TC Council Packet 06-11-2013
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 11, 2013
MEETING BEGINS AT 5 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13 06 11
Page 1 of 4
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, AND COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC.
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MATERIALS.
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY.
THE AVON TOWN COUNCIL MEETS THE 2ND AND 4THTUESDAYS OF EACH MONTH.
______________________________________________________________________________________________________________
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. EXECUTIVE SESSION
a. For the purpose of receiving legal advice pursuant to Colorado Revised Statute §24-6-402(4)(b)
related to settlement matters regarding Town of Avon v Traer Creek Metropolitan District, 2008 CV
0385 and Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316
4. AVON URBAN RENEWAL AUTHORITY (BEGIN AT 5:45 PM OR AS SOON THEREAFTER AS POSSIBLE, SEE PAGE 3)
5. AVON LIQUOR AUTHORITY MEETING (BEGIN AT 5:50 OR AS SOON THEREAFTER AS POSSIBLE, SEE PAGE 4)
6. AVON TOWN COUNCIL TO RECONVENE AT 6:00 P.M. OR AS SOON THEREAFTER AS POSSIBLE
7. PUBLIC COMMENT
8. VILLAGE AT AVON
8.1. Settlement Update (Eric Heil, Town Attorney)
8.2. R esolution No. 13-18, Series of 2013, A Resolution approving several documents related to The
Village (at Avon) Litigation settlement, including: the Access Easement Agreement; the Wet
Well Easement Agreement; the Raw Water Special Warranty Deed; the Raw Water System
Operations and Maintenance Agreement; the Amended and Restated Nottingham Dam
Easement and Assignment Agreement; the Special Warranty Deed for Tract G, Filing 3; the Bill
of Sale for the Nottingham Gulch Storm Sewer; and the Bill of Sale for the Nottingham Gulch
Energy Dissipater
9. ACTION ITEMS
9.1. Letter of Agreement for a $7,500 Contribution to the Vail Leadership Institute in support of the
Entrepreneurs BaseCamp (Patty McKenny, Assistant Town Manager)
9.2. Public Hearing on Second Reading of Ordinance 13-06, Series of 2013, An Ordinance Approving a
Final PUD Amendment for Brookside Park Lot 1, Brookside Park PUD, Eaglewood Subdivision,
Town of Avon, Eagle County, Colorado (Jared Barnes, Planner II)
9.3. Public Hearing on Second Reading of Ordinance 13-07, Series of 2013, An Ordinance Approving a
Minor PUD Amendment for June Creek Corner on Lot 25, Block 2, Wildridge Subdivision, Town
of Avon, Eagle County, Colorado (Matt Pielsticker, Senior Planner)
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 11, 2013
MEETING BEGINS AT 5 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13 06 11
Page 2 of 4
9.4. Public Hearing on Resolution No. 13-19, A Resolution to amend the 2013 Town of Avon Budget
(Kelly Huitt, Budget Analyst)
9.5.Action on Fee Waiver for Garden Fencing in Wildridge (Jared Barnes, Planner II)
9.6. Approval of Minutes
10. WORK SESSION
10.1. Discussion about Eaglebend Dowd Affordable Housing Corporation (Kayak Crossing)
Proposed Multifamily Revenue Bond Refinancing (Gerry Flynn, Polar Star Properties)
10.2. Discussion in regards to filling Town of Avon Board of Director vacancy for the Buffalo Ridge
Affordable Housing Corporation, EagleBend Affordable Housing Corporation and Eaglebend
Dowd Affordable Housing Corporation (Kayak Crossing ) (Patty McKenny, Assistant Town
Manager)
10.3. Council Review and Direction on Recommended 2014 Budget Process and 5 Year Capital
Improvement Program, including Scheduling of Council Retreat(s) (Virginia Egger, Town
Manager)
11. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
11.1. EGE Air Alliance (Rich Carroll, Mayor)
12. COUNCIL COMMENTS
13. MAYOR REPORT: FUTURE AGENDA ITEMS
PROPOSED AGENDA ITEMS FOR JUNE 25, 2013 COUNCIL MEETING:
Lake Liner Improvements Contract, IGA with Eagle County for GIS Services, Intergovernmental Agreement with Eagle
County Regional Transportation Authority for Leasing of the I-70 Regional Transportation Facility, Action on Kayak
Crossing Refinance, Further Discussion on Town Property Options and Funding Scenarios
TOWN OF AVON, COLORADO
AVON URBAN RENEWAL AUTHORITY MEETING FOR TUESDAY, JUNE 11, 2013
MEETING BEGINS AT 5:45 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13 06 11
Page 3 of 4
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN TODD GOULDING
COMMISSIONERS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
STAFF
EXECUTIVE DIRECTOR / SECRETARY: VIRGINIA EGGER ATTORNEY: ERIC HEIL
TREASURER: SCOTT WRIGHT AUTHORITY CLERK: PATTY MCKENNY
ALL URBAN RENEWAL MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. ACTION ITEMS
4.1. Approval of the Consolidated, Amended and Restated Annexation and Development Agreement
(Eric Heil, Avon Urban Renewal Attorney)
4.2. Minutes from January 8, 2013
5. ADJOURNMENT
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, JUNE 11, 2013
MEETING BEGINS AT 5:50 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13 06 11
Page 4 of 4
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN TODD GOULDING
BOARD MEMBERS 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 LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. PUBLIC HEARING ON SPECIAL EVENTS PERMIT APPLICATIONS
4.1. Applicant: Team Evergreen Bicycle Club Inc.
Event Name & Location: Triple Bypass; Harry A. Nottingham Park
Event Date & Time: July 13, 2013 from 11:00 a.m. until 9:00 p.m.
Event Manager: Jenny Anderson
Permit Type: Malt, Vinous, Spirituous Liquor
4.2. Applicant: Walking Mountains Science Center
Event Name & Location: Taste of Nature; Walking Mountains Science Center
Event Date & Time: July 13, 2013 from 5 p.m. until 11:00 p.m.
Event Manager: Gina Garrett
Permit Type: Malt, Vinous, Spirituous Liquor
5. REPORT OF CHANGES: PUBLIC HEARING ON MODIFICATION OF PREMISES
5.1. Applicant: Fork and Knife, Inc. d/b/a Blue Plate
Address: 48 E. Beaver Creek Blvd.
Manager: Adam Roustom
License Type: Hotel and Restaurant Liquor License
6. REPORT OF CHANGES: CORPORATE NAME CHANGE
6.1. Applicant: East West Resort LLC & Avon Riverfront LLC d/b/a Westin Riverfront Resort & Spa & Cima
New Name: Westin Riverfront Resort & Spa & Maya
Manager: John Evans
License Type: Resort Complex Liquor License
7. MINUTES FROM MAY 28, 2013 MEETING
8. ADJOURNMENT
Heil Law & Planning, LLC Office: 303.993.4608
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: meredith@heillaw.com e-mail: ericheillaw@yahoo.com
HEIL LAW
TO: Chairman Carroll and members of the Avon Urban Renewal Authority Board of
Directors
FROM: Eric Heil, Esq., Avon Urban Renewal Authority Attorney
RE: Approval of Consolidated, Amended and Restated Annexation and Development
Agreement
DATE: June 6, 2013
Summary: The Avon Urban Renewal Authority (“AURA”) is a signatory to the Consolidated, Amended
and Restated Annexation and Development Agreement (“Development Agreement”) for the Village (at
Avon). Section 6.7 of the Development Agreement sets forth provisions whereby the AURA may be used
to provide funding for public improvements to serve the Lot 1 core area of the Village (at Avon) and offset
and reduce the Town’s total tax credit obligation by $10 million in principal. Currently, no area of the Village
(at Avon) is within an urban plan area of the AURA. The Development Agreement does not create any
obligation of the Town or the AURA to establish an urban renewal plan area for the Village (at Avon) and
does not create an obligation to establish tax increment financing through the urban renewal authority
powers. Any future urban renewal plan area or imposition of tax increment financing for the Village (at
Avon) would be subject the applicable public process at that time. The AURA is included as a signatory on
the Development Agreement because certain terms of the Development Agreement address the use of
AURA powers and the AURA is technically a separate legal entity from the Town of Avon with regard to
executing contracts and financial liabilities. The AURA is defined as a “Limited Party”. Section 7.7(b)(c)(i)
states that the AURA shall have no rights arising under the Development Agreement to enforce any
obligations of any other Party.
The Town Council previously approved the Development Agreement by Ordinance No. 12-10 last
November. Pursuant to C.R.S. §31-25-105(b) the AURA has the power to “execute any and all contracts
and other instruments which it may deem necessary or convenient to the exercise of its powers.” Neither
the statutes nor the AURA Bylaws require approval of a contract by resolution. Approval of the
Development Agreement may be made by motion.
NOTE: At the time of preparing this memorandum the graphic exhibit of the temporary easement area
for a road to Planning Area I across the recently acquired Avon East Forest Service Parcel has not been
finalized. This document is Exhibit C to Exhibit C (Form of Covenant and Temporary Easement). Exhibit C
does not affect the AURA’s rights or liabilities under the Development Agreement.
Requested Action: Approve the Development Agreement by Motion. In order to fully execute the
Development Agreement, the AURA must approve and sign the Development Agreement in addition to the
Town.
Proposed Motion: “I move to approve the Consolidated, Amended and Restated Annexation and
Development Agreement attached to this memorandum as Exhibit A including and subject to any revisions
which may be approved by the Town of Avon.”
Thanks, Eric
M EMORANDUM
& PLANNING, LLC
1001679.22 FINAL
CONSOLIDATED, AMENDED AND RESTATED
ANNEXATION AND DEVELOPMENT AGREEMENT
FOR THE VILLAGE (AT AVON)
THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND
DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to
time, this “Development Agreement”) is made and entered into as of __________________,
2013 (“Execution Date”) by and among the Parties and the Limited Parties, and with the consent
of the Developer Affiliates, BNP and Lenders.
RECITALS
This Development Agreement is made with reference to the following facts:
A.Initially capitalized words and phrases used in this Development Agreement have
the meanings set forth in Exhibit F, which definitions are incorporated herein.
B.Pursuant to the Original Agreement, the Town and the Original Owners set forth
the terms and conditions upon which the land legally described in Exhibit A of the Original
Agreement would be annexed into and developed under the jurisdiction of the Town,such legal
description having been updated to reflect the Recording of various subdivision plats subsequent
to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the
“Property”).
C.Town Council approved the Service Plans on August 25, 1998, and on
February 3, 1999, TCMD and VMD were legally formed for the general purposes contemplated
by the Original Agreement and more specifically described in the Service Plans.
D.Subsequent to the Original Effective Date: (i) the other entities comprising the
Original Owner were merged into EMD, which became the sole Original Owner; and
(ii)pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in
writing, the right to amend the Original Agreement as to all of the Property except Planning
Area M as designated in the Original PUD Guide and the Original Agreement (now re-
designated Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the
right to amend the Original Agreement.
E.As of the Execution Date, the current fee owners of the real property comprising
the Property are, as their respective interests appear of Record: TC-RP; EMD; TC Plaza;
TC-WMT; TC-HD; Alkali Company, a Colorado limited partnership; TCMD; the District
Directors;the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation;
Buffalo Ridge II LLLP, a Colorado limited liability limited partnership;Eagle River Fire
Protection District, a quasi-municipal corporation; Eagle County Health Service District, a
quasi-municipal corporation; and Department of Transportation, State of Colorado.
F.Other than EMD, each of the Developer Affiliates and other Landowners referred
to in Recital E acquired title to the portion of the Property it owns subject to the terms and
conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original
EXHIBIT A to Heil Memorandum dated June 6, 2013
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Agreement. None of the conveyances referred to in Recital E were accompanied by a specific
written grant of the power to amend the Original Agreement as provided in Section 1.4 of the
Original Agreement. Accordingl y, with the exception of the Town and EMD (by virtue of being
parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original
Agreement pursuant to the First Amendment thereto) and TCLLC (b y virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted an y power to
consent or object to any amendment of the Original Agreement (except for the rights of BNP,
derived in its capacity as the issuer of an irrevocable direct pay letter of credit securing the Traer
Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002 and the Traer Creek
Metropolitan District Variable Rate Revenue Bonds, Series 2004, to consent to TCMD’s
execution of any such amendment). As provided in Section 1.4 of the Original Agreement, no
person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to
execute or acknowledge this Development Agreement as a condition of this Development
Agreement being legally effective and binding on all parties to the Original Agreement and all
Landowners.
G.For ease of administration and in recognition of the fact the ownership of the
Property has and will continue to become diverse as the Project develops, the Developer
Affiliates have designated Master Developer to act on their behalf for all purposes in connection
with this Development Agreement, including but not limited to negotiation and execution of this
Development Agreement and any future amendments hereto.
H.Master Developer, certain of the Developer Affiliates, TCMD, the Town and
other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV
316 (collectively, consolidated as Case No.2008 CV 385, the “Litigation”) and the parties to the
Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the
uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the
uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered
into that certain Settlement Term Sheet made and entered into the 7th day of October, 2011, by
and between the Town, BNP, TCMD, TCLLC, TC-RP, TC Plaza, EMD, TC-HD LLC and
TC-WMT (the “Settlement Term Sheet”).
I.In accordance with the terms and conditions of the Settlement Term Sheet, the
Parties have entered into this Development Agreement to implement pertinent terms of the
Settlement Term Sheet, to effect a full and final settlement of all disputes pertaining to the
Original Agreement which were the subject of the Litigation, and to resolve other potential
disputes related to development entitlements, interpretation of Original Agreement, equitable
allocation of responsibilities and rights, and other matters which are addressed in this
Development Agreement and related documents. The Town’s final non-appealable approval of
this Development Agreement establishes and implements specific terms and conditions of the
Settlement Term Sheet and shall be binding on the Parties hereto and also shall be binding on all
parties to the Settlement Term Sheet.
J.Various circumstances and changed conditions require mutual execution and
approval of this Development Agreement in order to:(i) clarify and implement the intent of the
parties to the Original Agreement to promote development of the Property; (ii)amend and restate
EXHIBIT A to Heil Memorandum dated June 6, 2013
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the Original Agreement in order to implement the Settlement Term Sheet; and (iii)facilitate
dismissal of the Litigation with prejudice and minimize the potential for future legal disputes.
K.During the period between the Original Effective Date and the Execution Date
and in reliance on the revenue sharing and infrastructure financing arrangements established by
the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer
Affiliates have made large investments in Public Improvements located both within the Property
and outside of the Property. The foregoing has resulted in:
(1)Full satisfaction of the following obligations of TCMD under the terms
and conditions of the Original Agreement, with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a)Construction of the Interstate 70 Interchange and the Highway 6
Connector Road as defined in § 4.2 of the Original Agreement;
(b)Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of
the Original Agreement, in the amount of $100,000;
(c)Construction of the Phase 1 Improvements and the Phase 2
Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement;
(d)Construction of the Swift Gulch Road Improvements as defined in
§ 4.3(c) of the Original Agreement;
(e)Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of
the Original Agreement; and
(f)Those obligations set forth in § 4.3(j) of the Original Agreement.
(2)Partial satisfaction of the following obligation of TCMD under the terms
and conditions of the Original Agreement, with performance of the remaining obligations
waived pursuant to the Settlement Term Sheet and the provisions establishing such
obligation accordingly deleted from this Development Agreement:
(a)Payment of nine (9) installments, in the amount of $200,000 each,
of the ten (10) such installments comprising the East Avon Exaction as defined in
§ 4.3(a)(i) of the Original Agreement, the obligation to make the final installment
being extinguished by this Development Agreement as contemplated in the
Settlement Term Sheet.
(3)Full satisfaction of the following obligations of Original Owners under the
terms and conditions of the Original Agreement,with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a)The two property conveyances comprising the Public Works
Dedication as defined in § 4.3(d) of the Original Agreement;
EXHIBIT A to Heil Memorandum dated June 6, 2013
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(b)Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L.The Town has adopted Ordinance No. 12-10, which approved this Development
Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and
took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term
Sheet.
M.Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
will require substantial additional investments by the Districts, the PICs, Master Developer, the
Developer Affiliates and/or other Landowners. All such completed and to be constructed Public
Improvements will serve the needs of the Project and the Town. Such prior and future
investments can be supported only if there are assurances that development of the Project will be
permitted to proceed to ultimate completion as contemplated in this Development Agreement
and the PUD Guide.
N.The Vested Propert y Rights Statute and the Municipal Code (as in effect on the
Execution Date) authorize the Town to enter into development agreements which provide for the
vesting of property development rights with a term of greater than three (3) years.
O.Town Council has determined that granting Vested Property Rights for the
duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land
use planning process, stimulate economic growth, secure the reasonable investment-backed
expectations of Landowners and foster cooperation between the public and private sectors in the
area of land use planning and development.
P.Town Council specifically finds that this Development Agreement provides
public benefits including but not limited to the following specific public benefits:
(i)development of the Property in accordance with the applicable development standards in the
Development Plan and, to the extent not controlled by the Development Plan, the Municipal
Code (as amended from time to time); (ii)economic development through construction
anticipated to occur in connection with development of the Project; (iii) economic development
through the development of various commercial and residential uses that enhance, complement
and reinforce the Town’s existing economy, commercial base and ad valorem property tax base;
(iv) development of housing to meet the needs of the Avon community; (v)development of
significant property within the Town’s municipal boundaries which promotes economies of scale
in the provision of public services; and (vi) establishment of a public-private cooperative
arrangement that promotes the availability of capital for Public Im provements and promotes the
competitiveness and viability of private development within the Town and the Project.
Q.In exchange for these benefits and the other benefits to the Town contemplated by
this Development Agreement, together with the public benefits served by the orderly
development of the Property, this Development Agreement and the Vested Propert y Rights
established herein are intended to provide assurance to Master Developer, EMD, the Developer
Affiliates, other Landowners, the Districts, lenders providing financing for development of the
Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued
EXHIBIT A to Heil Memorandum dated June 6, 2013
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or to be issued by the Districts that development of the Property pursuant to the terms and
conditions of the Development Plan and the Approved SSDPs can occur without impediment or
impairment of the Vested Property Rights.
R.The Limited Parties have executed this Development Agreement only for the
limited purposes expressly set forth herein and with the express understanding that the Limited
Parties shall not be construed to have any rights, duties, obligations or remedies arising under
this Development Agreement except to the extent expressly set forth herein with respect to each
Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited
Party shall be strictly limited to those expressly set forth in this Development Agreement as a
right, duty, obligation or remedy of such Limited Party.
S.Lenders have executed this Development Agreement for the sole purpose of
evidencing their respective consent and subordination to the Recording of this Development
Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any
obligation or acquiring any enforcement right or remedy arising under this Development
Agreement.
T.BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s consent to approval of the Financing Plan and related
matters addressed in this Development Agreement. Additionally, BNP is an Intended
Beneficiary with respect to BNP’s right to enforce certain provisions of this Development
Agreement, including but not limited to BNP’s right to have a lawfully eligible candidate
designated at the option of BNP to hold the office of director of TCMD, BNP’s right to be
conveyed and to hold a property interest sufficient to qualify its designee for holding the position
of director until such time as there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds,and BNP’s right to
participate on the AURA board of directors with respect to any urban renewal plans for any
portion of the Property.
U.As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-203 and 29-20-105, and
such Parties intend their respective obligations hereunder to be enforceable by specific
performance and/or other equitable remedies in addition to any remedies otherwise available at
law.
V.As between the Town, Master Developer, EMD, Developer Affiliates and other
current or future Landowners, this Development Agreement constitutes a development
agreement granting Vested Property Rights for a period in excess of three (3) years in
accordance with Section 24-68-104(2) of the Vested Property Rights Statute.
W.The Parties intend this Development Agreement to amend and restate in its
entirety the Original Agreement by consolidating the original document and subsequent
amendments thereto into a single document for ease of reference, and additionally by
incorporating the amendments necessary and desirable to implement applicable terms and
conditions of the Settlement Term Sheet.
EXHIBIT A to Heil Memorandum dated June 6, 2013
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AGREEMENT
NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth
in this Development Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE1
GENERAL PROVISIONS
1.1 Incorporation of Recitals. The Recitals are incorporated into and made
substantive provisions of this Development Agreement.
1.2 Effectiveness and Recording of Development Agreement. This Development
Agreement shall be effective as of the Effective Date. Any delay or failure to Record this
Development Agreement shall not negate or impair the effectiveness of this Development
Agreement as between the Parties and any other parties having notice of this Development
Agreement. The effectiveness and/or Recording of this Development Agreement shall not be
construed to negate the effectiveness of any approvals granted by Town Council prior to the
Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other
Landowner taken in connection with development of the Project prior to the Effective Date. All
such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the
Settlement Term Sheet shall be construed to be of no further force or effect, its terms and
conditions having been incorporated into and implemented by this Development Agreement, the
PUD Guide, the Tank Agreement, the TCMD Reissue Documents and/or otherwise performed in
full. As of the Effective Date, the obligations of each party to the Original Agreement to any
other party to the Original Agreement are expressly discharged, terminated and of no further
force or effect except to the extent such obligations are expressly incorporated and set forth in
this Development Agreement.
1.3 Covenants.Upon Recording, the provisions of this Development Agreement shall
constitute covenants and servitudes that touch, attach to and run with the land comprising the
Property and, except as otherwise provided in Section1.5 with respect to amendments to this
Development Agreement,the burdens and benefits of this Development Agreement shall bind
and inure to the benefit of all estates and interests in the Property and all successors in interest to
the Parties,the Developer Affiliates and any other Landowners as of the Effective Date.
1.4 Ve sting Te rm; Te rm of Development Agreement. Phased development of the
Project as contemplated under this Development Agreement and the Development Plan involves
significant acreage and density which will require substantial investment and time to complete.
(a)Vesting Term. Due to the size and phasing of the Project, the potential for
development of the Project to be affected by economic and financial cycles, the effect of national
and statewide markets with regard to retailers, accommodations industry and builders, and the
limitation of absorption rates by the local market conditions, the term of the Vested Property
Rights established pursuant to Section2.4 shall continue through and including October 20, 2039
(“Vesting Term”). If the Term expires prior to expiration of the Vesting Term, the Vesting Term
shall continue in full force and effect and shall survive expiration of the Term in accordance with
and subject to the terms, conditions and limitations set forth in this Agreement. On October 21,
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2039, the Vested Property Rights shall be deemed terminated and of no further force or effect;
provided, however, that such termination shall not affect:
(i)annexation of the Property to the To wn;
(ii)any common-law vested rights obtained prior to such termination;
(iii)any right arising from To wn building permits, development
approvals or other zoning entitlements for the Property or the Project which were granted
or approved prior to expiration of the Ve sting Te rm; or,
(iv)any obligation of a Party under this Development Agreement that
has not been fully performed as of the date on which the Vesting Te rm expires.
(b)Te rm of Development Agreement. Notwithstanding any prior expiration
of the Ve sting Te rm (or survival of the Ve sting Te rm after expiration of the Te rm), the term of
this Development Agreement and the Parties’obligations hereunder shall commence upon the
Effective Date and shall terminate upon expiration of the Term. Upon expiration of the Te rm,
the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit.
Notwithstanding the foregoing, the To wn may elect to extend the Te rm in accordance with
Section 6.1(d). In no event shall the Te rm expire before the To wn’s obligation to maintain the
Ta x Credit in effect has terminated as provided in Section 6.1(b).
(c)Obligation to Maintain Ta x Credit. Without limitation of the foregoing,
the To wn’s obligation to maintain the Ta x Credit in effect pursuant to Sections 4.2(a)and 6.1(b)
shall survive expiration of the Ve sting Te rm and shall continue in full force and effect until the
conditions set forth in Section 6.1(b)have been fully satisfied.
1.5 Amendment of Development Agreement.This Development Agreement may be
amended or terminated only by mutual written consent of the To wn, TCMD and Master
Developer (but not by their respective successors or assigns or by any non-Party Landowner)
following the public notice and public hearing procedures required for approval of this
Development Agreement; provided, however:
(a)Specific Grant of Amendment Rights. For purposes of this Section 1.5
only, the term “Master Developer” means TCLLC, EMD and those additional parties, if any, to
whom TCLLC or EMD has specifically granted, in writing, the power to enter into such
amendments. No entity to whom TCLLC or EMD has granted the power to enter into such
amendments may further assign or grant such power to another entity except to the extent
expressly stated in the grantee’s original grant from TCLLC or EMD.
(b)Limited Parties. The written consent of a Limited Party (other than EMD
in its capacity as Master Developer, as otherwise set forth in this Section1.5) shall not be
required except to the extent the proposed amendment directly and expressly modifies a
provision of this Development Agreement that establishesa right, obligation or remedy of such
Limited Party.
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(c)BNP. The Parties acknowledge that until such time as there are no
outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue
or refunding of such bonds, TCMD’s agreement to any future amendment to the provisions of
this Development Agreement that run in favor of BNP, including without limitation, this
Section 1.5(c),Section 1.6,Article 4,Section 5.1(e),Section 5.3(e),Article 6 and Article 7 is
subject to BNP Paribas’ (or an y successor or assignee of BNP Paribas pursuant to Section8.11)
prior written consent. The Parties further acknowledge that until such time as there are no
outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue
or refunding of such bonds, TCMD is required by the provisions of the TCMD Reissue
Documents to obtain the consent of BNP (or a written acknowledgement that such consent is not
required) to any future amendment to the provisions of this Development Agreement, and failure
on the part of TCMD to obtain such consent prior to entering into any such amendment will be a
default under the TCMD Reissue Documents, as to which BNP will have the right to exercise its
remedies.
1.6 Cooperation in Defending Legal Challenges. If, after the Execution Date, any
legal or equitable action or other proceeding is commenced by a third party challenging the
effectiveness of Ordinance No.12-10, the effectiveness of this Development Agreement and/or
the Development Plan, or the validity of any provision of this Development Agreement and/or
the Development Plan, the Parties shall in good faith cooperate in defending such action or
proceeding and shall each bear their own expenses in connection therewith. Unless the Parties
otherwise agree, each Party shall select and pay its own legal counsel to represent it in
connection with such action or proceeding. The Parties acknowledge that the obligations of the
To wn and TCMD pursuant to this Section 1.6 are subject to compliance with the requirements of
Section 20 of Article Xof the Colorado Constitution. Accordingly, the Town and TCMD shall in
good faith take such steps as may be available to them in response to the filing of any action or
proceeding addressed above to set aside, hold and irrevocably pledge adequate present cash
reserves to fund the reasonably anticipated costs of defending such action or proceeding;
provided, however, if either the To wn or TCMD is not in a position to fund from present cash
reserves all or any portion of the reasonably anticipated costs of defending such action or
proceeding, such Party’s obligation pursuant to this Section1.6 shall be subject to annual
appropriation.
1.7 Role of Master Developer. For the reasons described in Recital G, the Developer
Affiliates have designated Master Developer to act on behalf of themselves and their respective
successors in interest with respect to and for all purposes of this Development Agreement. The
Developer Affiliates may designate a replacement Master Developer from time to time, or may
terminate the role of the Master Developer,by delivery of written notice thereof to the Town and
to TCMD which is signed by a majority of the Developer Affiliates owning any part of the
Property as of the date of such notice. An y replacement Master Developer must be an entity that
is a Developer Affiliate. The designation of a replacement Master Developer or termination of
the role of Master Developer by the Developer Affiliates shall not require an amendment to this
Development Agreement and shall not require the consent of the Town, TCMD or BNP.
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1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries.
(a)Limited Parties. As more particularly described in Recital R, each
Limited Party is executing this Development Agreement solely with respect to a limited
obligation of such Limited Party. With respect to each Limited Party, such obligations, rights
and remedies are expressly limited as follows:
(i)AURA. AURA’s obligations arising under this Development
Agreement are limited to those set forth in Section4.3. AURA’s rights and remedies
arising under this Development Agreement are as set forth in Section 7.7(c)(i).
(ii)EMD. EMD’s obligations arising under this Development
Agreement are limited to those set forth in Section 5.4. EMD’s rights and remedies
arising under this Development Agreement are as set forth in Section 7.7(c)(ii).
(iii)The Commercial PIC. The Commercial PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Commercial PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iii).
(iv)The Mixed Use PIC. The Mixed-Use PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Mixed-Use PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iv).
(b)Intended Beneficiaries. Except to the extent an Intended Beneficiary
undertakes obligations as an Applicant in connection with the development of a Site and/or
execution of a Public Im provement Agreement as provided in this Development Agreement, no
Intended Beneficiary is subject to any obligation arising solely under this Development
Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set
forth in Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy
arising solely under this Development Agreement. Notwithstanding the foregoing, TC-RP shall
have the obligation set forth in Section 5.5.
ARTICLE2
ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS
2.1 Annexation.Annexation of the Property was accomplished in accordance with
the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.) as in effect in 1998. Consistent with the foregoing and in
implementation of the Settlement Te rm Sheet, this Development Agreement ratifies annexation
of the Property.
2.2 PUD Zoning.Planned unit development (PUD) zoning of the Property was
accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in
implementation of the Settlement Te rm Sheet, this Development Agreement ratifies the PUD
zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each
formal amendment to the PUD Guide and/or PUD Master Plan accomplished prior to the
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Effective Date, and ratifies all development that has occurred within the Property pursuant to the
Original PUD Guide. Concurrently with Recording of this Development Agreement, the Parties
caused Recording of the PUD Guide. Accordingly, the Property is zoned PUD pursuant to and as
set forth in the PUD Guide.
2.3 Permitted Uses/Design Standards. The permitted uses of the Property, the density
and intensity of use, the maximum height, bulk and size of proposed buildings, design standards,
road profiles and sections, provisions for reservation or dedication of land for public purposes,
the general location of roads and trails, the ability of an Applicant to relocate roads, trails and
improvements, and other terms and conditions of development applicable to the Property and the
Project shall be those set forth in the PUD Guide and in this Development Agreement.
2.4 Ve sting of Property Rights.The Original Agreement and the Original PUD Guide
were Site Specific Development Plans with respect to which the To wn granted Ve sted Property
Rights for a term of thirty-five (35)years from the Original Effective Date. Consistent with the
foregoing and in implementation of the Settlement Te rm Sheet, this Development Agreement
ratifies the Ve sted Property Rights established by the Original Agreement and the Original PUD
Guide and, as described in Section 1.4(a),extends the term of such Ve sted Property Rights
(including with respect to future amendments to any such Approved SSDP) through and
including October 20, 2039.
Approval of the Development Plan constitutes a vested property right
pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7,
Chapter 16, of the Avon Municipal Code as amended.
Accordingly, the rights identified below (collectively, the “Vested Property Rights”) are
expressly ratified, granted and approved by Town Council:
(a)The right to develop, plan and engage in land uses within the Property and
the Project in the manner and to the extent set forth in and pursuant to the Development Plan and
other Approved SSDPs (if an y).
(b)The right to develop, plan and engage in land uses within the Property and
the Project in accordance with the densities, physical development standards and other physical
parameters set forth in the PUD Guide and other Approved SSDPs (if any).
(c)The right to develop the Project in the order, at the rate and at the time as
the applicable Developer determines appropriate given market conditions and other factors,
subject to the terms and conditions of the Development Plan and other Approved SSDPs (if any).
(d)The right to develop and complete the development of the Project
including, without limitation,the right to receive all To wn approvals necessary for the
development of the Project with conditions, standards and dedications which are no more
onerous than those imposed by the To wn upon other developers in the To wn on a uniform,
non-discriminatory and consistent basis, and subject only to the exactions and requirements set
forth in the Development Plan and other Approved SSDPs (if any); provided that such
conditions, standards and dedications shall not directly or indirectly have the effect of materially
and adversely altering, impairing, preventing, diminishing, imposing a moratorium on
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development, delaying or otherwise adversely affecting any of Master Developer ’s , EMD’s,
Developer Affiliates’ or any other Landowner’s rights set forth in the Development Plan or other
approved SSDPs (if any).
(e)The right to prevent (by mandamus, mandatory or prohibitory injunction
or other form of legal or equitable remedy) the application to the Property or the Project of any
To wn or citizen initiated zoning, land use or other legal or administrative action that would
directly or indirectly have the effect of materially and adversely altering, impairing, preventing,
diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting
any of Master Developer’s ,EMD’s,Developer Affiliates’ or any other Landowner ’s rights set
forth in the Development Plan and/or other Approved SSDPs (if any). Section 7.1 of the Town’s
Charter precludes citizen-initiated measures regarding certain matters, including the zoning or
rezoning of property. In accordance with Section 7.1 of the Town’s Charter, no initiated measure
shall be permitted that would have the effect of modifying or negating the To wn ordinance by
which To wn Council approved implementation of the Settlement Te rm Sheet,Ordinance
No.12-10, or any instrument implementing the Settlement Term Sheet as approved in Ordinance
No.12-10, including but not limited to the Development Plan.
(f)Notwithstanding any additional or contrary provision of the Municipal
Code (as in effect from time to time),and notwithstanding any prior expiration of the Te rm, the
Ve sting Term with respect to the Development Plan and other Approved SSDPs (if any) shall not
expire, be deemed forfeited, or otherwise limited or impaired prior to October 21, 2039. For the
avoidance of doubt and notwithstanding any contrary provision of the Municipal Code (as in
effect time to time), the scope of Ve sted Property Rights established by the Development Plan
specifically includes the right that all amendments to the Development Plan or other Approved
SSDPs (if any)approved by the Town shall be and remain vested through and including October
20, 2039, and includes the right to retain and enjoy the remaining period of the Vesting Term for
any amendment to the Development Plan or other Approved SSDPs (if any). Accordingly,
during the Ve sting Te rm (and notwithstanding any prior expiration of the Te rm) To wn Council
(or other final decision-maker of the To wn) shall not condition approval of any future
amendment to the Development Plan or other Approved SSDPs (if any)on, nor shall To wn
Council (or other final decision-maker of the To wn) make an y such approval subject to the
Applicant’s, Landowner ’s or Master Developer ’s consent to,a reduction of the then-remaining
Ve sting Term.
2.5 No Obligation to Develop.
(a)Master Developer; Other Landowners. Neither Master Developer nor an y
Landowner shall have any obligation arising under this Development Agreement to develop all
or any portion of the Project,nor shall Master Developer or any Landowner have any liability to
the Town or an y other party arising under this Development Agreement for not developing all or
any part of the Project. The Parties contemplate that the Project will be developed in phases as
generally driven by market conditions as they exist from time to time. Neither Master Developer
nor any Landowner shall have any obligation arising under this Development Agreement to
develop all or any portion of any such phase, notwithstanding the development or
non-development of any other phase, and neither Master Developer nor any Landowner shall
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have any liability to the To wn or any other party arising under this Development Agreement for
not developing all or any portion of any such phase of the Project.
(b)Districts. The Districts’ Service Plans establish the scope of the Districts’
authorized activities and shall not be construed to constitute an obligation of the Districts to
cause the development of any particular Public Improvements, or to provide any particular
services or to perform any other function for which the Districts have authorization, nor shall
such Service Plans be construed to create any obligation of Master Developer or any Landowner
to provide any Public Improvements, any services or to otherwise pay any monies or perform
any actions on behalf of or for the benefit of the Districts. No District shall have any obligation
arising under this Development Agreement to develop all or any portion of the Public
Improvements,nor shall any District have an y liability to the To wn or any other party arising
under this Development Agreement for not developing all or any part of the Public
Improvements. The Parties contemplate that the Project will be developed in phases as generall y
driven by market conditions as they exist from time to time. No District shall have any
obligation arising under this Development Agreement to develop all or any portion of the Public
Improvements pertinent to any such phase, notwithstanding the development or
non-development of any Public Improvements for any other phase, and no District shall have any
liability to the To wn or an y other party arising under this Development Agreement for not
developing all or any portion of the Public Improvements pertinent to any such phase of the
Project. The foregoing shall not be construed to relieve any District of any obligation established
pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a
District as contemplated in Section 3.2(a).
(c)Construction and Interpretation. For purposes of this Section2.5
references to Master Developer,Landowners and the Districts shall be construed to include their
respective employees, agents, members, officers, directors, shareholders, consultants, advisors,
successors, assigns and similar individuals or entities.
2.6 Compliance with General Regulations. Except as otherwise provided in
the Development Plan, the establishment of Ve sted Property Rights under this Development
Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town
ordinances and regulations of general applicability (including, but not limited to, building, fire,
plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Original
Effective Date or as amended from time to time), and other To wn rules and regulations) or the
application of state or federal regulations, as all of such regulations existed on the Original
Effective Date or may be enacted or amended after the Effective Date; provided, however, that
To wn ordinances and regulations newly enacted or amended after the Original Effective Date
shall not directly or indirectly have the effect of adversely altering, impairing, preventing,
diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting
any Landowner ’s Vested Property Rights. No Landowner shall be deemed to have waived its
right to oppose the enactment or amendment of any such ordinances and regulations.
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ARTICLE3
PUBLIC IMPROVEMENTS;DEVELOPMENT STANDARDS; EXACTIONS
3.1 Design Review. As contemplated by the Original Agreement and as more
particularly described in the PUD Guide, the Design Review Board has been established (and, as
required by the Original Agreement, includes a member designated by the Town’s Planning and
Zoning Commission), the Design Covenant has been Recorded and the Design Review
Guidelines have been promulgated. During the Term, the Design Review Board shall continue
to consist of not more than five (5) members, one (1) of whom shall be a member of the Town’s
Planning and Zoning Commission designated by the Town from time to time and the remainder
of whom shall be appointed as provided in the governing documents of the Design Review
Board. The Design Covenant shall govern matters related to use and development of all or any
part of the Property. Where any conflict between the Design Review Covenant and the
Development Plan may occur, the most restrictive provision shall govern. The Design Review
Board shall refer to the Town’s Planning and Zoning Commission, for comment only and not for
approval or disapproval: (A)all development proposals submitted to the Design Review Board
for portions of the Property located south of Interstate 70; (B)all portions of the Property located
north of Interstate 70 other than Planning Areas K and RMF-1 (with respect to which the Design
Review Board shall have no obligation to refer to the Town’s Planning and Zoning
Commission); and (C) all proposed amendments to the Design Covenant. At Master Developer’s
option, separate design review board(s) may be established with respect to Planning Areas
RMF-1 and K. Such separate design review board(s), if any,created for Planning Areas RMF-1
and K shall not be required to include any Town official as a member.
3.2 Allocation of Public Improvement Obligations. Except as otherwise expressly set
forth in this Development Agreement, the timing of the design, construction and financing of the
Public Improvements, as well as the designation of the specific entity responsible for such
design, construction and financing, will be addressed in the applicable Public Improvement
Agreement(s)as development of the Project takes place in conjunction with the processing of the
applicable Development Application (which may or may not be a subdivision application). The
Public Improvement obligations described in this Development Agreement are intended to be
allocated among, as applicable,the Districts, Master Developer, a Developer and/or an Applicant
based on the relationship between the particular Public Improvement(s), the Site owned by the
particular Developer and/or Applicant, and the nature of the development occurring on the Site.
This Development Agreement does not specifically allocate such Public Improvement
obligations, it being the Parties’ intent that the allocation will be set forth in a Public
Improvement Agreement executed in connection with the processing and approval of the
applicable Development Application. Public Improvements for which a District does not
undertake to finance the design, construction, maintenance and operation shall be undertaken by
the applicable Developer and/or Applicant. All such Public Improvements, whether undertaken
by a District or undertaken by a Developer and/or Applicant, shall be undertaken and provided in
accordance with the terms and conditions of the applicable Public Improvement Agreement
executed in connection with approval of the pertinent Development Application.
(a)Role of Districts. Subject to the availability of funds therefor, District
board of directors authorization,the terms and conditions of this Development Agreement,the
Districts’ respective Service Plans and state law,and in consideration of the To wn’s performance
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of its obligations under this Development Agreement (specifically including but not limited to
the Financing Plan), the Districts may from time to time (without obligation to do so arising
under this Development Agreement) undertake to finance the design, construction, maintenance
and operation, as applicable, of the Public Improvements as and when reasonably needed to
support development of the Project. References to Master Developer, EMD, Developer
Affiliates, Developers, Landowners or Applicants in the context of the Public Improvement
obligations addressed in this Development Agreement will be construed to mean and include by
reference the applicable Districts to the extent particular Districts have undertaken such
obligations pursuant to the terms of a Public Improvement Agreement as contemplated in this
Development Agreement. This Development Agreement will not be construed as creating an
implied obligation for the Districts to finance or construct any particular Public Improvements
prior to such District’s execution of a Public Improvement Agreement pursuant to which the
applicable District undertakes specific obligations regarding specific Public Improvements. Any
obligation undertaken by a District pursuant to this Section3.2 shall not be construed to
constitute a multiple fiscal year obligation of such District, but shall be subject to annual budget
and appropriation unless otherwise agreed to in writing by such District.
(b)Assurance of Completion. The Applicant for any Development
Application submitted after the Effective Date will provide an improvement guarantee assuring
completion of the Public Improvements as required by the Municipal Code as then in effect (to
the extent not inconsistent with an express provision of this Development Agreement or the PUD
Guide), and as more particularly described in the applicable Public Improvement Agreement to
be executed in connection with future Development Application approvals.
3.3 Public Roads and Access.
(a)General. Access, ingress and egress to, from and within the Project shall
be provided as generally described in the Development Plan. As generally described in
Recital K, prior to the Execution Date TCMD has fully performed all road construction
obligations specifically required pursuant to the Original Agreement. The PUD Master Plan
graphically depicts the alignments of existing permanent roads, the alignments of existing
temporary roads, and potential conceptual alignments of some future roads. Subject to the
availability of District Revenues not pledged or otherwise encumbered by the obligations of the
Districts as set forth herein or under an y debt instruments contemplated herein, one or more of
the Districts may (as contemplated by and subject to the conditions described in Section 3.2(a))
undertake to finance and/or construct the public roads within the Project. All public roads,
whether constructed by or on behalf of a District or a Developer, shall be constructed in
accordance with the standards set forth in the PUD Guide and shall be Dedicated to and
Accepted by the To wn in accordance with Section 3.3(b). Nothing set forth in the preceding
sentence shall prohibit or limit a Landowner ’s right to construct and maintain private roads, or to
construct and Dedicate public roads to the To wn or to a District (subject to the availability of
sufficient District Revenues to maintain such public roads).
(b)Dedication; Acceptance and Maintenance of Public Roads and Rights-of-
Wa y. Subject to the specific terms and conditions set forth in Article 4 and Article 6:
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(i)Existing Public Roads. Contemporaneously with the Effective
Date, TCMD conveyed to the To wn all of TCMD’s right, title and interest in and to the
existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yo der
Av enue),together with the road improvements, streetscape improvements, landscape
improvements and drainage improvements located within such rights-of-way. The To wn
granted Final Acceptance of all such roadways and related improvements for
maintenance without reservation or condition, whether related to warranty periods or
otherwise, and released all warranty collateral related thereto.
(ii)Main Street. As of the Execution Date, the temporary alignment
and road surface of East Beaver Creek Boulevard within Lot 1 (redesignated in the PUD
Guide as Main Street) is located within the easement established by the Easements with
Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8,
2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as
each pertinent phase of the final alignment thereof is completed as more specifically set
forth in the PUD Guide. Dedication of each phase of the permanent alignment of Main
Street shall be accomplished pursuant to clause (iii)below. During the period prior to
Dedication of each phase of the permanent alignment of Main Street, the To wn is and
shall remain responsible for snow removal, road maintenance, streetscape maintenance
and landscape maintenance within the current East Beaver Creek Boulevard easement.
The Parties acknowledge that no streetscape or landscape improvements are located
within the East Beaver Creek Boulevard easement as of the Execution Date, but that the
To wn shall maintain such streetscape or landscape improvements, if any, that may be
installed after the Execution Date. Asphalt overlays shall not be required prior to
Dedication of each phase of Main Street and, as set forth in Section 4.2(d), the To wn shall
undertake responsibility for asphalt overlays for each phase of Main Street only after
Dedication of each such phase of Main Street. From and after Dedication of each phase
of the permanent alignment of Main Street, the terms and conditions of clause (iii)below
shall apply to such Dedicated phase.
(iii)Future Public Roads and Rights-of-Wa y. Future public road
rights-of-way (including future phases of the permanent alignments of Main Street and
East Beaver Creek Boulevard) shall be Dedicated to the To wn by Recording of the
pertinent final plat or, if acceptable to the Town, by Recording of a special warranty deed
in the form attached as Exhibit B of this Development Agreement upon generally the
same terms and conditions as the conveyances referenced in clause (i)above. Upon
completion of construction, Public Improvements located within public road
rights-of-way shall be Dedicated to the To wn by bill of sale. Concurrently with the
Dedication, the To wn shall grant Preliminary Acceptance of the pertinent property
interests and Public Improvements. Upon expiration of the warranty period and
resolution of any warranty matters that might arise during the Preliminary Acceptance
period, the To wn shall grant Final Acceptance. With respect to the primary road
providing access to Planning Area K, the To wn and Master Developer acknowledge it is
intended that the road will be a public road from the Post Boulevard roundabout located
north of Interstate 70 to a point approximately adjacent to the northwest corner of Lot 73
as indicated on the PUD Master Plan in effect as of the Effective Date, and will be a
private road from that point through the remaining area of Planning Area K. The final
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point of demarcation will be established at the timing of final subdivision plat. The Town
shall have no maintenance or snow removal responsibility for the portion of such road
that is private.
(iv)Sidewalk Snow Removal. The To wn’s obligation pursuant to this
Development Agreement to remove snow from sidewalks shall be limited to Post
Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment
existing as of the Ex ecution Dateand the future final Main Street alignment), Swift
Gulch Road, Fawcett Road and Yo der Av enue. Maintenance of other sidewalks along
public roads shall be in accordance with generally applicable standards set forth the
Municipal Code (as amended from time to time) and applied uniformly throughout the
To wn.
(c)Phased Road Improvements.
(i)Generally. All roads, including Main Street and East Beaver
Creek Boulevard (as such roads are identified on the PUD Master Plan), may be
developed in phases in accordance with the road standards set forth in Exhibit F of the
PUD Guide and as warranted based on the applicable traffic study.
(ii)Main Street. Without limiting the generality of the foregoing,
construction of the final alignment of Main Street shall consist of converting the existing
alignment and road surface from temporary to permanent by the phased construction
thereof in accordance with the road standards set forth in Exhibit F of the PUD Guide.
(iii)East Beaver Creek Boulevard. The Town shall not require
completion of East Beaver Creek Boulevard as a through road until the earlier of:
(A)such time as it becomes necessary to construct a particular phase of East Beaver
Creek Boulevard to provide a means of ingress to and egress from Sites within Lot1 that
are undergoing vertical development and do not otherwise have access to a public street;
or (B)such time as a particular development proposal within Lot 1 requires completion of
the connection in order to preclude the impact of the approved development proposal
from reducing the level of service (LOS) on Main Street below a designation of “C”
(estimated to be in the range of approximately 8,000 to 11,000 vehicle trips per day) as
established by traffic studies to be provided by a traffic engineer or firm licensed in
Colorado in connection with the particular approved development proposal. Subject to
review by the Town Engineer, the north/south alignment of East Beaver Creek Boulevard
within Planning Areas C and D may be established to include an interim or permanent
connection to Main Street (e.g., East Beaver Creek Boulevard can connect to Main Street
east of Planning Area A and either continue to the roundabout at the southeast corner of
Planning Area F in an interim condition or separate from Main Street and connect to the
roundabout at the northeast corner of Planning Area F in either an interim or permanent
condition) so long as the easterly (roundabout at Post Boulevard) and westerly (where
East Beaver Creek Boulevard enters the Project) connections depicted on the PUD
Master Plan are maintained and each segment of Main Street is maintained at not lower
than LOS “C” (e.g., if the traffic studies demonstrate that LOS “C” can be maintained on
the easterly segment of Main Street with an interim connection as described above,
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completion of the final through connection alignment of East Beaver Creek Boulevard
would not be required).
(d)Dry Utilities. In connection with the Dedication of any public road
rights-of-way (whether by special warranty deed or by final plat),including those rights-of-way
Dedicated pursuant to Section 3.3(b)(i)and subject to such reserved rights,Master Developer or
the pertinent Landowner shall have the right to reserve the exclusive right to install, own,
operate, maintain, repair, replace and control access to all “Dry Utilities” (as defined in the PUD
Guide) located or to be located within Dedicated public road rights-of-way; provided, however,
that such activities shall be coordinated with the Town and all such Dry Utilities shall be located
in such a manner as to comply with Town requirements regarding separation from public utilities
located or to be located within such rights-of-way.
3.4 Municipal Water; Water Rights Dedications. Certain water rights have been
conveyed to, or otherwise acquired by, the Authority to be used in connection with the
development of the Project and to serve uses within the Project, including some of the water
rights and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to
the Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights
to water supplied by the Colorado River Water Conservation District (together with additional
water rights, if any, Dedicated to the Town or to the Authority for such purposes after the
Effective Date pursuant to Section 3.4(c),the “Water Rights”). Pursuant to and as more
particularl y described in the Tank Agreement: (i)as of the Effective Date, TCMD has conveyed
to the Town, and the Town has thereafter conveyed to the Authority, certain interests in the
Water Rights; (ii) the Water Rights conveyed to the Authority as of the Effective Date are
deemed sufficient to provide potable water service up to a maximum of 106.3 acre-feet of
consumptive use per year in accordance with depletion factors decreed in Case No.97CW306;
and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide
the number of single family equivalents (SFE) of potable water service to the Project that is
equivalent to 106.3 acre-feet of consumptive use per year, as more fully set forth in the
augmentation plan approved in Case No.97CW306. The amount of consumptive use
attributable to potable water service pursuant to the depletion factors and other assumptions set
forth in the plan for augmentation decreed in Case No.97CW306 is calculated as 180.6 acre-feet
per year less 74.3 acre-feet per ye ar reserved by the Town for raw water irrigation and lake
evaporation purposes [180.6 –74.3 = 106.3]. The 106.3 acre-feet of consumptive use is referred
to for purposes of this Section3.4 as the “potable water allocation” and the 74.3 acre-feet of
consumptive use is referred to herein as the “raw (non-potable) water allocation.” Additionally,
the Tank Agreement provides that the Town has certain obligations with respect to providing
municipal water service to the Project under circumstances where the Authority fails to provide
such services due to dissolution or otherwise.
(a)Water Bank. Master Developer and the Town shall establish and jointly
maintain a cumulative written record (the “Water Bank”) that documents: (i)the total Water
Rights, stated as the total “potable water allocation” and the total “raw (non-potable) water
allocation;”(ii)the specific portion of the “potable water allocation”that is assigned to particular
Sites; (iii)the specific portion of the “raw (non-potable) water allocation”that is assigned to each
parcel of irrigated area or lake surface for evaporation replacement within the Property
(including such raw water uses as the Town has agreed to serve pursuant to this Development
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Agreement and the Tank Agreement)and (iv)the “potable water allocation” and the “raw
(non-potable) water allocation”remaining available to be assigned for use within the Property.
In connection with each final subdivision plat for a Site (whether processed administratively or
formally) or building permit (if no water allocation, or insufficient water allocation, has
previously been assigned to such Site), and subject to Subsection 3.4(c), Master Developer shall
designate the portion of the “potable water allocation” and the “raw (non-potable) water
allocation”that is assigned for development of the Site, and concurrently with approval of the
pertinent final subdivision plat (or issuance of the pertinent building permit(s))the Water Bank
shall be updated to reflect such allocation and to reflect the corresponding reduction in the
“potable water allocation” and the “raw (non-potable) water allocation”remaining available for
use within the Property. Lot 1 as it is configured on the Effective Date shall be exempt from the
foregoing requirement, but parcels within Lot 1 that are created by further subdivision of Lot 1
for purposes of development shall be subject to the foregoing requirement. The amount of
consumptive use required to service development shall be based on the estimated demand,
depletion factors and other assumptions set forth in the plan for augmentation decreed in Case
No. 97CW306.
(b)Return of Water Rights to Water Bank. If the amount of the “potable
water allocation” and the “raw (non-potable) water allocation”assigned for any particular Site
exceeds the amount of the “potable water allocation” and the “raw (non-potable) water
allocation”actually required to serve the Site based upon actual development and final build-out
thereof (such actual “potable water allocation” and “raw (non-potable) water allocation”demand
to be determined in accordance with generally applicable requirements of the Authority and in
accordance with the depletion factors decreed in Case No.97CW306), the excess and unused
portion of such water allocation shall be returned to the Water Bank and the Water Bank shall be
revised to reflect that such excess and unused portion of such water allocation is available for
assignment and is no longer assigned to the original Site. Excess and unused water allocation
amounts returned to the Water Bank shall be available for allocation in accordance with
Section 3.4(a)as though such water allocation amounts had not previously been allocated from
the Water Bank to serve a particular Site. The determination of excess portion of any water
allocation shall be determined by the Town and subject to the approval of the Authority, pursuant
to their respective generally applicable requirements,and shall be based on consumptive use of
the final build-out of any Site in accordance with the depletion factors and other provisions of the
decree in Case No.97CW306. The Town may require water usage restrictions or maintenance
requirements to prevent any future increase of consumptive water use above the amount
determined necessary to serve the final build-out of any Site.
(c)Additional Water Rights.
(i)For the Property. Full build out of the Project as contemplated by
the Development Plan may require in excess of 180.6 acre-feet of consumptive use. If
the aggregate total Water Rights is insufficient to support full development of the Project
in accordance with the decree in Case No.97CW306 and the PUD Guide,and all
available water allocations under the Water Rights have been assigned to Sites (whether
developed or undeveloped) such that there is no water allocation remaining in the Water
Bank, no further development may occur within the Property unless and until, with
respect to the water allocation required to support such further development:
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(A)additional water rights are Dedicated resulting in additional water allocation amounts
being available for assignment pursuant to the Water Bank; or (B) payment is made of
fees in lieu of additional water rights Dedication; or (C)previously allocated but unused
water allocation amounts are re-assigned from the original Site,and/or from raw (non-
potable) water uses to potable uses, and returned to the Water Bank in accordance with
Section 3.4(b). Acceptance of fees in lieu of additional water rights Dedication shall be
subject to the sole discretion of the Town.
(ii)For a Specific Site. If the water allocation amounts assigned to a
Site in connection with a Development Application are not sufficient to serve the level of
development proposed in the Development Application, the Town may condition
approval of the Development Application on the Applicant satisfying the water allocation
requirements for the Development Application by one or a combination of: (A)obtaining
Master Developer’s allocation of additional water allocation amounts from the Water
Bank; (B)Dedicating such additional water rights (meeting the generally applicable
requirements of the Authority and the Town) as may be required to support the proposed
level of development; or (C)paying such fees-in-lieu of water rights Dedication as may
be required to fully satisfy the water allocation amounts requirement for the Development
Application. The Dedication of additional water rights and the payment of fees-in-lieu of
water rights Dedication shall be subject to review by the Town in accordance with the
Municipal Code, and subject to approval by the Authority or its successor. Under such
circumstances, the additional water rights Dedication or payment of fees-in-lieu shall be a
condition precedent to, as applicable, issuance of the building permit or Recording of the
final subdivision plat.
(iii)Under the circumstances addressed in the foregoing clause (i) and
clause (ii), which provisions shall be strictly construed against precluding development,
the Town shall have no obligation to Record a final subdivision plat or issue a building
permit with respect to a particular Site unless the requisite additional water allocation
amounts obligation is satisfied in accordance with this Section 3.4(c). The determination
of whether Dedication of additional water rights or payment of fees in lieu shall be in
accordance with generally applicable rules and regulations of the Authority and the
Town. Dedications of water rights, if required, shall be made in accordance with
generally applicable Town rules, regulations and agreements with the Authority as in
effect from time to time, it being acknowledged that the Town’s generally applicable
rules, regulations and agreements with the Authority in effect as of the Effective Date
require Dedication to the Town and conveyance of such water rights by the Town to the
Authority.
(d)Building Permits; Moratoria. The To wn shall not withhold issuance of
building permits, certificates of occupancy or processing/approval of Development Applications,
nor shall the Town impose or enforce any moratorium on development within the Project, on the
basis of insufficient Dedication of water rights for development which does not exceed the
consumptive use of the water rights that have been Dedicated pursuant to the Ta nk Agreement
(or which does not exceed the consumptive use of any such additional water rights that may
subsequently be Dedicated or otherwise conveyed) at such time.
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(e)Additional Wa ter Ta nks. If TCMD, any Applicant or any other party
undertakes to construct one or more water storage tanks at an elevation higher than the water
storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any contrary
provision of the Municipal Code (as in effect from time to time), the To wn shall not require the
Applicant to seek a 1041 permit and shall not require the tank site to be a legally subdivided
parcel (provided the owner of the water storage tank has an easement for the operation and
maintenance thereof, and further provided that the Town may require the tank site easement area
to be platted at such time as the pertinent lot(s) or tract(s) within Planning Area K are platted). If
construction of an y such water storage tank is undertaken independent and in advance of
development of the portion of the property to be served by the water storage tank, the Town shall
not require execution of a Public Improvement Agreement or monetary collateral (cash escrow,
letter of credit or similar mechanism) for assurance of completion of the water storage tank;
provided, however, that the To wn may require a bond for the purpose of ensuring erosion
control, mitigation of safety hazards, fencing and other matters related to properly securing the
site if construction is discontinued indefinitely prior to completion. If construction of any such
water storage tank is undertaken as a condition of approval of a Development Application for
development of a Site with respect to which service will be required to be provided from the to
be constructed water storage tank, the To wn may require construction of the water storage tank
and assurance of completion thereof pursuant to the terms and conditions of a Public
Improvement Agreement as otherwise provided in this Development Agreement. The To wn shall
have no obligation to issue a temporary or final certificate of occupancy for a habitable structure
within any Site with respect to which water service cannot be provided without such water
storage tank becoming operational until such time as the pertinent water storage tank becomes
operational. The foregoing shall not preclude the To wn from issuing a building permit prior to
completion of such a water storage tank if the Town determines such action to be consistent with
public health, safety and welfare under circumstances then pertaining (for example, the water
storage tank is reasonably anticipated to be operational prior to completion of the improvements
for which the building permit is issued and the issuance of the building permit is conditioned on
the water storage tank becoming operational prior to issuance of a temporary or permanent
certificate of occupancy).
(f)Tap Fees; Town Obligations Upon Assuming Authority Obligations. If
the Town undertakes to provide water service to the Property in connection with dissolution of
the Authority or otherwise, the Town shall charge water tap fees and usage charges to users
within the Property on a uniform, non-discriminatory basis with other users within the Town.
The Town shall remit monthly to TCMD,subject to annual appropriation to the extent required
by Section 20 of Article X of the Colorado Constitution,100% of all water tap fees collected by
the Town with respect to providing water service to any user of the Property. Alternatively, the
Town may direct that all such users remit water tap fees directly to TCMD. The Town expressly
disclaims any right, title or interest in or to any tap fees payable in connection with development
within the Property, and acknowledges that all such tap fees constitute District Revenues and are
the property of, and shall be due and payable to, TCMD.
3.5 Sanitary Sewer. The Sanitation District, rather than the To wn, provides sanitary
sewer service to the Project. The topography of Planning Area K, the size of the lots contained
in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and
from the facilities of the Sanitation District, together with the comparative ease of servicing
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Planning Area K with individual septic tank and leach field systems, render all or designated
areas within Planning Area K appropriate for exclusion from the Sanitation District.
Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all
or any part of Planning Area K, whether initiated by Master Developer or the Developer of such
portion of Planning Area K.
3.6 Drainage Plans; Stormwater Management. Drainage plans and stormwater
management plans required in connection with the processing of any Development Application
shall be in accordance with the terms and conditions of the PUD Guide. Wi thout limitation of
the foregoing, in processing any Development Application, the To wn shall incorporate the
assumptions of the drainage study prepared by David Johnson for the Property with respect to
reducing the calculated stormwater flows, management and detention requirements based on the
mitigating effect of vegetation within the Property, and the assumptions set forth therein shall
govern and control over any conflicting provisions or assumptions in the To wn’s drainage master
plan. However, if the To wn amends its drainage master plan, which amendment results in less
restrictive or less burdensome provisions than set forth in the David Johnson drainage study,
such less restrictive or less burdensome provisions in the To wn’s drainage master plan shall
apply to the Property.
3.7 Land Dedications. As generally described in Recital K, prior to the Execution
Date the pertinent Landowner fully performed certain land Dedication obligations specifically
required to be performed pursuant to the Original Agreement, and all such Dedications shall be
deemed to have been granted Final Acceptance. This Section3.7 sets forth the sole unperformed
and/or additional obligations of Master Developer, EMD, the Developer Affiliates, or any
pertinent Landowner to Dedicate land (subject, however, to adjustment pursuant to
Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly
based upon and reliant on the specific land Dedication requirements set forth in this Section3.7.
Accordingly, except as otherwise set forth below, during the Te rm and notwithstanding any
current or future provision of the Municipal Code to the contrary (except pursuant to
Section 3.9(b), if applicable), the To wn shall not impose any land Dedication requirement,
impact fee requirement or development exaction of any sort, except for the following, the
performance of which together with prior land dedications and related exactions fully satisfies
and extinguishes any dedication, impact fee and/or development exaction obligations pertaining
to or in connection with development of the Project:
(a)School Site Dedication. The Original Agreement set forth certain
requirements regarding the Dedication of land or cash in lieu thereof to address the impact of the
Project on the school system. Pursuant to the Settlement Term Sheet, the school site provision of
the Original Agreement has been modified as set forth in this Section 3.7(a)and, as of the
Effective Date, Ordinance No. 06-17 and all conditions and restrictions set forth therein are
rendered legall y inoperative, void and of no further force or effect.
