11-19-2003 TRAER CREEK LLC SUBDIVISION IMPROVEMENTS AGREEMENTNOV, 19. 2003 4:14PM STEWART TITLE N0. 0869 P. 8
SURDIVISIMMEROVEMEN-18 AGREEMENT fl n.)
THIS AGREEMENT, made and entered into this L day of /V- ~ , 2001, is by and
among Traer Creek LLC, a Colorado limited liability company ("Subdivider"), Traer Creek
Metropolitan District, a quasi-municipal corporation and political subdivision of the State of
Colorado (the "District"), and the Town of Avon, a Colorado municipality, by and through its
Council (the "Town"),
WHEREAS, Subdivider and the District, in connection with the approval of the final plat
for The Village (at Avon) Filing 1, consisting of 176.90 acres in Section 12, T. 5 S., R. 82 W.
and Sections 7 and 8, T, 5 S., R. 81 W., of the 6th P.M., Town of Avon, Eagle County, Colorado
(the "Subdivision"), desire to enter into a Subdivision Improvements Agreement 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 public improvements (the "improvements") set forth in Exhibits A and B
attached hereto and incorporated herein by reference; and
WHEREAS, the District is responsible for the performance and completion of public
improvements ("District Improvements") assigned on Exhibit A attached hereto and incorporated
herein by reference; and the Subdivider is responsible for the performance and completion of
public improvements ("Subdivider Improvements") assigned on Exhibit B attached hereto and
incorporated herein by reference; and collectively referred to as Improvements.
NOW THEREFORE, in consideration of the following mutual covenants, conditions
and promises, the parties hereby agree as follows:
1. Final Plat AAproval. The Town agrees that upon compliance with all other
conditions of approval, and subject to the terms and conditions of this Agreement, the Final Plat
of The Village (at Avon) Filing 1 shall be promptly riled for record with the Office of the Eagle
County Clerk and Recorder.
(a) 129f rmance. Subdivider and District 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 assigned to each as get forth in Exhibits A and B.
Subdivider and the District further agree that each will be responsible for all costs of
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Improvements assigned to it, All said work shall be performed in accordance with the
construction plans and specifications as submitted to and approved by the Town prior to
commencement of construction of Improvements, All Improvements shall be completed within
three (3) years of the date of the Town's approval of the Final Plat for the Subdivision,
(b) Inm . Non proms d
All shall work under be done and
standards established by the Town, shall be subject to the reasonable satisfaction oft the Town
and shall not be deemed complete until the reasonable approval and acceptance of he
Improvements by the Town.
(2) - Prior to commencement of construction
work on the Improvements, the Town shall designate the individuals or independent third parties
employed by the Town who are authorized to inspect the construction of the Improvements.
Such inspections by the Town shall not relieve Subdivider or the District 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.
(3) 0051 of Ins crone, The cost of such inspections, whether by
Town employees or an independent third party inspector, shall be paid by Subdivider he the
District, depending on the party responsible for the Improvement inspected, and subject to the
limitations set forth in paragraph 9 below,
the (4) In the event that the Town, through
inspectors, reasonably determines that the Improvements are not in compliance with the pre
approved construction plans and specifications, it shall give written notice of such non-
compliance to Subdivider or the District, depending on the Improvements involved ("Notice of
Non-Compliance"), 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 Subdivider or the District
within two (2) working days of the date of the inspection,
3.
(a) To secure completion of the Improvements, Subdivider and the
District hereby agree to secure their respective obligations under this Agreement with Collateral
in accordance with Section 16,24, 100 of the Code. Collateral shall be one or a combination of
the following: cash or its equivalent; securities of acceptable value; letter of credit; bond (for
District Improvements warranty period only); and land of acceptable value by deed of trust,
(b) Substit„ti~ es, Either Subdivider or the District may substitute
another form of collateral acceptable to the Town in place of the forms of security set forth below
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in order to guaranty the faithful completion of the Improvements and the performance of the
terms of this Agreement.
4. Disfri t Imnroe=.-.e
(a) The District has adopted a resolution (the "Funding
Resolution") attached hereto as Exhibit E authorizing the District's execution of this Agreement
and providing for the appropriation, segregation and use of funds in an amount sufficient to
guarantee the construction of the District improvements set forth on Exhibit A. The estimated
costs of completion of the District improvements are set forth on Exhibit C attached hereto and
incorporated herein by reference.
