TC Res. No. 2009-41 APPROVING THE FINAL PLAT AND SUBDIVISIONTOWN OF AVON, COLORADO
RESOLUTION NO. 09 -41
Series of 2009
A RESOLUTION APPROVING THE FINAL PLAT AND SUBDIVISION
IMPROVEMENT AGREEMENTS FOR BUCK CREEK PUD PHASE I AND II, A
RESUBDIVISION OF LOTS 1, 2,3 AND 4, WILDWOOD RESORT, A RESUBDIVISION
OF LOTS 5,52A, 52B, BLOCK 1, BENCHMARK AT BEAVER CREEK, LOCATED IN
SECTION 1, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL
MERIDIAN, TOWN OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, the Tanavon Corporation, A Colorado Company has applied for Final Plat
approval for Buck Creek PUD, a Resubdivision of Lots 1, 2, 3 and 4, Wildwood Resort, A
Resubdivision of Lots 5, 52A, 52B, Block 1, Benchmark at Beaver Creek, Located in Section 1,
Township 5 South, Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle
County, Colorado, and containing approximately 15.8 acres, in accordance with Chapter 16.20 of
the Avon Municipal Code; and
WHEREAS, a Preliminary Plan for the Buck Creek PUD was submitted, and
WHEREAS, the proposed Preliminary Plan for the Buck Creek PUD, was reviewed by the
Town Council of the Town of Avon; and
WHEREAS, following public hearings and extensive review, the Town Council approved the
proposed Preliminary Plan for the Buck Creek PUD; and
WHEREAS, the Preliminary Plan for the Buck Creek PUD was approved subject to twelve
specific conditions on second reading of Ordinance No. 09 -08, Series of 2009, at the August 11,
2009 Council Meeting; and
WHEREAS, two Subdivision Improvements Agreements have been submitted, Phase I SIA for
Lot 1 A and Lot IB, and Phase II SIA for Lots 2, 3 and 5, Buck Creek PUD; and
WHEREAS, the Final Plat for Buck Creek PUD as submitted for approval is in general
conformance with the Preliminary Plan as approved by Ordinance No. 09 -08, Series of 2009
WHEREAS, the Final Plat was found to be in conformance with all applicable sections of Title
16, Subdivision, of the Avon Municipal Code; and
WHEREAS, the proposed resubdivision complies with the requirements for consideration as a
Final Plat.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, that the Town hereby finds and determines that the Final Plat for the
Buck Creek PUD, the Phase I Subdivision Improvement Agreement for Lot I and IB, and the
Phase II Subdivision Improvement Agreement of Lots 2, 3 and 5 are in general conformance
with the Buck Creek Preliminary Plan as approved by Town of Avon Ordinance No. 09 -08 and
other applicable development laws, regulations and policies of the Town of Avon and hereby
approves the same subject to completion of technical corrections as identified by Town Staff.
ADOPTED THIS g
ATTEST:
t �vlc enny
Town Cle
DAY OF
i4�-i�
, 2009.
TOWN COUNCIL
TOW"F AVON,
Ronald C. Wolfe,
COUNTY, CO
TEAK 200927823
TEAK J SIMDNTON
REC. $73.00 DOC_0$ 03 46PM 12/30/2009
PHASE II SUBDIVISION IMPROVEMENTS AGREEMENT
FOR LOTS 2,3 AND 5, BUCK CREEK PUD FIRST AMENDMENT 13-1 1/:4-1
THIS AGREEMENT, made and entered into this — day of December, 2009 ,
2005, is by and among Tanavon Corporation, a Colorado corporation, 108 S. Frontage
Road, Suite 208, Vail, CO 81657 ( "Subdivider "), Gore Range Natural Science School
Non -Profit Corporation, 82 E. Beaver Creek Blvd., Suite 202, P.O. Box 9469, Avon,
CO 81620 ( "GRNSS "), and the Town of Avon, a Colorado municipality, by and through
its Council (the "Town ").
RECITALS
WHEREAS, the Subdivider, in connection with the approval of the final plat for
the Buck Creek PUD First Amendment, consisting of 15.796 acres, formerly known as
Lots 1, 2, 3, and 4, Wildwood Resort, Town of Avon, Eagle County, Colorado (the
"Subdivision "), desires to enter into this Phase II Subdivision Improvements Agreement
( "Agreement ") for Lots 2, 3 and 5 with the Town as provided for by Section 16.24. 100 of
the Avon Municipal Code, as amended (the "Code")-, and
WHEREAS, pursuant to the Code, the Town desires to make reasonable
provisions for completion of certain improvements ( "Improvements ") as depicted on the
plans approved by the Town for the Buck Creek PUD First Amendment, dated December
2009, ( "Approved Plans ") and as set forth in Exhibit A attached hereto and
incorporated herein by reference, together with minor changes approved by the Town
Engineer; and
WHEREAS, the Subdivider owns Lots 2 and 5 and GRNSS owns Lot 3 within
the Buck Creek PUD First Amendment, and have agreed to be jointly responsible for the
completion of the Improvements for Lots 2, 3 and 5 within the Subdivision; and
WHEREAS, Subdivider, GRNSS and the Eagle River Fire Protection District
have entered into a separate Phase I Subdivision Improvements Agreement for
Improvements for Lot 1 A and Lot 1B within the Subdivision.
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants,
conditions and promises, the parties hereby agree as follows:
1. Final Plat Approval. The Town agrees that subject to compliance with all
conditions of approval, specifically including the Conditions set forth in Exhibit C
attached hereto and incorporated herein by this reference, and subject to the terms and
conditions of this Agreement, the Final Plat of Buck Creek PiJD First Amendment shall
be promptly filed for recording with the Office of the Eagle County Clerk and Recorder.
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2. Completion of Work.
(a) Performance. Subdivider and GRNSS agree to furnish all
equipment, labor and material necessary to perform and complete, in a good and
workmanlike manner, all Improvements and work incidental thereto ( "the Work ") as
depicted on the Approved Plans for Lots 2, 3 and 5 as set forth in Exhibit A. Subdivider
and GRNSS further agree that each will be responsible for all costs of Improvements as
set forth in Exhibit B, Public Improvements Construction Cost Estimate, for Lots 2, 3 and
5. Said Work shall be performed in accordance with the Approved Plans. Subdivider
and GRNSS agree to commence construction of Improvements prior to the issuance of
any building permit for any improvements upon Lots 2, 3 and 5 and to complete the
Improvements prior to the issuance of a Certificate of Occupancy for any building upon
Lots 2, 3 or 5 served by the Improvements. Commencement of construction of
Improvements shall be deemed to mean the award and execution of contracts for the
construction of the Improvements as depicted on Exhibit A for Lots 2, 3 and 5.
(b) Inspection Procedures.
(1) All work shall be done under the inspection procedures and
standards established by the Town and Holy Cross Energy, Eagle River Water and
Sanitation District, Excel Energy, Qwest Communications, Comc.ast or any other utility
( "Utilities "), as applicable and shall be subject to the reasonable satisfaction of the Town
and applicable Utilities. All work shall not be deemed complete until the reasonable
approval and acceptance of the Improvements for Lots 2, 3 and 5 by the Town and /or the
Utilities. Such inspections by the Town and Utilities shall not relieve the Subdivider or
GRNSS or their agents from any responsibility or obligation to assure that all work is
completed in conformance with all standards, plans and specifications as submitted to and
previously approved by the Town and Utilities. No disbursements for the costs of actual
construction of the Improvements shall be made without written authorization from the
Town Engineer. Submittal of Letters of Construction Acceptance shall be required from
the deep utility provider for those facilities then under construction for which payment is
then being requested before such a disbursement may be approved and other
infrastructure constructed above such facilities. The Town Engineer shall approve or
reject any disbursement request within six (6) working days of receipt or the requirement
for approval is waived.
(2) Cost of Inspections. The cost, if any, of such inspections,
by Town employees, or an independent third party inspector, shall be paid by the
Subdivider and GRNSS, subject to the limitations set forth in paragraph 7 below.
(3) Notice of Non - Compliance. In the event that the Town
through its inspectors reasonably determines that the Improvements are not in compliance
with the Approved Plans, it shall give written notice of such non - compliance ("Notice of
Non - Compliance") to the Subdivider and GRNSS. The Notice of Non - Compliance shall
include a narrative describing the unsatisfactory construction work with specific reference
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to the applicable construction plans and specifications. The Notice of Non - Compliance
must be provided to the Subdivider and GRNSS within two (2) working days of the date
of the inspection.
3. Security for Completion of Improvements and Obligation _ s. To secure
completion of those Improvements which serve I_.ots 2, 3 and 5, the cost of which shall be
shared by Subdivider and GRNSS, the Subdivider and GRNSS hereby agree to secure
their respective obligations under this Agreement by separate Irrevocable Letters of
Credit from the Subdivider and GRNSS in an amount equal to one - hundred -ten percent
(I 10 %) of the estimated cost of completion of the Improvements as set forth on Exhibit B
and in a form acceptable to the Town, or by any other form of collateral authorized by
Section 16.24.100(2) of the Code ( "Collateral "), prior to the commencement of the
construction of any Improvements serving Lots 2, 3 and 5 by the Subdivider and GRNSS.
No disbursements for the costs of actual construction of the Improvements shall be made
without written authorization from the Town Engineer. Submittal of Letters of
Construction Acceptance shall be required from the deep utility provider for those
facilities then under construction for which payment is then being requested before such a
disbursement may be approved and other infrastructure constructed above such facilities.
