Loading...
05-27-2003 TRAER CREEK METROPOLITAN DISTRICT ORDINANCE NO. 03-08 APPROVING THE SECOND AMENDMENT TO THE ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE842248 Page: 1 of 19 07/30/2003 03:46P TeakJ Simonton Eagle, CO 289 R 96.00 D 0.00 TOWN OF AVON. COLORADO ORDINANCE NO. 03-08 SERIES OF 2003 AN ORDINANCE APPROVING THE SECOND AMENDMENT (THE "SECOND AMENDMENT") TO THE ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) WHEREAS, the Town of Avon (the "Town") and Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"), and Traer Creek LLC, a Colorado limited liability company, EMD Limited Liability Company, a Colorado limited liability company (collectively, the "Owner), have negotiated the terms and conditions of the Second Amendment, which is attached hereto as Exhibit "A" and incorporated herein; and WHEREAS, the Town has timely posted notice of the dates and times of the meetings at which the Town Council considered the Second Amendment; and WHEREAS, the proposed full text of this Ordinance was duly published by posting in the office of the Town Clerk and in three (3) additional public places within the Town, and said publication also set forth the date and time of the public hearing at which the Town Council considered the Second Amendment; and WHEREAS, an Intergovernmental Agreement Between the County of Eagle, State of Colorado and Traer Creek Metropolitan District and Eagle Vail Metropolitan District for the Construction of Pedestrian Trail Improvements Along Highway 6 dated April 22, 2003 (attached hereto as Exhibit "B) requires modification of the terms and conditions of the Highway 6 trail exaction; and WHEREAS, approval of the Second Amendment is in the best interest of the public health, safety and general welfare of the people of the Town; and WHEREAS, the Town Council held a public hearing concerning the Second Amendment, and by this Ordinance sets forth its findings and conclusions. THE TOWN COUNCIL MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS: 1. The Second Amendment complies with all applicable laws and regulations of the State of Colorado and the Town, including, without limitation, Article 68 of Title 24, C.R.S. 2. All notices required for the public hearing at which the Town Council considered the Second Amendment were properly and timely published, posted or mailed in accordance with all applicable laws and regulations of the State of Colorado and the Town. 842248 Page: 2 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 3. The public hearing held on the Second Amendment was conducted in accordance with all applicable laws and regulations of the State of Colorado and the Town. 4. The Town has authority to enter into the Second Amendment pursuant to Sections 24-68-104(2) and 31-15-101, C.R.S., and pursuant to Section 17.14.100 of the Avon Municipal Code. 5. Pursuant to Section 24-68-103(1), C.R.S., approval of the Second Amendment will not restrict, impair, enlarge, or otherwise modify either the term or the scope of the vested property rights associated with the Development Agreement. 6. The Town's approval of and entering into the Second Amendment is in the best interests of the public health, safety and general welfare of the people of the Town. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, A. The Second Amendment is hereby approved, and the Town shall enter into it and perform its obligations. B. The Mayor of the Town is hereby directed to sign the Second Amendment on behalf of the Town. C. Within fourteen (14) days after passage on Second Reading of this Ordinance, the Town Clerk is hereby authorized and directed to publish the full text of this Ordinance in a newspaper of general circulation within the Town. The effective date of this Ordinance shall be seven (7) days after publication of the notice described in Section C above. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED PUBLISHED this 13th day of May, 2003, and a public hearing on this Ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 27th day of May, 2003, at 5:30 p.m. in the Avon Municipal Complex, 400 Benchmark Road, Avon, Colorado. Town of Avon, Colorado Town Council t Albert D. Reynolds, M yor 2 ATTEST: Pkatty cKenny, Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED THIS 27th DAY OF May, 2003. ATTEST: f " Mc K~j Pa Mc fenny, n Clerk Town of Avon, Colorado Town Council Albert D. Reynolds, ayor IIII~,IIIIIIIIIIIIiIINhNIIIINIiIIIVIIIIIIN~NN, 84ZZ'803:46P Teak Simonton Eagle, Co 289 R 96. D 0.00 APPROVED AS TO FORM: 576178.1 To ttorney STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 27TH DAY OF MAY 2003, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCES: Ordinance No. 03-08, Series of 2003, An Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon) Ordinance No. 03-09, Series of 2003, An Ordinance Amending Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public