TC Ord. No. 2003-08 Approving the second amendment to the annexation and development agreement for the village at avonINp~,IIIVIIIIUIN~IWUIIII~N ~ IINIMI~N~ =~~~8;.. Simonton TOWN OF AVON. COLORADO
ORDINANCE NO. 03-08
SERIES OF 2003
AN ORDINANCE APPROVING THE SECOND AMENDMENT (THE "SECOND
AMENDMENT") TO THE ANNEXATION AND DEVELOPMENT AGREEMENT FOR
THE VILLAGE (AT AVON)
WHEREAS, the Town of Avon (the "Town") and Traer Creek Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado (the "District"),
and Traer Creek LLC, a Colorado limited liability company, EMD Limited Liability Company, a
Colorado limited liability company (collectively, the "Owner), have negotiated the terms and
conditions of the Second Amendment, which is attached hereto as Exhibit "A" and incorporated
herein; and
WHEREAS, the Town has timely posted notice of the dates and times of the meetings at
which the Town Council considered the Second Amendment; and
WHEREAS, the proposed full text of this Ordinance was duly published by posting in the
office of the Town Clerk and in three (3) additional public places within the Town, and said
publication also set forth the date and time of the public hearing at which the Town Council
considered the Second Amendment; and
WHEREAS, an Intergovernmental Agreement Between the County of Eagle, State of
Colorado and Traer Creek Metropolitan District and Eagle Vail Metropolitan District for the
Construction of Pedestrian Trail Improvements Along Highway 6 dated April 22, 2003 (attached
hereto as Exhibit `B) requires modification of the terms and conditions of the Highway 6 trail
exaction; and
WHEREAS, approval of the Second Amendment is in the best interest of the public
health, safety and general welfare of the people of the Town; and
WHEREAS, the Town Council held a public hearing concerning the Second
Amendment, and by this Ordinance sets forth its findings and conclusions.
THE TOWN COUNCIL MAKES THE FOLLOWING FINDINGS AND
CONCLUSIONS:
1. The Second Amendment complies with all applicable laws and regulations of the
State of Colorado and the Town, including, without limitation, Article 68 of
Title 24, C.R.S.
2. All notices required for the public hearing at which the Town Council considered
the Second Amendment were properly and timely published, posted or mailed in
accordance with all applicable laws and regulations of the State of Colorado and
the Town.
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3. _ The public hearing held on the Second Amendment was conducted in accordance
with all applicable laws and regulations of the State of Colorado and the Town.
4. The Town has authority to enter into the Second Amendment pursuant to
Sections 24-68-104(2) and 31-15-101, C.R.S., and pursuant to Section 17.14.100
of the Avon Municipal Code.
5. Pursuant to Section 24-68-103(1), C.R.S., approval of the Second Amendment
will not restrict, impair, enlarge, or otherwise modify either the term or the scope
of the vested property rights associated with the Development Agreement.
6. The Town's approval of and entering into the Second Amendment is in the best
interests of the public health, safety and general welfare of the people of the
Town.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO,
A. The Second Amendment is hereby approved, and the Town shall enter, into
it and perform its obligations.
B. The Mayor of the Town is hereby directed to sign the Second Amendment
on behalf of the Town.
C. Within. fourteen (14) days after passage on Second Reading of this
Ordinance, the Town Clerk is hereby authorized and directed to publish
the full text of this Ordinance in a newspaper of general circulation within
the Town.
The effective date of this Ordinance shall be seven (7) days after publication of the notice
described in Section C above.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
PUBLISHED this' 13th day of May, 2003, and a public hearing on this Ordinance shall be held
at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 27th day of
May, 2003, at 5:30 p.m. in the Avon Municipal Complex, 400 Benchmark Road, Avon,
Colorado.
Town of Avon, Colorado
Town Council
Albert D. Reynolds, M yor
2
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ATTEST:
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P1attv cKennv. Clerk e ••~po
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED THIS 27th DAY OF May, 2003.
Town of Avon, Colorado
Town Council
?0',gFa OF Aye
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ATTEST. i ' '1 ,
Mc
Pa Mc fenny, nClerk
a~x
Albert D. Reynolds, 14ayor
Ink JNMnItoIINIVeVIIIIII~NInIIVII~~u 8=223 of '~g.~
APPROVED AS TO FORM:
576178.1
To ttorney
STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE
27TH DAY OF MAY 2003, AT THE TOWN OF AVON MUNICIPAL BUILDING
FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE
FOLLOWING ORDINANCES:
Ordinance No. 03-08, Series of 2003, An Ordinance Approving the
Second Amendment to the Annexation and Development
Agreement for The Village (at Avon)
Ordinance No. 03-09, Series of 2003, An Ordinance Amending
Ordinance No. 83-20, Series of 1983, Granting a Franchise to Public
Service Company of Colorado.
A copy of said Ordinances are attached hereto, and are also on file at the
office of the Town Clerk, and may be inspected during regular business hours.
Following this hearing, the Council may consider final passage of this
Ordinance. This notice is given and posted by order of the Town Council of
the Town of Avon, Colorado
TOWN OF AVON, COLORADO
BY: P-'q A. ~
P cKenn
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF
AVON ON MAY 15, 2003
AVON MUNICIPAL BUILDING, MAIN LOBBY
ALPINE BANK, MAIN LOBBY
AVON RECREATION CENTER, MAIN LOBBY
CITY MARKET, MAIN LOBBY
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STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN THAT THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO ADOPTED ON THE 27TH DAY OF MAY 2003 THE FOLLOWING
ORDINANCES:
Ordinance No. 03-08, Series of 2003, An Ordinance Approving the Second
Amendment to the Annexation and Development Agreement for The Village (at
Avon)
Ordinance No. 03-09, Series of 2003, An Ordinance Amending Ordinance No.
83-20, Series of 1983, Granting a Franchise to Public Service Company of
Colorado.
A copy of said Ordinances are attached hereto, and are also on file at the office of the
Town Clerk, and may be inspected during regular business hours.
This notice is given and posted by order of the Town Council of the Town of Avon,
Colorado
TOWN OF AVON, COLORADO
BY. PAC 1
Pat Mc enn
To rk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
May 29, 2003
AVON MUNICIPAL BUILDING, MAIN LOBBY
ALPINE BANK, MAIN LOBBY
AVON RECREATION CENTER, MAIN LOBBY
CITY MARKET, MAIN LOBBY
Teak J Simonton
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"1"
SECOND AMENDMENT
TO ANNEXATION AND DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT
AGREEMENT (this "Second Amendment") is made as of m" 31 2003, by and
between TRAER CREEK LLC, a Colorado limited liability company ("Traer'), EMD
LIMITED LIABILITY COMPANY, a Colorado limited liability company ("EMD'J, and the
TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town').
RECITALS
A. Traer and EMD (collectively, "Owner") and the Town have previously executed
that certain First Amendment to Annexation and Development Agreement dated as of November
13, 2001, and recorded in the Eagle County, Colorado, real property records at Reception
No. 779049 on December 10, 2001 (the "First Amendment"), which First Amendment
amended that certain Annexation and Development Agreement dated as of October 13, 1998,
and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on
November 25, 1998 (the "Original Agreement"). The Original Agreement, as so amended, is
referred to in this Second Amendment as the "Agreement."
B. The Agreement pertains to certain real property generally known as The Village
(at Avon), and more particularly described in Exhibit A attached to the Agreement (the
"Property")-
C. Section 1.4 of the Agreement provides, inter alia, that amendments to the
Agreement must be effected in a writing signed by the Town and Owner. Section 1.4 of the
Agreement further provides that the term "Owner" for purposes of amending the Agreement
means "only the signatories to this Agreement constituting Owner and those parties, if any, to
whom such signatories have specifically granted, in writing, the power to enter into such
amendment." As more particularly set forth in Recital B of the First Amendment, EMD (with
respect to Planning Area M) and Traer (with respect to the remainder of the Property) constitute
Owner for purposes of amending the Agreement.
