05-27-2008 CONFLUENCE METRO DISTRICT VEGETATION MANAGEMENT AGREEMENTVEGETATION MANAGEMENT AGREEMENT
THIS VEGETATION MANAGEMENT AGREEMENT, including Exhibit A attached
hereto and incorporated herein by this reference (this "Agreement"), is made and entered into as
of the - day of 2008, by and between CONFLUENCE
METROPOLITAN DISTRICT, a as'-municipal corporation and political subdivision of the
State of Colorado (the "District"), and the TOWN OF AVON, a Colorado municipal
corporation (the "Town")
RECITALS
WHEREAS, the Town is a Colorado municipal corporation and the District is a quasi-
municipal corporation of the State of Colorado; and
WHEREAS, certain real property within the Riverfront Subdivision has been or will be
dedicated to the Town for the purposes of a public park ("Tract A"); and
WHEREAS, Tract A's landscaping is in close proximity to the District's boundaries; and
WHEREAS, Tract A's landscaping is in close proximity to the Westin Riverfront Resort
and Spa development; and
WHEREAS, it is desirable to maintain the landscaping in the portions of Tract A as
depicted on Exhibit A hereto in the manner described on Exhibit A hereto in order that the best
appearance of Tract A and views to the Eagle River in unclouded fashion may be maintained;
and
WHEREAS, District desires the ability to augment the Town's maintenance of the
landscaping in the portions of Tract A as depicted -on Exhibit A hereto in the manner described
on Exhibit A hereto; and
WHEREAS, the Town desires to allow the District to augment the Town's maintenance of
certain landscaped areas located within Tract A as depicted on Exhibit A hereto in the manner
described on Exhibit A hereto; and
WHEREAS, pursuant to Section 32-1-1001(1)(d)(I), C.R.S., the District is permitted to
enter into contracts and agreements affecting the affairs of the District;
NOW THEREFORE, in consideration of the mutual agreements herein contained and for
other good and valuable consideration, the receipt and sufficiency of which is freely
acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Authority. Subject to the terms and conditions of this Agreement, the District
and/or its independent contractors shall be authorized to enter upon Tract A for the purpose of
pruning, trimming and thinning shrubbery and trees as more particularly described on Exhibit A,
attached hereto and incorporated herein by this reference (collectively the "Maintenance
Activities"). Notwithstanding the foregoing, this Agreement shall not be interpreted to require
the District to provide said services, and the provision of the same shall be at the sole discretion
of the District.
2. Access. The District shall have the right to access Tract A for the purposes
described herein subject to the following conditions:
a. The District shall provide the Town with reasonable notice prior to the
commencement of the Maintenance Activities.
b. All waste materials (i.e. branches, logs, etc. from the pruning operations)
shall be removed from the work site within 48 hours. The District and/or its independent
contractors shall maintain the work site in a tidy condition free from the accumulation of waste
and debris.
3. Cost. The District acknowledges and agrees that all work is to be undertaken and
completed at the sole expense of the District. All agreements for payment shall be between the
District and its independent contractors and the District and/or its independent contractors shall
receive no compensation, remuneration, or reimbursement from the Town.
4. Reservation for Town Use. The Town reserves the right to make full use of Tract
A as may be necessary or convenient, and the Town retains all rights to operate, maintain, install,
repair, remove or relocate any of its landscaping and facilities located in or around Tract A at any
time and in such a manner as it deems necessary or convenient.
5. Insurance Coverage Requirements. The District shall include a requirement in all
contracts for work related to the Maintenance Activities that the Town and the District are
included as additional insured's on any applicable independent contractor's insurance policies.
6. Indemnity. The District agrees, to the full extent permitted by law, to
indemnify and hold harmless the Town, its officials, agents and employees, from and against all
liability, claims, demands, and expenses, including court costs and attorney fees, on account of
any injury, loss, or damage, which arises out of or is in any manner connected with the
performance of the Maintenance Activities.
220547-1
7. Modification. This Agreement may only be modified, amended or changed, in
whole or in part, by way of a written agreement, executed by both parties with the same
formalities as this Agreement.
8. Integration. This Agreement represents the entire, integrated agreement between the
District and the Town with respect to the matters set forth herein and hereby supersedes any and all
prior negotiations, representations, agreements or arrangements of any kind with respect to those
matters, whether written or oral.
9. Severability. If any clause or provision of this Agreement is adjudged invalid
and/or unenforceable by a court of competent jurisdiction or by operation of any law, such clause or
provision shall not affect the validity of this Agreement as a whole, but shall be severed herefrom,
leaving the remaining Agreement intact and enforceable.
10. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Colorado.
11. Governmental Immunity. Nothing in this Agreement shall be construed to constitute
a waiver, in whole or in part, of any of the District's rights and protections under the Colorado
Governmental Immunity Act, Section 24-10-101, et seq., C.R.S.