The Funding Resolution specifically provides that all funds referenced therein are
unencumbered and free from claims of others such that, if necessary, any requests for payment
approved by the Town may be promptly honored, As a condition to recordation of the Finial Plat,
the District shall provide the Town Engineer with evidence that such funds have been
appropriated and segregated in a separate account (the "Security Account") and identified for use
in connection with this Agreement. The District shall renew the Funding Resolution at the
beginning of each subsequent calendar year until all District Improvements have received final
acceptance or until the District provides substitute collateral acceptable to the Town.
(b) ecu 'y for t„+Pre+ate ~n & d=al The parties acknowledge that the
Town and Subdivider's predecessors-in-interest entered into an Annexation and Development
Agreement ("Development Agreement") dated October 13, 1998, and a First Amendment to the
Annexation and Development Agreement ("First Amendment") that among other things,
addressed the construction of a full diamond interchange on Interstate 70 serving the
Subdivision. Paragraph 4.30) in the Development Agreement, and reiterated in paragraph 2(q) of
the First Amendment, states that if the District provides the Colorado Department of
Transportation ("CDOT") with a completion bond or other security acceptable to CDOT with
respect to completion of the Interstate 70 interchange, then the District shall have no obligation
to also provide separate security to the Town for such improvements, The Town, Subdivider and
the District agree that nothing in this Agreement shall alter or modify the terms of the
Development Agreement or the First Amendment.
(c) Erneress am The District may make
progress payments to its contractors from the Security Account on a monthly basis upon the
partial completion of itemized improvements which have been set forth in Exhibit C and upon
fifteen (15) day's prior written rloticc including an itemized statement of the District to the Town,
The District shall retain ten percent (10%) of the amount of each payment until final completion
and acceptance of all work covered by each construction contract; provided however, when the
value of work completed has progressed to fifty percent (50%) of the contract amount, the
District shall not be required to withhold additional retainage for the remainder of the work
under such contract. The (10 ten percent retainage of the value of work completed may be
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reinstated if in the Town's opinion the lack of progress or other substantial reasons exist. Except
for the foregoing, in no event shall any progress payment cause the remaining sum to be available
in the Security Account for subsequent disbursements to be less than one hundred ten percent
(110%) of the costs to complete all remaining District Improvements as estimated at the time of
each progress payment. Upon completion of all work related to the District Improvements, the
Town's acceptance of the District Improvements and the expiration of the Warranty Period set
forth in paragraph 6 below, the Town shall release any further interest in the Security Account.
(d) Default b District. In the event of a default in whole or in part by the
District, the Town shall be authorized to access the funds in the Security Account for the purpose
of undertaking completion or remediation work on the District's Improvements after providing
thirty (30) days advance notice of default and providing an opportunity during such period for the
District to cure the default. The Town shall be entitled to draw on the Security Account by
Resolution of the Town Council stating (i) that the District is in default, and (ii) the funds are
required in order to complete or correct work on the District's Improvements. District funds
identified in the Funding Resolution shall be held, whether by the District or the Town, in
compliance with the requirements of C.R.S. 29-1-803(1) for the purpose of providing for the
completion of the District Improvements.
Suhdivid rM
(a) ;aeeurity for omnleh..r nf'QI,l.di....i..'O r?"BrOV~ emen;aI Subdivider shall
deliver to the Town an irrevocable letter of credit or other collateral consistent with Section
16-24. 100 of the Code issued by a reputable financial institution in an amount equal to one
hundred and ten percent (110%) of the estimated costs of completion of Subdivider's
Improvements as set forth on Exhibit D. The irrevocable letter of credit or other collateral shall
be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the
Subdivision,
(b) P_roete.~: s Pav entc n„ ;yidel's I . The Subdivider may
make progress payments to its contractors on a monthly basis upon (i) the partial completion of
itemized improvements for which cost estimates have been set forth in Exhibit D and upon
written request including an itemized statement of the Subdivider to the Town, and (ii) the
written approval of the Town or its designee; provided, however, if the Town fails to respond to
a disbursement request within twenty (20) days such request will be deemed approved. Upon the
approval of such progress payments, the amount of collateral shall be reduced by the amount of
such payment; 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 (110%) of
the estimated costs of completion of all remaining Subdivider's Improvements, Upon
completion of all work related to Subdivider's Improvements and the Town's acceptance of
Subdivider's Improvements, the entire amount of remaining collateral less those amounts
described in paragraph 6 below, shall be released.
