05-23-2000 Storm Water Detention and Pollution Control Facilites- '3�'�'
AGREEMENT GOVERNING DESIGN, CONS'T'RUCTION, AND MANAGEMENT OF
STORM WATER DETENTION AND POLLUTION CONTROL FACILITIES
THIS AGREEMENT GOVERNING DESIGN. CONSTRUCTION, AND
MANAGEMENT OF STORM WATER DETENTION AND POLLUTION CONTROL
FACILITIES (this "Agreement ") is made thisg3 day of 2000, by and
between the TOWN OF AVON, a Colorado municipal corporation (the `Town ") and POINTS
OF COLORADO, INC., a Colorado corporation ( "Points "), whose address is 101 University
Boulevard, Suite 450, Denver, CO 80206.
RECITALS
A. Points is the owner of that certain parcel of land in the Town generally known as
Tract C, Avon Center at Beaver Creek Subdivision, more particularly described on Exhibit A,
attached hereto and incorporated herein by this reference ( "Tract C "), and as such is successor
to the rights and obligations set forth in that certain AMENDMENT TO DEVELOPMENT
AGREEMENT FOR CONFLUENCE AND TRACT C (" Amendment to Development
Agreement "), executed on February 23, 2000.
B. The Town is the owner of that certain parcel of land in the Town generally known
as Tract G, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County, Colorado, more
particularly described on Exhibit B, attached hereto and incorporated herein by this reference
( "Tract G ").
C. Section 8.13 of the Amendment to Development Agreement provides:
"Proposed storm water detention and pollution control. facilities located on Town
owned property known as Tract G (the "Town Lot "), as depicted on the Development Plan for
Tract C, are approved in concept only, by the Ordinance. Design, construction, and management
of the storm water detention and pollution control facilities located on the Town Lot must be
approved by the Town at a later date, and will be governed by a separate agreement which shall
provide satisfactory assurances that such facilities will be operated and maintained at no cost to
the Town and will be relocated or replaced at no cost to the Town in the event the facilities
conflict with future development on the Town Lot."
D. This Agreement is made pursuant to Section 8.13 of the Amendment to
Development Agreement, and pertains to design, construction, and management of Storm Water
Detention and Pollution Control Facilities (the "Facilities ").
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants contained herein,
the 12arties hereby agree as follows:
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Provisions Regarding the Facilities.
1.1 Facilities Design and Construction Approval Process. The Facilities shall be
designed to conform to storm water detention and pollution control requirements of the Town of
Avon Master Drainage Study, dated September 1994. In addition, the design of the Facilities
shall be such that as constructed the Facilities shall not interfere with Tract G surface uses,
including, but not limited to, traffic circulation and parking. Approved design and construction
plans for the Facilities will be based upon conformance to a Town approved Drainage Report for
Tract C; anticipated reliability and maintainability of the Facilities; and compatibility of the
design with Tract G surface uses.
A permit for construction of the Facilities will be issued under the provisions of
Chapter 12.04 of the Avon Municipal Code. Issuance of a construction permit will depend upon
the Town's review and approval of fully detailed construction plans and specifications
conforming to the design criteria referenced above. The construction permit will be conditioned
upon provisions for timely completion of construction and restoration of Tract G disturbed areas
to a functional condition at least equivalent to that existing prior to the start of construction.
Prior to issuance of the construction permit, Points shall provide the Town with a security
deposit (which may be in the form of a letter of credit, cash, or bond, in Points' discretion but
subject to the Town's approval as to form), in an amount to be determined by the Town, which
will be adequate to cover the cost of restoring all Tract G facilities and improvements removed
or disturbed by construction of the Facilities.
1.2 Grant of Revocable Easement. Subject to the terms, covenants, agreements,
restrictions and conditions of this Agreement, the Town hereby grants, sells and conveys to
Points, as the owner of Tract C, a private, nonexclusive, revocable easement (the "Facilities
Easement ") over, across, under and through the portions of Tract G depicted on Exhibit C
attached hereto for the purpose of the construction, installation, operation, maintenance, repair
and replacement of the Facilities. The Facilities Easement shall be for the benefit of Tract C and
the owner of Tract C, and shall be appurtenant to, for the benefit of, and run with title to Tract C.
The Facilities Easement is non - exclusive and the owner of Tract G shall have the right to use the
Facilities Easement for all other purposes not inconsistent with the rights granted to the owner of
Tract C herein; provided, however, the Town shall only allow the release of or otherwise route
storm water into the Facilities from Tract C, Tract G, Beaver Creek Boulevard and that parcel of
land commonly referred to as Lot B, Avon Center at Beaver Creek Subdivision, at rates which
will not exceed the excess capacity of the Facilities as approved in accordance with the ternns of
this Agreement, unless such capacity is expanded at no cost to the owner of Tract C.
1.4 Points' Obligations While the Facilities Easement _is in Effect. While the
Facilities Easement is in effect, Points shall be responsible for the construction, installation,
operation, maintenance, repair, replacement, and insurance of the Facilities at its sole cost and
expense. The construction, installation, operation, maintenance, repair, replacement, and
insurance of the Facilities, the relocation (if any) of the Facilities, and all costs and expenses
associated with all of the foregoing, shall be herein referred to as the "Facilities Obligations ".
