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TC Res. No. 2009-13 RECOGNIZING CERTAIN PUBLIC IMPROVEMENTS CORRECTEDTOWN OF AVON, COLORADO RESOLUTION NO. 09-13 Series of 2009 A RESOLUTION RECOGNIZING CERTAIN PUBLIC IMPROVEMENTS CORRECTED DURING THE STIPULATED WARRANTY PERIOD FOR SAID IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH THE SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE AT AVON FILING 1, AND ESTABLISHING A ONE -YEAR WARRANTY PERIOD FOR THE CORRECTED IMPROVEMENTS WHEREAS, the Town of Avon entered into a SUBDIVISION IMPROVEMENTS AGREEMENT, dated November 13, 2001, with Traer Creek LLC and Traer Creek Metropolitan District in connection with the approval of the Final Plat for The Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed by Traer Creek Metropolitan District (District Improvements) in conjunction with said subdivision; and WHEREAS, said Agreement established requirements for the provision of collateral to assure completion of the Subdivider Improvements in accordance with the Agreement and the subsequent release of the collateral upon completion and the stipulated warranty period; and WHEREAS, said District Improvements were substantially complete as of September 13, 2005; and WHEREAS, certain work items were identified during the warranty period as requiring corrective action; WHEREAS, the identified work items were satisfactorily corrected as of September 16, 2008 NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that: The following warranty items are hereby approved by the Town of Avon: 1. Eagle River Bridge Expansion Joint Cover 2. Defective Sidewalk NB and SB Post Boulevard adjacent to the Railroad Bridge 3. Defective sidewalk ramps at the Post Boulevard /East Beaver Creek Blvd roundabout 4. Replacement of sidewalk panels north of Yoder Ave roundabout 5. Replacement of drainage pans and concrete aprons at Fawcett/Yoder intersection 6. Eagle River Bridge northbound approach repairs LATown Cl erk�Council lResolutions\2009\Resolution No. 09 -13 F1 Warranty.Doc 2. The items identified above in Item 1 shall have a warranty period, which extends for one year from the date of satisfactory correction of the warranted item; the date of warranty for the corrected items shall extend to September 16, 2009. 3. Two outstanding items identified during the warranty period have not been satisfactorily remediated: 1. Post Boulevard diagonal crack/settlement 2. Painting of the southbound Post Blvd sidewalk handrail 4. The full value of the Maintenance Bond in the amount of $885,000 shall remain in effect due to the potential cost of unresolved issues in Item 3. ADOPTED THIS a q- DAY OF �� C t^- , 2009. ATTEST: TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor 1 ATown Clerk\ Council \Resolutions\2009 \Resolution No. 09 -13 F Warranty.Doc Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Justin Hildreth, P.E., Town Engineer �a �w��( - Jeffrey Schneider, P.E., Project Engirl�er Date: March 17, 2009 Re: The Village (at Avon) Filing 1 - Resolution No. 09 -13, Series of 2009, A Resolution Recognizing Certain Public Improvements Corrected during the Stipulated Warranty Period for Said Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1, and Establishing a One- year Warranty Period for the Corrected Improvements Summary: Resolution No. 09 -13 attached as Exhibit A, recognizes certain public improvements having been identified and repaired during the warranty period in conformance with the Subdivision Improvements Agreement (SIA) for The Village (at Avon) Filing 1. Filing 1 generally consists of all streets, roads, bridges, walkways, drainage facilities, and utilities required to access and serve Filing 1, with the exception of shallow utilities installed by the Developer and construction of the 1 -70 interchange. The improvements have been substantially complete and functioning since July 2003, and have been conveyed to Traer Creek Metropolitan District (TCMD). Some items including bridge slab settlement, defective concrete in sidewalks, drainage pans, and sidewalk ramps were identified and replaced during the warranty period. Resolution 09- 13 initiates the stipulated one -year warranty period on the completed warranty work. The SIA is attached as Exhibit B. Previous Council Action: The Village (at Avon) Filing 1 Final Plat and SIA were approved by Town Council on November 13, 2001. On September 13, 2005, Resolution 05 -33 was approved, which approved the Traer Creek Metropolitan District improvements and established the one -year warranty period for the District portion of the public improvements. Discussion: The Village (at Avon) Filing 1 is an ongoing project initiated in 2001. Several items were identified as requiring corrective action during a warranty walk - through in fall of 2006, pursuant to the approval of Resolution 05 -33, which established September 13, 2006 as the date of warranty. A walk through was performed prior to that date with representatives from the Town of Avon, TCMD, and Sema Construction, the contractor, which identified warranty items requiring corrective action. Items identified for corrective action during the warranty period include defective concrete in drainage pans, sidewalk ramps, and sidewalks, settlement at the Eagle River Bridge approach slab, painting of the hand rail beneath the Post Boulevard railroad bridge, and a diagonal crack/settlement in Post Boulevard north of Fawcett Rd. All items have been 'satisfactorily