenance of the Existing Trails and any New
Trails. The surface of the Existing Trails and any New Trails shall be dirt, gravel, rock,
or other natural surface and the width of any Existing Trails or New Trails shall not
exceed six (6) feet unless the surface, width or other characteristic of the trail is stated in
the Management Plan, in which case the Management Plan shall control. Grantor
reserves the right to make improvements to Existing Trails or New Trails as may be
required under the law to comply with the Americans with Disabilities Act (“ADA”) in
accordance with the Management Plan.
l. Motor Vehicles. Grantor, and any other entity Grantor authorizes, or those with
Existing Third Party Easements, which easements or statutory or common law rights
allow the use of motorized vehicles, may use motorized vehicles, including without
limitation all-terrain vehicles and ranching, agricultural, equipment and construction
vehicles on the Property, provided that such vehicles shall be used only for construction
and property management purposes, including but not limited to, maintenance of trails,
drainage facilities, water facilities, wildlife ponds, and weed control. Notwithstanding
the foregoing, Grantor shall have the right to permit motorized access on the Existing
Trails or on any New Trails in order to comply with the ADA. Any portion of the
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Property disturbed due to the use of motor vehicles shall be restored to a condition as
close to its original condition as reasonably practicable. Disturbances by Existing Third
Party Easement holders shall be governed by the terms of the Existing Third Party
Easements or statutory or common law rights and obligations; provided, however that
Grantor shall not enter into an agreement permitting Existing Third Party Easement
holders to disturb the Property without requiring restoration of the Property to a condition
as close to its original condition as reasonably practicable. Off road vehicle courses for
snowmobiles, all-terrain vehicles, motorcycles, or other motorized vehicles are
prohibited.
6. Resource Management. Grantor recognizes the importance of good resource
management and stewardship to preserve and protect the Conservation Values. To this end,
Grantor shall conduct the following uses of the Property in accordance with the provisions
below. If Grantee believes any resource management practice(s) are not consistent with the
Purpose, Grantee, in addition to all of its rights under this Easement, may request that the Parties
consult with a mutually agreed upon resource management professional. This professional will
provide written recommendations for said resource management practice(s) and Grantor shall
follow the resource management professional's reasonable recommendations, only after Grantor
and Grantee have jointly determined that said recommendations are consistent with the Purpose.
Grantor shall pay the costs for such consultation, including any fees for the resource
management professional, provided that Grantor is informed of the cost before the resource
management professional is retained.
a. Agriculture. All agricultural uses, if any, shall be conducted using stewardship and
management methods that preserve the natural resources upon which agriculture is based.
Long-term stewardship and management goals include preserving soil productivity,
maintaining natural stream channels, prevent soil erosion, minimizing invasive species,
and avoiding unsustainable livestock grazing practices. Grantor may construct and
maintain agricultural ditches, stock ponds, wells or other agricultural water features.
Notwithstanding the foregoing, agricultural uses shall not interfere with public access on
the Existing Trails or New Trails or other public access permitted by the Management
Plan.
b. Relatively Natural Habitat. Grantor may conduct major habitat management activities
such as removing tamarisk, chaining juniper or sagebrush, and conducting controlled
burns in accordance with the Management Plan.
c. Timber. On a limited and localized basis, Grantor may cut or prune trees, shrubs and
other vegetation on the Property to control insects and disease, to control invasive non-
native species, to prevent personal injury and property damage, and for domestic uses on
the Property such as firewood and construction of permitted Improvements. Grantor may
thin trees and other vegetation to mitigate forest fires, and to maintain a healthy
ecosystem on the Property in accordance with the Management Plan. Commercial
logging is prohibited. Large-scale alteration or removal of native trees, shrubs and other
vegetation from the Property may only occur upon agreement of the Parties.
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d. Minerals and Other Deposits. Grantor’s current and future ownership of Minerals
(defined below) shall be subject to the provisions of this Section 6.d. Grantor shall not
transfer, lease or otherwise separate any mineral rights, currently owned or later acquired,
from the surface of the Property, or enter into any surface use agreement or other
agreement related to the mineral rights, without the prior approval of Grantee in
accordance with Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval) of this
Easement. Grantor shall not permit any filling, excavating, dredging, mining, drilling,
development, exploration for or extraction or removal of any minerals, including but not
limited to, hard rock minerals, coal, oil and gas, uranium, soils, sand, gravel, rock or
other common building and landscaping materials on, under, or in the Property, or
otherwise associated with the Property by any mining method; provided, however, that
Grantor may permit drilling under the Property for exploration or production of oil, gas
or other hydrocarbons utilizing horizontal drilling techniques from one or more drilling
sites located off the Property subject to a no-surface occupancy restriction on the
Property and a covenant to protect the subjacent and lateral support of the Property.
e. Recreation. Grantor may undertake, or permit members of the public to undertake
passive, non-motorized recreation on the Property, including, but not limited to, wildlife
watching, hiking, biking, equestrian, and cross-country skiing, provided they are
undertaken in accordance with the Management Plan. Notwithstanding the foregoing,
Grantor may allow motorized access in accordance with Section 5.l of this Easement.
f. Weeds. The Parties recognize the potential negative impact of noxious weeds and
invasive plant species on the Conservation Values. Grantor shall manage noxious weeds
and invasive plant species in accordance with the Management Plan. Grantee has no
responsibility for the management of noxious weeds and invasive plant species.
g. Water Rights Included. The Property includes any and all water and water rights, if
any, which were conveyed with the Property to Grantor and beneficially used on the
Property, including surface water rights and groundwater rights, whether tributary,
nontributary or not-nontributary, decreed or undecreed, and all ditches, head gates,
springs, reservoirs, water allotments, water shares and stock certificates, contracts, units,
wells, easements and rights of way associated therewith (“Water Rights”). The Parties
agree that it is appropriate to include the Water Rights, if any, in this Easement pursuant
to C.R.S. § 38-30.5-102. Grantor shall retain and reserve the right to use the Water
Rights or that portion sufficient to maintain and improve the Conservation Values, and
shall not transfer, encumber, lease, sell or otherwise separate the Water Rights from title
to the Property.
h. Special Events. Grantor also reserves the right to conduct special events on the Property,
provided such special events are approved by Grantee as part of the Management Plan or
are otherwise approved by Grantee pursuant to Sections 17 (Grantor’s Notice) and 18
(Grantee’s Approval) of this Easement, and provided Grantor conducts such special
events in a manner that minimizes damage to the Conservation Values and promptly and
diligently re-vegetates any disturbed areas with native seed and/or vegetation.
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7. Restricted Practices.
a. Subdivision. Grantor and Grantee agree that the division, subdivision or de facto
subdivision of the Property, whether by legal or physical process, into two or more
parcels of land or partial or separate interests (including, but not limited to, condominium
interests or the partition of undivided interests) is prohibited. At all times the Property
shall be owned and conveyed as a single parcel which shall be subject to the provisions of
this Easement.
b. Surface Disturbance. Except as otherwise permitted within this Easement, Grantor shall
not alter the surface of the land, including without limitation, moving, excavating or
removing soil, sand, gravel, rock, peat or sod, in a manner that is inconsistent with the
Purpose.
c. Existing Water Features. Except as permitted by this Easement, Grantor shall not alter,
impair, modify or adversely change existing ponds, wetlands or stream channels in a
manner that is inconsistent with the Purpose.
d. Feed Lot. Grantor shall not establish or maintain a feed lot. For purposes of this
Easement, “feed lot” means a permanently constructed confined area or facility which is
used and maintained continuously and exclusively for purposes of warm-up or fattening
large numbers of livestock for market. Nothing in this Section shall prevent Grantor
from seasonally confining livestock into an area, corral or other facility for warm-up or
feeding, or from leasing pasture for the grazing of livestock owned by others.
e. Commercial or Industrial Activity. Grantor shall not conduct industrial uses of the
Property. Grantor may conduct commercial uses on the Property with Grantee’s approval
pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee’s Approval) of this
Easement.
f. Public Access. Public access shall be regulated by the Grantor in a manner consistent
with the Management Plan. The Parties acknowledge that Grantor intends to permit
access to the Property via the Existing Trails and any New Trails, in accordance with the
Management Plan, for use by the general public for purposes permitted by this Easement.
In the event of any closure of all or a portion of the Property to the general public, the
Property is still subject to Existing Third Party Easements.
g. Trash. The dumping or accumulation of any kind of trash or refuse on the Property,
including but not limited to household trash and hazardous chemicals, is prohibited.
Limited dumping or accumulation of other farm-related trash and refuse produced on the
Property is permitted, provided that such dumping does not substantially diminish or
impair the Conservation Values, and is confined within a total area less than one-quarter
acre in size at any given time. This Section shall not be interpreted to prevent the storage
of agricultural products and by-products on the Property in accordance with all applicable
government laws and regulations.
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h. Hazardous Materials. Grantor may use agri-chemicals on the Property in accordance
with all applicable federal, state or local laws. Otherwise, the treatment, permanent
storage, disposal or release of hazardous materials on, from or under the Property is
prohibited. For the purpose of this Easement, hazardous materials shall mean any
hazardous or toxic material or waste that is subject to any federal, state, or local law or
regulation. Notwithstanding anything in this Easement to the contrary, this prohibition
does not impose any liability on Grantee for hazardous materials, nor does it make
Grantee an owner of the Property, nor does it permit or require Grantee to control any use
of the Property that may result in the treatment, storage, disposal or release of hazardous
materials within the meaning of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (“CERCLA”).
i. Easements, Rights of Way or Other Interests. The conveyance or modification of an
easement, right of way, or other similar interest is prohibited without Grantee's approval
pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee's Approval) of this Easement.
j. Telecommunications Facilities. Grantor shall not erect, construct, install, relocate, or
use a communication facility, telecommunication facility, network element,
telecommunication equipment, or any other equipment or material on the Property that
may be used for telecommunications or to provide telecommunication services (as such
terms are defined in The Federal Telecommunications Act of 1996), without Grantee's
approval pursuant to Sections 17 (Grantor’s Notice) and 18 (Grantee's Approval) of this
Easement.
8. Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein,
this Easement is not intended to impose any legal or other responsibility on Grantee, or in any
way to affect any existing rights or obligations of Grantor as owner of the Property. Additionally,
unless otherwise specified below, nothing in this Easement shall require Grantor to take any
action to restore the condition of the Property after any Act of God or other event over which
Grantor had no control, provided, however, that Grantee shall have the right to bring an action at
law or in equity for trespass or any other appropriate cause of action against any third party who
violates the terms of the Easement. Grantor shall continue to be solely responsible and Grantee
shall have no obligation for the upkeep and maintenance of the Property and Grantor understands
that nothing in this Easement relieves Grantor of any obligation or restriction on the use of the
Property imposed by law. Among other things, this shall apply to:
a. Taxes. Grantor is a tax-exempt entity. However, if Grantor or the Property ever become
subject to real or personal property taxes or assessments levied against the Property,
(collectively “Taxes”), Grantor shall be solely responsible for payment of all taxes and
assessments levied against the Property and shall furnish Grantee with satisfactory
evidence of payment upon request.
b. Liability. Grantee shall not be liable for injury or damages occurring on, or arising from,
the Property unless due solely to the gross negligence or intentional act of the Grantee, its
members, directors, officers, employees, agents, or contractors. Liability, if any, of the
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Grantor shall not exceed an amount equal to any limits set forth in the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101 et seq., now existing or as may
hereafter be amended, nor confer any rights or benefits on any person or activity not a
Party to this Agreement. Grantor does not waive or intend to waive the limitations on
liability which are provided to it under the Colorado Governmental Immunity Act.
Grantor agrees to obtain and maintain at all times, commercial general liability insurance
consistent with the limits set forth in the Governmental Immunity Act, naming Grantee as
an additional insured. Grantor shall provide proof of such insurance prior to execution of
this Easement and at any later time requested by Grantee.
9. Enforcement. If Grantee finds what it believes is a violation of this Easement, Grantee
shall immediately notify Grantor in writing of the nature of the alleged violation. Upon receipt
of this written notice, Grantor shall discontinue the activity that has caused the alleged violation
and Grantor shall: (a) restore the Property to its condition prior to the violation in a accordance
with a written restoration plan (“Restoration Plan”); (b) provide a written explanation to
Grantee of the reason why the alleged violation should be permitted; or (c) when violations are
caused by the public or third parties, Grantor shall provide Grantee with a written plan which
discusses the nature of the alleged violation and enforcement options and alternatives (also, a
“Restoration Plan”). If the condition described in clause (a) or (c) above occurs, the
Restoration Plan shall be submitted to Grantee within twenty (20) calendar days after Grantor's
receipt of the Notice of Violation, or within a longer time period if so specified by Grantee in the
Notice of Violation or agreed to by Grantor and Grantee in writing. If applicable, the
Restoration Plan shall be approved or disapproved by Grantee in writing within thirty (30)
calendar days after its submittal. If Grantee fails to respond in writing within thirty (30) calendar
days after Grantor's submittal to Grantee of a Restoration Plan, the Restoration Plan shall be
deemed approved. Grantor shall begin restoring the Property, or taking steps to address
violations by the public or third parties, in accordance with the Restoration Plan within ten (10)
calendar days after it is approved or deemed approved by Grantee and diligently pursue such
cure to completion in compliance with the terms of the approved Restoration Plan. If the
condition described in (b) above occurs, both Parties agree to meet within thirty (30) calendar
days or as soon as possible to resolve this difference. If a resolution of this difference cannot be
achieved at the meeting, both Parties agree to meet with a mutually acceptable mediator to
attempt to resolve the dispute in accordance with Section 32. When, in Grantee’s opinion, an
ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of
the Property, Grantee may, at its discretion, take appropriate legal action. Should mediation fail
to resolve the dispute or if more than 120 days has passed since Grantee’s receipt of the written
notice of alleged violation, Grantee may, at its discretion, take appropriate legal action. If a court
with jurisdiction determines that a violation is imminent, exists, or has occurred, Grantee may
get an injunction to stop it, temporarily or permanently. A court may also issue an injunction to
require Grantor to restore the Property to its condition prior to the violation. Grantee shall be
entitled to recover damages including, without limitation, damages for the loss of scenic,
aesthetic, recreational or environmental values. Grantee's remedies described in this Section
shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in
equity, including the right to recover any damages for loss of Conservation Values.
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Grantor shall pay any costs incurred by Grantee in enforcing the terms of this Easement against
Grantor, including, without limitation, costs and expenses of suit, and reasonable attorney’s fees
and any costs of restoration necessitated by Grantor’s violation of the terms of this Easement. If
a court determines that Grantee is not the prevailing Party in any legal proceeding between the
Parties, after a final order of such court and after all applicable periods of appeals of any such
order, and any reconsiderations or remands related thereto, have expired, each Party shall pay
their own costs. If a court determines that Grantee has acted in bad faith in seeking to enforce
this Easement, after a final order of such court and after all applicable periods of appeals of any
such order, and any reconsiderations or remands related thereto, have expired, Grantee shall pay
Grantor’s costs and expenses of suit, and reasonable attorney’s fees. Enforcement of the terms
of this Easement shall be at the discretion of Grantee, and the failure of Grantee to discover a
violation or to take action shall not waive any of Grantee’s rights, claims or interests in pursuing
any such action at a later date.
10. Transfer of Easement. Grantee shall have the right to transfer this Easement to any
public agency or private non-profit organization that, at the time of transfer, is a "qualified
organization" under I.R.C. §170(h), and under C.R.S. §§38-30.5-101, et seq., and only if the
agency or the organization expressly agrees to abide by the terms of this Easement and to assume
the responsibility imposed on Grantee by this Easement. Grantee shall obtain Eagle County’s
and Grantor's consent (and Town of Avon's consent if the Town no longer owns the Property) to
any such transfer in advance of any proposed transfers. The consent required of Eagle County
and Grantor in the preceding sentence shall not be unreasonably withheld. If Grantee ever ceases
to exist or no longer qualifies under federal or state law, a court with jurisdiction shall transfer
this Easement to another qualified organization having similar purposes and that agrees to abide
by the terms of this Easement and to assume the responsibility imposed on Grantee by this
Easement.
11. Transfer of Property. Grantor shall incorporate by reference the terms and conditions
of this Easement in any deed or other legal instrument by which it divests itself of any interest in
all or a portion of the Property. The failure of Grantor to perform any act required by this
Section shall not impair the validity of this Easement or limit its enforceability in any way. Any
time the Property or a portion thereof is transferred by Grantor to any third party, Grantor shall
pay a transfer fee of $500 to Grantee to be used for purposes consistent with Grantee's mission,
except that such transfer fee shall not apply to any transfer by the original Grantor to a successor.
Grantor shall notify Grantee and Eagle County (and Town of Avon if the Town no longer owns
the Property) in writing within (5) business days after closing using the form in Exhibit C
attached hereto and made a part of this Deed, and shall attach to the form a copy of the new
ownership deed. Grantee reserves the right to record a notice of transfer fee in the official real
property records of Eagle County, Colorado. Grantor shall provide Eagle County with written
notice of any intention to transfer or convey the Property at least forty-five (45) days prior to the
date proposed for such transfer or conveyance.
12. Real Property Interest. This Easement constitutes a real property interest immediately
vested in Grantee. Grantor and Grantee agree that this property interest is thirty percent (30%)
of the full fair market value of the Property (the “Proceeds Percentage”). Pursuant to Treasury
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Regulation §1.170A-14(g)(6)(ii), Grantor and Grantee further agree that this percentage shall
remain constant.
13. Termination of Easement. This Easement may only be terminated or extinguished by
judicial proceedings by a court of competent jurisdiction. The total loss of all the Conservation
Values on the Property is the only grounds under which this Easement can be terminated. If this
Easement is extinguished or terminated, whether in whole or in part, Grantee shall be paid
proceeds equal to the Proceeds Percentage multiplied by the fair market value of the Property.
Grantee’s use of the proceeds shall be in a manner consistent with its conservation purpose and
in compliance with Treas. Regs. § 1.170A-14(g)(6)(i).
14. Eminent Domain. Grantor shall notify Grantee immediately of any communication or
notice received concerning any proposed taking under the power of eminent domain by public,
corporate, quasi-governmental or other authority, or acquisition by such authority through
purchase in lieu of the exercise of eminent domain (“Condemnation”) affecting the Property,
and Grantee shall have the right to participate in any proceedings as a real property interest
holder. Grantee may pursue any remedies in law or equity, including opposition to the
Condemnation of the Property. If all or any part of the Property is taken by Condemnation,
Grantee shall receive proceeds directly from the authority for any such Condemnation equal to
the Proceeds Percentage multiplied by the total proceeds from such Condemnation.
15. Perpetual Duration. This Easement shall be a servitude running with the land in
perpetuity. Every provision of this Easement that applies to Grantor or Grantee shall also apply
to their respective agents, heirs, executors, administrators, assigns, and all other successors as
their interests may appear; provided, however, that either Party's rights and obligations under this
Easement shall terminate (as to such Party, but not as to such Party's successor, who shall be
bound as provided herein) upon a transfer of such Party's entire interest in this Easement or the
Property, except that liability of such transferring Party for acts or omissions occurring prior to
such transfer shall survive the transfer.
16. Change of Circumstance. Grantor has considered that acts or uses restricted or
prohibited by this Easement may become more economically valuable than the permitted uses
and acts. It is the intent of both Grantor and Grantee that such circumstances shall not justify the
termination or extinguishment of this Easement pursuant to Section 14. In addition, the inability
to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impair the
validity of this Easement or be considered grounds for its termination or extinguishment pursuant
to Section 14.
17. Grantor’s Notice. Where Grantor’s notice is required in this Easement, Grantor shall
notify Grantee in writing not less than thirty (30) calendar days prior to the date Grantor intends
to undertake the activity in question. The written notice shall describe the proposed activity in
sufficient detail (i.e. location, size, scope, design, nature) to allow Grantee to evaluate the
consistency of the proposed activity with the pertinent terms of this Easement.
18. Grantee’s Approval. Where Grantee’s approval is required in this Easement, Grantee
shall grant or withhold its approval in writing within thirty (30) calendar days of receipt of
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Grantor’s written notice thereof which must comply with Section 17. As part of its
determination, Grantee shall consider the proposed manner in which the proposed activity will be
conducted, whether it complies with the terms of this Easement, and the likely impact on the
Conservation Values. Grantee’s approval may be withheld only if Grantee reasonably
determines that there is a significant risk that the activity as proposed is not consistent with the
Purpose. Grantee may condition its approval on Grantor’s acceptance of modifications, which
Grantee reasonably determines makes the proposed activity consistent with the Purpose. Grantee
may request additional information from Grantor during the thirty (30) day period, and Grantee
shall then have an additional thirty (30) days from the receipt of such additional information to
approve or deny Grantor’s request in writing. If Grantee does not respond to Grantor's written
request within thirty (30) calendar days of receipt, the request shall be deemed denied, provided
however, that if after expiration of the 30-day period, Grantor submits a second written request,
and Grantee does not respond within thirty (30) calendar days of receipt of Grantor’s second
request, Grantor’s request shall be deemed approved. Grantor shall not engage in the proposed
act or use until Grantor receives Grantee’s approval in writing (or unless Grantee fails to respond
within thirty (30) calendar days after receipt of Grantor’s second request). If Grantor disagrees
with the decision of Grantee, Grantor may appeal the decision through the mediation process set
forth in Section 32.
19. Notices. Any notice, demand, request, consent, approval, or communication that either
Party is required to give to the other in writing shall be either (i) served personally, (ii) sent by
certified first class mail, postage prepaid, (iii) sent via overnight delivery service that provides
proof of delivery, or (iv) sent via any other delivery service mutually agreed to by the Parties in
writing, to the following addresses, which addresses may change from time to time by a Party
giving written notice in the manner set forth above:
Grantor: Town of Avon
One Lake Street
P.O. Box 975
Avon, CO 81620
Phone: 970-748-4000
Fax: 970-949-9139
Copy to: Eric J. Heil, Esq.
Heil Law & Planning, LLC
2696 S. Colorado Blvd. Ste. 550
Denver, CO 80222
Phone: 303-975-6120
Fax: 720-836-3337
Grantee: Eagle Valley Land Trust
P.O. Box 3016
Edwards, CO 81632
Phone: 970-748-7654
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Fax: 970-949-1357
Eagle County The Board of County Commissioners Eagle County
P.O. Box 850
Eagle, Colorado 81631
Phone: 970-328-8605
Fax: 970-328-8629
Copy to: Eagle County Attorney
P.O. Box 850
Eagle, Colorado 81631
Phone: 970-328-8685
Fax: 970-328-8699
20. Subsequent Liens on the Property. No provisions of this Easement shall be construed
as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing,
provided that any mortgage or lien arising from such a borrowing shall be subordinate to this
Easement.
21. No Merger. Unless the Parties expressly state that they intend a merger of estates or
interests to occur, then no merger shall be deemed to have occurred hereunder or under any
document executed in the future affecting this Easement.
22. Special Warranty. Grantor warrants title to the Property against all persons claiming
by, through or under Grantor, subject only to the exceptions to title set forth on Exhibit D
attached hereto and made a part of this Deed.
23. General Provisions.
a. Severability. If any provision of this Easement, or the application thereof to any person
or circumstance, is found to be invalid, the remainder of the provisions of this Easement,
or the application of such provision to persons or circumstances other than those as to
which it is found to be invalid, as the case may be, shall not be affected thereby.
b. Captions. The captions in this instrument have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
c. No Waiver or Estoppel. Forbearance by Grantee to exercise its rights under this
Easement in the event of a violation of any term shall not be deemed or construed to be a
waiver by Grantee of such term or of any subsequent violation of the same or any other
term of this Easement or of any of Grantee's rights under this Easement. No delay or
omission by Grantee in the exercise of any right or remedy upon any violation by Grantor
shall impair such right or remedy or be construed as a waiver. Grantor hereby waives
any defense of laches, estoppel, or prescription, including the one year statute of
limitations for commencing an action to enforce the terms of a building restriction or to
EXHIBIT E
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compel the removal of any building or improvement because of the violation of the same
under C.R.S. § 38-41-119, et seq.
d. Controlling Law. The interpretation and performance of this Easement shall be governed
by the laws of the State of Colorado.
e. Counterparts. The Parties may execute this instrument in two or more counterparts
which shall, in the aggregate, be signed by all Parties; each counterpart shall be deemed
an original instrument as against any Party who has signed it; all counterparts, when
taken together, shall constitute this instrument.
f. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Easement shall be liberally construed in favor of the grant to effect the Purpose of
this Easement and the policy and purpose of C.R.S. §38-30.5-101, et seq. If any provision
in this instrument is found to be ambiguous, an interpretation consistent with the Purpose
of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
g. Amendment. If circumstances arise under which an amendment to or modification of
this Deed would be appropriate, Grantor and Grantee are free to jointly amend this Deed;
provided that no amendment shall be allowed that will confer a private benefit to Grantor
or any other individual greater than the benefit to the general public (see Treas. Regs.
§1.170A-14(h)(3)(i)) or result in private inurement for a Board member, staff or contract
employee of Grantee (see Treas. Regs. §l.501(c)(3)-1(c)(2)), or affect the qualifications
of this Easement under any applicable laws. Any amendment shall be consistent with
Grantee's policies, must have a neutral or beneficial effect on the Property's Conservation
Values, as determined by Grantee in its sole discretion, must be consistent with the
Purpose, shall not affect the perpetual duration of the Easement, and shall be approved by
Town of Avon (if Grantor is not Town of Avon). Grantor shall pay any and all of
Grantee’s costs, including staff time and attorney fees, associated with any amendment
proposed by Grantor. Any amendment must be in writing, signed by both Parties, and
recorded in the official records of Eagle County, Colorado.
h. Entire Agreement. This instrument sets forth the entire agreement of the Parties with
respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
Joint Obligation. The obligations imposed upon the Grantor and Grantee of this
Easement shall be joint and several in the event that more than one entity or individual
holds either interest at any given time.
24. Development Rights. To fulfill the Purpose of this Easement, Grantor hereby conveys
to Grantee all development rights deriving from, based upon or attributable to the Property in any
way (“Grantee’s Development Rights”), except those expressly reserved by Grantor herein,
and the Parties agree that Grantee’s Development Rights shall be held by Grantee in perpetuity
in order to fulfill the Purpose of this Easement, and to ensure that such rights are forever
EXHIBIT E
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released, terminated and extinguished as to Grantor, and may not be used on or transferred off of
the Property to any other property or used for the purpose of calculating permissible lot yield of
the Property or any other property.
25. Recording. Grantee shall record this instrument in a timely fashion in the official records
of each county in which the Property is situated, and may re-record it at any time as may be
required to preserve its rights in this Easement.
26. No Third Party Beneficiaries or Enforcement. This Easement is entered into by and
between Grantor and Grantee, and is solely for the benefit of Grantor and Grantee and their
respective successors and assigns for the purposes set forth herein, and does not create rights or
responsibilities in any third parties beyond Grantor and Grantee.
27. Environmental Attributes. Grantor hereby reserves all Environmental Attributes
associated with the Property. “Environmental Attributes” shall mean any and all tax or other
credits, benefits, renewable energy certificates, emissions reductions, offsets, and allowances
(including but not limited to water, riparian, greenhouse gas, beneficial use, and renewable
energy), generated from or attributable to the conservation, preservation and management of the
Property in accordance with this Easement. Nothing in this Section 27 shall modify the
restrictions imposed by this Easement or otherwise impair the preservation and protection of the
Conservation Values.
