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06-09-2004 TRAER CREEK-RP LLC AND TRAER CREEK METROPOLITAN DISTRICT CONVEYANCE OF ROADWAY TRACTRECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO: Michael J. Repucci, Esq. Johnson & Repucci LLP 2521 Broadway, Suite A Boulder, Colorado 80304 CONVEYANCE OF ROADWAY TRACT THIS CONVEYANCE OF ROADWAY TRACT (this "Conveyance Agreement") dated as of the 9th day of Tune 2004, is by and between TRAER CREEK-RP LLC, a Colorado limited liability company ("Traer Creek"), whose address is P.O. Box 640, Vail, Colorado 81658, on the one hand, and TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the 'District"), whose address is 141 Union, Suite 150, Lakewood, CO 80228, on the other hand. RECITALS WHEREAS, Traer Creek is the fee owner of all of that certain real property located in the Town of Avon, County of Eagle, State of Colorado legally described as Tract A ("Tract A"), Tract B ("Tract B"), , Tract D ("Tract D"), Tract E ("Tract E"), Tract F ("Tract F"), and Tract G ("Tract G"), The Village (at Avon) Filing 3, according to the plat thereof recorded 2004 at Reception No. of the Eagle County, Colorado C real property records (the "Final Plat"). There is no Tract C on the Final Plat; and WHEREAS, Tracts A, B, D, E, F and G are sometimes herein collectively referred to as the "Tracts". There is no Tract C; and 1 16682Nersion 9 Clean June 10, 2004 WHEREAS, the Tracts are subject to that certain Annexation and Development Agreement, dated October 13, 1998, and recorded November 25, 1998, at Reception No. 677743 of the aforementioned real property records, as amended (the "Annexation A eement"); and WHEREAS, the Tracts are subject to that certain that certain "Subdivision Improvements Agreement," recorded 2004 at Reception No. & of the Eagle County, Colorado real property records (the "SIA"), by and among Traer Creek, the District, and the Town of Avon, a Colorado municipal corporation ("Avon"); and WHEREAS, the Tracts are subject to the easements, covenants, restrictions and encumbrances created by that certain Easements with Covenants and Restrictions Affecting Land, dated as of 2004, and recorded Reception No. 2004, at L of the aforementioned real property records (the "ECR"); and WHEREAS, the ECR contemplates that Traer Creek may or will convey fee title to, and easement interests on, over, across upon and through, all or certain portions of Tracts A, B, D, E, F and G to the District or to one or more other governmental or quasi-governmental entities through one or more separate conveyances, and that following such conveyances, such entities will thereafter construct and install such infrastructure improvements thereon and therein as may be required in accordance with the terms and conditions of one or more subdivision improvements agreements by and among Traer Creek, the constructing entity and Avon, and that upon preliminary acceptance of the same by Avon pursuant to the terms of any such subdivision improvements agreement, the constructing entity will operate, repair,, replace and maintain all such infrastructure improvements; and 16682Nersion 9 Clean 2 June 10, 2004 WHEREAS, Traer Creek desires to make a conveyance to the District of fee title to Tract D and a non-exclusive easement interest in and to the Tracts A, E and G Utility, Drainage, Roadway Maintenance and Recreation Path Easements ("Tracts A, E and G Easements") as contemplated by the ECR so that the District may construct and install the systems, facilities and improvements required by the terms of the SIA within, on over, across and through such parcels, and thereafter operate, repair, replace and maintain all such. infrastructure improvements as contemplated by the ECR as modified and clarified by this Conveyance Agreement. AGREEMENT NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Conveyance of Tract D to the District. (a) (i) Subject to the terms and conditions of this Agreement, including Traer Creek's reservation of rights as hereinafter described, Traer Creek does hereby sell and quitclaim to the District, its successors and assigns, fee title to Tract D with all of its appurtenances for so long as Tract D is used for the location, construction and maintenance of public roadways, natural open space areas, access, utility, drainage, and other infrastructure improvements to be located within Tract D in accordance with the terms and conditions of the SIA and the ECR (the "Tract D Improvements"), and no longer. (ii) If Traer Creek believes Tract D has been abandoned by the District or that Tract D is no longer being used for its intended purpose, Traer Creek shall give written notice to the District. If the District agrees with Traer