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07-28-2015 Add-On PIF Collection Services AgreementHEIL LAW 8 MEMORANDUM TO: Honorable Mayor Fancher and Town Council members FROM: Eric J. Heil, Town Attorney RE: Add -On PIF Collection Services Agreement DATE: July 23, 2015 SUMMARY: An amended Add -On PIF Collection Services Agreement is presented to Council to approve the replacement of Special District Management Services with Clifton Larson Allen. The Town of Avon entered into an Add -On PIF Collection Services Agreement ( "Agreement ") as part of the overall settlement of litigation related to the Village (at Avon). The Agreement retains administrative services to perform the function of collecting and remitting the Add -On Public Improvement Fees ( "Add -On PIF ") from the Village (at Avon) to various funds. The Add -On PIF is an additional Public Improvement Fee that is in addition to corresponding Town of Avon taxes. The Agreement was established to support the Town's ability to enforce the .75% Add -On PIF on retail sales, which was a dedicated funding source for the Town's benefit that was a significant term of the settlement for the Town. The Agreement is closely coordinated with the terms of the amended Annexation and Development Agreement. Special District Management Services served as the collection agent when the Agreement was approved. Special District Management Services announced late last year that it was resigning from serving the Village (at Avon). The Agreement contains provisions that set forth a process for retaining a new collection agent and which requires the Town of Avon to approve the amended Agreement. The Commercial Public Improvement Company and the Mixed -Use Public Improvement Company have selected Clifton Larson Allen LLP as the new collection agent. Amendments to the Agreement are limited to simply changing the name of the collection agent. have reviewed the amended Agreement and the amendments are acceptable. The amended Agreement is presented to Council for approval on the consent agenda. ATTACHMENTS: A — Add -On PIF Collection Services Agreement Thank you, Eric Heil Law & Planning, LLC Office: 303,975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E -Mail: eric @heillaw.com ATTACHMENT A: ADD -ON PIF COLLECTION SERVICES AGREEMENT ADD -ON PIF COLLECTION SERVICES AGREEMENT THIS ADD -ON PIF COLLECTION SERVICES AGREEMENT (this "Agreement ") dated effective as of the 15` day of January, 2015 ( "Effective Date "), is entered into by and among CLIFTONLARSONALLEN LLP, a Minnesota limited liability partnership ( "CLA "); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation ( "Commercial PIC "); THE VILLAGE (AT AVON) MIXED - USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation ( "Mixed -Use PIC "); and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado ( "Town "). RECITALS This Agreement is made with reference to the following facts: A. Capitalized terms used in this Agreement have the meanings set forth in Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this Agreement. B. Pursuant to the Commercial Declaration, Commercial Declarant has imposed, among other matters, within the Commercial Property an Add -On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Commercial Property. C. Pursuant to the Mixed -Use Declaration, Mixed -Use Declarant has imposed, among other matters, within the Mixed -Use Property an Add -On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Mixed -Use Property. D. The Commercial PIC, the Mixed -Use PIC, the Town and certain other Persons previously have entered into the Annexation and Development Agreement. E. The Town's and the Commercial PIC's receipt of and use of the Add -On PIF Revenues derived from the Commercial Property are subject to the terms and conditions of the Annexation and Development Agreement and the Commercial Declaration. F. The Town's and the Mixed -Use PIC's receipt of and use of the Add -On PIF Revenues derived from the Mixed -Use Property are subject to the terms and conditions of the Annexation and Development Agreement and the Mixed -Use Declaration. G. The PICs wish to appoint CLA, and CLA wishes to accept such appointment, as their agent to collect, receive, disburse and account for all Add -On PIF Revenues, if any, in accordance with the terms and conditions of, as applicable, the Commercial Declaration, the Mixed -Use Declaration and the Annexation and Development Agreement, as set forth in this Agreement, and the Town wishes to consent to such appointment. RXIM0zw AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements, promises and covenants herein contained, the Parties mutually undertake, promise, and agree for themselves, their respective representatives, successors and assigns, as follows: SECTION 1 Add -On PIF Collection Agent Functions 1.1. Appointment of CLA as Agent of the PICs and the Town. (a) Appointment and Acceptance. The PICs hereby appoint CLA as their and the Town's agent, the Town hereby consents to such appointment, and CLA hereby accepts such appointment, for purposes of (i) receiving, collecting, accounting for and administering all Add -On PIF Revenues paid by PIF Obligors, and (ii) remitting and disbursing all Add -On PIF Revenues to, as applicable, the Commercial PIC, the Mixed - Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town), or as otherwise required pursuant to this Agreement, during the term of and subject to the terms and conditions of this Agreement. By the execution of this Agreement, CLA accepts the responsibility of receiving the Add -On PIF Revenues from PIF Obligors and depositing such Add -On PIF Revenues in the Asphalt Overlay Account, the Town Account and/or the PIC Account, as applicable, in accordance with the terms and conditions of this Agreement. (b) Agency Relationship. CLA is not the agent of any Person other than the PICs and the Town and will have only those responsibilities expressly set forth in this Agreement. (c) Ownership of Revenues. Notwithstanding the appointment of CLA as the PICs' and the Town's agent for the purposes and subject to the limitations set forth in this Agreement, (i) the Town is the lawful beneficiary and owner of the portion of the Add - On PIF Revenues comprising the Municipal Payments and derived from the Commercial Property in accordance with the terms of the Commercial Declaration and the Annexation and Development Agreement and derived from the Mixed -Use Property in accordance with the terms of the Mixed -Use Declaration and the Annexation and Development Agreement; (ii) the Commercial PIC is the lawful beneficiary and owner of the portion of the Add -On PIF Revenues not comprising the Municipal Payments and generated from the Commercial Property in accordance with the terms of the Commercial Declaration; and (iii) the Mixed -Use PIC is the lawful beneficiary and owner of the portion of the Add -On PIF Revenues not comprising the Municipal Payments and generated from the Mixed -Use Property in accordance with the terms of the Mixed -Use Declaration. CLA hereby acknowledges that, as more fully set forth in this Agreement, the Add -On PIF Revenues collected pursuant to this Agreement are the property of the PICs and the Town and CLA will distribute the Add -On PIF Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement) in accordance with the terms of this Agreement. 2 133130.? 1.2. Notification to CLA of PIF Obligors. The Commercial PIC and the Mixed -Use PIC will employ commercially reasonable efforts to provide CLA with prior written notice of each new PIF Obligor engaging or intending to engage in Taxable Transactions, Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms of which the Commercial PIC and/or Mixed -Use PIC, as applicable, has knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such PIF Obligor. Additionally, CLA will coordinate with the Director of Finance to obtain notification from the Town of each new Sales Tax license or business license issued to a PIF Obligor within the Property. CLA will maintain (i) a written list of each active PIF Obligor engaging in Taxable Transactions within the Commercial Property; (ii) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property; (iii) a written list of each active PIF Obligor engaging in Taxable Transactions within the Mixed -Use Property; and (iv) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Mixed -Use Property (each, a "PIF Obligor List'). CLA will (A) include a current copy of the PIF Obligor Lists relating to Taxable Transactions with each Monthly Add -On PIF Report for Taxable Transactions; (C) include a current copy of the PIF Obligor Lists relating to the renting, letting or provision of Accommodations/Lodging Rooms with each Monthly Add -On PIF Report for the renting, letting or provision of Accommodations/Lodging Rooms; and (C) coordinate with the Director of Finance to ensure that the PIF Obligor Lists are updated to reflect each PIF Obligor which then holds a valid Sales Tax license or business license issued by the Town. In preparing and updating the PIF Obligor Lists, CLA will be entitled to rely exclusively on the information provided by the PICs and the Director of Finance with no independent obligation of CLA to investigate or verify the information. 