TC Ord. No. 2009-07 Ordinance zoning the red house property as planned unit development PUD;Approving a planned unit development plan & development standards; approving a preliminary subdivison plan; and approving an annexation and development agreementt
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TOWN OF AVON, COLORADO
ORDINANCE NO. 09-07
SERIES of 2009
AN ORDINANCE ZONING THE RED HOUSE PROPERTY AS PLANNED UNIT
DEVELOPMENT (PUD); APPROVING A PLANNED UNIT DEVELOPMENT PLAN
AND DEVELOPMENT STANDARDS; APPROVING A PRELIMINARY SUBDIVISION
PLAN; AND APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT
WHEREAS, The Vail Corporation, a Colorado corporation ( "Owner "), submitted an
application dated September 26, 2008 to the Town of Avon ( "Town ") for Planned Unit
Development (PUD) zoning including a Planned Unit Development Plan and Development
Standards (collectively, the "PUD Zoning Application ") for the property legally described as
"Lots 1 and 2, Red House Exemption Plat, Eagle County, Colorado," ( "Red House Property ")
pursuant to Section 17.20.110 of the Avon Municipal Code ( "AMC ") which PUD Zoning
Application was submitted in connection with Owner's petition for annexation to the Town of
the Red House Property; and
WHEREAS, the Owner submitted an application to the Town for a preliminary subdivision
plan ( "Preliminary Subdivision Plan") concurrently with the PUD Zoning Application as
required by AMC Section 16.02.070; and
WHEREAS, the Owner submitted an application to the Town for an amendment to the
Town of Avon Comprehensive Plan dated September, 2008 ( "Comprehensive Plan
Amendment ") concurrently with the PUD Zoning Application; and
WHEREAS, on December 2, 2008, the Town of Avon Planning and Zoning Commission
( "Commission ") unanimously recommended approval of the proposed Comprehensive Plan
Amendment to the 2006 Town of Avon Comprehensive Plan, specifically related to, and
consistent with the PUD Zoning Application; and
WHEREAS, on May 12, 2009, the Town Council of the Town of Avon ( "Town Council ")
approved the Comprehensive Plan Amendment; and
WHEREAS, Owner and the Town have negotiated an annexation and development
agreement ( "Development Agreement ") with respect to the Red House Property, providing for,
among other matters, vested property rights for the Red House Property pursuant to Colorado
Revised Statutes § §24 -68 -101, et. seq., and Chapter 17.14 of the AMC; and
WHEREAS, the Town Council annexed the Red House Property on June 23, 2009, by
adopting Ordinance No. 2009 -06 AN ORDINANCE ANNEXING THE RED HOUSE
PROPERTY; and
WHEREAS, Colorado Revised Statute §31 -12 -115 provides that an annexing municipality
may institute zoning and subdivision procedures after a petition for annexation has been found to
be valid in accordance with the provisions of Colorado Revised Statute §31 -12 -107 and that any
6 -17 -09 ejh
area annexed into a municipality shall be brought under the zoning regulations of such
municipality within ninety days of the effective date of the annexation ordinance; and
WHEREAS, pursuant to noticing procedures required by law, the Commission held public
hearings on November 18, 2008, December 16, 2008, and, January 6, 2009 on the PUD Zoning
Application, considered all comments, testimony, evidence and staff reports provided by the
Town staff, considered such information prior to formulating a recommendation, then took
action to adopt findings and make a recommendation of approval to the Town Council with
conditions as set forth in TOWN OF AVON, PLANNING AND ZONING COMMISSION
RESOLUTION No. 09 -01 A RESOLUTION RECOMMENDING APPROVAL TO THE
AVON TOWN COUNCIL OF A PLANNED UNIT DEVELOPMENT (PUD) APPLICATION
FOR THE RED HOUSE ANNEXATION LOTS 1 & 2, EAGLE COUNTY, COLORADO; and
WHEREAS, pursuant to noticing procedures required by law, the Town Council held public
hearings on May 26, 2009, June 9, 2009 and June 23, 2009 and considered all comments,
testimony, evidence and staff reports provided by the Town staff prior to taking any action on the
PUD Zoning Application, the Planned Unit Development Plan and Development Standards, the
Development Agreement, the granting of vested property rights, and the Preliminary Subdivision
Plan; and
WHEREAS, the Town Council finds that the Planned Unit Development Zoning and
Planned Unit Development Plan and Development Standards are in conformance with the 2006
Town of Avon Comprehensive Plan as amended, are compatible with surrounding uses, and that
adequate facilities are available to serve the development as permitted in the proposed zoning
subject to the terms and conditions of the Development Agreement; and
WHEREAS, the Town Council finds that the Preliminary Subdivision Plan application is in
conformance with the criteria set forth in AMC Section 16.20.040; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law and the AMC by setting a public hearing in order
to provide the public an opportunity to present testimony and evidence regarding the application
and that approval of this Ordinance on first reading does not constitute a representation that the
Town Council, or any member of the Town Council, supports, approves, rejects, or denies the
proposed zoning.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COUNTY OF EAGLE, STATE OF COLORADO, the following:
Section 1. Planned Unit Development Zoning. The Red House Property is hereby zoned
Planned Unit Development and shall be included in the Planned Unit Development Zone District
as established in the AMC. The Planned Unit Development Plan and Development Standards
are hereby approved for the Red House Property. The specific uses, design standards, terms and
conditions of the Planned Unit Development Zoning are defined in the Planned Unit
Development Plan and Development Standards and in the Development Agreement approved in
Section 2 of this Ordinance. The Town Council further approves an amendment to the Official
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INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on
the 12th day of May, 2009, AND REFERRED TO PUBLIC HEARING and setting such
public hearing for 5:30 p.m. on the 26th day of May, 2009, at the Council Chambers of the Avon
Municipal Building, located at One Lake Street, Avo lorado.
Ronald C. Wolfe, Mayor
:SEAS:
Published by posting aL least three publ places in Town and posting at the office of the Town
Clerk at least seven da prior to final'a on by the Town Council.
C �ORADO
ATTEST: APPROVED AS TO FORM:
aM•
ac
att envy, Town Vlerk rric Heil, Town Attorney
INTRODUCED,6 t]LLLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the ay of June, 2009.
Ronald C. Wolfe, Mayor
Published by posting by title i e public places in Town and posting by title at the
office of the Town Clerk. :a�?`� ..
ATTEST:
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Zoning Map of the Town of Avon to include the Red House Property in the Planned Unit
Development Zone District.
Section 2. Development Agreement. The Development Agreement between The Vail
Corporation and the Town of Avon attached hereto as "Exhibit A" is hereby approved.
Section 3. Preliminary Subdivision Plan. The Preliminary Subdivision Plan is hereby
approved for the Red House Property.
Section 4. Vested Rights. Vested property rights are hereby created in accordance with
AMC Section 17.14.030(b) and Colorado Revised Statute § §24 -68 -101 et. seq. The vested
property rights created by this Ordinance shall be the vested property rights as defined in the
Development Agreement approved by Section 2 of this Ordinance.
Section 5. Correction of Errors. Town Staff is authorized to correct any typographical,
grammatical, cross - reference, or other errors which may be discovered in any documents
associated with this Ordinance and documents approved by this Ordinance provided that such
corrections do not change the substantive terms and provisions of such documents.
Section 6. Execution of Documents. The Mayor and Town Clerk are authorized to execute
the Development Agreement approved by Section 2 of this Ordinance, the Preliminary
Subdivision Plan approved by Section 3 of this Ordinance, and other official documents
associated with the approvals and actions in this Ordinance subject to the condition that the
Owner first pay in full all amounts due and owing to the Town pursuant to the Reimbursement
Agreement previously entered into by and between the Owner and the Town dated April 30,
2008.
Section 7. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 8. Publication. The Town Clerk is ordered to publish this Ordinance by posting
notice of adoption of this Ordinance on final reading by title in at least three public places within
the Town and posting at the office of the Town Clerk, which notice shall contain a statement that
a copy of the ordinance in full is available for public inspection in the office of the Town Clerk
during normal business hours.
Section 9. Effective Date. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
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REC $2 56.00 DOC= $ 10/05/2009
After recording return to:
Widner Michow & Cox LLP
Attn: Eric Heil, Esq.
13133 E. Arapahoe Road, Suite 100
Centennial, Colorado 80112
ANNEXATION AND DEVELOPMENT AGREEMENT
THIS ANNEXATION AND I)EVELOPN4ENT AGREEMENT (this "Agreement ") is
made and entered into as of the day of , 2009 by and between The Vail 41D re .
Corporation, a Colorado corporation, d/b /a Vail Associates, Inc. (as defined in Section 1.17, 9��+'�ga
"Owner "), and the Town of Avon, a home rule municipal corporation of the State of Colorado
(the "Town ").
RECITALS
This Agreement is made with respect to the following facts:
A. Capitalized terms have the meanings given them in Article I.
B. Owner is the owner of approximately 1.44 acres of real property for which Owner
has submitted the Annexation Petition for annexation of the Property to the Town.
C. Pursuant to Resolution No. 08 -21, Series of 2008, the Town previously found that
the Property is eligible for annexation to the Town in that the requirements of the applicable
parts of C.R.S. §§ 31 -12 -104 and -105 have been met.
D. Upon annexation of the Property, the Town has authority to zone and regulate
development of the Property in accordance with this Agreement, the Comprehensive Plan, the
Municipal Code, and other applicable Town ordinances and policies. The Town's authority to
enter into this Agreement is derived from its home rule charter, state statutes, and the power
generally held by Colorado home rule municipalities to address matters of local concern by
contract, ordinance or otherwise.
E. The legislature of the State of Colorado adopted the Vested Property Rights
Statute to provide for the establishment of vested property rights in order to ensure reasonable
certainty, stability and fairness in the land use planning process and in order to stimulate
economic growth, secure the reasonable investment - backed expectations of landowners, and
foster cooperation between the public and private sectors in the area of land use planning. The
Vested Property Rights Statute authorizes the Town to enter into development agreements with
landowners providing that property rights may be vested for a period exceeding three (3) years
where warranted in light of all relevant circumstances, including, but not limited to, the size and
phasing of the development, economic cycles, and market conditions.
F. Consistent with the Vested Property Rights Statute, the Vested Property Rights
Code authorizes the Town to enter into development agreements with landowners and other
qualified applicants providing for the vesting of property rights for a period exceeding three
(3) years.
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G. Annexation and development of the Property in accordance with this Agreement
is intended and anticipated to provide for orderly growth in accordance with the policy and goals
set forth in the Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land
use planning process, stimulate economic growth, secure the reasonable investment - backed
expectations of the Owner, foster cooperation between the public and private sectors in the area
of land use planning, provide for land dedication to the Town and certain public amenities as set
forth herein, provide for off -site employee housing, and otherwise achieve the goals and
purposes for which the Vested Property Rights Statute and the Vested Property Rights Code
were enacted.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Owner and the Town agree as
follows with respect to the development of the Property:
ARTICLE I
DEFINITIONS
Definitions. The following terms shall have the meanings set forth below unless the
context in which they are used clearly indicates otherwise:
1.1 Access and Utility Easement. As defined in Section 5.1(a).
1.2 Agreement. This Annexation and Development Agreement as defined in the
introductory paragraph.
1.3 AMI. As defined in Section 4.2.
1.4 Annexation Petition. The annexation petition for the Property submitted by
Owner to the Town and dated March 24, 2008.
1.5 Authority. The Upper Eagle Regional Water Authority.
1.6 CDOT. Colorado Department of Transportation.
1.7 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning
and Zoning Commission of the Town in February 2006, as may be amended from time to time.
1.8 Crosswalk Improvements. As defined in Section 4.4(c).
1.9 Development Standards. The development standards pertaining to the Property as
contained in the PUD Development Plan attached hereto as Exhibit B.
1.10 Drainage Easement. As defined in Section 4.6.
1.11 Effective Date. July 28, 2009
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1.12 Exhibits. The following are Exhibits to this Agreement, all of which are
incorporated by reference into and made a part of this Agreement:
Exhibit A Legal Description of the Property
Exhibit B PUD Development Plan and Development Standards for Red
House
Exhibit C Preliminary Subdivision Plan
Exhibit D Form of Access and Utility Easement
Exhibit E Form of Landscape Construction and Maintenance Easement
1.13 Final Condominium Plat. The final condominium subdivision plat for the
Property to be submitted and processed as in accordance with the subdivision regulations in
Chapter 16 of the Municipal Code.