Creek, the District shall promptly execute all documents necessary to reconvey Tract D to Traer Creek. However, if the District disagrees 3 16682Nersion 9 Clean June 10, 2004 with Traer Creek's assertion that Tract D has been abandoned by the District or that Tract D is no longer being used for its intended purpose, the District shall give Traer Creek written notice stating that the District requires arbitration of the dispute, such notice to be given within forty- five (45) days following the District's receipt of Traer Creek's notice. The dispute shall be settled by binding arbitration before any retired Colorado Supreme Court Justice or Colorado Court of Appeals Judge employed by the Judicial Arbiter Group in Denver, Colorado ("JAG'). The arbitration proceeding shall be conducted in accordance with the Colorado Rules of Civil Procedure then in effect. Each party to the dispute shall deliver to the other party, within ten (10) days of the District's demand for arbitration, a complete, concise statement of issues to be arbitrated. Traer Creek and the District shall select a single JAG arbitrator in accordance with the applicable rules of JAG. The arbitration proceedings shall be conducted at JAG in Denver, Colorado, and shall continue in the absence of any party who, after notice given pursuant to this Section, fails to participate in the proceedings. The decision of the arbitrator shall be final and binding upon the parties to this Agreement whether such party(ies) participate in the proceedings or not, and a judgment thereon may be entered in any court having jurisdiction. (iii) The parties acknowledge and agree that Traer Creek hereby retains a possibility of reverter from Traer Creek's conveyance of a fee simple determinable interest to the District. It is the intent of the parties that Traer Creek may transfer, convey or assign its possibility of reverter hereby reserved to any person or entity and that such person or entity shall have the right and power to enforce the possibility of reverter against the District and its successors and assigns, regardless of any applicable law to the contrary. In addition to Traer Creek's reservation of a possibility of reverter in Tract D, Traer Creek hereby reserves a 16682/Version 9 Clean 4 June 10, 2004 perpetual, non-exclusive, fully assignable easement in and to Tract D for the purposes and subject to the terms and conditions described in Section 6 hereof. Subject to the foregoing reservations and the other terms and conditions of this Agreement, Tract D shall be used only for the location, construction and maintenance of the Tract D Improvements, and for the purposes described in Section 2 hereof as contemplated in the Service Plan, but not otherwise, and that all such use shall conform to the requirements of the Annexation Agreement, the SIA and the ECR, as applicable. (b) Grant of Tracts A E and G Easements to the District. (i) Subject to the terms and conditions of this Agreement, Traer Creek does hereby sell and quit claim to the District, its successors and assigns, and the District hereby accepts, a non-exclusive easement interest in and to the Tracts A, E and G Easements as described in, and subject to, the terms of the ECR. Notwithstanding any subsequent conveyance of fee title to Tract A, Tract E and/or Tract G to any person or entity, the owner(s) of the Tracts A, E and G Easements reserve the sole and exclusive right to grant to others (or consent in writing to any grants made by the fee owner of Tract A, Tract E and/or Tract G) the right to use any of the systems, facilities and improvements now or hereafter constructed over, upon, across and through Tract A, Tract E and/or Tract G within the Tracts A, E and G Easements (the "Easement Improvements"). The improved surfaces of the Tracts A, E and G Easements hereby established and granted shall only be used for the purposes for which they were constructed. Without limiting the generality of the foregoing and except as may be required for the maintenance, repair or replacement of subsurface infrastructure improvements, the improved 16682/Version 9 Clean June 10, 2004 surfaces of the easements may only be used for pedestrian and recreational ingress, egress and access purposes. (ii) If Traer Creek believes the Tracts A, E and G Easements have been abandoned by the District or that the Tracts A, E and G Easements are no longer being used for their intended purpose, Traer Creek shall give written notice to the District. If the District agrees with Traer Creek, the District shall promptly execute all documents necessary to release and terminate the Tracts A, E and G Easements to Traer Creek. However, if the District disagrees with Traer Creek's assertion that