1.3. Remittance of Add -On PIF Revenues to CLA. (a) General. In performing its obligations under this Agreement, CLA will be entitled to rely on all reports furnished pursuant to this Section 1.3 without any obligation to investigate or independently verify the information in such reports. (b) Taxable Transactions. For so long as the Add -On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add -On PIF amount due and payable on the Taxable Transaction conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add -On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add -On PIF Revenues due for such Reporting Period; and (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add -On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Mixed -Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add -On PIF amount due and payable on Taxable Transactions conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add -On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add -On PIF Revenues due for such Reporting Period; and 13313042 (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (c) Lodging Activities. For so long as the Add -On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add -On PIF amount due and payable on the renting, letting or provision of Accommodations /Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add -On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add -On PIF Revenues due for such Reporting Period; and (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add -On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Mixed -Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add -On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to CLA the applicable Add -On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add -On PIF Revenues due for such Reporting Period; and (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (d) Rea[ Estate Transfers. For so long as the Add -On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (1) calculate the Add -On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to CLA the applicable Add -On PIF Reporting Form covering such transaction and setting forth the amount of Add -On PIT Revenues due; and (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add -On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Mixed -Use Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add -On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to CLA the applicable Add -On PIT Reporting Form covering such transaction and setting forth the amount of Add -On PIF Revenues due; and (iii) remit such Add -On PIF Revenues to CLA, together with the corresponding Add -On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. 1.4. Deposit of Add -On PIF Revenues by CLA. Not later than the first business day of the month following the month of receipt of any Add -On PIF Revenues from PIF Obligors, CLA will deposit such Add -On PIF Revenues as follows: 4 13313042 (a) Establishment of Accounts. 1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account will be established with FirstBank, Avon branch, subject to the following: The Asphalt Overlay Account will be established by EMD Limited Liability Company, Traer Creek LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and conditions of the Annexation and Development Agreement and the Asphalt Overlay Agreement. The only signatories to the Asphalt Overlay Account will be those parties expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and CLA will not be a signatory on the Asphalt Overlay Agreement or have authority to transfer funds from or draw checks on the Asphalt Overlay Account. The Asphalt Overlay Account may be moved from FirstBank, Avon Branch, to another bank or another branch location of FirstBank in accordance with the terms and conditions of the Asphalt Overlay Agreement and only upon providing CLA with 30 days' prior written notice thereof, together with written instructions for CLA' deposit of funds therein. 2. Town Account. Initially, the Town Account is or will be established with FirstBank, Avon branch, subject to the following: The Town Account is or will be established by the Town upon such terms as it deems appropriate using the Town's Federal Employer Identification Number. The Town's authorized representative(s), or such designees as the Town in its discretion may authorize, will be the only signatories, and CLA will not be a signatory on the Town Account or have authority to transfer funds from or draw checks on the Town Account. The Town may move the Town Account from FirstBank to another bank or another branch location of FirstBank only upon providing CLA with 30 days' prior written notice thereof, together with written instructions for CLA' deposit of funds therein. The Town may designate its existing general fund account, also known as the cash concentration account, as the account which shall serve as the Town Account. 3. PIC Account. Initially, the PIC Account is or will be established with Wells Fargo, Lakewood branch, subject to the following: The PIC Account will be established by the PICs upon such terms as the PICs deem appropriate using the PICs' Federal Employer Identification Numbers. Each of the PIC's authorized representative(s), or such designees as each of the PICs in its discretion may authorize, will be the only signatories, and CLA will not be a signatory on the PIC Account or have authority to transfer funds from or draw checks on the PIC Account. The PICs may move the PIC Account from Wells Fargo to another bank or another branch location of Wells Fargo only upon providing CLA with 30 days' prior written notice thereof, together with written instructions for CLA' deposit of funds therein. (b) Deposit. CLA initially will deposit the Add -On PIF Revenues in a separate account from any other funds, including without limitation, any revenues collected by CLA and derived from the imposition of the Credit PIF. Thereafter, CLA will transfer the Add -On PIF Revenues from such segregated account and deposit the Add -On PIF Revenues as follows, and, upon depositing such funds, CLA will have no further obligation with respect to such Add -On PIF Revenues (except with respect to the 5 13313042 preparation, distribution and retention of relevant records, reports and audits as required by other provisions of this Agreement): 1. Asphalt Overlay Account. First, CLA will deposit all or a portion of the Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (A) Initial Five Years. For calendar years 2015 through 2019, CLA will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by CLA. (B) Subsequent Years. Commencing in 2020 and continuing through and including the date on which the Funding Termination occurs, CLA will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by CLA. The PICs and the Town will deliver joint written notice to CLA ( "Joint Notice "), which Joint Notice will specify the date of the Funding Termination. CLA will be entitled to rely on the accuracy of the date of the Funding Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add -On PIF Revenues will be made in the Asphalt Overlay Account from and after the day after the date of the occurrence of the Funding Termination. 2. T ownAccount. After deposit of the applicable portion of the Municipal Payments in the Asphalt Overlay Account, if any, in accordance with Subsection I above, CLA will deposit the remaining portion of the Municipal Payments, if any, actually received by CLA into the Town Account on a monthly basis continuing through and including the date on which the Tax Credit Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit Termination. CLA will be entitled to rely on the accuracy of the date of the Tax Credit Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add -On PIF Revenues, including without limitation, the Municipal Payments, will be made in the Town Account from and after the day after the occurrence of the Tax Credit Termination, and the PICs (or their designees) will thereafter be entitled to receive all Add -On PIF Revenues. 