Service Company of Colorado. A copy of said Ordinances are attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: P-a~ /q5 ~ P tt cKenn Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON MAY 15, 2003 AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY 842248 Page: 4 of 19 07/30/2003 03:46P Teak J Simonton Eagle, C0 289 R 96.00 D 0.00 STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO ADOPTED ON THE 27TH DAY OF MAY 2003 THE FOLLOWING ORDINANCES: Ordinance No. 03-08, Series of 2003, An Ordinance Approving the Second Amendment to the Annexation and Development Agreement for The Village (at Avon) Ordinance No. 03-09, Series of 2003, An Ordinance Amending Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public Service Company of Colorado. A copy of said Ordinances are attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: X~ c I 'j Pat Mc Cenny To rk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON May 29, 2003 AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY 842248 Page: 5 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT This SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT (this "Second Amendment") is made as of May =0 , 2003, by and between TRAER CREEK LLC, a Colorado limited liability company ("Traer"), EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company ("EMD"), and the TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town'). RECITALS A. Traer and EMD (collectively, "Owner") and the Town have previously executed that certain First Amendment to Annexation and Development Agreement dated as of November 13, 2001, and recorded in the Eagle County, Colorado, real property records at Reception No. 779049 on December 10, 2001 (the "First Amendment"), which First Amendment amended that certain Annexation and Development Agreement dated as of October 13, 1998, and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on November 25, 1998 (the "Original Agreement"). The Original Agreement, as so amended, is referred to in this Second Amendment as the "Agreement." B. The Agreement pertains to certain real property generally known as The Village (at Avon), and more particularly described in Exhibit A attached to the Agreement (the "Property"). C. Section 1.4 of the Agreement provides, inter alia, that amendments to the Agreement must be effected in a writing signed by the Town and Owner. Section 1.4 of the Agreement further provides that the term "Owner" for purposes of amending the Agreement means "only the signatories to this Agreement constituting Owner and those parties, if any, to whom such signatories have specifically granted, in writing, the power to enter into such amendment." As more particularly set forth in Recital B of the First Amendment, EMD (with respect to Planning Area M) and Traer (with respect to the remainder of the Property) constitute Owner for purposes of amending the Agreement. D. Subsequent to execution of the Agreement, portions of the Property have been subdivided as more particularly described in the Final Plat, The Village (at Avon) Filing 1, recorded in the Eagle County, Colorado, real property records on May 8, 2002, at Reception No. 795007 ("Filing 1"), and the Final Plat, The Village (at Avon) Filing 2, recorded in the Eagle County, Colorado, real property records on May 29, 2002, at Reception No. 796831 ("Filing 2"). Additionally, certain portions of the Property have been conveyed to other entities and individuals so that the current owners of the Property as of the date of this Second Amendment are: EMD; Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (the "District"); Traer Creek-WMT LLC; Traer Creek-HD LLC; Traer Creek-RP LLC; Buffalo Ridge Affordable Housing Corporation; Buffalo Ridge II LLLP; Eric Applegate; Shane Bohart; Mark Evans; Ray Pittman; and William J. Post, as their respective interests appear of record. 842248 Page: 6 of 19 00 3:46P Teak J Simonton Eagle; Co 289 R 96.00 07/30/2003 569662.4 MI.AYER 05!7/03 11,00 AM 842248 Page: 7 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 E. Each of the conveyances referred to in Recital D above was made subject to the terms and conditions of the Agreement, including, without limitation, Section 1.4 of the Agreement. None of the conveyances referred to in Recital D above were accompanied by a specific written grant of the power to amend the Agreement as provided in Section 1.4 of the Agreement. Accordingly, with the exception of the Town, EMD and Traer, no owner of any real property constituting the Property or other person or entity has been granted any power to amend the Agreement. As provided in Section 1.4 of the Agreement, no person or entity other than the Town, EMD and Traer is required to execute or acknowledge an amendment to the Agreement as a condition of such amendment being effective and binding on all parties to the