the Tract A, E and G Easements have been abandoned by the District or that such easements are no longer being used for their intended purpose, the District shall give Traer Creek written notice stating that the District requires arbitration of the dispute, such notice to be given within forty-five (45) days following the District's receipt of Traer Creek's notice. The dispute shall be settled by binding arbitration before any retired Colorado Supreme Court Justice or Colorado Court of Appeals Judge employed by the Judicial Arbiter Group in Denver, Colorado ("JAG"). The arbitration proceeding shall be conducted in accordance with the Colorado Rules of Civil Procedure then in effect. Each party to the dispute shall deliver to the other party, within ten (10) days of the District's demand for arbitration, a complete, concise statement of issues to be arbitrated. Traer Creek and the District shall select a single JAG arbitrator in accordance with the applicable rules of JAG. The arbitration proceedings shall be conducted at JAG in Denver, Colorado, and shall continue in the absence of any party who, after notice given pursuant to this Section, fails to participate in the proceedings. The decision of the arbitrator shall be final and binding upon the parties to this Agreement whether such party(ies) participate in the proceedings or not, and a judgment thereon may be entered in any court having jurisdiction. 16682Nersion 9 Clean 6 June 10, 2004 2. Purposes of Conveyance; Remedies for Failure to Construct Maintain or Repair. The purpose of the conveyances described in Section 1 is to permit the District, for the benefit of all of the real property depicted on the Final Plat, but not otherwise, to construct, install, stabilize, operate, use, maintain, repair, replace and/or remove the Tract D Improvements and the Easement Improvements as contemplated by the Annexation Agreement, the ECR and the SIA. Without limiting the generality of the foregoing, the District is affirmatively obligated to construct the Tract D Improvements and the Easement Improvements within the time and subject to all of the other terms and conditions of the SIA. Following preliminary acceptance of the Tract D Improvements by Avon, the District shall thereafter be responsible for the maintenance, repair and replacement of the Tract D Improvements, including all warranty obligations relating to the same pursuant to the terms of the SIA. Following preliminary acceptance of the Easement Improvements by Avon, the District shall thereafter be responsible for the maintenance, repair and replacement of the Easement Improvements, including all warranty obligations relating to the same pursuant to the terms of the SIA. In the event the District fails or refuses to construct and install and thereafter operate, use, maintain, repair, replace and/or remove all of the Tract D Improvements or the Easement Improvements as contemplated by and in accordance with the terms and conditions of the Annexation Agreement, the ECR and the SIA, subject to the terms of Section 1 of.this Conveyance Agreement, Traer Creek shall only be entitled to those remedies against the District which are available to any other District resident, at law or in equity, notwithstanding anything to the contrary contained in the ECR. 3. Maintenance and Regulation of Tract D Improvements and Easement Improvements. From and after the conveyances described in Section 1, the District shall, at its sole cost and expense, but only to the extent it has funds legally available therefor, maintain the 16682Nersion 9 Clean 7 June 10, 2004 Tract D Improvements and the Easement Improvements and keep the same in good order, condition, repair and appearance, including performing all necessary work required to provide convenient and safe access to and within the real property depicted on the Final Plat, maintaining such improvements reasonably free from ice, snow, dirt, debris and obstructions, and performing all necessary work required so that such improvements collect, detain and transmit over, upon, across and through the Tracts all on- and off-site drainage in accordance with the approved design of the infrastructure improvements relating to the same. 4. Rules and Regulations. From and after the conveyances described in Section 1, the District may adopt, amend and enforce rules and regulations (the "Rules and Regulations") relating to Tract D and the Tracts A, E and G Easements. The Rules and Regulations adopted by the District shall achieve the following: (a) provide for the safety of all persons and all of the real property depicted on the Final Plat, (b) prohibit nuisances, and (c) protect against damage to the Tract D Improvements, and the Easement Improvements. Each of the foregoing objectives is intended to provide for the public health, safety and welfare. Upon adoption, the Rules and Regulations, including any amendments thereto from time to time, shall be a public document and shall be open to inspection during reasonable business hours. 