(i)Parcels to be Conveyed. The following conveyances (collectively,
the “School Site Dedication”)shall constitute full satisfaction of all requirements under
the Municipal Code (as in effect from time to time)and other current or future Town
regulations with respect to mitigation of the Project’s impact on the school system:
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(A)Concurrently with the Effective Date, TC-RP conveyed to
the To wn the approximately 3.536 acre Site designated on the PUD Master Plan
as Planning Area E (i.e., Lot 3, The Second Amended Final Plat, Amended Final
Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the
Effective Date)). Neither TC-RP, Master Developer, TCMD, any Developer
Affiliate nor any Landowner (other than the To wn or a state accredited
educational entity to which the To wn has conveyed such Site) shall have any
obligation with respect to provision of any Public Improvements or other on-site
or off-site improvements for Planning Area E, all such obligations being the sole
responsibility of the To wn. Accordingly, the To wn hereby grants Final
Acceptance with respect to Dedication of Planning Area E.
(B)EMD (or the Landowner at the pertinent time), shall
Dedicate to the To wn an approximately 3.764 acre Site within Planning Area I
upon Recording of the initial final subdivision plat within Planning Area I.
Neither EMD (or the then-Landowner), TCLLC, TCMD, any Developer Affiliate,
or any other Landowner (other than the To wn or a state accredited educational
entity to which the To wn has conveyed such Site) shall have any obligation with
respect to provision of any Public Improvements for the approximately 3.764 acre
Site within Planning Area I. Accordingly, the To wn shall grant Final Acceptance
with respect to Dedication of the Planning Area I Site concurrently with
Recording of the conveyance documents and no Acceptance, assurance of
completion requirement or warranty period requirements shall apply. Access to
the Planning Area I Site from a public street and extension of utilities and other
Public Improvements shall be addressed through the final subdivision plat
process.
(ii)Use Restriction. Notwithstanding anything to the contrary set forth
in the Municipal Code (as in effect from time to time)or any other statute, ordinance,
regulation or the like, use of the School Site Dedication parcels shall be restricted to state
accredited education facilities serving grades K through 12 (or any portion of such
grades). Each special warranty deed conveying a School Site Dedication parcel shall
incorporate the foregoing use restriction, which use restriction shall be independently
enforceable as a deed restriction and not merged into or construed to preclude
enforcement of the use restriction imposed by this Section 3.7(a)(ii). Any use of the
School Site Dedication parcels shall be subject to prior approval by the Design Review
Board, including potential future uses including but not limited to pre-school, day care,
community education, cultural, and/or are classes, museum, or recreational.
(iii)Form of Conveyance. Conveyance of the Planning Area I School
Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B
to this Development Agreement, shall be without any reversionary clause, subject to all
matters of Record other than monetary liens, and shall contain an express use restriction
consistent with the foregoing Section 3.7(a)(ii). Conveyance of the Planning Area E
School Site Dedication parcel was effected by Recording of a special warranty deed in
the form attached as Exhibit B to this Development Agreement, without any reversionary
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clause, subject to all matters of Record other than monetary liens, and containing an
express use restriction consistent with the foregoing Section 3.7(a)(ii).
(iv)Additional Conditions.
(A)Any use undertaken and any improvements constructed or
installed within the School Site Dedication parcels shall comply with the terms of
the Development Plan and shall be subject to review and approval by the Design
Review Board. Prior to development of the School Site Dedication parcels for
school purposes, the To wn shall be responsible for installing and maintaining any
improvements permitted to be made within the School Site Dedication parcels in
accordance with the use restriction referenced in Section 3.7(a)(ii). After
Dedication of the School Site Dedication parcels to the Town, the Town shall be
responsible for controlling all noxious weeds within the School Site Dedication
parcels.
(B)If Eagle County School District demonstrates a need for a
school site within the Project based on the impact of development within the
Project, the To wn, Master Developer and EMD shall use best efforts to combine
the park land dedicationscontemplated in Section 3.7(d)with the Planning Area I
School Site Dedication parcel to create a consolidated site of sufficient size to
meet the reasonable needs of the Eagle County School District. The preceding
sentence shall not be construed to have the effect of:(i)creating a legal right of
Eagle County School District to obtain a school site within Planning Area I or any
other area of the Property; (ii) creating any legal obligation of the To wn, EMD,
Master Developer or any Landowner or Applicant to provide a school site on
Planning Area I or any other area of the Property to the Eagle County School
District; or (iii) creating a legal obligation of the To wn, EMD, Master Developer,
any Landowner or any Applicant to combine the park land Dedication with the
Planning Area I School Site Dedication parcel. Eagle County School District
shall not be construed to be, and the Parties expressly intend that Eagle County
School District shall not be, an Intended Beneficiary.
(C)The To wn may lease or convey such School Site
Dedication parcels to educational districts or organizations upon such terms as the
To wn determines in its sole discretion provided that: (i)such lease or conveyance
shall be for nominal consideration;and (ii)such lease or conveyance shall be
expressly subject to the use restriction established pursuant to Section 3.7(a)(ii)
and the applicable deed restriction as contemplated by Section 3.7(a)(iii).
(b)Dedication of Planning Area B.Concurrently with the Effective Date,
TC-RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD Master
Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The
Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)).
Neither TC-RP, Master Developer, TCMD nor any Landowner (other than the To wn) shall have
any obligation with respect to provision of any Public Im provements or other on-site or off-site
improvements for Planning Area B, all such obligations being the sole responsibility of the Town
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and not of AURA. Accordingly, the To wn hereby grants Final Acceptance with respect to
Dedication of Planning Area B.Any construction of buildings or facilities or landscaping
improvements on Planning Area B, or any Public Improvements required in connection with the
To wn’s development of Planning Area B,shall be subject to prior approval by the Design
Review Board. The To wn may create a plan for the development and use of Planning Area B,
which may be adopted by the Design Review Board, and which shall then serve as a guide for
review of uses and development of Planning Area B by the Design Review Board. Any use or
plan for use of Planning Area B shall allow and incorporate the ability to construct for storage
and/or augmentation purposes a water feature which can provide at least 2 acre feet of water
storage (which shall not exceed a total surface area of 0.6 acres, including inflow and outflow on
Planning Area B). Notwithstanding the preceding sentence, the To wn shall have the right to
maintain and operate as public open space all or a portion of Planning Area B which is not yet
developed in accordance with this Section. Pursuant to the PUD Guide, the To wn shall
administratively process and approve subdivision re-platting of Planning Area B to adjust the
boundary of Planning Area B in connection with final development of an adjacent Planning Area.
The To wn shall not unreasonably deny, condition or delay final action with respect to a
Development Application to administratively re-plat Planning Areas B as provided herein. Until
such time as Planning Area B is developed or improvements are constructed thereupon that
preclude use of Planning Area B for snow storage, the To wn and Master Developer (or its
assignee(s)) shall have the right to use Planning Area B for snow storagein accordance with the
terms of the Revocable License Agreement.
(c)Planning Areas OS-5 and OS-6. EMD (or the Landowner at the pertinent
time) shall convey Planning Areas OS-5 and OS-6 to the To wn concurrently with Recording of
the initial final subdivision plat for Planning Area I. Neither EMD (or the then-Landowner),
Master Developer nor TCMD shall have any obligation with respect to provision of any Public
Improvements for Planning Areas OS-5 and OS-6. Accordingly, the To wn shall grant Final
Acceptance with respect to Dedication of Planning Areas OS-5 and OS-6 concurrently with
Recording of the conveyance documents and no Preliminary Acceptance or warranty period
requirement shall apply. Such conveyance shall be by special warranty deed in the form attached
as Exhibit B to this Development Agreement, and shall reserve to grantor (or its assigns,
including a District) the right to construct a vehicle/pedestrian bridge crossing across Planning
Areas OS-5 and/or OS-6 including the ability to construct and maintain bridge abutments and
appurtenant roadways. Planning Areas OS-5 and OS-6 shall be conveyed without any
reversionary clause, subject to all matters of Record other than monetary liens. The deed shall
contain an express use restriction limiting use of the sites to open space and no other purposes
(except those uses reserved to grantor as provided above). The To wn shall be responsible for
installing and maintaining all improvements to be made within the open space parcels (other than
those improvements grantor may cause to be installed per the reservation described above).
After Dedication to the To wn, the To wn shall be responsible for controlling all noxious weeds
within the open space parcels. Any improvements to be located within Planning Areas OS-5
and/or OS-6 shall be subject to Design Review Board review and approval.
(d)Park Site Wi thin Planning Area I, J and/or K. As determined by Master
Developer in its sole discretion,Master Developer shall cause the pertinent Developer Affiliate
to Dedicate, or EMD (or the Landowner at the pertinent time) shall Dedicate, 5.8 acres of park
land to be located within Planning Area I, J and/or K. After Dedication, the To wn shall be
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responsible for improving and maintaining the park lands Dedicated pursuant to this
Section 3.7(d)in the To wn’s sole discretion with regard to timing and appropriations. Neither
the then-Landowner, Master Developer nor TCMD shall have any obligation with respect to
provision of any Public Improvements for, or otherwise to improve,such Dedicated park land
acreage. Accordingly, the To wn shall grant Final Acceptance with respect to Dedication of the
park land acreage concurrently with Recording of the conveyance documents and no Preliminary
Acceptance or warrant y period requirement shall apply. The foregoing obligation may be
accomplished by one or more conveyances totaling not less than 5.8 acres in the aggregate. Such
conveyance(s) shall be by special warrant y deed in the form attached as Exhibit B to this
Development Agreement, without any reversionary clause, subject to all matters of Record other
than monetary liens. The deed(s) shall contain an express use restriction limiting use of the
Site(s) to, as applicable to the particular Site,public park purposes and no other purposes,but
which may include trail heads, trail connections, dog park, or natural park (i.e., wetland/natural
resource protection area, hillside slopes, view planes, streambed/buffer and similar natural
condition preservation areas). The To wn shall be responsible for installing and maintaining all
improvements to be made within the park site(s), and for controlling all noxious weeds within
the park site(s).
3.8 Exactions,Fees and Payments. As generally described in Recital K, prior to the
Execution Date development exactions, fees and payments required to be performed and/or made
pursuant to the Original Agreement were fully or partially performed and, to the extent partially
performed are hereby waived and extinguished pursuant to the Settlement Term Sheet and this
Development Agreement. This Section3.8sets forth the sole and exclusive obligations and
requirements with respect to exactions, impact fees and payments required in connection with
development of the Project during the Te rm (subject, however, to adjustment pursuant to
Section 3.9(b), if applicable),and the assumptions underlying the Finance Plan are expressly
based upon and reliant on the specific land Dedication requirements set forth in Section3.7.
Accordingly, and notwithstanding any current or future provision of the Municipal Code (except
pursuant to Section 3.9(b), if applicable), the To wn shall not impose exactions or fees upon
development within the Property for impacts related to schools, fire protection, emergency
services, municipal facilities, public transit,municipal parks or open space which are in addition
to the exactions, fees and payments described in this Development Agreement and/or the PUD
Guide,or which have been previously paid or performed under the Original Agreement (such
exactions, fees and payments fully satisfying and extinguishing any impact fee and/or
development exaction obligations in connection with development of the Project).
3.9 Other Generally Applicable Ta xes, Assessments and Fees.
(a)General. All current and future taxes,and all current and future
assessments and fees (other than the exactions, development impact fees and payments addressed
by Section 3.8), imposed by the Town on a uniform and non-discriminatory basis within the
Town and not expressly addressed in this Development Agreement or in the PUD Guide shall
apply in the same manner and to the same extent within the Property as within the rest of the
Town.
(b)Density Increases by PUD Guide Amendment. The land dedication
obligations set forth in Section3.7 and the exaction, fee and payment obligations set forth in
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Section3.8 are, as stated in such provisions, the sole and exclusive obligations with respect to
such matters; provided, however, that such obligations are predicated on the maximum
residential and commercial densities permitted by the PUD Guide in effect as of the Effective
Date (including the minimum residential and commercial densities set forth therein for Planning
Area I). Accordingly, to the extent the PUD Guide in effect as of the Effective Date is amended
after the Effective Date to increase the maximum commercial and/or residential densities
permitted by the PUD Guide (as so amended), the Town shall have the right to evaluate the
impacts of such increased densities and to condition approval of such PUD Guide amendment on
the imposition of additional land dedication and/or exaction, fee or payment obligations that
correspond to the increment of increased density approved in such amendment. The additional
requirements, if any, shall be based on the Municipal Code requirements in effect as of the
submittal date of the pertinent PUD Guide amendment as applied only to the increment of
increased density approved in such PUD Guide amendment. By way of example, if a PUD
Guide amendment is approved which increases the maximum commercial density within the
Project by 100,000 square feet, the maximum additional obligation with respect to matters
addressed in Sections3.7 and 3.8 shall be limited to what would be required to mitigate 100,000
square feet of commercial density under the Municipal Code requirements in effect on the
submittal date of the PUD Guide amendment application. With respect to Planning Area I, any
future PUD Guide amendment which establishes the minimum residential and commercial
densities stated in the PUD Guide in effect as of the Effective Date shall not result in the
imposition of an y additional obligations with respect to matters addressed in Sections 3.7 and
3.8, but any amendment which has the effect of approving commercial or residential densities for
Planning Area I in excess of the minimum densities stated in the PUD Guide in effect as of the
Effective Date may require additional mitigation for the increment of increased density in the
manner described above.
3.10 Prioritized Capital Projects. The Parties have identified the subset of Public
Improvements set forth in Exhibit D (the “Prioritized Capital Projects”) as having particularly
high value in supporting and encouraging the types of development within the areas of the
Project that would produce relatively greater District Revenue and Municipal Payment revenues,
at relatively less Public Improvement cost, and at a relatively earlier point in the development
sequence. It is the Parties’ intent that, subject to market conditions and the terms and conditions
of this Development Agreement (including but not limited to Sections2.5 and 3.3), priority will
be placed on supporting and encouraging investment in the Prioritized Capital Projects in order
to support and encourage development to occur within Planning Areas A, C, D, F and J such that
the Supplemental Bond capacit y available pursuant to the Financing Plan is utilized to encourage
development that has a relatively greater probability of producing relatively greater increases in
District Revenue and Municipal Payments. Accordingl y, unless the Town and Master Developer
agree otherwise in writing, the following requirements shall be binding:
(a)East Beaver Creek Boulevard. Until such time as AURA has fully funded
completion of East Beaver Creek Boulevard as contemplated by Section 6.7(g)(i)or such earlier
time as East Beaver Creek Boulevard has been completed as a through road, $6,200,000
(adjusted as stated below) of the Credit PIF Cap shall be reserved to fund completion of East
Beaver Creek Boulevard in its permanent alignment in the manner contemplated by and subject
to the terms, conditions, phasing,design standards and construction timing obligations set forth
in the PUD Guide and Sections 3.3(b)(iii)and 3.3(c)of this Development Agreement. The
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foregoing amount shall be reduced from time to time in an amount equal to the amount of
Capital Project Costs (whether utilizing Credit PIF Revenues or TIF Revenues) for each phase of
East Beaver Creek Boulevard that is granted Preliminary Acceptance, excluding from such
reduction the Capital Project Costs, if any, attributable to any interim connection that is not
incorporated into the permanent alignment of East Beaver Creek Boulevard as a through road
pursuant to Section 3.3(c)(iii). Any portion of the foregoing reserved amount that has not been
utilized upon completion of the permanent alignment of East Beaver Creek Boulevard as a
through road, or upon a determination that the LOS requirement stated in Section 3.3(c)(iii)has
been satisfied upon full build-out of Lot 1, shall be released and made available to fund other
Cap Amounts as provided in Section 3.10(c).
(b)Other Reserved Funds. Of the total Supplemental Bond capacity available
under the Credit PIF Cap, a total of $17,500,000 (inclusive of the $6,200,000 reserved pursuant
to Section 3.10(a)) shall be reserved to fund Capital Project Costs incurred in connection with
construction of the Prioritized Capital Improvements.
(c)Balance of Supplemental Bond Capacity. The balance of Supplemental
Bond Capacity available under the Credit PIF Cap (after reservation and utilization of the
funding capacity as described in clauses (a) and (b) above) may be utilized in TCMD’s discretion
to fund other Cap Amounts.
3.11 Landscaping/Visual Mitigation for Hurd Lane/Eagle Bend. In order to provide
off-site mitigation for the benefit of the residents of Hurd Lane and Eagle Bend, Master
Developer will, subject to receiving the right-of-way license or other form of approval from the
Town and as otherwise subject to the terms and conditions of this Section 3.11,cause the
following to be installed, in locations mutually determined by Master Developer and the Town,
within the Hurd Lane right-of-way (which is owned by the Town): (i) 75 each of 10’ Colorado
Spruce Trees (either Blue or Green); (ii)55 each of 6-7’ Lilacs; and (iii)Irrigation –Drip poly
tubing with three emitters per plant. Master Developer will be responsible for the cost of the
planting materials, delivery of same to the site, labor and equipment for planting of the plant
materials, and for parts and installation of the irrigation system. Installation will be undertaken
during the planting season in the spring of the year following the Effective Date. The Town will
be solely responsible, at its sole expense, to provide the water tap(s) and water rights (from the
Town’s water rights inventory) for irrigation of the plant materials, any vaults(s) required for the
tap connection, for irrigation of the plant materials, and for maintenance and replacement of the
planted materials commencing on the day of installation. Additionally, the Town shall have the
obligation to provide a license or other form of legal right as may be necessary to enable Master
Developer to perform such plantings, and Master Developer shall have no obligation to perform
such plantings unless/until the Town has issued the appropriate license or similar form of
approval to perform the work in the right-of-way. From and after the initial installation, Master
Developer shall have no further obligation with respect to the plant material or irrigation system,
such obligations being fully assumed by the Town as of the date of installation. Master
Developer may satisfy this obligation with the Town’s consent by tendering a cash payment to
the Town in an amount acceptable to the Town for the sole purpose of purchasing and installing
the landscaping/visual mitigation described herein, and if the Town receives and accepts such
cash payment then the Town shall provide to Master Developer a written acknowledgement and
release that Master Developer has satisfied in full its obligations in this Section 3.11.
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ARTICLE4
MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA
4.1 Municipal Services. The Town shall have the ongoing responsibility and
obligation to provide all municipal services to the Property and the Project including, without
limitation, police protection, snow removal and road maintenance, maintenance (including repair
and replacement)of streetscape improvements and landscaping within public road rights-of-way,
bus transportation services, asphalt overlay of public roads, building code enforcement and other
administrative services equivalent (except as expressly modified or qualified by Sections 3.3(b),
3.4, 4.2(c)and 4.2(d))to those services provided to any other area of the Town on a uniform and
non-discriminatory basis (collectively, the “Municipal Services”). The Parties acknowledge the
To wn provides public transit services as part of the Municipal Services based on a variety of
factors including demand, the To wn’s transit planning policies, funding availability and similar
considerations and, accordingly, does not provide public transit service within all areas of the
To wn or make a representation or commitment regarding when and to what extent the Town may
provide public transit service within the Property. As such, the To wn shall not deny any
Development Application based on a lack of transit services or the inability of the To wn to
provide transit services, and no approval of a Development Application shall be conditioned
upon any party or entity other than the To wn providing transit services. The Town’s receipt of
Municipal Payments during the Term as generally described in Section 6.5, together with the
additional revenues described in Section 6.16, is in consideration of the Town’s providing
Municipal Services. The Municipal Payments and additional revenues described in Section6.16
shall be conclusively deemed and construed to fully offset the Town’s cost of performing its
Municipal Services obligations pursuant to this Development Agreement, such that no Party
shall assert or claim that such Municipal Payments revenues are either inadequate or excessive,
no Party shall assert or claim any right to an increase in or a reduction of such Municipal
Payments revenues, and the Town shall not withhold, suspend or terminate the provision of any
of the Town’s Municipal Services obligations pursuant to this Development Agreement. After
expiration of the Term, the Town shall continue to provide Municipal Services in accordance
with the Town’s general obligation to provide municipal services throughout the Town.
4.2 Town Obligations. Without limiting or negating any Town obligation set forth in
another Article of this Development Agreement or narrowing by implication the Town’s
obligations pursuant to Section 4.1, the Town shall perform the following obligations:
(a)Tax Credit. As contemplated by the Original Agreement and codified at
Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the Execution
Date), the To wn has established the Ta x Credit. During the Te rm, the To wn shall not take any
action to modify, reduce, terminate, suspend or otherwise prevent the Ta x Credit from attaching
to Ta xable Tr ansactions occurring within the Project, including but not limited to enacting any
amendment to Sections 3.08.035, 3.12.065 and/or 3.28.075, or to any other provision of the
Municipal Code, that would have such effect.
(b)Cooperation in Implementation of Add-On RSF. As more particularly set
forth in Section 6.5(d), the Town will cooperate with the PICs to effect the implementation of the
Add-On RSF with respect to existing and future retail businesses within the Project, including
but not limited to: (i) assisting in the coordination and implementation of reporting forms;
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(ii)participating with the PICs in meetings with representatives of such retailers regarding the
nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may
request from time to time.
(c)Assumption of TCMD Maintenance Obligations. From and after the
Effective Date, the To wn shall assume and be responsible for the performance of all of TCMD’s
current and future maintenance, repair and replacement obligations with respect to Public
Improvements (including but not limited to all Dedicated and Accepted public road right-of-way
landscaping, Nottingham Dam, Nottingham-Puder Ditch, irrigation systems and water wells, the
wet well located within PA -F, tree replacements and, subject to Section 3.3(b)(iv), snow
removal). The To wn shall have sole discretion to determine the appropriate maintenance of
Nottingham Dam, which shall include but is not limited to maintenance, repair, replacement,
improvement, expansion, decommission, removal and deferral of any activity. Notwithstanding
the forgoing, TCMD shall retain responsibility to cause the following obligations to be
performed utilizing District Revenues available to it for such purposes:
(i)Parking Structures. Maintenance of the existing Traer Creek Plaza
public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1,
Recorded on May 8, 2002, at Reception No. 795007 (identified as “Unit 1” or the
“Parking Unit” in the Condo Plat Map Recorded on the Effective Date)and, except to the
extent TCMD and the Town otherwise agree in writing, any additional public parking
facilities or structures that TCMD or another District may construct in the future.
(ii)Lot 2 Internal Landscaping. Any landscaping maintenance
obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on
May 8, 2002, at Reception No.795007 to the extent arising from TCMD’s status as
owner of the Traer Creek Plaza public parking structure located therein (identified as
“Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date).
(iii)Tract E. Maintenance of the park and flag pole located within
Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at
Reception No.795007.
(d)Asphalt Overlays. Subject to the terms and conditions of the Asphalt
Overlay Agreement and Section6.6, the To wn shall perform asphalt overlays for all Dedicated
public roads located in the Project subject to the following terms and conditions:
(i)Prior to Te rmination of Joint Funding. Until the shared funding
contributions terminate pursuant to Section 6.6(b):
(A)The Town shall commence overlays on Dedicated roads
within the Project at such time as jointly determined necessary by the Town and
TCMD.
(B)As more particularly set forth in the Asphalt Overlay
Agreement (including but not limited to Section 5(b) thereof regarding deemed
consent under certain facts), TCMD and the Town each must provide written
approval prior to the release of any funds from the Asphalt Overlay Account.
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(C)The To wn’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay A ccount.
(D)The To wn’s obligation to deposit funds into the Asphalt
Overlay Account shall be limited to the portion of the Municipal Payments the
Add-On RSF Collection Agent deposits on behalf of the To wn pursuant to
Section 5.2(c), and the To wn shall have no obligation to contribute funds from
any other source.
(ii)After Te rmination of Joint Funding. From and after the date upon
which the shared funding contributions terminate pursuant to Section 6.6(b):
(A)The Town shall be solely responsible for all costs of asphalt
overlays for Dedicated public roads in the Project.
(B)The Town shall schedule and perform such asphalt overlays
in a manner materially consistent and commensurate with other public roads in
the To wn having similar characteristics in terms of traffic volume, age of road
surface and similar factors.
(e)Easement for Access to Planning Area I. As of the Execution Date, the
Town has acquired fee title to the Forest Service Village Parcel. The Town agrees and covenants
thatthe Town shall provide consent,as the ownerof the Forest Service Village Parcel,to EMD
(or to the then-Landowner of Planning Area I) to submit a subdivision application for the Forest
Service Village Parcel to plat and dedicate a public road right-of-way and to construct a public
road in accordance with the applicable procedures and standards set forth in the PUD Guide and
the Municipal Code. The Town has executed the Covenant and Temporary Easement Agreement
in the form set forth in Exhibit C and shall cause the Covenant and Temporary Easement
Agreement to be Recorded on the Effective Date (or as soon thereafter as practicable)and prior
to the Town Recording any conservation easement or any other real estate instrument which may
limit the ability to plat a public road right-of-way or construct a public road. The Covenant and
Temporary Easement Agreement shall run with the land and any conveyance or grant by the
Town of any interest in the Forest Service Village Parcel shall be expressly subject to the
Covenant and Temporary Easement Agreement. The Town, as owner of the Forest Service
Village Parcel, shall cooperate with EMD (or the then-Landowner of Planning Area I) with
respect to establishing the alignment and platting of the right-of-way for the public road over the
Forest Service Village Parcel. Construction, Dedication and Acceptance of the public road over
the Forest Service Village Parcel shall be pursuant to the pertinent Public Improvement
Agreement and the Covenant and Temporary Easement Agreement shall terminate upon Final
Acceptance of the pertinent Public Improvements on the Forest Service Village Parcel. Should
the Town not have acquired the Forest Service Village Parcel prior to such time as access is
needed to commence the process for constructing an access road to Planning Area I, the Town
agrees to acknowledge, confirm and represent to the owner of the Forest Service Village Parcel
that the PUD Master Plan approved by the Town depicts a road crossing the Forest Service
Village Parcel to provide access to Planning Area I.
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(f)Service Plans. The Town has adopted Ordinance No.12-10 which
amends Chapter 18 of the Municipal Code to state that certain that provisions concerning
material modification do not apply to TCMD and VMD. During the Term, the Town shall
maintain the foregoing amendment to Chapter 18 of the Municipal Code in effect without
modification, shall not take an y action to explicitly or implicitly repeal, reinstate, alter or re-
impose those provisions of Chapter 18 of the Municipal Code from which TCMD and VMD
were exempted by operation of Ordinance No.12-10,and shall not impose other regulations
which would have the effect of establishing definitions, requirements or procedures concerning
the determination of material modification as applied to TCMD and VMD that are inconsistent
with, more rigorous than or otherwise expand the scope of such determination as set forth in
Colorado statues as may be amended from time to time.
(g)Urban Renewal. If it is determined that Lot 1 will be included within an
urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section6.7, the Town shall, utilizing all authority legally available toit as a
home rule municipality under Colorado law, take such steps as may be necessary to assure
compliance with the conditions set forth in Section6.7.
4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban
renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in
accordance with Section6.7, AURA shall take such steps as may be necessary to assure
compliance with the conditions set forth in Section 6.7 and the related obligations set forth in
Section6.17.
ARTICLE5
OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND DEVELOPER
AFFILIATES
5.1 Obligations of TCMD. Without limiting or negating any TCMD obligation set
forth in another Article of this Development Agreement, TCMD shall perform the following
obligations:
(a)Asphalt Overlay. TCMD shall perform its obligations with respect to
funding of the Asphalt Overlay Account in accordance with the terms and conditions of
Section 6.6(a)(iii).
(b)Notice of Financings. TCMD shall give to the Town forty-five (45) days’
prior written notice of its intent to finance and/or construct any Capital Projects utilizing
Supplemental Bonds.
(c)Add-On RSF. TCMD shall cooperate with the PICs to the extent
reasonably necessary and appropriate in the imposition and administration of the Add-On RSF.
TCMD will cooperate with the PICs to effect the implementation of the Add-On RSF with
respect to existing and future retail businesses within the Project, including but not limited to:
(i)assisting in the coordination and implementation of reporting forms; (ii)participating in
meetings with representatives of such retailers regarding the nature and purpose of the Add-On
RSF; and (iii)such other steps and actions as the PICs may request from time to time. During
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the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect,
TCMD shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the
Add-On RSF from attaching to applicable retail sales transactions occurring within the Project.
(d)Utilization of Credit PIF Revenues. During the Term, TCMD shall utilize
Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a)and shall apply
Credit PIF Revenues in the priority set forth in Sections 6.9(b),6.9(c)and 6.9(d).
(e)Cooperation and Compliance. TCMD shall provide its reasonable
cooperation and compliance with applicable legal requirements to allow a lawfully eligible
candidate designated at the option of BNP to be elected or appointed as a director of TCMD.
5.2 Obligations of PICs.
(a)Credit PIF. During the Term, the PICs shall take all legally available
actions to maintain the Credit PIF in effect and shall take no action to modify, terminate, suspend
or otherwise interfere with TCMD’s right to receive and utilize the Credit PIF Revenues.
(b)Add-On RSF. Concurrently with the Effective Date, the board of directors
of each PIC has caused the Recording of an amendment to the respective PIF Covenants having
the effect of imposing the Add-On RSF. In order to effectuate the Parties’ intent regarding the
collection and remittance of the Add-On RSF Revenues, each PIC, the Town and the Add-On
RSF Collection Agent have executed and legally entered into an Add-On RSF Collection
Services Agreement. During the Term and provided the Town is performing its obligation to
maintain the Tax Credit in effect, each PIC shall:
(i)Collection of Add-On RSF. Pursuant to its authority under and in
accordance with the terms and conditions of the PIF Covenants,take all legally available
actions to maintain the Credit PIF in effect,continue to impose the Add-On RSF and
undertake to cause the collection and remittance of the Add-On RSF Revenues by or to
the Add-On RSF Collection Agent for disposition in accordance with the applicable Add-
On RSF Collection Services Agreement and the terms and conditions of this
Development Agreement.
(ii)Remittance of Municipal Payments.
(A)Undertake to cause the Add-On RSF Collection Agent to
remit to the Town all Municipal Payments as and when due pursuant to the terms
and conditions of the applicable Add-On RSF Collection Services Agreement and
this Development Agreement.
(B)Take no action to modify, terminate, suspend or otherwise
interfere with the Town’s right to receive and utilize the Municipal Payments in
the manner and for the purposes authorized pursuant to this Development
Agreement and the applicable Add-On RSF Collection Services Agreement.
(c)Asphalt Overlay Account. As more particularly set forth in the Add-On
RSF Collection Services Agreement, the PICs (jointly with the Town) shall cause the Add-On
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RSF Collection Agent to deposit the designated portion of the Municipal Payments into the
Asphalt Overlay Account on behalf of the Town as follows:
(i)Initial Five Ye ars. Commencing in 2013 and continuing through
and including November 1, 2017, the Add-On RSF Collection Agent shall deposit into
the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY
THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF
Collection Agent.
(ii)Subsequent Ye ars. Commencing in 2018 and continuing through
and including the date on which termination occurs pursuant to Section 6.6(b), the Add-
On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first
$75,000.00 SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually
received by the Add-On RSF Collection Agent.
(iii)Post-Te rmination. From and after the date on which termination
occurs pursuant to Section 6.6(b), the PICs (jointly with the To wn) shall cause the Add-
On RSF Collection Agent to remit all Municipal Payments directly to the To wn as
otherwise provided in the Add-On RSF Collection Services Agreement and in accordance
with the terms and conditions of Section 5.2(b).
5.3 Obligations of Master Developer. Without limiting or negating any Master
Developer obligation set forth in another Article of this Development Agreement, Master
Developer shall perform the following obligations:
(a)Asphalt Overlay. Master Developer shall perform its obligations with
respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions
of Section 6.6(a)(iv).
(b)Conveyance of Park Site in Planning AreasI, J and/or K. Pursuant to
Section 3.7(d), Master Developer shall cause the then-current Landowner to convey to the Town
such sites within Planning Areas I, J and/or K as may be determined necessary or desirable in
satisfying such obligation.
(c)Add-On RSF. Master Developer shall cooperate with the PICs to the
extent reasonably necessary and appropriate in the imposition and administration of the Add-On
RSF. Master Developer will cooperate with the PICs to effect the implementation of the Add-On
RSF with respect to existing retail businesses within the Project, including but not limited to
assisting in the coordination and implementation of reporting forms, meetings with
representatives of such retailers regarding the nature and purpose of the Add-On RSF and such
other steps and actions as the PICs may request from time to time. During the Te rm and
provided the Town is performing its obligation to maintain the Tax Credit in effect, Master
Developer shall take all legally available action to cause the PICs to impose, collect and remit
the Add-On RSF as required pursuant to this Development Agreement, and Master Developer
shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On
RSF from attaching to applicable retail sales transactions occurring within the Project.
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(d)Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will
be included within one or more urban renewal areas, Master Developer shall take such steps, and
cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely
and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s),
subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be
construed to constrain any Landowner from pursuing any property tax appeal proceeding or
change in tax classification of any portion of the Property, nor shall it be construed to require any
Landowner to cause or consent to a change in tax classification of any portion of the Property.
(e)Property Interest. Concurrently with the Effective Date, Master Developer
has caused the execution and delivery of an instrument conveying to BNP’s designee a property
interest sufficient to qualify such BNP designee for election or appointment to hold the office of
director of TCMD. Pursuant to this Section 5.3(e)and the terms and conditions of such
instrument (and any replacement instrument executed to accommodate a BNP replacement
designee or any replacement property interest), Master Developer shall have an ongoing
obligation to cause such BNP designee (or any replacement designee) to hold a sufficient
property interest until such time as there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds.
(f)Landscaping/Visual Mitigation. Master Developer shall perform its
obligations with respect to landscaping and visual mitigation as set forth in Section 3.11.
5.4 Obligations of EMD. Without limiting or negating any EMD obligation set forth
in another Article of this Development Agreement, EMD shall perform the following
obligations:
(a)Conveyance of School Site in Planning Area I. Pursuant to
Section 3.7(a)(i)(B), EMD or the then-current Landowner shall convey to the Town an
approximately 3.764 acre Site within Planning Area I for school purposes.
(b)Potential Combination of Park and School Sites. EMD or the then-current
Landowner shall undertake the efforts contemplated pursuant to Section 3.7(a)(iv)(B)regarding a
potential consolidated school/park Site within Planning Area I.
(c)Conveyance of OS Tracts. Pursuant to Section 3.7(c), EMD or the
then-current Landowner shall convey to the Town the parcels designated in the PUD Master Plan
as OS-5 and OS-6.
(d)Conveyance of Park Site in Planning Area I. Pursuant to Section 3.7(d),
EMD or the then-current Landowner shall convey to the Town such sites within Planning Area I
as may be determined necessary or desirable in satisfying such obligation.
5.5 Obligation of TC-RPRegarding Add-On RSF. Concurrently with the Effective
Date, TC-RP, in its capacity as the “declarant” with respect to the PIF Covenants has caused to
be recorded amendments to the PIF Covenants to implement the Add-On RSF. During the Term
and provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP
shall take all legally available action to cause the PICs to impose, collect and remit the Add-On
PIF as required pursuant to this Development Agreement, and TC-RP shall not take any action to
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1001679.22 FINAL
modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to
applicable retail sales transactions occurring within the Project.
ARTICLE6
FINANCING PLAN
6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD
to finance and construct Capital Projects, to repay the District Debts and to be utilized for other
Permitted Uses. The Tax Credit is granted in consideration of the above-stated uses of the Credit
PIF.
(a)Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit
PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs
have pledged the Credit PIF Revenues to TCMD and the Credit PIF Collection Agent collects
the Credit PIF Revenues on TCMD’s behalf pursuant to the Credit PIF Collection Services
Agreement.
(b)Expiration of Term; Termination of Town Tax Credit. Except as
otherwise provided in Section 6.1(d), TCMD’s right to receive Credit PIF Revenues, the Town’s
right to receive Municipal Payments, and the Town’s obligation to maintain the Tax Credit in
effect each shall terminate concurrently with expiration of the Term. Upon expiration of the
Term and termination of the Town’s Tax Credit, the Town shall be entitled to impose, receive
and retain all Town taxes applicable to Taxable Transactions.
(c)Termination of Right to Municipal Payments. The Town’s right to receive
the Municipal Payments shall terminate concurrently with expiration of the Term and the
termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(b). If
the Declarant (as defined in the PIF Covenants) elects to continue the imposition of the Add-On
RSF, in whole or in part, after discontinuation of the PICs’ obligation to remit the Municipal
Payments to the Town, then the Add-On RSF Revenues may be used for any purpose permitted
under the PIF Covenants. Notwithstanding expiration of the Term, the Town shall be entitled to
receive Municipal Payments amounts resulting from application of the Add-On RSF to Taxable
Transactions that occurred prior to the date upon which expiration of the Term occurs, such
amounts to be collected and remitted in accordance with the terms and conditions of the Add-On
RSF Collection Services Agreement. Notwithstanding that the Term shall expire upon full
payment of the District Debts, the terms and conditions of this Section 6.1(c)shall survive the
expiration of the Term.
(d)Continuation of Town Tax Credit. If, after the Town’s obligation to
maintain the Tax Credit in effect has been satisfied the Town delivers written notice to the PICs
that the Town is precluded from terminating the Tax Credit, and the Town has in good faith
pursued and failed to accomplish legally available alternatives for terminating the Tax Credit,
then for so long as the Tax Credit remains in effect the PICs shall continue to impose the Credit
PIF and shall remit to the Town on a monthly basis all Credit PIF Revenues actually collected,
less the costs and expenses incurred by the PICs in connection with collecting such Credit PIF
Revenues. In such event, the Town shall have no right or interest in any Add-On RSF Revenues,
and neither the PICs, TCMD nor Master Developer shall have any obligation to cause any
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Municipal Payments to be remitted to the Town. The terms of this Section 6.1(d), if applicable,
shall survive termination of this Development Agreement until such time as the Town terminates
the Tax Credit.
6.2 Tax Credit; Use of Credit PIF Revenues. As contemplated by the Original
Agreement and to partially offset the impact of the Credit PIF, the To wn has established the Ta x
Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the
Credit PIF to each Ta xable Tr ansaction. During the Te rm, the To wn shall maintain the Ta x
Credit in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In
implementation of the Settlement Te rm Sheet, the following terms specify uses of Credit PIF
Revenues:
(a)Permitted Uses. During the Term, TCMD may utilize Credit PIF
Revenues to pay the Cap Amounts and the Non-Cap Amounts (collectively, the “Permitted
Uses”) and for no other purpose.
(b)Credit PIF Cap; Cap Amounts. Subject to reduction by not more than
$10,000,000 (Ten Million Dollars) in accordance with Section6.7 and as otherwise set forth
below with respect to unfunded Supplemental Bond capacity, the amount of the following
obligations to which Credit PIF Revenues can be pledged is $96,000,000 (NINETY SIX
MILLION DOLLARS)(the “Credit PIF Cap”). Only Net Proceeds shall be counted against the
Credit PIF Cap (as qualified in clause (i) below). If,as of January 2, 2040, the Net Proceeds of
all Supplemental Bonds issued on or before January 1, 2040, are less than the otherwise unused
portion of the Credit PIF Cap, the Credit PIF Cap will be reduced in equal amount to the unused
Credit PIF Cap. The following (collectively, the “Cap Amounts”) shall count against the Credit
PIF Cap:
(i)$52,100,000 (FIFTY TWO MILLION ONE HUNDRED
THOUSAND DOLLARS), which is the original amount of the TCMD bonds refunded
pursuant to the TCMD Bond Reissue.
(ii)The Net Proceeds of the Tank Project Bonds in the approximate
amount of $9,000,000 (the precise amount to be established at the time the Water Tank
Bonds are issued).
(iii)The Net Proceedsof the Past Developer Advances in the amount
stated in Exhibit E.
(iv)To the extent issued on or before January 1, 2040,the Net
Proceeds of Supplemental Bonds (including Master Developer contributions to the
Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF
Revenues).
(v)Capital Project Costs that TCMD funds directl y from Credit PIF
Revenues budgeted and appropriated for such purpose.
(c)Non-Cap Amounts. The following costs (collectively, the “Non-Cap
Amounts”) are payable from Credit PIF Revenues but do not count against the Credit PIF Cap:
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(i)Payments of interest and other Bond Requirements incurred with
respect to Cap Amounts and any principal of bond obligations included as District Debts
which is in excess of the Cap Amounts.
(ii)Except as otherwise provided in Section 6.12, the principal amount
and Bond Requirements of any refunding bonds or other debt instruments issued to repay,
refund and/or defease, in whole or in part,the principal and Bond Requirements of the
obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b).
(iii)The Avon Receivable and any refunding thereof.
(iv)The principal amount and interest of Town cure payments, if an y,
pursuant to Section6.13, and any refunding thereof.
(v)Deferred Amortization, and any refunding thereof.
(vi)TCMD’s contributions to the Asphalt Overlay Account.
(vii)The Base O&M Costs.
6.3 Assessment of Public Improvement Fees.Pursuant to the PIF Covenants and as
contemplated in the Original Agreement, the PICs have imposed and shall continue for the
duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance
with the terms and conditions of the PIF Covenants and applicable provisions of this
Development Agreement. Pursuant to the PIF Covenants and in implementation of the
Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to
impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms
and conditions of the PIF Covenants and applicable provisions of this Development Agreement.
(a)Town Real Estate Transfer Tax. In full settlement of any and all claims
that could be raised or asserted regarding whether the To wn’s real estate transfer tax and the
PICs’ Real Estate Tr ansfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart
occup y their present locations within the Project as of the Execution Date or to apply to any
extension(s) of such leases:
(i)Existing Wal-Mart and Home Depot Leases. The Town’s real
estate transfer tax shall not be construed to apply to the leases pursuant to which Home
Depot and Wal-Mart occupy their present locations within the Project as of the Execution
Date or to apply to the election of lessee to exercise its rights to extend such leases in
accordance with the terms of the respective original lease documents as in effect on the
Execution Date.
(ii)Waiver of Claims. Accordingly, the Town hereby fully and
irrevocably waives any and all claim or right to impose its real estate transfer tax, and the
Commercial PIC hereby fully and irrevocably waives any and all claim or right to impose
the Real Estate Transfer Fee, upon the existing leases (together with extensions and
options to extend thereunder) for Wal-Mart and Home Depot.
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(iii)Applicability of Municipal Code. Contemporaneously with the
Execution Date, the Town has adopted Ordinance No.12-11, pursuant to which it has,
effective on the Effective Date,amended Chapter 3.12 of the Municipal Code to clarify
various matters relating to the circumstances under which a long term lease constitutes a
Taxable Transaction for purposes of triggering an obligation to pay the Town’s real estate
transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee
shall be administered based Chapter 3.12 of the Municipal Code as amended by
Ordinance No.12-11 (in the form and in substance as adopted contemporaneously with
the Execution Date) and in effect on the Effective Date. Transactions subject to the
Town’s real estate transfer tax shall be subject to the Real Estate Transfer Fee, and
payment of the Real Estate Transfer Fee shall result in the automatic and simultaneous
application of the Tax Credit. The Real Estate Transfer Fee shall not be construed to be
part of the Taxable Transaction, and the Town shall not apply its real estate transfer tax to
the Real Estate Transfer Fee. If, notwithstanding the foregoing, the Town is legally
required pursuant to state statute to impose and collect its Real Estate Transfer Tax on the
Real Estate Transfer Fee during the Term, the Town shall remit to TCMD, subject to
annual appropriation to the extent required by Section 20 of Article X of the Colorado
Constitution,100% of the Real Estate Transfer Tax revenues actually collected. During
the Term, no amendment to Ordinance No.12-11 or to Chapter 3.12 of the Municipal
Code shall apply to real estate transactions occurring within the Property except with the
prior written consent of Master Developer.
(iv)Applicability to Lease Amendments. The exemption and waivers
of applicability of the Town’s real estate transfer tax to long term leases executed prior to
the Execution Date also shall apply to any amendment to a long term lease that is
executed after the Execution Date that does not have the effect of extending the term of
such lease. With respect only to amendments or modifications of such existing leases
that have the effect of extending the term for a period in excess of 25 years or adding new
options to extend the term for a period in excess of 25 ye ars: (A)the Town’s real estate
transfer tax shall apply to such 25 year or greater extension period to the extent required
by application of Ordinance No.12-11; (B)the consideration upon which the Town’s real
estate transfer tax calculation is based shall be based only upon the lease payments
(exclusive of common area maintenance, taxes, insurance and similar costs)for the
period of the extension greater than 25 years (i.e., the original term of such lease,
inclusive of all extension rights thereunder, shall be disregarded such that there is no
“look back” beyond the date of the extension which triggers the real estate transfer tax
obligation); (C)the Tax Credit shall apply to such lease extensions with respect to which
the real estate transfer tax otherwise would apply such that the PICs shall impose and
collect the Real Estate Transfer Fee and the Town shall collect no real estate transfer tax
as otherwise provided in this Agreement, subject to Section6.18; and (D)the Town and
the PICs shall coordinate in advance to establish an agreed upon methodology for
calculating the amount and timing of Real Estate Transfer Fee payments due with respect
to lease term extensions with respect to which the Town’s real estate transfer tax
otherwise would apply.
(b)Internet, Mail Order and Similar Remote Taxable Transactions. The
Parties intend that retail sales transactions effected remotely should be subject to the Credit PIF
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and the Tax Credit whether such remote transactions are effected via the internet, by mail order
or otherwise delivered into the Project such that the transaction is a Taxable Transaction.
However, due to logistical and practical impediments to causing the Credit PIF and the Tax
Credit to attach to such transactions or otherwise tracking and allocating such revenues, it has not
heretofore been possible to effect the Financing Plan with respect to such remote transactions.
The Parties further recognize that national and state laws and business practices of retailers
regarding imposition of state and local sales tax are evolving and soon may require retailers to
identify and report the address of the point of purchase for internet based retail sales. The Town
agrees that if and when address information of the point of sale for retailers is available to the
Town such that the Town can determine the internet based retail sales specifically attributable to
points of purchase within the Village (at Avon) for which sales taxes are imposed and collected
(or another mechanism is identified), the Town shall use best efforts to cooperate with the PICs
to impose the Retail Sales Fee and Add-On RSF if possible or,in the alternative if imposition of
such fees is not possible, the Town shall cooperate with the PICs to impose, collect and remit the
Town’s retail sales tax to the PICs in accordance with Section 6.18. If the Parties identify a
method of implementing the intent of this Section 6.3(b), such method may be implemented
without the requirement of an amendment to this Development Agreement.
6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term
Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF
Covenants, which require such rates to be set from time to time during the Term at:
(a)Credit PIF Rates:
(i)Retail Sales Fee. Except to the extent of an increased sales tax rate
approved by the To wn for a specific project as set forth in Section 6.4(b)(ii), the same
rate as the corresponding To wn sales tax rate as in effect from time to time. As of the
Execution Date, the To wn sales tax and the Retail Sales Fee each are set at the rate of
4.0%.
(ii)Real Estate Tr ansfer Fee. The same rate as the corresponding
To wn real estate transfer tax rate as in effect from time to time. As of the Execution
Date, the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the
rate of 2.0%.
(iii)Accommodations/Lodging Fee. Except to the extent of an
increased accommodations/lodging tax rate approved by the To wn for a specific project
as set forth in Section 6.4(b)(ii), the same rate as the corresponding To wn
accommodations/lodging tax rate as in effect from time to time. As of the Execution
Date, the Town accommodations/lodging tax and the Accommodations/Lodging Fee each
are set at the rate of 4.0%.
(iv)Use Tax. If the Town imposes any use tax on building materials
during the Term that is not in effect as of the Execution Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in
Exhibit F without the need of any formal action by the Town. The PICs may establish
and impose a building materials use fee, which shall be included in the definition of
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Credit PIF, corresponding to such use tax and applying to the same transactions and at the
same rate as such use tax. The Town may amend its Municipal Code to reflect the
automatic Tax Credit for use tax as set forth in this sub-section, but such an amendment
shall not be required to implement the automatic Tax Credit. The Parties and an y party
obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the
Tax Credit being applied to such transactions in order to offset the effect of the Credit
PIF in the same manner and to the same extent as the Tax Credit applies to retail sales
transactions, real estate transfer transactions and accommodations/lodging transactions.
Prior to adopting any such use tax, the Town shall coordinate with the PICs and other
Parties regarding the implementation of any such use taxes and application of the Tax
Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall
not be deemed to be part of such Taxable Transaction and shall not be subject to
application of the corresponding Town use tax.
(b)Add-On RSF Rate. As of the Effective Date, the PICs have set the
Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are
Ta xable Tr ansactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF
Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of
any other adjustments to such revenues as set forth in this Development Agreement and/or the
Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from
imposition of the foregoing 0.75% rate to retail sales transactions that are Ta xable Tr ansactions
shall constitute the Municipal Payments.
(i)Increase in Town Sales Tax Rate. If the Town increases the
Town’s retail sales tax rate above 4.0 % during any period for which Municipal Payments
are to be remitted to the Town, the portion of the Add-On RSF Revenues which will be
construed to be Municipal Payments shall be reduced in the same degree as any Town
sales tax rate increase above 4.0%. For example, if the Town increases its retail sales tax
rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSF Revenues construed
to be Municipal Payments shall be that amount equivalent to a reduction of 0.25% in the
Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather than the revenue
realized from a rate of 0.75%). As of the Effective Date, the PICs have not imposed an
Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF
required pursuant to this Section 6.4(b).
(ii)Exception for “Project-Specific” Town Tax Rate Increase.
Notwithstanding an yt hing set forth in Sections 6.4(a)(i), 6.4(a)(iii)and 6.4(b)(i)to the
contrary and subject to the terms and conditions set forth in this Section 6.4(b)(ii), the
Town shall be entitled to retain the revenues resulting from an increase in the Town’s
4.0% sales tax rate or 4.0% accommodations tax rate as in effect on the Execution Date to
the extent: (A)such tax rate increase is duly adopted by the Town after the Effective
Date and applies on a uniform basis throughout all areas of the Town; (B) the proceeds of
such tax rate increase are specifically dedicated and pledged solely to a specific project
identified in connection with such adoption;(C) the financing period for such specific
project does not exceed 30 ye ars;and (D) for the purposes of sales tax and not
accommodations tax such increased tax rate does not exceed 0.75%. For purposes of the
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foregoing, a “specific project” shall mean only a specific municipal capital project (by
way of example, construction of a municipal building; construction of a library;
acquisition of specifically identified parcels of real property that are being acquired by
the Town for open space, park or construction of a specific municipal capital project to be
constructed on such property; or similar purposes), and expressly excludes tax rate
increases for the purpose of providing ongoing municipal services (by way of example, to
fund ongoing provision of transit services, trash services or similar open-ended municipal
services funding obligations) or for general fund purposes. With respect to tax rate
increases for a specific project as set forth above, the Tax Credit shall not apply to such
increased rate and the corresponding Credit PIF rate shall not be raised to match the
increased tax rate, but the Add-On RSF rate shall be reduced correspondingl y to the
increased tax rate as set forth in Section 6.4(b)(i)with respect to retail sales transactions.
With respect to an y Town sales tax rate increases that are not for a specific project, the
terms and conditions of Section 6.4(b)(i)shall apply.
(iii)Increased Add-On PIF Rate. To the extent the PICs at any time
after the Effective Date impose an Add-On PIF on transactions other than retail sales
transactions that are Taxable Transactions and/or at a rate higher than the Add-On RSF
rate, the resulting Add-On PIF Revenues shall not be construed to constitute Add-On
RSF Revenues or Municipal Payments. Any Add-On PIF Revenues that do not constitute
Municipal Payments pursuant to this Section 6.4(b)may be utilized as set forth in
Section 6.5(b)(ii).
6.5 Add-On PIF. In implementation of the Settlement Term Sheet, and in
consideration of the Town’s performance of its obligation to provide Municipal Services in
accordance with Section4.1 and the Town’s performance of its obligations pursuant to
Section4.2 and this Article 6:
(a)Collection and Remittance. During the Term, the PICs shall collect, or
cause the Add-On RSF Collection Agent to collect, the Add-On RSF Revenues. In accordance
with the terms and conditions of the Add-On RSF Collection Services Agreement, the Add-On
RSF Collection Agent shall:
(i)Separate Account. Maintain Add-On RSF Revenues in a separate
account from Credit PIF Revenues.
(ii)Remittance of Municipal Payments. Calculate that portion of Add-
On RSF Revenues received during each calendar month which comprises Municipal
Payments, and after calculating that portion of the Municipal Payments required to be
deposited into the Asphalt Overlay A ccount:
(A)Deposit the required amount of Municipal Payments into
the Asphalt Overlay A ccount; and
(B)Remit any remaining Municipal Payments to the To wn.
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(b)Uses.
(i)Municipal Payments. During the Term, the Municipal Payments
shall be utilized first to satisfy the Town’s Asphalt Overlay Account funding obligations
as set forth in Section 6.6 and thereafter may be utilized by the Town for any lawful
purpose.
(ii)Additional Add-On PIF Revenues. To the extent the PICs continue
to impose and collect the Add-On RSF on retail sales transactions that are Taxable
Transactions after expiration of the Term and/or there are from time to time during the
Term Add-On PIF Revenues, including any Add-On RSF Revenues, in excess of the
Municipal Payments (for example, due to a reduction in such Municipal Payments
pursuant to Section 6.4(b)or due to imposition of an Add-On PIF on transactions other
than retail sales that are Taxable Transactions), the PICs may retain and utilize such
additional Add-On PIF Revenues for any lawful purpose permitted under the terms and
conditions of the PIF Covenants. The Town shall have no right or claim to any such
Add-On PIF Revenues, including any Add-On RSF Revenues, that do not constitute
Municipal Payments.
(c)Duration. The Town’s right to receive the Municipal Payments generated
through the PICs’ imposition of the Add-On RSF shall terminate concurrently with the
termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(c)of
this Development Agreement.
(d)Implementation Period. From and after the Execution Date, the Town will
cooperate with the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as
“declarant” under the PIF Covenants) in implementing the Add-On RSF with existing retailers
within the Project, including but not limited to attending meetings with such retailers upon the
request of the PICs and Master Developer (and not independently), coordinating with the PICs
and the Add-On RSF Collection Agent with respect to preparation and dissemination of
reporting forms and similar matters related to the collection and remittance of the Add-On RSF,
and such other matters as the PICs, the Add-On RSF Collection Agent, Master Developer and
TC-RP (as “declarant” under the PIF Covenants) reasonably request in connection with
implementing and facilitating the collection of the Add-On RSF.
(e)Effect of Expiration of Term. Except to the extent otherwise set forth in
the applicable PIF Covenants, expiration of the Term shall not have the effect of terminating the
Add-On RSF or the Add-On PIF and, to the extent the PICs continue to impose the Add-On RSF
and/or the Add-On PIF and to collect the Add-On RSF Revenues or any other Add-On PIF
Revenues after expiration of the Term, all such Add-On PIF Revenues may be utilized as set
forth in Section 6.5(b)(ii).
6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the
Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD and First
Bank, Avon Branch, have legally delivered and entered into the Asphalt Overlay Agreement.
Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement, the Town has
established with First Bank, Av on Branch,a restricted, segregated account (the “Asphalt
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Overlay Account”) into which the Master Developer, the To wn and TCMD shall deposit funds
in the amounts and at the times set forth below. Such funds shall be used exclusively to finance
asphalt overlays of public roads located in the Project Dedicated to the To wn as described in
Section 4.2(d). The Asphalt Overlay Account shall be subject to and administered in accordance
with the terms and conditions of the Asphalt Overlay Agreement and the following terms and
conditions:
(a)Joint Funding Obligations. Commencing on the Effective Date and
continuing until terminated pursuant to Section 6.6(b), Master Developer, the To wn and TCMD
each shall contribute funds to the Asphalt Overlay Account as follows:
(i)Due Dates. All payments are due and payable on or before
November 1 of each year commencing in 2013.
(ii)To wn Contribution. Utilizing Municipal Payments to be deposited
into the Asphalt Overlay Account in accordance with Sections 5.2(c), 6.5(a)(ii)(A)and
6.5(b)(i):
(A)For calendar years 2013 through 2017, the To wn shall
contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS)
per year.
(B)For calendar years 2018 through and including the date on
which termination occurs pursuant to Section 6.6(b), the To wn shall contribute
$75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year.
(iii)TCMD Contribution. Such contributions being Non-Cap Amounts
and using available District Revenues:
(A)For calendar years 2013 through 2017, TCMD shall
contribute $40,000.00 (FORTY THOUSAND DOLLARS) per year.
(B)For calendar years 2018 through and including the date on
which termination occurs pursuant to Section 6.6(b), TCMD shall contribute
$75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year.
(iv)Master Developer Contribution. Such contributions being Cap
Amounts only to the extent reimbursable from TCMD using Credit PIF Revenues (and
therefore qualifying as Additional Developer Advances):
(A)For calendar years 2013 through 2017, Master Developer
shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year.
(B)Notwithstanding any continuing obligation of the Town and
TCMD to contribute funds to the Asphalt Overlay Account after calendar year
2017, Master Developer shall not have any obligation to contribute funds to the
Asphalt Overlay Account after satisfying the obligation set forth in the foregoing
clause (A).
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(b)Te rmination of Joint Funding Obligations. The joint funding obligations
of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the To wn and
TCMD with respect to the Asphalt Overlay Account shall terminate in the earliest calendar year
in which one of the following occurs: (i)80,000 square feet of additional commercial (as
defined in the PUD Guide) development have been issued a temporary or permanent certificate
of occupancy;or (ii) the total annual Ta xable Transactions have increased by at least
$20,000,000 over the actual total annual Ta xable Tr ansactions in 2011. From and after the date
that the joint funding obligations terminate as provided herein: (A) the To wn shall be and remain
solely responsible for performing and funding asphalt overlays for all public roads within the
Project Dedicated to the To wn; (B) Master Developer and TCMD shall have no further
obligation with respect to funding of asphalt overlays within the Project; (C) the obligations of
Master Developer and TCMD to provide such funding shall not be reinstated upon any
subsequent reduction of commercial occupancy or reduction of total annual Ta xable
Tr ansactions; and (D) the expenditures and appropriations by the To wn for asphalt overlays in
excess of the amounts deposited in the Asphalt Overlay A ccount shall not be counted against the
Credit PIF Cap.
6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In
implementation of the Settlement Term Sheet, the Master Developer and the Landowner(s) of the
affected Sites within Lot 1 shall provide their timely, full and reasonable cooperation in assisting
the Town and AURA in the creation of an urban renewal plan for Lot 1 in accordance with the
terms and conditions of this Section6.7; provided, however, that Master Developer and any
other Landowner(s) shall not be required to cooperate in the creation or implementation of such
urban renewal plan unless Master Developer has provided its written consent to all terms and
conditions of the urban renewal plan prior to its adoption. Master Developer and any other
Landowner(s) shall have the right to oppose any urban renewal plan for Lot 1 (or any other area
of the Property) that does not include a provision that expressly prohibits the Town or AURA
from exercising eminent domain powers or, unless Master Developer has provided its written
consent to such urban renewal plan for Lot 1 as contemplated herein, for any other reason
permitted under the laws of the State of Colorado. Master Developer or any Landowner(s) of a
Site within Lot 1shall have no obligation to cooperate with the formation of an urban renewal
plan area for Lot 1 if Master Developer has not provided prior written consent as required above
or if the Town and/or AURA fails to adhere to the following terms and conditions.
(a)Limited to Lot 1. The area included within the urban renewal plan is
limited to Lot 1 or a portion thereof.
(b)Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN
MILLION DOLLARS) of proceeds available for the payment of Capital Project Costs from
bonds or other financial obligations (whether in the form of bonds, direct payments,
redevelopment agreement(s) and/or cooperation/funding agreement(s)) issued or incurred by
AURA to pay Cap Amounts may be counted against and thereby reduce the remaining Credit
PIF Cap; provided, however, that the cost of improvements to or servicing Town-owned
properties (by way of example and not limitation, improvements located within, utilities
extensions servicing and/or access to and from Planning Area B, Planning Area E, or park/open
space areas Dedicated to the Town), whether financed utilizing TIF Revenues or other revenues
of the Town or AURA, shall not result in a reduction of the Credit PIF Cap. Nothing in this
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Section 6.7(b)constitutes a limit on AURA’s ability to finance improvements it deems
appropriate. The restriction in this Section 6.7(b)relates only to whether bonds issued by AURA
to pay for the costs of such improvements count against the Credit PIF Cap.
(c)AURA Board Positions. Prior to or concurrently with the effective date of
any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an
urban renewal plan therefore, the Town and AURA shall take action to appoint an individual
designated by Master Developer and shall take action to appoint an individual designated by
BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA
board. The Master Developer and BNP board members shall be full members of the AURA
board with equal rights, duties and responsibilities as other AURA board members with respect
to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the
redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof)
and all AURA activities of any nature that directly or indirectly involve the establishment,
implementation and administration of any urban renewal area including or any urban renewal
plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with
statutory requirements regarding conflicts of interest. If the AURA board for activities affecting
Lot 1 is constituted as a separate board from that which operates within other areas of the Town,
such BNP and Master Developer board members shall be full members for all purposes having
equal standing with other board members. If the AURA board is not constituted as a separate
board from that with operates within other areas of the Town, the BNP and Master Developer
board members shall have no authority or standing to participate in AURA board activities
pertaining to areas of the Town other than Lot 1, and shall recuse themselves from all such
proceedings. BNP’s right to have a member on the AURA board shall expire and terminate at
such time as there are no outstanding obligations to BNP under the TCMD Reissue Documents
or any subsequent reissue or refunding of such bonds.