Agreement and all owners of real property constituting the Property. F. The District, while not an Owner for purposes of amending the Agreement, has expressly assumed and undertaken the performance of certain obligations of the Owner under the Agreement, as more particularly set forth in the First Amendment. G. The District, the County of Eagle (the "County"), and Eagle-Vail Metropolitan District ("EVMD") have executed a letter of understanding dated October 22, 2002, which contemplates that the District, the County, and EVMD will cooperate in the financing and construction of certain pedestrian trail system improvements on portions of Highway 6 that abut or are in the immediate vicinity of the Property. The undertakings described in the letter of intent are expressly conditioned on, inter alia, the Town's agreement that Owner and the District be relieved from any further obligation under the Agreement with respect to the Highway 6 Exaction (as defined in the Original Agreement) in consideration of the District undertaking the obligations contemplated by the letter of intent. In order to facilitate the foregoing, the Town and Owner desire to modify certain terms and conditions of the Agreement relating to the Highway 6 Exaction, as set forth in this Second Amendment, and the District wishes to acknowledge and affirm its agreement to perform the obligations described in the letter of intent, pursuant to and as more particularly set forth in this Second Amendment. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the Town and Owner, as more particularly set forth herein, and in consideration of other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Town and Owner covenant and agree as follows: 1. Defined Terms. Unless otherwise defined in this Second Amendment, capitalized terms used herein shall have the meanings ascribed to them in the Agreement. 2. Amendments. The Agreement is hereby modified as follows: (a) Section 1.1.19 is amended and restated to read in its entirety as follows: Highway 6 Trail Exaction: As defined in Section 4.3(g). 569662.4 MLAYER 05/7/03 11:00 AM 2 842248 Page: 8 of 19 I 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 (b) Section 4.3(9) is amended and restated to read in its entirety as follows: (g) Subject to all required rights-of-way, easements, permits, and approvals having been obtained, and further subject to the County of Eagle and Eagle-Vail Metropolitan District having appropriated the requisite funds to finance their respective portions thereof in the manner described below, the District will contribute the lesser of (i) 40% of the design and construction costs, or (ii) $200,000 (the "Highway 6. Trail Exaction"), toward the construction of segments l through 3, inclusive, of a proposed pedestrian trail system on Highway 6 anticipated to be designed over the winter of 2003 and constructed in the summer or fall of 2003. The County of Eagle will administer design and construction related activities for the improvements to be constructed in connection with the Highway 6 Trail Exaction. Funding, and the.location, specifications, and other agreements with respect to the design, construction and funding of the Highway 6 pedestrian trail improvements are more fully set forth in that certain Intergovernmental Agreement, for Pedestrian Trail dated as of April 22, 2003, by and between the County of Eagle, Eagle-Vail Metropolitan District, and the District. (c) Section 4.3(h) is amended and restated to read in its entirety as follows: (h) Except for the East Avon Exaction, the Chapel Place Exaction, the Swift Gulch Road Improvements, the Public Works Dedication, the East Beaver Creek Boulevard Improvements, the School Site Dedication and the Highway 6 Trail Exaction, neither Owner, the Public Improvement Company nor the District shall be required to pay or provide for any exactions, dedications or the like for any development or subdivision approvals relating to the Project, except as may be otherwise specifically set forth in the PUD Guide. The expenses and fees described in subsection 4.3(e) shall be the only amount required to be paid by Owner, the Public Improvement Company and the District to the Town (other than the East Avon Exaction, the Chapel Place Exaction, the Swift Gulch Road Improvements, the Public Works Dedication, the East Beaver Creek Boulevard Improvements, the School Site Dedication and the Highway 6 Trail Exaction) in connection with the Town's effectuating the Final Approval. 3. Effect of Amendment. Except as expressly modified by this Second Amendment, the Agreement is unmodified, and is hereby ratified and affirmed, and shall remain in full force and effect in accordance with its terms. If there is any inconsistency between the terms of the Agreement and the terms of this Second Amendment, the provisions of this Second Amendment shall govern and control. 