The Town Engineer shall approve or reject any disbursement request within six (6)
working days of receipt or the requirement for approval is waived. In the event change
orders or cast increases for the Improvements occur, the Town shall be notified within
two (2) working days and the Collateral shall be increased, if necessary, to maintain an
amount equal to one hundred and ten percent (I 10 %) of the estimated costs of completion
of the Improvements as set forth on Exhibit B, plus such cost increases.
Subdivider Improvements.
(a) Security for Completion of Improvements. Subdivider and
GRNSS shall deliver to the Town Collateral in an amount equal to one hundred and ten
percent (110 %) of the estimated costs of completion of the Improvements for Lots 2, 3
and 5 as set forth on Exhibit B as determined by an engineer licensed in the State of
Colorado and as approved by the Town Engineer. Construction of such Improvements,
the cost of which shall be shared by Subdivider and GRNSS, shall be secured by separate
Irrevocable Letters of Credit from the Subdivider and GRNSS in a form and amounts
acceptable to the Town, or by any other form of collateral authorized by Section
1 6.24.100(2) of the Code, prior to the commencement of the construction of any such
Improvements serving Lots 2, 3 and 5 by the Subdivider and GRNSS. No disbursements
for the costs of actual construction of the Improvements shall be made without written
authorization from the Town Engineer. Submittal of Letters of Construction Acceptance
shall be required from the deep utility provider for those facilities then under construction
for which payment is then being requested before such a disbursement may be approved
and other infrastructure constructed above such facilities. The Town Engineer shall
approve or reject any disbursement request within six (6) working days of receipt or the
requirement for approval is waived.
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(b) Progress Payments on Improvements. Upon completion of
itemized Improvements which serve Lots 2, 3 and 5 for which cost estimates have been
set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7
below verifying that itemized portions of such Improvements have been completed and
provided that Subdivider and GRNSS are not in default under any of their other
obligations to the Town, the amount of Collateral may be reduced periodically; provided,
however, that in no event will any such reduction cause the amount of remaining
Collateral to be less than an amount equal to one hundred and ten percent (I 10 %) of the
estimated costs of completion of all remaining Improvements for Lots 2, 3 and 5. No
disbursements for the costs of actual construction of the Improvements shall be made
without written authorization from the Town Engineer. Submittal of Letters of
Construction Acceptance shall be required from the deep utility provider for those
facilities then under construction for which payment is then being requested before such a
disbursement may be approved and other infrastructure constructed above such facilities.
The Town Engineer shall approve or reject any disbursement request within six (5)
working days of receipt or the requirement for approval is waived. Upon completion of
all Work related to such Improvements and the Town's and Utility's acceptance of such
Improvements and provided Subdivider and GRNSS are not in default under any of their
other obligations to the Town, the entire amount of remaining Collateral less those
amounts described in paragraph 5 below shall be promptly released.
(c) Default by Subdivider or GRNSS. In the event of a default in
whole or in part by Subdivider or GRNSS in the completion of Improvements for Lots 2,
3 and 5, the Town shall be authorized, but not obligated, to draw on the Collateral for the
purpose of undertaking completion or remediation work on the Improvements for Lots 2,
3 and 5, or otherwise curing any default hereunder after providing thirty (30) days'
advance written notice of default and providing an opportunity during such period for
Subdivider and GRNSS to cure the default. The Town shall be entitled, but not
obligated, to draw on the Collateral by Resolution of the Town Council or Certificate of
the Town Engineer stating (i) that Subdivider or GRNSS is in default, and (ii) the funds
are required in order to complete or correct work on the Improvements for Lots 2, 3 or 5,
or to otherwise cure Subdivider's or GRNSS's default.
5. Warranty Period, The Improvements for Lots 2, 3 and 5 shall be
warranted to be free from defects in workmanship or quality for a period of two (2) years
after approval of the Work by the Town. In the event of any such defect, the Town may
require Subdivider and GRNSS to correct the defect in material or workmanship. Ten
percent (10 %) of the total actual cost of completion of all Improvements shall be retained
by the Town as Collateral during such two (2) year period as a guaranty of performance
of any work required pursuant to the above described warranty. In the event any
corrective work is performed during the two -year warranty period then the warranty on
said corrected work shall be extended for two (2) years from the date on which it is
completed. Collateral equal to 125% of the cost of any corrected work, as estimated by
the Town, shall be retained by the Town or immediately paid to the Town by the
Subdivider or GRNSS, if sufficient funds are not held by the Town, in accordance with
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Section 16.24.100, for a period of two (2) years from the date of completion of the
corrected work.
6. Engineering Certification. Upon completion of portions of the
Improvements for Lots 2, 3 and S. Subdivider and GRNSS will cause their engineers
(who shall have been actively engaged in observing the construction of the Improvements
and be registered in the State of Colorado) to provide a written opinion, to the satisfaction
of the Town Engineer, that based upon on -site observation, review of sufficient
construction - observation reports, field test reports and material test reports and
certifications by qualified personnel, the installation of the Improvements, or portions
thereof as may be completed from time to time, have been completed, to the best of their
knowledge and professional judgment, in conformance with all standards, plans and
specifications as submitted to and previously approved by the Town, or the pertinent
utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as-
constructed plans and other supporting documentation shall be submitted with the
certification. The as- constructed plans shall be submitted on paper and in a digital
format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
7. Subdivision and Inspection Fees. Fees in accordance with the Town's
Subdivision Regulations for the review of Preliminary Plans and Final Plats have been
paid in full by Subdivider. Additional fees, if any, shall be paid by the Subdivider and
GRNSS within thirty (30) days after delivery of written invoice for such fees to cover the
cost of inspections by the Town. The fees, if any, will be based on direct (out -of- pocket)
costs of the Town plus an administrative fee in the amount of fifteen (15 %) percent of the
direct costs, but in no event will the total amount of such additional inspection fees
exceed five percent (5 %) of construction costs.
8. No Obligation of Town to Complete Improvements. Subdivider and
GRNSS agree that in the event they shall fail to perform their obligations as set forth
herein, the Town shall be under no obligation to complete any of the said Improvements
for Lots 2, 3 and 5 or to issue permits for development of these Lots within the
Subdivision and that the Town, in the exercise of its sole and absolute discretion, may
apply the Collateral to curing the default of Subdivider and GRNSS under any of their
other obligations to the Town under this Agreement.
9. Non-Liability f Town, hidemnification. The Town shall not, nor shall
any officer, agent, or employee thereof, be liable or responsible for any accident, loss or
damage related to the Work specified in this Agreement, nor shall the Town, nor any
officer, agent or employee thereof, be liable for any persons or property injured by reason
of the nature of said Work. To the extent permitted by law, Subdivider and GRNSS
hereby agree to indemnify and hold harmless the Town, and any of its officers, agents and
employees against any losses, claims, damages or liabilities to which the Town or any of
its officers, agents or employees may become subject, because of any losses, claims,
damages or liabilities (or actions in respect thereof) that arise out of, or are based upon,
any acts or omissions in the performance of the obligations of Subdivider or GRNSS. as
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hereinbefore stated. Furthermore, the Subdivider and GRNSS shall reimburse the Town
for any and all legal or other expenses reasonably incurred by the Town in connection
with investigating or defending any such loss or claim. Subdivider and GRNSS
acknowledge that Town's approval of the Final Plat shall not be construed as an approval
of the technical correctness of the Final Plat or any documentation related thereto.
10. Rights of Town in Event of Default. In the event that Subdivider or
GRNSS defaults in whole or in part in the performance of this Agreement, and after the
expiration of thirty (30) days after having given written notice to Subdivider and GRNSS
of such default during which period of time the Subdivider and GRNSS fail to correct
said default, the Town may, at its sole discretion, proceed with the construction or
completion of the Improvements for Lots 2, 3 and 5 specified on Exhibit A, or may, in its
sole discretion, take such steps, such as erosion control measures or safety measures,
which it deems necessary to secure the site in the event of abandonment of the Work..
All such costs paid by the Town to construct or complete the Improvements or to secure
the site, together with an administrative fee in the amount of fifteen percent (15 %) of total
direct costs including cost of personnel, equipment and other amounts expended by the
Town in furtherance of the construction responsibilities of Subdivider and GRNSS, shall
be paid by Subdivider and GRNSS in equal shares. Any such costs relating to such
Improvements, which have not been paid or reimbursed by Subdivider or GRNSS , shall
be a debt of Subdivider and GRNSS and a lien on any property in the Subdivision owned
by Subdivider or GRNSS at the time of default. Said lien may be foreclosed in the same
manner as a tax lien and shall entitle the Town to add its costs and reasonable attorneys'
fees in such foreclosure or other collection. In addition to or in lieu of the foregoing, the
Town may bring a mandatory injunction action against Subdivider and GRNSS to require
installation and construction of the Improvements. If any such action is brought by the
Town, the Town shall be awarded its court costs, attorneys' fees and an amount to
compensate the Town for the time of its employees in the preparation of and participation
in such action. The Town may also withhold any further permitting or processing of
development applications for Lots 2, 3 or 5 during any period of default.
11. Letter Certifying _Completion and Final Acceptance of Improvements.
When all Improvements for Lots 2, 3 and 5 have been completed and accepted by the
Town, or the pertinent utility supplier, and the Warranty Period has expired and provided
that Subdiver and GRNSS are not in default under any of their other obligations to the
Town under this Agreement, the Town agrees that it will issue a letter, after consultation
with the pertinent utility supplier if necessary-, in recordable form, certifying that all
obligations of Subdivider and GRNSS under this Agreement have been satisfied.
