TC Res. No. 2001-33I
i
TOWN OF AVON
RESOLUTION NO: 01-33
Series of 2001
A RESOLUTION APPROVING FINAL PLAT AND
SUBDIVISION IMPROVEMENTS AGREEMENT FOR
THE VILLAGE (at Avon) FILING 1, TOWN OF
AVON, EAGLE .COUNTY, COLORADO
WHEREAS, Traer'Creek LLC, the owner of.the applicable portion of The Village
(at Avon) has filed a Final Plat and Subdivision Improvements Agreement for The Village
(at Avon) Filing 1, Town of Avon, Eagle County, Colorado for approval in accordance.
with Chapter 16.20 of the Avon Municipal Code; and
WHEREAS, on June. 12, 2001, the Town held a public.hearing at which it
received evidence and testimony concerning the Preliminary Plan for The Village (at
Avon) Filing 1, at the conclusion of which the Town Council considered such evidence
and testimony and approved the Preliminary Plan by adoption of Resolution 01-09; and
WHEREAS, the Final Plat is in general conformance with the Preliminary Plan as
approved by Resolution No. 01-09; and
WHEREAS, the .Final Plat is subject to the terms, and conditions. of the
Annexation and Development Agreement dated October 13, 1998 and any amendments
or modifications thereto; and
WHEREAS, the Final Plat is subject to the terms and conditions of the P.U.D.
Development / Sketch Plan dated October 13, 1998 and any amendments or
modifications thereto; and
.WHEREAS, the Subdivision Improvements Agreement and associated public
improvement plans include the McGrady Acres Subdivision improvements as addressed
in the Annexation, Development and Subdivision Improvements Agreement for McGrady
Acres Annexation as approved by Town of Avon Ordinance No. 01-15, Series of 2001;
and
WHEREAS, the attached Subdivision Improvements Agreement provides for the
construction of the public improvements required for development of The Village (at
Avon) Filing 1 Subdivision and the securities to assure completion of the public
improvements as required by Section 16.24.1 00 of the Avon Municipal Code.
IAEngineering\Avon VillageTinal PlatTermits & Approvals\Res 01-33 Final Plat.Doc
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the
Final Plat and Subdivision Improvements Agreement for the Village (at Avon) Filing 1 is
in general conformance with the Preliminary Plan as approved by Town of Avon
Resolution No. 01-09 and other applicable development laws, regulations and policies of
the Town of Avon and hereby approves the same subject to completion of technical
corrections as identified by Town Staff and the submission to and acceptance by, the
Town of Avon, of the following items prior to recording of the Final Plat and Subdivision
Improvements Agreement:
A. Copy of "Resolution of Traer Creek Metropolitan District Regarding Appropriation
of Funds Under Subdivision Improvements Agreement"as duly adopted and executed
by District. Board of Directors (Subdivision Improvements Agreement Exhibit E); and
B. Irrevocable Letter of Credit or other acceptable security irl an amount of not less
than $904,516.00 to assure completion of Subdivider public improvements and
C. Construction plans, specifications and related documents for construction of
public improvements as identified in Subdivision Improvements Agreement Exhibits A
and B; and
D. Copies of all necessary licenses, permits and approvals from the Union Pacific
Railroad and Colorado Public Utilities Commission as required for the construction of the
Post Boulevard separated grade crossing and all utility and. storm drainage crossings;
and
E. Copies of Eagle County permits and approvals as required for construction of the
Nottingham Gulch storm drainage discharge into the Eagle River; and
F. Access Permit from the Colorado Department of Transportation (CDOT) for the
Post Boulevard / US Highway 6 Intersection and Roundabout.
ADOPTED THIS 13 DAY OF NOVEMBER, 2001.
TOWN COUNCIL
TOWN OF AVON, COLORADO
i6dy Yoder r
IAEngineering\Avon VillageTinal PlatTermits & Approvals\Res 01-33 Final Plat.Doc 2
SUBDIVISION IMPROVEMENTS AGREEMENT
I 470
/
THIS AGREEMENT, made and entered into this IS day of /V~✓ , 2001, is by and
among Traer Creek LLC, a Colorado limited liability company ("Subdivider"), Traer Creek
Metropolitan District, a quasi-municipal corporation and political subdivision of the State of
Colorado (the "District"), and the Town of Avon, a Colorado municipality, by and through its
Council (the "Town").
RECITALS
WHEREAS, Subdivider and the District, in connection with the approval of the final plat
for The Village (at Avon) Filing 1, consisting of 176.90 acres in Section 12, T. 5 S., R. 82 W.
and Sections 7 and 8, T. 5 S., R. 81 W., of the 6th P.M:, Town of Avon, Eagle County, Colorado
(the "Subdivision"), desire to enter into a Subdivision Improvements Agreement With the Town
as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code");.
and
WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for
completion of certain public improvements (the "Improvements") set forth in Exhibits A and B'
attached hereto and incorporated herein by reference; and
WHEREAS, the District is responsible for the performance and completion of public
improvements ("District Improvements") assigned on Exhibit A attached hereto and incorporated
herein by reference; and the Subdivider is responsible for the performance and completion of
public improvements. ("Subdivider Improvements")' assigned on Exhibit B attached hereto and
incorporated herein by reference; and collectively referred to as Improvements.