4. Governing Law. This Second Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. 5. Counterparts. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same instrument. 569662.4 MLAYER 05/7103 11:00 AM 3 IN WITNESS WHEREOF, the Town and Owner have executed this Second Amendment as of the day and year first set forth above. OWNER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Magnus Lind, IM Title: Manager EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: LAVA CORPORATION, a Colorado corporation, its Manager By: L Name: Magnus jndholm Title: Preside f THE TOWN: TOWN OF AVON, a municipal corporation of the State of Colorado Name: AVgevr • r-14 NOIf>> Title: Mayor Approved as to legal form by: 1111111111 111111 111111 $~29 ~~9 07/30/2003 03:46P Teak J Simonton Eagle: CO 289 R 96.00 D 0.00 Name: pH~, W. t7vNN Title: TAvn Attorney 569662.4 MLAYER 05/7/03 11 :00 AM 4 AND IN WITNESS WHEREOF, the District hereby acknowledges and agrees to perform its obligations as set forth in this Second Amendment. THE DISTRICT: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Nam: Sh e 7BO0 Title: P 'de t ATTEST: 842248 Page: 10 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 i Y. Name: E O-V PSA (AA7 ecretary 569662.4 MLAYER 05/7/03 11 .00 AM 5 I 842248 Page: 11 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 2-3Vv day of fy" , 200 3 , by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: 1Z $)V4 I ~ ) J . Epic No Pub -Ti - daA -®o STATE OF COLORADO ) C ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 23ft> day of May 200 3 , by Magnus Lindholm, as President of LAVA Corporation, a Col do arar corporation, as Manager of EMD Limited Liability Company, a Colorado limited liability company. Witness my hand and official seal. My commission expires: 12 zv~y y PUB * ERIC Notublic s ,10 STATE OF COLORADO ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 200 3 , by as Mayor of the Town of von, a municipal corporation of the State of orado. Witness my h eal. My commiR 4Q. ~ ' ( A ~T •e Aoo Notary ub i My Commission Exp,;e s 0410812006 569662.4 WAYER 05/7/03 11:00 AM 6 STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this Zloay day of 'Mwy , 2003 , by Shane Bohart as President of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: yG..{..~ o* y Public 0 ° A; 00 a c-~"} . . 842248 Page: 12 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 569662.4 MLAYER 05/7103 11:00 AM StN'f tSY : O'I'I't:N JOHNSON KW I NSON; 5- 7- d ; 2.20t'M O'I"I'CN JOt1NSUN-4 tO /U 1404U to ?F ;l/ zi Mr(icaidy S i sne.ros, PC 11 1 sh gsgncxi -*303$256525 218 ~_XWIBIT "Z3 INTFRGOViFRINMENTAL AGREEMENT BETWEEN ' THE COUNTY OF EAGLE, STATE OF COLORADO g155.V-3 v S AND St c6, U TRAER CREEK METROPOLITAN WSTRicr AND EAGLE-VAIL METROPOLITAN DISTRICT FOR THE CONSTRUCTION OF PEDESTRIAN TRAIL IMPROVEMENTS ALONG HIGHWAY 6 This Intergovernmental Agreement is made and entered into this,- day o ' - w 2003, by and between the County of ugle, States of Colorado, body o orate` and politic, by and through its Board of County Commissioners (hereinafter "County") and Traer Creek Metropolitan District, a Colorado Special District, acting by and through its Board of Directors (hereinafter "Traer Creek") and Eagle-Vail Metropolitan District, a Colorado Special District, acting by and through its Board of Directors (hereinafter "Eagle-Vail"). Collectively these entities are also referred to as rho "Parties." WHEREAS, the Constitution and lbws of the State of Colorado permit and encourage local governmental entities to cooperate with each other to make the most efficient and effective use of their powers and responsibilities; and WHEREAS, the Parties enter into this Agreement udder the authority of local governments of the State of Colorado to contract with one another. C-R.S. § 29-1-201, et seq., Article XIV, Section 18 of the Colorado Constitution; and WHEREAS, the Parties to this Agreement desire to share the costs for the construction of a pedestrian trail system on Highway 6 (hereinafter the "Trail linprovements") which will benefit the residems and taxpayers of each of the Parties to this Agreement; and WHEREAS, the Trail improvements are defined as the engineering design, surveying, and construction of, including all necessary permits and approvals, it pedestrian path approximately one (1) !.tile in length. This path shall be constructed along State rligbway 6 from its intersection with Eagle Vail !toad (approximate Milepost 171) cast to the terminus to be located approximately at the "mini Eisenhower" golf cart tunnel ender State Highway 6; and WHEREAS, it is understood and agreed by the Parties that the anticipated costs of construction of the Trail Improvements shall be allocated as follows- 40% Traer Creek; 35% Eagle- Vail; and 25% the County; and WHEREAS, the total maximum projected cost For the construction of the Trail Improvements is $500,000; and WHEREAS, the Parties acknowledge that all Parties' participation in the Trail Improvements is cxinditioned upon the receipt of the Town of Avon's agreement that neither Traer I 842248 Page: 13 of 19 Teak J Simonton Eagle, Co 289 R 96.00 7/30D Z0000 3:46P Received 05-07-03 10:57 From-303.592.4385.3 To-OTTEN JOHNSON ROBINS Page 00? SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:29PM ; OTTEN JOHNSON- t9707484078;# 4/ 9 ...top r_,un.