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TC Council Packet 08-08-2006TOWN OF "ON, COLORADO REGULAR COUNCIL MEETING FOR TUESDAY, AUGUST 8, 2006 1[o Be Held at the WiVm8ridge Fire Station Located At 2120 Saddle Ridge Loop REGULAR COUNCIL MEETING AGENDA MEETING BEGINS AJ5:30P0Y 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. DISCLOSURE OF POTENTIAL CONFLICT OFINTEREST 4' CITIZEN AND COMMUNITY INPUT 5. ORDINANCES a. Public Hearing on Ordinance No. 06-14. Series of 2006. Second Reading. Ordinance Amending Tb|8 S Of Avon K8UDicip8| Code F<e|GdiOg TO POSS88Si0O Of Liquors By Underage Person (Brian Kozak. Police Chief) Proposed revisions to legislation which addresses enforcement issues b. Ordinance No. 00-15. Series Of 2006, First Reading. Ordinance Amending Chaot8[8.32.Tbke 8. Avon K8UOiCipa| C0de, Relating To The PrOt8Cb0D Of Wildlife And Providing Penalties For The Violation Hereof (John Dunn. Town Attorney) Revision to ordinance to eliminate a warning citation in connection with the first violation G' RESOLUTIONS G. Resolution NO. 06-34, Series of 2006, Resolution to Amend the 2008 Town of Avon Capital Projects Fund Budget (Norm Wood, Town Engineer) Revisions to budget for the Eagle River Recreation Enhancement Project and related RICD Water Rights acquisition b. Resolution N0. 06-35. Series of 2006, Resolution approving the Issuance by Eag|ebend Affordable Housing Corporation of Multifamily Housing Project Revenue Refunding Bonds, Series 2008. in an Aggregate Principal AmOU[d not to exceed $18'055.000; Authorizing an Amended and Restated Project Agreement; 8OdAUthOriziDQ Incidental Action (Gerry Flynn, Polar Star Properties) 7. NEW BUSINESS 8. OTHER BUSINESS 9' UNFINISHED BUSINESS 1@' TOWN MANAGER REPORT 11' TOWN ATTORNEY REPORT 12. MAYOR REPORT 13. FUTURE AGENDA ITEMS: BUDGET RETREAT 1O/4/OG&1O/5/OGx]Bs HELD |w AVON TOWN COUNCIL CHAMBERS 14. CONSENT AGENDA 8 Minutes from July �11.2006Meeting b Eagle River Recreation Enhancement Project - Avv8[d CoD9tnJ{ti0O Contract to Ted GeipO| i & of the bid submitted for this <�ODStructiVD' Inc. (Norm Wood, Town Engineer) review summary eone u. project of Easement and Easement Agreements to Eagle River Recreation Enhancements Project (Norm Wood, Town Engineer) Easements to allow for construction & use of the Eagle River Enhancements Project atBobthe8ridge Avon Council Mneung.n5.on.88 Page 2of3 TOWN OF AVON, COLORADO REGULAR COUNCIL MEETING FOR TUESDAY, AUGUST 8, 2006 To Be Held at the Wildridge Fire Station Located At 2120 Saddle Ridge Loop REGULAR COUNCIL MEETING AGENDA MEETING BEGINS AT 5:30 PM Consent Agenda - continued d. Site Resource Management, Inc. Change Order No. 2 (Norm Wood, Town Engineer) changes to Swift Gulch bike path construction related to field changes, minor corrections, quantity adjustments, and signage e. 2006 Street Improvements Elam Construction, Inc. Change Order No. 2 (Norm Wood, Town Engineer) Changes to improvements that included additional curb and gutter on Avon Road f. Design Workshop — Additional Design Services for Avon Transportation Center (Norm Wood, Town Engineer) 15. ADJOURNMENT Avon Council Meeting. 06.08.08 Page 3 of 3 AL:411 0 J To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Brian Kozak, Chief of Police � ?kB �L`t e Date: June 006? (t 1 010 ���2ac� QJ Re: Ordinance No. 06 -14, Municipal Code 9.12.060 Possession or Consumption of Liquor by an Underage Person Summary: This report outlines the reasons why the current municipal code restricting underage possession of alcohol is unenforceable. The Avon Police Department recommends the approval of Ordinance No. 06 -14, thereby, allowing enforcement of the municipal code. Background: Last year the Avon Police Department responded to a call of an underage alcohol drinking party at a private residence and cited several juveniles for the current municipal code of underage possession of alcohol. The Municipal Court dismissed all the offenses since they took place at a private residence, which the town ordinance does not cover. Since this event, the Avon Police Department has used the state ordinance for underage consumption of alcohol by citing offenders into the Eagle County Court in lieu of using the unenforceable town ordinance. Discussion: Limitations of the current ordinance (Attachment A) The current town ordinance has the following limitations, which prevent appropriate enforcement: • The current town ordinance only restricts the underage possession of alcohol in a public place, which is more lenient than the state law's restriction of anywhere in the State of Colorado. • The current town ordinance does not provide any affirmative defenses as the state law does. • The current town ordinance does not restrict the consumption of alcohol by an underage person. • The current town ordinance does not allow enforcement in a situation where a child has consumed alcohol outside of the town limits and enters the town in an intoxicated state. 0 Benefits of Ordinance No. 06 -14: An amendment to the municipal code as outlined in Ordinance No. 06 -14 would allow appropriate enforcement for the following reasons: • The ordinance is consistent with the state law, CRS 18 -13 -122 (Attachment B) and makes it illegal for an underage person to consume or possess alcohol anywhere within the town limits. • The ordinance defines "possession" as the presence of a detectable level of alcohol in a person',s,bpdy, even ifngested outside of the town limits. • The ordinance allows for the same affirmative defenses -as the state law (Attachment B)`:` • The minor consumes alcohol in the presence of a parent on private property. • The consumption of alcohol is for religious purposes. • The minor calls for medical assistance due to alcohol consumption. Financial implications: The amendment to the municipal code will not cause any fiscal impact to the town. The amendment will allow enforcement, thereby, allowing the Avon Municipal Court to assess fines. Recommendation: The Avon Police Department recommends that the Council approve Ordinance No. 06 -14, thereby, allowing prevention, enforcement and the early intervention of minors consuming or possessing alcohol. Alternatives: If Ordinance No. 06 -14 is not approved the Avon Police Department will continue to use the state statute and disregard the municipal code related to underage consumption of alcohol. Proposed -- Motion: "I move- to approved Ordinance No. 06 -14, an amendment to municipal code 9.12.060, possession or consumption of liquors by underage persons ". Town Manager Comments: • Page 2 0 e ORDINANCE NO. 06- 14 AN ORDINANCE AMENDING TITLE 9 OF THE MUNICIPAL CODE OF THE TOWN OF AVON RELATING TO POSSESSION OF LIQUORS BY UNDERAGE PERSON BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Amendment. Chapter 9.12, Title 9 of the Municipal Code of the Town of Avon is amended as follows: "9.12.060 Possession or consumption of liquors by underage person. (a) It is unlawful for any person under the age of twenty -one (21) to possess or consume ethyl alcohol anywhere within the Town limits. For the purposes of this ordinance, "possession" shall include the presence of a detectable level of ethyl alcohol in a person's body, which alcohol may have been ingested outside Town limits. (b) It shall be an affirmative defense to the offense that the ethyl alcohol was possessed or consumed by person under twenty -one years of age under the following circumstances: (i.) While such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his parent or legal guardian who was present during such possession or consumption; or (ii.) The possession or consumption took place for religious purposes protected by the first amendment to the United States constitution. (c) An underage person and one or two other persons shall be immune from criminal prosecution under this section if they establish the following: (i.) One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption; (ii.) The underage person who called 911 and, if applicable, one or two other persons acting in concert with the underage person who called 911 provided each of their names to the 911 operator; (iii.) The underage person was the first person to make the 911 report; and K (iv) The underage person and if applicable, one or two other persons acting in concert with the underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. Section 2.. Penalties. It is unlawful for any person to violate any of the provisions of this Ordinance. Every person convicted of a violation of any of the provisions of this Ordinance shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year or by both such fine and imprisonment. INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED the day of , 2006 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on the day of , 2006, at P.M. in the Council Chambers, Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Mayor ATTEST: Town Clerk INTRODUCED, FINALLY APPROVED, PASSED ON SECOND READING AND ORDERED POSTED the day of 12005. Mayor ATTEST: Town Clerk w pvm'• 1 # skyll Town Attorney Attachment A — Current Avon Municipal Code 9.12.060 Possession of liquors by underage person. (a) It is unlawful for any person under the age of twenty -one (21) to have in his or her possession or in his or her control in a public place or a privately owned place opened to the use and access of the public, any malt, vinous or spirituous liquors in any container of any kind, whether open or unopened, within the Town limits. (b) It is unlawful for any person under the age of twenty -one (21) years to have in his or her possession or in his or her control in any public place or a privately owned place opened to the use and access of the public, any fermented malt beverage in any container of any kind, whether opened or unopened, within the Town limits. (Ord. 02 -21 (part)) x Attachment B — Colorado Revised Statute 18 -13 -122. Illegal possession or consumption of ethyl alcohol by an underage person. (1) As used in this section, unless the context otherwise requires: (a) "Establishment" means a business, firm, enterprise, service or fraternal organization, club, institution, entity, group, or residence, and any real property, including buildings and improvements, connected therewith, and shall also include any members, employees, and occupants associated therewith. (b) "Ethyl alcohol" means any substance which is or contains ethyl alcohol. (c) 'Possession of ethyl alcohol" means that a person has or holds any amount of ethyl alcohol anywhere on his person, or that a person owns or has custody of ethyl alcohol, or has ethyl alcohol within his immediate presence and control. (d) 'Private property" means any dwelling and its curtilage which is being used by a natural person or natural persons for habitation and which is not open to the public and privately owned real property which is not open to the public. 'Private property" shall not include: (I) Any establishment which has or is required to have a license pursuant to article 46, 47, or 48 of title 12, C.R.S.; or (II) Any establishment which sells ethyl alcohol or upon which ethyl alcohol is sold; or (III) Any establishment which leases, rents, or provides accommodations to members of the public generally. (2) (a) Any person under twenty -one years of age who possesses or consumes ethyl alcohol anywhere in the state-of Colorado commits illegal possession or consumption of ethyl alcohol by an underage person. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense. (b) (I) Upon conviction of a first offense, illegal possession or consumption of ethyl alcohol by an underage person shall be punished by a fine of not more than two hundred fifty dollars. The court, upon sentencing a defendant pursuant to this paragraph (b), may, in addition to any fine, order that the defendant perform up to twenty -four hours of useful public service, subject to the conditions and restrictions of section 18 -1.3 -507, and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense. (II) Upon conviction of a second offense, illegal possession or consumption of ethyl alcohol by an underage person shall be punished by a fine of not more than five hundred dollars, and the court shall order the defendant to submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program, at the defendant's own expense. The court may further order the defendant to perform up to twenty -four hours of useful public service, subject to the conditions and restrictions specified in section 18 -1.3 -507. (III) Upon conviction of a third or subsequent offense, illegal possession or consumption of ethyl alcohol by an underage person shall be a class 2 misdemeanor, and the court, in addition to sentencing the defendant pursuant to the provisions of section 18- 1.3 -501, shall order the defendant to submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program, at the defendant's own expense. (3) It shall be an affirmative defense to the offense described in subsection (2) of this section that the ethyl alcohol was possessed or consumed by a person under twenty -one years of age under the following circumstances: (a) While such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his parent or legal guardian who was present during such possession or consumption; or (b) When the existence of ethyl alcohol in a person's body was due solely to the ingestion of a confectionery which contained ethyl alcohol within the limits prescribed by section 25 -5 -410 (1) (i) (II), C.R.S.; or the ingestion of any substance which was manufactured, designed, or intended primarily for a purpose other than oral human ingestion; or the ingestion of any substance which was manufactured, designed, or intended solely for medicinal or hygienic purposes; or solely from the ingestion of a beverage which contained less than one-half of one percent of ethyl alcohol by weight. (c) The person is a student who: (I) Tastes but does not imbibe an alcohol beverage only while under the direct supervision of an instructor who is at least twenty -one years of age and employed by a post - secondary school; (II) Is enrolled in a university or a post- secondary school accredited or certified by an agency recognized by the United States department of education, a nationally recognized accrediting agency or association, or the "Private Occupational Education Act of 1981", article 59 of title 12, C.R.S.; (III) Is participating in a culinary arts, food service, or restaurant management degree program; and (IV) Tastes but does not imbibe the alcohol beverage for instructional purposes as a part of a required course in which the alcohol beverage, except the portion the student tastes, remains under the control of the instructor. (4) The possession or consumption of ethyl alcohol shall not constitute a violation of this section if such possession or consumption takes place for religious purposes protected by the first amendment to the United States constitution. (4.5) An underage person and one or two other persons shall be immune from criminal prosecution under this section if they establish the following: (a) One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption; (b) The underage person who called 911 and, if applicable, one or two other persons acting in concert with the underage person who called 911 provided each of their names to the 911 operator; (c) The underage person was the first person to make the 911 report; and (d) The underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. (5) Prima facie evidence of a violation of subsection (2) of this section shall consist of. (a) Evidence that the defendant was under the age of twenty -one years and possessed or consumed ethyl alcohol anywhere in this state; or (b) Evidence that the defendant was under the age of twenty -one years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere in this state. (6) During any trial for a violation of subsection (2) of this section, any bottle, can, or any other container with labeling indicating the contents of such bottle, can, or container shall be admissible into evidence, and the information contained on any label on such bottle, can, or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol. A label which identifies the contents of any bottle, can, or other container as "beer ", "ale ".. "malt beverage ", "fermented malt 0 this subsection (12) may consist of a rubber stamp producing a facsimile of the seal stamped upon the document. (13) In any judicial proceeding in any court of this state concerning a charge under subsection (2) of this section, the court shall take judicial notice of methods of testing a person's blood, breath, saliva, or urine for the presence of alcohol and of the design and operation of devices certified by the department of public health and environment for testing a person's blood, breath, saliva, or urine for the presence of alcohol. This subsection (13) shall not prevent the necessity of establishing during a trial that the testing devices were working properly and that such testing devices were properly operated. Nothing in this subsection (13) shall preclude a defendant from offering evidence concerning the accuracy of testing devices. (14) No law enforcement officer shall enter upon any private property to investigate any violation of this section without probable cause. (15) Repealed. I►I ►/ i :: ► 1 u TO: TOWN COUNCIL FROM: TOWN ATTORNEY 1 �•I . DATE: August 8, 2006 It is the recommendation of staff that the ordinance on your agenda, amending the wildlife ordinance, be adopted. The amendment would eliminate the warning procedure in the present ordinance and eliminate a warning citation in connection with the first violation. The police department is making every effort to inform residents of the town with respect to their obligations under the wildlife ordinance, particularly as it relates to securing of trash containers against bears. In light of this informational program, it is believed that the warning procedure may be deleted so that a first offense results in a fine. The municipal judge has suggested that a jail sentence be a possible penalty for violation of the ordinance. The town attorney recommends against that suggestion for the reason that right to jury trial would be triggered. It is the town attorney's recommendation that violation of the ordinance be a civil infraction and not in the nature of a criminal offense. Jwd: ipse TOWN OF AVON, COLORADO ORDINANCE NO. 06-15 SERIES 2006 AN ORDINANCE AMENDING CHAPTER 8.32,TITLE 8, AVON MUNICIPAL CODE, RELATING TO THE PROTECTION OF WILDLIFE AND PROVIDING PENALTIES FOR THE VIOLATION HEROF BE IT ORDAINED by the Town Council of the Town of Avon, Colorado, as follows: Section 1. Repeal. Section 8.32.070, Chapter 8.32, Title 8, Avon Municipal Code, is repealed Section 2. Amendment. The graduated fine schedule contained in Paragraph (a) of Section 8.32.080, Chapter 8.32, Title 8, Avon Municipal Code, is amended to provide as follows: Penal $100 to $250 fine $250 to $1,000 fine Violation First violation. Each successive violation within twelve (12) months of the previous violation. Section 3. Penalties. It is unlawful for any person to violate any of the provisions of this Ordinance. Every person convicted of a violation of any of the provisions of this Ordinance shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year or by both such fine and imprisonment. INTRODUCED, READ AND ORDERED POSTED this 8th day of August, 2006 and a public hearing shall be held on this Ordinance on the 22nd day of August, 2006 at 5:30 p.m. in the Council Chambers of the Avon Municipal Building, Avon, Colorado. Ronald C. Wolfe, Mayor FATNIMI Patty McKenny, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED POSTED the day of , 2006 Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk John W. Dunn, Town Attorney To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: August 3, 2006 Re: Resolution No. 06-34, A Resolution to Amend the 2006 Town of Avon Capital Projects Fund Budget Summary: Resolution No. 06-34, Series of 2006, A Resolution to Amend the 2006 Town of Avon Capital Projects Fund Budget (Exhibit A) amends the budget to reflect an increased Beginning Fund Balance and increased costs for the Eagle River Recreation Enhancement Project and the