3. PIC Account. CLA will deposit any portion of the Add -On PIF Revenues not comprising the Municipal Payments actually received by CLA into the PIC Account on a monthly basis. 1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial PIC and/or the Mixed -Use PIC, CLA will obtain and thereafter maintain in full force for so long and in such amount as set forth in such written request, a fidelity bond in a form and from an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of CLA to be paid by the PICs. 6 13313f41 2 SECTION 2 Preparation and Disbursement of Reports; Audits 2.1. Preparation and Delivery of Monthly Taxable Transactions Reports. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add -On PIF Report for Taxable Transactions containing all information required therein with respect to all Add -On PIF Revenues generated Taxable Transactions from the Commercial Property or the Mixed -Use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15`h calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town. 2.2. Preparation and Delivery of Monthly Lodging Activities Reports. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add -On PIF Report relating to the renting, letting or provision of Accommodations/Lodging Rooms containing all information required therein with respect to all Add -On PIF Revenues generated from the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property or the Mixed -use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15`h calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to the PICs. 2.3. Preparation and Delivery of Monthly Real Estate Transfers Report. For each calendar month or portion thereof within the term of this Agreement, CLA will prepare a Monthly Add -On PIF Report for Real Estate Transfers containing all information required therein with respect to all Add -On PIF Revenues generated from Real Estate Transfers within the Commercial Property or the Mixed -use Property and received within such month. CLA will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, CLA will deliver a copy of each such report to the PICs. 2.4. Reliance on PIF Obligors' Reports. In preparing the Monthly Add -On PIF Reports, CLA will be entitled to rely on the accuracy of the information contained in the applicable Add -On PIF Reporting Forms received from PIF Obligors from time to time without obligation to investigate or independently verify the information contained therein. 2.5. Provision of Add -On PIF Information. Within 10 days after receipt of written notice from the Commercial PIC and/or the Mixed -Use PIC, and on or before January 1 of each calendar year, CLA will provide each PIF Obligor listed on the PIF Obligor Lists with (i) all then - current Information or policies and procedures adopted by the Commercial PIC or Mixed - Use PIC, as applicable, regarding the calculation, payment and reporting of Add -On PIF Revenues, and (ii) all then - current applicable Add -On PIF Reporting Form(s), procedures and other instructions concerning the collection and remittance of Add -On PIF Revenues to CLA, including all information required under the Commercial Declaration or the Mixed -Use Declaration, as applicable. In performing the foregoing obligation, CLA will be entitled to rely 133130.4 2 on information supplied to it by the PICs and the Director of Finance, and will coordinate with the PICs and the Director of Finance to update all Information and relevant forms prior to distributing them to PIF Obligors. If the PICs change such reporting forms, procedures or other instructions, the PICs promptly will communicate such changes to CLA and the Town, and CLA will provide notice thereof to all PIF Obligors then listed on the PIF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will be substantially similar in form to those used or required by the Town for remittance of Sales Taxes, Public Accommodations Taxes and Real Estate Transfer Taxes, as applicable. CLA will function as the primary contact for PIF Obligors with respect to Information and other forms, procedures and instructions pertinent to collection and remittance of Add -On PIF Revenues, and will coordinate with the PICs and the Town with respect thereto. 2.6. Delinquency Notices to PIF Obligors. (a) First Delinquency Notices. Not later than the 15`h day following the applicable Fee Remittance Date, CLA will send a first delinquency notice by certified mail to any PIF Obligor that: (i) fails to remit Add -On PIF Revenues during the immediately preceding or any other prior Reporting Period; or (ii) CLA has reasonably determined based solely on information contained in the PIF Obligor's Add -On PIF Reporting Form, without obligation to investigate or independently verify the accuracy of such information, to have remitted an incorrect amount for any prior Reporting Period. In making any such delinquency determination, CLA will coordinate with the Director of Finance as reasonably necessary. Such delinquency notice will state that Delinquency Costs (as defined in the Commercial Declaration or Mixed -Use Declaration, as applicable) apply. CLA will send copies of all first delinquency notices (together with a report listing the name of each PIF Obligor to whom a first delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add -On PIF Revenues that comprise any portion of the Municipal Payments. (b) Second Delinquency Notices. Not later than the 15`h day following CLA' issuance of the first delinquency notice as required by Section 2.6(a), CLA will send a second delinquency notice by certified mail to any PIF Obligor that has not paid any delinquent amount of Add -On PIF Revenues as specified in the first delinquency notice. CLA will send copies of such second delinquency notices (together with a report listing the name of each PIF Obligor to whom a second delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add -On PIF Revenues that comprise any portion of the Municipal Payments. CLA will not be obligated to distribute additional delinquency notices to any Add -On PIF Obligor after the second delinquency notice. (c) Other Actions. In addition to the first and second delinquency notices provided for in Sections 2.6(a) and 2.6(b), CLA will, upon receipt of a written request therefor by, as applicable, the Commercial PIC, the Mixed -Use PIC or the Town (only to the extent such Person was entitled to receive a copy of the delinquency notices described 8 1331364 2 in Sections 2.6(b) and 2.6(c)), send a written notice to any PIF Obligor whom the Commercial PIC, the Mixed -Use PIC or the Town, as applicable, believes has not fully complied with its obligations under the Commercial Declaration or Mixed -Use Declaration, as applicable, specifying the nature and extent of such PIF Obligor's non - compliance and requesting that such PIF Obligor immediately remedy such non - compliance. The requesting Person will provide CLA with information sufficient to enable CLA to prepare and send such notice, and CLA will provide a copy of all such notices to the PICs and the Town. In sending the notice required by this Section 2.6(c), CLA may rely upon the information furnished by the Person requesting the notice without any obligation to investigate or independently verify such information. Other than the obligation to send the notices provided for in Sections 2.6(a) and 2.6(b) and this Section 2.6(c), CLA will have no obligation to undertake any enforcement action of any nature. 2.7. Confidentiality of Add -On PIF Reporting Forms. Except to the extent required to be included in any report or to be made available for review and audit as required or permitted under the terms of this Agreement, CLA will maintain in confidence all reports, information or data concerning Taxable Transactions; Real Estate Transfers; the renting, letting or provision of Accommodations/Lodging Rooms; or Add -On PIF Revenues received by CLA from PIF Obligors unless otherwise required to be made public by law. All such information will be used only for purposes of collecting the Add -On PIF Revenues, enforcing PIF Obligors' obligations under the Commercial Declaration and Mixed -Use Declaration, as applicable, monitoring compliance with the provisions of the Commercial Declaration and Mixed -Use Declaration, complying with CLA' reporting obligations under this Agreement to the PICs and the Town or as otherwise may be authorized under the Commercial Declaration or Mixed -Use Declaration. 