~v[_4_t?tb-3 MCGendy S1snnro4, Pc Trish 0519nod-1-3038756525 3/8 Creek nor any other party to the Annexation Agreement (as described in Paragraph 5) shall be obligated tr, Provide funding forthe construction of Future Roundabouts (as described in Paragraph 5) and upon receipt of BN'P Paribas' consent to the amendment of the Annexation Agreement- AGREEM LIST NOW, 'T'HEREFORE, for and in consideration of thu mutual promises and other consideration contained herein, the adequacy of which is hereby acknowledged, the Parties agree as follows: 1. DESCRIPTION OF TRAIL IMPROVEMENTS. The Trail Improvements are defined as the engineering ,resign, surveying, and construction of, including all necessary permits; and approvals, a pedestrian path approximately one (1) mile in length. This path shall be constructed along State Highway 6 from its intersection with Eagle Vail Road (approximate Milepost 171) west to the terminus to be located approximately at the "mini Eisenhower" golf cart tunnel under State Highway 6. The portion of the Trail Improvements which begins at Stone Creek and turns east to the "mini Eisenhower" golf cart tunnel will be designed and constructed on the south side of State Highway 6. The Parties have determined that the Trail Improvements will benefit the residents and taxpayers of each entity which is a party to this Agreement and that it would be beneficial for the Trail Improvements to be designed during the winter of 2002-2003 and constructed during the summer nf2003. The: costs of the design and construction of the Trail Improvements shall be shared by the Parties to this Agreement as set forth in Paragraph 2. 2. COST SHARING. It is understood anti agreed by the Parties that the costs of construction of the Trail Improvements shall be allocated as follows: 406/a Traer Creek; 35% Eagle - Vail; and 25% the County. It is further understood that County will contribute the engineering. design, surveying, and construction management of the Trail Improvements in addition to its 25% cash contribution to the construction of the Trail Improvements. The total maximum projected cost for the construction of the Trail Improvements is 5500,000_ Based upon the total maximum projected costs, each party's total maximum financial commitment shall be as follows: Truer Cruck contributes $200,000; Eagle-Vail eontrihutes $175,000; and the County contributes S 125,000. The Parties agree that the maximum obligation of Truer Creek, Eagle-Vail and the County are the amounts set forth above and that such Patties shall not be deemed to owe their percentage for an amount greater thaai the anticipated total project cost of $500,000, unless an attxtmative agreement is entered into in writing by the Parties- In the event that the total costs are less than $500,000, each party's share shall be reduced based on the percentage allocation set forth above_ 3. APPROPRIATION OF FUNDS. In order to allow for construction of the Trail Improvements to occur in 2003, the Parties agree as tollows: A. County shall appropriate, upon approval by the Board ofCounty Commissioners, $500,000 for this project to be funded in March. 2003. County's maximum obligation to the construction of the path is $125,000, however County will Cnter into a construction contract and shall guarantee the total amount of this contract with the 2 842248 Page: 14 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 Received 05-07-03 10:57 from-303.592.4385.3 To•-OTTEN JOHNSON ROBINS Paxe 003 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OTTEN JOHNSON- t9707484078;# 5/ 9 .,,,,a_-,y~•a~x1.3 Mr.Gcrttly Slsneros, PC Tr1gh (1-390 d-i303R25652.5 4/8 understanding that Traer Creek and Eagle-Vail shall appropriate and deliver to County their agreed upon contributions as set forth herein; B. Traer Creek, shall appropriate, upon approval (if its Board of Directors, $200,000 for this project, which will include 54,000 for its attomcy's fees. The amount of $196,000 will he Funded and remitted to the County in late: September, 2003, subject to the satisfaction of the conditions set forth in Paragraph 5; C:: ]eagle-Vail shall appropriate, upon approval of its hoard of Directors, $175,000 to be funded in late September, 2003, subject to the satisfaction of the conditions set forth in Paragraph 5. 