(d)TCMD and VMD Taxes. The urban renewal plan for any urban renewal
area that includes Lot 1 (or any portion thereof), and all related governing and implementing
documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the
propert y of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD
and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem
Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1
(or an y portion thereof) within the urban renewal area. No portion of the property tax increment
revenues resulting from the Districts’ mill levies shall be retained or utilized by AURA for any
purpose, and shall specifically not be pledged or utilized by AURA for repayment of an y bonds
issued or other financial obligations entered into by AURA.
(e)TIF Revenues; Uses. The urban renewal plan(s) shall not contain any
provision for capturing the increment of municipal sales taxes, and shall be expressly limited to
capturing the increment of property taxes within the urban renewal area (subject to
Section 6.7(d)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s)
containing all or any part of Lot 1 solely within the Project. Improvements undertaken or
financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and
approval of the Design Review Board where applicable.
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(f)Funding Agreement(s) with Districts. AURA may enter into enforceable
multiple fiscal year cooperation/funding agreements with a District providing that the TIF
Revenues will be assigned to the District for the purpose of financing, through the District’s
issuance of bonds or otherwise, eligible Capital Projects.
(g)Priority of Use of TIF Revenues. The priority of AURA’s use of TIF
Revenues generated from within the urban renewal plan area(s) established within the Property
pursuant to this Section 6.7 are:
(i)First, until the Credit PIF Cap reduction contemplated by
Section 6.7(b)has been accomplished or unless Master Developer and AURA otherwise
agree in writing, to fund any then-uncompleted phases of East Beaver Creek Boulevard
as a through road in accordance with Section 3.10(a).
(ii)Second, to the extent the Credit PIF Cap reduction contemplated
by Section 6.7(b)has not been accomplished by satisfaction of the foregoing clause (i), to
fund from the remaining amount of Credit PIF Cap reduction contemplated by
Section 6.7(b)the Capital Project Costs of any Prioritized Capital Projects within Lot 1
that have not previously been financed and completed.
(iii)Third, in a priority to be determined by AURA:
(A)improvements to or servicing Sites that the Town owns
within Lot 1 (which may include structured parking within Lot 1 to provide
shared public parking for private improvements and public improvements
constructed within Planning Area B and other areas of Lot 1);and
(B)any other Capital Projects that result in a reduction of the
Credit PIF Cap pursuant to the terms and conditions of Section 6.7(b).
6.8 Tank Agreement. Prior to the Effective Date and in implementation of the
Settlement Term Sheet, certain parties thereto legally delivered and entered into the Tank
Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge
Agreement has been executed and delivered. As more specifically set forth in the Tank
Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i)
TCMD is obligated to remit the Annual Debt Service Obligation to the Authority; and (ii) the
Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service
Obligation revenues to pay debt service on the Tank Project Bonds. As of the Effective Date,
BNP has provided the original letters of credit securing payment of the TCMD Bond Reissue,
consented to this Development Agreement and consented to the Tank Agreement in reliance on
the Town’s performance of its obligation to maintain the Tax Credit in effect as required
pursuant to this Development Agreement, and on the remedies provided for herein for the
Town’s breach of its obligation to maintain the Tax Credit.
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6.9 TCMD Bond Reissue; Priority Use of District Revenues. In implementation of
the Settlement Term Sheet:
(a)TCMD Bond Reissue. Concurrently with the Effective Date and with the
consent of BNP and Master Developer, TCMD has caused the TCMD Bond Reissue to be
effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in
reliance on the Town’s performance of its obligations pursuant to this Development Agreement
(specifically including but not limited to the Town’s obligation to maintain the Tax Credit in
effect during the Term), and on the remedies provided for herein for the Town’s breach of its
obligations under this Development Agreement (including but not limited to the right to obtain
an order requiring specific performance of the Town’s obligation to maintain the Tax Credit).
The TCMD Reissue Documents encumber and, consistent with the Settlement Term Sheet,
establish the terms and conditions of TCMD’s utilization of District Revenues. Prior to the
Effective Date, the Town reviewed and approved the TCMD Reissue Documents for consistency
with this Development Agreement.
(b)Priority of Use of District Revenues. District Revenues are to be utilized
to meet TCMD obligations in the following priority:
(i)Annual Debt Service Obligation. To the Authority, for the Annual
Debt Service Obligation, from such sources, in the amounts and at such times required by
the Pledge Agreement.
(ii)Other Allowed O&M Expenses. Provided there is no continuing
default with respect to its obligations pursuant to the TCMD Bond Documents, to TCMD
in the amount of the Base O&M Amount and TCMD’s contributions to the Asphalt
Overlay Account.
(iii)TCMD Bond Reissue. To TCMD (or the trustee for the TCMD
Bond Reissue) for principal repayment or reimbursement and Bond Requirements related
to the TCMD Bond Reissue as required by the TCMD Reissue Documents, which
includes, without limitation, establishment and, as necessary, replenishment of the
required reserve of $3,000,000, and any refunding bonds issued to repay or defease the
TCMD Bond Reissue.
(iv)Deferred BNP Letter of Credit Fees and Deferred Amortization.
To pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization.
The prepayment or refinancing of the TCMD Bond Reissue shall require payment in full
of, or other extinguishment in full of the payment obligation with respect to, any such
Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be
applied in inverse order of maturity.
(v)Use of Excess Revenues.
(A)Prepayment of TCMD Bond Reissue. In any year in which
any District Revenues remain after the payment of the items set forth in
subsections (i)-(iv)above and the Debt Service Coverage Ratio is less than 150%,
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such excess revenues shall be applied to early payment of principal of the TCMD
Bond Reissue in inverse order of maturity.
(B)Other Obligations of TCMD. In any year in which any
District Revenues remain after the payment of the items set forth in subsections
(i)-(iv)above and the Debt Service Coverage Ratio is 150% or greater:
1.Supplemental Bonds. To the extent Supplemental
Bonds have been issued (whether in the form of Additional Developer
Advances or municipal bonds), for principal repayment or reimbursement
and payment of interest and other Bond Requirements related to such
Supplemental Bonds in accordance with the terms and conditions thereof
and an y refunding bonds issued to repay or defease any such
Supplemental Bonds.
2.Cure Payments. To the extent the Town has
exercised any cure rights pursuant to Section 6.13 to cure a deficiency in
payment of principal or the Bond Requirements of the Tank Project Bonds
or the TCMD Bond Reissue, to reimburse the Town for the amount of
such payments and interest thereon at the non-default interest rate
commensurate with the interest paid to bondholders at the time of the cure
payment.
3.Past Developer Advances and Avon Receivable. To
satisfy TCMD’s payment obligations with respect to the Past Developer
Advances (including amounts payable to Buffalo Ridge Affordable
Housing Corporation) and the Avon Receivable, subject to the following:
I.The Past Developer Advances (including
any Replacement Bonds issued to repay or defease all or a portion
of the Past Developer Advances) and the Avon Receivable shall be
paid in the order in which TCMD incurred the obligations, with the
oldest obligation to be paid first, except to the extent such priority
of payment conflicts with the priority and terms of the instrument
creating the obligation in which case such priority and terms shall
control. With respect to the Past Developer Advances, the
obligations shall be deemed to have been incurred as of the dates
set forth in the instruments creating the obligations. With respect
to the Avon Receivable, the obligation shall be deemed to have
been incurred as of the dates on which payments were due under
the terms of the Original Agreement and/or any Municipal Service
Invoice (as the Original Agreement defined such term). The Past
Developer Advances, the Avon Receivable, and the dates on which
such obligations were incurred are more particularly described in
Exhibit E.
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II.Simple interest at the rate of 1.5%shall
accrue on the principal amount of the Avon Receivable
commencing on the Effective Date and continuing until the
expiration of the Term or payment in full, whichever first occurs.
III.Except to the extent stated in this
Section6.9(b)(v)(B)3.III, the interest rate applicable to the Past
Developer Advances shall be as stated in the instruments creating
such obligations (as identified in Exhibit E). Notwithstanding the
foregoing or any contrary provision of the instruments creating
such obligations, the interest rate on certain Past Developer
Advances payable to Master Developer or any Developer Affiliate
shall: (A)with respect to a principal amount equal to the principal
amount of the Avon Receivable be limited to 1.5% simple interest
per annum, commencing on the Effective Date; and (B)such
reduced interest rate shall be applied first to the principal balance
of the latest (i.e., most recently executed) such instrument and then
to each subsequent (i.e., next most recently executed) instrument
until a principal amount equal to the principal amount of the Avon
Receivable is obtained.
IV.The rate of interest and priority of payment
with respect to that portion of the Past Developer Advances
payable to Buffalo Ridge Affordable Housing Corporation shall be
as set forth in the document creating such obligation, shall not be
modified in any manner by the terms and conditions of this
Development Agreement, and shall remain in full force and effect
in accordance with the existing terms except to the extent as may
be modified by mutual agreement of TCMD, Master Developer
and Buffalo Ridge Affordable Housing Corporation. Such
agreement to modify the interest rate, priority of payment or other
terms is expressly not a condition of this Development Agreement.
(C)Direct Payment of Capital Project Costs. After the
obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A)and (v)(B)are fully
satisfied and to the extent not expressly precluded by any provision of this
Development Agreement, that portion of available Credit PIF Revenues shall be
deposited to an escrow account to be used exclusively for direct payment of
Capital Project Costs.
(c)Other Legally Permissible Uses of District Revenues. Subject to the
limitations in the Service Plans, the Tank Project Bonds documents and the TCMD Reissue
Documents, nothing herein shall be construed as prohibiting the Districts from utilizing District
Revenues for any other uses not enumerated above or from imposing a mill levy and retaining
the revenues derived therefrom for the purpose of paying for Capital Project Costs and/or of
paying the Districts’ operation, maintenance and administrative expenses to the extent that such
costs exceed the Allowed O&M Expenses; provided, however, that the portion of District
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Revenues comprising Credit PIF Revenues shall be limited solely to the Permitted Uses as set
forth in Section 6.2(a).
(d)Continuation of Priority of Use. If TCMD issues any form of replacement
or refunding bonds for the TCMD Bond Reissue and/or issues Supplemental Bonds, TCMD shall
cause the pertinent documentation executed in connection therewith to incorporate the general
prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve
such documentation at least forty-five (45) days prior to issuance of such replacement or
refunding bonds for the limited purpose of confirming conformance with the general
prioritization set forth in Section 6.9(b).
6.10 Supplemental Bonds. If TCMD issues Supplemental Bonds on or before
January 2, 2040, TCMD shall continue to receive Credit PIF Revenues until expiration of the
Term. If TCMD has not issued Supplemental Bonds prior to January 2, 2040: (i)the Town shall
have no further obligation with respect to any unissued Supplemental Bonds capacity; (ii)the
Tax Credit shall be maintained in effect until all District Debts payable from Credit PIF
Revenues and outstanding as of January 2, 2040,are fully paid and the Term expires as provide
in Section 6.1(b); and (iii)TCMD shall be entitled to retain and utilize all Credit PIF Revenues it
has received prior or subsequent to January 2, 2040, for servicing District Debts or direct
payment of Capital Project Costs. The District shall make commercially reasonable efforts to
obtain the lowest cost of borrowing when issuing Supplemental Bonds. The District may issue
Supplemental Bonds (other than Additional Developer Advances)at fixed interest rates without
the Town’s consent so long as the interest rate for such bonds does not exceed the Municipal
Market Data rate (or, if the foregoing index is no longer published,then the Bond Buyer
Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds
being issued,for Baa investment grade fixed interest rate bonds plus 150 basis points. The
issuance of Supplemental Bonds (other than Additional Developer Advances)which bear interest
at a fixed rate higher than that set forth in the preceding sentence,or which are variable rate
bonds,shall require the prior written consent of the Parties.
6.11 Replacement Bonds. Subject to any applicable terms and conditions of the
TCMD Reissue Documents,on or after the Effective Date TCMD shall have the ongoing right to
issue Replacement Bonds to extinguish, replace, refund or defease Past Developer Advances.
The principal amount of the Past Developer Advances being extinguished, replaced, refunded or
defeased by such Replacement Bonds shall be deducted from and reduce the amount counted
against the Credit PIF Cap. The principal amount of the Replacement Bonds shall not exceed
$12.4 million without the Town’s prior written approval, and the interest rate of such
Replacement Bonds shall bear a lower interest rate than such Past Developer Advances. For the
purposes of determining the maximum allowable interest rate of Replacement Bonds, the interest
rate of Past Developer Advances which are extinguished, replaced, refunded or defeased with
Replacement Bonds (but excluding from such calculation those Past Developer Advances with
respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II)
shall be averaged with regard to the respective interest rate and amount of principal. The interest
rate of Past Developer Advances (excluding those Past Developer Advances with respect to
which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II)shall be as
determined by this Development Agreement on the Effective Date. To the extent the accrued
and unpaid interest payable under the terms of the Past Developer Advance documents is not
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capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be
carried forward as an accrued and unpaid interest obligation under the terms of the Past
Developer Advance documents, the unpaid interest obligation shall not bear any interest, and the
unpaid interest obligation shall not be discharged until paid in full.
6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the
limitations set forth in this Section6.12, TCMD shall have the ongoing right to issue refunding
bonds or other debt instruments to repay, refund and/or defease, in whole or in part, the principal
and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of
Section 6.2(b).The principal and Bond Requirements of such refunding bonds or other debt
instruments shall not count against the Credit PIF Cap. Notwithstanding the foregoing, if the
principal amount of any bonds or other debt instruments issued to repay, refund and/or defease or
otherwise refinance the TCMD Bond Reissue exceeds the then outstanding principal amount of
the TCMD Bond Reissue, only that portion of the increased principal which is in excess of
$52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS) shall be
included in the Cap Amounts and count against the Credit PIF Cap. The interest rates on
refunding bonds are subject to the requirements governing interest rates for Supplemental Bonds
set forth in Section6.10. Without the Town’s prior written consent, the aggregate principal and
interest due on fixed rate refunding bonds or other debt instruments with fixed interest rates,
from their date of issuance to final maturity (disregarding any option to redeem prior to
maturity),shall be less than or equal to the aggregate principal and interest due on the debt to be
repaid, refunded, defeased or otherwise refinanced, from the date of the refunding to final
maturity (disregarding any option to redeem prior to maturity).
6.13 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the
Town shall have the right, but not the obligation, to cure any TCMD payment default under the
Tank Project Bonds, the TCMD Reissue Bonds or any Supplemental Bonds and to receive
reimbursement of any such cure payments in accordance with the terms and conditions of
Section 6.9(b)(v)(B)2.
6.14 Town Funding of Credit PIF Cap. At any time after the TCMD Bond Reissue
obligations have been fully satisfied (including through payment by the Town pursuant to this
Section6.14), the Town shall have the right, but not the obligation, to pay off all or a portion of
the then-outstanding District Debts and/or satisfy the Town’s obligation with respect to funding
the full Credit PIF Cap as follows:
(a)Full Funding of Credit PIF Cap. The Town shall have the right to fully
fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debts; and (ii)remitting
to TCMD the amount, if any, of available but unutilized Credit PIF Cap capacity as of the date of
payoff. The total obligation to TCMD shall not exceed the Credit PIF Cap. For example, if the
sum of the Net Proceedsof previously retired TCMD Bond Reissue obligations and other
District Debts retired by the Town totals $80 million, the amount of unutilized Credit PIF Cap
capacity to be paid by the Town to TCMD would be $16 million [$96 million -$80 million =
$16 million]. Upon remitting the funds to fully fund the payoff amounts pursuant to the
foregoing terms and conditions, the Town shall be entitled to terminate the Tax Credit.
Simultaneously with Town’s exercise of its right to terminate the Tax Credit, the PICs’
obligation to cause the Municipal Payments to be remitted to the Town pursuant to the terms and
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conditions of this Development Agreement, and all right or claim of the Town to receive any
portion of the Add-On RSF Revenues imposed after the date which Town exercises its right to
terminate the Tax Credit, shall automatically and without the requirement of further action
terminate, be of no further force or effect, and be forever extinguished.
(b)Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debts but not to advance the funds required to fund the
unutilized Credit PIF Cap capacit y remaining available to TCMD. In such event and as
otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for
the duration of the Term,the PICs shall continue to impose the Credit PIF and cause the
collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal
Payments to be remitted to the Town. All Credit PIF Revenues available to TCMD (for
example, not otherwise encumbered by and required to service debt on Supplemental Bonds
issued after the date of the Town’s payoff) shall be placed in escrow by TCMD and applied from
time to time toward Supplemental Bonds and/or direct payment of Capital Project Costs. The
Credit PIF Revenues placed into escrow shall be subject to an agreement which grants the Town
the right to enforce, restrict and limit the use of such escrow funds for payment of Capital Project
Costs.
6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose,
collect, receive, retain, expend or utilize Town taxes imposed upon Public Improvement Fees as
described herein. In the event that the Town is legally required by municipal, state or federal law
to impose the Town’s tax on a PIC fee as described herein, the Town shall, subject to annual
appropriation to the extent required by Section 20 of Article X of the Colorado Constitution,
remit the full amount of the Town tax imposed upon the PIC fee to TCMD and such revenues
shall be included with and be subject to the same terms, conditions and restrictions as Credit PIF
Revenues.
(a)Use Tax. If the Town enacts and imposes a use tax on building materials,
the Town shall not impose such Town use tax on any Use Fee.
(b)Real Estate Transfer Tax. The Town’s real estate transfer tax shall not
apply to the Real Estate Transfer Fee.
6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain,
expend and utilize for any lawful Town purpose in the Town’s discretion the following tax
revenues:
(a)Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF
added to each retail sales transaction shall be included in the Taxable Transaction. The Retail
Sales Fee and Add-On RSF shall be subject to the Town’s municipal sales tax and the Town is
entitled to collect, receive, retain, expend and utilize such sales tax revenues.
(b)Accommodations Tax Applied to PIF. The Accommodations/Lodging
Fee shall be included in the Taxable Transaction. The Accommodations/Lodging Fee shall be
subject to the Town’s accommodations tax and the Town is entitled to collect, receive, retain,
expend and utilize such sales tax revenues.
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(c)Town Ad Valorem Taxes. The Town is entitled to collect, receive, retain,
expend and utilize all ad valorem property tax revenues resulting from imposition of the Town’s
propert y tax mill levy within the Project.
(d)Town Share of Eagle County Sales Taxes. The Town is entitled to collect,
receive, retain, expend and utilize any portion of Eagle County’s sales tax revenues generated by
transactions occurring within the Project that the Town is entitled to receive pursuant to any
agreements with Eagle County in effect from time to time.
(e)Future Taxes, Assessments and Fees. The Town is entitled to collect,
receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees
imposed by the Town and not addressed in this Development Agreement which are imposed
uniformly and non-discriminately throughout the Town.
6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall
maintain adequate books and records to accurately perform and account for their respective
obligations under this Development Agreement. Each such Party or Limited Party shall, upon
request of any other such Party or Limited Party, permit representatives of such requesting entity
reasonable access during normal business hours to review and, at the requesting entity’s expense,
audit such books and records in order to permit such requesting entity to determine compliance
with the terms of this Development Agreement or the accuracy of an y information contained in
any statement, notice, invoice or report required to be provided under this Development
Agreement. All such Parties and Li mited Parties shall use their best efforts to resolve any
issues, discrepancies, or inaccuracies discovered in an y such statement, notice, invoice or report
or in such requesting entity’s review or audit of the applicable books and records. For so long as
BNP is providing a Letter of Credit to secure the TCMD Bond Reissue or any amounts are due
and owing to BNP in connection with the TCMD Bond Reissue, BNP shall have the same right
to reasonable access to review and audit books and records to determine compliance with the
terms of this Development Agreement or the accuracy of any information as set forth above with
respect to the Town, AURA, the PICS and the Districts.
6.18 Cooperation Regarding Delinquent Public Im provement Fees. If the PICs are
unable to collect any portion of the Public Improvement Fees due to delinquency, deficiency, or
failure to file, the PICs may promptly notify the Town in writing, and the Town shall institute the
procedures authorized under the Municipal Code to enforce and collect the corresponding Town
tax, interest, penalties and costs. The Town shall then remit, subject to annual appropriation to
the extent required by Section 20 of Article X of the Colorado Constitution, such tax revenues to
the PICs or to the District, subject to the following conditions: (a) the Town shall retain an
amount equal to its costs incurred in enforcing its collection of taxes under the Municipal Code,
as well as an administrative fee equal to 20% of any tax and/or penalty actually collected; (b) the
obligation is subject to any prior lien on such Town taxes securing the Town’s sales tax revenue
bonds outstanding as of the date of the Original Agreement; (c) the Town will have no
responsibility to collect Public Improvement Fees which are in excess of the corresponding
Town tax or which are assessed against any transaction that is exempt from the corresponding
Town tax under the Municipal Code as then in effect; and (d) the Town does not guarantee or
insure that it will be able to collect any delinquent or deficient Public Improvement Fees. Under
no circumstances shall the Town be subject to any legal liability to the PICs or to the Districts on
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account of the Town’s failure to collect some or all of the delinquent or deficient Public
Improvement Fees on behalf of such entities. The Town acknowledges that if the person or
entity which failed to timely remit such Public Improvement Fees subsequently remits such
Public Improvement Fees to the applicable PIC, such payment shall result in the application of
the Tax Credit (if applicable) against such person or entity’s corresponding tax obligation (if
any),which Tax Credit shall fully satisfy any corresponding tax liability to the Town. The Town
shall nevertheless be entitled to recover from the PICs the administrative fee and any costs
incurred in the enforcement and recovery of such Public Improvement Fees.
6.19 Creation of Additional PICs and/or Districts. Master Developer reserves the right
to create such additional PICs as may be necessary or desirable from time to time. With the prior
written consent of BNP (for so long as there are outstanding obligations to BNP under the
TCMD Reissue Documents or any subsequent reissue or refunding of such bonds) and Master
Developer, the applicable Landowner(s) may petition for the creation of additional Districts to
provide services and/or Public Improvements and/or other forms of improvements benefiting all
or any portion of the Property. The Town shall reasonably cooperate with Master Developer and
such Landowners, as applicable, with respect to the creation of such additional PICs and/or
Districts.
6.20 Operation of PICs and Districts. The formation documents of the PICs and the
Districts, together with contracts entered into by and between the PICs and the Districts, require
the PICs and the Districts to honor their obligations under this Development Agreement,
including the obligation of the PICs to cause the Credit PIF Revenues and the Add-On RSF
Revenues to be imposed, collected, remitted and utilized as required by the terms of this
Development Agreement. The Town shall cooperate with the operation of the Districts, and with
implementation of the Financing Plan.
6.21 Dissolution of Districts. Unless Master Developer requests the Town to do so
earlier, the Town shall not initiate or pursue any proceeding to dissolve any District 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 the service plans for the Districts have been constructed and no issued general
obligations or revenue obligations of the Districts remain outstanding with respect thereto. Any
dissolution of any District shall be conducted in accordance with the provisions and procedures
set forth in Colorado Revised Statutes §§32-1-701, et seq., as in effect as of the Original
Effective Date.
ARTICLE7
Default; Remedies
7.1 Default by Town. A “breach” or “default” by the Town shall be defined as:
(i)any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated
measure, taken without Master Developer’s and the affected Landowner’s or Landowners’
consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays
or otherwise adversely affects any development, use or other rights of the Landowners under this
Development Agreement or the Development Plan; or (ii) the Town’s failure to fulfill or perform
any obligation of the Town that is expressly set forth in this Development Agreement.
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7.2 Default by TCMD. A “breach” or “default” by TCMD shall be defined as
TCMD’s failure to fulfill or perform any obligation of TCMD that is expressly set forth in this
Development Agreement.
7.3 Default by Master Developer. A “breach” or “default” by Master Developer shall
be defined as Master Developer’s failure to fulfill or perform any obligation of Master Developer
that is expressly set forth in this Development Agreement.
7.4 Default by Limited Party. A “breach” or “default” by a Limited Party shall be
defined as such Limited Party’s failure to fulfill or perform any obligation of such Limited Party
that is expressly set forth in this Development Agreement.
7.5 No Cross-Defaults. No default by a Party or a Limited Party that is asserted or
judicially determined to exist under this Development Agreement shall be construed to constitute
a default of any other Party or Limited Party under this Development Agreement. No default of
a Party or a Limited Party that is asserted or judicially determined to exist under this
Development Agreement shall be construed to constitute a default of such Party or Limited Party
under any other agreement to which such Party or Limited Party is a party. No default of a Party
or a Limited Party that is asserted or judicially determined to exist under another agreement to
which such Party or Limited Party is a party shall be construed to constitute a default by such
Party or Limited Party under this Development Agreement.
7.6 Notices of Default. In the event of a default by a Party or by a Limited Party
under this Development Agreement, anon-defaulting Party, non-defaulting Limited Party and/or
Intended Beneficiary may deliver written notice to the defaulting Party or defaulting Limited
Party (with a copy to each other Party, Limited Party and Intended Beneficiary) of such default,
at the address specified in Section 8.12, and the defaulting Party or defaulting Limited Party shall
have 30 days from and after receipt of such notice to cure such default. If such default is not of a
type which can be cured within such 30-day period and the defaulting Party or defaulting
Limited Party gives written notice to each non-defaulting Party, non-defaulting Limited Party
and Intended Beneficiary within such 30-day period that it is actively and diligently pursuing
such cure, the defaulting Party or defaulting Limited Party shall have a reasonable period of time
given the nature of the default following the end of such 30-day period to cure such default,
provided that such defaulting Party or defaulting Limited Party is at all times within such
additional time period actively and diligently pursuing such cure. Failure or delay in the delivery
of a notice of default pursuant to this Section7.6 shall not be construed to constitute a waiver of
any such default, and such notice of default may be delivered at any time during which a default
has occurred and not been cured. The defaulting Party’s or defaulting Limited Party’s obligation
to cure shall not arise until such notice of default has been delivered as provided herein, and no
claim shall be filed with respect to a default prior to delivery of a default notice and expiration of
the cure period as set forth above.
7.7 Remedies.
(a)General. If any default under this Development Agreement is not cured
as described in Section 7.6, any non-defaulting Party,any non-defaulting Limited Party and/or
Intended Beneficiary shall, except to the extent otherwise limited by an express provision of this
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Development Agreement, be entitled to enforce the provisions and any remedy provided in this
Development Agreement at law or in equity, and relief in the nature of injunctive relief,
mandamus, specific performance or damages or a combination may be awarded. The remedies
available shall include, but not be limited to, ex parte applications for temporary restraining
orders, preliminary injunctions and permanent injunctions and actions for specific performance
of the defaulting Party’s or defaulting Limited Party’s obligations and/or damages. All of the
remedies permitted or available under this Development Agreement, at law, by statute or in
equity shall be cumulative and not in the alternative, and invocation of any such right or remedy
shall not constitute a waiver or election of remedies with respect to any other permitted or
available right or remedy. For the avoidance of doubt and in order to clarify the effect of the
foregoing as it relates to the Financing Plan: (i)the Town hereby forever waives and
relinquishes any claim or right to terminate the Tax Credit for so long as any District Debts
remain outstanding; and (ii)in consideration of this Development Agreement constituting an
intergovernmental agreement by and among the Town, AURA, TCMD and VMD pursuant to
C.R.S. §§ 29-1-203 and 29-20-105, each such governmental or quasi governmental entity
expressly acknowledges that the Town, AURA, TCMD and VMD each shall have standing to
enforce this Development Agreement, including specific performance, and affirms its intent that
the obligations of each such governmental or quasi-governmental entity are to be enforced in
accordance with their terms and each such entity expressly waives an y right to object to or assert
any defense against the entry of an order requiring specific performance (or other mandatory or
prohibitory injunctive relief) of such obligations.
(b)Impairment of Vested Property Rights. The Town acknowledges that this
Development Agreement and the Development Plan constitute a development agreement which
confers rights beyond those provided by the three (3) year statutory vesting approach described
in the Vested Property Rights Statute. In the event of an uncured breach or default by the Town,
in addition to any other remedies, Master Developer and any affected Landowner shall be
entitled to:
(i)recover from the Town the Past Developer Advances and any other
damages that would have been specifically available pursuant to C.R.S.
§24-68-105(1)(c) as in effect on the Effective Date, plus any other and additional
damages provable at law.
(ii)cause the Property, or any portion thereof designated by Master
Developer and the pertinent Landowner, to be disconnected from the Town.
(c)Limited Parties. The Limited Parties’ remedies shall be as follows:
(i)AURA. AURA shall have no rights arising under this
Development Agreement to enforce any obligation of any other Party or to obtain any
remedy against any Party.
(ii)EMD. EMD shall have all rights and remedies available to Master
Developer.
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(iii)The Commercial PIC. The Commercial PIC’s rights arising under
this Development Agreement to enforce any obligation of any other Party or to obtain
any remedy against any Party shall be limited to the following rights and remedies:
(A)Pursuant to Sections 4.2(a)and 6.2, the right to enforce the
Town’s obligations to maintain the Tax Credit in effect.
(B)Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C)Pursuant to Sections 6.3(a)and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D)Pursuant to Section 6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
(iv)The Mixed Use PIC. The Mixed-Use PIC’s rights arising under
this Development Agreement to enforce any obligation of any other Party or to obtain
any remedy against any Party shall be limited to the following rights and remedies:
(A)Pursuant to Sections 4.2(a)and 6.2, the right to enforce the
Town’s obligations to maintain the Tax Credit in effect.
(B)Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C)Pursuant to Sections 6.3(a)and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D)Pursuant to Section6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
(d)Intended Beneficiaries. Each of the following Intended Beneficiaries shall
have the right to enforce specified provisions of this Development Agreement, as described
below.
(i)BNP. For so long as there are outstanding obligations to BNP
under the TCMD Reissue Documents (or any subsequent reissue or refunding of such
bonds), BNP shall have all rights and remedies available to a Party with respect to
enforcement of the following Town and/or AURA and/or other expressly identified
obligations:
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(A)Generally, the obligations set forth in Article 4 and
Article 6.
(B)Pursuant to Sections 4.2(a)and 6.2, the Town’s obligation
to maintain the Tax Credit in effect.
(C)Pursuant to Sections 6.3(a)and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D)Pursuant to Section 6.7(c), BNP’s right to participate on the
AURA board of directors with respect to any urban renewal plans for any portion
of the Property.
(E)Pursuant to Sections 5.1(e)and 5.3(e), BNP’s right to
participate on the TCMD board of directors and right for its designee to hold a
property interest sufficient to qualify for appointment or election to be a TCMD
director.
(ii)VMD.
(A)Pursuant to Section 6.7(d), VMD’s right with respect to any
urban renewal plans for any portion of the Property located within VMD’s service
area to enforce the obligations of AURA and the Town with respect to VMD’s ad
valorem property taxes and the uses of all tax increment revenues collected by
AURA.
(B)Pursuant to Section 4.2(f), VMD’s right to enforce the
Town’s obligation regarding waiver of Chapter 18.01 of the Municipal Code (as
in effect from time to time).
(iii)Developer Affiliates and Landowners. Each Developer Affiliate
and each Landowner shall have all rights and remedies available to Master Developer.
ARTICLE8
Miscellaneous
8.1 Applicable Law. This Development Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado.
8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town, Master Developer, AURA, the PICs, the Districts and/or BNP, and nothing
contained in this Development Agreement shall be construed as making any of the Parties,
Limited Parties and/or Intended Beneficiaries joint venturers or partners.
8.3 Expenses. Except as otherwise provided in this Development Agreement, Master
Developer, EMD, TCMD, each Developer Affiliate, each Limited Party, each Intended
EXHIBIT A to Heil Memorandum dated June 6, 2013
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Beneficiary and the Town shall each bear their respective costs and expenses associated with
entering into, implementing and enforcing the terms of this Development Agreement.
8.4 Waiver. No waiver of one or more of the terms of this Development Agreement
shall constitute a waiver of other terms. No waiver of any provision of this Development
Agreement in any instance shall constitute a waiver of such provision in other instances.
8.5 Town Findings. Town Council hereby finds and determines that execution of this
Development Agreement provides a public benefit to the Town and its citizens, is in the best
interests of the public health, safety, and general welfare, and the provisions of this Development
Agreement are consistent with all applicable development laws, regulations and policies of the
Town. Town Council further specificall y finds: (i) the Town’s approval of this Development
Agreement and the Development Plan generally is pursuant to the authority of the Vested
Property Rights Statute and the Municipal Annexation Act of 1965 set forth at CRS § 31-12-101,
et seq.,and, to the extent permitted by law, the Town is acting in a proprietary capacity in
approving the Financing Plan and therefore shall bind the Town with regard to the Town’s rights
and obligations during the Term, particularly with regard to the Town’s obligation to maintain
the Tax Credit in effect, in accordance with the terms and remedies set forth in this Development
Agreement; (ii) the Financing Plan and the Town’s agreement to forego the collection of sales
tax revenues, real estate transfer tax revenues and accommodations/lodging tax revenues by
maintaining the Tax Credit in effect during the Term does not constitute the creation of a
multiple-fiscal year direct or indirect debt or other financial obligation of the Town, and does not
constitute a new tax, tax rate increase or tax policy change directly causing a net tax revenue gain
to the Town; and (iii)nothing in this Development Agreement constitutes (A) a pledge of the
Town’s credit, (B)special legislation under Article V, section 25 of the Colorado Constitution,
or (C)a grant in aid under Article XI, sections 1 and 2 of the Colorado Constitution.
8.6 Severability. If a final order issued by a court of competent jurisdiction holds any
term, provision, covenant or condition of this Development Agreement to be invalid, void or
unenforceable, the remaining provisions of this Development Agreement shall, unless amended
or modified as provided in Section1.5, continue in full force and effect so long as enforcement
of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom
they are being enforced of a material benefit of the bargain under this Development Agreement
or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then
pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain
the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a
determination that the Town’s right to receive the Municipal Payments,is invalid, void,
unenforceable or that the remedy of specific performance is not available with respect to the
Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal
Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties
of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited
Parties; and (ii)this Development Agreement shall be deemed void and of no further effect
unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner
that the Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s
right to receive Municipal Payments, as applicable,can be materially performed and complied
with by alternative means. Unless amended or reformed as provided herein, entry of a final
order holding the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable
EXHIBIT A to Heil Memorandum dated June 6, 2013
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shall entitle Master Developer and affected Landowners to entry of an order enforcing the
remedy set forth in Section 7.7(b)(ii)and, correspondingly, entry of a final order holding the
Town’s right to receive Municipal Payments invalid or unenforceable shall entitle the Town to
disconnect the Property.
8.7 Further Assurances. Each Party shall undertake such actions and shall execute
and deliver to the other all such other further instruments and documents as may be reasonably
necessary to carry out this Development Agreement in order to provide and secure to the other
Party the full and complete enjoyment of its rights and privileges under this Development
Agreement.
8.8 TCMD Obligations. Except with respect to funding of the Asphalt Overlay
Account in accordance with the terms and conditions of Section 6.6(a)(iii)and funding of the
Annual Debt Service Obligation, all obligations of TCMD under this Development Agreement to
pay money are subject to annual budget and appropriation, and are subordinate to any bonds
issued by TCMD.
8.9 Complete Agreement. This Development Agreement constitutes the final,
complete and exclusive statement of the terms of the agreement among the Parties pertaining to
the subject matter of this Development Agreement and supersedes all prior and contemporaneous
understanding or agreements of the Parties. This Development Agreement may not be
contradicted by evidence of any prior or contemporaneous statements or agreements, including
but not limited to the Settlement Term Sheet, the Original Agreement and any oral or written
communications exchanged during the public review process leading to approval of this
Development Agreement.
8.10 Construction. Each Party has participated fully in the review and revision of this
Development Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply to interpreting this Development Agreement.
The language in this Development Agreement shall be interpreted as to its fair meaning and not
strictly for or against any Party.
8.11 Assignment. This Development Agreement shall be binding upon and, except as
otherwise provided in this Development Agreement, shall inure to the benefit of the successors
in interest or the legal representatives of the Parties. Master Developer shall have the right to
assign or transfer all or any portion of its interests, rights or obligations under this Development
Agreement to third parties acquiring an interest or estate in the Property, including, but not
limited to, purchasers or long term ground lessees of individual lots, parcels, or of any
improvements now or hereafter located within the Property, provided that to the extent Master
Developer assigns any of its obligations under this Development Agreement, the assignee of
such obligations shall expressly assume such obligations. The express assumption of any of
Master Developer’s obligations under this Development Agreement by its assignee or transferee
shall thereby relieve Master Developer of any further obligations under this Development
Agreement with respect to the matter so assumed. BNP Paribas shall provide written notice to
the Parties of any successor or assignee entity that assumes BNP’s rights and obligations
pursuant to this Development Agreement.
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8.12 Notices. All approvals, consents, notices, objections, and other communications
(a “Notice” and, collectively, “Notices”) under this Development Agreement shall be in writing
and shall be deemed properly given and received when personally delivered, or sent by overnight
courier, or by email (pdf), or by registered or certified United States mail, postage prepaid,
addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective
addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered,
when actually given and received; or (ii) if by overnight courier service, on the next business day
following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent
before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain
Time; or (iv)if by registered or certified United States mail, postage prepaid, three (3) business
days after mailed. All Notices shall be addressed as follows (or to such other address as may be
subsequently specified by Notice given in accordance herewith):
To the Town:
To wn of Av on
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Manager
Te lephone: (970) 748-4452
Email: vegger@avon.org
Wi th a required copy to:
To wn of Av on
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Attorney
Te lephone: (970) 748-4000
Email: townattorney@avon.org
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
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Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Av on, CO 81620
Attn: Marcus Lindholm, Manager
Te lephone: (970) 949-6776
Email: marcuslindholm@traercreek.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
EMD Limited Liability Company
c/o Lava Corporation
P.O. Box 9429
0101 Fawcett Road, Suite 210
Av on, CO 81620
Attn: Michael Lindholm, President
Te lephone: (970) 949-6776
Email: michaellindholm@traercreek.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
EXHIBIT A to Heil Memorandum dated June 6, 2013
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To the Limited Parties:
Av on Urban Renewal Authority
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Manager
Te lephone: (970) 748-4452
Email: vegger@avon.org
Wi th a required copy to:
Av on Urban Renewal Authority
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Attorney
Te lephone: (970) 748-4000
Email: townattorney@avon.org
The Village (at Av on) Mixed-Use Public Improvement Company
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
The Village (at Av on) Commercial Public Improvement Company
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Intended Beneficiaries:
BNP Paribas, an International Bank
787 Seventh Av enue, 9th Floor
New Yo rk, NY 10019
Attn:Barbara Eppolito
Te lephone: 212.841.3607
Email: barbara.eppolito@us.bnpparibas.com
Wi th a required copy to:
Faegre Baker Daniels
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203-4532
Attn: Brandee Caswell
Te lephone: (303) 607-3826
Email: Brandee.Caswell@faegrebd.com
Developer Affiliates
c/o Tr aer Creek LLC
[Utilizing the Master Developer contact and required copy information set forth above.]
The Vi llage Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Li sa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
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8.13 Counterparts. This Development Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this
Development Agreement as of the Execution Date, with the intent that this Development
Agreement shall be legally binding on each such signatory and legally attach to and encumber
the Property upon the occurrence of the Effective Date.
[SIGNATURE AND NOTARY PAGES FOLLOW THIS PAGE]
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Signature and Notary Pages for
Consolidated, Amended and Restated Annexation and Development Agreement
for The Village (at Av on)
PARTIES:
TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as __________________ of THE TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited liability
company
By:
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Marcus Lindholm as Manager of TRAER CREEK LLC, a Colorado limited liability
company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager
of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
LIMITED PARTIES:
AURA:
THE AVON URBAN RENEWAL AUTHORITY, a
body corporate duly organized and existing as an
urban renewal authority under the laws of the State
of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as _____________________ of THE AVON URBAN
RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal
authority under the laws of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
)ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
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ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representatives of BNP Paribas, an international bank (as defined in the
foregoing Development Agreement, “BNP”), in its capacit y as the issuer of irrevocable direct
pay letter(s) of credit securing the Traer Creek Metropolitan District Variable Rate Revenue
Bonds, Series 2002, and the Traer Creek Metropolitan District Variable Rate Revenue Bonds,
Series 2004, hereby acknowledge and consent to the foregoing Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon).
BNP PARIBAS:
By:
Name:
Title:
BNP PARIBAS:
By:
Name:
Title:
STATE OF NEW YORK )
)ss.
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
STATE OF NEW YORK )
)ss.
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
EXHIBIT A
Legal Description of the Property
Lots 2, 3 and 4,and Tracts B and E, Final Plat, The Village (at Avon) Filing 1,according to the
plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under
Reception No.795007;
Lots 1, 5 and 6,and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1,
according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and
Recorder under Reception No.898173;
Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon)
Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No.796831;
Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof
recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception
No.882776; and
Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts
B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado,
Clerk and Recorder under Reception No.200712166.
TOGETHER WITH THE FOLLOWING PARCEL (OS5):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line,
described as follows:
Beginning at the N 1/4 corner of said Section 17; thence S8923'36"E 526.76 feet, along the
northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad; thence, departing said northerly line of Section 17, the following two
courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said
northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing
railroad tracks: (1)S8036'27"W 267.66 feet; (2)263.93 feet along the arc of a curve to the right,
having a radius of 2486.03 feet, a central angle of 0604'58", and a chord which bears
S8338'57"W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N0020'55"W
78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (OS6):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and
north of the centerline of the Eagle River, described as follows:
Beginning at the Northeast corner of said Section 17; thence S0141'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
easterly line, S0141'49"E 73.07 feet, to the centerline of said Eagle River; thence the following
four courses along said centerline (Filum aquce): (1)N8924'49"W 1037.9 feet; (2)N8607'49"W
472.00 feet; (3)N8929'49"W 538.00 feet; (4)S8233'11"W 595.15 feet, to the westerly line of said
NE 1/4; thence N0020'55"W 49.18 feet, along said westerly line to the southerly right-of-way line
of the Denver & Rio Grande Western Railroad; thence, departing said westerly line of Section 17,
the following five courses along the southerly right-of-way line of the Denver & Rio Grande Western
Railroad, said southerly right-of-way line being parallel with and 50 feet southerly of the centerline
of the existing railroad tracks: (1)279.72 feet along the arc of a curve to the left, having a radius of
2586.03 feet, a central angle of 0611'51", and a chord which bears N8342'23"E 279.58 feet;
(2)N8036'27"E 350.86 feet; (3)686.44 feet along the arc of a curve to the right, having a radius of
3171.27 feet, a central angle of 1224'07", and a chord which bears N8648'31"E 685.10 feet;
(4)S8659'25"E 1216.38 feet; (5)112.54 feet along the arc of a curve to the right, having a radius
of 2549.33 feet, a central angle of 0231'46". and a chord which bears S8543'31"E 112.53 feet, to
the True Point of Beginning, containing 5.28 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL):
Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as a whole as follows:
Beginning at the Northwest corner of said Section 8; thence the following four courses along the
northerly line of said Section 8: (1)N8840'41"E 1379.49 feet, to the W 1/16 corner of said
Section 8 and Section 5 of said Township and Range; (2)N8840'41"E 1379.49 feet, to the 1/4
corner of said Sections 8 and 5; (3)N8842'58"E 1385.36 feet, to the E 1/16 corner of said
Sections 8 and 5; (4)N8842'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and
Section 4 of said Township and Range; thence the following four courses along the northerly
line of said Section 9: (1)N8329'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and
4; (2)N8329'30"E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3)N8324'12"E
1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4)N8324'12"E 1386.30 feet, to the
corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the
following two courses along the northerly line of said Section 10: (1)N8639'24"E 1381.29 feet,
to the W 1/16 corner of said Sections 10 and 3; (2)N8639'24"E 1299.94 feet; thence, departing
said northerly line, S0134'07"W 2699.66 feet, to the east-west centerline of said Section 10;
thence, along said east-west centerline, S8632'23"W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S0132'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of
said Section 10, to the SW 1/16 corner of said Section 10; thence S8632'47"W 1384.91 feet,
along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9;
thence S7710'15"W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said
Section 9, to the SE 1/16 corner of said Section 9; thence S0133'02"W 1475.32 feet, along the
easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and
Section 16 of said Township and Range; thence S7220'31"W 1450.43 feet, along the southerly
line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N0134'18"E
1601.52 feet, to the CS 1/16 corner of said Section 9; thence S8607'30"W 1378.19 feet, along
the southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said
Section 9; thence S0133'13"W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of
said Section 9,to the W 1/16 corner of said Sections 9 and 16; thence N89°55’04”W 1371.96
feet, along the southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9,
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16, and 17 of said Township and Range; thence N01°32’00”E 3.82 feet, along the westerly line
of Section 9, to the northerly right-of-way line of the Denver & Rio Grande Western Railroad,
said northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the
existing railroad tracks; thence the following two courses along said northerly right-of-way line:
(1)104.48 feet along the arc of a curve to the left, having a radius of 2649.33 feet, a central
angle of 02°15’34”, and a chord which bears N85°51’36”W 104.47 feet; (2)N86°59’25”W
1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00°51’07”E
1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8; thence
N8954'54"W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to
the CS 1/16 corner of said Section 8; thence N8958'35"W 1366.46 feet, along the southerly line
of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence
S0001'37"E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the
northerly right-of-way line of Interstate Highway No.70, as described in the deed recorded in
Book 223 at Page 982 in the office of the Eagle County, Colorado, Clerk and Recorder; thence
the following ten courses along said northerly right-of-way line: (1)N6530'20"W 249.79 feet;
(2)N7847'50"W 317.2 feet; (3)N8308'20"W 506.7 feet; (4)772.2 feet along the arc of a curve
to the right, having a radius of 1462.0 feet, a central angle of 3015'52", and a chord which
bears N5457'56"W 763.3 feet; (5)N3437'50"W 331.1 feet; (6)N3444'20"W 368.5 feet;
(7)804.9 feet along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle
of 2527'04", and a chord which bears N5129'50"W 798.3 feet; (8)N6824'50"W 399.7 feet;
(9)N4947'20"W 213.6 feet; (10)N7020'50"W 765.1 feet, to the northerly line of the SE 1/4 of
said Section 7; thence the following two courses along said northerly line: (1)N8950'40"E
1194.46 feet, to the CE 1/16 corner of said Section 7; (2)N8950'40"E 1378.25 feet, to the 1/4
corner of said Sections 7 and 8; thence the following two courses along the westerly line of said
Section 8: (1)N0010'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence
N0010'53"W 1369.10 feet, to the point of beginning.
EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in
the office of the Eagle County, Colorado, Clerk and Recorder under Reception No.882776.
Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3
area subtracted.
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EXHIBIT B
Form of Special Warranty Deed for Conveyances to To wn
SPECIAL WARRANTY DEED
[STATUTORY FORM –C.R.S. § 38-30-115]
[TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado](“Grantor”), whose street address is [141 Union
Boulevard, Suite 150, c/o Special District Management, Lakewood, CO 80228-1898, County of
Jefferson], State of Colorado, for the consideration of Ten and 00/100 Dollars ($10.00) and
other good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN
OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose
street address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of
Colorado (“Grantee”), the real property that is described on Exhibit A attached hereto and made
a part hereof, with all its appurtenances, and warrants the title to the same against all persons
claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a
part hereof.
[TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado]
By:
Name:
Title:
STATE OF ___________)
) ss:
COUNTY OF _________)
The foregoing instrument was acknowledged before me this ____ day of
____________________, 200__, by _________________________ as ________________ of
_____________________________, a ____________________.
Witness my hand and official seal.
My commission expires:
Notary Public
EXHIBIT A to Heil Memorandum dated June 6, 2013
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EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
EXHIBIT A to Heil Memorandum dated June 6, 2013
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EXHIBIT B
TO SPECIAL WARRANTY DEED
Restrictions and/or Reservations
Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to the following restrictions, which restrictions shall be binding on Grantee and all
successors and assigns of Grantee, and which Grantor and its successors and assigns shall have
the right to enforce by an action for specific performance, mandamus, mandatory or prohibitory
injunction or other equitable or legal remedy:
1.[insert applicable use/other deed restrictions or state non applicable]
Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to Grantor’s reservation of the following rights with respect to the Property:
1.[insert applicable reservations or state non applicable]
EXHIBIT A to Heil Memorandum dated June 6, 2013
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EXHIBIT C
Form of Covenant and Temporary Easement Agreement
COVENANT AND TEMPORARY EASEMENT AGREEMENT
THIS COVENANT AND TEMPORARY EASEMENT AGREEMENT (this “Easement
Agreement”) is made and entered into as of this _____ day of _________________, 2013
(“Effective Date”), by and between the TOWN OF AVON, a home rule municipal corporation
of the State of Colorado (together with its successors and assigns, “Grantor”); and EMD
LIM ITED LIABILITY COMPANY, a Colorado limited liability company (together with its
successors and assigns, “Grantee”).
Recitals
A.Grantor is the owner of certain real property located in Eagle County, Colorado, legally
described on EXHIBIT A: LEGAL DESCRIPTION OF FS VILLAGE PARCEL
attached hereto and incorporated herein by this reference, which property is generally
referred to as the Forest Service Village Parcel (“FS Village Parcel”).
B.Grantee is the owner of certain real property located in Eagle Count y, Colorado, legally
described on EXHIBIT B: LEGAL DESCRIPTION OF PLANNING AREA I
attached hereto and incorporated herein by this reference, which property is designated as
Planning Area I (“Planning Area I”) pursuant to The Village (at Avon) PUD Master
Plan, Formal Amendment Two as recorded in the real propert y records of Eagle County,
Colorado on ______________, 2013 at Reception No. ______________ (“PUD Master
Plan”).
C.Exhibit F of The Village (at Avon) Amended and Restated PUD Guide dated as of
_______________, 2013 and recorded in the real property records of Eagle County,
Colorado on _______________, 2013 at Reception No. __________________ (“PUD
Guide”), establishes the applicable design and improvement standards (“Design
Standards”) for construction of an extension of Swift Gulch Road as a rural local
roadway (“Planning Area I Access Road”) over, across and through the FS Village
Parcel to provide access to Planning Area I from Planning Area J.
D.Grantor and Grantee are parties to that certain Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon) dated as of
_____________, 2013 and recorded in the real property records of Eagle County,
Colorado on ______________, 2013 at Reception No. ______________ (“Development
Agreement”).
E.Pursuant to Section 4.2(e) of the Development Agreement: (i) Grantor is legally
obligated to execute and deliver this Easement Agreement to Grantee (or to the then-
Landowner(s)of Planning Area I)within three (3)business days after acquiring title to
the FS Village Parcel, but in any event prior to permitting the recordation of a
conservation easement or similar instrument limiting potential development within the FS
Village Parcel or any other conveyance by the Town of the FS Village Parcel or any
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interest therein; and (ii) this Easement Agreement shall be recorded as a prior interest to
any conservation easement or similar instrument, and any such subsequent conveyance or
grant by the Town shall be expressly subject and subordinate to this Easement
Agreement.
F.Prior to actual construction of the Planning Area I Access Road, the alignment of the
Planning Area I Access Road and the Temporary Easement (as defined in Paragraph 2)
are intended to be conceptual and to assure Grantee’s legal right to construct the Planning
Area I Access Road in an alignment to be finally established at the time of construction
drawing review and approval by Grantor in its governmental capacity in connection with
future development application review for Planning Area I.
G.Grantor and Grantee intend that execution, delivery and recording of this Easement
Agreement shall constitute satisfaction of Grantor’s obligations pursuant to Section 4.2(e)
of the Development Agreement and shall be construed and enforced in that manner which
enables Grantee’s enjoyment of the rights granted to Grantee in this Easement
Agreement, including but not limited to the future construction,operation and
maintenance of the Facilities (as defined in Paragraph 2) in accordance with the terms
and conditions of the Design Standards, the PUD Guide and the Development
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged,Grantor and Grantee agree as follows:
1.Covenant to Consent to Applications.If Grantor acquires fee title to the FS Village
Parcel, Grantor agrees and covenants that Grantor shall provide consent as the owner of the FS
Village Parcel to Grantee, including providing a properly acknowledged power of attorney to
Grantee,that Grantee may submit a subdivision application pursuant to Avon Municipal Code
§7.16.020(b)(1) for the FS Village Parcel to plat and dedicate a public road right-of-way. The
grant of this covenant shall not restrict or diminish the Grantor’s rights to review a subdivision
application and/or application for road construction, an accompanyi ng pedestrian/recreational
trail facility or other associated public improvements in accordance with the Design Standards
and other applicable standards and procedures of the PUD Guide and the Avon Municipal Code.
2.Grant of Temporary Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, together with its engineers, contractors, employees and similar consultants to Grantee
and/or its assigns as may be necessary or desirable (collectively, “Permittees”),a temporary,
non-exclusive, easement appurtenant to Planning Area I(“Temporary Easement”)over, under,
through and across that portion of the FS Village Parcel which is graphically depicted in
EXHIBIT C: GRAPHIC DESCRIPTION OF TEMPORARY EASEMENT AREA
(“Temporary Easement Area”) for the right to enter upon the Temporary Easement Area and
such adjacent areas of the FS Village Parcel thereto as may reasonably be necessary to survey,
conduct geotechnical and similar physical investigation related to construction of the Roadway
Facilities and the Utility Facilities, as each are defined in Paragraph 3 below (collectively, the
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“Facilities”). The Temporary Easement shall commenceon the date of execution of this
Easement Agreement and shall continue through the date on which the Planning Area I Access
Road is constructed and dedicated to the Town in accordance with the applicable provisions of
the Development Agreement, the PUD Guide and the Avon Development Code, whereupon the
Temporary Easement and this Easement Agreement shall terminate and shall be of no further
force and effect.Nothing contained herein shall obligate Grantee to install, or cause to be
installed,any or all of the Facilities or to otherwise provide for any such use.
3.Temporary License Agreement. Upon the approval by Grantor of a properly
submitted subdivision application establishing and dedicating a public road right-of-way within
the FS Village Parcel as contemplated by the Development Agreement and this Easement
Agreement, and an approval by Grantor of a properly submitted application and public
improvements agreement for construction of the Facilities within such dedicated public road
right-of-way, Grantor and Grantee will execute a Temporary License Agreement to allow
construction of the Facilities in accordance with the Design Standards and other applicable
procedures and standards set forth in the Development Agreement, the PUD Guide and the Avon
Development Code. The Temporary License Agreement shall permit the Grantee to enter upon
the FS Village Parcel and to: (i)construct and install drive lanes, roadways, landscaping,
sidewalks, bike paths, recreational trail, retaining walls, and other access facilities necessary or
desirable for such access, and all fixtures and devices reasonably used or useful in the operation
of such facilities (collectively, the “Roadway Facilities”); (ii)construct and install water lines,
sanitary sewer lines, storm drainage facilities, electrical lines, gas lines, telephone lines, fiber
optic lines, cable television lines and similar utilities and utility facilities, together with all
sleeves, conduit, junction boxes, vaults,fixtures and devices reasonably used or useful in the
operation of such facilities, whether publicly or privately owned (collectivel y, the “Utility
Facilities”); and, (iii)stage construction materials and equipment within designated areas on the
Temporary Easement Area as may be approved by the Town. The form of Temporary License
Agreement is attached as EXHIBIT D: FORM OF LICENSE AGREEMENT.
4.Entry; Site Investigation; Construction Staging; Restoration of Surface. In
conducting the design and construction of the Facilities, including but not limited to surveying,
geotechnical testing, other physical inspection and similar matters, it will be necessary or
desirable for Grantee and/or the Permittees to enter upon and/or cause disturbances to the surface
of the Temporary Easement Area and potentially to the surface of adjacent areas of the FS
Village Parcel. Grantee shall provide not less than five (5) business days’ written notice to
Grantor of any planned entrance upon and/or conduct of physical testing or inspection of the
Temporary Easement Area and/or adjacent areas of the FS Village Parcel. Grantor shall
coordinate with Grantee regarding the scope, nature and duration of such activities, but shall not
unreasonably object to or interfere with Grantee’s and/or Permittees’ conduct of such activities.
To the extent such activities disturb vegetation or otherwise disturb the surface, Grantee shall
promptly cause revegetation and/or otherwise cause restoration of the affected area to a condition
reasonabl y consistent with its condition prior to Grantee’s and/or Permittees’ conduct of such
activities.
5.Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive
easement interests within the Temporary Easement Area and the FS Village Parcel so long as
such interests do not adversely affect,increase the cost of, or otherwise interfere with Grantee’s
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or Permittees’ full exercise of Grantee’s rights in this Easement Agreement, including but not
limited to the rights set forth in the Temporary Easement and the Temporary License Agreement.
Grantor reserves the right to use and occupy the FS Village Parcel and the Temporary Easement
Area for any and all purposes not inconsistent with the rights and privileges granted herein,
including the grant and conveyance of such conservation easements or other real property
interests in and to the FS Village Parcel and the Temporary Easement Area so long as all such
interests and conveyances are made expressly subject and subordinate to Grantee’s rights under
this Easement Agreement.
6.Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to the FS Village Parcel or the Temporary Easement Area as of the Effective Date, and the
grant of easements and other rights pursuant to this Easement Agreement is in the nature of a
bargain and sale conveyance. Except with Grantee’s prior written consent, all matters affecting
title to the FS Village Parcel and the Temporary Easement Area after the Effective Date shall be
subordinate to the terms and conditions of this Easement Agreement.
7.Covenants. Each and every benefit and burden of this Easement Agreement shall inure
to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the FS Village Parcel and the Temporary
Easement Area, and shall run with title to Planning Area I. Any person or entity that acquires
any interest in the FS Village Parcel and/or the Temporary Easement Area,and any person or
entity that acquires any interest in Planning Area I, shall be bound by the burdens and entitled to
the benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the FS Village Parcel, the Temporary
Easement Area and Planning Area I.
8.Assignment. To the extent Traer Creek Metropolitan District or another District (as
defined in the Development Agreement) undertakes to construct all or part of the Facilities
pursuant to Section 3.2(a) of the Development Agreement, Grantee shall have the right to assign
to Traer Creek Metropolitan District or such other District (in whole or in part) its rights and
obligations arising pursuant to this Easement Agreement.
9.Legal Fees and Costs.The prevailing party in any legal action with respect to this
Easement Agreement shall be awarded it reasonable costs and attorneys' fees incurred with
respect thereto.
10.Counterparts. This Easement Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement
as of the date first written above.
GRANTOR: TOWN OF AVON, a home rule municipal corporation of the State of Colorado
By:___________________________ Attest:______________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2013, by Rich Carroll, as Mayor of the TOWN OF AVON, a home rule
municipal corporation of the State of Colorado.
Witness my hand
and official seal.____________________________________
Notary Public
My commission expires: ______________________________.
GRANTEE: EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF __________)
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013 by Michael Lindholm, President of Lava Corporation, a
Colorado corporation, as Manager of EMD LIMITED LIABILITY COMPANY, a Colorado
limited liability company.
Witness my hand
and official seal.___________________________________
Notary Public
My commission expires:
EXHIBIT A to Heil Memorandum dated June 6, 2013
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EXHIBIT A
LEGAL DESCRIPTION OF THE FS VILLAGE PARCEL
Sixth Principal Meridian, Colorado
T. 5 S. R. 81 W.,
sec. 8, lots 1 and 2
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EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA I
Planning Area I is that portion of the following legal description which is depicted on the PUD
Master Plan and designated as Planning Area I.
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EXHIBIT C
GRAPHIC DEPICTION OF TEMPORARY EASEMENT AREA
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EXHIBIT D FORM OF TEMPORARY LICENSE AGREEMENT
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
_________________________ FOR THE GRANT OF A TEMPORARY LICENSE TO
INSTALL AND CONSTRUCT A ROAD ON TOWN-OWNED PROPERTY
1.Parties. The parties to this agreement (“Agreement”) are the TOWN OF AVON,
COLORADO, a Colorado home rule municipality (the “Town”) and
___________________________ (the “Licensee”). This Agreement is effective upon
execution by the Licensee and following execution by the Town Manager on the date
indicated below.
2.Recitals and Purpose.
(a)The Town is the owner of certain property located in the Town of Avon, Eagle
County, Colorado, commonly known as the ________________________ (“Town
Property”).
(b)The Licensee desires to encroach upon and occupy the Town Property for the purpose
of installing and constructing certain Roadway Facilities and Utility Facilities
(collectively referred to as “Facilities”) as described in the Covenant and Temporary
Easement Agreement dated _____, (“Easement Agreement”).