2.8. Audits. Within 30 calendar days after the end of each calendar year, CLA will prepare and deliver to an auditor approved in writing by the PICs all materials necessary for preparation of an audit of CLA' accounting of all Add -On PIF Revenues received and disbursed in the immediately preceding calendar year, which audit procedures are generally described in Exhibit D. CLA will exercise commercially reasonable efforts to cause the auditor to provide to CLA an annual audited report setting forth the Add -On PIF Revenues received and disbursed by CLA for the preceding calendar year for delivery, within 90 calendar days after the end of the preceding calendar year, to the PICs and the Town (until the occurrence of the Tax Credit Termination and with respect to only Add -On PIF Revenues comprising any portion of the Municipal Payments). In compiling the information to be provided for the audit, CLA may rely on information provided as required or permitted under this Agreement without any further obligation to investigate or independently verify the accuracy of such information. CLA' reasonable costs and expenses incurred in performing and delivering the annual audit, which reimbursement amount is a Collection Expense, will be paid from Add -On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A . At reasonable times during regular business hours, (i) the PICs are hereby authorized to audit, or cause audits to be conducted of, CLA' books and records with respect to the collection and disbursement of Add -On PIF Revenues; and (ii) the Town is hereby authorized to audit, or cause audits to be conducted of, CLA' books and records with respect to the collection and disbursement of Add -On PIF Revenues generated from Taxable Transactions. If an independent 1331304? audit uncovers any deficiency in CLA' performance of its obligations under this Agreement, CLA will promptly cure such deficiency and, to the extent such deficiency consists of CLA' failure to disburse Add -On PIF Revenues to the Commercial PIC, the Mixed -Use PIC and/or the Town, as applicable, due to the negligence or misconduct of CLA, CLA will, within 10 days after notice from the Commercial PIC, the Mixed -Use PIC and/or the Town, as applicable, deposit the full amount of such deficiency into the Asphalt Overlay Account, Town Account and/or PIC Account, as applicable, together with interest thereon at a rate equal to 2% above the prime rate published in the Wall Street Journal on the date of discovery of such deficiency and notice thereof to CLA. The Party(ies) performing any such audit will bear the full costs and expense of performing such audit. CLA' reasonable costs and expenses incurred in connection therewith, which amount is a Collection Expense, will be paid from Add -On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A), provided, however, that CLA will be responsible for all costs and expenses of any audit which discloses a material deficiency in CLA' performance of its obligations under this Agreement to the extent such deficiency is due to the negligence or misconduct of CLA. SECTION 3 General 3.1. Covenants of the Parties. (a) Representations and Warranties. Each Party hereby represents and warrants to and for the benefit of the other Parties: 1. That it has full power and legal authority to enter into this Agreement; 2. That it has taken or performed all acts or actions that may be required by statute or charter to confirm its authority to execute, deliver and perform each of its obligations under this Agreement; and 3. That neither the execution and delivery of this Agreement, nor compliance with any of the terms, covenants or conditions of this Agreement will result in a violation of or default under any other agreement or contract to which it is a party or by which it is bound. (b) Information. Each Party will provide such information reasonably requested by the other Parties from time to time to allow such Parties to fulfill their respective obligations under this Agreement, the Commercial Declaration and the Mixed - Use Declaration, as applicable. (c) Cooperation. The Parties will cooperate with each other and will undertake any reasonably necessary action that is required to support or assist in the collection, remittance and reporting of all Add -On PIF Revenues payable by PIF Obligors pursuant to the Commercial Declaration and the Mixed -Use Declaration. 3.2. Nature of Add -On PIF. The Parties acknowledge and understand that: (i) the Add -On PIF is a charge imposed pursuant to the Commercial Declaration and the Mixed -Use 10 1 1113414 2 Declaration for the benefit of the Commercial PIC and the Mixed -Use PIC, respectively, and other beneficiaries specified therein and not through the exercise of any power by the Town; (ii) the Add -On PIF Revenues are not tax revenues in any form; (iii) all Add -On PIF Revenues are the property of the PICs and/or the Town, as applicable, to be used for the purposes set forth in the Annexation and Development Agreement, the Commercial Declaration and the Mixed -Use Declaration; and (iv) CLA' role in assisting the PICs to collect the Add -On PIF Revenues is derived through this Agreement and is limited by and will be exercised only in accordance with the terms of this Agreement. 3.3. Bankruptcy of Add -On RSF Obligors. If any Party receives actual notice in writing with respect to any action in the bankruptcy of any PIF Obligor, such Party will, as soon as practicable, give notice or convey copies of such notice which it received to the other Parties. 3.4. Limitation of CLA Duties. The duties and responsibilities of CLA are limited to those expressly and specifically stated in this Agreement. CLA will not be liable or responsible for any loss resulting from any investment or reinvestment made pursuant to this Agreement and made in compliance with the provisions hereof. CLA will not be personally liable or responsible for any act which it may do or omit to do hereunder, while acting with commercially reasonable care, except for duties expressly imposed upon CLA hereunder or as otherwise expressly provided herein. CLA will neither be under any obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commercial PIC, the Mixed -Use PIC or the Town of any of their respective obligations under this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed -Use Declaration, nor will CLA be responsible in any manner for the recitals, statements or provisions contained in this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed -Use Declaration, or in any proceedings taken in connection therewith, such recitals, statements and provisions being made solely by the Commercial PIC, the Mixed -Use PIC and the Town, as applicable. Nothing in this Agreement creates any obligation or liability on the part of CLA to anyone other than the PICs, the Town and TCMD. 3.5. Compensation. In consideration of CLA' performance of services under this Agreement, CLA will receive the Collection Expenses as determined by the Parties and described in Exhibit E and elsewhere in this Agreement. The rates described in Exhibit E will be subject to annual adjustment by the written mutual consent of the PICs and, until the occurrence of the Tax Credit Termination, the Town, which adjustment will not require an amendment to this Agreement. No new fee schedule will become effective until 30 days after CLA has given the PICs and, until the occurrence of the Tax Credit Termination, the Town, written notice thereof. Except with respect to specific matters expressly addressed in other provisions of this Agreement to the contrary, all Collection Expenses will be paid from Add -On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit AJ. No later than the 201h day of each calendar month, CLA will submit to the PICs and, until the occurrence of the Tax Credit Termination, the Town, a billing statement of the total Collection Expenses incurred by CLA during the prior calendar month (each, a "Monthly Fee Statement "), which will include a calculation of the portion of the Collection Expenses attributable to (i) the