1.14 Landscape Easement. As defined in Section 5.1(b).
1.15 Minor Subdivision Plat. The subdivision plat for the Property, which, among
other things, (1) eliminates the existing lot line internal to the Property, (2) re- subdivides the
Property into a lot and the River Tract, (3) dedicates the River Tract and Drainage Easement to
the Town, and (4) vacates and extinguishes the Kayak Easement.
1.16 Municipal Code. The Avon Municipal Code, as may be amended from time to
time.
1.17 Owner. The Vail Corporation, a Colorado corporation, d/b /a Vail Associates,
Inc., as defined in the introductory paragraph, its successors and assigns.
1.18 Part ies . Individually and collectively, Owner and the Town.
1.19 Preliminary Plan. The preliminary plan for the Property submitted by Owner to
the Town in connection with Owner's submittal of the PUD Development Plan and Development
Standards.
1.20 Propert y. The real property described on Exhibit A attached hereto.
1.21 Public Improvements. Those improvements necessary to serve the Property to be
acquired, constructed or installed for the benefit of and dedication to the public, including, but
not limited to, all on -site and /or off -site streets, water lines, sewer lines, stormwater facilities,
open space, landscaping, traffic control devices, sidewalks, trails, transportation improvements,
signage and related improvements as to be set forth in the SIA.
1.22 PUD. Planned unit development or PUD, as such terms are defined and used in
the Municipal Code, as approved by the Town with respect to the Property.
1.23 PUD Development Plan. The PUD Development Plan and Development
Standards for Red House, attached hereto as Exhibit B.
1.24 River Tract. As defined in Section 4.6.
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1.25 School Site Payment. As defined in Section 4.7.
1.26 SIA. The subdivision improvement agreement to be entered into between the
Town and Owner which shall set forth, among other matters, Owner's obligations with respect to
the construction, installation and maintenance of the Public Improvements, including, without
limitation, Owner's obligations with respect to provision of collateral therefor.
1.27 Term. As defined in Section 3.1.
1.28 Town. The Town of Avon, a home rule municipal corporation of the State of
Colorado, as defined in the introductory paragraph.
1.29 Town Approvals. Collectively, annexation of the Properly to the Town, this
Agreement, the Preliminary Plan and the PUD Development Plan and Development Standards.
1.30 Town Council. The Town Council of the Town.
1.31 Vested Property Rights Code. Chapter 17.14 of the Municipal Code, as in effect
on the date of Town Council's final approval of the ordinance approving this Agreement;
provided that, notwithstanding any provision of Chapter 17.14 of the Municipal Code to the
contrary, no subsequent amendments or recodifications of such chapter shall apply to the
Property; provided however, if Owner applies to the Town for any amendment to the PUD
Development Plan and/or this Agreement and the Town finally approves such amendment, the
Town, in its discretion, may require in connection with such approval that Chapter 17.14 of the
Municipal Code as in effect on the date of the Town's final approval of such amendment shall
thereafter apply to the Property.
1.32 Vested Property Rights Statute. C.R.S. §§ 24 -68 -101, et seq., as in effect on the
date of Town Council's final approval of the ordinance approving this Agreement.
1.33 Workforce Housing Payments. As defined in Section 4.2.
ARTICLE II
ENTITLEMENTS AND VESTED RIGHTS
2.1 PUD Zoning; Subdivision. Concurrently with the Town's approval of this
Agreement, the Town has approved (i) PUD zoning for the Property in accordance with the PUD
Development Plan; and (ii) the Preliminary Plan for the Property. The PUD Development Plan
and Development Standards set forth the standards and regulations for development of the
Property and have been approved by the Town as part of the PUD zoning for the Property, and
set forth, among other things, set back distances, building height limitations, site coverage levels,
development densities, allowed uses (both permitted uses by right and those permitted upon
special review), parking requirements and other guidelines and limitations for the development
of the Property. The PUD Development Plan, Development Standards, the Preliminary Plan and
this Agreement take precedence over other general zoning and subdivision regulations of the Town,
as amended from time to time, for those matters that are specifically addressed in the PUD
Development Plan, Development Standards, the Preliminary Plan and this Agreement. Not later
than four (4) months after Town Council finally approves the latest of the ordinances approving the
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Town Approvals, Owner shall submit to the Town an application for the Minor Subdivision Plat in
a form materially consistent with the Preliminary Plan, PUD Development Plan and PUD
Development Standards; provided, however, notwithstanding any provision of the Municipal Code
to the contrary, because no Public Improvements shall be constructed in connection with the
Town's approval of the Minor Subdivision Plat, no SIA shall be required; provided further,
however, in connection with the Town's issuance of the first building permit for the Property,
Owner shall submit to the Town engineered construction drawings for all improvements to be
constructed on the Property and Owner and the Town shall enter into the SIA. Notwithstanding
any provisions of the Municipal Code to the contrary, the PUD Development Plan, Development
Standards, Preliminary Plan and Minor Subdivision Plat shall not lapse or expire during the
Term, and Owner shall have the period of the Term to submit to the Town the Final
Condominium Plat.
2.2 Vesting of Property Rights. The PUD Development Plan and Development
Standards constitute an approved "site- specific development plan" as defined in the Vested
Property Rights Statute and Vested Property Rights Code and Owner shall have vested property
rights, pursuant to the Vested Property Rights Statute and Vested Property Rights Code as
implemented by this Agreement, to undertake and complete development and use of the Property
under the terms and conditions of the PUD Development Plan and Development Standards
during the Term. Pursuant to Section 17.14.050 of the Vested Property Rights Code and this
Agreement, the PUD Development Plan and Development Standards constitute a site specific
development plan for which a vested property right has been granted pursuant to Article 68 of
Title 24, C.R.S., for the Term.
2.3 Effect of Vested Property Rights. By approving the PUD Development Plan and
Development Standards as a site specific development plan and granting a vested property right
to the Owner to undertake and complete the development and use of the Property under the terms
and conditions of the PUD Development Plan and Development Standards, any zoning or land
use action by the Town or pursuant to an initiated measure that would materially alter, impair,
prevent, diminish, impose a moratorium on development, or otherwise delay the development or
use of the Property as set forth in the PUD Development Plan and Development Standards shall
not apply to the Property during the Term, except as provided in C.R.S. §§ 24 -68- 105(1) and in
Sections 2.4 and 2.5 of this Agreement.
2.4 Compliance with General Regulations. The establishment of vested property
rights under this Agreement shall not preclude the adoption and /or application of Town
ordinances or regulations, or state or federal laws and regulations, which are general in nature
and are applicable to all property, or a class of properties similarly situated to the Property,
subject to land use regulation by the Town, including, but not limited to, regulations contained in
Chapter 15 of the Municipal Code, regulations concerning subdivision improvements and right -
of -way dedications, and regulations establishing requirements and specifications for any public
infrastructure or public facility improvements as all such regulations exist on the date of Town
Council's final approval of this Agreement or may be enacted or amended after such approval.
2.5 Legislatively Adopted Fees. Except as otherwise provided in this Agreement, the
establishment of a vested property right under this Agreement shall not preclude the application
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of any legislatively adopted fees which are general in nature, uniform in character and applicable
to all property or a class of properties similarly situated to the Property.
ARTICLE III
TERM
3.1 Term. In recognition of the nature of the development contemplated under this
Agreement, the investment and time required to complete the development of the Property, the
potential for phased development of the Property, the possible impact of the recent economic
downturn and other economic cycles, and poor market conditions at the time of approval, and in
recognition of the current severity of the economic recession and uncertainty of economic
recovery, the term of the Vested Property Rights shall commence on the Effective Date and shall
continue through and including the seventh (7th) anniversary of the Effective Date (the "Term ").
Expiration or earlier termination of the Term shall not (a) affect any other obligations of the Parties
contained in this Agreement, (b) affect any right arising from the issuance of a building permit (but
limited to the building for which it is issued) or common law vested property rights obtained prior to
the expiration of the Term, or (c) without additional action, result in the termination or rescission of
any other legislative, quasi-judicial or administrative approvals occurring prior to the expiration of
the Term.
ARTICLE IV
OWNER OBLIGATIONS
4.1 Water and Water Rights. Owner shall, as a condition of water service for the
Property, dedicate and convey to the Authority sufficient water rights and water storage rights,
subject to the approval of the Town and the Authority, to make up the quantity, quality and use
needed to serve the number of units or equivalent thereof approved for the Property. The water
rights to be so dedicated shall provide for all water uses contemplated for the approved development
of the Property and shall include a reversionary clause in any deed of conveyance stating that the
water rights conveyed shall automatically vest in the Town upon dissolution of the Authority. The
water rights dedication shall also be accompanied by an agreement between the Authority and the
Town, acceptable to the Town that provides (1) the Authority shall agree to provide sufficient water
to the Property on the same basis as other users within the Authority's service area to meet the
construction, residential, municipal, irrigation, recreation and other incidental water demands of the
Property, (2) the Authority shall acknowledge an increase in the total single family equivalents to be
served in the Town in the amount necessary to serve the Property, and (3) the Authority shall agree
that the specific water rights conveyed to the Authority to serve this Property shall be conveyed to
the Town upon dissolution of the Authority. Owner shall reimburse the Town and Authority for
their expenses, including reasonable and actual engineering costs and legal fees, incurred in
evaluating the sufficiency of water rights and water storage rights to be dedicated under this
Agreement or incurred in connection with any water court action or other proceeding(s) required to
enable the dedicated water rights to be used by the Town and the Authority as contemplated in this
Agreement. Dedication of augmentation water and related water rights and water storage rights
shall be completed by the earlier of (1) within four (4) months after Town Council finally approves
the latest of the ordinances approving the Town Approvals, (2) Final Plat approval or (3) prior to the
issuance of any building permit on the Property.
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4.2 Workforce Housing. Owner's development of the Property pursuant to the PUD
Development Plan and Development Standards shall result in an "employee household demand"
of 1.4 employee households, as calculated pursuant to the provisions of the 2005 Eagle County
Nexus Update as in effect as of the date of Owner's PUD Development Plan submittal to the
Town. Owner agrees to make two payments to the Town to mitigate the increased demand for
employee household demand created by the PUD Development Plan ( "Workforce Housing
Payments "). The Workforce Housing Payments shall be calculated by subtracting the maximum
affordable housing cost (defined as housing costs not to exceed 30% of gross income and based
on a 30 year fixed mortgage at 5.5% interest with a 10% down payment) for a residential unit at
140% of the area median income for Eagle County, Colorado, as calculated in accordance with
the most current U.S. Department of Housing and Urban Development area median income
figures ( "AMI "), from the maximum affordable housing cost (as defined above) for a residential
unit at 170% of AMI. The amount of each Workforce Housing Payment shall be calculated at
the time that each Workforce Housing Payment is due. [Example of one Workforce Housing
Payment calculation: As of the Effective Date, 170% of AMI = $551,987.00; 140% of AMI =
$454,577.00; the difference between 170% AMI and 140% AMI is $97,410.00; therefore, the
Workforce Housing Payment (one of the two required payments) is $97,410.00]. Owner shall
provide the first of the two required Workforce Housing Payments prior to receiving the first
temporary certificate of occupancy for a residential unit on the Property. Owner shall provide
the second of the two required Workforce Housing Payments prior to receiving a temporary
certificate of occupancy for the earlier of (1) the last residential unit on the second building to be
constructed, or (2) the tenth residential unit. Owner's performance of the requirements of this
Section 4.2 within the Term (including, without limitation, Owner's provision of such Workforce
Housing Payments prior to receiving any temporary certificates of occupancy for improvements
on the Property) shall constitute full satisfaction of the Owner's obligation with respect to
mitigation of the impacts of Owner's development of the Property on employee /attainable
housing units notwithstanding any current or future regulations of general applicability adopted
by the Town with respect to such matters. In the event the Property is not developed in
accordance with the PUD Development Plan with the Term, nothing contained herein shall
restrict the Town from applying any affordable housing regulations to the Property after the
expiration of the Term of the Vested Property Right; provided, however, given the size of the
Property and limited number of residential units that may be constructed thereon, the Town shall
not have the right to require Owner provide on -site workforce housing units without Owner's
consent.
4.3 Relocation of Existing Public Improvements. In accordance with the PUD
Development Plan and Section 4.4(b), Owner shall be responsible for the relocation of the
sidewalk and associated landscape improvements located adjacent to Highway 6 and adjacent to
Avon Road in connection with Owner's development of the Property pursuant to the PUD
Development Plan.