remediated with two exceptions: hand rail painting and the diagonal crack/roadway settlement. J:Wvon Village\2.0 Filing 1\2.9 Completion\2.9.5 Security Deposit Release\Res 09 -13 Warranty Release Memo.Doc The warranty work identified during the 2006 walk- through has taken two years to complete. Replacement of drainage pans and concrete aprons, as well as work on the Eagle River Bridge approach slab, was performed during the fall of 2006. Photos 1 and 2 depict this work, which was completed in accordance with applicable specifications. Testing reports verifying compliance with specifications are on file. Photo 1 — Valley pan and apron at Fawcett and Yoder intersection Photo 2 — Eagle River Bridge Approach Slab JAAvon Village\2 0 Filing 1\2.9 Completion12.9.5 Security Deposit Release\Res 09 -13 Warranty Release Memo.Doc Page 2 TCMD repaired a majority of the defective sidewalk areas in late fall 2007, shown on Photos 3 and 4. The work was performed and an inspection was requested after the November 15 cutoff date as stipulated in AMC 16.40.150. Therefore, inspection was delayed and another walk - through was scheduled for the spring of 2008. Photo 3 - ADA Ramp at SW Comer Post Blvd and E. Beaver Creek Blvd Photo 4 — Post Blvd NB Sidewalk Replacement The following spring, TOA conducted an inspection of the prior fall's warranty work and identified deficiencies including lack of restoration adjacent to the areas of replaced concrete and one portion of sidewalk on Post Boulevard that exhibited a significant full depth crack. TCMD was directed to replace the sidewalk panel prior to initiating the acceptance procedure. The last remaining sidewalk panel was replaced on September 16, 2008. J -. Avon Village12.0 Filing 1\2.9 Completion12.9.5 Security Deposit Release\Res 09 -13 Warranty Release Memo.Doc Page 3 Two warranty items are still outstanding: diagonal cracking/settlement in the Post Boulevard Roadway and painting of the handrail on the southbound Post Blvd sidewalk beneath the railroad bridge. Staff requested a remediation plan for the roadway settlement from TCMD; to date, no response has been provided. Staff will continue to pursue corrective actions with the developer, likely to include an in -situ remediation or excavation and reconstruction. The Town is in possession of a maintenance bond for warranty purposes in the amount of $885,000. A copy of the bond is attached as Exhibit C. Note that Staff is not proposing any reduction of the collateral amount due to the potentially significant and uncertain nature of the remaining warranty items. Staff recommends approval of Resolution 09 -13, series of 2009, for recognition of the warranty work items completed, and initiation of the stipulated one -year warranty period for said warranty items, which will expire on September 16, 2009. Staff will conduct a walk - through of all corrected warranty items prior to that date in order to assess the quality of the warranty work, and will recommend either termination of the warranty period or additional corrective action, if required. Recommendation: Approve Resolution 09 -13, Series of 2009, A Resolution Recognizing Certain Public Improvements Corrected during the Stipulated Warranty Period for Said Improvements Installed and Constructed in accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1, and Establishing a One -year Warranty Period for the Corrected Improvements Proposed Motion: Move to approve Resolution 09 -13, Series of 2009, A Resolution Recognizing Certain Public Improvements Corrected during the Stipulated Warranty Period for Said Improvements Installed and Constructed in accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1, and Establishing a One -year Warranty Period for the Corrected Improvements Town Manager Comments: Attachments: Exhibit A Resolution 09 -13 Exhibit B — Village (at Avon) Filing 1 Subdivision Improvements Agreement Exhibit C — Maintenance Bond for Warranty Period JAAvon Village\2.0 Filing 112.9 Completion12.9.5 Security Deposit Release\Res 09 -13 Warranty Release Memo.Doc Page 4 EXHIBIT A TOWN OF AVON RESOLUTION NO. 09-13 Series of 2009 A RESOLUTION RECOGNIZING CERTAIN PUBLIC IMPROVEMENTS CORRECTED DURING THE STIPULATED WARRANTY PERIOD FOR SAID IMPROVEMENTS INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH THE SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE AT AVON FILING 1, AND ESTABLISHING A ONE -YEAR WARRANTY PERIOD FOR THE CORRECTED IMPROVEMENTS WHEREAS, the Town of Avon entered into a SUBDIVISION IMPROVEMENTS AGREEMENT, dated November 13, 2001, with Traer Creek LLC and Traer Creek Metropolitan District in connection with the approval of the Final Plat for The Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; and WHEREAS, said Agreement established certain public improvements to be constructed by Traer Creek Metropolitan District (District Improvements) in conjunction with said subdivision; and WHEREAS, said Agreement established requirements for the provision of collateral to assure completion of the Subdivider Improvements in accordance with the Agreement and the subsequent release of the collateral upon completion and the stipulated warranty period; and WHEREAS, said District Improvements were substantially complete as of September 13, 2005; and WHEREAS, certain work items were identified during the warranty period as requiring corrective action; WHEREAS, the identified work items were satisfactorily corrected as of September 16, 2008 NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that: 1. The following warranty items are hereby approved by the Town of Avon: 1. Eagle River Bridge Expansion Joint Cover 2. Defective Sidewalk NB and SB Post Boulevard adjacent to the Railroad Bridge 3. Defective sidewalk ramps at the Post Boulevard/East Beaver Creek Blvd roundabout 4. Replacement of sidewalk panels north of Yoder Ave roundabout 5. Replacement of drainage pans and concrete aprons at Fawcett/Yoder intersection JAAvon Village\2.0 Filing 1\2.9 Completion\2.9.5 Security Deposit Pelease\Res 09 -13 F Warranty.Doc 6. Eagle River Bridge northbound approach repairs 2. The items identified above in Item 1 shall have a warranty period, which extends for one year from the date of satisfactory correction of the warranted item; the date of warranty for the corrected items shall extend to September 16, 2009. 3. Two outstanding items identified during the warranty period have not been satisfactorily remediated: 1. Post Boulevard diagonal crack/settlement 2. Painting of the southbound Post Blvd sidewalk handrail 4. The full value of the Maintenance Bond in the amount of $885,000 shall remain in effect due to the potential cost of unresolved issues in Item 3. ADOPTED THIS DAY OF .2009. TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk !:Avon Village\2.0 Filing 1\2.9 Completion\2.9.5 Security Deposit Release\Res 09 -13 Fl Warranty.Doc EXHIBIT B 0 THIS AGREEMENT, made and entered into this / day of /V "�/ 12001, is by and among Traer Creek LLC, a Colorado limited liability company ( "Subdivider "), Traer Creek Metropolitan District, a quasi- municipal corporation and political subdivision of the State of Colorado (the "District"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town "). WHEREAS, Subdivider and the District, in connection with the approval of the final plat for The Village (at Avon) Filing 1, consisting of 176.90 acres in Section 12, T. 5 S., R. 82 W. and Sections 7 and 8, T. 5 S., R. 81 W., of the 6th P.M., Town of Avon, Eagle County, Colorado (the "Subdivision "), desire to enter into a Subdivision Improvements Agreement with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code "); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements (the "Improvements ") set forth in Exhibits A and B attached hereto and incorporated herein by reference; and WHEREAS, the District is responsible for the performance and completion of public improvements ( "District Improvements ") assigned on Exhibit A attached hereto and incorporated herein by reference; and the Subdivider is responsible for the performance and completion of public improvements ( "Subdivider Improvements ") assigned on Exhibit B attached hereto and incorporated herein by reference; and collectively referred to as Improvements. NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat App]' val. The Town agrees that upon compliance with all other conditions of approval, and subject to the terms and conditions of this Agreement, the Final Plat of The Village (at Avon) Filing 1 shall be promptly filed for record with the Office of the Eagle County Clerk and Recorder. •�,. .� . • (a) Performance. Subdivider and District agree to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all improvements and work incidental thereto assigned to each as set forth in Exhibits A and B. Subdivider and the District further agree that each will be responsible for all costs of 929/Traer 795008 1111111111 1311111 08%08/2002 1: 66F 11111111111 111 {11111111 IHlllllll 0.00 Sara J Fisher Etpla, CO 89 R 70.00 0 Improvements assigned to it. All said work shall be performed in accordance with the construction plans and specifications as submitted to and approved by the Town prior to commencement of construction of Improvements. All Improvements shall be completed within three (3) years of the date of the Town's approval of the Final Plat for the Subdivision. ,010 F !.. • • !. .v •i " R .. (1) All work shall be done under the inspection procedures and standards established by the Town, shall be subject to the reasonable satisfaction of the Town and shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town. (2) Designation of Inspectors. Prior to commencement of construction work on the Improvements, the Town shall designate the individuals or independent third parties employed by the Town who are authorized to inspect the construction of the Improvements. Such inspections by the Town shall not relieve Subdivider or the District or their agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town. (3) Cost of lns cpe tions. The cost of such inspections, whether by Town employees or an independent third party inspector, shall be paid by Subdivider or the District, depending on the party responsible for the Improvement inspected, and subject to the limitations set forth in paragraph 9 below. (4) Notice of Non-Compliance. In the event that the Town, through the inspectors, reasonably determines that the Improvements are not in compliance with the pre - approved construction plans and specifications, it shall give written notice of such non- compliance to Subdivider or the District, depending on the Improvements involved ( "Notice of Non - Compliance "). The Notice of Non- Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non - Compliance must be provided to Subdivider or the District within two (2) working days of the date of the inspection. !!s • •! • •!. • !