28. Annual Appropriation. To the extent that any financial obligation of this Easement is
subject to the multiple fiscal year obligations as set forth in Article 10 of the Colorado
Constitution or C.R.S. §29-1-110, such obligation may be subject to annual appropriation by
Grantor. The foregoing is not an agreement or an acknowledgement by either Grantor or Grantee
that any financial obligation which could arise pursuant to this Easement would be subject to the
requirement that funds for such financial obligation must be appropriated by Grantor. Nothing in
this Easement shall be deemed to be a waiver of any rights that Grantee may have pursuant to
C.R.S. §30-25-104. Nothing in this Section 28 shall prevent Grantee from enforcing the
Easement in accordance with its terms, despite a failure by Grantor to appropriate funds.
29. Authority to Execute. Each Party represents to the other that such Party has full power
and authority to execute and deliver this Deed, and perform this Easement, that the individual
executing this Deed on behalf of said Party is fully empowered and authorized to do so, and that
this Easement constitutes a valid and legally binding obligation of said Party enforceable against
said Party in accordance with its terms.
30. Acts Beyond Grantor’s Control. Nothing contained in this Easement shall be construed
to entitle Grantee to bring any action against Grantor for any injury to or change in the Property
resulting from causes beyond Grantor’s control, including, without limitation, fire, flood, storm,
and earth movement, or from any prudent action taken by Grantor under emergency conditions
to prevent, abate, or mitigate significant injury to the Property resulting from such causes.
Notwithstanding the foregoing, the Grantor shall take reasonable efforts to prevent third parties
from performing, and shall not knowingly allow third parties to perform, any act on or affecting
the Property that is inconsistent with the Purpose of this Easement.
EXHIBIT E
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31. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Property, including weed control and eradication and including the maintenance of adequate
comprehensive general liability insurance coverage consistent with the limits set forth in the
Colorado Governmental Immunity Act. Grantor shall keep the Property free of any liens arising
out of any work performed for, materials furnished to, or obligations incurred by Grantor.
32. Mediation of Disputes Regarding Proposed Activities. If Grantor or Grantee cannot
resolve a dispute regarding an alleged violation of this Easement by Grantor pursuant to Section
9 of this Easement or Grantee denies a request by Grantor for approval pursuant to Section 18 of
this Easement, either Party may request mediation by submitting a written notice to the other
Party. Within ten (10) working days of the receipt of such request, the Parties shall select a
single, trained, and impartial mediator with experience in conservation easements and other land
preservation tools. Mediation shall then proceed in accordance with the following guidelines:
a. Purpose. The purpose of the mediation is to: (i) promote discussion between the Parties;
(ii) assist the Parties to develop and exchange pertinent information concerning the issues
in dispute; and (iii) assist the Parties to develop proposals which will enable them to
arrive at a mutually acceptable resolution of the controversy. The mediation is not
intended to result in any express or de facto modification or amendment of the terms,
conditions, or restrictions of this Easement.
b. Participation. The Parties agree that they will participate in the mediation process in
good faith and expeditiously, attending all sessions scheduled by the mediator.
Representatives of the Parties with settlement authority will attend mediation sessions as
required by the mediator.
c. Confidentiality. All information presented to the mediator shall be deemed confidential
and shall be disclosed by the mediator only with the consent of the Parties or their
respective counsel. The mediator shall not be subject to subpoena by any Party. No
statements made or documents prepared for mediation sessions shall be disclosed in any
subsequent proceedings or construed as an admission of a Party in accordance with
Colorado Rules of Evidence, Rule 408.
d. Time Period. Neither Party shall be obligated to continue the mediation process beyond
a period of sixty (60) calendar days from the date of receipt of the initial request or if the
mediator concludes that there is no reasonable likelihood that continuing mediation will
result in a mutually agreeable resolution of the dispute.
e. Costs of Mediation. Grantor shall pay all of Grantee’s expenses associated with the
mediation, including attorneys’ fees and consultant fees, except that Grantor and Grantee
shall share equally the costs of the mediator.
TO HAVE AND TO HOLD, this Deed of Conservation Easement unto Grantee, its
successors, and assigns forever.
EXHIBIT E
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IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have
set their hands on the date first written above.
GRANTOR:
THE TOWN OF AVON
Attest:___________________________ By:________________________
Patty McKenny, Town Clerk Rich Carroll, Mayor
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ___________________
2012, by Rich Carroll, Mayor of the Town of Avon.
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires:
EXHIBIT E
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GRANTEE:
EAGLE VALLEY LAND TRUST,
a Colorado nonprofit corporation
By: _________________________
Kara Heide, Executive Director
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ____________,
2013, by Kara Heide, as Executive Director of Eagle Valley Land Trust, a Colorado nonprofit
corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires:
EXHIBIT E
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EXHIBIT A
Legal Description of the Property
Lots 3 and 4, the S1/2 NW 1/4, and the SW 1/4 of Section 2, Township 5 South, Range 82 West
of the 6th Principal Meridian, County of Eagle, State of Colorado, according to the Dependent
Resurvey of said Township and Range, accepted September 7, 1977 by the United States
Department of the Interior, Bureau of Land Management.
Excepting Parcels No. 33 and No. 37 Project No. I-70-2(9) Wolcott-Dowd Junction dated July
11, 1973, Colorado Department of Highways.
And
Lot 1, the SE 1/4 NE 1/4, and NE 1/4 SE 1/4 of Section 3, Township 5 South, Range 82 West of
the 6th Principal Meridian, County of Eagle, State of Colorado, according to the Dependent
Resurvey of said Township and Range, accepted September 7, 1977 by the United States
Department of the Interior, Bureau of Land Management.
Excepting Parcel No. 31 Project No. I-70-2(9) Wolcott-Dowd Junction dated July 11, 1973,
Colorado Department of Highways.
And
The SE 1/4 SE 1/4 of Section 34, Township 4 South, Range 82 West of the 6th Principal
Meridian, County of Eagle, State of Colorado, according to the Survey of said Township and
Range, accepted December 28, 1882 by the Surveyor General of Colorado and according to the
Dependent Resurvey of said Township and Range, accepted September 7, 1977 by the United
States Department of the Interior Bureau of Land Management.
Containing approximately 469 acres more or less.
EXHIBIT E
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EXHIBIT B
Map of the Property
EXHIBIT E
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EXHIBIT C
Sample Notice of Transfer of Property
To: Eagle Valley Land Trust (“Grantee”)
From: [Insert name of fee owner] (“Grantor”)
Pursuant to Section 11 of the Deed of Conservation Easement recorded (date) under
reception number ___________, Grantee is hereby notified by Grantor of the transfer of the fee
simple interest in the subject Property legally described in Exhibit A attached hereto effective
[insert date of closing] to [insert name of new Grantor], who can be reached at [insert name,
legal address, phone and fax number]. Also pursuant to Section 11 of the aforementioned
Deed of Conservation Easement, a copy of the new ownership deed is attached.
GRANTOR:
By:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of
_____________, 20__, by as of ____________.
Witness my hand and official seal.
My commission expires:
Notary Public
Date:
EXHIBIT E
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EXHIBIT D
Exceptions to Title
1. Any water rights or claims or title to water in, on or under the land, whether of record or
not.
2. Notwithstanding the insuring clauses of the policy, the company does not insure against
loss or damage by reason of a lack of a right of access to and from the land.
3. Rights of the public in and to any roads upon subject property.
4.2.Any loss, damage, claim or interest due to the fact that the assessor's parcel #2105-022-
00-005, contains more property than the subject property herein.
5.3.Easements, conditions, covenants, restrictions, reservations and notes on the Annexation
Map #4 recorded November 13, 1981 in Book 331 at Page 978.
6.4.Terms, conditions, provisions, burdens and obligations as set forth in ordinanceOrdinance
#81-34, series of 1981 recorded November 13, 1981 in Book 331 at Page 981.
7.5.Terms, conditions, provisions, burdens and obligations as set forth in underground
facilities informationUnderground Facilities Information recorded July 01, 1985 in Book
418 at Page 708. (Affects sections 3 and 34)
8.6.Terms, conditions, provisions, burdens and obligations as set forth in Resolution #92-109
recorded October 21, 1992 in book 592 at page 55.
9. Terms, conditions, provisions, burdens and obligations as set forth in Exchange
Agreement recorded February 01, 2002 under Reception No. 784755.
10.7. Any tax, lien, fee, or assessment by reason of inclusion of subject property in the
Western Eagle County Metropolitan Recreation District, as evidenced by instrument
recorded March 04, 2004, under Reception No. 869897.
11.8. Terms, conditions, provisions, burdens and obligations as set forth in Resolution
#002 recorded January 03, 2012 under Reception No. 201200099.
12.9. Terms, reservations, conditions, provisions, burdens, obligations and easements as
set forth in United States Patent recorded ___________ under Reception No.
__________.
13. Failure to comply with the terms, covenants and conditions of the agreement referred to
in Schedule A.
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14.10. Holy Cross Right-of-Way Easement recorded ___________ under Reception No.
__________.
Holy Cross Right-of-Way Easement recorded ___________ under Reception No.
__________.
EXHIBIT E
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 1 of 10
West Avon Open Space
Management Plan
Landowner: Town of Avon
Conservation Easement Holder: Eagle Valley Land Trust
Dated: December 2012
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 2 of 10
OVERVIEW:
Wildlife, open space, and habitat are significant factors in the quality of life enjoyed by
residents of the Town of Avon (“Town”) and Eagle County (“County”). The presence of
various species of wildlife and their associated habitats provides numerous biological, economic
and recreational benefits to our community.
The West Avon Parcel (“Property”) possesses significant ecological, habitat and open space
values. The Property qualifies as open space because it will be preserved for the scenic
enjoyment of the general public and will be accessible to the public for passive recreation and
educational purposes, which will yield a significant public benefit.
PURPOSE:
The Town acquired the Property as part of a United State Forest Service multi-party land
exchange initiated by the White River National Forest - Eagle/Holy Cross Ranger District
(“Land Exchange”). The goal of the Land Exchange was to protect the conservation values of
the land and to provide public recreational access to the Property. The conservation values of the
Property are more fully defined in the conservation easement and baseline report and include
open space, outdoor recreation, buffering and natural separation between communities, education
opportunities for the public and relatively natural habitat. In an effort to ensure that the land will
be protected in perpetuity, the Town granted a conservation easement (“Conservation
Easement”) to the Eagle Valley Land Trust (“EVLT”).
This Land Management Plan (“Plan”) provides for the present and future management of the
Property. Capitalized terms used in this Plan, not defined herein, shall have the meaning set
forth in the Conservation Easement. To the extent the provisions of this Plan conflict with the
provisions of the Conservation Easement, the Conservation Easement shall control.
BACKGROUND:
The Property consists of approximately 478 acres located in the Town contiguous to the
Wildridge Subdivision and Singletree Community. The Property was part of the Land Exchange
involving Eagle County, the Colorado State Land Board, the Upper Eagle Regional Water
Authority and the White River National Forest - Eagle/Holy Cross Ranger District of the United
States National Forest Service. Acquisition of the Property was completed on _____, 2013 with
initial funding from the Eagle County General Fund and Town General Fund.
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 3 of 10
MANAGEMENT MISSION STATEMENT:
To manage the Property for the purpose of preserving and protecting the conservation values
while providing compatible outdoor recreation opportunities, including trails for hiking,
mountain biking, and horseback riding, all in accordance with the Conservation Easement and
this Plan.
USE AND MANAGEMENT:
Trails: Recreational trails are a primary public benefit of the Property. The Property will be a
significant “destination open space” for Town and County residents, but Town residents will
constitute the majority of users. These users will include, but will not be limited to, hikers,
runners, dog-walkers, mountain bikers, and equestrians.
Currently there is a mix of informal social trails, recently improved multi-use single-track,
and relic access roads used for access to construct power line infrastructure. The network has
developed over the past couple of decades with little formal planning, and non-maintained trails
have resulted in erosion issues. The 2007 USDA Decision Memo for Singletree and West Avon
Recreation Trails may be used as a source document in evaluating any future trail uses.
Improvements needed include erosion control work such as water bars, or grade dips to
sufficiently protect the integrity of the trails. Realignments will be necessary is some locations
due to the steepness of topography. The Beaver Creek Lookout Trail may be improved with a
crusher-fine or paved path to the trail terminus in order to provide American with Disabilities
Act (“ADA”) access. In most cases, trail width should not exceed 36 inches and should remain
natural with the exception of ADA compliance for any trail identified for ADA access.
Trail improvement and maintenance work will generally rely on use of hand tools and
perhaps small machines, such as a 48 inch wide mini-excavator or Trail Dozer. Heavy
equipment should be avoided for trail maintenance due to the inherent impacts to the habitat and
vegetation. Where heavy equipment is necessary for trail maintenance, construction or
reconstruction by the Town, the Town or its representatives shall ensure that any damage to the
Property created by the heavy equipment shall be restored as near as is practical to the original
condition.
No motorized use of the trails will be allowed unless it specifically involves the Town or
contractors conducting approved management of the Property, such as fence repair, weed
control, or trail maintenance. In addition, as set forth in the Conservation Easement some third
parties may have the right to access the Property under existing easements or applicable law.
The width and surface of the trails is set forth in the Conservation Easement. At this time the
Town does not plan to build any new trails. Prior to the Town’s construction of any new trails,
Town and EVLT will amend this Plan.
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 4 of 10
The Town will consult with County via a separate agreement to cooperatively and mutually
determine whether additional maintenance, if any, is necessary or desired, for the upkeep of the
trails and/or the Property.
Building Envelopes: The location of the two (2), two (2) acre building envelopes permitted in
the Conservation Easement shall be agreed upon mutually by the Town and EVLT and
documented in an amendment to this Plan (each, a “Building Envelope”).
Trailheads: The trailheads will be located in the following locations: (1) Nottingham Road cul-
de-sac adjacent to Interstate 70; (2) West side of Beaver Creek Point Road accessed from Block
1 of the Wildridge Subdivision; (3) O’Neal Spur Pocket Park in Block 2 of the Wildridge
Subdivision; and (4) Lot 1, Block 2, Berry Creek Ranch Subdivision (aka Singletree Access).
Advanced notice of intent to pave trailhead parking lots will be provided to EVLT.
1. Nottingham Road. The trailhead is located on Town right-of-way on the south side of
the Nottingham Road cul-de-sac, approximately 750 feet west of the intersection with
Metcalf Road. This access point will be improved to prevent or mitigate future debris
flow issues that stem from hillside to the north. Signage will be installed describing the
“non-motorized” status of the trail. If necessary, post and rail fence will be installed to
prevent mechanized vehicles from accessing the Property. Signage and trash receptacles
will be provided.
2. Beaver Creek Point. This trailhead will be accessed from the west side of Beaver Creek
Point Road, at the midway point in the road. It will accommodate 3 to 5 cars and will be
surfaced with asphalt or other approved material by the Town Engineer. Prior to the
construction of the parking lot, the Town and EVLT will amend this Plan to establish the
location of a Building Envelope within which the parking lot and other permitted
structures may be located. A split rail fence will likely define the area to avoid motorized
access. Signage and trash receptacles will be provided.
3. O’Neal Spur Pocket Park. A trailhead can be established from the existing O’Neal
Spur Pocket Park at the intersection of Old Trail and O’Neal Spur roads in Wildridge.
There are existing on street parking spaces and park facilities. This trailhead will be
utilized only in the event a path is constructed to connect Wildridge with Nottingham
Road.
4. Singletree Access. In 2003, the Berry Creek Metropolitan district purchased this
property in order to provide access to the planned trail network. This access point is
located at 701 June Creek Drive on the eastern edge of the Singletree Community in
Eagle County. Split rail fence was installed to prevent mechanized vehicles from
accessing the Property. Signage was also installed to notify trail users of its “non-
motorized” status.
Parking: Two additional formal parking areas are envisioned for the Property. There will be 3-5
parallel parking spaces added near the cul-de-sac on Nottingham Road immediately adjacent to
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 5 of 10
the trailhead. Additionally, a 3-5 car parking area will be installed on Beaver Creek Point. Prior
to the construction of any parking lot, the Town and EVLT will amend this Plan to establish the
location of one or more Building Envelopes within which a parking lot and other permitted
structures may be located.
Trashcans: Wildlife-proof containers will be installed on the Property at the Beaver Creek
Point parking area and the Nottingham Road trailhead. The receptacles will be emptied by Town
Staff. Additional wildlife-proof receptacles will be added as necessary based upon use and needs
identified on the Property.
Dog Bag Dispensers: It is anticipated that many users will visit the Property with dogs. Dog
waste bag dispensers will be located at each trailhead maintained by the Town.
Picnic Tables: The Town may place picnic tables on the Property at the terminus of the Beaver
Creek Point Lookout Trail. They will be situated in a manner that does not negatively impact the
scenic qualities of the Property.
Structures: There are no standing structures currently existing on the Property, and there are no
plans for any above-grade structures. Prior to constructing any structures permitted by the
Conservation Easement, but which are not specifically addressed in this Plan, the Town and
EVLT shall amend this Plan.
Fences: The Property is bounded by game fencing along the Interstate-70 Right-of-way on the
South, barb-wire fence delineating some of the boundaries, and limited split rail fencing near
existing access points and along Beaver Creek Point Road. If deemed necessary by the Town for
management purposes, new fences and gates may be constructed. The Town will insure that the
fences meet standards established by the Colorado Division of Wildlife designed to reduce
wildlife entanglement risk. In all cases the fencing will be split rail design. Fencing will be
installed to help delineate the Beaver Creek Point Parking Area.
Access: Users will access the Property from one of the four identified trailheads. No parking is
allowed on adjacent residential streets including but not limited to: Saddleridge Loop, Beaver
Creek Point (except as may be permitted by the Town), or June Creek Trail. EVLT shall have no
obligation to enforce these requirements.
Restroom Facilities: No current plans for restroom facilities exist. The Town will monitor use
and the condition of the trailhead areas to determine if a restroom facility is needed. The
location of the restroom(s) would be adjacent to the trailhead area(s) within Building
Envelope(s). Prior to the construction of any restroom facilities, the Town and EVLT shall
amend this Plan.
Utility Improvements: There are third party easements affecting the Property. The terms of
those third party easements shall control. No new utility improvements are contemplated at this
time. Future utility improvements may be required. Prior to the installation of any new utilities,
the Town and EVLT shall amend this Plan.
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 6 of 10
Agriculture: The Town has no plans to use the Property for agricultural uses. In the event
agricultural use is implemented, stewardship and managements methods that preserve the natural
resources will be utilized.
Noxious Weeds: The Property is generally free of noxious weeds given its arid nature. The
Town will manage the Property to control noxious weeds to the extent reasonably possible. The
Town trained staff, or third-party licensed commercial applicator will complete any potential
spraying operations. Town Staff will monitor the Property to ensure that weed control efforts are
successful and that new populations do not become established. Specific focus will be given to
detecting Colorado “A list” noxious weed species. “A List” species are plants that are newly
introduced to Colorado and represent a serious threat to ecological integrity and native
biodiversity. For these plants the management goal is total eradication. Under Colorado Law,
“B List” species must be controlled.
Wildlife Management: Wildlife habitat protection is a primary goal. Critical wildlife habitat
was identified by the Colorado Division of Wildlife. The Property is within the MA5.41 deer
and elk winter range area. Between December 15th and April 15th the Avon/Singletree trail will
be closed to all uses. The Beaver Creek Lookout and Saddleridge Trails will be open year
around. Dogs will be required to be on leash between December 15th and April 15th. If
compliance with the leash regulation during the winter is not successful, then management
options, such as closing the area completely during this period, will be considered. EVLT shall
have no obligation to enforce the provisions included within this paragraph.
Natural Habitat Management: At this time, the Town has no plans to conduct any natural
habitat management. Prior to implementing any plan to conduct natural habitat management, the
Town and EVLT shall amend this Plan.
Signage: Signage will include regulatory, educational, and directional signs, mainly in the
trailhead locations, with limited signage at trail intersections. The Town will develop an
effective trail signage system that is tasteful, unobtrusive to the natural landscape, and consistent
with size limitations stipulated in the Conservation Easement. The goal is to provide a
comprehensive coordinated sign program. Regulatory signs will essentially focus on rules for
using the Property. Directional signs with trail maps may be located on the Property at trail
intersections and key way-finding points. Educational signs may be concentrated at the
trailhead, with limited signs along the trails at unique vantage points (i.e. Beaver Creek lookout
terminus).
Educational Programming: Educational activities on the Property are encouraged. These
activities may take many forms including guided hikes, school programs, trail maintenance
workshops, and special events such as Earth Day celebrations.
Encroachments: The general public is not permitted to place or store personal items on the
Property. Encroachments involving personal items often include lawn furniture, yard tools and
equipment, grass clippings, yard waste, sports equipment, firewood, toys, targets, tents, forts, and
trash. The Town will notify offenders that the activity is not permitted and will outline what is
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 7 of 10
expected of them to correct the situation. In the case the offenders are not identified, the Town
will mitigate the encroachment.
Allowable Uses: The Town and EVLT agree that the following uses may occur on the Property:
• Hiking
• Mountain biking
• Equestrian
• Jogging/running
• Dog walking
The following uses may be allowed on the Property so long as they do not create new
unauthorized trails or adversely impact the conservation values of the Property:
• Picnicking
• Photography
• Wildlife viewing/Bird watching
• Snowshoeing
• Cross-country skiing
• Orienteering
• Frisbee, but no construction of Frisbee Golf Course
• Kite-flying
• Other uses not inconsistent with Town regulations for open space or with the
conservation values of the Property
Special Uses: The Town anticipates that certain special uses will be requested by the public,
which are too numerous and wide-ranging to list in this Plan. Each request will be evaluated by
Town Staff to determine if it will have detrimental impacts to the conservation values of the
Property in which case such special event shall not be approved by the Town. Specific
considerations will include:
• Duration of event.
• Specific location within the Property.
• Potential impacts to vegetation and wildlife.
• Potential impacts to adjacent landowners.
• Consistency with vision of open space purpose to provide passive recreational access.
• The extent to which the proposed use interferes with, compromises or diminishes the
ability for others to use and enjoy the Property.
• Will the use result in increased management costs for Town.
• Overall scope and scale of impacts to the Property, adjacent properties, and conservation
values.
The Town agrees to provide EVLT with a copy of any request for a special use on the
Property. EVLT will immediately notify the Town Staff if EVLT believes the proposed event
will be undertaken in a manner than will have a detrimental impact to the conservation values. If
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 8 of 10
such notice is given by EVLT, the Town agrees to either deny approval of the event, or to require
conditions to the approval of the special event to ensure that the event is undertaken in a manner
that does not have a detrimental impact to the conservation values.
Property Damage: In the event that property damage occurs, restoration shall occur as set forth
in the Conservation Easement. Disturbances caused by existing third party easement holders (as
that term is defined in the Conservation Easement) shall be governed by the easements or
statutory or common law rights and obligations.
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 9 of 10
RULES AND REGULATIONS
Hours Open: Public access to the Property shall be permitted during the period that is one hour
before sunrise to one hour after sunset each day. All portions of the Property may be closed
seasonally or as determined by the Town for maintenance or to address wildlife or other matters
affecting the Property. In the event of such closure, the same shall be posted on the Property and
no additional notice to EVLT shall be required.
Town has established rules and regulations for all open space properties that will be owned
and managed by the Town. Town reserves the right to amend and enact such rules and
regulations as deemed appropriate by the Town in the exercise of its police powers for the
preservation of the health, safety and general welfare of the Avon community. EVLT shall have
no obligation to enforce any rules and regulations adopted by the Town, including those listed
below.
The following rules apply:
• No fires or fireworks
• No hunting on the Property and no hunting access to the Property
• No discharge of weapons
• No motorized recreation
• No off-trail use that would lead to creation of new trails
• No littering
• No picking of plants
• No collection of artifacts
• No commercial activity
• No removal or collection of plants, animals, fungi, or rocks
• No hang-gliding
• No loud music
• No camping
• No overnight parking in trailhead parking areas
Additional rules and regulations may be identified and developed after the Property is
formally made available to the public.
EXHIBIT F
Management Plan – West Avon Parcel
Dec. 17, 2012 FINAL
Page 10 of 10
CONSERVATION EASEMENT MONITORING
EVLT will hold a Conservation Easement on the Property. This will necessitate annual
monitoring. EVLT Staff shall notify Town Staff in advance of any annual monitoring effort so
that Town Staff may accompany EVLT Staff during the monitoring. Town and EVLT will
maintain a file of annual easement monitoring reports and work cooperatively to address any
concerns associated with use and management of the Property.
APPROVED AND ADOPTED THIS ___ day of ____________, 2013.
Town of Avon, Colorado Eagle Valley Land Trust
By: _____________________ By: _______________________
EXHIBIT F
Eagle County – Town of Avon 2012 IGA Village Parcel Conservation Easement
Page 1 of 5
Dec 17, 2012
INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE COUNTY OF EAGLE AND
THE TOWN OF AVON
This Intergovernmental Agreement (“Agreement”) is made this ______ day of
__________________, 2013, by and between the County of Eagle, State of Colorado, a body
corporate and politic (“County”) and the Town of Avon, a Colorado home rule municipal
corporation (“Town”), (individually referred to as “Party” and collectively as “Parties”).
WITNESSETH
WHEREAS, the White River National Forest - Eagle/Holy Cross Ranger District initiated a
multi-party land exchange involving Eagle County, the Colorado State Board of Land
Commissioners, the Upper Eagle Regional Water Authority, and the United States Forest Service
(“Land Exchange”);
WHEREAS, the Town has acquired two parcels of land from the United States government
as a result of the Land Exchange, dated ___________, by and among the State of Colorado State
Board of Land Commissioners, the Upper Eagle River Water Authority, Eagle County, and the
United States of America Forest Service, which parcels are described as: the West Avon Parcel
containing approximately 478.09 acres and located within the Town of Avon; and, the Village
Parcel, containing approximately 85.99 acres and located within in Eagle County;
WHEREAS, the Village Parcel is bounded on three sides by the Village (at Avon) PUD
project area and the Village Parcel is situated such that road and trail access across the Village
Parcel may be the best alignment for connection to the lower and eastern most portions of the
Village (at Avon) PUD project area;
WHEREAS, the Town adopted Resolution No. 11-12 A RESOLUTION REPEALING
RESOLUTION 11-09 AND APPROVING A NEW RESOLUTION BY THE AVON TOWN
COUNCIL SUPPORTING A MULTI-PARTY LAND EXCHANGE LOCATED IN THE
WHITE RIVER FOREST IN EAGLE COUNTY AND RECOMMENDING EXCEPTIONS TO
THE CONSERVATION EASEMENTS ON THE WEST AVON PARCEL AND THE
VILLAGE PARCEL which stated the policy to reserve from any conservation easement
recreational trails, approximately 6 acres of land for affordable housing and community facilities
on the Village Parcel, and a potential future easement or easements for a road and trail
connecting Planning Area RMF-1 to Planning Area M (as defined in the 1998 Village (at Avon)
PUD map) on the Village Parcel;
WHEREAS, the Town is not able to determine the specific alignment and location of such
uses to be reserved from a conservation easement at this time but Town desires to make a
commitment to the County that a conservation easement will be granted for the Village Parcel in
the future and further desires to cooperate effectively with the County to promote the efficient
EXHIBIT G
Eagle County – Town of Avon 2012 IGA Village Parcel Conservation Easement
Page 2 of 5
Dec 17, 2012
achievement of important community goals for Eagle County residents, including but not limited
to residents of the Town of Avon; and,
WHEREAS, this Intergovernmental Agreement is authorized pursuant to §29-1-201 and
§30-11-101, Colorado Revised Statutes, as amended; Article XIV, Section 18, of the Colorado
Constitution; and Section 16.2 of the Avon Home Rule Charter.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises contained herein, the Parties agree as follows:
1. Future Conservation Easement. The Town agrees that Town will grant to Eagle Valley
Land Trust, or other appropriate organization mutually acceptable to Town and County, a
conservation easement (“Future Conservation Easement”) on the portion of the Village
Parcel remaining after the determination of the location and alignment of roadways and trails
and after determining the boundaries of a reserved area for affordable housing and
community facilities. The Future Conservation Easement shall restrict and protect the
remaining portion of the Village Parcel as open space in its natural state, shall allow passive
recreation activities, and shall generally include such other terms as are included in the
conservation easement on the West Avon Parcel or shall include such terms as Town and
County mutually agree. The Town agrees that the area for affordable housing and
community facilities shall be no greater than 6.5 acres without approval by the County and
that the location shall be generally on the northwest corner of the Village Parcel as depicted
in Resolution No. 11-12 of the Town of Avon, attached hereto as Exhibit “A” and
incorporated herein.