D. Subsequent to execution of the Agreement, portions of the Property have been
subdivided as more particularly described in the Final Plat, The Village (at Avon) Filing 1,
recorded in the Eagle County, Colorado, real property records on May 8, 2002, at Reception
No. 795007 ("Filing 1"), and the Final Plat, The Village (at Avon) Filing 2, recorded in the
Eagle County, Colorado, real property records on May 29, 2002, at Reception No. 796831
("Filing 2"). Additionally, certain portions of the Property have been conveyed to other entities
and individuals so that the current owners of the Property as of the date of this Second
Amendment are: EMD; Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado (the "District"); Traer Creek-WMT LLC; Traer
Creek-HD LLC; Traer Creek-RP LLC; Buffalo Ridge Affordable Housing Corporation; Buffalo
Ridge II LLLP; Eric Applegate; Shane Bohart; Mark Evans; Ray Pittman; and William J. Post,
as their respective interests appear of record.
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569662.4 MLAYER 0517/0311:00 AM
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E. Each of the conveyances referred to in Recital D above was made subject to the
terms and conditions of the Agreement, including, without limitation, Section 1.4 of the
Agreement. None of the conveyances referred to in Recital D above were accompanied by a
specific written grant of the power to amend the Agreement as provided in Section 1.4 of the
Agreement. Accordingly, with the exception of the Town, EMD and Traer, no owner of any real
property constituting the Property or other person or entity has been granted any power to amend
the Agreement. As provided in Section 1.4 of the Agreement, no person or entity other than the
Town, EMD and Traer is required to execute or acknowledge an amendment to the Agreement as
a condition of such amendment being effective and binding on all parties to the Agreement and
all owners of real property constituting the Property.
F. The District, while not an Owner for purposes of amending the Agreement, has
expressly assumed and undertaken the performance of certain obligations of the Owner under the
Agreement, as more particularly set forth in the First Amendment.
G. The District, the County of Eagle (the "County'), and Eagle-Vail Metropolitan
District ("EVMD") have executed a letter of understanding dated October 22, 2002, which
contemplates that the District, the County, and EVMD will cooperate in the financing.and
construction of certain pedestrian trail system improvements on portions of Highway 6 that abut
or are in the immediate vicinity of the Property. The undertakings described in the letter of
intent are expressly conditioned on, inter alia, the Town's agreement that Owner and the District
be relieved from any further obligation under the Agreement with respect to the Highway 6
Exaction (as defined in the Original Agreement) in consideration of the District undertaking the
obligations contemplated by the letter of intent. In order to facilitate the foregoing, the Town
and Owner desire to modify certain terms and conditions of the Agreement relating to the
Highway 6 Exaction, as set forth in this Second Amendment, and the District wishes to
acknowledge and affirm its agreement to perform the obligations described in the letter of intent,
pursuant to and as more particularly set forth in this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements of the Town and Owner, as more particularly set forth herein, and in
consideration of other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Town and Owner covenant and agree as follows:
1. Defined Terms. Unless otherwise defined in this Second Amendment, capitalized
terms used herein shall have the meanings ascribed to them in the Agreement.
2. Amendments. The Agreement is hereby modified as follows:
(a) Section 1.1.19 is amended and restated to read in its entirety as follows:
Highway 6 Trail Exaction: As defined in Section 4.3(g).
%96x4 h"YM 03n103 11:00 AM 2
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(b) Section 4.3(g) is amended and restated to read in its entirety as follows:
(g) Subject to all required rights-of-way, easements, permits,
and approvals having been obtained, and further subject to the County of Eagle and
Eagle-Vail Metropolitan District having appropriated the requisite funds to finance their
respective. portions thereof in the manner described below, the District will contribute the
lesser of (i) 40% of the design and construction costs, or (ii) $200,000 (the "Highway 6
Trail Exaction"), toward the construction of segments 1 through 3, inclusive, of a
proposed pedestrian trail system on Highway 6 anticipated to be designed over the winter
of 2003 and constructed in the summer or fall of 2003. The County of Eagle will
administer design and construction related activities for the improvements A o be
constructed in connection with the Highway 6 Trail Exaction: Funding, and the location, .
specifications, and other agreements with respect to the design, construction and funding
of the Highway 6 pedestrian trail improvements are more fully set forth in that- certain
Intergovernmental Agreement for Pedestrian Trail dated as of April 22, 2003, by and
between the County of Eagle, Eagle-Vail Metropolitan District, and the District.
(c) Section 43(h) is amended and restated to read in its entirety as follows:
(h) Except for the East Avon Exaction, the Chapel Place
Exaction, the Swift Gulch Road Improvements, the Public Works
Dedication, the East Beaver Creek Boulevard Improvements, the School
Site Dedication and the Highway 6 Trail Exaction, neither Owner, the
Public Improvement Company nor the District shall be, required to pay or
provide for any exactions, dedications or the like for any development or
subdivision approvals relating to the Project, except as may be otherwise
specifically set forth in the PUD Guide. The expenses and fees.described
in subsection 4.3(e) shall be the only amount required to be paid by
Owner, the Public Improvement Company and the District to'the,Town
(other than the East Avon Exaction, the Chapel Place Exaction, the Swift
Gulch Road Improvements, the Public Works' Dedication; the East Beaver
Creek Boulevard Improvements, the School Site Dedication and the
Highway 6 Trail Exaction) in connection with the Town's effectuating the
Final Approval.
3. Effect of Amendment. Except as expressly modified by.this Second Amendment,
the Agreement is unmodified, and is hereby ratified and affinned, and shall remain in full force
and effect in accordance with its terms. If there is any inconsistency between the terms of the
Agreement and the terms of this Second Amendment, the provisions of this Second Amendment
shall govern and control.
4.. Governing Law. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado.
5. Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all such, counterparts taken
together shall constitute one and the same instrument.
569662.4 W AM WMW 11:00 AM 3
IN WITNESS WHEREOF, the Town and Owner have executed this Second
Amendment as of the day and year first set forth above.
OWNER:
TRAER CREEK LLC, a Colorado limited liability
company
By:
Name: Magnus Lin lm
Title: Manager
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: LAVA CORPORATION, a Colorado
corporation, its Manager
By:
N-Magnus olm
Title: Preside
THE TOWN:
TOWN OF AVON, a municipal corporation of the
State of Colorado
Name: A%BEe-r 2 r+t'Las
Title: Mayor
Approved as to legal form by:
07/30/2003 03:46P
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Teak J Simonton Eagle, CO 289 R 96.00 D 0.00
Name: W . CNN N
Title: TAwn Attorney
569662.4 W AYM 05/7/03 11:00 AM 4
AND IN WITNESS WHEREOF, the District hereby acknowledges and agrees to
perform its obligations as set forth in this Second Amendment.
THE DISTRICT:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Nam Sh Bo
Title: P 'd t
ATTEST: 842248
0319
Page: 07/30/2003 of
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Teak J Simonton Eagle, CO 289 R 96.00 D 0.00
Y:
AP ~P LE 4~A'T
56M2.4 W AYM 03n103 11:00 AM 5
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STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
, The foregoing instrument was acknowledged before me this 2-5fy day of
mn!4 11 200 by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado
limited ial bility company.
Witness my hand and official seal.
My commission expires:
STATE OF COLORADO
COUNTY OF EAGLE
ss:
The foregoing instrument was acknowledged before me this 232imp, day of
May , 200_, by Magnus Lindholm, as President of LAVA Corporation, a
Colra od corporation, as Manager of EMD Limited Liability Company, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires:
STATE OF COLORADO
COUNTY OF EAGLE
ss:
The foregoing instrument was acknowledged before me this day of
2003 by M.RO* d as Mayor of the
Town of von, a municipal corporation of the State of orado.
Witness my h a eal.