4. FUNDING OF THE PROJECT. The County, Traer Creek and Eagle-Vail each individually represents and warrants to the other parties that upon approval of its Board and at the lime specified above, it will appropriate a.na deliver to County to be piaeed in a segregated or designated account or subaeeount ("Funding Account") sufficient funds to meet its financial obligations hereunder. 5. ANNEXATION AGREEMENT. The Parties to this Agreement acknowledge that pursuant to that certain Annexation and Development Agreement dated 1998, and subsequently amended, among the Town of Avon, Traer Creek and certain private parties (hereinafter the "Annexation Agreement"), Traer Creek is obligated to cooperate with Eagle-Vail or some other appropriate entity in the construction ofrwo (2) roundabouts at the intersection of Stone Creek Drive and Highway 6 and at the intersection of Eagle Road and Highway 6 (hereinafter "Future Roundabouts") up to a maximum of $250,000 per roundabout. The Parties acknowledge that all Parties' participation in the Trail Improvements is conditioned upon the receipt of the 'T'own of Avon's agreement that neither Traer Creek nor any other party to the Annexation Agreement shall be obligated to provide funding for the Future Roundabouts and upon receipt ofthe consent of BNP Paribas to this amendment of the Annexation Agreement. 6. ADMINISTRATION OF PROJECT. The County shall administer any design and construction related actiwitics pertaining to the project in a diligent, good, workmanlike and timely manner. The County shall prepare a construction budget and construction schedule for the project find auhmit it to Truer Creek and Eagle-Vail prier to construction. It shall submit to Traer Creek and Eagle-Vail written monthly status reports and be available to meet monthly (ifneeded) to report and answer questions regarding the status of the construction budget and the construction schedule. All Parties to this Agreement shall have an opportunity to review and provide input on the design and plans for the Trail Improvements. Such input shall be provided within thirty (30) days of receipt ul the design And/or plans- 7. FINAL RECONCILIATION. Within thirty (30) days of "Substantial Completion" (defined hereirt as the date upon which the County determines that the Trail Improvements Are substantially complete) of the 'frail Irnproverncnts, the County shall prepare and present to Traer Creek and Eagle-Vuil a final reconciliation ("Final Reconciliation") setting forth the project costs 3 842248 Page: 15 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 Recaived 05-07-03 10:57 From-303.592.4305.3 To-OTTFN JOHNSON ROBINS Pata BOA SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OTTEN JOHNSON- t9707484078;# 6/ 9 - 5 -i McGcody sisncros. Pr' Tr15h 0s900A-►303R256525 5/8 and expenditures. If upon Suhmantial Completion excess money is available in the Funding Account, the County shall, within thirty (30) days of Substantial Completion, remit payment In all parties based on each party's pr-rcentage allocation of costs set forth in Section 2 herein. S. STATUS AFTER COMPLETION. Upon Substantial Completion the County shall own the Trail Improvements. Maintenance of the Trail Improvements will he funded pursuant to future arrangements between the County and Eagle-Vail. Truer Creek will have no maintenance responsibilities for the Trail Improvements, nor will Traer Creek own the Trail fmprovernents. 9. ASSIGNABILITY. This Agreement may not be amigned or delegated without the prior written consent of the Panics. 10. RELATIONSHIP OF TILE PARTIES. By executing this Agreement, no party shall be deemed to assume any liability for intentional or negligent acts, errors, or omissions of another parry or any otlicer or employer thereof No agent, employee or volunteer of any patty hereto shall be deemed an agent, employee or volunteer o fany other party under this Agreement. Nothing herein is intended to or waives any party's immunities at law, including provisions of the Governmental Immunity Act. 1.1. NO TIURD PARTY BENEFICIARIES. Nothing in this Agreement is intended to create or grant to any third party or person any right or claim for damages or the right to bring or maintain any action at law, nor does any party waive its immunities at law, including immunity granted under the Colorado Governmontal Immunity Act. 12. NONWAIVER OF RIGHTS. No waiver of default by the Parties of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other Parties sW1 be construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other Parties. 13. SEVERABILITY. It is understood and agreed by and between the Parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, orotherwisc appears to be invalid, such invalidityshall not affect the validity of any tither covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice any of the Parties in their respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 14. INTEGRATION. This Agreement is intended as the complete integration of all understandings between the Parties and constitutes the entire Agreement between the Parties hereto. No prior or contemporaneous addition, deletion or other amendment shall have any force of effect, unless embodied herein in writing. 