12. Amendments. This Agreement may be amended from time to time,
provided that such amendment is in writing and signed by all parties hereto.
13. Covenants Running with the Land. This Agreement and the obligations
hereof shall be deemed to be covenants running with the land and shall be binding on the
successors and assigns of the parties hereto.
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14. Governing Law, Venue, and Enforcement. This Agreement shall be
governed by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Agreement shall be in the appropriate court for Eagle County,
Colorado. To reduce the cost of dispute resolution and to expedite the resolution of
disputes under this Agreement. the Parties hereby waive any and all right either may have
to request a jury trial in any civil action relating primarily to the enforcement of this
Agreement. The Parties agree that the rule that ambiguities in a contract are to be
construed against the drafting party shall not apply to the interpretation of this
Agreement. If there is any conflict between the language of this Agreement and any
exhibit or attachment, the Ianguage of this Agreement shall govern.
15. Non - Liability of Town for Indirect or Consequential Damages or Lost
Profits. The Parties agree that the Town shall not be liable for indirect or consequential
damages, including lost profits that result from the Town's declaration that Subdivider or
GRT SS is in default of the Agreement, so long as the Town acts in good faith.
16. Incorporation of Exhibits. Unless otherwise stated in this Agreement..
exhibits, applications, or documents referenced in this Agreement shall be incorporated in
this Agreement for all purposes. In the event of a conflict between any incorporated
exhibit and this Agreement, the provisions of this Agreement shall govern and control.
17. Assignment and Release. All or part of the rights, duties, obligations,
responsibilities, or benefits set forth in this Agreement shall not be assigned by
Subdivider or GRNSS without the express written consent of the Town Council of the
Town. Any written assignment shall expressly refer to this Agreement, specify the
particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not
be effective unless approved by resolution or motion of the Town Council of the Town.
No assignment shall release Subdivider or GRNSS from performance of any duty,
obligation, or responsibility unless such release is clearly expressed in such written
document of assignment.
I& No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall create a contractual relation with, cause of action in favor of, or claim
for relief for, any third party, including any agent, sub - consultant or sub - contractor of the
Subdivider or GRNSS. Absolutely no third party beneficiaries are intended by this
Agreement. Any third -party receiving a benefit from this Agreement is an incidental and
unintended beneficiary only.
( Signature pages follow I
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The parties hereto have executed this Agreement as of the date first above written,
fw Irk
APPROVED AS TQ FORM:
Town tt� orney
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TOWN OF AVON, a Colorado Municipal
Corporation
By:
Mayor
TANAVON CORPORATION, a Colorado
corporation ( "Subdivider ")
B
y: :
President
GORE RANGE NATURAL SCIENCE
SCHOOL NON - PROFIT CORPORATION
( "GRNSS ")
Markian Feduschak
Executive Director
EXHIBIT A
Subdivision Improvements Agreement for Lots 2, 3 and S
APPROVED PLANS:
Construction Drawings
Town of Avon, Colorado
20
Sheets I through_
Release Date: 20
Prepared by:
* As of the date of execution of this Subdivision Improvements Agreement, the
construction plans submitted to the Town of Avon have not been approved by the
Town Engineer. These construction plans shall be approved by the Town Engineer
before the commencement of actual construction of the Improvements therein
described.
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EXHIBIT B
Subdivision Improvements Agreement for Lots 2, 3 and 5
IMPROVEMENTS CONSTRUCTION COST ESTIMATE
00 ] 74650 DOC /4, 10
200927823 10 of 13
EXHIBIT C
Subdivision Improvements Agreement for Lots 2, 3 and 5
CONDITIONS
1. Before commencement of any of the Work depicted on the Approved Plans for the
actual construction of Improvements for Lot 1 A and Lot I B, Subdivider, District and
GRNSS stipulate and agree that:
(a) Tanavon, the District and GRNSS shall secure approval from the U.S. Army
Corps of Engineers ("Corps ") of the delineation of the wetlands areas within the
Buck Creek PUD First Amendment, Corps approval of mitigation of wetlands
impacts either on -site or from the Wetlands Bank, and shall obtain any required
404 Permit from the Corps for the construction activities proposed by the
Approved Plans. Copies of all such documentation shall be submitted to the
Town for acceptance by the Town Engineer. The Approved Plans may be updated
with the approval of the Town Engineer to include any modifications required for
wetlands delineation or mitigation required by the Corps.
(b) Tanavon, the District and GRNSS shall obtain written approval of the
Construction Plans for utilities from all utility providers and submit the approvals
to the Town Engineer.
(e) The Final Drainage Report shall be accepted by the Town Engineer.
(d) Tanavon and GRNSS shall dedicate to the Town a fifteen (15) foot wide
easement, generally following the "Buck Creek Connection" trail depicted on the
map (dated 4113109) produced by the Town's Community Development
Department through Lots 1 B, 2, and 3, Buck Creek PUD First Amendment, for
the construction and use by the general public of a recreation path. No Lot Owner
within the Buck Creek PUD First Amendment shall be responsible for
constructing or maintaining this recreation path. Colorado law with respect to
recreational trails shall be complied with by the Town and, to the extent permitted
by law, Town shall indemnify Tanavon and GRNSS, their successors and assigns,
against claims for injury, damage or loss by users of this recreation path. The
Town anticipates constructing and maintaining the recreation path, subject to
available funds and appropriations. Reference Ordinance 09 -08, Section 2.A.
2. Construction of Improvements for Lots 2, 3 and 5 pursuant to the Phase 11
Subdivision Improvements Agreement cannot start before the construction of
Improvements for Lot I and Lot 1B pursuant to the Phase 1 Subdivision Improvements
Agreement, but may be constructed concurrently with the Improvements for Lot 1 A and
Lot I B pursuant to the Phase I Subdivision Improvements Agreement
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BUCK CREEK FINAL PLAT
8- Dec -09
Lots 1 -5 Infrastructure SIA Cost Summary
Total Lot 1A Infrastructure Costs
Shared
Individual
FD Costs
S -
FD Costs
$ 279,078.10
S 79,449.50
S
358,527.60
GRNSS Costs
$ 226,135.85
$ -
S
226,135.85
Townhome Costs
S 283,23248
S 9,745.25
S
292,977.73
Total Infrastructure Costs S 1,481,909.46
J $522,231.03
Subtotal Lot 1 A
S
877.641.18
Total Lots 215 Infrastructure Costs Shared
Individual
Individual
FD Costs
S -
S -
S
GRNSS Costs
S 346,731.51
S
S 346,731.51
Townhome Costs
$ 346,731.51
S 47,090,00
S 393,821.51
$ -
Subtotal Lots 2(5
$ 740,553.02
Total Lot 3 Infrastructure Costs
Shared
Individual
FD Costs
S -
S
S -
GRNSS Costs
S -
S 385,946.28
$ 385,946.28
Townhome Costs
S
S -
$ -
S 629,963.99
Subtotal Lot 3 $ 385,946.28
TOTAL COSTS
Shared
individual
Total
FD Costs Lot 1 A
S 279.078.10
5 79,449.50
S 358,527.60
GRNSS Costs Lot 5
S 572,867.36
S 385,946.28
S 958,813.65
Townhome Costs Lots 1B, 2, 5
S 629,963.99
S 56,835.25
S 686,799.24
Total Infrastructure Costs S 1,481,909.46
J $522,231.03
1
S 2,004,140.49
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200927823 11 of 13
3. Prior to issuance of any building permit for Lot 2, Lot 3 or Lot 5, all of the
Improvements for Lot IA and Lot lB pursuant to the Phase I Subdivision Improvements
Agreement and all of the Improvements for Lots 2, 3 and 5 pursuant to the Phase II
Subdivision Improvements Agreement shall be completed, inspected and accepted by the
utility providers, and inspected and approved by the Town of Avon.
4. Prior to issuance of any building permit for Lots 2, 3 and 5, Buck Creek PUD First
Amendment,; construction drawings of all proposed retaining walls (including retaining
walls necessary for Buck Creek Lane) and load calculations for retaining walls
demonstrating slope stability shall be submitted to the Town for approval by the Town
Engineer. Reference: Ordinance 09 -08, Section 2.13.
5. Lot I A and/or Lot 3 shall be constructed and shall receive a certificate of occupancy
prior to issuance of any residential permits for Lot 1 B or Lot 2. Reference: Ordinance
09 -08, Section I .A.
(00 174650 DOC / 4) 12
200827823 13 of 13
EAGLE COUNTY, CO 200927822
TEAK J SIMONTON
Pgs= 25 02:03:45PM 12r3er200s
REC: $136.00 DOC: $
PHASE I SUBDIVISION IMPROVEMENTS AGREEMENT
FOR LOT lA AND LOT IB BUCK CREEK PUD FIRST AMENDMENT � ,f
THIS AGREEMENT, made and entered into this —day of December, 2009, is
by and among Tanavon Corporation, a Colorado corporation, 108 S. Frontage Road,
Suite 208, Vail, CO 81657 ( "Subdivider "), the Eagle River Fire Protection District, a
political subdivision of the State of Colorado, 90 Benchmark Road, Suite 101, Avon, CO
81620 ("District "), Gore Range Natural Science School Non -Profit Corporation, 82
E. Beaver Creek Blvd., Suite 202, P.O. Box 9469, Avon, CO 81620 ("GRNSS "), and the
Town of Avon, a Colorado municipality, by and through its Council (the "Town ").