collection of the Add -On PIF Revenues comprising the Municipal Payments; and (ii) the portion of the Add -On PIF Revenues not comprising the Municipal Payments. Any general Collection Expenses that are not reasonably capable of being attributed to either clause (i) or clause 11 13313042 (ii) above (i.e., general collection and deposit of Add -On PIF Revenues, production and distribution of Monthly Add -On PIF Reports, etc.) will be attributed to clauses (i) and (ii) above prorata based on the amount of Add -On PIF Revenues comprising clause (i) and comprising clause (ii) as a percentage of the total amount of Add -On PIF Revenues collected. The PICs and, as applicable, the Town, will have 20 days from receipt of the applicable Monthly Fee Statement to approve, reject or approve in part and reject in part the Monthly Fee Statement in writing to CLA. If the PICs and, as applicable, the Town, both fail to provide such written notice to CLA on or before the expiration of such 20 -day period, the Monthly Fee Statement will be deemed approved by both the PICs and, as applicable, the Town. If the PICs and, as applicable, the Town, approve the applicable Monthly Fee Statement, CLA may deduct, and is hereby expressly authorized to deduct from Add -On PIF Revenues the applicable Collection Expense as set forth in such approved Monthly Fee Statement. If the Commercial PIC, Mixed -Use PIC and/or the Town, as applicable, approve in whole or in part the applicable Monthly Fee Statement, CLA may deduct, and is hereby expressly authorized to deduct from Add -On PIF Revenues the portion of the Collection Expenses set forth in such Monthly Fee Statement approved by the PICs and, as applicable, the Town, if any. With respect to resolution of any Collection Expenses rejected in whole or in part by the Commercial PIC, Mixed -Use PIC and/or the Town, the applicable Parties will proceed pursuant to Section 3.20. Without limitation of the foregoing: (a) The Town will be solely responsible for payment of CLA' Collection Expenses for administration of the portion of the Add -On PIF Revenues comprising the Municipal Payments pursuant to this Agreement. (b) The PICs will be solely responsible for payment of CLA' Collection Expenses for administration of the portion of the Add -On PIF Revenues not comprising the Municipal Payments pursuant to this Agreement. (c) The PICs will be solely responsible for payment of CLA' reasonable costs and expenses, including attorneys' fees, incurred prior to execution of this Agreement for negotiation of this Agreement and for activities in furtherance of entering into this Agreement, such payment to be made within 30 days after receipt of CLA' invoice therefor. 3.6. Resignation; Removal. (a) General. Notwithstanding any provision to the contrary in this Agreement, CLA' obligation to remit to the PICs and the Town any and all Add -On PIF Revenues received by CLA pursuant to the terms and conditions of this Agreement will survive any resignation or removal of CLA pursuant to this Section 3.6 until all such Add -On PIF Revenues have been remitted to the PICs or the Town, as applicable, or control over such funds has been transferred to a successor Add -On PIF Collection Agent. No resignation or removal of CLA will take effect until a successor Add -On PIF Collection Agent has been appointed by the PICs, with the consent of the Town; provided, however, if no successor is appointed by the end of 90 days after delivery of written notice to CLA of such removal, CLA may petition a court of competent jurisdiction to appoint a successor. 12 1331364 2 (b) CLA Resignation. CLA may resign as the PICs' and the Town's agent under this Agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 90 days before the date upon which such resignation is intended to take effect. CLA' resignation will be effective on the resignation date set forth in such notice. Notwithstanding the foregoing, except in the event the Commercial PIC, Mixed -Use PIC and/or the Town have rejected Monthly Fee Statements in whole or in part pursuant to Section 3.5, if CLA' Collection Expenses have not been paid for a period of two consecutive months, CLA may resign as the PICs' and the Town's agent under this agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 30 days before the date upon which such resignation is intended to take effect and CLA' resignation will be effective on the resignation date set forth in such notice; provided, however, if the Commercial PIC, Mixed -Use PIC and/or the Town cure such default within such 30 -day period, CLA' written notice of resignation will be deemed null and void and of no further force or effect. (c) CLA Removal. The PICs, with prior written consent of the Town prior to occurrence of the Tax Credit Termination, may remove CLA as the PICs' and the Town's agent for collection of the Add -On PIF Revenues at any time with or without cause. Any such removal action will be effective immediately upon delivery of written notice by the PICs of such removal to CLA unless the notice specifies a later removal date. 3.7. Assignment; Binding Effect. Except for the collateral assignment of this Agreement by the Commercial PIC and/or the Mixed -Use PIC to any secured lender of the Commercial PIC or the Mixed -Use PIC, as applicable, which assignment will not require the consent of any other Party, this Agreement will not be assigned by any Party for any reason other than to a successor by operation of law or with the prior written consent of the other Parties. This Agreement will inure to the benefit of and will be binding upon the Parties and their duly authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the Mixed -Use PIC, the Town or CLA is named or is referred to, such provision is deemed to include any successor of the Commercial PIC, the Mixed -Use PIC, the Town or CLA, respectively, immediate or intermediate, whether so expressed or not. Any corporation or other legal entity into which a Party may be merged or converted or with which a Party may be consolidated or any corporation or other legal entity resulting from any merger, conversion, sale, consolidation or transfer to which that Party may be a party or any corporation or other legal entity to which a Party may sell or transfer all or substantially all of its assets will be the successor to such Party without the execution or filing of any document or any further act, anything herein to the contrary notwithstanding. All of the stipulations, obligations, and agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the Mixed -Use PIC, the Town or CLA contained in this Agreement (a) will bind and inure to the benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board, council, agent, or instrumentality to whom or to which there will be transferred by or in accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed -Use PIC, the Town or CLA, or of their respective successors. 3.8. Third -Party Beneficiaries. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, will be strictly reserved to the Parties and their duly authorized successors and assigns, and nothing contained in this 13 13313042 Agreement will give or allow any such claim or right of action by any other Person with respect to this Agreement. 3.9. Amendment. This Agreement may only be amended, changed, modified or altered by an instrument in writing duly executed by each Party. 3.10. Computation of Time. In computing a period of days, the first day will be excluded and the last day will be included. If the last day of any period is not a business day or is a federal holiday, the period will be extended to include the next succeeding business day which is not a federal holiday. If a number of months is to be computed by counting the months from a particular day, the period will end on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period will end on the last day of that month. If the date for making any payment or the last day for performance of any act or the exercising of any right as provided in this Agreement falls on a federal holiday or on a Saturday or Sunday, such payment may be made, or such act performed, or such right may be exercised on the next succeeding business day which is not a federal holiday with the same force and effect as if done on the nominal date provided in this Agreement. 3.