related RICD Water Rights Acquisition. The Beginning Fund Balance is increased by $1,489,069 to $7,457,796 reflecting final revenues and expenditures at the end of the 2005 Budget Year. Proposed Expenditures for 2006 are increased by $500,455 to $8,673,560. The increased expenditures for 2006 include $362,455 for the Eagle River Recreation Enhancement Project and $138,000 for the RICD Water Rights Acquisition. The net result of the proposed Amendment is an increase of $988,614 in the Ending Fund Balance to $3,328,506. Approval of Resolution No. 06-34, Series of 2006, A Resolution to Amend the 2006 Town of Avon Capital Projects Fund, is recommended. Discussion: Eagle River Recreation Enhancement Project: The current budget, which was based on a very preliminary construction cost estimate, for Eagle River Recreation Enhancement Project is $161,495. Based upon the one bid received for construction, a negotiated contract price for construction as recommended for approval by Council and the administrative and design costs incurred to date, we recommend project budget as follows: Construction (Base, T & M, Direct ToA) $455,000 Easement Acquisition (Surveying, Legal, Title, Etc.) 29,000 Engineering (Design & Construction Monitoring) 12,000 Project Administration 3,000 Contingencies @ 5% 24,950 Total Recommended Project Budget $523,950 1:\Engineering\Administration\CIP Budget\2006\Res 06-34 Amnd No 2-Metno.Doc 1 RICD Water Rights Acquisition: The current 2006 Budget for RICD Water Rights Acquisition is $70,000. This was based on a multi -year project budget as follows: 2005 2006 2007 2008 Total $70,000 $70,000 $80,000 $80,000 $300,000 Based upon expenditures to date, anticipated schedules and estimates provided Gary Greer; we propose amending the budget for this Project as follows: Actual 2006 2007 2008 Total $55,465 $208,000 $33,000 $95,000 $391,465 This proposed budget anticipates continued negotiations with Objectors, CWCB hearing at their November 2006 meeting and a Water Court Date in 2008. This proposed budget schedule reflects the legal and engineering required at the front end to develop the required reports and information required by the CWCB and in response to Objectors questions and concerns that arise in the individual negotiations. After the CWCB hearing, a relatively small amount of activity is anticipated until a short time before the Water Court date which is anticipated to be in 2008. Resolution No. 06 -34, amends the 2006 Capital Projects Fund Budget in accordance with the revised budget schedule as recommended. If this Resolution is approved the Five -Year Plan in the 2007 Capital Projects Fund Budget will include this change as well as the budget schedule as recommended above. Recommendation: We recommend approval of Resolution No. 06 -34, Series of 2006, A Resolution to Amend the 2006 Town of Avon Capital Projects Fund Budget. Proposed Motion: I move to approve Resolution No. 06 -34, Series of 2006, A Resolution to Amend the 2006 Town of Avon Capital Projects Fund Budget. Town Manager Comments: f Attachments: Exhibit A Resolution No. 06 -34 L • \Engineering\Administration \CIP Budget\2006 \Res 06 -34 Amnd No 2- Memo.Doc 2 RESOLUTION NO. 06 -34 C�►Y� 11 A RESOLUTION TO AMEND THE 2006 TOWN OF AVON CAPITAL PROJECTS FUND BUDGET A RESOLUTION SUMMARIZING EXPENDITURES AND REVENUES BY FUND AND AMENDING THE 2006 CAPITAL PROJECTS FUND BUDGET FOR THE TOWN OF AVON, COLORADO, FOR THE CALENDAR YEAR BEGINNING ON THE FIRST DAY OF JANUARY, 2006, AND ENDING ON THE LAST DAY OF DECEMBER, 2006. WHEREAS, the Town Council of the Town of Avon has adopted the 2006 Capital Projects Fund budget; and WHEREAS, the Town Council reviewed the revised estimated revenues and expenditures for 2006; and WHEREAS, the Town Council finds it necessary to amend the 2006 Capital Projects Fund budget to more accurately reflect the revenues and expenditures for 2006; and WHEREAS, whatever increases may have been made in the expenditures, like increases were added to the revenues so that the budget remains in balance as required by law. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That estimated revenues and expenditures for the Capital Projects Fund is amended as follows for 2006: Original or Previously Amended 2006 Budget Capital Projects Fund Beginning Fund Balance $ 5,968,727 Revenues and Other Sources 4,544,270 Expenditures and Other Uses 8,173,105 Ending Fund Balance $ 2,339,892 1 Current Proposed Amended 2006 Budget $ 7,457,796 4,544,270 8,673,560 $ 3,328,506 Section 2. That the Capital Projects Fund budget, as submitted, amended, and hereinabove summarized hereby is approved and adopted as the capital program budget of the Town of Avon for the year stated above. Section 3. That the Capital Projects Fund budget hereby approved and adopted shall be signed by the Town Manager and made part of the public record of the Town. ADOPTED this 8th day of August, 2006. U" Patty McKenny, Town Clerk TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor REVENUES Taxes Intergovernmental Investment Earnings Other Revenue Total Operating Revenues Other Sources: Transfer In from Other Funds TOTAL REVENUES EXPENDITURES Capital Improvements: Facilities Land and Land Improvements Roads and Streets Recreation Stormwater and Drainage Strategic Planning Other Developer Rebates Total Capital Improvements Other Uses Capital Projects Fund #41 Amendment No. 2 2,612,476 3,889,732 3,899,270 3,899,270 - 376,069 260,363 645,000 645,000 2,988,545 4,150,095 4,544,270 4,544,270 - - 1,092,017 Original or Proposed 244 119,091 Prev. Amended Revised Difference Actual Actual Budget Budget Increase 2004 2005 2006 2006 (Decrease) $ 2,338,060 $ 3,254,490 $ 2,500,000 $ 2,500,000 $ - 200,000 236,110 1,214,296 1,214,296 - 46,704 79,058 85,974 85,974 - 27,712 320,074 99,000 99,000 - 2,612,476 3,889,732 3,899,270 3,899,270 - 376,069 260,363 645,000 645,000 2,988,545 4,150,095 4,544,270 4,544,270 - - 1,092,017 1,767,610 1,767,610 - 244 119,091 90,000 90,000 - 287,199 1,050,739 4,634,000 4,634,000 - - 89,321 231,495 731,950 500,455 376,069 - 40,000 40,000 - 91,120 270,950 400,000 400,000 - - 3,920 485,000 485,000 - 158,665 132,099 475,000 475,000 - 913,297 2,758,137 8,123,105 8,623,560 500,455 Operating Transfer -Out - General Fund 50,000 50,000 50,000 50,000 - Operating Transfer -Out - Wildridge S.I.D. 11,292 10,311 - - - Total Other Uses 61,292 60,311 50,000 50,000 - TOTAL EXPENDITURES 974,589 2,818,448 8,173,105 8,673,560 500,455 NET SOURCE (USE) OF FUNDS 2,013,956 1,331,647 (3,628,835) (4,129,290) (500,455) FUND BALANCE, Beginning of Year 4,112,193 6,126,149 5,968,727 7,457,796 1,489,069 FUND BALANCE, End of Year $ 6,126,149 $ 7,457,796 $ 2,339,892 $ 3,328,506 $ 988,614 Page 1 Capital Projects Fund #41 Amendment No. 2 1 Intergovernmental: Federal Grants: 53199 CDOT Enhancement Funds Grant 53199 FTA/CDOT Transportation Center Grant State Grants: 53299 Colorado Historical Society Local Government/Other Agency: 53401 Vail Valley Foundation (Historical Preservation) 53401 Village at (Avon) 53401 Confluence Metro District 53401 Eaglebend Housing Authority 53401 ERWSD Sewer Line Replacement 53000 Total Intergovernmental Investment Earnings: 57101 Interest Earnings 57000 Total Investment Earnings Other Revenues: 58102 Utility Capital Facility Fees 58104 Fireplace Fees Reimbursements: 58211 Sheraton Mountain Vista - 2005 Application 58211 Confluence - East West Partners 58211 Eagle River Enhancement Project - East West Part 58211 Eagle River Enhancement Project - Eagle County 58211 Eagle River Enhancement Project - BCRC 58211 W. Avon Trails - Berry Creek Metro District 58999 Miscellaneous Nonclassified Revenues 58000 Total Other Revenues Other Sources: 59201 Transfer In from Other Funds 59000 Total Other Sources 50000 TOTAL REVENUES - 149,000 149,000 9,000 - 680,296 680,296 - 3,920 - Original or Proposed 1,000 - - Prev. Amended Revised Difference Account Actual Actual Budget Budget Increase Number Description 2004 2005 2006 2006 (Decrease) - Taxes: - - 51401 Real Estate Transfer Tax $ 2,338,060 $ 3,254,490 $ 2,500,000 $ 2,500,000 $ 1,214,296 1,214,296 51000 Total Taxes 2,338,060 3,254,490 2,500,000 2,500,000 Intergovernmental: Federal Grants: 53199 CDOT Enhancement Funds Grant 53199 FTA/CDOT Transportation Center Grant State Grants: 53299 Colorado Historical Society Local Government/Other Agency: 53401 Vail Valley Foundation (Historical Preservation) 53401 Village at (Avon) 53401 Confluence Metro District 53401 Eaglebend Housing Authority 53401 ERWSD Sewer Line Replacement 53000 Total Intergovernmental Investment Earnings: 57101 Interest Earnings 57000 Total Investment Earnings Other Revenues: 58102 Utility Capital Facility Fees 58104 Fireplace Fees Reimbursements: 58211 Sheraton Mountain Vista - 2005 Application 58211 Confluence - East West Partners 58211 Eagle River Enhancement Project - East West Part 58211 Eagle River Enhancement Project - Eagle County 58211 Eagle River Enhancement Project - BCRC 58211 W. Avon Trails - Berry Creek Metro District 58999 Miscellaneous Nonclassified Revenues 58000 Total Other Revenues Other Sources: 59201 Transfer In from Other Funds 59000 Total Other Sources 50000 TOTAL REVENUES 376 319 - 149,000 149,000 9,000 - 680,296 680,296 - 3,920 - - - 1,000 - - 200,000 200,000 200,000 200,000 - - 160,000 160,000 - - 25,000 25,000 25,000 - 6,190 - - 27,712 320,074 99,000 99,000 200,000 236,110 1,214,296 1,214,296 46,704 79,058 85,974 85,974 46,704 79,058 85,974 85,974 376 319 - - - 1,500 9,000 9,000 9,649 - - 188,133 - - 2,500 50,000 50,000 50,000 - - 55,000 - - 9,438 - - 40,000 40,000 27,336 3,535 - - 27,712 320,074 99,000 99,000 376,069 260,363 645,000 645,000 376,069 260,363 645,000 645,000 $ 2,988,545 $ 4,150,095 $ 4,544,270 $ 4,544,270 $ Page 2 Capital Projects Fund #41 Amendment No. 2 Original or Proposed Prev. Amended Revised Difference Account Actual Actual Budget Budget Increase Number Description 2004 2005 2006 2006 {Decrease} Page 3 64,581 $ CAPITAL IMPROVEMENT PROJECTS - $ 43,996 Facilities: - 11006 Council Chambers Audio/Video Upgrade 75,000 11007 Municipal Building Roof - 13004 Nottingham Lake Pump Station Expansion 700,000 14001 Transportation Center 45,000 19001 Municipal Parking Facilities - - Land and Land Improvements: 45,000 21004 Tract J Bridge Removal 244 21005 Wildridge Park Improvements and Playground - 21007 1 -70 Entrace Sign Removal - 121,152 Roads and Streets: 2,800,000 - Streetscape: 150,000 31006 Eaglebend Dr. - 31008 Nottingham Rd. Imp. / 1 -70 to Buck Creek 73,694 31010 Lighting Study and Conversion - Street Improvements: 32007 Town Center West / Mall - 32008 E. Beaver Creek Blvd. Improvements 6,585 Annual Street Improvements: 33004 2004 Paving /Road Improvements 205,735 33005 2005 Paving /Road Improvements - 33006 2006 Paving /Road Improvements - Multi - Modal /Alternative Mobility: 34007 Wildridge Traffic Calming & Pedestrian Circulation 1,127 34009 Swift Gulch Road Bikepath Extension 58 34010 Swift Gulch Rd. Bikepath - 34011 Wildridge Emergency Access 34012 West Avon Trails and Access Enhancement Recreation: 51002 Eagle River Enhancement Project 94006 RICD Water Rights Acquisition - Stormwater and Drainage: 61003 Metcalf Rd. Drainage / 1 -70 to Nottingham Rd. 376,069 61005 W. Beaver Creek Blvd. / 1 -70 to Railroad - Strategic Planning: Development Analysis and Review: 71004 Confluence / Westin Riverfront Resort - 71005 The Gates - 71006 Sheraton Mountain Vista 2005 Application - 71007 Town Center East Commercial District - Page 3 64,581 $ - $ - $ 43,996 - - - 75,000 75,000 983,440 992,610 992,610 - 700,000 700,000 - 45,000 45,000 119,091 - - - 45,000 45,000 52,584 700,000 700,000 24,153 - - - 204,000 204,000 121,152 2,800,000 2,800,000 803,635 315,000 315,000 - 250,000 250,000 28,195 - - 21,020 260,000 260,000 - 25,000 25,000 - 80,000 80,000 33,856 161,495 523,950 362,455 55,465 70,000 208,000 138,000 - 40,000 40,000 187,787 - - 678 - - 9,649 - - - 150,000 150,000 Capital Projects Fund #41 Amendment No. 2 Other: 93005 Historic Preservation 3,920 25,000 25,000 94005 Water Rights Acquisition - - 460,000 460,000 Total Capital Improvement Projects $ 754,632 $ 2,626,038 $ 7,648,105 $ 8,148,560 $ 500,455 Page 4 Original or Proposed Prev. Amended Revised Difference Account Actual Actual Budget Budget Increase Number Description 2004 2005 2006 2006 (Decrease) CAPITAL IMPROVEMENT PROJECTS Planning and Consulting: 79002 Comprehensive Plan 82,773 65,381 25,000 25,000 79004 2004 General Planning and Consulting 8,347 - - - 79005 2005 General Planning and Consulting - 7,455 - - 79006 2006 General Planning and Consulting - - 25,000 25,000 79101 Nottingham Park Master Plan - - 50,000 50,000 79102 Pedestrian Circulation Plan - - 100,000 100,000 79103 Retail Analysis - 50,000 50,000 Other: 93005 Historic Preservation 3,920 25,000 25,000 94005 Water Rights Acquisition - - 460,000 460,000 Total Capital Improvement Projects $ 754,632 $ 2,626,038 $ 7,648,105 $ 8,148,560 $ 500,455 Page 4 �, f Professional Property Management Memorandum To: Mayor Ron Wolfe and the Avon Town Council Through:Mr. Larry Brooks From: Gerry Flynn Date: August 2, 2006 Re: Eaglebend Affordable Housing Corporation Bond Refinancing For approval at August 8th Town Council Meeting As outlined previously at your April 11, 2006 Regular Council Meeting and at a work session on May 23`d Eaglebend Affordable Housing Corporation is pursuing an advance refunding of it's Series 1997 Bonds which are callable in July 2007. The planned refunding is scheduled to close on August 27, 2006, and can be summarized as follows: 1. EBAHC will issue approximately $18.5 million in Series 2006 Taxable Convertible Variable Rate Multifamily Revenue Refunding Bonds to defease existing 1997 bonds. 2. Bonds will convert to variable rate Tax Exempt bonds in April 2007 3. Interest rate will be fixed at approximately 4.0% through the purchase of a 15 yr interest rate swap 4. Bonds will be enhanced by a US Bank Letter of Credit; effective borrowing rate should be 5 -2% 5. Annual debt service savings of over $300,000 is expected 6. Final maturity is still 2021 There is also a summary presentation by DA Davidson attached which explains the key bond assumptions. Town of Avon is being asked to formally approve the financing by adopting the attached Resolution approving the issuance of the 2006 Bonds and re- confirming the terms of the existing Project Agreement, which has been amended to incorporate the series 2006 Bonds. As in the past, Eaglebend issues its own tax exempt bonds without exposing the Town to any debt obligations. The Town acts as a sponsor of the 6320 corporation, which enjoys the tax benefits of acting `on behalf of the Town. The Project Agreement describes the purpose and the mutual agreements being entered into between Eaglebend and the Town. In attendance at the August 81" Town Council meeting to answer any questions will be: • Gerry Flynn, President of EBAHC and principal of Polar Star Properties • Jack Gardner, Hogan & Hartson, bond counsel • Bryon Farnsworth, Sherman & Howard, representing Town of Avon RIVERWALK AT EDWARDS 28 SECOND STREET + SUITE 215 e EDWARDS, CO 81632 ♦ 970 - 926 -8686 P FAX 970 -926 -8690 • • • • cn D C: C:) 0 C:) CD C:) CD I C:) CD C:) CD LO NO On U E 0 Ln V) > n • • • A A, A A STATE OF COLORADO COUNTY OF EAGLE ss. TOWN OF AVON The Town Council of the Town of Avon, Colorado, met in regular session at the Wildridge Fire Station in Avon, Colorado, on Tuesday, the 8t1 day of August, 2006, at the hour of - P.M. The following members of the Council were present: The following members were absent: The following persons were also present: Thereupon, Council Member introduced and moved the adoption of the following Resolution, which was read by title, copies thereof having been made available to the Council and the public prior thereto: I \\\DE - 067496/000001 - 270022 v3 TOWN OF AVON, COLORADO RESOLUTION NO. 06- RESOLUTION APPROVING THE ISSUANCE BY EAGLEBEND AFFORDABLE HOUSING CORPORATION OF MULTIFAMILY HOUSING PROJECT REVENUE REFUNDING BONDS, SERIES 2006, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $19,700,000; AUTHORIZING AN AMENDED AND RESTATED PROJECT AGREEMENT; AND AUTHORIZING INCIDENTAL ACTION. WHEREAS, EagleBend Affordable Housing Corporation (the "Corporation") has been duly organized under the provisions of the Colorado Nonprofit Corporation Act, Articles 20 through 29 of Title 7, Colorado Revised Statutes, as amended, for the purpose of acquiring interests in real property and to construct, install and operate certain improvements in the Town of Avon (the "Town"); and WHEREAS, the Corporation has previously issued its Multifamily Housing Project Revenue Refunding Bonds, Series 1997A, in an aggregate principal amount of $21,260,000, its Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997B, in an aggregate principal amount of $1,300,000, and its Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997C, in an aggregate principal amount of $300,000 (collectively, the "Series 1997 Bonds") to refinance the acquisition and construction of real and personal property, buildings and improvements, which provide dwelling accommodations at rentals within the means of individuals or families of low or moderate income (the "Project"), known as the EagleBend Affordable Housing Project; and WHEREAS, in order to refund and redeem the Series 1997 Bonds, the Corporation intends to enter into a Trust Indenture dated as of August 1, 2006 (the "Indenture") and to issue its Taxable Convertible Variable Rate Multifamily Housing Project Revenue Refunding Bonds, Series 2006A, in an aggregate principle amount not to exceed $17,500,000, its Taxable Variable Rate Multifamily Housing Project Revenue Refunding Bonds, Series 2006B, in an aggregate principal amount not to exceed $2,000,000, and its Subordinate Multifamily Housing Project Revenue Refunding Bonds, Series 2006C, in an aggregate principal amount not to exceed $200,000 (collectively, the "Series 2006 Bonds"); and WHEREAS, in order to assure that responsibility for operation of the Project is vested in the Corporation, the Town and the Corporation propose to execute and deliver a Second Amended and Restated Project Agreement dated as of August 1, 2006 (the "Project Agreement"), under the terms of which the Corporation is responsible to operate the Project, and title to the Project shall vest in the Town upon the end of the term of the Project Agreement; and WHEREAS, proposed forms of the Indenture (including the forms of the Series 2006 Bonds contained therein) and the Project Agreement have been presented before the Town Council (the "Council") at this meeting. 2 \'-\\DE - 067496/000001 - 270022 0 CERTIFIED RECORD OF PROCEEDINGS OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO APPROVING THE ISSUANCE OF fMULTIFAMILY HOUSING PROJECT REVENUE REFUNDING BONDS, • SERIES 2006 \ \ \DE - 067496/000001 - 270022 v2 STATE OF COLORADO ) COUNTY OF EAGLE ) ss. TOWN OF AVON } The Town Council of the Town of Avon, Colorado, met in regular session at the Wildridge Fire Station in Avon, Colorado, on Tuesday, the 8th day of August, 2006, at the hour of P.M. The following members of the Council were present: The following members were absent: The following persons were also present: Thereupon, Council Member introduced and moved the adoption of the following Resolution, which was read by title, copies thereof having been made available to the Council and the public prior thereto: \ \ \DE - 067496/000001 - 270022 v2 NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: 1. Approval of the Project Agreement. The terms of the proposed Project Agreement in substantially the form presented at this meeting are hereby approved. 2. Issuance of the Series 2006 Bonds. The Series 2006 Bonds and the issuance thereof by the Corporation for the purpose of refunding and redeeming the Series 1997 Bonds are, in all respects, hereby approved. The Series 2006 Bonds shall be issued solely as fully registered bonds without coupons in the denominations as provided in the Indenture. The Series 2006 Bonds shall bear interest payable at the rates and times and will mature in the amounts and on the dates set forth in the Indenture, as finally executed. The Series 2006 Bonds shall be issued and secured as set forth in the Indenture, and the forms, terms and provisions of the Series 2006 Bonds and the provisions for their execution, authentication, payment, registration, transfer, exchange, redemption and number shall be as set forth in the Indenture. 