�• . !! ! . (a) Security. To secure completion of the Improvements, Subdivider and the District hereby agree to secure their respective obligations under this Agreement with Collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash or its equivalent; securities of acceptable value; letter of credit; bond (for District Improvements warranty period only); and land of acceptable value by deed of trust. (b) Substitution of Security. Either Subdivider or the District may substitute another form of collateral acceptable to the Town in place of the forms of security set forth below 929/rraer -2- I (III�I 1�III VIII II I 795008 1 lilt 1111111111111111111111111111 Paga : 2 of 14 jlj �J 0S /e 8/2002 01.0 6F Sara J Fisher Eagle, CO 99 R 70.00 0 0.00 in order to guaranty the faithful completion of the Improvements and the performance of the teems of this Agreement. (a) Funding Resolution. The District has adopted a resolution (the "Funding Resolution ") attached hereto as Exhibit E authorizing the District's execution of this Agreement and providing for the appropriation, segregation and use of funds in an amount sufficient to guarantee the construction of the District Improvements set forth on Exhibit A. The estimated costs of completion of the District Improvements are set forth on Exhibit C attached hereto and incorporated herein by reference. The Funding Resolution specifically provides that all funds referenced therein are unencumbered and free from claims of others such that, if necessary, any requests for payment approved by the Town may be promptly honored. As a condition to recordation of the Final Plat, the District shall provide the Town Engineer with evidence that such funds have been appropriated and segregated in a separate account (the "Security Account ") and identified for use in connection with this Agreement. The District shall renew the Funding Resolution at the beginning of each subsequent calendar year until all District Improvements have received final acceptance or until the District provides substitute collateral acceptable to the Town. (b) Security for Interstate 70 Interchange. The parties acknowledge that the Town and Subdivider's predecessors -in- interest entered into an Annexation and Development Agreement ( "Development Agreement ") dated October 13, 1998, and a First Amendment to the Annexation and Development Agreement ( "First Amendment ") that among other things, addressed the construction of a full diamond interchange on Interstate 70 serving the Subdivision. Paragraph 4.30) in the Development Agreement, and reiterated in paragraph 2(q) of the First Amendment, states that if the District provides the Colorado Department of Transportation ( "CDOT ") with a completion bond or other security acceptable to CDOT with respect to completion of the Interstate 70 interchange, then the District shall have no obligation to also provide separate security to the Town for such improvements. The Town, Subdivider and the District agree that nothing in this Agreement shall alter or modify the terms of the Development Agreement or the First Amendment. (c) Progress Payments on District Improvements. The District may make progress payments to its contractors from the Security Account on a monthly basis upon the partial completion of itemized improvements which have been set forth in Exhibit C and upon fifteen (15) day's prior written notice including an itemized statement of the District to the Town. The District shall retain ten percent (10 %) of the amount of each payment until final completion and acceptance of all work covered by each construction contract; provided however, when the value of work completed has progressed to fifty percent (50 %) of the contract amount, the District shall not be required to withhold additional retainage for the remainder of the work under such contract. The (10 %) ten percent retainage of the value of work completed may be 929frraer X11111I� 111111IIII 11111111 795008 III IIII IIIIIII III III 0g 08,20021 i :0 I 0 6F Sara J Fisher Eagle, CO 09 R 70.00 0 0.00 reinstated if in the Town's opinion the lack of progress or other substantial reasons exist. Except for the foregoing, in no event shall any progress payment cause the remaining sum to be available in the Security Account for subsequent disbursements to be less than one hundred ten percent (110 %) of the costs to complete all remaining District Improvements as estimated at the time of each progress payment. Upon completion of all work related to the District Improvements, the Town's acceptance of the District Improvements and the expiration of the Warranty Period set forth in paragraph 6 below, the Town shall release any further interest in the Security Account. (d) Default by District. In the event of a default in whole or in part by the District, the Town shall be authorized to access the funds in the Security Account for the purpose of undertaking completion or remediation work on the District's Improvements after providing thirty (30) days advance notice of default and providing an opportunity during such period for the District to cure the default. The Town shall be entitled to draw on the Security Account by Resolution of the Town Council stating (i) that the District is in default, and (ii) the funds are required in order to complete or correct work on the District's Improvements. District funds identified in the Funding Resolution shall be held, whether by the District or the Town, in compliance with the requirements of C.R.S. 29 -1- 803(1) for the purpose of providing for the completion of the District Improvements. MTN= (a) Security for Completion of Subdivider's Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit or other collateral consistent with Section 16.24. 