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof and this Agreement will be reformed to most completely effectuate the intent of the Parties as reflected in the Agreement prior to such severance, including the intent of the severed provision to the extent such provision may be so reformed to cure the invalidity or unenforceability. 3.12. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 3.13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 3.14. No Indemnification by CLA. CLA will have no obligation to indemnify, hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever. 3.15. Indemnification by PICs and the Town. The PICs, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold CLA, its officers, directors, stockholders, and employees harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened under this Agreement arising from or out of any claim in connection with the performance of any of the obligations of CLA to be performed under this Agreement (for purposes of this Section 3.15, collectively, "Liabilities ") except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees. To the extent permitted by applicable law, the Town, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold CLA, its officers, 14 directors, stockholders, and employees harmless from any and all Liabilities except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees. 3.16. Relationship to Declarations and Annexation and Development Agreement. The Commercial PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement, that the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement. The Mixed -Use PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Mixed -Use Declaration and the Annexation and Development Agreement, that the terms and conditions of the Mixed -Use Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Mixed -Use Declaration and the Annexation and Development Agreement. The Town acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Declarations and the Annexation and Development Agreement, that the terms and conditions of the Declarations and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to CLA that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Declarations and the Annexation and Development Agreement. As such, CLA is authorized to presume that all actions taken by the PICs and the Town in connection with this Agreement comply with the terms and conditions of the Declarations and the Annexation and Development Agreement and to act accordingly in performing its obligations under this Agreement. 3.17. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provision or Section of this Agreement. 3.18. Time of the Essence. Time is of the essence in the performance of the obligations from time to time imposed upon CLA by this Agreement. 3.19. Notice. Any notice or other information to be given hereunder will be delivered personally or mailed postage prepaid, return receipt requested, to the following addresses: If to CLA: CliftonLarsonAllen LLP 8390 E. Crescent Parkway, Suite 600 Greenwood Village, Colorado 80111 Attn: Denise Denslow 15 133131142 If to Commercial PIC: With required copy to: If to Mixed -Use PIC: With required copy to: The Village (at Avon) Commercial Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary Otten Johnson Robinson Neff + Ragonetti PC 95017 1h Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin The Village (at Avon) Mixed -Use Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary Otten Johnson Robinson Neff + Ragonetti PC 950 171h Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin If to Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager With required copy to Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney or such other address as a Party may, by written notice to the other Parties, hereafter specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in writing, a different method for conveying notices or information. 3.20. Dispute Resolution. Any dispute arising under this Agreement that is not resolved by the applicable Parties within 45 days or such other period as may be specifically set forth in this Agreement may be submitted by any of the Parties (including CLA) for binding arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver, Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be mutually agreed upon by the applicable Parties or, if such Persons are not able to agree, as directed by the arbiter. The arbiter's decision will be final and non - appealable to the courts. 16 13313042 Except to the extent such fees and costs are caused by the negligence, willful misconduct or material breach of this Agreement by CLA, its officers or employees, all of CLA' reasonable attorneys' fees and costs arising from an arbitration, which is a Collection Expense, will be paid from Add -On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). [Signature Pages Follow This Page] 17 13313042 IN WITNESS WHEREOF, the Commercial PIC, the Mixed -Use PIC, the Town and CLA have caused this Agreement to be executed as of the day and year first above written. COMMERCIAL PIC: THE VILLAGE (AT AVON COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name LS—&4, Title: 1- 7-- 18 1331304.2 MIXED -USE PIC: THE VILLAGE (AT AVON) MIXED -USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation 19 tz�uw� TOWN: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: yR� 4 Title: CJLta Approved as to legal form by: a Eric J. He' , sq., own Attorney 20 13313042 CLA: CLIFTONLARSONALLEN LLP, a Minnesota limited liability partnership By: IAI Name: �� Title: �r',.70 ,4 4z, �r 21 1]71304? EXHIBIT A Definitions For purposes of the attached Add -On PIF Collection Services Agreement, the following terms have the following meanings, unless the context requires otherwise. Further, unless the context requires otherwise, the singular of any term includes the plural, and any reference to a Section or Exhibit is to a Section or Exhibit of the attached Add -On PIF Collection Services Agreement. 1. Add -On PIF Collection Agent. The entity engaged by the PICs and the Town as the collecting agent for disbursement and accounting of the Add -On PIF Revenues pursuant to this Agreement as in effect from time to time, and which is authorized to undertake the duties of the "Add -On RSF Collection Agent" as defined in the Annexation and Development Agreement. 2. Add -On PIF Reporting Form(s). A report of Add -On PIF Revenues payable by each PIF Obligor, in substantially the forms set forth in Exhibit B (or as otherwise required by the Information from time to time, a copy of which form is delivered to CLA by the PICs in advance of its effective date) which, together with remittance of the Add -On PIF Revenues payable and a copy of the corresponding Town Sales Tax report, Town Public Accommodations Tax report or Town Property Transfer Tax report, as applicable, is to be prepared by each PIF Obligor and delivered to CLA on or before each Fee Remittance Date for the immediately preceding Reporting Period. 3. Add -On PIF Revenues. As defined in the Commercial Declaration or the Mixed -Use Declaration, as applicable. 4. Agreement. As defined in the introductory paragraph, this Add -On PIF Collection Services Agreement between the Parties, as amended and supplemented from time to time. 5. Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) having an "Execution Date" (as defined therein) of October 22, 2013 and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and, with respect to certain portions of the Property, EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority, the PICs and, with respect to certain portions of the Property, EMD Limited Liability Company, all as limited parties, and recorded in the Records on or about even date herewith, as amended from time to time. 6. Asphalt Overlay Account. The restricted escrow account established pursuant to the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays of public roads in the Property in accordance with the terms and conditions set forth in the Annexation and Development Agreement and the Asphalt Overlay Agreement. 7. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account Agreement dated as of March 26, 2013 and entered into by and among the Town, Traer Creek Metropolitan District and FirstBank (Avon Branch), which establishes the terms and conditions A -1 13313042 upon which funds will be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account. 