3. Town Action. The Mayor of the Town and the Town Clerk are hereby authorized and directed to execute and deliver such documents and to take all action necessary or reasonably required by the terms of the Project Agreement to carry out, give effect to and consummate the transactions contemplated hereby and thereby, including the execution and delivery of the Project Agreement in substantially the form presented at this meeting, with such variations or revisions thereto deemed necessary by the Mayor. Execution of the Project Agreement by the Mayor shall be deemed to be final approval by the Town of the issuance of the Series 2006 Bonds and all the provisions contained in the Project Agreement. 4. No Indebtedness of the Town. No provision of this Resolution or of the Project Agreement, the Indenture, the Series 2006 Bonds or any other instrument executed in connection therewith, shall be construed as creating an obligation on the part of the Town to pay the principal of, premium, if any, or interest on the Series 2006 Bonds, nor as creating an indebtedness or financial obligation on the part of the Town within the provisions or limitations of any statutory or constitutional provision of the laws of the State of Colorado or any provision of the home rule charter of the Town. 5. Title to Project. The Town hereby determines that it will accept title to the Project, including any additions thereto, when all the Series 2006 Bonds are fully paid and discharged. 6. Severability. If any provision of this Resolution should be held invalid, the invalidity of such provision shall not affect any of the other provisions of this Resolution, the intention being that the various provisions hereof are severable. 7. Other Actions. The appropriate officers of the Town are hereby authorized to execute and deliver for and on behalf of the Town, any or all additional certificates, documents and other papers and to perform all other acts they may deem necessary or appropriate in order to implement and carry out the matters authorized in this Resolution and in any resolution of the Corporation. 3 \ \ \DE - 067496/000001 - 270022 v2 v The motion to adopt the foregoing Resolution was duly seconded by Council Member , put to a vote and carried upon the following vote: Those voting YES: Those voting NO: Those absent: Thereupon the Mayor declared the motion had carried and the Resolution duly passed and adopted. After consideration of other business to come before the Council, the meeting was adjourned. a Attest: Town Clerk \ \ \DE • 067496/000001- 270022 v2 Mayor �1 HOGAN & HARTSON DRAFT: 07/27/06 0 EAGLEBEND AFFORDABLE HOUSING PROJECT SECOND AMENDED AND RESTATED PROJECT AGREEMENT THIS SECOND AMENDED AND RESTATED PROJECT AGREEMENT (the "Agreement ") is made as of August 1, 2006, by and between EAGLEBEND AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation (the "Corporation ") and the TOWN OF AVON, COLORADO (the "Town "). This Agreement amends and restates the EagleBend Affordable Housing Project Prior Project Agreement between the Corporation and the Town dated as of October 1, 1990, as amended by an Amendment to EagleBend Affordable Housing Project Prior Project Agreement dated December 1, 1990, and a Second Amendment to EagleBend Affordable Housing Project Prior Project Agreement dated as of December 1, 1994, and an Amended and Restated Project Agreement dated as of November 1, 1997 (together, the "Prior Project Agreement "). RECITALS: A. The Corporation has been organized under the Colorado Nonprofit Corporations Act to acquire property in order to provide affordable housing facilities, for the benefit and on behalf of the Town and its inhabitants. B. The Corporation shall issue its EagleBend Affordable Housing Corporation Variable and Fixed Rate, Senior and Subordinate, Multifamily Housing Project Revenue Refunding Bonds, Series 2006 (the "Series 2006 Bonds ") in an aggregate principal amount not to exceed $18,655,000 for the purpose of refunding and redeeming the Corporation's Multifamily Housing Project Revenue Refunding Bonds, Series 1997A, Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997B, and Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997C (collectively, the "Refunded Bonds "). The Refunded Bonds were issued for the purpose of acquiring and constructing real and personal property to be operated by the Corporation and known as the "EagleBend Affordable Housing Project" (the "Project "), located on the property described in Exhibit A hereto, to provide dwelling accommodations at rentals within the means of individuals or families of low or moderate income, as determined by the Board of Directors of the Corporation from time to time. C. The Series 2006 Bonds shall be issued pursuant to the Trust Indenture dated as of August 1, 2006 (the "Indenture ") between the Corporation and U.S. Bank National Association, as Trustee (the "Trustee "). The Series 2006 Bonds and any Additional Bonds issued under the Indenture are referred to hereinafter as the "Bonds." D. The Prior Project Agreement was recorded in the office of the Eagle County Clerk and Recorder on November 19, 1990 in Book 542 at Page 550, on April 5, 1991 in Book 551 at Page 197, on January 10, 1995 in Book 658 at Page 941, and on November 20, 1997 in Book 744 at Page 167. All capitalized terms used herein, unless otherwise defined, shall have the meanings ascribed thereto in the Indenture. \ \ \DE - 0674961000001 - 268880 v3 Section 10. 15 of the Indenture, amounts advanced by the Town as a result of the exercise of this option to cure monetary defaults hereunder and reasonable, direct expenses of the Town advanced to cure nonmonetary defaults hereunder shall be deemed to be Indebtedness of the Corporation to the Town. In addition to the foregoing and consistent with Article XIV of the Indenture, if pursuant to Article X of the Indenture, the Trustee declares the principal of any Bonds then outstanding to be due and payable and any foreclosure proceeding or other action is commenced under the Indenture or the Deeds of Trust, as defined in the Indenture, which could lead to the sale or other disposition of the property pledged thereunder, the Town is hereby granted an exclusive option to purchase all such property (including the Project), for the amount of the outstanding Bonds and other indebtedness of the Corporation relating to the Project and accrued interest to the date of default. The Town shall have not less than 90 days from the date it is notified by the Trustee of such action in which to both exercise the option and purchase the property. Nothing herein shall be construed to create any obligation of the Town to cure any Event of Default. Section 6. Funds in Indenture. As required under Section 14.02 of the Indenture, in the event the Town exercises its options under Section 3 or 5 hereof, the Town shall receive a credit towards its defeasance or purchase costs in the amount of any fund or account balances held under the Indenture with the exception of (1) the Excess Investment Earnings Fund, as defined in the Indenture, (2) an amount representing Operation and Maintenance Expenses, as defined in the Indenture, required by the Corporation's current operating budget through the date of defeasance or purchase, and (3) any amount needed to pay additional interest on the Bonds or expenses in connection with such defeasance under Section 14.01 of the Indenture. Section 7. Title. Unencumbered fee title (subject to certain Permitted Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession and use thereof will vest in the Town without demand or further action on its part when all obligations issued under the Indenture (including the Bonds) are discharged. For purposes of this Section 7, such obligations will be discharged when (a) cash is available at the place of payment on the date that the obligations are due (whether at maturity or upon call for redemption) and (b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the Indenture. All leases, management contracts and similar encumbrances on the Project shall terminate upon discharge of said obligations. Encumbrances that do not significantly interfere with the enjoyment of such property, such as the Permitted Encumbrances, are not considered encumbrances for purposes of this Section. Section 8. Indenture Rights; Approval of Town. The Corporation hereby covenants and agrees that the provisions of the Indenture granting any rights to the Town shall not be amended or modified without the consent of the Town. By execution hereof, the Town hereby consents to the provisions of the Indenture relating to the rights of the Town and confirms its approval of the issuance of the Series 2006 Bonds. Section 9. Term. This Agreement shall terminate upon the vesting of title to the Project in the Town as herein provided. 3 \ \ \DE • 0674961000001 - 268880 v2 STATE OF COLORADO ) ss. CITY AND COUNTY OF DENVER The foregoing instrument was acknowledged before me this day of August, 2006 by Gerald E. Flynn, as President, on behalf of EAGLEBEND AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation. WITNESS my hand and official seal. My Commission expires: [SEAL] Notary Public STATE OF COLORADO ss. COUNTY OF EAGLE 0 The foregoing instrument was acknowledged before me this day of August, 2006 by , as Mayor, on behalf of the TOWN OF AVON, COLORADO. WITNESS my hand and official seal. My Commission expires: [SEAL] 5 \\\DE - 0674961000001 - 268880 v2 Notary Public � J� L:4 I I me To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: August 2, 2006 Re: Eagle River Recreation Enhancement Project - Award Construction Contract to Ted Seipel Construction, Inc. Summary: One Bid was received at the July 28, 2006 Bid Opening for construction of the Eagle River Recreation Enhancement Project, following Advertisements for Bids published in the local papers on July 6, 13 and 20, 2006. The attached Bid (Exhibit A) was submitted by Ted Seipel Construction, Inc. in the amount of $ 587,981.00, compared to the Engineer's Estimate of $233,332.00. The Bid was non - conforming with the Contract Bid Documents and we recommend rejection of the Bid as submitted. We have worked with Jason Carey, Project Engineer and Ted Seipel, Bidder to resolve construction and bidding issues. We believe a negotiated contract amount and revised contract structure will provide a means to complete the project in the required time frames and at a reasonable price. The attached Eagle River Recreation Enhancement Project Bid Opening Summary (Exhibit B) summarizes the Engineer's Estimate, Ted Seipel Construction Bid and proposed Negotiated Cost. The proposed Negotiated Cost Agreement includes a Base Contract Amount of $353,170.75 and an additional Estimate of $58,090.00 for Time and Materials Work for purchase and delivery of boulders for a total estimated Contract Amount of $411,260.75. In addition the Town would provide materials and services at an estimated cost of $43,283.00 for a total estimated Construction Cost of $454,543.75. We recommend the Town Council reject the submitted Bid as non - conforming and authorize award of an Amended Construction Contract to Ted Seipel Construction, Inc. based on a Base Contract Amount of $353,170.75 plus purchase and delivery of boulders on a Time and Materials basis (actual cost plus 15 %) estimated at $58,090.00 and the direct purchase of specified materials and services by the Town of Avon at an estimated Cost of $43,283.00. Discussion: This Project has worked it's way through various delays and difficulties to a last minute Bid Opening that could accommodate construction this year within the time frames stipulated by impacted property owners and the Corps of Engineer's 404 Permit. All Construction in the River must be complete by October 1, 2006. Some construction issues L \Engineering \CIP \V4ntewater Park \4.0 Contract Docs \4.2 Bid Documents\Award MemO.Doc I related to this included the delivery time for the pre -cast concrete structures for Bob Senior and Bob Junior as well as the specified coffer dam structures required for the installation of the structures. Manufactures for these items requested a 30 day time frame to guarantee delivery to the job site. In order to meet construction schedule for completion by October 1, these materials must be on site by September 1. We have issued a Purchase Order for the Pre- cast structures and have located and committed to the acquisition of an available alternate structure for the required coffer dams to assure the delivery of these materials in the required time frame. The cost of these items plus construction staking and surveying represent direct costs of the Town that were in the original Construction Bid Documents. The purchase and delivery of boulders for construction of the features and retaining wall for spectator area is recommended as a Time and Material item to address the various options for quality and location of materials required to construct the project. We believe the estimated cost of $58,090.00 is a worst case scenario and that the actual cost may be significantly less. Financial Implications: The current budget for this project is $161,495 which was based on a very preliminary Construction Cost Estimate. We recommend adoption of a revised project budget as follows: Construction (Base, T & M, Direct ToA) $ 455,000 Easement Acquisition (Surveying, Legal, Title, Etc.) 29,000 Engineering (Design & Construction Monitoring) 12,000 Project Administration 3,000 Contingencies @ 5% 24,950 Total Recommended Project Budget $ 523,950 A Resolution to amend the 2006 Capital Improvements Fund Budget to correspond with this recommendation has been prepared for consideration by the Town Council under a separate Agenda Item. Contributions for this project in the amount of $50,000 each has been received or committed by Eagle County, Beaver Creek Resort Company and East West Partners. Recommendation: Reject the Bid in the amount of $587,981.00 for construction of the Eagle River Recreation Enhancement Project as submitted by Ted Seipel Construction, Inc. and approve and authorize award of an Amended Construction Contract to Ted Seipel Construction, Inc. based on a Base Contract Amount of $353,170.75 plus purchase and delivery of boulders on a Time and Materials basis (actual cost plus 15 %) estimated at $58,090.00 and the direct purchase of specified materials and services by the Town of Avon at an estimated Cost of $43,283.00 with Amended Construction Contract subject to review and approval by the Town Attorney. Alternatives: An Alternative to this recommendation is to Reject the Bid Submitted by Ted Seipel Construction, Inc. and re- advertise for construction bids next I:\Engineering \CIP \Whitewater Park \4.0 Contract Does \4.2 Bid Documents\Award Memo.Doc 2 1 summer for construction during next year's construction season between July 15 and October 1. There is a possibility that more contractors will be interested in the project at that time and may possibly result in a slightly lower cost. However, we are concerned that other factors including the possible loss of the extremely critical construction access across the Red House site, the status of the Confluence development and potentially escalating construction costs may result in even higher costs. Proposed Motion: I move to reject the Bid in the amount of $587,981.00 for construction of the Eagle River Recreation Enhancement Project as submitted by Ted Seipel Construction, Inc. and approve and authorize award of an Amended Construction Contract to Ted Seipel Construction, Inc. based on a Base Contract Amount of $353,170.75 plus purchase and delivery of boulders on a Time and Materials basis (actual cost plus 15 %) estimated at $58,090.00 and the direct purchase of specified materials and services by the Town of Avon at an estimated Cost of $43,283.00 with Amended Construction Contract subject to review and approval by the Town Attorney. Town Manager Comments: f � Attachments: Exhibit A Ted Seipel Construction, Inc. Bid Exhibit B Eagle River Recreation Enhancement Project Bid Opening Summary I:AEngineering \CIP \Whitewater Park \4.0 Contract Docs \4.2 Bid Documents\Award Merno.Doc BID FORM r)6- PROPOSAL OF A partnership consisting of A corporation organized and existing under the Laws of the State of Colorado. To: Town of Avon P.O. Box 975 Avon, Colorado 81620 -V as per the following. Bid Schedule: BF- 1 A BF-2 Channel Alluvium and Boulder Excavation 72 Excavation Backfill 47 Excavation Haul-off 0 90 PCY Onsite Boulder Placement 25 2=5 4-ft Boulders, delivered & placed 16 45 KACIFF, 5-ft Boulders, delivered &-plaead 9 0 © 6-ft Boulders, delivered &.placed 2 45 CY Nub at sta. 4+00 Rock Placement 25 us, deliNvera i Mrio 4-ft Bolder r ! a 36 Sta 4 + 85 - *©m Bob Structure & Pool @ St a 4 8 1 4+00 Channel Alluvium and Boulder tx—civ—ation C h a 90 PCY Excavation Pool 2=5 Excavated Alluvium Backfill': 45 Excavation Haul-offA 0 © Excavated Boulder Placement, 45 CY Nub at sta. 4+00 Rock Placement 25 us, deliNvera i Mrio 4-ft Bolder r ! a 36 f G BF-3 LO illillillI 12 EA LS L' 0 f G BF-3 LO -A Ted Seipel Construction 303- 328 -5257 P.O. Box 1234 Eagle, CO 81631 Other Items A. Generation/4" pump 560.00 B. Tool rental misc 4,200.00 C. Site rehab & misc 8,000.00 D. Locate Water line 600.00 E. Protect & stabilize trees /shrubs 800.00 F. Set Turbidity curtain & Maintain 2,800.00 G. Silt fencing & labor 1,200.00 H. Oil boom 1,200.00 L Crane misc 3,000.00 J. Misc labor, wet & dry 6,000.00 K. Jersey barriers & handling 2,200.00 L. Office expense 3,200.00 M. 200 ton crane (6 days) 16,800.00 N. 320 cat (4weeks) 12,050.00 O. Bike path area/retaining wall 36,800.00 P. Boulder placement 24,000.00 Q. De- watering /crane & cat misc 11,800.00 Total 135,210.00 NOTE: Not in contract 1. Building Permit 2. Engineer or Architectural services a Ted Scipel Construction, Inc. 6235 Brush Creek Road — P.O. Box 1234 Eagle, Colorado 81631 (970)-328-5257 — 471-0223 fax: 970-328 2738 lrwv � 0 Ted Seipel Construction, Inc. 6235 Brush Creek Road — P.O. 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C4 O O .9 N M m N N V) V) N V) m N od 6% 4a lbH 69 44 QW to 40 E E 0 co to 06 0 LO In 0 0 W (1) E c is U w cn 0. 0 0 0 CD 0 C� " I 0) Ct CIII Lq w LO Ln It 0 to), 4.13, 44 44 44 vil tm w z O O Of M > 0) W IL 000 Fn O N 0 0 0 to w CD CR Ln Cl) 44 0 q N m r a eq Go 00 w aq O 0 40 w IR 0 t: co 4ow to 40 w : cF-o tr) 40 CD R O CN CN M . C4 .9 N M m N V) V) N V) m N Y W 6% 4a lbH 69 44 QW to 40 06 (1) E c is U w cn 0. 