4.4 Installation of Other Public Improvements. In consideration of the vested
property rights granted by the Town to Owner pursuant to Sections 2.2 and 2.3 and because of
the need to address the impacts from development of the Property, Owner, with full knowledge
and without duress, shall be responsible for the construction and installation of all Public
Improvements necessary to serve the Property. Such obligations reasonably relate to the impact
of development of the Property and are proportional to such impact. Owner shall install or cause
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to be installed all Public Improvements in a good and workmanlike manner in accordance with
applicable Town regulations and specifications as in effect on the Effective Date and the SIA.
The street and utility Public Improvements shall be set forth in the SIA; provided, however, that
the SIA shall provide that Owner shall design, engineer, construct and install the following
Public Improvements prior to the Town's issuance of a final certificate of occupancy for any
improvements constructed on the Property, which Public Improvements shall constitute full
satisfaction of Owner's obligations other than with respect to the street and utility Public
Improvements referenced above:
(a) Footpath improvements adjacent to the shoreline of the Eagle River as
generally depicted on the PUD Development Plan, and having a minimum width of three and
one -half (3.5) feet; provided however, where feasible, such improvements shall have a width of
five (5) feet.
(b) Seven (7) foot wide sidewalk and five and one -half (5.5) foot wide (from
edge of sidewalk to back of curb) landscape buffer improvements adjacent to Avon Road and
Highway 6, as generally depicted on the PUD Development Plan.
(c) Right -of -way crosswalk improvements (materially consistent in design
and materials with the existing "Hurd Lane" crosswalk improvements) located on Avon Road at
the north leg of the Highway 6 intersection and on Highway 6 at the east leg of the Avon Road
intersection, as generally depicted on the PUD Development Plan (the "Crosswalk
Improvements "). Notwithstanding the foregoing, the Town acknowledges the design,
engineering, construction and installation of the Crosswalk Improvements are subject, in addition
to the Town's approval, to the approval of CDOT in CDOT's sole discretion for the portion of
the Crosswalk Improvements located in CDOT right -of -way and that Owner shall have no
obligation or responsibility to satisfy the requirements of this Section 4.4(c) with respect to that
portion of the Crosswalk Improvements within such CDOT right -of -way if CDOT does not
approve the Crosswalk Improvements, provided Owner shall use reasonable good faith efforts to
diligently process those application(s) necessary in connection with CDOT's approval of the
Crosswalk Improvements and to implement changes to such application(s) reasonably required
by CDOT. Owner will (i) give notice to the Town of any scheduled meetings between Owner
and CDOT regarding the Crosswalk Improvements in order that Town representative(s) may
attend any such meetings in the Town's discretion; and (ii) provide to the Town a copy of all
correspondence between Owner and CDOT regarding the Crosswalk Improvements.
The foregoing obligations, together with the street and utility Public Improvements obligations to
be determined in connection with the Town's issuance of the first building permit for the
Property, shall be incorporated into the SIA.
4.5 Indemnification and Hold Harmless. Owner shall indemnify, defend and hold
harmless the Town (and its officials, agents, representatives, employees, contractors, and
successors and assigns) from all claims, demands, damages (including, without limitation,
consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or
expenses (including reasonable attorneys' fees) resulting from claims for bodily injury (including
death) to any person or damage to any property, caused by or arising from the conduct or
activities of Owner in performing its obligations under this Agreement; provided, however, such
Page 8 of 42
6 -16 -09 ejh
indemnification shall not extend to the portion of any claims caused by or arising from the
Town's negligence or willful misconduct.
4.6 Dedications. Owner shall, by the Minor Subdivision Plat, convey to the Town a
parcel of land adjacent to Eagle River, as generally depicted in Exhibit C (the "River Tract "),
shall grant to the Town a non - exclusive perpetual drainage easement in gross for drainage
purposes (the "Drainage Easement "), as generally depicted on Exhibit C; provided, however, as
consideration for Owner's conveyance of the River Tract and grant of the Drainage Easement,
contemporaneously with such conveyance and grant, the Town shall, by the Minor Subdivision
Plat, vacate and extinguish in its entirety the existing kayak park pedestrian easement
encumbering the Property and recorded at Reception No. 200622401 (the "Kayak Easement ").
With respect to the conveyance of the River Tract, the Minor Subdivision Plat shall include
special warranty deed conveyance language and use restriction language mutually acceptable to
the Town and Owner. If the Town fails to vacate and extinguish the Kayak Easement in
accordance with this Section 4.6, Owner shall have no obligation or responsibility to convey the
River Tract or grant the Drainage Easement and the Town shall not deny the issuance of any
building permits for the Property for such failure by Owner to satisfy the requirements of this
Section 4.6. Owner's dedication of the River Tract in accordance with this Section 4.6 shall in
no manner modify or otherwise affect setbacks from Eagle River and Beaver Creek as set forth
in the PUD Development Plan and Development Standards and all such setbacks shall be
measured from the average annual high water mark, as shown on the PUD Development Plan
and Development Standards. Further, Owner may use, refer to and include the size, area and
location of the River Tract for any future development application related to the Property or
amendment to the PUD Development Plan and /or Development Standards for the purpose of
calculating density, site coverage, setbacks and any other applicable dimensional standards and
compliance with other development standards of the Town, the intention being that the
dedication of the River Tract to the Town by the Owner shall not operate to render the
application of the Town's development standards to the remaining portion of the Property more
onerous or restrictive.
4.7 School Site Dedication. Based on the size the Property and the number of
proposed residential units to be constructed thereon, the land dedication requirement as
calculated by the formula set forth in Section 16.50.020(a)(2) of the Municipal Code is not
practical and therefore payment in lieu of a school site land dedication ( "School Site Payment ")
is hereby required. Contemporaneously with the Town's approval of the first building permit for
the Property, Owner shall provide the School Site Payment, which shall be based on a report
prepared by a qualified appraiser engaged by Owner (and completed within the 12 months
preceding the time payment is due) of the fair market value of 1,748.5 square feet of unimproved
developable land in the area suitable for a school site; provided, however, if the Town disagrees
with such report, the Town may engage a qualified appraiser to prepare a report based on the
same criteria and the School Site Payment shall be based on such report. Town agrees to deposit
the School Site Payment in a fund for school purposes which funds may be appropriated and
expended in the discretion of the Town. Payment of the School Site Payment shall be deemed to
be complete satisfaction of the School Site Dedication requirement set forth in Chapter 16.50 of
the Municipal Code. The School Site Payment shall not restrict, limit or impair the imposition of
any legislatively adopted fees for school purposes which are general in nature, uniform in
character and applicable to all properties or a similarly situated class of properties.
Page 9 of 42
6 -16 -09 ejh
4.8 Emergency Service Impact Fees. Owner acknowledges that Town has fully
disclosed the Impact Fee for Emergency Services as set forth in Ordinance No. 08 -06, Resolution
No.08 -20, and Section 3.40.100 of the Municipal Code. Owner agrees to pay the fees for fire
protection and emergency medical services as may be adjusted from time to time in accordance
with Chapter 3.40 of the Municipal Code.
4.9 Recycling Red House Materials. Owner agrees to use commercially reasonable
efforts to recycle, reuse or make available for reuse the salvageable building materials from the
demolition and removal of the Red House structure. Owner's compliance with this Section 4.9
shall be subject to the sole discretion of Owner and Town shall have no right to declare any
alleged non - compliance with this Section 4.9 a default of this Agreement.
ARTICLE V
TOWN OBLIGATIONS
5.1 In addition to the Town's other obligations set forth in this Agreement, the Town
shall grant to Owner the following easements:
(a) Contemporaneously with the Town's execution of this Agreement, the
Town shall grant to Owner a non - exclusive perpetual access and utility easement appurtenant to
the Property over a portion of certain real property known as Parcel TK -14, which abuts the
Property, as generally depicted on the PUD Development Plan ( "Access and Utility
Easement "), in accordance with the form of Access and Utility Easement attached hereto as
Exhibit D.
(b) Contemporaneously with the recording of the Minor Subdivision Plat and
Owner's dedication of the River Tract to the Town, the Town shall grant to Owner a non-
exclusive landscape construction and maintenance easement appurtenant to the Property over the
River Tract ( "Landscape Construction and Maintenance Easement ") in accordance with the
form of Landscape Construction and Maintenance Easement attached hereto as Exhibit E.
Owner shall install or cause to be installed all landscape Public Improvements on the River Tract
in a good and workmanlike manner in accordance with applicable Town regulations and
specifications as in effect on the Effective Date and the SIA.
ARTICLE VI
WATER SERVICES
6.1 Upon Owner's compliance with Section 4.1 hereof and payment of applicable
fees and charges pursuant to the provisions of the Municipal Code and /or other generally
applicable rules and regulations of the Town, the Town shall cause water service to be provided
to the Property, as required for the development of the Property. Water infrastructure and other
capital facilities which are necessary for the Town to provide water to the Property shall be
provided by Owner in accordance with the plans for same included in the PUD Development
Plan. Owner and the Town shall enter into the SIA, and upon compliance with the terms thereof,
the Owner shall convey the water infrastructure improvements to the Authority by good and
sufficient bill of sale.
Page 10 of 42
6 -16 -09 ejh
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Neither Owner nor the Town shall record or cause to be recorded the instruments
described in C.R.S. § 31- 12- 113(2)(a)(II)(A) unless and until (i) the Town and Owner have
complied with or Owner has waived the conditions precedent set forth in Section 20 of the
Annexation Petition, which conditions precedent are incorporated herein by this reference; and
(ii) the Town Council has approved the Preliminary Plan and such approval becomes final and
non - appealable, or Owner has waived such condition.
ARTICLE VIII
DEFAULTS, REMEDIES AND TERMINATION
8.1 Default by Town. A "breach" or "default" by the Town under this Agreement
shall be defined as the Town's failure to perform any of its material obligations under this
Agreement, including the obligation to provide water service in accordance with the terms and
conditions of Article V, after the applicable cure period described in Section 8.3.
8.2 Default by Owner. A "breach" or "default" by Owner shall be defined as
Owner's failure to fulfill or perform any material obligation of Owner contained in this
Agreement following the applicable cure period described in Section 8.3.
8.3 Notices of Default, Right to Cure. In the event of a default by either Party under
this Agreement, the non - defaulting Party shall deliver written notice to the defaulting Party of
such default, at the address specified in Section 9.7, and the defaulting Party shall have thirty
(30) days from and after receipt of such notice to cure such default. If such default is not of a
type that can be cured within such thirty (30) day period and the defaulting Party gives written
notice to the non - defaulting Party within such thirty (30) day period that it is actively and
diligently pursuing such cure, the defaulting Party shall have a reasonable period of time up to
one hundred eighty (180) days given the nature of the default to cure such default, provided that
such defaulting Party is at all times within such additional time period actively and diligently
pursuing such cure.
8.4 Remedies for Default by Town.
(a) Except as otherwise provided in this Agreement, if a default by the Town
under this Agreement is not cured as described in Section 8.3, Owner shall have the right to
enforce the Town's obligations by an action for specific performance.
(b) Because this Agreement constitutes a development agreement which
confers vested property rights pursuant to the Vested Property Rights Statute and the Vested
Property Rights Code, any action by the Town that revokes or impairs the vested property rights
granted by Sections 2.2 and 2.3 shall entitle Owner to an action for injunction or specific
performance or to seek compensation to the extent permitted by Section 24- 68- 105(1)(c) of the
Vested Property Rights Statute. Owner agrees, however, to first pursue specific performance,
and, if granted, shall have no right to pursue compensation as set forth in Section 24-68 -
105(1)(c) of the Vested Property Rights Statute. Only if a court of competent jurisdiction denies
specific performance shall Owner be entitled to pursue compensation as set forth in Section 24-
Page 11 of 42
6 -16 -09 ejh
68- 105(1)(c) of the Vested Property Rights Statute. Adoption of the ordinance approving this
Agreement is subject to referendum pursuant to the Vested Property Rights Statute. In the event
such a referendum is filed and succeeds in overturning the approval of the ordinance authorizing
this Agreement, the vested property rights created under this Agreement shall be null and void;
provided, however, that none of the development rights for the Property or approvals granted to
Owner under the PUD zoning or the PUD Development Plan and Development Standards shall
be affected thereby unless overturned by a separate referendum.
8.5 Remedies for Default by Owner.
(a) If any default by Owner under this Agreement is not cured as described in
Section 8.3, the Town shall have the right to enforce the Owner's obligations hereunder by an
action for any equitable remedy, including injunction or specific performance; or an action to
recover damages.