(c)The Town and Licensee have agreed to enter into this temporary license agreement
under the terms and conditions as hereinafter specified in this Agreement provided
that nothing in this Agreement shall waive or modify any obligation to seek building
permits, variances, or other approval necessary to meet any obligation imposed by
law. The Licensee remains obligated to apply for and obtain all necessary permits
and approvals, pay all required fees, and comply with all applicable local laws,
including but not limited to an y applicable provisions of this Agreement, Exhibit F of
The Village (at Avon) Amended and Restated PUD Guide dated as of____________,
20[__] and recorded in the real property records of Eagle County, Colorado on
_______, 20[__] at Reception No. __________, (“PUD Guide"), and the
Consolidated, Amended and Restated Annexation and Development Agreement for
The Village (at Avon) dated as of ____________, 20[__] and recorded in the real
propert y records of Eagle County, Colorado on__________, 20[__] at Reception No.
_______ (“Development Agreement”).
3.Terms and Conditions.
(a)License Granted. The Town hereby grants to the Li censee a temporary license for the
encroachment and occupation as described in the public improvements agreements
approved by the Town to construct the Facilities;provided, however, that nothing in
this Agreement is intended to waive, alter, modify, or permit any violation of any
local law applicable within the Town of Avon. Except for the encroachment and
occupation of the Facilities,no other encroachment, structure, improvement, vehicle,
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fence, wall, landscaping, or any other real or personal property shall be erected,
installed, constructed, parked, stored, kept, or maintained in any way or fashion on
the Town Property.
(b)Term and Termination. This Agreement shall continue until the Roadway Facilities are
dedicated to the Town and the applicable portions of the Utility Facilities are
dedicated to the respective utility providers in accordance with the procedures and
timeframes established in the public improvements agreement to construct the
Facilities. Upon dedication and final acceptances of the Facilities this Agreement is
terminated. In the event that the Licensee fails to comply with the construction
timeframe, procedures or other provisions of the public improvements agreement the
Town may elect to provide notice of default in writing to the Licensee. If the Town
has provided such notice of default and Li censee is unable to cure the default within
ninety (90) days after receipt of a notice of default, then Town may terminate this
Agreement. In the event that Li censee has failed to complete the Facilities as
required by the public improvements agreement and the Town has elected to utilize
the financial security to complete the Facilities, then Town may immediately
terminate this Agreement.
(c)Indemnification. The Licensee expressly agrees to, and shall, indemnify and hold
harmless the Town and any of its officers, agents, or employees from any and all
claims, damages, liability,or court awards, including costs and attorney’s fee that are
or may be awarded as a result of any loss, injury or damage sustained or claimed to
have been sustained by anyone, including but not limited to, any person, firm,
partnership, or corporation, in connection with or arising out of any omission or act of
commission by the Licensee or any of its employees, agents, partners, or lessees, in
encroaching upon the Town Property. In particular and without limiting the scope of
the foregoing agreement to indemnify and hold harmless, the Licensee shall
indemnify the Town for all claims, damages, liability, or court awards, including
costs and attorney’s fees that are or may be awarded as a result of any loss, injury or
damage sustained or claimed to have been sustained by anyone, including but not
limited to, any person, firm, partnership, or corporation, in connection with or arising
out of any claim in whole or in part that all or any portion of the Facilities and
encroachment permitted by this Agreement constitutes a dangerous and/or unsafe
condition within a public right-of-way.
(d)Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy or
policies of insurance protecting against injury, damage or loss occurring on the
licensed premises in the minimum amount of $600,000.00 per occurrence. Such
policy or policies shall name the Town as an “additional insured”. However, the
Licensee’s failure to take such steps to insure the premises shall not waive, affect, or
impair any obligation of the Li censee to indemnify or hold the Town harmless in
accordance with this Agreement.
4.Assignment. This Agreement shall not be assigned by the Licensee without the prior written
consent of the Town which may withhold its consent for any reason; provided that the Town
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encourages the Licensee to inform any purchaser of the Licensee’s property or interests of
the existence of this Agreement and the Town will promptly consider any request by the
Licensee for assignment of this Agreement to such subsequent purchaser.
5.Notices. Any notice required or permitted by this Agreement shall be in writing and shall be
deemed to have been sufficiently given for all purposes if personally served or if sent by
certified mail or registered mail, postage and fees prepaid, addressed to the party to whom
such notice is to be given at the address set forth on the signature page below, or at such
other address as has been previously furnished in writing, to the other party or parties. Such
notice shall be deemed to have been given when deposited in the United States Mail.
6.Integration and Amendment. This Agreement represents the entire agreement between the
parties and there are no oral or collateral agreements or understandings; provided, however,
the Easement Agreement shall remain in effect in accordance with its terms. This Agreement
may be amended only by an instrument in writing signed by the parties. If any other
provision of this Agreement is held invalid or unenforceable, no other provision shall be
affected by such holding, and all of the remaining provisions of this Agreement shall
continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke
any authorization, whether explicit or implied to the continuing use and occupancy of the
Town Propert y for the Facilities.
7.Governing Law and Venue. This Agreement shall be governed by the laws of the State of
Colorado and venue for any action arising under this agreement shall be in the appropriate
court for Eagle County, Colorado.
8.Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either party.
9.Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the
parties, their respective legal representatives, successors, heirs, and assigns; provided,
however, that nothing in this paragraph shall be construed to permit the assignment of this
Agreement except as otherwise expressly authorized herein.
10.Underlying Intent and Scope. It is the intent of this Agreement that the Town shall incur
no cost or expense attributable to or arising from the construction, maintenance, or operation
of the Facilities and encroachment permitted by this Agreement and that, in all instances, the
risk of loss, liability, obligation, damages, and claims associated with the encroachment shall
be borne by the Licensee. This Agreement does not confer upon the Licensee any other
right, permit, license, approval, or consent other than that expressly provided for herein and
this Agreement shall not be construed to waive, modify, amend, or alter the application of
any other federal, state, or local laws, including laws governing zoning, land use, property
maintenance, or nuisance.
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11.Authority to Bind Party. The undersigned persons represent that they are expressly
authorized to execute this Agreement on behalf of the Parties and to bind their respective
Parties and that the Parties may rely upon such representation of authority.
12.Legal Fees and Costs. The prevailing party in any legal action with respect to this Easement
Agreement shall be awarded it reasonable costs and attorneys’ fees incurred with respect
thereto.
DATED THIS ____________ DAY OF _______________, 20____.
TOWN OF AVON:
By: ________________________________
Town Manger
ATTEST:Approved as to Form:
_________________________________________________________
Town Clerk or Deputy Town Clerk For Town Attorney’s Office
LICENSEE:
By: ________________________________
Print Name: _________________________
Address: ___________________________
___________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ________ day of
____________________, 20____, personally b y _______________________________.
___________________________________
Notary Public
(SEAL)Commission expires: ____________________________
EXHIBIT A to Heil Memorandum dated June 6, 2013
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EXHIBIT D
Prioritized Capital Projects
Prioritized Capital Projects List
Budgetary 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
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
EXHIBIT E
Schedule of Past Developer Advances and Av on Receivable
Priority of Repayment
Contract
Date
Repayment
Party
Principal
Amount
Accrued
Interest Total2
Developer Advances
Amended and Restated Funding and Reimbursement Agreement1 05/08/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
Facilities Acquisition Agreement3 05/29/2002 See Note 3 below 4,029,786 2,193,749 6,223,535
2003 Funding and Reimbursement Agreement, as amended03/25/2004 Traer Creek LLC 2,560,673 1,672,846 4,233,519
2006 Operation Funding Agreement 01/26/2006 Traer Creek LLC 576,310 249,048 825,358
2007 Operation Funding Agreement 11/30/2006 Traer Creek LLC 841,980 335,769 1,177,749
2008 Operation Funding Agreement 12/14/2007 Traer Creek LLC 279,116 88,079 367,195
2009 Operations Advance 12/14/2007 Traer Creek LLC 87,694 15,161 102,855
2010 Operations Advance 12/14/2007 Traer Creek LLC 122,743 10,188 132,931
2011 Operations Advance 12/14/2007 Traer Creek LLC 72,682 - 72,682
Total Developer advances 12,047,736 7,022,299 19,070,035
Avon Receivable
2008 Avon Receivable
various see
attached Town of Avon 482,642 - 482,642
2009 Avon Receivable
various see
attached Town of Avon 1,064,062 - 1,064,062
2010 Avon Receivable
various see
attached Town of Avon 1,126,649 - 1,126,649
2011 Avon Receivable
various see
attached Town of Avon 848,956 - 848,956
Total Avon receivable 3,522,309 - 3,522,309
Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344
1The net credit for amounts owed to the District by the Developer for Cable TV Filing 1; Utilities Filing 3; and the Parking Structure (645k) with
accumulated interest that were in excess of the additional developer advances not captured above for the Dirt Removal Agreement ($417k)was applied
against the accrued interest for the Amended and Restated Funding and Reimbursement Agreement
2All totals are as of December 31, 2011.
3The District's records reflect that the amount outstanding under the Facilities
Acquisition Agreement are as follows:
Traer Creek-RP LLC $ 2,440,000 $ 1,328,296 $ 3,768,296
Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, LLLP 1,589,786 865,453 2,455,239
Total amount outstanding at December 31, 2011 $ 4,029,786 $ 2,193,749 $ 6,223,535
Repayment of amounts due under the Facilities Acquisition Agreement will be allocated equally (on a pari passu basis) as funds are available after
reimbursement to Traer Creek LLC under the Amended and Restated Funding and Reimbursement Agreement dated May 8, 2002, as amended.
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
Priority of Repayment
Date
Obligation
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2002 Funding and Reimbursement Agreement 5/7/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
2003 Funding and Reimbursement Agreement 9/17/2003 Traer Creek LLC 860,673 1,672,846 2,533,519
2003 Funding and Reimbursement Agreement 10/22/2003 Traer Creek LLC 500,000 - 500,000
2003 Funding and Reimbursement Agreement 11/30/2003 Traer Creek LLC 950,000 - 950,000
2003 Funding and Reimbursement Agreement 1/19/2004 Traer Creek LLC 250,000 - 250,000
Facilities Acquisition Agreement 3 3/10/2005
Traer Creek-RP LLC /
Buffalo Ridge 4,029,786 2,193,749 6,223,535
2006 Operation Funding Agreement 4/18/2006 Traer Creek LLC 45,016 249,048 294,064
2006 Operation Funding Agreement 5/24/2006 Traer Creek LLC 227,197 - 227,197
2006 Operation Funding Agreement 8/9/2006 Traer Creek LLC 69,255 - 69,255
2006 Operation Funding Agreement 9/1/2006 Traer Creek LLC 66,832 - 66,832
2006 Operation Funding Agreement 9/19/2006 Traer Creek LLC 5,842 - 5,842
2006 Operation Funding Agreement 10/19/2006 Traer Creek LLC 30,922 - 30,922
2006 Operation Funding Agreement 11/22/2006 Traer Creek LLC 80,195 - 80,195
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC 15,505 - 15,505
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC 8,938 - 8,938
2006 Operation Funding Agreement 1/17/2007 Traer Creek LLC 26,608 - 26,608
2007 Operation Funding Agreement 7/20/2007 Traer Creek LLC 79,980 335,769 415,749
2007 Operation Funding Agreement 8/17/2007 Traer Creek LLC 165,980 - 165,980
2007 Operation Funding Agreement 10/3/2007 Traer Creek LLC 151,980 - 151,980
2007 Operation Funding Agreement 10/30/2007 Traer Creek LLC 152,000 - 152,000
2007 Operation Funding Agreement 12/14/2007 Traer Creek LLC 292,040 - 292,040
2008 Operation Funding Agreement 1/31/2008 Traer Creek LLC 13,168 88,079 101,247
2008 Operation Funding Agreement 2/28/2008 Traer Creek LLC 12,500 - 12,500
2008 Operation Funding Agreement 3/31/2008 Traer Creek LLC 12,500 - 12,500
2008 Operation Funding Agreement 4/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 5/31/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 6/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 7/31/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 8/31/2008 Traer Creek LLC 31,575 - 31,575
2008 Avon Receivable 9/1/2008 Town of Avon EA 46,813 - 46,813
2008 Avon Receivable 9/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 9/1/2008 Town of Avon STSF 37,276 - 37,276
2008 Operation Funding Agreement 9/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Avon Receivable 10/1/2008 Town of Avon EBC 58,206 - 58,206
2008 Avon Receivable 10/1/2008 Town of Avon MS 37,276 - 37,276
2008 Operation Funding Agreement 10/31/2008 Traer Creek LLC 30,450 - 30,450
2008 Avon Receivable 11/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 11/1/2008 Town of Avon STSF 39,276 - 39,276
2008 Operation Funding Agreement 11/30/2008 Traer Creek LLC 12,500 - 12,500
2008 Avon Receivable 12/1/2008 Town of Avon EBC 49,901 - 49,901
2008 Avon Receivable 12/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 12/1/2008 Town of Avon STSF 39,276 - 39,276
2008 Operation Funding Agreement 12/31/2008 Traer Creek LLC 14,173 - 14,173
2009 Avon Receivable 1/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 1/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 2/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 2/1/2009 Town of Avon STSF 39,276 - 39,276
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1001679.22 FINAL
Priority of Repayment
Date
Obligation
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2009 Avon Receivable 3/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 3/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 4/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 4/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 5/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 5/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 6/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 6/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 7/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 7/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 8/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 8/1/2009 Town of Avon STSF 186,467 - 186,467
2009 Avon Receivable 9/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 9/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 9/1/2009 Town of Avon EBC 48,897 - 48,897
2009 Avon Receivable 10/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 10/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 11/1/2009 Town of Avon MS 3,251 - 3,251
2009 Avon Receivable 11/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 12/1/2009 Town of Avon MS - - -
2009 Avon Receivable 12/1/2009 Town of Avon STSF 54,099 - 54,099
2009 Operations Advance 12/31/2009 Traer Creek LLC 87,694 15,161 102,855
2010 Avon Receivable 1/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 1/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 2/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 2/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 3/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 3/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 4/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 4/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 5/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 5/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 6/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 6/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 7/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 7/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 8/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 8/1/2010 Town of Avon STSF 92,181 - 92,181
2010 Avon Receivable 9/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 9/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 10/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 10/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 11/1/2010 Town of Avon MS 8,126 - 8,126
2010 Avon Receivable 11/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 12/1/2010 Town of Avon MS - - -
2010 Avon Receivable 12/1/2010 Town of Avon STSF 56,407 - 56,407
2010 Operations Advance 12/31/2010 Traer Creek LLC 122,743 10,188 132,931
2011 Avon Receivable 1/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 1/1/2011 Town of Avon STSF 56,403 - 56,403
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1001679.22 FINAL
Priority of Repayment
Date
Obligation
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2011 Avon Receivable 2/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 2/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 3/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 3/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 4/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 4/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 5/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 5/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 6/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 6/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 7/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 7/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 8/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 8/1/2011 Town of Avon STSF 42,721 - 42,721
2011 Avon Receivable 9/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 9/1/2011 Town of Avon STSF 57,082 - 57,082
2011 Avon Receivable 10/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 10/1/2011 Town of Avon STSF 57,084 - 57,084
2011 Operations Advance 12/31/2011 Traer Creek LLC 72,682 - 72,682
Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
EXHIBIT F
Definitions
1.Accept(ed)/Acceptance means the Town’s acceptance of Dedicated real property interests
and Public Improvements located therein for purposes of ownership and maintenance, consisting
of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with
the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect from time to
time)as modified and or exempted by the Development Plan; subject, however, to the terms and
conditions of Section 4.2(d)regarding asphalt overlays.
2.Accommodations/Lodging Fee means the Credit PIF imposed pursuant to the PIF
Covenants on accommodations/lodging transactions occurring within the Project which, subject
to application of the Ta x Credit, are Ta xable Tr ansactions. The Accommodations/Lodging Fee
shall be construed to be part of a Ta xable Tr ansaction, and shall be subject to the To wn’s tax on
accommodations/lodging transactions.
3.Additional Developer Advances means funds advanced after the Effective Date for
Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner
to or on behalf of TCMD or another District (whether the corresponding Capital Projects are
undertaken directly by such District or acquired by such District after construction by the party
entitled to reimbursement for the costs thereof), which advances are subject to reimbursement by
such District utilizing Credit PIF Revenues, together with simple interest at a rate equal to the
Municipal Market Data rate (or, if the foregoing index is no longer published,then the Bond
Bu yer Revenue Bond index rate), for a term most closely related to the term of the particular
Additional Developer Advance being made,for Baa investment grade bonds on the date of such
advance plus 375 basis points, and which are secured by such District’s issuance of an
instrument (note, bond, funding/reimbursement agreement or similar form of instrument)
evidencing such District’s financial obligation to repay such advances; provided, however, that
Master Developer’s contributions to the Asphalt Overlay Account pursuant to Section 6.6(a)(iv)
shall be construed to be Additional Developer Advances only to the extent reimbursable from a
District using Credit PIF Revenues.
4.Add-On PIF means that portion of the Public Im provement Fees with respect to which
the Ta x Credit does not apply or attach. As of the Effective Date, the Add-On PIF consists only
of the Add-On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the
future to impose the Add-On PIF on other types of transactions and/or at a rate in excess of the
Add-On RSF rate required by this Development Agreement.
5.Add-On PIF Revenues means the gross revenues actually collected from imposition of
the Add-On PIF in accordance with the PIF Covenants, which may consist of Add-On RSF
Revenues, Municipal Payments and other revenues derived from imposition of the Add-On PIF
on transactions other than retail sales that are Ta xable Transactions or at rates in excess of the
Add-On RSF rate.
6.Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions
that are Ta xable Transactions at the rate set forth in Section 6.4(b)and in accordance with the
terms and conditions of the Financing Plan.
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7.Add-On RSF Collection Agent means Special District Management Services, Inc., or any
successor entity engaged from time to time,to administer the collection and distribution of the
Add-On RSF Revenues on behalf of the PICs.
8.Add-On RSF Collection Services Agreement(s)means one or more agreements entered
into from time to time by and between the PICs, the To wn and the Add-On RSF Collection Agent
providing for the administration,collection and distribution of the Add-On RSF Revenues.
9.Add-On RSF Revenues means the gross revenues actually collected from imposition of
the Add-On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments
to be remitted to the Town during the Term as set forth in Section6.5 and the remainder of which
(including any such revenues the PICs continue to collect after the Te rm) shall be utilized for
other lawful purposes otherwise authorized by the PIF Covenants.
10.Allowed O&M Expenses means the amount of District Revenues to be remitted to and
retained by TCMD in each calendar year during the Term for payment of: (i)TCMD’s annual
contribution to the Asphalt Overlay Account; (ii) the Annual Debt Service Obligation; and
(iii)the annual Base O&M Amount. For each full calendar year during the Term, the Allowed
O&M Expenses (in each case, to be reduced in an amount equal to the amount, if any, by which
the Annual Debt Service Obligation is less than $500,000 per year)shall be: (A) for calendar
years 2013 through 2017, $1,000,000 (One Million Dollars); (B) for calendar year 2018 and each
subsequent calendar ye ar including the calendar year in which the Town assumes sole
responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $1,025,000
(One Million Twenty-Five Thousand Dollars); and (C)for each calendar ye ar after the year in
which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with
Section 6.6(b), $950,000 (Nine Hundred Fift y Thousand Dollars) per year.
11.Annual Debt Service Obligation has the meaning and is subject to the terms, conditions,
restrictions and requirements set forthin the Pledge Agreement.
12.Applicant means the Landowner of the real property comprising the Site for which a
Development Application is submitted, or an individual or entity whom the Landowner has
designated in writing as its authorized representative for the purpose of representing the
Landowner and/or acting upon any Development Application or submittal for development of the
pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple
ownership of the Site or portion thereof with the fee owner’s written consent to any such
application or submittal, or which may be an owners’association for a condominium project or
like common interest ownership project). Notwithstanding any additional or conflicting
provision of the Municipal Code (whether as in effect on the Execution Date or as amended from
time to time), the definition of “Applicant” shall not be construed to mean any person or entity
owning, holding or possessing an easement interest, a leasehold interest, a license,a security
interest or an y other form of interest in the Site, whether possessory or otherwise, other than fee
simple ownership of the Site as reflected in the official records of the Eagle County Ta x
Assessors office.
13.Approved SSDP(s)means, individually or collectively: (i) the Development Agreement;
(ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date,
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
To wn Council approves (or otherwise approved by the To wn including, for example, an
administratively approved final plat, an administratively approved amendment to the PUD Guide
or similar previously approved Site Specific Development Plan) and designates as a Site Specific
Development Plan that establishes Ve sted Property Rights, together with amendments (if any) to
such approved Development Applications.
14.Article refers to a numbered Article of the Development Agreement, unless otherwise
stated.
15.Asphalt Overlay Agreement means that certain Asphalt Overlay Escrow Account
Agreement entered into concurrently with the Effective Date by and among the To wn, TCMD
and First Bank, Avon Branch and which establishes the terms and conditions upon which funds
shall be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account as
generally provided in Section 6.6.
16.Asphalt Overlay Account means a restricted escrow account established pursuant to the
Asphalt Overlay Agreement into which Master Developer, the To wn and TCMD shall deposit
funds for asphalt overlays of public roads in the Project in accordance with the terms and
conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii)and 6.6.
17.AURA means the Av on Urban Renewal Authority, a body corporate duly organized and
existing as an urban renewal authority under the laws of the State of Colorado.
18.Authority means the Upper Eagle Regional Wa ter Authority, a quasi-municipal
corporation and political subdivision of the State of Colorado, together with any successor water
service provider (whether pursuant to dissolution of the Authority or otherwise).
19.Avon Receivable means TCMD’s past due payment obligation to the Town in the
principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO
THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with
interest thereon as provided in Section 6.9(b)(v)(B)3.II (such principal amount inclusive of
$98,798.46 of expenses incurred by the Town in connection with design work for the East
Beaver Creek Boulevard Phase 3 obligation as defined in the Original Agreement, which East
Beaver Creek Boulevard Phase 3 obligation is extinguished by this Development Agreement).
20.Base O&M Amount means the amount of District Revenues available each year for
TCMD’s payment of ongoing operation, maintenance, administrative and other legally
authorized costs, which amount shall be equal to that portion of the total Allowed O&M
Expenses which is the remainder of the total Allowed O&M Expenses for such year after
subtracting: (i) the Annual Debt Service Obligation; and (ii) TCMD’s contribution to the Asphalt
Overlay A ccount.
21.BNP means BNP Paribas, an international bank, together with its successors and assigns.
22.Bond Requirements means the following costs incurred in connection with the issuance
of any District Debts other than principal payments (including mandatory sinking fund
payments): (a)interest payments on the outstanding principal of District Debts; (b)payments to
replenish bond reserve accounts, provided that a bond reserve for any District Debts shall not
EXHIBIT A to Heil Memorandum dated June 6, 2013
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1001679.22 FINAL
exceed maximum annual debt service on such District Debts; (c)periodic fees related to credit
enhancements (including, without limitation, the Deferred Fees, if any);(d)prepayment
premiums; (e)arbitrage rebate payments;(f)fees and expenses of any bond trustee, bond
registrar, paying agent, authenticating agent, rebate analyst or consultant, calculation agent,
remarketing agent;(g)payments to any rating agency for maintaining a rating on the District
Debt;(h)payments due to any provider of an interest rate swap or interest rate cap;and (i)any
other amount approved by the Town. Notwithstanding the foregoing, Bond Requirements on the
Wa ter Ta nk Bonds shall be limited as provided in the Pledge Agreement. Bond Requirements
does not include any such costs which are capitalized and paid with the Net Proceeds of District
Debts.
23.Cap Amounts has the meaning set forth in Section 6.2(b).
24.Capital Projects means: (i) Public Improvements required by the Town as a condition of
approving a Development Application (for example, public streets; wet utilities such as water,
sewer, storm drainage; related grading and landscaping, etc.), and specifically including the
Prioritized Capital Projects; and (ii) even if not specifically required as a condition of approving
a Development Application, Public Improvements that serve or benefit the Project and which are
eligible to be financed by the Districts and/or AURA under applicable laws.
25.Capital Project Costs means all costs and expenses incurred in connection with the design
and construction of Capital Projects, including but not limited to design, engineering, surveying,
soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant
fees, and application and permit fees related thereto, but not including, if any,Bond
Requirements or an y costs described in the first sentence of the definition of Bond Requirements
which are capitalized and incurred in connection with issuance of District Debts with respect to
such Capital Projects.
26.Commercial PIC means The Village (at Avon) Commercial Public Im provement
Company, a Colorado non-profit corporation.
27.Credit PIF means, collectively, the Real Estate Transfer Fee, the
Accommodations/Lodging Fee and the Retail Sales Fee with respect to each of which the Ta x
Credit applies and attaches in accordance with Section 6.1, as implemented by Sections 3.08.035
(with respect to sales tax), 3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with
respect to public accommodations tax) of the Municipal Code (as in effect on the Execution
Date), and a building materials use fee if adopted in accordance with Section 6.4(a)(iv).
28.Credit PIF Cap has the meaning set forth in Section 6.2(b).
29.Credit PIF Collection Agent means Special District Management Services, Inc., or an y
successor entity engaged from time to time,to administer the collection and distribution of the
Credit PIF Revenues on behalf of the PICs.
30.Credit PIF Collection Services Agreement(s)means one or more agreements between the
Credit PIF Collection Agent, the PICs, Master Developer and TCMD providing for the
administration,collection and distribution of the Credit PIF Revenues.
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31.Credit PIF Revenues means the gross revenues actually collected from imposition of the
Credit PIF.
32.Debt Service Coverage Ratio means, for any calendar year until there are no outstanding
obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding
of such bonds, the Net Revenue received by or on behalf of both Districts during such period
divided by Debt Service for such year. For the purposes of calculating the Debt Service
Coverage Ratio:
(a)“Net Revenue” means, for each such calendar year, that portion of the total of all
District Revenues received by the Districts which is the remainder of the total of all such District
Revenues received in such year minus: (i) TCMD’s annual contribution to the Asphalt Overlay
Account; (ii) the annual Base O&M Amount; (iii) proceeds from Additional Developer
Advances; and (iv) Net Proceeds from Supplemental Bonds (other than Additional Developer
Advances).
(b)“Debt Service” means, for any such calendar year, the sum of the amounts to be
paid or deposited for the purpose of paying, pursuant to the requirements of the documents under
which such obligations are issued: (i) principal, interest and any other Bond Requirements due
in such year on (A)the TCMD Bond Reissue and (B)Supplemental Bonds; plus (ii) the Annual
Debt Service Obligation; plus (iii) the Deferred Amortization and Deferred Fee amounts due in
such year (which shall be a cumulative total of the Deferred Amortization and Deferred Fee due
from prior years, if any, and the current year).
33.Dedicate(d)/Dedication means the conveyance, whether by plat or by special warranty
deed in the form attached as Exhibit B, to the To wn or other appropriate governmental or quasi-
governmental entity of real property for a specified purpose, together with Public Improvements
installed thereupon, if any, free and clear of all monetary liens and those non-monetary
encumbrances that are not materially inconsistent with the purpose(s) for which To wn or other
governmental or quasi-governmental entity is acquiring the real property and related Public
Improvements.
34.Deferred Amortization means, (i) in any year until there are no outstanding obligations to
BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such
bonds, the difference between the principal amount due on the TCMD Bond Reissue and the
principal amount that was due in that year under the financing documents governing the TCMD
Variable Rate Revenue Bonds, Series 2002 or the TCMD Variable Rate Revenue Bonds, Series
2004, as applicable; and (ii) as of any date of computation, the sum of all amounts determined as
set forth in clause (i), for years prior to and including (but not subsequent to) the date of
computation, that have not been paid as of that date.
35.Deferred Fees means, until there are no outstanding obligations to BNP under the TCMD
Reissue Documents or any subsequent reissue or refunding of such bonds, any Facility Fees (as
defined in the Reimbursement Agreement between TCMD and BNP entered into in connection
with the TCMD Bond Reissue) that are not required to be paid when accrued in accordance with
the terms of the Reimbursement Agreement, including interest thereon calculated at the rate of
2.5% per annum.
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36.Design Covenant means the Declaration of Master Design Review Covenants For The
Village (at Avon) dated May 8, 2002 and Recorded on May 8, 2002 at Reception No. 795011, as
amended by the First Amendment to Declaration of Master Design Review Covenants For The
Village (at Avon) dated June 4, 2008 and Recorded on June 10, 2008 at Reception No.
200812112 and by the Second Amendment and Ratified First Amendment to Declaration of
Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and
Recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended
from time to time.
37.Design Review Board means The Village (at Avon) Design Review Board as appointed
or elected in accordance with the Design Covenant.
38.Design Review Guidelines means the sole and exclusive architectural design, landscape
design, urban design and Site design and use standards applicable within the Property as set forth
in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011,
together with any amendment(s) the Design Review Board may approve after providing notice
thereof in accordance with Section3.1, as prepared, approved and promulgated by the Design
Review Board from time to time.
39.Developer(s)means, with respect to any Site, the individual or entity which is causing the
development of infrastructure and/or or vertical improvements within such Site to be performed.
40.Developer Affiliate(s)means, individually or collectively as the context dictates, TC-RP,
TC Plaza, TC-HD and TC-WMT, together with any other entity with respect to which TCLLC or
EMD is the managing member and which acquires title to any portion of the Property after the
Execution Date.
41.Development Agreement has the meaning set forth in the initial paragraph of the
Consolidated, Amended and Restated Annexation and Development Agreement for The Vi llage
(at Av on) to which this Exhibit Fis attached and incorporated into.
42.Development Application means any form of application or submittal to the To wn for
review and approval of any form of development within the Property, including but not limited to
an application or submittal regarding an amendment to the PUD Guide, an amendment to the
PUD Master Plan, a preliminary subdivision plan, a final subdivision plat, a grading permit, a
building permit or similar matters.
43.Development Plan means, collectively:
(a)the Development Agreement; and
(b)the PUD Guide.
44.District(s)means, individually or collectively as the context dictates,TCMD, VMD and
any additional metropolitan district(s) that may be formed subsequent to the Execution Date for
the purpose of providing services and/or Public Improvements and or other forms of
improvements benefiting all or any portion of the Property.
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45.District Debts means, collectively, the following financial obligations of TCMD (and any
refunding thereof accomplished in accordance with the Development Agreement), the full
payment of which shall result in expiration of the Term (unless the Town elects to continue the
Tax Credit pursuant to Section 6.1(d)): (i) the principal and Bond Requirements of the
obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b); and (ii) the Deferred
Amortization.
46.District Director(s)means, individually or collectively, the individuals who from time to
time hold a seat on the board of directors of a District.
47.District Revenues means, collectively, the Credit PIF Revenues, the Project Ad Valorem
Taxes (and related specific ownership taxes), proceeds of Supplemental Bonds (other than
Additional Developer Advances), proceeds from Additional Developer Advances and any other
lawful revenues of the Districts, including but not limited to revenues from service charges,
development fees, impact fees, tap fees (net of amounts required to be remitted to Eagle-Vail
Metropolitan District)or similar sources of revenue to the Districts, if any.
48.Effective Date means the date on which the Development Agreement is Recorded.
49.EMD means EMD Limited Liability Company, a Colorado limited liability company.
50.Execution Date has the meaning set forth in the initial paragraph of the Development
Agreement.
51.Exhibit means the following exhibits to the Development Agreement, all of which are
incorporated by reference into and made a part of the Development Agreement:
Exhibit A-Legal Description of Property
Exhibit B -Form of Special Warranty Deed for Conveyances to the To wn
Exhibit C -Form of Covenant and Temporary Easement Agreement
Exhibit D -Prioritized Capital Projects
Exhibit E-Schedule of Past Developer Advances and Av on Receivable
Exhibit F-Definitions
52.Final Acceptance means the Town’s undertaking of full responsibility for all operations
maintenance, repair, and capital replacement obligations (including but not limited to
maintenance and snow removal of roadways, water and sewer lines, storm drainage
improvements, maintenance of streetscape improvements within the Dedicated rights-of-way,
management of noxious weeds and similar matters in accordance with To wn’s generally
applicable procedures and standards)with respect to Dedicated Public Improvements upon
expiration of the warranty period and resolution of any warranty matters arising during the
period of Preliminary Acceptance; subject, however, to the terms and conditions of
Section 4.2(d)regarding asphalt overlays.
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53.Financing Plan means the arrangements, obligations and rights set forth in Article 6 with
respect to the financing of Capital Projects and other Public Improvements in the manner and for
the purposes described in the Development Agreement.
54.Forest Service Village Parcel means that parcel of land located between Planning Areas I
and J which, as of the Execution Date, is owned by the U.S. Forest Service.
55.Intended Beneficiary(ies)means, as more particularly described in and subject to the
terms and limitations of Section 1.8(b), BNP, VMD, Developer Affiliates and Landowners other
than those who are Parties. No other party or entity shall be construed to be an intended
beneficiary or to have any legal right to enforce or rely on any provision, obligation, term or
condition of the Development Agreement.
56.Landowner(s)means the fee owner of any real property comprising the Property or any
portion thereof.
57.Lender(s)means those entities having a security interest in any portion of the Property as
of the Execution Date and which have executed the Acknowledgement and Consent form
attached to and incorporated within the Development Agreement.
58.Limited Party(ies)means, individually or collectively as the context dictates and as more
particularly described in and subject to the terms and limitations of Section 1.8(a), AURA, EMD,
the Commercial PIC and the Mixed-Use PIC.
59.Litigation has the meaning set forth in Recital H.
60.Lot 1 means Lot 1, Amended Final Plat, The Village (at Avon) Filing 1, according to the
plat thereof Recorded at Reception No. 898173, and amended by The Second Amended Final
Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded
on the Effective Date).
61.Master Developermeans EMD (with respect to Planning Area I only) and TCLLC (in all
other respects), which entities (or any successor entities), as more specifically described in
Section1.7, are designated and authorized to act on behalf of all Developer Affiliates.
62.Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company,
a Colorado non-profit corporation.
63.Municipal Code means the To wn’s municipal code as in effect from time to time unless
otherwise stated in the Development Agreement.
64.Municipal Payment(s)means, as more particularly described in Sections 6.4(b)and 6.5
and in implementation of the Settlement Term Sheet, that portion of the Add-On RSF Revenues
(net of the costs of collection as set forth in the Add-On RSF Collection Services Agreement)
derived from application of the Add-On RSF to retail sales transactions only (and not to any
other Taxable Transactions) which the Town requires to provide a reliable revenue source with
growth potential to compensate the Town, and which the Town is entitled to receive, for:
(i)providing Municipal Services (whether prior to or after the Effective Date); (ii) releasing
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TCMD (and all other parties to the Litigation) from the sales tax indemnity obligations (as such
obligations were set forth in the Original Agreement); and (iii)assuming TCMD’s maintenance
obligations pursuant to Section 4.2(c).
65.Municipal Services has the meaning set forth in Section 4.1.
66.Net Proceeds has the following meanings:(i) for the Water Tank Bonds, the amount of
bond proceeds available for payment of Capital Project Costs;(ii) for Past Developer Advances
and any Additional Developer Advances, the full amount of the advances made to TCMD or
another District for Capital Project Costs; and (iii) for Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances, the Total Repayment Cost Comparison
amount calculated as follows: (A)if the Total Repayment Cost Comparison amount is a positive
number, the Net Proceeds of such Supplemental Bonds shall be defined as the amount that is
equal to the amount of the proceeds available from such Supplemental Bonds for payment of
Capital Project Costs; and (B)if the Total Repayment Cost Comparison amount is a negative
number, the Net Proceeds of such Supplemental Bonds shall defined as the amount that is equal
to the sum of the amount of bond proceeds available from such Supplemental Bonds for payment
of Capital Project Costs plus the Total Repayment Costs Comparison amount expressed as a
positive number.
67.Non-Cap Amounts has the meaning set forth in Section 6.2(c).
68.Original Agreement means that certain Annexation and Development Agreement
executed by and between the Town and the Original Owners as of October 13, 1998 and
Recorded on November 25, 1998 at Reception No. 67774, as amended by: (i) pursuant to
Ordinance 01-16, the First Amendment to Annexation and Development Agreement dated as of
November 13, 2001, and Recorded on December 10, 2001 at Reception No. 779049; (ii)
pursuant to Ordinance 03-08, the Second Amendment to Annexation and Development
Agreement dated as of May 27, 2003, and Recorded on July 30, 2003 at Reception No. 842248;
and (iii) pursuant to Ordinance 04-17, the Third Amendment to Annexation and Development
Agreement dated as of October 26, 2004, and Recorded on December 22, 2004 at Reception No.
901429.
69.Original Effective Date means October 13, 1998.
70.Original Owners means EMD, PVRT NOTT I LLC, a Colorado limited liability
company, PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III
LLC, a Colorado limited liability company, which entities owned the Property as of the
execution date of and were defined as “Owners” in the Original Agreement (TCLLC being the
successor entity to the PVRT entities as described in the Third Amendment of the Original
Agreement).
71.Original PUD Guide means The Village (at Avon) PUD Guide dated October 13, 1998
and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at
Reception No. 677744, as amended by: (i) PUD Development Plan Administrative Amendment
No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real
propert y records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439;
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(ii)PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the
real property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254;
(iii)PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real
property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806;
(iv)PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real
property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805; and
(v)Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25,
2007, and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at
Reception No. 200705491.
72.Party(ies)means, individually or collectively as the context dictates, the To wn, TCMD
and Master Developer.
73.Past Developer Advance(s)means, collectively and as more specifically set forth in
Exhibit E, the following TCMD obligations incurred prior to the Effective Date: (i) the principal
payable to certain of the Developer Affiliates, together with interest thereon at the rate set forth
in the documents creating such obligations; and (ii) the principal balance payable to the Buffalo
Ridge Affordable Housing Corporation, together with interest thereon at the rate set forth in the
documents creating such obligation
74.Permitted Uses has the meaning set forth in Section 6.2(a).
75.PIC(s)means, individually or collectively as the context dictates, the Commercial PIC
and/or the Mixed-Use PIC and/or any other public improvement company established for the
Property from time to time.
76.PIF Covenants means, collectively and as amended from time to time (specifically
including those amendments to be Recorded contemporaneously with the Effective Date), the
Declaration of Covenants for The Village (at Avon) Commercial Areas Recorded May 8, 2002 at
Reception No. 795012 and the Declaration of Covenants for The Village (at Avon) Mixed Use
Areas Recorded May 8, 2002 at Reception No. 795013.
77.Planning Area(s)means the portion(s)of the Property described in the PUD Guide and
depicted in the PUD Master Plan as “Planning Areas” or identified therein as “PA -[x].”
78.Pledge Agreement means that certain Water Tank Bonds Pledge Agreement made and
entered into by and among TCMD, VMD and the Authority, and having an effective date
concurrent with the Effective Date.
79.Preliminary Acceptance means the Town’s Acceptance of ownership of Dedicated Public
Improvements (including real property interests and/or improvements constructed thereupon)
and undertaking of full responsibility for all operations maintenance, repair and capital
replacement obligations (including but not limited to maintenance and snow removal of
roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape
improvements within the Dedicated rights-of-way, management of noxious weeds and similar
matters in accordance with To wn’s generally applicable procedures and standards)with respect
to Dedicated Public Improvements, subject to the warranty period (as set forth in the Municipal
Code as in effect from time to time) and the applicable Developer’s or District’s resolution of
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any warranty matters arising during such period of Preliminary Acceptance; subject, however, to
the terms and conditions of Section 4.2(d)regarding asphalt overlays.
80.Prioritized Capital Projects has the meaning set forth in Section 3.10.
81.Project means the mixed-use project proposed to be developed on the Property with the
uses, densities and development standards more particularly described in the Development Plan.
82.Project Ad Va lorem Ta xes means the tax revenues resulting from imposition of the
respective mill levies of TCMD and VMD, net of the costs of collection retained by the Eagle
County treasurer.
83.Property has the meaning set forth in Recital B.
84.Public Improvement(s)has the meaning ascribed to such term in the PUD Guide, and
includes but is not limited to all such improvements specifically or generally described in the
Service Plans.
85.Public Improvement Agreement(s)means a public improvement agreement (as such term
generally is used in Section 7.32.100 of the Municipal Code (as in effect from time to time),
subject to the terms and conditions of the Development Plan modifying and/or exempting
application of said Section 7.32.100) that is executed, either prior or subsequent to the Effective
Date, in connection with the proposed development of a portion of the Property.
86.Public Improvement Fee(s)means the Credit PIF, the Add-On RSF and any future
Add-On PIF other thanthe Add-On RSF, which are privately imposed fees (and not taxes)
imposed on Taxable Transactions (and such other transactions as may be set forth in the PIF
Covenants from time to time) in accordance with the terms and conditions of the PIF Covenants
and the Development Agreement.
87.PUD Master Plan means The Vi llage (at Av on) P.U.D. Development Plan/Sketch Plan
dated November 7, 2012, attached as Exhibit B of the PUD Guide, as amended from time to
time, which constitutes the approved sketch plan and master plan for development within the
Property.
88.PUD Guide means the Amended and Restated PUD Guide for the Property (and all
exhibits thereto, including but not limited to the PUD Master Plan)dated November 7, 2012, as
amended from time to time.
89.Real Estate Transfer Fee means the Credit PIF imposed pursuant to the PIF Covenants on
real estate transfer transactions occurring within the Project which, subject to application of the
Ta x Credit, are Ta xable Tr ansactions. The Real Estate Tr ansfer Fee shall not be construed to be
part of a Ta xable Tr ansaction, and shall not be subject to the To wn’s tax on real estate transfer
transactions.
90.Recital(s)means, individually or collectively as the context dictates, the information set
forth in the provisions of the “Recitals” section of the Development Agreement.
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91.Record(ed/ing)means to file, having been filed or appearing in the real property records
of the Eagle County Clerk and Recorder’s office.
92.Replacement Bonds means bonds that TCMD may issue after the Effective Date for the
purpose of extinguishing, replacing, refunding or defeasing all or portions of the Past Developer
Advances which: (i) bear a lower effective interest rate than the effective interest rate of the Past
Developer Advances, (ii) are not secured by (and cannot be paid from) Credit PIF Revenues; and
(iii)unless otherwise agreed to by the Town in writing, do not exceed a par value of $12.4
million in principal; and (iv) do not result in an increase of, or count against, the Credit PIF Cap.
93.Retail Sales Fee means the Credit PIF imposed pursuant to the PIF Covenants on retail
sales transactions occurring within the Project which, subject to application of the Tax Credit, are
Ta xable Transactions and,pursuant to Section 6.4(a)(iv), shall be imposed on the use of building
materials within the Project to the extent the To wn in the future enacts a municipal use tax on
building materials.
94.Revocable License Agreement means that certain Revocable Li cense Agreement for
Snow Storage executed concurrently with the Effective Date by and among EMD-CM LLC, a
Colorado limited liability company, TC-RP (such entities being assignees of Master Developer’s
rights pursuant to Section 3.7(b)) and the Town,with respect to the rights and obligations of the
parties thereto regarding the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat,
Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on
the Effective Date))for snow storage.
95.Sanitation District means the Eagle River Water & Sanitation District.
96.School Sites Dedicationhas the meaning set forth in Section 3.7(a).
97.Section refers to a numbered section of the Development Agreement, unless otherwise
stated.
98.Service Plan(s)means, individually or collectively as the context dictates and as may be
amended from time to time, the Service Plan for TCMD and VMD, each dated August 25, 1998,
and approved by the To wn Council in accordance with Part 2, Article 1, Title 32, C.R.S., together
with any other service plan(s) that To wn Council may approve for such additional District(s) as
may be organized for the Project in the future.
99.Settlement Term Sheet has the meaning set forth in Recital H.
100.Site has the meaning ascribed to such term in the PUD Guide.
101.Site Specific Development Plan means a “site specific development plan”as defined in
the Vested Property Rights Statute, but for avoidance of doubt shall not be construed to include a
preliminary plat, a grading permit, a building permit, or the continuation of a temporary use
beyond the term contemplated therefor in the approval.
102.Supplemental Bonds means additional financial obligations of TCMD in a cumulative
amount up to the portion of the otherwise unfunded portion of the Credit PIF Cap (including
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bonds issued by TCMD and/or Additional Developer Advances) issued at any time during the
period commencing on the Effective Date and continuing through and including January 1, 2040:
(i) which are payable in whole or in part from Credit PIF Revenues; and (ii)some or all of the
proceeds of which are utilized to finance Capital Projects and/or to refund and defease
Replacement Bonds.
103.Tank Agreement means that certain Traer Creek Water Storage Tank Agreement and
Second Amended Water Service Agreement made and entered into as of [insert effective date]
by the Authority, the Town, TCMD, Master Developer and certain “Limited Parties” as defined
therein.
104.Ta nk Project has the meaning set forth in the Ta nk Agreement.
105.Tank Project Bonds has the meaning set forth in the Tank Agreement.
106.Ta x Credit means the To wn’s obligation to provide tax credits as described in
Section 4.2(a)and in Article 6, which obligation is implemented by and codified in the
Municipal Code (as in effect on the Execution Date) at Sections 3.08.035 (with respect to retail
sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public
accommodations).
107.Taxable Transaction(s)means a retail sales transaction, a real estate transfer transaction,
or an accommodations/lodging transaction occurring within the Property which, subject to
application of the Tax Credit as set forth in the Development Agreement, is subject to the
Town’s sales tax, the Town’s real estate transfer tax or the Town’s accommodations/lodging tax.
If the Town imposes any use tax on building materials during the Term that is not in effect as of
the Execution Date such use tax shall be automatically and without the need of any formal action
incorporated into the foregoing definition.
108.TC-HD means Traer Creek-HD LLC, a Colorado limited liability company.
109.TCLLC means Traer Creek LLC, a Colorado limited liability company.
110.TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
111.TCMD Bond Reissue means bonds issued by TCMD on or prior to the Effective Date to
refund its Va riable Rate Revenue Bonds, Series 2002, and its Va riable Rate Revenue Bonds,
Series 2004, in implementation of the Settlement Te rm Sheet, including but not limited to any
refunding bonds issued to repay or defease such bonds as to which BNP is a credit enhancer,
letter of credit provider or bondholder.
112.TCMD Reissue Documents means the indenture, the custodial agreement and related
documentation executed in connection with closing of the TCMD Bond Reissue and which
establish, inter alia, the priority of uses for which District Revenues can be utilized.
113.TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company.
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114.TC-RP means Traer Creek-RP LLC, a Colorado limited liability company.
115.TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company.
116.Term means the period commencing on the Effective Date and continuing through and
including the date upon which payment in full of all issued and outstanding District Debts occurs
(or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to
Section 6.14(a)); provided, however, the Term shall not be deemed to have expired prior to
January 2, 2040, unless, prior to January 2, 2040: (i) (A) TCMD has issued Supplemental Bonds
up to the full amount of the Credit PIF Cap; and (B) all such Supplemental Bonds and all other
District Debts have been fully paid; or (ii) the Town has exercised its option to fully fund the
Credit PIF Cap pursuant to Section 6.14(a).
117.TIF Revenues means the net revenues actually received by AURA from the property tax
increment resulting from creation of one or more urban renewal area(s) including all or any part
of Lot 1. For purposes hereof, the term “net revenues” means the revenues remaining available
for use by AURA after remitting: (i) to the Districts, 100% of the tax increment revenues
resulting from the Project Ad Valorem Taxes; and (ii) to any other taxing authorities having
territory within the Property, such portions of the tax increment revenues resulting from the mill
levies of the other taxing authorities as AURA may be required to remit pursuant to the terms of
separate agreements with such taxing authorities, if any.
118.Total Repayment Cost Comparison means the Total Repayment Costs of Additional
Developer Advances minus the Total Repayment Cost of Supplemental Bonds issued in the form
of obligations other than Additional Developer Advances.
119.Total Repayment Cost of Additional Developer Advance means (i) the amount available
to pay Capital Project Costs from the proceeds of the Supplemental Bonds for which the Total
Repayment Cost Comparison is being calculated plus (ii) the total amount of interest which
would accrue from the date of issuance of such Supplemental Bonds to the respective maturity
dates of such Supplemental Bonds calculated by multiplying the Principal Amount Maturing by
the Municipal Market Data rate (or, if the foregoing index is no longer published,then the Bond
Bu yer Revenue Bond index rate), for a term most closely related to the term of the Supplemental
Bonds being issued,for Baa investment grade bonds on the date of issuance of such
Supplemental Bonds plus 375 basis points. For purposes of this calculation, Principal Amount
Maturing means the principal amount maturing on each maturity date for such Supplemental
Bonds multiplied by the percentage obtained by dividing the amount available to pay Capital
Project Costs from such Supplemental Bonds by the total principal amount of such Supplemental
Bonds. For purposes of this calculation, a maturity date is the date on which principal is
scheduled to be paid including a mandatory sinking fund date.
120.Total Repayment Cost of Supplemental Bonds means, with respect to Supplemental
Bonds issued in the form of obligations other than Additional Developer Advances, the sum of:
(i)the total principal amount of such Supplemental Bonds less the amount of the principal, if
any, representing capitalized interest as identified in the indenture of trust or other financing
document governing the payment of such Supplemental Bonds,plus (ii) the total amount of
interest to accrue on the Supplemental Bonds from their date to their respective maturities
EXHIBIT A to Heil Memorandum dated June 6, 2013
F-15
1001679.22 FINAL
calculated by multiplying the principal amount maturing on each maturity date by the applicable
TRC In terest Rate, plus (iii) the sum of any other known Bond Requirements that will be
required to administer the Supplemental Bonds.
121.To wn means the Town of Avon, a home rule municipal corporation of the State of
Colorado.
122.To wn Council means the Town Council of the Town.
123.TRC Interest Rate means, with respect to Supplemental Bonds issued in the form of
obligations other than Additional Developer Advances: (i)if the interest rate is fixed during the
term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable (subject
to the Town’s consent as set forth in Section 6.10), the 30-year average, as of the
issuance/closing date,of the interest rate index used to determine the variable rate on such
Supplemental Bonds as stated in the documents governing the issuance of such Supplemental
Bonds plus any adjustment or spread to such index.
124.Ve sted Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the
Original Effective Date.
125.Vested Property Rights has the meaning set forth in Section2.4.
126.Vesting Term has the meaning set forth in Section 1.4(a).
127.VMD means The Village Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado.
128.Water Bank has the meaning set forth in Section 3.4(a).
129.Water Rights has the meaning set forth in Section3.4.
EXHIBIT A to Heil Memorandum dated June 6, 2013
TOWN OF AVON, COLORADO
MINUTES FOR THE URBAN RENEWAL AUTHORITY MEETING FOR JANUARY 8, 2013
AVON TOWN HALL, ONE LAKE STREET
CALL TO ORDER AND ROLL CALL
Chairman Carroll called the meeting to order at 5:15 PM. A roll call was taken and Board members present
were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, and Jake Wolf. Buz Reynolds arrived at 5:20
PM. Also present were Executive Director/Secretary Virginia Egger, Town Attorney Eric Heil, Authority Clerk
Patty McKenny, Community Relations Officer Jaime Walker, as well as other staff members and the public.
APPROVAL OF AGENDA
The agenda was approved.
PUBLIC COMMENT
There were no public comments.
CONSENT AGENDA
a) Minutes from November 13, 2012
Board member Goulding moved to approve the minutes; Board member Dantas seconded the motion and it
passed unanimously by those present (Board member Reynolds absent at this time; Board members Evans,
Wolf and Fancher abstained as they were not at meeting).
b) Resolution No. 13-01, Series of 2013, Resolution to Designate a Public Place within the Boundaries of
the Authority where Notices of Meetings of the Authority’s Board of Commissioners shall be Posted
There was some discussion about the posting locations identified. There was consensus from the Board to
remove Alpine Bank as a location and use only public buildings and not private locations. There was interest
in using Avon Elementary School as a posting location; staff was asked to review this location as an official
posting location. Board member Evans moved to approve Resolution No. 13-01, Series of 2013, Resolution to
Designate a Public Place within the Boundaries of the Authority where Notices of Meetings of the
Authority’s Board of Commissioners shall be Posted; Board member Fancher seconded the motion and it
passed unanimously (Reynolds abstained from voting due to late arrival).
There being no further business to come before the Authority, the meeting adjourned at 5:25 PM.
RESPECTFULLY SUBMITTED:
_________________________________
Patty McKenny, Authority Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Todd Goulding ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com
H EIL L AW
TO: Honorable Mayor Carroll and Town Council Members
FROM: Eric J. Heil, Town Attorney
RE: Village (at Avon) Settlement Implementation Update
DATE: June 7, 2013
Summary: This memorandum provides an update on the settlement implementation for the Village (at
Avon) litigation.
Bond Issuance: A significant issue has arisen. A tax ruling was issued this week in Florida holding that a
district which has a board of directors controlled by a private developer does not qualify as a governmental
subdivision which can issue federal tax exempt bonds. This tax ruling directly effects the proposed bond
issue by Traer Creek Metropolitan District. Kutak Rock, the bond counsel for Traer Creek Metropolitan
District, has said that due to the tax ruling this week, they cannot provide an opinion that Traer Creek
Metropolitan District can issue tax exempt bonds. Several meetings have been held this week to discuss
options and alternatives, including the issuance of taxable bonds by Traer Creek Metropolitan District as
well as approving the issuance of tax exempt bonds by The Village Metropolitan District on behalf of Traer
Creek Metropolitan District. Attorneys for all parties and the financial underwriter are focused on analyzing
this new tax ruling and determining potential options. This turn of events has a strong potential to delay the
scheduled June 27, 2013 bond closing. This topic will be discussed further at the June 11, 2013 Council
meeting and I hope to provide an update on potential options and solutions to this new challenge.
Status Conference with Court: A Status Conference was held on Thursday, June 6, 2013. The
discussion was focused on the impact of the recent Tax Advisory Memorandum on the ability of Traer
Creek Metropolitan District to issue tax-exempt bonds. The next Status Conference is scheduled for
Thursday, June 13, 2013 at 2:30 p.m.
Water Tank Bids: The Upper Eagle River Water Authority sent out bid documents on May 10, 2013 to
fourteen pre-qualified contractors. Bids are due on June 10, 2013.
Revocable License Agreement for Snow Storage: Additional revisions are desired to the License
Agreement for Snow Storage on Lot 2; however, representatives of Traer Creek and I have not had the
opportunity to discuss additional revisions.
Remaining Documents for Approval: Resolution 13-18 approves all other documents required to be
approved by Council prior to closing. Resolution 13-18 and the remaining documents to be approved are
discussed in a separate memorandum.
Requested Action: No Council action is requested at this time except those matters which are on the
Council’s agenda and which are addressed in separate memoranda.
Thank you, Eric
M EMORANDUM
& PLANNING, LLC
Heil Law & Planning, LLC Office: 303.993.4608
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: meredith@heillaw.com
HEIL LAW
TO: Honorable Mayor Carroll and Town Council Members
CC: Virginia Egger, Town Manager
THRU: Eric Heil, Esq., Town Attorney
FROM: Meredith Van Horn, Esq., Assistant Town Attorney
RE: Approval of Agreements and Improvement Conveyances to the Town
DATE: June 6, 2013
Summary: This memorandum describes the various agreements and asset conveyance documents to be approved
by Resolution 13-18, which constitute the remaining documents which the Avon Town Council must approve to fully
implement the settlement to the Village (at Avon) litigation. The documents to be approved by Resolution No. 13-18
include:
1. Access Easement Agreement (Previously approved in Ord. No 12-10, but revised and resubmitted for approval
by Resolution);
2. Wet Well Easement Agreement (Previously approved in Ord. No 12-10, but revised and resubmitted for approval
by Resolution);
3. Special Warranty Deed conveying raw water rights to the Town;
4. Raw Water System Operation and Maintenance Agreement;
5. Amended and Restated Nottingham Dam Easement Agreement (Previously approved in Ord. No 12-10, but
revised and resubmitted for approval by Resolution);
6. Special Warranty Deed for Tract G, Filing 3 (Previously approved in Ord. No 12-10, but revised and resubmitted
for approval by Resolution);
7. Bills of Sale for the Nottingham Gulch Storm Sewer; and,
8. Bill of Sale for the Nottingham Gulch Energy Dissipater.
Access Easement Agreement: This Agreement conveys an easement to the Town for access from East Beaver
Creek Boulevard to Lot 2/Planning Area B. The version of the Agreement attached to Ordinance 12-10 was titled
“Roadway Easement Agreement”. On the Second Amended Final Plat, Amended Final Plat, The Village (at Avon)
Filing 1, A Resubdivision of Lot 1 the title of the easement is “Access Easement.” The title of the Agreement is
revised to “Access Easement Agreement” for consistency with the Lot 1 Re-Plat. The Agreement has been updated
to change all dates to 2013, to correct an incorrect cross-reference to the CARADA, and to include an “Approved as
to legal form by” signature block.
Paragraph 1 provides the basic parameters of the easement. The width of the easement is reduced from fifty
(50) feet to forty (40) feet. In addition, Traer Creek-RP, LLC revised the Agreement to exclude the installation of
Communications Utilities from the permitted uses under the easement. Communications Utilities include such utilities
as cable television cables, telephone cables, fiber optic cables, and the pipes are defined as “(a) cable television
cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals and similar
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Agreements and Asset Conveyances
June 6, 2013
Page 2 of 4
improvements; (b) telephone and communication cables, fiber-optic cables, wires, lines, plugs, connections, junction
boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; (c) data cables, fiber-optic cables,
wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar
improvements; and (d) utility conduit, pipe, sleeve, trough or similar enclosures for the purpose of holding, running or
containing the facilities described in clauses (a) through (c).”
Paragraph 2 of the Agreement is revised to allow termination of the easement in addition to the options of
relocating, adjusting or repositioning its location. The revision notes that the configuration of Future Main Street in
the PUD Master Plan shows that it will abut Lot 2/Planning Area B and thus will provide legal access to Lot
2/Planning Area B without the need of the Easement. The revision states that “at no time shall Planning Area B be
without legal access to Future Main Street or another public right-of-way.”
Paragraph 4 is revised to allow Traer Creek-RP, LLC to use the easement area for snow dumping and storage.
Paragraph 6 is a new paragraph regarding indemnification and insurance and states that the Town will indemnify
Traer Creek-RP, LLC against any claims that arise from the Town’s use of the easement, with the exclusion of any
negligence or willful misconduct by Traer Creek-RP, LLC. In addition, the Town shall maintain insurance coverage
“as reasonably determined by” the Town. This language was reviewed and approved by Town’s insurer, CIRSA.
Exhibit C to the Agreement is the Legal Description which has also be revised to include the reception
information for the Amended Plat for Lot 1 and to refer to Lot 2 as “Lot 2” and not “Proposed Lot 2”.
Wet Well Easement Agreement: The Wet Well Easement Agreement conveys an easement to the Town for access
from East Beaver Creek Boulevard to the wet well located on Lot 1 near Post Boulevard. The easement may also be
used for construction and maintenance of the wet well. Although various provisions have been relocated within the
document, no major substantive revisions are made with the exception of deletion of the section on termination of the
easement. Section 2 allows Traer Creek-RP to grant additional non-exclusive easements within the easement area
so long as they do not conflict with the Town’s use of its easement. Sections 3 and 4 state that the Town is
responsible for restoration of the area and for the maintenance of the Wet Well “at its sole cost and expense.”
Section 6 allows the easement area to be relocated at the sole discretion of Traer Creek-RP and when the easement
is relocated the Town and Traer Creek-RP will execute an amendment to the easement agreement. Section 19 was
added in response to requests by Traer Creek-RP to permit continued service of raw water for private irrigation use
for four (4) connections designated in Exhibit B to the Agreement.
Special Warranty Deed Conveying Raw Water: Attached is a Special Warranty Deed conveying raw water rights.
This conveyance is coordinated with the Raw Water System Operations and Maintenance Agreement and the
Nottingham Dam Easement.
The Village (At Avon) Raw Water System Operations and Maintenance Agreement: The Raw Water System
Operations and Maintenance Agreement (“Raw Water O&M Agreement”) outlines the operations and maintenance of
the Raw Water System and the future Village (at Avon) Lake Nos. 1 and 2.
Section 1 states that the Town assumes the operations and maintenance of the raw water system which
includes “the Nottingham and Puder Ditch, and any and all diversion ditches, pipelines, headgates and structures,
pumps, casings, wet wells and other improvements associated with or used in connection with the raw (non-potable)
water system that serves or will serve the Property”. TCMD shall continue to operate and maintain the part of the
raw water system that provides water for use in irrigating Tract E but Town agrees to provide raw water to Tract E.
If Village (at Avon) Lake Nos. 1 and 2 are constructed at some point in the future, Section 2 outlines the
maintenance and operation of those water bodies. If the lakes are constructed as “part of the development of the
Avon Town Council
Agreements and Asset Conveyances
June 6, 2013
Page 3 of 4
Property” then the maintenance will be the responsibility of TCMD or the Developer. If the lakes are constructed as a
public amenity for the Town then the lakes will be the responsibility of the Town.
The Raw Water O&M Agreement in Section 3 also requires that the Town provide an accounting for all
diversions at the Nottingham and Puder Ditch and the two wet wells, the total number of acres irrigated and
diversions from and releases into Lake Nos. 1 and 2. Section 4, 5 and 6 address future filings in the Water Court, the
need for augmentation for additional irrigation, and the use of any unused historic consumptive use credits.