My commi 91~,r
4Q;
kk,
x (IC Notaryu i
v C
My Commission Expires 04108/2008
5696a4 W AYM 05n1W 11:00 AM 6
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ZbdU day of
rAP V , 2003 , by Shane Bohart as President of Traer Creek Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
! ~ydys I~ot Public
O:e
O
9'0
S
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INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE COUNTY OF EAGLEq STATE OF COLORADO X35.030 $
AND S/ c6,
TRAER CREEK METROPOLITAN DISTRICT
AND
EAGLE-VAIL METROPOLITAN DISTRICT
FOR THE CONSTRUCTION OF PEDESTRIAN TRAM MIPIROVEMENT.
ALONG HIGHWAY 6
This Intergovernmental Agreement is made ar d entered into this, _ clay o
2p03, by and between the County ofEugle, State of Colorado, a body uk~
and politic, by and through its Board of County Commissioners (hereinafter "County") and Traer
Creek Metropolitan District, a Colorado Special District, acting by and through its Board of
Directors (hereinafter "Tmcr Creek') and Eagle-Vail Metropolitan District, a Colorado Special
District, acting by and through its Board of Directors (hereinafter "Eagle-Vair°). Collectively these
entities are also referred to as the "Patties."
WHEREAS, the Constitution and laws of the State ofColorado permit and cneourage Incal
governmental entities to cooperate with each other to make the most efficient and effective use of
their powers and responsibilities; and
WHEREAS; the Parties enter into this Agreement under the authority of lucal governments
of the State of Colorado to contract with one another. C.R.S. § 29-1-201, et seq., Article XIV,
Section 18 of the Colorado Constitution; and
WHEREAS, the Parties to this Agreement desire to share the costs for the construction of
a pedestrian trail system on Highway 6 (hereinafter the "Trail hnprovements'l) which will benefit
the residents and taxpayers of each of the Parties to this Agreement; and
WHEREAS, the Trail Improvements are defined as tilt engineering design, surveying, and
construction of, including all necessary permits and approvals, a pedestrian path approximately one
(l' mile in length. This path shall be constructed along State Highway 6 from its intersection with
Eagle Vail Road (approximate Milepost 17 l) cast to the terminus to be locueted approximately at the
"mini Eisenhower" golf cart tunnel under State Highway 6; and
WHEREAS, it is understood and agreed by the Parties that the anticipated costs of
construction of the Trail Improvements shall be allocated as follows: 40% Traer Gmck; 35% Eagle-
Vail; and 25% the County; and
WHEREAS, the total maximum projected cost ror the construction of the Trail
Improvements is $500,000; and
WHEREAS, the Parties acknowledge that all Patties' participation in the Trail
Improvements is cuinditioned upon the receipt of the Town of Avon's agreement that neither Traer
I 842248
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Reteivad 05-07-03 10:57 Fram-303.592.4385.3 To-OMN JQHNSON RMINS Pace 002
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:29PM ; OTTEN JOHNSON-4 t9707484078;# 4/ 9
9 r ~u.t„ Vd_a3sy.3 Mr.Gencty Slsncrn~s, PC rrlsh [)sgnod♦3038256525 3/8
Creek nor any other patty to the Annexation Agreement (as described in Paragraph 5) shall, be
obligated to provide finding forthe construction of Future Roundabouts (ac described in Paragraph
5) and upon receipt of BNP Paribas' consent to the amendment of the Annexation Agreement.
AGREEMENT
NOW, WHEREFORE, for and in consideration of t1w mutual promises and outer
consideration contained herein, the adequacy of which is hereby acknowledged, the Parties agree
as follows;
1. DESCRIPTION OF TRAIL IMPROVEMENTS. The Trail Improvements are defined
as the enginewing design, surveying, and construction o& including all necessary'permits and
approvals, a pedestrian path approximately one (1) mile in length. This path shall be constructed
along State Highway 6 from its intersection with Eagle Vail Road (approximate Milepost 171) east
to the terminus to be located approximately ac the "mini Eisenhower" golf cart tur mel under State
Highway 6. The portion of the Trail Improvements which begins at Stone Creek and runs east to
the "mini Eisenhower" golf cart tunnel will be designed and constructed on the south side of State
Highway 6. The Parties have determined that the Trail Improvements will benefit the residents and
taxpayers of each entity which is a party to this Agreement and that it would be beneficial for the
Trail Improvements to be designed during the winter of 2002-2003 and constructed during the
summer of2003. The coats of the design and construction of the Trail Improvements shall be shared
by the Parties to this Agreement as set forth in Paragr ph 2.
2. COST SHARING. It is understood and :geed by the Partite that the costs of
construction of the Trail Improvements shall be allocated as fol lows: 406% Traer Creek; 35% Eagle =
Vail; and 25% the County. It is further understood that County will contribute the engineering.
design, surveying, and construction management of the Trail Improvements in addition to its 25:'0
cash contribution to the construction ofthe Trail Improvements. The total maximum projected cost
for the construction of the Trail Improvements is $500,000_ Based upon the total maximum
prole cte'd costs, each patty's total maximum financial commitment shall be as follows: Tracr Creek
contributes $200,000; Eagle-Vail contributes $175,000; and the County contributes $125,000. The
Parties agree that the maximum obligation of Traer Creek, Eagle-Vail and the County are the
amounts set forth above and that such Parties shall not be deemed to owe their percentage for an
amount greater than the mcipcted total project cost of $500,000, unless an aitmmative agrccrnont
is entered into in writing by the Parties. In the event that the total costs are less than $500,000, each
party's share shall be reduced based on the percentage allocation set forth above.
3. APPROPRIATION OF FUNDS. In order to allow for construction of the Trail
Improvements to occur in 2003, the Parties agree as follows:
A. County shall appropriate. upon approval by the Board ofC,ounty Commissioners,
$500,000 for this project to bC funded in March. 2003. County's maximum
obligation to the construction of the path is $125,000, however County will enter into
a construction contract and shall guarantee the total amount oftlhis contract with the
2
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Received 05-07-03 10:57 Pram-303.592.4385.3 T"TTEN JOHNUM ROBINS Paso 003
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ;
2:30PM ; OWEN
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undersr.tnding that Traer Creek and Eagle-Vail shall appropriate and deliver to
County their agreed upon contributions as set forth herein;
B. Traer Creek shall appropriate, upon approval (if its Board of Directors, $200,000
for this project, which will include 54,000 for its attorney's fees. The amount of
$196,000 will be Cuntled and remitted to the County in late September, 2003, Subject
to the satisfaction of the conditions set forth in Paragraph S;
C: Eagle-Vail shall appropriate, upon approval of its Board of Directors, $175,000
to be funded in late Sep~ernbrr, 2003, subject to the satisfaction of the conditions set
forth in Paragraph 5.
4. FUNDING OF THE PROJECT. The County, Traer Creek and Eagle-Vail each
individually represents and warrants to the other parties that upon approval of its Board and at the
time specified above, it will appropriate ana deliver to County to be placed in a segregated or
designated necuunt or subaceount ("I-unding Account") sufficient finds to meet its financial
obligations hereunder.
5. ANNEXATION AGREEMENT. The Parties to this Agreement, acknowledge that
pursuant to that certain Annexation and Development Agreement dated 1998, and subsequently
autended, among the Town of Avon, Traer Creek and certain private parties (hereinafter the
"Annexation Agreement"), Traer Creek is obligated to cooperate with Eagle-Vail or some other
appropriate entity in the construction of two (2) roundabouts at the intersection of Stone Creek Drive
and Highway 6 and at the intersection of Eagle Road and, Highway 6 (hereinafter "Future
Roundabouts") up to a maximum of $250,000 per roundabout. The Parties acknowledge that all
Parties' participation in the Trail Improvements is conditioned upon the receipt of the 'town of
Avon's agreement that neither Traer Creek nor any other party to the Annexation Agreement shall
be obligated to provide funding for the Future Roundabouts and upon receipt ofthe.eonseat of BNP
Paribas to this amendment of the Annexation Agreement
6. ADMIMST)E2ATION OF PROJECT. The County shall administer any design and
construction related activities pertaining to the project in a diligent, good, w.orlauarrlike and timely
manner. The County shal I prepare a construction budget and construction schedule for the project
and submit- it to Trer Creek and L• ague-Vui l prior to construction. It 6hall submit to Traer Creek and
Eagle-Vail written monthly status reports and be available to meet monthly (ifneeded)" to report and
answer questions regarding the status' of the construction budget and the construction schedule. Alt
Parties to this Agreement shall have an opportunity to review and provide input uh the design and
plans for the Trail Improvements. Such input shall be provided within thirty (30) days of receipt bf
the design and/or plarts.