0 0 0 x w .2:, a 0 IA O ad O CC O � J� L:4 I I ms To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer ?41 Date: August 3, 2006 Re: Deed of Easement and Easement Agreements to Eagle River Recreation Enhancements Project Summary: Easements are required on three properties not owned by the Town of Avon, to allow access for construction and use of the Eagle River Recreation Enhancements Project at Bob the Bridge. One of the properties is located on Tract A of the Riverfront Subdivision. This property will eventually be dedicated to the Town of Avon but it is currently owned by East West Resort Development XIV, L.P., L.L.L.P. and the attached Deed of Easement (Exhibit A) provides required rights for construction and use of the Project. Another parcel is Tract O, Beaver Creek Subdivision which is the area at the Southwest corner of the Bridge and will be the primary put -in and take -out point for the project and is the location of the pump house for the Beaver Creek snowmaking operations. This property is addressed in attached (Exhibit B) River Improvements Easement Agreement (Tract O). The third parcel is Lot 2, Red House and it is at the Southeast corner of Avon Road and US Highway 6 intersection and is where the Red House is located. Attached (Exhibit C) River Improvements Easement Agreement (Red House) is the permanent Easement that is located primarily in the Eagle River and the lower portion of the river bank. It allows construction and use of the facilities. The attached Revocable License Agreement (Exhibit D) allows use of a portion of the Red House property for access and material staging for during construction. We recommend Town Council approval of these documents pending final review and approval by the Town Attorney. Recommendation: Approve 'Deed of Easement" on Tract A, Riverfront Subdivision, "River Improvements Easement Agreement (Tract O)" Beaver Creek Subdivision, "River Improvements Easement Agreement (Red House)" Lot 2, Red House and "Revocable License Agreement" Lot 2, Red House, subject to final review and approval by the Town Attorney. I:AEngineering \CIP \Whitewater Park \6.0 R -W Acquisition\EasementsWR DraftTasement MemO.Doc I Proposed Motion: I move to approve "Deed of Easement" on Tract A, Riverfront Subdivision, "River Improvements Easement Agreement (Tract 0)" Beaver Creek Subdivision, "River Improvements Easement Agreement (Red House)" Lot 2, Red House and "Revocable License Agreement" Lot 2, Red House, subject to final review and approval by the Town Attorney. Town Manager Comments: ---------- Attachments: Exhibit A - Deed of Easement Exhibit B - River Improvements Agreement (Tract 0) Exhibit C - River Improvements Agreement (Red House) Exhibit D - Revocable License Agreement 1AEngineering\C1P\Whitewater Park\6.0 R-W AcquisitionTasementsWR DraftTasement Memo.Doc 2 DEED OF EASEMENT KNOW ALL 1VIEN BY THESE PRESENTS: That EAST WEST RESORT DEVELOPMENT XIV, L.P., L.L.L.P., Grantor, whose address is P.O. Drawer 2770, 100 E. Thomas Place, Avon, Colorado 81620, in consideration of TEN DOLLARS ($10.00), in hand paid, receipt of which is hereby acknowledged, and other good and valuable consideration, does hereby grant, bargain, sell and convey to TOWN OF AVON, Grantee, whose address is P. O Box 975, Avon, Colorado 81620, subject to the terms and conditions contained herein, a permanent, non - exclusive floating, walking, construction, maintenance and access easement, including all underground and surface appurtenances thereto and all rights and privileges as are necessary or incidental to the reasonable and proper use of such easement in accordance with this instrument in and to, over, under and across the tract of land described as follows: More particularly described as Exhibit A, attached hereto and by this reference made a part hereof. 1. Grantee agrees that construction of the Project shall be in accordance with the general plans for the 2006 Eagle River Recreation project, which plans are generally depicted on Exhibit B attached hereto and incorporated herein. Grantee agrees to obtain the prior written consent of Grantor as to any additional above -grade improvements not depicted on Exhibit B, which consent will not be unreasonably withheld if the proposed improvements do not involve visual or other impacts to Grantor's developments on those parcels located adjacent to and in the vicinity of the easement area and known as Riverfront Village. 2. Grantor reserves the right to use said easement area for purposes which will not interfere with Grantee's full enjoyment of the rights hereby granted; and the parties further agree that the uses of said easement by Grantor and Grantee and the agreements concerning those uses shall be as follows: (a) Except as provided below, Grantor shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level in said easement without obtaining the specific written permission of the Grantee, which permission shall not be unreasonably withheld; (b) Except as provided below, Grantor shall take no action which would impair or in any way modify the surface of, or the lateral or subjacent support for, the aforementioned improvements and appurtenances within the easement without obtaining the specific written permission of the Grantee, which permission shall not be unreasonably withheld. Grantor shall use reasonable efforts to not disturb any such Grantee improvements and appurtenances but Grantor shall otherwise not be responsible for any cost, damage or loss with respect to Grantee improvements or appurtenances. (c) Notwithstanding the foregoing or any contrary provision herein, Grantor reserves the right to place utilities, landscaping and irrigation improvements within the easement area and to construct improvements not inconsistent with the use of the easement, and Grantor agrees at its own expense to restore the area of the easement in the event of the disturbance of the area of the easement to a condition as close to the preexisting condition as is commercially reasonable, subject to the continued existence of Grantor's improvements. Further, Grantee acknowledges and accepts that Grantor may grant additional easements within the easement area relating to the installation, maintenance, repair and replacement of such Grantor improvements. Grantee shall take no action which would impair or in any way impact Grantor's improvements without the prior written consent of Grantor, which consent will not be unreasonably withheld. (d) Grantor disclaims any responsibility for any impact on wetlands adjacent to the area of the easement arising from the construction and use of the easement. (e) Grantee hereby represents and warrants to Grantor that Grantee shall comply with all applicable federal, state and local laws and regulations in connection with the construction, use and maintenance of any Grantee improvements or appurtenances or otherwise relating to Grantee's activities pursuant hereto. 3. Grantee agrees, to the extent permitted by law, to indemnify, defend and hold hanrnless Grantor, its designees, agents, employees, officers, directors, shareholders, successors and assigns and the Property (including, without limitation, claims made directly by Grantee) from and against any and all claims, causes of action, costs, damages, expenses and liabilities (including, without limitation, reasonable legal fees) arising from or related to the easement herein granted to Grantee and its use by Grantee and Grantee's designees, agents, employees, officers, directors, shareholders, successors and assigns or by any person acting through or on behalf of Grantee, including, without limitation, those arising from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or materialmen's liens caused or permitted by Grantee in connection with the easement granted herein or otherwise arising under this Deed of Easement, except those caused by the willful misconduct or negligence of Grantee or its designees, agents, employees, officers, directors, shareholders, successors or assigns. Grantee agrees to cause Grantor to be an additional insured on its public liability insurance, which Grantee agrees to keep and maintain in full force and effect during the term of this Grant of Easement. The parties agree that this Deed of Easement is entered into in accordance with the provisions of Colorado Revised Statutes Section 33 -41 -101, et seq., and Grantee agrees not to take any action, or fail to take any action, which would prevent the limitation of liability provided in such Statutes, including, without limitation, those listed in Colorado Revised Statutes Section 33 -41 -104. 4. The parties hereto agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different form the terms herein contained shall be binding on either party, or its agents or employees, hereto. 5. Grantor and Grantee each warrants to the other that it has full and lawful authority to make the grant hereinabove contained and promises and agrees to defend the other in the exercise of its rights hereunder- against any defect in such authority. 6. Whenever used herein, the singular number shall include the plural, the plural the singular; and the use of any gender shall be applicable to all genders. All of the covenants herein contained shall be binding upon and insure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. 7. Upon conveyance of title to Grantee of that certain real property described as Tract A as depicted on that certain Final Plat, Riverfront Subdivision, recorded June 15, 2006 at Reception No. 200615950 in the real property records of Eagle County, Colorado, this Deed of Easement shall terminate and merge with title to same. WITNESS our hands and seals this - % day of_.-., J, 2006. C : e 1 lilha EAST WEST RESORT DEVELOPMENT XIV, TOWN OF AVON L.P., L.L.L.P. By: HF Holding Corp., a Colorado corporation By: Its: General Partner By: %i,. -`= "`'t� �_ ATTEST: Town Clerk STATE OF COLORADO ) )ae. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of by as of FIF Holding --,`- Colorado corporation, General Partner —East West Resort Development -V` L]!,L.[[P. � � D�yc0onn/��0n expires: ' - 0 Witness myhand and official IZ Notary Public STATE OF COLORADO ) )sS. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before cocthis day of 2006, by Ronald B. Wolfe as Mayor and Patty McKenny as Town Clerk of the Town of Avon. My commission expires: Witness coyhand and official sou[ Notary Public C-x Ltd. REAL PROPERTY 1-0 BE ACQUIRED FOR PERMANENT EASEMENT FOR THE TOWN OF AN"ON, EAGLE RIVER RECREATION PROJECT PARCEL RICD PE-03 DESCRIPTION R, ---- A parcel of land No. RICD PE-03, containing 0.253 acres, more or less, situated in Tract A, Riverfront Subdivision, as recorded in the Office of the Clerk and Recorder of Eagle County, Colorado, at Reception No. 200615950 on June 15, 2006 and being more particularly described as follows: The True Point of Beginning being at the Southeast Comer of said The Confluence, common to the intersection of the Northeast corner of Tract 0, Beaver Creek Subdivision, and the westerly right-of-way of Avon Road; Thence N 1204'40" E a distance of 111.51 feet along said AN-on Road to the Northeast Corner of said Tract A; Thence N 89'24'00" W a distance of 114.65 feet along the North line of said Tract A to a point; Thence S 04 °33'31" E a distance of 115.44 feet to a point on the south line of said Tract A, Thence N 86'3755" E a distance of 82.28 feet along said south line to the Southeast comer of said Tract A and the True Point of Beginning. The above described parcel contains 1 1,013 square feet (0.253 acres), more or less; I hereby state that the above described legal direct supervision. Date J:'I)i-o,iect:,:".50156S\sun,eti ,`RICD PE-03.doc 6100*- 71r- 70-,4- '7 54,9 04Ce 6,9 A VON ---- ROAD RIW VARIES NO TF- THIS DOCUMENT D OES NOT REPRESENT A YONVWIV TED SUR / T IS INTENDED ox ), To 4?cplc r THE A TTA CHED DESCRIP ROW I 14) Qyl I Q) Lr) Qr) Lf) Qi Q BEARINGS ARE SAS0 UPON THE f7hAt PLAT Of SUSDIKSION RE-CORDED UNDER RfCEPTION NO 200615950 ON JUNE to 2006 TOWN OF AVON PERMANENT FLOATING, WALKING, CONSTRUCTION, MAINTENANCE AND ACCESS EASEMENT RICD PE-03 TRACT A, RIVERFRONT SUBDIVISION Z, mmv OID ca m 0 0 m > 24' WIDE P RIAN AND -VE ACCESS EASE P, PE--D5 al 0 O> > T T M> rnr >m 1>1 M O > mj G C i, ?AGE 1�7 Lade River @D k/on Recreation Enhancements La--Cment5,Acccs--1 and Centro! Flan 1111--vv r ca 0 C> N S7 cep r Vo"Rd mmv OID ca m 0 0 m > 24' WIDE P RIAN AND -VE ACCESS EASE P, PE--D5 al 0 O> > T T M> rnr >m 1>1 M O > mj G C i, ?AGE 1�7 Lade River @D k/on Recreation Enhancements La--Cment5,Acccs--1 and Centro! Flan 1111--vv RIVER IMPROVMENTS EASEMENT AGREEMENT (TRACT 0 This RIVER IMPROVEMENTS EASEMENT AGREEMENT (this "Agreement") is made as of the day of _, 2006, by and between The Vail Corporation, a Colorado corporation ("Vail"), and THE TOWN OF AVON, a municipal subdivision of the State of Colorado ("Avon"). RECITALS A. Vail is the owner of certain real estate legally described as Tract 0, Beaver Creek Subdivision, according to the exemption plat recorded on December 6, 1994 at Reception No. 552695 in Book 656 at Page 662 (the "Vail Property"); B. Avon desires to construct certain river bank, in-river, and river access improvements to create a water park for kayaking, rafting and other similar water sports (the "Water Park") and seeks an easement for the same, together with access thereto and therefrom, as more particularly described in Section I below; C. Certain Vail improvements, including but not limited to, a pumphouse, a surface water intake structure, in-river water intake pipes, electric transformers and specifically placed boulders within Eagle River anchoring such water intake pipes, already exist in the down-river vicinity of the proposed Water Park and/or may be installed in the future on or about the down-river vicinity of the Water Park (the "Vail Improvements"); and D. The parties have agreed to the Easement on the Vail Property subject to and based upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Vail and Avon hereby acknowledge and agree as follows: 1. River Improvements Easement. (a) Subject to the provisions of Section 8 hereof. Vail hereby grants to Avon an "intermittent" (as more fully described in Section I (b) below)! ' irrevocable, nonexclusive easement upon, over and across certain portions of the Vail Property as more particularly described on the attached Exhibit A (identified thereon as "PARCEL PE- 01" and "PARCEL PE-02") for the following purposes: the existence, construction, reconstruction, repair, replacement, maintenance, operation and use of improvements associated with access to the Eagle River and the Water Park, including certain river bank, in-river and river access improvements but only those improvements to be or as constructed by Avon as shown or referenced on Exhibit B attached hereto (the "Avon Improvements"); additionally, the easement area identified as "PARCEL PE-02" on Exhibit A may be used for the following purposes: floating of boats, kayaks and similar water equipment and for pedestrian access on the banks of P'Arnold Gerry',GERRYAIAVON',AvonWaterPark%,TractOAvon Water Park Easement4DOC the Eagle River (the "Easement."). Following construction of the Avon Improvements and subject to the terms and provisions of this Agreement, Avon shall restore those portions of the Vail Property not containing the Avon Improvements to its pre-existing condition as reasonably approved by Vail. (b) The Easement shall be an "intermittent easement," commencing on the day following the close of any published ski season on Beaver Creek Mountain and terminating on the earlier of the day on which Vail begins operation of the water intake and/or pumphouse devices, in VA's sole and absolute discretion, or October I in each and every year (the "Intermittent Term"). Use of the Easement by Avon and the Avon Permittees (as defined in Section 6 hereof) shall be limited to the Intermittent Term, provided, however, during Avon's initial construction of the Avon Improvements which are not "in-river" improvements may occur after October I (contemplated to be fall of 2006). No in-river construction, reconstruction, maintenance, replacement or repair of the Avon Improvements may take place after October I of any year. (c) The Easement shall be an easement in gross for the benefit of Avon and the Avon Permittees, and shall not be transferable or assignable (with any purported transfer or assignment to render the Easement null and void and of no further force or effect at Vail's election). (d) The Easement (identified as "PARCEL PE-01" and "PARCEL PE-02") and the Easement's location relative to and within the Water Park is generally depicted on Exhibit C. 2. Access and Use. Access on and use of the Easement shall be limited as follows: with respect to access on and across those portions of the Easement described on said Exhibit A as "PARCEL PE-01", pedestrian and vehicular traffic shall be permitted (i) by Avon for the purposes stated in Section I (a) above and (ii) by the general public for pedestrian and vehicular access to the Eagle River, provided, however, that vehicular access by the general public shall be limited to vehicles used for boat drop-off and pick-up only and shall not, under any circumstances whatsoever, include any parking rights by the general public and further provided that use of the Easement by the general public shall become effective upon the due and valid execution and delivery of this instrument by both Vail and Avon, this instrument's recordation in the real property records of Eagle County, Colorado, and the completion of the construction of the Avon Improvements. Except for vehicular and pedestrian access as set forth in this Section 2, no camping, picnicking or other use of the Easement is permitted by the general public. Notwithstanding any Easement right granted to Avon hereunder or use of the Easement by the general public, Vail's vehicular and pedestrian access to the Vail Improvements shall be unhindered, open and available to Vail at all times. 3. Permits, Limitation of Liability; No Representations. (a) Avon shall be responsible for obtaining any and all permits or other local, state or federal governmental approvals necessary to construct, own and operate the Avon Improvements. Vail shall not be liable for any infraction of or non-compliance with the terms of such permits. Moreover, Vail disclaims any responsibility for any impact on wetlands either in or adjacent to the Easement arising from Avon's construction activities and use of the Easement. In the event that Colorado Department of Transportation I ("CDOT") requires or demands closure of access from Highway 6 to the Vail Property, it being acknowledged and agreed by the parties that there is a common access from Highway 6 to the Vail Improvements and the Avon Improvements, the Easement rights hereunder, included access rights to the Eagle River by the general public, shall immediately be suspended until Avon procures CDOT's reinstatement of access from Highway 6 to the Vail Property. Moreover, Avon shall use its commercially reasonable best efforts to persuade CDOT that Vail's access to the Vail Property should not be interrupted or halted. (b) Avon and the Avon Permittees shall enter upon and use the Easement at their sole respective risks. Vail shall incur no loss, cost, liability or damage in connection with Avon's or the Avon Permittees' use of the Easement, the Avon Improvements, the Water Park or the Vail Property under this Agreement. Avon shall be solely responsible for (i) the health and safety of all of the Avon Permittees who enter upon and use the Easement and (ii) any damage to the Vail Property and the Vail Improvements by Avon or the Avon Permittees utilizing the Easement. (c) Vail makes no representations or warranties of any kind whatsoever regarding the Easement or the quality, quantity, suitability or fitness of the Easement for any intended use. 4. Operating Agreement. The use of the Easement shall at all times be subject to an operating agreement by and between Vail and Avon, the form and content to be agreed upon by the parties and to be entered into upon completion of construction of the Avon Improvements (the "Operating Agreement"). Any default or non-compliance with the respect to Avon's obligations under the Operating Agreement shall constitute a default by Avon under this Agreement. 5. Superior Rights of Vail, No Interference. Notwithstanding any Easement right granted to Avon hereunder, Avon hereby acknowledges, agrees and covenants that the existence and use by Vail of the Vail Improvements, and the functions and activities associated therewith, including but not limited to Vail's implementation of Vail's water rights by water diversion activities which support Vail's mountain and golf operations (the "Vail Rights"), shall at all times be superior to the Easement and Avon's Easement rights hereunder, and, under no circumstances whatsoever, shall Avon's exercise of such Easement rights harm, disrupt or injure the Vail Rights. Moreover, Avon hereby acknowledges, agrees and covenants that while the Easement is "up-river" from Vail's Improvements, the Easement shall, at all times, be subject to the terms and conditions set forth herein such that the permitted uses by Avon or any third party beneficiary to the Easement are (i) secondary to the Vail Rights and (ii) are not inconsistent with and do not interfere with the Vail Rights as determined by Vail in Vail's sole and absolute discretion, the Vail Rights being imperative for preserving and protecting the viability and continuity of Vail's mountain and golf course operations. Except as provided herein, in no event shall there be any disruption or change to the contours of the bed or banks of the Eagle River by Avon or any third party beneficiary to the Easement, which would cause the river water to flow in such a way that would negatively impact Vail's ability to utilize the Vail Improvements for the purposes for which the Vail Improvements are intended. 