2. Cooperation on Affordable Housing. Town agrees to actively explore cooperative or
partnership efforts with County to promote cost effective, energy efficient, environmentally
and architecturally appropriate, affordable housing projects on the portion of the Village
Parcel reserved for such purpose.
3. Future Maintenance Agreement. Simultaneously with the conveyance of the Future
Conservation Easement, Town and County agree to enter into a maintenance agreement to set
forth the Town’s obligations with respect to the use and maintenance of the Village Parcel
(the “Future Maintenance Agreement”). The Future Maintenance Agreement will provide
for inspections of trail conditions, fencing, if any, status and condition of signage and other
improvements, and a review of maintenance levels. The Town and County shall
cooperatively and mutually determine what additional maintenance, if any, may be necessary
or desired, for the Village Parcel. The Town and County may update or revise the Future
Maintenance Agreement as may be mutually determined.
4. Costs. Town shall be responsible for and shall bear all costs and liabilities of any kind
related to the ownership, operation, upkeep, and maintenance of the Village Parcel, and any
improvements or trails thereon. All maintenance obligations of the Town under this
EXHIBIT G
Eagle County – Town of Avon 2012 IGA Village Parcel Conservation Easement
Page 3 of 5
Dec 17, 2012
Agreement are subject to funds being budgeted and appropriated. Eagle County shall not be
responsible for any such costs or liabilities associated with the Village Parcel.
5. Term. This Agreement is effective from this day forward, until the earlier of (a) the date
which the Town grants a conservation easement on the Village Parcel in accordance with the
terms in this Agreement or (b) December 31, 2037.
6. Notices. All notices, requests, consents, approvals, written instructions, reports or other
communication by the Town and the County, under this Agreement, shall be in writing and
shall be deemed to have given or served, if delivered or if mailed by certified mail, postage
prepaid or hand delivered to the Parties as follows:
Town of Avon:
Town of Avon
One Lake Street
PO Box 975
Avon, CO 81620
Attn: Town Manager
County of Eagle:
Eagle County Attorney
P.O. Box 850
Eagle, CO 81631
Either Party may change the address to which notices, requests, consents, approvals,
written instructions, reports or other communications are to be given by a notice of change of
address given in the manner set forth in this section.
7. Third Party Beneficiary. This Agreement does not and shall not be deemed to confer upon
or grant to any third party any right to claim damages or to bring any lawsuit, action or other
proceedings against either the Town or the County because of any breach hereof or because
of any terms, covenants, agreements or conditions contained herein.
8. Amendments. No modification or waiver of this Agreement or of any covenant, condition,
or provision herein contained shall be valid unless in writing and duly executed by the Party
to be charged therewith.
9. Entire Agreement. This written Agreement embodies the whole agreement between the
Parties hereto and there are no inducements, promises, terms, conditions, or obligations made
or entered into either by the County or the Town other than those contained herein.
10. Assignment. This Agreement shall be binding upon the respective Parties hereto, their
successors or assigns and may not be assigned by anyone without the prior written consent of
the other respective Party hereto. Such approval shall not be unreasonably withheld, but any
unapproved assignment is void.
EXHIBIT G
Eagle County – Town of Avon 2012 IGA Village Parcel Conservation Easement
Page 4 of 5
Dec 17, 2012
11. Severability. All agreements and covenants herein are severable, and in the event that any
of them shall be held invalid by a court of competent jurisdiction, this Agreement shall be
interpreted as if such invalid agreement or covenant were not contained herein.
12. Authority. The Town has represented to the County and, likewise, the County has
represented to the Town, that each possesses the legal ability to enter into this Agreement. In
the event that a court of competent jurisdiction determines that either of the Parties hereto did
not possess the legal ability to enter into this Agreement, this Agreement shall be considered
null and void as of the date of such Court determination.
13. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. The Parties agree that venue for any dispute regarding this
Agreement shall be proper in Eagle County, Colorado.
[Signature Page Follows]
EXHIBIT G
Eagle County – Town of Avon 2012 IGA Village Parcel Conservation Easement
Page 5 of 5
Dec 17, 2012
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and
year first above written.
COUNTY OF EAGLE, STATE OF
COLORADO, by and through its
ATTEST: BOARD OF COUNTY COMMISSIONERS
By:__________________________ By:__________________________________
Clerk to the Board of Jon Stavney, Chairman
County Commissioners
ATTEST: TOWN OF AVON
By:___________________________ By:__________________________________
Patty McKenny, Town Clerk Rich Carroll, Mayor
EXHIBIT G
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 1 of 6
Dec 17, 2012 ejh rev
INTERGOVERNMENTAL AGREEMENT
BETWEEN THE COUNTY OF EAGLE,
THE TOWN OF AVON,
AND
BERRY CREEK METROPOLITAN DISTRICT
REGARDING MAINTENANCE OF
WEST AVON PROPERTY AND RELATED TRAILS
This Intergovernmental Agreement dated this ___ day of ___________, 2013
(“Agreement”) is entered into by and between the County of Eagle, Colorado, a body corporate
and politic, by and through its Board of County Commissioners (“County”), The Town of Avon,
a home rule municipality, by and through its Town Council (“Town”), and Berry Creek
Metropolitan District, a quasi-municipal corporation by and through its Board of Directors
(“District”) (individually referred to as “Party” and collectively as “Parties”).
RECITALS
WHEREAS, as part of a multi-party land exchange between the State of Colorado, acting
through its State Board of Land Commissioners, the Upper Eagle Regional Water Authority,
acting through its Board of Directors, the County of Eagle, acting through its Board of
Commissioners, and the United States of America (“Land Exchange”), the Town has accepted
title to approximately 478.09 acres of land in the Town of Avon, Eagle County, Colorado more
particularly described as Township 4 South, Range 82 West, Township 5 South, Range 82 West,
County of Eagle, State of Colorado (“West Avon Property”);
WHEREAS, the West Avon Property is or will be permanently conserved as open space
through a Deed of Conservation Easement (defined in Paragraph 1 below) between the Town and
Eagle Valley Land Trust (“EVLT”);
WHEREAS, as part of the community effort associated with the Land Exchange and the
conveyance of the West Avon Property to the Town, the Parties have agreed to enter into this
Agreement to set forth the Parties’ respective obligations with respect to the use and maintenance
of the West Avon Property; and
WHEREAS, this Intergovernmental Agreement is authorized pursuant to §29-1-201 and
§30-11-101, Colorado Revised Statutes, as amended; Article XIV, Section 18, of the Colorado
Constitution; and the Avon Home Rule Charter.
EXHIBIT H
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 2 of 6
Dec 17, 2012 ejh rev
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, including the promises set forth
herein, the Parties agree as follows:
1. Maintenance. The Parties agree that maintenance for the West Avon Property shall be
performed consistent with the terms of the Deed of Conservation Easement dated ____, 2012
(“Conservation Easement”), and the Management Plan for the West Avon Property dated
December 2012 (“Management Plan”):
a. Town shall perform or cause to be performed:
i. Weed control and spraying, as needed;
ii. Trail maintenance, as needed;
iii. Trash pickup from a trash container installed by Town, to be located at Beaver Creek
Point trailhead;
iv. Stock dog bags, as needed;
v. Inspection and monitoring of parking area and trailhead;
vi. Snow removal in parking area, as needed; and
vii. Inspections of the West Avon Property which may include an inspection of trail
conditions, fencing, if any, status and condition of signage and other improvements,
and a review of maintenance levels. Town will provide District and County with
advance notice of the date of the inspections so that District and County project
managers may also attend.
b. Following the inspections of the West Avon Property, the Parties shall cooperatively and
mutually determine what additional maintenance, if any, may be necessary or desired, for
the Property.
2. Costs. Town shall be responsible for and shall bear all costs and liabilities of any kind related
to the ownership, operation, upkeep, and maintenance of the West Avon Property and any
improvements or trails thereon. All maintenance obligations of the Town under this Agreement
are subject to funds being budgeted and appropriated. Eagle County shall not be responsible for
any such costs or liabilities associated with the West Avon Property.
3. Signage for the West Avon Property. The Parties shall mutually agree on the location of
and verbiage for signage on the West Avon Property consistent with the terms of the
Conservation Easement and Management Plan for the West Avon Property.
EXHIBIT H
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 3 of 6
Dec 17, 2012 ejh rev
4. Trailhead on West Avon Property. In the event that Town identifies any nuisance or
improper use of the parking area and/or trailhead during its inspections, the Town’s project
manager (see paragraph 7 below) shall notify District’s and County’s project manager (see
paragraph 7 below) in an effort to develop a cooperative solution which may include, by way of
example only, installation of additional signage, additional monitoring or enforcement of rules.
5. Term. The initial term of this Agreement shall be for a one-year term commencing upon
execution by the Parties. This Agreement shall automatically renew for additional one (1) year
terms commencing January 1 of each consecutive year unless earlier terminated as set forth
herein.
6. TABOR. Town, County and District are governmental entities and all obligations beyond the
current fiscal year are subject to funds being budgeted and appropriated. Notwithstanding
anything to the contrary contained in this Agreement, no payment shall be made for any
maintenance services provided after December 31 of any year without prior approval of a budget
adopted in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised
Statutes and Local Government Budget Law (C.R.S. §29-1-101 et. seq.).
7. Project Managers. The Parties acknowledge that on-going coordination and communication
will be required. As a result, each Party shall have designated a project manager to coordinate
performance and communication under this Agreement. The Town’s project manager shall be
Virginia Egger, Town Manager, or her designee, the County’s project manager shall be Toby
Sprunk, Eagle County Open Space Director, and the District’s project manager shall be its
Executive Director. Any and all correspondence between the Parties regarding this Agreement
shall be between and among the project managers. Any Party may designate a different project
manager by notice in writing to the other Parties.
8. Disputes. In the event of a dispute or failure to perform as set forth herein, then the project
managers identified in paragraph 7 shall first work together to find a solution or resolve the
dispute. If the dispute or failure to perform remains on-going for more than thirty (30) days, then
any Party may give a formal notice of default to the defaulting Party. The defaulting Party will
take steps to correct the default or breach within thirty (30) days or such longer time as it may
reasonably take to correct the breach or default after notice of default is received. In the event
the default is not timely corrected as set forth herein, then the non-defaulting Party or Parties
may pursue any legal remedies available to it and terminate this Agreement.
9. Termination. Any Party may terminate this Agreement without cause upon one hundred
twenty (120) days advance notice to the other Parties.
10. Notice. Any notice and all written communications required under this Agreement shall be
given in writing by personal delivery, fax or U.S. mail to the appropriate Party at the following
addresses:
Town: Town of Avon
One Lake Street
EXHIBIT H
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 4 of 6
Dec 17, 2012 ejh rev
PO Box 975
Avon, CO 81620
Attn: Town Manager
Telephone: (970) 748-4000
Facsimile: (970) 949-9139
With a copy to: Eric J. Heil, Esq.
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, CO 80222
Telephone: (303) 975-6120
Facsimile: (720) 836-3337
District: Berry Creek Metropolitan District
c/o Robertson & Marchetti, P.C.
28 Second Street, Suite 213
Edwards, CO 81631
Telephone: (970) 926-6060
Facsimile: (970) 926-6040
With a copy to: James P. Collins, Esq.
Collins Cockrel & Cole
390 Union Boulevard, Suite 400
Denver, CO 80228-1556
Telephone: (303) 986-1551
Facsimile: (303) 986-1755
County: Toby Sprunk, Director of Open Space
Eagle County
Post Office Box 850
500 Broadway
Eagle, CO 81631
Telephone: (970) 328-8698
Facsimile: (970) 328-7185
With a copy to: Eagle County Attorney’s Office
Post Office Box 850
500 Broadway
Eagle, CO 81631
Telephone: (970) 328-8685
Facsimile: (970) 328-8699
Notices shall be deemed given on the date of delivery if delivered in person or by a service
like Federal Express or United Parcel Service, or three (3) days after the date of deposit, first
class postage prepaid, in an official depository of the U.S. Postal Service. When sent via
EXHIBIT H
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 5 of 6
Dec 17, 2012 ejh rev
facsimile so long as the sending Party can provide a facsimile machine or other confirmation
showing the date, time and receiving facsimile number for the transmission.
11. Assignment. The rights and obligations of the Parties to this Agreement may be assigned
with consent of the Parties, which shall not be unreasonably withheld. Any assignment made
without consent of the Parties is void.
12. Insurance. At all times during the term of the Agreement all Parties shall maintain
insurance consistent with the limits established by the Colorado Governmental Immunity Act.
13. Entire Understanding. This Agreement embodies the entire understanding and agreement
of the Parties, and there are no further or other agreements or understandings, written or oral, in
effect between them relating to the subject matter hereof.
14. Amendments. This Agreement may not be amended except by a written document
executed by the Parties hereto.
15. Independent Contractor. It is expressly acknowledged and understood by the Parties
hereto that nothing contained in this Agreement shall result in, or be construed as establishing an
employment relationship between the Parties.
16. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. The Parties agree that venue in any action to enforce or
interpret this Agreement shall be in the Eagle County District Court.
17. No Third Party Rights. This Agreement does not and shall not be deemed to confer upon
or grant to any third party any right enforceable at law or equity arising out of any term,
covenant or condition herein or a breach thereof.
[Signature Page Follows]
EXHIBIT H
Eagle County, Town of Avon, Berry Creek Metro District IGA Maintenance West Avon Parcel
Page 6 of 6
Dec 17, 2012 ejh rev
IN WITNESS WHEREOF, the Parties have hereunto set their hands, by their duly authorized
representatives.
TOWN OF AVON
ATTEST: By and through its Town Council
By:__________________________ By: _____________________________
Patty McKenny, Town Clerk Rich Carroll, Mayor
ATTEST: EAGLE COUNTY, COLORADO
By and through its Board of County Commissioners
By:__________________________ By: _____________________________________
Clerk to the Board of Jon Stavney, Chairman
County Commissioners
BERRY CREEK METROPOLITAN DISTRICT
By:__________________________________
Its: __________________________________
EXHIBIT H
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This map was produced by the Community Development Department. Use of this map should be for general purposes only. Town of Avon does not warrant the accuracy of the data contained herein.
Author: JKoenig 07/13/11Aerial: NAIP, October 2009
Forest Service Village Parcel - Roads
Eagle River
Less than 40% Slope
6.5AC Community Facility Area
Avon Town Boundary
Property Boundaries
Lakes and Rivers 0 200100 Feet
6.5AC PotentialAffordable Housing/Community Facilities Area
Council Resolution No. 11-12, Series 2011
Exceptions to the Conservation Easement
EXHIBIT C
70
70
6
The Forest Service Village Parcel shall contain a reservation for a potential future easement or easements for a road and trail connecting Planning Area RMF-1 to Planning Area M, Village (at Avon),Avon, Colorado, provided that any such road and/or trail easement shall be subject to future review and approval by the Avon Town Council and Avon Planning and Zoning Commission as appropriate and shall require (1) amendments to the Avon Comprehensive Plan, including Avon’s 3-Mile Plan, Major Streets Plan and Transportation Plan, (2) an amendment to the Village (at Avon) PUD Plan, (3) an application for road construction in accordance with the procedures and standards of the Avon Development Code and Avon Municipal Code, and (4) consideration of equitable compensation to the Town of Avon regarding the Town of Avon’s financial expenditure to acquire the Forest Service Village Parcel.
ATTACHMENT 3
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com e-mail: ericheillaw@yahoo.com
TO: Honorable Mayor Carroll and Town Council Members
FROM: Eric J. Heil, Town Attorney
RE: Village (at Avon) Settlement Implementation Update
DATE: January 15, 2013
Summary: This memorandum provides a settlement implementation update for the Village (at Avon)
litigation. Attached to this memorandum is a chart describing the status of documents which must be
prepared, finalized and executed to fully implement the settlement.
January 22, 2013 Council meeting - Amendments to the Traer Creek Metropolitan District and The
Village Metropolitan District Service Plans: A public hearing and review of proposed amendments to the
Traer Creek Metropolitan District and The Village Metropolitan District Service Plans is scheduled for the
January 22, 2013 Council meeting. This topic is addressed under a separate memorandum.
The Add-On Retail Sales Fee Collection Services Agreement: Traer Creek and TCMD have provided
revisions to the Add-On Retail Sales Fee Collection Services Agreement which we are reviewing. We
anticipate that this document will be ready to present to Council at the February 12, 2013 Council meeting.
Amendments to the Mixed-Use and Commercial Declarations: We have provided proposed revisions
to the Mixed-Use and Commercial Declarations regarding the Town’s right to enforce the Add-On Retail
Sales Fee. We anticipate that document will be ready to present to Council at the February 12, 2013
Council meeting.
Various Conveyance Documents: We are continuing to review additional revisions to the conveyance
documents transferring land and assets to TOA as well as reviewing title exceptions. We anticipate that
final versions of deeds with title exceptions and title insurance policies for land parcels will be ready to
present to Council at the February 12, 2013 or February 26, 2013 regular meetings.
Receipt and Escrow Agreement: Council previously approved the form of the Receipt and Escrow
Agreement on November 7, 2012; however, additional revisions and refinements to accurately reference all
the documents required for complete settlement was acknowledged in Ord. No. 12-10 approving this
agreement along with the Annexation and Development Agreement and other documents. Other parties
have provided comments and updates to the Receipt and Escrow Agreement which we are reviewing. We
anticipate that a final version of the Receipt and Escrow Agreement will be ready to present to Council at
the February 12, 2013 regular meeting.
Review of Bond Documents: We do not have a definitive schedule for the production of draft bond
documents by Traer Creek Metropolitan District and the Upper Eagle River Water Authority at this time
although we understand that both parties have commenced bond document preparation. Once a draft set
is produced, we will review to verify compliance with the Annexation and Development Agreement and
present such documents to Council.
Thank you, Eric
MEMORANDUM
H EIL L AW
& PLANNING LLC
Jan. 17, 2013
Page 1 of 5
CLOSING ESCROW DOCUMENT STATUS
DOCUMENT OR
INSTRUMENT SIGNED BY NOTES RE: STATUS
DOCUMENTS APPROVED BY TOWN
1. Ordinance No. 12-10
(approving Development
Agreement, PUD, Lot 1
Re-Plat, Traer Creek Plaza,
acceptance and conveyance
of water rights, acceptance
of real property and
equipment, amendments to
AMC Ch.18)
Town COMPLETED
2. Amended and Restated
PUD Guide for The Village
(At Avon) (“PUD”)
n/a COMPLETED
3. Condominium Plat/Map Town, TC Plaza COMPLETED
4. Re-Plat of Lot 1 Town, TC-RP COMPLETED
5. Consolidated, Amended
and Restated Annexation
and Development
Agreement for The Village
(At Avon) (“Development
Agreement or CARADA”)
Town, TCMD, TCLLC,
AURA, EMD, Mixed Use
PIC, Commercial PIC, and
VMD, BNP and lenders as
limited parties
Heil - follow up and
review comments from
Ayers and Kanda so
CARADA can be finalized
for execution
6. Covenant and Temporary
Easement (to Planning
Area I)
Town EMD Exhibit to CARADA;
FINALIZED
7. Special Warranty Deed
Conveying Water Rights to
Authority
Town COMPLETED
8. Asphalt Overlay Escrow
Agreement
1st Bank, TCMD, Town,
Master Developer
Form finalized and
approved by Town; ready
for circulation and
execution by parties.
9. Resolution No. 12-30
(approving Asphalt Overlay
Agreement)
Town COMPLETED
10. Plat for Tank Site
Approved by Town with
conditions that need to be
satisfied; Traer Creek-RP
provided comments on
1/17/13 which Town Staff
is reviewing.
Jan. 17, 2013
Page 2 of 5
11. Access Easement to PA-B TC-RP, Town FINALIZED
DOCUMENTS REQUIRING TOWN APPROVAL
12. Special Warranty Deed
Conveying Lot 2 (PA-B) to
Town
TC-RP
Form of deed is finalized;
Town to review Title
Exceptions and Release of
Deeds of Trust as to Lot 2.
13. Special Warranty Deed
Conveying Lot 3 (PA-E) to
Town
TC-RP
Form of deed is finalized;
Town to review Title
Exceptions and Release of
Deeds of Trust as to Lot 3.
14. Second Amendment to
Commercial PIF Covenants
Traer Creek-RP,
Commercial PIC
Heil provided changes
1/15; Ayers/Martin to
respond.
15. Amendment to Mixed-Use
PIF Covenants
Traer Creek-RP, Mixed
Use PIC
Heil provided changes
1/15; Ayers/Martin to
respond.
16. Raw Water System O&M
Agreement TCMD, Town
D. Bower changes sent to
Town on 1/16/13 for Town
review
17. Wet Well Easement
Agreement TC-RP, Town
Town and Developer need
to meet, discuss and
resolve location – week of
1/28
18. Amended and Restated
Nottingham Dam Easement
and Assignment Agreement
Town,
District, TC-RP
Town supplied form; Traer
Creek has requested
revisions; Heil to make
requested revisions.
19. Add-On Retail Sales Fee
Collection Services
Agreement
Commercial PIC, Mixed
Use PIC, SDMS, Town
SDMS provided new draft
to Avon; Heil to follow up
on revisions from Martin.
20. Amendment to TCMD
Service Plan/Approving
Resolution by Town
TCMD, Town
Approved by District
Board; Developer
comments expected by
1/22; Town initial review
on 1/22, final review to be
scheduled for 2/26.
21. Amendment to VMD
Service Plan/Approving
Resolution by Town
VMD, Town
Approved by District
Board; Developer
comments expected by
1/22; Town initial review
on 1/22, final review to be
scheduled for 2/26.
Jan. 17, 2013
Page 3 of 5
22. Revocable License
Agreement for Snow
Storage
Town, TCLLC, TCMD Town has a form; Heil to
provide final review.
23. Revised Point-Of-Sale
Placards SDMS SDMS provided to Avon;
Heil/Wright to follow up.
24. Revised PIF Return Forms,
Instructions and Notice to
Retailers
SDMS
SDMS provided to Avon;
Heil/Wright to follow up;
Martin working on
revisions.
25. Revised Town Sales Tax
Return (if necessary) Town Town decided not needed;
Delete.
26. Receipt and Escrow
Agreement
Town, TCMD, TCLLC,
BNP, UERWA
Heil to review proposed
revisions.
27. Stipulated Motion to
Dismiss Litigation
BNP, Town, TCMD,
County, TCLLC, TC RP,
TC HD, TC WMT, TC
Plaza, EMD
BNP circulated.
TCMD Documents
28. Resolution Approving
CARADA with Conditions TCMD COMPLETED
29. Bill of Sale to Town for
Water Dissipater TCMD COMPLETED; District to
execute week of 1/21.
30. Bill of Sale to Town for
Road Improvements TCMD COMPLETED; District to
execute week of 1/21.
31. Bill of Sale to Town for
Wet Well TCMD COMPLETED; District to
execute week of 1/21.
32. Bill of Sale to TC-RP
(shallow utilities) TCMD COMPLETED; District to
execute week of 1/21.
33. Special Warranty Deed to
Town for Public Road
Tracts & Detention Pond
(Tract D)
TCMD COMPLETED; District to
execute week of 1/21.
Jan. 17, 2013
Page 4 of 5
34. Special Warranty Deed to
Town for Raw Water TCMD
D. Bower sent revisions to
Town on1/16; Heil,
Montgomery, Town staff
reviewing
35. Partial Assignment of
Amended and Restated
Conveyance of Roadways
and Easements (Conveying
easement rights pertinent to
E. Beaver Creek and
Chapel Place to Town)
TCMD
MS made change and sent
to Martin 1/15; should be
executed by District next
week.
36. Special Warranty Deed to
Town for Public Road
Tract G
TC-RP FINALIZED, to be
executed week of 1/22
37. Resolution Appointing
BNP to TCMD Board TCMD MS/TCMD to draft.
Traer Creek Plaza and Traer Creek-RP Documents
38. Traer Creek Plaza
Condominium Declaration TC Plaza COMPLETED
39. Quit Claim Deed to TCMD
for Parking Unit TC Plaza MS will do.
Water Tank Documents
40. Resolution No. _________
(Rescinding Water Service
Moratorium)
Authority COMPLETED; check for
signed copy.
41. Traer Creek Water Storage
Tank Agreement
COMPLETED; developer
is requesting revisions to
Easement Agreement prior
to executing. NOTE: this
document is not to be
placed into escrow.
42. Special Warranty Deed
Conveying Water Rights to
Town
TCMD COMPLETED
43. Water Rights Opinion PF
Opinion is prepared,
subject to review by
UERWA
44. Pledge Agreement (Water
Storage Tank Project)
BNP, TCMD, Authority,
VMD COMPLETED
45. Water Storage Tank
Special Warranty Deed TC-RP, Authority Form agreed upon but not
executed.
46. Title Commitment to Tank
Site n/a Leary to check with
Cappell at Stewart Title.
47. Easement Agreement for
Tank Site access road TC-RP, Authority Developer has requested
revisions.
Jan. 17, 2013
Page 5 of 5
Other Documents
48. First Amendment to
Amended & Restated
Conveyance of Roadways,
Parkland & Easements
TCMD, TC-RP COMPLETED; to be
executed next week.
49. First Amendment to
Conveyance of Roadway
Tract
TCMD, TC-RP COMPLETED; to be
executed next week.
50. Release of Deed of Trust as
to Parking Unit [Bank?] Not done; BoW issues;
Michael BC.
51. Release of Deed of Trust as
to Lot 2 (PA-B) [Bank?] Not done; BoW issues;
Michael BC.
52. Release of Deed of Trust as
to Lot 3 (PA-E) [Bank?] Not done Michael BoW
issues; Michael BC.
53. Memorandum of
Termination of Parking
Facility Easement
Agreement
TCMD, TCP MS sent draft 1/15 to
Developer (Marcus).
54. Memorandum of
Termination of Common
Easement Agreement
TCMD, TCP MS sent draft 1/15 to
Developer (Marcus).
55. Purchase and Sale
Agreement (qualifying
BNP representative to
TCMD and VMD Boards)
ALK, BNP Waiting to receive first
draft from Ayers.
56. Resolution Appointing
BNP to VMD Board VMD MS/VMD to draft.
57. Repayment Agreement –
Operations TCMD, VMD, TCLLC District waiting for
comments from Developer.
58. Repayment Agreement –
Capital TCMD, VMD, TCLLC District waiting for
comments from Developer.