7. FINAL RECONCILIATION. Within thirty (30) days of "Substantial Completion"
(defined herein as tht date upon which the County determines -that the Tnul Improvements are
substantially complete) of the Trail Improvements, the County shall prepare and present to Traet
Creek and Eagle-Vail a final reconciliation ("Final Reconciliation") setting forth the project costs
1111111111111111 11111111111111111111111111111111111 42248
Received 05-07-03 10:57 From-303.592.4305.3 TO-OTTER JOHNSON ROBINS Page 000
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OTTEN JOHNSON-, t9707484078;# 6/ 9
6 _)Vt.asx!f..! McGrWy sisneros. rc Tr1Sh Osgood-►31039256525 5/$
and expenditures. If upon Substantial Completion excess money is available in the Funding
Account, the County shall, within thirty (30; days of Substantial Completion, remit payment to all
parties based on each party's pacentage allocation of costs set forth in Section 2 herein.
S. STATUS AF MR COMPLETION. Upon Substantial Completion the County shall own
the Trail Improvements. Maintenance of the Trail Improvements will be fua.ded pursuant to future
arrangements between the County and Eagle-Vail. Tmer Creek will have no maintenance
responsibilities for the Trail Improvements, nor will Traer Creek own the Trail improvements.
9. ASSIGNABILITY. This Agreement may not be assigned or delcpted without the prior
written consent of the Parties.
10. RELATIONSHIP OF THE PARTIES. By executing this Agreement, no patty shall
be deemed to assume any liability for intentional or negligent acts, errors, or omissions of another
party or any o[Iicar or employer thereof. No agent, employee or volunteer of any party hereto shall
be deemed an agent, employee or volunteer o F any other party under this Agreement. Nothing herein
is untended to or waives any party's immunities at law, including provisions of the Governaental
Immunity Act.
IL NO TIHIRD PARTY DENEFICIAMES. Nothing in this Agreement is intruded to
create or grant to any third party or person any right or claim for damages or the right to bring or
maintain any action at law, nor does any parry waive its immunities at law, including immunity
granted under the Colorado Governmental Immunity Act.
12. NONWAIVER OF RIGHTS. No waiver of default by the Parties of any ofthe terms,
covenants, and conditions hereof to be performed, kept and observed by the other Parties shall be
construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or
conditions herein writained, to be performed, kept and observed by the other Patties.
13. SEVERABILITY. It is understood and agreed by and between the Parties that if any
Covenant. condition or provision contained in this Agreement is held to be invalid by any court of
competent jurisdiction, or otherwise appears to be invalid, such invalidity steal l not affect the validity
of arty other covenant, condition or provision herein contained; provided however, that the invalidity
of any such covenant, condition ar provision does not materially prcjudice any of the Parties in thoir
respective rights and obligations contained in the remaining valid covenants, conditions and
provisions of this Agreement.
14. INTEGRATION. This Agreement is intended as the complete integration of all
understandingts between the Parties and constitutes the entire Agreement between the Patties hereto.
No prior or contemporaneous addition, deletion or other amersdment shall have any force of effect,
unless embodied herein in writing.
I 842248
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Teak J Simonton Eagle, CO 289 R 96.00 D 0.00
4
Recaived 05-07-03 10:57 From-303.592.4305.3 To••13TM JOHNSON ROBINS Page 003
• SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:30PM ; OWEN JOHNSON- t9707484078;# 7/ 9
• • du.a.='Wc.yJIia.., MCCir101Y Sisnerm. PC 'rrlah 09gpM-►3039266i25 6/9
15. MODIFICATION. Modification or waiver of this Agreement or of any covenant,
condition, or provision herein contained shall not be valid unless in writing and duly executed by
the Parties Herein.
I& CAPTIONS. The headings and sections and paragraphs are included only for
convenience and reference. If any conflict between airy heading and the text of this Agreement
exists, the text shall control.
17. INDEMNIFICATION. To the extern allowable by state law, the Parties agree that each
shall indemnify the other, their officers, employees and agents from and against any claims,
damages, losses or expenses which are the result of negligent acts or omissions of their respective
officers, employees ar agents in connection with this Agreement,
18. GOVERNING LAW AND JURISDICTION. This Agreement and all dispukis arising
hereunder shall be governed by the internal laws of the State of Colorado and the Parties agree that
venue and jurisdiction over any claim arising from this Agreement sha11 lie in the courts of the fifth
Judicial District of Colorado. In the event of litigation, the prevailing party shall be entitled to its
attorney's fees and costs.
19. APPROPRIATION LIMITATION. The Parties hereto agree that this Agreement is
contingent upon all funds necessary For the performance of this Agreement being budgated,
appropriat.eol and otherwise made available at the times set forth in Paragraph 3. It is expressly
understood that any financial obligations that may arise hereunder, whether direct or contingent,
shall only extend to payment of monies duly and lawfully appropriated by the governing body of
each of the Parties. Should any of the Parties tail io undertake the project because necessary funds
have not been budgeted or duly appropriated, this Agreement may be terminawd by any of the
Parties to this Agreement. Notwithstanding anything to the contrary contained in this Agrwrient,
County shall have no obligationns under this Agreement, nor shall any payment be made in respect
of any period after any December 31 of each calendar year during the term of this Agreement,
without an appropriation therefore by County in accordance with a budget adopted by the Board of
County Commissioners in compliance with applicable provisions of law.
20. NOTICE. Any written notice required by this Agreement shall be deemed delivered
on the. happening many artist following: (1) hand delivery to the person at the address below; (2)
delivery by facsimile with confirmanon of receipt to the fax nurnbor below; or (3) within three (3)
days of bring sent certified first class mail, postage prepaid, return receipt requested addregsrd as
follows:
(1) Eagle County
Eagle County Attorney
P.O. BOX 850
Eagle, Colorado 81631
Fax: (970) 328-8699
Phone: (970) 328-8685
1111111111111111111111111111 1111111111111111 ' 842248
Page: 17 o 1
07/30/2003f039
:46P
Teak J Simonton Eagle, Co 289 R 96.00 D 0.00
5
Reeelved 05-OT-03 10:57 Fr011-303.592.41385.3
T"TTEN JOHNSON ROBINS Page 006
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:31PM ; OIM JOHNSON- t9707484078;# 8/ 9
. • • ava_ aaf. vaaa_ a MCGendy S l gnerm, Pc Tr 1 sn 0ggondl30.38256525 7/8
and
(2) Traer Creek Metropolitan District
Board of Directors
Traer Creek Motropolita n District
141 Union Boulevard, Suite 150
Lakewood, Colorado 80228
Fax: (970) 748-8900
Phone: (970) 949-6776
and
(3) Eagle-Vail Metrapplitan District
Board of Directors
Eagle-Vail Metropolitan District
P.O. Box 5660
Avon, Colorado 81620
Fax: (970) 949-5400
Phonc. (970) 949-0520
All Parties shall have the right, by giving written notice to the others, to change the address at which
its notices an to be received.
842248
Page: 18 of 19
Teak J Simonton Eagle, CO 289 R 96.00 7/30DZ0 00 3:46P
6
Received 05-OZ-03 10:57 From-303.592.4305.3 To-OTWN JOHNSON ROBINS Pape 0o7
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:31PM ; OTTEN JOHNSON t9707484078;# 9/ 9
r~u~.avr_a.iKy_3 Maceendy SIsnorm. rc 7'rlsh 0s8n0d-*303A25fi525 8/8
','4 N W1•ITiESS WHEKFOF, the Parties hereto have affixed their signatures thij Y- •day
of L .2003.