3 6. Indemnification. To the extent permitted by law, Avon agrees to indemnify, defend and hold harmless Vail, its designees, agents, employees, officers, directors, shareholders, successors and assigns, the Easement and the Vail Property (including, without limitation, claims made directly by Avon) from and against any and all claims, causes of action, costs, damages, expenses and liabilities (including, without limitation, reasonable legal fees) arising from or related to use of the Easement, and/or the Vail Property by (i) Avon, its designees, agents, employees, officers, directors, shareholders, successors and assigns, (ii) the general public or (iii) by any person acting through or on behalf of Avon (collectively, the "Avon Permittees "), arising from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or materialmen's liens caused or permitted by Avon or the Avon Permittees in connection with the Easement and/or the Vail Property or otherwise arising under this Agreement, except those caused by the willful misconduct or negligence of Vail or its designees, agents, employees, officers, directors, shareholders, successors or assigns. 7. Additional Terms and Conditions. a. Avon agrees that construction of the Avon Improvements shall be in accordance and consistent with those certain plans those certain plans "Eagle River @ Avon Recreation Enhancements Avon, Eagle County, Colorado, May 2006" and that certain "Town of Avon Project Manual July 6, 2006 Eagle River at Avon Recreation Enhancements Bob the Bridge Whitewater Park" prepared by River Restoration submitted to Vail by Avon, portions of which are attached as Exhibit B. No other improvements are permitted on the Easement except as shown or referenced on Exhibit B or in the Operating Agreement. b. Vail reserves the right to use the Easement Area for purposes which will not interfere with Avon's full enjoyment of the rights hereby granted; and the parties further agree that the uses of the Easement by Vail shall be as follows: (1) Vail shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level in the Easement without obtaining the specific prior written approval of Avon, which approval shall not be unreasonably withheld; (2) Vail shall take no action which would impair or in any way substantially modify the surface of, or the lateral or subjacent support for, the Avon Improvements and appurtenances within the Easement without obtaining the specific prior written approval permission of Avon, which approval shall not be unreasonably withheld. (3) Notwithstanding the foregoing, Vail reserves the right to place utilities within the Easement and to construct drainage improvements and water diversion improvements not inconsistent with the use of the Easement, and Vail agrees at its own expense to 4 restore the portion of the Easement Area to its prior condition in the event of the disturbance of such portion of the Easement. (4) Vail further reserves the right to relocate the Easement to a new location reasonably acceptable to the Avon in association with the improvement of the Vail Property. Any such relocation shall be at the expense of Vail and shall include replacement of the Avon Improvements with improvements of the same condition and quality. During such time, Vail shall use its best efforts to keep any interruption of use of the Easement by the general public to a minimum. 8. Default; Remedies. In the event of any default under this Agreement, any non - defaulting party may give notice to the defaulting party of such default. The defaulting party shall have three (3) days within which to cure such default, or, if such default cannot reasonably be cured within three (3) days, such longer time as may reasonably be necessary to cure such default, provided that the defaulting party commences to cure such default within said three (3) days and diligently prosecutes the same to completion. In the event of a default that is not timely cured, the non- defaulting party shall be entitled to: (a) cure such default at the expense of the defaulting party (and the defaulting party shall pay the expense thereof upon demand), and (b) any other remedies which may be available at law or in equity. The parties acknowledge that damages may be an inadequate remedy for a default hereunder and agree that the parties shall be entitled to prohibitive or mandatory injunctive relief and the recovery of actual, consequential, exemplary and other damages, as well as related costs and attorneys' fees, specific performance and other equitable remedies to enforce the terms of this Agreement. The notice and cure provisions of this paragraph shall not apply when, in Vail's reasonable opinion, an ongoing or imminent default could irreversibly diminish or impair Vail's golf or mountain operations. In such event, Vail may, upon verbal notice to Avon, take immediate appropriate legal action and seek to enjoin the violation, temporarily or permanently and also may immediately suspend Avon's Easement rights hereunder, including access and use of the Easement by the general public. Upon Avon's cure of such default to Vail's reasonable satisfaction, in Vail sole and absolute discretion, Avon's Easements rights shall be immediately restored and full use of the Easement may be implemented by Avon and the general public. The substantially prevailing party in any action to enforce this Agreement shall be entitled to its reasonable attorneys' fees and court costs. 9. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid. Any such notice or other communication shall be effective when such notice is delivered to the addresses set forth below: If to Vail: Beaver Creek Mountain Operations Attn: Jim Roberts, Vice President P.O. Box 7, Internal Box BI Vail, Colorado 81658 Telephone: (970) 845 -5135 Facsimile: (970) 845 -5131 With a copy to: If to Avon: Vail Resorts Legal Department Attn: Eric J. Stein, Assistant General Counsel P.O. Box 7, Internal Box 88 Vail, Colorado 81658 Telephone: (970) 845 -2650 Facsimile: (970) 845 -2667 The Town of Avon Attn: Norman Wood, Town Engineer P.O. Box 975 Avon, Colorado 81620 Telephone: (970)- 748 -4045 Facsimile: (970)- 949 -5749 With a copy to: John W. Dunn & Associates, LLC Attn: John W. Dunn P. O. Box 7717 Avon, Colorado 81620 Telephone: (970) 748 -6400 Facsimile: (970) 748 -8881 10. Insurance. Avon agrees to cause Vail to be an additional insured on its commercial general liability insurance for bodily injuries or death of persons or property damage occurring in or about the Easement granted to it pursuant to this Agreement. All such insurance shall (a) generally cover the liability and indemnity obligations assumed by Avon under this Agreement; (b) be primary and noncontributing with any insurance which may be carried by the other party; and (c) provide that said insurance shall not be cancelled or coverage changed unless thirty (30) days' prior written notice shall have been given to Vail. Avon shall furnish Vail with a certificate or certificates evidencing that the required insurance policies are in full force upon written request. 11. Statutory Basis. The parties agree that this Agreement is entered into in accordance with the provisions of Colorado Revised Statutes 33 -41 -101, et seq. 12. Miscellaneous. on a. Modification. No provision or term of this Agreement may be amended, modified, revoked, supplemented, waived, or otherwise changed except by a written instrument duly executed by the parties hereto. b. Entire Agreement. This Agreement constitutes and incorporates the entire agreement among the parties hereto concerning the subject matter of this Agreement and supersedes any prior agreements concerning the subject matter hereof. C. Separability. If any provision of this Agreement shall be held invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be impaired thereby; nor shall the validity, legality, or enforceability of any such defective provisions be in any way affected or impaired in any other jurisdiction. d. Assignment. This Agreement is not assignable by Avon without the prior written approval of Vail. e. Third-Party Beneficiaries. Except as provided herein, the agreements contained herein are solely for the benefit of the parties hereto and no other person or entity shall be a third party beneficiary thereof. f. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 9. Authorization. Each party is authorized and empowered to execute this Agreement and all necessary corporate action has been taken to authorize execution of this Agreement. h. Execution. The parties shall execute and deliver such further documents as may be reasonably required in order to effectuate the intent of this Agreement. i. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original; provided, however, that this Agreement will not become binding upon any party unless and until executed (whether or not in counterpart) by all the parties. j. Recording. This Agreement shall be recorded with the Clerk and Recorder for the County of Eagle, State of Colorado. k. Run with the Land, Successors and Assigns. The terms and provisions of this Agreement shall run with the Vail Property and title to the Vail Property and be binding upon and inure to the benefit of the successors and assigns of Vail. Subject to the provisions of Sections I (c) and 12 (d) hereof, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of Avon. 7 1. Rule Against Per-petuities. If any of the terms, covenants, conditions, easements, restrictions, uses, limitations or obligations created by this Agreement shall be unlawful or void for violation of. (i) the rule against perpetuities or some analogous statutory revision, (ii) the rule restricting restraints on alienation, or (iii) any other statutory or common law rules imposing like or similar time limits, such provision shall continue only for the period of the life of Rob Katz, his now living descendants, and the survivor of them, plus twenty-one (21) years. in. Exhibits. All exhibits attached to this Agreement are incorporated herein by this reference and made a part hereof. n. Provisions Incorporated in Deeds. Each provision contained in this Agreement shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of the Vail Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. DATED the day and year first above written. [Signatures on following pages.] H., THE VAIL CORPORATION, a Colorado corporation By: _ Name: Title: STATE OF COLORADO ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of 2006, by Colorado corporation. as • THE VAIL CORPORATION, a Witness my hand and official seal. My commission expires: (SEAL) vt TOWN OF AVON, a municipal subdivision of the State of Colorado By: Name: Ronald B. Wolfe Title: Mayor STATE OF COLORADO ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of 1 2006, as by Ronald B. Wolfe as Mayor and Patty McKenny as Town Clerk of the Town of Avon. Witness my hand and official seal. My commission expires: (SEAL) 10 EXHIBIT A (EASEMENTS PE -01 and PE -02) (SEE ATTACHED) Is PARCEL PE-01 DESCRIPTION &parcel of land PARCEL 9E-0l, containing 0.202 acres, more or less, situated in Tract 0, Beaver Creek Subdivision, os recorded bz the Office nI the Clerk and Recorder of Eagle County Colorado, at Book 656, Page b02' Reception No. 552695oo December 6, l994 and being more particularly described as follows: Commencing at the Southeast Corner oysaid Tract 0.common to the intersection of the north of U.S. Highway 6and the westerly h of Avon Road and being unu non- tangent ourvctoUue right having u radius uf3879Mfeet; Thence 7.l3 feet along the southerly line uf said Tract O and uo said riub\-of'vmyof(J.S. Highway 6, through a central angle of 0'06'19", having a chord bearing and distance of N7g"l9'32" W, 7.13 feet toopoint; Thence N 76'30'10" W a distance of 17.30 feet along said right-of-way to a point; Thence N 70'09'10" W a distance of 76.3 8 feet along said right-of-way line to the True Point of Thence continuing N7O"U9'l0^Yy along said a distance of5l.33 feet tuu point; Thence NDlp58`l7"Eu distance of9|.93 feet ioopoint; Thence YV30"27'3l^Eu distance of3l.75 feet tmupoint; Thence N22'45`44" Wu distance of25.2O feet toupoint; Thence 059°O6`49^Wa distance nf26.92 feet ioupoint; Thence S?0^U0`j4^Wu distance of9.77 feet toupoint; Thence N20»2V`l0^Wa distance oylV.l6 feet |oupoint; Thence Nl6"38'53^u/u distance ofA.32 feet toapoint; Thence N F7720"54" W a distance of 26.48 feet to a point; 538P Conhren�! Foud.3u�a 07 , Ltfleton.-oorado8O127 ~ Phons: 303948822O° Fax: 3O35m88525 40801 U.O. Hwy. 5. Stj:ns2U3 * PO, Box 878 ~ Avon, Qdorado 81620 ° Phone: 970 949 5,072 ° Tol" Free: 800 8562258 A=y Thence N 72'36'06" E a distance of 19,69 feet to a point; Thence N 83'04'56" E a distance of 21.66 feet to a point; Thence S 71'54103" E a distance of 7.12 feet to a point; Thence N 15 °37'00" E a distance of 24.91 feet to a point; Thence N 88 °13'13" E a distance of 42.57 feet to a point; Thence S 20'36'45" W a distance of 80.94 feet to a point, Thence S 22'45'44" E a distance of 47.20 feet to a point; Thence S 30 °27'31" W a distance of 55.35 feet to a point; Thence S 81 °58'17" W a distance of 58.13 feet to the northerly right-of-way line of said U.S. Highway 6 and the True Point of Beginning. The above described parcel contains 8,788 square feet (0.202 acres), more or less-, I hereby state that the above described legal descript• repared by me or under my direct supervision. 6626 Y ar P. 0 Date D u %an i ,,,p Ldoc roj e M Limb TRUE POIN T ww�� DF 8EDINNING TRACT O BEA VER CREEK SUBDI VISION 20 , 153" vV 4" ��9•1 N16 3g 32'N�7.20 5 Z +�i a 2,* �� -� Z cxy , z v c,, I/o/v 1904D ,4Rle NOTE.- THIS DOCUMENT DOES NOT REPRESENT A MONUMEWED SURVEY. IT IS 1N TENDED ONLY TO DEPICT THE ATTACHED DESCRIPT10N. TOWN OF AVON PERMANENT ACCESS EASEMENT PARCEL PE--01 TRACT O, BEAVER CREEK SUBDIVISION > wnt �� u,. sowe Q'°'" MM OF AVON TV w. of tA. cxw,t Aron. nw we of MAP abm~t w taw klfw?watbn 1* toiAt t by any ebter pawn r LEGAL DESC D (I\.I� iE aaRR MA IME � ,�t � A�....nt zla.�as any otAr prawn ar:t�y ,**" fo wo A}ir doarmorsI r taw hhmwtbn oww mz h - PARCEL PE-01 ,�• way pp"o taw mwf "t abtnh .rttton miytAr4atAn dab t a mf my TONN OF AVON O5 —0156S �rA le+� oantaiwd Area Y lrtanalbe to be att o Uiat t+ Air nnoe r EAGLE COUNTY, COLORADO A .. A -4 121. Inter-Mountain TAm A Engineeringlud. Alk REAL PROPERTY TO BE ACQUIRED FOR PERMANENT EASEMENT FOR THE TOWN OF AVON, EAGLE RIVER RECREATION PROJECT RECEIVED D6 J I- L' U L 2 4 240" cornmurl'sly Devsfi=ment. PARCEL PE-02 DESCRIPTION A parcel. of land Parcel PE-02, containing 0.110 acres, more or less, situated in Tract 0, Beaver Creek Subdivision, as recorded in the Office of the Clerk and Recorder of Eagle County, Colorado, at Book 656, Page 662, Reception No. 552695 on December 6, 1994 and being more particularly described as follows: The True Point of Beginning being at the Northeast Comer of said Tract 0, common to the intersection of the Southeast comer of the Riverfront Subdivision and the westerly right-of-way of Avon Road; Thence S 12'05'08" W a distance of 37.48 feet along said Avon Road to a point, Thence continuing along said Avon Road, S 03'19'17" W a distance of 58.98 feet to a point; Thence N 80'56'35" W a distance of 45.92 feet to a point; Thence N 20'36'45" E a distance of 54.31 feet to a point; Thence S 88'13'13" W a distance of 42.57 feet to a point; Thence N 03'30'16" W a distance of 33.98 feet to a point on the north line of said Tract 0; Thence N 86'36'05" E a distance of 82.27 feet along said line to the Northeast comer of said Tract 0 and the True Point of Beginning. The above described parcel contains 4,803 square feet {0,110 acres), more or less; I hereby state that the above described legal description ed by me or under my direct supervision. - F�' r A 2662 . 2662 7 - -14 - OG Date P.O. Bdkl 8o 816,10 Duane D, & P.L.S. 26626 J:",,projects`150156S"Isurvey'�,PARCEI, PE-01doc 39 )2 Ccnt�-- raD; `j�c 3ca d, S�jile 4;107 1 - �-!etcn, - " -I oraU l o 80 27 Ph on,": 303 948 6220 * Fax: '303 q"a 6--' 63-JI U,S. Hvi�,% SJ'e 2-3 �:x Avon, ,, iorado 81620 ;'hone: 970 C)'9 5)072 - To !1 Free: K, 10, 856 2258 A- 4. TRACT 0 BEA VE'R CREEK SUBDIVISION 03-30'16'* W ji. 0 S0379*17"W 5898`---*,* �rl-` 'lll A VON ROAD RIW VA RIES NOTE. - THIS DOCUMENT DOES NOT REPRESENT A MONUMEWFD SURVEY / r Is INTENDED oNt Y To DEPICT THE A rrA cHiv DESCRIPTION. RI VERFR ON T SU8D/ VISION TRUE POINT OF BEGINNING ,9 /"1 Ge ,,& 9 TOWN OF AVON PERMANENT FLOATING, WALKING, CONSTRUCTION, MAINTENANCE AND ACCESS EASEMENT PARCEL PE-02 TRACT 0, BEAVER CREEK SUBDIVISION TOM OF AVON TV IN lift W, Vw povw cr LEGAL DESCWTM 7/24/06 I�� fah wilim PARCEL PE-02 Di M TO OF AVON mr "te Ar /W ouvmvtrod EAGLE COUNTY, COLORADO P:A a (IMPROVEMENTS) (SEE ATTACHED) W-? Ilk { ~ ` b d po gD CO t \ _ -4` \ 1\ \-d +ob l f' rrf w 1 ; t II 7171 + t I I t � ; o , I ffqII, k1 1v I f it, it ,I �f' I ; f �i ( i�h Jry� CD I ` ( I I I 1 I f I CO � t7 �• � b r , � � I I 1 y Imo" 1 b .V D m - CD �3 k'1 IfI • � � n`,' ' 'tr' , ate , 'p � i ' � 1 t It ..�11 r.• 7 iJJ % ,j ' r / � 4� � � i ��~• ;cu ''t I Q 1 2, r \ I J J -•4'J ' S (�� ' ° `.� J � , '' � i me i I r n I, , r / •� '✓b Mr S' 'Ii +r / It 71` / JJJ � I ll J ItJ � � '� rf I' '' � s /•� 7 q (U 1 (! O � f / v / § Eagle River @ Avon Recreation Enhancements Bob 5r. Plan View Scale: 1 " =20' � n CD I ` ( I I I 1 I f I CO � t7 �• � b r , � � I I 1 y Imo" 1 b .V D m - CD �3 k'1 IfI • � � n`,' ' 'tr' , ate , 'p � i ' � 1 t It ..�11 r.• 7 iJJ % ,j ' r / � 4� � � i ��~• ;cu ''t I Q 1 2, r \ I J J -•4'J ' S (�� ' ° `.