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com e-mail: ericheillaw@yahoo.com
TO: Honorable Mayor Carroll and Town Council Members
FROM: Eric J. Heil, Town Attorney
RE: Amendments to the Service Plans for Traer Creek Metropolitan District and The
Village Metropolitan District
DATE: January 16, 2013
Summary: Traer Creek Metropolitan District (“TCMD”) and The Village Metropolitan District (“VMD”) have
both submitted proposed amendments to each District’s respective service plans (“Service Plans”). The
purpose of the Service Plan amendments is to update the Service Plans to reflect current conditions and to
reconcile any provisions of the Service Plans which are not consistent with the terms of the Annexation and
Development Agreement approved in November, 2012. It is important that the Service Plans are
consistent with the terms of the Annexation and Development Agreement in order for TCMD to issue bonds
and obtain various opinion letters related to the issuance of bonds. The original TCMD Service Plan is
substantially similar to the original VMD Service Plan and the proposed amendments are substantially
similar.
Process: The Avon Town Council is required to conduct a public hearing prior to making any decision on
proposed amendments to a metropolitan district Service Plan. A public hearing has been noticed and
scheduled for the January 22, 2013 regular Council meeting. An initial presentation and discussion is
proposed for the January 22, 2013 Council meeting with a recommendation that Council continue the public
hearing to February 26, 2013 to allow ample time to review the proposed amendments to the Service Plans
and to create the administrative review report. Also, as of the time of preparing this memorandum, Traer
Creek LLC has not provided comments on the amendments to the Service Plans. Avon Municipal Code
(“AMC”) Sec. 18.01.70 provides 120 days to provide an administrative review of proposed amendments to
a service plan. AMC Sec. 18.01.80 states that a public hearing will be scheduled after completion of an
“administrative review report.” An administrative review report has not yet been completed, but is intended
to be completed for the February 26, 2013 meeting. For this reason and due to the timing of settlement
implementation, the proposed amendments to the Services Plans are provided to Council for an initial
introduction and discussion at the January 22, 2013 meeting.
Background: A metropolitan district is a special district formed pursuant to Title 32 of the Colorado
Revised Statutes. Metropolitan districts are “quasi-governmental” entities which are neither municipalities
nor counties. Metropolitan districts generally have authority to provide construct public improvements,
provide certain local governmental services and impose property taxes and fees to pay for public facilities
and services.
A Service Plan is a document required by the “Special District Control Act” under Title 32. The
reviewing jurisdiction (in this case the Town of Avon) has authority to review amendments to Service Plans.
The Special District Control Act sets forth minimum requirements to be included in a metropolitan district
Service Plan. The Town has adopted certain procedures and criteria for review of amendments to Service
Plans in Title 18 of the Avon Municipal Code which are in addition to criteria and procedures set forth in the
state statutes and in some circumstances replace and supersede state statutes.
The Town of Avon originally approved the Service Plans for TCMD and VMD in fall of 1998. TCMD
and VMD are structure as “master and slave” metropolitan districts whereby the TCMD boundary is a small
MEMORANDUM
H EIL L AW
& PLANNING LLC
Town Council
TCMD and VMD Amendments to Service Plans
January 16, 2013
Page 2 of 2
open-space area on the north hillside of the Village (at Avon) property and the VMD boundary includes the
remainder of the Village (at Avon) property and all existing and future development areas. This structure is
not uncommon for large-scale development projects because it allows for the master metropolitan district to
retain control and promote uniformity to complete public improvements for the entire project.
Overview of Amendments: A comparison document of the First Amended and Restated Service Plan for
TCMD is provided which shows the changes from the existing Service Plan. The proposed amendments
are summarized as follows:
• The Introduction has been updated to provide a narrative that explains the current status. The
sentence which reads, “However, nothing herein shall be construed as incorporating the Development
Agreement into this Service Plan or this Service Plan into the Development Agreement,” is in response
to a point of litigation in which the parties disputed whether the terms of the Service Plan were part of
the Development Agreement. Although it is important that the Service Plan is consistent with the
Development Agreement, the Service Plan and Development Agreement are intended to be separate
and independent documents.
• Since the adoption of the Service Plans in 1998, recent case law has been established which
interpreted the words “will” and “shall” as creating mandatory requirements and obligations in a Service
Plan. Throughout the Service Plan, language has been amended in recognition of recent case law to
indicate whether certain terms are mandatory obligations or discretionary acts of the metropolitan
districts.
• V. Description of Proposed Services has been revised to be consistent with the Development
Agreement, particularly with regard to acknowledging that streets and parks may be dedicated to Town
and Town would then be responsible to maintain and that Town is not responsible for streets and parks
not dedicated to Town. Language concerning water and sewer service has been updated to simply
refer to the operative agreements for water and sewer service.
• Articles VI, VII, VIII and IX have been updated to state what is occurring rather than what will occur.
• X. Financial Plan and Limitations retains the total maximum debt limit of $158 million as established
in the current Service Plans.
• XI. Material Modification is a new section which expressly incorporates the provisions of the
Development Agreement and terms of the Settlement Term Sheet whereby the Town agreed to not
apply the Town’s definition of material modification adopted in Title 18 of the Avon Municipal Code and
would utilize the definition of material modification set forth in the Special District Control Act.
Title 18 of Avon Municipal Code: I am working with Town staff, TCMD and VMD to review compliance
with the applicable minimum criteria for amendments to service plans. Please note that Ordinance No. 12-
10 included a specific provision which exempted TCMD and VMD material modification provisions in Title
18 of the Avon Municipal Code, therefore, certain provisions in AMC Sec. 18.01.050(b) will not apply to
these amendments because they concern material modifications.
Thank you, Eric
Attachments: Resolution No. 13-02; Amended and Restated TCMD Service Plan; Resolution No. 13-03;
Amended and Restated VMD Service Plan
Res. 13-02 Approving the First Amended and Restated Service Plan for TCMD
13-01-16 MVH
TOWN OF AVON
RESOLUTION NO. 13-02
Series of 2013
A RESOLUTION APPROVING THE FIRST AMENDED
AND RESTATED SERVICE PLAN FOR TRAER CREEK
METROPOLITAN DISTRICT
WHEREAS, on October 7, 2011 Traer Creek Plaza, LLC, the Town of Avon, Traer Creek
Metropolitan District, and other parties entered into the Settlement Term Sheet (“Settlement
Term Sheet”) in an effort to resolve pending litigation No. 2008 CV 385 and 2010 CV 316,
Eagle County District Court;
WHEREAS, the Avon Town Council approved the Service Plan for Traer Creek Metropolitan
District on August 25, 1998 by Resolution 1998-50;
WHEREAS, pursuant to §32-1-204.5 C.R.S. and Title 18 of the Avon Municipal Code, the
Avon Town Council is the approving authority and is required to review any service plan with
reference to need, service, and financial feasibility;
WHEREAS, public hearings were held on January 22, 2013 and February 26, 2013 in
accordance with the procedures outlined in Title 18 of the Avon Municipal Code; and
WHEREAS, the Avon Town Council has reviewed the First Amended and Restated Service
Plan and related exhibits and has determined that it meets the conditions necessary under §32-1-
202(2), C.R.S. and Title 18 of the Avon Municipal Code for approval.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the First Amended and Restated Service Plan for Traer Creek Metropolitan
District, attached hereto as Exhibit A, is hereby approved by the Town of Avon subject to the
terms and conditions of the Receipt and Escrow Agreement Pertaining to The Village (at Avon)
Settlement Implementation.
ADOPTED February 26, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
APPROVED AS TO FORM:
By:_________________________________
Eric J. Heil, Town Attorney
DRAFT
McGEADY SISNEROS, P.C.
January 11, 2013
{0025054500245906.DOCX v:113 }
FIRST AMENDED AND RESTATED SERVICE PLAN
FOR
TRAER CREEK METROPOLITAN DISTRICT
(AVON, COLORADO)
APPROVED _____________, 20____
Prepared by: McGEADY SISNEROS, P.C.
450 E. 17TH AVENUE, SUITE 400
DENVER, COLORADO 80203
(303) 592-4380
{00250545.DOCX v:1 } i
TABLE OF CONTENTS
Page
Error! Hyperlink reference not valid.
II.
PURPOSE OF THE DISTRICT ..........................................................................................3
_Toc339286338
IV.
PROPOSED LAND USE/POPULATION PROJECTIONS ...............................................6
_Toc339286340
A.
Types of Improvements. ..........................................................................................7
_Toc339286342
2.
Safety Protection ..........................................................................................9
_Toc339286344
4.
Transportation ............................................................................................10
_Toc339286346
6.
Television Relay and Translation ..............................................................11
_Toc339286348
8.
Sanitation ...................................................................................................14
_Toc339286350
10.
Other Powers ..............................................................................................16
_Toc339286352
(b)
Phasing, Deferral ............................................................................17
_Toc339286354
B.
Standards of Construction/Statement of Compatibility. ........................................17
_Toc339286356
VI.
ASSESSED VALUATION ...............................................................................................20
_Toc339286358
{00250545.DOCX v:1 } ii
VIII.
OPERATION AND MAINTENANCE/ESTIMATED COSTS ........................................21
_Toc339286360
A.
Water Service Agreement. .....................................................................................22
_Toc339286362
C.
Coordinated Services of the Districts. ...................................................................22
_Toc339286364
E.
Annexation and Development Agreement. ............................................................23
_Toc339286366
X.
FINANCIAL PLAN AND LIMITATIONS ......................................................................25
_Toc339286368
B.
General Obligation Bonds. .....................................................................................32
_Toc339286370
D.
Cost Summary and Bond Development .................................................................36
_Toc339286372
XI.
CONCLUSION ..................................................................................................................38
I.
INTRODUCTION .............................................................................................................1
II.
PURPOSE OF THE DISTRICT ......................................................................................3
III.
DISTRICT BOUNDARIES/MAPS ..................................................................................5
IV.
PROPOSED LAND USE/POPULATION PROJECTIONS .........................................6
V.
DESCRIPTION OF PROPOSED SERVICES ...............................................................7
A.
Types of Improvements. ..........................................................................................7
1.
Streets ...........................................................................................................8
2.
Safety Protection ..........................................................................................9
3.
Park and Recreation .....................................................................................9
4.
Transportation ............................................................................................10
{00250545.DOCX v:1 } iii
5.
Mosquito Control .......................................................................................11
6.
Television Relay and Translation ..............................................................11
7.
Water ..........................................................................................................11
8.
Sanitation ...................................................................................................14
9.
Fire Protection ............................................................................................16
10.
Other Powers ..............................................................................................16
(a)
Plan Amendments ..........................................................................17
(b)
Phasing, Deferral ............................................................................17
(c)
Additional Services ........................................................................17
B.
Standards of Construction/Statement of Compatibility. ........................................17
C.
Facilities to be Constructed and/or Acquired. ........................................................19
VI.
ASSESSED VALUATION ..............................................................................................20
VII.
ESTIMATED COSTS OF FACILITIES .......................................................................20
VIII.
OPERATION AND MAINTENANCE/ESTIMATED COSTS ...................................21
IX.
PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS .........24
A.
Intergovernmental Agreements. .............................................................................24
B.
Voter Authorization. ..............................................................................................25
X.
FINANCIAL PLAN AND LIMITATIONS ...................................................................25
A.
General. ..................................................................................................................25
B.
General Obligation Bonds. .....................................................................................32
C.
Cost Summary and Bond Development .................................................................36
XI.
MATERIAL MODIFICATION .....................................................................................37
XII.
CONCLUSION ................................................................................................................38
{00250545.DOCX v:1 } iv
EXHIBIT A Legal Description of Property
EXHIBIT B District Boundary and Vicinity Map
EXHIBIT C List of Prioritized Capital ProjectsDescription of Facilities and Costs
EXHIBIT D-1 Street and Safety Protection Improvements
EXHIBIT D-2 Park and Recreation Improvements
EXHIBIT D-3 Water and Sanitation Improvements
EXHIBIT E Financial Plan for The Village Metropolitan District
and Traer Creek Metropolitan District
EXHIBIT F District Facilities Construction and Financing Agreement
DRAFT
McGEADY SISNEROS, P.C.
January 11, 2013
{0025054500245906.DOCX v:113 } i
EXHIBIT E List of Intergovernmental Agreements
EXHIBIT F Financial Plan
DRAFT
McGEADY SISNEROS, P.C.
January 11, 2013
{0025054500245906.DOCX v:113 }
FIRST AMENDED AND RESTATED SERVICE PLAN FOR
TRAER CREEK METROPOLITAN DISTRICT
I. INTRODUCTION
This First Amended and Restated Service Plan for Traer Creek Metropolitan District
(“Service Plan”) amends and restates in its entirety that certain Service Plan for Traer Creek
Metropolitan District approved by the Town of Avon, Colorado (the “Town”) on August 25,
1998 (the “Original Service Plan”). The amendments contained herein are necessary to
implement the settlement of certain legal claims asserted by and against Traer Creek
Metropolitan District (“Traer Creek” or the “District”) in consolidated Case No. 2008 CV 385
(the “Litigation”) and, more particularly, to implement the terms of that Consolidated, Amended
and Restated Annexation and Development Agreement made and entered as of ________, 2012,
as may be supplemented or amended from time to time (the “Development Agreement”). The
use herein of certain defined terms from and references to certain requirements set forth in the
Development Agreement are for the purposes of assuring consistency between the Development
Agreement and this Service Plan. However, nothing herein shall be construed as incorporating
the Development Agreement into this Service Plan or this Service Plan into the Development
Agreement. Traer Creek and the Town agree that in implementation of the Development
Agreement, this Service Plan and the Town’s resolution approving same shall be subject to the
terms and conditions of that certain Receipt and Escrow Agreement Pertaining to The Village (at
Avon) Settlement Implementation entered into and effective as of ___________, 2012, to which
Traer Creek is a Party (the “Escrow Agreement”) and shall constitute Settlement Implementation
Documents as defined in the Escrow Agreement.
DRAFT
McGEADY SISNEROS, P.C.
October 29, 2012
January 11, 2013
{0025054500245906.DOCX v:113 } 2
Pursuant to the requirements of the Special District Control Act, Section 32-1-201,
et seq., Colorado Revised Statutes, this Service Plan consists of a financial analysis and an
engineering plan showing how the proposed facilities and services of the proposed Traer
CreekDistrict and The Village Metropolitan District (“The Village” and, together with Traer
Creek” or “District”) will, the “Districts”) may be provided and financed. The following items
are included in this Service Plan:1
1. A description of the proposed services;
2. A financial plan showing how the proposed services are to be financed, including
the proposed operating revenue derived from property taxes for the first budget year of the
District;
3. A preliminary engineering or architectural survey showing how the proposed
services are to be provided;
4. A map of the proposed District boundaries and an estimate of the population and
valuation for assessment of the proposed District as of the date this Service Plan was submitted
to the Town;
5. A general description of the facilities to be constructed and the standards of
construction, including a statement of how the facility and service standards of the proposed
DistrictDistricts are compatible with facility and service standards of the Town of Avon,
Colorado
(“Town”);;
1 The intent of amendments herein is to change future tense to present tense.
DRAFT
McGEADY SISNEROS, P.C.
October 29, 2012
January 11, 2013
{0025054500245906.DOCX v:113 } 3
6. A general description of the estimated cost of acquiring land, engineering
services, legal services, administrative services, initial and proposed indebtedness and estimated
proposed maximum interest rates and discounts, and other major expenses related to the
organization and initial operation of the proposed DistrictDistricts; and
7. A description of any arrangement or proposed agreement with any political
subdivision for the performance of any services between the proposed District and such other
political subdivision, and if applicable a form of the agreement is attached hereto.
II. PURPOSE OF THE DISTRICT
Services will are planned to be provided to the approximately 17891,789-acre The
Village (at Avon) development (the “Development”) by two or more metropolitan districts which
will be created pursuant to Section 32-1-101, et seq.., C.R.S. The two districts will bethat have
been created for this purpose are named Traer Creek Metropolitan District and The Village
Metropolitan District (“The Village”)., and additional districts may be organized as set forth in
Section 6.19 of the Development Agreement. The two Districts will coordinate their efforts in
order to provide public services to the Development in the most efficient manner possible. Traer
Creek will be responsible for managing the construction and operation of the public facilities
and improvements within the Development, and for providing funding to support costs related to
the necessary services and improvements. The Village Metropolitan District will be responsible
for providing funding needed to support costs related to the necessary services and
improvements for the Development utilizing the tax base from the Development. It is
anticipated that theThe Districts will enterhave entered into severalan intergovernmental
DRAFT
McGEADY SISNEROS, P.C.
October 29, 2012
January 11, 2013
{0025054500245906.DOCX v:113 } 4
agreementsagreement which will clarifyclarifies the nature of the functions and services that
each District will provide. The purpose of the agreements will beagreement is to assure the
orderly provision of services and improvements to the Development.
Traer Creek will be deemed to beis the “Service District” organized to finance, construct,
own, manage and operate the public improvements throughout the Development. The Village
will behas been organized as the “Financing District” in order to generate revenue to pay a
portion of the costs of the public infrastructure and services. This dual district structure is
proposed because it provides several benefits to the inhabitants of the Development and the
Town. DualThe intent of the dual districts willis to assure that: 1) the necessary services and
improvements can be financed in the most favorable and efficient manner, 2) all the services and
improvements needed for the Development will be available when needed through managed
development, and 3) a uniform mill levy and reasonable tax burden on all residential and
commercial property within the DistrictDistricts is maintained through managed financing and
coordinated completion of infrastructure improvements. By providing for all2 construction and
maintenance through the Service District pursuant to the proposed District Facilities Funding,
Construction and FinancingOperations Agreement attached hereto as Exhibit F, dated as of July
31, 2001, as amended on March 4, 2002, as the same may be amended or supplemented from
time to time (“Construction and Financing Agreement”), which Construction and Financing
Agreement is attached hereto as Exhibit D, it is intended that the Districts and the Development
will have continuity of construction management and will adapt Development construction to
2 Deleted “all” because Traer Creek will not be coordinating construction and maintenance of all Public
Improvements and the allocation of responsibilities is subject to documents/instruments other than the Construction
and Financing Agreement, most particularly the Development Agreement.
DRAFT
McGEADY SISNEROS, P.C.
October 29, 2012
January 11, 2013
{0025054500245906.DOCX v:113 } 5
meet infrastructure construction and maintenance so that the most3 efficient and effective use of
the Districts’ financial and other resources ismay be achieved.4
The proposed structure will provide that the construction and operation of improvements
will be administered by the Board of Directors of Traer Creek. This will facilitate a well-
planned financing effort of construction and will assist in assuring coordinated extension of
services to all areas of the Development.
Traer Creek Metropolitan District will be empowered to provide: (1) street
improvements, (2) water improvements, (3) sewer improvements, (4) parks and recreation, (5)
safety protection, (6) transportation, (7) mosquito control, (8) television relay and translation, (9)
fire protection, and any other services that may be provided by a metropolitan district to the
entire Development (“Service Area”), additional properties which includeincludes property
within The Village Metropolitan District, and other properties which contract for service
(“Future Service Areas”), as determined by the District’s Board of Directors to be in the best
interest of the District. The District is expected to finance the construction of the aforementioned
services and facilities for the Development as described in this Service Plan.
III. PROPOSED DISTRICT BOUNDARIES/MAPS
The area to be served by the proposed District is located entirely within the Town of
Avon, and is approximately 17891,789 acres (the “Property”).. A legal description of the
3 Deleted “the most” to eliminate subjective concepts that are not necessary to avoid future conflicts and
controversy.
4 Deleted paragraph was conceptually redundant with the preceding paragraph, which we believe adequately
describes the purpose of the Construction and Financing Agreement in more precise terms.
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Propertyproperty within the present boundaries of the District is attached hereto as Exhibit A. A
map of the boundaries and vicinity of the District is attached as Exhibit B.
IV. PROPOSED LAND USE/POPULATION PROJECTIONS5
The Village Sketch/Amended and Restated PUD Development Plan (Guide for the
“Development and the Development Plan”)Agreement, as the same may be supplemented or
amended from time to time (collectively, the “Development Plan”), identifies 17 Planning Areas
expected to be zonedzoning of the Development for mixed-use purposes, including but not
limited to, retail, office, hotel and residential development. The Development is not presently
served with the facilities and/or services proposed to be provided by the proposed District, nor
does the Town nor any other special district have any plans to provide such services within a
reasonable time and on a comparable basis. At an estimated three to four persons per full-time
residence, this would result in a resident population of approximately 3,379__________ persons
based upon proposedpresent zoning. Of the 2,267400 residential units anticipated to be
constructed, fifty-one percent are anticipated to be occupied by full-time residents. The
Development also anticipates approximately 400 hotel rooms, and 750825,000 square feet of
commercial and office space. In order to facilitate the development of the properties within
Traer Creek and The Village as planned, organized provision of facilities and services proposed
to be provided by the proposed District will be necessary.
It is anticipated that the District’s boundaries will change from time to time as it
undergoes inclusions and exclusions pursuant to parts 4 and 5 of Article 1, Title 32, C.R.S. The
5 All proposed amendments to Article IV are subject to review and confirmation by the Developer or its legal
counsel.
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District shall not approve the inclusion of any property within the District without the prior
written consent of the Town, which consent shall not be unreasonably withheld.
V. DESCRIPTION OF PROPOSED SERVICES
The following paragraphs provide a description of the proposed services which the
District will be empowered to provide.
A. Types of Improvements.
The District shall have the authority to provide for the design, acquisition,
construction, installation, and financing of certain water, sanitation, street, safety protection, park
and recreation, transportation, television relay and translation, fire protection, and mosquito
control improvements and services within and without the boundaries of the District. (the
“Improvements”). This Service Plan describes those improvementsImprovements anticipated for
construction by Traer Creek and financed by Traer Creek and The Village, which
improvementsImprovements benefit the Development. A general description of each type of
improvement and service which may be provided by the District follows this paragraph.
Additionally, Exhibit C lists each type of improvement planned to be provided byWithout
expanding or limiting the Districts for the Development, the phasing of construction of such
facilities, and the costs in current dollars (“scope of Improvements”). An explanation of the
methods, basis, and/or assumptions used to prepare the above estimates the District is also
included in Exhibit C. Theotherwise authorized to finance, construct, operate and maintain,
certain Improvements generally depicted and described in Exhibit D have been presented for
illustration only, and theidentified as having particularly high value in supporting and
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encouraging development (the “Prioritized Capital Projects”). A list of the Prioritized Capital
Projects and their estimated costs in 2012 dollars is attached hereto as Exhibit C. The exact
design, subphasing of construction and location of the Improvements, including the Prioritized
Capital Projects, will be determined at the time of plattingpursuant to administrative approval of
“Public Improvement Agreement(s)” as defined in the Development Agreement6 and such
decisions shall not be considered to be a material modification of the Service Plan. Any
Improvements shall be undertaken and proceed in accordance with the timing and conditions of
an administratively approved Public Improvement Agreement, and it shall not be a material
modification of the Service Plan for the District to finance and/or construct any Improvement in
accordance with an administratively approved Public Improvement Agreement, whether or not
such Improvement is specifically described in this Service Plan or Exhibit C.7
1. Streets. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation and/or operation and maintenance of
Streetstreet improvements, including but not limited to, curbs, gutters, culverts, and other
drainage facilities, sidewalks, equestrian trails, bike paths and pedestrian ways, pedestrian
overpasses, retaining walls, bridges, overpasses, interchanges, parking areas, parking facilities,
median islands, paving, lighting, grading, landscaping and irrigation, snow removal equipment,
ski ways, ski bridges, tunnels, elevated promenades, heated plazas and walks, exterior escalators,
and all necessary, incidental, and appurtenant facilities, land and easements, together with
extensions of and improvements to said facilities within and without the boundaries of the
6 Need to confirm with Developer or its legal counsel to make sure this is consistent with the current
Development Plan.
7 Harmonized with CARADA.
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proposed District. Street improvements dedicated to the Town shall be operated and maintained
by the Town. It is anticipatedacknowledged that the Town will own and maintain the public
streets within the Development. In addition, it is anticipated that following acceptance by the
Colorado Department of Transportation (“CDOT”),has accepted, owns and maintains the
interchange improvements will be owned and maintained by CDOT.. Street improvements not
dedicated to the Town or other jurisdiction may be operated and maintained by the District or an
association of landowners within the Development.8
All streetscaping improvements will be maintained by the District, or an
association of landowners within the Development, or both.
2. Safety Protection. The proposed District shall have the power to provide
for the acquisition, construction, completion, installation and/or operation and maintenance of
facilities and/or services for a system of traffic and safety controls and devices on streets and
highways, including but not limited to, signalization, signage and striping, area, identification,
driver information, and directional assistance signs, entry monumentation, access gates and
alarm systems, and all necessary, incidental, and appurtenant facilities, land and easements,
together with extensions of and improvements to said facilities within and without the
boundaries of the proposed District. Following acceptance, all safety protection improvements
will be transferred to the Town for ownership and maintenance.
3. Park and Recreation. The proposed District shall have the power to
provide for the design, acquisition, construction, completion, installation, operation and
maintenance of parks and recreational facilities and programs including, but not limited to, parks,
8 Harmonized with CARADA.
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hiking and snowshoe trails, equestrian trails, bike paths and pedestrian ways, open space,
landscaping, cultural activities, community recreational centers, water bodies, swimming pools
and spas, tennis courts, public fountains, skating areas and facilities, exercise facilities,
pedestrian bridges and malls, botanical gardens, sculpture and artworks, ski-ways and snow
making equipment therefor, picnic and common areas, weed control, outdoor lighting, events
facilities, lakes, stream system and stream bridges, irrigation facilities, and other active and
passive recreational facilities and programs, and all necessary, incidental and appurtenant
facilities, land and easements, together with extensions of and improvements to said facilities
within and without the boundaries of the District. It is anticipated that the park Park and
recreation improvements willdedicated to the Town shall be operated and maintained by Traer
Creek.the Town. Park and recreation improvements not dedicated to the Town or other
jurisdiction may be operated and maintained by the District or an association of landowners
within the Development.9
4. Transportation. The proposed District shall have the power to provide for
the design, acquisition, construction, completion, installation, operation and maintenance of a
system to transport the public by bus, rail, gondola, automobile, cable liner, chairlift or any other
means of conveyance, or combination thereof, or pursuant to contract, including but not limited
to, park and ride facilities and parking lots, structures, roofs and covers, terminal buildings, and
facilities, and all necessary, incidental and appurtenant facilities, land and easements, together
with all necessary extensions of and improvements to said facilities or systems within and
without the boundaries of the District. It is anticipated that transportation improvements will be
9 Harmonized with CARADA.
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maintained by Traer Creek.Transportation improvements constructed by or dedicated to the
Town shall be operated and maintained by the Town. Transportation improvement not dedicated
to the Town or other jurisdiction may be operated and maintained by the District or an
association of landowners within the Development.10
5. Mosquito Control. The proposed District shall have the power to provide
for the eradication and control of mosquitoes, including but not limited to elimination or
treatment of breeding grounds and purchase, lease, contracting or other use of equipment or
supplies for mosquito control within and without the boundaries of the District.
6. Television Relay and Translation. The proposed District shall have the
power to provide for the design, acquisition, construction, completion, installation, operation and
maintenance of television relay and translation facilities, cable and communication facilities,
fiber optic conduit network, together with all necessary, incidental and appurtenant facilities,
land and easements, and all necessary extensions of and improvements to said facilities within
and without the boundaries of the District.
Traer Creek may undertake, on its own or pursuant to a contract with a
third party, the establishment, operation and maintenance of a cable television and
communication system utilizing translator and relay facilities. The exact configuration of the
projected television relay improvements is not currently known, but will depend upon the actual
pace and scope of the construction within the Development.