100 of the Code issued by a reputable financial institution in an amount equal to one hundred and ten percent (110 %) of the estimated costs of completion of Subdivider's Improvements as set forth on Exhibit D. The irrevocable letter of credit or other collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. (b) Progress Payments on Subdivider's Improvements. The Subdivider may make progress payments to its contractors on a monthly basis upon (i) the partial completion of itemized improvements for which cost estimates have been set forth in Exhibit D and upon written request including an itemized statement of the Subdivider to the Town, and (ii) the written approval of the Town or its designee; provided, however, if the Town fails to respond to a disbursement request within twenty (20) days such request will be deemed approved. Upon the approval of such progress payments, the amount of collateral shall be reduced by the amount of such payment; provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110 %) of the estimated; costs of completion of all remaining Subdivider's Improvements. Upon completion of all work related to Subdivider's Improvements and the Town's acceptance of Subdivider's Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be released. 929lrraer -4- I ?95008 Page: 4 of 14 1111111111111111 �,O8,z0 . Sara 1 Flahar Eagle, CO 89 02 01.06E R 70.00 0 0.00 (c) Default by Subdivider. In the event of a default in whole or in part by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Wamnly Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider or the District, depending on which work is defective, to correct the defect in material or workmanship. The amounts for completion of all warranty work on District Improvements shall be secured by a letter of credit, bond or other acceptable collateral in the amount of one hundred and ten percent (110 %) of the cost of such corrective work to be held by the Town during such one (l) year period, as a guaranty of performance of any work required under the above - described warranty. The amounts for completion of all warranty work on Subdivider Improvements shall be secured by a letter of credit or other acceptable collateral in the amount of one hundred and ten percent (110 %) of the cost of such corrective work to be held by the Town during such one (1) year period, as a guaranty of performance of any work required under the above- described warranty. In the event any corrective work is performed during the one (1) year warranty period then the warranty on said corrected work shall be extended for one (1) year from the date on which it is completed. 7. Condition of Public Dedicated Roadways. The District shall at all times prior to acceptance of any publicly dedicated roadways within the Subdivision by the Town give good and adequate warning to the traveling public of each and every known dangerous condition existent in said roads and shall protect the traveling public from such defective or dangerous conditions. Until the completion of all the Improvements herein agreed to be constructed, roads not accepted as improved shall be under the charge and control of the District for purposes of this Agreement; and the District may close all or a portion of any street or road within the Subdivision whenever it is necessary to protect the traveling public during the construction or installation of the Improvements herein agreed to be made. 8. Engineering Certification. Upon completion of portions of the Improvements, Subdivider or the District will cause their engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town. Inspection reports, test results and other supporting documentation shall be submitted with the certification. 9. Subdivision and Inspection Fggs. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been paid in 929lrraer -5- 1 'g50�01:06F Sara J Fisher Eagie, CO 99 R 70.00 D 8.00 full. Additional fees shall be paid to the Town by Subdivider or the District, depending on which Improvements are involved, within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees will be based on direct (out -of- pocket) costs of the Town plus an administrative fee in the amount of fifteen (15 %) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5 %) of construction costs. 10. No Obligation of Town to Complete rovements. Subdivider and the District agree that in the event either shall fail to perform their obligations as set forth herein, the Town shall be under no obligation to complete or perform any of the said Improvements. No one, individually or otherwise, other than the parties hereto, shall acquire, as a result of this Agreement, any rights, claims or obligations from or against the Town, its agents, employees or officers. Actions by the Town against Subdivider or the District to enforce any provision of this Agreement shall be at the sole discretion of the Town. No third parties shall have any rights to require any action by the Town pursuant to this Agreement; and this Agreement shall not create a liability on the part of or be a cause of action against the Town, for any personal or property damage that may result to any third parties from the failure of the Subdivider or the District to complete the improvements herein specified. 