� J � , '' � i me i I r n I, , r / •� '✓b Mr S' 'Ii +r / It 71` / JJJ � I ll J ItJ � � '� rf I' '' � s /•� 7 q (U 1 (! O � f / v / § —I Eagle River @ Avon Recreation Enhancements Bob 5r. Plan View Scale: 1 " =20' —I i� O \ \ + t CID \ /� �� 1 \ r yryc 1 / 1 Eagle River @ Avon Recreation Enhancements g E30at Ramp Station 0 +30 Plan View scab. 1 ° =20 tl \ ro 'n 0 ry n 1 1 ! ll I S/ n y CD O 4 1 }} } I Q„- 11 Eagle River @ Avon Recreation Enhancements g E30at Ramp Station 0 +30 Plan View scab. 1 ° =20 'n 0 ry n 1 ! ll I S/ n y CD O 4 1 }} } I Q„- 11 7 Eagle River @ Avon Recreation Enhancements g E30at Ramp Station 0 +30 Plan View scab. 1 ° =20 7 Cb yoi 4 arm VON 7421.03 ;Uu r O'D 0 W 1 1X rq C) Di Z- Z:, o 7418.08 h4 ad N �oG 0::;u > 7416.7 Facjlc River @ Avon Recreation Enhancements 7415.14 Boat Ramp Plan and Profile Scale: 1 "=20' i 'cam a Ln A 0 7410.00 M ri Z408�0 P\A STI, = 0+84M P\n E V = 7414.00 P\A s = 0+96.75 tg 00 -P\A- JEV�3-4.10.M� �* < = (-D M 0 Cb C7 > it F- VMMOq1 — — oovla " WnMD �, ,Iqo j-%ojddV Facjlc River @ Avon Recreation Enhancements Boat Ramp Plan and Profile Scale: 1 "=20' IFT-1 a P\A STI, = 0+84M P\n E V = 7414.00 P\A s = 0+96.75 tg 00 -P\A- JEV�3-4.10.M� �* < = (-D M 0 Cb C7 > it F- VMMOq1 — — oovla " WnMD �, ,Iqo j-%ojddV Facjlc River @ Avon Recreation Enhancements Boat Ramp Plan and Profile Scale: 1 "=20' IFT-1 USER REVDATE FN"E III H "M IPP 5 -4 C z o r�` ;ilk �a r E3 CIVIL DETAILS 3 - boulder Work, 5ignacje, Site Wall, Raihn,3 No Scale' ----------- rn r 7v a > C) 7 0 r 4 M-4. rn U) 70 A • 0 2u -0 < rn E rn 0 NMI. 0 14-1 I III H "M IPP 5 C z o r�` ;ilk �a r E3 CIVIL DETAILS 3 - boulder Work, 5ignacje, Site Wall, Raihn,3 No Scale' ----------- rn r 7v a > C) 7 0 r 4 M-4. rn U) 70 A III H "M IPP 5 Eagle RI ve, r @ Avon Recreation Enhancements o r�` ;ilk �a CIVIL DETAILS 3 - boulder Work, 5ignacje, Site Wall, Raihn,3 No Scale' ----------- rn M-4. rn U) 70 A • 0 2u -0 < rn E rn 0 NMI. 0 14-1 I :74 > vi; O III H "M IPP 5 0 Np rn 15 7u > C) rn Eagle RI ve, r @ Avon Recreation Enhancements o r�` ;ilk �a CIVIL DETAILS 3 - boulder Work, 5ignacje, Site Wall, Raihn,3 No Scale' ----------- rn 0 Np rn 15 7u > C) rn CJ Eagle RI ve, r @ Avon Recreation Enhancements CIVIL DETAILS 3 - boulder Work, 5ignacje, Site Wall, Raihn,3 No Scale' ----------- CJ JSER REVDATE FNAME 0 x 70 DD n > 20-- Eagle RIver @ Avon Recreation Enhancements Ar o N CIVIL DETAILS 4 - E3MF5, 03 Z z t Z r-n 0 x 70 DD n > 20-- -1 Eagle RIver @ Avon Recreation Enhancements Ar o N CIVIL DETAILS 4 - E3MF5, Care of Water No 5calc' z z t r-n -1 V. 71, I Eagle RIver @ Avon Recreation Enhancements Ar o N CIVIL DETAILS 4 - E3MF5, Care of Water No 5calc' z z r-n C7 a V. 71, I Eagle RIver @ Avon Recreation Enhancements Ar o N CIVIL DETAILS 4 - E3MF5, Care of Water No 5calc' (PROJECT DEPICTION) (SEE ATTACHED) 13 > Fac3lc River @ Avon WA Recreation Enhancements Fa5ement5,Acce,55 and Control 71 Flan View 5cale: I 7- I a) °o n 3 U. 4�7 P I > 711 > I OD �C�l CA 7., 24' WDE P IAN AND YEHICU pEL-05 — — — — — • — A, ACCESS EASE cc m> bm --------- 17 0 0 /Z,� P 17) (p rn 0 b, > > > -K- m cl) m v, I'D 1" -T 77 r Apo n Rd to C.) I > Or 1 > Fac3lc River @ Avon WA Recreation Enhancements Fa5ement5,Acce,55 and Control 71 Flan View 5cale: I 7- 3 U. 4�7 PARCEL 24' WDE P IAN AND YEHICU pEL-05 — — — — — • — A, ACCESS EASE m> bm --------- 17 0 0 /Z,� P 17) (p rn 0 b, > > > -K- m cl) m v, -T 77 r > to zil 0-1 Fac3lc River @ Avon Recreation Enhancements Fa5ement5,Acce,55 and Control 71 Flan View 5cale: I 7- 3 U. 0-1 Fac3lc River @ Avon Recreation Enhancements Fa5ement5,Acce,55 and Control 71 Flan View 5cale: I 7- 0-1 RIVER IMPROVMENTS EASEMENT AGREEMENT (RED HOUSE) This RIVER IMPROVEMENTS EASEMENT AGREEMENT (this "Agreement") is made as of the day of _, 2006, by and between The Vail Corporation, a Colorado corporation ("Vail"), and THE TOWN OF AVON, a municipal subdivision of the State of Colorado ("Avon"). A. Vail is the owner of certain real estate legally described as Lot 2, Red House, according to the exemption plat recorded on November 7, 2000 at Reception No. 743459 (the "Vail Property"); B. Avon desires to construct certain in-river improvements to create a water park for kayaking, rafting and other similar water sports (the "Water Park") and seeks an easement for the same, as more particularly described in Section I below; C. Certain Vail improvements, including but not limited to, a pumphouse, a surface water intake structure, in-river water intake pipes, electric transformers and specifically placed boulders within Eagle River anchoring such water intake pipes, already exist in the down-river vicinity of the proposed Water Park and/or may be installed in the future on or about the down-river vicinity of the Water Park (the "Vail Improvements"); and D. The parties have agreed to the Easement on the Vail Property subject to and based upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Vail and Avon hereby acknowledge and agree as follows: 1. River Improvements Easement. (a) Subject to the provisions of Section 8 hereof, Vail hereby grants to Avon an "intermittent" (as more fully described in Section I (b) below), irrevocable, nonexclusive easement upon, over and across certain portions of the Vail Property as more particularly described on the attached Exhibit A (identified thereon as " PARCEL PE- 04" for the following purposes: the existence, construction, reconstruction, repair, replacement, maintenance, operation and use of improvements associated with the Water Park, including certain in-river improvements but only those improvements to be or as constructed by Avon as shown or referenced on Exhibit B attached hereto (the "Avon Improvements"); additionally, the easement area identified as "PARCEL PE-04" on Exhibit A may be used for the following purposes: floating of boats, kayaks and similar water equipment and for pedestrian access on the banks of the Eagle River (the "Easement."). Access for construction, reconstruction, repair, J:',-Vnold Gerry`IGERRYA\AVONP%AvonWaterParkRedHouseAvon Water Park EasementIDOC replacement maintenance of the Avon Improvements is not provided by this Easement but is subject to the terms and provisions of that certain Temporary Construction License by and between Vail and Avon. (b) The Easement shall be an "intermittent easement," commencing on the day following the close of any published ski season on Beaver Creek Mountain and terminating on the earlier of the day on which Vail begins operation of the water intake and/or pumphouse devices, in VA's sole and absolute discretion, or October I in each and every year (the "Intermittent Term"). Use of the Easement by Avon and the Avon Permittees (as defined in Section 6 hereof) shall be limited to the Intermittent Term. No in-river construction, reconstruction, maintenance, replacement or repair of the Avon Improvements may take place after October I of any year. (c) The Easement shall be an easement in gross for the benefit of Avon and the Avon Permittees, and shall not be transferable (with any purported transfer to render the Easement null and void and of no further force or effect at Vail's election). (d) The Easement (identified as "PARCEL PE-04") and the Easement's location relative to and within the Water Park is generally depicted on Exhibit C. 2. Use. The parties hereto acknowledge and agree that the Easement lies within the river waters and river banks of the Eagle River. Use of the Easement shall be limited as follows: (i) by Avon for the purposes stated in Section I (a) above and (ii) by the general public for boating activities associated with the Water Park and pedestrian access on the bank of the Eagle River, No camping, picnicking or other use of the Easement is permitted by the general public. 3. Permits; Limitation of Liability; No Representations. (a) Avon shall be responsible for obtaining any and all permits or other local, state or federal governmental approvals necessary to construct, own and operate the Avon Improvements. Vail shall not be liable for any infraction of or non-compliance with the terms of such permits. Moreover, Vail disclaims any responsibility for any impact on wetlands either in or adjacent to the Easement arising from Avon's construction activities and use of the Easement. (b) Avon and the Avon Permittees shall enter upon and use the Easement at their sole respective risks. Vail shall incur no loss, cost, liability or damage in connection with Avon's or the Avon Permittees' use of the Easement, the Avon Improvements, the Water Park or the Vail Property under this Agreement. Avon shall be solely responsible for (i) the health and safety of all of the Avon Permittees who enter upon and use the Easement and (ii) any damage to the Vail Property or the Vail Improvements by Avon or the Avon Permittees utilizing the Easement. (c) Vail makes no representations or warranties of any kind whatsoever regarding the Easement or the quality. , quantity, suitability or fitness of the Easement for any intended use. 0J 4. Intentionally omitted. S. Superior Rights of Vail; No Interference. Notwithstanding any Easement right granted to Avon hereunder, Avon hereby acknowledges, agrees and covenants that the existence and use by Vail of the Vail Improvements, and the functions and activities associated therewith, including but not limited to Vail's implementation of Vail's water rights by water diversion activities which support Vail's mountain and golf operations (the "Vail Rights"), shall at all times be superior to the Easement and Avon's Easement rights hereunder, and, under no circumstances whatsoever, shall Avon's exercise of such Easement rights harm, disrupt or injure the Vail Rights. Moreover, Avon hereby acknowledges, agrees and covenants that while the Easement is "up-river" from Vail's Improvements, the Easement shall, at all times, be subject to the terms and conditions set forth herein such that the permitted uses by Avon or any third party beneficiary to the Easement are (i) secondary to the Vail Rights and (ii) are not inconsistent with and do not interfere with the Vail Rights as determined by Vail in Vail's sole and absolute discretion, the Vail Rights being imperative for preserving and protecting the viability and continuity of Vail's mountain and golf course operations. Except as provided herein, in no event shall there be any disruption or change to the contours of the bed or banks of the Eagle River by Avon or any third party beneficiary to the Easement, which would cause the river water to flow in such a way that would negatively impact Vail's ability to utilize the Vail Improvements for the purposes for which the Vail Improvements are intended. 6. Indemnification. To the extent permitted by law, Avon agrees to indemnify, defend and hold harmless Vail, its designees, agents, employees, officers, directors, shareholders, successors and assigns, the Easement and the Vail Property (including, without limitation, claims made directly by Avon) from and against any and all claims, causes of action, costs, damages, expenses and liabilities (including, without limitation, reasonable legal fees) arising from or related to use of the Easement, and/or the Vail Property by (i) Avon, its designees, agents, employees, officers, directors, shareholders, successors and assigns, (ii) the general public or (iii) by any person acting through or on behalf of Avon (collectively, the "Avon Permittees"), arising from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or materialmen's liens caused or permitted by Avon or the Avon Permittees in connection with the Easement and/or the Vail Property or otherwise arising under this Agreement, except those caused by the willful misconduct or negligence of Vail or its designees, agents, employees, officers, directors, shareholders, successors or assigns. 7. Additional Terms and Conditions. a. Avon agrees that construction of the Avon Improvements shall be in accordance and consistent with those certain plans "Eagle River g Avon Recreation Enhancements Avon, Eagle County, Colorado, May 2006" and that certain "Town of Avon Project Manual July 6, 2006 Eagle River at Avon Recreation Enhancements Bob the Bridge Whitewater Park" prepared by River Restoration submitted to Vail by Avon, portions of which are attached as Exhibit B. No other improvements are permitted on the Easement except as shown or referenced on Exhibit B. b. Vail reserves the right to use the Easement Area for purposes which will not interfere with Avon's full enjoyment of the rights hereby granted; and the parties further agree that the uses of the Easement by Vail shall be as follows: (1) Vail shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level in the Easement without obtaining the specific prior written approval of Avon, which approval shall not be unreasonably withheld; (2) Vail shall take no action which would impair or in any way substantially modify the surface of, or the lateral or subjacent support for, the Avon Improvements and appurtenances within the Easement without obtaining the specific prior written approval permission of Avon, which approval shall not be unreasonably withheld. (3) Notwithstanding the foregoing, Vail reserves the right to place utilities within the Easement and to construct drainage improvements and water diversion improvements not inconsistent with the use of the Easement, and Vail agrees at its own expense to restore the portion of the Easement Area to its prior condition in the event of the disturbance of such portion of the Easement. (4) Vail further reserves the right to relocate the Easement to a new location reasonably acceptable to the Avon in association with the improvement of the Vail Property. Any such relocation shall be at the expense of Vail and shall include replacement of the Avon Improvements with improvements of the same condition and quality. During such time, Vail shall use its best efforts to keep any interruption of use of the Easement by the general public to a minimum. 8. Default; Remedies. In the event of any default under this Agreement, any non- defaulting party may give notice to the defaulting party of such default. The defaulting party shall have three (3) days within which to cure such default, or, if such default cannot reasonably be cured within three (3) days, such longer time as may reasonably be necessary to cure such default, provided that the defaulting party commences to cure such default within said three (3) days and diligently prosecutes the same to completion. In the event of a default that is not timely cured, the non-defaulting party shall be entitled to: (a) cure such default at the expense of the defaulting party (and the defaulting party shall pay the expense thereof upon demand), and (b) any other remedies which may be available at law or in equity. The parties acknowledge that damages may be an inadequate remedy for a default hereunder and agree that the parties shall be entitled to prohibitive or mandatory injunctive relief and the recovery of actual, consequential, exemplary and other damages, as well as related costs and attorneys' fees, specific performance 4 and other equitable remedies to enforce the terms of this Agreement. The notice and cure provisions of this paragraph shall not apply when, in Vail's reasonable opinion, an ongoing or imminent default could irreversibly diminish or impair Vail's golf or mountain operations. In such event, Vail may, upon verbal notice to Avon, take immediate appropriate legal action and seek to enjoin the violation, temporarily or permanently and also may immediately suspend Avon's Easement rights hereunder, including access and use of the Easement by the general public. Upon Avon's cure of such default to Vail's reasonable satisfaction, in Vail sole and absolute discretion, Avon's Easements rights shall be immediately restored and full use of the Easement may be implemented by Avon and the general public. The substantially prevailing party in any action to enforce this Agreement shall be entitled to its reasonable attorneys' fees and court costs. 9. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid. Any such notice or other communication shall be effective when such notice is delivered to the addresses set forth below: If to Vail: Beaver Creek Mountain Operations Attn: Jim Roberts, Vice President P.O. Box 7, Internal Box B I Vail, Colorado 81658 Telephone: (970) 845-5135 Facsimile: (970) 845-5131 With a copy to: If to Avon: Vail Resorts Legal Department Attn: Eric J. Stein, Assistant General Counsel P.O. Box 7, Internal Box 88 Vail, Colorado 81658 Telephone: (970) 845-2650 Facsimile: (970) 845-2667 The Town of Avon Attn: Norman Wood, Town Engineer P.O. Box 975 Avon, Colorado 81620 Telephone: (970)-748-4045 Facsimile: (970)-949-5749 With a copy to: John W. Dunn & Associates, LLC .z Attn: John W. Dunn P. O. Box 7717 Avon, Colorado 81620 Telephone: (970) 748-6400 Facsimile: (970) 748-8881 10. Insurance. Avon agrees to cause Vail to be an additional insured on its commercial general liability insurance for bodily injuries or death of persons or property damage occurring in or about the Easement granted to it pursuant to this Agreement. All such insurance shall (a) generally cover the liability and indemnity obligations assumed by Avon under this Agreement; (b) be primary and noncontributing with any insurance which may be carried by the other party; and (c) provide that said insurance shall not be cancelled or coverage changed unless thirty (3 )0) days' prior written notice shall have been given to Vail. Avon shall furnish Vail with a certificate or certificates evidencing that the required insurance policies are in full force upon written request. 11. StatutoKy Basis. The parties agree that this Agreement is entered into in accordance with the provisions of Colorado Revised Statutes 33 -41 -101, et seq. 12. Miscellaneous. a. Modification. No provision or term of this Agreement may be amended, modified, revoked, supplemented, waived, or otherwise changed except by a written instrument duly executed by the parties hereto. b. Entire Agreement. This Agreement constitutes and incorporates the entire agreement among the parties hereto concerning the subject matter of this Agreement and supersedes any prior agreements concerning the subject matter hereof. C. Separability. If any provision of this Agreement shall be held invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be impaired thereby; nor shall the validity, legality, or enforceability of any such defective provisions be in any way affected or impaired in any other jurisdiction. d. Assignmen. This Agreement is not assignable by Avon without the prior written approval of Vail. e. Third-Party Beneficiaries. Except as provided herein, the agreements contained herein are solely for the benefit of the parties hereto and no other person or entity shall be a third party beneficiary thereof. f Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. n. 9. Authorization. Each party is authorized and empowered to execute this Agreement and all necessary corporate action has been taken to authorize execution of this Agreement. h. Execution. The parties shall execute and deliver such farther documents as may be reasonably required in order to effectuate the intent of this Agreement. i. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original; provided, however, that this Agreement will not become binding upon any party unless and until executed (whether or not in counterpart) by all the parties. j. Recordin . This Agreement shall be recorded with the Clerk and Recorder for the County of Eagle, State of Colorado. k. Run with the Land-, Successors and Assigns. The terms and provisions of this Agreement shall run with the Vail Property and title to the Vail Property and be binding upon and inure to the benefit of the successors and assigns of Vail. Subject to the provisions of Sections 1 (c) and 12 (d) hereof, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of Avon. 1. Rule Against Perpetuities. If any of the terms, covenants, conditions, easements, restrictions, uses, limitations or obligations created by this Agreement shall be unlawful or void for violation of. (i) the rule against perpetuities or some analogous statutory revision, (ii) the rule restricting restraints on alienation, or (iii) any other statutory or common law rules imposing like or similar time limits, such provision shall continue only for the period of the life of Rob Katz, his now living descendants, and the survivor of them, plus twenty-one (2 1 ) years. in. Exhibits. All exhibits attached to this Agreement are incorporated herein by this reference and made a part hereof. n. Provisions Incorporated in Deeds. Each provision contained in this Agreement shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of the Vail Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. DATED the day and year first above written. [Signatures on following pages.] 0 THE VAIL CORPORATION, a Colorado corporation By: — Name: Title: STATE OF COLORADO ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of _, 2006, by Colorado corporation. as Witness my hand and official seal. My commission expires: (SEAL) of THE VAIL CORPORATION, a TOWN OF AVON, a municipal subdivision of the State of Colorado By: Name: Ronald B. Wolfe Title: Mayor STATE OF COLORADO ) ) ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of ,2006, as by Ronald B. Wolfe as Mayor and Patty McKenny as Town Clerk of the Town of Avon. Witness my hand and official seal. My commission expires: I WHOM (EASEMENT PE -04) (SEE ATTACHED) IN DESCRIPTION P'SC'EIVED 4 -201-jrj� A parcel of land PARCEL PE-04, containing 0.186 acres, more or less, situated in Lot 2, Red House, as recorded in the Office of the Clerk and Recorder of Eagle County, Colorado, at Reception No. 743459 on November 7, 2000 and being more particularly described as follows: The True Point of Beginning being at the North west comer of said Lot 2, Red House, common to the intersection of the Southwest comer of Tract A, Nottingham Station, and the easterly right-of- way of Avon Road; Thence S 82'10'14" E a distance of 128.67 feet along the north line of said Lot 2 to a point, Thence along said north line S 36'53'40" E a distance of 111.83 feet to a point; Thence S 41'47'06" W a distance of 35.61 feet to a point; Thence N 37'37'52"W a distance of 71.47 feet to a point; Thence N 62'41'06" W a distance of 58.81 feet to a point; Thence N 68'45'54" W a distance of 80.99 feet to a point on the west line of said lot and on the easterly right-of-way of said Avon Road; Thence N 01'22'56" E a distance of 20.61 feet along said right-of-way to the Northwest comer of said lot and the True Point of Beginning. The above described parcel contains 8,120 square feet {0.186 acres), more or less; I hereby state that the above described legal description has been prepared by me or under my direct supervision. 