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(c) I2efault ~~bdiy. . In the event of a default in whole or in part by
Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the
purpose of undertaking completion or remediation work on the Subdivider's Improvements after
providing thirty (30) days' advance written notice of default and providing an opportunity during
such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter
of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in
default, and (ii) the funds are required in order to complete or correct work on the Subdivider's
Improvements,
6. )MaTran Period, The Improvements shall be warranted to be free from defects in
workmanship or quality for a period of one (1) year after acceptance of all the work by the Town.
In the event of any such defect, the Town may require Subdivider or the District, depending on
which work is defective, to correct the defect in material or workmanship. The amounts for
completion of all warranty work on District Improvements shall be secured by a letter of credit,
bond or other acceptable collateral in the amount of one hundred and ten percent 0 10%) of the
cost of such corrective work to be held by the Town during such one (1) year period, as a
guaranty of performance of any work required under the above-described warranty. The amounts
for completion of all warranty work on Subdivider Improvements shall be secured by a letter of
credit or other acceptable collateral in the amount of one hundred and ten percent (110%) of the
cost of such corrective work to be held by the Town during such one (l) year period, as a
guaranty of performance of any work required under the above-described warranty. In the event
any corrective work is performed during the one (1) year warranty period then the warranty on
said corrected work shall be extended for one (1) year from the date on which it is completed.
7' . The District shall at all times prior to
acceptance of any publicly dedicated roadways within the Subdivision by the Town give good
and adequate warning to the traveling public of each and every known dangerous condition
existent in said roads and shall protect the traveling public from such defective or dangerous
conditions, Until the completion of all the Improvements herein agreed to be constructed, roads
not accepted as improved shall be under the charge and control of the District for purposes of this
Agreement; and the District may close all or a portion of any street or road within the
Subdivision whenever it is necessary to protect the traveling public during the construction or
installation of the Improvements herein agreed to be made.
8. Eneineering~ Upon completion of portions of the Improvements,
Subdivider or the District will cause their engineers (who shall be registered in the State of
Colorado) to certify in writing that the installation of the Improvements, or portions thereof as
may be completed from time to time, have been completed in conformance with all standards,
plans and specifications as submitted to and previously approved by the Town. Inspection
reports, test results and other supporting documentation shall be submitted with the certification.
9' R1 jbdl vision i . Fees in accordance with the Town's
Subdivision Regulations for the review of Preliminary Plans and Final Plats have been paid in
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full, Additional fees shall be paid to the Town by Soadiv der or the District, depending on which
Improvements are involved, within thirty (30) days after delivery of written invoice for such fees
to cover the cost of inspections by the Town. The fees 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 fees exceed five percent (5%) of
construction costs.
10. Rio o blig tine
agree that in the event either shall fail to perform their pobblliga~g as set forth herein, theUTown
shall be under no obligation to complete or perform any of the said Improvements. No one,
individually or otherwise, other than the parties hereto, shall acquire, as a result of this
Agreement, any rights, claims or obligations from or against the Town, its agents, employees or
officers. Actions by the Town against Subdivider-or the District to enforce any provision of this
Agreement shall be at the sole discretion of the Town. No third parties shall have any rights to
require any action by the Town pursuant to this Agreement; and this Agreement shall not create a
liability on the part of or be a cause of action against the Town, for an
damage that may result to any third parties from the failure of the Subdividers orlthe pr strict to
complete the Improvements herein specified.
11, :Liabi y of Town rnrLa ign The Town shall not
officer, agent, or employee , nor shall any
thereof, be liable or responsible fbr 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 the District, respectively, hereby agree to
indemnify and hold harmless the Town, and any of its officers, agents and employees against any
losses, claims, damages tar 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 the District, respectively, as hereinbefore stated. Furthermore,
Subdivider and the District 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.
12• ~i is of T,t ct ifs In the event that Subdivider or the District
default 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 the District of such default during
which period of time the Subdivider or the District failed to correct said default, the Town may,
at its sole discretion, proceed with the P ,onstructiou or completion of the Improvements specified
on Exhibit A or Exhibit B. All such costs paid by the Town for such Improvements, together
with all costs of personnel, equipment and other matters expended by the Town in furtheranca of
the construction responsibilities of Subdivider or the District, shall be paid by Subdivider or th;,
District based upon their underlying responsibility for the improvement in question. Any such
costs relating to the Subdivider Improvements, which have not > een reimbursed by Subdividers
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shall be a lien on any property in the Subdivision owned by Subdivider at the time of default.