7. Water. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation, operation and maintenance of a
10 Harmonized with CARADA.
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complete potable and nonpotable water supply, purification, storage, transmission and
distribution system, which may include, but shall not be limited to, water rights, water supply,
reservoirs, wells, water pumps, purification plants, pump stations, transmission lines, distribution
mains and laterals, fire hydrants, meters, irrigation facilities, storage facilities, land and
easements, and all necessary, incidental, and appurtenant facilities, together with extensions of
and improvements to said system within and without the boundaries of the proposed District.11
EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II
LLC, and PVRT NOTT III LLC, as the developers of the Development (collectively,
“Developer”), have entered into a Water Service Agreement with the Eagle-Vail Metropolitan
District (“Eagle-Vail”) and the Upper Eagle Regional Water Authority (“Authority”) to provide
water service to the Development. Pursuant to the Agreement, Eagle-Vail and the Authority are
directly obligated to provide water service to the Development, which service includes supplying
treated water, and operations and maintenance of a water distribution system and storage system
sufficient to serve the Development. The Developer has covenanted to construct and/or extend
the Authority’s and the Eagle-Vail’s water distribution system and storage system, and to lease
sufficient water rights to the Authority, as necessary to serve the Development. Completed
storage and water distribution improvements, except water lines internal to the Development,
shall be conveyed free and clear of all liens and encumbrances by the Developer to Eagle-Vail.
The Developer has also agreed to file and prosecute an augmentation plan to allow for alternate
use of the water rights of the Developer, the Authority and Eagle-Vail within the boundaries and
jurisdictions of the three entities. The Developer has agreed to maintain Nottingham Reservoir
11 Deleted text is outdated. New text reflects present status of water service arrangements.
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and to maintain and operate the water lines internal to the Development. The Authority is
authorized by the Water Service Agreement to provide billing and meter reading to the users of
the water services within the Development and to assess service charges and fees against
property owners within the Development as a condition of service. Pursuant to the Agreement,
Traer Creek (as assignee for the Developer) shall be entitled to receive fifty percent (50%) of all
regular tap fees imposed and collected by Eagle-Vail Metropolitan District (“Water Tap Fee
Share”). In addition, Traer Creek shall have the right to impose and retain water development
fees for the development of water service on the Property (“Incremental Water Fee”).
The Water Service Agreement allows the Developer to assign its rights
and obligations to any subsequent special district formed, in whole or in part, for the purpose of
holding, owning or operating its water system or other permitted services. It is the intent of the
Developer to assign its rights and obligations under the Water Service Agreement to Traer Creek
upon organization.
Without expanding or limiting the scope of water Improvements the
District is otherwise authorized to finance, construct, operate and maintain, the District shall
have the power to enter into and perform its obligations related to provision of water service to
the Development under intergovernmental agreements with the Town, the Upper Eagle Regional
Water Authority and the Eagle-Vail Metropolitan District. Such intergovernmental agreements
which are between the District and one or more of the entities listed in the foregoing sentence
and, in some instances, one or more developer entities, include, but are not limited to:
(a) Water Service Agreement, dated as of May 15, 1997, as amended
by the First Amendment to Water Service and Tap Fee Allocation Agreement, dated as of
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June 22, 1999, and as assigned by the Assignment and Assumption of Tap Fee Allocation
Agreement, dated as of November 29, 2001, as amended by the Traer Creek Water Storage Tank
Agreement and Second Amendment to Water Service Agreement, dated as of ___________,
2012, as the same may be supplemented or amended from time to time, together with such other
agreements or instruments as may be necessary to implement the provisions therein;
(b) Agreement, dated November 4, 2002, as the same has been or may
be supplemented or amended from time to time, together with such other agreements or
instruments as may be necessary to implement the provisions therein;
(c) Development Agreement, as the same may be supplemented or
amended from time to time, together with such other agreements or instruments as may be
necessary to implement the water service-related provisions therein; and
(d) The Village (at Avon) Raw Water System Operation and
Maintenance Agreement between the District and the Town dated ___________, 20___.
8. Sanitation. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation, operation and maintenance of a
complete sanitary sewage collection, treatment, transmission, and disposal system which may
include, but shall not be limited to, treatment plants, collection mains and laterals, lift stations,
transmission lines, sludge handling and disposal facilities, and/or storm sewer, flood and surface
drainage facilities and systems, including but not limited to, detention/retention ponds and
associated irrigation facilities, and all necessary, incidental, and appurtenant facilities, land and
easements, together with extensions of and improvements to said system within and without the
boundaries of the proposed District.
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The Development is located within the boundaries of the Eagle River
Water and Sanitation District (“Eagle River”). Eagle River has sufficient wastewater treatment
and transmission capacity to provide service for the projected build-out of the Development.
The main sewer lines will be constructed by Traer Creek and conveyed to Eagle River for
maintenance upon acceptance. The Developer anticipates entering into an Incremental Sewer
Tap Fee Agreement with Eagle River (“Sewer Agreement”) regarding the provision of sewer
service, the construction of improvements and the imposition of an incremental tap fee. Pursuant
to the Sewer Agreement, Eagle River is obligated to provide sewer service to the Development.
Developer agrees to extend Eagle River’s existing sewer lines and to construct internal sewer
facilities in the Development. In addition, Eagle River agrees to impose and collect up to an
additional 25% incremental tap fee (“Incremental Sewer Fee”), as set by Developer, for each
sewer tap located within the Development as partial offset for Developer’s infrastructure costs.
The Sewer Agreement allows the Developer to assign its rights to a special district formed for
the purpose of owning or operating its sewer system or other permitted utilities and services. In
addition, pursuant to the Sewer Agreement, Eagle River consents to the organization of Traer
Creek and The Village. It is the intent of the Developer to assign its rights under the Sewer
Agreement to Traer Creek upon organization.
Without expanding or limiting the scope of sanitation Improvements the
District is otherwise authorized to finance, construct, operate and maintain, the District shall
have the power to enter into and perform its obligations related to provision of sanitation service
to the Development under intergovernmental agreements with the Eagle River Water and
Sanitation District including, but not limited to, the Incremental Sewer Tap Fee Agreement,
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dated as of November 19, 1998, as assigned to the District by the Assignment and Assumption of
Sewer Tap Fee Agreement, dated as of November 29, 2001, as the same has been or may be
supplemented or amended from time to time, together with such other agreements or instruments
as may be necessary to implement the provisions therein.
9. Fire Protection. The proposed District shall have the power to provide for
the design, acquisition, construction, completion operation and maintenance of facilities for
protection against fire, including, but not limited to, fire stations, fire trucks, fire protection and
fire fighting equipment, and such ambulance, medical and rescue equipment, units and facilities
as are deemed necessary for property fire fighting, fire suppression and emergency medical
services, adoption of fire codes, and all necessary, incidental and appurtenant facilities, land and
easements, together with extensions of and improvements to said system within and without the
boundaries of the District. It is anticipated that all fireFire protection facilities and improvements
will be maintained by the Town. The development is within the boundaries ofEagle River Fire
Protection District, the Eagle County Health Services District (“ECHSD”). The District’s
authority to provide ambulance services to the property within its boundaries shall be subject to
agreement among and between the Districts, the Town and ECHSD pursuant to Section 32-1-
107(3)(b)(IV), C.R.S.or the Eagle County Ambulance District,12 as applicable.
10. Other Powers. In addition to the enumerated powers, the Board of
Directors of the District shall also have the following authority:
12 Need to confirm whether Development is within Eagle County Ambulance District or Western Eagle County
Ambulance District.
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(a) Plan Amendments. To amend the Service Plan as needed, with the
approval of the Town Council, subject to the appropriate statutory procedures.
(b) Phasing, Deferral. Without amending this Service Plan, to defer,
forego, reschedule, or restructure the financing and construction of certain improvements and
facilitiesthe Improvements, including the Prioritized Capital Projects, to better accommodate the
pace of growth, resource availability, and potential inclusions of property within the District.
The Town will be notified if any of these actions take place. at the time application is submitted
for Public Improvement Agreements.13
(c) Additional Services. Except as specifically provided herein, to
provide such additional services and exercise such powers as are expressly or impliedly granted
by Colorado law.
B. Standards of Construction/Statement of Compatibility.
1. All streets and safety protection facilities to be dedicated to the Town will
be constructed in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications, and applicable standards and specifications
of CDOT. “Applicable Town Standards and Specifications” shall mean those Town standards
and specifications which are applicable and are not in conflict with standards and/or
specifications set forth in the Development Plan.
2. All storm sewers and facilities will be constructed in accordance with the
standards and specifications set forth in the Development Plan, Applicable Town Standards and
Specifications, and applicable standards and specifications of other local jurisdictions.
13 Harmonized with CARADA.
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3. All parks and recreational facilities and/or services will be constructed in
accordance with engineering and design requirements appropriate for the surrounding terrain,
and shall be in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications and applicable standards and specifications
of other local jurisdictions.
4. All transportation facilities and/or services will be provided in accordance
with the standards and specifications set forth in the Development Plan, Applicable Town
Standards and Specifications, and applicable standards and specifications of other local
jurisdictions.
5. Any mosquito eradication and control facilities will be designed,
constructed, maintained and operated in accordance with the standards and specifications set
forth in the Development Plan, Applicable Town Standards and Specifications, applicable
standards and specifications of the Colorado Department of Health, or other applicable
jurisdictions.
6. Any television relay and translation facilities will be designed,
constructed, maintained and operated in accordance with the standards and specifications set
forth in the Development Plan, Applicable Town Standards and Specifications, applicable
standards and specifications of the Federal Communications Commission, and other applicable
jurisdictions.
7. Any water system improvements will be designed, constructed and
maintained in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications, applicable standards and specifications of
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the Colorado Department of Health, the Eagle-Vail Metropolitan District, the Upper Eagle
Regional Water Authority, and any other applicable jurisdiction.
8. Any sanitary sewer treatment and/or collection facilities will be designed,
constructed and maintained in accordance with the standards and specifications set forth in the
Development Plan, Applicable Town Standards and Specifications, applicable standards and
specifications of Colorado Department of Health, Eagle River Water and Sanitation District, and
any other applicable jurisdiction.
9. Any fire protection facilities shall be constructed in accordance with the
standards and specifications set forth in the Development Plan, Applicable Town Standards and
Specifications, and standards and specifications of other applicable jurisdictions.
Based on an analysis of jurisdictions which are interested parties in the Service
Plan proceedings as defined in the Colorado Revised Statutes, the proposed District’s Engineers
have determined that the standards by which the facilities are to be constructed are compatible
with the facilities of such other jurisdictions.
C. Facilities to be Constructed and/or Acquired.
Pursuant to the proposed Construction and Financing Agreement with The
Village, Traer Creek currently proposes to construct, own and participate in the financing of
those facilities generally described herein. A general description and preliminary engineering
survey, as appropriate, of the facilities currently to be constructed and/or acquired are shown on
Exhibit D.
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VI. ASSESSED VALUATION
The Property has an assessed valuation as of January 1998 of approximately Seven
Hundred Thirty-Five Thousand Three Hundred Ten Dollars ($735,310). The projected build-out
for the Property is set forth in the Financial Plan attached hereto as Exhibit E. The projected
assessed valuation of the Property, based upon the land use expectations heretofore noted, is set
forth in the Financial Plan. At build-out, the assessed valuation for the Property is expected to be
One Hundred Thirty-Three Million Three Hundred Sixty-Two Thousand, Four Hundred Twenty-
Three Dollars ($133,362,423).
The certified assessed valuation of the Development as of December 15, 2012, is Fifteen
Million Nine Hundred Sixty Thousand One Hundred Eighty Dollars ($15,960,180).
VII. ESTIMATED COSTS OF FACILITIES
The estimated costs of the Improvements are set forth in Exhibit C attached hereto.
Exhibit D includes a facility map and preliminary drawings for the Improvements.
The estimated costs of the Prioritized Capital Projects in 2012 dollars based on a
preliminary engineering survey are set forth on Exhibit C. In addition to the Prioritized Capital
Projects, the District may construct such additional Improvements as are authorized by
administratively approved Public Improvement Agreements and the estimated costs for such
additional Improvements will be determined when application for such Public Improvement
Agreements are submitted. The District’s construction of any Improvement in accordance with
an administratively approved Public Improvement Agreement shall not constitute a material
modification of the Service Plan.
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VIII. OPERATION AND MAINTENANCE/ESTIMATED COSTS14
The District is authorized to pay its administrative, operational and maintenance expenses
from property tax and other revenues. The operating revenue derived from property taxes for the
first budget year of the District was $-0-. The Maximum Debt Mill Levy shall not apply to any
mill levy imposed by Traer Creek or The Village to pay administrative, operational and
maintenance expenses. Subject to the applicable warranty, Traer Creek will dedicate certain
facilitiesImprovements constructed or acquired to the appropriate jurisdiction for operations and
maintenance. Certain facilitiesImprovements completed by Traer Creek within the boundaries of
The Village willmay be owned, operated and/or maintained by Traer Creek. Estimated costs for
operation and maintenance functions are shown on the Financial Plan. The District may impose
a system of fees, rates, tolls, penalties or charges in connection with the provision of services.
The estimated revenues from such fees, rates, tolls, penalties, or charges are reflected in the
Financial Plan. The earliest the District will be organized will be November 1998, therefore, the
Financial Plan assumes no operating expenses Without limiting or debt will be incurred until
December 1998. The expanding the authority of the District to provide Financial Plan assumes
the Districts will jointly incur approximately One Hundred Fifty Thousand Dollars ($150,000) in
administrative expenses in 2000. As development continues, operations and maintenance
expenses will increase to approximately One Million One Hundred Twenty-Nine Thousand Four
Hundred Thirty Dollars ($1,129,430) in 2006 and increase by 6% per year thereafter. The
District anticipates that it will enter into an intergovernmental agreement with The Village which
14 Moved language from what was Section V.D here, so that all O&M provisions are in one place.
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will provide for coordinated administration and management of both Districts (“Administrative
Coordination Agreement”) and an intergovernmental agreement which will provide for the
coordination of provision of operations and maintenance of the facilities serving the Districts
(“Operations and Maintenance Coordination Agreement”). This arrangement will benefit both
Districts by eliminating duplicative expenses and by providing economies of scale to both
Districts.
IX. PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS
A. Water Service Agreement.
It is anticipated that the Developer’s rights and obligations under the Water
Service Agreement discussed above (See “DESCRIPTION OF PROPOSED SERVICES-Types
of Improvements-Water”) will be assigned to Traer Creek after its formation and organization.
B. Sewer Service Agreement.
Sewer services will be provided to the Development by the Eagle River Water
and Sanitation District. It is anticipated that the Developer’s rights under the Sewer Agreement
discussed above (see “Description of Proposed Services - Type of Improvements - Sewer”) will
be assigned to Traer Creek after its formation and organization.
C. Coordinated Services of the Districts.
As discussed throughout this Service Plan, the relationship between Traer Creek
as the Service District and The Village as the Financing District, will be established through the
proposed Construction and Financing Agreement, the Administrative Coordination Agreement
and the Operations and Maintenance Coordination Agreement (“IGAs”). The IGAs will specify
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the rights and responsibilities of Traer Creek to finance, own, operate, construct and maintain
facilities needed to serve The Village. The agreements establish the procedures and standards for
the approval of the design,set forth herein, it is acknowledged that during the term of the
Development Agreement the District’s operation and maintenance of the facilities. Additionally,
the agreements provide the procedures for coordinated financing, budgeting, and administrative
oversight and management.
D. Public Improvement Company.
The District anticipates that it will enter into agreements with The Village and a
public improvement company (“PIC”) for theobligations and the amount of funds available for
the District for such purposes of providing coordinated maintenance, administrative or other
services (“PIC Agreement”). It is anticipated that the PIC will assess a retail sales fee on are
subject to certain retail transactions occurring within the Development, a real estate transfer fee
on certain transfers of real property within limitations set forth in the Development and
accommodations/lodging fee on certain building accommodations within the Development (“PIC
Revenues”). The PIC Agreement will provide that all of the PIC Revenues (“Development
Revenues”) will be transferred to Traer Creek to assist in financing the necessary Improvements
for the Development.
E. Annexation and Development Agreement.
The Developer will enter into an Annexation and Development Agreement for the
Development, which Agreement shall be incorporated herein by this reference (“Annexation
Agreement”). The Annexation Agreement sets forth certain District rights and obligations,
including but not limited to, the payment of monies to the Town and the provisions for
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dissolution of the Districts. Upon their organization, Traer Creek and The Village shall assume
the District rights and obligations set forth in the Annexation Agreement.
Agreement, and it shall not be a material modification for the District to perform its
operations and maintenance functions within such limitations.15
IX. PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS
A. Intergovernmental Agreements.
The District is authorized to enter into such intergovernmental agreements as are
necessary and appropriate to the exercise of its powers under this Service Plan and are subject to
the limitations set forth in this Service Plan.16 As of February 1, 2012, the District had entered
into the intergovernmental agreements as more specifically identified in the list filed with the
Colorado Division of Local Government pursuant to Section 29-1-205, C.R.S., attached hereto as
Exhibit E. As required by statute, the District shall file an updated list of intergovernmental
agreements with the Colorado Division of Local Government on an annual basis. It shall not be
a material modification for the District to amend, supplement or terminate existing
intergovernmental agreements or enter into additional intergovernmental agreements as may be
necessary to implement its obligations under the Development Agreement or for other purposes
deemed to be in the best interests of the District as determined by its Board of Directors, so long
15 Harmonized with CARADA.
16 Responsive to E. Heil’s request for limitations on future IGAs and IGA amendments.
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as the District continues to comply with the annual reporting requirements of Section 29-1-205,
C.R.S.17
F.B. Voter Authorization.
To the extent necessary to comply with statutory and/or Constitutional
requirements for approval of debt or long--term financial obligations, the terms of the
aforementioned intergovernmental agreements (“Intergovernmental Agreements”) have been or
will be submitted to the electors of both Districts for approval. The Districts shall have the
authority to obtain the required voter authorization in order to exercise their rights and
obligations under such agreements and to enter into the Intergovernmental Agreements without
further approval of the Town.
X. FINANCIAL PLAN AND LIMITATIONS
A. General.
The Districts shall be authorized to provide for the planning, design, acquisition,
construction, installation, relocation and/or redevelopment of the Improvements from their
revenues and by and through proceeds of debt issued by the Districts, including advances from
the Developer, the aggregate amount of such debt not to exceed One Hundred Fifty-Eight
Million Dollars ($158,000,000) (“Total Debt Limit”).18 The Financial Plan for the Districts,
which displays proposed indebtedness for the Districts together with a schedule indicating the
17 Deleted paragraph is redundant with the description of the Construction and Financing Agreement in Article II.
Because a copy of the Construction and Financing Agreement is attached as Exhibit D, the deleted language is
unnecessary and potentially confusing/inaccurate.
18 Responsive to request from E. Heil.
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year or years in which the debt is scheduled to be issued as required by Section 32-1-202(2)(b),
C.R.S., is attached hereto as Exhibit F.19
Pursuant to the terms of the Construction and Financing Agreement, The Village
Metropolitan District shall be responsible for financing somemay finance a portion of the costs
of the Improvements for the Development through a pledge of tax revenues to Traer Creek
and/or through the issuance of General Obligation Bonds. It is anticipatedacknowledged that
initially Traer Creek will issueissued revenue bonds secured by various revenue sources,
including but not limited to, ad valorem tax revenue from The Village, development fees, the
Development Revenues, the Water Tap Fee Share, Incremental Water Fee, and the Incremental
Sewer Fee. The Financial Plan attached hereto as Exhibit E shows the anticipated revenue
sources available to the District and to The Village. The Financial Plan demonstrates how the
proposed facilities and/or services are to be financed, including but not limited to, the estimated
costs of engineering services, legal services, administrative services, proposed bond issuances
and estimated proposed maximum interest rates and discounts, and other major expenses related
to the organization and operation of the Districts. It demonstrates the issuance of revenue bonds
and the anticipated repayment based on the projected development within the boundariesrevenue
derived from privately imposed public improvement fees (“PIFs”) and other revenues, including
water tap fees. Other bonds may be issued to pay certain “District Debts” as defined in and in
accordance with the provisions of the Development Agreement during the term thereof. The
payment of District Debts, including the Districts’ pledge of tax revenues to the Upper Eagle
Regional Water Authority for financing construction of a water storage tank, pursuant to the
19 Responsive to request from E. Heil.
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requirements of the Development. The Plan also demonstrates how The Village will issue
general obligation bonds to finance the Improvements and/or refund Traer Creek’s outstanding
bonds. The Financial Plan demonstrates that, at various projected levels of development, the
Districts have the ability to finance the facilities identified herein, and will be capable of
discharging the proposed bonds on a reasonable basis. Agreement shall not constitute a material
modification of this Service Plan.20
Bonds soldDebt issued by Traer Creek will be revenue bonds (without a general
obligation pledge of Traer Creek) and shall be issued in the manner provided by Section 32-1-
1101 (1) (d), C.R.S. and shall never constitute debt or indebtedness of Traer Creek within the
meaning of any provision or limitation of the laws of Colorado or the state constitution and shall
not constitute nor give rise to a pecuniary liability of Traer Creek or charge against its general
credit or taxing powers. Bonds which entail the pledge of fee revenue derived from the payment
of fees pursuant to an agreement with the developer of the Property and with the pledge of
property within the boundaries of The Village as security for such obligation, shall require the
District to fully enforce the terms of the agreement for the benefit of the Bondholders, including
the pursuit of foreclosure proceedings on the pledged property. However, the District shall not
have the right to accelerate the payment of fees, and any foreclosure shall be only as to those
amounts then owing under the Agreement.., as may be amended from time to time. The exact
interest rates, discounts and their form will be determined at the time the bonds are soldsuch debt
is issued by Traer Creek, and will reflect market conditions at the time of sale.; provided,
however, that the issuance of bonds or incurrence of debt by Traer Creek during the term of the
20 Updated to reflect present realities and harmonize with CARADA.
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Development Agreement shall be subject to review and approval by the Town Manager to the
extent required by the Development Agreement. The primary source of revenues to Traer Creek
will be payments made to it pursuant to contracts with The Village, Eagle-Vail, the Authority,
Eagle River and the PIC. The Financial Plan anticipates revenues from these sources in the
amount of Two Hundred Nineteen Million One Hundred Ninety-Nine Thousand Nine Hundred
Ninety Eight Dollars ($219,199,998).the public improvement companies established by the
Developer to administer the PIFs and other governmental entities. It is projected that the
payments received from such contractual arrangements will be sufficient to pay for the operation
and maintenance of the facilitiesImprovements and to retire all bonds issued by Traer Creek.21
It is anticipatedThe Development Agreement provides that a total of Seventy Four
Million Three Hundred Fifty Thousand Dollars ($74,350,000) in on or before January 1, 2040,
Traer Creek may issue revenue bonds willand other indebtedness payable wholly or in part from
PIF revenue.22 Except as may be limited by the instruments pursuant to which District Debts are
issued by Traer Creek. It, it is anticipated that The Village willmay make a general obligation
pledge to Traer Creek and/or issue general obligation bonds in the total amount of Fourteen
Million Six Hundred Thirty-Three Thousand Two Hundred Twenty-Four Dollars ($14,633,224)
to assist in financing the improvements.as necessary to finance that portion of Traer Creek’s
indebtedness, which specifically includes repayment of bonds issued by the Upper Eagle
Regional Water Authority for construction of a water storage tank, not otherwise paid from other
sources of revenue. The total amount of bonds anticipated to be issued isduring and after the
21 Harmonized with CARADA.
22 The sole function of this sentence is to establish the authority of Traer Creek to issue bonds payable form PIF
revenue,. The deleted language was somewhat misleading and seems unnecessary. See also revisions to the
Financial Plan in Exhibit F, which more accurately explains the $96,000,000 Credit PIF Cap.
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term of the Development Agreement may be less than the total cost of the Improvements. In
order to finance and construct all the Improvements, it is anticipated that the Developer willmay
advance funds to the District for those Improvements not financed pursuant to revenue bonds
issued by Traer Creek and discussed above, and the District will issue subordinated Developer
bonds shall be authorized to repay Developer for such advances. The subordinated bonds with
interest, which during the term of the Development Agreement shall be payable only from
revenues in accordance with the terms and limitations of the Development Agreement.23 Any
Developer advance made after January 1, 2040, which is not fully repaid by the Districts within
forth (40) years of date of such advance shall cease accruing interest, unless otherwise required
for debt service on otherapproved by the Town Manager and subject to any applicable state
and/or federal laws.24
As set forth in the Development Agreement, unless the Developer requests the
Town to do so earlier, the Town shall not initiate or pursue any proceeding to dissolve Traer
Creek or The Village until after the earlier to occur of either: (a) the twenty-fifth (25th)
anniversary of the first issuance of bonds by either District or (b) such time as all infrastructure
improvements and public amenities contemplated in this Service Plan have been constructed and
no issued general obligations or revenue obligations of the Districts remain outstanding bonds or
for operations and maintenance expenses. Pursuant to the Annexation Agreement, the Town may
request that the Districts pursue with respect thereto. Any dissolution no sooner than twenty-five
years after the date of the court order creating them. To the extent any amounts shall be
23 Harmonized with CARADA.
24 Responsive to request from E. Heil.
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outstanding on the subordinated bonds at such time as the Districts are dissolved pursuant to of
either District shall be conducted in accordance with the provisions of the Annexation
Agreement, such amounts shall be deemed paid and the debt shall be extinguished. It is
anticipatedand procedures set forth in Sections 32-1-701, et seq., C.R.S., as in effect on
October 13, 1998.25
During the term of the Development Agreement, refunding of any District
indebtedness shall be in accordance with the terms of the Development Agreement.26 Any such
refundings (including refundings of Developer advances) shall not count against the Total Debt
Limit to the extent that Traer Creek will issue subordinated bonds to the Developer in the amount
of Sixty-Six Million Three Hundred Twenty-Five Thousand Dollars ($66,325,000). The District
may refund ( by exchange or otherwise) any of its subordinated obligations with obligations
having a lien on parity with outstanding revenue bonds of the District provided it will not exceed
the Total Debt Limit, as defined below, and the following conditions are met: 1) the refunding
bonds shall be investment grade rated; 2) Net Revenues of the District for the last two (2) audited
fiscal years shall have been sufficient to pay an amount representing not less than 150% of the
Combined Maximum Annual Principal and Interest Requirements of the outstanding revenue
bonds and the refunding bonds; and 3) the refunding bonds shall not have a maturity date
extending beyond December 31, 2031the indebtedness being refunded has already been counted
against the Total Debt Limit.
25 Harmonized with CARADA.
26 Harmonized with CARADA.
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The proposed Construction and Financing Agreement provides that The Village
will have a cap on its total obligation and its total annual obligation to either provide the
revenues or issue general obligations bonds for the Improvements. The Village shall only be
required to fund on an annual basis, that amount it would be capable of funding through tax
revenues resulting from the imposition of 50 mills (adjusted to take into account legislative or
constitutionally imposed adjustments in assessed values or the method of their calculation
occurring after 200227 so that to the extent possible the actual tax revenues generated by the mill
levy, as adjusted, are neither diminished nor enhanced as a result of such determination) against
the assessed value of the taxable property lying within the boundaries of The Village.