3 t? E,91 C) 'C 26 7 Date Pr ar ,,�$rby Inter-Mo.Sntai ngine ing P. r9' S—,A &I do i 0 D an F1k&g1T, & P.L.S. 26626 J:`.projec r-vey'YARCEL PE-04.doc i-i'lleton, 80127 0 Ph�nre: 3M 948 62-20 * F, x. 40801 U,S. H',vy. 6, SUiTe _K3 a P.O. Box r 78 a Avon, Colorado 81620 a Phone: 970 949 5072 • Toll Free: 8CPJ 865 Z-1 A-i TRACT A, TRUE POINT NO T TINGHAY S TA PON OF BEGINNING LIJ s82 -70,1 -� w 4 » 128 67' Z. �. • = �- LOT 2, - �'` RED HOUSE NOTE:• THIS DOCUUENT DOES NOT REPRESENT A UONUUENTED SURVEY. lT /S INTENDED OK Y TO DEPICT THE ATTACHED DESCRIPTION TOWN OF AVON PERMANENT FLOATING, WAL KING, CONSTRUCTION, MAINTENANCE AND ACCESS EASEMENT PARCEL PE -04 LOT 2, RED HOUSE rha oba#mwi .o., p rd for ft •raA,s+n °�"" TOWN OF AVON TV w the e of 0%w d,rua+ The tae IME of & dooranrnt a the hrFar oa-* ` aanlaM•d hwlr Ay any othv a LEMAL DE s• m 46 artky M oot onPhahud M fh► evert that arty otha' peawa a ea my d•etao M um thb aimatenart a the m6nneflan omtahed hash tah WOW PARCEL PE -04 IF7r anyp*yoea dhe maN 1Ret ar3 off' sHgr abaenae! a+d any TOWN OF AVON aj h= CoWW •d bath $r htaiaiW to be IAWW 0041 t+� w�-r�d f ,"mr owe a :t' EAGLE COUNTY, COLORADO c (IMPROVEMENTS) (SEE ATTACHED) 11 1 ( i It r I" 1 n It r' It 1 4' � It rn ( It p� 1, 1 m ,5• m."r1, , t r t t i I i �oa� t t 1'y1 !r o m 1,17 —G i , It �� - i7 �/ rt /y�„Y 1�Dr /,( ! 1.�(b 'a �'.�,`f ,' '.l✓^.. 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(D m CID > m -D 0 0 x o 0 IM 0 x. lo ((_D C) Ll Cb 1914 Mm Eagle River @ Avon Recreation Enhancements Ii m r (D 3 < (D ro 0 CD � Ln 0— CL -0 C CL u ro (D 0 -LI Cr 0 (D 0 CID 7 (D 0 :3 < Cn M 0 CD 0 0 7 3 U) (D :3 m 01 O. CO r = 0-0 'a 0 C7 0. C7 cc) (D (D (D U) U) m C (D 0 M 47 r_ 1� �J X nrt' XM C) LO C V) 0 QJ o 0 LO 4- A/ 0 (D 0 LO CL 0 0 7. M. (D C < 3 0 Ln 7 3 TT 4 c ((_D C) Ll Cb 1914 Eagle River @ Avon Recreation Enhancements Ii (D 3 Section View 5cale: P'= 101 � I +L CL -0 C CL u ro -LI Cr 0 (D 0 - U 7 (D 0 :3 < Cn M 7 3 :3 m 01 "J :3 0 LO (D (D U) U) m C (D ID ((_D C) Ll Cb 1914 6 - q Eagle River @ Avon Recreation Enhancements f ...... Baby Bob 5ecton C-C 5ta. 4+65 Section View 5cale: P'= 101 6 - q - FLOW —FLOW I I I I 14 1 - FLOW - FLOW Su 6NaTtM 1.11D rT[Y mr.LE ­k� e, - n. m BOB JR PRECAST ELEVATION II Eagle River @ Avon F' ecreation Enhancements CIVIL DETAILS 2 Bob Junior Pre -Cast 5tructure Scale l" =5' 4 R BOB JR PRECAST ELEVATION II a? 8-5 Eagle River @ Avon F' ecreation Enhancements CIVIL DETAILS 2 Bob Junior Pre -Cast 5tructure Scale l" =5' a? 8-5 JSER 'r, Z: rl --A z r'n Z::r n 7O x rn o Gi 70 n > Zn c 1111 Eagle RIver @ Avon Recreation Enhancements AVON CIVIL DETAIL-9 4 - BMF5, go t Zr: 1111 Eagle RIver @ Avon Recreation Enhancements AVON CIVIL DETAIL-9 4 - BMF5, Care of Water No scale' Eagle RIver @ Avon Recreation Enhancements AVON CIVIL DETAIL-9 4 - BMF5, Care of Water No scale' (PROJECT DEPICTION) (SEE ATTACHED) 12 24' WDE ACCESS EAS I A facjfle Rlver @ Avon Recreation Enhancements €) o f a5ement5,Acce55 and Control ....... - - ----------- 24' WDE ACCESS EAS I A w facjfle Rlver @ Avon Recreation Enhancements €) o f a5ement5,Acce55 and Control 'Ian View 'Gale: I`=10, w REVOCABLE LICENSE AGREEMENT This Revocable License Agreement (this "Agreement "), made to be effective the 15th day of August, 2006, is by and between the Town of Avon, a municipal subdivision of the State of Colorado ( "TOA ") and THE VAIL CORPORATION, a Colorado corporation ( "Vail "). RECITALS: A. Vail is the owner of certain. real estate legally described as Lot 1 and Lot 2, Red House, according to the exemption plat recorded on November 7, 2000 at Reception No. 743459 (the "Vail Property "); and B. Avon desires to construct certain in -river improvements within the Eagle River (the "Construction ") to create a whitewater park for kayaking, rafting and other similar water sports (the "Water Park ") and seeks a temporary license to use portions of the Vail Property to complete such construction, such portions more particularly described in Exhibit A, attached hereto; and C. Vail is willing to provide a license to TOA for the Construction upon the terms and conditions contained in this Agreement. NOW, THEREFORE, in consideration of the mutual promises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, TOA and Vail agree as follows: 1. License. Subject to the terms and conditions of this Agreement, Vail hereby grants to TOA a temporary license ( "License ") to enter upon the Vail Property for the Construction and activities related to completion of those portions of the Water Park located on or immediately contiguous to the Vail Property, which Construction TOA hereby represents and warrants are all in accordance with the plans and specifications heretofore provided to Vail. TOA's use of the Vail Property pursuant to the License shall, at all times, be in compliance with all laws, rules, regulations and other requirements of the TOA, Eagle County and the State of Colorado, as applicable. This License shall automatically expire and terminate upon the earlier of the revocation by Vail in its reasonable discretion or the conveyance of the Vail Property, or any portion thereof, to any third parry, notice of which shall be provided to TOA by Vail, or October 1, 2008 (the "Termination "). 2. Obligations of TOA. In consideration of receiving the License, TOA agrees to comply, at its sole cost and expense, with the obligations as follows: a. Maintenance of the Vail Property free from accumulation of waste materials, rubbish and the like caused by operations on the Vail Property, including, without limitation, appropriate control of the stormwater or sediment run off as may be reasonably directed by Vail; and b. Performance of any and all activities necessitated by any petroleum product or other discharge by TOA, including without limitation, clean up of such discharge according to all rules and regulations of any federal, state or local governmental authority. TOA further agrees to immediately notify Vail in the event of any substance discharge necessitating activity hereunder; and C. To the extent applicable, obtain approval required by all regulatory authorities prior to the commencement of the Construction or other activity related to the Water Park upon the Vail Property, including without limitation, (i) Town of Avon Planning Commission, (ii) the Eagle County Building Department, and (iii) any other municipal or quasi - municipal body or any state, federal or local governmental agency or authority, which controls or may control the activities undertaken by TOA under this Agreement on the Vail Property. 3. Default. If TOA fails to perform in accordance with the terms, covenants and conditions of this Agreement or is otherwise in default of any of the terms of this Agreement, then Vail, after giving ten (10) days' prior written notice to TOA of the alleged default, and upon TOA's failure to cure such breach within said ten (10) days, shall have the option to terminate this Agreement, and in such event, TOA shall vacate and restore the land as described in Section 10 hereof. Moreover, Vail shall also have the option to pursue all remedies available at law or in equity in case of such default. 4. Compliance with Law /Safety Program. TOA warrants that it will comply with all applicable laws, ordinances, rules and regulations having jurisdiction over the Vail Property. TOA shall be responsible for its own safety program and compliance with applicable Occupational Safety and Health Act regulations. 5. Rules and Regulations. All rules and regulations in effect on the Vail Property or access thereto regarding passes, lists of employees, safety and conduct on the Vail Property shall be strictly observed by TOA, its contractors and subcontractors. 6. Insurance. To the extent permitted by law, at all times during the term of this Agreement, TOA and all of its contractors and subcontractors shall carry and maintain, in full force and effect, at their sole cost and expense, the following insurance policies with insurance companies satisfactory to Vail. Such policies shall include a provision requiring a minimum of thirty (30) days' notice to Vail of any change or cancellation. Vail shall be named as additional insureds as its respective interests may appear on the policies listed in Subparagraphs 6(a) and (b). a. Comprehensive general liability insurance in an occurrence format in an amount of $1,000,000 per occurrence, including the following coverages: contractual liability, personal injury, broad form property damage, independent contractors and property operations. b. Comprehensive automobile liability insurance on all vehicles used in connection with this Agreement, in an amount of $500,000 combined single limits for bodily injury and property damage, per occurrence. Red House Lic Agmt 2 C. Worker's Compensation insurance in accordance with the provisions of the Workers' Compensation Act of the State of Colorado for all its employees accessing the Vail Property. Vail requires sole proprietors who are excluded under the Act to carry Workers' Compensation insurance. 7. Delegation/Assignment. TOA shall not delegate its duties under this Agreement or assign this Agreement without the prior written consent of Vail, which consent shall not be unreasonably withheld but shall be at Vail's sole and absolute discretion. 8. Costs and Indemnification. a. TOA shall be solely responsible for all costs and expenses related to the Construction on the Vail Property and all building permit or other fees applicable to same, and Vail shall have no obligation to share in same with TOA. b. (i) To the extent permitted by law, TOA hereby covenants and agrees to indemnify, defend and hold harmless Vail and their respective employees, officers, directors and affiliates of and from any and all liability, claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury, including death, of any person or damage to property of any kind arising in connection with TOA's activities and operations on the Vail Property and the Construction on the Vail Property, including without limitation, (a) those caused by TOA's operations or the misconduct or negligent acts, errors or omissions of TOA, its Contractors, Subcontractors, materialmen or any person directly or indirectly employed or engaged by them, or any of them, while conducting any activity associated with TOA's activities and operations on the Vail Property or related thereto, or (b) those arising out of or related to alleged contamination of the Vail Property by any hazardous or toxic substance, pollutant or contaminant, including petroleum, or alleged injury or threat of injury, health or safety or the environment, or alleged noncompliance with any federal, state or local environmental statues, regulations, ordinances, permits, approvals or orders, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et.sea., as amended from time to time, or under any common law claim, including claims for personal injury or property damage or for any claim by any governmental or private party for remedial or removal costs, natural resource damages, property damages, damages for personal injuries, or other costs, expenses or damages or any claim for injunctive relief arising from any alleged injury or threat of injury or threat of injury to health, safety or the environment relating to the Vail Property arising or resulting from TOA's entry upon the Vail Property pursuant to the License and the Construction and related activities of TOA on the Vail Property. (ii) In all cases, TOA shall to the extent permitted by law defend, indemnify, and hold harmless Vail from and against all costs, expenses, liabilities and damages (including reasonable attorneys' fees and expenses of litigation) incurred by Vail as a result of the filing or assertion of a mechanic's or materialmen's lien against the Vail Property or any part thereof as a result of TOA's use of the Vail Property and the Construction thereon. Red House Lic Agnit (iii) TOA agrees not to permit or suffer and, to the extent so permitted or suffered, shall cause to be promptly removed and released (whether by bonding over or otherwise) any such lien on account of supplies, machinery, tools, equipment, labor or materials furnished or used in connection with the Construction on the Vail Property. Vail may, at its option and at TOA's cost and expense, with the assistance of attorneys of Vail's choosing, enter into, defend, prosecute or pursue any effort or action (whether or not litigation is involved) which Vail deems reasonably necessary to defend itself and the Vail Property from and against all claims or liability arising by, through, under or in connection with TOA as set forth herein. C. The provisions of this Section 8 shall survive the Termination. 9. Access. As of the date of this Agreement, TOA acknowledges and agrees that there is a parking lot on the Vail Property which TOA must access to conduct the Construction and agrees and acknowledges it shall store any Construction or other vehicles in said parking lot nor damage it any way. 10. Restoration of the Vail Property. Upon the Termination or in the event of a uncured default hereunder, TOA shall promptly remove the all Construction- related equipment and materials from the Vail Property and restore the Vail Property, at TOA's sole cost and expense, to a condition reasonably acceptable to Vail, which condition may include leveling of the currently uneven site and leaving any construction or crane support pad(s) in place, provided Vail shall provide direction on what is acceptable restoration, and TOA shall be permitted to continue to access the Vail Property until such removal and restoration are completed but no later than October 1, 2008. In the event the removal and restoration are not completed by October 1, 2008, Vail may complete such work and TOA shall pay all documented invoices for such work within thirty (30) days of receipt from Vail. 11. Miscellaneous. a. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. b. In case any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good -faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. C. Each reference herein to a party hereto shall be deemed to include its successors and assigns, all of whom shall be bound by this Agreement and in whose favor the provisions of this Agreement shall inure. d. This Agreement may be executed in counterparts which when taken together shall constitute the entire agreement of the parties. This Agreement may be transmitted Red House Lie Agint 4 by telefax copier and the parties agree that their signature transmitted by telefax will constitute a duly executed counterpart of the Agreement. IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and the date above written. TOWN OF AVON, a municipal subdivision of the State of Colorado By:_ Name: Title: THE VAIL CORPORATION, a Colorado corporation By:_ Name: Title: Red House Lc Agna Exhibit A (Attached to and forming part of the Revocable License Agreement by and between the Town of Avon and The Vail Corporation dated August 15, 2006) Description of Construction Storage and Equipment Locations (attached) A-1 .�y^^ PARCEL TCL-05 DESCRIPTION A;arcel of land PARCEL TCL-05, containing O'406 acres, more or less, situated in Lots l and 2, Red House, as recorded in the Office of the Clerk and Recorder of Eagle County, Colorado, at Reception No. 74]459on November 7,2000 and being more particularly deecd6edusbJ{vn/s: Commencing mt the North west comer of said Lot 1^ Red House, common 10 the intersection of the Southwest corner oC Lot 2` and the easterly r{ebt-nf-wuynf Avon Road; Thence S 52"38'}9-£u distance o[l2l.lO feet tou point on the north dgbt-of-wayofD.S. Highway 6 and the South line o[ said Lot l, and the True Point nfBeginning; Thence 372"l9'32''E adi stance o{25 .42 along the easterly rigbC-o['vvuyo[ Avon Road toa point, Thence N\O»O0^l5" Wa distance of97.Q3 feet 1oupoint, Thence hJ00"44`l5`'VVo distance of3.D5 feet u`upoint; Thence N82"}6`45,'Eu distance o/99.4l feet 1ou point; Tbooue N07"23^l5" Wu distance nfj9.58 feet toapoiot-, Thence I458"34'34^`Wa distance oflO6.Ol feet ooupoint; Thence N2l"l7`O4^Bu distance uf24.73 feet /oapoint; Thence N68"44`4A" Wa distance of05.96 feet iou point oo the easterly rigkt-o/-vvayofAvon Road; Thence along the easterly hebt+of-vvuvof said Avon Road the following two (2)courses; l.> 30L"22'56^VVa distance of26.02;Thence I) S2O"53^2D" W a distance uf54.00 feet \oupoint; Thence 88\"53`57^Eu distance of48.V6 feet to point; Thence S 00'09'21 " Wa distance of 109.96 feet to a point on the common lot line of said Lots l and 2" O382Conbnont�a!DWoo Road, Suite J lO7 ° L�fe�on.Cola, adu80}27 ° Phone: 3039496220° 7ax:D03 248 652,6 4OSn� US H�y �. Sui'n2O3 ° RO' [�cx978 ° Avon. Odo�do 81620 ° Phone: 970 �49 5072 ° TN|F-ee: BOOG 6 O Thence S 12 °52'37' E a distance of 74.41 feet to the Northerly right -of -way of said Highway 6 and the True Point of Beginning, The above described parcel contains 17,695 square feet (0.406 acres), more or less; I hereby state that the above described legal descriptt eq M04 d by me or under nay direct supervision. _. Date P.{7. Bo "'� Oh' ratio 8} 0 Duane D. Fe. E. & P.S. 26626 J:`\projects`,150156S \survey \.P4R EL TCL.- 05.doc POINT OF COMMENCING` PARCEL PARCEL TE- 1701 PE -1701A RE-C. 65J408 % Zt - TRUE POINT OF BEGINNING LOT 1, RED HOUSE A VON ROAD RIW VA RlrS 0 Sir S01 '.22'56 "W W4 IV07E.• NIS DOCUMENT DOES NOT REPRESENT A MONUMEN TED SURVEY I r /5 IN 7E,1vDE,,o OIVL )e TO DEPICT ME A TrA CHED DESCRIPTION, 0 tt 2P,37 A� CV TRUE POINT OF BEGINNING LOT 1, RED HOUSE A VON ROAD RIW VA RlrS 0 Sir S01 '.22'56 "W W4 IV07E.