.01 -
ATTEST:
COUNTY OF EAGLE, STATE OF COLORADO
By andf Through Its
BOAR1
Clerk to the Board of '
County Commissioners
ATTEST:
ATTEST:
bar .If-
By:
TRAER CREEK METROPOLITAN DISTRICT
By:
EAGLE-VAIL METROPOLITAN DISTRICT
By:
842248
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07/30/2003 03:46P
Teak J Simonton Eagle, Co 289 R 96. 00 0 0.00
7
Reteived 05-OF-03 10:57 Frw303.582.4305.3 To-OTTEN JOI01S(IN ROBINS Pan 006
•
Memo
TO: Honorable Mayor and Town Council
Thiru: Larry Brooks, Town Manager
From: Norman Wood, Town Engineer;~~_./
Ruth Borne, Director of Community Development
Date: May 22, 2003
Re: Ordinance No. 03-08, An Ordinance Approving the Second Amendment to the
Annexation and Development Agreement for The Village (at Avon) - Second
Reading (Public Hearing)
Summary: Ordinance No. 03-08 Approves the Second Amendment to the
• Annexation and Development Agreement for The Village (at Avon). The First Amendment
to the Annexation and Development Agreement was approved November 13, 2001.
The Second Amendment changes the Highway 6 Exaction requirement and replaces it with a
Highway 6 Trail Exaction requirement. The Highway 6 Exaction required participation in the
cost of constructing roundabouts at the intersections of Stone Creek' Drive and Highway 6 and
at Eagle Road and Highway 6. The maximum participation required was $250,000 per
roundabout. The Highway 6 Trail Exaction is for participation up to $200,000 toward the
design and construction costs for sections of a proposed pedestrian trail system along Highway
6. The Highway. 6 Trail Exaction is proposed in conjunction with an Intergovernmental
Agreement Between the County of Eagle, State of Colorado and Traer Creek Metropolitan
District and Eagle-Vail Metropolitan District for the Construction of Pedestrian Trail
Improvements Along Highway 6.
The Highway 6 Exaction was included in the original Annexation and Development
Agreement to address concerns expressed by Eagle-Vail residents regarding anticipated traffic
problems on Highway 6. The Highway 6 Trail Exaction requires modification of the
Annexation and Development Agreement to address current concerns expressed by Eagle-Vail
residents through their Metropolitan District Board and the Eagle County Commissioners
regarding construction of sections of pedestrian trail along Highway 6.
•
1:Wvon Village\1.0 GemmAl.2 AgreenrM\Dev Agrmt-2nd Amndmnt\Ordinance No 03-08 Memo-2.Doc
This Ordinance was approved on First Reading at the May 13, 2003 Town Council meeting.
We recommend Second Reading approval of Ordinance No. 03-08, Approving The Second
Amendment to the Annexation and Development Agreement for The Village (at Avon).
Recommendation: Approve on Second Reading, Ordinance No. 03-08,
Approving the Second Amendment to the Annexation and Development Agreement for The
Village (at Avon).
Proposed Motion: I move to approve Ordinance No. 03-08, An
Ordinance Approving the Second Amendment to the Annexation and Development
Agreement for The Village (at Avon) on Second Reading.
Town Manager Comments:
0
C
0 Page 2
'Af
k
MHonorable Mayor and Town Council
Thri u: 'Larry Brooks, Town Manager
From: Norman Wood, Town Engineeri~~1
Ruth Bome, Director of Community Development t"~Pe-
Date: May 8, 2003
Ree Ordinance No. 03-08, An Ordinance Approving the Second Amendment to the
Annexation and Development Agreement for The Village (at Avon) - First
Reacting
Summary: - Ordinance No. 03-08 Approves the Second Amendment to-the
Annexation and Development Agreement for The Village (at Avon). The First Amendment
to the Annexation and Development Agreement was approved November 13, 2001.
The Second Amendment changes the Highway 6 Exaction requirement and replaces it with a
Highway 6 Trail Exaction requirement. The Highway 6 Exaction required participation in the
cost of constructing roundabouts at the intersections of Stone Creek Drive and Highway 6 and
-at Eagle Road_ and Highway 6. The maximum participation required was $250,000 per
roundabout. The Highway 6 Trail Exaction is for participation up to $200,000 toward the
design and construction costs for sections of a proposed pedestrian trail system along Highway
6. The Highway 6 Trail Exaction is proposed in conjunction with an Intergovernmental
Agreement Between the County of Eagle, State of Colorado and Traer Creek Metropolitan
District and Eagle-Vail Metropolitan District for the Construction of Pedestrian Trail
Improvements Along Highway 6.
The Highway 6 Exaction was included in the original Annexation and Development
Agreement to address concerns expressed by Eagle-Vail residents regarding anticipated traffic
problems, on, Highway 6. The Highway 6 Trail Exaction requires modification of, the
Annexation and Development Agreement to address current concerns expressed by Eagle-Vail
residents through their Metropolitan District Board and the Eagle County Commissioners
regarding construction of sections of pedestrian trail along Highway 6.
JAEngineering\Avon Village\I.0 beneraA12 Agreerrents\Dev Agmnt-2nd Amndrrmt\Ordinance No 03-08 Memo- L Doc
We recommend First Reading approval of Ordinance No. 03-08, ,Approving The Second
Amendment to the Annexation and Development Agreement for The Village (at Avon).
Recommendation: Approve on First Reading,- Ordinance No. 03-08,
Approving the Second Amendment to the Annexation and Development Agreement for The
Village (at Avon).
Proposed Motion: I move to approve Ordinance No. 03-08, An
Ordinance Approving the Second Amendment , to the Annexation and Development
Agreement for The Village (at Avon) on First Reading.
Town Manager Comments:
• Page 2
,6
EXHIBIT A
SECOND AMENDMENT
TO ANNEXATION AND DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO ANNEXATION AND DEVELOPMENT
AGREEMENT (this "Second Amendment") is made as of W!~ !y z1 2003, by and
between TRAER CREEK LLC, a Colorado limited liability company ("Traer"), EMD
LIMITED LIABILITY COMPANY, a Colorado limited liability company ("ENW"), and the
TOWN OF AVON, a municipal corporation of the State of Colorado (the "Town").
RECITALS
A. Traer and EMD (collectively, "Owner") and the Town have previously executed
that certain First Amendment to Annexation and Development Agreement dated as of November
13, 2001, and recorded in the Eagle County, Colorado, real property records at Reception
No. 779049 on December 10, 2001 (the "First Amendment"), which First Amendment
amended that certain Annexation and Development Agreement dated as of October 13, 1998,
and recorded in the Eagle County, Colorado, real property records at Reception No. 677743 on
November 25, 1998 (the "Original Agreement"). The Original Agreement, as so amended, is
referred to in this Second Amendment as the "Agreement."
B. The Agreement pertains to certain real property generally known as The Village
(at Avon), and more particularly described in Exhibit A attached to the Agreement (the
"Property").
C. Section 1.4 of the Agreement provides, inter alia, that amendments to the
Agreement must be effected in a writing signed by the Town and Owner. Section 1.4 of the
Agreement further provides that the term "Owner" for purposes of amending the Agreement
means "only the signatories to this Agreement constituting Owner and those parties, if any, to
whom such signatories have specifically granted, in writing, the power to enter into such
amendment." As more particularly set forth in Recital B of the First Amendment, EMD (with
respect to Planning Area M) and Traer (with respect to the remainder of the Property) constitute
Owner for purposes of amending the Agreement.