Amended and Restated Nottingham Dam Easement and Assignment Agreement: This Agreement assigns the
responsibility for the maintenance of the Nottingham Dam from TCMD to the Town and grants the Town an easement
to access the Dam. Under Development Agreement Section 4.2(c) this responsibility of the Town is subject to the
Town’s sole discretion to determine appropriate maintenance of the Dam. The easement is not exclusive and may
be used by the Developer, so long as no damage is done to the Dam, to construct improvements and structures on
the Dam property and adjacent property. Although the maintenance is subject to the Town’s sole discretion, the
Agreement states that Town shall maintain the Nottingham Dam in accordance with the minimum requirements of the
Colorado Division of Water Resources which regulates dams.
Special Warranty Deed [Tract G – Filing 3]: This Special Warranty Deed was reviewed by Town Council as an
Exhibit to Ordinance 12-10. This Tract is a drainage tract located north of I-70 that is owned by Traer Creek-RP,
LLC. Revisions were made to note “All exceptions of record” in Exhibit B to the Special Warranty Deed. The previous
version only noted one exception.
Bills of Sale for Nottingham Gulch Storm Sewer and Nottingham Gulch Energy Dissipater: The Nottingham
Gulch Storm Sewer and the Nottingham Gulch Energy Dissipater are two improvements to be conveyed to the Town
that were not conveyed by the earlier bills of sale from TCMD. The Storm Sewer runs from just north of I-70, under I-
70, across Lots 4, 5, and 6 in Filing 1 and down to the Eagle River. The Nottingham Gulch Energy Dissipater is
located where the storm sewer meets the Eagle River on the McGrady Acres Open Space and is a water dissipater.
Approval: The Raw Water System Operations and Maintenance Agreement is an intergovernmental
agreement with Traer Creek Metropolitan Districts which lasts for more than 10 years, therefore, this
Resolution, or at least this IGA, must be approved by the concurring vote of five (5) Council members.
Requested Action: Approve Resolution No. 13-18 “A RESOLUTION APPROVING SEVERAL
DOCUMENTS RELATED TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT, INCLUDING:
THE ACCESS EASEMENT AGREEMENT; THE WET WELL EASEMENT AGREEMENT; RAW
WATER SPECIAL WARRANTY DEED; THE RAW WATER SYSTEM OPERATIONS AND
MAINTENANCE AGREEMENT; THE AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT; SPECIAL WARRANTY DEED FOR TRACT G, FILING 3; THE
BILL OF SALE FOR THE NOTTINGHAM GULCH STORM SEWER; AND THE BILL OF SALE FOR
THE NOTTINGHAM GULCH ENERGY DISSIPATER”
Thanks, Meredith
Attachments:
Resolution No. 13-18 with Exhibits
Access Easement Agreement Comparison of Version attached to Ordinance 12-10 and June 5, 2013
Version
Avon Town Council
Agreements and Asset Conveyances
June 6, 2013
Page 4 of 4
Wet Well Easement Agreement Comparison of Version attached to Ordinance 12-10 and June 5, 2013
Version
Amended and Restated Nottingham Dam Easement and Assignment Agreement Comparison of Version
attached to Ordinance 12-10 and June 6, 2013 Version
Res. 13-18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
June 6, 2013
Page 1 of 2
TOWN OF AVON
RESOLUTION NO. 13-18
Series of 2013
A RESOLUTION APPROVING SEVERAL DOCUMENTS RELATED
TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT,
INCLUDING: THE ACCESS EASEMENT AGREEMENT; THE WET
WELL EASEMENT AGREEMENT; RAW WATER SPECIAL
WARRANTY DEED; THE RAW WATER SYSTEM OPERATIONS
AND MAINTENANCE AGREEMENT; THE AMENDED AND
RESTATED NOTTINGHAM DAM EASEMENT AND ASSIGNMENT
AGREEMENT; SPECIAL WARRANTY DEED FOR TRACT G,
FILING 3; THE BILL OF SALE FOR THE NOTTINGHAM GULCH
STORM SEWER; AND THE BILL OF SALE FOR THE NOTTINGHAM
GULCH ENERGY DISSIPATER
WHEREAS, on October 7, 2011 the Town of Avon 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, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
(“Development Agreement”) by Ordinance No. 12-10 which states in Section 4.2(c) that the
Town of Avon will assume certain maintenance obligations of Traer Creek Metropolitan
District;
WHEREAS, the Town, Traer Creek Metropolitan District, Traer Creek development entities
and other parties to the litigation desire to clarify and document the transfer public improvement
assets to the Town for which the Town accepts responsibility to maintain according to the
Development Agreement and desires to adopt various agreements which address additional
details concerning the rights and obligations of parties to those agreements;
WHEREAS, Section 4 of Ordinance 12-10 authorizes the Town Council to approve
amendments and/or revisions to the documents conveying property to the Town in Section 4 of
Ordinance No. 12-10 by resolution;
WHEREAS, the Town of Avon may generally act by resolution to approve agreements and
acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to the Village (at Avon) Settlement Implementation (“Closing Escrow Agreement”) by
Ordinance No. 12-10 which set forth various terms concerning the execution and deposit of
documents and agreements into escrow and the effectiveness or voiding of such documents and
agreements.
Res. 13-18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
June 6, 2013
Page 2 of 2
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON:
Section 1. The following agreements and asset conveyances are hereby approved by the
Town of Avon subject to the terms and conditions of the Closing Escrow Agreement:
(a) The Access Easement Agreement, attached hereto as Exhibit A;
(b) The Wet Well Easement Agreement, attached hereto as Exhibit B;
(c) Special Warranty Deed conveying water storage rights and direct flow rights, attached
hereto as Exhibit C;
(d) The Village (at Avon) Raw Water System Operations and Maintenance Agreement,
attached hereto as Exhibit D;
(e) The Amended and Restated Nottingham Dam Easement and Assignment Agreement,
attached hereto as Exhibit E;
(f) Special Warranty Deed [Tract G – Filing 3], attached hereto as Exhibit F;
(g) The Bill of Sale (Nottingham Gulch Storm Sewer), attached hereto as Exhibit G; and
(h) The Bill of Sale (Nottingham Gulch Energy Dissipater), attached hereto as Exhibit H.
ADOPTED this JUNE 11, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
1014138.9
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (this “Easement Agreement”) is made and
entered into as of this _____ day of _________________, 2013 (“Effective Date”), by and
between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(together with its successors and assigns, “Grantee”); and TRAER CREEK-RP LLC, a Colorado
limited liability company (together with its successors and assigns, “Grantor”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference (“Lot
1”).
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) made and entered
into as of _____________, 2013 and recorded in the real property records of Eagle County,
Colorado (the “Records”) on or about even date herewith (“Development Agreement”).
C. Pursuant to Section 3.7(b) of the Development Agreement, concurrently with the
“Effective Date” (as defined in the Development Agreement) of the Development Agreement,
Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee certain real
property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and
incorporated herein by this reference (“Planning Area B”), which property is designated as
Planning Area B pursuant to The Village (at Avon) PUD Master Plan (the “PUD Master Plan”),
being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide
recorded in the real property Records on or about even date herewith (the “PUD Guide”).
D. As of the Effective date, there is no legal access to Planning Area B from a public
right-of-way.
E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, an access easement from that certain 80-
foot wide right-of-way known as East Beaver Creek Boulevard (as recorded in the Records at
Reception No. 795007) to Planning Area B for the purpose of Grantee’s enjoyment of the
Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction,
operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the
terms and conditions of the PUD Guide and the Development Agreement, and as set forth below.
2
1014138.9
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, a perpetual, non-exclusive, forty (40)-foot wide easement appurtenant to Planning
Area B (the “Easement”) over, under, through and across that portion of Lot 1 which is legally
described and depicted in Exhibit C attached hereto and incorporated herein by this reference
(the “Easement Area”) for the purpose of Grantee’s, together with its engineers, contractors,
employees and similar consultants to Grantee and/or its assigns (collectively, “Permittees”),
conducting of the following activities (collectively, the “Permitted Uses”): (i) vehicular and
pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using,
operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks,
bike paths, retaining walls and other access facilities necessary or desirable for such ingress and
egress, and all fixtures and devices reasonably used or useful in the operation of such facilities
(collectively, the “Roadway Facilities”); (iii) constructing, installing, using, operating,
maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities,
electrical lines, gas lines and similar utilities and utility facilities, excluding the Communications
Utilities (defined below), together with all sleeves, conduit, junction boxes, vaults, fixtures and
devices reasonably used or useful in the operation of such facilities, whether publicly or privately
owned (collectively, the “Utility Facilities,” and together with the Roadway Facilities, the
“Facilities”); and (iv) the right to enter upon the Easement Area and such immediately abutting
areas of Lot 1 thereto as may reasonably be necessary to survey and conduct geotechnical and
similar physical investigations. As set forth in the PUD Guide and Section 3.7(b) of the
Development Agreement, any construction of the Facilities shall be subject to the prior written
approval of the “Design Review Board” (as defined in the PUD Guide). Nothing contained
herein shall obligate Grantee to install, or cause to be installed, any or all of the Facilities or to
otherwise provide for any such use. For purposes of this Easement Agreement,
“Communications Utilities” shall mean, collectively, (a) cable television cables, wires, lines,
plugs, connections, junction boxes, access boxes, vaults, switches, terminals and similar
improvements; (b) telephone and communication cables, fiber-optic cables, wires, lines, plugs,
connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar
improvements; (c) data cables, fiber-optic cables, wires, lines, plugs, connections, junction
boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; and (d) utility
conduit, pipe, sleeve, trough or similar enclosures for the purpose of holding, running or
containing the facilities described in clauses (a) through (c).
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of permanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable Public Improvements Agreement(s) (as defined
in the PUD Guide) between the Town and applicable constructing party(ies) (“Future Main
Street”), Grantor and Grantee acknowledge that future design, engineering, construction and/or
general development of Lot 1 and/or Future Main Street may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
3
1014138.9
Easement Area be, in whole or in part, adjusted, repositioned, relocated or terminated to
accommodate such future development of Lot 1 and/or Future Main Street, provided that at no
time shall Planning Area B be without legal access to Future Main Street or another public right-
of-way. Grantor and Grantee further acknowledge and agree that, as generally contemplated by
the PUD Master Plan, the configuration of Future Main Street abuts Planning Area B and could
provide direct legal access from Future Main Street to Planning Area B without the necessity of
any easement or grant of other right to provide for such access. Accordingly, if Future Main
Street or other public right-of-way is designed and constructed in a manner that provides direct
legal access from Future Main Street or other public right-of-way to Planning Area B, upon the
Town’s preliminary acceptance pursuant to the applicable Public Improvements Agreement of
the street improvements for the portion of Future Main Street or other public right-of-way that
provides such legal access to Planning Area B, this Agreement and the Easement granted
hereunder shall automatically terminate and be extinguished and of no further force or effect
without any further act of either Grantor or Grantee. Notwithstanding the foregoing, upon and
after such termination at the written request of Grantor, Grantee shall deliver to Grantor an
executed termination of this Agreement in recordable form, which Grantor may record against
the Easement Area to provide record notice of such termination. Further, if Grantor determines,
in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for
purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and
Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and
configuration or relocation of the Easement Area (the “Relocated Easement Area”) and Grantee
shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement
Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement
substituting the surveyed legal description for the alignment and configuration of the Relocated
Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the
recordation of such amendment in the Records. Recordation of such amendment in the Records
shall have the legal effect of terminating the prior boundaries of the Easement Area and
establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of
such amendment, the Design Review Board previously has approved, and Grantee previously has
installed and/or constructed, Facilities within the Easement Area, Grantor shall have the
obligation, at Grantor’s sole cost and expense, to relocate such Facilities to, or install and/or
construct such Facilities within, the Relocated Easement Area.
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days’ written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee’s
and/or Permittees’ conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee’s and/or Permittees’ conduct of such activities. Upon completion of any construction
4
1014138.9
activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor’s Reserved Rights. Grantor reserves the right to grant additional
non-exclusive easements and/or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s
or Permittees’ full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein, including without limitation, snow dumping and storage.
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic’s liens or materialmen’s liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) in
connection with or arising out of Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non-contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
5
1014138.9
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
13. Counterparts. This Easement Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[Signature pages follow this page.]
6
1014138.9
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
GRANTOR:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
7
1014138.9
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2013, by ________________, as _________ of the TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK-RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
A-1
1014138.9
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
B-1
1014138.9
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
C-1
1014138.9
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
Page 1 of 10
Version 9
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
WET WELL EASEMENT AGREEMENT
THIS WET WELL EASEMENT AGREEMENT (“Agreement”) is entered into as of this
_____ day of ________________, 2013 (“Effective Date”), by and between TRAER
CREEK-RP LLC, a Colorado limited liability company (together with its successors and assigns,
“Grantor”), and the TOWN OF AVON, a home rule municipal corporation of the State of
Colorado (together with its successors and permitted assigns, “Grantee”).
1. Grant. In consideration of the covenants and agreements hereinafter set forth and other
good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged by
Grantor, Grantor hereby grants, bargains, sells, and conveys to Grantee the following perpetual
non-exclusive easements:
(a) A perpetual non-exclusive easement in, through, over, under and across that
certain parcel of real property located in the Town of Avon, Eagle County, Colorado, as more
particularly described on Exhibit A attached hereto and incorporated herein by this reference
(“Easement Area”) for (i) vehicular and pedestrian ingress and egress to the Improvements (as
defined below); and (ii) construction, reconstruction, operation, use, maintenance, repair,
replacement and/or removal of certain water lines and mains, manholes, conduits, ventilators,
access doors, cables, landscaping improvements, wells, well casings, tanks, motors, pumps,
electrical facilities and apparatus, meters, and related improvements and appurtenances thereto
(collectively, the “Improvements”), provided that all such improvements shall be located
underground or on the surface of the Easement Area and shall not be located above the surface of
the Easement Area, subject and pursuant to the terms and conditions set forth herein
(“Easement”); and
2. Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive
easements and/or other interests within the Easement Area so long as such grants do not
unreasonably interfere with Grantee’s full exercise of the Easement. Grantor reserves the right
to use and occupy the Easement Area for any and all purposes not inconsistent with the rights
and privileges granted herein.
3. Restoration; Repair. Upon completion of any of its activities which disturb or damage
the surface of the Easement Area or any of Grantor’s improvements, including without
limitation, landscaping improvements, Grantee shall restore the affected Easement Area and/or
improvements to the condition they were in immediately prior to such disturbance, except as
necessarily modified to accommodate the Improvements.
4. Maintenance. Grantee shall maintain the Improvements at its sole cost and expense.
Grantor shall have no obligation to maintain the Improvements.
5. Insurance; Indemnity.
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Version 9
(a) Insurance. Grantee shall require that all of its contractors and permittees
entering upon the Easement Area obtain and maintain in effect for the duration of their
respective periods of work (i) workers’ compensation insurance with statutory limits, and
(ii) public liability insurance with commercially reasonable limits as may be required by Grantee
from time to time as part of its capital construction and maintenance program.
(b) Indemnity. To the extent permitted by law, Grantee agrees to indemnify, defend
and hold the Grantor harmless from and against all losses, claims, damages, liabilities or
expenses, including without limitation reasonable attorneys’ fees arising from Grantee’s, its
contractors’ and permittees’ exercise of the Easement or use of the Easement Area; provided,
however, such indemnity shall not extend to any claims to the extent arising from Grantor’s
negligence or willful misconduct.
6. Relocation of Easement Area. In connection with Grantor’s future development of the
Easement Area and Grantor’s real property adjacent to the Easement Area known as The Village
(at Avon) (the “Project”), Grantor and Grantee acknowledge that future design, engineering,
construction and/or general development of the Project may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned or relocated to accommodate such
future development of the Project. If Grantor determines, in its sole discretion, that it is
necessary or desirable that the Easement Area, or any portion thereof, be relocated for purposes
of accommodating future development of the Project, Grantor and Grantee agree (a) Grantor
shall have the right to provide for an alternative alignment and configuration or relocation of the
Easement Area (the “Relocated Easement Area”) and Grantee shall not unreasonably deny,
condition or delay approval with respect to the Relocated Easement Area; (b) Grantor and
Grantee shall each execute an amendment to this Agreement substituting the surveyed legal
description for the alignment and configuration of the Relocated Easement Area as Exhibit A to
this Agreement; and (c) Grantor shall cause the recordation of such amendment in the real
property records of the clerk and recorder for Eagle County, Colorado. Recordation of such
amendment shall have the legal effect of terminating the prior boundaries of the Easement Area
and establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Agreement. In connection with any such relocation,
Grantor shall have the obligation, at Grantor’s sole cost and expense, to relocate the
Improvements to, or install and/or construct such Improvement within, the Relocated Easement
Area.
7. No Dedication; No Third-Party Beneficiaries. Nothing contained in this Agreement
shall be deemed to be, and shall not be, a dedication of the Easement or Easement Area to the
general public, or to any other person or entity, and no third-party shall have the right to exercise
the Easement or enforce the terms of this Agreement.
8. Notices. All notices, demands, requests or other communications sent by one party to the
other hereunder or required by law shall be in writing and shall be deemed to have been validly
given or served by delivery of same in person to the addressee or by courier delivery via Federal
Express or other nationally recognized overnight air courier service or by depositing same in the
United States certified mail, postage prepaid, addressed as follows:
Page 3 of 10
Version 9
To Grantee: Town of Avon
One Lake Street
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
With a copy to: Town of Avon
One Lake Street
P.O. Box 975
Avon, CO 81620
Attn: Town Attorney
To Grantor: Traer Creek-RP LLC
Physical Address:
Avon, CO 81620
Mailing Address:
P.O. Box 640
Vail, CO 81658
Attn: Marcus Lindholm
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Ste. 1600
Denver, CO 80202
Attn: Munsey L. Ayers
All notices, demands, requests or other communications shall be effective (a) upon personal
delivery; (b) if deposited with Federal Express or other nationally recognized overnight air
courier service, one (1) business day after such deposit; or (c) if deposited in the United States
certified mail, postage prepaid, three (3) business days after such deposit. By giving the other
party hereto at least ten (10) days written notice thereof in accordance with the provisions hereof,
such party shall have the right from time to time to change its address.
9. Subjacent and Lateral Support. Grantee shall have the right of subjacent and lateral
support for the Improvements, and Grantor shall not take any action which would impair the
lateral or subjacent support for the Improvements. Grantor shall have the right of subjacent and
lateral support for its improvements located within and adjacent to the Easement Area, and
Grantee shall not take any action which would impair the lateral or subjacent support for such
Grantor improvements.
10. Assignment. Grantee shall have the right and authority to assign to any appropriate local
governmental or quasi-governmental entity any and all rights to use, and all obligations
associated with, the Easement as are granted to and accepted by the Grantee herein.
11. Title Matters; No Warranties. This Agreement is subject to all prior easements,
restrictions, reservations, rights-of-way, encumbrances and similar matters of record as of the
Effective Date. Grantor makes no representations or warranties regarding the status of title to the
Page 4 of 10
Version 9
Easement Area as of the Effective Date, and the grant of the Easement and other rights pursuant
to this Agreement is in the nature of a bargain and sale conveyance.
12. Binding Effect; Runs With Land. Each and every benefit and burden of this
Agreement shall inure to and be binding upon Grantor, Grantee and their respective successors
and assigns. The burdens and benefits hereof shall run with title to the Easement Area. Any
person or entity that acquires any interest in the Easement Area shall be bound by the burdens
and entitled to the benefits of this Agreement. The burdens and benefits of this Agreement
constitute covenants that run with and encumber title to the Easement Area.
13. Severability. Any provision of this Agreement which is declared by a court of
competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be ineffective only
to the extent of such illegality, invalidity, prohibition or unenforceability, without invalidating or
otherwise affecting the remaining provisions of this Agreement, each of which shall continue in
full force and effect, unless modified by mutual consent of the parties, for so long as their
enforcement would not be inequitable to the party against whom they are being enforced under
the facts and circumstance then pertaining.
14. Attorneys’ Fees. In the event either party seeks to enforce its rights hereunder through
litigation, arbitration or another legal proceeding, the court or panel shall award to the prevailing
party in such litigation, arbitration or other legal proceeding, as part of its judgment or award, its
reasonable attorneys’ fees and costs.
15. Section Headings. The titles, headings and captions used in this Agreement are intended
solely for convenience of reference and shall not be considered in construing any of the
provisions of this Agreement.
16. Modification. This Agreement may not be modified, amended or terminated, except by
an agreement in writing executed by Grantor and Grantee.
17. Governing Law. The terms, covenants and provisions hereof shall be governed by and
construed under the applicable laws of the State of Colorado.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which taken together shall constitute one and the
same agreement.
19. Access to Raw Water. Grantor shall have the right during this Agreement to access raw
water from the raw water irrigation system dedicated by Traer Creek Metropolitan District to the
Town pursuant to the following terms:
a. The connection shall be limited to four (4) connections to the Town’s raw water irrigation
system described as (i) the Connection for Lot 2, (ii) the Tap for Trees on Post Blvd., (iii)
the Connection West side of Property and (iv) For Trees along Post Blvd (“Raw Water
System Connections”) as depicted in Exhibit B;
b. The Raw Water System Connections may be relocated at the expense of the property
owner served by such Raw Water System Connections provided that the areas to be
Page 5 of 10
Version 9
irrigated shall not be wholly relocated and that any adjustment or expansion of the
irrigation area shall require Town’s prior review and approval;
c. The Raw Water System Connections shall only serve to irrigate the same areas as
irrigated and but not to exceed a total of two million gallons of usage per year and subject
to the actual availability of raw water in the raw water irrigation system;
d. The Grantor or property owner served by the Raw Water System Connections shall
install water meters acceptable to the Town at no expense to the Town by May 1, 2014;
e. The Town shall not charge any plant investment fees, raw water system tap fees, or any
user fees for the Raw Water System Connections; and
f. The Town reserves the right to charge such raw water system tap fees, user fees and
assessments as determined appropriate by the Town for any additional connections or
expansion of water use through existing connections to the Town’s raw water irrigation
system.
[Signature Page Follows]
Page 6 of 10
Version 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first set forth above.
GRANTOR: TRAER CREEK-RP LLC, a Colorado limited liability company
By: Traer Creek LLC, a Colorado limited liability company, its Manager
By:__________________________
Marcus Lindholm, Manager
STATE OF COLORADO )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of __________,
2013, by ___________________, as ____________ of Traer Creek LLC, a Colorado limited
liability company, as Manager of Traer Creek-RP LLC, a Colorado limited liability company.
Witness my hand and official seal __________________________________________
[ S E A L ] My Commission Expires:______________________
Page 7 of 10
Version 9
GRANTEE: TOWN OF AVON, a home rule municipal corporation of the State of Colorado
By:_______________________________ Attest:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of __________,
2013, by Rich Carroll, as Mayor and Patty McKenny, as Town Clerk of the Town of Avon, of
the State of Colorado.
Witness my hand and official seal __________________________________________
[ S E A L ] My Commission Expires:______________________
Page 8 of 10
Version 9
EXHIBIT A
Easement Area
Page 9 of 10
Version 9
Page 10 of 10
Version 9
EXHIBIT B
Connections to Wet Well
{00225779 / 1 }
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this ______ day of ________________, 2013, is from
the Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of
the State of Colorado (“Grantor”), to the Town of Avon, a home rule municipal corporation of
the State of Colorado (“Grantee”), whose address is P.O. Box 975, One Lake Street, Avon,
Colorado 81620.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants, bargains, sells and conveys to Grantee all of Grantor’s
right, title and interest in and to the water rights described in Exhibit A, located in Eagle County,
Colorado (the “Water Rights”), free and clear of all liens and encumbrances, together with the
associated rights and benefits of the changes of water rights, plan for augmentation and exchange
decreed by the District Court in and for Water Division No. 5 in Case No. 97CW306 (the
“Augmentation Plan”) as such decree relates to the water rights in Exhibit A.
Together with all diversion ditches, dams, spillways, spillway channels, pipelines,
headgates and structures, pumps, casings and other improvements and easements associated or
used in connection with the Water Rights (including without limitation rights of access thereto)
as becomes necessary from time to time to provide municipal water service or raw water
irrigation service to the Property described in the attached Exhibit B (“Appurtenances”), subject
to The Village (at Avon) Raw Water System Operations and Maintenance Agreement being
executed by Grantor and Grantee of even date herewith.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
TRAER CREEK METROPOLITAN DISTRICT,
a quasi-municipal corporation and political subdivision
of the State of Colorado
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
{00225779 / 1 }
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of ____________,
2013 by ________________________, as President of the Traer Creek Metropolitan District.
Witness my hand and official seal. My commission expires: _________________.
[SEAL]
___________________________________
Notary Public
{00225779 / 1 }
EXHIBIT A
TO SPECIAL WARRANTY DEED FROM
TRAER CREEK METROPOLITAN DISTRICT TO TOWN OF AVON
Description of Water Rights
1. Water Storage Rights.
A. Nottingham Reservoir:
In Case No. 94CW113, Water Division No. 5, Nottingham Reservoir was conditionally
decreed for 22 acre-feet for domestic, commercial, industrial, augmentation and other uses with
an appropriation date of May 31, 1994, and an adjudication date of December 31, 1994. In the
same case, the reservoir was also decreed 22 acre-feet absolute for irrigation and stock watering.
Nottingham Reservoir is an on-channel reservoir located on Nottingham Gulch, a tributary of the
Eagle River. The point of intersection of the Nottingham Dam axis with the centerline of the
easterly spillway is located in the SW1/4 of the NW1/4 of Section 8, T. 5 S., R. 81 W., at a point
whence the northwesterly corner (BLM Brass Cap) of said Section 8 bears N. 27°34′30″W. 1800
feet. Nottingham Reservoir has been decreed as an augmentation source in Case No. 97CW306.
B. The Village (at Avon) Lake Nos. 1 and 2:
The Village (at Avon) Lake Nos. 1 and 2, with an adjudication date of December 31,
1997, and an appropriation date of May 20, 1997, as decreed by the District Court, Water
Division No. 5, State of Colorado, in the decree of the Water Court in Case No. 97CW306
entered on April 9, 2001, for a combined total of 27 acre-feet, conditional, with the right to fill
and refill, and with the following legal descriptions:
The Village (at Avon) Lake No. 1: This lake is located in the S1/2 SE1/4 NE1/4
and the N1/2 NE1/4 SE1/4 of Section 12, T. 5 S., R. 82 W. of the 6th P.M., Eagle,
County, Colorado.
The Village (at Avon) Lake No. 2: This lake is located in the NW1/4 SE1/4 of
Section 7, T. 5 S., R. 81 W. of the 6th P.M., Eagle County, Colorado.
The Village (at Avon) Lake Nos. 1 and 2 are decreed to fill and refill from the
Nottingham and Puder Ditch, limited to a diversion rate of 5 c.f.s.
2. Direct Flow Rights.
Any and all direct flow rights and other water rights associated with the raw (non-
potable) water system approved as part of the plan for augmentation and exchange decreed by
the District Court, Water Division No. 5, State of Colorado, in Case No. 97CW306 entered on
April 9, 2001, including the right to divert raw (non-potable) water through the Nottingham and
Puder Ditch for irrigation, flow through and recreational purposes.
{00225779 / 1 }
EXHIBIT B
PARCEL 1 DESCRIPTION
That part of the E 1/2 of Section 12, Township 5 South, Range 82 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey and Survey of said
Township and Range, accepted September 7, 1977 by the Department of the Interior Bureau of
Land Management in Washington, D.C., together with parts of Sections 7, 8, 9 & 17, Township
5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to
the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the
Department of the Interior General Land Office in Washington, D.C., described as a whole as
follows:
Beginning at the Northwest corner of said Section 7; thence along the northerly line of said
Section 7, N88°49’24”E 2791.46 feet, to the North 1/4 corner of said Section 7; thence,
departing said northerly line, along the easterly line of the NW 1/4 of said Section 7,
S00°11’12”E 2621.00 feet, to the northerly right-of-way line of Interstate Highway No. 70, as
described in the deed recorded in Book 223 at Page 982 in the office of the Eagle County,
Colorado, Clerk and Recorder; thence, along said northerly right-of-way line, S69°28’35”E
196.48 feet, to the northerly line of the SE 1/4 of said Section 7; thence, along said northerly line,
N89°50’40”E 2572.71 feet, to the West 1/4 corner of said Section 8; thence, along the westerly
line of said Section 8, N00°10’53”W 2738.19 feet to the Northwest corner of said Section 8;
thence, along the northerly line of said Section 8, N88°40’41”E 2758.98 feet, to the North 1/4
corner of said Section 8; thence, continuing along said northerly line, N88°42’58”E 850.00 feet;
thence, departing said northerly line, S56°30’00”E 1274.62 feet; thence S17°38’30”E 1593.20
feet; thence S27°39’30”W 2121.59 feet; thence South 899.93 feet; thence East 2595.53 feet, to
the easterly line of the SW 1/4 SW 1/4 of said Section 9; thence, along said easterly line
S01º33’13”W 603.34 feet, to the Southeast corner of said SW 1/4 SW 1/4; thence, along the
southerly line of said Section 9, N89º55’04”W 1371.96 feet, to the Southwest corner of said
Section 9; thence, along the easterly line of said Section 17, S01°41’49”E 170.00 feet, to the
centerline of the Eagle River; thence the following four courses along said centerline (Filum
aquce): (1) N89°24’49”W 1037.90 feet; (2) N86°07’49”W 472.00 feet; (3) N89°29’49”W
538.00 feet; (4) S82°33’11”W 595.15 feet, to the westerly line of the NE 1/4 of said Section 17;
thence, along said westerly line, N00°20’55”W 227.74 feet, to the North 1/4 corner of said
Section 17; thence, along the northerly line of said Section 17, S89°23’36”E 1316.69 feet, to the
Southwest corner of the SE 1/4 SE 1/4 of said Section 8; thence, along the westerly line of said
SE 1/4 SE 1/4, N00°51’07”E 1398.90 feet, to the SE 1/16 corner of said Section 8; thence, along
the southerly line of the NW 1/4 SE 1/4 of said Section 8, N89°54’54”W 1333.58 feet, to the CS
1/16 corner of said Section 8; thence, along the southerly line of the NE 1/4 SW 1/4 of said
Section 8, N89°58’35”W 1366.46 feet, to the SW 1/16 corner of said Section 8; thence, along the
easterly line of the SW 1/4 SW 1/4 of said Section 8, S00°01’37”E 1376.08 feet, to the Southeast
corner of said SW 1/4 SW 1/4; thence, along the southerly line of said Section 8, N89°32’28”W
529.28 feet, to the northerly right-of-way line of the Denver and Rio Grande Western Railroad;
thence the following ten courses along said northerly right-of-way line: (1) 132.91 feet along the
arc of a curve to the right, having a radius of 2033.48 feet, an internal angle of 03°44’42”, and a
chord that bears N70°30’09”W 132.89 feet; (2) N68°37’48”W 527.88 feet; (3) 231.12 feet along
the arc of a curve to the left, having a radius of 5779.70 feet, an internal angle of 02°17’28”, and
{00225779 / 1 }
a chord that bears N69°46’32”W 231.09 feet; (4) S00°14’31”E 21.20 feet; (5) 1142.50 feet along
the arc of a curve to the left, having a radius of 5759.70 feet, an internal angle of 11°21’55”, and
a chord that bears N76º32’02”W 1140.63 feet; (6) N82°13’00”W 1136.53 feet; (7) 548.06 feet
along the arc of a curve to the right, having a radius of 1880.00 feet, an internal angle of
16°42’10”, and a chord that bears N73°51’55”W 546.11 feet; (8) N00°12’23”W 22.04 feet; (9)
28.04 feet along the arc of a curve to the right, having a radius of 1860.00 feet, an internal angle
of 00°51’50”, and a chord that bears N64º47’55”W 28.04 feet; (10) N64°22’00”W 377.10 feet;
thence, departing said northerly right-of-way line, S25°38’00”W 100.00 feet, to the southerly
right-of-way line of the Denver and Rio Grande Western Railroad, also being on the existing
Town of Avon Boundary; thence, along said southerly right-of-way line and existing Town of
Avon Boundary the following three courses along the northerly line of the parcel annexed to the
Town of Avon: by Ordinance 86-10: (1) N64°22’00”W 2064.00 feet; (2) 968.59 feet along the
arc of a curve to the left, having a radius of 34327.50 feet, an internal angle of 01°37’00”, and a
chord that bears N65°10’30”W 968.56 feet; (3) N65°59’00”W 527.60 feet; thence, continuing
along said southerly right-of-way line and existing Town of Avon Boundary the following
course along the northerly line of the parcel annexed to the Town of Avon by Ordinance 81-38,
N65°58’08”W 677.83 feet; thence, departing said southerly right-of-way line and continuing
along the boundary of the parcel annexed to the Town of Avon by Ordinance 81-38,
N24°01’52”E 100.00 feet, to the northerly right-of-way line of the Denver and Rio Grande
Western Railroad and the Southeast corner of Lot 22, Benchmark at Beaver Creek; thence,
departing said northerly right-of-way line and continuing along the existing Town of Avon
Boundary the following two courses along the easterly line of the parcel originally incorporated
as the Town of Avon as defined in Ordinance 78-4: (1) N18°59’40”E 995.99 feet; (2) a
calculated distance and bearing of N23°55’02”W 268.23 feet (record distance and bearing of
N25°10’03”W 235.72 feet), to the southerly line of the NE 1/4 NE 1/4 of said Section 12;
thence, along said southerly line and existing Town of Avon Boundary the following course
along the southerly line of the parcel annexed to the Town of Avon by Ordinance 81-20, a
calculated distance and bearing of S89°58’41”E 1192.32 feet (record distance and bearing of
S89°57’07”E 1184.14 feet), to the westerly line of said Section 7; thence, along said westerly
line and existing Town of Avon Boundary the following course along the easterly line of the
parcels annexed to the Town of Avon by Ordinance 81-20 and Ordinance 81-34, a measured
distance and bearing of N00°11’27”W 1321.54 feet (record distance and bearing of
N00º10’14”W 660.82 feet per Ordinance 81-20 and record distance and bearing of
N00°10’14”W 660.83 per Ordinance 81-34), to the point of beginning, containing 967.07 acres,
more or less,
EXCEPTING FROM the foregoing parcel description all portions of the described property that
constitute the Interstate Highway No. 70 Right-of-Way and the Denver Rio Grande Western
Railroad Right-of-Way, which portions contain 99.24 acres, more or less. The net area of the
parcel being included in this annexation is 867.83 acres, more or less.
{00225779 / 1 }
PARCEL 2 DESCRIPTION
That part of Sections 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as follows:
Beginning at the North 1/4 corner of said Section 8; thence along the northerly line of said
Section 8, N88°42’58”E 850.00 feet, to the True Point of Beginning; thence, continuing along
said northerly line, N88°42’58”E 1920.72 feet, to the Northwest corner of said Section 9; thence,
along the northerly line of said Section 9, N83°29’30”E 2773.27 feet, to the North 1/4 corner of
said Section 9; thence, continuing along said northerly line, N83º24’12”E 2772.60 feet, to the
Northwest corner of said Section 10; thence, along the northerly line of said Section 10,
N86°39’24”E 2681.23 feet; thence, departing said northerly line, S01º34’07”W 2699.66 feet, to
southerly line of the SE 1/4 NW 1/4 of said Section 10; thence, along the southerly line of said
SE 1/4 NW 1/4, S86°32’23”W 1304.06 feet, to the Center West 1/16 corner of said Section 10;
thence, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, S01°32’50”W 1349.33
feet, to the Southwest 1/16 corner of said Section 10; thence, along the southerly line of said NW
1/4 SW 1/4, S86º32’47”W 1384.91 feet, to the South 1/16 corner of said Sections 9 & 10;
thence, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, S77º10’15”W 1413.37
feet, to the Southeast 1/16 corner of said Section 9; thence, along the easterly line of the SW 1/4
SE 1/4 of said Section 9, S01º33’02”W 1475.32 feet, to the East 1/16 corner of said Section 9
and Section 16 of said Township 5 South, Range 81 West of the Sixth Principal Meridian;
thence, along the southerly line of said SW 1/4 SE 1/4, S72º20’31”W 1450.43 feet, to the South
1/4 corner of said Section 9; thence, along the westerly line of said SW 1/4 SE 1/4, N01°34’18”E
1601.52 feet, to the Center South 1/16 corner of said Section 9; thence, along the southerly line
of the NE 1/4 SW 1/4 of said Section 9, S86º07’30”W 1378.19 feet, to the Southwest 1/16 corner
of said Section 9; thence, along the easterly line of the SW 1/4 SW 1/4 of said Section 9,
S01º33’13”W 903.02 feet, to the existing Town of Avon Boundary; thence, departing said
easterly line, the following five courses along said existing Town of Avon Boundary: (1) West
2595.53 feet; (2) North 899.93 feet; (3) N27°39’30”E 2121.59 feet; (4) N17°38’30”W 1593.20
feet; (5) N56°30’00”W 1274.62 feet, to the True Point of Beginning, containing 922.16 acres,
more or less.
{00201284 / 5 }{00201284 / 5 } 1
THE VILLAGE (AT AVON) RAW WATER SYSTEM OPERATIONS
AND MAINTENANCE AGREEMENT
This The Village (at Avon) Raw Water System Operations and Maintenance Agreement
(the “Agreement”) is made and entered into as of this _____ day of __________________, 2013,
by and between the Town of Avon, a home rule municipal corporation of the State of Colorado
(the “Town”), and the Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado (“TCMD”).
RECITALS
A. WHEREAS, the Town, TCMD and other parties entered into that certain
Settlement Term Sheet dated October 7, 2011, in order to settle litigation among the parties in
consolidated civil action Case No. 2008CV385, Eagle County District Court, arising from
various disputes concerning The Village (at Avon) real estate development which property is
legally described in the attached Exhibit A (the “Property”). Pursuant to paragraph 3(e) of the
Settlement Term Sheet, TCMD agreed to convey to the Town certain water rights that service the
Property, which in turn are to be conveyed from the Town to the Upper Eagle Regional Water
Authority (“Authority”). The Town, TCMD, the Authority and other parties subsequently
entered into that certain Traer Creek Water Storage Tank Agreement, dated
________________________, 2013, which set forth, among other things, which water rights
would be conveyed and the specific terms and conditions for the conveyance; and
B. WHEREAS, TCMD has conveyed to the Town by Special Warranty Deeds the
water rights described in the attached Exhibits B and C (the “Water Rights”), together with the
rights and benefits of the plan for augmentation and exchange related to said water rights as
decreed for the Property by the District Court for Water Division No. 5 in Case No. 97CW306
(the “Augmentation Plan”), and the historic consumptive use credits dedicated to the
Augmentation Plan described in the attached Exhibit D (the “HCU Credits”). The Augmentation
Plan allows for both potable and raw (non-potable) water service to be provided to the Property
using a combination of the Water Rights and the HCU Credits; and
C. WHEREAS, by another Special Warranty Deed, the Town has conveyed to the
Authority the Water Rights that provide potable water service to the Property (e.g. the direct
flow rights decreed to the Metcalf Ditch and Raw Water Booster Pump), along with the HCU
Credits dedicated to the Augmentation Plan, reserving unto the Town up to 74.3 acre-feet of the
HCU Credits allocated to replace out-of-priority diversions from raw (non-potable) water
irrigation of 38.27 acres and evaporation from up to 2.7 surface acres of lakes on the Property, in
accordance with the assumptions and depletion factors set forth in Schedules A, B and C of the
Augmentation Plan; and
D. WHEREAS, pursuant to paragraph 6(D)(2) of the Case No. 97CW306 decree, up
to 5 cfs of raw (non-potable) water may be diverted at the Nottingham and Puder Ditch for filling
and refilling The Village (at Avon) Lake Nos. 1 and 2. Alternatively, up to 5 cfs may be diverted
by augmentation, in which case the stored water is accounted for against the HCU Credits.
{00201284 / 5 }{00201284 / 5 } 2
Pursuant to paragraph 7(E) of the Augmentation Plan, raw (non-potable) water may also be
diverted through the Nottingham and Puder Ditch for irrigation, flow through and recreational
purposes, in which case the depletions from such use are augmented by the HCU Credits; and
E. WHEREAS, the Town has agreed to operate the raw (non-potable) water system
for the Property described in the Case No. 97CW306 decree, including the Nottingham and
Puder Ditch and The Village (at Avon) Lake Nos. 1 and 2, subject to the terms and conditions of
this Agreement, and with the understanding that the Town is not obligated to construct, maintain
or repair The Village (at Avon) Lake Nos. 1 and 2.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Town and TCMD do hereby state and agree as follows:
AGREEMENT
1. Operation and Maintenance of the Raw (Non-Potable) Water System. The Town
will operate and maintain the raw (non-potable) water system for the Property as decreed in Case
No. 97CW306, including the Nottingham and Puder Ditch, and any and all diversion ditches,
pipelines, headgates and structures, pumps, casings, wet wells and other improvements
associated with or used in connection with the raw (non-potable) water system that serves or will
serve the Property, except that TCMD will operate and maintain any part of the raw (non-
potable) water system that solely benefits the portion of the Property known as Tract E, Final
Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 (“Tract
E”). The maintenance costs for which TCMD will continue to be responsible include the Tract E
wet well, and any other pipes, valves, pumps, or other fixtures required to deliver water to
irrigate and operate the water feature on Tract E. The Town will be solely responsible for all
other costs incurred to operate and maintain the raw (non-potable) water system, including any
costs for repairs and maintenance of the Nottingham and Puder Ditch and its appurtenances. The
Town reserves the right to establish reasonable fees and charges and to impose regulations for
the operation of the raw (non-potable) water system for irrigation of areas which are not owned
by the Town or included in road right-of-ways dedicated to the Town. However, the Town shall
not require the provision or dedication of new water rights as a condition of providing raw (non-
potable) water service for the irrigation of up to 38.27 acres and lake evaporation from up to 2.7
surface acres of lakes on the Property so long as the decree in Case No. 97CW306 is applicable
to determine the water needed for such uses. TCMD will continue to utilize the Nottingham and
Puder Ditch water right conveyed to the Town for irrigating Tract E and any other areas mutually
agreed to by the parties and will report its total water usage to the Town under this right.
2. Operation and Maintenance of The Village (at Avon) Lake Nos. 1 and 2. The
Village (at Avon) Lake Nos. 1 and 2 have not been constructed and the precise location or
ownership of the reservoir structures has not yet been determined. If The Village (at Avon) Lake
Nos. 1 and 2 are constructed as part of the development of the Property, then the construction,
repair and maintenance of The Village (at Avon) Lake Nos. 1 and 2 will be the responsibility of
TCMD or the developer. However, if The Village (at Avon) Lake Nos. 1 and 2 are built as a
public amenity by the Town, then the construction, repair and maintenance will be the
{00201284 / 5 }{00201284 / 5 } 3
responsibility of the Town. The Town and TCMD may also wish to dedicate one lake to the
Town and one lake to TCMD. The Town and TCMD will mutually determine the location of
The Village (at Avon) Lake Nos. 1 and 2, subject to the approval of the developer. Once The
Village (at Avon) Lake Nos. 1 and 2 reservoir structures are completed, the Town will be
responsible for keeping the structures full of water at all times practicable, either by diverting
under the 5 cfs right decreed to fill the structures in Case No. 97CW306 when water is available
in priority or with the HCU Credits allocated to replace evaporation from the lakes if the junior
right is out of priority. Water stored in The Village (at Avon) Lake Nos. 1 and 2 will not be used
for augmentation purposes without the written consent of both parties to this Agreement.
3. Accounting. The Town will be responsible for reporting to the Authority all
diversions at the Nottingham and Puder Ditch and the two wet wells connected to the
Nottingham and Puder Ditch for the raw (non-potable) water irrigation system, total acreage
irrigated by the raw (non-potable) water system and diversions to storage in and releases from
the Village (at Avon) Lake Nos. 1 and 2. The parties anticipate that the Authority will be
responsible for all accounting, recording and reporting for operation of the Augmentation Plan.
4. Future Water Court Filings. The parties anticipate that the Authority will file and
prosecute all diligence applications and/or applications to the Water Court to make water rights
absolute for the conditional water rights decreed in Case No. 97CW306. The Town may join any
such applications as a Co-Applicant with the Authority, as was the practice with TCMD and the
Authority in Case No. 07CW83. TCMD will cooperate with the Authority and the Town to
provide all information regarding the activities taken by TCMD during the subject diligence
period towards putting the subject water rights to beneficial use.
5. Additional Irrigated Area or Irrigation Consumption. The Augmentation Plan
contemplated that up to 38.27 acres of the Property would be irrigated by the raw (non-potable)
water system. Pursuant to the assumptions and depletion factors decreed in Case No. 97CW306,
irrigation of 38.27 acres will require approximately 68.9 acre-feet per year of augmentation
water and keeping The Village (at Avon) Lake Nos. 1 and 2 full will require up to 5.4 acre-feet
of augmentation water for evaporation replacement from a maximum of 2.7 acres of lake surface
area. Therefore, up to 74.3 acre-feet of the HCU Credits have been reserved to the Town and are
dedicated to such uses and shall not be available for any other uses under the Augmentation Plan
without the written consent of the parties to this Agreement. If more than 38.27 acres of the
Property is to be irrigated by the raw (non-potable) water system and there are not enough HCU
Credits available under the Augmentation Plan to provide both potable and raw (non-potable)
water service to the Property based on the current or anticipated build-out of the Property,
TCMD will be responsible for providing or causing to provide any and all water rights necessary
to irrigate the additional area or otherwise to make up the shortfall.
6. Reduced Irrigation or Lake Evaporation. If the entire 74.3 acre-feet of HCU
Credits reserved by the Town is not needed to fully augment the full extent of raw (non-potable)
water uses on the Property after full build-out, or if it is otherwise determined that there are
excess HCU Credits reserved by the Town that are not necessary for augmenting out-of-priority
depletions from the raw (non-potable) water system on the Property under the depletion factors
{00201284 / 5 }{00201284 / 5 } 4
and other assumptions decreed in the Augmentation Plan, the excess of the reserved HCU
Credits may be reallocated to augment potable uses as allowed for under the Augmentation Plan,
subject to written approval of the parties to this Agreement, such approval to not be unreasonably
withheld and subject to the approval of the Authority. Upon such approvals of the reallocation
of excess HCU Credits from the raw (non-potable) water system to potable water uses, the Town
will convey by special warranty deed the approved amount of such excess HCU Credits to the
Authority.
7. Remedies. In the event of a breach or threatened breach of this Agreement, the
non-breaching party shall be entitled to an immediate injunction restraining the breaching party
from such breach or threatened breach, including both preliminary and final injunctions. Such
remedy shall be in addition to all other remedies available at law or in equity, including but not
limited to, damages, costs and reasonable attorneys’ fees. The prevailing party in any litigation
arising out of or related to this Agreement shall be awarded its reasonable attorneys’ fees and
costs through all appeals in addition to any other remedy provided.
8. Waiver. The failure of a party to insist upon strict performance of any of the
provisions contained in this Agreement shall not be deemed a waiver of any rights or remedies
that such party may have, and shall not be deemed a waiver of any subsequent breach or default
of the performance of any of the obligations contained herein for the same or any other party.
9. Amendment. This Agreement may be amended only in a writing executed by the
parties, their heirs, successors or assigns. To be effective, any amendment must be recorded in
the real property records of Eagle County, Colorado.
10. Severability. If any of the provisions of this Agreement or any paragraph,
sentence, clause, phrase, word or section, or the application thereof, is in any circumstances
invalidated, such invalidity shall not affect the validity of the remainder of this Agreement, and
the application of such provision in any other circumstances shall not be affected thereby.
11. Duration. This Agreement shall run with title to the Water Rights and
Augmentation Plan, shall be binding upon any current or future owners of the Water Rights and
Augmentation Plan, and their successors and assigns, and shall be perpetual.
12. Governing Law. This Agreement will be construed under and be governed by the
laws of the State of Colorado. Any legal action relating to this Agreement will be instituted and
prosecuted in the District Court in and for Eagle County, Colorado.
13. Recording. This Agreement shall be recorded in the real property records of
Eagle County, Colorado.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
(remainder of page left intentionally blank)
{00201284 / 5 }{00201284 / 5 } 5
THE TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
STATE OF COLORADO )
) :ss
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of _____________,
2013, by ________________________, as ________________ of the Town of Avon.
Notary Public
My Commission expires:
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) :ss
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of _____________,
2013, by Dan Leary, as President of the Traer Creek Metropolitan District.
Notary Public
My Commission expires:
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 1 of 1
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT (“Agreement”) is made and entered into as of this ____ day of
__________, 2013 (“Effective Date”) by and between TRAER CREEK-RP LLC, a Colorado
limited liability company (“Developer”), whose address is P.O. Box 9429, 0101 Fawcett Road,
Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT, a quasi-
municipal corporation and political subdivision of the State of Colorado (“TCMD”) c/o Special
District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood, Colorado
80228, and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(“Town”), whose address is P.O. 75, 1 Lake Street, Avon, CO 81620 (collectively, the
“Parties”).
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, (“Original Easement Agreement”);
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado (“STS”). The STS includes, among other terms, an obligation of the Town to assume
certain maintenance obligations of TCMD, including assumption of TCMD’s maintenance
obligations related to Nottingham Dam, which maintenance obligations to be assumed by Town
are defined as stated in Section 4.2(c) of the Consolidated, Amended and Restated Annexation
and Development Agreement for the Village (at Avon), dated ____________, 2013
(“Development Agreement”); and,
WHEREAS, for the purpose of implementing the pertinent terms of the STS and the
Development Agreement related to Town’s assumption of TCMD’s maintenance obligations for
the Nottingham Dam, Developer and TCMD desire to amend certain terms of the Original
Easement Agreement, as more fully set forth herein, and TCMD desires to assign all of its rights,
title, interests and obligations in, under and to the Original Easement Agreement to Town, and
Town desires to assume all such rights, title, interests and obligations from TCMD as amended
and stated herein, and Developer desires to consent to such assignment in accordance with the
terms stated herein.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 2 of 2
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its rights, title, interests and obligations to the
Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement, that Developer and Town hereby release any
rights and obligations of the Original Easement Agreement which are inconsistent with this
Agreement, and that the intent and effect is that this Agreement shall replace and supersede the
Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns a non-exclusive easement on, over, across, upon and through the Nottingham Dam
property, in the location generally depicted on Exhibit A attached hereto (the “Nottingham Dam
Easement”) to access, maintain, repair, replace, improve, reconstruct, expand, reduce,
decommission and/or remove the Nottingham Dam and impoundment area. The Nottingham
Dam Easement shall also include a non-exclusive easement on, over, across, upon and through
such additional real property located adjacent to the real property described on Exhibit A as may
be reasonably necessary for Town to exercise its rights herein. Notwithstanding the foregoing or
any other provision of this Agreement, Developer and Town agree that Town’s obligations
assumed by Town under this Agreement shall be construed, interpreted and applied such that
Town shall have sole discretion to determine the appropriate maintenance of the Nottingham
Dam in accordance with the minimum requirements of the State of Colorado Division of Water
Resources as determined by the Dam Safety Engineer or other appropriate State official, which
maintenance discretion shall include but not be limited to maintenance, repair, replacement,
improvement, reconstruction, expansion, reduction, decommission, removal and deferral of the
Nottingham Dam and any activity related to the Nottingham Dam in accordance with Section
4.2(c) of the Development Agreement. Developer acknowledges that the Town is not the current
designated owner of the Nottingham Dam according to the records of the Dam Safety Branch,
Division of Water Resources, and Developer agrees to reasonably cooperate with Town as
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 3 of 3
necessary to allow Town to work directly with the Division of Water Resources with regard to
maintenance of the Nottingham Dam and performance of Town’s duties under this Agreement.
Developer further acknowledges and agrees that Town shall not be liable or responsible for
maintenance of the Nottingham Dam to the extent that Developer or Piney Valley Ranches Trust
fails to reasonably cooperate or unreasonably interferes with Town’s actions to work directly
with the Division of Water Resources and such failure to cooperate or interference inhibits,
restricts or prohibits the Town’s ability to maintain the Nottingham Dam in accordance with the
terms of this Agreement. Town agrees to promptly provide to Developer any correspondence to
or from the Division of Water Resources and agrees to invite a representative of the Developer to
any meetings with the Division of Water Resources to the extent such correspondence or
meetings are related to the Nottingham Dam. The Town acknowledges that this Nottingham
Dam Easement is non-exclusive and that Developer may seek to develop areas located uphill and
downhill of the Nottingham Dam Easement; therefore, this Agreement shall not be construed to
restrict Developer’s right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. In the event that Town
decommissions or abandons the Nottingham Dam Town shall comply with any regulatory
requirements of the Division of Water Resources concerning decommissioning of the
Nottingham Dam. Developer may request that Town release and terminate this Agreement in
writing if the Town decommissions or abandons the Nottingham Dam and Town shall not
unreasonably refuse such request.
4. Subjacent and Lateral Support. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements including, without limitation, improvements to
the dam, outlet structure(s), spillway and spillway channel, impoundment area and any other
improvement deemed necessary in the reasonable discretion of the Town or as required by the
Division of Water Resources over the Nottingham Dam and related improvements. Developer
shall not take any action which would impair the lateral or subjacent support for said
improvements.
5. Access. The Nottingham Dam Easement includes a non-exclusive right of reasonable
vehicular and pedestrian ingress, egress and access, for use by Town and its employees, agents
and contractors in connection with the Nottingham Dam, on, over, upon, across and along the
existing dirt road located on the Nottingham Dam property and the adjacent property in the
location generally depicted on Exhibit A attached hereto (“Nottingham Dam Access
Easement”).
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, the Nottingham Dam Easement does not
include any right to construct any new roads, improvements or structures, on, over,
across, through or upon any portion of the Nottingham Dam property or the adjacent
property. Any such construction shall be subject to the prior written consent of
Developer, which consent shall not be unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam Easement property and the adjacent property and the right to
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 4 of 4
construct improvements and structures within the Nottingham Dam Easement property
and the adjacent property, including the right to construct roads on, across, over or under
the Nottingham Dam structure and improvements, so long as any such Developer
improvements or structures do not degrade the structural integrity of the Nottingham
Dam structure or otherwise unreasonably interfere with the Nottingham Dam Easement
or the Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Easement. Town, and its successors and assigns,
shall maintain the Nottingham Dam Easement in accordance with the minimum requirements of
the Division of Water Resources, including repairing any damage to any portion of the
Nottingham Dam, other than any damage resulting from the acts or omissions of Developer.
Town, and its successors and assigns, shall be solely responsible for, and bear the entire cost and
expense of, any such maintenance, repair and/or replacement associated with the Nottingham
Dam. In addition, Town shall keep the Nottingham Dam and its banks in an attractive condition
and shall re-grade and remove vegetation and debris from the banks of the Nottingham Dam.
Town’s obligations in this Paragraph 7 shall be subject to the limitations of Town’s obligations
stated in Paragraph 3 above and as stated in Section 4.2(c) of the Development Agreement.
Town’s obligations in this Paragraph 7 shall be subject to annual budget and appropriation by
Town. Notwithstanding the foregoing, Town sole’s discretion shall not be interpreted as a right
to avoid compliance with the minimum requirements of Division of Water Resources. The
failure of Town to budget and appropriate funds in order to perform Town’s obligations stated in
this Paragraph 7 shall not constitute a default or breach of this Agreement.
8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Easement, the adjacent property or the
Nottingham Dam Access Easement to the general public or for the general public or for any
public purpose whatsoever, it being the intent of the Parties that the Nottingham Dam Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument.
9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the Parties hereto. Notwithstanding the foregoing and
subject to Paragraph 24, if any party sells all or any portion of its interest in property subject to
this Agreement, such party shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it after the
sale and conveyance of title but shall remain liable for all obligations arising under this
Agreement prior to the sale and conveyance of title. The new owner of any such property or
portion thereof (including, without limitation, anyone who acquires its interest by foreclosure,
trustee sale or otherwise) shall be liable for all obligations arising under this Agreement with
respect to such property or portion thereof after the date of sale and conveyance of title.
10. Covenants. Developer, TCMD and Town each covenant for and on behalf of each of the
other Parties that they have taken or performed all requisite acts or actions which may be
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 5 of 5
required by their organizational or operational documents to confirm their respective authority to
execute, deliver and perform each of their obligations under this Agreement.
11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam Easement is granted and the adjacent property in fee simple and has full power
and lawful authority to grant, sell, and convey the same in manner and form as aforesaid.
Developer, for itself, its heirs, personal representatives, successors and assigns, does covenant
and agree that it shall warrant and forever defend Town in its quiet and peaceful possession of
the Nottingham Dam Easement and the Nottingham Dam Access Easement against all and every
person or persons lawfully claiming title to the property, whether in whole or in part, by, through
or under Developer.
12. Default. A party shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non-defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30-day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days, which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam Easement hereunder.
13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 12 above, the non-breaching party
shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief in the
nature of specific performance or damages or both may be awarded, subject to the provisions of
the laws of the State of Colorado. The prevailing party in any legal or administrative action shall
be awarded its reasonable costs and expenses of such action, through all appeals, including
without limitation, reasonable attorneys’ fees.
14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 6 of 6
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its directs and indirect affiliates, and their respective
agents, officers, directors, servants, consultants, advisors and employees of and from any and all
reasonable costs, expenses (including, without limitation, reasonable attorney’s fees), liability,
claims, liens, demands, actions and causes of action whatsoever arising out of or related to any
loss, cost, damage or injury, including death of any person or damage to property of any kind,
which damage, loss or injury is caused by the acts or negligent acts, errors or omissions of Town,
its subcontractors or any person directly or indirectly employed by Town. With regards to this
Agreement, Developer agrees to indemnify, defend and hold harmless Town and its officers,
agents and employees of and from any and all reasonable costs, expenses (including, without
limitation, reasonable attorney’s fees), liability, claims, liens, demands, actions and causes of
action whatsoever arising out of or related to any loss, cost, damage or injury, including death of
any person or damage to property of any kind, which damage, loss or injury is caused by the acts
or negligent acts, errors or omissions of Developer, its respective subsidiaries and affiliates, and
their respective agents, officers, directors, servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given either in
person to the authorized representative of the noticed party or by registered or certified United
States mail, return receipt requested, with such notice being addressed as specified in the
introductory paragraph of this Agreement. Unless otherwise stated in this Agreement, notice
deposited in the mail, in accordance with the provisions hereof, shall be effective from and after
the fourth (4th) day following the date postmarked on the envelope containing such notice, or
when actually received, whichever is earlier. Notice given in any other manner shall be effective
only if and when received by the party to be notified. By giving the other party at least seven (7)
days written notice thereof, the Parties shall have the right to change their respective addresses
and specify as their respective addresses for the purposes hereof any other address in the United
States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 10 and 11 of
this Agreement, no representations or warranties of any nature have been made by the Parties,
and none of the Parties hereto have entered into this Agreement in reliance upon any such
representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter described herein, and further replaces and supersedes all prior
agreements, rights and obligations between the Parties with respect to the subject matter hereof.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 7 of 7
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the Parties.
23. Assignment. This Agreement shall not be assigned by Town without the prior written
consent of Developer, which consent shall not be unreasonably withheld. The express
assumption, in writing, of this Agreement shall thereby relieve the applicable assignor to the
matters so assumed by the assignee.
24. Legal Fees and Costs. Except for arbitration as set forth in paragraph 25 below, in the
event that a party institutes an action or proceeding for a declaration of rights of Town and
Developer under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions contemplated
hereby, the prevailing party shall be entitled to its actual reasonable costs and attorney’s fees.
Pursuant to Section 1, TCMD shall not be a party to any legal or arbitration proceeding that
doesn’t regard anything before the Effective Date. Town and Developer agree to waive their
respective rights to a jury trial in any civil legal proceeding.
25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the
State District Court in and for the County of Eagle, Colorado. Each party shall also have the
right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a
declaratory judgment, because the issue is not ripe, the Town and Developer agree to submit any
disputes under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding resolution in
accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1, TCMD shall not
be a party to any legal or arbitration proceeding that doesn’t regard anything before the Effective
Date.
26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Parties within seven (7)
days of receipt of said facsimile copy.
[SIGNATURE PAGE FOLLOWS]
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 8 of 8
DEVELOPER:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:_______________________________
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a Colorado limited liability
company and Manager of Traer Creek-RP LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 9 of 9
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:______________________________________
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
2013, by Daniel J. Leary, as President of Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
June 6, 2013
Page 10 of 10
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____, by ____________________, as ____________________ of ____________________
[and by ____________________ as ____________________ of ____________________].
Witness my hand and official seal.
My commission expires:
Notary Public
EX-D-10 Conveyance of Tract G by Special Warranty Deed, Oct 22, 2012
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
SPECIAL WARRANTY DEED [Tract G – Filing 3]
[STATUTORY FORM – C.R.S. § 38-30-115]
TRAER CREEK-RP, LLC, a Colorado limited liability company (“Grantor”), whose street
address is, P.O. Box 9429, 0101 Fawcett Road, Suite 210, Avon, CO 81620, [Address as listed
on Secretary of State website] for the consideration of Ten and 00/100 Dollars ($10.00) and
other good and valuable consideration, in hand paid, hereby sells and conveys to the TOWN OF
AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose street
address is One Lake Street, P.O. Box 975, Avon, Colorado 81620, County of Eagle, State of
Colorado, the real property that is described on Exhibit A attached hereto and made a part
hereof.