Any such costs relating to the District's Improvements, which have not been reimbursed by the
District, shall be a lien on any property in the Subdivision owned by Subdivider at the time of
default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the
Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection.
Without limiting the foregoing, the Town may bring a mandatory injunction action against
Subdivider or the District to require installation and construction of the Improvements, if not
constructed within the time limits described in this Agreement. if any such action is brought by
the Town, the Town shall be awarded its court costs and reasonable attorneys' fees.
13. When all
Improvements have been completed and accepted by the Town, and the Warranty Period has
expired, the Town agrees that it will issue a letter, in recordable form, certifying that all
obligations of Subdivider and the District under this Agreement have been satisfied.
14. Ali This Agreement may be amended from time to time, provided that
such amendment is in writing and signed by all parties hereto.
15. al-and. 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,
hereto have executed this Agreement as of the date first above written.
TOWN OF AVON, a Colorado
municipal corporation
6N
13y:
May
APPROV S TO FORM:
Town Attorney 11 429/Tract 7950084
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NOV.19.2003 4.16PM STEWART TITLE
NO. 0869--P, 15
TRAER CREEK LLC, a Colorado limited liability
company
Magnus ndholm
Manager
TRAER CREEK METROPOLITAN DISTRICT, a
quasi - municipal corporation
`
By:
r"440- -
4illiam J. P
President
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NOV, 19. 2003 4:16PM STEWART TITLE
Exibit A
DISTRICT IMPROVEMENTS
I. Demolition, Excavation & Grading
A, Remove & Dispose of Existing Structures
B. Excavation for Roadways & Overlot Grading
C. Embankment Including Structural and Stockpile Fill
11, Incidental Construction
A. Erosion Pollution Control
B. Dust Control
C. Revegetation
III. Storm Drainage
A. Nottingham Gulch to Eagle River
B. Nottingham Gulch Debris Flow Mitigation Facilities (1-70)
C, Roadway and Site Drainage Facilities to Eagle River
D. Stormwater & Pollution Control Facilities
IV. Utilities
A. Water
B. Sanitary Sewer
C. Natural Gas
D. Electric (Pro-Rata 24% of Private)
E. Telephone
F. Cable TV
V. Bridges and Structures
A. Eagle River Bridge
B. Union Pacific Railroad Bridge
C. Retaining Walls
VI. Street Improvements Including Fine Grading, Sub-Base
Materials & Preparation, Concrete Curb & Gutter,
Medians,Crosspans & Sidewalks, Asphalt Paving, and
Signage & Striping
A. US Highway 6
B. Post Boulevard (US Hwy 6 to South 1.70 Access Line)
C. Eaglebend Drive
0. Nottingham Ranch Road
E. Yoder Avenue
F. Fawcett Road
G. East Beaver Creek Boulevard/Chapel Place (Temporary Connection)
VII. Street Landscaping
VIII Street Lighting
IX Management and General Conditions
795008
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NO. 0869 P. 16~--
NOV, 19. 2003 4:16PM STEWART TITLE -----NO. 0869 -P, 1
Exibit B
SUBDIVIDER IMPROVEMENTS
I Dry Utilities
B. Gas
C. Electric
D. Telephone/Communications
11 Construction Management and General Conditions
~WIIAW~~~~~~~y)950 q8~'.;
NOV, 19. 2003 4:16PM STEWART TITLE
N0. 0869-P. 18
Esibit C
ESTIMATED COST OF COMPLETION
for
DISTRICT IMPROVEMENTS
I. Demolition, Excavation & Grading
A, Remove & Dispose of Existing Structures
B. Excavation for Roadways & Overlot Grading
C. Embankment Including Structural and St
k
$
$
205,841
2
301
772
oc
pile Fill
z $
,
,
-
II, Incidental Construction
A. Erosion & Pollution Control
8. Dust Control
$
85
253
C. Revegetation
$
,
183,200
Ill. Storm Drainage
$
37,450
A. Nottingham Gulch to Eagle River
B. Nottingham Gulch Debris Flow Mitigation Facilities (1-70)
0. Roadway and Site Draina
e Fa
iliti
$
613,765
60
0
g
c
es to Eagle River
D. Stormwater & Pollution Control Facilities
$
,
00
1,832,662
IV, Utilities
$
10,000
A. Water
B. Sanitary Sewer
$
1,025
397
C. Natural Gas
D. Electric (Pro-Rata 24% of Private)
$
,
248,742
E. Telephone
F. Cable TV
$
$
103,669
-
V. Bridges and Structures
$
40,624
A. Eagle River Bridge
S. Unlon Pacific Railroad Bridge
C
$
1,736,06
. Retaining Walls
$
6
673,176
VI. Street Improvements Including Fine Grading
Sub-Base
$
993.253
.