The combined debt of both The Village and Traer Creek, consisting of all general
obligation bonds, limited obligation bonds, revenue bonds, subordinated bonds, notes, contracts
or other obligations evidencing a borrowing, shall not exceed in the aggregate One Hundred
Fifty Eight Million Dollars ($158,000,000) (“Total Debt Limit”).the Total Debt Limit; provided,
however, that PIF revenue may only be utilized to pay bonds or other outstanding debt issued
prior to January 1, 2040, in an amount not in excess of net proceeds of Ninety-Six Million
Dollars ($96,000,000).28
The revenue bondsBonds issued by the District shall bear interest at a rate such
that the net effective interest rate of the issue of bonds does not exceed the maximum net
effective interest rate authorized, payable semiannually or annually.. The resolution authorizing
the issuance of such bonds shall specify the maximum net effective interest rate. Such bonds
27 Requested by District Bond Counsel.
28 Harmonized with CARADA.
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may be issued in one or more series, may bear such date, may mature at such time not exceeding
the estimated life of the improvements as determined by Traer Creek Board, but in no event
beyond forty years from their respective dates, may be in such denominations, may be payable in
such medium of payment, such place within or without the state, including but not limited to the
office of any county treasurer in which the District is located wholly or in part, may carry such
registration privileges, may be subject to such terms of redemption in advance of maturity in
such order or by lot or otherwise at such time without or without a premium , may be executed in
such manner, may bear such privileges for reissuance in the same or other denominations, may
be so reissued, without modification of maturities and interest rates, and may be in such form, as
may be provided by the Traer Creek Board of Directors.
The Districts may capitalize interest to permit payment of interest during the time
lapse between development of properties and collection of fees, rates, tolls and charges. Interest
income through the reinvestment of construction funds will provide additional income. The
projected revenue sources will retire the proposed bonds if growth occurs as projected; otherwise
increases in and/or the imposition of new rates, tolls, fees and charges may be necessary.
B. General Obligation Bonds.29
If the District determines to issue general obligation bonds, such bonds may be
issued subject to the following limitations:
1. TheFor any portion of the aggregate District’s debt which exceeds fifty
percent (50%) of the District’s assessed valuation, the “Maximum Debt Mill Levy” for such
29 This Section B has been revised to more accurately and completely describe (i) the Maximum Debt Service Mill
Levy, (ii) the circumstances under which and limitations applicable to adjustment of the rate of the Maximum Debt
Service Mill Levy and (iii) the circumstances under which the Maximum Debt Service Mill Levy would not apply
and the effect of same.
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portion of debt shall be fifty (50) mills less the number of mills necessary to pay unlimited mill
levy pledged for repayment of the Bonds (together with the debt described in subsection 2
below; provided that if, on or after January 1, 2002, there are changes in the method of
calculating assessed valuation or any constitutionally mandated tax credit, cut or abatement, the
mill levy pledge on any other general obligations of the limitation applicable to such debt may be
increased or decreased to reflect such changes, such increases or decreases to be determined by
the District) will not exceed 50 mills (adjusted to take into account legislative or constitutionally
imposed adjustments in assessed values or the method of their calculation Board of Directors in
good faith (such determination to be finding and final) so that to the extent possible, the actual
tax revenues generated by the mill levy, as adjusted for changes occurring on or after January 1,
2002, are neither diminished nor enhanced as a result of such determination) (the “Mill Levy
Cap”); andchanges. For purposes of the foregoing, a change in the ratio of actual valuation shall
be deemed to be a change in the method of calculating assessed valuation.
2. The Bonds must qualify as one of the following types of bond issuances:
2. any issue of Bonds registered under the For the portion of any aggregate
District debt which is equal to or less than fifty (50%) of the District’s assessed valuation, either
on the date of issuance or at any time thereafter, the mill levy to be imposed to repay such
portion of debt shall not be subject to the Maximum Debt Mill Levy and, as a result, the mill
levy may be such amount as is necessary to pay the debt service on such debt, without limitation
of rate. For the purposes of the foregoing, the District may provide that such debt shall remain
secured by such unlimited mill levy, notwithstanding any subsequent change in the District’s
debt to assessed ratio.
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(a) All debt issued by the District must be issued in accordance with
the requirements of the Colorado Municipal Bond Supervision Act, or
(b) any issue of general obligation bonds where the total obligation
represented by the issue together with any other general obligation of the District does not at the
time of issuance exceed the greater of two million dollars or fifty percent of the valuation for
assessment of the taxable property in the district as certified by the assessor; or
(c) any issue of Bonds that is rated in one of its four highest rating
categories by one or more nationally recognized organizations which regularly rate such
obligations; or
(d) any issue of Bonds in which infrastructure is in place which has
been determined by the Board of the District to be necessary to construct or otherwise provide
additional improvements specifically ordered by a federal or state regulatory agency to bring the
District into compliance with applicable federal or state laws or regulations for the protection of
the public health or the environment if the proceeds raised as a result of such issue are limited
solely to the direct and indirect costs of the construction or improvements mandated and are used
solely for those purposes; or
(e) any issue of Bonds secured as to the payment of the principal and
interest on the debt by a letter of credit, line of credit, or other credit enhancement, any of which
must be irrevocable and unconditional, issued by a depository institution:
(i) with a net worth of not less than ten million dollars in
excess of the obligation created by the issuance of the letter of credit, line of credit, or other
credit enhancement;
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(ii) with the minimum regulatory capital as defined by the
primary regulator of such depository institution to meet such obligation; and
(iii) where the obligation does not exceed ten percent of the
total capital and surplus of the depository institution, as those terms are defined by the primary
regulatory of such depository institution; or
(f) any issue of Bonds insured as to the payment of the principal and
interest on the debt by a policy of insurance issued by an insurance company authorized to do
business as an insurance company in the State of Colorado and authorized for such risk by the
insurance commissioner appointed pursuant to Section 10-1-104, C.R.S.; or
(g) any issue of Bonds not involving a public offering made
exclusively to accredited investors, as that term is defined under sections 3(b) and (4)(2) of the
federal “Securities Act of 1933” by regulation adopted thereunder by the securities and exchange
commission; or
(h) any issue of Bonds made pursuant to an order of a court of
competent jurisdiction; or
(i) any issue of Bonds which are issued in denominations of not less
than $500,000 each, in integral multiples not less than $1,000, provided that in the event a bond
is partially redeemed by the District and the unredeemed portion is less than $500,000, such
unredeemed portion of such bond may be issued in the largest possible denomination of less than
$500,000, integral multiples of not less than $1,000; or
(j) any issue of Bonds which are issued to the Developer, subject to
remarketing the Bonds pursuant to the limitations set forth herein.
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C. Projections of Assessed Valuation. . For purposes of developing the Financial
Plans set forth herein, it was assumed that residential units within the Development would be
developed and assessed at various percentages depending upon the year of construction. It is also
assumed that the assessed valuation will be realized one year after construction and that tax
collections will be realized two years after initial construction.
D.C. Cost Summary and Bond Development. . The Financial Plan reflects. Not less
than twenty (20) days prior to issuance of any bonds, the District will prepare and submit to the
Town for administrative review, but not approval, an updated Financial Plan reflecting the
estimated amount of bonds to be sold and fees to be imposed to finance the completion,
construction, acquisition and/or installation of the proposed facilities, including all costs and
expenses related to the anticipated bond issuances. The amount of bonds actually sold will be
based upon the final engineering estimates and/or actual construction contracts. Organizational
costs, including but not limited to, legal fees, and capitalized engineering costs, are to be paid
from the proceeds of the each bond issue. The interest rates as set forth in the Financial Plan are
based upon the advice of Bigelow & Company.
The Financial Plan projects the anticipated flow of funds and are Such Financial Plan will
project the anticipated flow of funds and will be based upon estimates of construction and project
needs for bond proceeds to finance the proposed improvements., and set forth a reasonable
estimate of growth within the Development. The Districts’ engineer has evaluatedwill evaluate
the timing and cost estimates of theany proposed improvements which are necessary to support
the proposed absorptions of development as projected in the Financial Plan and has concurred
with the assumptions. The Financial Plan sets forth the most reasonable estimate of growth
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within the Development.any updated Financial Plan, which will be subject upon the Districts’
engineer’s concurrence with the assumptions. The District is authorized to pay organizational
costs, including but not limited to, legal fees, and capitalized engineering costs, from the
proceeds of bonds. As required by Section 32-1-202(2)(b), the District shall notify the Town of
any alteration or revisions of the proposed schedule of debt issuance set forth in the Financial
Plan.30
E. Operations. Annual administrative, operational and maintenance expenses are
estimated as shown in the Financial Plan. The Financial Plan projects that Traer Creek will have
sufficient revenue to pay for the ongoing operations and maintenance expenses of the Districts.
If necessary, however, Traer Creek and The Village reserve the right to supplement these
revenues with additional revenue sources as permitted by law.
The Town shall not be held liable for any of the District’s obligations as set forth
in this Service Plan.
XI. MATERIAL MODIFICATION
Pursuant to Town Ordinance No. 12-10, which amended Chapter 18 of the Municipal
Code to state that certain provisions concerning material modification do not apply to the District
and in accordance with Section 4.2(f) of the Development Agreement, definitions, requirements
or procedures concerning the determination of material modification as applied to the District
shall not be inconsistent with, more rigorous than or otherwise more expansive than the scope of
30 Responsive to request from E. Heil.
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such determination as set forth in the Special District Control Act, as the same may be amended
from time to time.
XI.XII. CONCLUSION
It is submitted that this Service Plan for the proposed Traer Creek Metropolitan District
establishes that:
1. There is sufficient existing and projected need for organized service in the area to
be serviced by the proposed District;
2. The existing service in the area to be served by the proposed District is inadequate
for present and projected needs;
3. The proposed District is capable of providing economical and sufficient service to
the Development;
4. The area to be included in the proposed District does have, and will have, the
financial ability to discharge the proposed indebtedness on a reasonable basis;
5. Adequate service is not, and will not be, available to the area through the County,
the Town or other existing municipal or quasi-municipal corporations, including existing special
districts, within a reasonable time and on a comparable basis;
6. The facility and service standards of the proposed District are compatible with the
facility and service standards of the Town within which the proposed special district is to be
located and each municipality which is an interested party under Section 32-1-204(1), Colorado
Revised Statutes;
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7. The proposal is in substantial compliance with a master plan adopted pursuant to
Section 30-28-106, C.R.S.; and
8. The proposal is in compliance with any duly adopted Town, County, regional, or
state long-range water quality management plan for the area; and
9. The creation of the proposed District is in the best interests of the area proposed
to be served.
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EXHIBIT B
District Boundary and Vicinity Map
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EXHIBIT C
Description of Facilities and Costs
PRIORITIZED CAPITAL PROJECTS LIST
AND COST ESTIMATES
Item
Lot 1
East Beaver
Creek Blvd.
Lot 1
Main Street
Lot 1
North/South
Roads (2)
Planning Area J
(east) East/West
Road
General Conditions 750,000 715,000 560,000 280,000
Demolition 39,825 1,726,900 166,650 266,675
Earthwork 1,108,275 119,685 123,390 187,440
Roadway 1,630,990 1,349,930 393,310 719,465
Utilities 894,300 1,129,900 227,600 356,800
Erosion Control 27,000 27,000 16,600 9,500
Landscaping 340,238 311,890 128,800 180,050
Electrical & Lighting 347,280 289,400 115,760 185,216
Roundabouts 000 2,000,000 000 000
Subtotal 5,137,908 7,669,705 1,732,110 2,185,146
20% Contingency 1,027,582 1,533,941 346,422 437,029
Total 6,200,000 9,200,000 2,100,000 2,600,000
NOTE: The foregoing Prioritized Capital Projects List does expand or limit the Improvements
the Districts are authorized to finance and construct, but is provided for illustrative
purposes only and does not bind the Districts to construct any particular Impvoement.
The actual Improvements, phasing and costs of Improvements the Districts may
construct shall be in accordance with the applicable provisions of the Service Plan
including the requirement that such Improvements be constructed in accordance with
one or more administratively approved Public Improvement Agreements.
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EXHIBIT D
District Facilities Construction and Financing Agreement
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EXHIBIT E
List of Intergovernmental Agreements
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EXHIBIT F
Financial Plan
Existing & Proposed Indebtedness Amount Year of Issue
Variable Rate Revenue Bonds, Series 2002 $35,300,000 2002
Variable Rate Revenue Bonds, Series 2004 $16,800,000 2004
Past Developer Advances $12,047,736 Incurred prior to 2013 on dates of
instruments creating the obligations Avon Receivable $3,522,309
Water Tank Bonds Pledge Agreement* $9,000,000 2013
TCMD Contributions to Asphalt Overlay Account** (TBD) 2013
Additional Bonds *** $81,329,955 After 2013
Total $158,000,000
* Precise amount to be established at the time the Water Tank Bonds are issued.
** Under the Development Agreement, TCMD’s contributions to the Asphalt Overlay Account for calendar years
2013-2017is $40,000 per year and thereafter is $75,000 per year until the earlier to occur of (i) 80,000 square
feet of additional commercial development have been issued a certificate of occupancy or (ii) total annual
Taxable Transactions have increased by at least $20,000,000 over 2011 Taxable Transactions. Accordingly,
the amount of the Total Debt Limit utilized by TCMD contributions to the Asphalt Overlay Account cannot be
determined until termination of the obligation to make annual payments.
*** The remaining amount of the Total Debt Limit available for additional bonds will be adjusted upon
determination of the actual amount of(i) the Water Tank Bonds and (ii) the Asphalt Overlay Account
contribution obligation.
NOTES:
1. Capitalized terms used in this Exhibit F (including the Notes hereto), but not defined in elsewhere in the
Service Plan, shall have the meanings ascribed to them in the Development Agreement.
2. The table above is illustrative only, and changes in the actual principal amounts to be counted against the
Total Debt Limit and timing of issuance of such debts shall not constitute material modifications of the
Service Plan. Nor shall it be a material modification of the Service Plan for the District to issue debt up to
the Total Debt Limit, so long as any such issuance complies with applicable requirements of the Service
Plan.
3. Section 6.2 of the Development Agreement provides that the amount of the following District obligations
to which PIF Revenues can be pledged is $96,000,000 (the “Credit PIF Cap”). It is noted that the amounts
to be counted against the Credit PIF Cap pursuant to the Development Agreement may be different than the
principal amount to be counted against the Total Debt Limit pursuant to this Service Plan.
Original principal amount of TCMD Series 2002 and Series 2004 Bonds $52,100,000
The Net Proceeds of the Tank Project Bonds* $9,000,000
Net Proceeds of Past Developer Advances $12,047,736
Net Proceeds of Supplemental Bonds issued on or before January 1, 2040, and, if any,
Capital Project Costs that Traer Creek funds directly from Credit PIF Revenues** $22,852,264
Total $96,000,000
* Precise amount to be established at the time the Water Tank Bonds are issued.
** May be increased to the extent Net Proceeds of Tank Project Bonds are less than $9,000,000; may be
decreased to the extent that the Avon Urban Renewal Authority issues bonds, subject to a maximum
amount of $10,000,000.
Res. 13-03 Approving the First Amended and Restated Service Plan for VMD
13-01-16 MVH
TOWN OF AVON
RESOLUTION NO. 13-03
Series of 2013
A RESOLUTION APPROVING THE FIRST AMENDED
AND RESTATED SERVICE PLAN FOR THE VILLAGE
METROPOLITAN DISTRICT
WHEREAS, on October 7, 2011 Traer Creek Plaza, LLC, the Town of Avon, Traer Creek
Metropolitan District, and other parties entered into the Settlement Term Sheet (“Settlement
Term Sheet”) in an effort to resolve pending litigation No. 2008 CV 385 and 2010 CV 316,
Eagle County District Court;
WHEREAS, the Avon Town Council approved the Service Plan for The Village Metropolitan
District on August 25, 1998 by Resolution 1998-51;
WHEREAS, pursuant to §32-1-204.5 C.R.S. and Title 18 of the Avon Municipal Code, the
Avon Town Council is the approving authority and is required to review any service plan with
reference to need, service, and financial feasibility;
WHEREAS, public hearings were held on January 22, 2013 and February 26, 2013 in
accordance with the procedures outlined in Title 18 of the Avon Municipal Code; and
WHEREAS, the Avon Town Council has reviewed the First Amended and Restated Service
Plan and related exhibits and has determined that it meets the conditions necessary under §32-1-
202(2), C.R.S. and Title 18 of the Avon Municipal Code for approval.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the First Amended and Restated Service Plan for The Village Metropolitan
District, attached hereto as Exhibit A, is hereby approved by the Town of Avon subject to the
terms and conditions of the Receipt and Escrow Agreement Pertaining to The Village (at Avon)
Settlement Implementation.
ADOPTED February 26, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
APPROVED AS TO FORM:
By:_________________________________
Eric J. Heil, Town Attorney
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FIRST AMENDED AND RESTATED SERVICE PLAN
FOR
THE VILLAGE
METROPOLITAN
DISTRICT
(AVON, COLORADO)
APPROVED _____________, 20____AUGUST 25, 1998
Prepared by: McGEADY SISNEROS, P.C.
450 E. 17TH AVENUE1675 BROADWAY, SUITE
4002100
DENVER, COLORADO 8020380202
(303) 592-4380
BIGELOW & COMPANY
1401 SEVENTEENTH STREET, SUITE 1300
DENVER, CO 80202
(303) 292-5900
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TABLE OF CONTENTS
Page
I.
INTRODUCTION ...............................................................................................................1
II.
PURPOSE OF THE DISTRICT ..........................................................................................3
III.
DISTRICT BOUNDARIES/MAPS .....................................................................................6
IV.
PROPOSED LAND USE/POPULATION PROJECTIONS ...............................................6
V.
DESCRIPTION OF PROPOSED SERVICES ....................................................................7
A.
Types of Improvements. ..........................................................................................8
1.
Streets ...........................................................................................................9
2.
Safety Protection ........................................................................................10
3.
Park and Recreation ...................................................................................10
4.
Transportation ............................................................................................11
5.
Mosquito Control .......................................................................................12
6.
Television Relay and Translation ..............................................................12
7.
Water ..........................................................................................................12
8.
Sanitation ...................................................................................................15
9.
Fire Protection ............................................................................................17
10.
Other Powers ..............................................................................................18
(a)
Plan Amendments ..........................................................................18
(b)
Phasing, Deferral ............................................................................18
(c)
Additional Services ........................................................................18
B.
Standards of Construction/Statement of Compatibility. ........................................18
C.
Facilities to be Constructed and/or Acquired. ........................................................21
VI.
ASSESSED VALUATION ...............................................................................................21
VII.
ESTIMATED COSTS OF FACILITIES ...........................................................................22
VIII.
OPERATION AND MAINTENANCE/ESTIMATED COSTS ........................................23
IX.
PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS ................24
A.
Intergovernmental Agreements. .............................................................................24
B.
Voter Authorization. ..............................................................................................27
X.
FINANCIAL PLAN AND LIMITATIONS ......................................................................27
A.
General. ..................................................................................................................27
B.
General Obligation Bonds. .....................................................................................35
C.
Cost Summary and Bond Development .................................................................40
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XI.
MATERIAL MODIFICATION .........................................................................................41
XII.
CONCLUSION ..................................................................................................................42
INTRODUCTION ...........................................................................................................................1
PURPOSE OF THE DISTRICT ......................................................................................................2
PROPOSED DISTRICT BOUNDARIES/MAPS ...........................................................................4
PROPOSED LAND USE/POPULATION PROJECTIONS ...........................................................4
DESCRIPTION OF PROPOSED SERVICES ................................................................................5
A.
Types of Improvements. ......................................................................................................6
1.
Streets .......................................................................................................................6
2.
Safety Protection ......................................................................................................7
3.
Parks and Recreation ................................................................................................7
4.
Transportation ..........................................................................................................8
5.
Mosquito Control .....................................................................................................8
6.
Television Relay and Translation ............................................................................9
7.
Water ........................................................................................................................9
8.
Sanitation ...............................................................................................................11
9.
Fire Protection ........................................................................................................12
10.
Other Powers ..........................................................................................................13
(a)
Plan Amendments ......................................................................................13
(b)
Phasing Deferral .........................................................................................13
(c)
Additional Services ....................................................................................13
B.
Standards of Construction/Statement of Compatibility. ....................................................13
C.
Facilities to be Constructed and/or Acquired. ....................................................................16
ASSESSED VALUATION ...........................................................................................................16
ESTIMATED COSTS OF FACILITIES .......................................................................................16
OPERATION AND MAINTENANCE/ESTIMATED COSTS ....................................................17
PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS ............................18
A.
Water Service Agreement. .................................................................................................18
B.
Sewer Service Agreement. .................................................................................................18
C.
Coordinated Services of the Districts. ...............................................................................18
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D.
Public Improvement Company. .........................................................................................19
E.
Annexation and Development Agreement. ........................................................................19
F.
Voter Authorization. ..........................................................................................................20
FINANCIAL PLAN AND LIMITATIONS ..................................................................................20
A.
General. ..............................................................................................................................20
B.
Mill Levy ...........................................................................................................................24
C.
Projections of Assessed Valuation .....................................................................................27
D.
Cost Summary and Bond Development .............................................................................28
E.
Operations ..........................................................................................................................28
CONCLUSION ..............................................................................................................................29
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EXHIBIT A Legal Description of Property
EXHIBIT B District Boundary and Vicinity Map
EXHIBIT C List of Prioritized Capital ProjectsDescription of Facilities and
Costs
EXHIBIT D-1 Street and Safety Protection Improvements
EXHIBIT D-2 Park and Recreation Improvements
EXHIBIT D-3 ater and Sanitation Improvements
EXHIBIT E Financial Plan for The Village Metropolitan District and Traer
Creek Metropolitan District
EXHIBIT F District Facilities Construction and Financing Agreement
EXHIBIT E List of Intergovernmental Agreements
EXHIBIT F Financial Plan
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FIRST AMENDED AND RESTATED
SERVICE PLAN FOR
THE VILLAGE
THE VILLAGE
METROPOLITAN DISTRICT
INTRODUCTION
This First Amended and Restated Service Plan for The Village Metropolitan District
(“Service Plan”) amends and restates in its entirety that certain Service Plan for The Village
Metropolitan District (“The Village” or “District”) approved by the Town of Avon, Colorado
(the “Town”) on August 25, 1998 (the “Original Service Plan”). The amendments contained
herein are necessary to implement the settlement of certain legal claims asserted by and against
Traer Creek Metropolitan District (“Traer Creek”) in consolidated Case No. 2008 CV 385 (the
“Litigation”) and, more particularly, to implement the terms of that Consolidated, Amended and
Restated Annexation and Development Agreement made and entered as of ________, 2012, as
may be supplemented or amended from time to time (the “Development Agreement”). The use
herein of certain defined terms from and references to certain requirements set forth in the
Development Agreement are for the purposes of assuring consistency between the Development
Agreement and this Service Plan. However, nothing herein shall be construed as incorporating
the Development Agreement into this Service Plan or this Service Plan into the Development
Agreement. The Village and the Town agree that in implementation of the Development
Agreement, this Service Plan and the Town’s resolution approving same shall be subject to the
terms and conditions of that certain Receipt and Escrow Agreement Pertaining to The Village (at
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Avon) Settlement Implementation entered into and effective as of ___________, 2012, to which
Traer Creek is a Party (the “Escrow Agreement”) and shall constitute Settlement Implementation
Documents as defined in the Escrow Agreement.
Pursuant to the requirements of the Special District Control Act, Section 32-1-
201, et seq., Colorado Revised Statutes, this Service Plan consists of a financial analysis and an
engineering plan showing how the proposed facilities and services of The Village and Traer
Creek ( collectively, the “Districts”) mayMetropolitan District (“The Village” or “District”) will
be provided and financed. The following items are included in this Service Plan:1
1. A description of the proposed services;
2. A financial plan showing how the proposed services are to be financed,
including the proposed operating revenue derived from property taxes for the first budget year of
the District;
3. A preliminary engineering or architectural survey showing how the
proposed services are to be provided;
4. A map of the proposed District boundaries and an estimate of the
population and valuation for assessment of the proposed District as of the date this Service Plan
was submitted to the Town;
1 The intent of amendments herein is to change future tense to present tense.
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5. A general description of the facilities to be constructed and the standards
of construction, including a statement of how the facility and service standards of the
Districts proposed District are compatible with facility and service standards of the Town; of
Avon, Colorado (“Town’);
6. A general description of the estimated cost of acquiring land, engineering
services, legal services, administrative services, initial and proposed indebtedness and estimated
proposed maximum interest rates and discounts, and other major expenses related to the
organization and initial operation of the Districtsproposed District; and
7. A description of any arrangement or proposed agreement with any
political subdivision for the performance of any services between the proposed District and such
other political subdivision, and if applicable a form of the agreement is attached hereto.
PURPOSE OF THE DISTRICT
Services are planned towill be provided to the approximately 1,7891789-acre The
Village (at Avon) development (the “Development”) by two or more metropolitan districts which
will be created pursuant to Section 32-1-101, et seq.,. C.R.S. The two districts that have been
created for this purpose arewill be named The Village Metropolitan District (“The Village” or
“District”) and Traer Creek Metropolitan District and The Village Metropolitan District, and
additional districts may be organized as set forth in Section 6.19 of the Development Agreement.
(“Traer Creek”). The two Districts will coordinate their efforts in order to provide public services
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to the Development in the most efficient manner possible. Traer Creek will be responsible for
managing the construction and operation of the public facilities and improvements within the
Development, and for providing funding to support costs related to the necessary services and
improvements. The Village Metropolitan District will be responsible for providing funding
needed to support costs related to the necessary services and improvements for the Development
utilizing the tax base from the Development. It is anticipated that the Districts have enteredwill
enter into anseveral intergovernmental agreementagreements which clarifieswill clarify the
nature of the functions and services that each District will provide. The purpose of the
agreement isagreements will be to assure the orderly provision of services and improvements to
the Development.
Traer Creek iswill be deemed to be the “Service District” organized to finance,
construct, own, manage and operate the public improvements throughout the Development. The
Village has beenwill be organized as the “Financing District” in order to generate revenue to pay
a portion of the costs of the public infrastructure and services. This dual district structure is
proposed because it provides several benefits to the inhabitants of the Development and the
Town. The intent of the Dual districts is towill assure that: 1) the necessary services and
improvements can be financed in the most favorable and efficient manner, 2) all the services and
improvements needed for the Development will be available when needed through managed
development, and 3) a uniform mill levy and reasonable tax burden on all residential and
commercial property within the DistrictsDistrict is maintained through managed financing and
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coordinated completion of infrastructure improvements. By providing for2 all construction and
maintenance through the Service District, pursuant to the proposed District Facilities Funding,
Construction and OperationsFinancing Agreement, dated attached hereto as of July 31, 2001, as
amended on March 4, 2002, as the same may be amended or supplemented from time to
timeExhibit F (“Construction and Financing Agreement”), which Construction and Financing
Agreement is attached hereto as Exhibit D, it is intended that the Districts and the Development
will have continuity of construction management and will adapt Development construction to
meet infrastructure construction and maintenance so that3 the most efficient and effective use of
the Districts’ financial and other resources may beis achieved.4
The proposed structure will provide that the construction and operation of
improvements will be administered by the Board of Directors of Traer Creek. This will facilitate
a well-planned financing effort of construction and will assist in assuring coordinated extension
of services to all areas of the Development.
The Village Metropolitan District will be empowered to provide: (1) street
improvements, (2) water improvements, (3) sewer improvements, (4) parks and recreation, (5)
safety protection, (6) transportation, (7) mosquito control, (8) television relay and translation, (9)
fire protection, and any other services that may be provided by a metropolitan district to the
2 Deleted “all” because Traer Creek will not be coordinating construction and maintenance of all Public
Improvements and the allocation of responsibilities is subject to documents/instruments other than the Construction
and Financing Agreement, most particularly the Development Agreement.