11. Non-Liability Town: Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said work. To the extent permitted by law, Subdivider and the District, respectively, hereby agree to indemnify and hold harmless the Town, and any of its officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider or the District, respectively, as hereinbefore stated. Furthermore, Subdivider and the District shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. 12. Rights of Town in Event of Default. In the event that Subdivider or the District default in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Subdivider and the District of such default during which period of time the Subdivider or the District failed to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A or Exhibit B. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and other matters expended by the Town in furtherance of the construction responsibilities of Subdivider or the District, shall be paid by Subdivider or the District based upon their underlying responsibility for the improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, 929/rraer IIII II IIIIIII I1I IIII II (ill IIIIIII III I ii IIII I II I 795008 Page: 0308/2002 0 1: OBF Sara J Fisher Eagle, CO 89 R 70.00 D 0.00 shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Any such costs relating to the District's Improvements, which have not been reimbursed by the District, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add, its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the Town may bring a mandatory injunction action against Subdivider or the District to require installation and construction of the Improvements, if not constructed within the time limits described in this Agreement. If any such action is brought by the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. 13. Letter Certifying. Completion and Final Acrentance of Improvement When all Improvements have been completed and accepted by the Town, and the Warranty Period has expired, the Town agrees that it will issue a letter, in recordable form, certifying that all obligations of Subdivider and the District under this Agreement have been satisfied. 14. Amendment. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 15. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. hereto have executed this Agreement as of the date first above written. APPROV S TO FORM: Town Attorney I ll�8l �illl I ��5 @0$ 929lI'raar C� ++ !! Page ; 7 of 14 /08/2 Sara .1 Fisher eagle 70. , CO gg 002 01.06E R 70.00 0 0.00 TRAER CREEK LLC, a Colorado limited liability company Magnus mdholm Manager TRAER CREEK METROPOLITAN DISTRICT, a quasi - municipal corporation By: ";Z4�Z4 Qe President 111111111111111111111111111111111111111111111111111 7950 ®8 05/08 2002 0 ] : 06F Sara J Fisher Eanla, Co 89 R 70.00 0 0.00 929/Cracr -8- Exibit A DISTRICT IMPROVEMENTS I. Demolition, Excavation & Grading A. !Remove & Dispose of Existing Structures B. Excavation for Roadways & Overlot Grading C. 'Embankment Including Structural and Stockpile Fill II. Incidental Construction A. 'Erosion & Pollution Control B. Dust Control C. 'Revegetation III. Storm Drainage A. 'Nottingham Gulch to Eagle River B. Nottingham Gulch Debris Flow Mitigation Facilities (1 -70) C. Roadway and Site Drainage Facilities to Eagle River D. Stormwater & Pollution Control Facilities IV. Utilities A. Water B. Sanitary Sewer C. Natural Gas D. Electric (Pro -Rata 24% of Private) E. Telephone F. Cable TV V. Bridges and Structures A. Eagle River Bridge B. Union Pacific Railroad Bridge C. Retaining Walls VI. Street Improvements Including Fine Grading, Sub -Base Materials & Preparation, Concrete Curb & Gutter, Medians,Crosspans & Sidewalks, Asphalt Paving, and Signage & Striping A. US Highway 6 B. Post Boulevard (US Hwy 6 to South 1 -70 Access Line) C. Eaglebend Drive 0. Nottingham Ranch Road E. Yoder Avenue F. Fawcett Road G. East Beaver Creek Boulevard/Chapel Place (Temporary Connection) VII. Street Landscaping VIII Street Lighting IX Management and General Conditions IIII�II�YRIIIIIIVNnNM�AGI111R 'Q' °�'; Exibit B SUBDIVIDER IMPROVEMENTS Dry Utilities B. Gas C. Electric D. Telephone /Communications Il Construction Management and General Conditions I esm�08;:_. Sara J Fisher Eagle, Co 89 R 70. 96 0 0.00 Exiblt C ESTIMATED COST OF COMPLETION for DISTRICT IMPROVEMENTS Demolition, Excavation & Grading A. Remove & Dispose of Existing Structures $ 205,841 B. Excavation for Roadways & Overlot Grading $ 2,301,772 C. Embankment Including Structural and Stockpile Fill 2 $ - 11, Incidental Construction A. Erosion & Pollution Control $ 85,953 B. Dust Control $ 193,200 C. Revegetation $ 37,450 ill. Storm Drainage $ 232,356 A. Nottingham Gulch to Eagle River $ 613,765 B. Nottingham Gulch Debris Flow Mitigation Facilities (1 -70) t $ 60,000 C. Roadway and Site Drainage Facilities to Eagle River $ 1,832,682 D. Stormwater & Pollution Control Facilities $ 10,000 IV. Utilities $ 192,943 A. Water $ 1,025,397 B. Sanitary Sewer $ 249,742 C. Natural Gas $ 98,000 D. Electric (Pro -Rata 24% of Private) $ 103,669 E. Telephone $ - F. Cable TV $ 40,624 V. Bridges and Structures A. Eagle River Bridge $ 1,738,066 B. Union Pacific Railroad Bridge $ 673,176 C. Retaining Walls $ 893,253 VI. Street Improvements Including Fine Grading, Sub -Base Materials & Preparation, Concrete Curb & Gutter, Medians,Crosspans & Sidewalks, Asphalt Paving, and Signage & Striping A, US Highway 6 $ 232,356 B. Post Boulevard (US Hwy 6 to South 1 -70 Access Line) $ 1,132,766 C. Eagiebend Drive $ 16,703 D. Nottingham Ranch Road $ 32,737 E. Yoder Avenue $ 343,010 F. Fawcett Road $ 192,943 G. East Beaver Creek Bouievard /Chapel Place (Temporary Connection) $ 320,542 VII. Street Landscaping $ 814,620 VIII Street Lighting $ 98,000 IX Management and General Conditions $ 1,088,126 TOTAL ESTIMATED COST $ 14,336,393 1 upon completion of 1-70 Sao^ apreaments vd CDoT amount wig be released. 