5. No Dedication. Nothing contained in this Conveyance Agreement shall be deemed to be a dedication of any portion of any of the Tracts, or any interest in any of the Tracts, other than the dedication of fee title to Tract D as set forth above, to any person or entity for the general public or for any public purpose whatsoever, it being the intent of the parties that all of the Tracts and all interests therein shall continue to be private unless and until the fee owner or owners of such Tracts, at their sole option and election, complete the dedication of the Tracts or any portion thereof to an eligible governmental or quasi-governmental entity or other third party, 8 16682Nersion 9 Clean June 10, 2004 in accordance with all applicable laws, rules, regulations and ordinances. 6. Reservation and Grant of Rights. (a) Traer Creek hereby reserves for itself and its successors and assigns the following perpetual rights in and to Tract D and the various land parcels over, upon, across and through which the easements created and reserved by the ECR and this Conveyance Agreement are located, and all such rights shall be exercisable by Traer Creek, its successors and assigns at any time and from time to time: (1) Rights to lateral and subjacent support for property in which Traer Creek either owns or hereafter acquires an interest, adjoining, above, or in the vicinity of Tract D and the easements created and reserved by the ECR and this Conveyance Agreement. (ii) Rights to locate, install, construct, maintain, remove or relocate in, on, into, through, over, under and across Tract D and the easements created and reserved by the ECR and this Conveyance Agreement, at points or in locations determined by Traer Creek, utility lines, pipes, ducts, conduits, wires, meters, switchgear valves and connections of all kinds and other similar devices, and all facilities, accessories or additions related or incidental thereto, subject, however, to reasonable Rules and Regulations uniformly applied with respect to road cuts and utility connections. (iii) Rights to locate, install, construct, remove or relocate in, to, through, over, under and across Tract D and the easements created and reserved by the ECR and this Conveyance Agreement, at points or in locations determined by Traer Creek, bridges, overpasses, tunnels, columns, piers, pylons, caissons, beams or other members supporting Traer Creek's improvements located above or under Tract D and the easements created and reserved by the ECR and this Conveyance Agreement, and for all other purposes which do not interfere with 9 16682Nersion 9 Clean June 10, 2004 the reasonable use of said Tract, easements, the Tract D Improvements and the Easement Improvements, subject, however, to reasonable Rules and Regulations uniformly applied; and, provided that such improvements shall allow reasonable clearance above Tract D and the easements created and reserved by the ECR and this Conveyance Agreement for pedestrian and vehicular access. Unless otherwise approved by the District, a clearance of at least sixteen feet six inches (16' 6") above the surface of Tract D and the easements created and reserved by the ECR and this Conveyance Agreement shall be considered reasonable clearance for the purposes of this Section 6. (iv) Rights to locate, install, construct, remove or relocate in, on, onto, through, over, under and across Tract D and the easements created and reserved by the ECR and this Conveyance Agreement, and to connect into or with the Tract D Improvements and the Easement Improvements such other similar roadway improvements, pedestrian walkways, drainage improvements and utilities at such points or in such locations as determined by Traer Creek from time to time so long as the location; installation, construction, removal or relocation of such roadway improvements, pedestrian walkways, drainage improvements and utilities conforms with the Avon Town Code and does not interfere with the operation of the Tract D Improvements and the Easement Improvements, and subject, however, to reasonable Rules and Regulations uniformly applied. (b) With respect to Section 6(a) above, (i) such reserved rights shall not diminish in any material respect the ability of persons authorized herein to use Tract D and the easements created and reserved by the ECR and this Conveyance Agreement to obtain access thereto, and (ii) Traer Creek shall pay all of the