RECITALS
WHEREAS, the Subdivider, in connection with the approval of the final plat for
the Buck Creek PUD First Amendment, consisting of 15.796 acres, formerly known as
Lots 1, 2, 3, and 4, Wildwood Resort, Town of Avon, Eagle County, Colorado (the
"Subdivision "), desires to enter into this Phase 1 Subdivision Improvements Agreement
( "Agreement ") for Lot I and Lot I with the Town as provided for by Section
16.24.100 of the Avon Municipal Code, as amended (the "Code "); and
WHEREAS, pursuant to the Code, the Town desires to make reasonable
provisions for completion of certain improvements ( "Improvements') as depicted on the
plans approved by the Town for the Buck Creek PUD First Amendment, dated December
—, 2009, ( "Approved Plans ") and as set forth in Exhibit A attached hereto and
incorporated herein by reference, together with minor changes approved by the Town
Engineer; and
WHEREAS, the Subdivider, District and GRNSS, as the owners or as contract
purchaser of all of the Lots within the Buck Creek PUD First Amendment, have agreed to
be jointly responsible for the completion of the Improvements for Lot I A and Lot 1 B
within the Subdivision.
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants,
conditions and promises, the parties hereby agree as follows:
I. Final Plat Approval. The Town agrees that subject to compliance with all
conditions of approval, specifically including the Conditions set forth in Exhibit D
attached hereto and incorporated herein by this reference, and subject to the terms and
conditions of this Agreement, the Final Plat of Buck Creek PUD First Amendment shall
be promptly filed for recording with the Office of the Eagle County Clerk and Recorder.
i 00174648 DOC l 4 }
200927822 1 of 25
Completion of Work.
(a) Performance. Subdivider, District and GRNSS agree to furnish all
equipment, labor and material necessary to perform and complete, in a good and
workmanlike manner, all Improvements and work incidental thereto ("the Work ") as
depicted on the Approved Plans for Lot I and Lot I B as set forth in Exhibit A.
Subdivider, District and GRNSS further agree that each will be responsible for all costs
of Improvements as assigned by the Contract to Buy and Sell Real Estate and all
Amendments thereto between Subdivider and District ( "Contract "). Said Work shall be
performed in accordance with the Approved Plans. Subdivider, District and GRNSS
agree to commence construction of such Improvements prior to the issuance of any
building permit for any improvements upon Lot I A and Lot 1 B and to complete the
Improvements prior to the issuance of a Certificate of Occupancy for any building upon
Lot I and Lot 1 B served by the Improvements. Commencement of construction of
Improvements shall be deemed to mean the award and execution of contracts for the
construction of the Improvements for Lot 1 A and Lot l B as depicted on Exhibit A.
(b) Inspection Procedures.
(1) All work shall be done under the inspection procedures and
standards established by the Town and Holy Cross Energy, Eagle River Water and
Sanitation District, Excel Energy, Qwest Communications, Comcast or any other utility
( "Utilities "), as applicable and shall be subject to the reasonable satisfaction of the Town
and applicable Utilities. All work shall not be deemed complete until the reasonable
approval and acceptance of the Improvements by the Town and /or the Utilities. Such
inspections by the Town and Utilities shall not relieve the Subdivider, the District or
GRNSS or their agents from any responsibility or obligation to assure that all work is
completed in conformance with all standards, plans and specifications as submitted to and
previously approved by the Town and Utilities. No disbursements for the costs of actual
construction of the Improvements shall be made from the cash escrow without written
authorization from the Town Engineer. Submittal of Letters of Construction Acceptance
shall be required from the deep utility provider for those facilities then under construction
for which payment is then being requested before such a disbursement may be approved
and other infrastructure constructed above such facilities. The Town Engineer shall
approve or reject any disbursement request within six (6) working days of receipt or the
requirement for approval is waived.
(2) Cost of Inspections. The cost, if any, of such inspections,
by Town employees, or an independent third party inspector, shall be paid by the
Subdivider, the District, and GRNSS, subject to the limitations set forth in paragraph 7
below.
(3) Notice of Non- Compliance. In the event that the Town
through its inspectors reasonably determines that the Improvements are not in compliance
with the Approved Plans, it shall give written notice of such non - compliance ( "Notice of
(00 t 74648 DOC /41
200927822 2 of 25
Non - Compliance ") to the Subdivider, the District and GRNSS. The Notice of Non-
Compliance shall include a narrative describing the unsatisfactory construction work with
specific reference to the applicable construction plans and specifications. The Notice of
Non- Compliance must be provided to the Subdivider, the District and GRNSS within two
(2) working days of the date of the inspection.
3. Security for Completion of Improvements and Obligations. To secure
completion of the Improvements to Lot lA and Lot 113 and Subdivider's obligations to
the Town hereunder, the Subdivider, the District and GRNSS hereby agree to secure their
respective obligations under this Agreement with a cash escrow to be held by and
disbursed by the District for payment of the costs of construction of such Improvements
in accordance with Section 16.24. 100 of the Code, as more fully described in Exhibit C
attached hereto and incorporated herein by this reference. Subdivider also agrees to
provide additional security (hereinafter referred to as the "Contingency Fund ") in the
amount of One - Hundred- Thousand and no /100 ($100,000.00) Dollars to be placed in
separate escrow account with Land Title Guarantee Company by Subdivider as the
independent entity required to hold an amount equal to 10% of the Estimated Costs of
Construction of the Improvements during the period of construction and to secure the
Subdivider's Guarantee of the Improvements for two (2) years after the completion of the
Improvements. If Subdivider establishes a separate escrow account with Land Title
Guarantee Company, it shall do so pursuant to a separate escrow agreement in a form
acceptable to the Town. In the alternative, Subdivider may provide a separate Irrevocable
Letter of Credit in the amount of $100,000.00 and in a form acceptable to the Town as the
Contingency Fund, No disbursements for the costs of actual construction of the
Improvements shall be made from the cash escrow without written authorization from the
Town Engineer. Submittal of Letters of Construction Acceptance shall be required from
the deep utility provider for those facilities then under construction for which payment is
then being requested before such a disbursement may be approved and other
infrastructure constructed above such facilities. The Town Engineer shall approve or
reject any disbursement request within six (6) working days of receipt or the requirement
for approval is waived. In the event change orders or cost increases for the Improvements
occur, the Town shall be notified within two (2) working days and the cash escrow shall
be increased, if necessary, to maintain an amount equal to one hundred percent (100 %) of
the estimated costs of completion of the Improvements as set forth on Exhibit B, plus
such cost increases. The Contingency Fund provided by the Subdivider shall serve as
additional collateral that shall not be released until after completion of the Improvements
and until after inspection and approval of the Improvements by the Town.
4. Subdivider Improvements.
(a) Security for Completion of Improvements. Subdivider, the District
and GRNSS shall establish a cash escrow to be held by and disbursed by the District for
payment of the costs of construction of the Improvements for Lot 1 A and Lot 1 B in an
amount equal to one hundred and ten percent (110 %) of the estimated costs of completion
of the Improvements as set forth on Exhibit B as determined by an engineer licensed in
{ 00174648 Doc/ 4
200927822 3 of 25
the State of Colorado and as approved by the Town Engineer. A cash escrow in the
amount of Nine- Hundred- Thousand and no /100 Dollars ($900,000.00) shall be delivered
to the District on January 4, 2010 and written confirmation of the funding of the cash
escrow shall be provided to the Town on that date. An Agreement for Cash Escrow is
attached hereto as Exhibit C and is incorporated herein by this reference. An additional
One - Hundred - Thousand and no /100 ($100.000.00) Dollars shall be placed in separate
escrow account (Contingency Fund) with Land Title Guarantee Company by Subdivider
as the independent entity required to hold an amount equal to 10% of the Estimated Costs
of Construction of the Improvements during the period of construction and to secure the
Subdivider's Guarantee of the Improvements for two (2) years after the completion of the
Improvements. If Subdivider establishes a separate escrow account with Land Title
Guarantee Company, it shall do so pursuant to a separate escrow agreement in a form
acceptable to the Town. In the alternative, Subdivider may provide a separate Irrevocable
Letter of Credit in the amount of $100,000.00 and in a form acceptable to the Town as the
Contingency Fund. No disbursements for the costs of actual construction of the
Improvements shall be made from the cash escrow without written authorization from the
Town Engineer upon submittal of Letters of Construction Acceptance from the Utilities
for those facilities then under construction for which payment is then being requested.
The Town Engineer shall approve or reject any disbursement request within six (6)
working days of receipt or the requirement for approval is waived. In no event shall
disbursements from the cash escrow held by the District result in less than 100% of the
estimated costs of the remaining Improvements being held in this cash escrow. The
additional $100,000.00 provided by the Subdivider in the Contingency Fund shall serve
as additional collateral that shall not be released until after completion of the
Improvements and until after inspection and approval of the Improvements by the Town.