2 Embankment is in indudad in Item No. 16 above. '95� @S 1111111111111111111111111111111111111111111111111111111 05/008/2002`01:06F Sara J Fisher Easis, CO 89 R 70.00 0 0.80 Exibit D ESTIMATED COST OF COMPLETION for SUBDIVIDER IMPROVEMENTS I Dry Utilities B. Gas $ 127,862 C. Electric $ 328,285 D. Telephone /Communications $ 303,458 Construction Management and General Conditions $ 62,351 TOTAL ESTIMATED COST $ 821,956 X11111111111 I I 795008 N 1 Ill 111111 Page: 12 11 IIII Illlll�llllllll 05/08,2002 2 0i : :069 I Illl Sara J Fisher Eagle, Co 89 R 70.00 D 0.00 Exhibit E RESOLUTION OF TRAER CREEK METROPOLITAN DISTRICT REGARDING APPROPRIATION OF FUNDS UNDER SUBDIVISION IMPROVEMENTS AGREEMENT WHEREAS, Traer Creek Metropolitan District (the "District ") is a quasi - municipal corporation and political subdivision of the State of Colorado; and WHEREAS, the District is authorized, pursuant to Section 32- 1- 1001(1)(d)(I), C.R.S., to enter into contracts and agreements affecting the affairs of the District; and WHEREAS, the District has entered into a Subdivision Improvements Agreement dated , 2001 (the "SIA ") with the Town of Avon, Colorado (the "Town ") and Traer Creek LLC, 'a Colorado limited liability company ( "Subdivider ") regarding the funding and/or construction of public infrastructure improvements in connection with the approval of the Final Plat of The Village (at Avon) Filing 1, Town of Avon, Eagle County, Colorado; and WHEREAS, the District is responsible for the performance and completion of public improvements assigned on Exhibit A of the SIA (the "District Improvements "); NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF TRAER CREEK METROPOLITAN DISTRICT AS FOLLOWS: 1. The Board of Directors hereby finds, determines and declares that it is in the best interest of the District to execute and deliver to the Town the SIA and the appropriate officers of the District are hereby authorized to execute and deliver such SIA to the Town. 2. The Board of Directors hereby appropriates, reserves and allows for tender to the Town pursuant to the SIA available funds of the District in an amount not less than 14,336,393.00 (the "Funds') to guarantee construction of the District Improvements. 3. The Board of Directors hereby certifies to the Town Council that the Funds are unencumbered and free from claims of others so that any requests of the Town for payment under the SIA may be promptly honored. The Board of Directors further certifies to the Town Council that the Funds have been set aside in a separate account and identified for the purposes recited herein and that such Funds shall be held in compliance with the requirements of Section 29- 1- 803(1), C.R.S., for the purpose of providing for the completion of the District Improvements. 4. This Resolution shall be renewed at the beginning of each subsequent calendar year until all the District Improvements have received final acceptance or until the District provides substitute collateral acceptable to the Town. 795008 Pags: 13 of 14 03/08/2 I1�1I��I 002 01.06E Sara J Fisher Eagle, CO as R 70.00 0 0.80 APPROVED AND ADOPTED this day of )2001. TRAER CREEK METROPOLITAN DISTRICT William J. Post, President Attest: Eric E. Applegate, Secretary 795008 ! P&G *: 14 of 14 ara I I S 111311111111111 03/ 8/2002 01.06E J Flshar Ea91a, Co gg R 78.00 D 0.00 W .Bents A3S Traer Greek\ResolutMesolution re appropriation of funds under SIA doc MAINTENANCE BOND KNOW AU MEN BY THESE PREUNIT EXHIBIT C Thu Trafkr Creek Metropolltan District , a Principal, and Lihe&j Mutual Insurance CQmpany , scSwvty, am bdd and firmly bound unto Town of Avon , as Oblfllm In tM full sad just tom It 885,Offl-a,Q i, for rite pttyrrwn of which tom, well and u* to he made, dx Pr{ncW and Suraty bind dwmW%vk their Mi<s, aQtastera, adntloisttatotr4 sttotessora ertd easiQas, dY mud aerarallYr Vjw Y Y thew pr*MtL WHEREAS, Tim Prbidpai base, ins a writm mntwtt tbnad � wkb tie obligee fm WHE REM, said eaatnct proWd a than tM fkb►cipd will furnish a boad conditioned to parr tee for the period of One Year after approval of tare fowl estimate on said Job, by the owner, ayaitat all defects is workm"ip and mahriala which may bet:oraa app rent dwhV =W period. NOW, THEREFORE; THE CONDITION OF THIS OBLIGATION IS SUCH, thist if the Principal stall indaranlfy the Obl*# for all low chit the OWIM mly sustain by raaon of may defaWw materials at warkmanship which become apparaot during the aforesaid period, ties this oblkateon than be void; otharafaa to remain In full foam and dfect. $" .a" and',daoed July 20. 