AGREEMENT
NOW :THEREFORE, in consideration of the following mutual covenants, conditions
and promises, the parties hereby agree as follows:
L Final Plat Approval. The Town agrees that-upon compliance with all other
conditions of approval, and subject to the terms and conditions of this Agreement, the Final Plat
of The Village (at Avon) Filing 1 shall be promptly filed for record with the Office of the Eagle
County Clerk and Recorder.
2. Completion of Work.
(a) Performance. Subdivider and District agree to furnish all equipment, labor
and material necessary to perform and complete, in a good and workmanlike manner, all
improvements and Work, incidental thereto assigned to each as set forth in Exhibits A and B.
Subdivider and the District further agree that each will be responsible for all costs of
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Improvements assigned to it. All said work shall be performed in accordance with the
construction plans and specifications as submitted to and approved by, the Town prior to
commencement of construction of Improvements. All Improvements shall be completed within
three (3) years of the date of the Town's approval of the Final Plat for the Subdivision.
(b) Inspection Procedures.
(1) All work shall be done under the inspection procedures and
standards established by the Town, shall be subject to the reasonable satisfaction of the Town
and shall not be deemed complete until the reasonable approval and acceptance of the
Improvements by the Town.
(2) Designation of Inspectors. Prior to commencement of construction
work on the Improvements, the Town shall designate the individuals or independent third parties
employed by the Town who are authorized to inspect the construction of the Improvements.
Such inspections by the Town shall not relieve Subdivider or the District or their agents from any
responsibility or obligation to assure that all work is completed in conformance with all
standards, plans 'and specifications as submitted to and previously approved by the Town.
(3) Cost of Inspections. The cost of such inspections, whether by
Town employees or an independent third party inspector, shall be, paid by Subdivider or the
District, depending on the party responsible for the Improvement inspected, and subject to the
limitations set forth in paragraph 9 below.
(4) Notice of Non-Compliance. In the event that the Town, through
the inspectors, reasonably determines that the Improvements are not. in compliance with the pre=
approved construction plans and specifications, it shall give written notice of such non-
compliance, to Subdivider or the District, depending on the Improvements involved ("Notice of
Non-Compliance"). The Notice of Non-Compliance shall include a narrative describing the
unsatisfactory construction work with specific reference to the applicable construction plans and
specifications. The Notice of Non-Compliance must be provided to Subdivider or the District
within two (2) working days of the date of the inspection.
3. Security for Completion of Improvements.
(a) ecuri. To secure completion of the Improvements, Subdivider. and the
District hereby agree to secure their respective obligations under this Agreement with Collateral
in accordance with Section 16.24.100 of the Code. Collateral shall be one or a combination of
the following: cash or its equivalent; securities of acceptable value; letter of credit; bond (for
District Improvements warranty period only); and land of acceptable value by deed of trust.
(b) Substitution of Security. Either Subdivider or the District may substitute
another form of collateral acceptable to the Town in place of the forms of security set forth below
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in order to guaranty the faithful completion of the Improvements and the performance of the
terms of this Agreement.
4. District Improvements.
(a) Funding Resolution. The District has adopted a resolution (the "Funding
Resolution") attached hereto as Exhibit E authorizing the District's execution of this Agreement
and providing for the appropriation, segregation and use of funds in an amount sufficient to
guarantee the construction of the District Improvements set forth on Exhibit A. The estimated
costs of completion of the District Improvements are set forth on Exhibit C attached hereto and
incorporated herein by reference.
The Funding Resolution specifically provides that all funds referenced therein are
unencumbered and free from claims of others such that, if necessary, any requests for payment
approved by the Town may be promptly honored. As a condition to recordation of the Final Plat,
the District. shall provide the Town Engineer with evidence that such funds have been
appropriated and segregated in a separate account (the "Security Account") and, identified for use
in connection with this Agreement. The District shall renew the Funding Resolution at the,
beginning of each subsequent calendar year until all District Improvements have received final
acceptance or until the District provides substitute collateral acceptable to the Town.
(b) Security for Interstate 70 Interchange. The parties acknowledge that the
Town and Subdivider's predecessors-in-interest entered into an Annexation and Development
Agreement ("Development Agreement") dated October 13, 1998, and a First Amendment to the
Annexation and Development Agreement ("First Amendment") that among other things,
addressed the construction of a full diamond interchange on Interstate 70 serving the
Subdivision. Paragraph 4.30) in the Development Agreement; and reiterated in paragraph 2(q) of
the First Amendment, states that if the District provides the Colorado Department of
Transportation ("CDOT") with a completion bond or other security acceptable to CDOT with
respect to completion of the Interstate 70 interchange, then the District shall have no obligation
to also. provide separate security to the Town for such improvements. The Town, Subdivider and
the District agree that nothing in this Agreement shall alter or modify the terms of the
Development Agreement or the First Amendment.
(c) Pro egr ss Payments on District Improvements. The District may make
progress payments to its contractors from the Security Account on a monthly basis upon the
partial completion of itemized improvements which have been set forth in Exhibit C and upon
fifteen (15) day's prior written notice including an itemized statement of the District to the Town.