(b) Progress Payments on Improvements. Upon completion of
segments of or portions of the Improvements which serve Lot 1 A and Lot I B for which
cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as
specified in paragraph 7 below verifying that itemized portions of the Improvements have
been completed and provided that Subdivider, District and GRNSS are not in default
under any of their other obligations to the Town, the amount of cash escrow to be held by
and disbursed by the District for payment of the costs of construction of the
Improvements may be reduced periodically to pay the costs of the Improvements;
provided, however, that in no event will any such reduction cause the amount of
remaining cash escrow and the contingency fund to be less than an amount equal to one
hundred ten percent (110 %) of the estimated costs of completion of all remaining
Improvements for Lot IA and Lot 1B. No disbursements for the costs of actual
construction of the Improvements shall be made from the cash escrow without written
authorization from the Town Engineer. Submittal of Letters of Construction Acceptance
shall be required from the deep utility provider for those facilities then under construction
for which payment is then being requested before such a disbursement may be approved
and other infrastructure constructed above such facilities. The Town Engineer shall
approve or reject any disbursement request within six (6) working days of receipt or the
requirement for approval is waived. Upon completion of all work related to such
00174648 DOC 141
200927822 4 of 25
Improvements and the Town's and Utility's acceptance of the Improvements and provided
Subdivider, District and GRNSS are not in default under any of their other obligations to
the Town, the entire amount of the remaining cash escrow to be held by and disbursed by
the District for payment of the costs of construction of the Improvements below shall be
promptly disbursed to the contributors in proportion to the original contributions. The
Contingency Fund shall continue to be held for the Subdivider for the purposes herein
described. Regular written reports shall be provided to the Town by the District showing
all receipts and disbursements from the cash escrow.
(c) Default by Subdivider. District or GRNSS. In the event of a
default in whole or in part by Subdivider or the District or GRNSS in the completion of
Improvements for Lot 1 A and Lot 1 B, the Town shall be authorized, but not obligated, to
draw on the cash escrow held by the District or the Contingency Fund, or both, for the
purpose of undertaking completion or remediation work on the Improvements for Lot 1 A
and Lot IB, or otherwise curing any default hereunder after providing thirty (30) days'
advance written notice of default and providing an opportunity during such period for
Subdivider, the District and GRNSS to cure the default. The Town shall be entitled, but
not obligated, to draw on the cash escrow held by the District or the Contingency Fund by
Resolution of the Town Council or Certificate of the Town Engineer stating (i) that
Subdivider or the District or GRNSS is in default, and (ii) the funds are required in order
to complete or correct work on the Improvements for Lot 1 A or Lot I B, or to otherwise
cure Subdivider's or the District's or GRNSS' default.
5. Warranty Period. The Improvements for Lot I A and Lot 1 B shall be
warranted to be free from defects in workmanship or quality for a period of two (2) years
after approval of the Work by the Town. In the event of any such defect, the Town may
require Subdivider, the District and GRNSS to correct the defect in material or
workmanship. The Contingency Fund provided by Subdivider and held by Land Title
Guarantee Company equal to at least Ten percent (10 %) of the total actual cost of
completion of all Improvements, or an Irrevocable Letter of Credit in the same amount,
shall be provided by the Subdivider to the Town as security during such two (2) year
period as a guaranty of performance of any work required pursuant to the above described
warranty. In the event any corrective work is performed during the two -year warranty
period then the warranty on said corrected work shall be extended for two (2) years from
the date on which it is completed. An amount equal to 125% of the cost of any corrected
work, as estimated by the Town, shall be maintained in the Contingency Fund held by
Land Title Guarantee Company for the Subdivider or in the form of an Irrevocable Letter
of Credit.
6. Engineering Certification. Upon completion of portions of the
Improvements for Lot I and Lot 1B, Subdivider, District and GRNSS will cause their
engineers (who shall have been actively engaged in observing the construction of such
Improvements and be registered in the State of Colorado) to provide a written opinion, to
the satisfaction of the Town Engineer, that based upon on -site observation, review of
sufficient construction - observation reports, field test reports and material test reports and
:00 17,4648 Doc / 4 }
200927822 5 of 25
certifications by qualified personnel, the installation of such Improvements, or portions
thereof as may be completed from time to time, have been completed, to the best of their
knowledge and professional judgment, in conformance with all standards, plans and
specifications as submitted to and previously approved by the Town, or the pertinent
utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as-
constructed plans and other supporting documentation shall be submitted with the
certification. The as- constructed plans shall be submitted on paper and in a digital
format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
7. Subdivision and Inspection Fees. Fees in accordance with the Town's
Subdivision Regulations for the review of Preliminary Plans and Final Plats have been
paid in full by Subdivider. Additional fees. if any, shall be paid by the Subdivider, the
District and GRNSS within thirty (30) days after delivery of written invoice for such fees
to cover the cost of inspections by the Town. The fees, if any, will be based on direct
(out -of- pocket) costs of the Town plus an administrative fee in the amount of fifteen
(15 %) percent of the direct costs. but in no event will the total amount of such Town
inspection fees exceed five percent (5 %) of construction costs.
8. No Obligation of Town to Complete Improvements. Subdivider, District
and GRNSS agree that in the event they shall fail to perform their obligations as set forth
herein, the Town shall be under no obligation to complete any of the Improvements for
Lot IA or Lot IB or to issue permits for development of such Lots within the Subdivision
and that the Town, in the exercise of its sole and absolute discretion, may apply the cash
escrow held by and disbursed by the District for payment of the costs of construction of
the Improvements, and the Contingency Fund held by Land Title Guarantee Company or
draw upon the Irrevocable Letter of Credit provided by Subdivider, to curing the default
of Subdivider or District or GRNSS under any of their other obligations to the Town
under this Agreement.
9. Non - Liability of Town; Indemnification. The Town shall not, nor shall
any officer, agent, or employee thereof, be liable or responsible for any accident, loss or
damage related to the Work specified in this Agreement, nor shall the Town, nor any
officer, agent or employee thereof, be liable for any persons or property injured by reason
of the nature of said Work. To the extent permitted by law, Subdivider, the District and
GRNSS hereby agree to indemnify and hold harmless the Town, and any of its officers,
agents and employees against any losses, claims, damages or liabilities to which the
Town or any of its officers, agents or employees may become subject, because of any
losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are
based upon. any acts or omissions in the performance of the obligations of Subdivider or
District or GRNSS, as hereinbefore stated. Furthermore, the Subdivider, the District and
GRNSS shall reimburse the Town for any and all legal or other expenses reasonably
incurred by the Town in connection with investigating or defending any such loss or
claim. Subdivider, District and GRNSS acknowledge that Town's approval of the Final
Plat shall not be construed as an approval of the technical correctness of the Final Plat or
any documentation related thereto.
( 00174648 DOC / 41
200927822 6 of 25
10. Rights of Town in Event of Default. In the event that Subdivider, District
or GRNSS defaults in whole or in part in the perfonnance of this Agreement, and after
the expiration of thirty (30) days after having given written notice to Subdivider, the
District and GRNSS of such default during which period of time the Subdivider, the
District and GRNSS fail to correct said default, the Town may, at its sole discretion,
proceed with the construction or completion of the Improvements for Lot 1 A and Lot 1 B
specified on Exhibit A, or may, in its sole discretion, take such steps, such as erosion
control measures or safety measures, which it deems necessary to secure the site in the
event of abandonment of the Work. All such costs paid by the Town to construct or
complete the Improvements or to secure the site, together with an administrative fee in
the amount of fifteen percent (15 %) of total direct costs including cost of personnel,
equipment and other amounts expended by the Town in furtherance of the construction
responsibilities of Subdivider, shall be paid by Subdivider and GRNSS (2/3) and by
District (1/3 reduced to 1/6 if the District's obligation for Shared Costs exceeds
5300,000.00) as their several obligations are stated herein. Any such costs relating to the
such Improvements for Lot I and Lot IB, which have not been paid or reimbursed from
the cash escrow, shall be a debt of Subdivider and District and a lien on any property in
the Subdivision owned by Subdivider or GRNSS at the time of default. Said lien may be
foreclosed in the same manner as a tax lien and shall entitle the Town to add its costs and
reasonable attorneys' fees in such foreclosure or other collection. In addition to or in lieu
of the foregoing, the Town may bring a mandatory injunction action against Subdivider,
the District and GRNSS to require installation and construction of such Improvements. If
any such action is brought by the Town, the Town shall be awarded its court costs,
attorneys' fees and an amount to compensate the Town for the time of its employees in the
preparation of and participation in such action. The Town may also withhold any further
permitting or processing of development applications for the Property during any period
of default.
11. Letter Certifying Completion and Final Acceptance of Improvements.
When all Improvements for Lot I and Lot 1B have been completed and accepted by the
Town, or the pertinent utility supplier, and the Warranty Period has expired and provided
that Subdivider, the District or GRNSS are not in default under any of their other
obligations to the Town under this Agreement, the Town agrees that it will issue a letter,
after consultation with the pertinent utility supplier if necessary, in recordable form,
certifying that all obligations of Subdivider, the District and GRNSS under this
Agreement have been satisfied.
12. Amendments. This Agreement may be amended from time to time,
provided that such amendment is in writing and signed by all parties hereto.
13. Covenants Running with the Land. This Agreement and the obligations
hereof shall be deemed to be covenants running with the land and shall be binding on the
successors and assigns of the parties hereto.
00 [ 74648 DOC l 4 }
200927 822 7 of 25
14. Governing Law, Venue, and Enforcement. This Agreement shall be
governed by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Agreement shall be in the appropriate court for Eagle County,
Colorado. To reduce the cost of dispute resolution and to expedite the resolution of
disputes under this Agreement, the Parties hereby waive any and all right either may have
to request a jury trial in any civil action relating primarily to the enforcement of this
Agreement. "The Parties agree that the rule that ambiguities in a contract are to be
construed against the drafting party shall not apply to the interpretation of this
Agreement. If there is any conflict between the language of this Agreement and any
exhibit or attachment, the language of this Agreement shall govern.