8. CLA. As defined in the introductory paragraph of this Agreement, CliftonLarsonAllen LLP, a Minnesota limited liability partnership, together with its successors and any of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to this Agreement, is the "Add -On RSF Collection Agent" as contemplated in the Annexation and Development Agreement. 9. Collection Expense. Any and all fees (including without limitation, Stand -By Fees), costs, expenses, compensation, reimbursements (including without limitation, dispute resolution costs and charges for out -of- pocket expenses such as postage, facsimiles, letterhead, envelopes, printing, etc. for which a receipt is submitted with the applicable Monthly Fee Statement) and other charges due and owing to CLA in connection with and pursuant to the terms of this Agreement. 10. Commercial Declarant. Traer Creek -RP, LLC, a Colorado limited liability company, or any successor -in- interest or transferee who takes title to any portion of the Commercial Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Commercial Declaration. 11. Commercial Declaration. That certain Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795012, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on June 10, 2008 at Reception No.200812111, as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas made as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321543, and as amended by that certain Third Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on August 1, 2014 at Reception No. 201412757, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 12. Commercial PIC. As defined in the introductory paragraph of this Agreement. 13. Commercial Property. The property defined as the "Property" in the Commercial Declaration and legally described in Exhibit A to the Commercial Declaration, upon which the Commercial Declarant and its affiliates are developing and intend to further develop a phased, commercial and retail development. 14. Credit PIF. As defined in the Commercial Declaration or the Mixed -Use Declaration, as applicable. 15. Declarations. Collectively, the Commercial Declaration and the Mixed -Use Declaration. A -2 13313042 16. Director of Finance. The director of finance for the Town, provided that if there is no director of finance for the Town at any time for whatever reason, the "Director of Finance" for all purposes under this Agreement will refer to the Town Manager or the person designated by the Town Manager in writing to the PICs and CLA. 17. Effective Date. As defined in the introductory paragraph of this Agreement. 18. Exhibits. Individually, one of the following Exhibits to this Agreement and/or, collectively, all of the following Exhibits to this Agreement, as the context dictates, which Exhibits are incorporated into and made a part of this Agreement: Exhibit A: Definitions Exhibit B: Form of Add -On PIF Reporting Forms Exhibit C: Form of Monthly Add -On PIF Reports Exhibit D: Audit Procedures Exhibit E: CLA Fee Schedule 19. Fee Remittance Date. With respect to Add -On PIF Revenue payments to be made by PIF Obligors, the date on which the corresponding Sales Tax amount, Public Accommodations Tax amount or Property Transfer Tax amount, as applicable, is due and payable to the Town. 20. Funding Termination. The occurrence of the earlier of (i) 80,000 square feet of additional development of "Commercial Uses" (as defined in the Amended and Restated PUD Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and Development Agreement) have increased by at least $20,000,000 over the actual total annual Taxable Transactions (as defined in the Annexation and Development Agreement) in the year 2011, all as more particularly set forth in Section 6.6(b) of the Annexation and Development Agreement. 21. Information. Any written information or guidelines, as amended and supplemented from time to time, prepared by the PICs and the Town, with the approval of the Commercial Declarant and the Mixed -Use Declarant, regarding the calculation, payment and reporting of the Add -On PIF. 22. Joint Notice. As defined in Section 1.4(b)I(B) of this Agreement. 23. Mixed -Use Declarant. Traer Creek LLC, a Colorado limited liability company, or any successor -in- interest or transferee who takes title to any portion of the Mixed -Use Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Mixed -Use Declaration. A -3 13313042 24. Mixed -Use Declaration. That certain Declaration of Covenants for The Village (at Avon) Mixed -Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795013, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Mixed -Use Areas dated as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321544, and as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Mixed -Use Areas recorded in the Records on August 1, 2014 at Reception No. 201412758, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 25. Mixed -Use PIC. As defined in the introductory paragraph of this Agreement. 26. Mixed -Use Property. The property defined as the "Property" in the Mixed -Use Declaration and legally described in Exhibit A to the Mixed -Use Declaration, upon which the Mixed -Use Declarant and its affiliates are developing and intend to further develop a phased, mixed -use development. 27. Monthly Add -On PIF Reports. The written reports that CLA is required under the terms of this Agreement to prepare for each calendar month during the term of this Agreement and distribute to the PICs and, as applicable, the Town, which reports will be substantially in the form and contain the information set forth in Exhibit C (or as otherwise mutually agreed upon in writing by the Parties, which will not require an amendment to this Agreement; provided, however, the Town's approval will not be required for Monthly Add -On PIF Reports relating to the renting, letting or provision of Accommodations/Lodging Rooms or relating to Real Estate Transfers). 28. Monthly Fee Statement. As defined in Section 3.5 of this Agreement. 29. Municipal Payments. The portion of the Add -On PIF Revenues which the Town is entitled to receive and are actually collected by CLA as more particularly described in the Annexation and Development Agreement. The Municipal Payments are calculated as follows: As of the Effective Date, the rate of the Add -On PIF on Taxable Transactions is 0.75 %. The net proceeds, after adjustment for (deduction of) the Collection Expenses related or attributable to such portion of the Add -On PIF Revenues and application of any other adjustments to such portion of the Add -On PIF Revenues as set forth in the Annexation and Development Agreement, of the Add -On PIT Revenues resulting from imposition of the 0.75% rate to Taxable Transactions occurring within the Property will constitute the Municipal Payments. If the Town increases the Sales Tax rate above 4.0% during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add -On PIF Revenues which will be construed to be Municipal Payments will be reduced in the same degree as any Sales Tax rate increase above 4.0 %. For example, if the Town increases its Sales Tax rate by 0.25% (from 4.0% to 4.25:0), the portion of the Add -On PIF Revenues construed to be Municipal Payments will be that amount equivalent to a reduction of 0.25% in the rate of the Add -On PIF on Taxable Transactions (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75 %). 30. Party(ies). Individually, a signatory to this Agreement and, collectively, all signatories to this Agreement. A -4 13313042 31. Person. Any individual, partnership, corporation, limited liability company, association, trust or other type of entity or organization. 32. PIC Account. The bank account established or to be established for the benefit of the PICs for the purpose of CLA depositing, in accordance with the requirements of Section 1.4, Add -On PIF Revenues received from PIF Obligors who have engaged in Taxable Transactions, in the renting, letting or provision of Accommodations/Lodging Rooms or in Real Property Transfers within the applicable Reporting Period. 33. PICs. Collectively, the Commercial PIC and the Mixed -Use PIC. 34. PIF Obligor List. As defined in Section 1.2. 35. PIF Obligor(s). Any Person(s) who, by virtue of being the seller in a Taxable Transaction; a renter, letter or provider of Accommodations/Lodging Rooms; or the transferee in a Real Estate Transfer, is obligated to collect, as applicable, and remit an Add -On PIF pursuant to the terms of the Commercial Declaration or Mixed -Use Declaration, as applicable. 36. Property. Collectively, the Commercial Property and the Mixed -Use Property. 