TO HAVE AND TO HOLD the said premises above bargained and described with the
appurtenances, unto Grantee, and Grantee's heirs, successors and assigns forever. Grantor, for
itself and its heirs, successors and assigns, does covenant and agree that Grantor shall and will
WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and
peaceable possession of Grantee, and Grantee’s heirs, successors and assigns, against all and
every person or persons claiming the whole or any part thereof, by, through or under Grantor,
subject to the matters set forth on Exhibit B attached hereto and made a part hereof.
TRAER CREEK-RP, LLC, a Colorado limited
liability corporation
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Marcus Lindholm, Manager
STATE OF ___________ )
) ss:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of
____________________, 200__, by _________________________ as ________________ of
Traer Creek LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
{00234769.DOCX v:1 } A-1
EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
Tract G, Village (at Avon) Filing No. 3, according to the plat thereof recorded on June 29, 2004
at Reception No. 882176 in the office of the Clerk and Recorder of Eagle County, Colorado.
{00234769.DOCX v:1 } B-1
EXHIBIT B
TO SPECIAL WARRANTY DEED
Exceptions and /or Reservations
Exceptions: Conveyance of the property pursuant to the foregoing Special Warranty Deed is
subject to the following exceptions, which exceptions shall be binding on Grantee and all
successors and assigns of Grantee, and which Grantor and its successors and assigns shall have
the right to enforce by an action for specific performance, mandamus, mandatory or preliminary
injunction or other equitable or legal remedy:
1. All exceptions of record.
Reservations: Conveyance of the property pursuant to the foregoing Special Warranty Deed is
subject to Grantor’s reservation of the following rights with respect to the Property:
1. Not applicable.
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 1 of 9
1014138.9
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
ROADWAYACCESS EASEMENT AGREEMENT
THIS ROADWAYACCESS EASEMENT AGREEMENT (this “Easement
Agreement”) is made and entered into as of this _____ day of _________________, 20122013
(“Effective Date”), by and between the TRAER CREEK-RP LLC, a Colorado limited liability
company (together with its successors and assigns, “Grantor”); and TOWN OF AVON, a home
rule municipal corporation of the State of Colorado (together with its successors and assigns,
“Grantee”).”); and TRAER CREEK-RP LLC, a Colorado limited liability company (together
with its successors and assigns, “Grantor”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference (“Lot
1”).
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) datedmade and
entered into as of _____________, 20122013 and recorded in the real property records of Eagle
County, Colorado (the “Records”) on ______________, 2012 at Reception No.
______________or about even date herewith (“Development Agreement”).
C. Pursuant to Section 3.87(b) of the Development Agreement, concurrently with
the “Effective Date” (as defined in the Development Agreement) of the Development
Agreement, Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee
certain real property located in Eagle County, Colorado, legally described on Exhibit B attached
hereto and incorporated herein by this reference (“Planning Area B”), which property is
designated as Planning Area B pursuant to The Village (at Avon) PUD Master Plan, Formal
Amendment Two (the “PUD Master Plan”), being Exhibit B to that certain The Village (at
Avon) Amended and Restated PUD Guide recorded in the real property records of Eagle County,
Colorado on ______________, 2012 at Reception No. ______________Records on or about
even date herewith (the “PUD Guide”).
D. As of the Effective date, there is no legal access to Planning Area B from a public
right-of-way.
E. On or about the Effective Date, Grantor has or shall convey and dedicate Planning
Area B to Grantee.
F.E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, a roadwayan access easement from that
certain 80-foot wide right-of-way known as East Beaver Creek Boulevard (as recorded in the
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 2 of 9
1014138.9
Records at Reception No. 795007) to Planning Area B for the purpose of Grantee’s enjoyment of
the Permitted Uses (as defined in Paragraph 1), including but not limited to the future
construction, operation and maintenance of the Facilities (as defined in Paragraph 1) in
accordance with the terms and conditions of the PUD Guide and the Development Agreement,
and as set forth below.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, together with its engineers, contractors, employees and similar consultants to Grantee
and/or its assigns as may be necessary or desirable (collectively, “Permittees”), a perpetual, non-
exclusive, fifty forty (40)-foot (50’) wide easement appurtenant to Planning Area B (the
“Easement”) over, under, through and across that portion of Lot 1 which is legally described and
depicted in Exhibit C (the “Easement Area”) for the purposes ofattached hereto and
incorporated herein by this reference (the “Easement Area”) for the purpose of Grantee’s,
together with its engineers, contractors, employees and similar consultants to Grantee and/or its
assigns (collectively, “Permittees”), conducting of the following activities (collectively, the
“Permitted Uses”): (i) vehicular and pedestrian ingress to and egress from Planning Area B;
(ii) constructing, installing, using, operating, maintaining, repairing and replacing drive lanes,
roadways, landscaping, sidewalks, bike paths, retaining walls and other access facilities
necessary or desirable for such ingress and egress, and all fixtures and devices reasonably used
or useful in the operation of such facilities (collectively, the “Roadway Facilities”);
(iii) constructing, installing, using, operating, maintaining, repairing and replacing water lines,
sanitary sewer lines, storm drainage facilities, electrical lines, gas lines and similar utilities and
utility facilities, excluding the Communications Utilities (defined below), together with all
sleeves, conduit, junction boxes, vaults, fixtures and devices reasonably used or useful in the
operation of such facilities, whether publicly or privately owned (collectively, the “Utility
Facilities,” and together with the Roadway Facilities, the “Facilities”); and (iv) the right to enter
upon the Easement Area and such immediately abutting areas of Lot 1 thereto as may reasonably
be necessary to survey and conduct geotechnical and similar physical investigations. As set forth
in the PUD Guide and Section 3.87(b) of the Development Agreement and in the PUD Guide,
any construction of the Facilities shall be subject to the prior written approval of the “Design
Review Board” (as defined in the PUD Guide). Nothing contained herein shall obligate Grantee
to install, or cause to be installed, any or all of the Facilities or to otherwise provide for any such
use. For purposes of this Easement Agreement, “Communications Utilities” shall mean,
collectively, (a) cable television cables, wires, lines, plugs, connections, junction boxes, access
boxes, vaults, switches, terminals and similar improvements; (b) telephone and communication
cables, fiber-optic cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults,
switches, terminals, jacks and similar improvements; (c) data cables, fiber-optic cables, wires,
lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals, jacks and
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 3 of 9
1014138.9
similar improvements; and (d) utility conduit, pipe, sleeve, trough or similar enclosures for the
purpose of holding, running or containing the facilities described in clauses (a) through (c).
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of permanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable public improvements agreement(sPublic
Improvements Agreement(s) (as defined in the PUD Guide) between the Town and applicable
constructing party(ies) (“Future Main Street”), Grantor and Grantee acknowledge that future
design, engineering, construction and/or general development of Lot 1 and/or Future Main Street
may be inconsistent with the rights granted hereunder in the Easement Area, and that it may be
necessary or desirable that the Easement Area be adjusted, repositioned or otherwise relocated to
accommodate such future development of Lot 1 and/or Future Main Street. Accordingly, in
whole or in part, adjusted, repositioned, relocated or terminated to accommodate such future
development of Lot 1 and/or Future Main Street, provided that at no time shall Planning Area B
be without legal access to Future Main Street or another public right-of-way. Grantor and
Grantee further acknowledge and agree that, as generally contemplated by the PUD Master Plan,
the configuration of Future Main Street abuts Planning Area B and could provide direct legal
access from Future Main Street to Planning Area B without the necessity of any easement or
grant of other right to provide for such access. Accordingly, if Future Main Street or other
public right-of-way is designed and constructed in a manner that provides direct legal access
from Future Main Street or other public right-of-way to Planning Area B, upon the Town’s
preliminary acceptance pursuant to the applicable Public Improvements Agreement of the street
improvements for the portion of Future Main Street or other public right-of-way that provides
such legal access to Planning Area B, this Agreement and the Easement granted hereunder shall
automatically terminate and be extinguished and of no further force or effect without any further
act of either Grantor or Grantee. Notwithstanding the foregoing, upon and after such termination
at the written request of Grantor, Grantee shall deliver to Grantor an executed termination of this
Agreement in recordable form, which Grantor may record against the Easement Area to provide
record notice of such termination. Further, if Grantor determines, in its sole discretion, that it is
necessary or desirable that the Easement Area be relocated for purposes of accommodating
future development of Lot 1 and/or Future Main Street, Grantor and Grantee agree (a) Grantor
shall have the right to provide for an alternative alignment and configuration or relocation of the
Easement Area (the “Relocated Easement Area”) and Grantee shall not unreasonably deny,
condition or delay approval with respect to the Relocated Easement Area; (b) Grantor and
Grantee shall each execute an amendment to this Easement Agreement substituting the surveyed
legal description for the alignment and configuration of the Relocated Easement Area as
Exhibit C to this Easement Agreement; and (c) Grantor shall cause the recordation of such
amendment in the Records. Recordation of such amendment in the Records shall have the legal
effect of terminating the prior boundaries of the Easement Area and establishing the boundaries
of the Relocated Easement Area as the new boundaries of the Easement Area for all purposes
under this Easement Agreement. If, prior to the recordation of such amendment, the Design
Review Board previously has approved, and Grantee previously has installed and/or constructed,
Facilities within the Easement Area, Grantor shall have the obligation, at Grantor’s sole cost and
expense, to relocate such Facilities to, or install and/or construct such Facilities within, the
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 4 of 9
1014138.9
Relocated Easement Area. [NOTE: STS states that “TOA shall not unreasonably refuse
reasonable requests by Developer to adjust or replat Planning Areas B or C”. Town has
proposed that this right should sunset when Planning Area B and the surrounding area has been
developed. Developer objects to any sunset of the Developer’s right relocate this easement and
amend the plat for Planning Area B.]
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days’ written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee’s
and/or Permittees’ conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee’s and/or Permittees’ conduct of such activities. Upon completion of any construction
activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor’s Reserved Rights. Grantor reserves the right to grant additional
non-exclusive easements and/or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s
or Permittees’ full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein. [NOTE: The reservation of Grantor to occupy the Roadway
Easement Access creates potential for conflict between future surface uses of this access
easement by the Town and by Grantor.], including without limitation, snow dumping and
storage.
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic’s liens or materialmen’s liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) in
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 5 of 9
1014138.9
connection with or arising out of Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non-contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
6.8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
7.9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
8.10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
9.11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
10.12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
11.13. Counterparts. This Easement Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[Signature pages follow this page.]
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 6 of 9
1014138.9
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
GRANTOR:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
GRANTEE:
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page 7 of 9
1014138.9
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 20122013, by Rich Carroll,________________, as Mayor_________ of the
TOWN OF AVON, a home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 20122013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK-RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
A-1
1014138.9
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, according to the plat thereof recorded at Reception No.
________________, County of Eagle, State of Colorado.
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
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1014138.9
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, according to the plat thereof recorded at Reception No.
________________, County of Eagle, State of Colorado.
EX-D-2 Roadway Easement Agreement for Planning Area B, Oct 22, 2012
Page C-1 of 9
1014138.9
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
EXHIBIT E – FORM OF ACCESS EASEMENT TO PLANNING AREA I
1009777.3
1009777.5 1014138.9
[to be inserted]
EX-D-8 Wet Well Easement Agreement – Oct. 22, 2012
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RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
WET WELL EASEMENT AGREEMENT
THIS WET WELL EASEMENT AGREEMENT (“Agreement”) is entered into as of this
__________________ day of_________, 2012, ________________, 2013 (“Effective Date”),
by and between TRAER CREEK-RP LLC, a Colorado limited liability company, whose address
is P.O. Box 640, Vail, CO 81658 (“ (together with its successors and assigns, “Grantor”)”), and
the TOWN OF AVON, a home rule municipal corporation of the State of Colorado, whose
address is (together with its successors and permitted assigns, “One Lake Street, P.O. Box 975,
Avon, Colorado 81620 (“Grantee”).
1. Grant. FOR AND IN CONSIDERATIONIn consideration of the sum of Ten Dollars
($10.00)covenants and agreements hereinafter set forth and other good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged by the Grantor, the
Grantor hereby grants, bargains, sells, and conveys to Grantee and its successors and assigns athe
following perpetual non-exclusive easements:
1.(a) A perpetual non-exclusive easement (“Easement”), in, toin, through, over, under
and across that certain parcel of real property located in the Town of Avon, Eagle County,
Colorado, as more particularly described inon Exhibit A attached hereto and incorporated herein
by this reference (“PremisesEasement Area”) for (i) vehicular and pedestrian ingress and egress
to the Improvements (as defined below); and (ii) to construct, reconstruct, operateconstruction,
reconstruction, operation, use, maintainmaintenance, repair, replacereplacement and/or
removeremoval of certain water lines and mains, manholes, conduits, ventilators, access doors,
cables, landscaping improvements, wells, well casings, tanks, motors, pumps, electrical facilities
and apparatus, meters, and related improvements and appurtenances thereto (collectively, the
“Improvements”) in, to, through, over, under”), provided that all such improvements shall be
located underground or on the surface of the Easement Area and across the Premisesshall not be
located above the surface of the Easement Area, subject and pursuant to the terms and conditions
set forth herein. (“Easement”); and
2. Limitations on Use. The Grantor shall not construct or place any structure or building,
fencing, streetlight, power pole, yard light, mailbox or sign, whether temporary or permanent, or
plant or locate any landscaping features, trees or shrubs, on any part of the Premises without
having first obtained the prior written consent of the Grantee, which consent shall not be
unreasonably withheld if Grantor’s proposed improvements will not interfere with the
Improvements or the Grantee’s use of the Easement granted hereby. Any structure or building,
fencing, streetlight, power pole, yard light, mailbox or sign, whether temporary or permanent, or
any landscaping features, trees or shrubs situated on the Premises as of the date of this
Agreement or subsequently placed thereon without such prior written consent may be removed
by the Grantee without liability for damages arising therefrom. Additionally, if the Grantor
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violates these restrictions or if Grantor's actions cause damage to Grantee's Improvements, the
Grantor will be liable for the cost to correct such violation or damage.
3. Access. The Grantee, its agents, contractors, successors and assigns, shall have the right
of perpetual ingress and egress in, to, through, over, under, and across the Premises for any
purpose necessary and at any and all times necessary or convenient for the full enjoyment of the
rights granted to it in this Agreement.
2. Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive
easements and/or other interests within the Easement Area so long as such grants do not
unreasonably interfere with Grantee’s full exercise of the Easement. Grantor reserves the right
to use and occupy the Easement Area for any and all purposes not inconsistent with the rights
and privileges granted herein.
4.3. Restoration; Surface Impact.Repair. Upon completion of any of its activities which
disturb or damage the surface of the Premises, theEasement Area or any of Grantor’s
improvements, including without limitation, landscaping improvements, Grantee shall restore the
Premisesaffected Easement Area and/or improvements to the condition it wasthey were in
immediately prior to such disturbance, except as otherwise provided herein or as necessarily
modified to accommodate the Improvements. Grantor expressly acknowledges that certain of
the Improvements, including but not limited to vent pipe(s) and access door(s) may, from time to
time, be on or above the surface of the Premises.
5.4. Maintenance. Grantee shall maintain the Improvements at its sole cost and expense.
Grantor shall have no obligation to maintain the Improvements.
6.5. Insurance; Indemnity.
(a) Insurance. The Grantee shall require that all of its contractors and permittees
entering upon the PremisesEasement Area obtain and maintain in effect for the duration of their
respective periods of work (i) workers’ compensation insurance with statutory limits, and
(ii) public liability insurance with commercially reasonable limits as may be required by Grantee
from time to time as part of its capital construction and maintenance program.
(b) Indemnity. To the extent permitted by law, the Grantee agrees to indemnify,
defend and hold the Grantor harmless from and against all losses, claims, damages, liabilities or
expenses, including without limitation reasonable attorneys’ fees arising from Grantee’s
negligent construction, operation or maintenance, its contractors’ and permittees’ exercise of the
ImprovementsEasement or the negligent use of the Premises by Grantee, its successors and
assignsEasement Area; provided, however, such indemnity shall not extend to any claims to the
extent arising from Grantor’s negligence or willful misconduct.
7. Termination of Easement. The Easement shall not be terminated unless deemed
abandoned. The Easement shall not be presumed abandoned unless and until the Grantee has
failed to use the Easement for any purpose described in Section 1 of this Easement for a
continuous period of two years and the Grantee intends to abandon the Easement. If Grantor
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believes the Easement has been abandoned by Grantee or that the Easement is not being used as
described in Section 1 above, Grantor shall give written notice to Grantee. If Grantee agrees
with Grantor, Grantee shall promptly execute all documents necessary to reconvey the Easement
to Grantor. However, if Grantee disagrees with Grantor's assertion that the Easement is no
longer being used for its intended purpose and that Grantee intends to abandon the Easement,
Grantee shall give Grantor written notice within forty-five (45) days of the Grantee's receipt of
Grantor's notice. If Grantor and Grantee are not able agree as to whether the Easement has been
abandoned as abandonment is defined in this paragraph, Grantor may elect to arbitrate the
dispute and shall provide written notice to Grantee that Grantor elects to arbitrate the dispute.
The dispute shall be settled by binding arbitration before any retired Colorado Supreme Court
Justice or Colorado Court of Appeals Judge employed by JAG. The arbitration proceeding shall
be conducted in accordance with the Colorado Rules of Civil Procedure then in effect. Each
party to the dispute shall deliver to the other party, within ten (10) days of the Grantee's demand
for arbitration, a complete, concise statement of issues to be arbitrated. Grantor and Grantee
shall select a single JAG arbitrator in accordance with the applicable rules of JAG. The
arbitration proceedings shall be conducted at JAG in Denver, Colorado, and shall continue in the
absence of any party who, after notice given pursuant to this Section, fails to participate in the
proceedings. The decision of the arbitrator shall be final and binding upon the parties to this
Agreement whether such party(ies) participate in the proceedings or not, and a judgment thereon
may be entered in any court having jurisdiction.
6. Relocation of Easement Area. In connection with Grantor’s future development of the
Easement Area and Grantor’s real property adjacent to the Easement Area known as The Village
(at Avon) (the “Project”), Grantor and Grantee acknowledge that future design, engineering,
construction and/or general development of the Project may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned or relocated to accommodate such
future development of the Project. If Grantor determines, in its sole discretion, that it is
necessary or desirable that the Easement Area, or any portion thereof, be relocated for purposes
of accommodating future development of the Project, Grantor and Grantee agree (a) Grantor
shall have the right to provide for an alternative alignment and configuration or relocation of the
Easement Area (the “Relocated Easement Area”) and Grantee shall not unreasonably deny,
condition or delay approval with respect to the Relocated Easement Area; (b) Grantor and
Grantee shall each execute an amendment to this Agreement substituting the surveyed legal
description for the alignment and configuration of the Relocated Easement Area as Exhibit A to
this Agreement; and (c) Grantor shall cause the recordation of such amendment in the real
property records of the clerk and recorder for Eagle County, Colorado. Recordation of such
amendment shall have the legal effect of terminating the prior boundaries of the Easement Area
and establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Agreement. In connection with any such relocation,
Grantor shall have the obligation, at Grantor’s sole cost and expense, to relocate the
Improvements to, or install and/or construct such Improvement within, the Relocated Easement
Area.
8.7. No Dedication.; No Third-Party Beneficiaries. Nothing contained in this Agreement
shall be deemed to be, and shall not be, a dedication of the Easement or Easement Area to the
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general public, or to any other person or entity of the fee interest of the property underlying any
easement interest hereby granted and conveyed, it being the intent of the parties that Grantor's
fee interest in the Premises shall continue to be private unless and until Grantor, at its sole option
and election, completes the dedication of such interest to an eligible governmental or quasi-
governmental entity or other third party, in accordance with all applicable laws, rules, regulations
and ordinances., and no third-party shall have the right to exercise the Easement or enforce the
terms of this Agreement.
9.8. Notices. All notices, demands, requests or other communications to be sent by one party
to the other hereunder or required by law shall be in writing and shall be deemed to have been
validly given or served by delivery of same in person to the addressee or by courier delivery via
Federal Express or other nationally recognized overnight air courier service or by depositing
same in the United States certified mail, postage prepaid, addressed as follows:
To Grantee: Town of Avon
One Lake Street
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
With a copy to: Heil Law & Planning LLCTown of Avon
One Lake Street2696 S. Colorado Blvd., Ste 550
P.O. Box 975
DenverAvon, CO 8020281620
Attn: Eric J. HeilTown Attorney
To Grantor: Traer Creek-RP LLC
Attn: Magnus Lindholm
Physical Address:
322 E. Beaver Creek Blvd.
Avon, CO 81620
Mailing Address:
P.O. Box 640
Vail, CO 81658
Attn: Marcus Lindholm
With a copy to: Michael J. RepucciOtten, Johnson, Robinson, Neff
& Ragonetti, P.C.
Johnson & Repucci LLP950 17th Street, Ste. 1600
2521 Broadway, Suite A
BoulderDenver, CO 8030480202
Attn: Munsey L. Ayers
All notices, demands, requests or other communications shall be effective (a) upon such personal
delivery or one (1) business day after being; (b) if deposited with Federal Express or other
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nationally recognized overnight air courier service or three (3, one (1) business daysday after
such deposit; or (c) if deposited in the United States certified mail., postage prepaid, three (3)
business days after such deposit. By giving the other party hereto at least ten (10) days written
notice thereof in accordance with the provisions hereof, each of the partiessuch party shall have
the right from time to time to change its address.
10. Certain Reserved Rights. Except as otherwise provided in this Agreement, the Grantor
reserves the rights to use the Premises and to grant further easement interests in the Premises to
other grantees so long as such interests and uses do not materially or unreasonably interfere with
the use of the Grantee, its successors and assigns as permitted herein.
11.9. Subjacent and Lateral Support; Earth Cover. The. Grantee shall have the right of
subjacent and lateral support for the Improvements. The, and Grantor shall not take any action
which would impair the lateral or subjacent support for the Improvements or the earth cover over
any installed lines, mains or other underground Improvements. . Grantor shall have the right of
subjacent and lateral support for its improvements located within and adjacent to the Easement
Area, and Grantee shall not take any action which would impair the lateral or subjacent support
for such Grantor may request Grantee's specific written permission to modify the earth cover
over any installed underground lines, mains or other Improvements but recognizes that such
written permission may be withheld by the Grantee in its sole and absolute discretion. If Grantee
renders such specific written permission, it shall be conditioned upon, among other things, the
reimbursement to the Grantee for the cost of any alterations to any of its Improvements made
necessary by such earth cover modification.improvements.
12.10. Assignment. The Grantee shall have the right and authority to assign to any appropriate
local governmental or quasi-governmental entity any and all rights to use, and all obligations
associated with, the Easement as are granted to and accepted by the Grantee herein.
13. Title. The Grantor represents and warrants that it owns the Premises in fee simple and
has full power and lawful authority to grant, bargain, sell, and convey the same in manner and
form as aforesaid. The Grantor, for itself, its heirs, personal representatives, successors and
assigns, does covenant and agree that it shall warrant and forever defend the Grantee in its quiet
and peaceful possession of the Premises against all and every person or persons lawfully
claiming or to claim the whole or any part thereof, by, through or under Grantor.
11. InurementTitle Matters; No Warranties. This Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to the Easement Area as of the Effective Date, and the grant of the Easement and other
rights pursuant to this Agreement is in the nature of a bargain and sale conveyance.
12. Binding Effect; Runs With Land. Each and every one of the benefitsbenefit and
burdensburden of this Agreement shall inure to and be binding upon the partiesGrantor, Grantee
and their respective legal representatives, heirs, administrators, successors and assigns. The
rightsburdens and responsibilities set forth in this Agreement are intended to be covenants on the
Premises and are tobenefits hereof shall run with title to the Easement Area. Any person or
EX-D-8 Wet Well Easement Agreement – Oct. 22, 2012
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entity that acquires any interest in the landEasement Area shall be bound by the burdens and
entitled to the benefits of this Agreement. The burdens and benefits of this Agreement constitute
covenants that run with and encumber title to the Easement Area.
14.13. Severability. Any provision of this Agreement which is declared by a court of
competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be ineffective only
to the extent of such illegality, invalidity, prohibition or unenforceability, without invalidating or
otherwise affecting the remaining provisions of this Agreement, each of which shall continue in
full force and effect, unless modified by mutual consent of the parties, for so long as their
enforcement would not be inequitable to the party against whom they are being enforced under
the facts and circumstance then pertaining.
15.14. Attorneys’ Fees. In the event either party seeks to enforce its rights hereunder through
litigation, arbitration or another legal proceeding, the court or panel shall award to the prevailing
party in such litigation, arbitration or other legal proceeding, as part of its judgment or award, its
reasonable attorneys’ fees and costs.
16.15. Section Headings. The sectiontitles, headings contained hereinand captions used in this
Agreement are includedintended solely for convenience of reference purposes onlyand shall not
be considered in construing any of the provisions of this Agreement.
16. Modification. This Agreement may not be modified, amended or terminated, except by
an agreement in writing executed by Grantor and Grantee.
17. Governing Law. The terms, covenants and provisions hereof shall be governed by and
construed under the applicable laws of the State of Colorado.
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18. Special Provisions Regarding Relocation. The parties agree that the special provisions
contained in this Section 18 shall supersede and control over any conflicting provisions of this
Agreement. Grantor has advised Grantee that future development of the real property within
which the Premises is located may necessitate the relocation of the Improvements or portions
thereof to other real property owned by Grantor. Grantee shall reasonably cooperate with respect
to any necessary relocation, provided that (i) Grantor shall give Grantee written notice of such
proposed relocation not less than ninety (90) days before any such relocation is to occur, (ii) the
relocation site(s) must be reasonably acceptable to the Grantee and shall, at a minimum,
reasonably accommodate the integration of the Improvements of and into the balance of the
Grantee’s non-potable water system, and (iii) Grantor and Grantee shall execute and deliver an
amended or replacement easement agreement wherein the easement premises is the relocation
site, with such amended or replacement easement agreement and the title burdens to the
relocation site being reasonably acceptable to the Grantee and its legal counsel. The parties
agree that the costs for such relocation shall be borne exclusively and entirely by the Grantor. In
the event of any such relocation, the Grantee agrees to execute and deliver to the Grantor an
instrument in recordable form evidencing the termination of the Easement as to the portion of the
Premises no longer necessary to accommodate the Improvements.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which taken together shall constitute one and the
same agreement.
19. Access to Raw Water. Grantor shall have the right during this Agreement to access raw
water from the raw water irrigation system dedicated by Traer Creek Metropolitan District to the
Town pursuant to the following terms:
a. The connection shall be limited to four (4) connections to the Town’s raw water irrigation
system described as (i) the Connection for Lot 2, (ii) the Tap for Trees on Post Blvd., (iii)
the Connection West side of Property and (iv) For Trees along Post Blvd (“Raw Water
System Connections”) as depicted in Exhibit B;
b. The Raw Water System Connections may be relocated at the expense of the property
owner served by such Raw Water System Connections provided that the areas to be
irrigated shall not be wholly relocated and that any adjustment or expansion of the
irrigation area shall require Town’s prior review and approval;
c. The Raw Water System Connections shall only serve to irrigate the same areas as
irrigated and but not to exceed a total of two million gallons of usage per year and subject
to the actual availability of raw water in the raw water irrigation system;
d. The Grantor or property owner served by the Raw Water System Connections shall
install water meters acceptable to the Town at no expense to the Town by May 1, 2014;
e. The Town shall not charge any plant investment fees, raw water system tap fees, or any
user fees for the Raw Water System Connections; and
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f. The Town reserves the right to charge such raw water system tap fees, user fees and
assessments as determined appropriate by the Town for any additional connections or
expansion of water use through existing connections to the Town’s raw water irrigation
system.
[Signature Page Follows]
EX-D-8 Wet Well Easement Agreement – Oct. 22, 2012
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first set forth above.
GRANTOR: TRAER CREEK-RP LLC, a Colorado limited liability company
By: Traer Creek LLC, a Colorado limited liability company, its managerManager
By:__________________________
MagnusMarcus Lindholm, Manager
STATE OF COLORADO )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this __________ day of
__________, 2012__________, 2013, by ___________________, as ____________ of Traer
Creek LLC, a Colorado limited liability company, as Manager of Traer Creek-RP LLC, a
Colorado limited liability company.
Witness my hand and official seal __________________________________________
[ S E A L ] My Commission Expires:______________________
EX-D-8 Wet Well Easement Agreement – Oct. 22, 2012
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GRANTEE: TOWN OF AVON, a home rule municipal corporation of the State of Colorado
By:_______________________________ Attest:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this __________ day of
__________, 2012__________, 2013, by Rich Carroll, as Mayor and Patty McKenny, as Town
Clerk of the Town of Avon, of the State of Colorado.
Witness my hand and official seal __________________________________________
[ S E A L ] My Commission Expires:______________________
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EXHIBIT A
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Premises
Easement Area
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EXHIBIT B
Connections to Wet Well
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 1 of 11
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT (“Agreement”) is made and entered into as of this ____ day of
__________, 20122013 (“Effective Date”) by and between TRAER CREEK-RP LLC, a
Colorado limited liability company (“Developer”), whose address is P.O. Box 9429, 0101
Fawcett Road, Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT,
a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”) c/o
Special District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood,
Colorado 80228, and the TOWN OF AVON, a home rule municipal corporation of the State of
Colorado (“Town”), whose address is P.O. 75, 1 Lake Street, Avon, CO 81620 (collectively, the
“Parties”).
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, (the “(“Original Easement Agreement”); and
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado, which included (“STS”). The STS includes, among other terms, an obligation of the
Town to assume certain maintenance obligations of TCMD, including assumption of TCMD’s
maintenance obligations related to Nottingham Dam, which maintenance obligations to be
assumed by Town are defined as stated in Section 4.2(c) of the Consolidated, Amended and
Restated Annexation and Development Agreement for the Village (at Avon), dated
_____________, 2012____________, 2013 (“Development Agreement”); and,
WHEREAS, for the purpose of implementing the pertinent terms of the Settlement Term
SheetSTS and the Development Agreement related to the Town’s assumption of TCMD’s
maintenance obligations for the Nottingham Dam, the Developer and TCMD desire to amend
certain terms of the Original Easement Agreement, as more fully set forth herein, and TCMD
desires to assign all of its rights, title, interests and obligations in, under and to the Original
Easement Agreement to Town, and Town desires to assume all such rights, title, interests and
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 2 of 11
obligations from TCMD as amended and stated herein, and Developer desires to consent to such
assignment in accordance with the terms stated herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its of rights, title, interests and obligations to
the Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement and that the intent, that Developer and Town
hereby release any rights and obligations of the Original Easement Agreement which are
inconsistent with this Agreement, and that the intent and effect is that this Agreement shall
replace and supersede the Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns, a non-exclusive, easement on, over, across, upon and through the Nottingham Dam
Propertyproperty, in the location generally depicted on Exhibit A attached hereto (the
“Nottingham Dam Rehabilitation Easement”).”) to access, maintain, repair, replace, improve,
reconstruct, expand, reduce, decommission and/or remove the Nottingham Dam and
impoundment area. The Nottingham Dam Rehabilitation Easement shall also include a non-
exclusive, easement on, over, across, upon and through such additional real property located
adjacent to the real property described on Exhibit A as may be reasonably necessary for Town’s
construction staging activities associated with the “Nottingham Dam Rehabilitation Project” (as
hereinafter defined). The Nottingham Dam Rehabilitation Easement may be used by Town, its
employees, agents and contractors in accordance with the terms of this Agreement and only in
connection with the rehabilitation of the spillway, outlet and dam crest of the Nottingham Dam
as approved by the State of Colorado in Water Division 5, DAMID: 370119, Construction File
No. C-1610A (the “Nottingham Dam Rehabilitation Project”).Town to exercise its rights
herein. Notwithstanding the foregoing or any other provision of this Agreement, Developer and
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 3 of 11
Town agree that Town’s obligations assumed by Town under this Agreement shall be construed,
interpreted and applied such that Town shall have the sole discretion to determine the appropriate
maintenance of the Nottingham Dam, which in accordance with the minimum requirements of
the State of Colorado Division of Water Resources as determined by the Dam Safety Engineer or
other appropriate State official, which maintenance discretion shall include but not be limited to
maintenance, repair, replacement, improvement, reconstruction, expansion, reduction,
decommission, removal and deferral of the Nottingham Dam and any activity related to the
Nottingham Dam in accordance with Section 4.2(c) of the Development Agreement. This
Agreement shall constitute a non-exclusive, permanent easement for the operation, maintenance,
repair and replacement of the improvements constructed, or to be constructed, if any, as part of
the Nottingham Dam Rehabilitation Project and no further easement will be required. In the
event that the Town decommissions or abandons the Nottingham Dam, Developer may request
that Town release and terminate this Agreement in writing and Town shall not unreasonably
refuse such request.Developer acknowledges that the Town is not the current designated owner
of the Nottingham Dam according to the records of the Dam Safety Branch, Division of Water
Resources, and Developer agrees to reasonably cooperate with Town as necessary to allow Town
to work directly with the Division of Water Resources with regard to maintenance of the
Nottingham Dam and performance of Town’s duties under this Agreement. Developer further
acknowledges and agrees that Town shall not be liable or responsible for maintenance of the
Nottingham Dam to the extent that Developer or Piney Valley Ranches Trust fails to reasonably
cooperate or unreasonably interferes with Town’s actions to work directly with the Division of
Water Resources and such failure to cooperate or interference inhibits, restricts or prohibits the
Town’s ability to maintain the Nottingham Dam in accordance with the terms of this Agreement.
Town agrees to promptly provide to Developer any correspondence to or from the Division of
Water Resources and agrees to invite a representative of the Developer to any meetings with the
Division of Water Resources to the extent such correspondence or meetings are related to the
Nottingham Dam. The Town acknowledges that this Nottingham Dam Easement is non-
exclusive and that Developer may seek to develop areas located uphill and downhill of the
Nottingham Dam Easement; therefore, this Agreement shall not be construed to restrict
Developer’s right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. In the event that Town
decommissions or abandons the Nottingham Dam Town shall comply with any regulatory
requirements of the Division of Water Resources concerning decommissioning of the
Nottingham Dam. Developer may request that Town release and terminate this Agreement in
writing if the Town decommissions or abandons the Nottingham Dam and Town shall not
unreasonably refuse such request.
4. Subjacent and Lateral Support. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements constructedincluding, without limitation,
improvements to the dam, outlet structure(s), spillway and/or installed as part spillway channel,
impoundment area and any other improvement deemed necessary in the reasonable discretion of
the Town or as required by the Division of Water Resources over the Nottingham Dam
Rehabilitation Projectand related improvements. Developer shall not take any action which
would impair the lateral or subjacent support for said improvements.
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 4 of 11
5. Access. The Nottingham Dam Rehabilitation Easement includes a non-exclusive right of
reasonable vehicular and pedestrian ingress, egress and access, for use by Town and its
employees, agents and contractors in connection with the Nottingham Dam Rehabilitation
Project, on, over, upon, across and along the existing dirt road located on the Nottingham Dam
Propertyproperty and the adjacent property in the location generally depicted on Exhibit A
attached hereto (“Nottingham Dam Access Easement”).
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, and except as reasonably required in
connection with the Nottingham Dam Rehabilitation Project, the Nottingham Dam
Rehabilitationthe Nottingham Dam Easement does not include any right to construct any
new roads, improvements or structures, on, over, across, through or upon any portion of
the Nottingham Dam Propertyproperty or the adjacent property. Any such construction
shall be subject to the prior written consent of Developer, which consent shall not be
unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam PropertyEasement property and the adjacent property and the right
to construct improvements and structures within the Nottingham Dam PropertyEasement
property and the adjacent property, including the right to construct roads on, across, over
or under the Nottingham Dam structure and improvements, so long as any such
Developer improvements or structures do not degrade the structural integrity of the
Nottingham Dam structure or otherwise unreasonably interfere with the Nottingham Dam
Rehabilitation Project, the Nottingham Dam Rehabilitation Easement,Easement or the
Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Rehabilitation Easement. Town, and its
successors and assigns, shall maintain the Nottingham Dam Rehabilitation Easement in a safe
condition,accordance with the minimum requirements of the Division of Water Resources,
including repairing any damage to any portion of the Nottingham Dam altered as part of the
Nottingham Dam Rehabilitation Project from any source or cause whatsoever, other than any
damage resulting from the acts or omissions of Developer, all for the stated purpose and intent of
protecting the Nottingham Dam Property and all properties located down-gradient of the
Nottingham Dam Property that may be affected by a dam failure.. Town, and its successors and
assigns, shall be solely responsible for, and bear the entire cost and expense of, any such
maintenance, repair and/or replacement associated with the Nottingham Dam Rehabilitation
Project.. In addition, Town shall keep the Nottingham Dam and its banks in an attractive
condition and shall re-grade and remove vegetation and debris from the banks of the Nottingham
Dam following completion of the Nottingham Dam Rehabilitation Project.. Town’s obligations
in this Paragraph 7 shall be subject to the limitations of Town’s obligations stated in Paragraph 3
above and as stated in Section 4.2(c) of the Development Agreement. Town’s obligations in this
Agreement, including but not limited to Town’s obligations stated in this Paragraph 7Paragraph
7 and Town’s obligations to provide reimbursement stated below in Paragraph 13, shall be
subject to annual budget and appropriation by the Town.Town. Notwithstanding the foregoing,
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 5 of 11
Town sole’s discretion shall not be interpreted as a right to avoid compliance with the minimum
requirements of Division of Water Resources. The failure of Town to budget and appropriate
funds in order to perform the Town’s obligations stated in this AgreementParagraph 7 shall not
constitute a default or breach of this Agreement.
8. No Interference with Nottingham Dam Rehabilitation Project. Developer, for itself
and its successors and assigns, agrees that it shall not interfere with or otherwise obstruct the
Nottingham Dam Rehabilitation Project without the prior written consent of Town. Such
consent shall not be unreasonably withheld or delayed.
9.8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Property, the Nottingham Dam Rehabilitation
Easement, the adjacent property or the Nottingham Dam Access Easement to the general public
or for the general public or for any public purpose whatsoever, it being the intent of the
partiesParties that the Nottingham Dam Property, the Nottingham Dam Rehabilitation Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument.
10.9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the partiesParties hereto. Notwithstanding the foregoing
and subject to Paragraph 24, if any party sells all or any portion of its interest in property subject
to this Agreement, such party shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it arising
under this Agreement after the sale and conveyance of title but shall remain liable for all
obligations arising under this Agreement prior to the sale and conveyance of title. The new
owner of any such property or portion thereof (including, without limitation, anyone who
acquires its interest by foreclosure, trustee sale or otherwise) shall be liable for all obligations
arising under this Agreement with respect to such property or portion thereof after the date of
sale and conveyance of title.
11.10. Covenants. The Developer, TCMD and Town each covenant for and on behalf of each
of the other partyParties that they have taken or performed all requisite acts or actions which may
be required by their organizational or operational documents to confirm their respective authority
to execute, deliver and perform each of their obligations under this Agreement.
12.11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam PropertyEasement is granted and the adjacent property in fee simple and has
full power and lawful authority to grant, sell, and convey the same in manner and form as
aforesaid. Developer, for itself, its heirs, personal representatives, successors and assigns, does
covenant and agree that it shall warrant and forever defend Town in its quiet and peaceful
possession of the Nottingham Dam Rehabilitation Easement and the Nottingham Dam Access
Easement against all and every person or persons lawfully claiming ortitle to claim the property,
whether in whole or anyin part thereof, by, through or under Developer.
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 6 of 11
13.12. Default. A party shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non-defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30-day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days., which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam Rehabilitation Easement hereunder.
14.13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 1312 above, the non-breaching
party shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief
in the nature of specific performance or damages or both may be awarded, subject to the
provisions of the laws of the State of Colorado. The prevailing party in any legal or
administrative action shall be awarded its reasonable costs and expenses of such action, through
all appeals, including without limitation, reasonable attorneys’ fees.
15.14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
16.15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its directs and indirect affiliates, and their respective
agents, officers, directors, servants, consultants, advisors and employees of and from any and all
reasonable costs, expenses (including, without limitation, reasonable attorney’s fees), liability,
claims, liens, demands, actions and causes of action whatsoever arising out of or related to any
loss, cost, damage or injury, including death of any person or damage to property of any kind,
which damage, loss or injury is caused by the acts or negligent acts, errors or omissions of Town,
its subcontractors or any person directly or indirectly employed by Town. With regards to this
Agreement, Developer agrees to indemnify, defend and hold harmless Town and its officers,
agents and employees of and from any and all reasonable costs, expenses (including, without
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 7 of 11
limitation, reasonable attorney’s fees), liability, claims, liens, demands, actions and causes of
action whatsoever arising out of or related to any loss, cost, damage or injury, including death of
any person or damage to property of any kind, which damage, loss or injury is caused by the acts
or negligent acts, errors or omissions of Developer, its respective subsidiaries and affiliates, and
their respective agents, officers, directors, servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given, served
or made by depositing the same either in the person to the authorized representative of the
noticed party or by registered or certified United States mail, return receipt requested, with such
notice being addressed as specified in the introductory paragraph of this Agreement, postpaid
and registered or certified with return receipt requested or by delivering the same in person to
the said authorized representative of such party. Notice. Unless otherwise stated in this
Agreement, notice deposited in the mail, in accordance with the provisions hereof, shall be
effective unless otherwise stated in the Agreement from from and after the thirdfourth (4th) day
next following the: date postmarked on the envelope containing such notice, or when actually
received, whichever is earlier. Notice given in any other manner shall be effective only if and
when received by the party to be notified. By giving the other party at least seven (7) days
written notice thereof, the parties heretoParties shall have the right to change their respective
addresses and specify as their respective addresses for the purposes hereof any other address in
the United States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 1110 and 1211
of this Agreement, no representations or warranties of any nature have been made by the parties
heretoParties, and none of the partiesParties hereto have entered into this Agreement in reliance
upon any such representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the
partiesParties with respect to the subject matter described herein, and further replaces and
supersedes all prior agreements, rights and obligations between the partiesParties with respect to
the subject matter hereof.
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the parties
heretoParties.
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 8 of 11
23. Governing Law, Interpretation and Venue. It is the intention of the parties hereto that
all questions with respect to the construction and interpretation of this Agreement and the rights
and liabilities of the parties hereunder Assignment. This Agreement shall not be determined in
accordance with the laws of the State of Colorado. In addition, this Agreementassigned by Town
without the prior written consent of Developer, which consent shall not be deemed to have been
prepared jointly by the parties.unreasonably withheld. The forumexpress assumption, in writing,
of this Agreement shall thereby relieve the applicable assignor to the matters so assumed by the
assignee.
24. Legal Fees and Costs. Except for resolution of arbitration as set forth in paragraph 25
below, in the event that a party institutes an action or proceeding for a declaration of rights of
Town and Developer under this Agreement, for injunctive relief, for an alleged breach or default
of this Agreement, or any and all disputes other action arising hereunderout of this Agreement,
or the transactions contemplated hereby, the prevailing party shall be the entitled to its actual
reasonable costs and attorney’s fees. Pursuant to Section 1, TCMD shall not be a party to any
legal or arbitration proceeding that doesn’t regard anything before the Effective Date. Town and
Developer agree to waive their respective rights to a jury trial in any civil legal proceeding.
23.25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the
State District Court in and for Eaglethe County, State of Eagle, Colorado. Each party shall also
have the right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will
not issue a declaratory judgment, because the issue is not ripe, the Town and Developer agree to
submit any disputes under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding
resolution in accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1,
TCMD shall not be a party to any legal or arbitration proceeding that doesn’t regard anything
before the Effective Date.
24.26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Party and the Service
ProviderParties within seven (7) days of receipt of said facsimile copy.
[SIGNAUTRESIGNATURE PAGE FOLLOWS]
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 9 of 11
DEVELOPER:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:_______________________________
Name:_____________________________
Name: Marcus Lindholm
Title:______________________________:
Manager
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____,2013, by ____________________,Marcus Lindholm, as
____________________Manager of ____________________ [Traer Creek LLC, a Colorado
limited liability company and by ____________________ as ____________________Manager
of ____________________].Traer Creek-RP LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 10 of 11
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____,2013, by ____________________,Daniel J. Leary, as
____________________President of ____________________ [and by ____________________
as ____________________ of ____________________].Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
June 6, 2013
Page 11 of 11
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
STATE OF COLORADO )
)ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____, by ____________________, as ____________________ of ____________________
[and by ____________________ as ____________________ of ____________________].
Witness my hand and official seal.
My commission expires:
Notary Public
Heil Law & Planning, LLC Office: 303.993.4608
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: meredith@heillaw.com
HEIL LAW
TO: Honorable Mayor Carroll and Town Council Members
CC: Virginia Egger, Town Manager
THRU: Eric Heil, Town Attorney
FROM: Meredith Van Horn, Assistant Town Attorney
RE: Approval of Agreements and Improvement Conveyances to the Town
DATE: May 31, 2013
Summary: This memorandum describes the documents to be approved by Resolution 13-18. This includes
revisions to a document previously approved by Town Council, the Roadway Easement Agreement, a new
agreement, the Raw Water System Operation and Maintenance Agreement, the Special Warranty Deed conveying
raw water rights to the Town, and Bills of Sale for two improvements to be conveyed to the Town, the Nottingham
Gulch Storm Sewer and the Nottingham Gulch Energy Dissipater.
Access Easement Agreement: This agreement conveys an easement to the Town for access from East Beaver
Creek Boulevard to Lot 2/Planning Area B. The version of the agreement attached to Ordinance 12-10 was titled
“Roadway Easement Agreement”. On the Second Amended Final Plat, Amended Final Plat, The Village (at Avon)
Filing 1, A Resubdivision of Lot 1 the title of the easement is Access Easement. The title of the agreement is revised
to “Access Easement Agreement” to ensure that it has the same title as on the re-plat. The Agreement has been
updated to change all dates to 2013, to correct an incorrect cross-reference to the CARADA, and to include an
“Approved as to legal form by” signature block.
Paragraph 1 provides the basic parameters of the easement. The width of the easement is reduced from fifty
(50) feet to forty (40) feet. In addition, Traer Creek-RP, LLC provided revisions which exclude the installation of
Communications Utilities from the permitted uses under the easement. Communications Utilities include such utilities
as cable television cables and sires, telephone cables, fiber optic cables, and the pipes are defined as “(a) cable
television cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals and
similar improvements; (b) telephone and communication cables, fiber-optic cables, wires, lines, plugs, connections,
junction boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; (c) data cables, fiber-optic
cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar
improvements; and (d) utility conduit, pipe, sleeve, trough or similar enclosures for the purpose of holding, running or
containing the facilities described in clauses (a) through (c).”
Paragraph 2 of the Agreement is revised to allow termination of the easement in addition to the options of
relocating, adjusting or repositioning its location. The revision notes that the configuration of Future Main Street in
the PUD Master Plan shows that it will abut Lot 2/Planning Area B and thus will provide legal access to Lot
2/Planning Area B without the need of the Easement. The revision states that “at no time shall Planning Area B be
without legal access to Future Main Street or another public right-of-way.”
Paragraph 4 is revised to allow Traer Creek-RP, LLC to use the easement area for snow dumping and storage.
Paragraph 6 is a new paragraph regarding indemnification and insurance and states that the Town will indemnify
Traer Creek-RP, LLC against any claims that arise from the Town’s use of the easement, with the exclusion of any
negligence or willful misconduct by Traer Creek-RP, LLC. In addition, the Town shall maintain insurance coverage
“as reasonably determined by” the Town.
Exhibit C to the Agreement is the Legal Description which has also be revised to include the reception information for
the Amended Plat for Lot 1 and to refer to Lot 2 as “Lot 2” and not “Proposed Lot 2”.
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Asset Conveyances
May 31, 2013
Page 2 of 2
The Village (At Avon) Raw Water System Operations and Maintenance Agreement and Special Warranty
Deed: The Raw Water System Operations and Maintenance Agreement (“Raw Water O&M Agreement”) outlines the
operations and maintenance of the Raw Water System and the future Village (at Avon) Lake Nos. 1 and 2.
Section 1 states that the Town is assuming the operations and maintenance of the raw water system which
includes “the Nottingham and Puder Ditch, and any and all diversion ditches, pipelines, headgates and structures,
pumps, casings, wet wells and other improvements associated with or used in connection with the raw (non-potable)
water system that serves or will serve the Property”. TCMD shall continue to operate and maintain the part of the
raw water system that provides water for use in irrigating Tract E.
If Village (at Avon) Lake Nos. 1 and 2 are constructed at some point in the future, Section 2 outlines the
maintenance and operation of those water bodies. If the lakes are constructed as “part of the development of the
Property” then the maintenance will be the responsibility of TCMD or the Developer. If the lakes are constructed as a
public amenity for the Town then the lakes will be the responsibility of the Town.
The Raw Water O&M Agreement in Section 3 also requires that the Town provide an accounting for all
diversions at the Nottingham and Puder Ditch and the two wet wells, the total number of acres irrigated and
diversions from and releases into Lake Nos. 1 and 2. Section 4, 5 and 6 address future filings in the Water Court, the
need for augmentation for additional irrigation, and the use of any unused historic consumptive use credits.
Accompanying this Raw Water O&M Agreement is a Special Warranty Deed conveying the raw water rights of TCMD
to the Town.
Bills of Sale for Nottingham Gulch Storm Sewer and Nottingham Gulch Energy Dissipater: The Nottingham
Gulch Storm Sewer and the Nottingham Gulch Energy Dissipater are two improvements to be conveyed to the Town
that were not conveyed by the earlier bills of sale from TCMD. The Storm Sewer runs from just north of I-70, under I-
70, across Lots 4, 5, and 6 in Filing 1 and down to the Eagle River. The Nottingham Gulch Energy Dissipater is
located where the storm sewer meets the Eagle River on the McGrady Acres Open Space and is a water dissipater.
Requested Action: Approve Resolution No. 13-18 “A RESOLUTION APPROVING THE VILLAGE (AT AVON) RAW
WATER SYSTEM OPERATIONS AND MAINTENANCE AGREEMENT, SPECIAL WARRANTY DEED, ACCESS
EASEMENT AGREEMENT, THE BILL OF SALE (NOTTINGHAM GULCH STORM SEWER), AND THE BILL OF
SALE (NOTTINGHAM GULCH ENERGY DISSIPATER)”
Thanks, Meredith
Res. 13-18 Approving Asset Conveyances
TOWN OF AVON
RESOLUTION NO. 13-18
Series of 2013
A RESOLUTION APPROVING THE VILLAGE (AT AVON)
RAW WATER SYSTEM OPERATIONS AND
MAINTENANCE AGREEMENT, SPECIAL WARRANTY
DEED, ACCESS EASEMENT AGREEMENT, THE BILL OF
SALE (NOTTINGHAM GULCH STORM SEWER), AND
THE BILL OF SALE (NOTTINGHAM GULCH ENERGY
DISSIPATER)
WHEREAS, on October 7, 2011 the Town of Avon 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, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
(“CARADA”) by Ordinance No. 12-10 which in Section 4.2(c) the Town of Avon will assume
maintenance obligations of Traer Creek Metropolitan District;
WHEREAS, Section 4 of Ordinance 12-10 allows the Town Council to approve amendments
and/or revisions to the documents conveying property by resolution;
WHEREAS, the Town of Avon may act by resolution to provide approval of agreements and
conveyances of property to the Town pursuant to Avon Town Charter Section 6.1; and,
WHEREAS, the Avon Town Council approved the Closing Escrow Agreement by Ordinance
No. 12-10 which set forth various terms concerning the execution and deposit of documents and
agreements into escrow and the effectiveness or voiding of such documents and agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON:
Section 1. The following agreements and asset conveyances are hereby approved by the
Town of Avon subject to the terms and conditions of the Closing Escrow Agreement:
(a) The Village (at Avon) Raw Water System Operations and Maintenance Agreement,
attached hereto as Exhibit A;
(b) The Special Warranty Deed conveying water storage rights and direct flow rights,
attached hereto as Exhibit B;
(c) The Access Easement Agreement, attached hereto as Exhibit C;
(d) The Bill of Sale (Nottingham Gulch Storm Sewer), attached hereto as Exhibit D; and
Res. 13-18 Approving Asset Conveyances
(e) The Bill of Sale (Nottingham Gulch Energy Dissipater), attached hereto as Exhibit E.
ADOPTED this JUNE 11, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
{00201284 / 5 }{00201284 / 5 } 1
THE VILLAGE (AT AVON) RAW WATER SYSTEM OPERATIONS
AND MAINTENANCE AGREEMENT
This The Village (at Avon) Raw Water System Operations and Maintenance Agreement
(the “Agreement”) is made and entered into as of this _____ day of __________________, 2013,
by and between the Town of Avon, a home rule municipal corporation of the State of Colorado
(the “Town”), and the Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado (“TCMD”).
RECITALS
A. WHEREAS, the Town, TCMD and other parties entered into that certain
Settlement Term Sheet dated October 7, 2011, in order to settle litigation among the parties in
consolidated civil action Case No. 2008CV385, Eagle County District Court, arising from
various disputes concerning The Village (at Avon) real estate development which property is
legally described in the attached Exhibit A (the “Property”). Pursuant to paragraph 3(e) of the
Settlement Term Sheet, TCMD agreed to convey to the Town certain water rights that service the
Property, which in turn are to be conveyed from the Town to the Upper Eagle Regional Water
Authority (“Authority”). The Town, TCMD, the Authority and other parties subsequently
entered into that certain Traer Creek Water Storage Tank Agreement, dated
________________________, 2013, which set forth, among other things, which water rights
would be conveyed and the specific terms and conditions for the conveyance; and
B. WHEREAS, TCMD has conveyed to the Town by Special Warranty Deeds the
water rights described in the attached Exhibits B and C (the “Water Rights”), together with the
rights and benefits of the plan for augmentation and exchange related to said water rights as
decreed for the Property by the District Court for Water Division No. 5 in Case No. 97CW306
(the “Augmentation Plan”), and the historic consumptive use credits dedicated to the
Augmentation Plan described in the attached Exhibit D (the “HCU Credits”). The Augmentation
Plan allows for both potable and raw (non-potable) water service to be provided to the Property
using a combination of the Water Rights and the HCU Credits; and
C. WHEREAS, by another Special Warranty Deed, the Town has conveyed to the
Authority the Water Rights that provide potable water service to the Property (e.g. the direct
flow rights decreed to the Metcalf Ditch and Raw Water Booster Pump), along with the HCU
Credits dedicated to the Augmentation Plan, reserving unto the Town up to 74.3 acre-feet of the
HCU Credits allocated to replace out-of-priority diversions from raw (non-potable) water
irrigation of 38.27 acres and evaporation from up to 2.7 surface acres of lakes on the Property, in
accordance with the assumptions and depletion factors set forth in Schedules A, B and C of the
Augmentation Plan; and
D. WHEREAS, pursuant to paragraph 6(D)(2) of the Case No. 97CW306 decree, up
to 5 cfs of raw (non-potable) water may be diverted at the Nottingham and Puder Ditch for filling
and refilling The Village (at Avon) Lake Nos. 1 and 2. Alternatively, up to 5 cfs may be diverted
by augmentation, in which case the stored water is accounted for against the HCU Credits.
{00201284 / 5 }{00201284 / 5 } 2
Pursuant to paragraph 7(E) of the Augmentation Plan, raw (non-potable) water may also be
diverted through the Nottingham and Puder Ditch for irrigation, flow through and recreational
purposes, in which case the depletions from such use are augmented by the HCU Credits; and
E. WHEREAS, the Town has agreed to operate the raw (non-potable) water system
for the Property described in the Case No. 97CW306 decree, including the Nottingham and
Puder Ditch and The Village (at Avon) Lake Nos. 1 and 2, subject to the terms and conditions of
this Agreement, and with the understanding that the Town is not obligated to construct, maintain
or repair The Village (at Avon) Lake Nos. 1 and 2.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Town and TCMD do hereby state and agree as follows:
AGREEMENT
1. Operation and Maintenance of the Raw (Non-Potable) Water System. The Town
will operate and maintain the raw (non-potable) water system for the Property as decreed in Case
No. 97CW306, including the Nottingham and Puder Ditch, and any and all diversion ditches,
pipelines, headgates and structures, pumps, casings, wet wells and other improvements
associated with or used in connection with the raw (non-potable) water system that serves or will
serve the Property, except that TCMD will operate and maintain any part of the raw (non-
potable) water system that solely benefits the portion of the Property known as Tract E, Final
Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 (“Tract
E”). The maintenance costs for which TCMD will continue to be responsible include the Tract E
wet well, and any other pipes, valves, pumps, or other fixtures required to deliver water to
irrigate and operate the water feature on Tract E. The Town will be solely responsible for all
other costs incurred to operate and maintain the raw (non-potable) water system, including any
costs for repairs and maintenance of the Nottingham and Puder Ditch and its appurtenances. The
Town reserves the right to establish reasonable fees and charges and to impose regulations for
the operation of the raw (non-potable) water system for irrigation of areas which are not owned
by the Town or included in road right-of-ways dedicated to the Town. However, the Town shall
not require the provision or dedication of new water rights as a condition of providing raw (non-
potable) water service for the irrigation of up to 38.27 acres and lake evaporation from up to 2.7
surface acres of lakes on the Property so long as the decree in Case No. 97CW306 is applicable
to determine the water needed for such uses. TCMD will continue to utilize the Nottingham and
Puder Ditch water right conveyed to the Town for irrigating Tract E and any other areas mutually
agreed to by the parties and will report its total water usage to the Town under this right.
2. Operation and Maintenance of The Village (at Avon) Lake Nos. 1 and 2. The
Village (at Avon) Lake Nos. 1 and 2 have not been constructed and the precise location or
ownership of the reservoir structures has not yet been determined. If The Village (at Avon) Lake
Nos. 1 and 2 are constructed as part of the development of the Property, then the construction,
repair and maintenance of The Village (at Avon) Lake Nos. 1 and 2 will be the responsibility of
TCMD or the developer. However, if The Village (at Avon) Lake Nos. 1 and 2 are built as a
public amenity by the Town, then the construction, repair and maintenance will be the
{00201284 / 5 }{00201284 / 5 } 3
responsibility of the Town. The Town and TCMD may also wish to dedicate one lake to the
Town and one lake to TCMD. The Town and TCMD will mutually determine the location of
The Village (at Avon) Lake Nos. 1 and 2, subject to the approval of the developer. Once The
Village (at Avon) Lake Nos. 1 and 2 reservoir structures are completed, the Town will be
responsible for keeping the structures full of water at all times practicable, either by diverting
under the 5 cfs right decreed to fill the structures in Case No. 97CW306 when water is available
in priority or with the HCU Credits allocated to replace evaporation from the lakes if the junior
right is out of priority. Water stored in The Village (at Avon) Lake Nos. 1 and 2 will not be used
for augmentation purposes without the written consent of both parties to this Agreement.
3. Accounting. The Town will be responsible for reporting to the Authority all
diversions at the Nottingham and Puder Ditch and the two wet wells connected to the
Nottingham and Puder Ditch for the raw (non-potable) water irrigation system, total acreage
irrigated by the raw (non-potable) water system and diversions to storage in and releases from
the Village (at Avon) Lake Nos. 1 and 2. The parties anticipate that the Authority will be
responsible for all accounting, recording and reporting for operation of the Augmentation Plan.
4. Future Water Court Filings. The parties anticipate that the Authority will file and
prosecute all diligence applications and/or applications to the Water Court to make water rights
absolute for the conditional water rights decreed in Case No. 97CW306. The Town may join any
such applications as a Co-Applicant with the Authority, as was the practice with TCMD and the
Authority in Case No. 07CW83. TCMD will cooperate with the Authority and the Town to
provide all information regarding the activities taken by TCMD during the subject diligence
period towards putting the subject water rights to beneficial use.
5. Additional Irrigated Area or Irrigation Consumption. The Augmentation Plan
contemplated that up to 38.27 acres of the Property would be irrigated by the raw (non-potable)
water system. Pursuant to the assumptions and depletion factors decreed in Case No. 97CW306,
irrigation of 38.27 acres will require approximately 68.9 acre-feet per year of augmentation
water and keeping The Village (at Avon) Lake Nos. 1 and 2 full will require up to 5.4 acre-feet
of augmentation water for evaporation replacement from a maximum of 2.7 acres of lake surface
area. Therefore, up to 74.3 acre-feet of the HCU Credits have been reserved to the Town and are
dedicated to such uses and shall not be available for any other uses under the Augmentation Plan
without the written consent of the parties to this Agreement. If more than 38.27 acres of the
Property is to be irrigated by the raw (non-potable) water system and there are not enough HCU
Credits available under the Augmentation Plan to provide both potable and raw (non-potable)
water service to the Property based on the current or anticipated build-out of the Property,
TCMD will be responsible for providing or causing to provide any and all water rights necessary
to irrigate the additional area or otherwise to make up the shortfall.