15. Non - Liability of Town for Indirect or Consequential Damages or Lost
Profits. The Parties agree that the Town shall not be liable for indirect or consequential
damages, including lost profits, that result from the Town's declaration that Subdivider,
the District or GRNSS is in default of the Agreement, so long as the Town acts in good
faith.
16. Incorporation of Exhibits. Unless otherwise stated in this Agreement,
exhibits, applications, or documents referenced in this Agreement shall be incorporated in
this Agreement for all purposes. In the event of a conflict between any incorporated
exhibit and this Agreement, the provisions of this Agreement shall govern and control.
17. Assignment and Release. All or part of the rights, duties, obligations,
responsibilities, or benefits set forth in this Agreement shall not be assigned by
Subdivider, the District or GRNSS without the express written consent of the Town
Council of the Town. Any written assignment shall expressly refer to this Agreement,
specify the particular rights, duties, obligations, responsibilities, or benefits so assigned,
and shall not be effective unless approved by resolution or motion of the Town Council
of the Town. No assignment shall release the Subdivider, the District or GRNSS from
performance of any duty, obligation, or responsibility unless such release is clearly
expressed in such written document of assignment.
18. No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall create a contractual relation with, cause of action in favor of, or claim
for relief for, any third party, including any agent, sub - consultant or sub - contractor of the
Subdivider, the District or GRNSS. Absolutely no third party beneficiaries are intended
by this Agreement. Any third -parry receiving a benefit from this Agreement is an
incidental and unintended beneficiary only.
Signature pages follow
00I 74648 DOC /4r
200927822 8 of 25
The parties hereto have executed this Agreement as of the date first above written.
AT T: t
w k
APPROVED AS TO FORM:
Town attorney
X00174648 DOC /4i
200927822 9 of 25
TOWN OF AVON, a Colorado Municipal
Corporation wW-)
J:
By: _
Mayor
TANAVON CORPORATION, a Colorado
corporation ("Subdivider ")
By: �6_
President
EAGLE RIVER FIRE PROTECTION
DISTRICT ( "District ")
By:
arles Moore
General Manager /Fire Chief
GORE RANGE NATURAL SCIENCE
SCHOOL NON - PROFIT CORPORATION
( "GRNSS'')
Bv:
Markian Feduschak
Executive Director
EXHIBIT A
Subdivision Improvements Agreement for Lot IA and Lot I B
APPROVED PLANS:
Construction Drawings
To,A.-n of Avon, Colorado
20
Sheets 1 through
Release Date: 20
Prepared by:
* As of the date of execution of this Subdivision Improvements Agreement, the
construction plans submitted to the Town of Avon have not been approved by the
Town Engineer. These construction plans shall be approved by the Town Engineer
before the commencement of actual construction of the Improvements therein
described.
00174648 DOC / 4: 10
200927822 10 of 25
EXHIBIT B
Subdivision Improvements Agreement for Lot IA and Lot 1B
IMPROVEMENTS CONSTRUCTION COST ESTIMATE
�00174648 DOC t4)
200927822 11 of 25
BUCK CREEK FINAL PLAT
Lots 1 -5 Infrastructure SIA Cost Summary
Total Lot 1A Infrastructure Costs Shared
Individual
Individual
FD Costs
- ? _279,078.10
S 79,449,50
S 358.527.60
_
GRNSS Costs —
- - - - -5 226.135.85
$
S 226,135,85
Townhome Costs
- S 283,232.48
_
S 9,745.25
S 292,977.73
-- �– — - - --
Subtotal Lot 1 A�
S 877.641.18
Total Lots 215 Infrastructure Costs Shared
Individual
Individual
FD Costs
5 -
S -
$ -
GRNSS Costs
$ 346,731.31
$ -
$ 346.731.51
Townhome Costs
$ 346,731.51
S 47,090.00
$ 393,821.51
S -
Subtotal Lots 215
S 740.553.02
Total Lot 3 Infrastructure Costs
Shared
Individual
ITotal
FD Costs
S -
S
S -
GRNSS Costs
S
S 385,946.28
$ 385,946.28
Townhome Costs
S -
$
S -
Total Infrastructure Costs S 1,481,909.46
Subtotal Lot 3 S 385,946.28
TOTAL COSTS ishared
Individual
I
ITotal
FD Costs Lot 1A S 279,078.10
$ 79,449.S0
S 358,527.60
GRNSS Costs Lot 5 S 572,867.36
S 385,946.28
S 956.613.65
Townhome Costs Lots !P, 2, 5 $ 629,963.99
S 56.835.25
S 686.799.24
Total Infrastructure Costs S 1,481,909.46
1 S 522,231.03
S 2,004,140.49
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Erick cr?ek plat navy rot vet co-)J l�ted Mans a,ri so lha! c:oa,s a,e st b,ect to Lhgr.y EartiwcA ouan?ltte,; c_. �.,>
coulc vwa do. to tare pcbt sx4 ^endtt,cos neted ,n the G i L ar.(, HP So s reports FA Naiso>>,; +,nd corSis were Predwmrnaio(, used ter
the estimate, v hich Y;d; vary condirc.n., ias as niher 48rtor =r
An ind�v+dual ccs' is an -nt thf,+ pally
C -st's m rmpt.+vc?me-u ihrr be,,eAts Mt le !!;A,, ,. ,
200927822 12 of 25
EXHIBIT C
Subdivision Improvements Agreement for Lot IA and Lot IB
AGREEMENT FOR CASH ESCROW
{ 00174618 DOC / 41 12
200927822 13 of 25
BUCK CREEK PUD FIRST AMENDMENT
AGREEMENT FOR CASH ESCROW
THIS AGREEMENT, made and entered into this 8th day of December, 2009, is
by and among Tanavon Corporation, a Colorado corporation, 108 S. Frontage Road,
Suite 208, Vail, CO 81657 ( "Tanavon "), the Eagle River Fire Protection District, a
political subdivision of the State of Colorado, 90 Benchmark Road, Suite 101, Avon, CC
81620 (`District "),and Gore Range Natural Science School Non - Profit Corporation,
82 E. Beaver Creek Blvd., Suite 202, P.O. Box 9469, Avon, CO 81620 ( "GRNSS "),
(collectively the "Parties ").
RECITALS
WHEREAS, the Parties have entered into a Phase I Subdivision Improvements
Agreement ( "SIA ") for Lot I A and Lot I B, Buck Creek PUD First Amendment, with the
Town of Avon ("Town "), as provided for by Section 16.24. 100 of the Avon Municipal
Code, as amended (the "Code"), and
WHEREAS, pursuant to Section 16.24.100(2) of the Code, the Parties are
required to provide collateral which is sufficient to make reasonable provision for the
completion of the improvements ("Improvements ") for Lot I A and Lot I B as depicted on
the plans approved by the Town for the Buck Creek PUD First Amendment, dated
December , 2009. ("Approved Plans ") and as set forth in Exhibit A attached hereto
and incorporated herein by reference, together with minor changes approved by the Town
Engineer; and
WHEREAS. the Tanavon and District have entered into a Second Amendment to
Contract to Buy and Sell Real Estate, dated October 2, 2009, which makes provision for a
cash escrow for payment of the Parties' Shares of Common Development Costs for Lot
1 A and Lot l B to be funded on or before January 4, 2010 by a payment of Three-
Hundred-Thousand Dollars ($300,000.00) from the District for its share of the Common
Development Costs for Lot 1 A and Lot 1 B, and by a payment of Six - Hundred- Thousand
Dollars ($600,000.00) from Tanavon for Tanavon 's and for GRNSS' shares of the
Common Development Costs for Lot I and Lot 1B. Currently, the Common
Development Costs for Lot I and Lot 1B are estimated to be S878,979.99 ( "Estimated
Common Development Costs'), allocated as follows in Exhibit B attached hereto:
Tanavon:
$317,013.33
District:
S312,125.83
$249,840.83
In addition to the cash escrow described above, Tanavon has agreed to provide additional
security (hereinafter referred to as the "Contingency Fund ") in the amount of One -
Hundred- "Thousand and no /l00 Dollars ($100,000.00) to be placed in separate escrow
account with Land Title Guarantee Company by Tanavon as the independent entity
00174702 DOC / 4;
200927822 14 of 25
required to hold an amount equal to 10% of the Estimated Costs of Construction of the
Improvements during the period of construction and to secure the Tanavon's Guarantee of
the Improvements for two (2) years after the completion of the Improvements. If
Tanavon establishes a separate escrow account with Land Title Guarantee Company, it
shall do so pursuant to a separate escrow agreement in a form acceptable to the Town. In
the alternative, Tanavon may provide a separate Irrevocable Letter of Credit in the
amount of S'100,000.00 and in a form acceptable to the Town of Avon.
WHEREAS. the Parties have provided in the Phase I Subdivision Improvements
Agreement for Lot 1 A and Lot 1 B that this funded cash escrow and the Contingency Fund
to be funded by Tanavon and held by Land Title Guarantee Company, or as a separate
Irrevocable Letter of Credit to be provided by Tanavon, shall serve as the collateral
required by the Town to secure the completion of the Improvements for Lot 1 A and Lot
1 B in accordance with the design and time specifications agreed to by the Parties, Section
16.24.100(2).a of the Code.
AGREEMENT
NOW THEREFORE, in consideration of the following mutual covenants,
conditions and promises, the parties hereby agree as follows:
1. Escrow Agent for Cash Escrow. The Parties hereby designate the District
as their Escrow Agent to hold the cash escrow, to deposit said funds in accordance with
the Public Deposit Protection Act, to disburse these funds to pay the Common
Development Costs for Lot 1 A and Lot 1 B, and to make regular reports to the Parties and
to the Town of disbursements and funds available for payment of the Common
Development Costs which the Parties have agreed to fund from the cash escrow. In
acting as the Escrow Agent, District shall not receive any compensation for its services.