D. Subsequent to execution of the Agreement, portions of the Property have been
subdivided as more particularly described in the Final Plat, The Village (at Avon) Filing 1,
recorded in the Eagle County, Colorado, real property records on May 8, 2002, at Reception
No. 795007 ("Filing 111), and the Final Plat, The Village (at Avon) Filing 2, recorded in the
Eagle County, Colorado, real property records on May 29, 2002, at Reception No. 796831
("Filing 2"). Additionally, certain portions of the Property have been conveyed to other entities
and individuals so that the current owners of the Property as of the date of this Second
569662 4 MLAYER 05/9/03 1 23 PM
Amendment are: EMD; Traer Creek Metropolitan District, a quasi-municipal corporation and
political subdivision of the State of Colorado (the "District"); Traer Creek-WMT LLC; Traer
Creek-HD LLC; Traer Creek-RP LLC; Buffalo Ridge Affordable Housing Corporation; Buffalo
Ridge II LLLP; Eric Applegate; Shane Bohart; Mark Evans; Ray Pittman; and William J. Post,
as their respective interests appear of record.
E. Each of the conveyances referred to in Recital D above was made subject to the
terms and conditions of the Agreement, including, without limitation, Section 1.4 of the
Agreement. None of the conveyances referred to in Recital D above were accompanied by a
specific written grant of the power to amend the Agreement as provided in Section 1.4 of the
Agreement. Accordingly, with the exception of the Town, EMD and Traer, no owner of any real
property constituting the Property or other person or entity has been granted any power to amend
the Agreement. As provided in Section 1.4 of the Agreement, no person or entity other than the
Town, EMD and Traer is required to execute or acknowledge an amendment to the Agreement as
a condition of such amendment being effective and binding on all parties to the Agreement and
all owners of real property constituting the Property.
F. The District, while not an Owner for purposes of amending the Agreement, has
expressly assumed and undertaken the performance of certain obligations of the Owner under the
Agreement, as more particularly set forth in the First Amendment.
G. The District, the County of Eagle (the "County"), and Eagle-Vail Metropolitan
District ("EVMD") have executed a letter of understanding dated October 22, 2002, which
contemplates that the District, the County, and EVMD will cooperate in the financing and
construction of certain pedestrian trail system improvements on portions of Highway 6 that abut
or are in the immediate vicinity of the Property. The undertakings described in the letter of
intent are expressly conditioned on, inter alia, the Town's agreement that Owner and the District
be relieved from any further obligation under the Agreement with respect to the Highway 6
Exaction (as defined in the Original Agreement) in consideration of the District undertaking the
obligations contemplated by the letter of intent. In order to facilitate the foregoing, the Town
and Owner desire to modify certain terms and conditions of the Agreement relating to the
Highway 6 Exaction, as set forth in this Second Amendment, and the District wishes to
acknowledge and affirm its agreement to perform the obligations described in the letter of intent,
pursuant to and as more particularly set forth in this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements of the Town and Owner, as more particularly set forth herein, and in
consideration of other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Town and Owner covenant and agree as follows:
1. Defined Terms. Unless otherwise defined in this Second Amendment, capitalized
terms used herein shall have the meanings ascribed to them in the Agreement.
569662 4 MLAYHR 05/9/03 1 .23 PM 2
2. Amendments. The Agreement is hereby modified as follows:
(a) Section 1.1.19 is amended and restated to read in its entirety as follows:
Highway 6 Trail Exaction: As defined in Section 4.3(g).
(b) Section 4.3(a) is amended and restated to read in its entirety as follows:
(g) Subject to all required rights-of-way, easements, permits,
and approvals having been obtained, and further subject to the County of Eagle and
Eagle-Vail Metropolitan District having appropriated the requisite funds to finance their
respective portions thereof in the manner described below, the District will contribute the
lesser of (i) 40% of the design and construction costs, or (ii) $200,000 (the "Highway 6
Trail Exaction"), toward the construction of segments 1 through 3, inclusive, of a
proposed pedestrian trail system on Highway 6 anticipated to be designed over the winter
of 2003 and constructed in the summer or fall of 2003. The County of Eagle will
administer design and construction related activities for the improvements to be
constructed in connection with the Highway 6 Trail Exaction. Funding, and the location,
specifications, and other agreements with respect to the design, construction and funding
of the Highway 6 pedestrian trail improvements are more fully set forth in that certain
Intergovernmental Agreement for Pedestrian Trail dated as of April 22, 2003, by and
between the County of Eagle, Eagle-Vail Metropolitan District, and the District.
(c) Section 4.3(h) is amended and restated to read in its entirety as follows:
(h) Except for the East Avon Exaction, the Chapel Place
Exaction, the Swift Gulch Road Improvements, the Public Works
Dedication, the East Beaver Creek Boulevard Improvements, the School
Site Dedication and the Highway 6 Trail Exaction, neither Owner, the
Public Improvement Company nor the District shall be required to pay or
provide for any exactions, dedications or the like. for any development or
subdivision approvals relating to the Project, except as may be otherwise
specifically set forth in the PUD Guide. The expenses and fees described
in subsection 4.3(e) shall be the only amount required to be paid by
Owner, the Public Improvement Company and the District to the Town
(other than the East Avon Exaction, the Chapel Place Exaction, the Swift
Gulch Road Improvements, the Public Works Dedication, the East Beaver
Creek Boulevard Improvements, the School Site Dedication and the
Highway 6 Trail Exaction) in connection with the Town's effectuating the
Final Approval.
3. Effect of Amendment. Except as expressly modified by this Second Amendment,
the Agreement is unmodified, and is hereby ratified and affirmed, and shall remain in full force
and effect in accordance with its terms. If there is any inconsistency between the terms of the
Agreement and the terms of this Second Amendment, the provisions of this Second Amendment
shall govern and control.
569662.4 MLAYER 05/9/03 1 23 PM 3
4. Governing Law. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado.
5. Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all such counterparts taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Town and Owner have executed this Second
Amendment as of the day and year first set forth above.
OWNER:
TRAER CREEK LLC, a Colorado limited liability
company
B '
Name: Magnus L' dholm
Title: Manager
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: LAVA CORPORATION, a Colorado
corporation, its Manager
N e~:Magn indholm
Title: Presid nt
THE TOWN:
TOWN OF AVON, a municipal corporation of the
State of Colorado
Name: Q.Qt
Title: Mayor
569662 4 MLAYER 05/9/03 123 PM 4
S
Approved as to legal form by:
Nqtx4,'k_"
Name: -1v OW N , Z>J u 1J
Title: wn Attorney
AND IN WITNESS WHEREOF, the District hereby acknowledges and agrees to
perform its obligations as set forth in this Second Amendment.
THE DISTRICT:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
B
N e BoTitl : 3eATTEST:
By:
e: lnt1C potPPI$ C,
Title: Secretary
569662 4 MLAYER 05/9/03 1 23 PM
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this 2-%kl, day of
May , 200 3 , by Magnus Lindholm as Manager of Traer Creek LLC, a Colorado
limited liability company.
Witness my hand and official seal.
My commission expires: 1Z•
STATE OF COLORADO
COUNTY OF EAGLE
ss:
The foregoing instrument was acknowledged before me this 21o4ru day of
rnp~y 200.3 , by Magnus Lindholm, as President of LAVA Corporation, a
Colorado corporation, as Manager of EMD Limited Liability Company, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires: 12 •%-2M*4 O
ERIC
APPLEQATE
F
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
, 200 3, by alBtz7- (L. fIAA as Mayor of the
Too Avon, a municipal corporation of the State of C o o.
and official seal.
expires:
N 40
ZIPL 000
569662 4 IvII,AYEK 05/9/03 1-23 PM
y/ 81at'>
P-'~ - A~, L
No rjb~
6
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this 21Q41-i day of
209A, by Shane Bohart as President of Traer Creek Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires: /U a
Public
Iq r1iVy l
• o
o 'I .e
61.`0
'9r Q.