842248 Page: 16 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 4 Received 05-07-03 10:57 From-303,592.d385.3 ToATTEH JOHNSON ROBINS page 005 301 1 64 • V 1 1 MN JUM3VIN Kurs I IN3VIN ; o- J ; 2: Juan 01'ftJN JOHNSON- t87074840784 7/ 9 - • • . ,,.,._2sc.•►.Ja-f-.J Mccceany Sisnerrw, Pc -I'rl ih 0Sg00d-►:3038256525 6/8 15. MODIFICATION. Modification or waiver of this Agreement or of any covenant, condition, or provision herein contained shall not be valid unless in writing and duly executed by the Parties herein. 16. CAPTIONS. The headings and sections and paragraphs are included only for convenience and reference. If any conflict between any heading and the text orthis Agreement exists, the text shall control. 17. INDEMNIFICATION, To the extent allowable by state law, the Parties agree that each shall indemnify the other, their officers, employees and agents from and against any claims, damages, losses or expenses which are the result of negligent acts or omissions of their respective officers, employees or agent, in connection with this Agreement. 18. GOVERNING LAW AND 3UJZISDICTION. This Agreement and all disputes arising hereunder shall be governed by the internal laws of the State of Colorado and the Parties agree that venue and jurisdiction over any claim arising from this Agreement shall lie in the courts of the Fifth Judicial District of Colorado. In the event of litigation, the prevailing parry shall be entitled to its attorney's fees and costs. 19. APPROPRIATION LIMITATION. The Parties hereto agree that this Agreement is contingent upon all funds necessary for the performance of this Agreement being budgeted, appropriated and otherwise made available at the times set forth in Paragraph 3. It is expressly understood that any financial obligations that may arise hereunder, whether direct or contingent, shall only extend to payment of monies duly and lawfully appropriated by the governing body of each of the Parties. Should any of the Parties tail iti undertake the project because necessary funds have not been budgeted or duly appropriated, this Agreement tray be terminated by any of the Parties to this Agreement. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligatioclsl under this Agreement, nor shall any payment be made in respect of any period after any December 31 of each calendar year during the term of this Agreement, without an appropriation therefore by C:oi city in accordance with a budget adopted by the Board of County Commissioners in compliance with applicable provisions of law. 20- NOTICE. Any written notice required by this Agreement shall be deemed delivered on the happening ofany of the 1501lowing: (1) hand delivery to the person at the address below; (2) delivery by facsimile with confirmarion ofreceipt to the fax nurnber below; or (3) within tierce (3) days cif being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: (1) Eagle County Eagle County Attorney P-0. Box 850 Eagle, Colorado 81631 Fax: (970) 328-8699 Phone: (970) 328-8685 ' 842248 Page: 17 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 Racnlved 05-07-03 10:57 From-303.582.4395.3 To-OTTEN JOHNSON ROBINS page 0116 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:31PM ; OTTEN JOHNSON- t9707484078;# 8/ 9 • . aY/.4.fx!)__1 McGnndy Signrrm, Pc Trish OSgnod-+3038256525 7/8 and (2) Traer Creek Metropolitan DiSLrict Board of Directors Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, Colorado 80228 Fax: (970) 748-8900 Phone: (970) 949-6776 and (3) Eagle-Vail Metropolitan District Board of Directors Eaglc- Vail Metropolitan District P.O. Box 5660 Avon, Colorado 81620 Fax. (970) 949-5400 Phone. (970) 949-0520 All Parties shall have the right, by giving written notice to the others, to change the address at which its notices are to be received. 842248 Page: 18 of 19 07/30/2003 03:46P Teak J Simonton Eagle, CO 289 R 96.00 D 0.00 6 Received 05-07-03 10:57 From-303.592.4305.3 To-OTTEN JOHNSON ROBINS Pape 007 SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:31PM ; OTTEN JOHNSON- +9707484078;# 9/ 9 McGcndy Slsngl'oti, PC rrlSh (la80(NI-1-3038256525 R/S ~N WITNESS WHEREOF, the Parties herein have affixed their signatures thin>aay of -r 2003. COUN1`Y OF EAGLE, STATE OF COLORADO r By and(Through Its ATI'EST: BOARD OF CO TY COMMISSIONE By: C erk to the Roard of ' .i:Y5 Michael L. Gallaghcr, Cha- an County Commissioners ATTEST: AT1'EST: TRAF."R CREEK METROPOLITAN DISTRICT By: EAGLE -VAIL METROPOLITAN DISTRICT By: ECO 2R~II6~ aazz,a;as. 7 Received 05-07-03 10:57 From-303.592.4305,3 To-OTTEN JOHNSON ROBINS Page One