37. Property Transfer Tax(es). The tax levied by the Town pursuant to Chapter 3.12 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 38. Public Accommodations Tax(es). The tax levied by the Town pursuant to Chapter 3.28 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 39. Records. The real property records of the Clerk and Recorder for Eagle County, Colorado. 40. Reporting Period. Pursuant to applicable Town regulations, the applicable period of time (which may be monthly, quarterly or such other frequency as the applicable regulations may require) with respect to which (i) a Sales Tax obligor is required to file a periodic report of Taxable Transactions and remit Sales Taxes thereon; (ii) a Public Accommodation Tax obligor is required to file a periodic report of renting, letting or provision of Accommodations/Lodging Rooms and remit Public Accommodations Taxes thereon; or (iii) a Property Transfer Tax obligor is required to file a report of a Real Estate Transfer and remit Property Transfer Taxes thereon. 41. Sales Tax(es). The tax levied by the Town pursuant to Chapter 3.08 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 42. Stand -By Fees. As defined in Exhibit E. 43. Taxable Transaction. As defined in the Commercial Declaration or the Mixed - Use Declaration, as applicable. A -5 13313042. 44. Tax Credit Termination. The occurrence of the termination of the Town's obligation to provide tax credits to offset, in whole or in part, the effect of the Sales Tax, the Public Accommodations Tax, as more particularly described in the Annexation and Development Agreement, which obligation is implemented by and codified in the Town Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 45. Town. As defined in the introductory paragraph of this Agreement. 46. Town Account. The bank account established or to be established for the benefit of the Town for the purpose of CLA depositing, in accordance with the requirements of Section 1.4, Add -On PIF Revenues comprising all or a portion of the Municipal Payments received from PIF Obligors who have engaged in Taxable Transactions within the Property within the applicable Reporting Period. A -6 13313042 EXHIBIT B Form of Add -On PIF Reporting Forms The Village (at Avon) ADD -ON RETAIL SALES FEE RETURN 8390 E. Crescent Parkway, Suite 600 Greenwood Village, Colorado 80111 PERIOD COVERED ACCOUNT NUMBER DATE DUE Taxpayer's Name, Address: Phone: 1 GROSS SALES (TOTAL RECEIPTS MUST BEREPORiED AND ACCOUNTED FOR IN EVERY RETURN INCL ALLSALES, RENTALS, AND LEASES ANDSERVICE AND ALL SERVICES BOTH TAXABLE AND NON- TAXASLEI 2A ADD, BAD DEBTS COLLECTED 2B. TOTAL LINES 1 & 2A 3 A. SERVICE SALES NOT SUBIECTTOCREDT T RETAIL SALES FEE(wCLUDEO IN rrEM l ABOVE) 0 B. SALES TO OTHER LICENSED DEALERSFOR PURPOSES OF TAXABLE RESALE C. SALES SHIPPEDOUT OF CITY AND /OR STATE IINCIUDEO IN ITEM 1A80VEI E p D. BAD DEBTS CHARGED OFF (ON WHICH CREDIT RETAIL SALES FEEHAS BEEN PAID) U E. TRADE INS FOR TAXABLE RESALE C F. SALES OF GASOLINE AND CIGARETTES T G. SALES TO GOVERNMENTAL RELIGIOUS AND CHANITABLEORGANIZATIONS I H. RETURNEDGOODS D 1 PRESCRIPTION DRUGS/ PROSTHETIC DEVICES N 1 OTHER DEDUCTIONS S K. OTHER DEDUCTIONS JLIM 3 TOTAL DE OUCTIO NS (TOTAL OF ITEM S LINES A TIRU•1 4. TOTAL SALES & SERVICE SUBJECT TO ADD ON RETAIL SALES FEE (LINE 211 MINUS TOTAL LINE 31 COMPUTATION OF ADD-ON 5 AMOUNT OF ADD -ON RETAIL SAL ES FEE 1075% OF LINE 4) 6. ADD EXCESS ADD-ON RETAIL SALES FEE COLLECTED 7. ADJUSTED ADD-ON RETAIL SALES FEE (ADO LINES 5 & 6) 8- 9. 30. 11, TOTAL ADD -ON RETAIL SALES FEE DUE, (ADO LINES 7THRU 10) 12. PENALTY 30`,W (MIN SCSI r ANNUAL INTEREST, 18%(DDt93XPERDAY) 13 TOTAL ADD -ON RETAIL SALES FEE. PENALTY AND INTEREST DUE (ADD LINES It AND 12) 14 PRIOR , M •r A. -.ADD' : ATTACH COPY NOTICE B— DEDUCT. MAKE CHECK OR MONEY ORDER PAYABLE TO CLIFTONLARSONALLEN LLP, 15, TOTAL DUE AND PAYABLE. as agent for The Village (at Avon) Commercial Public Improvement Company MAILTO. CldtonLarsonABen LIP, 8390 E. Crescent Parkway, Suite 6(X3, Greenwood Village, Colorado 80111 NEW BUSINESS GATE MO DAY YR 1 If ownership has changed, give date of change and the new ow ter's name. 2. If business has been permanently discontinued, give date discontinued 3. If business taratlon has changed• give new address DISCONTINUED DATE 4 Records are kept at what address? MO DAY YR 5. If business S temporarily dosed, give dates to be dosed. 6 If business is Seasonal, give months of operation. 1, hereby certify, under penalty of perjury, that the statements made SHOW BELOW CHANGE OF OWNERSHIP AND/OR ADDRESS, ETG herein arc to the best of my knowledge we and correct BY: COMPANY, PHONE BUSINESSADORESS L MAJ11NGADDRESS TITLE. DATE: B-1 13313042 As of the Effective Date, the PICs have not imposed the Add -On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed -Use PIC impose the Add -On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) will provide such Information and the applicable Add -On PIF Reporting Forms as contemplated in paragraph 2 of Exhibit A. Im 13313042 LL W t K R� 3 S 7 i 0 L O H a a W LU CL W � O u O � G U ca x a c s o k 6 ISO Y�, d I.. �kf ago § © 2 r. / _ 0 2 1:4 § k �� u � ¥ 0 k .§ § c J•^ � O # 2 7 .? 0 2 ut©a 0 ca , tee � El : U04§ kas ( � ° e � k � .? Cd B .0 gP, qo0ƒ w §cG ° c a a�O U EXHIBIT D Audit Procedures • Obtain listing of all Sales Tax and business licenses obtained by businesses within the Property from the Director of Finance and obtain the PIF Obligor List for Taxable Transactions as of the end of the applicable calendar year required to be maintained by CLA and perform the following: o Compare the businesses reflected on the listing provided by the Director of Finance to the businesses included on the PIF Obligor List for Taxable Transactions; and ❑ Compare the dates of the business licenses that were obtained for each business according to the Town's records to those dates provided on the PIF Obligor List for Taxable Transactions. • Randomly select a sample of Add -On PIF Reporting Forms for Taxable Transactions from each applicable PIF Obligor submitted to CLA and perform the following: 0 Determine if each Add -On PIF Reporting Form and related Add -On PIF Revenues were submitted on or before the Fee Remittance Date for the applicable Reporting Period; a Determine, if the Add -On PIF Reporting Forms were not remitted on or before the Fee Remittance Date, CLA sent a first delinquency notice by certified mail to the PIF Obligor not later than the 15`h day following the applicable Fee Remittance Date; n Mathematically recalculate the Add -On PIF amounts due and payable based on the Taxable Transactions reported by each PIF Obligor for each Add -On PIF Reporting Form; ❑ Reconcile the Add -On PIF Revenues remitted by each PIF Obligor to bank deposit receipts prepared by CLA; and ❑ Review the bank deposit slips prepared by CLA for evidence that the Add - On PIF Revenues were correctly deposited in the Asphalt Overlay Account, the Town Account and the PIC Account, as applicable, not later than the first business day of the month following the month of receipt of any Add -On PIF Revenues from PIF Obligors. As of the Effective Date, the PICs have not imposed the Add -On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed -Use PIC impose the Add -On PIF on Real Estate Transfers and/or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) and CLA will work in good faith to produce mutually agreeable audit procedures for such transactions, which audit procedures will be approved in writing by such PIC(s) and CLA but will not require an amendment to this Agreement. D -1 EXHIBIT E CLA Fee Schedule For performance of services CLA fees are billed monthly. The current hourly rate as of the Effective Date is $130.00 per hour. For so long as CLA is performing collection services with respect to the Credit PIF pursuant to a separate agreement, CLA will not charge an hourly rate or other Collection Expense rates (excluding third -party invoices paid by CLA that are reimbursable as a Collection Expense) under this Agreement that exceeds such rates charged by CLA for its services under the agreement pertaining to collection of the Credit PIF Revenues. A minimum monthly charge of two hours will be billed as a stand -by fee ( "Stand -By Fee "), provided that the Stand -by Fee will be waived to the extent of actual hours billed. The hourly rate will increase annually on the anniversary date of the Effective Date in accordance with the Denver/Boulder Consumer Price Index. E -1 13313042