6. Reduced Irrigation or Lake Evaporation. If the entire 74.3 acre-feet of HCU
Credits reserved by the Town is not needed to fully augment the full extent of raw (non-potable)
water uses on the Property after full build-out, or if it is otherwise determined that there are
excess HCU Credits reserved by the Town that are not necessary for augmenting out-of-priority
depletions from the raw (non-potable) water system on the Property under the depletion factors
{00201284 / 5 }{00201284 / 5 } 4
and other assumptions decreed in the Augmentation Plan, the excess of the reserved HCU
Credits may be reallocated to augment potable uses as allowed for under the Augmentation Plan,
subject to written approval of the parties to this Agreement, such approval to not be unreasonably
withheld and subject to the approval of the Authority. Upon such approvals of the reallocation
of excess HCU Credits from the raw (non-potable) water system to potable water uses, the Town
will convey by special warranty deed the approved amount of such excess HCU Credits to the
Authority.
7. Remedies. In the event of a breach or threatened breach of this Agreement, the
non-breaching party shall be entitled to an immediate injunction restraining the breaching party
from such breach or threatened breach, including both preliminary and final injunctions. Such
remedy shall be in addition to all other remedies available at law or in equity, including but not
limited to, damages, costs and reasonable attorneys’ fees. The prevailing party in any litigation
arising out of or related to this Agreement shall be awarded its reasonable attorneys’ fees and
costs through all appeals in addition to any other remedy provided.
8. Waiver. The failure of a party to insist upon strict performance of any of the
provisions contained in this Agreement shall not be deemed a waiver of any rights or remedies
that such party may have, and shall not be deemed a waiver of any subsequent breach or default
of the performance of any of the obligations contained herein for the same or any other party.
9. Amendment. This Agreement may be amended only in a writing executed by the
parties, their heirs, successors or assigns. To be effective, any amendment must be recorded in
the real property records of Eagle County, Colorado.
10. Severability. If any of the provisions of this Agreement or any paragraph,
sentence, clause, phrase, word or section, or the application thereof, is in any circumstances
invalidated, such invalidity shall not affect the validity of the remainder of this Agreement, and
the application of such provision in any other circumstances shall not be affected thereby.
11. Duration. This Agreement shall run with title to the Water Rights and
Augmentation Plan, shall be binding upon any current or future owners of the Water Rights and
Augmentation Plan, and their successors and assigns, and shall be perpetual.
12. Governing Law. This Agreement will be construed under and be governed by the
laws of the State of Colorado. Any legal action relating to this Agreement will be instituted and
prosecuted in the District Court in and for Eagle County, Colorado.
13. Recording. This Agreement shall be recorded in the real property records of
Eagle County, Colorado.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
(remainder of page left intentionally blank)
{00201284 / 5 }{00201284 / 5 } 5
THE TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
STATE OF COLORADO )
) :ss
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of _____________,
2013, by ________________________, as ________________ of the Town of Avon.
Notary Public
My Commission expires:
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) :ss
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of _____________,
2013, by Dan Leary, as President of the Traer Creek Metropolitan District.
Notary Public
My Commission expires:
{00225779 / 1 }
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this ______ day of ________________, 2013, is from
the Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of
the State of Colorado (“Grantor”), to the Town of Avon, a home rule municipal corporation of
the State of Colorado (“Grantee”), whose address is P.O. Box 975, One Lake Street, Avon,
Colorado 81620.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants, bargains, sells and conveys to Grantee all of Grantor’s
right, title and interest in and to the water rights described in Exhibit A, located in Eagle County,
Colorado (the “Water Rights”), free and clear of all liens and encumbrances, together with the
associated rights and benefits of the changes of water rights, plan for augmentation and exchange
decreed by the District Court in and for Water Division No. 5 in Case No. 97CW306 (the
“Augmentation Plan”) as such decree relates to the water rights in Exhibit A.
Together with all diversion ditches, dams, spillways, spillway channels, pipelines,
headgates and structures, pumps, casings and other improvements and easements associated or
used in connection with the Water Rights (including without limitation rights of access thereto)
as becomes necessary from time to time to provide municipal water service or raw water
irrigation service to the Property described in the attached Exhibit B (“Appurtenances”), subject
to The Village (at Avon) Raw Water System Operations and Maintenance Agreement being
executed by Grantor and Grantee of even date herewith.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
TRAER CREEK METROPOLITAN DISTRICT,
a quasi-municipal corporation and political subdivision
of the State of Colorado
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
{00225779 / 1 }
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ___ day of ____________,
2013 by ________________________, as President of the Traer Creek Metropolitan District.
Witness my hand and official seal. My commission expires: _________________.
[SEAL]
___________________________________
Notary Public
{00225779 / 1 }
EXHIBIT A
TO SPECIAL WARRANTY DEED FROM
TRAER CREEK METROPOLITAN DISTRICT TO TOWN OF AVON
Description of Water Rights
1. Water Storage Rights.
A. Nottingham Reservoir:
In Case No. 94CW113, Water Division No. 5, Nottingham Reservoir was conditionally
decreed for 22 acre-feet for domestic, commercial, industrial, augmentation and other uses with
an appropriation date of May 31, 1994, and an adjudication date of December 31, 1994. In the
same case, the reservoir was also decreed 22 acre-feet absolute for irrigation and stock watering.
Nottingham Reservoir is an on-channel reservoir located on Nottingham Gulch, a tributary of the
Eagle River. The point of intersection of the Nottingham Dam axis with the centerline of the
easterly spillway is located in the SW1/4 of the NW1/4 of Section 8, T. 5 S., R. 81 W., at a point
whence the northwesterly corner (BLM Brass Cap) of said Section 8 bears N. 27°34′30″W. 1800
feet. Nottingham Reservoir has been decreed as an augmentation source in Case No. 97CW306.
B. The Village (at Avon) Lake Nos. 1 and 2:
The Village (at Avon) Lake Nos. 1 and 2, with an adjudication date of December 31,
1997, and an appropriation date of May 20, 1997, as decreed by the District Court, Water
Division No. 5, State of Colorado, in the decree of the Water Court in Case No. 97CW306
entered on April 9, 2001, for a combined total of 27 acre-feet, conditional, with the right to fill
and refill, and with the following legal descriptions:
The Village (at Avon) Lake No. 1: This lake is located in the S1/2 SE1/4 NE1/4
and the N1/2 NE1/4 SE1/4 of Section 12, T. 5 S., R. 82 W. of the 6th P.M., Eagle,
County, Colorado.
The Village (at Avon) Lake No. 2: This lake is located in the NW1/4 SE1/4 of
Section 7, T. 5 S., R. 81 W. of the 6th P.M., Eagle County, Colorado.
The Village (at Avon) Lake Nos. 1 and 2 are decreed to fill and refill from the
Nottingham and Puder Ditch, limited to a diversion rate of 5 c.f.s.
2. Direct Flow Rights.
Any and all direct flow rights and other water rights associated with the raw (non-
potable) water system approved as part of the plan for augmentation and exchange decreed by
the District Court, Water Division No. 5, State of Colorado, in Case No. 97CW306 entered on
April 9, 2001, including the right to divert raw (non-potable) water through the Nottingham and
Puder Ditch for irrigation, flow through and recreational purposes.
{00225779 / 1 }
EXHIBIT B
PARCEL 1 DESCRIPTION
That part of the E 1/2 of Section 12, Township 5 South, Range 82 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey and Survey of said
Township and Range, accepted September 7, 1977 by the Department of the Interior Bureau of
Land Management in Washington, D.C., together with parts of Sections 7, 8, 9 & 17, Township
5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to
the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the
Department of the Interior General Land Office in Washington, D.C., described as a whole as
follows:
Beginning at the Northwest corner of said Section 7; thence along the northerly line of said
Section 7, N88°49’24”E 2791.46 feet, to the North 1/4 corner of said Section 7; thence,
departing said northerly line, along the easterly line of the NW 1/4 of said Section 7,
S00°11’12”E 2621.00 feet, to the northerly right-of-way line of Interstate Highway No. 70, as
described in the deed recorded in Book 223 at Page 982 in the office of the Eagle County,
Colorado, Clerk and Recorder; thence, along said northerly right-of-way line, S69°28’35”E
196.48 feet, to the northerly line of the SE 1/4 of said Section 7; thence, along said northerly line,
N89°50’40”E 2572.71 feet, to the West 1/4 corner of said Section 8; thence, along the westerly
line of said Section 8, N00°10’53”W 2738.19 feet to the Northwest corner of said Section 8;
thence, along the northerly line of said Section 8, N88°40’41”E 2758.98 feet, to the North 1/4
corner of said Section 8; thence, continuing along said northerly line, N88°42’58”E 850.00 feet;
thence, departing said northerly line, S56°30’00”E 1274.62 feet; thence S17°38’30”E 1593.20
feet; thence S27°39’30”W 2121.59 feet; thence South 899.93 feet; thence East 2595.53 feet, to
the easterly line of the SW 1/4 SW 1/4 of said Section 9; thence, along said easterly line
S01º33’13”W 603.34 feet, to the Southeast corner of said SW 1/4 SW 1/4; thence, along the
southerly line of said Section 9, N89º55’04”W 1371.96 feet, to the Southwest corner of said
Section 9; thence, along the easterly line of said Section 17, S01°41’49”E 170.00 feet, to the
centerline of the Eagle River; thence the following four courses along said centerline (Filum
aquce): (1) N89°24’49”W 1037.90 feet; (2) N86°07’49”W 472.00 feet; (3) N89°29’49”W
538.00 feet; (4) S82°33’11”W 595.15 feet, to the westerly line of the NE 1/4 of said Section 17;
thence, along said westerly line, N00°20’55”W 227.74 feet, to the North 1/4 corner of said
Section 17; thence, along the northerly line of said Section 17, S89°23’36”E 1316.69 feet, to the
Southwest corner of the SE 1/4 SE 1/4 of said Section 8; thence, along the westerly line of said
SE 1/4 SE 1/4, N00°51’07”E 1398.90 feet, to the SE 1/16 corner of said Section 8; thence, along
the southerly line of the NW 1/4 SE 1/4 of said Section 8, N89°54’54”W 1333.58 feet, to the CS
1/16 corner of said Section 8; thence, along the southerly line of the NE 1/4 SW 1/4 of said
Section 8, N89°58’35”W 1366.46 feet, to the SW 1/16 corner of said Section 8; thence, along the
easterly line of the SW 1/4 SW 1/4 of said Section 8, S00°01’37”E 1376.08 feet, to the Southeast
corner of said SW 1/4 SW 1/4; thence, along the southerly line of said Section 8, N89°32’28”W
529.28 feet, to the northerly right-of-way line of the Denver and Rio Grande Western Railroad;
thence the following ten courses along said northerly right-of-way line: (1) 132.91 feet along the
arc of a curve to the right, having a radius of 2033.48 feet, an internal angle of 03°44’42”, and a
chord that bears N70°30’09”W 132.89 feet; (2) N68°37’48”W 527.88 feet; (3) 231.12 feet along
the arc of a curve to the left, having a radius of 5779.70 feet, an internal angle of 02°17’28”, and
{00225779 / 1 }
a chord that bears N69°46’32”W 231.09 feet; (4) S00°14’31”E 21.20 feet; (5) 1142.50 feet along
the arc of a curve to the left, having a radius of 5759.70 feet, an internal angle of 11°21’55”, and
a chord that bears N76º32’02”W 1140.63 feet; (6) N82°13’00”W 1136.53 feet; (7) 548.06 feet
along the arc of a curve to the right, having a radius of 1880.00 feet, an internal angle of
16°42’10”, and a chord that bears N73°51’55”W 546.11 feet; (8) N00°12’23”W 22.04 feet; (9)
28.04 feet along the arc of a curve to the right, having a radius of 1860.00 feet, an internal angle
of 00°51’50”, and a chord that bears N64º47’55”W 28.04 feet; (10) N64°22’00”W 377.10 feet;
thence, departing said northerly right-of-way line, S25°38’00”W 100.00 feet, to the southerly
right-of-way line of the Denver and Rio Grande Western Railroad, also being on the existing
Town of Avon Boundary; thence, along said southerly right-of-way line and existing Town of
Avon Boundary the following three courses along the northerly line of the parcel annexed to the
Town of Avon: by Ordinance 86-10: (1) N64°22’00”W 2064.00 feet; (2) 968.59 feet along the
arc of a curve to the left, having a radius of 34327.50 feet, an internal angle of 01°37’00”, and a
chord that bears N65°10’30”W 968.56 feet; (3) N65°59’00”W 527.60 feet; thence, continuing
along said southerly right-of-way line and existing Town of Avon Boundary the following
course along the northerly line of the parcel annexed to the Town of Avon by Ordinance 81-38,
N65°58’08”W 677.83 feet; thence, departing said southerly right-of-way line and continuing
along the boundary of the parcel annexed to the Town of Avon by Ordinance 81-38,
N24°01’52”E 100.00 feet, to the northerly right-of-way line of the Denver and Rio Grande
Western Railroad and the Southeast corner of Lot 22, Benchmark at Beaver Creek; thence,
departing said northerly right-of-way line and continuing along the existing Town of Avon
Boundary the following two courses along the easterly line of the parcel originally incorporated
as the Town of Avon as defined in Ordinance 78-4: (1) N18°59’40”E 995.99 feet; (2) a
calculated distance and bearing of N23°55’02”W 268.23 feet (record distance and bearing of
N25°10’03”W 235.72 feet), to the southerly line of the NE 1/4 NE 1/4 of said Section 12;
thence, along said southerly line and existing Town of Avon Boundary the following course
along the southerly line of the parcel annexed to the Town of Avon by Ordinance 81-20, a
calculated distance and bearing of S89°58’41”E 1192.32 feet (record distance and bearing of
S89°57’07”E 1184.14 feet), to the westerly line of said Section 7; thence, along said westerly
line and existing Town of Avon Boundary the following course along the easterly line of the
parcels annexed to the Town of Avon by Ordinance 81-20 and Ordinance 81-34, a measured
distance and bearing of N00°11’27”W 1321.54 feet (record distance and bearing of
N00º10’14”W 660.82 feet per Ordinance 81-20 and record distance and bearing of
N00°10’14”W 660.83 per Ordinance 81-34), to the point of beginning, containing 967.07 acres,
more or less,
EXCEPTING FROM the foregoing parcel description all portions of the described property that
constitute the Interstate Highway No. 70 Right-of-Way and the Denver Rio Grande Western
Railroad Right-of-Way, which portions contain 99.24 acres, more or less. The net area of the
parcel being included in this annexation is 867.83 acres, more or less.
{00225779 / 1 }
PARCEL 2 DESCRIPTION
That part of Sections 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as follows:
Beginning at the North 1/4 corner of said Section 8; thence along the northerly line of said
Section 8, N88°42’58”E 850.00 feet, to the True Point of Beginning; thence, continuing along
said northerly line, N88°42’58”E 1920.72 feet, to the Northwest corner of said Section 9; thence,
along the northerly line of said Section 9, N83°29’30”E 2773.27 feet, to the North 1/4 corner of
said Section 9; thence, continuing along said northerly line, N83º24’12”E 2772.60 feet, to the
Northwest corner of said Section 10; thence, along the northerly line of said Section 10,
N86°39’24”E 2681.23 feet; thence, departing said northerly line, S01º34’07”W 2699.66 feet, to
southerly line of the SE 1/4 NW 1/4 of said Section 10; thence, along the southerly line of said
SE 1/4 NW 1/4, S86°32’23”W 1304.06 feet, to the Center West 1/16 corner of said Section 10;
thence, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, S01°32’50”W 1349.33
feet, to the Southwest 1/16 corner of said Section 10; thence, along the southerly line of said NW
1/4 SW 1/4, S86º32’47”W 1384.91 feet, to the South 1/16 corner of said Sections 9 & 10;
thence, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, S77º10’15”W 1413.37
feet, to the Southeast 1/16 corner of said Section 9; thence, along the easterly line of the SW 1/4
SE 1/4 of said Section 9, S01º33’02”W 1475.32 feet, to the East 1/16 corner of said Section 9
and Section 16 of said Township 5 South, Range 81 West of the Sixth Principal Meridian;
thence, along the southerly line of said SW 1/4 SE 1/4, S72º20’31”W 1450.43 feet, to the South
1/4 corner of said Section 9; thence, along the westerly line of said SW 1/4 SE 1/4, N01°34’18”E
1601.52 feet, to the Center South 1/16 corner of said Section 9; thence, along the southerly line
of the NE 1/4 SW 1/4 of said Section 9, S86º07’30”W 1378.19 feet, to the Southwest 1/16 corner
of said Section 9; thence, along the easterly line of the SW 1/4 SW 1/4 of said Section 9,
S01º33’13”W 903.02 feet, to the existing Town of Avon Boundary; thence, departing said
easterly line, the following five courses along said existing Town of Avon Boundary: (1) West
2595.53 feet; (2) North 899.93 feet; (3) N27°39’30”E 2121.59 feet; (4) N17°38’30”W 1593.20
feet; (5) N56°30’00”W 1274.62 feet, to the True Point of Beginning, containing 922.16 acres,
more or less.
1014138.9
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (this “Easement Agreement”) is made and
entered into as of this _____ day of _________________, 2013 (“Effective Date”), by and
between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(together with its successors and assigns, “Grantee”); and TRAER CREEK-RP LLC, a Colorado
limited liability company (together with its successors and assigns, “Grantor”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference (“Lot
1”).
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) made and entered
into as of _____________, 2013 and recorded in the real property records of Eagle County,
Colorado (the “Records”) on or about even date herewith (“Development Agreement”).
C. Pursuant to Section 3.7(b) of the Development Agreement, concurrently with the
“Effective Date” (as defined in the Development Agreement) of the Development Agreement,
Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee certain real
property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and
incorporated herein by this reference (“Planning Area B”), which property is designated as
Planning Area B pursuant to The Village (at Avon) PUD Master Plan (the “PUD Master Plan”),
being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide
recorded in the real property Records on or about even date herewith (the “PUD Guide”).
D. As of the Effective date, there is no legal access to Planning Area B from a public
right-of-way.
E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, an access easement from that certain 80-
foot wide right-of-way known as East Beaver Creek Boulevard (as recorded in the Records at
Reception No. 795007) to Planning Area B for the purpose of Grantee’s enjoyment of the
Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction,
operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the
terms and conditions of the PUD Guide and the Development Agreement, and as set forth below.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, a perpetual, non-exclusive, forty (40)-foot wide easement appurtenant to Planning
Area B (the “Easement”) over, under, through and across that portion of Lot 1 which is legally
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1014138.9
described and depicted in Exhibit C attached hereto and incorporated herein by this reference
(the “Easement Area”) for the purpose of Grantee’s, together with its engineers, contractors,
employees and similar consultants to Grantee and/or its assigns (collectively, “Permittees”),
conducting of the following activities (collectively, the “Permitted Uses”): (i) vehicular and
pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using,
operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks,
bike paths, retaining walls and other access facilities necessary or desirable for such ingress and
egress, and all fixtures and devices reasonably used or useful in the operation of such facilities
(collectively, the “Roadway Facilities”); (iii) constructing, installing, using, operating,
maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities,
electrical lines, gas lines and similar utilities and utility facilities, excluding the Communications
Utilities (defined below), together with all sleeves, conduit, junction boxes, vaults, fixtures and
devices reasonably used or useful in the operation of such facilities, whether publicly or privately
owned (collectively, the “Utility Facilities,” and together with the Roadway Facilities, the
“Facilities”); and (iv) the right to enter upon the Easement Area and such immediately abutting
areas of Lot 1 thereto as may reasonably be necessary to survey and conduct geotechnical and
similar physical investigations. As set forth in the PUD Guide and Section 3.7(b) of the
Development Agreement, any construction of the Facilities shall be subject to the prior written
approval of the “Design Review Board” (as defined in the PUD Guide). Nothing contained
herein shall obligate Grantee to install, or cause to be installed, any or all of the Facilities or to
otherwise provide for any such use. For purposes of this Easement Agreement,
“Communications Utilities” shall mean, collectively, (a) cable television cables, wires, lines,
plugs, connections, junction boxes, access boxes, vaults, switches, terminals and similar
improvements; (b) telephone and communication cables, fiber-optic cables, wires, lines, plugs,
connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar
improvements; (c) data cables, fiber-optic cables, wires, lines, plugs, connections, junction
boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; and (d) utility
conduit, pipe, sleeve, trough or similar enclosures for the purpose of holding, running or
containing the facilities described in clauses (a) through (c).
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of permanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable Public Improvements Agreement(s) (as defined
in the PUD Guide) between the Town and applicable constructing party(ies) (“Future Main
Street”), Grantor and Grantee acknowledge that future design, engineering, construction and/or
general development of Lot 1 and/or Future Main Street may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned, relocated or terminated to
accommodate such future development of Lot 1 and/or Future Main Street, provided that at no
time shall Planning Area B be without legal access to Future Main Street or another public right-
of-way. Grantor and Grantee further acknowledge and agree that, as generally contemplated by
the PUD Master Plan, the configuration of Future Main Street abuts Planning Area B and could
provide direct legal access from Future Main Street to Planning Area B without the necessity of
any easement or grant of other right to provide for such access. Accordingly, if Future Main
Street or other public right-of-way is designed and constructed in a manner that provides direct
legal access from Future Main Street or other public right-of-way to Planning Area B, upon the
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1014138.9
Town’s preliminary acceptance pursuant to the applicable Public Improvements Agreement of
the street improvements for the portion of Future Main Street or other public right-of-way that
provides such legal access to Planning Area B, this Agreement and the Easement granted
hereunder shall automatically terminate and be extinguished and of no further force or effect
without any further act of either Grantor or Grantee. Notwithstanding the foregoing, upon and
after such termination at the written request of Grantor, Grantee shall deliver to Grantor an
executed termination of this Agreement in recordable form, which Grantor may record against
the Easement Area to provide record notice of such termination. Further, if Grantor determines,
in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for
purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and
Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and
configuration or relocation of the Easement Area (the “Relocated Easement Area”) and Grantee
shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement
Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement
substituting the surveyed legal description for the alignment and configuration of the Relocated
Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the
recordation of such amendment in the Records. Recordation of such amendment in the Records
shall have the legal effect of terminating the prior boundaries of the Easement Area and
establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of
such amendment, the Design Review Board previously has approved, and Grantee previously has
installed and/or constructed, Facilities within the Easement Area, Grantor shall have the
obligation, at Grantor’s sole cost and expense, to relocate such Facilities to, or install and/or
construct such Facilities within, the Relocated Easement Area.
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days’ written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee’s
and/or Permittees’ conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee’s and/or Permittees’ conduct of such activities. Upon completion of any construction
activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor’s Reserved Rights. Grantor reserves the right to grant additional
non-exclusive easements and/or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s
or Permittees’ full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
4
1014138.9
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein, including without limitation, snow dumping and storage.
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic’s liens or materialmen’s liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) in
connection with or arising out of Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non-contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
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1014138.9
11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
13. Counterparts. This Easement Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[Signature pages follow this page.]
6
1014138.9
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
GRANTOR:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
7
1014138.9
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2013, by ________________, as _________ of the TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK-RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
A-1
1014138.9
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
B-1
1014138.9
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
C-1
1014138.9
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: June 6, 2013
Agenda Topic: Letter of Agreement with Vail Leadership Institute for Funding of the Entrepreneurs
BaseCamp Program
The Vail Leadership Institute (“VLI”) submitted a request to the Town of Avon during the 2013 budget
cycle for a $7,500 investment in their new educational initiative, the Entrepreneurs Basecamp. The
attached Executive Summary describes the new BaseCamp programming which is essentially a business
accelerator program that blends leadership development with business planning. Early discussions with
this group included their interest in locating in Avon at the Seasons building. The Town Council approved
this funding investment as part of the 2013 Economic Development Program Budget, and as a means of
helping the Vail Leadership Institute with its broader mission of trying to create an environment for job
growth and building a more vibrant economy and community.
The structure of the organization and the funding supporting the BaseCamp is an entity called the “Peak
Performers Fund L3C”, which was created as a low-profit limited liability company under the laws of the
State of Wyoming. Investors, foundations and governmental entities who want to support the effort
join as a member and then contribute seed funding through this arrangement. The structure provides the
potential for a “return on the investment” within an established period of time. At the time of budget
approval, Council envisioned executing an operating agreement under these premises, to participate in
the Peak Performers Fund L3c.
In reviewing the draft Operating Agreement, Town staff determined that a one-time funding contribution
might be a more efficient and productive means of supporting this initiative and reduce on-going
administrative costs to the Town. In conversation with both John Horan-Kates & Ross Iverson of the VLI
about presenting this alternative to the Town Council, and they are supportive of this approach.
Recommendation:
Town staff recommends approval, by motion and vote, of the “Letter of Agreement” included in this
packet. This Agreement outlines the arrangement for the Town to make a one-time contribution to the
Vail Leadership Institute as seed money for the Entrepreneurs BaseCamp. The final decision would not
have any budget ramifications.
Attachments:
A: Letter of Agreement
B: Executive Summary for Entrepreneurs BaseCamp Program
C: Request for Funding Letter dated 9/27/12
Post Office Box 975
1 Lake Street
Avon, CO 81620
970-748-4000
970-949-9139 Fax
970-845-7708 TTY
Letter of Agreement
This Letter of Agreement is entered into by the Vail Leadership Institute, whose business
address is PO Box 7210, Avon, Colorado, 81620 and the Town of Avon, Colorado, a Home Rule
Municipality of the State of Colorado, whose address is PO Box 975, Avon, Colorado, 81620.
The Town of Avon has received a solicitation to support the Vail Leadership Institute’s new
Entrepreneurs BaseCamp, a business accelerator program that blends leadership development with
a business planning program. The new BaseCamp Program has been developed in an effort to
generate jobs and help build a more vibrant economy in Eagle County.
The Town of Avon agrees to support this economic development effort with a $7,500
contribution to the Vail Leadership Institutes’ project’s capital investment fund that will support the
opening of the facility to be located at the Seasons in Avon at 137 W. Benchmark Road, Avon,
Colorado, 81620. The Town of Avon understands that a capital campaign effort is underway and final
plans for relocation will be made in the near future. The Town will submit payment upon receipt of
Vail Leadership Institutes’ written commitment to lease space from the Seasons for its programming
operations. If the capital funding is not achieved and the relocation does not occur, this Letter of
Agreement shall become null and void.
This Letter of Agreement is executed and made effective upon approval of the Avon Town Council
on the _____________ day of ____________, 2013.
Town of Avon: Vail Leadership Institute:
___________________________________ ___________________________________
Rich Carroll, Mayor John Horan-Kates, President
___________________________ ___________________________
Date Date
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Jared Barnes, Planner II
Date: June 11, 2013
Agenda Topic: Second Reading of Ordinance 13-06, Approving a Final PUD Amendment for Lot 1,
Brookside Park PUD, Eaglewood Subdivision
Introduction
Rick Pylman of Pylman & Associates, the Applicant, representing Riverview Park Associates, the Owner, is
requesting a Planned Unit Development (PUD) amendment to modify the allowed uses to include up to
twenty-four (24) residential dwelling units (The “Application”) on Lot 1, Brookside Park PUD, Eaglewood
Subdivision (the Property). The application is being processed as a Preliminary PUD amendment.
Attached to this memo are a Vicinity Map (Attachment A), Brookside Park PUD Amendment Application
(Attachment B), Town Council Finding of Fact for Preliminary PUD Amendment (Attachment C), Public
Input (Attachment D), PZC “Finding of Fact, Record of Decision, and Recommendation” (Attachment E),
Financial Analysis Memo from Scott Wright, Finance Director (Attachment F), and Draft Ordinance 13-06
(Attachment G).
Update
At their May 28th, 2013 meeting the Town Council approved the first reading of Ordinance 13-06.
The discussion during that meeting centered on the modifications made to the application
between the approval of the preliminary PUD application and the final PUD application.
Application Process (§7.16.020, AMC)
PUD Process
The Brookside Park PUD amendment is being processed as a Preliminary PUD Amendment and
subsequent Final PUD Amendment. During the fall of 2012, the Town processed a Preliminary PUD
Amendment for the subject property. The Preliminary PUD Amendment included two (2) public hearings
before the PZC and three (3) public hearings before the Town Council. The Application is requesting a Final
PUD Amendment approval.
Agency Referrals
Pursuant to AMC §7.16.020(c)(2), Staff referred the Application to Eagle County Planning Department,
Eagle River Water and Sanitation District, and the Eagle River Fire Protection District for Comments.
Comments were received from the Eagle River Water and Sanitation District and Eagle River Fire
Protection District and are included as Attachment D.
Public Notification
In order to comply with the Public Hearing and pertinent noticing requirements, a mailed notice was
provided to all property owners within 300’ of the property. In addition, a notice was published in the Vail
Daily newspaper on Friday, May 17, 2013.
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 2
Public Hearings
The PZC held a public hearing at their April 16th, 2013 meeting. The PZC review and recommendation is
outlined in this report. The Council will make the final decision on this Application after two (2) public
hearings.
Background
The Brookside Park PUD was approved via Ordinance 96-8. The Brookside Park PUD allowed the
development of forty-six (46) dwelling units and 30,000 square feet (sq. ft.) of commercial space. The
PUD development plan and accompanying plat subdivided the parcel into three (3) lots. Lot 1 consists of
the Brookside Center office building, which contained the entirety of the allowed commercial square
footage, as well as the pool and hot tub amenities for the entire PUD. Lot 2 is comprised of the Lodge at
Brookside Park, which was to be developed with thirty-two (32) multi-family dwelling units. Lot 3
contained the Townhomes at Brookside Park and was developed with fourteen (14) townhome dwelling
units. A regional trail and associated easement along the Eagle River was provided as a public benefit with
this approval.
The Brookside Park PUD was first amended via Ordinance 97-3 which increased the total allowed dwelling
units from forty-six (46) to fifty-four (54) and the maximum height for Lot 2 from sixty (60) feet to sixty-
three (63) feet. The additional eight (8) units were added to Lot 2 increasing it to forty (40) condominium
units. The amendment included a public benefit of a four (4) foot wide sidewalk along the southern
property line from the site entrance on Highway 6 to the eastern property line and then along CDOT right-
of-way to W. Beaver Creek Blvd, as well as three (3) deed-restricted housing units.
The Brookside Park PUD was amended a second time via Ordinance 97-13. This amendment included
“restaurants” as an allowed use for Lot 1. The Brookside Park PUD was amended a third time via
Ordinance 10-04. The amendment only pertained to Lots 2 and 3 and modified the PUD to include “short
term rentals” as a use by right. The attached application document (Attachment B) includes the original
PUD including the two (2) 1997 amendments (Ordinances 97-3 and 97-13) as well as the proposed PUD
amendment.
Proposed PUD Amendment
The Application proposes to amend the PUD to allow future flexibility to convert a portion or all of the
Brookside Center office building to residential dwelling units. The application proposes a maximum of
twenty-four (24) dwelling units in a loft style consisting of two (2) and three (3) bedroom configurations.
The amended PUD Guide (Attachment B) includes the above mentioned modifications as well as other
minor amendments, as discussed below.
Within the first few paragraphs of the proposed PUD, the applicant has modified language to: (1) correct
the legal description; (2) update the total allowed dwelling units to include the requested twenty-four (24)
additional units; and, (3) include residential in the intention of the PUD.
The first substantive amendment is the inclusion of Short Term Rentals as an allowable use by right. This
inclusion formalizes and expands upon Ordinance 10-04, as it only applied to Lot 2 and 3. The uses by right
are limited to Multi-Family dwelling units and Short Term Rentals, while timeshares and other forms of
interval ownership are not allowed.
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 3
The next amendment is the inclusion of Section I. This section provides a maximum density allocation per
lot for the Brookside PUD. As exhibited in this section, Lot 1 is allocated twenty-four (24) dwelling units,
Lot 2 is allocated forty (40) dwelling units, and Lot 3 is allocated fourteen (14) dwelling units. To better link
this with the mixed use development option, Section I(1) includes a caveat that the maximum density is
subject to Section J.
The final amendment is the addition of Section J. This section provides parameters for how the existing
Brookside Center building may convert to partial residential or completely residential. As stated in the
proposed PUD guide, Brookside Center would be limited to the following options if this application is
approved:
1. Up to 30,00 sq. ft. of useable commercial space;
2. A residential building of up to 24 dwelling units; or,
3. Commercial on the first floor and residential on the second floor.
Preliminary PUD Amendment
As discussed previously in this report, the process for the Application is two (2) steps: Preliminary PUD
Amendment; and, Final PUD Amendment. The Application is predicated on the previous approved
Preliminary PUD Amendment, which was approved by the Town Council pursuant to their Finding of Fact
(Attachment C). This approval allowed the Applicant to progress to the Final PUD Amendment process
and submit the Application. The Town Council made findings related to the review criteria and public
benefit as presented in Attachment C and also included conditions of approval as stated below:
(a) The proposed PUD Guide be amended to limit the number of residential units allowed to sixteen
(16) only in the instance the second story converts to residential uses, while the first floor
remains commercial.
(b) The proposed PUD Guide section H be amended to clarify the requested maximum density of
seventy-eight (78) dwelling units.
(c) A majority of the parking row adjacent to the southerly property line be the first section of
parking removed and landscaped with a full conversion from Commercial office to Residential
uses.
The Application substantially complies with the Preliminary PUD Amendment application. The only
modifications from that application were to addresses the conditions of approval from the Town Council
and none of which materially alter the application.
PZC Review
The PZC held a public hearing on April 16th, 2013 regarding the Application. They discussed the proposed
Application with respect to compliance with the Preliminary PUD, the public benefit criteria, and the
appropriateness of commercial uses in the Town Core. Ultimately the PZC approved a “Findings of Fact,
Record of Decision, and Recommendation” (Attachment E) with six (6) findings and one (1) condition.
Staff Analysis
Staff supports the above mentioned amendments as they provide greater clarity to the allowed uses
throughout the PUD as well as provide strict density allocations to each Lot. The inclusion of Section J also
assists in clarifying how Lot 1 would transition to include residential uses. Staff is of the opinion that the
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 4
amendment from commercial uses to residential uses will result in a reduced impact on the neighboring
properties as well as the Town as a whole for the reasons discussed below in this report.
First, the proposed modifications will ultimately result in a reduction in required parking due to the less
restrictive requirements of residential land uses. The chart below outlines the parking provided as of
today, while also depicting the required parking for the mixed-use building option and the full residential
building option.
Full Commercial
Building
1st Floor Commercial/ 2nd Floor
Residential
Full Residential Building
Parking
Required
• 120 (@ 4 per 1,000
SF);
• 90 (@ 3 per 1,000
SF)
• Commercial: 60 (@ 4 per 1,000
SF);
• Residential: 37 (@ 2 per unit + 5
guest spaces)
• Total: 97 spaces
• 54 (@ 2 per unit + 6 guest spaces)
Parking
Proposed
122 spaces (35 garage +
87 surface spaces)
• 97 spaces (35 garage remaining)
• 27 surface spaces converted to a
landscaped area
• 54 spaces (35 garage remaining)
• 68 surface spaces converted to a
landscaped area.
As seen in the above table, the applicant is indicating that when a conversion occurs some of the existing
surface spaces will be removed and replaced with a landscaped area or pocket park. The Application has
been revised from the Preliminary PUD review to indicate that the row of parking adjacent to Highway 6
will be either mostly removed or removed in its entirety depending on the conversion scenario and as
exhibited in Attachment B. In either instance, the current provided parking is sufficient to allow a
conversion of uses to occur on the site and reduce the overall need for parking spaces.
Second, as exhibited by Attachment B, the conversion from commercial office to residential uses will
reduce the traffic demand on the property. An analysis performed by Gary Brooks, Alpine Engineering,
states that a reduction in overall traffic volume will occur from one hundred and one (101) to thirty-five (35)
vehicle trips per day. He also quantifies the reduction in average vehicle trips per day for AM and PM Peak
Hours. In summary, the impact on traffic is less for residential uses than for commercial uses.
Third, a conversion from commercial uses to residential uses will result in a reduced need for attainable
housing. Section 7.20.100, Employee Housing Mitigation, sets forth the formulas for calculating attainable
housing requirements based on types of development, such as commercial, lodging/hotels, and
residential/property management. Although this section of code does not apply to a PUD amendment, it
provides a comparison on the intensity of uses with regard to housing needs and employee generations.
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 5
Full Commercial
Building
1st Floor Commercial/ 2nd
Floor Residential
Full Residential
Building
Brookside Park
PUD
Size of
Development
30,000 SF 15,000 SF and 16 Units 24 units 78 units
Jobs
Generated
(30000*2.8)/1000 =
84 jobs
(15000*2.8)/1000 = 42
(16*0.4) = 6.4
Total of 48.4 Jobs
(24*0.4) = 9.6 Jobs (78*0.4) = 31.2 Jobs
Employees
Generated
(84/1.2) = 70
Employees
(48.4/1.2) = 40.33
Employees
(9.6/1.2) = 8
Employees
(31.2/1.2) = 26
Employees
Households
Generated
(70/1.8) = 38.88
Households
(40.33/1.8) = 22.41
Households
(8/1.8) = 4.44
Households
(26/1.8) = 14.44
Households
Units
Required
(38.88*0.1) = 3.88
Units
(22.41*0.1) = 2.24 Units (4.44*0.1) = 0.44 Units (14.44*0.1) = 1.44
Units
As is exhibited in the table above, a reduction in commercial square footage has a direct result in a reduced
need for attainable housing. The existing commercial building would create the need for four (4)
attainable housing units, while the partial conversion would only create the need for two (2) units and the
full residential conversion would create the need for zero (0) units. Furthermore, if the same formulas
were applied to the entire Brookside Park PUD the total seventy-eight (78) units would require only a
single attainable housing unit. As stated previously in this report, the applicant has already provided three
(3) deed restricted housing units, which exceeds the amount required by the formula in the Municipal
Code.
The proposed modification will result in a need for additional water rights. Currently, the Brookside Center
building is allocated ten and three-tenths (10.3) single family equivalents (SFE). If the entire building
converts to twenty-four (24) dwelling units as proposed, the building will need twenty-four (24) SFEs. If
the project contains both commercial and residential uses, the SFE requirement will be more complicated
to calculate, but will likely result in a need for additional SFEs in an amount less than the full conversion
option. The applicant will be required to provide proof of sufficient water rights, through either dedication
or payment-in-lieu from the Upper Eagle Regional Water Authority (UERWA) prior to any issuance of a
building permit for conversion to residential uses.
Staff has reviewed the public comment received from the Eagle River Fire Protection District (ERFPD). The
Applicant has acknowledged that a review of the fire alarms and fire sprinklers will be addressed during a
building permit process. Staff has determined that the permissible uses pursuant to the PUD Guide would
not allow an industrial application; therefore the second concern is inapplicable.
Staff has also performed a financial analysis (Attachment F). In summary, the conversion from Commercial
uses to residential uses will result in a decrease in property taxes of approximately one-third (1/3). The
conversion will provide an initial increase in Real Estate Transfer Tax, which will have an on-going
component to it as properties are resold. The inclusion of short-term rentals, as an allowable use, will
increase the sales and accommodation taxes the Town receives, but there is no metric to quantify that
amount.
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 6
PUD Review Criteria
Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the PZC shall consider a number of review criteria when
evaluating the Application. The following criteria must be considered when forming the basis of a
recommendation:
(i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or incorporates
creative site design such that it achieves the purposes of this Development Code and represents an
improvement in quality over what could have been accomplished through strict application of the
otherwise applicable district or development standards. Such improvements in quality may include, but
are not limited to: improvements in open space provision and access; environmental protection;
tree/vegetation preservation; efficient provision of streets, roads, and other utilities and services; or
increased choice of living and housing environments.
Staff Response: The stated purposes of §7.04, Development Code, AMC, and §7.16.060, PUD, AMC,
include statements regarding the implementation of the Comprehensive Plan; regulating intensity of
use; avoiding increased demands on public services and facilities; and provide for compatibility with the
surrounding area, among other statements. PUD zoning by nature of its composition inherently
affords opportunities to provide creative site design and planning.
The proposed amendment provides flexibility going forward as it allows for both residential and
commercial uses, but provides a set amount of commercial square footage and maximum number of
residential units. The amendment to this zone district brings the standards more in line with mixed-use
districts that allow both commercial and residential uses. During the Preliminary PUD review the Town
Council determined through their recommendation (Attachment C) that the Application confers a
substantial benefit to the Town: by lessening the impact on the need for attainable housing; the
reduction is surface parking and its replacement with landscaped areas; and that the previously
provided public benefits: three (3) deed restricted units; a regional trail and associated easements; and,
a sidewalk along the southern property line, were sufficient for the PUD.
(ii) The PUD rezoning will promote the public health, safety, and general welfare;
Staff Response: The Application does not negatively affect the public health, safety and welfare. The
inclusion of residential uses modifies the Brookside Center building to become more compatible with
the immediately adjacent multi-family residential uses.
(iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this Development
Code, and the eligibility criteria outlined in §7.16.060(b);
Staff Response: The proposed PUD amendment appears to meet all of the eligibility criteria as outlined
in §7.16.060(b). §7.16.060(b)(5), Public Benefit, states: “A recognizable and material benefit will be
realized by both the future residents and the Town as a whole through the establishment of a PUD,
where such benefit would otherwise be infeasible or unlikely.” As was previously discussed in Review
Criteria #1, the Town Council determined during the Preliminary PUD that substantial public benefits
were already provided. Furthermore, the determination of the PZC and Town Council was the
Application reduced the impacts on the property.
The Avon Comprehensive Plan includes this property within District 20: River Residential District. It is a
low priority district and some of the planning principals include:
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 7
• Encourage redevelopment to take into consideration the objectives of the Eagle River Watershed
Management Plan including river setbacks and best practices for development in proximity of the
river;
• Encourage the further connection and enhancement of the ECO Trail;
• Plant indigenous trees and shrubs to screen existing large residential buildings along US Highway 6
and provide landforms and landscaping between residences and US Highway 6;
• Enhance the pedestrian experience by adding sidewalks along all roads on the valley floor.
The current development and PUD takes into consideration these planning principals. The previous
PUD establishment and amendments provided a development plan that included a regional trail along
the Eagle River, a sidewalk along the southern property line, and a development configuration that
responded to the river and adjacent properties.
The Future Land Use map included in the Comprehensive Plan identifies Lot 1 as “Neighborhood
Commercial”. The intent of this district is to allow for a mix of residential, small-scale neighborhood
serving commercial and civic uses. It specifically states that townhouse and multi-family units are
allowed within this district. The dimensional standards do not specify a maximum density or units per
building, but the subsection discussing water rights dedication identifies seven and one-half (7.5)
dwelling units (DU) per acre. The PUD amendment proposes eleven and four-tenths (11.4) DU/acre,
which exceeds the maximum density for the NC district. The zoning code allows maximum densities as
follows: Residential Low Density (RLD) – seven and one-half (7.5) DU/acre; Residential Medium Density
(RMD) – fifteen (15) DU/acre; Residential High Density (RHD) – twenty (20) DU/acre; Residential High
Density Commercial (RHDC) – twenty (20) DU/acre. As seen the proposed density falls within the RMD
district and is less than the previous zoning on the property, RHDC. Furthermore, it is compatible with
the surrounding properties’ density, as follows: Sunridge Phase II – approximately twenty (20) DU/acre;
Lodge at Brookside – thirty-three (33) DU/acre; and, Townhomes at Brookside – eleven (11) DU/acre.
Following is a list of Goals and Policies from the Comprehensive Plan to consider when reviewing in light
of this amendment request:
Goal C1. Provide a balance of land uses that offers a range of housing options, diverse commercial
and employment opportunities, inviting guests accommodations, and high quality civic and
recreational facilities, working in concert to strengthen Avon’s identity as both a year-round
residential community and as a commercial, tourism and economic center.
Policy C.2.1. Promote a wide range of residential uses including single family, duplex, multifamily,
and vertically integrated residential units (housing on the upper floors of mixed-use buildings)
throughout the town.
Policy D.2.3. Improve the streetscape along US Highway 6 to strengthen Avon’s overall community
image and to stimulate future development and redevelopment by providing a more attractive and
cohesive street edge.
Policy E.1.2. Permit home occupations and live/work opportunities where there is minimal negative
impact to the neighborhood to reduce traffic/commuting impacts in the community and provide
affordable options for local entrepreneurs.
Staff Response: The proposed PUD amendment will increase the opportunities for housing
options by allowing an additional twenty-four (24) multi-family dwelling units as well as guest
accommodations through the inclusion of Short Term Rentals as an allowed use. The lack of
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 8
inclusion of Timeshare uses, will ensure that these units are wholly owned and could increase their
potential for year-round residents. The allowance for conversion of the second story to residential
uses, while maintaining the commercial uses on the first floor, will create the vertically integrated
residential units discussed in Policy C.2.1. As stated previously in this report, the conversion from
commercial uses to residential uses will result in a reduction in required parking and the
Application proposed to reduce the amount of surface parking and return some of the area to a
landscaped state, specifically along US Highway 6. Although the PUD amendment doesn’t
commit to a specific live/work design, the allowance for the second story residential units with the
ground level commercial office provides an opportunity for live/work scenarios.
(iv) Facilities and services (including roads and transportation, water, gas, electric, police and
fire protection, and sewage and waste disposal, as applicable) will be available to serve the
subject property while maintaining adequate levels of service to existing development;
Staff Response: As proposed, the PUD amendment has no effect on most services. As mentioned
previously in this report, Staff believes additional water rights will be required to adequately serve the
Property when a conversion to residential units begins.
(v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon the natural environment, including air, water, noise, storm water
management, wildlife, and vegetation, or such impacts will be substantially mitigated;
Staff Response: The property was rezoned in 1996 from Residential High Density Commercial (RHDC)
to PUD. Ordinance 96-8 clearly states that the RHDC zoning and any of its associated development
rights were eliminated with this rezoning, therefore no underlying zoning exists. When compared to
the existing PUD, the proposed PUD amendment will not result in any adverse impacts upon the
natural environment as setbacks from the Eagle River have been established and are preserved. In
addition, the reduction of asphalt and increase of landscaped area should reduce the demand on the
storm water management that exists on the property.
(vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon other property in the vicinity of the subject tract; and
Staff Response: The approval of the PUD amendment would reduce any adverse impacts that
commercial office has on adjacent residential properties. In addition, the increase in residential uses is
consistent with adjacent properties including: Lodge at Brookside Park, Townhomes at Brookside Park,
and Sunridge Condominiums.
(vii) Future uses on the subject tract will be compatible in scale with uses or potential future
uses on other properties in the vicinity of the subject tract.
Staff Response: As proposed, the Application will either increase the compatibility with uses or
potential future uses on other properties in the vicinity, or will result in no change to uses as currently
exist.
Lot 1, Brookside Park PUD – Brookside Park Final PUD Amendment Page 9
Council Action:
If the Council is satisfied with the PZC recommendation and Application, they should approve the Second
Reading of Ordinance No: 13-06 after conducting a public hearing.
Attachments:
A: Vicinity Map
B: Application Materials
C: Town Council approved “Findings of Fact”
D: Public Comment
E: PZC “Findings of Fact, Record of Decision, and Recommendation”
F: Financial Analysis Memo from Scott Wright, Finance Director
G: Draft Ordinance 13-06
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Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Atttachment B
Brookside Park PUD Guide as proposed for Final PUD revision
June 2012January 2013
(revisions indicated in a strikethrough/underline format) The following Planned Unit Development Guide will serve as the governing regulations which will control development on Lot 1, Eaglewood Subdivision, Brookside Park, A Resubdivision of Lot 1, Eaglewood Subdivision, Town of Avon, Eagle County, Colorado, known as the Brookside Park PUD. This PUD Guide is intended to become a part of the Brookside Park Planned Unit Development and serve as the “Zone District Regulations” for the PUD as required by Section 17.20.110.1 of the Municipal Code of the Town of Avon. The Brookside Park PUD authorizes a total 54 78 dwelling units and 30,000 useable square feet of commercial space on 4.7 acres of land within the Town of Avon, Eagle County, Colorado. Development within the PUD is administered by the Town of Avon through the provisions of this PUD Guide. Building construction within the PUD is governed by the applicable Town of Avon ordinances, rules and regulations. Intention The intention of the Brookside Park PUD is to provide for an architecturally
integrated residential or mixed use residential and commercial campus with
appropriate uses, development standards and regulatory controls.
B. Definitions
All terms used in this PUD Guide shall be as defined in Chapter 7, Development
Code of the Town of Avon Municipal Code unless otherwise defined in this
section of the PUD Guide.
C. Allowable Uses by Right – Residential
1. Multiple Family dwelling units including townhomes,
condominiums and apartments.
2. Short term rentals
D. Allowable Uses by Right – Commercial
Building A contains 30,000 useable square feet that is designated as
commercial space. The following uses are allowed within the areas designated as
commercial on the Building A floor plans that are incorporated within this PUD
Development Plan.
1. Professional Offices including Design Studios
2. Medical Outpatient Offices
3. Retail/Wholesale Furniture Stores and Showrooms
4. Retail/Wholesale Home Furnishing Stores and Showrooms
5. Retail/Wholesale Architectural Products Stores and Showrooms
Atttachment B
6. Retail/Wholesale Household Appliance Product Stores and Showrooms
7. Antique Stores and Showrooms
8. Art Galleries/Frame Shops
9. Restaurants
E. Allowable Uses By Right – General
1. Recreation Amenities including swimming pools and hot tubs
F. Special Review Uses
1. Home Occupations
2. Retail Stores not specifically listed as a Use by Right.
3. Church
4. On-Site Rental Office
G. Accessory Uses
1. Interior and Exterior uses customarily accessory to residential and
Commercial uses shall be allowed.
H. Development Standards
Maximum Density: 54 78 dwelling units
Maximum Useable Commercial Area: 30,000 Square Feet
Building Height: 60 feet
Minimum Building Setbacks:
Front: 25 Feet
Side: 7.5 Feet
Rear: 10 Feet
Eagle River: 30 Feet as defined in Section 17.50.110 of
the Town of Avon Municipal Code.
Building setbacks shall apply to the PUD perimeter
property line only. Internal lines created for phasing
delineation of for individual unit ownership shall not apply.
Maximum Site Coverage: 50%
Minimum Landscape Area: 20%
Parking:
Residential: 2 spaces per dwelling unit
10 guest spaces
Commercial: 4.3 spaces per 1,000 square feet of useable
floor area
I. Density Allocation
Lot 1, Brookside Center 24 dwelling units (subject to
Section J)
Lot 2 The Lodge at Brookside Park 40 dwelling units
Lot 3 The Townhomes at Brookside Park 14 dwelling units
Formatted: List Paragraph, Numbered +
Level: 1 + Numbering Style: I, II, III, … +
Start at: 1 + Alignment: Left + Aligned at:
0.5" + Indent at: 1"
Formatted: Bullets and Numbering
Atttachment B
J. Brookside Center
The Brookside Center building may consist of up to 30,000 square feet of
useable commercial space or as a residential building of up to 24 dwelling
units, or may be a mixed use option of the allowed commercial uses on the
first floor and residential on the second floor.
In the mixed use option described in the preceding paragraph the
maximum density shall be no more than 16 units located on the second
floor of the building. The units shall be restricted to a maximum of 8
studio units and 8 one-bedroom units, or in a configuration that creates a
residential parking demand of no more than 29 parking spaces.
Formatted: List Paragraph, Indent: Left: 1",
First line: 0"
Formatted: Indent: Left: 1"
Formatted: Font: Not Italic
Atttachment B
FINDINGS OF FACT AND RECOMMENDATIONS
BROOKSIDE PARK PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT
Page 1 of 3
AVON TOWN COUNCIL
FINDINGS OF FACT
CONCERNING THE PRELIMINARY PLANNED UNIT DEVELOPMENT
AMENDMENT APPLICATION FOR THE BROOKSIDE PARK PUD
The following findings of fact and recommendations are made in accordance with Avon
Municipal Code Section 7.16.060(e)(3), Reviewing Authority:
1. Application Submitted. A preliminary PUD Application (the “Application”), consisting
of an Amended Planned Unit Development Guide for Brookside Park (“Amended PUD
Guide”), was submitted to the Community Development Department of the Town of
Avon (the “Town”) on June 20, 2012 by Rick Pylman of Pylman & Associates,
representing the owners of the Brookside Center building (the “Applicant”).
2. Determination of Completeness. Pursuant to Avon Municipal Code (“AMC”)
§7.16.020(c)(1), a determination of completeness was submitted to the Applicant by
phone from Jared Barnes of the Community Development Department on June 29, 2012,
within ten (10) days of the application submittal.
3. Referral to other Agencies. The Amended PUD Guide was referred electronically via
the Town’s website, www.avon.org/referral, to other agencies for review and comment
on July 17, 2012 pursuant to AMC §7.16.020(c)(2). The following agency was notified
for referral: Town of Avon Engineering Department.
4. Notice of Public Hearing. On July 27, 2012, pursuant to §7.16.020(d), a notice of
public hearing was published in The Vail Daily for the August 7, 2012 Planning &
Zoning Commission meeting to review the Brookside Park Preliminary Planned Unit
Development application. In addition, a mailed notice was sent to all property owners
within 300 feet of the property boundaries.
5. Staff Report to PZC. Jared Barnes submitted a Staff Report to the PZC dated August 3,
2012.
6. Preliminary Public Hearing before the Planning and Zoning Commission. On
August 7, 2012 the PZC held a public hearing on the Application.
7. Continued Preliminary Public Hearing before the Planning and Zoning
Commission. On August 21, 2012 the PZC held a continued public hearing on the
Application. The PZC took action to provide the recommendation, findings, and
conditions to the Town Council.
Attachment C
FINDINGS OF FACT AND RECOMMENDATIONS
BROOKSIDE PARK PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT
Page 2 of 3
8. Notice of Public Hearing. On August 31, 2012, pursuant to §7.16.020(d), a notice of
public hearing was published in The Vail Daily for the September 11, 2012 Town
Council meeting to review the Brookside Park Preliminary Planned Unit Development
application. In addition, a mailed notice was sent to all property owners within 300 feet
of the property boundaries.
9. Staff Report to Town Council. Jared Barnes submitted a Staff Report to the Town
Council dated September 11, 2012.
10. Preliminary Public Hearing with Town Council. On September 11, 2012 the Avon
Town Council held a public hearing on the Application and reviewed the Application.
11. Continued Preliminary Public Hearing before the Town Council. On September 25,
2012 the Avon Town Council held a continued public hearing on the Application. The
Avon Town Council took action to provide the recommendation, findings, and conditions
for the Application.
12. Review Criteria. The Avon Town Council has considered the Review Criteria for a
Preliminary PUD application set forth in Avon Municipal Code §7.16.060(e)(4).
13. Findings of Fact related to the Application. The Town Council has considered the
Staff Report from Jared Barnes dated September 25, 2012, public comments, applicant
testimony, and makes the following Findings of Fact related to the Preliminary PUD
Application:
Specific Findings:
(1) The PUD is established and the previously provided public benefits, as well as the
proposed public benefits, satisfy the requirement for public benefits as outlined in
§7.16.060(b)(5);
(2) The PUD amendment meets the review criteria for a Preliminary PUD as outlined
in §7.16.060(e)(4) for the reasons stated in Jared Barnes’ memorandum dated
October 5, 2012.
(3) The reduction in surface parking and addition of a pocket park and/or landscaping
is a public benefit for the residents of the Brookside Park PUD;
(4) The reduced impact on the need for attainable housing is a public benefit for the
Town of Avon; and,
(5) The Town Council finds that the PUD Amendment will not create additional
impacts if the conditions below are satisfied, that the original public benefits were
sufficient for the PUD as originally approved, and that therefore, the Town
Council finds that there is no need to require the applicant to provide additional
public benefits.
Attachment C
FINDINGS OF FACT AND RECOMMENDATIONS
BROOKSIDE PARK PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT
Page 3 of 3
Conditions:
(a) The proposed PUD Guide be amended to limit the number of residential units
allowed to sixteen (16) only in the instance the second story converts to
residential uses, while the first floor remains commercial.
(b) The proposed PUD Guide section H be amended to clarify the requested
maximum density of seventy-eight (78) dwelling units.
(c) A majority of the parking row adjacent to the southerly property line be the first
section of parking removed and landscaped with a full conversion from
Commercial office to Residential uses.
Attachment C
1
Jared Barnes
From:Gail Mcfarland <gmcfarland@eagleriverfire.org>
Sent:Wednesday, March 13, 2013 2:40 PM
To:Jared Barnes
Cc:karl bauer
Subject:FW: Brookside Park PUD Referral
Attachments:L1 Brookside Park PUD Referral 021513.pdf
Good Afternoon Jared,
Here are our comments for the project at Brookside Park PUD:
1. With the extent of the remodel proposed, both the fire alarm and fire sprinkler systems will need to be
evaluated and brought up to current codes.
2. If live/work units are approved, then the work portion of the units should be limited to office or
professional type services only. No industrial applications or hazardous materials storage should be
allowed.
Please contact me with any questions.
Thanks and have a great day.
Gail McFarland, Fire Inspector, PIO
Eagle River Fire Protection District
PO Box 7980
Avon, Co 81620
Phone: 970-748-4739
Fax: 970-949-7965
www.eagleriverfire.org
Eagle River Fire Protection District is a professional fire service agency and proudly serves Camp Hale, Tennessee Pass,
Redcliff, Minturn, EagleVail, Avon, Mountain Star, Wildridge, Beaver Creek (Contractual agreement), Bachelor Gulch,
Arrowhead, Homestead, Edwards, Lake Creek, Singletree, Pilgrim Downs, Cordillera, Bellyache Ridge, Red Sky Ranch and
the portions of I‐70, Hwy 6 & 24. The District does NOT serve the Town of Vail, nor are the two departments associated
with one another.
From: karl bauer
Sent: Wednesday, February 20, 2013 8:08 PM
Attachment D
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TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Scott Wright, Finance Director
Date: May 21, 2013
Re: Financial Analysis of Proposed Amendment to Brookside Park, Lot 1 PUD
Summary:
The following revenue analysis of the proposed conversion of Brookside Park is based upon the
following assumptions:
• Total first floor units – 10; total square footage – 15,190
• Total second floor units 10, total square footage – 14,474
• Price per square foot - $400
The financial analysis below assumes conversion of the entire building from commercial to
residential. If only one floor of the building is converted, the impacts are approximately one-half
of the amounts stated below. The summary below provides the financial analysis of the
following revenues: property taxes, public accommodations taxes and sales taxes, and real
property transfer taxes.
Financial Analysis:
Property Taxes
Brookside Park, Lot 1 currently is assessed in 2013 as commercial with a total market value of
$6,013,530 and an assessed value of $1,743,920. Based on Avon’s general operating mill rate of
8.956, property taxes generated in 2014 will equal $15,618.
Based on an estimate of $400 per square foot, the current land value of $2,009,590, and a total
residential square footage of 29,664, the market value of the converted property would be
$14,423,260. Based on the residential assessment ratio of 7.96% the assessed value would be
$1,148,091 and the estimated property taxes generated for the Town would be $10,282 or a decrease
of approximately $5,336.
Attachment F
Page 2
Real Estate Transfer Tax
Assuming a sale price of $400 per square foot approximately $237,312 in real estate transfer taxes will
be generated on the first-time sales of the residential units. This figure could be lower if purchasers
are eligible for the exemption for full-time residents of up to $3,200 per unit.
Sales and Accommodation Taxes
Currently the Brookside Park, Lot 1 PUD does not allow for short-term rentals. If the PUD is
amended to allow for short-term rentals, the Town’s 4% sales tax and 4% public accommodations tax
would apply to room rentals for stays of 30 days or less. There is not data available to estimate the
amount of sales tax and accommodations tax that might be collected. However, it should be noted
that the Residences at Brookside and the Lodge at Brookside both have units that are actively rented
out on a short-term basis.
Municipal Costs of Services
With only 20 residential units proposed with this conversion, and no impact to Town infrastructure,
the Town’s budget for operations and maintenance costs are not expected to be impacted.
Attachment F
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 1 of 6
TOWN OF AVON, COLORADO
ORDINANCE 13-06
SERIES OF 2013
AN ORDINANCE APPROVING A FINAL PUD AMENDMENT FOR BROOKSIDE
PARK ON LOT 1, BROOKSIDE PARK PUD, EAGLEWOOD SUBDIVISION, TOWN
OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation
and body politic organized under the laws of the State of Colorado and possessing the maximum
powers, authority and privileges to which it is entitled under Colorado law; and
WHEREAS, Rick Pylman, Pylman & Associates (the “Applicant”) on behalf of Riverview
Park Associates (the “Owner”) has submitted a Final PUD Application (the “Application”) to
modify the approved PUD development rights to allow for the conversion of commercial office
space to either (a) 24 dwelling units, or (b) 16 dwelling units and 15,000 square feet of
commercial office space; and
WHEREAS, the Planning and Zoning Commission held public hearings on April 16, 2013
after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d),
Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking
action; and
WHEREAS, the Planning and Zoning Commission recommended to the Town Council
approval of the Application through the Planning and Zoning Commission Findings of Fact,
Record of Decision, and Recommendations dated April 16, 2013; and
WHEREAS, pursuant to Section 7.16.060(f)(5), Review Criteria, and Section
7.16.060(e)(4), Review Criteria, Avon Municipal Code, the Town Council has considered the
applicable review criteria for the Application; and
WHEREAS, the Town Council held public hearings on May 28, 2013 and June 11, 2013
after posting notice of such hearing in accordance with the requirements of Section 7.16.020(d),
Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking
action; and
WHEREAS, the Town Council finds that the health, safety and welfare of the Avon
community will be enhanced and promoted by the 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 with 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.