(b) Because this Agreement requires the Owner to provide or cause to be
provided Public Improvements in order to serve the development of the Property, in the event of
a breach or default by the Owner, the Town may withhold the processing of any development or
permit applications relating to property located within the Property or withhold issuance of
permits, water taps or certificates of occupancy for property located within the Property.
(c) Subject to the notice requirements of Section 8.3, if any default by Owner
under this Agreement is not cured as described in Section 8.3, Town Council may declare the
vested property rights created by this Agreement, and any amendment to this Agreement or the
PUD Development Plan and Development Standards, forfeited in accordance with the provisions
of the Vested Property Rights Code; provided, however, Town Council's determination that such
vested property rights are forfeited shall be subject to Owner's right to appeal such determination
pursuant to and in accordance with C.R.C.P. 106.
(d) Any amounts of money owed to the Town by the Owner under this
Agreement shall accrue interest at the rate established in Section 3.32.010 of the Municipal
Code.
(e) Each remedy in this Section 8.5 is cumulative and is in addition to every
other remedy provided for in this Agreement or otherwise existing at law or in equity.
8.6 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, including, without limitation, any breach, default, or interpretation hereof, shall be
settled by binding arbitration in Eagle County, Colorado, in accordance with the Uniform
Arbitration Act, § 13 -22 -201, C.R.S., et seq. The parties shall each appoint one arbitrator and
attempt to select a third arbitrator agreeable to all, but if they are unable to do so within
twenty (20) days after a request for arbitration, then such arbitrator may be appointed by any
judge of a competent state court having jurisdiction in Eagle County, Colorado, upon application
of any party. All arbitrators individually and jointly selected by the parties and /or appointed by
the court must be Colorado - licensed attorneys who have substantial experience in real estate
development. Any such arbitration panel shall have the power to grant any relief, including
equitable relief as just and appropriate. Any award in such arbitration shall have the effect of a
Page 12 of 42
6 -16 -09 ejh
judgment and may be entered in any court having jurisdiction thereof. Each party shall bear its
own costs of arbitration.
ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado.
9.2 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and the Owner, and nothing contained in this Agreement shall be construed as
making the Town and the Owner joint venturers or partners.
9.3 Applicability of Avon Municipal Code. All matters not covered by this
Agreement are controlled by the Municipal Code to the extent applicable. This Agreement does
not prevent the Town from imposing additional requirements not inconsistent with this
Agreement as conditions for approval of a future subdivision or the granting of a building permit.
9.4 Expenses. The Owner shall reimburse the Town for its out -of- pocket costs and
expenses incurred in connection with the negotiation of this Agreement pursuant to that certain
Reimbursement Agreement previously entered into by and between the Owner and the Town
dated April 30, 2008.
9.5 Waiver. No waiver of one or more of the terms of this Agreement shall be
effective unless in writing. No waiver of any provision of this Agreement in any instance shall
constitute a waiver of such provision in other instances.
9.6 Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect.
9.7 Notices. Any notice or communication required or permitted under the terms of
this Agreement shall be in writing, may be given by the Parties hereto or such Parties' respective
legal counsel, and shall be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the
intended recipient's facsimile facilities accessed by the applicable telephone number set forth
below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the
noticing party). Any notice shall be delivered, mailed, or sent, as the case may be, to the
appropriate address set forth below:
Page 13 of 42
6 -16 -09 ejh
If to the Town: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
Telephone: 970 - 748 -4005
Facsimile: 970 - 748 -4078
And: Eric Heil, Esq.
Widner Michow & Cox LLP
13133 E. Arapahoe Road, Suite 100
Centennial, Colorado 80112
Telephone: 303 - 754 -3392
Facsimile: 303 - 754 -3395
If to Owner: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Keith Fernandez
Telephone: 970 - 754 -2524
Facsimile: 970-754-2555
And: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
Telephone: 970 - 754 -2534
Facsimile: 970-754-2555
And: The Vail Corporation
390 Interlocken Crescent
Broomfield, CO 80021
Attn: General Counsel
Telephone: 303 - 404 -1800
Facsimile: 303 - 648 -6422
And: Otten Johnson Robinson Neff + Ragonetti PC
950 17th Street, Suite 1600
Denver, Colorado 80202
Attn: Kimberly Martin
Telephone: 303 - 825 -8400
Facsimile: 303 - 825 -6525
Each Party may change its addresses and /or fax numbers for notices pursuant to a written
notice which is given in accordance with the terms hereof. As used herein, the term "business
day" shall mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail
Page 14 of 42
6 -16 -09 ejh
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period shall be deemed
extended to the next succeeding business day thereafter.
9.8 Amendment of Agreement. Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and the Owner in
writing following the public notice and public hearing procedures required for approval of this
Agreement. Notwithstanding any provision of this Agreement to the contrary, for the purpose of
any amendment to this Agreement, "Owner" shall mean only the Owner as defined herein and
those parties, if any, who have specifically been granted, in writing by Owner, the power to enter
into such amendments.
9.9 Binding Effect; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors in interest or the legal
representatives. Owner shall have the right to assign this Agreement without the consent of the
Town, provided that the assignee fully assumes in writing all obligations of Owner and Owner
provides written notice to the Town of such assignment. Nothing in this Section 9.9 shall be
deemed to limit or in any way restrict the sale or other conveyance of property within the
Property.
9.10 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.
9.11 Governmental Immunity. Nothing in this Agreement shall be construed to waive,
limit, or otherwise modify any governmental immunity that may be available by law to the
Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the
Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
[Signature Pages Follow This Page]
Page 15 of 42
6 -16 -09 ejh
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the
date first written above.
i
ATTEST
STATE OF COLORADO
TOWN:
C. Wolfe, Mayor
) ss.
COUNTY OF EAGLE )
S�
Subscribed before me thin) day ofQX1AJ , 2009, by Ronald C. Wolfe, as
Mayor, and Patty McKenny, as Town Cle of Tow f Avon, a Colorado municipal
corporation.
A
My commission expires:
KRISTA D. JARAMILL
NOTARY PUBLIC
STATE OF COLORADO
My Commission Expires 07/29/2 11
Page 16 of 42
6 -16 -09 ejh
OWNER:
THE VAIL CORPORATION, a Colorado
corporation, d/b /a Vail Associates, Inc.
B :
Y
Keith Fernandez, President & COO -VRDC
STATE OF COLORADO )
ss.
COUNTY OF ie )
The foregoing instrument was acknowledged before me this 6 day of ?-c
2009, by Keith Fernandez, as President & COO - VRDC of THE VAIL CORPORATION, a
Colorado corporation, d/b /a Vail Associates, Inc.
My commission expires:
�L R
f
Notary Public
ER•C(��
O T'q'•.�i2
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cn ;
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COLOR
Approved as to Form
Vail Resu • Le al Deparhncnt
Bv:
Name: DRL BANNAN _
Date: W 01-1
Page 17 of 42
6 -16 -09 ejh
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Lots 1 and 2, Exemption Plat of Red House, County of Eagle, State of Colorado, recorded on
November 7, 2000 in the Office of the Eagle County Clerk and Recorder at Reception
No. 743459.
A -1
6 -16 -09 ejh
EXHIBIT B
PUD DEVELOPMENT PLAN AND
DEVELOPMENT STANDARDS FOR RED HOUSE
[Follows this page]
B -1
6 -16 -09 ejh
t. rate PhD pM 1 Nat omtalRe the dWMWo It at -dude ood u- far the Rod 11aw
PUD- ThY RW Neu qp tokw pno•d•iq• over other pn•rd xmYa teWbtbn. of tM row
far thew rotten that - ap•cwy aee.a.ad h. s to a• Rod Nouw ==' nd
D.a.fapm.r AW—L
2 raa Z -bq AdnYWaty moy datrmb• and odmYbfrethdY wpreve eddnland Ina u- for
are Rod 11auw PUD aM{v b the Prmtttd Me '+trader R•raw U- wt forth b the. Rod House
PUD.
1 HabRhdmMYq rate parrs of qe row lAnkpd Oed•, w Mm aad tram time b time, to
qa a- river modlftoofion• ( na =: =too
Rw fwt b MY dt elfin) may be mad• to
WtehR y LWdYy oanlquntYn•, erM tau•, paRYq�w •ay .1 Z•oam•Rb
w eap - iM PVD rat Non ne wca -t mar omr end d1d
Ml np8. ORd ddl not N dwnod b tee n anndmnt b the Rod ilara• P1A>; praateaq
aewwa furgr nseadwnt inb qa etraan •albaek of nY C-a W- rte{ not w d0w•d
under ara Card Not• A nd Nm w aanaudr.a u10er wnerol Nab 4. w apptlemle.
4. 1blwNhets,dbM -y prardn of the Tow Wnly.d CedS w annd•d tmm Stew , ten•, to
time eentrvx Tow eteR mar opProtw •dw ftnUr• rnr�dn•nb to qY R•d Neuw PUD leer
the moeltw %.OMW below, W."aa the 9nrd binl aM track entnt of the Rod 1lallw
PUD, w too." -41at Y - trslnr. ds1 wt NA) WWopmant:
a. Minor to"Reatlm (rs greater Ut•n M feet b -Y dV-U -) to bath•,. /wtpttW
4redlt{ wnRa�o�YnA bM 1 -ae, Pardt{ apaw aye Ott- tmpo,rnnf. oa dapklod
9 Rod NwN R1P, rc
b. Reductkn b dnrry.
O.ner drm anna 5d. Rod Haw PUD aa•d(e) aNeet.d by the PrW-.d oodfloation aad
eubmR wM naal(e) to a• Tow a rarw ane oppovef ups proof of o- formarn Wth
lM repubrnrdb M ate anaral Note L
A& m Uuoupl- of amp RuaUala qe prapowd I epownnY approved Or tM rave of
owdepmam* Z r•ww .were
6. Aa prepe•od tmpeasnnb anew dtbat ad• U.S. NI{awey { Ryrt- al-Way s• wbjdat to
nNw end opprO.d OY tide Craaw Divannt at T naprtallen.
7. ►r•Parlr idea•, Loeb old E—ts anoen -the plan are Ran the PrdbYory Nn for
SrOAZ. tar Rod Nrs PUD,
a euddbp erddbaawd stye -d purity ddl be aammanau.te with the aono peal r-ded,
wenaeted .tn lM P ro zan►q apOlDation ar -the da the Taw.
e. M-Wt awrtnb ! Tbn•dwae are not prwdlt d —
1w The and Larabo e P n dam be M&Wtted to the Dhwm or WW- for rerw Me
--t for pint m Wld .racoon ne r -ateeb Yput /npu•ate d.A be a*.red to.
11. Owar• d•dbdlYn r as RFR Tote (Trott A) w anbmpbdod b Un Rod Neu« AalreaStni
aM Dawdmntnt Agwnrd cam Y no mrnr redly a •tarwla• aNwl wWada kOm Eapa
Rar eod leaver C.0 w aet earth Y this Rod Haw RO and d
awdr wee e•tlnrA• ddl W
maawNK Ran the Ova ape t adyt water msk, w aaaw n the Rod Haw PM F~
O.nr mar ute, rarer to Mod hd-de ft dal sae -e la-W- of the River Ttwt (Lott A) M
MY falun earropmwrt OppM00hrr related b are y avbject b late PUD Dwdepmnl Nn
v anandmrrt b Ufa PVp Wtdapmant Plan aM /ar {awYpmant Stndada W q• pmpOw of
odoubtep e.atryc Meth oowrage, •dbadre aw ray .tar mnl.naaend atonderda ne
aamp0aw .nth otar deMepmrtl etmdada or the row, (a1 bens 1 to that qe d.dYemt
W the "� Lae (Tract A) b qe Tow by qe Qmr drm not sprat• b rwdr the aapMaotbd
r tM TewS eawdopnnt alandad• b tM rrnobaq
patio of the paprty dubyat to a" PUD
DMapmnt Peen mere alwsda r rrbktAa
12 Wapeyeod aewwotk Yrpalsnnb cam be motrlmy ealdatnt b daalal cod matwkb b
Part of IM Y �
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LEGEND
P]nEtNAL BOUNDARY
INTERIOR LOT
-° --° ADJACENT PROPERTY
---�'- SECTION UNE
BUILDING ENVELOPE: \SETBACK
- - AVERAGE 19tH WATER MARK
---- - -_ ` -- ------ EASEMENT UNE
EAGLE RIVER\BEAVER CREEK
PROPOSED ACCESS
AND U71UTY EASEMENT
PROPOSED CONCRETE SIDEWALK
RedHouse
Standards
PUD
Permitted
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Approval of this plan constitutes a
P U D
DEVELOPMENT
PLAN
vested property right pursuant
Article 68 of Title 24, C.R.S., as
EXHIBIT A
TO ORDINANCE
No. 0 9 — 07
amended, n Muicipal Chapter eras omendeed.
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t W mrdNAida va pniilld Y
ttrtam•dc
Serb f epw
Oro adm t.5apeor
Too can 2q—
Parking ardp*M
34 `13 -p-
640.0a 3apor
tt -13 twit 4Wp
• Short tarn rentole ore subject to all oppikoble
Town of Awn Lkerlegg, Fe•a and Tarns.
SCALE: 1" = 200
DATUM: NAVD 88
SHEET
INEERING INC OF 1
I
•�a�eoa n
us-3sD
IE
k
I
t
21911 EP
L The purpose of this Flmd Pill h (Q Gxto Lot t and Treat A. as chow an Sheet 2 pursuant to Tow
a1 Awn land UVI RegJalkna eM WC(dl) Roeleed Slaulu canesmtnq the wbdaelan of Lana to be
reruded with IM E.O. County deck and R.tada pursuant to C.RS 3E -35 -109 wdr Uw! eceb LO l a
rnat may be UNWely desorbed with nferwae to this Find Rol, (4) to wcah the comma, lot the
bettren Lot t and tot 2. Ezsmplbn Rat, Red If-w and (10) to -is -I.. --is W the
Purposees awlb*d he-
2- Baas of Bearing: NO076'37-E 2603.4t' bal.an the Centel, 114 Com , of Section 12. Twnrap S
South, Range 62 Wxl of Me Sixth principal Naidian (found 3 -t/2' aluminum cap, LS /26625 h plastic
mau I eve) and eh. sooty 1/4 Cana of Will section t2 (found 3-1/2' BLN brow cap).
J. Dale of Survey. Nay 2006
4. Na right -ref -troy x, drtws, bauiwarde, lases, courts a� alleys ma being dedkotod
W public use by talus of thin Fnol plot
s. The VON Capaatkn, for Itself. Its aucc.nms and 0-9419 hereby nseYy the fedastng papetud and
nn- xaluaw easnnetls,
.) Sese E ---t.- an wwnxt an, Ob.M way and MuclO these sea designated herea, as 'Sees
Eeeenn!' tarpurpow of depowi d tronamlselan el tlomeslk .owoga tin• tdo9elkn,
use. npok q 1, aluto not and metntenanw o1 ..story sower .WaWVe tnddhy but not ba. I.
unholy, pip antler wwwned struchr to9ethW w1N a prpehol dqh( Of t9r.ss and prey lens
b) Dntege E.sennb t «, ,above, aarass and Nroueyr thaw "to daynaled bWea,
brokw9e Eaesmnt' for tFle purpasw of the fe9owkq, and 9thout Ikneaifan.. ua: t0-tdlh. mohtethµ
Ns dro and npl.dn9 •atop faNitlee of ay kind a n.Wre, Ntludnq but not pmlted W, tam dntaga a,d
boor x� Ea w „ion nerhq hem attw IorMV. lgeua .Rh a papetaof N9ht err Ing- and sgnew to .M
S. N r deb ' tnwwts Memewd an this Mal pill err. noorded h the OM0- of the E.O. County, Cuhnda
Clerk and Recorded.
7. Raft to Land TIIN Guaatw Company Order No. V300209” -2 dated Jaway 07, 2009 kr III title hformotan.
6. The 100 Yea hoed plain far the Eagle Rhlr sheen here• Vos demxd ham the Eogls County Flood Noland Nap.
9. Th. 2e' WTm Pedsetrian and Vehlcubr Access E.sema,l 0-d Right- of -WOy as n wd at Book 535, Paagqe t3s
I ebew an Eaemyti n R.I. Red Noue., Rec ptla, Mo. 743459, ha been termtoted by tnetnmalt r«aded et
Reception Na 200674606.
[0. NOTICE: Aceerdng to Colaredo I0- you mud ea,wmy y Iegd «Uan eased span an old «t x
INS wrxy went woe yea, aRa lad " alec.va xrN defect. In n. eesel may any aallc,, boxd
upon ahya�fxl h Mis eurwr be commneM men Man ter yqs lrom the dot. of one wO6alin
SURVEYOR'S CERTIFICATE
I, RWat S. lee, de hereby certify that I am . Rplslared Land Surwya Iknew uMSr the
law Of the State of Cal that Nis plat Is a tNe, correct and comp4le Rot of E40 Riser at Avon,
A R,:Wbdlelahn of Loh I and 2, Eaanptan Rat, Reaioue, Tow of Awn, Eagle Csunty. Colo, ad
ds mid al, ppiattod, dedicated and show ha.on, that t h plot wee mods film w «numb
survey of wid prowl, by me and/Or undo mY super". anal carecay snw. the location
and dknn.bns of the lot., --.1. and .m is of said subdMaan ee the some .n staked
monuments n Me 9_4
on set dint, with app6oeWe reg9etbn. gevanhq the suba9ston of land.
equyed by the Suba la Requbtkne of ths Tow of Awn,
in Mlness Mtarsef, I how set my hand and eoO this _ day of A 0.. 2009
Rabat S. Lw PL5►23046
TITLE CERTIFICATE
hereby ceMIty that It has ..anted Ills 71U. to a9 land, 9 _n upa,
W. Not end that Title to euO land. I. wend In
lase and clear of a9 Von.. U.. ad wwmbroncef. -`Vic Nose melt".
set forty h S-1.dul. 8-2 of tb. commltmnt W IRIe tarronce lowed by Land no*
aarantee Company, Oro k, No. V50020999 -2 dated J-dry 7, 2009.
Doted Nis — day of A.O., 2009.
A1.4tIT
PRELIMNARY PLAN FOR SUBDMSION
EAGLE RIVER AT AVON
A RESUBDPASION OF LOTS 1 AND 2, EXEMPTION PLAT, RED HOUSE
SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN
TOWN OF AVON
EAGLE COUNTY, COLORADO
■
r_
............
• r(J `,1hk111h�',��
TOWN CERTIFICATE
Thin Rat, .Ia,derds and d.fhelane ere aRxsd by the Tow Canty of the Taw a/ Awn, Canty of Eg'
Smh of COWedo tint e1 A.0., 2009 fa f6nq aN the perk .M Redonda of Ilre
county of EGils and W aanwraneo to Ne Town of Awn 1 Me public d.deeOins show heron ").at I.
the pr.Wkn that appraval In no trey ebllgatIs the Taw a Awn 11 flnanc1 a eanstncikq of
=21Al Or Uqt saW opprowl " h say lob Ipoh Me TTOwnt of Awn iayr whlanma of s4set. �n�
Wclbn of bnPro_ . M— Mall haw bevel completed to the sotishdUan of the Taw County.
Approna of thin Plat by the Tow b mat cord shall not be cen.Wx to be m appowl of the Uannied
ctnen If NM Rota of ay doe"nnbUan, plena Teats or auah. xbldtted by OVnW In connecli«
thaaN.
WINES$ NY NANO AND SEAL OF THE TOWN OF AVON
ATTEST:
Tow Chrk IAeya, row Cauoc1
Tow of Awn, Ctlerado Tow of Awn, Colorado
CLERK AND RECORDER'S CERTIFICATE
This Rot was fled fa retard In the Office of Me Chlk and Rea -le, at —'clock_ a, this
day of 2009 and is duly recaasd a RedeptW No._
Ora and Records
By Deputy
CERTIFICATE OF TAXES PAID
I, the undersigned, do hereby .,Ufy Not the -lire amount of to,. and as sells M I
p.yabl. as a upon ad portalis of red selot. dewtbcl a,
We plot ere paid F he.
Dated this _ day of A.0. 2009.
T-- of Eagle County
CERTIFICATE OF DEDICATION AND OWNERSHIP
Know by dl by these prints Not The Vol Cmparotkn. a WWI* Wpontior, behv
sal r(y n! sings of 0 Met rw praparer rWetM h v,. roan of Awn. Eels County
CdW.da deevOed as fob-
Loh t and 2. Ezsmptlan Ret, Red H... recorded 0w.n, 7, 2000 0l Raaptla,
No. 743459 t the recade of Eagl. County, Colander, ea,townq t.Mt oerw, man or Iwi
nova by thee. Resents laid cut. pbthd and subdrded the sane Into late and blocks a show
Fat. and de.igats Nor some ee Eagle Riva at Awn, a ReIVAHIV lam of Lot. t d 2. E..Wtlan
Rao Red Neu", T.en of Aron, County of Eagl., Stvh of Cdaetla d dedkoh fa pub9c use Ns etreeh
chow h.r.h tdudbq wanuse, MveA baolovada Imes, courts and and to the i of Awn:
EXECUTED this _ day of _- A.O.. 2009
0-- Tins Val C.rporatkzh a Colorado car Vatlan
By.
Name: Keith Fanandex
ilUr. 1"I"delt alt COD - VROC
STATE Y MORADO
s
COUNTY OF EAGLE
The for «ninr Catllkate of Oedcatlw and Owerrdp 0-s cckneaedged beiWO m9 this _ day
at__, AD. 2009, by
Y CanmlWan .lay
Morey my Rand and afraid VIOL
Nddry Publa
0
i
PARCEL TK -14
RECEPTION No. 435725
OWNER: TOWN OF AVON
FOUND
wiH (OQX
PL IQ3
NdtiN a: 13'
a24' WEST)
i ' ii PRELIMINARY PLAN FOR SUBDMSION
I
TRACT A EAGLE RNER AT AVON
NOT
I ! i TINGHAM STATION
I ! ! RECEPTION No. 389902 A RESUBDMSION OF LOTS 1 AND 2, EXEMPTION PLAT, RED HOUSE
1
!2yo 14 E 1286r SECTION 12, TOWNSMP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN
/ , —_ O'
� f`'� . r'r /584'32' w / ''�^•� \ \\
10 ais
EAStElE74r'AavmENr
=,Q� � t� `_ N, 76y�, R[eEr>rtw nn 2oatuva.3 �l
t J
�~s70 .
i
pp/ FCUNO sro' REBAR APPROXIIIA7E loo 1cAR
I Hof ! wtN Y A(C 5 2304e FLOOD PLAe 70'' •�
bI ! STAMPED 36.0 RC" N.
I =7 WI / ng•. �
N2935'57 -W
U7 •- I / m/v W t!
(]W�
DIY;
EXHIBIT D
FORM OF ACCESS AND UTILITY EASEMENT
[Follows this page]
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
After recording return to:
The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
ACCESS AND UTILITY EASEMENT AGREEMENT
THIS ACCESS AND UTILITY EASEMENT AGREEMENT (this "Agreement ") is
made and entered into as of this day of , 2009 ( "Effective Date ") by and between
The Vail Corporation, a Colorado corporation, d/b /a Vail Associates, Inc. ( "Grantee ") and the
Town of Avon, a home rule municipal corporation of the State of Colorado ( "Town ").
RECITALS
A. Grantee is the owner of certain real property located in the Town, as more
particularly described in Exhibit A attached hereto and incorporated herein by this reference (the
"Grantee Property "), upon which Grantee intends to develop a residential project (the
"Project ").
B. The Town is the owner of certain real property located in the County of Eagle, as
more particularly described on Exhibit B attached hereto and incorporated herein by this
reference (the "Easement Area ").
C. The Easement Area is situated between and abuts the Grantee Property and
existing Avon Road right -of -way improvements.
D. In connection with and to support Grantee's development and on -going operation
of the Project, Grantee desires vehicular and pedestrian access from Avon Road to the Grantee
Property over the Easement Area, and Grantee further desires to construct, install and maintain
certain private and public landscape, landscape irrigation, drainage, utility, lighting, signage
and /or traffic control improvements (collectively, the "Improvements ") from Avon Road to the
Grantee Property over the Easement Area.
E. In order to facilitate access to and Grantee's construction, installation and
maintenance of the Improvements for the Project, the Town desires to grant to Grantee an access
and utility easement over the Easement Area and Grantee desires to accept such grant pursuant to
the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Grantee and the Town (each a "Party" and collectively, the
"Parties ") hereby agree as follows:
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
1. Grant of Easement. The Town hereby grants to Grantee upon, in, over, through,
under and across the Easement Area for the use and benefit of Grantee and its agents,
contractors, subcontractors and employees (collectively, "Permittees "), a permanent non-
exclusive access and utility easement ( "Easement ") for the purposes of (i) vehicular and
pedestrian ingress and egress to and from the Grantee Property; and (ii) construction, installation,
maintenance, repair, removal and replacement of the Improvements, together with all rights of
reasonable access to the Easement Area as are reasonably necessary to accomplish such
purposes.
2. Reservation by the Town. The Town hereby reserves for itself and its successors
and assigns the right to use the Easement Area for any and all purposes that are not inconsistent
with and do not unreasonably interfere with the Easement hereby granted except as provided in
Section 4. The Town reserves the right to grant such additional non - exclusive easements or
other interests in the Easement Area as may be determined necessary or desirable by the Town;
provided, however, such grants will not unreasonably interfere with the Easement hereby
granted.
3. Restoration of Propert y. Except as permanently modified by Grantee's
installation and construction of the Improvements, after completion thereof, Grantee promptly
will restore the surface of the Easement Area as near as reasonably possible to its condition
existing prior to the Effective Date, and Grantee will repair any damage to the Easement Area.
4. Cost of Improvement Relocation.
(a) The Town hereby reserves the right to install, construct, repair, maintain
and alter public improvements and otherwise utilize the Easement Area for all municipal
right -of -way purposes, which includes the right to demand relocation or cause the
relocation of any Improvements installed or maintained by Grantee, and the cost of any
such relocation of Improvements installed or maintained by Grantee will be borne by
Grantee. Prior to commencing work in the Easement Area, the Town will provide at least
three (3) days written notice to Grantee, which notice will describe the work to occur in
the Easement Area. In the event that the Town causes the relocation of Improvements
pursuant to this Section 4, Grantee will be liable for reimbursing the Town for such costs,
which costs will be due and payable to the Town within thirty (30) days of the date of the
Town mailing an invoice for such costs to Grantee and the amount due, if unpaid, will
accrue interest in accordance with Section 3.32.010 of the Town Municipal Code, as may
be amended from time to time.
(b) As provided in Section 2 The Town further hereby reserves the right to
grant licenses, franchise agreements and /or easements to third -party utility providers to
utilize the Easement Area, which includes the right to demand relocation of
Improvements installed or maintained by Grantee, provided the cost of any such
relocation and /or repair of Improvements installed or maintained by Grantee, including,
without limitation, costs to repair surface right -of -way improvements and landscaping,
will be borne by such third -party utility provider. Any such licenses, franchise
agreements and /or easements entered into between the Town and third -party utility
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
providers after the Effective Date will provide that, prior to commencing work in the
Easement Area, such third -party utility provider will provide at least three (3) days
written notice to Grantee, which notice will describe the work to occur in the Easement
Area.
5. Safety Measures. All construction, maintenance and repair activities on the
Easement Area and in connection with the Improvements carried on by Grantee or its Permittees
will be conducted in material accordance with all applicable laws, rules and regulations, and will
be done in a manner and with such safeguards as are reasonably necessary to try to avoid any
personal injury or property damage in connection therewith.
6. Mechanic's Liens. Grantee will pay or cause to be paid all costs for construction
work done by or on behalf of Grantee or any of its Permittees or any other person occupying the
Easement Area by, through or under Grantee, or caused to be done by any such parties on the
Easement Area and Grantee will keep the Easement Area free and clear of all mechanic's liens
and other liens on account of construction work done or performed on behalf of Grantee or any
of its Permittees, or persons claiming by, through or under Grantee. Should any liens be filed or
recorded against the Easement Area or any action affecting title thereto be commenced as a
result of such construction work (which term includes the supply of materials), Grantee will
cause such liens to be removed of record within sixty (60) days after receiving notice thereof.
The foregoing sixty (60) day cure period will be in lieu of the notice and cure provisions of
Section 7 (which provisions will not apply with respect to the matters addressed in this
Section 5). If Grantee desires to contest any such claim or lien, Grantee will file a bond with the
appropriate court and obtain a release of such lien pursuant to C.R.S. § 38 -22 -132, as amended.
If a final judgment establishing the validity or existence of any lien for any amount is entered,
Grantee will promptly pay and satisfy or cause to be paid and satisfied the same. If Grantee will
be in default in paying any construction charge for which a mechanic's lien or suit to foreclose
such lien has been recorded or filed and Grantee will not have bonded over such lien as provided
above, the Town may (but without being required to do so) pay such lien or claim and any costs
and amounts so paid, together with reasonable attorneys' fees incurred in connection therewith,
will be promptly due and payable from Grantee to the Town.
7. Notice and Cure. In the event of a default by any Party under this Agreement, the
non - defaulting Party will deliver written notice to the defaulting Party of such default, at the
address specified in Section 12, and the defaulting Party will have thirty (30) days from and after
receipt of such notice to cure such default. With respect to non - monetary obligations, if such
default is not of a type that can be cured within such thirty (30) day period and the defaulting
Party gives written notice to the non - defaulting Party within such thirty (30) day period that it is
actively and diligently pursuing such cure, the defaulting Party will have a reasonable period of
time up to one hundred eighty (180) days given the nature of the default to cure such default,
provided that such defaulting Party is at all times within such additional time period actively and
diligently pursuing such cure. Such remedies will be cumulative of one another and the exercise
of any one of such remedies will not preclude the exercise of any other remedy provided herein
or otherwise provided by applicable law.
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
8. Indemnification. Grantee will indemnify, defend and hold harmless the Town (and
its officials, agents, representatives, employees, contractors, and successors and assigns) from all
claims, demands, damages (including, without limitation, consequential damages), causes of action,
fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys' fees)
resulting from claims for bodily injury (including death) to any person or damage to any property,
caused by or arising from the conduct or activities of Grantee or its Permittees in the exercise of
its rights under the Easement hereby granted (including, without limitation, maintenance, repair and
replacement activities); provided, however, such indemnification will not extend to any claims
caused by or arising from the Town's negligence or willful misconduct.
9. Governmental Immunity. Nothing in this Agreement will be construed to waive,
limit, or otherwise modify any governmental immunity that may be available by law to the
Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the
Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
10. Attorneys' Fees. In the event any action is brought to enforce any provision of
this Agreement or as a consequence of any breach or threatened breach of any provision hereof,
the prevailing Party in such action or dispute will be awarded its court costs and attorneys' fees
from the other Party.
11. Assignment. Grantee will assign all rights and obligations of this Agreement to
an owner's association formed for the Red House Planned Unit Development prior to the Town's
issuance of the first temporary certificate of occupancy for any improvements constructed on the
Grantee Property. From and after the date of such assignment, Grantee will have no further
obligations or liabilities under this Agreement, provided that any outstanding obligations or
liabilities of Grantee under this Agreement arising prior to the date of such assignment will be a
joint and several obligation of Grantee and such owner's association.
12. Notices. Any notice or communication required or permitted under the terms of
this Agreement will be in writing, may be given by the Parties hereto or such Parties' respective
legal counsel, and will be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the
intended recipient's facsimile facilities accessed by the applicable telephone number set forth
below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the
noticing party). Any notice will be delivered, mailed, or sent, as the case may be, to the
appropriate address set forth below:
D -5
6 -16 -09 ejh
EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
If to the Town: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
Telephone: 970 - 748 -4005
Facsimile: 970-748-4078
And: Eric Heil, Esq.
Widner Michow & Cox LLP
13133 E. Arapahoe Road, Suite 100
Centennial, Colorado 80112
Telephone: 303-754-3392
Facsimile: 303 - 754 -3395
If to Grantee: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Keith Fernandez
Telephone: 970 - 754 -2524
Facsimile: 970 - 754 -2555
And: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
Telephone: 970 - 754 -2534
Facsimile: 970-754-2555
And: Otten Johnson Robinson Neff + Ragonetti PC
950 17th Street, Suite 1600
Denver, Colorado 80202
Attn: Kimberly Martin
Telephone: 303-825-8400
Facsimile: 303 - 825 -6525
Each Party may change its addresses and /or fax numbers for notices pursuant to a written
notice which is given in accordance with the terms hereof. As used herein, the term "business
day" will mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period will be deemed
extended to the next succeeding business day thereafter.
13. Binding Effect; Recording. The terms, benefits, conditions and obligations of this
Agreement will be appurtenant to, a burden upon, a benefit to and run with title to the Grantee
D -6
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
Property and the Easement Area and will be binding upon and inure to the benefit of the Parties
to this Agreement and their respective successors and assigns. This Agreement will be recorded
by the Town in the real property records of the office of the Clerk and Recorder of Eagle County
at Grantee's expense. From and after the date of any conveyance of the Property or assignment
of Grantee's rights and obligations hereunder, Grantee will have no further obligations or
liabilities under this Agreement, provided that any outstanding obligations or liabilities of
Grantee under this Agreement arising prior to the date of such conveyance or assignment, as
applicable, will be a joint and several obligation of Grantee and such successor or assign.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado.
15. Entire Agreement; Modifications. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof, and no modification or
amendment of this Agreement will be effective unless made by written instrument executed by
the Parties or their respective successors in interest.
16. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement will continue in full force and effect.
17. Captions. The captions in this Agreement have been inserted solely for
convenience of reference, are not a part of this Agreement, and will have no effect upon
construction or interpretation.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed to be an original and all of which taken together will constitute one and
the same agreement.
[Signature Pages Follow This Page]
D -7
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EXUIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
IN WITNESS WHEREOF, Grantee and the Town have executed this Agreement
as of the Effective Date.
TOWN:
TOWN OF AVON
Lo
ATTEST
Patty McKenny, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
Ronald C. Wolfe, Mayor
Subscribed before me this day of , 2009, by Ronald C. Wolfe, as
Mayor, and Patty McKenny, as Town Clerk of Town of Avon, a Colorado municipal
corporation.
My commission expires:
Notary Public
D -8
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
GRANTEE:
THE VAIL CORPORATION, a Colorado
corporation, d/b /a Vail Associates, Inc.
0
STATE OF COLORADO )
SS.
COUNTY OF )
Keith Fernandez, President & COO - VRDC
The foregoing instrument was acknowledged before me this day of ,
2009, by Keith Fernandez, as President & COO - VRDC of THE VAIL CORPORATION, a
Colorado corporation, d/b /a Vail Associates, Inc.
My commission expires:
Notary Public
D -9
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
EXHIBIT A
LEGAL DESCRIPTION OF THE GRANTEE PROPERTY
Lot 1, Eagle River at Avon Final Plat, County of Eagle, State of Colorado, according to the plat
thereof recorded on , 2009 at Reception No.
D -10
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EXHIBIT D: FORM OF ACCESS AND UTILITY EASEMENT
EXHIBIT B
LEGAL DESCRIPTION OF THE EASEMENT AREA
[Legal description to be inserted]
D -11
6 -16 -09 ejh
EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
EXHIBIT E
FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT
AGREEMENT
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6 -16 -09 ejh
EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
After recording return to:
The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
LANDSCAPE CONSTRUCTION AND
MAINTENANCE EASEMENT AGREEMENT
THIS LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT
AGREEMENT (this "Agreement ") is made and entered into as of this day of ,
2009 ( "Effective Date ") by and between The Vail Corporation, a Colorado corporation, d/b /a
Vail Associates, Inc. ( "Grantee "), and the Town of Avon, a home rule municipal corporation of
the State of Colorado ( "Town ").
RECITALS
F. Grantee is the owner of certain real property located in the Town, as more
particularly described in Exhibit A attached hereto and incorporated herein by this reference (the
"Grantee Property "), upon which Grantee intends to develop a residential project (the
"Project ").
G. To provide public benefit to the Town in connection with Grantee's development
of the Project, Grantee conveyed to the Town certain real property located in the Town, as more
particularly described in Exhibit B attached hereto and incorporated herein by this reference (the
"River Tract "), which abuts the Grantee Property.
H. Contemporaneously with Grantee's conveyance of the River Tract to the Town,
the Town has vacated, via the final plat for the Property, that certain kayak park pedestrian
easement encumbering a portion of the Property and recorded at Reception No. 200622401.
I. In connection with Grantee's development of the Project, the Town and Grantee
have entered into a subdivision improvements agreement ( "SIA "), which sets forth, among other
matters, Grantee's obligations with respect to the construction, installation and maintenance of
certain landscape and landscape irrigation improvements (collectively, the "Improvements ")
upon the River Tract, which Improvements are subject to the approval of the Town Design
Review Board.
J. After the applicable maintenance warranty period as set forth in the SIA, the
Town will maintain the Improvements and Grantee will have no further maintenance obligation
therefor, provided that Grantee desires the right to perform future maintenance with respect to
the Improvements in connection with the on -going operation of the Project.
K. In order to facilitate Grantee's performance of its obligations under the SIA with
respect to the Improvements and Grantee's desire to have the right, but not the obligation, to
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
maintain the Improvements after the expiration of the maintenance warranty period under the
SIA, the Town desires to grant to Grantee a temporary landscape construction easement and a
permanent landscape maintenance easement over the River Tract and Grantee desires to accept
such grant pursuant to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Grantee and the Town (each a "Party" and collectively, the
"Parties ") hereby agree as follows:
1. Grant of Easements. The Town hereby grants the following easements, provided
however that nothing contained in this Agreement shall restrict, impair or otherwise limit the
ability of the Town to adopt, revise, amend, and apply landscape regulations to the River Tract
nor impair or restrict the reasonable use of the River Tract for pedestrian access to the kayak
park located on the River Tract:
(a) The Town hereby grants to Grantee upon, in, over, through, under and
across the River Tract for the use and benefit of Grantee and its agents, contractors,
subcontractors and employees (collectively, "Permittees "), a temporary non - exclusive
landscape construction easement ( "Construction Easement') during the Term (defined
in Section 3) for the purposes of installation, construction, maintenance, repair, removal
and replacement of the Improvements, together with all rights of reasonable access to the
River Tract as are reasonably necessary to accomplish such purposes.
(b) The Town hereby grants to Grantee upon, in, over, through, under and
across the River Tract for the use and benefit of Grantee and its Permittees, a permanent
non - exclusive landscape maintenance easement ( "Landscape Easement') for the
purposes of maintenance, repair, removal and replacement of the Improvements, removal
of weeds, cleanup of fallen limbs and vegetation mitigation for wildfire defensible space,
together with all rights of reasonable access to the River Tract as are reasonably
necessary to accomplish such purposes. The Construction Easement and the Landscape
Easement are referred to herein collectively as the "Easements."
2. Reservation by the Town. The Town hereby reserves for itself and its successors
and assigns the right to use the River Tract for any and all purposes that are not inconsistent with
and do not unreasonably interfere with the Easements hereby granted. The Town reserves the
right to grant such additional non - exclusive easements or other interests in the River Tract as
may be determined necessary or desirable by the Town; provided, however, such grants will not
unreasonably interfere with the Easements hereby granted. Grantee will have the right of
subjacent and lateral support for the Improvements and other improvements situated on the
abutting portions of the Property, and the Town will not take any action which would impair the
lateral or subjacent support for the foregoing or modify the earth cover over any installed
irrigation lines in such a manner that would adversely impact the Improvements.
3. Term.
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
(a) The term of the Construction Easement will commence on the Effective
Date and will terminate upon the date of the Town's final acceptance of the
Improvements as set forth in the SIA. Upon the expiration of the term of the
Construction Easement, the Construction Easement will automatically terminate and be
of no further force or effect.
(b) The term of the Landscape Easement will commence on the Effective
Date and will continue in perpetuity; provided, however, from and after the date that is
twenty -five (25) years from the Effective Date, the Town may, upon ninety (90) days'
prior written notice to Grantee, terminate the Landscape Easement for any reason or no
reason at all. Upon the Town's termination the Landscape Easement as provided in this
subsection (b), the Landscape Easement shall automatically terminate and be of no
further force or effect.
4. Restoration of Propert X. Except as permanently modified by Grantee's
installation and construction of the Improvements, after completion thereof, Grantee promptly
will restore the surface of the River Tract as near as reasonably possible to its condition existing
prior to the Effective Date, and Grantee will repair any damage to the River Tract.
5. Safety Measures; Workmanship. All construction, maintenance and repair
activities on the Easement Area and in connection with the Improvements carried on by Grantee
or its Permittees will be conducted in material accordance with all applicable laws, rules and
regulations, and will be done in a manner and with such safeguards as are reasonably necessary
to try to avoid any personal injury or property damage in connection therewith.
6. Mechanic's Liens. Grantee will pay or cause to be paid all costs for construction
work done by or on behalf of Grantee or any of its Permittees or any other person occupying the
River Tract by, through or under Grantee, or caused to be done by any such parties on the River
Tract. Grantee will keep the River Tract free and clear of all mechanic's liens and other liens on
account of construction work done or performed on behalf of Grantee or any of its Permittees, or
persons claiming by, through or under Grantee. Should any liens be filed or recorded against the
River Tract or any action affecting title thereto be commenced as a result of such construction
work (which term includes the supply of materials), Grantee will cause such liens to be removed
of record within sixty (60) days after receiving notice thereof. The foregoing sixty (60) day cure
period will be in lieu of the notice and cure provisions of Section 7 (which provisions will not
apply with respect to the matters addressed in this Section E.5). If Grantee desires to contest any
such claim or lien, Grantee will file a bond with the appropriate court and obtain a release of
such lien pursuant to C.R.S. § 38 -22 -132, as amended. If a final judgment establishing the
validity or existence of any lien for any amount is entered, Grantee will promptly pay and satisfy
or cause to be paid and satisfied the same. If Grantee will be in default in paying any
construction charge for which a mechanic's lien or suit to foreclose such lien has been recorded
or filed and Grantee will not have bonded over such lien as provided above, the Town may (but
without being required to do so) pay such lien or claim and any costs and amounts so paid,
together with reasonable attorneys' fees incurred in connection therewith, will be promptly due
and payable from Grantee to the Town.
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
7. Notice and Cure. In the event of a default by any Party under this Agreement, the
non - defaulting Party shall deliver written notice to the defaulting Party of such default, at the
address specified in Section 11, and the defaulting Party shall have thirty (30) days from and
after receipt of such notice to cure such default. With respect to non - monetary obligations, if
such default is not of a type that can be cured within such thirty (30) day period and the
defaulting Party gives written notice to the non - defaulting Party within such thirty (30) day
period that it is actively and diligently pursuing such cure, the defaulting Party shall have a
reasonable period of time up to one hundred eighty (180) days given the nature of the default to
cure such default, provided that such defaulting Party is at all times within such additional time
period actively and diligently pursuing such cure. Such remedies will be cumulative of one
another and the exercise of any one of such remedies will not preclude the exercise of any other
remedy provided herein or otherwise provided by applicable law.
8. Indemnification. Grantee shall indemnify, defend and hold harmless the Town (and
its officials, agents, representatives, employees, contractors, and successors and assigns) from all
claims, demands, damages (including, without limitation, consequential damages), causes of action,
fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys' fees)
resulting from claims for bodily injury (including death) to any person or damage to any property,
caused by or arising from the conduct or activities of Grantee or its Permittees in the exercise of
its rights under the Easement hereby granted (including, without limitation, maintenance, repair and
replacement activities); provided, however, such indemnification shall not extend to any claims
caused by or arising from the Town's negligence or willful misconduct..
9. Governmental Immunity. Nothing in this Agreement shall be construed to waive,
limit, or otherwise modify any governmental immunity that may be available by law to the
Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the
Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
10. Attorneys' Fees. In the event any action is brought to enforce any provision of
this Agreement or as a consequence of any breach or threatened breach of any provision hereof,
the prevailing Party in such action or dispute will be awarded its court costs and attorneys' fees
from the other Party.
11. Assi m�en_t. Grantee will assign all rights and obligations of this Agreement to
an owner's association formed for the Red House Planned Unit Development prior to the Town's
issuance of the first temporary certificate of occupancy for any improvements constructed on the
Grantee Property. From and after the date of such assignment, Grantee will have no further
obligations or liabilities under this Agreement, provided that any outstanding obligations or
liabilities of Grantee under this Agreement arising prior to the date of such assignment will be a
joint and several obligation of Grantee and such owner's association.
12. Notices. Any notice or communication required or permitted under the terms of
this Agreement will be in writing, may be given by the Parties hereto or such Parties' respective
legal counsel, and will be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
6 -16 -09 ejh
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the
intended recipient's facsimile facilities accessed by the applicable telephone number set forth
below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the
noticing party). Any notice will be delivered, mailed, or sent, as the case may be, to the
appropriate address set forth below:
If to Town: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
Telephone: 970 - 748 -4005
Facsimile: 970 - 748 -4078
And: Eric Heil, Esq.
Widner Michow & Cox LLP
13133 E. Arapahoe Road, Suite 100
Centennial, Colorado 80112
Telephone: 303-754-3392
Facsimile: 303 - 754 -3395
If to Grantee: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Keith Fernandez
Telephone: 970 - 754 -2524
Facsimile: 970-754-2555
And: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
Telephone: 970 - 754 -2534
Facsimile: 970 - 754 -2555
And: Otten Johnson Robinson Neff + Ragonetti PC
950 17th Street, Suite 1600
Denver, Colorado 80202
Attn: Kimberly Martin
Telephone: 303-825-8400
Facsimile: 303 - 825 -6525
6 -16 -09 ejh
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
Each Party may change its addresses and /or fax numbers for notices pursuant to a written
notice which is given in accordance with the terms hereof. As used herein, the term "business
day" will mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period will be deemed
extended to the next succeeding business day thereafter.
13. Binding Effect; Recording. The terms, benefits, conditions and obligations of this
Agreement will be appurtenant to, a burden upon, a benefit to and run with title to the Grantee
Property and the River Tract and will be binding upon and inure to the benefit of the Parties to
this Agreement and their respective successors and assigns. This Agreement will be recorded by
the Town in the real property records of the office of the Clerk and Recorder of Eagle County at
Grantee's expense. From and after the date of any conveyance of the Property or assignment of
Grantee's rights and obligations hereunder, Grantee will have no further obligations or liabilities
under this Agreement, provided that any outstanding obligations or liabilities of Grantee under
this Agreement arising prior to the date of such conveyance or assignment, as applicable, will be
a joint and several obligation of Grantee and such successor or assign.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado.
15. Entire Agreement; Modifications. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof, and no modification or
amendment of this Agreement will be effective unless made by written instrument executed by
the Parties or their respective successors in interest.
16. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement will continue in full force and effect.
17. Captions. The captions in this Agreement have been inserted solely for
convenience of reference, are not a part of this Agreement, and will have no effect upon
construction or interpretation.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed to be an original and all of which taken together will constitute one and
the same agreement.
[Signature Pages Follow This Page]
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
IN WITNESS WHEREOF, Grantee and the Town have executed this Agreement
as of the Effective Date.
TOWN:
TOWN OF AVON
IN
ATTEST
Patty McKenny, Town Clerk
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Ronald C. Wolfe, Mayor
Subscribed before me this day of , 2009, by Ronald C. Wolfe, as
Mayor, and Patty McKenny, as Town Clerk of Town of Avon, a Colorado municipal
corporation.
My commission expires:
Notary Public
6 -16 -09 ejh
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
Grantee:
THE VAIL CORPORATION, a Colorado
corporation, d/b /a Vail Associates, Inc.
By:
Keith Fernandez, President & COO - VRDC
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2009, by Keith Fernandez, as President & COO - VRDC of THE VAIL CORPORATION, a
Colorado corporation, d/b /a Vail Associates, Inc.
My commission expires:
Notary Public
6 -16 -09 ejh
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
EXHIBIT A
LEGAL DESCRIPTION OF THE GRANTEE PROPERTY
Lot 1, Eagle River at Avon Final Plat, County of Eagle, State of Colorado, according to the plat
thereof recorded on , 2009 at Reception No.
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EXHIBIT E: FORM OF LANDSCAPE CONSTRUCTION AND MAINTENANCE
EASEMENT
EXHIBIT B
LEGAL DESCRIPTION OF THE RIVER TRACT
Tract A, Eagle River at Avon Final Plat, County of Eagle, State of Colorado, according to the
plat thereof recorded on , 2009 at Reception No.
E -11
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EXHIBIT C
PRELIMINARY SUBDIVISION PLAN
[Follows this page]
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C -1
EAGLE COUNTY, CO TEAK J 200921819 0
Pgs: 11 O 10/05/2009
1111111111111111111111111111111111111111111111111111111111111111111111
After recording return to:
The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
E � i
ACCESS AND UTILITY EASEMENT AGREEMENT 11 41
THIS ACCESS AND UTILITY YASEMENT AGREEMENT (this
"Agreement ") is made and entered into as of this Dl� day of QL , 2009 ( "Effective
Date ") by and between The Vail Corporation, a Colorado corporation, d /b /a Vail Associates, Inc.
( "Grantee ") and the Town of Avon, a home rule municipal corporation of the State of Colorado
( "Town ").
