TC Ord. No. 2009-19 Approving the landscape construction and maintenance easement agreement red house developmentTOWN OF AVON
ORDINANCE NO. 09-19
SERIES OF 2009
AN ORDINANCE APPROVING THE LANDSCAPE CONSTRUCTION AND
MAINTENANCE EASEMENT AGREEMENT, RED HOUSE DEVELOPMENT
WHEREAS, the Town of Avon ( "Town") approved Ordinance 09 -07, Red House Property
Planned Unit Development and Development Standards; Approving a Preliminary Subdivision
Plan; and Approving an Annexation and Development Agreement, Town of Avon, Eagle
County, Colorado, dated June 23, 2009 and recorded in the Office of the Eagle County Clerk and
Recorder, Colorado, Reception No. 200921815; and
WHEREAS, the Annexation and Development Agreement dated June 23, 2009, obligated the
Town to grant a Landscape Construction and Maintenance Easement Agreement (Easement) to
The Vail Corporation (Owner) contemporaneously with the recording of the Minor Subdivision
Plat and Owner's dedication of the River Tract to the Town, and
WHEREAS, the Town Council approved Resolution No. 09 -31, the Final Plat, Eagle River At
Avon, A Resubdivision 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,
and will be recorded in the Office of the Eagle County Clerk and Recorder, Colorado; and
WHEREAS, the contingencies required by the Annexation and Development Agreement have
been met, and as a result, the Owner and the Town desire to enter into this Easement Agreement
whereby the Town grants to Owner a temporary landscape construction easement and permanent
landscape maintenance easement over the River Tract; and
WHEREAS, the Town Council finds that granting of the Easement attached hereto shall
promote the health, safety and general welfare of the Avon community by allowing
improvements to be properly operated and maintained; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter 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 this ordinance;
Ord. No. 09 -19
Town of Avon
Page 1 of 3
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
the 8th day of December, 2009, at the Council Chambers of the Avon Municipal Building,
located at One Benchmark Road, Avon, Colorado, the 10th day of November, 2009.
� Ronald C. Wolfe, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
n
_ a y Kenny, lown Cierk Eric Heil, Town Attorney
INTRODUCE FIN LLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUB. Y POSTING on the 8th day of December, 2009.
14_ :.
Ronald C. Wolfe, Mayor
? 0p.
Published by posting b t'e'in at least three public places in Town and posting by title at the
office of the Town Clerk.
Ord. No. 09 -19
Town of Avon
Page 3 of 3
After recording return to:
The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Assistant General Counsel
EAGLE COUNTY, CO
B]1]9
09/16/2818
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LANDSCAPE CONSTRUCTION AND
MAINTENANCE EASEMENT AGREEMENT
THIS LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT
AGREEMENT (this "Agreement ") is made and entered into as of this AO*day of �Ctlluaf ,
2010 ( "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. 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.
C. 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.
D. In connection with Grantee's development of the Project, the Town and Grantee
will enter 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.
E. 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.
F. 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
maintain the Improvements after the expiration of the maintenance warranty period under the
918743.1
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, "Pcrmittees "), 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.
918743.1 2
3. Term.
(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 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 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 6). 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.
918743.1 3
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 Parry 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. Assiannient. 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
918743.1 4
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.
Heil Law & Planning, LLC
1499 Blake Street, Unit 1 -G
Denver, CO 80202
Telephone: 303 - 975 -6120
Facsimile: 970 - 836 -3337
If to Grantee: The Vail Corporation
P. O. Box 959
137 Benchmark Road
Avon, CO 81620
Attn: Nicholas Buchanan
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
918743.1 5
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. 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]
918743.1 6
IN WITNESS WHEREOF, Grantee and the Town have executed this Agreement
as of the Effective Date.
TOWN:
TOWN OF AVON
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U�Ronald C. Wolfe, Mayor
ATTEST
, Town Clerk
STATE OF COLO
ss.
COUNTY OF EAGLE
Subscribed before me this f q 'day of ApAd , 2010, by Ronald C. Wolfe, as
Mayor, and Patty McKenny, as Town Clerk of Town of Avon, a Colorado municipal
corporation.
My commission expires:
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D-&Y5A M.
Notary Public
918743.1 7
GRANTEE:
THE VAIL CORPORATION, a Colorado
corporation, d /b /a Vail Associates, Inc.
By:
Nic olas uc
Vic "dent dent of Development - VRDC
STATE OF COLORADO )
ss.
COUNTY OF E LQ )
The foregoing instrument was acknowledged before me this /o day of Ma /-c.ti ,
2010, by Nicholas Buchanan, as Vice President of Development - VRDC of THE VAIL
CORPORATION, a Colorado corporation, d /b /a Vail Associates, Inc.
My commission expires:
I -rq- ao /3
40A �i Notary --
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TF OF CO�'O
Appro%ed as to Form:
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all Rem Lc .d 04•11a1 tmellf
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Name: ORL BANNAN
Mile: 3 110 110
918743.1 8
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 I / &, 2010 at Reception No. ZU
918743.1 A -1
.1 , , , h
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 1 ( , 2010 at Reception No. ?--o 1 y o -7- 1 -7— ce
918743.1
IC
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Justin Hildreth, P.E., Town Engineer
Shane Pegram, P.E., Engineer II°�
Date: November 2, 2009
Re: Ordinance No. 09 -19, Approving the Landscape Construction and Maintenance
Easement Agreement with The Vail Corporation for the Red House Development
Summary: Attached to this Memorandum is Ordinance 09 -19, Approving the Landscape
Construction and Maintenance Easement Agreement, Red House Development (Attachment A).
The easement agreement will allow The Vail Corporation (Owner) to fulfill obligations to construct,
install and maintain certain landscape and irrigation improvements. These improvements will be
required by a future Subdivision Improvements Agreement that is required prior to issuance of a
building permit.
Discussion: the Town of Avon ( "Town ") approved Ordinance 09 -07, Red House Property Planned
Unit Development and Development Standards; Approving a Preliminary Subdivision Plan; and
Approving an Annexation and Development Agreement in June of 2009. The Annexation and
Development Agreement obligated the Town to grant a Landscape Construction and Maintenance
Easement to the Owner concurrently with the recording of a minor subdivision plat and Owner's
dedication of the River Tract. Approval of the Final Plat during the November 10, 2009 meeting
satisfies the Owner's obligation required for the Town's granting of said easement.
Financial Implications: There are no financial implications in granting this easement.
Recommendation: Staff recommends approval of Ordinance No 09 -19, Approving the Landscape
Construction and Maintenance Easement Agreement, Red House Development on first reading.
Proposed Motion: I move to approve Ordinance No 09 -19, Approving the Landscape Construction
and Maintenance Easement Agreement, Red House Development.
Town Manager Comments:
A mVs:
Attachment A: Ordinance 09 -19, Series of 2009
Exhibit A to Ordinance 09 -19: Landscape Construction and Maintenance Easement Agreement
ATTACHMENT A
TOWN OF AVON
ORDINANCE NO. 09 -19
SERIES OF 2009
AN ORDINANCE APPROVING THE LANDSCAPE CONSTRUCTION AND
MAINTENANCE EASEMENT AGREEMENT, RED HOUSE DEVELOPMENT
WHEREAS, the Town of Avon ( "Town ") approved Ordinance 09 -07, Red House Property
Planned Unit Development and Development Standards; Approving a Preliminary Subdivision
Plan; and Approving an Annexation and Development Agreement, Town of Avon, Eagle
County, Colorado, dated June 23, 2009 and recorded in the Office of the Eagle County Clerk and
Recorder, Colorado, Reception No. 200921815; and
WHEREAS, the Annexation and Development Agreement dated June 23, 2009, obligated the
Town to grant a Landscape Construction and Maintenance Easement Agreement (Easement) to
The Vail Corporation (Owner) contemporaneously with the recording of the Minor Subdivision
Plat and Owner's dedication of the River Tract to the Town, and
WHEREAS, the Town Council approved Resolution No. 09 -31, the Final Plat, Eagle River At
Avon, A Resubdivision of Lots 1 and 2, Expemption Plat, Red House, Section 12, Township 5
South, Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle County, Colorado,
and will be recorded in the Office of the Eagle County Clerk and Recorder, Colorado; and
WHEREAS, the contingencies required by the Annexation and Development Agreement have
been met, and as a result, the Owner and the Town desire to enter into this Easement Agreement
whereby the Town grants to Owner a temporary landscape construction easement and permanent
landscape maintenance easement over the River Tract; and
WHEREAS, the Town Council finds that granting of the Easement attached hereto shall
promote the health, safety and general welfare of the Avon community by allowing
improvements to be properly operated and maintained; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter 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 this ordinance;
Ord. No. 09 -19
Town of Avon
Page 1 of 3