Materials & Preparation, Concrete Curb a Gutter,
Medians,Crosspans a Sidewalk
A
s,
sphalt Paving, and
Signage & Striping
A. US Highway B
B. Post Boulevard (US Hwy 6 to South 1-70 Access Line)
C. Eagleband Drive
$
132,356
0. Nottingham Ranch Road
$
$
1,132 786
16
703
E. Yoder Avenue
F. Fawcett Road
$
$
,
32,737
G. East Beaver Creek Boulevard/Chapel Place (Temporary Connection)
$
343,010
182,943
VII. Street Landscaping
$
320,542
VIII Street Llphtinp
$
814,620
IX Management and General Conditions
$
98.000
S
1,088,126
TOTAL ESTIMATED COST
$ 14,336,393
I Uoon oumplstion of I-7o 9eaglty agreements wl MoT arnoum will be relented,
2 Embanlanem is In Included in Item No. 19 b,,G.
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NOV.19.2003 4:16PM STEWART TITLE
Exlbit D
ESTIMATED COST OF COMPLETION
for
SUBDIVIDER IMPROVEMENTS
I Dry Utilities
E. Gas
C. Electric
D. Telephone/Communications
II Construction Management and General Conditions
TOTAL ESTIMATED COST
793008
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NO. 0869--P, 19
$ 127,862
$ 328,285
$ 303,458
$ 62,351
$ 821,956
NOV, 19. 2003 4; 16PM STEWART TITLE - -NO. 0869--P. 20
Exhibit E
RESOLUTION
OF TRAER CREEK METROPOLITAN DISTRICT
REGARDING APPROPRIATION OF FUNDS UNDER
SUBDIVISION IMPROVEMENTS AGREEMENT
WHEREAS, Traer Creels Metropolitan District (the "District") is a quasi-munici al
corporation and political subdivision of the State of Colorado, and p
WHEREAS, the District is authorized, pursuant to Section 32-1-1001(1)(d)(I), C.R.S., to
enter into contracts and agreements affecting the affairs of the District; and
WHEREAS, the District hss entered into a Subdivision Improvements Agreement dated
2001 (the "SIA") with the Town of Avon, Colorado (the "Town") and Traer
Creek LLC, a Colorado limited liability company
construction of public infrastructure improvement in connectlon)wt regarding hethe funding
o the Plat of The Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; andl of the Final
WHEREAS, the District is responsible for the performance and completion of ublic
improvements assigned on Exhibit A of the SIA (the "District Improvements"); p
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
TRAER CREEK METROPOLITAN DISTRICT AS FOLLOWS:
1 • The Board of Directors hereby finds, determines and declares that it is in the best
interest of the District to execute and deliver to the Town the SIA and the ap ro riate
the District are hereby authorized to execute and deliver such SIA to the Town. p officers of
2. The Board of Directors hereby appropriates, reserves and allows for tender to the
Town pursuant to the SIA available funds of the District in an amount not less
111116 3 3. 0 (the "Funds") to guarantee construction of the District improvements. than
3. The Board of Directors hereby certifies to the Town Council that the Funds are
unencumbered and free from claims of others so that any requests of the Town for payment
under the SIA may be promptly honored. The Board of Directors further certifies to the ow
Council that the Funds have been set aside in a separate account and identified for the pu n
recited herein and that such Funds shall be held in compliance with the requirements of Section
29-1-803(l), rposes
C.R.S., for the purpose of providing for the completion of the District
Improvements.
4. This Resolution shall be renewed at the beginning of each subsequent calendar
year until all the District Improvements have received final acceptance or until the District
provides substitute collateral acceptable to the Town,
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*CO R 70.00
NOV. 19, 2003 4:17PM STEWART TITLE 0869-P. 21--
APPROVED AND ADOPTED this day of 2001.
TRAER CREEK METROPOLITAN DISTRICT
William J. Post, President
Attest;
Eric E. Applegate, Secretary
01 Cc sa 95/98/2062 vi:gmip
R 70,08 0 6.90
WW:1CIieiua 3S Tr3¢r Craek\Res01UtilRes011Aion re appmpriation Of funds under SIA,doe