• NIS DOCUMENT DOES NOT REPRESENT A MONUMEN TED SURVEY I r /5 IN 7E,1vDE,,o OIVL )e TO DEPICT ME A TrA CHED DESCRIPTION, 0 To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norm Wood, Town Engineer Jeffrey Schneider, Engineer II Date: August 1, 2006 Re: 2006 Street Improvements Elam Construction, Inc. — Change Order 002 Summary: The 2006 Street Improvements project generally consists of two sections: Section 1 is a mill and overlay of Avon Road from Roundabout 1 to Roundabout 3, and Section 2 is an overlay of Wildridge Road from Wildwood Road to Beartrap Road, with the portion from Old Trail Road to Beartrap Road widened to include a pedestrian lane. Change Order 002 is proposed to add an asphalt curb to supplement the existing curb on Wildridge Road, as well as quantity adjustments between field quantities and plan quantities. Discussion: Wildridge Road has an asphalt curb along the guardrail in areas to direct drainage away from the steep hillside, thereby minimizing any undermining of the fill slope. During paving operations, it was unclear as to whether or not the curb should be augmented or repaired, so the overlay merely terminated at the base of the curb. Upon field review by Gary Padilla, Streets and Roads Superintendent, he demonstrated a desire to repair the curb. Change Order 002 is attached as Exhibit A. Other items in Change Order 002 include additional curb and gutter on Avon Road from sidewalk widening, asphalt overlay quantity adjustments for Avon Road and Wildridge Road, removal of a road base quantity from Wildridge Road, and full -depth asphalt quantity adjustment from Wildridge Road. The large additional overlay quantity from Wildridge Road is due to areas with wider roadway cross - sections in areas, and the overlay of the pullout area at the first switchback on Wildridge Road. C:ADocuments And Settings \Nwood \Local Settings \Temporary Internet Fi1es \0LK23 \E1am C.O. 2 Memo 1. Doc I Change Order 002 will also authorize a change in contract time to allow Elam Construction to perform the Asphalt Curb work. The date of completion for all work will be changed from August 1, 2006 to September 1, 2006. Change Order 002 is summarized below: Item Description Quantity Unit Unit Price Total Price Traffic Control (Asphalt Curb) 1 DAY $817.50 $817.50 Asphalt Curb Installation 200 LF $7.50 $1,500.00 Mobilization (Asphalt Curb) 1 LS $425.00 $425.00 30" Curb and Gutter in place 92 SF $32.00 $3,104.00 Avon Road Asphalt Overlay -39.61 TN $69.00 ($2,733.09) Full Depth Asphalt -144.6 TN $68.00 ($9,832.80) Wildridge Road Asphalt Overlay 289.92 TN $57.50 $16,670.40 Class 6 Roadbase 0 +00 — 32 +00 (Wildridge Rd.) -50 CY $38.50 ($1,925.00) Totals $8,026.01 The total value of Change Order 002 with Elam Construction, Inc. is an increase of $8,026.01 to the construction contract. Financial Implications: The current budget for the 2006 Street Improvement Project is summarized below: Design $ 25,000 Construction $ 509,460 Contract Administration (Testing, etc.) $ 10,000 Administration $ 5,500 Contingencies $ 15,040 Total Proposed Budget $ 565,000 The revised project budget per adoption of Change Order 002 is summarized below: Design $ 25,000 Construction $ 517,490 Contract Administration $ 10,000 Administration $ 5,500 Contingencies $ 7,010 Total Revised Project Budget $ 565,000 C:ADocuments And Settings \Nwood \Local Settings \Temporary Internet Fi1es \0LK23 \E1am C.O. 2 Memo 1.Doc 2 Recommendations: Staff recommends approval of Change Order 002 to the contract with Elam Construction in the amount of $8,026.01 for installation of additional asphalt curb on Wildridge Road and for quantity adjustments from Avon Road and Wildridge Road. I move to approve Change Order 002 to the contract with Elam Construction in the amount of $8,026.01 for installation of additional asphalt curb on Wildridge Road and for quantity adjustments from Avon Road and Wildridge Road. Attachments: Exhibit A — Change Order 002 Town Manager Comments: C:ADocuments And Settings \Nwood \Local Settings \Temporary Internet Fites \0LK23 \Elam C.O. 2 Memo I.Doc Order No.: 002 Date: August 2, 2006 Agreement Date: March 30, 2006 NAME OF PROJECT: 2006 Avon Street Improvements OWNER: Town of Avon. Colorado CONTRACTOR: Elam Construction Inc. The following changes are hereby made to the CONTRACT DOCUMENTS: Item Descriptio Quantity Unit Unit Price Total Price Traffic Control (Asphalt Curb) 1 DAY $817.50 $817.50 Asphalt Curb Installation 200 LF $7.50 $1,500.00 Mobilization (Asphalt Curb) 1 LS $425.00 $425.00 30" Curb and Gutter in place 92 SF $32.00 $3,104.00 Avon Road Asphalt Overlay -39.61 TN $69.00 ($2,733.09) Full Depth Asphalt -144.6 TN $68.00 ($9,832.80) Wildridge Road Asphalt Overlay 289.92 TN $57.50 $16,670.40 Class 6 Roadbase 0 +00 — 32 +00 ( Wildridge Rd.) -50 CY $38.50 ($1,925.00) Totals $8,026.01 Justification: Addition of the asphalt curb will help correct drainage issues on Wildridge Road. Other items are to correct from bid quantities to actual field quantities. Change to CONTRACT PRICE: $ 8026.01 Original CONTRACT PRICE: $497,400.65 Current CONTRACT PRICE adjusted by previous CHANGE ORDER: $509,360.65 The CONTRACT PRICE due to this CHANGE ORDER will be increased by: $8026.01 The new CONTRACT PRICE including this CHANGE ORDER will be $517,386.66 Change to CONTRACT TIME: • �SITIVI I L • Approved by Engineer: Accepted by Contractor: Accepted and Approved by Owner: Contract Date will change from August 1, 2006 to September 1, 2006 CO -1 I J1 L:j I I To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norm Wood, Town Engineer V-/ Jeffrey Schneider, Engineer 11 Date: August 1, 2006 Re: Site Resource Management, Inc. — Change Order 002 Summary: The Swift Gulch Road Bike Path project generally consists of extending the existing Swift Gulch Road Bike path from its current terminus near the Town of Avon Public Works Facility to Roundabout 1, immediately north of the Interstate 70 West off -ramp, also consisting of demolition and removal of the Town of Avon entry monument sign. Change Order 002 includes items that were field changes, minor corrections to construction drawings, and quantity adjustments. Also, the installation of four additional signs originally included in the project and moved to the Street Improvements project, but omitted from the Street Improvement Project as a bid item were added to the Swift Gulch Road Bike Path Extension. The project is substantially completed and no additional change orders are anticipated. Discussion: The following line items are included in Change Order 2 for the Swift Gulch Road Bike Path Extension: Sand and paint railing at drainage headwall, 1 lump sum (LS) at $550.00, extending the new pedestrian rail, 1 LS at $1,034.00, extending the removable bollards (plans were incorrect) 1 LS at $220.00, change the 24" reinforced concrete pipe (RCP) to 36" RCP, 28 linear feet (LF) at $36.00 /LF totaling $1,008.00, relocating the 36" pipe originally scoped as 24" pipe, 1 LS at $100.00, and adding the path signs not included in the original scope, 4 each (EA) at $225.00 totaling $900.00. The total value of Change Order 002 is the addition of $3,812.00 to the contract with Site Resource Management, Inc. C:ADocuments And Settings \Nwood\Local Settings \Temporary Internet Fi1es \0LK23 \C.0. 2 Memo.Doc I Financial Implications: The current budget for the Swift Gulch Road Bike Path Extension is summarized below: Design $ 33,000 Construction $ 253,245 Contract Administration (Testing, etc.) $ 10,000 Administration $ 5,000. Contingencies $ 23,755 Total Project Budget $ 325,000 The revised project budget per adoption of Change Order 2 is summarized below: Design $ 33,000 Construction $ 257,057 Contract Administration $ 10,000 Administration $ 5,000 Contingencies $ 19,943 Total Project Budget Recommendations: $ 325,000 Staff recommends approval of Change Order 002 to the contract with Site - Resource Management in the amount of $3,812.00 for field adjustments and minor additions to the Swift Gulch Road Bike Path Extension. Proposed Motion: I move to approve Change Order 002 to the contract with Site Resource Management in the amount of $3,812.00 for field adjustments and minor additions to the Swift Gulch Road Bike Path Extension. Attachments: Exhibit A — Change Order 001 C: \Documents And Settings\Nwood \Local Settings \Temporary Internet Files \0LK23 \C.0. 2 MemO.Doc 2 Town Manager Comments: C:ADocuments And Settings \Nwood\Local Settings \Temporary Internet Files \OLK23 \C.O. 2 Memo.Doc Order No.: 002 Date: August 1, 2006 Agreement Date: _April 12.,_2006_ NAME OF PROJECT: CIP 34010 Swift Gulch Bike Path Extension OWNER: Town of Avon Colorado CONTRACTOR: Site Resource Management, Inc. The following changes are hereby made to the CONTRACT DOCUMENTS: Item Description Quantity Unit Unit Price Total Price Sand and Paint headwall railing 1 LS $550.00 $550.00 Pedestrian Rail Extension 1 LS $1,034.00 $1,034.00 Bollard Extensions 1 LS $220.00 $220.00 Change 24" RCP to 36" RCP 28 LF $36.00 $1,008.00 Relocate 36" ES, not 24" 1 LS $100.00 $100.00 Add Path Signs 4 EA $900.00 $900.00 Total $3,812.00 Justification: These items are minor field changes encountered during construction. The headwall railing was additional work to match the new railing. Extending the railing was to improve the design to better meet field conditions. The bollard extension and the culvert work was to correct errors in the construction drawings discovered during construction. Finally, the additional path signs were added because the signs were originally included in the work, then removed and were omitted from the Street Improvements project. Change to CONTRACT PRICE: $ 3,812.00 Original CONTRACT PRICE: $ 244,488.35 The CONTRACT PRICE due to this CHANGE ORDER will be increased by $ 3,812.00 The new CONTRACT PRICE including this CHANGE ORDER will be $ 256,545.35. Change to CONTRACT TIME: N/A Approved by Engineer: Accepted by Contractor: Accepted and Approved by Owner: CO -1 JT= To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: August 3, 2006 Re: Design Workshop Proposal for Additional Design Services Transit Center Snowmelt System Summary: Design Workshop submitted the attached Proposal (Exhibit A) for Additional Services for Avon Town Center West Transit Center for snowmelt system design. The Proposal is for the necessary design and construction drawings for an enclosed snowmelt mechanical room to be used as a "bid alternate" in the bid process. The snowmelt system design will be specifically for the transit center site improvements. The proposed Scope of Services include: • Selection of appropriate site location for the vault enclosure • Structural design of enclosure • Necessary civil engineering design to provide required utilities to enclosure • Mechanical, electrical and plumbing design for equipment & connections • Revise site landscape architecture design to incorporate enclosure into site plan • Create necessary site, civil and MEP details and specifications The proposed cost of these additional services is $18,950.00 plus incidental expenses such printing, copying, faxing, travel, etc. This proposal is in addition to the original Design Services Agreement in base amount of $99,122.50 for total design services of $118,072.50. In the attached transmittal (Exhibit B) from Steven Spears, the approximate construction cost of the alternate snowmelt boiler system is projected to be about $250,000. We recommend approval of the Design Workshop Proposal for Additional Services for Design of Alternate Transit Center Snowmelt System in the amount of $18,950.00 plus incidental expenses. I:AEngineering \CIP \Transportation Center\2.0 Contract Services\2.3 Design Arch\Design Workshop Addnl- Memo.Doc Recommendation: Approve the Design Workshop, Inc. Proposal for Additional Design Services for Design of Alternate Snowmelt System for Avon Town Center West Transit Center in an amount not to exceed $18,950.00 plus reimbursable expenses. Proposed Motion: I move to approve the Design Workshop, Inc. Proposal for Additional Design Services for Design of Alternate Snowmelt System for Avon Town Center West Transit Center in an amount not to exceed $18,950.00 plus reimbursable expenses. Town Manager Comments: Attachments: Exhibit A: Design Workshop, Inc. Proposal for Additional Design Services for Alternate Snowmelt System for Town of Avon Transit Center Exhibit B Transmittal Memo from Steven Spears I:\ Engineering \CIP \Transportation Center\2.0 Contract Services\2.3 Design Arch\Design Workshop Addnl- Memo.DocO Page 2 'LX111Ig e r "4 "- August 03, 2006 Mr. Norman Wood 400 Benchmark Road Avon, Colorado 81620 Additional Services for: Avon Town Center West Transit Center Add Service Number: 001 Dear Norman: This letter is a request for approval to complete Additional Services associated with the Avon Town Center West Transit Center. Based on our previous conversations regarding the project, we understand that the following services will be required: I. Prepare necessary design and construction drawings for an enclosed snowmelt mechanical room to be used as a "bid alternate" during the bidding process of the project. The design of this snowmelt system will be specifically for the transit center site improvements. The Design Workshop team will provide the following scope: Selection of appropriate site location for the vault enclosure ❑ Structural design of the enclosure E Necessary civil engineering design to provide applicable utilities to the enclosure (ie. sewer, water, gas, electricity) Necessary mechanical, electrical and plumbing (MEP) engineering design to provide the necessary equipment, connections, etc. Necessary site landscape architecture design to provide any changes to site elements, planting or materials plan Creation of necessary site, civil and MEP details and specifications By signing this letter, you are authorizing Design Workshop, Inc. to commence services immediately for a fee of $18,950. This fee does not include expenses such as printing, copying, faxing, travel, etc. The contract conditions of existing contractual agreement shall be binding on these additional services unless modified herein. Please call Steven Spears at 970.925.8354 if you have any questions regarding this request for additional services. C: \Documents and Settings \Sspears\Desktop \060803_avon transit add service Ldoc Sincerely, DESIGN WORKSHOP, INC. Don Ensign Principal "M 9 9:11911 N 1111] Me II I a I z 11 F m Title: Date: Page 1 of 1 . ... ............... From: SSpears @DesignWorkshop.com Sent: Thursday, August 03, 2006 8:17 AM To: Norman Wood Cc: Tambi Katieb Subject: add service for transit center Norman Per your request, I have prepared an add service proposal for the transit center. I heard back from all of our team members (civil, structural, MEP) that will need to work on this service. Their fee is included as part of this add service proposal. The add service proposal is for design and engineering of a structural vault that will house the snowmelt boiler system for the transit center. Associated services will also include necessary civil engineering, MEP engineering and site landscape architecture. We anticipate that the housing of the snowmelt boiler system will run in the ballpark of $250,000 (construction costs). I wanted to share that with you for budgetary purposes. We will create the drawings as a bid - alternate to the construction document bidding process. Thanks. Steven Steven Spears Associate S ± I (fl' TOWN OF AVON, COLORADO REGULAR COUNCIL MEETING FOR TUESDAY, AUGUST 8, 2006 To Be Held at the Wildridge Fire Station Located At 2120 Saddle Ridge Loop MAYOR MAYOR PRO TEM COUNCILORS PRESIDING OFFICIALS RON WOLFE TAMRA NOTTINGHAM UNDERWOOD DEBBIE BUCKLEY KRISTI FERRARO MAC McDEVITT AMY PHILLIPS BRIAN SIPES i..�l TOWN STAFF TOWN ATTORNEY: JOHN DUNN TOWN CLERK: PATTY MCKENNY TOWN MANAGER: LARRY BROOKS ASSISTANT TOWN MANAGER: JACQUIE HALBURNT THIS MEETING IS OPEN TO THE PUBLIC; COMMENTS FROM THE PUBLIC ARE WELCOME ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW.AVON.ORG, FOR MEETING AGENDAS AND COUNCIL MEETING MATERIALS AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND CITY MARKET THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH "OPEN HOUSE" AGENDA MEETING BEGINS AT 3:30 PM 3:30 PM- 5:30 PM 1. OPEN HOUSE TO OBTAIN PUBLIC INPUT ON WEST AVON TRAIL SYSTEM (Matt Pielsticker, Planner, Jennie Hursey, GIS Programmer /Planning Analyst) Review of existing recreation trails in and around Avon / Beth Boyst, US Forest Service will be available to answer questions 5:30 PM 2. ADJOURNMENT Avon Council Meeting. 06.08.08 Page 1 of 3 b AM To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Jennie Hursey, GIS Programmer Matt Pielsticker, Planner 1 5� Date July 31, 2006 Re: Avon Trails - Open House Work Session Summary: The primary goal of this Open House is to review existing recreation trails in and around Avon, and to collect data and understand use patterns of these trails by Avon residents. There are numerous trails in the area, some within Town limits and others bordering in Forest Service lands. Some of these trails have developed into difficult management situations. This planning exercise is a precursor to a National Forest Service scoping effort anticipated in the coming year for the non-motorized management plan. The Town must identify which trails are worth preserving and which may need to be closed in order to create sustainable 'system' trails. Collaboration with other entities is of utmost importance to help develop and manage interconnected trails. To this date the Singletree Property Owners Association (SPOA), National Forest Service, Department of Wildlife, and Town Staff members have held several joint meetings to discuss collaboration opportunities. Trail management was identified as a priority in the update Comprehensive Plan. Attached to this Memo is the 'Parks, Recreation, Trails and Open Space' section from the Comprehensive Plan. Some of the highlighted goals and policies follow: Policy LZI: Participate in travel management planning by the U.S. Forest Service to ensure that adequate development and long-term maintenance of trails and trailheads are meeting the town's needs. Policy 1.I.3: Integrate the town's recreational trail system with the regional trail systems (ECO Trails, U.S. Forest Service, and BLM) Goal 1.1: Provide and exceptional system of trails to serve the year-round leisure needs of area residents and visitors. Staff will present a brief presentation during this Council Work Session that will be followed by an open review of the trail maps developed by staff. We encourage public input from property owners and trail users in the form of a dot voting exercise and questionnaires. Memo to Town Council, August 8, 2006 Open House Page I of 2 Re: Avon Trails The objective of this meeting is to receive input on trail use and to understand which trails are most important to Avon residents. This dialogue will help inform the United States Forest Service scoping process. Attached to this Memo is a map provided by staff showing some of the various trails in the focus area. There will be large scale maps for review on the night of the open house. Memo to Town Council, August 8, 2006 Open House Page 2 of 2 Re: Avon Trails Goals and Policies 1. Parks, Recreation, Trails and Open Space Goal 1.1: Provide an exceptional system of parks, trails, and recreational programs to serve the year -round leisure needs of area residents and visitors. Policy 1.1.1: Require new residential and resort developments to incorporate recreational amenities that are accessible to the public. Policy 1.1.2: Continue to evaluate and acquire parcels or easements for open space, trails, and recreation. Policy 1.1.3: Integrate the town's recreational trail system with the regional trail systems (ECO Trails, U.S. Forest Service, and BLM). Policy 1.1.4: Require new annexations and developments to include or otherwise contribute to land for trails, open space, and recreation purposes. Policy 1.1.5: Coordinate with Eagle County and other government and non- profit agencies in planning, protecting, and managing public open space, and in providing access and linkage opportunities. Policy 1.1.6: Conduct a master plan study of Nottingham Park so that potential program enhancements can be identified to better activate and enhance the park as Avon's primary recreational and cultural center. Town of Avon Comprehensive Plan; Page 61 a t Goals and Policies Policy 1.1.7 Develop a river front park that connects the Eagle River to the Town Center Districts and Nottingham Park. Goal 1.2: Coordinate and collaborate with surrounding jurisdictions and agencies to develop seamless recreational opportunities. Policy 1.2.1: Participate in travel management planning by the U.S. Forest Service to ensure that the adequate development and long-term maintenance of trails and trailheads are meeting the town's needs. Policy 1.2.2: Collaborate with other recreation providers such as Western Eagle County Metropolitan Recreation District and private homeowners associations to discuss joint use of facilities and coordinated event planning. Policy 1.2-3: Prevent U.S. Forest Service and BLM land swaps within the 3- mile planning area. J. Public Services, Facilities, Utilities and Government Goal J.11: Utilize this comprehensive plan in all town dealings including capital planning, operation/maintenance of facilities, and programming of events. Policy J.1.1: Consistently adhere to established policies and regulations. Policy J.1.2: Analyze town spending to assure that the priorities of this comprehensive plan are being considered for implementation. Goal J.2: Ensure cost effective provision and development of public facilities and services. Town of Avon Comprehensive Plan Page 62 Trails Open House Questionnaire �,,, August 8, 2006 AVON C O L O R A D O 1) What trail(s) would be most important to preserve in Avon, and why? 2) Should Avon trails be non - motorized? 3) There is one established trailhead (with parking) on Swift Gulch Road. Would you like to see more trailheads? 4) What are the major issues you see facing the management of Avon Trails? (i.e. erosion, motorized/non-motorized conflict, wildlife mitigation) 6) How do you use the trails? (i.e. walk, run, bike, pets, motorized) 6) Would you like to see overnight parking areas? 7) Would you be willing to help police /manage the future Wildridge Trail System? 8) What are you thoughts on closing off "cut acrosses" and /or creating more single -track of the current trail system? 9) Are you willing to volunteer your time to help re -veg erosion areas and create or maintain the trail system? Your Name: E -Mail: