TC Res. No. 2013-23 Approving Several docs related to the Village of AvonTOWN OF AVON
RESOLUTION NO. 13 -23
Series of 2013
A RESOLUTION APPROVING SEVERAL DOCUMENTS RELATED
TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT,
INCLUDING: THE ACCESS EASEMENT AGREEMENT; THE
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT; THE PARTIAL ASSIGNMENT OF
AMENDED AND RESTATED CONVEYANCE OF ROADWAYS,
PARKLAND AND EASEMENTS; AND, THE REVOCABLE LICENSE
AGREEMENT FOR SNOW STORAGE
WHEREAS, on October 7, 2011 the Town of Avon and other parties entered into the Settlement
Term Sheet ( "Settlement Term Sheet ") in an effort to resolve pending litigation No. 2008 CV
385 and 2010 CV 316, Eagle County District Court;
WHEREAS, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
( "Development Agreement ") by Ordinance No. 12 -10 which states in Section 4.2(c) that the
Town of Avon will assume certain maintenance obligations of Traer Creek Metropolitan
District;
WHEREAS, the Town, Traer Creek Metropolitan District, Traer Creek development entities
and other parties to the litigation desire to clarify and document the transfer public improvement
assets to the Town for which the Town accepts responsibility to maintain according to the
Development Agreement and desires to adopt various agreements which address additional
details concerning the rights and obligations of parties to those agreements;
WHEREAS, Section 4 of Ordinance 12 -10 authorizes the Town Council to approve
amendments and/or revisions to the documents conveying property to the Town in Section 4 of
Ordinance No. 12 -10 by resolution;
WHEREAS, the Town of Avon may generally act by resolution to approve agreements and
acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to the Village (at Avon) Settlement Implementation ( "Closing Escrow Agreement ") by
Ordinance No. 12 -10 which set forth various terms concerning the execution and deposit of
documents and agreements into escrow and the effectiveness or voiding of such documents and
agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON:
Res. 13 -18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 1 of 2
Section 1. The following agreements and asset conveyances are hereby approved by the
Town of Avon subject to the terms and conditions of the Closing Escrow Agreement:
(a) The Access Easement Agreement, attached hereto as Exhibit A;
(b) The Amended and Restated Nottingham Dam Easement and Assignment Agreement,
attached hereto as Exhibit B;
(c) The Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland
and Easements, attached hereto as Exhibit Q and
(d) The Revocable License Agreement for Snow Storage, attached hereto as Exhibit D.
ADOPTED on August 13, 2013
TOWN COUNCIL
By:
Rich Carroll, Mayor
ATTEST:
By
Res. 13 -18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 2 of 2
Exhibit A to Resolution 13 -23
Access Easement Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (this "Easement Agreement ") is made and
entered into as of this day of , 2013 ( "Effective Date "), by and
between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(together with its successors and assigns, "Grantee "); and TRAER CREEK -RP LLC, a Colorado
limited liability company (together with its successors and assigns, "Grantor ").
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference ( "Lot
1"
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) made and entered
into as of , 2013 and recorded in the real property records of Eagle County,
Colorado (the "Records ") on or about even date herewith ( "Development Agreement ").
C. Pursuant to Section 3.7(b) of the Development Agreement, concurrently with the
"Effective Date" (as defined in the Development Agreement) of the Development Agreement,
Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee certain real
property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and
incorporated herein by this reference ( "Planning Area B "), which property is designated as
Planning Area B pursuant to The Village (at Avon) PUD Master Plan (the "PUD Master Plan "),
being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide
recorded in the real property Records on or about even date herewith (the "PUD Guide ").
D. As of the Effective date, there is no legal access to Planning Area B from a public
right -of -way.
E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, an access easement from that certain 80-
foot wide right -of -way known as East Beaver Creek Boulevard (as recorded in the Records at
Reception No. 795007) to Planning Area B for the purpose of Grantee's enjoyment of the
Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction,
operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the
terms and conditions of the PUD Guide and the Development Agreement, and as set forth below.
1014138.9 - FINAL, Aug 13, 2013
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, a perpetual, non - exclusive, forty (40) -foot wide easement appurtenant to Planning
Area B (the "Easement ") over, under, through and across that portion of Lot 1 which is legally
described and depicted in Exhibit C attached hereto and incorporated herein by this reference
(the "Easement Area ") for the purpose of Grantee's, together with its engineers, contractors,
employees and similar consultants to Grantee and/or its assigns (collectively, "Permittees "),
conducting of the following activities (collectively, the "Permitted Uses "): (i) vehicular and
pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using,
operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks,
bike paths, retaining walls and other access facilities necessary or desirable for such ingress and
egress, and all fixtures and devices reasonably used or useful in the operation of such facilities
(collectively, the "Roadway Facilities "); (iii) constructing, installing, using, operating,
maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities,
electrical lines, gas lines, telephone lines, cable lines, fiber optic lines, and similar utilities and
utility facilities (collectively, the "Utility Facilities," and together with the Roadway Facilities,
the "Facilities "); and (iv) the right to enter upon the Easement Area and such immediately
abutting areas of Lot 1 thereto as may reasonably be necessary to survey and conduct
geotechnical and similar physical investigations. As set forth in the PUD Guide and
Section 3.7(b) of the Development Agreement, any construction of the Facilities shall be subject
to the prior written approval of the "Design Review Board" (as defined in the PUD Guide).
Nothing contained herein shall obligate Grantee to install, or cause to be installed, any or all of
the Facilities or to otherwise provide for any such use.
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of permanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable Public Improvements Agreement(s) (as defined
in the PUD Guide) between the Town and applicable constructing party(ies) ( "Future Main
Street "), Grantor and Grantee acknowledge that future design, engineering, construction and/or
general development of Lot 1 and/or Future Main Street may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned, relocated or terminated to
accommodate such future development of Lot 1 and/or Future Main Street, provided that at no
time shall Planning Area B be without legal access to Future Main Street or another public right -
of -way. Grantor and Grantee further acknowledge and agree that, as generally contemplated by
the PUD Master Plan, the configuration of Future Main Street abuts Planning Area B and could
provide direct legal access from Future Main Street to Planning Area B without the necessity of
any easement or grant of other right to provide for such access. Accordingly, if Future Main
Street or other public right -of -way is designed and constructed in a manner that provides direct
legal access from Future Main Street or other public right -of -way to Planning Area B, upon the
Town's preliminary acceptance pursuant to the applicable Public Improvements Agreement of
2
1014138.9 -FINAL, Aug 13, 2013
the street improvements for the portion of Future Main Street or other public right -of -way that
provides such legal access to Planning Area B, this Agreement and the Easement granted
hereunder shall automatically terminate and be extinguished and of no further force or effect
without any further act of either Grantor or Grantee. Notwithstanding the foregoing, upon and
after such termination at the written request of Grantor, Grantee shall deliver to Grantor an
executed termination of this Agreement in recordable form, which Grantor may record against
the Easement Area to provide record notice of such termination. Further, if Grantor determines,
in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for
purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and
Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and
configuration or relocation of the Easement Area (the "Relocated Easement Area ") and Grantee
shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement
Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement
substituting the surveyed legal description for the alignment and configuration of the Relocated
Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the
recordation of such amendment in the Records. Recordation of such amendment in the Records
shall have the legal effect of terminating the prior boundaries of the Easement Area and
establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of
such amendment, the Design Review Board previously has approved, and Grantee previously has
installed and/or constructed, Facilities within the Easement Area, Grantor shall have the
obligation, at Grantor's sole cost and expense, to relocate such Facilities to, or install and/or
construct such Facilities within, the Relocated Easement Area.
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days' written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee's
and/or Permittees' conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee's and/or Permittees' conduct of such activities. Upon completion of any construction
activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor's Reserved Rights. Grantor reserves the right to grant additional
non - exclusive easements and/or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee's
or Permittees' full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
3
1014138.9 -FINAL, Aug 13, 2013
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein, including without limitation, snow dumping and storage.
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights -of -way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic's liens or materialmen's liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys' fees) (collectively, "Claims ") in
connection with or arising out of Grantee's exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee's exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non - contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
4
1014138.9 - FINAL, Aug 13, 2013
11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
13. Counterparts. This Easement 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.
[Signature pages follow this page.]
5
1014138.9 - FINAL, Aug 13, 2013
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
Approved as to legal form by:
Eric J. i sq., Town Attorney
STATE OF COLORADO
ss.
COUNTY OF
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
The foregoing instrument was acknowledged before me this day of
, 2013, by , as of the TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
6
1014138.9 - FINAL, Aug 13, 2013
GRANTOR:
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Naive: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK -RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires:
7
1014136.9 - FQ4AL, Aug 13, 2013
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
as to
Eric J.; Heif, Esq., Town Attorney
STATE OF COLORADO
ss.
COUNTY OF
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
The foregoing instrument was acknowledged before me this day of
, 2013, by , as of the TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
6
1014138.9 -FINAL, Aug 13, 2013
GRANTOR:
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK -RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires:
7
1014138.9 - FINAL, Aug 13, 2013
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
A -1
1014138.9- FINAL, Aug 13, 2013
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
M
1014138.9 -FINAL, Aug 13, 2013
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
That part of the Second Amended rmcl Pict, The Village (at
Avon) Filing, 1, A Resubdivis;or; of Lot 1. according to the
trial) recorded at Reception No. —�_ in isle Office
Of *0 Cagle County. Colorado, Clerk and Recorder, deavriOed
as follows- -
90gimning at a point on the north Right—Of—Way tine of East
Seaver Crook 806*vord and Temporety 6D' POW Easement
WhOnc'O 0 P0114 Of curvature On sold north Right—Of—Way rmo
beam N65 55'5S-W 161.81 fast. 9OW Point of Beginning also
bears. N34*51'58"W 1628.09 feet to tile nwihw#d comer
of ec;d Lot 1, thence deporting sold I'no N24'04*02"E 97.28
feaL thence N25 00'00"E 97.45 feet to the most lout -.west
line of Lot 2 of said Second Amended final Plat. The
Village (at Avon) Filing 1, A 4esubd--vctlon of Lot 1.
thencs along sold southwest tire S85'00'WE 40.00 feet.
thence dle rtWq sold line 525*00r00 *W 97.11 feet, thence S24'04'021 97,27 feet to Said north Right• {1f —Way line of
East Racv*r Greek SoultwOrd and Temporary So' Rood
Easorniint, thence along said r'n* N85'55*68*W 40,00 feet to
the Point Of BegifWng, containing 7788 square feet, more
or less.
NW CORNER LOT I
AMENDED PAT,
THE VILLAGE (AT AVON) FUNG
RN 898173 &
100* 200' 300*
LOT 2
SECUND AMENDED FINAL PLAT
YHE VILLAGE (AT AVON) FILING I
A RESUDDIVIS,10N OF tOT I
N251001007
97.45\ QAp
TEMPORARY
W, fim " 7
EAStMLW ' --,S2VO0'00-W
'(RN 795X7) 97.111'
N 7
2*
K 0,224�0 '0
24�04'0?-C
97,58 40' ACCESS EASEMENT
7'
524�34'02'W
97.27*
00
Ell
100
C-1
1014138.9- FINAL, Aug 13, 2013
Exhibit B to Resolution 13 -23
Amended and Restated Nottingham Dam Easement
and Assignment Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT ( "Agreement ") is made and entered into as of this day of
, 2013 ( "Effective Date ") by and between TRAER CREEK -RP LLC, a Colorado
limited liability company ( "Developer "), whose address is P.O. Box 9429, 0101 Fawcett Road,
Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT, a quasi -
municipal corporation and political subdivision of the State of Colorado ( "TCMD ") c/o Special
District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood, Colorado
80228, and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
( "Town "), whose address is P.O. Box 75, 1 Lake Street, Avon, CO 81620 (collectively, the
"Parties ").
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, ( "Original Easement Agreement ");
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado ( "STS "). The STS includes, among other terms, an obligation of Town to assume
certain maintenance obligations of TCMD, including assumption of TCMD's maintenance
obligations related to the Nottingham Dam, which maintenance obligations to be assumed by
Town are defined as stated in Section 4.2(c) of the Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon), dated , 2013
( "Development Agreement "); and
WHEREAS, for the purpose of implementing the pertinent terms of the STS and the
Development Agreement related to Town's assumption of TCMD's maintenance obligations for
the Nottingham Dam, Developer and TCMD desire to amend certain terms of the Original
Easement Agreement, as more fully set forth herein, and TCMD desires to assign all of its rights,
title, interests and obligations in, under and to the Original Easement Agreement to Town, and
Town desires to assume all such rights, title, interests and obligations from TCMD as amended
and stated herein, and Developer desires to consent to such assignment in accordance with the
terms stated herein.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 1 of 11
20130728
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its rights, title, interests and obligations to
Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement, that Developer and Town hereby release any
rights and obligations of the Original Easement Agreement which are inconsistent with this
Agreement, and that the intent and effect is that this Agreement shall replace and supersede the
Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns a non - exclusive easement on, over, across, upon and through the Nottingham Dam
property, in the location generally depicted on Exhibit A attached hereto ( "Nottingham Dam
Easement ") to access, maintain, repair, replace, improve, reconstruct, expand, reduce,
decommission and/or remove the Nottingham Dam and impoundment area. The Nottingham
Dam Easement shall also include a non - exclusive easement on, over, across, upon and through
such additional real property located adjacent to the real property described on Exhibit A as may
be reasonably necessary for Town to exercise its rights herein. Notwithstanding the foregoing or
any other provision of this Agreement, Developer and Town agree that Town's obligations
assumed by Town under this Agreement shall be construed, interpreted and applied such that
Town shall have sole discretion to determine the appropriate maintenance of the Nottingham
Dam provided that any such maintenance by Town shall be in compliance with dam regulations
of the Colorado Division of Water Resources and any other applicable state or federal agency
with regulatory authority over the Nottingham Dam. Town's maintenance discretion shall
include but not be limited to maintenance, repair, replacement, improvement, reconstruction,
expansion, reduction, decommission, removal and deferral of the Nottingham Dam and any
activity related to the Nottingham Dam in accordance with Section 4.2(c) of the Development
Agreement. Developer acknowledges that Town is not the current designated owner of the
Nottingham Dam according to the records of the Dam Safety Branch, Division of Water
Resources, and Developer agrees to reasonably cooperate with Town as necessary (including, but
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 2 of 11
20130728
not limited to, the Developer applying, Developer using best efforts to cause the owner of the
Nottingham Dam to apply, or Developer or owner of the Nottingham Dam authorizing Town to
apply on behalf of the owner to the applicable regulatory agency) to allow Town to work directly
with the Division of Water Resources or other applicable regulatory agency with regard to
maintenance of the Nottingham Dam and performance of Town's duties under this Agreement.
Developer further acknowledges and agrees that Town shall not be liable or responsible for
maintenance of the Nottingham Dam to the extent that Developer, The Piney Valley Ranches
Trust, or other owner of the Nottingham Dam fails to reasonably cooperate or unreasonably
interferes with Town's actions to work directly with the Division of Water Resources (and any
other applicable state or federal agency with regulatory authority) and such failure to cooperate
or interference inhibits, restricts or prohibits Town's ability to maintain the Nottingham Dam in
accordance with the terms of this Agreement. Town agrees to promptly provide to Developer
any correspondence to or from the Division of Water Resources (and any other applicable state
or federal agency with regulatory authority) and agrees to invite a representative of Developer to
any meetings with the Division of Water Resources to the extent such correspondence or
meetings are related to the Nottingham Dam. Town acknowledges that this Nottingham Dam
Easement is non - exclusive and that Developer may seek to develop areas located uphill and
downhill of the Nottingham Dam Easement; therefore, this Agreement shall not be construed to
restrict Developer's right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. If Town proposes to
decommission the Nottingham Dam, Town shall first provide at least ninety (90) days prior
written notice to Developer along with plans for decommissioning which are acceptable to the
Division of Water Resources and any other applicable regulatory agency. After receiving notice
of Town's proposal to decommission the Nottingham Dam and prior to the expiration of ninety
(90) days, Developer may elect to terminate this Agreement by tendering written notice of such
election to terminate to Town. If Developer elects to terminate, Developer shall then assume all
maintenance responsibilities for the Nottingham Dam and Town shall affirmatively extinguish
the Nottingham Dam Easement, convey to Developer any and all water rights associated with the
Nottingham Dam, including the water storage right decreed in Case No. 94CW 113, Water
Division No. 5, and this Agreement shall terminate. If Town decommissions the Nottingham
Dam then Town shall affirmatively extinguish the Nottingham Dam Easement and this
Agreement shall terminate upon receipt of confirmation by the Division of Water Resources (and
any other applicable state or federal agency with regulatory authority) that all applicable
requirements for decommissioning the Nottingham Dam have been satisfied..
4. Subjacent and Lateral Su ort. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements including, without limitation, improvements to
the dam, outlet structure(s), spillway and spillway channel, impoundment area and any other
improvement deemed necessary in the reasonable discretion of Town or as required by the
Division of Water Resources over the Nottingham Dam and related improvements. Developer
shall not take any action which would impair the lateral or subjacent support for said
improvements.
5. Access. The Nottingham Dam Easement includes a non - exclusive right of reasonable
vehicular and pedestrian ingress, egress and access, for use by Town and its employees, agents
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 3 of 11
20130728
and contractors in connection with the Nottingham Dam, on, over, upon, across and along the
existing dirt road located on the Nottingham Dam property and the adjacent property in the
location generally depicted on Exhibit A attached hereto ( "Nottingham Dam Access
Easement ").
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, the Nottingham Dam Easement does not
include any right to construct any new roads, improvements or structures, on, over,
across, through or upon any portion of the Nottingham Dam Easement property or the
adjacent property. Any such construction shall be subject to the prior written consent of
Developer, which consent shall not be unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam Easement property and the adjacent property and the right to
construct improvements and structures within the Nottingham Dam Easement property
and the adjacent property, including the right to construct roads on, across, over or under
the Nottingham Dam structure and improvements, so long as any such Developer
improvements or structures do not degrade the structural integrity of the Nottingham
Dam structure or otherwise unreasonably interfere with the Nottingham Dam Easement
or the Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Easement. Town, and its successors and assigns,
shall maintain the Nottingham Dam Easement in accordance with the minimum requirements of
the Division of Water Resources, including repairing any damage to any portion of the
Nottingham Dam, other than any damage resulting from the acts or omissions of Developer.
Town, and its successors and assigns, shall be solely responsible for, and bear the entire cost and
expense of, any such maintenance, repair and/or replacement associated with the Nottingham
Dam. In addition, Town shall keep the Nottingham Dam and its banks in an attractive condition
and shall re -grade and remove vegetation and debris from the banks of the Nottingham Dam.
Town's obligations in this Paragraph 7 shall be subject to the limitations of Town's obligations
stated in Paragraph 3 above and as stated in Section 4.2(c) of the Development Agreement.
Town's obligations in this Paragraph 7 shall be subject to annual budget and appropriation by
Town and Town acknowledges and agrees that annual budget and appropriation shall be
considered in good faith. In the event that the Division of Water Resources or other applicable
regulatory agency mandates an emergency repair expenditure for the Nottingham Dam and such
expenditure is not included in Town's draft budget for the succeeding calendar year which is
submitted to the Avon Town Council in accordance with applicable requirements of the Avon
Home Rule Charter and state budget law, then Town shall promptly provide notice to Developer
upon submitting the draft budget to the Avon Town Council. The failure of Town to budget and
appropriate funds, in whole or in part, as necessary to perform Town's obligations stated in this
Paragraph 7 shall not constitute a default or breach of this Agreement provided such decision of
the Town concerning annual budget and appropriation is made in good faith. In the event that
Town fails to timely budget and appropriate an expenditure and timely conduct emergency
repairs which are mandated by the Division of Water Resources or other applicable regulatory
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 4 of 11
20130728
agency, then Developer may, but is not obligated to and shall have no liability related to or
arising from its election, proceed to perform such emergency repair and Town shall reimburse
Developer for such expense provided that Town's obligation to reimburse Developer shall be
subject to annual budget and appropriation and the good faith failure of Town to budget and
appropriate funds to reimburse Developer, in whole or in part, shall not constitute a default or
breach of this Agreement. In the event of any dispute between Town and Developer concerning
the timing, specific emergency repair activity, expenditure and/or compliance with an emergency
repair mandate by the Division of Water Resources or other regulatory agency, either Town or
Developer may elect to submit such dispute to the Judicial Arbiter's Group ( "JAG ") or other
mutually acceptable arbitrator for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Easement, the adjacent property or the
Nottingham Dam Access Easement to the general public or for the general public or for any
public purpose whatsoever, it being the intent of the Parties that the Nottingham Dam Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument
executed by the Developer.
9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the Parties hereto. Notwithstanding the foregoing and
subject to Paragraph 23, if any party sells all or any portion of its interest in property subject to
this Agreement, such party shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it after the
sale and conveyance of title but shall remain liable for all obligations arising under this
Agreement prior to the sale and conveyance of title. The new owner of any such property or
portion thereof (including, without limitation, anyone who acquires its interest by foreclosure,
trustee sale or otherwise) shall be liable for all obligations arising under this Agreement with
respect to such property or portion thereof after the date of sale and conveyance of title.
10. Covenants. Developer, TCMD and Town each covenant for and on behalf of each of the
other Parties that they have taken or performed all requisite acts or actions which may be
required by their organizational or operational documents to confirm their respective authority to
execute, deliver and perform each of their obligations under this Agreement.
11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam Easement is granted and the adjacent property in fee simple and has full power
and lawful authority to grant, sell, and convey the same in manner and form as aforesaid.
Developer, for itself, its heirs, personal representatives, successors and assigns, does covenant
and agree that it shall warrant and forever defend Town in its quiet and peaceful possession of
the Nottingham Dam Easement and the Nottingham Dam Access Easement against all and every
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 5 of 11
20130728
person or persons lawfully claiming title to the property, whether in whole or in part, by, through
or under Developer.
12. Default. A party shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non - defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30 -day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days, which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam hereunder.
13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 12 above, the non - breaching party
shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief in the
nature of specific performance or damages or both may be awarded, subject to the provisions of
the laws of the State of Colorado. The prevailing party in any legal or administrative action shall
be awarded its reasonable costs and expenses of such action, through all appeals, including
without limitation, reasonable attorneys' fees.
14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its direct and indirect affiliates, and their respective
agents, managers, members, officers, directors, servants, consultants, advisors and employees of
and from any and all reasonable costs, expenses (including, without limitation, reasonable
attorneys' fees), liability, claims, liens, demands, actions and causes of action whatsoever arising
out of or related to any loss, cost, damage or injury, including death of any person or damage to
property of any kind, which damage, loss or injury is caused by the acts or negligent acts, errors
or omissions of Town, its subcontractors or any person directly or indirectly employed by Town.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 6 of 11
20130728
With regards to this Agreement, Developer agrees to indemnify, defend and hold harmless Town
and its officers, agents and employees of and from any and all reasonable costs, expenses
(including, without limitation, reasonable attorneys' fees), liability, claims, liens, demands,
actions and causes of action whatsoever arising out of or related to any loss, cost, damage or
injury, including death of any person or damage to property of any kind, which damage, loss or
injury is caused by the acts or negligent acts, errors or omissions of Developer, its respective
subsidiaries and affiliates, and their respective agents, managers, members, officers, directors,
servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given either in
person to the authorized representative of the noticed party or by registered or certified United
States mail, return receipt requested, with such notice being addressed as specified in the
introductory paragraph of this Agreement. Unless otherwise stated in this Agreement, notice
deposited in the mail, in accordance with the provisions hereof, shall be effective from and after
the fourth (4th) day following the date postmarked on the envelope containing such notice, or
when actually received, whichever is earlier. Notice given in any other manner shall be effective
only if and when received by the party to be notified. By giving the other party at least seven (7)
days written notice thereof, the Parties shall have the right to change their respective addresses
and specify as their respective addresses for the purposes hereof any other address in the United
States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 10 and 11 of
this Agreement, no representations or warranties of any nature have been made by the Parties,
and none of the Parties hereto have entered into this Agreement in reliance upon any such
representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter described herein, and further replaces and supersedes all prior
agreements, rights and obligations between the Parties with respect to the subject matter hereof.
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the Parties.
23. Assignment. This Agreement shall not be assigned by Town without the prior written
consent of Developer, which consent shall not be unreasonably withheld. Any assignment
without the prior written consent of the Developer shall be null and void, though, as mentioned
in the preceding sentence, such consent shall not be unreasonably withheld. The express
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 7 of 11
20130728
assumption, in writing, of this Agreement shall thereby relieve the applicable assignor to the
matters so assumed by the assignee.
24. Legal Fees and Costs. Except for arbitration as set forth in paragraph 25 below, in the
event that a party institutes an action or proceeding for a declaration of rights of Town and
Developer under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions contemplated
hereby, the prevailing party shall be entitled to its actual reasonable costs and attorneys' fees.
Pursuant to Section 1, TCMD shall not be a party to any legal or arbitration proceeding that
doesn't regard anything before the Effective Date. Town and Developer agree to waive their
respective rights to a jury trial in any civil legal proceeding.
25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the
State District Court in and for the County of Eagle, Colorado. Each party shall also have the
right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a
declaratory judgment, because the issue is not ripe, the Town and Developer agree to submit any
disputes under this Agreement to the Judicial Arbiter's Group ( "JAG ") for binding resolution in
accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1, TCMD shall not
be a party to any legal or arbitration proceeding that doesn't regard anything before the Effective
Date.
26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Parties within seven (7)
days of receipt of said facsimile copy.
[SIGNATURE PAGES FOLLOW]
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 8 of 11
20130728
DEVELOPER:
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a Colorado limited liability
company and Manager of Traer Creek -RP LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 9 of 11
20130728
TRAER CREEK METROPOLITAN DISTRICT, a
quasi - municipal corporation and political
subdivision of the State of Colorado
BY:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2013, by Daniel J. Leary, as President of Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 10 of 11
20130728
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of ,
20 , by
[and by
as of
as of
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 11 of 11
20130728
i
Land Description EXH18 1 -T A
A Parcel of land located in the West h of the Northwest Y. of Section 6, Township 5 South, Range 81 West of the 6th Principal
Meridian, Eagle County, Colorado. Said parcel being more particularly described by metes and bounds as follows:
Commencing at the West Y. Comer of said Section 8 from which a found 1942 2X" US General Land Office brass cap bears
500'15'38 "E, 33,OD'; thence N23'43'14'E, 7125.00' to the Point of Beginning of the herein described parcel of land; thence along
the boundary of said parcel the following six (6) courses and distances:
1) N12'09'30"W, 361.37 feet; 2) N34'51'14 "E, 60.00 feet; 3) S71'23'21 "E, 520.61 feet; 4)SOB'14'53 "E, 115.00 feet;
5) S38'28'42"W, 311.00 feet; 6) N66'13'50w, 300.00 feet to the Paint of Beginning.
The above described parcel contains 4.052 acres of land more or less.(
Bearings contained herein are based on the North line of the Southeast
quarter of Section 7,'Township 5 South, Range 81 West of the 6th
Principal Meridian, Eagle County, Colorado. bearing N8W50'40 "E.
I N34'51'14$
en an' -, J7
N 1/16 COR.
SECS. 7 6 e
POINT OF
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APPROXIMATE LOCATION
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COMMENCEMENT
WEST 1/4 QUARTER, SECTION 8
T55, R82W, 6th PM
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NO110E: According to Colorado Low you must commence any legal action
based upon any defect in this exhibit within three years after you first
discover such defect. In no event may any action ba"d upon any defect
In this exhibit be commenced more than ten yea" from the date of the
certification shown hereon.
SHEET i OF I Z: \DWG \VILLAGE AT AVON \NETLANDS -ESMT -EXHIBIT.dwg
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JOB# 8206.A1
ACENTER P.O. BI
EDWARDS. COLORADO 91932 •
(970) 929 -3373 FAX (970) 929 -3390
Exhibit C to Resolution 13 -23
Amended and Restated Conveyance
of Roadway, Parkland and Easements
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
THIS PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE
OF ROADWAYS, PARKLAND AND EASEMENTS ( "Assignment ") is made and entered into
as of this day of , 20 ( "Effective Date ") by and between TRAER CREEK
METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the
State of Colorado ( "Assignor "), and the TOWN OF AVON, a home rule municipal corporation
of the State of Colorado ( "Assignee ") (collectively, the "Parties ").
RECITALS
WHEREAS, Traer Creek LLC, a Colorado limited liability company ( "Traer "), Wal-
Mart Real Estate Business Trust and Home Depot, U.S.A., Inc., entered into that certain
Easements with Covenants and Restrictions Affecting Land dated April 24, 2002 and recorded in
the Eagle County real property records ( "Records ") at Reception No. 795009 ( "ECR ");
WHEREAS, pursuant to Section 40) of the ECR, Traer agreed to convey to the Assignor
via a separate instrument, non - exclusive temporary road easements for certain rights -of -way to
be known as Chapel Place and East Beaver Creek Boulevard;
WHEREAS, Traer Creek -RP LLC, a Colorado limited liability company ( "TCRP "), and
Traer (collectively, "Developer ") and Assignor entered into that certain Amended and Restated
Conveyance of Roadways, Parkland and Easements dated effective May 8, 2002 and recorded in
the Records on January 27, 2005 at Reception No. 904568 (the "Original Agreement ");
WHEREAS, Developer and Assignor entered into that certain First Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective
May 8, 2002 and recorded in the Records on June 7, 2013 at Reception No. 201311801 (the
"First Amendment ");
WHEREAS, the Developer and Assignor entered into that certain Second Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective May
8, 2002 and recorded in the Records on , 2013 at Reception No.
(the "Second Amendment ");
WHEREAS, the Original Agreement as amended by the First Amendment and the
Second Amendment is referred to herein as the "Agreement;"
WHEREAS, pursuant to the ECR, Developer granted Assignor certain easement rights
over a portion Lot 1, The Villages (at Avon) Filing 1, County of Eagle, State of Colorado (the
"Plat "), for an 80' non - exclusive temporary road easement ( "East Beaver Creek Boulevard
Easement ") and a 50' non - exclusive temporary road easement ( "Chapel Place Easement ")
(collectively, the East Beaver Creek Boulevard Easement and Chapel Place Easement are
referred to herein as the "Easements ") as depicted on the Plat for the location, construction and
maintenance of roadways to be known as, respectively, East Beaver Creek Boulevard and Chapel
Place; and
10443693
WHEREAS, Assignor desires to partially assign, on a non - exclusive basis, its rights, title,
interests and obligations in, under and to the Agreement with respect to the Easements only to
Assignee; Assignee desires to assume all such rights, title, interests and obligations from
Assignor with respect to the Easements; and Developer, pursuant to Section 12 of the
Agreement, desires to consent to such assignment as evidenced by Developer's execution hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the Assignor and the Assignee agree as follows:
COVENANTS AND AGREEMENTS
1. Partial Assignment and Assumption. As of the Effective Date and subject to the
reservations and rights set forth in Section 2, the Assignor hereby transfers, assigns, sells and
conveys to the Assignee all of the Assignor's right, title, interest, duties and obligations in and to
the Agreement with respect only to the Easements without representation or warranty and subject
to all of the terms, covenants and conditions of the Agreement. As of the Effective Date, the
Assignee hereby accepts such assignment and agrees to assume and be responsible for all of the
covenants and obligations of the Assignor under the Agreement with respect to the Easements
only. Nothing contained herein shall be deemed an acceptance by the Assignee of any roadway
improvements located within the Easements as a public right -of -way of the Town of Avon nor of
any obligation to reconstruct or repair any improvements located within the Easements,
including, but not limited to, any obligation for asphalt overlay payments or obligations.
2. Reservation of Easement and Right to Construct. Notwithstanding anything to the
contrary contained herein, Assignor hereby reserves a non - exclusive easement in, to, through,
over, under and across the Easements for purposes of construction and installation of the
"Roadway Improvements" (as defined in the Agreement) for East Beaver Creek Boulevard and
Chapel Place. Assignee acknowledges and agrees that notwithstanding anything to the contrary
contained in the Agreement, any obligation of the Assignor to construct the Roadway
Improvements within the Easements shall only be to the extent that the Assignor has budgeted
and appropriated funds therefor.
3. Indemnity. Assignee shall indemnify, protect, defend and hold Assignor, Traer
and TCRP (and their respective officers, directors, employees, consultants and representatives)
harmless from and against any and all claims (including, without limitation, claims for
mechanic's liens or materialmen's liens), causes of action, demands, obligations, losses,
damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees) (collectively, "Claims ") in connection with or arising out of Assignee's exercise
of its rights hereunder and use and enjoyment of the Easements; provided, however, such
indemnity shall exclude any Claims caused by negligence or willful misconduct of Assignor,
Traer or TCRP (or their respective officers, directors, employees and representatives).
Developer shall be a third -party beneficiary of this Section 3.
4. Insurance. At all times while this Assignment is in effect, Assignee shall obtain,
keep in force and maintain liability insurance protecting against bodily injury and property
damage claims relating to Assignee's exercise of its rights hereunder and use and enjoyment of
the Easements, which coverage shall have a minimum limit of $1,000,000 for each occurrence;
2
1044369.3
provided, however, that Assignor and Developer shall have full benefit of any greater limits
maintained by Assignee. Such insurance policy shall name Assignor, Traer and TCRP as
additional insureds, shall apply on a primary and non - contributory basis and shall be endorsed
with a clause providing that the insurer waives all rights of subrogation which such insurer might
have against Assignor, Traer or TCRP.
5. Ratification. Assignee hereby agrees to and ratifies each of the terms, provisions,
representations, covenants and conditions of the Agreement.
6. Covenants. The Assignor and Assignee each covenant for and on behalf of the
other Party that they have taken or performed all requisite acts or actions which may be required
by their organizational or operational documents to confirm their respective authority to execute,
deliver and perform each of their obligations under this Assignment and the Agreement.
7. Execution. This Assignment may be executed in counterparts, each of which is
deemed an original for all purposes hereunder, and all of which shall constitute collectively one
agreement.
8. Entire Agreement. This Assignment contains the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof, and all prior
negotiations, agreements and understandings, oral or written, are merged herein and superseded
hereby.
9. Successor and Assigns. This Assignment and the Agreement and all rights and
obligations of Assignee and Assignor hereunder and under the Agreement shall be binding upon
and inure to the benefit of Assignor and Assignee and their respective heirs, successors and
assigns.
10. Miscellaneous. This Assignment shall be governed by and construed under the
applicable laws of the State of Colorado.
[SIGNATURES ON FOLLOWING PAGES]
1044369.3
IN WITNESS WHEREOF, the Parties hereto have executed this Assignment as of the
date first set forth above.
ASSIGNOR:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi - municipal corporation and political
subdivision of the State of Colorado
By:
Name:
Title:
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this _
20 , by , as of
[and by as of
Witness my hand and official seal.
My commission expires:
Notary Public
4
10443693
day of ,
ASSIGNEE:
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20 , by
[and by
as of
as of
Witness my hand and official seal.
My commission expires:
Notary Public
5
10443693
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By:
Name:
Title:
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20, by as of Traer Creek LLC, a Colorado limited
liability company, as Manager of TRAER CREEK -RP LLC, a Colorado limited liability
company.
Witness my hand and official seal.
My commission expires:
Notary Public
6
1044369.3
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK LLC, a Colorado limited
liability company
By:
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
20, by as of TRAER CREEK LLC, a Colorado
limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
7
1044369.3
Exhibit D to Resolution 13 -23
Revocable License Agreement for Snow Storage
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
TRAER CREEK -RP LLC FOR THE GRANT OF A REVOCABLE
LICENSE AGREEMENT FOR SNOW STORAGE
1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage
( "Agreement ") dated as of , 20 ( "Execution Date ") are the Town of
Avon, a home rule municipal corporation of the State of Colorado ( "Town' and
"Party ") and Traer Creek -RP LLC, a Colorado limited liability company ( "Traer
Creek," "Licensee" and "Party ") (collectively referred to as the "Parties ").
2.0 RECITALS AND PURPOSE.
2.1 The Town is the fee owner of certain property located in the Town of Avon,
County of Eagle, State of Colorado, as more particularly described in EXHIBIT
A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated
herein by this reference ( "Property "); and
2.2 The Town and Traer Creek are also parties to the Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon)
dated as of , 20 and recorded on , 20
in the real property records of the Clerk and Recorder for Eagle County, Colorado
( "Records ") at Reception No. ( "Development Agreement'),
which is hereby incorporated by this reference; and
2.3 Master Developer caused Traer Creek to convey the Property to the Town in
accordance with Section 3.7(b) of the Development Agreement which provides
that until such time that the Property is developed or improvements are
constructed thereupon that would preclude use of the Property for snow storage,
the Town and Master Developer (as "Master Developer" is defined in the
Development Agreement) shall have the right to use the Property for snow
storage; and
2.4 Pursuant to Section 3.7(b) of the Development Agreement, "the Town and Master
Developer (or its assignee) shall have the right to use Planning Area B for snow
storage in accordance with the terms of the Revocable License Agreement" and
the Master Developer hereby assigns its right to snow storage to Traer Creek; and
2.5 The Town desires to grant, and the Licensee desires to accept, a revocable license
for the purpose of snow storage upon the Property consistent with the terms of the
Development Agreement.
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 1 of 9
3.0 LICENSE TERMS AND CONDITIONS.
3.1 Grant of License. The Town hereby grants to Licensee a revocable license for
snow storage purposes ( "Snow Storage License ") on, over and upon the Property
which is subject to change pursuant to Section 3.7(b) of the Development
Agreement.
3.2 Hazardous Materials. The Licensee agrees to use reasonable commercial efforts
to avoid the dumping or release of Hazardous Materials (defined below) on the
Property, provided that the Town acknowledges and agrees that Licensee intends
to store snow on the Property that has been removed from streets, drive lanes,
parking lots and other paved vehicular travel and storage surfaces, and, in
connection therewith, there may occur incidental dumping of the by- products of
such surfaces and vehicles, such as petroleum, gasoline products, products
associated with snow removal such as cinders and magnesium chloride. The term
"Hazardous Materials" as used herein includes, without limitation, gasoline,
petroleum products, explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or
related or similar materials, asbestos or any material containing asbestos, or any
other substance or material as may be defined as a hazardous or toxic substance
by any Federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section
1801, et seq.) the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.) and in the regulations adopted and publications promulgated
pursuant thereto.
3.3 Term; Termination. This Agreement and the Snow Storage License granted to
Licensee shall commence on the Effective Date (as "Effective Date" is defined in
the Development Agreement) and terminate on the date the Property is so
developed or such improvements are constructed thereupon that preclude use of
the Property for snow storage ( "Snow Storage Termination Date "). Any and all
improvements constructed on the Property are subject to approval by the Design
Review Board (as defined in the Development Agreement) pursuant to the terms
of the Development Agreement. Pursuant to paragraph 5 below, the Town shall
give Licensee sixty (60) days prior written notice of the Town's commencement
of development or commencement of construction of such improvements on the
Property that preclude use of the Property for snow storage. The Town's notice
of termination in any given year must be received by September 30, so that
Licensee can enter into contracts for snow storage for the upcoming snow season.
For clarification purposes, grading the Property does not in itself make the
Property unsuitable for snow storage use. The Snow Storage License may be
earlier revoked only if the Town Council of the Town has made a legislative
determination at a duly noticed public hearing that revocation of the Snow
Storage License is necessary to protect the public health, safety and welfare of the
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 2 of 9
Town; provided, however, the Town shall give Licensee written notice specifying
the nature of public health, safety and welfare concern and Licensee shall have
thirty (30) days from such written notice to cure or correct such concern (or such
longer time as is reasonably necessary to cure or correct such concern so long as
Licensee has in good faith commenced and is diligently pursuing efforts to correct
the condition specified in such notice). If Licensee fails to cure or correct such
concern within such timeframe, the Town shall thereafter give Licensee written
notice of revocation of the Snow Storage License. The Town may summarily
suspend the Snow Storage License granted to Licensee if Licensee dumps or
releases Hazardous Materials in excess of incidental dumping of the by- products
of streets, drive lanes, parking lots and other paved vehicular travel and storage
surfaces and vehicles as described in paragraph 3.2 above until such time as
Licensee repairs the damage caused by such dumping or release of Hazardous
Materials or the Town takes legislative action to revoke the Snow Storage License
according to the procedures stated in this paragraph 3.3. From and after the Snow
Storage Termination Date, Licensee shall have no right to use the Property for
snow storage purposes, the Snow Storage License shall automatically be revoked
and this Agreement shall terminate and be of no further force or effect, provided
that Licensee's obligation to repair any damage to the Property caused by
Licensee as set forth in paragraph 3.5 below shall survive the termination of this
Agreement.
3.4 Indemnity. To the extent permitted by law, Licensee expressly agrees to, and
shall,. indemnify and hold harmless the Town, as licensor, and any of its officers,
agents, or employees from any and all claims, damages, liability, or court awards,
including reasonable costs and attorney's fees that are or may be awarded as a
result of any loss, injury or damage sustained or claimed to have been sustained
by anyone, including but not limited to, any person, firm, partnership, or
corporation (collectively, the "Claims "), in connection with or arising out of any
act or omission by Licensee or any of its respective employees, agents, partners,
or lessees, in exercising its rights under this Agreement; provided, however, such
indemnity and hold harmless shall not extend to any Claims in connection with or
arising out of the negligence or willful misconduct of the Town. In particular and
without limiting the scope of the foregoing agreement to indemnify and hold
harmless, Licensee shall, to the extent permitted by law, indemnify the Town
from all Claims in connection with or arising out of any claim in whole or in part
that all or any portion of the snow storage permitted by this Agreement constitutes
a dangerous and/or unsafe condition within a public right -of -way; provided,
however, such indemnity shall not extend to any Claims in connection with or
arising out of the negligence or willful misconduct of the Town.
3.5 Damage; Environmental Conditions. During the term of this Agreement,
Licensee shall promptly repair, at no cost to the Town, any damage caused by
Licensee to the Property and improvements thereon, including without limitation,
the dumping or release of Hazardous Materials, and shall return the Property and
such improvements to the condition existing immediately prior to the occurrence
of the damage. In no event, however, shall the Town claim the Property or the
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 3 of 9
improvements thereon are damaged due to the dumping or release of Hazardous
Materials associated with the snow dumping operation, unless the Town can
prove such dumping or release of Hazardous Materials are in excess of what is
considered commercially reasonable. Upon termination of this Agreement,
Licensee agrees to repair, at no cost to the Town, any damage to the Property
caused by Licensee, including without limitation, removal and/or remediation of
any Hazardous Materials placed on the Property by Licensee, and the Town
hereby grants an encroachment license to Licensee for the limited purpose of
performing such repair, removal and clean up, if any, which encroachment license
shall survive termination of this Agreement.
3.6 Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy
or policies of insurance protecting against injury, damage or loss occurring on the
Property in the minimum amount of $600,000.00 per occurrence. Such policy or
policies shall name the Town as an "additional insured." However, Licensee's
failure to take such steps to obtain such insurance shall not waive, affect, or
impair any obligation of Licensee to indemnify or hold the Town harmless in
accordance with this Agreement.
3.7 Spring Trash Clean -Up. Licensee agrees to pick -up and properly dispose of any
litter, trash or debris in snow dumping piles each spring promptly after such snow
dumping piles have completely melted and the ground has reasonably hardened.
For clarification, weather permitting, Licensee currently believes somewhere
around thirty (30) days should be enough time and that the work would be
performed in phases.
4.0 ASSIGNMENT. This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, Traer Creek shall have the right to assign or
transfer all or any portion of its interests, rights or obligations under this Agreement to
any related parties or any third parties acquiring an interest or estate in the property
legally described in Exhibit A to the Development Agreement, and generally known as
The Village (at Avon), including, but not limited to, purchasers or long term ground
lessees of individual lots, parcels, or of any improvements now or hereafter located
within such property, provided that to the extent Traer Creek assigns or transfers any of
their respective obligations under this Agreement, the assignee(s) or transferee(s) of such
obligations shall expressly assume such obligations. The express assumption of any of
Traer Creek's obligations under this Agreement by the assignee(s) or transferee(s) shall
thereby relieve Traer Creek of any further obligations under this Agreement with respect
to the matter so assumed. Additionally, and under the same terms and conditions just
outlined, Traer Creek may assign or transfer its rights herein to any successor(s) in
interest, heir(s), assign(s), transferee(s), etc.
5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a
Party desires or is required to give to the other Party shall be in writing and either
personally delivered, sent by registered or certified United States mail, postage prepaid,
or sent by overnight courier. Notices shall be deemed effective: (i) if personally
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 4 of 9
delivered, when actually given to and received by an authorized person of a Party; or (ii)
if by overnight courier service, on the next business day following deposit with such
courier service; or (iii) if by registered or certified United States mail, postage prepaid,
return receipt requested, three (3) business days after mailed. Notices shall be addressed
as follows (or to such other address as may be subsequently specified by notice given in
accordance herewith) (as of the date of this Agreement, the Parties acknowledge that
United States mail doesn't deliver to physical addresses, which require delivery by
overnight courier service):
To Traer Creek:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, Colorado 81620
Attn: Marcus Lindholm, Manager
Telephone: 970.949.6776
To Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attn: Town Manager
Telephone: 970.748.4000
With Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 303.825.8400
With Copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attn: Town Attorney
Telephone: 970.748.4000
6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between
the Parties as to the subject matter of this Agreement and no prior representations or
statements, verbal or written, shall modify, supplement or change the terms of this
Agreement. This Agreement may not be amended, modified or supplemented except in
writing executed by all the Parties (or their successors or assigns, as applicable).
7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado.
8.0 WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any Party. No waiver of one or more of the terms of this
Agreement shall constitute a waiver of other terms. No waiver of any provision of this
Agreement in any instance shall constitute a waiver of such provision in other instances.
9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon,
the Parties, their respective legal representatives, successors, heirs, and assigns; provided,
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 5 of 9
however, that nothing in this paragraph shall be construed to permit the assignment of
this Agreement except as otherwise expressly authorized herein.
10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful
misconduct of the Town, it is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the Snow Storage License granted by this
Agreement and that the risk of loss, liability, obligation, damages, and claims associated
with the Snow Storage License shall be borne by the Licensee. This Agreement does not
confer upon Licensee any other right, permit, license, approval, or consent other than that
expressly provided for herein and this Agreement shall not be construed to waive,
modify, amend, or alter the application of any other federal, state, or local laws, including
laws governing zoning, land use, property maintenance, or nuisance. In addition, it is the
intent of this Agreement to be consistent with the terms of the Development Agreement
to provide for snow storage for Licensee, as so bargained for in the Development
Agreement and in this Agreement.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of their respective Parties and
to bind their respective Parties and that the Parties may rely upon such representation of
authority.
12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below,
in the event that a Party institutes an action or proceeding for a declaration of rights of the
Parties under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions
contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs
and attorneys' fees.
13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
under the laws of the State of Colorado. Venue for any legal action relating to this
Agreement shall be the State District Court in and for the County of Eagle, Colorado.
Each Party shall also have the right to obtain a declaratory judgment, whether the issue is
ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe,
the applicable Parties agree to submit any disputes under this Agreement to the Judicial
Arbiter's Group for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
14.0 RECORDING. This Agreement may be recorded by any Party in the Records.
15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership
exists between Traer Creek and Town, and nothing contained in this Agreement shall be
construed as making Traer Creek and the Town joint venturers or partners.
16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be
construed to create any third party beneficiaries or confer any rights on any person or
entity not named as a party hereto.
[signature pages follow]
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 6 of 9
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
frol"136T
Town of Avon, a home rule municipal
corporation of the State of Colorado
Rich Carroll, Mayor
Town of Avon
Approved as to Form:
Eric Heil, Esq., Town Attorney
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Attest:
Patty McKenny, Town Clerk
The foregoing instrument was acknowledged before me this day of ,
20, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town
of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 7 of 9
LICENSEE:
TRAER CREEK:
Traer Creek -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
LIM
Marcus Lindholm, Manager
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited
liability company.
(SEAL)
Notary Public
Commission Expire:
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 8 of 9
EXHIBIT A
Legal Description of the Property
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a
Resubdivision of Lot 1, Eagle County, Colorado.
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 9 of 9
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
MIT,, >A
Town of Avon, a home rule municipal
corporation of the State of Colorado
Rich Carroll, Mayor
Town of Avon
Approved as to Form:
Eric Heil, Esq., Town Attorney
STATE OF COLORADO
) SS.
COUNTY OF EAGLE
Attest:
Patty McKenny, Town Clerk
The foregoing instrument was acknowledged before me this day of ,
20_, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town
Of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 7 of 9
Section 1. The following agreements and asset conveyances are hereby approved by the
Town of Avon subject to the terms and conditions of the Closing Escrow Agreement:
(a) The Access Easement Agreement, attached hereto as Exhibit A;
(b) The Amended and Restated Nottingham Dam Easement and Assignment Agreement,
attached hereto as Exhibit B;
(c) The Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland
and Easements, attached hereto as Exhibit C; and
(d) The Revocable License Agreement for Snow Storage, attached hereto as Exhibit D.
OF41
.,..0'L
ADOPTED on August 13, 2013
TOWN COUNCIL ATTEST: .S EA � ..
c0�0&&DO .
cut
Rich Carroll, Mayor Pa Mc nny, Clerk
Res. 13 -18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 2 of 2
TOWN OF AVON
RESOLUTION NO. 13 -23
Series of 2013
A RESOLUTION APPROVING SEVERAL DOCUMENTS RELATED
TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT,
INCLUDING: THE ACCESS EASEMENT AGREEMENT; THE
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT; THE PARTIAL ASSIGNMENT OF
AMENDED AND RESTATED CONVEYANCE OF ROADWAYS,
PARIKLAND AND EASEMENTS; AND, THE REVOCABLE LICENSE
AGREEMENT FOR SNOW STORAGE
WHEREAS, on October 7, 2011 the Town of Avon and other parties entered into the Settlement
Term Sheet ( "Settlement Term Sheet ") in an effort to resolve pending litigation No. 2008 CV
385 and 2010 CV 316, Eagle County District Court;
WHEREAS, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
( "Development Agreement ") by Ordinance No. 12 -10 which states in Section 4.2(c) that the
Town of Avon will assume certain maintenance obligations of Traer Creek Metropolitan
District;
WHEREAS, the Town, Traer Creek Metropolitan District, Traer Creek development entities
and other parties to the litigation desire to clarify and document the transfer public improvement
assets to the Town for which the Town accepts responsibility to maintain according to the
Development Agreement and desires to adopt various agreements which address additional
details concerning the rights and obligations of parties to those agreements;
WHEREAS, Section 4 of Ordinance 12 -10 authorizes the Town Council to approve
amendments and/or revisions to the documents conveying property to the Town in Section 4 of
Ordinance No. 12 -10 by resolution;
WHEREAS, the Town of Avon may generally act by resolution to approve agreements and
acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to the Village (at Avon) Settlement Implementation ( "Closing Escrow Agreement ") by
Ordinance No. 12 -10 which set forth various terms concerning the execution and deposit of
documents and agreements into escrow and the effectiveness or voiding of such documents and
agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON:
Res. 13 -18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 1 of 2
Exhibit A to Resolution 13 -23
Access Easement Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Party McKenny, Town Clerk
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (this "Easement Agreement ") is made and
entered into as of this day of , 2013 ( "Effective Date "), by and
between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(together with its successors and assigns, "Grantee "); and TRAER CREEK -RP LLC, a Colorado
limited liability company (together with its successors and assigns, "Grantor ").
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference ( "Lot
1"
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) made and entered
into as of , 2013 and recorded in the real property records of Eagle County,
Colorado (the "Records ") on or about even date herewith ( "Development Agreement ").
C. Pursuant to Section 3.7(b) of the Development Agreement, concurrently with the
"Effective Date" (as defined in the Development Agreement) of the Development Agreement,
Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee certain real
property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and
incorporated herein by this reference ( "Planning Area B "), which property is designated as
Planning Area B pursuant to The Village (at Avon) PUD Master Plan (the "PUD Master Plan "),
being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide
recorded in the real property Records on or about even date herewith (the "PUD Guide ").
D. As of the Effective date, there is no legal access to Planning Area B from a public
right -of -way.
E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, an access easement from that certain 80-
foot wide right -of -way known as East Beaver Creek Boulevard (as recorded in the Records at
Reception No. 795007) to Planning Area B for the purpose of Grantee's enjoyment of the
Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction,
operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the
terms and conditions of the PUD Guide and the Development Agreement, and as set forth below.
1014138.9- FINAL, Aug 13, 2013
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, a perpetual, non - exclusive, forty (40) -foot wide easement appurtenant to Planning
Area B (the "Easement ") over, under, through and across that portion of Lot 1 which is legally
described and depicted in Exhibit C attached hereto and incorporated herein by this reference
(the "Easement Area ") for the purpose of Grantee's, together with its engineers, contractors,
employees and similar consultants to Grantee and/or its assigns (collectively, "Permittees "),
conducting of the following activities (collectively, the "Permitted Uses "): (i) vehicular and
pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using,
operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks,
bike paths, retaining walls and other access facilities necessary or desirable for such ingress and
egress, and all fixtures and devices reasonably used or useful in the operation of such facilities
(collectively, the "Roadway Facilities "); (iii) constructing, installing, using, operating,
maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities,
electrical lines, gas lines, telephone lines, cable lines, fiber optic lines, and similar utilities and
utility facilities (collectively, the "Utility Facilities," and together with the Roadway Facilities,
the "Facilities "); and (iv) the right to enter upon the Easement Area and such immediately
abutting areas of Lot 1 thereto as may reasonably be necessary to survey and conduct
geotechnical and similar physical investigations. As set forth in the PUD Guide and
Section 3.7(b) of the Development Agreement, any construction of the Facilities shall be subject
to the prior written approval of the "Design Review Board" (as defined in the PUD Guide).
Nothing contained herein shall obligate Grantee to install, or cause to be installed, any or all of
the Facilities or to otherwise provide for any such use.
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of pennanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable Public Improvements Agreement(s) (as defined
in the PUD Guide) between the Town and applicable constructing party(ies) ( "Future Main
Street "), Grantor and Grantee acknowledge that future design, engineering, construction and/or
general development of Lot I and /or Future Main Street may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned, relocated or terminated to
accommodate such fixture development of Lot 1 and/or Future Main Street, provided that at no
time shall Planning Area B be without legal access to Future Main Street or another public right -
of -way. Grantor and Grantee further acknowledge and agree that, as generally contemplated by
the PUD Master Plan, the configuration of Future Main Street abuts Planning Area B and could
provide direct legal access from Future Main Street to Planning Area B without the necessity of
any easement or grant of other right to provide for such access. Accordingly, if Future Main
Street or other public right -of -way is designed and constructed in a manner that provides direct
legal access from Future Main Street or other public right -of -way to Planning Area B, upon the
Town's preliminary acceptance pursuant to the applicable Public Improvements Agreement of
2
1014138.9 - FINAL, Aug 13, 2013
the street improvements for the portion of Future Main Street or other public right -of -way that
provides such legal access to Planning Area B, this Agreement and the Easement granted
hereunder shall automatically terminate and be extinguished and of no further force or effect
without any further act of either Grantor or Grantee. Notwithstanding the foregoing, upon and
after such termination at the written request of Grantor, Grantee shall deliver to Grantor an
executed termination of this Agreement in recordable form, which Grantor may record against
the Easement Area to provide record notice of such termination. Further, if Grantor determines,
in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for
purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and
Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and
configuration or relocation of the Easement Area (the "Relocated Easement Area ") and Grantee
shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement
Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement
substituting the surveyed legal description for the alignment and configuration of the Relocated
Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the
recordation of such amendment in the Records. Recordation of such amendment in the Records
shall have the legal effect of terminating the prior boundaries of the Easement Area and
establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of
such amendment, the Design Review Board previously has approved, and Grantee previously has
installed and/or constructed, Facilities within the Easement Area, Grantor shall have the
obligation, at Grantor's sole cost and expense, to relocate such Facilities to, or install and /or
construct such Facilities within, the Relocated Easement Area.
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days' written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee's
and/or Permittees' conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee's and/or Permittees' conduct of such activities. Upon completion of any construction
activities within the Easement Area, Grantee shall promptly cause revegetation and /or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor's Reserved Rights. Grantor reserves the right to grant additional
non - exclusive easements and /or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee's
or Permittees' full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
3
1014138.9 -FINAL, Aug 13, 2013
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein, including without limitation, snow dumping and storage.
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights -of -way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic's liens or materialmen's liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys' fees) (collectively, "Claims ") in
connection with or arising out of Grantee's exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee's exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non - contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
in
1014138.9 -FINAL. Aug 13.2013
11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
13. Counterparts. This Easement 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.
[Signature pages follow this page.]
1014138.9 - FINAL, Aug 13, 2013
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, . The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
A -1
1014138.9 - FINAL, Aug 13, 2013
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
B -1
1014139.9- FINAL, Aug 13, 2013
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
PROPERTY DESCWPt10N
That port of the Second Amended Final Plot, The Viliago (at
Avon) _ Filing 1, A Resubd'+viesor of Lot 1, o :cording to the
map recorded at Reception No. .,,.._ In Iho office
Of the EaVe Courty, Colorodv, Clerk and Reaordor, described
as follows•. .
Beginning at a point On the north Right -Of -Way fine of East
Beaver Creek Boulevard and Tern"mry 8D' Road Cosoment
whence a polhi of eurvotu. -e on Said north Right -Of -Way line
- bears 1465'5WSS—W 161.81 foot, so'd Point a` Beginning also
bears N3A'51'58"W 1628.09 feet to t,e no- lhweyt corner
of sod Lot 1, thence deporting sold I'm N2.VO4 *02"E 97.28
(ect, thence N25'00'OD £ 97,45 foot to the most sautnwesl
lire of Lot 2 of said Second Amended Final Plat, The
Village (at Avon) Filing i, A Resubd vision of Lot 1,
thence clung said southwest fine S55-00.OD -E 40,00 feet,
fhence departing said line S25'00'00 "W 97.11 feet, thence
S24'UCO2"W 97,27 foot to said north Right -Of -Way line of
East Beaver Crook Boulavard and Temporary B0' Rood
Easement, thence Wong said r'ne NaS*55'58"W 40.00 feet to
the Pont of Boginn'ng, contoln;ng 7788 square feat, mcre
or less.
116-4-
NW CORNER LOT 1
AMENDED PLAT,
THE VILLAGE (AT AVON) FILING 1
RN 898171 &
LOT 2
SECOND AME7JDED FIIJA;, ?,AT
Tif_ VILLAGE {AT AVON) FJUNC 1
A RESUBOMS!ON OF LOT 1
s.
��t'�' N2s'DD'OU'i o o
TFMPORA�Ry ]y 97.4 Ot!
80' ROAD
EASEMEw �-152$'00'0o'Yf
�jRw 795007} N24'0 <'dS� -E �% ��� / 97.11'
" `� ,0' Y 97, 8B J '7 ""-40' ACCESS EASEMENT
0.k` 7 /l
let
SSS'' 52404'02 "W
97.27'
D B. 0 Q Dy
P..
&OU4�L
C -1
1014138.9 - FINAL, Aug 13, 2013
Exhibit B to Resolution 13 -23
Amended and Restated Nottingham Dam Easement
and Assignment Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT ( "Agreement ") is made and entered into as of this day of
, 2013 ( "Effective Date ") by and between TRAER CREEK -RP LLC, a Colorado
limited liability company ( "Developer "), whose address is P.O. Box 9429, 0101 Fawcett Road,
Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT, a quasi -
municipal corporation and political subdivision of the State of Colorado ( "TCMD ") c/o Special
District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood, Colorado
80228, and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
( "Town "), whose address is P.O. Box 75, 1 Lake Street, Avon, CO 81620 (collectively, the
"Parties ").
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, ( "Original Easement Agreement ");
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado ( "STS "). The STS includes, among other terms, an obligation of Town to assume
certain maintenance obligations of TCMD, including assumption of TCMD's maintenance
obligations related to the Nottingham Dam, which maintenance obligations to be assumed by
Town are defined as stated in Section 4.2(c) of the Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon), dated , 2013
( "Development Agreement "); and
WHEREAS, for the purpose of implementing the pertinent terms of the STS and the
Development Agreement related to Town's assumption of TCMD's maintenance obligations for
the Nottingham Dam, Developer and TCMD desire to amend certain terms of the Original
Easement Agreement, as more fully set forth herein, and TCMD desires to assign all of its rights,
title, interests and obligations in, under and to the Original Easement Agreement to Town, and
Town desires to assume all such rights, title, interests and obligations from TCMD as amended
and stated herein, and Developer desires to consent to such assignment in accordance with the
terms stated herein.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 1 of 11
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NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its rights, title, interests and obligations to
Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement, that Developer and Town hereby release any
rights and obligations of the Original Easement Agreement which are inconsistent with this
Agreement, and that the intent and effect is that this Agreement shall replace and supersede the
Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns a non - exclusive easement on, over, across, upon and through the Nottingham Dam
property, in the location generally depicted on Exhibit A attached hereto ( "Nottingham Dam
Easement ") to access, maintain, repair, replace, improve, reconstruct, expand, reduce,
decommission and/or remove the Nottingham Dam and impoundment area. The Nottingham
Dam Easement shall also include a non - exclusive easement on, over, across, upon and through
such additional real property located adjacent to the real property described on Exhibit A as may
be reasonably necessary for Town to exercise its rights herein. Notwithstanding the foregoing or
any other provision of this Agreement, Developer and Town agree that Town's obligations
assumed by Town under this Agreement shall be construed, interpreted and applied such that
Town shall have sole discretion to determine the appropriate maintenance of the Nottingham
Dam provided that any such maintenance by Town shall be in compliance with dam regulations
of the Colorado Division of Water Resources and any other applicable state or federal agency
with regulatory authority over the Nottingham Dam. Town's maintenance discretion shall
include but not be limited to maintenance, repair, replacement, improvement, reconstruction,
expansion, reduction, decommission, removal and deferral of the Nottingham Dam and any
activity related to the Nottingham Dam in accordance with Section 4.2(c) of the Development
Agreement. Developer acknowledges that Town is not the current designated owner of the
Nottingham Dam according to the records of the Dam Safety Branch, Division of Water
Resources, and Developer agrees to reasonably cooperate with Town as necessary (including, but
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 2 of 11
20130728
not limited to, the Developer applying, Developer using best efforts to cause the owner of the
Nottingham Dam to apply, or Developer or owner of the Nottingham Dam authorizing Town to
apply on behalf of the owner to the applicable regulatory agency) to allow Town to work directly
with the Division of Water Resources or other applicable regulatory agency with regard to
maintenance of the Nottingham Dam and performance of Town's duties under this Agreement.
Developer further acknowledges and agrees that Town shall not be liable or responsible for
maintenance of the Nottingham Dam to the extent that Developer, The Piney Valley Ranches
Trust, or other owner of the Nottingham Dam fails to reasonably cooperate or unreasonably
interferes with Town's actions to work directly with the Division of Water Resources (and any
other applicable state or federal agency with regulatory authority) and such failure to cooperate
or interference inhibits, restricts or prohibits Town's ability to maintain the Nottingham Dam in
accordance with the terms of this Agreement. Town agrees to promptly provide to Developer
any correspondence to or from the Division of Water Resources (and any other applicable state
or federal agency with regulatory authority) and agrees to invite a representative of Developer to
any meetings with the Division of Water Resources to the extent such correspondence or
meetings are related to the Nottingham Dam. Town acknowledges that this Nottingham Dam
Easement is non - exclusive and that Developer may seek to develop areas located uphill and
downhill of the Nottingham Dam Easement; therefore, this Agreement shall not be construed to
restrict Developer's right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. If Town proposes to
decommission the Nottingham Dam, Town shall first provide at least ninety (90) days prior
written notice to Developer along with plans for decommissioning which are acceptable to the
Division of Water Resources and any other applicable regulatory agency. After receiving notice
of Town's proposal to decommission the Nottingham Dam and prior to the expiration of ninety
(90) days, Developer may elect to terminate this Agreement by tendering written notice of such
election to terminate to Town. If Developer elects to terminate, Developer shall then assume all
maintenance responsibilities for the Nottingham Dam and Town shall affirmatively extinguish
the Nottingham Darn Easement, convey to Developer any and all water rights associated with the
Nottingham Dam, including the water storage right decreed in Case No. 94CW 113, Water
Division No. 5, and this Agreement shall terminate. If Town decommissions the Nottingham
Dam then Town shall affirmatively extinguish the Nottingham Dam Easement and this
Agreement shall terminate upon receipt of confirmation by the Division of Water Resources (and
any other applicable state or federal agency with regulatory authority) that all applicable
requirements for decommissioning the Nottingham Dam have been satisfied..
4. Subjacent and Lateral Support. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements including, without limitation, improvements to
the dam, outlet structure(s), spillway and spillway channel, impoundment area and any other
improvement deemed necessary in the reasonable discretion of Town or as required by the
Division of Water Resources over the Nottingham Dam and related improvements. Developer
shall not take any action which would impair the lateral or subjacent support for said
improvements.
5. Access. The Nottingham Dam Easement includes a non - exclusive right of reasonable
vehicular and pedestrian ingress, egress and access, for use by Town and its employees, agents
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 3 of 11
20130728
and contractors in connection with the Nottingham Dam, on, over, upon, across and along the
existing dirt road located on the Nottingham Dam property and the adjacent property in the
location generally depicted on Exhibit A attached hereto ( "Nottingham Dam Access
Easement ").
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, the Nottingham Dam Easement does not
include any right to construct any new roads, improvements or structures, on, over,
across, through or upon any portion of the Nottingham Dam Easement property or the
adjacent property. Any such construction shall be subject to the prior written consent of
Developer, which consent shall not be unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam Easement property and the adjacent property and the right to
construct improvements and structures within the Nottingham Dam Easement property
and the adjacent property, including the right to construct roads on, across, over or under
the Nottingham Dam structure and improvements, so long as any such Developer
improvements or structures do not degrade the structural integrity of the Nottingham
Dam structure or otherwise unreasonably interfere with the Nottingham Dam Easement
or the Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Easement. Town, and its successors and assigns,
shall maintain the Nottingham Dam Easement in accordance with the minimum requirements of
the Division of Water Resources, including repairing any damage to any portion of the
Nottingham Dam, other than any damage resulting from the acts or omissions of Developer.
Town, and its successors and assigns, shall be solely responsible for, and bear the entire cost and
expense of, any such maintenance, repair and/or replacement associated with the Nottingham
Dam. In addition, Town shall keep the Nottingham Dam and its banks in an attractive condition
and shall re -grade and remove vegetation and debris from the banks of the Nottingham Dam.
Town's obligations in this Paragraph 7 shall be subject to the limitations of Town's obligations
stated in Paragraph 3 above and as stated in Section 4.2(c) of the Development Agreement.
Town's obligations in this Paragraph 7 shall be subject to annual budget and appropriation by
Town and Town acknowledges and agrees that annual budget and appropriation shall be
considered in good faith. In the event that the Division of Water Resources or other applicable
regulatory agency mandates an emergency repair expenditure for the Nottingham Dam and such
expenditure is not included in Town's draft budget for the succeeding calendar year which is
submitted to the Avon Town Council in accordance with applicable requirements of the Avon
Home Rule Charter and state budget law, then Town shall promptly provide notice to Developer
upon submitting the draft budget to the Avon Town Council. The failure of Town to budget and
appropriate funds, in whole or in part, as necessary to perform Town's obligations stated in this
Paragraph 7 shall not constitute a default or breach of this Agreement provided such decision of
the Town concerning annual budget and appropriation is made in good faith. In the event that
Town fails to timely budget and appropriate an expenditure and timely conduct emergency
repairs which are mandated by the Division of Water Resources or other applicable regulatory
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 4 of 11
20130728
agency, then Developer may, but is not obligated to and shall have no liability related to or
arising from its election, proceed to perform such emergency repair and Town shall reimburse
Developer for such expense provided that Town's obligation to reimburse Developer shall be
subject to annual budget and appropriation and the good faith failure of Town to budget and
appropriate funds to reimburse Developer, in whole or in part, shall not constitute a default or
breach of this Agreement. In the event of any dispute between Town and Developer concerning
the timing, specific emergency repair activity, expenditure and/or compliance with an emergency
repair mandate by the Division of Water Resources or other regulatory agency, either Town or
Developer may elect to submit such dispute to the Judicial Arbiter's Group ( "JAG ") or other
mutually acceptable arbitrator for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Easement, the adjacent property or the
Nottingham Dam Access Easement to the general public or for the general public or for any
public purpose whatsoever, it being the intent of the Parties that the Nottingham Dam Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument
executed by the Developer.
9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the Parties hereto. Notwithstanding the foregoing and
subject to Paragraph 23, if any party sells all or any portion of its interest in property subject to
this Agreement, such parry shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it after the
sale and conveyance of title but shall remain liable for all obligations arising under this
Agreement prior to the sale and conveyance of title. The new owner of any such property or
portion thereof (including, without limitation, anyone who acquires its interest by foreclosure,
trustee sale or otherwise) shall be liable for all obligations arising under this Agreement with
respect to such property or portion thereof after the date of sale and conveyance of title.
10. Covenants. Developer, TCMD and Town each covenant for and on behalf of each of the
other Parties that they have taken or performed all requisite acts or actions which may be
required by their organizational or operational documents to confirm their respective authority to
execute, deliver and perform each of their obligations under this Agreement.
11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam Easement is granted and the adjacent property in fee simple and has full power
and lawful authority to grant, sell, and convey the same in manner and form as aforesaid.
Developer, for itself, its heirs, personal representatives, successors and assigns, does covenant
and agree that it shall warrant and forever defend Town in its quiet and peaceful possession of
the Nottingham Dam Easement and the Nottingham Dam Access Easement against all and every
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 5 of 11
20130728
person or persons lawfully claiming title to the property, whether in whole or in part, by, through
or under Developer.
12. Default. A parry shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non - defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30 -day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days, which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam hereunder.
13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 12 above, the non - breaching party
shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief in the
nature of specific performance or damages or both may be awarded, subject to the provisions of
the laws of the State of Colorado. The prevailing party in any legal or administrative action shall
be awarded its reasonable costs and expenses of such action, through all appeals, including
without limitation, reasonable attorneys' fees.
14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its direct and indirect affiliates, and their respective
agents, managers, members, officers, directors, servants, consultants, advisors and employees of
and from any and all reasonable costs, expenses (including, without limitation, reasonable
attorneys' fees), liability, claims, liens, demands, actions and causes of action whatsoever arising
out of or related to any loss, cost, damage or injury, including death of any person or damage to
property of any kind, which damage, loss or injury is caused by the acts or negligent acts, errors
or omissions of Town, its subcontractors or any person directly or indirectly employed by Town.
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 6 of 11
20130728
With regards to this Agreement, Developer agrees to indemnify, defend and hold harmless Town
and its officers, agents and employees of and from any and all reasonable costs, expenses
(including, without limitation, reasonable attorneys' fees), liability, claims, liens, demands,
actions and causes of action whatsoever arising out of or related to any loss, cost, damage or
injury, including death of any person or damage to property of any kind, which damage, loss or
injury is caused by the acts or negligent acts, errors or omissions of Developer, its respective
subsidiaries and affiliates, and their respective agents, managers, members, officers, directors,
servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given either in
person to the authorized representative of the noticed party or by registered or certified United
States mail, return receipt requested, with such notice being addressed as specified in the
introductory paragraph of this Agreement. Unless otherwise stated in this Agreement, notice
deposited in the mail, in accordance with the provisions hereof, shall be effective from and after
the fourth (4`h) day following the date postmarked on the envelope containing such notice, or
when actually received, whichever is earlier. Notice given in any other manner shall be effective
only if and when received by the party to be notified. By giving the other party at least seven (7)
days written notice thereof, the Parties shall have the right to change their respective addresses
and specify as their respective addresses for the purposes hereof any other address in the United-
States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 10 and 11 of
this Agreement, no representations or warranties of any nature have been made by the Parties,
and none of the Parties hereto have entered into this Agreement in reliance upon any such
representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter described herein, and further replaces and supersedes all prior
agreements, rights and obligations between the Parties with respect to the subject matter hereof.
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the Parties.
23. Assignment. This Agreement shall not be assigned by Town without the prior written
consent of Developer, which consent shall not be unreasonably withheld. Any assignment
without the prior written consent of the Developer shall be null and void, though, as mentioned
in the preceding sentence, such consent shall not be unreasonably withheld. The express
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 7 of 11
20130728
assumption, in writing, of this Agreement shall thereby relieve the applicable assignor to the
matters so assumed by the assignee.
24. Legal Fees and Costs. Except for arbitration as set forth in paragraph 25 below, in the
event that a party institutes an action or proceeding for a declaration of rights of Town and
Developer under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions contemplated
hereby, the prevailing party shall be entitled to its actual reasonable costs and attorneys' fees.
Pursuant to Section 1, TCMD shall not be a party to any legal or arbitration proceeding that
doesn't regard anything before the Effective Date. Town and Developer agree to waive their
respective rights to a jury trial in any civil legal proceeding.
25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the
State District Court in and for the County of Eagle, Colorado. Each party shall also have the
right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a
declaratory judgment, because the issue is not ripe, the Town and Developer agree to submit any
disputes under this Agreement to the Judicial Arbiter's Group ( "JAG ") for binding resolution in
accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1, TCMD shall not
be a party to any legal or arbitration proceeding that doesn't regard anything before the Effective
Date.
26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Parties within seven (7)
days of receipt of said facsimile copy.
[SIGNATURE PAGES FOLLOW]
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 8 of 11
20130728
DEVELOPER:
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a Colorado limited liability
company and Manager of Traer Creek -RP LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 9 of 11
20130728
TRAER CREEK METROPOLITAN DISTRICT, a
quasi - municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2013, by Daniel J. Leary, as President of Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 10 of 11
20130728
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _
20 , by , as of
[and by as of
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 11 of 11
20130728
day of ,
Land Description EXH /B/T A
A Parcel of land located in the West )i of the Northwest X of Section 8, Township 5 South. Range 81 West of the 6th Principal
Meridian, Eagle County, Colorado. Said parcel being more particularly described by metes and bounds as follows:
Commencing at the West Y4 Corner of said Section 8 from which a found 1942 2Y2" US General Land Office brass cap bears
S00'15'38 "E, 33,00'; thence N2343'14 "E, 1125.00' to the Point of Beginning of the herein described parcel of (and; thence along
the boundary of said parcel the following six (6) courses and distances:
1) N1709'30'W, 361.37 feet; 2) N34'51'14 "E, 60.00 feet; 3) S71'23'21 "E, 520.61 feet; 4)S08'14'53 "E, 115.00 feet;
5) S38'28'42'W, 311.00 feet: 6) N66'13'50'W, 300.00 feet to the Point of Beginning.
The above described parcel contains 4.052 acres of land more or less. r
Bearings contained herein are based on the North line of the Southeast
quarter of Section 7. Township 5 South, Range 81 West of the 6th -`
Principal Meridian, Eagle County, Colorado, bearing N89'50'40 "E.
I N34'51'1 4'E
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NOTICE: AccordMg to Colorado Law you must commence any legal action
based upon any defect m this exhibit within three yea X after u first
discover such defect. In no event may any action based upon any defect
in this exhibit be commenced more than ten years from the date of the
certification shown hereon.
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LOCATION OF ACCESS SULECT TO
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NOTICE: AccordMg to Colorado Law you must commence any legal action
based upon any defect m this exhibit within three yea X after u first
discover such defect. In no event may any action based upon any defect
in this exhibit be commenced more than ten years from the date of the
certification shown hereon.
3HEET 1 OF i Z: \DWG \VILLAGE AT AVON \WETLANDS –ESMT –EXHIBIT.dwg
LOCATION OF ACCESS SULECT TO
CHANUE YAM MOUND CONSTRUCTION
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JOB# 8206.A1
AE BI
EDWARDS, COLORADO 91932 •
(970) 926 -3373 TAX (970) 929 -3390
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of ,
20 , by
[and by
as
as
Witness my hand and official seal.
My commission expires:
Notary Public
of
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 11 of 11
20130728
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _
20 ' by , as of
[and by as of
Witness my hand and official seal.
My commission expires:
Notary Public
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 11 of 11
20130728
day of ,
Exhibit C to Resolution 13 -23
Amended and Restated Conveyance
of Roadway, Parkland and Easements
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
THIS PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE
OF ROADWAYS, PARKLAND AND EASEMENTS ( "Assignment ") is made and entered into
as of this day of , 20 ( "Effective Date ") by and between TRAER CREEK
METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the
State of Colorado ( "Assignor "), and the TOWN OF AVON, a home rule municipal corporation
of the State of Colorado ( "Assignee ") (collectively, the "Parties ").
RECITALS
WHEREAS, Traer Creek LLC, a Colorado limited liability company ( "Traer "), Wal-
Mart Real Estate Business Trust and Home Depot, U.S.A., Inc., entered into that certain
Easements with Covenants and Restrictions Affecting Land dated April 24, 2002 and recorded in
the Eagle County real property records ( "Records ") at Reception No. 795009 ( "ECR ");
WHEREAS, pursuant to Section 40) of the ECR, Traer agreed to convey to the Assignor
via a separate instrument, non - exclusive temporary road easements for certain rights -of -way to
be known as Chapel Place and East Beaver Creek Boulevard;
WHEREAS, Traer Creek -RP LLC, a Colorado limited liability company ( "TCRP "), and
Traer (collectively, "Developer ") and Assignor entered into that certain Amended and Restated
Conveyance of Roadways, Parkland and Easements dated effective May 8, 2002 and recorded in
the Records on January 27, 2005 at Reception No. 904568 (the "Original Agreement ");
WHEREAS, Developer and Assignor entered into that certain First Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective
May 8, 2002 and recorded in the Records on June 7, 2013 at Reception No. 201311801 (the
"First Amendment ");
WHEREAS, the Developer and Assignor entered into that certain Second Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective May
8, 2002 and recorded in the Records on , 2013 at Reception No.
(the "Second Amendment ");
WHEREAS, the Original Agreement as amended by the First Amendment and the
Second Amendment is referred to herein as the "Agreement;"
WHEREAS, pursuant to the ECR, Developer granted Assignor certain easement rights
over a portion Lot 1, The Villages (at Avon) Filing 1, County of Eagle, State of Colorado (the
"Plat "), for an 80' non - exclusive temporary road easement ( "East Beaver Creek Boulevard
Easement ' ) and a 50' non - exclusive temporary road easement ( "Chapel Place Easement ")
(collectively, the East Beaver Creek Boulevard Easement and Chapel Place Easement are
referred to herein as the "Easements ") as depicted on the Plat for the location, construction and
maintenance of roadways to be known as, respectively, East Beaver Creek Boulevard and Chapel
Place; and
1044369.3
WHEREAS, Assignor desires to partially assign, on a non - exclusive basis, its rights, title,
interests and obligations in, under and to the Agreement with respect to the Easements only to
Assignee; Assignee desires to assume all such rights, title, interests and obligations from
Assignor with respect to the Easements; and Developer, pursuant to Section 12 of the
Agreement, desires to consent to such assignment as evidenced by Developer's execution hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the Assignor and the Assignee agree as follows:
COVENANTS AND AGREEMENTS
1. Partial Assignment and Assumption. As of the Effective Date and subject to the
reservations and rights set forth in Section 2, the Assignor hereby transfers, assigns, sells and
conveys to the Assignee all of the Assignor's right, title, interest, duties and obligations in and to
the Agreement with respect only to the Easements without representation or warranty and subject
to all of the terms, covenants and conditions of the Agreement. As of the Effective Date, the
Assignee hereby accepts such assignment and agrees to assume and be responsible for all of the
covenants and obligations of the Assignor under the Agreement with respect to the Easements
only. Nothing contained herein shall be deemed an acceptance by the Assignee of any roadway
improvements located within the Easements as a public right -of -way of the Town of Avon nor of
any obligation to reconstruct or repair any improvements located within the Easements,
including, but not limited to, any obligation for asphalt overlay payments or obligations.
2. Reservation of Easement and Right to Construct. Notwithstanding anything to the
contrary contained herein, Assignor hereby reserves a non - exclusive easement in, to, through,
over, under and across the Easements for purposes of construction and installation of the
"Roadway Improvements" (as defined in the Agreement) for East Beaver Creek Boulevard and
Chapel Place. Assignee acknowledges and agrees that notwithstanding anything to the contrary
contained in the Agreement, any obligation of the Assignor to construct the Roadway
Improvements within the Easements shall only be to the extent that the Assignor has budgeted
and appropriated funds therefor.
3. Indemnity. Assignee shall indemnify, protect, defend and hold Assignor, Traer
and TCRP (and their respective officers, directors, employees, consultants and representatives)
harmless from and against any and all claims (including, without limitation, claims for
mechanic's liens or materialmen's liens), causes of action, demands, obligations, losses,
damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees) (collectively, "Claims ") in connection with or arising out of Assignee's exercise
of its rights hereunder and use and enjoyment of the Easements; provided, however, such
indemnity shall exclude any Claims caused by negligence or willful misconduct of Assignor,
Traer or TCRP (or their respective officers, directors, employees and representatives).
Developer shall be a third -party beneficiary of this Section 3.
4. Insurance. At all times while this Assignment is in effect, Assignee shall obtain,
keep in force and maintain liability insurance protecting against bodily injury and property
damage claims relating to Assignee's exercise of its rights hereunder and use and enjoyment of
the Easements, which coverage shall have a minimum limit of $1,000,000 for each occurrence;
2
10443693
provided, however, that Assignor and Developer shall have full benefit of any greater limits
maintained by Assignee. Such insurance policy shall name Assignor, Traer and TCRP as
additional insureds, shall apply on a primary and non - contributory basis and shall be endorsed
with a clause providing that the insurer waives all rights of subrogation which such insurer might
have against Assignor, Traer or TCRP.
5. Ratification. Assignee hereby agrees to and ratifies each of the terms, provisions,
representations, covenants and conditions of the Agreement.
6. Covenants. The Assignor and Assignee each covenant for and on behalf of the
other Party that they have taken or performed all requisite acts or actions which may be required
by their organizational or operational documents to confirm their respective authority to execute,
deliver and perform each of their obligations under this Assignment and the Agreement.
7. Execution. This Assignment may be executed in counterparts, each of which is
deemed an original for all purposes hereunder, and all of which shall constitute collectively one
agreement.
8. Entire Agreement. This Assignment contains the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof, and all prior
negotiations, agreements and understandings, oral or written, are merged herein and superseded
hereby.
9. Successor and Assigns. This Assignment and the Agreement and all rights and
obligations of Assignee and Assignor hereunder and under the Agreement shall be binding upon
and inure to the benefit of Assignor and Assignee and their respective heirs, successors and
assigns.
10. Miscellaneous. This Assignment shall be governed by and construed under the
applicable laws of the State of Colorado.
[SIGNATURES ON FOLLOWING PAGES]
3
1044369.3
IN WITNESS WHEREOF, the Parties hereto have executed this Assignment as of the
date first set forth above.
ASSIGNOR:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi - municipal corporation and political
subdivision of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this _
20 , by , as of
[and by as of
Witness my hand and official seal.
My commission expires:
Notary Public
4
10443699
day of ,
ASSIGNEE:
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:_
Name:
Title:
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20 , by
[and by
as of
as of
Witness my hand and official seal.
My commission expires:
Notary Public
5
10443693
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By:
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
20, by as of Traer Creek LLC, a Colorado limited
liability company, as Manager of TRAER CREEK -RP LLC, a Colorado limited liability
company.
Witness my hand and official seal.
My commission expires:
Notary Public
6
10443693
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK LLC, a Colorado limited
liability company
By:
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
20, by as of TRAER CREEK LLC, a Colorado
limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
]044369.3
Exhibit D to Resolution 13 -23
Revocable License Agreement for Snow Storage
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
TRAER CREEK -RP LLC FOR THE GRANT OF A REVOCABLE
LICENSE AGREEMENT FOR SNOW STORAGE
1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage
( "Agreement') dated as of , 20 ( "Execution Date ") are the Town of
Avon, a home rule municipal corporation of the State of Colorado ( "Town' and
"Party ") and Traer Creek -RP LLC, a Colorado limited liability company ( "Traer
Creek," "Licensee" and "Party ") (collectively referred to as the "Parties ").
2.0 RECITALS AND PURPOSE.
2.1 The Town is the fee owner of certain property located in the Town of Avon,
County of Eagle, State of Colorado, as more particularly described in EXHIBIT
A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated
herein by this reference ( "Property "); and
2.2 The Town and Traer Creek are also parties to the Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon)
dated as of , 20 and recorded on , 20
in the real property records of the Clerk and Recorder for Eagle County, Colorado
( "Records ") at Reception No. ( "Development Agreement'),
which is hereby incorporated by this reference; and
2.3 Master Developer caused Traer Creek to convey the Property to the Town in
accordance with Section 3.7(b) of the Development Agreement which provides
that until such time that the Property is developed or improvements are
constructed thereupon that would preclude use of the Property for snow storage,
the Town and Master Developer (as "Master Developer" is defined in the
Development Agreement) shall have the right to use the Property for snow
storage; and
2.4 Pursuant to Section 3.7(b) of the Development Agreement, "the Town and Master
Developer (or its assignee) shall have the right to use Planning Area B for snow
storage in accordance with the terms of the Revocable License Agreement" and
the Master Developer hereby assigns its right to snow storage to Traer Creek; and
2.5 The Town desires to grant, and the Licensee desires to accept, a revocable license
for the purpose of snow storage upon the Property consistent with the terms of the
Development Agreement.
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 1 of 9
3.0 LICENSE TERMS AND CONDITIONS.
3.1 Grant of License. The Town hereby grants to Licensee a revocable license for
snow storage purposes ( "Snow Storage License ") on, over and upon the Property
which is subject to change pursuant to Section 3.7(b) of the Development
Agreement.
3.2 Hazardous Materials. The Licensee agrees to use reasonable commercial efforts
to avoid the dumping or release of Hazardous Materials (defined below) on the
Property, provided that the Town acknowledges and agrees that Licensee intends
to store snow on the Property that has been removed from streets, drive lanes,
parking lots and other paved vehicular travel and storage surfaces, and, in
connection therewith, there may occur incidental dumping of the by- products of
such surfaces and vehicles, such as petroleum, gasoline products, products
associated with snow removal such as cinders and magnesium chloride. The term
"Hazardous Materials" as used herein includes, without limitation, gasoline,
petroleum products, explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or
related or similar materials, asbestos or any material containing asbestos, or any
other substance or material as may be defined as a hazardous or toxic substance
by any Federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section
1801, et seq.) the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.) and in the regulations adopted and publications promulgated
pursuant thereto.
3.3 Term; Termination. This Agreement and the Snow Storage License granted to
Licensee shall commence on the Effective Date (as `Effective Date" is defined in
the Development Agreement) and terminate on the date the Property is so
developed or such improvements are constructed thereupon that preclude use of
the Property for snow storage ( "Snow Storage Termination Date "). Any and all
improvements constructed on the Property are subject to approval by the Design
Review Board (as defined in the Development Agreement) pursuant to the terms
of the Development Agreement. Pursuant to paragraph 5 below, the Town shall
give Licensee sixty (60) days prior written notice of the Town's commencement
of development or commencement of construction of such improvements on the
Property that preclude use of the Property for snow storage. The Town's notice
of termination in any given year must be received by September 30, so that
Licensee can enter into contracts for snow storage for the upcoming snow season.
For clarification purposes, grading the Property does not in itself make the
Property unsuitable for snow storage use. The Snow Storage License may be
earlier revoked only if the Town Council of the Town has made a legislative
determination at a duly noticed public hearing that revocation of the Snow
Storage License is necessary to protect the public health, safety and welfare of the
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 2 of 9
Town; provided, however, the Town shall give Licensee written notice specifying
the nature of public health, safety and welfare concern and Licensee shall have
thirty (30) days from such written notice to cure or correct such concern (or such
longer time as is reasonably necessary to cure or correct such concern so long as
Licensee has in good faith commenced and is diligently pursuing efforts to correct
the condition specified in such notice). If Licensee fails to cure or correct such
concern within such timeframe, the Town shall thereafter give Licensee written
notice of revocation of the Snow Storage License. The Town may summarily
suspend the Snow Storage License granted to Licensee if Licensee dumps or
releases Hazardous Materials in excess of incidental dumping of the by- products
of streets, drive lanes, parking lots and other paved vehicular travel and storage
surfaces and vehicles as described in paragraph 3.2 above until such time as
Licensee repairs the damage caused by such dumping or release of Hazardous
Materials or the Town takes legislative action to revoke the Snow Storage License
according to the procedures stated in this paragraph 3.3. From and after the Snow
Storage Termination Date, Licensee shall have no right to use the Property for
snow storage purposes, the Snow Storage License shall automatically be revoked
and this Agreement shall terminate and be of no further force or effect, provided
that Licensee's obligation to repair any damage to the Property caused by
Licensee as set forth in paragraph 3.5 below shall survive the termination of this
Agreement.
3.4 Indemnity. To the extent permitted by law, Licensee expressly agrees to, and
shall,. indemnify and hold harmless the Town, as licensor, and any of its officers,
agents, or employees from any and all claims, damages, liability, or court awards,
including reasonable costs and attorney's fees that are or may be awarded as a
result of any loss, injury or damage sustained or claimed to have been sustained
by anyone, including but not limited to, any person, firm, partnership, or
corporation (collectively, the "Claims "), in connection with or arising out of any
act or omission by Licensee or any of its respective employees, agents, partners,
or lessees, in exercising its rights under this Agreement; provided, however, such
indemnity and hold harmless shall not extend to any Claims in connection with or
arising out of the negligence or willful misconduct of the Town. In particular and
without limiting the scope of the foregoing agreement to indemnify and hold
harmless, Licensee shall, to the extent permitted by law, indemnify the Town
from all Claims in connection with or arising out of any claim in whole or in part
that all or any portion of the snow storage permitted by this Agreement constitutes
a dangerous and/or unsafe condition within a public right -of -way; provided,
however, such indemnity shall not extend to any Claims in connection with or
arising out of the negligence or willful misconduct of the Town.
3.5 Damage; Environmental Conditions. During the term of this Agreement,
Licensee shall promptly repair, at no cost to the Town, any damage caused by
Licensee to the Property and improvements thereon, including without limitation,
the dumping or release of Hazardous Materials, and shall return the Property and
such improvements to the condition existing immediately prior to the occurrence
of the damage. In no event, however, shall the Town claim the Property or the
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 3 of 9
improvements thereon are damaged due to the dumping or release of Hazardous
Materials associated with the snow dumping operation, unless the Town can
prove such dumping or release of Hazardous Materials are in excess of what is
considered commercially reasonable. Upon termination of this Agreement,
Licensee agrees to repair, at no cost to the Town, any damage to the Property
caused by Licensee, including without limitation, removal and/or remediation of
any Hazardous Materials placed on the Property by Licensee, and the Town
hereby grants an encroachment license to Licensee for the limited purpose of
performing such repair, removal and clean up, if any, which encroachment license
shall survive termination of this Agreement.
3.6 Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy
or policies of insurance protecting against injury, damage or loss occurring on the
Property in the minimum amount of $600,000.00 per occurrence. Such policy or
policies shall name the Town as an "additional insured." However, Licensee's
failure to take such steps to obtain such insurance shall not waive, affect, or
impair any obligation of Licensee to indemnify or hold the Town harmless in
accordance with this Agreement.
3.7 Spring Trash Clean -Up. Licensee agrees to pick -up and properly dispose of any
litter, trash or debris in snow dumping piles each spring promptly after such snow
dumping piles have completely melted and the ground has reasonably hardened.
For clarification, weather permitting, Licensee currently believes somewhere
around thirty (30) days should be enough time and that the work would be
performed in phases.
4.0 ASSIGNMENT. This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, Traer Creek shall have the right to assign or
transfer all or any portion of its interests, rights or obligations under this Agreement to
any related parties or any third parties acquiring an interest or estate in the property
legally described in Exhibit A to the Development Agreement, and generally known as
The Village (at Avon), including, but not limited to, purchasers or long term ground
lessees of individual lots, parcels, or of any improvements now or hereafter located
within such property, provided that to the extent Traer Creek assigns or transfers any of
their respective obligations under this Agreement, the assignee(s) or transferee(s) of such
obligations shall expressly assume such obligations. The express assumption of any of
Traer Creek's obligations under this Agreement by the assignee(s) or transferee(s) shall
thereby relieve Traer Creek of any further obligations under this Agreement with respect
to the matter so assumed. Additionally, and under the same terms and conditions just
outlined, Traer Creek may assign or transfer its rights herein to any successor(s) in
interest, heir(s), assign(s), transferee(s), etc.
5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a
Party desires or is required to give to the other Party shall be in writing and either
personally delivered, sent by registered or certified United States mail, postage prepaid,
or sent by overnight courier. Notices shall be deemed effective: (1) if personally
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 4 of 9
delivered, when actually given to and received by an authorized person of a Party; or (ii)
if by overnight courier service, on the next business day following deposit with such
courier service; or (iii) if by registered or certified United States mail, postage prepaid,
return receipt requested, three (3) business days after mailed. Notices shall be addressed
as follows (or to such other address as may be subsequently specified by notice given in
accordance herewith) (as of the date of this Agreement, the Parties acknowledge that
United States mail doesn't deliver to physical addresses, which require delivery by
overnight courier service):
To Traer Creek:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, Colorado 81620
Attn: Marcus Lindholm, Manager
Telephone: 970.949.6776
To Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attn: Town Manager
Telephone: 970.748.4000
With Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 303.825.8400
With Copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attn: Town Attorney
Telephone: 970.748.4000
6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between
the Parties as to the subject matter of this Agreement and no prior representations or
statements, verbal or written, shall modify, supplement or change the terms of this
Agreement. This Agreement may not be amended, modified or supplemented except in
writing executed by all the Parties (or their successors or assigns, as applicable).
7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado.
8.0 WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any Party. No waiver of one or more of the terms of this
Agreement shall constitute a waiver of other terms. No waiver of any provision of this
Agreement in any instance shall constitute a waiver of such provision in other instances.
9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon,
the Parties, their respective legal representatives, successors, heirs, and assigns; provided,
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 5 of 9
however, that nothing in this paragraph shall be construed to permit the assignment of
this Agreement except as otherwise expressly authorized herein.
10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful
misconduct of the Town, it is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the Snow Storage License granted by this
Agreement and that the risk of loss, liability, obligation, damages, and claims associated
with the Snow Storage License shall be borne by the Licensee. This Agreement does not
confer upon Licensee any other right, permit, license, approval, or consent other than that
expressly provided for herein and this Agreement shall not be construed to waive,
modify, amend, or alter the application of any other federal, state, or local laws, including
laws governing zoning, land use, property maintenance, or nuisance. In addition, it is the
intent of this Agreement to be consistent with the terms of the Development Agreement
to provide for snow storage for Licensee, as so bargained for in the Development
Agreement and in this Agreement.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of their respective Parties and
to bind their respective Parties and that the Parties may rely upon such representation of
authority.
12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below,
in the event that a Party institutes an action or proceeding for a declaration of rights of the
Parties under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions
contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs
and attorneys' fees.
13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
under the laws of the State of Colorado. Venue for any legal action relating to this
Agreement shall be the State District Court in and for the County of Eagle, Colorado.
Each Party shall also have the right to obtain a declaratory judgment, whether the issue is
ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe,
the applicable Parties agree to submit any disputes under this Agreement to the Judicial
Arbiter's Group for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
14.0 RECORDING. This Agreement may be recorded by any Party in the Records.
15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership
exists between Traer Creek and Town, and nothing contained in this Agreement shall be
construed as making Traer Creek and the Town joint venturers or partners.
16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be
construed to create any third party beneficiaries or confer any rights on any person or
entity not named as a party hereto.
[signature pages follow)
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 6 of 9
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
TOWN:
Town of Avon, a home rule municipal
corporation of the State of Colorado
Rich Carroll, Mayor
Town of Avon
Approved as to Form:
Eric Heil, Esq., Town Attorney
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Attest:
Patty McKenny, Town Clerk
The foregoing instrument was acknowledged before me this day of ,
20, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town
of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 7 of 9
LICENSEE:
TRAER CREEK:
Traer Creek -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
Marcus Lindholm, Manager
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited
liability company.
(SEAL)
Notary Public
Commission Expire:
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 8 of 9
EXHIBIT A
Legal Description of the Property
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a
Resubdivision of Lot 1, Eagle County, Colorado.
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
Page 9 of 9
IN WITNESS WHEREOF, Traer Creek, EMD and the
Agreement as of the Effective Date. �v: ;..•••..;�,y�
:S EA L:
executed this
TOWN:
Town of Avon, a home rule municipal
corporation of the State of Colorado
By:
Rich Carroll, Mayor
Town of Avon
Approved as to Form:
Eric Hei q., Town Attorney
STATE OF COLORADO
Attest:
P cK y, n Cle
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this jj_jda3y of ,
20-t�, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Cl rk, of he Town
of Avon, a home rule municipal c�ation of the State of Colorado.
KRISTA D JARAMILLO
(SEAL) NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 19994018882
IMY COMMISSION EXPIRES 0712912015
Revocable License Agreement for Snow Storage
August 13, 2013 FINAL
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