~OFV -c-
569662.4 MLAYER 05/9/03 1.23 PM 7
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:29PM ; OTTE N JOHNSON t9707484078;; J/ U
• 8 J1).7_9vt.a.Sxft.:J Mc6erMy Slsnerns, Pf Trish 0s"Smid-1,-3038256525 218
WrERGOVERNMEINTAL AGREEMENT
BETWEEN[
THE COUNTY OF EAGLE, STATE OF COLORADO q 15,5 C 0 $
ARID
TRAER CREEK METROPOLITAN DLSTliIC1'
AND
EAGLE-VAIL METROPOLITAN DISTRICT
FOR THE CONSTRUO-MON OF PEDESTRIAN TRAIL I1%4P11OVFJMW1 ,
ALONG HIGHWAY 6
This Intergovernmental Agreement is made and entered into this, .
cloy o 4C
2003, by and between the County of Eagle, 912ta of Colorado, a body Eo6orate
and politic, by and through its Board of County Commissioners (hereinafter "County') and T mer
Creek Metropolitan District, a Colorado Special District, acting by and through its Board of
Directors (hereinaftier "Tr= Creek') and Eagle-Vail Metropolitan District, a Colorado Special
District, acting by and through its Board of Directors (hereinafter "Eagle-Vaii"). Collectively these
entities are also referred to as the "Parties."
WHEREAS, the Constitution and laws of the State of Colorado permit and encourage heal
governmen7W entities to cooperate with each other to make the most efficient and effective use of
their powers and responsibilities; and
WHEREAS, the Parties enter into this Agreement under the authority of Iticsl governments
of the State of. Colorado to contract with one another. C.R.S. § 29-1-201; et seq., Article NW,
Section 18 of the Colorado Constitutiom; and
WHEREAS, the Parties to this Agreement desire to share the costs for the ccnr,"e-tion of
a pedestrian trail system on Highway 6 (hereinafter the "Trail linprovements'l) which will benefit
the residents and taxpayers of each of the Parties to this Agreement; and
WHEREAS, the Trail Improvements are defined as the engineering design, surveying, and
construction of, including all necessary permits and approvals, a pedestrian path approximately one
(1) mile in lcngth. 't'his path shall be consuumed along State Highway 6 from its ititerseetion with
Eagle Vail Road (approximate Milepost 171) cast to the terminus to be -lowed approximately at the
"mini Eisenhower" golf cart tunnel under State Highway 6; and
WHEREAS, it is understood and agreed by the Parties that the anticipated costs of
construction of the Trail lmproretnents shall be allocated as follows: 40% Traer Greek; 35% Eagle-
Vail; and 25% the County; and
WHEREAS, the total maximum projected cost fnr the construction of the Trail
Improvements is $500,000; and
WHEREAS, the Parties acknowledge that all Parties' participation in the Trail
Improvements is conditioned upon the receipt of the Town of Avon's agreement that neither Traer
Rate ived 05-07-03 10:57 From-303.591.4385.3 To-OMN JO N50i RMINS Page 002
SENT BY=OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2:23PM OTTEN JOHNSON t9707484078;# 4/ 9
T • • - -.1116 r -W-1-:►Yr-4ius. 3 MCGendy S Isnt:t'~>.~, Pr: Trish M98mW-0-3038256525 3/8
Creek nor any other patty to the Annexation Agreement (as described in Paragraph 5) shall, be
obligated to Provide funding for the construction of Futurc Roundabouts (m described in paragraph
5) and upon receipt of SNP Paribas' consent to the amendment of the Annexation Agreement.
AGREEM ENT
NOW, THEREFORE, for and in consideration of thu mutual promises and ocher
consideration contained herein, the adequacy of which is hereby acknowledged, the patties agree
as follows:
1. DESCRIPTION OF TRAIL IMPROVEMENTS. The Trail Improvements are defined
as the engineering design, sw-vaying, and construction of, including all necessary permits and
approvals, a pedestrian path approximately one (1) mile in length. This path shall be constructed
along State Highway 6 from its intersection with Eagle Vail Road (approximate Milepost 171) cast
to the terminus to be locama approximately at the "mini Eimahower" golf cart tunnel under State
Highway 6. The portion of the Trail Improvements which begin at Stone Creek and runs east t0
the "mini Eisenhowce' golf cart tunnel will be designed and constructed on the south side of State
Highway 6. The Parties have determined that the Trail Improvements will benefit the residents and
taxpayers of each entity which is a party to this Agreement and that it would be beneficial for the
Trail Improvements to be designed during the winter of 2002-2003 and constructed during the.
summer or-2003. The costs of the design and construction ofthe Trail Improvements shall be shared-
by the Parties to this Agreement as set forth in Paragraph 2.
2. COST SHARING. It is understood and agreed by, the Parties that, the costs of
construction of the Trail Improvements shall be allocated as follows: 40% 71raer Creek; 35% Eagle -
Vail; and 25% the County. It is further understood that County will contribute the engineering,
design, surveying, and construction management of the Trail Improvements in addition to its 250,116
cash contribution to the construction ofthe Trail Improvements. The total maximum projected cost
for the construction of the Trail Improvements is 5500,000. Based upon the total maximum
projected costs, each party's total maximum financial commitment shall be as follows: Tracr Creak
contra"bunts $200,000; Eagle-Vail contributes $175,000; and the County contributes $125,000. The
Parties agree that the, maximum obligation of Traer Creek, Eagle-Vail and the County are the
amounts set forth above and that such Parties shall not be deemed to awe their percentage for an
amount greater than the antieipcted total project cost of $500,000, unless an alternative agmcment
is entered into in writing by the Parties- In the event that the total costs are less than $500,000, each
party's share shall be reduced based on the percentage allocation set forth above.
3. APPROPRIATION OF FUNDS. In order to allow for construction of the Trail
Improvements to occur in 2003, the Parties agree as follows:
A. County shall appropriate, upon approval by the Board oFC,0unty Commissioners,
$500,000 for this project to be funded in March. 2003. Couety's maximum
obligation to the construction ofthepath is $125,000, however County will enter into
a construction contract and shall guarantee the total amount ofthis contract with the
2
Received 0547-03 10:57 Freer303.592.4385.3 To-OTTEN 101MT011 A081Ns page 603
- SENT BY=OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2=30PM ; OTTEN-JOHNSON-4 +9707484078;# 5/ 9
• - - - - • a au.3 - Syr. 4.3&b. 3 1lcGMdY sl sncrcis, Pc Trish ftgood 303925b_525 4/8
undersUinding that Traer Creek and Eagle-Vail shall appropriate and deliver- to
County their agreed'upon contributions as set forth herein;
B. Traer Creels shall appropriate, upon approval of its Board of Directors, $200,000
for this project, which will include 54,000 for its attomey's fees. The amount of
S 196,000 will he fumded and remitted to the County in late September, 2003, subject
to the satisfaction of the conditions set forth in Paragraph 52-1,
C: Eagle-Vail shall appropriate, upon approval of its Board of Directors, $175,000
to be tilnded in late September, 2003. subject to the satisfaction of the conditions at
forth in Paragraph 5.
4. FUNDING OF THE PROJECT. The County, Traer Creek and Eagle-Vail each
individually represents and wan ants to the other parses that upon approval of its Board and at the
time specified above, it will appropriate ana deliver to County to be placed in a segregated or
designated mccuunt -or subaccount ("Funding Account") sufficient funds to meet its financial
obligations hereunder.