12. Headings for Convenience Only. The headings, captions and titles contained herein
are intended for convenience and reference only and are not intended to construe the provisions
hereof.
13. Persons Interested Herein. Nothing expressed or implied in this Agreement is
intended confer upon, or give to, any third person or entity that is not a party hereto any right,
remedy, or claim hereunder. All of the covenants, terms, conditions, and provisions of this
Agreement exist for the sole and exclusive benefit of the District and the Independent Contractor.
14. Notices. Except as otherwise provided herein, all notices or payments given under
this Agreement must be made in writing and shall be hand delivered, sent by Certified U.S. Mail
with return receipt requested, sent via First Class U.S. Mail, or sent via facsimile to the following
addresses:
Notices to the District: Confluence Metropolitan District
C/o Robertson & Marchetti, P.C.
28 Second Street, Suite 213
Edwards, CO 81632
With a copy to: Confluence Metropolitan District
C/o White, Bear & Ankele Professional Corporation
Attention: William P. Ankele, Jr.
1805 Shea Center Drive, Suite 100
220547-1
Highlands Ranch, CO 80129
Notices to the Town Town of Avon
Attention: Town Manager
P.O. Box 975
Avon, CO 81620
With a copy to: John W. Dunn
P.O. Box 7717
Avon, CO 81620
All notices or documents delivered or required to be delivered under the provisions of this
Agreement shall be deemed received one (1) day after hand delivery, or three (3) days after deposit
with the United States Postal Service, prepaid first class mail. Either the District or the Town
Contractor may change the address to which future notices shall be sent by written notice, delivered
as set forth above.
15. Subject to Annual Budget and Appropriation. Under no circumstances shall this
Agreement constitute, or be considered as, a multiple-fiscal year obligation of the District. The
District's obligations under this Agreement exist subject to annual budgeting and appropriations, and
shall remain subject to the same for the entire term of this Agreement.
16. Non-Waiver. No waiver of any of the provisions of this Agreement shall be deemed
to constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided herein. No waiver of any default hereunder
shall be deemed to constitute a waiver of any subsequent default hereunder.
17. Binding Agreement. This Agreement shall inure to, and be binding upon, the
District and/or the Town, their respective successors, assigns, and legal substitutes.
18. Negotiated Provisions. This Agreement shall not be construed more strictly
against one Party than against the other merely by virtue of the fact that it may have been
prepared by counsel for one of the Parties, it being acknowledged that each Party has contributed
substantially and materially to the preparation of this Agreement.
19. Entire Agreement. This Agreement contains the complete and entire agreement
between the Parties respecting negotiations, agreements, representations and understandings, if
any, between the Parties respecting such matters.
20. Counterpart Execution. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of which together shall constitute one and the
same instrument.
220547-1
IN WITNESS WHEREOF, the District and the Town as of the day and year first above
written.
ATTEST:
Its:
Town:
TOWN AV N
By:
Ronald C. Wolfe, Mayor
District:
CONFLUENCE METROPOLITAN DISTRICT
By:
James P Adams, President
220547-1
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SPECIAL WARRANTY DEED
THIS DEED is dated . 2008 and is made
between EAST WEST RESORT DEVELOPMENT XIV, L.P.. L.L.L.P., a
Delaware limited partnership registered as a limited liability limited
partnership, the "Grantor", of the County of Eagle and State of Colorado, and
TOWN OF AVON. a municipal corporation of the State of Colorado, the
"Grantee," whose legal address is P.O. Box 975, Avon, CO. 81632 of the
County of Eagle and State of Colorado.
WITNESS, that the Grantor, for and in consideration of the sum of Ten Dollars and other good and valuable
consideration, (S 10.00), the receipt and sufficiency of which is hereby acknowledged, hereby grants, bargains, sells,
conveys and confirms unto the Grantee and the Grantee's heirs and assigns forever, all the real property, together with
any improvements thereon, located in the County of Eagle and State of Colorado, described as follows:
Tract A, Riverfront Subdivision, secordlog to the Final Plat recorded on June I5, 2006 at Reception Number
200615950, County of Eagle, State of Colorado ("Tract A")
TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise
appertaining, the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and
demand whatsoever of the Grantor, either in law or equity, of, in and to the above bargained premises, with the
hereditaments and appurtenances;
TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the
Grantee and the Grantee's heirs and assigns forever. The Grantor, for the Grantor and the Grantor's heirs and assigns,
does covenant and agree that the Grantor shall and will WARRANT AND FOREVER DEFEND the above described
premises, but not any adjoining vacated street or alley, if any, in the quiet and peaceable possession of the Grantee and
the heirs and assigns of the Grantee, against all and every person or persons claiming the whole or any part thereof, by,
through or under the Grantor except and subject to: ❑ none; or ® the following matters:
TRACT A IS HEREBY DEDICATED TO THE PUBLIC FOREVER AND SHALL NOT HEREAFTER BE CONVEYED
IN WHOLE OR IN PART TO ANY PARTY BUT SHALL REMAIN THE PROPERTY OF GRANTEE. GRANTEE
SHALL HOLD TRACT A ONLY AND SOLELY AS OPEN SPACE, LIMITING IT TO PUBLIC OWNERSHIP
FOREVER IN ITS SCENIC AND OPEN SPACE CONDITION AND USED SOLELY AS A RECREATION AREA FOR
THE ENJOYMENT OF THE PUBLIC, INCLUDING SPECTATOR EVENTS, AND PROHIBITING USES AND OTHER
ACTIVITIES OR DEVELOPMENT INCONSISTENT WITH THIS PURPOSE AND THE RESIDENTIAL NATURE OF
THE PROPERTY ADJACENT TO TRACT A. BY ACCEPTANCE OF THIS DEED, GRANTEE AGREES TO
MONITOR AND POLICE THE ACTIVITIES WITHIN TRACT A AND THEIR COMPLIANCE WITH THESE DEED
RESTRICTIONS.