2004 Ooad No. 23005807 37430 (WM Mutual Insurance Company (tiurew) syJZ kl�4 Pamela J. &16nsen Attu" t "'`'°t NOTICE FROM SURETY REQUIRED BY TERRORISM RISK INSURANCE ACT OF 2002 In accordance with the Terrorism Risk Insurance Act of 2002 (referred to hereinafter as the "Ash"), this disclosure notice is provided for surety bonds on which one or more of the following companies is the issuing surety. liberty Mutual Insurance Company; Liberty Mutual Fire Insurance Company; LM Insurance Corporation; The First Liberty Insurance Corporation; Lberty Insurance Corporation; Employers Insurance Company of Wausau (formerly "EMPLOYERS INSURANCE OF WAUSAU A Mutual Company"); Peerless Insurance Company, and any other company that is a part of or added to the Liberty Mutual Group for which surety business is underwritten by Liberty Bond Services (referred to coilec Lively hereinafter as the "Issuing Sureties°). NOTICE FORMS PART OF BOND This notice forms part of surety bonds issued by any one or more of the Issuing Sureties. DISCLOSURE OF PREMIUM The prernium attributable to any bond coverage for "acts of terrorism" as defined in Section 102(1) of the Act is Zero Dollars ($0.00). DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will reimburse the issuing Sureties for ninety percent (90%) of any covered losses from tennrist acts ce<tifiied under the Act exceeding the applicable surety deductible. LNGC -6539 2103 THIS POWER OF ATTORNEY iS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 28298 This Power of Attorney limits, the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON, MASSACHUSETTS $j POWER OF ATTORNEY { KNOW ALL PERSONS BY THESE PRESENTS: That Liberty Mutual Insurance Company (the ' CompaW), a Massachusetts stock insurance company, pursuant to and by authority of the By-law and Authorization hereinafter set forth, does hereby name, constitute and appoint DILYNN GUERN, KEVIN W. MCMAHON, FRANK C. PENN, PAMELA J. HANSEN, DONALD E. APPLEBY, GLORIA C. BLACKBURN, KRISTEN L. MCCORMiCK, FLORIETTA ACOSTA, CYNTHIA ML BURNETT, SUSAN J. LATTARULO, COURTNEY T. PETERSON, J. R RICHARDS, JAMES S ROSULEK, DOUGLAS J. ROTHEY, ALL OF THE MY OF DENVER, STATE OF COLORADO.. . ................ each individually it there be more than one named, its fare and lawful attomey -fn -fact to make, execute, seal, acknowledge and deliver, for and on its behalf as surety and as its act and deed, any and all undertakfh bonds recognizar"s and other surety oblfoatfons in the penal sum not exceeding ONCE HUNDRED TWENTY -FIVE MILLION AND 00 /100*" ; "•"• "'•' DOLLARS (S 125,000,OOO.ro— 1 each, and the execution of such undertakings, bonds, recognizances and other surety obligations, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by the secretary of the Company In their own proper persons. That this power Is made and executed pursuant to and by authority of the following By -law and Authorization: ARTICLE Xtll - Execution of Contracts: Section S. Surety Bonds and Undertakings. Any .otticer of the Company authorized for that purpose in writing by the.chairrnan or the president, and subject to such limitations as the chairman or the president may prescribe, shall appoint such attorneys -in -fact, as may be necessary to act In behalf of the Company to make, a execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such 10 �r attomsys -in -fact, subject to the limitations set forth In their respective powers of attorney, shell have full power to bind the Company by their 0 o signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such Instruments shall be as binding as it signed by the president and attested by the secretary. Xy By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attomeys-in -fact: a d ?` G Pursuant to Article XI11, Section 5 of the By -Laws, Garnet W. Elliott, Assistant Secretary of Liberty Mutual Insurance Company, is hereby cc �s authorized to appoint such attorneys in fact as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and ti M = deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. That the By -law and the Authorization set forth above are true copies thereof and are now in full force and effect. W IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seat of 0 fl. �b Z: �, ..' arty Mutual Insurance Company has been affixed thereto in Plymouth Meeting, Pennsylvania this 12th day of May Q � es . 2003 C �. 'A LIBERTY MUTUAL iNSURANCE COMPANY 0 I� L E Garnet W. Etitott, Assistant Secretary 0 ca► COMMONWEALTH OF PENNSYLVANIA ss - m COUNTY OF MONTGOMERY 0 t C On this 12th day of Mau .2=, before me, a Notary Public, personally came QgMM W. EUiott, to me known, and acknowledged t 0 — that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed the above ai Power of Attorney and affixed the corporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said corporation. IN TESTIMONY WH unto subscribed my name and affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year a a first above written, { op <S — N 0 3 OF I B C Ter6sa Pastella, Notary Public r o CERTIFICATE �T� uO F 1, the undersigned, Assistan�tary of Liberty Mutual Insurance Company, do hereby certify that die original power of attomey of which the foregoing is a foil, true and correct copy; Is In full force and effect on the date of this certificate; and I do further certify that the officer or official who executed the said power of attorney is an Assistant Secretary specially authorized by the chairman or the president to appoint attorneys -In -fact as provided in Article XIII, Section 5 of the By-laws of Liberty Mutual Insurance Company. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March, 1960. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. ,,4 TESTIMONY WHEREOF I h va hereunto subscribed my name and affixed the corporate seal of the said company, this 22nd —day of ,,4, TESTIMONY By =.� ' Davi M. Carey, AssL9199t Secretary