5. ANNEXATION AGREEMENT. The Parties to this Agreement acknowledge that
pursuant to that cemuin Annexation and Development Agreement dated 1998, and subsequently
arrrended, among the Town of Avon, Traer Creek and certain private parties (hereinafter the
"Annexation Agreement'), Traer Creek is obligated to cooperate with Eagle-Vail 'or some other
appropriate entity in the construction o f two (2) roundabouts at the intersection of Stonc Creek Drive
and Highway 6. and at the intersection of Eagle Road and highway 6 (hereinafter "Future
Roundabouts") up to a amimum of $250,000 per roundabout. The Parties aclmowledge that all
Parties' participation in the Trail Improvements is conditioned upon the receipt of the '1 "n of
Avon's agreement drat neither Traer Creek nor any other party to the Annexation Agmmcnt shall
be obligated to provide funding for the Fw.ure Roundabouts and upon receipt ofthe consent of BNP
Paribas to this amendment of the Annexation Agreemont
6.. ADMIMSTRATION OF PROJECT. The County shall administer any design and
construction related activities pertaining to the project in a diligent, good wodanwilike and timely
manner. The County shall prepare a construction budget and cons auction schedule for the project
and xamit it to Trier Creek and 1- agle-Vail prior to construction. it shall sutimit to Traer Creek and
Eagle-Vail written monthly status reports and be available to meet monthly (ifticeded) to report and
answer questions regarding the status of the construction budget and the construction schedule. All
Parties to this Agreement shall have an opporruniry to review and provide input on the design and
plans for the Trail Improvements. Such input shall be provided within thirty (30) days of receipt of
the design and/or plarm-
i. FINAL RECONCILIATIO. . Within thirty (30) days of -Substantial Cosripletion"
(deriined herein as tht date upon which the County determines that the Trar7 Improvements are
substantially complete) ofthe'f'rail Improvements, the County shall prepare and present>to Tmer'
Creek and Eagle-Vui1 a final reconciliation ("Final Reconciliation") setting forth the project costs
3
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McGrjaly Slsntxres, PC Trish MgOW-s303225"25 5/8
and expenditures. If upon Substantial Completion excess money is available in the Funding
Account, the County shall, within thirty (30) days of Substantial Completion. remit payment to all
parties based on each party's percentage allocation of costs set forth in Section 2 herein.
S. STATUS AFTER COMPLETION. Upon Substantial Completion the County shall own
the Trail Improvements. Maintenance of the Trail Improvements will be funded pursuant to futtue
arrangements between the County and Eagle-Vail. Traer Creek will have no maintenance
responsibilities for the Trail Improvements, nor will Traer Creek own the Trail improvements.
9. ASSIGNABILITY. This Agreement may not be xisigned or delegated without the prior
written consent of the Parties.
10. RELATIONSHIP OF THE PARTIES. By executing this Agreement, no party shall
be deemed to assume any liability for intentional or negligent acts, errors, or otnis-sions of another
party or any officer or employer thereof: No agent, employee or volunteer of any party hereto shall
be deemed an agent, employee or volunteer o F any other parry under this Agreement. Nothing herein
is intcmded to or waives uny party's immunities at law, including provisions of the Governmental
Immunity Act.
11. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended to
create or grant to any third party or person any right or claim for damages or the right to bring or
maintain any action at law, nor does any parry waive its immunities at law, including immunity
granted under the Colorado Governmental Immunity Act.
12. NONWAIVER OF RIGHTS. No waiver of default by the Parties of any of the terms,
covenants, and conditions hereof to be performed, kept and observed by the other Patties shall be
construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or
conditions herein contained, to be performed, kept and observed by the other Patties.
13. SEVERABILITY. It is understood and agreed by and between the Parties that if any
covenant, condition or provision contained in this Agreement is held to be invalid by arty court of
competent jurisdiction, or otherwisc appears to be invalid, such invalidity shal I not affect the validity
of any other covenant, condition or provision herein contained; provided however, that the invalidity
of any such covenant, condition or provision does not materially prejudice any of the Parties in their
respective rights and obligations contained in the remaining valid covenants, conditions and
provisions of this Agreement.
14. INTEGRATION. This Agreement is intended as the complete integration of all
under andingn between the Parties and constitutes the entire Agreement between the Parties hereto.
No prior or contemporaneous addition, deletion or other amendment shall have any force of effect,
fatless embodied herein in writing.
4
Received 05-07-03 10:57 From-303,592.4305.3 Ta•41M JOMSON ROBINS Pate 003
SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 ; 2.30PM OTI'EN JOHNSON- t91074840784 7/ 9
• J\lJ.7lL.'1.1ba..1 MCGG'afy Slsnnrm, Pc Trl%;h 3256525
1S. MODIFICATION. Modification or waiver of this Agreement or of any covenant,
condition, or provision herein contained shall not be valid unless in writing and duly executed by
the Parties herein.
16. CAPTIONS. The headitiga and sections and paragraphs are included only for
convenience and reference. If any conflict between any heading and the text urfts Agreement
exists, the text shall control.
17.'MEMMFICATION. To the extent allowable by Mate law, the Patties agree that each
shall indemnity the other, their officers, employees and agents from and against any claims,
damages, losses or expenses which are tie result of negligent acts or omissions of their respective
officers, employees or agents in connection with this Agreement.
18. GOVERNING LAW AND JUIIISDIMON. This Agreement and all disputes arising
hereunder shall be governed by the internal laws ofthe State of Colorado and the Patties agree that
vcnuc and jurisdiction over any claim arising from this Agreement shall lie in the courts of the Fifth
Judicial District of Colorado. In the event of litigation, the prevailing party shall be entitled to its
attorney's fees and costs.
19. APPROPRIATION LIMITATION. The Parties hereto agree that this Agreement is
contingent upon all funds necessary for the performance of this Agreement being budgated,
appropriated and otherwise made available at the times set forth in Paragraph 3. It is exprowly
understood that any financial obligations that may arise hereunder. whether dbva or contingent,
shall only exitind to payinent of monies duly and lawfully appropriated by the governing body of
each of the Parties. Should any of the Parties fail to undertake the project because necessary fends
have not been budgeted or duly appropriated, this Agreement may be terminated by any of the
Parties to this Agreement. Notwithstanding anything to the contrary contained in this Agreement,
County shall have no obligations under this Agreement, nor shall any payment be Mwe in respect
of any period after any December 31 of each calendar year during the term of this Agreement,
without an appropriation therefore by Cminty in accordance with a budget adapted by the Board of
'County Commissioners in compliance with applicable provisions of law.
20. NOTICE. Any written notice required by this Agreement shall' be deemed delivered
an tKe- hgippening afany or use following: (1) hand delivery to the person at the address below; (2)
delivery by facsimile with confirmation of receipt to the fax number below; or (3) within three 03)
days of being sent certified first class mail, postage prepaid, return receipt requested addressed as
follows:
(1) Eagle County
Eagle County Attorney
P.U. 13ox 850
Eaglc, Colorado 81631
Fax: (970) 328-8699
Phone: (970) 328-8685
MCAIved 05-07-03 10:57 From--303.582.4385.3 T"T1EN JOHiSON ROBINS fete 006
' SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 2:31PM OTTEN JOHNSON-' t9707484078;# 10/ 9
- ..7VA_99-0.4dII!S _J McGr mly Sinncrns. rc Trlsn osgcxxl♦30.U256S25 7/8
and
(2) Traer Creek Metropolitan District
Board of Directors
Traer Creek Metropolitan District
141 Union Boulevwd, Suite, 150
Lakewood, Colorado 80228
Fax: (970)'748-8960
Phone: (970) 949-6776
and
(3) Eagle-Vail Metropplitin Digt ict
Board of Directors
Eagle- Vail Metropolitan District
P:O. Box- .5660
Aron, Colorado 81620
Fax: (970) 949-5400
Phone: (970) 949-0520
All Parties shall have the right, by giving written notice to the others, to change the address at which
its notices are to be received.
6
Received 65-07-03 10:51 From-303.592.4305.3 T"TTEN JOHNSON Rom . Page 007
• SENT BY:OTTEN JOHNSON ROBINSON; 5- 7- 3 2:31PM OTTEN JOHNSON- t9707484078;# 9/ 9
T ••_.•~u~.-vt_4_ixy_3 Mcckmdy Slsnorms, PC Trish 0.4gcufrl-4-31338256525 R/R
,JN Wi'lNESS WHF1tFOF, the Parties hereto have
of 2403. affixed their signatures this, 'day
ATTEST:
• ~I
C wk to the Board of '
County Commissioners
AT" I'EST:
ATTEST:
TRAF..R CREEK ME'IR0P0I,ITAN DISTRICT
By:
EAGLE-VAIL METROPOLITAN DISTRICT
By:
7
COUN1`Y OF EAGLE, STATE OF COLORADO
By wWtrbrough Its
BOARb OF COUNTY CUMA/IISSInNFRW
By:
Michael L.
Received 05-Ot-03 10:5T from-303.582.1305.3 Tt-OTTEN JOINSCIN ROBINS Page 088