3 Deleted “the most” to eliminate subjective concepts that are not necessary to avoid future conflicts and
controversy.
4 Deleted paragraph was conceptually redundant with the preceding paragraph, which we believe adequately
describes the purpose of the Construction and Financing Agreement in more precise terms.
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entire Development (“Service Area”), which includes property within Traer Creek Metropolitan
and without the boundaries of the District, and other properties which contract for service
(“Future Service Areas”), as determined by the District’s Board of Directors to be in the best
interest of the District. The District is expected to finance the construction of the aforementioned
services and facilities for the Development as described in this Service Plan.
PROPOSED DISTRICT BOUNDARIES/MAPS
The area to be served by the proposed District is located entirely within the Town
of Avon, and is approximately 1,7891789 acres. (the “Property”), A legal description of the
Property within the present boundaries of the District is attached hereto as Exhibit A. A map of
the boundaries and vicinity of the District is attached as Exhibit B.
PROPOSED LAND USE/POPULATION PROJECTIONS5
The Amended and Restated Village (at Avon) Sketch/PUD Guide for the
Development and the Development Agreement, as the same may be supplemented or amended
from time to time (collectively, the “Development Plan”), (the “Development Plan”) identifies
zoning of the Development17 Planning Areas expected to be zoned for mixed-use purposes,
including but not limited to, retail, office, hotel and residential development. The Development is
not presently served with the facilities and/or services proposed to be provided by the proposed
5 All proposed amendments to Article IV are subject to review and confirmation by the Developer or its legal
counsel.
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District, nor does the Town nor any other special district have any plans to provide such services
within a reasonable time and on a comparable basis. At an estimated three to four persons per
full-time residence, this would result in a resident population of approximately __________3,379
persons based upon presentproposed zoning. Of the 2,400267 residential units anticipated to be
constructed, fifty-one percent are anticipated to be occupied by full-time residents. The
Development also anticipates approximately 400 hotel rooms, and 825750,000 square feet of
commercial and office space. In order to facilitate the development of the properties within
Traer Creek and The Village as planned, organized provision of facilities and services proposed
to be provided by the Districtsproposed District will be necessary.
It is anticipated that the District’s boundaries will change from time to time as it
undergoes inclusions and exclusions pursuant to parts 4 and 5 of Article 1, Title 32, C.R.S. The
District shall not approve the inclusion of any property within the District without the prior
written consent of the Town, which consent shall not be unreasonably withheld.
DESCRIPTION OF PROPOSED SERVICES
The following paragraphs provide a description of the proposed services which
the District will be empowered to provide.
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A. Types of Improvements.
The District shall have the authority to provide for the design, acquisition,
construction, installation, and financing of certain water, sanitation, street, safety protection, park
and recreation, transportation, television relay and translation, fire protection, and mosquito
control improvements and services within and without the boundaries of the District (the
“Improvements”). . This Service Plan describes those improvements anticipated to be
constructedfor construction by Traer Creek and financed by the DistrictsTraer Creek and The
Village, which improvements benefit the Development. A general description of each type of
improvement and service which may be provided by the District follows this paragraph. Without
expanding or limitingAdditionally, Exhibit C lists each type of improvement planned to be
provided by the scope of Districts for the Development, the phasing of construction of such
facilities, and the costs in current dollars (“Improvements the District”). An explanation of the
methods, basis, and/or assumptions used to prepare the above estimates is otherwise authorized
to finance, construct, operate and maintain, certain also included in Exhibit C. The
Improvements generally depicted and described in Exhibit D have been identified as having
particularly high value in supporting and encouraging development (the “Prioritized Capital
Projects”). A list of the Prioritized Capital Projects and their estimated costs in 2012 dollars is
attached hereto as Exhibit C. presented for illustration only, and the exact design, subphasing of
construction and location of the Improvements, including the Prioritized Capital Projects, will be
determined pursuant to administrative approval of “Public Improvement Agreement(s)” as
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defined in the Development Agreement6at the time of platting and such decisions shall not be
considered to be a material modification of the Service Plan. Any Improvements shall be
undertaken and proceed in accordance with the timing and conditions of an administratively
approved Public Improvement Agreement, and it shall not be a material modification of the
Service Plan for the District to finance and/or construct any Improvement in accordance with an
administratively approved Public Improvement Agreement, whether or not such Improvement is
specifically described in this Service Plan or Exhibit C.7
1. Streets. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation and/or operation and maintenance of
street improvements, including but not limited to, curbs, gutters, culverts, and other drainage
facilities, sidewalks, equestrian trails, bike paths and pedestrian ways, pedestrian overpasses,
retaining walls, bridges, overpasses, interchanges, parking areas, parking facilities, median
islands, paving, lighting, grading, landscaping and irrigation, snow removal equipment, ski ways,
ski bridges, tunnels, elevated promenades, heated plazas and walks, exterior escalators, and all
necessary, incidental, and appurtenant facilities, land and easements, together with extensions of
and improvements to said facilities within and without the boundaries of the proposed District.
Street improvements dedicated toIt is anticipated that the Town shall be operatedwill own and
maintainedmaintain the public streets within the District. In addition, it is anticipated that
following acceptance by the Town. It is acknowledged that the Colorado Department of
Transportation has accepted, owns and maintains(“CDOT”), the interchange improvements.
6 Need to confirm with Developer or its legal counsel to make sure this is consistent with the current
Development Plan.
7 Harmonized with CARADA.
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Street improvements not dedicated to the Town or other jurisdiction may be operated will be
owned and maintained by Traer Creek, the District, or an association of landowners within the
Development.8CDOT.
All streetscaping improvements will be maintained by the District, or an
association of landowners within the Development, or both.
2. Safety Protection. The proposed District shall have the power to provide
for the acquisition, construction, completion, installation and/or operation and maintenance of
facilities and/or services for a system of traffic and safety controls and devices on streets and
highways, including but not limited to, signalization, signage and striping, area, identification,
driver information, and directional assistance signs, entry monumentation, access gates and
alarm systems, and all necessary, incidental, and appurtenant facilities, land and easements,
together with extensions of and improvements to said facilities within and without the
boundaries of the proposed District. Following acceptance, all safety protection improvements
will be transferred to the Town for ownership and maintenance.
3. ParkParks and Recreation. The proposed District shall have the power to
provide for the design, acquisition, construction, completion, installation, operation and
maintenance of parks and recreational facilities and programs, including, but not limited to,
parks, hiking and snowshoe trails, equestrian trails, bike paths and pedestrian ways, open space,
landscaping, cultural activities, community recreational centers, water bodies, swimming pools
8 Harmonized with CARADA.
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and spas, tennis courts, public fountains, skating areas and facilities, exercise facilities,
pedestrian bridges and malls, botanical gardens, sculpture and artworks, ski-ways and snow
making equipment therefor, picnic and common areas, weed control, outdoor lighting, events
facilities, lakes, stream system and stream bridges, irrigation facilities, and other active and
passive recreational facilities and programs, and all necessary, incidental and appurtenant
facilities, land and easements, together with extensions of and improvements to said facilities
within and without the boundaries of the District. It is anticipated that the park and recreation
improvements dedicated to the Town shallwill be operated and maintained by the Town. Park
and recreation improvements not dedicated to the Town or other jurisdiction may be operated
and maintained by Traer Creek, the District, or an association of landowners within the
Development.9.
4. Transportation. The proposed District shall have the power to provide for
the design, acquisition, construction, completion, installation, operation and maintenance of a
system to transport the public by bus, rail, gondola, automobile, cable liner, chairlift or any other
means of conveyance, or combination thereof, or pursuant to contract, including but not limited
to, park and ride facilities and parking lots, structures, roofs and covers, terminal buildings, and
facilities, and all necessary, incidental and appurtenant facilities, land and easements, together
with all necessary extensions of and improvements to said facilities or systems within and
without the boundaries of the District. It is anticipated that transportation improvements
constructed by or dedicated to the Town shallwill be operated and maintained by the Town.
9 Harmonized with CARADA.
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Transportation improvement not dedicated to the Town or other jurisdiction may be operated and
maintained by Traer Creek, the District, or an association of landowners within the
Development.10 .
5. Mosquito Control. The proposed District shall have the power to provide
for the eradication and control of mosquitoes, including but not limited to, elimination or
treatment of breeding grounds and purchase, lease, contracting or other use of equipment or
supplies for mosquito control within and without the boundaries of the District.
6. Television Relay and Translation. The proposed District shall have the
power to provide for the design, acquisition, construction, completion, installation, operation and
maintenance of television relay and translation facilities, cable and communication facilities,
fiber optic conduit network, together with all necessary, incidental and appurtenant facilities,
land and easements, and all necessary extensions of and improvements to said facilities within
and without the boundaries of the District.
1. Water. Traer Creek may undertake, on its own or pursuant to a contract
with a third party, the establishment, operation and maintenance of a cable television and
communication system utilizing translator and relay facilities. The exact configuration of the
projected television relay improvements is not currently known, but will depend upon the actual
pace and scope of the construction within the District.
10 Harmonized with CARADA.
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7. Water. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation, operation and maintenance of a
complete potable and nonpotable water supply, purification, storage, transmission and
distribution system, which may include, but shall not be limited to, water rights, water supply,
reservoirs, wells, water pumps, purification plants, pump stations, transmission lines, distribution
mains and laterals, fire hydrants, meters, irrigation facilities, storage facilities, land and
easements, and all necessary, incidental, and appurtenant facilities, together with extensions of
and improvements to said system within and without the boundaries of the proposed District.11
The residents and property owners within the District currently receive
water service from the Upper Eagle Regional Water Authority (the “Water Authority”) pursuant
to intergovernmental agreements between Traer Creek, in its capacity as the Service District, and
the Town, the Water Authority and the Eagle-Vail Metropolitan District. Such
intergovernmental agreements which are between Traer Creek and one or more of the entities
listed in the foregoing sentence and, in some instances, one or more developer entities, include,
but are not limited to:
(a) Water Service Agreement, dated as of May 15, 1997, as amended
by the First Amendment to Water Service and Tap Fee Allocation Agreement, dated as of
June 22, 1999, and as assigned by the Assignment and Assumption of Tap Fee Allocation
Agreement, dated as of November 29, 2001, as amended by the Traer Creek Water Storage Tank
Agreement and Second Amendment to Water Service Agreement, dated as of ___________,
11 Deleted text is outdated. New text reflects present status of water service arrangements.
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2012, as the same may be supplemented or amended from time to time, together with such other
agreements or instruments as may be necessary to implement the provisions therein;
(b) Agreement, dated November 4, 2002, as the same has been or may
be supplemented or amended from time to time, together with such other agreements or
instruments as may be necessary to implement the provisions therein;
(c) Development Agreement, as the same may be supplemented or
amended from time to time, together with such other agreements or instruments as may be
necessary to implement the water service-related provisions therein; and
(d) The Village (at Avon) Raw Water System Operation and
Maintenance Agreement between Traer Creek and the Town dated ___________, 20___.
EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II LLC,
and PVRT NOTT III LLC, as the developers of the Development (collectively, “Developer”),
have entered into a Water Service Agreement with the Eagle-Vail Metropolitan District (“Eagle-
Vail”) and the Upper Eagle Regional Water Authority (“Authority”) to provide water service to
the Development. Pursuant to the Agreement, Eagle-Vail and the Authority are directly obligated
to provide water service to the Development, which service includes supplying treated water, and
operations and maintenance of a water distribution system and storage system sufficient to serve
the Development. The Developer has covenanted to construct and/or extend the Authority’s and
the Eagle-Vail’s water distribution system and storage system, and to lease sufficient water rights
to the Authority, as necessary to serve the Development. Completed storage and water
distribution improvements, except water lines internal to the Development, shall be conveyed
free and clear of all liens and encumbrances by the Developer to Eagle-Vail. The Developer has
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also agreed to file and prosecute an augmentation plan to allow for alternate use of the water
rights of the Developer, the Authority and Eagle-Vail within the boundaries and jurisdictions of
the three entities. The Developer has agreed to maintain Nottingham Reservoir and to maintain
and operate the water lines internal to the Development. The Authority is authorized by the
Water Service Agreement to provide billing and meter reading to the users of the water services
within the Development and to assess service charges and fees against property owners within
the Development as a condition of service. Pursuant to the Agreement, Traer Creek (as assignee
for the Developer) shall be entitled to receive fifty percent (50%) of all regular tap fees imposed
and collected by Eagle-Vail Metropolitan District (“Water Tap Fee Share”). In addition, Traer
Creek shall have the right to impose and retain water development fees for the development of
water service on the Property (“Incremental Water Fee”).
The Water Service Agreement allows the Developer to assign its rights and
obligations to any subsequent special district formed, in whole or in part, for the purpose of
holding, owning or operating its water system or other permitted services. It is the intent of the
Developer to assign its rights and obligations under the Water Service Agreement to Traer Creek
upon organization.
8.7. Sanitation. The proposed District shall have the power to provide for the
design, acquisition, construction, completion, installation, operation and maintenance of a
complete sanitary sewage collection, treatment, transmission, and disposal system which may
include, but shall not be limited to, treatment plants, collection mains and laterals, lift stations,
transmission lines, sludge handling and disposal facilities, and/or storm sewer, flood and surface
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drainage facilities and systems, including but not limited to, detention/retention ponds and
associated irrigation facilities, and all necessary, incidental, and appurtenant facilities, land and
easements, together with extensions of and improvements to said system within and without the
boundaries of the proposed District.
Residents and property owners within the District receive sanitation
service pursuant to the intergovernmental agreements with the Eagle River Water and Sanitation
District including, but not limited to, the Incremental Sewer Tap Fee Agreement, dated as of
November 19, 1998, as assigned to Traer Creek, as the Service District, by the Assignment and
Assumption of Sewer Tap Fee Agreement, dated as of November 29, 2001, as the same has been
or may be supplemented or amended from time to time, together with such other agreements or
instruments as may be necessary to implement the provisions therein.
The Development is located within the boundaries of the Eagle River Water and
Sanitation District (“Eagle River”). Eagle River has sufficient wastewater treatment and
transmission capacity to provide service for the projected build-out of the Development. The
main sewer lines will be constructed by Traer Creek and conveyed to Eagle River for
maintenance upon acceptance. The Developer anticipates entering into an Incremental Sewer
Tap Fee Agreement with Eagle River (“Sewer Agreement”) regarding the provision of sewer
service, the construction of improvements and the imposition of an incremental tap fee. Pursuant
to the Sewer Agreement, Eagle River is obligated to provide sewer service to the Development.
Developer agrees to extend Eagle River’s existing sewer lines and to construct internal sewer
facilities in the Development. In addition, Eagle River agrees to impose and collect up to an
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additional 25% incremental tap fee (“Incremental Sewer Fee”), as set by Developer, for each
sewer tap located within the Development as partial offset for Developer’s infrastructure costs.
The Sewer Agreement allows the Developer to assign its rights to a special district formed for
the purpose of owning or operating its sewer system or other permitted utilities and services. In
addition, pursuant to the Sewer Agreement, Eagle River consents to the organization of Traer
Creek and The Village. It is the intent of the Developer to assign its rights under the Sewer
Agreement to Traer Creek upon organization.
9.8. Fire Protection. The proposed District shall have the power to provide for
the design, acquisition, construction, completion operation and maintenance of facilities for
protection against fire, including, but not limited to, fire stations, fire trucks, fire protection and
fire fighting equipment, and such ambulance, medical and rescue equipment, units and facilities
as are deemed necessary for property fire fighting, fire suppression and emergency medical
services, adoption of fire codes, and all necessary, incidental and appurtenant facilities, land and
easements, together with extensions of and improvements to said system within and without the
boundaries of the District. It is anticipated that all fire protection facilities and improvements will
be maintained by the Eagle River Fire Protection District,Town. The Development is within the
boundaries of the Eagle County Health Services District or the Eagle County Ambulance
District,12 as applicable. (“ECHSD”). The District’s authority to provide ambulance services to
the property within its boundaries shall be subject to agreement among and between, the
Districts, the Town and ECHSD pursuant to Section 32-1-107(3)(b)(IV), C.R.S.
12 Need to confirm whether Development is within Eagle County Ambulance District or Western Eagle County
Ambulance District.
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10.9. Other Powers. In addition to the enumerated powers, the Board of
Directors of the District shall also have the following authority:
(a) Plan Amendments. To amend the Service Plan as needed, with the
approval of the Town Council, subject to the appropriate statutory procedures.
(b) Phasing, Deferral. Without amending this Service Plan, to defer,
forego, reschedule, or restructure the financing and construction of the Improvements, including
the Prioritized Capital Projectscertain improvements and facilities, to better accommodate the
pace of growth, resource availability, and potential inclusions of property within the District.
The Town will be notified if any of these actions take place at the time application is submitted
for Public Improvement Agreements.13.
(c) Additional Services. Except as specifically provided herein, to
provide such additional services and exercise such powers as are expressly or impliedly granted
by Colorado law.
B. Standards of Construction/Statement of Compatibility.
1. All streets and safety protection facilities to be dedicated to the Town will
be constructed in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications, and applicable standards and specifications
13 Harmonized with CARADA.
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of CDOT. “Applicable Town Standards and Specifications” shall mean those Town standards
and specifications which are applicable and are not in conflict with standards and/or
specifications set forth in the Development Plan.
2. All storm sewers and facilities will be constructed in accordance with the
standards and specifications set forth in the Development Plan, Applicable Town Standards and
Specifications, and applicable standards and specifications of other local jurisdictions.
3. All parks and recreational facilities and/or services will be constructed in
accordance with engineering and design requirements appropriate for the surrounding terrain,
and shall be in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications and applicable standards and specifications
of other local jurisdictions.
4. All transportation facilities and/or services will be provided in accordance
with the standards and specifications set forth in the Development Plan, Applicable Town
Standards and Specifications, and applicable standards and specifications of other local
jurisdictions.
5. Any mosquito eradication and control facilities will be designed,
constructed, maintained and operated in accordance with the standards and specifications set
forth in the Development Plan, Applicable Town Standards and Specifications, applicable
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standards and specifications of the Colorado Department of Health, orand other applicable
jurisdictions.
6. Any television relay and translation facilities will be designed,
constructed, maintained and operated in accordance with the standards and specifications set
forth in the Development Plan, Applicable Town Standards and Specifications, applicable
standards and specifications of the Federal Communications Commission, and other applicable
jurisdictions.
7. Any water system improvements will be designed, constructed and
maintained in accordance with the standards and specifications set forth in the Development
Plan, Applicable Town Standards and Specifications, applicable standards and specifications of
the Colorado Department of Health, the Eagle-Vail Metropolitan District, the Upper Eagle
Regional Water Authority, and any other applicable jurisdiction.
8. Any sanitary sewer treatment and/or collection facilities will be designed,
constructed and maintained in accordance with the standards and specifications set forth in the
Development Plan, Applicable Town Standards and Specifications, applicable standards and
specifications of Colorado Department of Health, Eagle River Water and Sanitation District, and
any other applicable jurisdiction.
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9. Any fire protection facilities shall be constructed in accordance with the
standards and specifications set forth in the Development Plan, Applicable Town Standards and
Specifications, and standards and specifications of any other applicable jurisdictionsjurisdiction.
Based on an analysis of jurisdictions which are interested parties in the Service
Plan proceedings as defined in the Colorado Revised Statutes, the proposed District’s Engineers
have determined that the standards by which the facilities are to be constructed are compatible
with the facilities of such other jurisdictions.
C. Facilities to be Constructed and/or Acquired.
Pursuant to the proposed Construction and Financing Agreement with Traer
Creek, The District participatesVillage currently proposes to participate in the financing of those
facilities generally described herein. A general description and preliminary engineering survey,
as appropriate, of the facilities currently to be constructed and/or acquired are shown on Exhibit
D.
ASSESSED VALUATION
The certified assessed valuation of the Development as of December 15, 2012, is Fifteen
Million Nine Hundred Sixty Thousand One Hundred Eighty Dollars ($15,960,180).
The Property has an assessed valuation as of January 1998 of approximately
Seven Hundred Thirty-Five Thousand Three Hundred Ten Dollars ($735,310). The projected
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build-out for the Property is set forth in the Financial Plan attached hereto as Exhibit B. The
projected assessed valuation of the Property, based upon the land use expectations heretofore
noted, is set forth in the Financial Plan. At build-out, the assessed valuation for the Property is
expected to be One Hundred Thirty-Three Million Three Hundred Sixty-Two Thousand, Four
Hundred Twenty-Three Dollars ($133,362,423).
ESTIMATED COSTS OF FACILITIES
The estimated costs of the Prioritized Capital Projects in 2012 dollars based on a
preliminary engineering survey are set forth on Exhibit C. In addition to the Prioritized Capital
Projects, the District may construct such additional Improvements as are authorized by
administratively approved Public Improvement Agreements and the estimated costs for such
additional Improvements will be determined when application for such Public Improvement
Agreements are submitted. The District’s construction of any Improvement in accordance with
an administratively approved Public Improvement Agreement shall not constitute a material
modification of the Service Plan.
The estimated costs of the Improvements are set forth in Exhibit C attached
hereto. Exhibit D includes a facility map and preliminary drawings for the Improvements.
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OPERATION AND MAINTENANCE/ESTIMATED COSTS14
The District is authorized to pay its administrative, operational and maintenance
expenses from property tax and other revenues. The operating revenue derived from property
taxes for the first budget year of the District was $-0-. The Maximum Debt Mill Levy shall not
apply to any mill levy imposed by Traer Creek or The Village to pay administrative, operational
and maintenance expenses. Subject to the applicable warranty, The VillageTraer Creek will
dedicate certain Improvementsfacilities constructed or acquired to the appropriate jurisdiction for
operations and maintenance. Certain Improvementsfacilities completed by Traer Creek within
the boundaries of The Village maywill be owned, operated and/or maintained by Traer Creek.
Estimated costs for operation and maintenance functions are shown on the Financial Plan. The
District may impose a system of fees, rates, tolls, penalties or charges in connection with the
provision of services by Traer Creek. The estimated revenues from such fees, rates, tolls,
penalties, or charges are reflected in the Financial Plan. The earliest the District will be
organized will be November 1998, therefore, the Financial Plan assumes no operating expenses
or debt will be incurred until December 1998, The Financial Plan assumes the Districts will incur
approximately One Hundred Fifty Thousand Dollars ($150,000) in administrative expenses in
2000. As development continues, operations and maintenance expenses will increase to
approximately One Million One Hundred Twenty-Nine Thousand Four Hundred Thirty Dollars
($1,129,430) in 2006 and increase by 6% per year thereafter. The District anticipates that it will
enter into an intergovernmental agreement with Traer Creek which will provide for coordinated
14 Moved language from what was Section V.D here, so that all O&M provisions are in one place.
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administration and management of both Districts (’Administrative Coordination Agreement”)
and an intergovernmental agreement which will provide for the coordination of provision of
operations and maintenance of the facilities serving the Districts (“Operations and Maintenance
Coordination Agreement”). This arrangement will benefit both Districts by eliminating
duplicative expenses and by providing economies of scale to both Districts.
PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS
B. Intergovernmental Agreements.
The District is authorized to enter into such intergovernmental agreements as are
necessary and appropriate to the exercise of its powers under this Service Plan and are subject to
the limitations set forth in this Service Plan.15 As of February 1, 2012, the District had entered
into the intergovernmental agreements as more specifically identified in the list filed with the
Colorado Division of Local Government pursuant to Section 29-1-205, C.R.S., attached hereto as
Exhibit E. As required by statute, the District shall file an updated list of intergovernmental
agreements with the Colorado Division of Local Government on an annual basis. It shall not be
a material modification for the District to amend, supplement or terminate existing
intergovernmental agreements or enter into additional intergovernmental agreements as
15 Responsive to _____________________________.
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determined by its Board of Directors to be necessary, so long as the District continues to comply
with the annual reporting requirements of Section 29-1-205, C.R.S.16
A. Water Service Agreement.
It is anticipated that the Developer’s rights and obligations under the Water
Service Agreement discussed above (See “DESCRIPTION OF PROPOSED SERVICES—Types
of Improvements—Water”) will be assigned to Traer Creek after its formation and organization.
B. Sewer Service Agreement.
Sewer services will be provided to the Development by the Eagle River Water
and Sanitation District. It is anticipated that the Developer’s rights under the Sewer Agreement
discussed above (See “Description of Proposed Services Type of Improvements - Sewer”) will
be assigned to Traer Creek after its formation and organization.
C. Coordinated Services of the Districts.
As discussed throughout this Service Plan, the relationship between Traer Creek
as the Service District and The Village as the Financing District, will be established through the
proposed Construction and Financing Agreement, the Administrative Coordination Agreement
16 Deleted paragraph is redundant with the description of the Construction and Financing Agreement in Article II.
Because a copy of the Construction and Financing Agreement is attached as Exhibit D, the deleted language is
unnecessary and potentially confusing/inaccurate.
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and the Operations and Maintenance Coordination Agreement (“IGAs”). The IGAs will specify
the rights and responsibilities of Traer Creek to finance, own, operate, construct and maintain
facilities needed to serve The Village. The agreements establish the procedures and standards for
the approval of the design, operation and maintenance of the facilities. Additionally, the
agreements provide the procedures for coordinated financing, budgeting, and administrative
oversight and management.
D. Public Improvement Company.
The District anticipates that it will enter into agreements with Traer Creek and a
public improvement company (“PIC”) for the purposes of providing coordinated maintenance,
administrative or other services (“PIC Agreement). It is anticipated that the PIC will assess a
retail sales fee on certain retail transactions occurring with the Development, a real estate
transfer fee on certain transfers of real property within the Development and
accommodations/lodging fee on certain building accommodations within the Development (“PIC
Revenues”). The PIC Agreement will provide that all of the PIC Revenues (“Development
Revenues”) will be transferred to Traer Creek to assist in financing the necessary Improvements
for the Development.
E. Annexation and Development Agreement.
The Developer will enter into an Annexation and Development Agreement for the
Development, which Agreement shall be incorporated herein by this reference (“Annexation
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Agreement”). The Annexation Agreement sets forth certain District rights and obligations,
including but not limited to, the payment of monies to the Town and the provisions for
dissolution of the Districts. Upon their organization, Traer Creek and The Village shall assume
the District rights and obligations set forth in the Annexation Agreement.
F.D. Voter Authorization.
To the extent necessary to comply with statutory and/or Constitutional
requirements for approval of debt or long--term financial obligations, the terms of the
aforementioned intergovernmental agreements (“Intergovernmental Agreements”) have been or
will be submitted to the electors of both Districts for approval. The Districts shall have the
authority to obtain the required voter authorization in order to exercise their rights and
obligations under such agreements and to enter into the Intergovernmental Agreements without
further approval of the Town.
FINANCIAL PLAN AND LIMITATIONS
A. General.
The Districts shall be authorized to provide for the planning, design, acquisition,
construction, installation, relocation and/or redevelopment of the Improvements from their
revenues and by and through proceeds of debt issued by the Districts, including advances from
the Developer, the aggregate amount of such debt not to exceed One Hundred Fifty-Eight
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Million Dollars ($158,000,000) (“Total Debt Limit”).17 The Financial Plan for the Districts,
which displays proposed indebtedness for the Districts together with a schedule indicating the
year or years in which the debt is scheduled to be issued as required by Section 32-1-202(2)(b),
C.R.S., is attached hereto as Exhibit F.18
Pursuant to the terms of the Construction and Financing Agreement, the Village
may finance a portionDistrict shall be responsible for financing some of the costs of the
Improvements for the Development through a pledge of tax revenues to Traer Creek and/or
through the issuance of General Obligation Bonds. It is acknowledgedanticipated that initially
Traer Creek issuedwill issue revenue bonds secured by various revenue sources, including but
not limited to, ad valorem tax revenue from The Village, revenue derived from privately imposed
public improvementdevelopment fees (“PIFs”) and other revenues, including water tap fees.