Points may assign, in part or in whole, the Facilities Obligations to (i) any owner's associations
formed in connection with the development of Tract C; (ii) any special taxing district; or (iii) to
the owner(s) of any portion of Tract C; provided that any such assignee executes and delivers a
written instrument in recordable form to the Town accepting such assumption and agreeing to be
bound by the terms of this Agreement. Under the terms of such assignment Points shall be
released from all its obligations hereunder which are the subject of such assignment and all such
obligations shall be assumed by such assignee.
1.5 Defense and Indemnity of the Town. Points hereby agrees to defend the Town
against any and all claims for damages asserted against it arising out of Points' use of the
Facilities; and, further, to indemnify, and hold the Town harmless from and against all liability
incurred by the Town resulting from Points` use of the Facilities.
1.6 Facilities Easement Not to Commence Until the Town Provides Design Apnrraval
for the Facilities. The Facilities Easement shall not commence, and Points shall enjoy no xigb of
entry upon Tract G for any purpose, until the Town shall have approved the design for the
Facilities and issued a corresponding permit for the work under the terms and conditions of this
Agreement and the provisions of Chapter 12.04 of the Avon Municipal Code. When the
Facilities have been approved by the Town as fully functional, the drainage and detention
easement on that portion of Tract C depicted on Exhibit C for the benefit of the Town shall
terminate and the Town shall have no further right, title, or interest in said easement. The Town
agrees to execute and record any further instrument necessary to complete the termination of said
easement.
1.7 Town's Right to Enforce Facilities Obligations; Lien on Tract C. Should Points
or its successors or assigns fail to perform, or make diligent efforts to commence to perform, any
of the Facilities Obligations (including failure to operate and maintain the Facilities to function
in accordance with the Drainage Report for Tract C) ten (10) days after written notice from the
Town that such obligation must be performed, the Town shall have a right to perform such
obligation, and all reasonable costs and expenses associated with the performance of such
obligation shall be immediately due and owing to the Town and shall also be a lien upon Tract C
in the amount of such costs and expenses to the Town until paid.
2.2 Governing Law. The validity and effect of this Agreement shall be determined in
accordance with the laws of the State of Colorado.
2.2 Binding Effect. The terms, covenants, agreements, restrictions and conditions in
this Agreement shall be construed as covenants running with the land. The terms, covenants,
agreements, restrictions and conditions contained in this Agreement touch and concern the
design, construction, and management of the Facilities, and the burden of such terms, covenants,
agreements, restrictions and conditions shall run with Tract C and bind all subsequent owners of
any portion of Tract C. The benefit of such terms, covenants, agreements, restrictions and
conditions shall run to and may be enforced by Points, the Town, any successor to Points or the
Town by consolidation or merger, and any other successor, assign or transferee of Points or the
Town of either of Tract C or Tract G.
2.3 Not a Public Dedication. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any portion of Tract G to or for the general public or for any public
purpose whatsoever.
IN WITNESS WHEREOF, Points and the Town have executed this Agreement on the
date first above written.
TOWN OF AVON, a municipal corporation
By:,
J Yoder, aye
DATE: - v
ATTEST
ash, Town Clerk
J(PPR D AS O FORM AND LEGAL SUFFICIENCY
f
Burt Levin, Town Attorney
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731541 06/07/2000 10:43A 23 Sara Fiskher
2 40-00 0.00 0.00 Ea910 CO
4
STATE OF COLORADO
) ss.
COUNTY OF EAGLE )
Subscribed before me this 44� day of Af4U , 2000, by Judy Yoder, as Mayor
of the Town of Avon, Colorado.
My commission expires: O l"
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o° 7
IL
I P HM
Notary Public
POINTS: = 'ccscsitic =`
POINTS OF COLORADO, INC., a Colorado
corporation
ATTEST.
By: By:
Larry D. D 11, President
Print Name: Lendari a L. Miller
STATE OF COLORADO )
} ss.
COUNTY OF DENVER }
The foregoing instrument was acknowledged before me this � �day of
2000, by Larry D. Doll as President of POINTS OF COLORADO, INC., a Colorado corpoVation.
Witness my hand and official seal.
My commission expires:
Notary Public
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EXHIBIT A TO AGREEMENT GOVERNING DESIGN, CONSTRUCTION, ANTI)
MANAGEMENT OF STORM WATER DETENTION AND POLLUTION CONTROL
FACILITIES
Legal Description of Tract C
Lot C, a Final Plat and Resubdivision of Lots B and C, Avon Center at Beaver Creek,
Benchmark at Beaver Creek, Amendment No. 4, according to the plat recorded October 25,
1988 in Book 493 at Page 704, County of Eagle, State of Colorado.
I
EXHIBIT B TO AGREEMENT GOVERNING DESIGN, CONSTRUCTION, AND
MANAGEMENT OF STORM WATER DETENTION AND POLLUTION CONTROL
FACILI'T'IES
Legal Description of Tract G
Tract G, Block 2, Benchmark at Beaver Creek, Town of Avon, Eagle County, Colorado
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