costs relating to exercise of such reserved rights, including but not limited to, repairing any damage caused to the Tract D Improvements and the 10 16682Nersion 9 Clean June 10, 2004 Easement Improvements by exercise of such reserved rights. (c) Traer Creek hereby covenants with the fee owner or owners of the Tracts and their respective successors and assigns, that each shall have the perpetual rights to lateral and subjacent support for property in which such fee owner either owns an interest or hereinafter acquires an interest, adjoining, above or in the vicinity of the Tracts and the easements created and reserved by the ECR and this Conveyance Agreement, and such rights shall be exercisable by such fee owners, and their respective successors and assigns at any time and from time to time. 7. No Merger or Extinguishment of Easements. In no event shall Traer Creek's conveyance to the District of fee title to Tract D or an easement interest in the Tract A, E and G Easements result in or be deemed to cause an extinguishment of any of the terms, covenants, rights, easements and restrictions contained in the ECR and this Conveyance Agreement, or be deemed to cause a merger of any of the terms, covenants, rights, easements and restrictions contained in the ECR and this Conveyance Agreement into fee title to Tract D or the easement interest in the Tract A, E and G Easements. Traer Creek reserves the sole and exclusive right to grant to the District by separate instrument all or any portion of Traer Creek's interest in the easements created and reserved by the ECR and this Conveyance Agreement which encumber the Tracts. 8. Third Parties' Use of Utilities. The District may allow other parties located within the boundaries of the District ('District Residents") to use the Tract D Improvements and the Easement Improvements, subject, however, to the Rules and Regulations. The District may also allow other parties not located within the boundaries of the District ("Non-District Residents") to use the Tract D Improvements and the Easement Improvements subject to the 11 16682Nersion 9 Clean June 10, 2004 Rules and Regulations, and so long as such use does not result in any diminution or impairment of the ability of the District to serve the District's residents for reasonably anticipated or potential development and uses of property located within the District's boundaries, and so long as such use does not result in any diminution or impairment of District collateral pledged for repayment of any District debt obligation. District Residents and Non-District Residents shall be subject to the Rules and Regulations related to the payment of costs related to connecting to the Tract D Improvements and the Easement Improvements, and are responsible for repairing any damage caused to such improvements as a result of such connections. 9. Parties in Interest. This Conveyance Agreement shall inure only to the benefit of Traer Creek, the District and the fee owner or owners of the Tracts, and their permitted successors and assigns. The rights of persons authorized to use the Tracts and the easements created and reserved by the ECR and this Conveyance Agreement are limited as now and hereafter set forth in the Rules and Regulations, and are subject to further modification if this Conveyance Agreement is amended pursuant to Section 13 hereof. Nothing contained in this Conveyance Agreement shall confer upon any person or entity other than Traer Creek, the District and the fee owner or owners of the Tracts any right to enforce this Agreement. Traer Creek, the District and the fee owner or owners of the Tracts, jointly, shall have the sole right, power and authority to amend, supplement or modify this Conveyance Agreement, but any attempted amendment, supplement or modification of this Conveyance Agreement by any fee owner or fee owners of the Tracts shall be subject to the prior written consent of Traer Creek, which consent may be withheld by Traer Creek in its sole and absolute discretion. 10. Subject to Annual Budget and Appropriation. The parties herein do not intend hereby to create a multiple-fiscal year direct or indirect debt or other financial obligation in any 12 16682Nersion 9 Clean June 10, 2004 form whatsoever of any fee owner of any portion of the Tracts who is considered to be a public or quasi-public entity pursuant to the Tabor Amendment of the Colorado Constitution. The performance of the obligations of any fee owner of any portion of the Tracts who is considered to be a public or quasi-public entity requiring budget and appropriation of funds are subject to annual determinations by the governing body of such fee owner in its sole discretion. 