Other bonds may be issued to pay certain “District Debts” as defined in and in accordance with
the provisions of the , the Development Agreement during the term thereof. The payment of
District Debts, including the Districts’ pledge of tax revenues to the Upper Eagle Regional
Revenues, the Water Authority for financing construction of a water storage tank, pursuant to the
requirements of the Development Agreement shall not constitute a material modification of this
Service Plan.19 Tap Fee Share, Incremental Water Fee, and the Incremental Sewer Fee, The
Financial Plan attached hereto as Exhibit E shows the anticipated revenue sources available to
the District and to Traer Creek. The Financial Plan demonstrates how the proposed facilities
and/or services are to be financed, including but not limited to, the estimated costs of engineering
17 Responsive to request from E. Heil.
18 Responsive to request from E. Heil.
19 Updated to reflect present realities and harmonize with CARADA.
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services, legal services, administrative services, proposed bond issuances and estimated proposed
maximum interest rates and discounts, and other major expenses related to the organization and
operation of the Districts. It demonstrates the issuance of revenue bonds and the anticipated
repayment based on the projected development within the boundaries of the Development. The
Plan also demonstrates how The Village will issue general obligation bonds to finance the
Improvements and/or refund Traer Creek’s outstanding bonds. The Financial Plan demonstrates
that, at various projected levels of development, the Districts have the ability to finance the
facilities identified herein, and will be capable of discharging the proposed bonds on a
reasonable basis.
Debt issued by The Village Bonds sold by Traer Creek will be revenue bonds
(without a general obligation pledge of Traer Creek) and shall be issued in the manner provided
by Section 32-1-11011 101 (1) (d), C.R.S., as may be amended from time to time. . and shall
never constitute debt or indebtedness of Traer Creek within the meaning of any provision or
limitation of the laws of Colorado or the state constitution and shall not constitute nor give rise to
a pecuniary liability of Traer Creek or charge against its general credit or taxing powers. Bonds
which entail the pledge of fee revenue derived from the payment of fees pursuant to an
agreement with the developer of the Property and with the pledge of property within the
boundaries of The Village as security for such obligation, shall require the District to fully
enforce the terms of the agreement for the benefit of the Bondholders, including the pursuit of
foreclosure proceedings on the pledged property. However, the District shall not have the right
to accelerate the payment of fees, and any foreclosure shall be only as to those amounts then
owing under the Agreement. The exact interest rates, discounts and their form will be determined
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at the time such debt is issued by The Villagethe bonds are sold by Traer Creek, and will reflect
market conditions at the time of sale; provided, however, that the issuance of bonds or incurrence
of debt by The Village during the term of the Development Agreement shall be subject to review
and approval by the Town Manager to the extent required by the Development Agreement. . The
primary source of revenues to Traer Creek will be payments made to it pursuant to contracts with
The Village, the public improvement companies established by the Developer to administer the
PIFs and other governmental entities.Eagle-Vail, the Authority, Eagle River and the PIC. The
Financial Plan anticipates revenues from these sources in the amount of Two Hundred Nineteen
Million One Hundred Ninety-Nine Thousand Nine Hundred Ninety Eight Dollars
($219,199,998). It is projected that the payments received from such contractual arrangements
will be sufficient to pay for the operation and maintenance of the Improvementsfacilities and to
retire all bonds issued by Traer Creek.20
The Development Agreement provides that on or before January 1, 2040, Traer
Creek may issue revenue bonds and other indebtedness payable wholly or in part from PIF
revenue.21 Except as may be limited by the instruments pursuant to which District Debts are
issued,It is anticipated that a total of Seventy Four Million Three Hundred Fifty Thousand
Dollars ($74,350,000) in revenue bonds will be issued by Traer Creek. It is anticipated that The
Village maywill make a general obligation pledge to Traer Creek and/or issue general obligation
bonds as necessary to finance that portion of Traer Creek’s indebtedness, which specifically
20 Harmonized with CARADA.
21 The sole function of this sentence is to establish the authority of Traer Creek to issue bonds payable form PIF
revenue,. The deleted language was somewhat misleading and seems unnecessary. See also revisions to the
Financial Plan in Exhibit F, which more accurately explains the $96,000,000 Credit PIF Cap.
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includes repayment of bonds issued by the Upper Eagle Regional Water Authority for
construction of a water storage tank, not otherwise paid from other sources of revenue. in the
total amount of Fourteen Million Six Hundred Thirty-Three Thousand Two Hundred Twenty-
Four Dollars ($14,633,224) to assist in financing the improvements. The total amount of bonds
anticipated to be issued during and after the term of the Development Agreement may beis less
than the total cost of the Improvements. In order to finance and construct all the Improvements,
it is anticipated that the Developer maywill advance funds to the District for those Improvements
not financed pursuant to revenue bonds issued by Traer Creek and discussed above, and the
District shall be authorizedwill issue subordinated Developer bonds to repay Developer for such
advances with interest, as set forth in the Development Agreement, if applicable.22
As set forth in the Development Agreement, unless the Developer requests the
Town to do so earlier, the Town shall not initiate or . The subordinated bonds shall be payable
only from revenues not otherwise required for debt service on other outstanding bonds or for
operations and maintenance expenses. Pursuant to the Annexation Agreement, the Town may
request that the Districts pursue any proceeding to dissolve Traer Creek or The Village until after
the earlier to occur of either: (a) the twenty-fifth (25th) anniversary of the first issuance of bonds
by either District or (b) such time as all infrastructure improvements and public amenities
contemplated in this Service Plan have been constructed and no issued general obligations or
revenue obligations of the Districts remain outstanding with respect thereto. Any dissolution of
either District shall be conducted in accordance with the provisions and procedures set forth in
22 Responsive to request from E. Heil.
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Sections 32-1-701, et seq., C.R.S., as in effect on October 13, 1998.23no sooner than twenty-five
years after the date of the court order deeming them organized. To the extent any amounts shall
be outstanding on the subordinated bonds at such time as the Districts are dissolved pursuant to
the provisions of the Annexation Agreement, such amounts shall be deemed paid and the debt
shall be extinguished. It is anticipated that Traer Creek will issue subordinated bonds to the
Developer in the amount of Sixty-Six Million Three Hundred Twenty-Five Thousand Dollars
($66,325,000).
Any refundings of District Debt (including refundings of Developer advances)
shall not count against the Total Debt Limit to the extent that the indebtedness being refunded
has already been counted against the Total Debt Limit.
The Village shall only be required to fund on an annual basis, that amount it
would be capable of funding through tax revenues resulting from the imposition of 50 mills
(adjusted to take into account legislative or constitutionally imposed adjustments in assessed
values or the method of their calculation occurring after 200224 so that to the extent possible the
actual tax revenues generated by the mill levy, as adjusted, are neither diminished nor enhanced
as a result of such determination) against the assessed value of the taxable property lying within
the boundaries of The Village.
23 Harmonized with CARADA.
24 Requested by District Bond Counsel.
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Traer Creek may refund (by exchange or otherwise) any of its subordinated
obligations with obligations having a lien on parity with outstanding revenue bonds of Traer
Creek provided it will not exceed the Total Debt Limit, as defined below, and the following
conditions are met: 1) the refunding bonds shall be investment grade rated; 2) Net Revenues of
Traer Creek for the last two (2) audited fiscal years shall have been sufficient to pay an amount
representing not less than 150% of the Combined Maximum Annual Principal and Interest
Requirements of the outstanding revenue bonds and the refunding bonds; and 3) the refunding
bonds shall not have a maturity date extending beyond December 31, 2031.
The proposed Construction and Financing Agreement provides that The Village
will have a cap on its total obligation and its total annual obligation to either provide tax
revenues or issue general obligation bonds for the Improvements (“Debt Limitation”).
The combined debt of both The Village and Traer Creek, consisting of all general
obligation bonds, limited obligation bonds, revenue bonds, subordinated bondsbond, notes,
contracts or other obligations evidencing a borrowing, shall not exceed the Total Debt Limit;
provided, however, that PIF revenue may only be utilized to pay bonds or other outstanding debt
issued prior to January 1, 2040, in an amount not in excess of net proceeds of Ninety-Sixin the
aggregate One Hundred Fifty Eight Million Dollars ($96158,000,000).25) (“Total Debt Limit”).
Bonds issued by the District shall bear interest at a rate such that the net effective
interest rate of the issue of bonds does not exceed the maximum net effective interest rate
25 Harmonized with CARADA.
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authorized. The resolution authorizing the issuance of such bonds shall specify the maximum
net effective interest rate. Such bonds may be issued in one or more series, may bear such date,
may mature at such time not exceeding the estimated life of the improvements as determined by
The Village Board, but in no event beyond forty years from their respective dates, may be in
such denominations, may be payable in such medium of payment, such place within or without
the state, including but not limited to the office of any county treasurer in which the District is
located wholly or in part, may carry such registration privileges, may be subject to such terms of
redemption in advance of maturity in such order or by lot or otherwise at such time without or
without a premium, may be executed in such manner, may bear such privileges for reissuance in
the same or other denominations, may be so reissued, without modification of maturities and
interest rates, and may be in such form, as may be provided by The Village Board of Directors.
Pursuant to Section 32-1-1101, C.R.S., general obligation bonds would mature
not more than twenty years from the date of issuance, with the first maturity being not later than
three years from the date of their issuance. The proposed maximum voted interest rate is
estimated at eighteen percent (18%) and the maximum underwriting discount at five percent
(5%). The exact interest rates and discounts will be determined at the time the bonds are sold by
the District and will reflect market conditions at the time of sale. Except to avoid a monetary
default, the District shall not refund any series of bonds more than once except with the consent
of the Town, which consent shall not be unreasonably withheld. The District may also issue
notes, certificates, debentures or other evidences of indebtedness or long-term contracts, subject
to the limitations set forth herein.
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The Districts may capitalize interest to permit payment of interest during the time
lapse between development of properties and collection of fees, rates, tolls and charges. Interest
income through the reinvestment of construction funds will provide additional income. The
projected revenue sources will retire the proposed bonds if growth occurs as projected; otherwise
increases in and/or the imposition of new rates, tolls, fees and charges may be necessary.
C. Mill LevyGeneral Obligation Bonds.26
B. If. The District determines to issue general obligation bonds, such bonds may be
issued subject to the following limitations:
1. For any portion of the aggregate District’s debt which exceeds fifty
percent (50%) of the District’s assessed valuation, the “Maximum Debt will have a Mill Levy”
for such portion of debt shall be fifty (50) mills less the number of mills necessary to pay
unlimited mill levy debt describedassessed on all taxable property in subsection 2 below;
provided that if, on or after January 1, 2002, there are changes in the method of calculating
assessed valuation or any constitutionally mandated tax credit, cut or abatement, the mill levy
limitation applicable to such debt may be increased or decreased to reflect such changes, such
increases or decreases to be determined by the District Board of Directors in good faith (such
determination to be findingthe District as a primary source of revenue for payment to Traer
Creek under the IGAs and final)/or for repayment of debt service. It is estimated that a mill levy
26 This Section B has been revised to more accurately and completely describe (i) the Maximum Debt Service Mill
Levy, (ii) the circumstances under which and limitations applicable to adjustment of the rate of the Maximum Debt
Service Mill Levy and (iii) the circumstances under which the Maximum Debt Service Mill Levy would not apply
and the effect of same.
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of ten (10) mills will produce sufficient revenue to support such obligations. The District may
capitalize interest to permit payment of interest during the time lapse between development of
taxable properties and the collection of tax levies therefrom. The proposed Construction and
Financing Agreement provides that The Village will have a cap on its total obligation and its
total annual obligation to either provide tax revenues or issue general obligation bonds for the
Improvements. The Village shall only be required to fund on an annual basis, that amount it
would be capable of funding through tax revenues resulting from the imposition of 50 mills
(adjusted to take into account legislative or constitutionally imposed adjustments in assessed
values or the method of their calculation so that to the extent possible, the actual tax revenues
generated by the mill levy, as adjusted for changes occurring on or after January 1, 2002, are
neither diminished nor enhanced as a result of such changes. For purposes of the foregoing, a
change in the ratio of actual valuation shall be deemed to be a change in the method of
calculating determination) against the assessed valuation.
For the portionvalue of any aggregate District debt which is equal to or less than fifty
(50%)the taxable property lying within the boundaries of The District’s assessed valuation, either
on the date of issuance or at any time thereafter, the mill levy to be imposed to repay such
portion of debt shall not be subject to the Maximum Debt Mill Levy and, as a result, the mill
levy may be such amount as is necessary to pay the debt service on such debt, without limitation
of rate. For the purposes of the foregoing, the District may provide that such debt shall remain
secured by such unlimited mill levy, notwithstanding any subsequent change in the District’s
debt to assessed ratioVillage.
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All debt issued by The District must be issued in accordancemay issue, sell and
deliver general obligation bonds, subject to the following limitations:
1. The District may issue general obligation bonds only if the mill levy
pledged for repayment of the Bonds (together with the requirements of the mill levy pledge on
any other general obligations of the District) will not exceed 50 mills (adjusted to take into
account legislative or constitutionally imposed adjustments in assessed values or the method of
their calculation so that to the extent possible the actual tax revenues generated by the mill levy,
as adjusted, are neither diminished nor enhanced as a result of such determination) (the “Mill
Levy Cap”); and
2. The Bonds must qualify as one of the following types of bond issuances:
a. any issue of Bonds registered under the Colorado Municipal Bond
Supervision Act, or
b. any issue of general obligation bonds where the total obligation
represented by the issue together with any other general obligation of the District does not at the
time of issuance exceed the greater of two million dollars or fifty percent of the valuation for
assessment of the taxable property in the district as certified by the assessor; or
c. any issue of Bonds that is rated in one of its four highest rating
categories by one or more nationally recognized organizations which regularly rate such
obligations; or
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d. any issue of Bonds in which infrastructure is in place which has
been determined by the Board of the District to be necessary to construct or otherwise provide
additional improvements specifically ordered by a federal or state regulatory agency to bring the
District into compliance with applicable federal or state laws or regulations for the protection of
the public health or the environment if the proceeds raised as a result of such issue are limited
solely to the direct and indirect costs of the construction or improvements mandated and are used
solely for those purposes; or
e. any issue of Bonds secured as to the payment of the principal and
interest on the debt by a letter of credit, line of credit, or other credit enhancement, any of which
must be irrevocable and unconditional, issued by a depository institution:
I. with a net worth of not less than ten million dollars in
excess of the obligation created by the issuance of the letter of credit, line of credit, or other
credit enhancement;
II. with the minimum regulatory capital as defined by the
primary regulator of such depository institution to meet such obligation; and
III. where the obligation does not exceed ten percent of the
total capital and surplus of the depository institution, as those terms are defined by the primary
regulatory of such depository institution; or
f. any issue of Bonds insured as to the payment of the principal and
interest on the debt by a policy of insurance issued by an insurance company authorized to do
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business as an insurance company in the State of Colorado and authorized for such risk by the
insurance commissioner appointed pursuant to Section 10-1-104, C.R.S.; or
g. any issue of Bonds not involving a public offering made
exclusively to accredited investors, as that term is defined under sections 3(b) and (4)(2) of the
federal “Securities Act of 1933’ by regulation adopted thereunder by the securities and exchange
commission; or
h. any issue of Bonds made pursuant to an order of a court of
competent jurisdiction; or
i. any issue of Bonds which are issued in denominations of not less
than $500,000 each, in integral multiples not less than $1,000, provided that in the event a bond
is partially redeemed by the District and the unredeemed portion is less than $500,000, such
unredeemed portion of such bond may be issued in the largest possible denomination of less than
$500,000, integral multiples of not less than $1,000; or
j. any issue of Bonds which are issued to the Developer, subject to
remarketing the Bonds pursuant to the limitations set forth herein.
C. Projections of Assessed Valuation. For purposes of developing the Financial Plan
set forth herein, it was assumed that residential units within the Development would be
developed and assessed at various percentages depending upon the year of construction. It is also
assumed that the assessed valuation will be realized one year after construction and that tax
collections will be realized two years after initial construction.
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D.B. Cost Summary and Bond Development. Not less than twenty (20) days prior to
issuance of any bonds, the District will prepare and submit to the Town for administrative
review, but not approval, an updated Financial Plan reflecting. The Financial Plan reflects the
estimated amount of bonds to be sold and fees to be imposed to finance the completion,
construction, acquisition and/or installation of the proposed facilities, including but not limited
to, all costs and expenses related to the anticipated bond issuances. SuchThe amount of bonds
actually sold will be based upon the final engineering estimates and/or actual construction
contracts. Organizational costs, including but not limited to, legal fees, and capitalized
engineering costs, are to be paid from the proceeds of the each bond issue. The interest rates as
set forth in the Financial Plan will projectare based upon the advice of Bigelow & Company.
The Financial Plan projects the anticipated flow of funds and will beare based
upon estimates of construction and project needs for bond proceeds to finance the proposed
improvements, and set forth a reasonable estimate of growth within the Development.. The
Districts’ engineer will evaluatehas evaluated the timing and cost estimates of anythe proposed
improvements which are necessary to support the proposed absorptions of development as
projected in any updated Financial Plan, which will be subject upon the Districts’ engineer’s
concurrence with the assumptions. The District is authorized to pay organizational costs,
including but not limited to, legal fees, and capitalized engineering costs, from the proceeds of
bonds. As required by Section 32-1-202(2)(b), the District shall notify the Town of any
alteration or revisions of the proposed schedule of debt issuance set forth in the Financial
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Plan.27the Financial Plan and has concurred with the assumptions. The Financial Plan sets forth
the most reasonable estimate of growth within the Development.
The Town shall not be held liable for any of the District’s obligations as set forth
in this Service Plan.
II. MATERIAL MODIFICATION
Pursuant to Town Ordinance No. 12-10, which amended Chapter 18 of the Municipal
Code to state that certain provisions concerning material modification do not apply to the District
and in accordance with Section 4.2(f) of the Development Agreement, definitions, requirements
or procedures concerning the determination of material modification as applied to the District
shall not be inconsistent with, more rigorous than or otherwise more expansive than the scope of
such determination as set forth in the Special District Control Act, as the same may be amended
from time to time.
E. Operations. Annual administrative, operational and maintenance expenses are
estimated as shown in the Financial Plan. The Financial Plan projects that Traer Creek will have
sufficient revenue to pay for the ongoing operations and maintenance expenses of the Districts. If
necessary, however, Traer Creek and The Village reserve the right to supplement these revenues
with additional revenue sources as permitted by law.
27 Responsive to request from E. Heil.
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CONCLUSION
It is submitted that this Service Plan for the proposed The Village Metropolitan
District establishes that:
(a) There is sufficient existing and projected need for organized
service in the area to be serviced by the proposed District;
(b) The existing service in the area to be served by the proposed
District is inadequate for present and projected needs;
(c) The proposed District is capable of providing economical and
sufficient service to the Development;
(d) The area to be included in the proposed District does have, and
will have, the financial ability to discharge the proposed indebtedness on a reasonable basis;
(e) Adequate service is not, and will not be, available to the area
through the County, the Town or other existing municipal or quasi-municipal corporations,
including existing special districts, within a reasonable time and on a comparable basis;
(f) The facility and service standards of the proposed District are
compatible with the facility and service standards of the Town within which the proposed special
district is to be located and each municipality which is an interested party under Section 32-1-
204(1), Colorado Revised Statutes;
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(g) The proposal is in substantial compliance with a master plan
adopted pursuant to Section 30-28-106, C.R.S.; and
(h) The proposal is in compliance with any duly adopted Town,
County, regional, or state long-range water quality management plan for the area; and
1. The creation of the proposed District is in the best interests of the area proposed
to be served.
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EXHIBIT A
Legal Description of Property
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EXHIBIT B
District Boundary and Vicinity Map
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EXHIBIT C
Description of Facilities and Costs
PRIORITIZED CAPITAL PROJECTS LIST
AND COST ESTIMATES
Item
Lot 1
East Beaver
Creek Blvd.
Lot 1
Main Street
Lot 1
North/South
Roads (2)
Planning Area J
(east) East/West
Road
General Conditions 750,000 715,000 560,000 280,000
Demolition 39,825 1,726,900 166,650 266,675
Earthwork 1,108,275 119,685 123,390 187,440
Roadway 1,630,990 1,349,930 393,310 719,465
Utilities 894,300 1,129,900 227,600 356,800
Erosion Control 27,000 27,000 16,600 9,500
Landscaping 340,238 311,890 128,800 180,050
Electrical & Lighting 347,280 289,400 115,760 185,216
Roundabouts 000 2,000,000 000 000
Subtotal 5,137,908 7,669,705 1,732,110 2,185,146
20% Contingency 1,027,582 1,533,941 346,422 437,029
Total 6,200,000 9,200,000 2,100,000 2,600,000
NOTE: The foregoing Prioritized Capital Projects List does expand or limit the Improvements
the Districts are authorized to finance and construct, but is provided for illustrative
purposes only and does not bind the Districts to construct any particular Improvements.
The actual Improvements, phasing and costs of Improvements the Districts may
construct shall be in accordance with the applicable provisions of the Service Plan
including the requirement that such Improvements be constructed in accordance with
one or more administratively approved Public Improvement Agreements.
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EXHIBIT D
District Facilities Construction and Financing Agreement
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EXHIBIT E
List of Intergovernmental Agreements
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EXHIBIT F
Financial Plan
Existing & Proposed Indebtedness Amount Year of Issue
Variable Rate Revenue Bonds, Series 2002 $35,300,000 2002
Variable Rate Revenue Bonds, Series 2004 $16,800,000 2004
Past Developer Advances $12,047,736 Incurred prior to 2013 on dates of
instruments creating the obligations Avon Receivable $3,522,309
Water Tank Bonds Pledge Agreement* $9,000,000 2013
TCMD Contributions to Asphalt Overlay Account** (TBD) 2013
Additional Bonds *** $81,329,955 After 2013
Total $158,000,000
* Precise amount to be established at the time the Water Tank Bonds are issued.
** Under the Development Agreement, TCMD’s contributions to the Asphalt Overlay Account for calendar years
2013-2017is $40,000 per year and thereafter is $75,000 per year until the earlier to occur of (i) 80,000 square
feet of additional commercial development have been issued a certificate of occupancy or (ii) total annual
Taxable Transactions have increased by at least $20,000,000 over 2011 Taxable Transactions. Accordingly,
the amount of the Total Debt Limit utilized by TCMD contributions to the Asphalt Overlay Account cannot be
determined until termination of the obligation to make annual payments.
*** The remaining amount of the Total Debt Limit available for additional bonds will be adjusted upon
determination of the actual amount of (i) the Water Tank Bonds and (ii) the Asphalt Overlay Account
contribution obligation.
NOTES:
1. Capitalized terms used in this Exhibit F (including the Notes hereto), but not defined in elsewhere in the
Service Plan, shall have the meanings ascribed to them in the Development Agreement.
2. The table above is illustrative only, and changes in the actual principal amounts to be counted against the
Total Debt Limit and timing of issuance of such debts shall not constitute material modifications of the
Service Plan. Nor shall it be a material modification of the Service Plan for the District to issue debt up to
the Total Debt Limit, so long as any such issuance complies with applicable requirements of the Service
Plan.
3. Section 6.2 of the Development Agreement provides that the amount of the following District obligations
to which PIF Revenues can be pledged is $96,000,000 (the “Credit PIF Cap”). It is noted that the amounts
to be counted against the Credit PIF Cap pursuant to the Development Agreement may be different than the
principal amount to be counted against the Total Debt Limit pursuant to this Service Plan.
Original principal amount of TCMD Series 2002 and Series 2004 Bonds $52,100,000
The Net Proceeds of the Tank Project Bonds* $9,000,000
Net Proceeds of Past Developer Advances $12,047,736
Net Proceeds of Supplemental Bonds issued on or before January 1, 2040, and, if any,
Capital Project Costs that Traer Creek funds directly from Credit PIF Revenues** $22,852,264
Total $96,000,000
* Precise amount to be established at the time the Water Tank Bonds are issued.
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(i) ** May be increased to the extent Net Proceeds of Tank Project Bonds are
less than $9,000,000; may be decreased to the extent that the Avon Urban Renewal Authority issues bonds, subject
to a maximum amount of $10,000,000.
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Justin Hildreth, P.E., Town Engineer
Virginia Egger, Town Manager
Date: January 17, 2013
Re: Benchmark Lake at H.A. Nottingham Park Update
Summary:
The liner leak in Nottingham Lake is well documented and has been an issue for several years. The
existing liner’s useful life is approximately 20 years and has been in service for approximately 32 years.
One of the main issues is the low flows in the Eagle River and Buck Creek are not adequate to
compensate for the lost water through the leakage in the lake. As a result, the lake was drained so that
the liner can be replaced in the spring.
The Town hired Kumar and Associates to design the lake liner replacement system and some associated
improvements as directed by Town Council. During earlier discussions with personnel from the State
Engineer’s office in Glenwood Springs, Avon staff was told that relining of the lake would constitute a
“maintenance” project, and the review would only require a general plan review. Kumar and
Associates, however, was informed at their pre‐submittal meeting on January 4th with the State
Engineer, that a full review of the dam, including a geotechnical analysis and hydraulic study will be
required. This full analysis results from the State Engineer learning about the location of the Avon
Elementary School, residential development and the Avon Water Treatment Plant below the dam –
improvements that were not in the dated files of the Engineer’s office. It is likely that the classification
of the dam will be increased from significant to high because of these developments.
The Town staff supports a full assessment to ensure the dam is safe in all regards. Greg Monley, our
engineer with Kumar, has scheduled a meeting with Jeremy Franz, at the State Engineer’s Office, on January
24th, to present the 60% liner design, and to get a better estimate of the State’s turnaround time for reviewing
the design. Jeremy recognizes that it is a relatively small impact to the dam, and anticipates a review period
that is 60 days or less, possibly 45 days.
If there are no red flags raised regarding the project, and there is a high comfort level that the State will be
completed by mid‐ March, it may be worth considering advertising for bid during the review, handle any
changes through addendum, and award the construction contract in late March or early April. Greg estimates
a 60 to 75 day construction period, under reasonable conditions. Under this schedule the lake will refill in June
and be ready by July 1st. It is important to understand the schedule could be impacted a couple of weeks by
bad weather.
Greg cited a project he worked on like this in Colorado Springs, which was accomplished as described above –
but, noted again the weather dependency importance.
Page 2
Greg could not recommend filling the lake in April and draining it again after Labor Day due to the required
time it takes for the compacted clay soils to adequately dry.
Council Direction:
At the December, 2012, presentation to Town Council, staff was directed to limit the scope of the
project to essential core elements and minor improvements, which do not have major cost implications.
As a result, the project will be limited to the following elements, pending Council concurrence.
1. Liner replacement
2. Irrigation system intake system improvements
3. Re‐grade the southeast corner of the lake to be 4.5 FT deep for a safer skating area
4. Improvement of the beach area on the north side of Nottingham Lake
5. Erosion control improvements for the Lake intakes
6. Sediment removal in the water quality pond
7. Sediment removal in the Lake as the budget allows
Some additional engineering costs are being incurred for the State’s full assessment requirements, but
those costs and improvements listed above are expected to remain within project budget of $1,250,000.