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 2 of 6
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Brookside Park PUD Amendment. The Brookside Park final PUD amendment
application for Lot 1, Brookside Park PUD, Eaglewood Subdivision is hereby approved as
follows:
A. The Brookside Park PUD is amended for Lot 1, Brookside Park PUD, Eaglewood
Subdivision to modify the allowable uses and densities as presented in Exhibit A.
B. Prior to the issuance of a Building Permit, the Applicant shall provide proof of
adequate water rights from the Upper Eagle Regional Water Authority.
C. Prior to conversion, the Applicant shall apply for a Minor Design and Development
application proposing site modifications that are in substantial conformity to the
conceptual site plans as presented during the Final PUD Amendment Application.
Section 3. Correction of Errors. Town Staff is authorized to insert proper dates, references
to recording information and make similar changes, and to correct any typographical,
grammatical, cross-reference, or other errors which may be discovered in any documents
associated with this Ordinance and documents approved by this Ordinance provided that such
corrections do not change the substantive terms and provisions of such documents.
Section 4. 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 5. Effective Date. This Ordinance shall take effect thirty days after final adoption in
accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. 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.
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 3 of 6
Section 7. 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 at the Avon Town Hall,
Avon Recreation Center and Avon Public Library, 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. The Town Clerk is further ordered to publish a notice stating a
vested property right has been created in accordance with Section 7.16.140(d)(2) of the Avon
Municipal Code.
Section 8. Final Action. Approval and final adoption of this Ordinance on second reading
constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum
seeking reconsideration of the decision of the Town Council with respect to this Ordinance and
matters approved hereby in accordance with Section 7.16.020(f)(5) of the Avon Municipal Code
and in accordance with Chapters VI and VII of the Avon Home Rule Charter.
[EXECUTION PAGE FOLLOWS]
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 4 of 6
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on
May 28, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the
Town Council on June 11, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal
Building, One Lake Street, Avon, Colorado.
____________________________
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 Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on 11th day of June, 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
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 5 of 6
Exhibit A to Ordinance 13-06
Brookside Park PUD Guide
The following Planned Unit Development Guide will serve as the governing regulations which will
control development on Brookside Park, A Resubdivision of Lot 1, Eaglewood Subdivision, Town of
Avon, Eagle County, Colorado, known as the Brookside Park PUD.
This PUD Guide is intended to become a part of the Brookside Park Planned Unit Development and serve
as the “Zone District Regulations” for the PUD as required by Section 17.20.110.1 of the Municipal Code
of the Town of Avon.
The Brookside Park PUD authorizes a total 78 dwelling units and 30,000 useable square feet of
commercial space on 4.7 acres of land within the Town of Avon, Eagle County, Colorado. Development
within the PUD is administered by the Town of Avon through the provisions of this PUD Guide.
Building construction within the PUD is governed by the applicable Town of Avon ordinances, rules and
regulations.
A. Intention
The intention of the Brookside Park PUD is to provide for an architecturally integrated residential
or mixed use residential and commercial campus with appropriate uses, development standards
and regulatory controls.
B. Definitions
All terms used in this PUD Guide shall be as defined in Chapter 7, Development Code of the
Town of Avon Municipal Code unless otherwise defined in this section of the PUD Guide.
C. Allowable Uses by Right – Residential
1. Multiple Family dwelling units including townhomes, condominiums and
apartments.
2. Short term rentals
D. Allowable Uses by Right – Commercial
Building A contains 30,000 useable square feet that is designated as commercial space. The
following uses are allowed within the areas designated as commercial on the Building A floor
plans that are incorporated within this PUD Development Plan.
1. Professional Offices including Design Studios
2. Medical Outpatient Offices
3. Retail/Wholesale Furniture Stores and Showrooms
4. Retail/Wholesale Home Furnishing Stores and Showrooms
5. Retail/Wholesale Architectural Products Stores and Showrooms
6. Retail/Wholesale Household Appliance Product Stores and Showrooms
7. Antique Stores and Showrooms
8. Art Galleries/Frame Shops
9. Restaurants
E. Allowable Uses By Right – General
1. Recreation Amenities including swimming pools and hot tubs
Ord 13-06 Brookside Park Final PUD Amendment
May 28, 2013
Page 6 of 6
F. Special Review Uses
1. Home Occupations
2. Retail Stores not specifically listed as a Use by Right.
3. Church
4. On-Site Rental Office
G. Accessory Uses
1. Interior and Exterior uses customarily accessory to residential and Commercial
uses shall be allowed.
H. Development Standards
Maximum Density: 78 dwelling units
Maximum Useable Commercial Area: 30,000 Square Feet
Building Height: 60 feet
Minimum Building Setbacks:
Front: 25 Feet
Side: 7.5 Feet
Rear: 10 Feet
Eagle River: 30 Feet as defined in Section 17.50.110 of the Town of
Avon Municipal Code.
Building setbacks shall apply to the PUD perimeter property line only.
Internal lines created for phasing delineation of for individual unit
ownership shall not apply.
Maximum Site Coverage: 50%
Minimum Landscape Area: 20%
Parking:
Residential: 2 spaces per dwelling unit
10 guest spaces
Commercial: 4.3 spaces per 1,000 square feet of useable floor area
I. Density Allocation
Lot 1, Brookside Center 24 dwelling units (subject to Section J)
Lot 2 The Lodge at Brookside Park 40 dwelling units
Lot 3 The Townhomes at Brookside Park 14 dwelling units
J. Brookside Center
The Brookside Center building may consist of up to 30,000 square feet of useable
commercial space or as a residential building of up to 24 dwelling units, or may be a
mixed use option of the allowed commercial uses on the first floor and residential on the
second floor.
In the mixed use option described in the preceding paragraph the maximum density shall
be no more than 16 units located on the second floor of the building. The units shall be
restricted to a maximum of 8 studio units and 8 one-bedroom units, or in a configuration
that creates a residential parking demand of no more than 29 parking spaces.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Matt Pielsticker, AICP, Senior Planner
Date: June 6, 2013
Agenda Topic: Second Reading of Ordinance 13‐07, Approving a Minor PUD Amendment for Lot 25,
Block 2, Wildridge Subdivision
Introduction
The Applicant, George Plavec, is requesting a Planned Unit Development (PUD) Amendment
(“the Application”) to modify the allowed building type for Lot 25, Block 2, Wildridge Subdivision
(“the Property”). Currently, four (4) dwelling units, in the form of a Fourplex building, is
permitted by right. The proposal is for the ability to develop the Property with two (2) duplexes.
The application is being processed as a Minor PUD Amendment.
Attached to this report is a Vicinity Map (Attachment A), the Application (Attachment B), PZC
“Finding of Fact, Record of Decision, and Recommendation” (Attachment C), written Public
Comments (Attachment D), and draft Ordinance (Attachment E) No. 13‐07, which reflects PZC’s
recommendation.
On May 28, 2013 Council approved the first reading of Ordinance No. 13‐07 with direction to make
minor changes to the allowable building footprint sizes. Council directed Staff to return for a
Public Hearing and second reading on June 11, 2013.
Application Process (§7.16.020, AMC)
Minor PUD Amendment Process
This Application is processed under §7.16.060(h), Amendments to a Final PUD, Avon Municipal
Code (“AMC”). This code section refers to §7.16.020(g), Minor Amendments, AMC; which allows
the Director to refer the Application to both the PZC and Town Council for public hearings.
Agency Referrals
Pursuant to AMC §7.16.020(c)(2), Referral to Other Agencies, AMC, Staff referred the Application
to the Eagle County Planning Department, Eagle River Water and Sanitation District, and the
Eagle River Fire Protection District for Comments. No outside agency comments were received.
Public Notification
In order to comply with the Public Hearing and pertinent noticing requirements, a mailed notice
was provided to all property owners within 300’ of the property. The list of adjacent property
owners is included within the Application. Additionally, a notice was published in the Vail Daily
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 2
newspaper. Two written comments were received in response to the mailed notice. These
comments are attached to this report as Attachment C.
Public Hearings
The PZC held a public hearing at their May 7th, 2013 meeting. The PZC review and
recommendation is outlined elsewhere in this report. The Council will make the final decision on
this Application after two public hearings.
Background
Benchmark Properties created the Wildridge Subdivision in 1979, shortly after the incorporation
of the Town of Avon on February 28, 1978. The Plat was amended a few times with the most
recent version being “Wildridge Replat No. 2”. According to the Wildridge Final Plat for Wildridge
and Wildwood Subdivisions (currently Mountain Star PUD and Subdivision), the overall
development concept was for “abundant open space recreation areas around lots” with a
density of “barely one dwelling unit per acre”.
Proposed PUD Amendment
The Property is zoned PUD and is included in the Wildridge Subdivision. Included in the Wildridge
Subdivision and PUD Plat is a Land Use Summary table, which breaks down the number of units
for each individual lot, and also summaries the type of construction permitted on each property.
On the following page (Exhibit 1) is an excerpt from the Wildridge PUD, with the pertinent
Property information highlighted in yellow. The Property is entitled four (4) units in the form of
one (1) Fourplex structure.
The Application (Attachment B) would modify the Land Use Summary table (Exhibit 1) to include
“2 Duplexes” instead of “Fourplex,” similar to Lot 39, Block 4, which is permitted “2 duplexes or 1
Fourplex.” All other zoning standards (i.e. setbacks, building height, and site coverage) would
remain the same; this property contains 25’ front setbacks, 10’ side/rear setbacks and a 35’
maximum allowable height. There are two fronts to the Property as it abuts two roads, Old Trail
and June Creek Roads.
The Application materials (Attachment B) includes a narrative, response to the mandatory review
criteria, and preliminary level design plans for a two (2) duplex development scenario. Also
included are two (2) Fourplex options with varied layouts intended to provide a massing
comparison of the proposal to the underlying zoning for the Property.
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 3
Exhibit 1 –Wildridge Replat No. 2 – Land Use Summary
PZC Review
The PZC held a public hearing on May 7th, 2013 regarding the Application. They discussed the
proposed Application with respect to the existing zoning, impacts on the property and
neighboring property, public input, and compliance with the applicable codes.
There were two public comments (Attachment C) received: one from Chad Anderson and one
from Larry Wolfe, both neighboring property owners. Chad voiced support for separating the
Fourplex into two (2) structures, and requested that the units be spread further apart to afford
views of the ski resort and New York Mountains. He also preferred a different driveway
configuration. Larry Wolfe voiced support for the Application as submitted.
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 4
Public comments were also received from Guy Cutia, representing Scott Black, an adjacent
property owner. His concerns were over building height and the possibility of restricting views.
The PZC discussed the public comments and recognized that there were no protected view
corridors in the subdivision. The Commission acknowledged that the building setbacks and the
building height were not changing with the proposal.
Ultimately the PZC approved a “Findings of Fact, Record of Decision, and Recommendation”
(Attachment D) with six (6) Findings and two (2) conditions. The conditions are as follows:
(1) The building footprints are limited to 3,400 gross sq. ft. (including garages).
(2) Building separation will be at least fifteen feet (15’) between structures.
The recommended conditions of approval were added to guarantee that the “light and air” and
resulting advantages of separating the building into two structures are realized when the
property is developed. The footprint limitation for each structure is slightly larger than the
conceptual footprint design in the Application materials; the recommended building separation
(15’) is a Development Code requirement and approximately four feet (4’) more separation than
shown in the architectural plans. The conceptual duplex design in the Application shows a ten
foot, nine inch (10’9”) building separation.
Staff Analysis
After the initial review of the Application, Staff worked with the Applicant to define acceptable
limitations on building footprint sizes, which would create operative building envelopes. This
type of approach not only affords the property owner some flexibility in the location of the
structures once detailed access design and building design are pursued, but these limitations also
ensure that increased space between structures will be realized.
Staff supports the Application as it would result in a reduced impact on the neighboring
properties, and allows for a flexible development pattern in the form of two (2) structures in
place of one (1). The massing is improved with more opportunity for building articulation and the
introduction of light and air between units. After reviewing the PUD review criteria below, Staff
(and PZC) finds the Application in conformance with the purpose of the development code; there
appears to be no added impact to neighboring properties. The development pattern in the area
is diverse, with emphasis on clustered single‐family construction, duplexes, and one triplex
immediately to the south.
PUD Review Criteria
Pursuant to §7.16.060(e)(4), Review Criteria, AMC, the Council shall consider a number of review
criteria. The following criteria must be considered when acting on a PUD Amendment:
(i) The PUD addresses a unique situation, confers a substantial benefit to the Town, and/or
incorporates creative site design such that it achieves the purposes of this Development Code
and represents an improvement in quality over what could have been accomplished through
strict application of the otherwise applicable district or development standards. Such
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 5
improvements in quality may include, but are not limited to: improvements in open space
provision and access; environmental protection; tree/vegetation preservation; efficient
provision of streets, roads, and other utilities and services; or increased choice of living and
housing environments.
Staff Response: The stated purposes of §7.04, Development Code, AMC, and §7.16.060, PUD,
AMC, includes statements regarding the implementation of the Comprehensive Plan;
regulating intensity of use; avoiding increased demands on public services and facilities; and
providing for compatibility with the surrounding area, among other statements.
The proposed amendment does not increase demands on public services, and provides
compatible building layouts with the surrounding area. The Application also represents an
improvement in quality over what could have been accomplished through the strict
application of the “Fourplex” designation in the existing PUD.
(ii) The PUD rezoning will promote the public health, safety, and general welfare;
Staff Response: The Application does not negatively affect the public health, safety and
welfare. The inclusion of duplex structures on the Property is compatible with the adjacent
single‐family, duplex, and multi‐family residential uses.
(iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the purposes of this
Development Code, and the eligibility criteria outlined in §7.16.060(b);
Staff Response: The proposed PUD amendment is part of an established PUD, and is therefore
not subject to the eligibility criteria, or Public Benefit requirements, outlined in §7.16.060(b).
Consistency with the Comprehensive Plan is required and analysis is provided below.
The Comprehensive Plan includes this property within District 24: Wildridge Residential District.
The planning principals specific to this property include the following:
Redesign the intersection of Metcalf and Nottingham Roads, and implement the other
recommendations for District 4 to enhance the entry to Wildridge and provide more
direct access from the Town Center to Wildridge.
Construct bicycle lanes along Metcalf and Wildridge Roads.
Promote a trail system through open space areas in Wildridge to provide alternatives
to the roadways for pedestrian circulation and greater connection to the surrounding
open space.
Preserve and enhance the existing open space trails and explore the possibility of
developing additional parcels into pocket parks.
Acquire and maintain as public open space the U.S. Forest Service-owned parcel
adjacent to Wildridge that includes Beaver Creek Point.
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 6
Add an alternative or second access route to Wildridge (perhaps forest service road
during the spring and summer).
Identify and delineate all open space parcels and public trails.
Site buildings of varying sizes along the street to maximize sun exposure, protect
views, be compatible with existing surrounding development, and break up building
bulk.
Except for the last planning principle, the majority of the planning principles for the Wildridge
District deal more with enhancing open space and non‐motorized access options. This PUD
Amendment maximizes sun exposure and breaks up the building bulk that could be
experienced with the underlying “4 Unit ‐ Fourplex” zoning. Approval could enhance
compatibility with existing surrounding development.
(iv) Facilities and services (including roads and transportation, water, gas, electric, police and
fire protection, and sewage and waste disposal, as applicable) will be available to serve the
subject property while maintaining adequate levels of service to existing development;
Staff Response: The PUD amendment has no incremental impact on public facilities or services.
(v) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon the natural environment, including air, water, noise, storm water
management, wildlife, and vegetation, or such impacts will be substantially mitigated;
Staff Response: When compared to the existing zoning, the proposed PUD amendment will
not result in any adverse impacts upon the natural environment, wildlife, vegetation, air, or
stormwater management.
(vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in significant
adverse impacts upon other property in the vicinity of the subject tract; and
Staff Response: As discussed herein, the approval of the PUD amendment would not result in
significant adverse impacts upon other property in the vicinity. The setbacks and building
height would remain in place. Breaking the building into two separate buildings could result in
fewer impacts to other properties in the area.
(vii) Future uses on the subject tract will be compatible in scale with uses or potential future
uses on other properties in the vicinity of the subject tract.
Staff Response: As proposed, the Application will either increase the compatibility with uses or
potential future uses on other properties in the vicinity, or will result in no change to uses as
currently exist.
Ordinance 13‐07, Second Reading
Lot 25, Block 2, Wildridge – June Creek Corner PUD Amendment Page 7
Council Action:
If the Council is satisfied with the PZC recommendation and minor changes to the Ordinance,
they should approve the Second Reading of Ordinance No. 13‐07 (Attachment E) after
conducting a Public Hearing.
Attachments:
A: Vicinity Map
B: Application Materials dated April 11, 2013
C: Public Comment
D: PZC Findings of Fact, Record of Decision, and Recommendation
E: Ordinance 13‐07
At
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A
1
Minor PUD Amendment
Lot 25, Block 2, Wildridge Subdivision, Avon CO
2900 June Creek Trail
Submitted by George “Tripp” Plavec
4/11/2013
Attachment B
2
A: Introduction
Applicant George “Tripp” Plavec would like to request a minor PUD amendment to the Plat of Wildridge
for Lot 25, Block 2, Wildridge Subdivision located at 2900 June Creek Trail, corner of Old Trail Road and
June Creek Trail.
Lot 25 is currently zoned for 4 units which traditionally would be a large tall single building consisting of 4
dwellings. We believe that the community and town would be better served if 2 separate buildings of two
units each were constructed. Our intension, is to construct a project very similar, with only minor modifi-
cations for esthetic and code reasons to the architectural details provided in this application.
Our desire is not to gain approval for a generic separation of a 4 unit lot to be constructed in two two unit
buildings but to seek preliminary approval for the project proposed.
Our project of 2376 square feet per unit aims to provide a smaller intimate home for the middle income
level of Wildridge. The design incorporates a roof height of approximately 32-33 ft. This will be a definite
benefit to the homes to the north and east.
The Town of Avon, Future Residents of the property and the neighborhood would benefit by such a pro-
posal because of the fallowing:
Smaller, human scale structures
Structures of the same scale as the neighboring duplex homes
Two buildings would provide a view corridor between units giving more air and light.
It would and provide better drainage between the buildings
Storm water and snow storage will be more easily managed with two buildings
Creating an angle between the units adds architectural interest
Landscaping between the buildings would break the massing and provide a nice feature on the Old Trail
road side of the property
No increase in density
Each unit would be equal to the others without having the inner unit syndrome
B: Background
Through the history of Wildridge there has been a desire by the community to create more individual
homes to mix with the larger duplexes. Duplexes in Wildridge are only restricted in size by the set back
and height limitations. During the last economic boom many duplexes became excessively massive with no
limits to size. We feel the current trend of allowing flexibility in separating units gives the neighborhood
more character and provides for a stable construction industry with more options available.
Attachment B
3
In developing a plan for Lot 25 we looked at several options. Three single family buildings, two duplex
buildings, and one fourplex building. With a reduction of units the economic feasibility would force the
sizes of the three single buildings to be larger, more expensive to build and purchase. Our desire was not
build what would have to be three large homes. We instead wanted to produce more affordable homes
that complements the smaller structures of Shepard's Ridge to the south west but still has common ele-
ments that relate to each of the other fourplexes of Stonebriar and 2929 June Creek across June Creek
Trail.
C: Goal and purpose of application
Our intension with this application was to show how four units could be separated in an esthetically pleas-
ing way that complies with The Town of Avon Development code. The design of the concept of two
buildings for a four unit lot had to be developed enough so that an intelligent analysis could be made by the
planning and zoning commission and ultimately the town council. We are at a point now with a design we
consider feasible economically and architecturally. If we are given the approval for this type of design uti-
lizing two separate buildings we will complete details of siding, colors and minor modifications for a com-
plete design review.
On pages 6-13 you will find our current design.
Pages 14-17 are fourplex options of the same layouts
Thank you for taking the time to consider my project
George “Tripp” Plavec
To note:
Before submitting for design review some minor modifications are necessary to the entry of unit 3 and
decks to all units but the square footage, general structural design and heights will remain relatively the
same.
Attachment B
4
D: From Avon Development Code several aspects pertaining to our
objectives
7.28.090 Design Standards
(a) Purpose. The general intent of the design standards is to implement the Avon
Comprehensive Plan vision of an attractive, efficient, and livable community that features
stable neighborhoods and promotes a mix of uses in well-designed community focal points.
(1) To achieve the proper and efficient use of the land by promoting an appropriate
balance between the built environment and the preservation and protection of open space
and natural resources;
(4) To provide appropriate standards to ensure a high quality appearance for
residents and visitors of Avon and promote good design while also allowing flexibility,
individuality, creativity, and artistic expression;
(5) To protect and enhance the unique mountain character and economic
development of Avon by encouraging physical development that is of high quality and is
compatible with the character, scale, and function of its surrounding area;
The separation in the buildings is a more attractive and livable design which provides buildings that
are more in scale with the surrounding neighborhood. Having space between the buildings provides
more balance with the built environment and open natural space.
7.28.090 Design Standards
(e) Design Standards for the Wildridge Subdivision
3) Building Design
(i) Buildings shall have street-facing architectural details and elements which
provide a human scale to the façade. Flat, monotonous facades shall be avoided.
(A) The design of a structure shall create variety and interest along the street
elevation. A significant alteration of the massing and composition (not just the
exterior colors and materials) of each house or each townhouse or duplex unit
must be accomplished.
Our street facing details are all architectural with out the view of garages and entries, thus allowing for
landscaping and separation of the buildings breaks the massing more than any alteration of physical
elements can.
Attachment B
5
704.030 Purposes (e) Promote adequate light, air, landscaping and open space and avoid undue concentration
or sprawl of population;
n) Achieve a diverse range of attainable housing which meets the housing needs created
by jobs in the Town of Avon, provides a range of housing types and price points to serve a
complete range of life stages, and promotes a balanced, diverse, and stable full time residential
community which is balanced with the visitor economy;
The separation in our buildings promote light, air and landscaping.
The lower price point of these units will provide for a range of life styles for a diverse, stable residen-
tial community.
7.28.090 Design Standards
2) Site Design
(i) The location of structures and access shall complement the existing
topography and views of the site.
(ii) New buildings should respond to the climate of Avon and the Eagle River
Valley through their orientation, massing, construction, and their choice of passive
environmental control strategies and active environmental control systems.
(v) Buildings shall be oriented to optimize solar access.
Access to the site from behind hides many of the day to day requirements of the property owner leav-
ing street side view of landscape and architecture.
Our project optimizes views from the units as well as being more interesting architecturally. The sep-
aration has a sense of environmental control with drainage through the units.
Solar gain is optimized by the use of windows facing south and west and with the use of Low emissiv-
ity glass. The orientation captures solar gain in the winter with low angle solar radiation penetrating
the glass and reflects these same high angle solar rays of summer.
Attachment B
6
Preliminary proposed design for lot 25 next 8 pages
Attachment B
7
Attachment B
8
Attachment B
9
Attachment B
10
Attachment B
11
Attachment B
12
Attachment B
13
Attachment B
14
Attachment B
15
Attachment B
16
Attachment B
17
Attachment B
1
Matt Pielsticker
From:Larry Wolfe <wolfe@vail.net>
Sent:Tuesday, May 28, 2013 3:04 PM
To:Matt Pielsticker
Subject:Lot 25, Block 2, Wildridge Subdivision
Hi Matt,
I'm unable to make it to tonight's meeting so I just wanted to drop you a quick note to express my support for
Tripp Plavec's development concept on the parcel.
As an area property owner, I am very much in favor of two duplex structures on the parcel (as he is proposing)
rather than one large, 4‐plex structure. My feeling is that a single, 4‐unit structure would simply feel too
massive and architecturally imposing on such a visible site. I also believe that accessing the site from June
Creek Trl (as he is proposing) is preferable to coming off of Old Trail given the safety issues associated with an
Old Trail curb cut's proximity to the rise in the road at Bear Trap and the pocket park's parking.
Thanks for listening.
Larry Wolfe
2901‐B June Creek Trail
970‐390‐2525
wolfe@vail.net
Attachment C
1
Matt PielstickerSubject:FW: 2900 June Creek Trail PUD Amendment
From: Chad Anderson [mailto:CMAnderson@vailresorts.com]
Sent: Tuesday, May 07, 2013 2:13 PM
To: Jared Barnes
Cc: The Wife (ShawnacAnderson@comcast.net); Chad Anderson
Subject: 2900 June Creek Trail PUD Amendment
Jared,
Thanks for calling me back yesterday regarding the PUD Amendment for the Upcoming Construction on the Lot Adjacent
to ours at 2920 June Creek Trail. I found the PDF on-line and have some feedback for Today's meeting:
1.) Do to the Location of our Deck and View of Beaver Creek, BG and New York Mountain, we would prefer the
2 Separate Duplexes over the 4 Plex.
2.) We would like to see the units spaced further apart on the Lot to let us retain at least a partial view of the Ski Resort.
3.) We would like to see the Driveway on the South Side of the Lot, with the exit on Old Trail. This would keep us from
having to look directly at a Driveway and Garage Doors. Having it on the North Side will also cause problems for the New
Owners with Ice and Snow Build up, due to lack of sunshine.
4.) We would like to see as low of a profile possible to not hinder our current great views of the Mountain.
Feel free to pass along my comments to George Plavec.
Thanks,
Chad Anderson
Beaver Creek Mountain Dining
Senior Manager F&B
Spruce Saddle Lodge & Red Tail Camp
Office - 970-754-5521
Cell - 970-331-1758
Fax - 970-754-5519
Spruce Saddle Lodge Facebook Page
Red Tail Camp Facebook Page
Sent from Office Outlook Web Access
The information contained in this message is confidential and intended only for the use of the individual or
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Ord. 13‐07 June Creek Corner PUD Amendment – Lot 25, Block 2, Wildridge
June 11, 2013 Town Council Meeting
Page 1 of 4
TOWN OF AVON, COLORADO
ORDINANCE 13-07
SERIES OF 2013
AN ORDINANCE APPROVING A MINOR PUD AMENDMENT FOR “JUNE CREEK
CORNER” ON LOT 25, BLOCK 2, WILDRIDGE SUBDIVISION, TOWN OF AVON,
EAGLE COUNTY, COLORADO
WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation
and body politic organized under the laws of the State of Colorado and possessing the maximum
powers, authority and privileges to which it is entitled under Colorado law; and
WHEREAS, George Plavec (the “Applicant” and the “Owner”) has submitted a Minor
PUD amendment ( the “Application”) to modify the platted development rights to allow for the
construction of two (2) duplex structures on the subject property in the place of one (1) fourplex
structure; and
WHEREAS, the Planning and Zoning Commission held a public hearing on May 7, 2013
after posting notice of such hearings in accordance with the requirements of Section 7.16.020(d),
Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking
action; and
WHEREAS, the Planning and Zoning Commission recommended to the Town Council
approval of the Application through the Planning and Zoning Commission Findings of Fact,
Record of Decision, and Recommendations, signed May 9, 2013; and
WHEREAS, pursuant to Section 7.16.060(e)(4), Review Criteria, and Section 7.16.070(f),
Final Plat Review Criteria, Avon Municipal Code, the Town Council has considered the
applicable review criteria for the Application; and
WHEREAS, the Town Council held public hearings on May 28, 2013 and June 11, 2013
after posting notice of such hearing in accordance with the requirements of Section 7.16.020(d),
Step 4: Notice, Avon Municipal Code, and considered all comments provided before taking
action; and
WHEREAS, the Town Council finds that the health, safety and welfare of the Avon
community will be enhanced and promoted by the 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 with 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.
Attachment E
Ord. 13‐07 June Creek Corner PUD Amendment – Lot 25, Block 2, Wildridge
June 11, 2013 Town Council Meeting
Page 2 of 4
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. June Creek Corner Minor PUD Amendment. The June Creek Corner Minor
PUD Amendment application for Lot 25, Block 2, Wildridge Subdivision is hereby approved
subject to the following conditions:
(1) The building footprints are limited to 3,600 gross sq. ft. (including garage).
(2) Building separation will be at least fifteen feet (15’) between structures.
Section 3. Correction of Errors. Town Staff is authorized to insert proper dates, references
to recording information and make similar changes, and to correct any typographical,
grammatical, cross-reference, or other errors which may be discovered in any documents
associated with this Ordinance and documents approved by this Ordinance provided that such
corrections do not change the substantive terms and provisions of such documents.
Section 4. 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 5. Effective Date. This Ordinance shall take effect thirty days after final adoption in
accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. 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 7. 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 at the Avon Town Hall,
Avon Recreation Center and Avon Public Library, 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. The Town Clerk is further ordered to publish a notice stating a
Attachment E
Ord. 13‐07 June Creek Corner PUD Amendment – Lot 25, Block 2, Wildridge
June 11, 2013 Town Council Meeting
Page 3 of 4
vested property right has been created in accordance with Section 7.16.140(d)(2) of the Avon
Municipal Code.
Section 8. Final Action. Approval and final adoption of this Ordinance on second reading
constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum
seeking reconsideration of the decision of the Town Council with respect to this Ordinance and
matters approved hereby in accordance with Section 7.16.020(f)(5) of the Avon Municipal Code
and in accordance with Chapters VI and VII of the Avon Home Rule Charter.
[EXECUTION PAGE FOLLOWS]
Attachment E
Ord. 13‐07 June Creek Corner PUD Amendment – Lot 25, Block 2, Wildridge
June 11, 2013 Town Council Meeting
Page 4 of 4
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on
May 28, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the
Town Council on June 11, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal
Building, One Lake Street, Avon, Colorado.
____________________________
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 Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on 11th day of June, 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 E
AEC Fee Waiver for Fencing
June 11, 2013 Town Council Page 1 of 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Jared Barnes, Planner II
Date: June 11, 2013
Agenda topic: Fee Waiver for Garden Fencing in Wildridge
Background
Mayor Rich Carroll, in response to citizen interest, has requested Community Development Staff to review
the Avon Municipal Code (AMC) as it pertains to garden fencing to keep deer out in the Wildridge
Subdivision.
During the zoning and platting of the Wildridge Subdivision a Covenant Committee was established to act
as a Design Review Board. The Covenant Committee established a set of design guidelines for the
subdivision that discouraged fencing and set forth limiting standards for fencing. After the Covenant
Committee became defunct, the Town of Avon assumed design review responsibilities in Wildridge and
incorporated many of the Wildridge Design Guidelines into the Town of Avon’s Design Guidelines,
including the fencing requirements. Those standards were incorporated into the Design Standards
(Chapter 7.28, Avon Municipal Code (AMC)) with the adoption of the Development Code (Title 7, AMC).
Along with discouraging fencing on properties as an aspiration, the purpose of the Wildridge fencing
requirements was twofold: (1) to address the aesthetic impacts of fences and provide consistency; and, (2)
to protect the migration corridors and enhance the use of private and public open space in Wildridge for
wildlife.
Wildridge property owners, who cannot meet the existing code, may apply for an alternate fence design
by filing a Minor Design and Development Plan application for design review, and an Alternative Equivalent
Compliance (AEC). The AMC allows for the concurrent processing and review by the Planning and Zoning
Commission (PZC) of a Minor Design and Development Plan application and AEC application. The fee for
each application are as follows: Minor Design and Development Plan - $75; AEC - $250.
Discussion
Pursuant to §7.05.100, Fees, AMC, the Town Council has the authority to either reduce/waive fees or
extend the time period for payment of fees for any application type. In order to facilitate the review of this
particular request without causing undue burden to the applicant(s), Staff recommends that Council waive
the $250 fee for home garden fences for a limited period of time. There is no guarantee that once an
application is filed that the PZC will approve or deny it. If approved, the fence can remain as approved until
the owner decides to remove or amend it.
Landscaping amendments to the AMC are included in the Work Plan and this specific amendment,
consideration of allowing garden fences to keep out wildlife, including deer, could be developed at that
time. Code amendments should be ready for review and recommendation to Council no later than March,
2014. In the meantime, Council can authorize the waiver of AEC fees for a limited time.
Council Action
By motion, Council can authorize Staff to either reduce or waive the $250 AEC application fee related to
garden fence applications in the Wildridge PUD through March 31, 2014.
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Carroll called the meeting to order at 3 PM. A roll call was taken and Council members present were
Dave Dantas, Jennie Fancher, Todd Goulding, and Buz Reynolds. Councilors Evans and Wolf arrived a few
minutes after Roll Call. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant
Town Manager/Town Clerk Patty McKenny, Finance Director Scott Wright, Senior Planner Matt Pielsticker
and Planner II Jared Barnes, Town Engineer Justin Hildreth, as well as other staff members and the public.
2. APPROVAL OF AGENDA
There were no changes to the agenda.
3. PUBLIC COMMENT
There were no public comments at this time.
4. WORK SESSION
4.1. Overview of Town Properties: Use Options
Virginia Egger, Town Manager, presented an overview on this topic with reference to the council
packet memo.
4.2. Site walk: Main Street; Mall, Town Properties
The tour began at 3:30 PM and finished at 4:15 PM. The Town Council, town staff, and members of the
public toured the park and mall area. Some follow up comments included from the tour included the
following:
Discussion about Parking garage locations
Get businesses engaged in the pedestrian mall
Try not to overbuild
Stage location input included support of staff’s suggested location per the plan
What size stage would be necessary
Does council see selling town hall land for hotel or inn use; there was not great support for this
concept
Either use the field actively all summer or repurpose it
Plans would include to use the park very actively for three major music venues; update park
equipment
Propose parking garage in the area of the library and fire station
4.3. Preliminary Report on 5-year Capital Improvements Program
Both Stan Bernstein, (Bernstein and Associates), and Jonathan Heroux (Piper Jaffrey), along with Scott
Wright presented information about financing options for capital projects, with information provided
about certificates of participation, General Obligation Bonds, and use of the Urban Renewal Authority.
Mike Cacioppo, Avon resident, asked about the financing options specifically the certificates of
participation; he would prefer that the voters be asked before moving forward with large capital
improvements. Some Council direction included the following:
No town hall on lot 5, understand the long term use of lot 5
Keep town hall centrally located and try to leverage partnerships with other agencies, i.e. place
Library and town hall together
Support for trolley system for east & west connection
Highlight street maintenance program in CIP program; protect streets with new layer of a sand seal
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 2
to the roads
Reduce lighting of signs
Reviewed 2015 list of improvements
4.4. Review and Direction on Term Sheet for leasing space in I-70 Regional Transportation
Operations Facility (Jane Burden, Transit Operations Supervisor)
The Town Council was asked to provide direction on the calculation methodologies used for the Term
Sheet for leasing space in the new transit facility. The Town continues to negotiate leasing the space
with ECO, Beaver Creek, and CDOT. There were some questions related to the 7% discount for those
agencies who would use the fleet services provided by the town. It was suggested that maybe the
discount would apply for a certain number of years. There was a question about Eagle County getting
a return on the $238K investment provided at the outset of the project and it was noted that this
should be consistent for all partners in the project. Staff was directed to analyze the cost
differentiation for the payback to Eagle County for the predesign costs.
5. AVON LIQUOR AUTHORITY MEETING (MINUTES DRAFTED SEPARATELY)
6. ACTION ITEMS
6.1. Public Hearing for Amplified Sound Permit for Outdoor Movie for Vail Valley Professionals
Association (Patty McKenny, Asst. Town Manager)
Mayor Pro Tem Goulding recused himself from consideration of this agenda item due to a conflict of
interest. The memo was reviewed by staff and the applicant Wendy Goulding was present to highlight
the event. Mayor Carroll opened the public hearing on this matter, no comments were made and the
hearing was closed. Councilor Evans moved to approve the sound permit for Vail Valley Young
Professionals Association; Councilor Fancher seconded the motion and it passed by those present
(Mayor Pro Tem Goulding recused).
6.2. Acceptance of Town of Avon 2012 Comprehensive Annual Financial Report and Single Audit
(Paul Backus, McMahan & Associates)
Mayor Pro Tem Goulding joined the meeting at this time. The Town’s 2012 Comprehensive Annual
Financial Report and Single Audit were presented by McMahan & Associates with an overview of why
an audit is conducted for municipal entities. Mayor Carroll moved to accept the 2012 Comprehensive
Annual Financial Report and Single Audit; Councilor Evans seconded the motion and it passed
unanimously.
6.3.Buffalo Ridge Affordable Housing Corporation: Refinancing Multifamily Housing Project
Revenue Bonds with action on Resolution No. 13-17, Series of 2013, Resolution Approving the
Execution and Delivery by Buffalo Ridge Housing Corporation of a Mortgage Loan and
Subordinate Notes; Authorizing Certain Amendments and Authorizing Incidental Action
(Calvin Hansen, Sherman & Howard, Gerry Flynn, Polar Star Properties)
Councilor Evans stepped down at this time due to a conflict of interest. The Town Council was
provided some background about the Buffalo Ridge Affordable Housing Corporation noting the
proposal for refinancing the multifamily housing project revenue bonds. Calvin Hansen, Sherman and
Howard Law Firm, and Gerry Flynn, Polar Star Properties, presented the topic. There was some
discussion about the following
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 3
The amended and restated project agreement that the town would sign; further revisions would be
made to the agreement in the coming days
The resolution approves the new HUD financing and new subordinate notes
Timeline of the Refinancing which is slated to close June 27th
Update on the performance of the Buffalo Ridge project with regard to financing information and
leasing of units, capital improvements asset management
Would the Board consider issuing revenue bonds vs the HUD financing; it was noted that the HUD
financing was the best rate for this kind of project
Councilor Reynolds move to approve Resolution No. 13-17, Series of 2013, Resolution Approving the
Execution and Delivery by Buffalo Ridge Housing Corporation of a Mortgage Loan and Subordinate
Notes; Authorizing Certain Amendments and Authorizing Incidental Action with the conditions that the
amount does not exceed $822K and a change is made to the signature block to include the Mayor & not
the Mayor Pro Tem. Mayor Pro Tem Goulding seconded the motion and it passed unanimously by
those present (Councilor Evans abstained due to conflict).
6.4. Council Member Goulding's Residency Qualification and Membership on the Council (Eric Heil,
Town Attorney)
This item was considered by Avon Town Council; the Town Attorney reviewed the town’s Charter
requirements and State Statutes and case law addressing this topic. He noted that it would be a
council determination as to whether or not to allow the residency qualification. Councilor Dantas
moved to extend Councilor Goulding’ s residency qualification and membership on the Avon Town
Council to June 1, 2014 based upon a determination that Council member Goulding intends to regain a
home or place of abode within the Town of Avon prior to June 1, 2014. There is not a need to create a
Findings of Fact document or additional records because the reasons recognized by Council to
determine intent will be documented on the recording of the Avon Town Council and such recording
will be preserved for the next year.
6.5. Approval of Minutes from April 23, 2013
Councilor Evans moved to approve the minutes; Mayor Pro Tem Goulding seconded the motion and it
passed unanimously.
6.6. Public Hearing on First Reading of Ordinance 13-06, An Ordinance Approving a Final PUD
Amendment for Brookside Park Lot 1, Brookside Park PUD, Eaglewood Subdivision, Town of
Avon, Eagle County, Colorado (Jared Barnes, Planner II)
The application submitted by Riverview Park Associates was reviewed with some of the following
highlights related to the PUD process, the Agency Referrals, public notification, and the PZC public
hearing. It was noted that the application proposes to amend the PUD to allow future flexibility to convert
a portion or all of the Brookside Center office building to residential dwelling units. The application
proposed a maximum of twenty-four (24) dwelling units in a loft style consisting of two (2) and three (3)
bedroom configurations. The amended PUD Guide (Attachment B) in the council packet also described
other minor amendments that were proposed. Staff continued a review of the memo that addressed some
of their analysis with regard to parking, traffic demands on the property, affordable housing impact, need
for additional water rights, ERFPD concerns, and the financial analysis on the property tax collection impact.
Rick Pyleman, Pylman & Associates, representing the applicant was present to address questions. The
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 4
public hearing was opened, no comments were made and the hearing was closed. Councilor Dantas
moved to approve on first reading Ordinance 13-06, An Ordinance Approving a Final PUD Amendment
for Brookside Park Lot 1, Brookside Park PUD, Eaglewood Subdivision, Town of Avon, Eagle County,
Colorado. Councilor Evans seconded the motion and it passed unanimously.
6.7. Public Hearing on First Reading of Ordinance 13-07, An Ordinance Approving a Minor PUD
Amendment for June Creek Corner on Lot 25, Block 2, Wildridge Subdivision, Town of Avon,
Eagle County, Colorado (Matt Pielsticker, Senior Planner)
The application submitted by George Plavec requested an amendment to modify the allowed building
type for Lot 25, Block 2, and allow for the ability to develop the property with two duplexes rather that
a fourplex. The council packet addressed the minor PUD amendment process, the agency referrals,
public notification, the PZC hearings. Staff analysis included a review of the land use in Wildridge, a
review of the building footprint and building envelopes and related impacts on the neighborhood,
which were found to be minimal. George Plavec, applicant was present to answer questions and
provide reasons why the request for the amendment. The public hearing was opened. Mayor Carroll
read an email from Larry Wolf, resident on June Creek Trail, who wrote in support of the minor PUD
amendment. Councilor Evans moved to approve on first reading Ordinance 13-07, An Ordinance
Approving a Minor PUD Amendment for June Creek Corner on Lot 25, Block 2, Wildridge Subdivision,
Town of Avon, Eagle County, Colorado. Mayor Pro Tem Goulding seconded the motion and it passed
unanimously.
7. VILLAGE AT AVON
7.1. Settlement Update (Eric Heil, Town Attorney)
A review of the update memo was made related to the status conference, the water tank bids, the
bond issuance, the amendments to the service plans, the conveyance documents, the receipt and
closing escrow agreement and the revocable license agreement for snow storage.
7.2. Public Hearing for Second Reading of Resolution No. 13-02, Series of 2013, Resolution
Approving First Amended and Restated Service Plan for Traer Creek Metropolitan District
Eric Heil, Town Attorney, noted that council action was not necessarily required tonight on the two
resolutions but that final action would be required no later than the June 11th meeting. Kathy Canda,
McGeady Sisneros, representing the TCMD and VMD summarized the changes that would fall into the
following descriptive category: 1) Request was to keep amendments to a minimum, 2) Reconciliations were
made between the development agreement and the service plans, 3) Revisions were made in order to clarify
language and avoid any future disputes. There was some discussion about the versions provided with v22
and v23.
Mayor Carroll opened the public hearing for Resolution No. 13-02, no comments were made and the hearing
was closed. Mayor Carroll then opened the public hearing for Resolution No. 13-03, no comments were
made and the hearing was closed. Councilor Evans moved to approve Resolution No. 13-02, Series of 2013,
Approving Amendments to Traer Creek Metropolitan District Service Plan that is labeled as version 22 with
changes outline in the memo dated May 22, 2013. Mayor Pro Tem Goulding seconded the motion and it
passed unanimously.
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 5
7.3. Public Hearing for Second Reading of Resolution No. 13-03, Series of 2013, Resolution
Approving First Amended and Restated Service Plan for The Village Metropolitan District
Councilor Evans moved to approve Resolution No. 13-03, Series of 2013, Resolution Approving
Amendment to Village Metropolitan District Service Plan submitted as version 5. Mayor Pro Tem
Goulding seconded the motion and it passed unanimously.
7.4. Resolution No. 13-16, Series of 2013, Resolution Approving the Receipt and Escrow Agreement
Pertaining to the Village (at Avon) Settlement Implementation and Special Warranty Deed (Lot
6 – Filing 1)
Town Attorney Eric Heil noted that there were minor revisions to the documents made from last fall.
Mayor Pro Tem Goulding moved to approve Resolution No. 13-16, Series of 2013, Resolution Approving
the Receipt and Escrow Agreement Pertaining to the Village (at Avon) Settlement Implementation and
Special Warranty Deed (Lot 6 – Filing 1). Councilor Dantas seconded the motion and it passed
unanimously.
8. WORK SESSION
8.1. Discussion on Summer/Fall Regular Town Council Meeting Schedule (Rich Carroll, Mayor)
Mayor Carroll reviewed the information and questions related to scheduling council meetings over the
next few months. Council input included the following:
All supported the 5 pm start time as great
It was noted that land use applications may change agendas
There was input to not make one meeting per month the norm; it would be important to meet
publicly on a routine basis
Suggestion to use one meeting per month as a work session
Suggestion to take more time with council to better understand what council would like for council
reports
Electronic packets are difficult to read when longer documents exist
The meeting agendas do not include budget sessions
Include operational topic updates from employees
Review strategic plan with retreat
Need branding exercise in a retreat setting
8.2. Financial Matters (Kelly Huitt, Budget Analyst) Report Only
There was a request to include a number that would combine March & April 2013 sales tax for the next
report comparison because of the timing of Easter.
9. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
9.1. VVF meeting Update
Update about meeting with VVF to continue discussion about Avon’s role in 2015 events planning
9.2. UERWA Meeting Updates (Todd Goulding, Mayor Pro Tem)
Highlights included that UERWA would charge TOA to fill lake in the fall because of the timing & a
c hange in board membership.
9.3. Mayors / Managers Meeting (Rich Carroll, Mayor)
Highlights included that Senator Bennett spoke with the group about education and Regional
collaboration group was working on transit
TOWN OF AVON, COLORADO
MINUTES FOR AVON REGULAR MEETING FOR TUESDAY, MAY 28, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.05.28.Minutes
Page 6
9.4. EGE Air Alliance (Rich Carroll, Mayor)
It was noted that the group continues to raise $ to fund new flights.
Mayor Carroll informed council that a celebration on the land exchange closing would occur on June 5th
at 4 pm at Beaver Creek Point, a celebration for the dedication of open space for the West Avon
Preserve aka West Avon Parcel.
There being no further business to come before the Council, the regular meeting adjourned at 10:10 PM.
RESPECTFULLY SUBMITTED:
_________________________________
Patty McKenny, Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Todd Goulding ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: June 5, 2013
Agenda topic: Eaglebend Dowd Affordable Housing Corporation: Proposed Refinancing Discussion
Gerry Flynn, Managing Partner of Polar Star Properties and Board member of Eaglebend Dowd
Affordable Housing Corporation, will attend the Council meeting next Tuesday to discuss the
proposed refinancing effort underway for Kayak Crossing Apartments located at Dowd Junction.
This is a current refunding of its Multifamily Housing Revenue Bonds, Series 2003A in the original
principal amount of $9,520,000.
There is an agenda attached from Gerry that outlines the topics to be reviewed with the Town
Council; he plans to address the current financial situation, the structure of the corporation, and a
refinancing proposal. This refinancing transaction will require approval by the Town of Avon as a
sponsor of the 6320 entity issuing new debt. Once the final documents are prepared, this item
will be scheduled at a future meeting, possibly June 25th.
Please note that the Eaglebend Down Affordable Housing Corporation, a nonprofit corporation,
was formed in 1998 in an effort to assist the operation, maintenance and development of
property used to provide housing at affordable rental rates to both individuals and families at a
low or moderate income. Polar Star Properties was established in 2004 as a company that helps
provide and manage affordable housing to the work force and families of resort communities.
Eaglebend Dowd Affordable Housing Corporation
(dba Kayak Crossing Apartments)
Town of Avon Work Session June 11, 2013
Proposed Refinancing
Agenda
1. Current Situation
a. US Bank owns $8.235 million face value bonds due in 2018
b. Bonds have been in technical default since 2010, due to a continuing Debt Service Coverage
shortfall.
c. Current debt service is approximately $600,000 per year, including $205,000 of principal
reduction. Interest on current debt is $4.89%
i. US Bank has been unable to approve a reasonable debt restructure
d. EDAHC has 13 subordinate bondholders holding $1.6 million face value of subordinate bonds
issues in 1998. Interest was paid through January 2011, at which time it was suspended by
agreement of the majority of bondholders.
i. Bondholders were originally involved as landholders of the Kayak site or in the
development of the project. The subordinate bonds represent deferred payment of
development fees or land purchase price.
e. Kayak has deferred payment of the TOA issuer fee since 2011. Accrued but unpaid fee now totals
$21,169
2. EDAHC nonprofit structure
a. EDAHC was formed in 1998 for the purpose of developing and managing the Kayak Crossing
Apartments “on behalf of” the Town of Avon, its municipal sponsor.
b. Organized under the guidelines of Revenue ruling 1963-20, which allows public purpose
improvements to be financed separately from its municipal sponsor, with no financial exposure
to the sponsor (TOA)
c. Certain Town Rights are included in the 1998 Project Agreement between TOA and EDAHC which
include:
i. Town’s right to approve the initial debt and any replacement debt
ii. Town’s rights to cure a default or to pay off the existing debt at any time and take title
to the property.
iii. Town’s reversionary right to acquire fee simple interest to the property after all of the
debt is paid off.
3. Refinancing Proposal.
a. FirstBank has issued a commitment for an $8.5 million loan to be used to pay off the existing US
Bank owned bonds, including all accrued interest and transaction costs.
b. Loan is to be secured by a first lien on the property (currently US bank collateral) and certain
cash balances held by FirstBank on Eaglebend Affordable Housing (“EBAHC”) reserve accounts.
i. The board of EBAHC has agreed to support this transaction, consistent with its own
affordable housing mandate.
EBDAHC Agenda
Page 2 of 2
c. Proposed terms are a three year bridge loan at 4%, interest only, intended to bridge the
financing until Kayak can secure reasonable long term financing based on continuation of its
current operating performance.
d. Annual debt service saving are projected at approximately $260,000.
i. Excess cash after setting aside reasonable reserves will be used to pay down principal
ii. Deferred TOA issuer fees will be paid from loan proceeds
iii. No payments will be made on subordinate bonds until debt is paid down and EBAHC
collateral is released
e. Permanent refinance is expected in 2015 or 2016 based on stabilized NOI of $675,000
i. Current NOI is $575,000; increase is based on elimination of current lease concessions
4. Formal Request (to come)
a. TOA approval of new debt to pay off existing US Bank Debt
b. Don’t anticipate any changes to existing Project Agreement
5. Other
a. 1998 Series B and C subordinate bonds will remain in place
i. No payments until $660,000 of new debt is paid down (cash collateralized portion)
b. Draft Documents should be available in time for the June 25th Council Agenda
c. EDAHC is paying all legal fees and other transaction costs
1 | Page
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TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: June 5, 2013
Agenda Topic: Appointment of Town of Avon Board of Director to fill vacancy for the
Buffalo Ridge Affordable Housing Corporation, EagleBend Affordable
Housing Corporation and Eaglebend Dowd Affordable Housing Corporation
The Town Council will need to appoint a new director to each of the three housing boards that provide
oversight to several affordable housing projects sponsored by the Town. The Town has been involved for
many years with these three separate Colorado Non Profit Corporations that were formed to acquire
property in order to provide affordable housing facilities for the benefit and on behalf of the Town of Avon
and its residents as follows:
EagleBend Affordable Housing Corporation (“EBAHC”) oversees the EagleBend
Apartments
Eaglebend Dowd Affordable Housing Corporation (“EBDAHC”) oversees the Kayak
Crossing Apartments
Buffalo Ridge Affordable Housing Corporation (“BRAHC”) oversees the Buffalo Ridge
Apartments
Former Town Manager Larry Brooks served on each of these boards as a Director. With his departure
from the town, the Town Council will need to appoint a new member to serve in his place. Sections 3.2,
3.3 and3.4 of each of the bylaws outline the manner in which vacancies are filled; some highlights from
these sections include the following:
The number of directors shall be from 3 to 7 people as determined by the Board of Directors
Directors are elected or reelected at each annual meeting Each director holds office until the next
annual meeting
Directors must be at least 18 years old but need not be residents of Colorado
There is one difference in that the Buffalo Ridge Bylaws indicate that “one director shall be appointed by
the Town of Avon, and the balance of the board of directors shall be elected or reelected by the board of
directors at each annual meeting, with 15 days advance notice to the Town of Avon of any new director. If the
Town of Avon does not object to any such director within such 15-day period, it shall be deemed to have
confirmed the appointment”. I spoke with Gerry Flynn about this discrepancy and he noted that it has
been the intent and practice of each of the other Boards to appoint an Avon representative as
recommended by the Town Council to both the EBAHC and EBDAHC boards. Currently, Gerry Flynn, Jeff
Spanel, Craig Ferraro, Michele Evans, and Larry Brooks serve as directors on all three boards. The Town
Council could recommend appointing a council member, Town Manager or community member.
If Council wants to pursue a community member, a public notice inquiry could be advertised. The only
qualification identified is that a director must be at least 18 years old.
This agenda item was scheduled to provide an opportunity for the Council to discuss “how” to proceed
with the appointment. Final action on the appointment would not occur until July after the financing
opportunities for two of the projects have been completed.
Attachment:
Summary of Bylaw Sections for each Corporation
Housing Board ByLaws Summary Attchment A
Eaglebend Affordable Housing Corporation Bylaws Adopted November 20, 1997
Section 3.2 Number,
Election, Tenure &
Qualifications
The number of directors of the corporation shall be from three to seven, as determined by the Board of Directors from time to time.
Directors shall be elected or reelected by the Board of Director at each annual meeting, and each director shall hold office until the
next annual meeting of the board of directors and thereafter until the director's successor shall have been elected and qualified, or
until the director's earlier death, resignation or removal. Directors must be at least 18 years old but need not be residents of
Colorado. Any Director may be removed at any time, with or without cause, by a vote of three-fourths of the other directors then in
office.
Section 3.3 Vacancies Any director may resign at any time by giving written notice to the President or to the Secreatary of the corporation. Such
resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a
majority of the remaining directors though less than a quorum. A director elected to fill a vacancy shall be elected for the unexpired
term of such director's predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall
be filled by the affirmative vote of a majority of the directors then in office, and a director so chosen shall hold office until the next
election of directors and thereafter until the director's successor shall have been elected an qualified, or until the director's earlier
death, resignation or removal.
Section 3.4 Regluar
Meetings
A regular annual meeting of the board of directors shall be held during the month of April at the time and place, either within or
outside Colorado, determined by the board, for the purpose of electing directors and officers and for the transaction of such other
business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or
outside Colorado, for the holding of additional regular meetings.
Eaglebend Dowd Affordable Housing Corporation Bylaws Adopted April 1, 1998
Section 3.2 Number,
Election, Tenure &
Qualifications
The number of directors of the corporation shall be from three to seven, as determined by the Board of Directors from time to time.
Directors shall be elected or reelected by the Board of Director at each annual meeting, and each director shall hold office until the
next annual meeting of the board of directors and thereafter until the director's successor shall have been elected and qualified, or
until the director's earlier death, resignation or removal. Directors must be at least 18 years old but need not be residents of
Colorado. Any Director may be removed at any time, with or without cause, by a vote of three-fourths of the other directors then in
office.
Section 3.3 Vacancies Any director may resign at any time by giving written notice to the President or to the Secreatary of the corporation. Such
resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such ersignation
shall not be necessary to make it effective. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a
majority of the remaining directors though less than a quorum. A director elected to fill a vacancy shall be elected for the unexpired
term of such director's predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall
be filled by the affirmative vote of a majority of the directors then in office, and a directo so chosen shall hold office until the next
election of directors and thereafter until the director's successor shall have been elected an qualified, or until the director's earlier
death, resignation or removal.
Section 3.4 Regluar
Meetings
A regular annual meeting of the board of directors shall be held during the month of April at the time and place, either within or
outside Colorado, determined by the board, for the purpose of electing directors and officers and for the transaction of such other
business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or
outside Colorado, for the holding of additional regular meetings.
Buffalo Ridge Affordable Housing Corporation Adopted November 16, 2001
Section 3.2 Number,
Election, Tenure &
Qualifications
The number of directors of the corporation shall be from three to seven, as determined by the Board of Directors from time to time.
One director shall be appointed by the Town of Avon, and the balance of the board of directors shall be elected or reelected by the
board of directors at each annual meeting, with 15 days advance notice to the Town of Avon of any new director. If the Town of
Avon does not object to any such director within such 15-day period, it shall be deemed to have confirmed the appointment. Each
director shall hold office until the next annual meeting of the board of directors and thereafter until the director's successor shall have
been elected and qualified, or until the director's earlier death, resignation or removal. Directors must be at least 18 years old but
need not be residents of Colorado. Any Director may be removed at any time, with or without cuase, by a vote of three-fourths of
the other directors then in office.
Section 3.3 Vacancies Any director may resign at any time by giving written notice to the President or to the Secreatary of the corporation. Such
resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such ersignation
shall not be necessary to make it effective. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a
majority of the remaining directors though less than a quorum. A director elected to fill a vacancy shall be elected for the unexpired
term of such director's predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall
be filled by the affirmative vote of a majority of the directors then in office, and a directo so chosen shall hold office until the next
election of directors and thereafter until the director's successor shall have been elected an qualified, or until the director's earlier
death, resignation or removal.
Section 3.4 Regluar
Meetings
A regular annual meeting of the board of directors shall be held during the month of April at the time and place, either within or
outside Colorado, determined by the board, for the purpose of electing directors and officers and for the transaction of such other
business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or
outside Colorado, for the holding of additional regular meetings.
Page 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: June 4, 2013
Re: Recommended Process for the Development & Adoption of the 2014 Budget &
5-Year Capital Improvement Program
Please find following this cover memo a recommended schedule and process for the preparation of the 2014
budget and the Town of Avon 5-Year Capital Improvement Program. The recommendation has been developed
with Finance Director Scott Wright, with review by department heads.
The approach recommended, that of moving towards preparing a performance based budget, is intended to fully
align the Town’s budget with Town Council’s adopted 2013-2014 Strategic Plan, as may be amended, and other
Council priorities. This articulation of priorities is the first step in the budget process and intentionally drives
resource allocation based upon what is of the greatest value to the Avon, as articulated by the Town Council. The
end result is a budget with defined outcomes, which can be monitored and, where relevant, identified metrics.
The proposed process also seeks to have clear direction from Council on how revenues should be projected. A
three-year projection is recommended so that new expenditures planned in 2014 can be evaluated for future
funding support in subsequent years. For the 2015 budget preparation, I would like to expand this multi-year
projection to all funds, as is now done for capital improvements. For example, two-year Strategic Plans would be
matched with two-year budgets, the first year for adoption and the second year for review, update and adoption.
This approach also respects Council terms and thereby supports respective Council members’ desired outcomes.
Bringing personnel compensation costs to the forefront of Council’s attention happens early in the budget process.
With national healthcare implementation; management’s goal to provide a step pay system which implements the
average regional market pay ranges in 5-years; a critical look at vacation accrual limits as unfunded liabilities and
overall commitment to professional development funding, this aggregation of costs will represent the largest
percentage of town funding and direction from Council is warranted.
Budget presentations are organized in meetings based upon department operations, which are most closely
aligned.
Department detail would be formatted to include:
Mission Statement of the department
Organizational Chart
List of Major Programs/Operations and FTE for each
2013 Accomplishments
2014 Key Work Plan Initiatives Budget Line Item
Work Sheet Detail
- Description of line item
- 2012 Actual
- 2013 Amended Budget
- 2013 Final Revised Budget
- Recommended 2014 Budget
- Percent Change
The budget work sessions, public hearing and adoption meeting are planned into Council’s 2nd and 4th Tuesdays of
the month meeting schedule, with one special meeting planned on September 18th. Staff looks forward to
discussing this process and schedule with you.
Tuesday, August 13, 2013 COUNCIL BUDGET RETREAT ( 4 hours)
- Performance Based Budget - Approach & Outcomes
- 2013/14 Update and Situational Analysis
- Review and updating of 2013-2014 Strategic Plan
REVENUES: Review & Direction
- All taxes, fees, charges for services
- 3 - Year Projection
FUND BALANCES & CONTINGENCIES: Policy Direction
Tuesday, September 10, 2013 COUNCIL BUDGET WORK SESSION (2 hours)
- Employee Compensation Plan: Pay for Performance; Health Insurance;
General Benefits
- 2014 Enterprise Funds: Fleet & Transit
- Affordable Housing Fund
Wednesday, September 18, 2013 COUNCIL BUDGET WORK SESSION
Presentation of Funding Requests from Outside Agencies
Special Council Contract Review
Tuesday, September 24, 2013 COUNCIL BUDGET WORK SESSION ( 2 hours)
- Capital Projects Fund + 5 Year Capital Improvement Program
(Began May 28th)
- Urban Renewal Authority
- Community Enhancement Fund
- Water Fund
- Town Center West Mainenance Fund
- Facilities Reserve Fund
- Equipment Replacement Internal Service Fund
- General Fund - Engineering Division
- Debt Service Fund
Tuesday, October 08, 2013 BUDGET WORK SESSION (2 - 3 hours)
- General Fund: Parks & Recreation
- General Fund: Roads & Bridges
Wednesday, October 16, 2013 BUDGET WORK SESSION (2 hours)
- General Fund: General Governement, Finance, Community
Development, Police
Tuesday, November 12, 2013 BUDGET WORK SESSION (2 hours)
- FINAL Recommended 2014 Budget, 5-Year Capital Improvement Plan,
URA
Monday, November 18, 2013 Notice of Public Hearing published
Tuesday, November 26, 2013 PUBLIC HEARING & ADOPTION
Tuesday, December 10, 2013 Certification of Mill Levy to County Commissioners
PROPOSED BUDGET PROCESS
FOR PREPARATION OF THE 2014 BUDGET & 5-YEAR CAPITAL PROGRAM