No disbursements for the costs of actual construction of the Improvements shall be made
from the cash escrow without written authorization from the Town Engineer. Submittal
of Letters of Construction Acceptance shall be required from the deep utility provider for
those facilities then under construction for which payment is then being requested before
such a disbursement may be approved and other infrastructure constructed above such
facilities. The Town Engineer shall approve or reject any disbursement request within six
(6) working days of receipt or the requirement for approval is waived. In the event
change orders or cost increases for the Improvements occur, the Town shall be notified
within two (2) working days and the cash escrow shall be increased, if necessary, to
maintain an amount equal to one hundred percent (100 %) of the estimated costs of
completion of the Improvements as set forth on Exhibit B, plus such cost increases. The
Contingency Fund provided by the Tanavon shall not be released until after completion of
the Improvements and until after inspection and approval of the Improvements by the
Town.
Upon completion of the Improvements and Final Payment of all costs, the District
as Escrow Agent shall issue a Final Report for the cash escrow to the Parties and disburse
00174702 DOC t 4,
200927822 15 of 25
any funds which may remain in the cash escrow to the District (1/3) and to Tanavon (213)
and the cash escrow shall be closed. Tanavon and the District have agreed that if these
Common Development Costs for Lot I and Lot I exceed $900,000.00, Tanavon shall
pay one -half ('12) of District's one -third (1/3) share of any amount in excess of
$900,000.00, in addition to Tanavon's two - thirds (2 /3rds) share of such excess amount.
District and Tanavon agree to pay such excess amounts due by making additional
payments of the necessary amounts to the cash escrow held by the District as Escrow
Agent.
2. Contingency Fund. Separately from and in addition to the cash escrow to
be held by District as Escrow Agent, Tanavon shall transfer to Land Title Guarantee
Company the additional sum of One Hundred Thousand and no /100 Dollars
($100,000.00) as the independent entity required to hold an amount equal to 10% of the
Estimated Costs of Construction of the Improvements during the period of construction
and to secure the Tanavon's Guarantee of the Improvements for two (2) years after the
completion of the Improvements. If Tanavon establishes a separate escrow account with
Land Title Guarantee Company, it shall do so pursuant to a separate escrow agreement in
a form acceptable to the Town. In the alternative, Tanavon may provide a separate
Irrevocable Letter of Credit in the amount of $100,000.00 and in a form acceptable to the
Town.
3. Completion of Work. District shall oversee the construction of the
Improvements for Lot I and Lot 1B as set forth in the Approved Plans and all work
shall be performed in accordance with the Approved Plans. District shall utilize the
services of Alpine Engineering and Agett, LLC, both of Edwards, Colorado, as Engineers
and as the Construction Consultant to engineer, design, prepare cost estimates and a final
construction budget, bid and supervise all of the construction of the Improvements for Lot
1 A and 1 B, including recommendations and approval of all disbursements by the Escrow
Agent. District, through Alpine Engineering and Agett, LLC, shalt provide development
reports on a regular basis to Tanavon and GRNSS. Before awarding the bid for the
construction of these Improvements, District shall provide copies of all bids to Tanavon
and GRNSS with notification of the party or parties that the District will award the bid to
on the date provided in the Bid Specifications. Each contractor entering into a contract
for the construction of Improvements for Lot 1 A and Lot 1 B shall be required to furnish a
performance bond and payment bond in a form acceptable to the District. In the event of
any change order resulting in the performance of additional work in connection with the
Improvements, the amounts of such bonds pertaining thereto shall be increased to include
the cost of such additional work or materials or fixtures to be incorporated in the
Improvements. Each contractor entering into a contract for construction of the
Improvements shall be required to procure and maintain Commercial General Liability
Insurance during the duration of such contract in the amount of at least $2,000,000 each
occurrence and $4,000,000 general aggregate. These policies shall be applicable to all
premises and operations. Such policies shall include the District, the District's Trustee,
and Tanavon and GRNSS as additional named insureds and shall include a provision
prohibiting cancellation or termination without thirty (30) days prior written notice to the
t00I 74702 DOC /4t
200927822 16 of 25
additional insureds. Such insurance shall provide protection from all claims for bodily
injury, including death, property damage, contractual liability and completed operations.
Each contractor shall be required to provide Builder's Risk Insurance with minimum
limits of not less than the insurable value of its work to be performed. These policies
shall be written on an "all risk" basis and shall name the District, the District's Trustee,
Tanavon and GRNSS as insureds. These policies shall contain a waiver of subrogation
by the issuer with respect to the insureds and their respective officers, agents and
employees while acting within the scope of their employment.
District shall be required to encourage and consider the advice and
recommendations of Tanavon and GRNSS in the exercise of its obligation to oversee
construction of the Improvements. Tanavon and GRNSS acknowledge and agree that
they are paying their shares of the Estimated Common Development Costs for the
construction and installation of extensions of the Improvements necessary to serve Lots 2,
3 and 5 at their expense as the owners of those Lots. The Parties agree to commence
construction of the Improvements for Lot I A and Lot I B prior to the issuance of a
building permit for any improvements on Lot 1 A, Lot I B, Lot 2, Lot 3 or Lot 5, Buck
Creek PUD First Amendment and to complete the Improvements prior to the issuance of
a Certificate of Occupancy for any building on any of the aforementioned Lots served by
the Improvements. The Parties expect to commence construction of the Improvements
for Lot I A and Lot 1 B in 2010. None of the Parties are committed to the construction of
vertical improvements in 2010. The District agrees to comply with all applicable federal,
State of Colorado and local law in connection with the making of contracts for the
engineering, design and construction of the Improvements.
4. Security for Completion of Improvements and Obligations. To secure
completion of the Improvements and the Parties' obligations to the Town, the District as
Escrow Agent agrees to hold the cash escrow as the collateral required to secure the
Parties' respective obligations under this Agreement and the Phase I Subdivision
Improvements Agreement in accordance with Section 16.24. 100 of the Code.
( "Collateral "). Tanavon agrees to maintain the Contingency Fund as either a cash escrow
or an Irrevocable Letter of Credit to secure its obligations to the Town.
Common Development Costs.
(a) Improvements for Lot IA and Lot 1B. Common Development
Costs may include construction of a bridge and common pavement roadway system;
utility extensions for water, sewer, gas, electric, telephone and television: construction of
drainage and containment systems; construction of retaining walls; stream, flood and
wetlands mitigation; site improvement, preparation and earthwork; and all common costs,
administrative costs, fees, insurance and other expenses associated with the
Improvements.
(b) Progress ss Payments on Improvements. Upon completion of
itemized Improvements for which cost estimates have been set forth in Exhibit B and
00174702 DOC /4),
200927822 17 of 25
upon receipt of the Certifications as specified in paragraph 6 below verifying that
itemized portions of the Improvements have been completed, the amount of the cash
escrow may be reduced periodically by the District, acting as Escrow Agent, making
payments from the cash escrow to those persons and firms that have performed and
completed the work. No disbursements for the costs of actual construction of the
Improvements shall be made from the cash escrow without written authorization from the
Town Engineer. Submittal of Letters of Construction Acceptance shall be required from
the deep utility provider for those facilities then under construction for which payment is
then being requested before such a disbursement may be approved and other
infrastructure constructed above such facilities. The Town Engineer shall approve or
reject any disbursement request within six (6) working days of receipt or the requirement
for approval is waived. Lien waivers may be requested from the contractor when
appropriate. Upon completion of all work related to the Improvements and the Town's
and Utility's acceptance of the Improvements, the District acting as Escrow Agent shall
be authorized to publish Notice of Final Payment and thereafter make final payments of
the amounts due, including any retainage held by the Escrow Agent.
6. Warranty Period. The Bid Specifications shall require that the
Improvements be warranted to be free from defects in workmanship or quality fora
period of two (2) years after acceptance of all the work by the Town. Written warranties
shall be obtained and maintained by the,Parties during the warranty period. In the event
of any such defect, the District shall require the contractor warranting the work to correct
the defect in material or workmanship. The Contingency Fund provided by Tanavon and
held by Land Title Guarantee Company equal to at least Ten percent (10 %) of the total
actual cost of completion of all Improvements, or an Irrevocable Letter of Credit in the
same amount, shall be provided by Tanavon to the Town as security during such two (2)
year period as a guaranty of performance of any work required pursuant to the above
described warranty. In the event any corrective work is performed during the two -year
warranty period, then the warranty on said corrected work secured by the contingency
fund shall be extended for two (2) years from the date on which the corrected work is
completed in an amount equal to 125% of the cost of any corrected work, as estimated by
the Town. If no defects in the corrected work are found, after two years Tanavon shall
request release of the Contingency Fund by the Town.
7. Engineering Certification. Upon completion of portions of the
Improvements, District will cause Alpine Engineering to provide a written opinion, to the
satisfaction of the Town Engineer, that based upon on -site observation, review of
sufficient construction- observation reports, field test reports and material test reports and
certifications by qualified personnel, the installation of the Improvements for Lot IA and
Lot 1 B, or portions thereof as may be completed from time to time, have been completed,
to the best of their knowledge and professional judgment, in conformance with all
standards, plans and specifications as submitted to and previously approved by the Town,
or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports,
test results, as- constructed plans and other supporting documentation shall be submitted
{00174702 DOC 14}
200927822 18 of 25
with the certification. The as- constructed plans shall be submitted on paper and in a
digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile.