11. Severability. In the event that any provision of this Conveyance Agreement is held to be illegal, invalid or unenforceable under present or future laws, then (a) such provision shall be fully severable and this Conveyance Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof, (b) the remaining provisions of this Conveyance Agreement shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provision or by its severance from this Conveyance Agreement, and (c) there shall be added automatically as part of this Conveyance Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable. 12. Specific Enforcement. Traer Creek and the District agree that in certain situations monetary damages for breach of the terms and conditions contained in this Agreement would be extremely difficult to determine, and possibly inadequate in any event. Therefore, all terms and conditions hereof shall be specifically enforceable in addition to any other remedy available to a non-defaulting party at law or in equity, subject to the limitations set forth in Section 2. 13. Entire Agreement; Amendment. This Conveyance Agreement contains the entire agreement of the parties relating to the matters herein set forth, and may not be amended, modified or supplemented nor any provisions hereof waived, verbally or by any course of dealing, however long continued, but only by an instrument in writing executed by Traer Creek 13 16682Nersion 9 Clean June 10, 2004 and the fee owner or owners of Tract D and/or Tracts A, E or G, as applicable. 14. Attorneys' Fees and Costs. In the event of any action or legal proceeding between Traer Creek and any fee owner or fee owners of the Tracts arising under this Conveyance Agreement, or concerning the meaning or interpretation of any provisions contained herein, the prevailing party shall be awarded its costs and expenses incurred in such action or proceeding through all appeals, including, without limitation, attorneys' fees, in addition to any other relief or award granted in such action or proceeding. 15. Notice. Any notice hereunder shall be in writing and shall be served by overnight delivery or certified mail, return receipt requested, postage prepaid, addressed to the respective addresses of the parties as follows: If intended to Traer Creek: Physical Address: Traer Creek-RP LLC 0322 Beaver Creek Boulevard Avon, Colorado 81620 _Mailing Address: Traer Creek-RP LLC P.O. Box 640 Vail, Colorado 81658 with a copy to: Michael J. Repucci, Esq. Johnson & Repucci LLP 2521 Broadway, Suite A Boulder, Colorado 80301 If intended to the District: Traer Creek Metropolitan District 141 Union Blvd., Suite 150 Lakewood, CO 80228 16682Nersion 9 Clean 14 June 10, 2004 with a copy to: Darlene Sisneros McGeady Sisneros, P.C. 1675 Broadway, Suite 2100 Denver, CO 80202 16. Conflict Between ECR and Conveyance Agreement In the event of an express conflict or inconsistency between the provisions of the ECR and this Conveyance Agreement, the terms of this conveyance Agreement shall control. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 15 16682Nersion 9 Clean June 10, 2004 [SIGNATURE PAGE TO CONVEYANCE OF ROADWAY TRACT] IN WITNESS WHEREOF, Traer Creek has executed and delivered this Conveyance Agreement as of this AIL day of .Tung , 2004, but this Agreement shall be effective for all purposes as of the day and year first set forth above. TRAER CREEK-RP LLC, a Colorado limited liability company By: TRAER CREEK LLC, a Colorado limited liability company, its Manager lm, Manager STATE OF Otm"Ksll) us Lin ) ) SS COUNTY OF The foregoing instrument was acknowledged before me this q4-1-1 day of JyN'E 2004, by Magnus Lindholm, as Manager of TRAER CREEK LLC, a Colorado limited liability company and Manager of TRAER CREEK-RP LLC, a Colorado limited liability company, on behalf of the companies. In witness whereof, I have hereunto set year last above written. My coirnmission expires: affixed my notary seal t day and N \Z - ERIC APPLEGATE ,OF .cg~ 16 16682Nersion 9 Clean June 10, 2004 The undersigned hereby accepts the foregoing conveyances and dedications and agrees to be bound by all terms and conditions contained in this Conveyance Agreement. ATTEST: 6ErSecretary TRAER CREEK METROPOLITAN DISTRICT, a asi, murxcip corporation and political sub ision of/the Mate of Colorado By: STATE OF COLORADO ) ) ss COUNTY OF C c~ ) The foregoing instrument was acknowledged before me this q day of ru-, 2004, by: Dave Kautz, as President, and Eric E. Applegate, as Secretary, of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, on behalf of the corporation. Witness my hand and official seal. Notary Public My commission expires: a-I-S-6 fA/q}• A G : Q0 V 81.E P OF co MyCMvrjWw Expims tyW006 17 16682Nersion 9 Clean June 10, 2004