RECITALS
A. Grantee is the owner of certain real property located in the Town, as more
particularly described in Exhibit A attached hereto and incorporated herein by this reference (the
"Grantee Property "), upon which Grantee intends to develop a residential project (the
"Project ").
B. The Town is the owner of certain real property located in the County of Eagle, as
more particularly described on Exhibit B attached hereto and incorporated herein by this
reference (the "Easement Area ").
C. The Easement Area is situated between and abuts the Grantee Property and
existing Avon Road right -of -way improvements.
D. In connection with and to support Grantee's development and on -going operation
of the Project, Grantee desires vehicular and pedestrian access from Avon Road to the Grantee
Property over the Easement Area, and Grantee further desires to construct, install and maintain
certain private and public landscape, landscape irrigation, drainage, utility, lighting, signage
and /or traffic control improvements (collectively, the "Improvements ") from Avon Road to the
Grantee Property over the Easement Area.
E. In order to facilitate access to and Grantee's construction, installation and
maintenance of the Improvements for the Project, the Town desires to grant to Grantee an access
and utility easement over the Easement Area and Grantee desires to accept such grant pursuant to
the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
889755.4
are hereby acknowledged, Grantee and the Town (each a "Party" and collectively, the
"Parties ") hereby agree as follows:
1. Grant of Easement. The Town hereby grants to Grantee upon, in, over, through,
under and across the Easement Area for the use and benefit of Grantee and its agents,
contractors, subcontractors and employees (collectively, "Permittees "), a permanent non-
exclusive access and utility easement ( "Easement ") for the purposes of (i) vehicular and
pedestrian ingress and egress to and from the Grantee Property; and (ii) construction, installation,
maintenance, repair, removal and replacement of the Improvements, together with all rights of
reasonable access to the Easement Area as are reasonably necessary to accomplish such
purposes.
2. Reservation by the Town. The Town hereby reserves for itself and its successors
and assigns the right to use the Easement Area for any and all purposes that are not inconsistent
with and do not unreasonably interfere with the Easement hereby granted except as provided in
Section 4. The Town reserves the right to grant such additional non - exclusive easements or
other interests in the Easement Area as may be determined necessary or desirable by the Town;
provided, however, such grants will not unreasonably interfere with the Easement hereby
granted.
3. Restoration of Propert y. Except as permanently modified by Grantee's
installation and construction of the Improvements, after completion thereof, Grantee promptly
will restore the surface of the Easement Area as near as reasonably possible to its condition
existing prior to the Effective Date, and Grantee will repair any damage to the Easement Area.
4. Cost of Improvement Relocation.
(a) The Town hereby reserves the right to install, construct, repair, maintain
and alter public improvements and otherwise utilize the Easement Area for all municipal
right -of -way purposes, which includes the right to demand relocation or cause the
relocation of any Improvements installed or maintained by Grantee, and the cost of any
such relocation of Improvements installed or maintained by Grantee will be borne by
Grantee. Prior to commencing work in the Easement Area, the Town will provide at least
three (3) days written notice to Grantee, which notice will describe the work to occur in
the Easement Area. In the event that the Town causes the relocation of Improvements
pursuant to this Section 4, Grantee will be liable for reimbursing the Town for such costs,
which costs will be due and payable to the Town within thirty (30) days of the date of the
Town mailing an invoice for such costs to Grantee and the amount due, if unpaid, will
accrue interest in accordance with Section 3.32.010 of the Town Municipal Code, as may
be amended from time to time.
(b) As provided in Section 2 The Town further hereby reserves the right to
grant licenses, franchise agreements and /or easements to third -party utility providers to
utilize the Easement Area, which includes the right to demand relocation of
Improvements installed or maintained by Grantee, provided the cost of any such
relocation and /or repair of Improvements installed or maintained by Grantee, including,
without limitation, costs to repair surface right -of -way improvements and landscaping,
889755.4 2
will be borne by such third -party utility provider. Any such licenses, franchise
agreements and/or easements entered into between the Town and third -party utility
providers after the Effective Date will provide that, prior to commencing work in the
Easement Area, such third -party utility provider will provide at least three (3) days
written notice to Grantee, which notice will describe the work to occur in the Easement
Area.
5. Safety Measures. All construction, maintenance and repair activities on the
Easement Area and in connection with the Improvements carried on by Grantee or its Permittees
will be conducted in material accordance with all applicable laws, rules and regulations, and will
be done in a manner and with such safeguards as are reasonably necessary to try to avoid any
personal injury or property damage in connection therewith.
6. Mechanic's Liens. Grantee will pay or cause to be paid all costs for construction
work done by or on behalf of Grantee or any of its Permittees or any other person occupying the
Easement Area by, through or under Grantee, or caused to be done by any such parties on the
Easement Area and Grantee will keep the Easement Area free and clear of all mechanic's liens
and other liens on account of construction work done or performed on behalf of Grantee or any
of its Permittees, or persons claiming by, through or under Grantee. Should any liens be filed or
recorded against the Easement Area or any action affecting title thereto be commenced as a
result of such construction work (which term includes the supply of materials), Grantee will
cause such liens to be removed of record within sixty (60) days after receiving notice thereof.
The foregoing sixty (60) day cure period will be in lieu of the notice and cure provisions of
Section 7 (which provisions will not apply with respect to the matters addressed in this
Section 5). If Grantee desires to contest any such claim or lien, Grantee will file a bond with the
appropriate court and obtain a release of such lien pursuant to C.R.S. § 38 -22 -132, as amended.
If a final judgment establishing the validity or existence of any lien for any amount is entered,
Grantee will promptly pay and satisfy or cause to be paid and satisfied the same. If Grantee will
be in default in paying any construction charge for which a mechanic's lien or suit to foreclose
such lien has been recorded or filed and Grantee will not have bonded over such lien as provided
above, the Town may (but without being required to do so) pay such lien or claim and any costs
and amounts so paid, together with reasonable attorneys' fees incurred in connection therewith,
will be promptly due and payable from Grantee to the Town.
7. Notice and Cure. In the event of a default by any Party under this Agreement, the
non - defaulting Party will deliver written notice to the defaulting Party of such default, at the
address specified in Section 12, and the defaulting Party will have thirty (30) days from and after
receipt of such notice to cure such default. With respect to non - monetary obligations, if such
default is not of a type that can be cured within such thirty (30) day period and the defaulting
Party gives written notice to the non - defaulting Party within such thirty (30) day period that it is
actively and diligently pursuing such cure, the defaulting Party will have a reasonable period of
time up to one hundred eighty (180) days given the nature of the default to cure such default,
provided that such defaulting Party is at all times within such additional time period actively and
diligently pursuing such cure. Such remedies will be cumulative of one another and the exercise
of any one of such remedies will not preclude the exercise of any other remedy provided herein
or otherwise provided by applicable law.
889755.4 3
8. Indemnification. Grantee will indemnify, defend and hold harmless the Town (and
its officials, agents, representatives, employees, contractors, and successors and assigns) from all
claims, demands, damages (including, without limitation, consequential damages), causes of action,
fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys' fees)
resulting from claims for bodily injury (including death) to any person or damage to any property,
caused by or arising from the conduct or activities of Grantee or its Permittees in the exercise of
its rights under the Easement hereby granted (including, without limitation, maintenance, repair and
replacement activities); provided, however, such indemnification will not extend to any claims
caused by or arising from the Town's negligence or willful misconduct.
9. Governmental Immunity. Nothing in this Agreement will be construed to waive,
limit, or otherwise modify any governmental immunity that may be available by law to the
Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the
Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
10. Attorneys' Fees. In the event any action is brought to enforce any provision of
this Agreement or as a consequence of any breach or threatened breach of any provision hereof,
the prevailing Party in such action or dispute will be awarded its court costs and attorneys' fees
from the other Party.
11. Assignment. Grantee will assign all rights and obligations of this Agreement to
an owner's association formed for the Red House Planned Unit Development prior to the Town's
issuance of the first temporary certificate of occupancy for any improvements constructed on the
Grantee Property. From and after the date of such assignment, Grantee will have no further
obligations or liabilities under this Agreement, provided that any outstanding obligations or
liabilities of Grantee under this Agreement arising prior to the date of such assignment will be a
joint and several obligation of Grantee and such owner's association.
12. Notices. Any notice or communication required or permitted under the terms of
this Agreement will be in writing, may be given by the Parties hereto or such Parties' respective
legal counsel, and will be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the
intended recipient's facsimile facilities accessed by the applicable telephone number set forth
below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the
noticing party). Any notice will be delivered, mailed, or sent, as the case may be, to the
appropriate address set forth below:
889755.4 4
If to the Town: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
Telephone: 970 - 748 -4005
Facsimile: 970 - 748 -4078
And: Eric Heil, Esq.
Widner Michow & Cox LLP
13133 E. Arapahoe Road, Suite 100
Centennial, Colorado 80112
Telephone: 303-754-3392
Facsimile: 303-754-3395
If to Grantee: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Keith Fernandez
Telephone: 970 - 754 -2524
Facsimile: 970 - 754 -2555
And: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
Telephone: 970-754-2534
Facsimile: 970-754-2555
And: Otten Johnson Robinson Neff + Ragonetti PC
95017 th Street, Suite 1600
Denver, Colorado 80202
Attn: Kimberly Martin
Telephone: 303 - 825 -8400
Facsimile: 303 - 825 -6525
Each Party may change its addresses and/or fax numbers for notices pursuant to a
written notice which is given in accordance with the terms hereof. As used herein, the term
"business day" will mean any day other than a Saturday, a Sunday or a legal holiday for which
U.S. Mail service is not provided. Whenever any date or the expiration of any period specified
under this Agreement falls on a day other than a business day, then such date or period will be
deemed extended to the next succeeding business day thereafter.
13. Binding Effect; Recording. The terms, benefits, conditions and obligations of this
Agreement will be appurtenant to, a burden upon, a benefit to and run with title to the Grantee
Property and the Easement Area and will be binding upon and inure to the benefit of the Parties
889755.4 5
to this Agreement and their respective successors and assigns. This Agreement will be recorded
by the Town in the real property records of the office of the Clerk and Recorder of Eagle County
at Grantee's expense. From and after the date of any conveyance of the Property or assignment
of Grantee's rights and obligations hereunder, Grantee will have no further obligations or
liabilities under this Agreement, provided that any outstanding obligations or liabilities of
Grantee under this Agreement arising prior to the date of such conveyance or assignment, as
applicable, will be a joint and several obligation of Grantee and such successor or assign.
14. Governing. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado.
15. Entire Agreement; Modifications. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof, and no modification or
amendment of this Agreement will be effective unless made by written instrument executed by
the Parties or their respective successors in interest.
16. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement will continue in full force and effect.
17. Captions. The captions in this Agreement have been inserted solely for
convenience of reference, are not a part of this Agreement, and will have no effect upon
construction or interpretation.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed to be an original and all of which taken together will constitute one and
the same agreement.
[Signature Pages Follow This Page]
889755.4 6
IN WITNESS WHEREOF, Grantee and the Town have executed this Agreement
as of the Effective Date.
DDO TOWN:
TOWN OF AVON
By: RRonald C. Wolfe, Mayor
ATTEST
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
�i4
Subscribed before me this C:L day of
Mayor, and Patty McKenny, as Town C1
corporation.
My Commission Expires 07/29/2011
889755.4 7
2009, by Ronald C.
Avon, a Colorado
STATE OF COLORADO )
ss.
COUNTY OF I e )
GRANTEE:
THE VAIL CORPORATION, a Colorado
corporation, d /b /a Vail Associates, Inc.
By:
Keith Fernandez, President & COO - VRDC
The foregoing instrument was acknowledged before me this day of 4enlo — ,
2009, by Keith Fernandez, as President & COO - VRDC of THE VAIL CORPORATION, a
Colorado corporation, d /b /a Vail Associates, Inc.
My commission expires:
I -/y X0[3
Approved as to Form:
Fait Resort parUneot
By:
Name: WL. R:\_ \ \ %
Date:
889755.4 8
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EXHIBIT A
LEGAL DESCRIPTION OF THE GRANTEE PROPERTY
Lots 1 and 2, Exemption Plat of Red House, County of Eagle, State of Colorado, recorded on
November 7, 2000 in the Office of the Eagle County Clerk and Recorder at Reception
No. 743459.
889755.4 A -1
EXHIBIT B
LEGAL DESCRIPTION OF THE EASEMENT AREA
[Follows This Page]
889755.4 B -1
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