8. Letter Certifying Completion and Final Acceptance of Improvements.
When all Improvements have been completed and accepted by the Town, or the pertinent
utility supplier, and the Warranty- Period has expired and provided that the Parties are not
in default under any of their other obligations to the Town, the Parties shall request that
the "Town issue a letter, in recordable form, certifying that all obligations of the Parties
under the Phase I Subdivision Improvements Agreement have been satisfied.
9. Amendments. This Agreement may be amended from time to time,
provided that such amendment is in writing and signed by the Parties.
10. Covenants Running with the Land. This Agreement and the obligations
hereof shall be deemed to be covenants running with the land known as the Buck Creek
PUD First Amendment and shall be binding on the successors and assigns of the parties
hereto.
11. Governing Law, Venue. and Enforcement. This Agreement shall be
governed by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Agreement shall be in the appropriate court for Eagle County,
Colorado. To reduce the cost of dispute resolution and to expedite the resolution of
disputes under this Agreement, the Parties hereby waive any and all right either may have
to request a jury trial in any civil action relating primarily to the enforcement of this
Agreement. The Parties agree that the rule that ambiguities in a contract are to be
construed against the drafting party shall not apply to the interpretation of this
Agreement. If there is any conflict between the language of this Agreement and any
exhibit or attachment, the language of this Agreement shall govern.
12. Incorporation of Exhibits. Unless otherwise stated in this Agreement,
exhibits, applications, or documents referenced in this Agreement shall be incorporated in
this Agreement for all purposes. In the event of a conflict between any incorporated
exhibit and this Agreement, the provisions of this Agreement shall govern and control.
13. No Third Park' Beneficiaries. Nothing contained in this Agreement is
intended to or shall create a contractual relation with, cause of action in favor of, or claim
for relief for, any third party, including any agent, sub - consultant or sub - contractor of the
Tanavon, the District or GRNSS. Absolutely no third party beneficiaries are intended by
this Agreement. Any third -party receiving a benefit from this Agreement is an incidental
and unintended beneficiary only.
[ Signature pages follow
{00174702 DOC / 41
200927822 19 of 25
The parties hereto have executed this Agreement as of the date first above tivrltten.
TANAVON CORPORATION, a Colorado
corporation ( "Tanavon ")
By:
President
EAGLE RIVER FIRE PROTECTION
DISTRNC By:
General Manager/Fire Chief
GORE RANGE NATURAL SCIENCE
SCHOOL NON - PROFIT CORPORATION
( 'GRNSS'')
Markian Feduschak
Excecutive Director
001 74702 DOC / 4 )
200927822 20 of 25
EXHIBIT A
Agreement for Cash Escrow
APPROVED PLANS:
Construction Drawings
Town of Avon, Colorado
,20
Sheets l through _
Release Date: 20
Prepared by:
* As of the date of execution of this Agreement for Cash Escrow, the construction
plans submitted to the Town of Avon have not been approved by the Town
Engineer. These construction plans shall be approved by the Town Engineer before
the commencement of actual construction of the Improvements therein described.
( 00174702 DOC 141
200927822 21 of 25
EXHIBIT B
Agreement for Cash Escrow
IMPROVEMENTS CONSTRUCTION COST ESTIMATE
100174702 DOC 14;
200927822 22 of 25
BUCK CREEK FINAL PLAT
8- Dec -09
Lots 1 -5 Infrastructure SIA Cost Summary
Total Lot 1 A infrastructure Costs
Shared
Individual
FD Costs
S -
FD Costs
$ 279,078.10
S 79,449.50
S
358,527.60
GRNSS Costs
S 226,135.85
S -
S
226,135.85
Townhome Costs
S 283,232.48
S 9,745.25
S
292,977.73
Total Infrastructure Costs S 1,481,909.46
1 S522,231.03
Subtotal Lot 1A
S
877,641.18
Total Lots 215 Infrastructure Costs Shared
Individual
Individual
FD Costs
S -
S -
$ -
GRNSS Costs
S 346,731.51
$ -
S 346,731,51
Townhome Costs
-_-
$ 346,731.51
S 47,090.00
$ 393,821.51
_ _
Subtotal Lots 215
S 740,553.02
Total Lot 3 Infrastructure Costs
Snared
Individual
FD Costs
$ -
$ -
$ -
GRNSS Costs
S -
$ 385,94628
$ 385,946.28
Townhome Costs
S
$
$ -
S 629,963.99
Subtotal Lot 3 $ 385,946.28
TOTAL COSTS
Shared
Individual
Total
FD Costs Lot 1 A
$ 279.078.10
S 79,449.50
$ 358,527.60
GRNSS Costs Lot 5
$ 572,867.36
$ 385 946.28
$ 958,813.65
Townhome Costs Lots 1 B, 2, 5
S 629,963.99
S 56,835.25
$ 686,799.24
Total Infrastructure Costs S 1,481,909.46
1 S522,231.03
17 2,004,140.49
fhe rust summa y ;o;)frton of r*pbat;re costs. is cxt!y an order rf ma9('ltu0e es11MWO �)! ; fr;9strucH;rQ dosrs rrctui,nd fir 'he
Bu;k Greek Hat We hFVE nr;t yei plin5 :end dOa --, ;o Ilzr_t costs we 5u`;er't tc, r;arac: F-- ,30=1wo'k c,uacliliPs ard Costs
coutc : tiry. Cu° to tha xc, ScIas r'ortCGtico GTF_ arty Hf' Sons reNfl!3 RA NelsC'IS L`mt egStS wPrr;: �'re��:�lniratBEV lt�•at41a1
fhb 8�i1 T Flt?, wh'.f5 wti% Mary hps9E j GiK n Curror,+ f-ondq,og, fkS wdII a5 ta, tnfft l
An ruliv,dugl c091 ;> ao pn;,grrnOt tt:9r bwoht5 ,'r' l ),y P�,"V
A shares 1.:a' m<.i:. tlit�,
200927822 23 of 25
EXHIBIT D
Subdivision Improvements Agreement for Lot lA and Lot 1B
CONDITIONS
1. Before commencement of any of the Work depicted on the Approved Plans for the
actual construction of Improvements for Lot 1 A and Lot 1 B, Subdivider, District and
GRNSS stipulate and agree that:
(a) Tanavon, the District and GRNSS shall secure approval from the U.S. Army
Corps of Engineers ( "Corps") of the delineation of the wetlands areas within the
Buck Creek PUD First Amendment, Corps approval of mitigation of wetlands
impacts either on -site or from the Wetlands Bank, and shall obtain any required
404 Permit from the Corps for the construction activities proposed by the
Approved Plans. Copies of all such documentation shall be submitted to the
Town for acceptance by the Town Engineer. The Approved Plans may be updated
with the approval of the Town Engineer to include any modifications required for
wetlands delineation or mitigation required by the Corps.
(b) Tanavon, the District and GRNSS shall obtain written approval of the
Construction Plans for utilities from all utility providers and submit copies of the
approvals to the Town Engineer.
(c) The Final Drainage Report shall be accepted by the Town Engineer.
(d) Tanavon and GRNSS shall dedicate to the Town a fifteen (15) foot wide
easement, generally following the "Buck Creek Connection' trail depicted on the
map (dated 4/13/09) produced by the Town's Community Development
Department through Lots 113, 2, and 3, Buck Creek PUD First Amendment, for
the construction and use by the general public of a recreation path. No Lot Owner
within the Buck Creek PUD First Amendment shall be responsible for
constructing or maintaining this recreation path. Colorado law with respect to
recreational trails shall be complied with by the Town and, to the extent permitted
by law, Town shall indemnify Tanavon and GRNSS, their successors and assigns,
against claims for injury, damage or loss by users of this recreation path. The
Town anticipates constructing and maintaining the recreation path, subject to
available funds and appropriations. Reference Ordinance 09 -08, Section 2.A.
(e) Tanavon and the District shall dedicate to the Town, either on the Final Plat
or by Deed of Dedication, with a special warranty, of title using the words
`'warrant the title against all persons claiming under it'' as provided by C.R.S. §38-
30 -115 and to such effect, the right -of -ways along Nottingham Road and Swift
Gulch Road, along with associated easements, as proposed by the Applicant and
001 74648 DOC / 4 ; 13
200927822 24 of 25
accepted by the Town which are necessary for the construction of the Swift Gulch
round -a -bout. Reference Ordinance 09 -08, Section 2.1).
2. Prior to issuance of any building permit for Lot I or Lot 1B, all of the Improvements
for Lot I and Lot 1B pursuant to the Phase I Subdivision Improvements Agreement
shall be completed, inspected and accepted by the utility providers, and inspected and
approved by the Town of Avon.
3. Prior to issuance of any building permit for Lots 2, 3 or 5, Buck Creek PUD First
Amendment, construction drawings of all proposed retaining walls (including retaining
walls necessary for Buck Creek Lane) and load calculations for retaining walls
demonstrating slope stability shall be submitted to the Town for approval by the Town
Engineer, Reference: Ordinance 09 -08, Section 2.B.
4. The vertical improvements planned for Lot 1 A and /or Lot 3 shall be constructed and
shall receive a certificate of occupancy prior to issuance of any residential permits for Lot
1B or Lot 2. Reference: Ordinance 09 -08, Section 1.A.
100174648 DOC / 4 } 4
200927822 25 of 25