A PERPETUAL NON-EXCLUSIVE EASEMENT IS HEREBY GRANTED AND CONVEYED ON, OVER, ACROSS
AND THROUGH TRACT A TO THE BENEFIT OF THE OWNERS OF PROPERTY WITHIN RIVERFRONT
SUBDIVISION (DEFINED AS ALL PROPERTIES SUBJECT TO, OR SUBSEQUENTLY CREATED FROM
PROPERTY SUBJECT TO, THE FINAL PLAT, RIVERFRONT SUBDIVISION, RECORDED AT RECEPTION NO.
200615950, EAGLE COUNTY, COLORDO), AND THEIR GUESTS AND INVITEES, FOR THE PURPOSES OF USE
AND ENJOYMENT OF TRACT A, SUBJECT TO THE FOREGOING DEED RESTRICTIONS AND THE
REASONABLE REGULATIONS OF GRANTEE.
IN WITNESS WHEREOF, the Grantor has executed this deed on the date set forth above.
EAST WEST RESORT DEVELOPMENT XIV, L.P., L.L.L.P.,
a Delaware limited partnership registered as a limited liability
limited partnership
By: HF Holding Corp., a Colorado corporation, general
partner
By: _
Name: _
Title:
No. 16. Rev. 16-M SPECIAL WARRANTY DEED (Page t or2)
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
e foregging instrument was ac . o vledge~e fore ~e,{his day of 11
2008, by w co UA-Lb n as L o l✓R" tcf 1-?or of HF Holding Corp., a Colorado
corporation, general partner of East West Resort Development XIV, L.P., L.L.L.P., a Delaware limited partnership
registered as a limited liability limited partnership.
official seal.
a - *7-Oq
Notary Public
AGREED AND ACCEPTED THIS 4 DAY OP~Vj 2008:
TOWN OF AVON, a muni ' ration of the State f Colorado
By: l~~sFrf/ F
Ronald C. Wolfe, Mayor 2
A _
;,SEAL
arty Mc enny, Town C
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE-)
Subscribed before me this day of 2008, by Ronald C. Wolfe as Mayor of Town of
Avon, Colorado and Patty Mc envy as Town Clerk of on.
WITNESS my hand and official seal.
Mycommissionexpres: to Irl'X008-
[SEAL]
e~
Nota Pu is
Name and Address of Person Creating Newly Created Legal Description (§38-35.106.5, C.R.S.)
No. 16. Rev. 10-05. SPECIAL WARRANTY DEED (Page 2 of 2)
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Memo AVON
C O L O R A D O
To: Honorable Mayor and Town Council
Thru: Lary Brooks, Town Manager
From: Eric Heidemann, Assistant Town Manager Community Development
Date: May 27, 2008 Meeting
Re: Vegetation Management Agreement for Tract "A", Riverfront
Subdivision
Summary:
As the Council is aware, Tract "A" of the Rverfront Subdivision (approximately 5.6 acres) ,
which consists of the portion of the Eagle River abutting the Riverfront property, associated
wetlands, and bike path, were conveyed to the Town on May 6"', 2008 as part of the public
benefits the developer committed to during the entitlement process for the Riverfront PUD.
The attached agreement allows for the developer of the Riverfront to augment the Town's
maintenance of the area, at their expense, in order to provide for a highly desirable and well
maintained riverfront park. The proposed Vegetation Management Agreement has been
reviewed by both staff and legal Council.
Attached is a copy of the Special Warranty Deed for Tract A, the Riverfront Subdivision Plat,
and the draft agreement.
Town Manager Comments:
Attachments:
Vegetation Management Agreement
Special Warranty Deed for Tract A
Riverfront Subdivision Plat