The District shall retain ten percent (10%) of the amount of each payment until final completion
and acceptance of all work covered by each construction contract; provided however, when the
value of work completed has progressed to fifty percent (50%) of the contract amount, the
District shall not be required to withhold additional retainage for the remainder of the work
under such contract. The (10 ten percent retainage of the value of work completed may be
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reinstated if in the Town's opinion the lack of progress or other substantial reasons exist. Except
for the foregoing, in no event shall any progress payment cause the remaining sum to be available
in the Security Account for subsequent disbursements to be less than one hundred ten percent
(110%) of the costs to complete all remaining District Improvements as estimated at the time of
each progress payment. Upon,completion of all work related to the District Improvements, the
Town's acceptance of the District Improvements and the expiration of the Warranty Period set
forth in paragraph 6 below, the Town shall release any further interest in the Security Account.
(d) Default by District. In the event of a default in whole or in part by the
District, the Town shall be authorized to access the funds in the Security Account for the purpose
of undertaking completion or remediation work on the District's Improvements after providing
thirty (30), days advance notice of default and providing an opportunity during such period for the
District to cure the default. The Town shall be entitled to draw on the Security Account by
Resolution of the Town Council stating (i) that the District is in default, and (ii) the funds are
required in order to complete or correct work on the District's Improvements. District funds
identified in the Funding Resolution shall be held, whether by the District or the Town, in
compliance with the requirements of C.R.S. 29-1-803(1) for the purpose of providing for the
completion of the District Improvements.
:5. Subdivider Improvements.
(a) Security for Completion of Subdivider's Improvements. Subdivider shall
deliverto the Town an irrevocable letter of credit or other collateral consistent with Section
16.24. 100 of the Code issued by a reputable financial institution in an amount equal to one
hundred and ten percent (110%) of the estimated costs of completion of Subdivider's
Improvements as set forth on Exhibit D. The irrevocable letter of credit or other collateral shall
be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the
Subdivision.
(b) Pro&ress Payments on Subdivider's Improvements. The Subdivider may
make progress payments to its contractors on a monthly basis upon (i) the partial completion of
itemized improvements for which cost estimates have been set forth in Exhibit D and upon
written request including an itemized statement of the Subdivider to the Town, and (ii) the
written approval of the Town or its designee; provided, however, if the Town fails to respond. to
a disbursement request within twenty (20) days such request will be deemed approved. Upon the
approval, of such progress payments, the amount of collateral shall be reduced by the amount of
such payment; provided, however, that in no event will any such reduction cause the amount of
remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of
the.estimated costs of completion of all remaining Subdivider.''s Improvements. Upon
completion of all work related to Subdivider's Improvements and the Town's acceptance of
Subdivider's Improvements, the entire amount of remaining collateral less those amounts
described in paragraph 6 below, shall be released.
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(c) Default by Subdivider. In the event of a default in whole or in part by
Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the
purpose of undertaking completion. or remediation work on the Subdivider's Improvements after
providing thirty (30) days' advance written notice of default and providing an opportunity during
such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter
of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in
default, and (ii) the funds *are required in order to complete or correct work on the Subdivider's
Improvements.
6. Warran , Period. The Improvements shall be warranted to be fr ee fr om defects in
workmanship or quality for a period of one (1) year after acceptance of all the work by the Town.
In the event of any such defect, the Town may require Subdivider or the District, depending on
which work is defective, to correct the defect in material or workmanship. The amounts for
completion of all, warranty work on District Improvements shall be secured by a letter of credit,
bond or other acceptable collateral in the amount of one hundred and ten percent (110%) of the
cost of such corrective work to be held by the Town during such one (1) year period, as a
guaranty of performance of any work required under the above-described warranty. The amounts
for completion of all warranty work on Subdivider Improvements. shall be secured by a letter. of
credit or other acceptable collateral in the amount of one hundred and ten percent (110%) of the
cost of such corrective work to be held by the Town during such one (1) year period, as a
guaranty of performance of any work required under the above-described warranty. In the event
any corrective: work is performed during the one (1) year warranty period then,the warranty on
said corrected work shall be extended for one (1) year from the date on which it is completed.
7. , Condition of Public Dedicated Roadways. The_ District shall at all times prior to
acceptance of any publicly dedicated roadways within the Subdivision by the Town give good
and adequate warning to.the traveling public of each and every known dangerous condition
existent iri said roads and shall protect the traveling public from such defective or dangerous
conditions. Until the completion of all the Improvements herein agreed to be constructed, roads
not accepted as improved shall be under the charge and control of the District for purposes of this
Agreement; and the District may close all or a portion of any street or road within the
Subdivision whenever it is necessary to protect the traveling public during the construction or
installation of the Improvements herein agreed to be made.
8. Engineering Certification. Upon completion of portions of the Improvements,
Subdivider or the District will cause their engineers (who shall be registered in the State of
Colorado),to certify in writing that the installation of the Improvements, or portions thereof as
may be completed from time to time, have been completed in conformance with all stan dards,
plans and specifications as submitted to and previously approved by the Town. Inspection
reports, test results and other supporting documentation shall be submitted with the certification.
9: Subdivision and Inspection Fees. Fees in accordance with the Town's
Subdivision Regulations for the review of Preliminary Plans and Final Plats have been paid in
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full. Additional fees shall be paid to the Town by Subdivider or the District, depending on which
Improvements are involved, within thirty (30) days after delivery of written invoice for such fees
to cover the cost of inspections by the Town. The fees will be based on direct (out-of=pocket)
costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct
costs, but in no event will the total amount of such additional fees exceed five percent (5%) of
construction costs.
10. No Obligation of Town to Complete Improvements. Subdivider and the District
agree that in the event either shall fail to perform their obligations as set forth herein, the Town
shall be under no obligation to complete or perform any of the said Improvements. No one,
individually or otherwise, other than the parties hereto, shall acquire, as a result of this
Agreement, any rights, claims or obligations from or against the Town, its agents, employees or
officers. Actions by the Town against Subdivider or the District to enforce any provision of this
Agreement shall be at the sole discretion of the Town. No third parties shall have any rights to
require any action by the Town pursuant to this Agreement; and this Agreement shall not create a
liability on the part of or be a cause of action against the Town, for any personal or property
damage that may result to any third parties from the failure of the Subdivider or the District to
complete the Improvements herein specified.
11. Non-Liability of Town; Indemnification. The Town shall not, nor shall any
officer, agent, or, employee thereof, be liable or responsible for any accident, loss or damage
related to the work specified in this Agreement, nor shall the Town, nor any officer, agent or
employee thereof, be liable for any persons or property injured by reason of the nature of said
work. To the extent permitted by law, Subdivider and the District, respectively, hereby agree to
indemnify and hold harmless the Town, and any of its officers, agents and employees against, any
losses, claims, damages or liabilities to which the Town or any of its officers, agents or
employees may become subject, because of any losses, claims, damages or liabilities (or actions
in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance
of the obligations of Subdivider or the District, respectively, as hereinbefore stated.. Furthermore,
Subdivider and the District shall reimburse the Town for any and all legal or other expenses
reasonably incurred by the Town in connection with investigating or defending any such loss or
claim.
12. Rights of Town in Event of Default. In the event that Subdivider or the District
default in whole or in part in the performance of this Agreement, and after the expiration of thirty
(30) days after having given written notice to Subdivider and the District of such default during
which period of time the Subdivider or the District failed to correct. said default, the Town may,
at its sole discretion, proceed with the construction or completion of the Improvements specified
on Exhibit A or Exhibit B. All such costs paid by the Town for such Improvements, together
with all costs of personnel, equipment and other matters expended by the Town in furtherance of
the construction responsibilities of Subdivider or the District, shall, be paid by Subdivider or the
District based upon their underlying responsibility for the improvement in question. Any such
costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider,
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shall be a lien on any property in the Subdivision owned by Subdivider at the time of default.
Any such costs relating to the District's Improvements, which have not been reimbursed by the
District, shall be a lien on any property in the Subdivision owned by Subdivider at the time of
default. Said lien may be'foreclosed in the same manner as a mortgage and shall entitle the
Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection.
Without limiting the foregoing, the Town may bring a mandatory injunction action against
Subdivider or the District to require installation and construction of the Improvements, if not
constructed within the time limits described in this Agreement. If any, such action is brought by
the Town, the Town shall be awarded its court costs and reasonable attorneys' fees.
13. Letter Certifying Completion and Final Acceptance of Improvements.. When all
Improvements have been completed and accepted by the Town, and the Warranty Period has
expired, the Town agrees that it will issue a letter, in recordable form, certifying that all
obligations of Subdivider and the District under this Agreement have been satisfied.
14. Amendments. This Agreement may be amended from time to time, provided that
such amendment is in writing and, signed by all parties hereto.
.15. Covenants Running with the Land. This Agreement and the obligations hereof
shall be deemed to be, covenants running with the land and shall be binding on the successors and
assigns of the parties hereto.
fries hereto have executed this Agreement as of the date first above written.
TOWN OF AVON, a Colorado
s
municipal corporation
ti By:
T Clerk . May
APPROV S TO FORM:
Town Attorney
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TRAER CREEK LLC, a Colorado limited liability
company
Magnus indholm
Manager
TRAER CREEK METROPOLITAN DISTRICT, a'
quasi - municipal corporation
By:
-0 9E~
William J. P '
President
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Exibit A
DISTRICT IMPROVEMENTS
1. Demolition, Excavation & Grading
A. Remove & Dispose of Existing Structures
B. Excavation for Roadways & Overiot Grading
C. Embankment Including Structural and Stockpile Fill
II. Incidental Construction
A. Erosion & Pollution Control
B. Dust Control
C. Revegetation
III. Storm Drainage
A. Nottingham Gulch to Eagle River .
B. Nottingham Gulch Debris Flow Mitigation Facilities (1-70)
C.. Roadway and Site Drainage Facilities to Eagle River
D. Stormwater & Pollution Control Facilities*
IV. Utilities
A. Water
B. Sanitary Sewer
C. Natural Gas
D. Electric (Pro-Rata 24% of Private)
E. Telephone
F. Cable TV
V. Bridges and Structures
A. Eagle River Bridge
B. Union Pacific Railroad Bridge
C. Retaining Walls
VI. Street Improvements Including Fine Grading, Sub-Base
Materials & Preparation, Concrete Curb & Gutter,
Medians, Crosspa ns & Sidewalks, Asphalt Paving, and
Signage & Striping
A.. US Highway 6
B. Post'Boulevard (US Hwy 6 to South 1-70 Access Line)
C. Eaglebend Drive
D. Nottingham Ranch Road
E. Yoder Avenue
F. Fawcett Road
G. East Beaver Creek Boulevard/Chapel Place (Temporary Connection)
VII. Street Landscaping
VIII Street Lighting
IX Management and General Conditions
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Exibit B
SUBDIVIDER IMPROVEMENTS
I D.ry.Utilities
B. Gas
C. Electric
D. Telephone/Communications
Il. Construction,Managerhent and General Conditions
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Exibit C
ESTIMATED COST OF COMPLETION
for
DISTRICT IMPROVEMENTS
1. Demolition, Excavation & Grading
A. Remove & Dispose of Existing Structures $ 205,841
B. Excavation for Roadways & Overlot Grading $ 2,301,772
C. Embankment Including Structural and Stockpile Fill 2 $ -
II. Incidental Construction
A. Erosion & Pollution Control $ 85,963
. B. Dust Control $ 193,200
C. Revegetation $ 37,450
III. Storm Drainage
A. Nottingham Gulch to Eagle River $ 613,765
B. Nottingham Gulch Debris Flow Mitigation Facilities (1-70) ' $ 60,000
C. Roadway and Site Drainage Facilities to Eagle River $ 1,832,682
D. Stormwater & Pollution Control Facilities $ 10,000
IV. Utilities
A.
Water
$
1,025,397
B.
Sanitary Sewer
$
249,742
C.
Natural Gas
D.
Electric (Pro-Rata 24% of Private)
$
103,669
E.
Telephone
$
-
F.
Cable TV
$
40,624
V. Bridges and Structures
A. Eagle River Bridge
$
1,738,066.
B. Union Pacific Railroad Bridge
$
673,176
C. Retaining Walls
$
893,253
VI. Street Improvements Including Fine Grading, Sub-Base
Materials & Preparation, Concrete Curb & Gutter,
Medians,Crosspans & Sidewalks, Asphalt Paving, and
Signage & Striping
A. US Highway 6
$
232,356
B'. Post Boulevard (US Hwy 6 to South 1-70 Access Line)
$
1,132,766
C. Eaglebend Drive
$
16,703
D. Nottingham Ranch Road
$
32,737
E. Yoder Avenue
$
343,010
F. Fawcett Road
$
192,943
G. East Beaver Creek Boulevard/Chapel Place (Temporary Connection)
$
320,542
VII. Street Landscaping
$
814,620
VIII Street Lighting.,
$
98,000
IX Management and General Conditions
$
1,088,126
TOTAL ESTIMATED COST $ 14,336,393
1 Upon completion of 1-70 Security agreements w/ CDoT amount will be released
2 Embankment is in included in Item No. 18 above.
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Exibit D
ESTIMATED COST OF COMPLETION
for
SUBDIVIDER IMPROVEMENTS
I DryUtilities
B. Gas
G. Electric
D. Telephone/Communications
II Construction Management and General Conditions
TOTAL ESTIMATED COST
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$ 127,862
$ 328,285
$ 303,458
$ 62,351
$ 821;956
Exhibit E
RESOLUTION .
OF TRAER CREEK METROPOLITAN DISTRICT
REGARDING APPROPRIATION OF FUNDS UNDER
SUBDIVISION IMPROVEMENTS AGREEMENT
WHEREAS, Traer Creek Metropolitan District (the "District") is a quasi-municipal
corporation and political subdivision of the State of Colorado; and
WHEREAS, the District is authorized, pursuant to Section 32-1-1001(l)(d)(I), C.R.S., to
enter into contracts and agreements affecting the affairs of the District; and
WHEREAS, the District has entered into a Subdivision Improvements Agreement dated
2001 (the "SIA") with the Town of Avon, Colorado (the "Town") and Traer
Creek. LLC, a Colorado limited liability company ("Subdivider") regarding the funding and/or
construction of public infrastructure improvements in connection with the approval of the Final
Plat of The Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; and
WHEREAS, the District is responsible for the performance and .completion of public
improvements assigned on Exhibit A of the SIA (the "District Improvements');
NOW, THEREFORE, BE. IT RESOLVED BY THE BOARD OF DIRECTORS OF
TRAER CREEK METROPOLITAN DISTRICT AS FOLLOWS:
1. The Board of Directors hereby finds, determines and declares that it is in the best,
interest of the District to execute and deliver to the Town the SIA and the appropriate officers of
the District are hereby authorized to execute and deliver such SIA to the Town.
2. The Board of Directors hereby appropriates, reserves and allows for tender to the
Town pursuant to the SIA available funds of the District in an amount not less than
$14,336,393.00 (the "Funds") to guarantee construction of the District Improvements.
3. The Board of Directors hereby certifies to the. Town Council that the Funds are
unencumbered and free from claims of others so that any requests of the Town for payment
under the SIA may be promptly honored. The Board of Directors further certifies to the Town
Council that the Funds have been set aside in a separate account and identified for the purposes
recited herein and that such Funds shall be held in compliance with the requirements of Section
29-1-803(1), C.R.S., for the purpose of providing for the completion of the District
Improvements.
4. This Resolution shall be renewed at the beginning of each subsequent calendar
year until all the District Improvements have received final acceptance or until the District
provides substitute collateral acceptable to the Town.
795008
Page: 13 of
05//08/200201406F
Sara J Fisher Eagle, CO 89 R 70.00 D 0.00
APPROVED AND ADOPTED this day of 12001.
TRAER CREEK METROPOLITAN DISTRICT
William J. Post, President
Attest:
Eric E. Applegate, Secretary
795008
Page: 14 of 14
/202
Sara J Fisher Eagle, Co 89 R 70.00 5/08D
000001.06E
W:\Clients\435 Traer Creek\Resoluti\Resolution re appropriation of funds under SIA.doc
Traer Creek LLC Fax:9707488900 May 17 2002 19:50 P.02
RESOLUTION
OF TRAER CREEK METROPOLITAN DISTRICT
REGARDING APPROPRIATION OF FUNDS UNDER .
SUBDIVISION WROVEMENTS AGREEMENT
WHEREAS, Traer Creek Metropolitan District (the "District') is a quasi-municipal
corporation and political subdivision of the State of Colorado; and
WHEREAS, the District is authorized, pursuant to Section 324-1001(1)(d)(I), C.R.S., to
enter into contracts and agreements affecting the affairs of the District; and
WHEREAS, the District has entered into a Subdivision Improvements Agreement dated
November 13, 2001 (the "SW) with the town of Avon, Colorado (the "Town') and Traer Creek
LLC, a Colorado limited liability company ("Subdivider') regarding the funding and/or construction
of public infrastructure improvements in connection with the approval of the Final Plat of The
Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; and
WHEREAS, the District is responsible for the performance and completion of public
improvements assigned on Exhibit A of the SIA (the "District Improvements'j;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF TRAE_ R
CREEK METROPOLITAN DISTRICT AS FOLLOWS:
1. The Board of Directors hereby finds, determines and declares that it is in.the best
interest of the District to execute and deliver to the Town the SIA and the appropriate officers of the
District are hereby authorized to execute and deliver such SIA to the Town.
2. The Board of Directors hereby appropriates, reserves and allows for tender to the
Town pursuant to the SIA available fiends of the District in an amount not less than S 14,336,393 (the
"Funds") to guarantee construction of the District Improvements.
3. The Board of Directors hereby certifies to the Town Council that the Funds are
unencumbered and free from claims of others so that any requests of the Town for payment under
the SIA may be promptly honored. The Board of Directors Ruther certifies to the Town Council that
the Funds have been set aside in a separate account and identified for the purposes recited herein and
that, such Funds shall be held in compliance with the requirements of Section 29-1-803(1), C.R.S.,
for the purpose of providing for the completion of the District Improvements.
4. This Resolution shall be renewed at the beginning of each subsequent calendar year
until all the District Improvements have received final acceptance or until the District provides
substitute collateral acceptable to the Town.
Traer Creek LLC Fax:9707488900 May 17.2002 1951 P.03
[SIGNATURE PAGE FOR RESOLUTION REGARDING APPROPRIATION OF. FUNDS
UNDER SUBDIVISION WROVEMENTS AGREEMENT]
APPROVED AND ADOPTED this day of 2002.
TRAER CREEK METROPOLITAN DISTRICT
William J. . st, ° frisident
W:\ClienM\Qs Tract C=k\R=1uuVtwWud= tie appropriation of fluids uncw m.%pw
'May 13, 2002
Received from Stewart Title of Vail, Inc., the original recorded Subdivision
Improvements Agreement.
Town of Avon
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NOV. 19. 2003 4.13FM 5 twAK 1 l Lt I%V. uoo7 c
ESCROW AG EMENT
THIS AGREEMENT, made and entered into this Wri day of May 2002, by
and between Traer Creek LLC, a Colorado limited liability company ("Traer'), the Town of
Avon, a Colorado municipality, by and through its Council (the "Town'), and Stewart Title of
Vail, Inc. ("Stewart Title').
WITNESSETH:
WHEREAS, Traer, in connection with the approval of the final plat for The Village (at.
Avon) Filing 1, consisting of 176.90 acres in Section 12, T. 5 S., R. 82 W. and Sections 7 and 8,
T. 5 S., R..81 W., of the 6th RM., Town of Avon, Eagle County, Colorado (the "Subdivision'),
has entered into a Subdivision Improvements Agreement (the "Improvements Agreement') with
the Town and Traer Creek Metropolitan District, a quasi-municipal corporation and political
subdivision of the State of Colorado (the "District');
WHEREAS, pursuant to the Improvements Agreement, Traer has agreed to. be
responsible for the performance and completion of cert ain improvements to the Subdivision (the
"Improvements') and has agreed to deposit in escrow certain sums in accordance with the terms
of the Improvements Agreement;
WHEREAS, Stewart Title has agreed to act as escrow agent and to administer the escrow
in accordance with the terms of the Improvements Agreement.
NOW THEREFORE, in consideration of the following mutual covenants, conditions, and
promises, the parties hereby agree as follows:
1. Escrow e2osit and Counterparts. Upon execution of this Agreement, Traer shall
deposit with Stewart Title the sum of Nine Hundred Four Thousand One Hundred Fifty One
Dollars and 60/100 ($904,151.60) (the "Escrow Funds'). The Escrow Funds will be held by
Stewart Title to assure proper completion of the Improvements and will bear interest at the rate
applicable to the account in which the Escrow Funds are held. Stewart Title agrees'to hold and
administer the Escrow Funds under the terms and conditions of this Agreement and the
Improvements Agreement This Agreement may be executed in counterparts and by facsimile
signatures; provided, however, facsimile signatures shall be replaced with original signatures as
soon thereafter as practicable.
2. Distribution of Escrow Funds, Upon written notification ("Notice') having been
received by Stewart Title and executed by authorized representatives of Traer, Catellus
Development Corporation, a Delaware Corporation ("CDC') and the Town, Stewart Title shall
release to Traer the progress payment as described in the Notice from the Escrow Funds;
provided, however, if the Town fails to respond to a disbursement request for a progress payment
from Traer within 20 days such request will be deemed approved. At the same time Notice is
4367hraa
NQV, 19. 10 U3 4: 14 FM J i twRK i i 1 i Lt 11U. uoo7 F.
provided to Stewart Title, Traer will provide notice of the requested disbursement to Comerica
Bank - California at the following address: Comerica Bank - California, 611 Anton Blvd.,
Second Floor, Costa Mesa, California 92626, Attention Suzanne Ladrido-Coniglio. Stewart
Title shall have no independent duty to determine if the Improvements related to such progress
payment have indeed been completed and may conclusively rely upon such Notice and may
disregard any warnings or notice given to the contrary. Stewart Title shall also have no
independent duty to ascertain whether or not the person or persons who have executed the Notice
had authority to so execute, except that Stewart Title agrees that only the following individuals
are.authorized to execute the Notice on behalf of CDC: Gardiner Hammond, Ray C. Pittman,
Michael D. Fisk and Ted Antenucci.
3. ' 4 of BMW. Upon the completion of all Improvements and warranty
periods as set forth in the Improvements Agreement, the Town, Traer and CDC shall each
execute a Notice to Stewart Title authorizing Stewart Title to terminate the escrow account and
return all Escrow Funds remaining thereunder, together with interest thereon, to Traer. Upon
receipt of such completion Notice, Stewart Title will return all Escrow Funds together with
interest thereon to Traer.
4. "ha . In the event that the Town at any time reasonably deems Traer to be in
default with respect to any portion of the Improvements due to faulty workmanship and/or
materials, the Town shall provide Traer and CDC with written notice of such default and Traer
shall have 30 days to cure any such default. In the event that the Town at any time reasonably
deems Traer to be in default with respect to any portion of the Improvements due to neglect, as
defined below, the Town shall provide Traer with written notice of such default and Traer shall
have 3 O 'days. to cure any such default, "Neglect" as used herein shall be deemed to mean the
failure to commence construction of Improvements as defined in the Improvements Agreement
or the failure to pursue completion of the Improvements within the time frame set forth in the
Improvements Agreement. Such written notice shall also be delivered to Stewart Title at the
time of delivery to Traer and CDC. If, at the end of such notice period, the Town deems by
Resolution of the Town Council stating (i) that Traer is in default, and (ii) that the funds are
required in order to complete or correct work on the Improvements then the Town shall have the
right to unilaterally give Stewart Title written Notice to release to the Town Escrow Funds
related to such Improvements.
5. Notices. Any notice required under this Agreement shall be hand delivered to an
official officer or representative of the party.being notified or may be sent certified 'or registered
mail, return receipt requested,. and delivery will be effective three days after posting, to the
following addresses:
The Town: Town of Avon
P.O. Box 975
Avon, CO 81620
Attn: Norm Wood
4367/ncr -2-
NUV. 19, 1UUJ 4: 14rivi a i tVVAK i i i i Lt
Stewart Title: 141 East Meadow Drive
Vail, CO 81657
Att: Sandy Capell
Traer: William I Post
Traer Creek LLC
P.O. Box 640
Vail, CO 81658
0322 East Beaver Creek Blvd.
Avon, CO 81620
CDC: Gardiner Hammond
165 South Union Blvd.
Suite 852
Lakewood, CO 80228
Copies of all notices to:
General Counsel for CDC
201 Mission Street, 2nd Floor
San Francisco, CA 94105
IV V. V V U 7 i. 7
6. Liability and Indemnification. Stewart Title shall not be held liable for any act it
may do or omit to do hereunder as escrow agent, while acting in good faith and in the exercise of
its own best judgment, and any act `done or omitted by it pursuant to the advice of.its own
attorney shall be conclusive evidence of such good faith. In consideration of the acceptance of
this escrow by Stewart Title,, the Town and Traer agree, jointly and severally, for themselves,
their heirs, executors, administrators, successors and assigns, and to indemnify and hold it
harmless as to any liability by it incurred to any other person or corporation by reason of its
having accepted the same, or in connection herewith, and to reimburse it for all its expenses,
including, among other things, counsel fees and court costs incurred in connection herewith; and
Stewart Title shall have a first and prior lien upon all deposits made hereunder to secure the
performance of said agreement of indemnity and the payment of its charges and expenses.
7.1?isputes. If at nay time a dispute shall exist as to the duty of StewartTitle under.
the terms hereof,, the rights to possession, title or proceeds of any item in escrow, or as to any
dispute arising between the parties as to any matter under this Agreement, Stewart Title may
deposit the Escrow Agreement and items in escrow with the Clerk of the District Court of the
County of Eagle, State of Colorado, and may inteiplead the, parties hereto. Upon so depositing
such Escrow Agreement and items in escrow and filing its complaint in interpleader, Stewart
Title shall be released from all liability under the terms hereof, as to the items so deposited. If
4367/trur _3_
NUV, 19. 2VUJ',24: I4rivip ; J I CVVAK I I 1 I LC
PAR. Ru.- N3442U191
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the Court does not pwvtit® for reirabursemem to Stewart Title for attorney Secs, cwm artd
expenses_rdated to the iamrtplesdor scion out of the iumpieed fade, am Stewart Titic shall
have a claim anforoeable by separate action in Court against Me patties, jointly sad severally, for
said attmv fees, costs end expenses.
8. Ama dmn t 9n Rumtim. These instruadaw rosy be akrod, sareedad,
ma"fed dr mcked by writing only., signed by all of the parties hereto AM. CDC, and approved
by Siewsn Tide. upon payment oral] fees, coats and expo nsm incident thereto.
9, SindinLAeteerneat This Agreernept 4all be biddipg upm and imtore to the
bawAt of the parties hereto, their heim personal representatives, sicoeums and assi gds:
.10. JWhM=W. This Agreement shall be oonsa'ued and auforeed in atmordance
with tha laws of Lbe State of Colorado.
TRASR C MK LLC, a Coloftdo limited &biiity
comany
Its.
TOWN OF AVON, a Colorado muoiaipaft
By:
Its: -
STBwART TITLE OF VAIL, INC.
By:
Its:
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MAY=07-2002 TUE 02;12 PM AR LO PAX NO, 3034420181 P. 03.
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the Court does not provide for reimbursement to Stewart. Title for attorney *8,
expenses related to the interpleader action out of the interplead hinds, then Stwart costs Titland
e shall
have a claim enforceable by separate action in Court against the parties, severally,
said attorney fees, costs jointly and
and expenses. y, for'
8 Amo ft nt and a oc . These instructions may
altered, amended,
modified or revoked by writing only, signed by all of the parties hereto and, CDC and approved
by Stewart Title, upon payment of all fees, costs and expenses incident thereto. pproved
9. Bind MAW==. This Agreement shall be binding on and in
benefit of the parties hereto, their heirs, personal rep. res upon ure to the
entatives, ,successors and assigns.
10' B &r9Q=. This Agreement shall be construed and enforce
with the laws of the State d in accordance
of Colorado.
TRAER CREEK LLC, a Colorado limited liability
company
By:
Its:
TOWN OF AVON, a Colorado municipality
By.
Its:
STEWART TITLE OF V,I,, INC.
By:
~1 0„1_
4367/freer -4-
Memo
To: Honorable Mayor and Town Council
Thru: Bill Efting, Town Manager
From: Norm Wood, Town Engineer ZK,1
Date: November 7, 2001
.R@: The Village (at Avon) Filing 1 - Final Plat and Subdivision Improvements
Agreement / Resolution No. 01-33, Series of 2001
slII'f'fmaly, Traer Creek LLC has submitted a Final Plat and related Subdivision
Improvements. Agreement (SIA) for The Village (at Avon) Filing 1. Traer Creek
Metropolitan Dist nct will be a party to the SIA in addition to Traer Creek LLC. The Final
Plat is in conformance with the Preliminary Plan that was previously approved by
Resolution No. 01-09, Series of 2001. The Subdivision Improvements Agreement
provides for construction of the public improvements required. to serve the proposed
subdivision and for the provision of securities to assure completion of the improvements.
The SIA also establishes guidelines for quality control, release of securities as construction
is completed and establishes the warranty period for the completed improvements.
The public improvements will be constructed by two different entities. The majority of
the improvements including streets, roads, water, sewer and storm drainage facilities will
be constructed by Traer Creek Metropolitan District. The security for the completion of
these improvements will in the form of a District Fund in an amount of not less than
$14,336,393 and established solely for this purpose. This fund is established by
"Resolution of Traer Creek Metropolitan District Regarding Appropriation of Funds
Under Subdivision Improvements Agreement" (Exhibit E) to the Subdivision
Improvements Agreement. Construction of the remaining utilities including, gas, electric,
telephone and cable TV is, the responsibility of Traer Creek LLC. The security for
completion of this portion of the improvements shall be in the form of an irrevocable letter
of credit or other collateral acceptable to the Town in an amount of not less than
$904,516.00 (110% of the estimated cost of the improvements).
I:\Engineering\Avon VillageTinal Plat\Permits & Approvals\Res 01-33 Final Plat Memo.Doc
The proposed Final Plat and SIA are in conformance with the Annexation and
Development Agreement as Amended by the First Amendment to the Annexation and
Development Agreement. The First Amendment to the Annexation and Development
Agreement would be approved by adoption of Ordinance No. 01-16. This is scheduled for
Second Reading and Public.Hearing at the November ;13, 2001 Town Council Meeting.
Approval of this Final Plat and SIA is recommended following approval of Ordinance No
01-16.
Recommendations: Approve Resolution No. 01-33, Series of 2001, A
Resolution Approving Final_ Plat and Subdivision Improvements Agreement for The
Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado.
Alternatives: If Ordinance No. 01-16, Series of 2001 is not approved on
Second Reading, table action on Resolution No. 01-33, Series of 2001 pending approval
of an Amendment to the Annexation and Development Agreement for The Village (at
Avon).
Proposed Motion: I move to approve Resolution No. 01-33, Series of 2001, A
Resolution Approving Final Plat and Subdivision Improvements Agreement for The
Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado.
Town Manager Comments:
BEngineering\Avon village\Final PlatTer"is & Approvals\Res 01-33 Final Plat Memo.Doc 2