TC Resolution 23-08 Approving a Public Improvement Fees Collection Services Agreeement for ConstructionA
Avon
COLOHADO
RESOLUTION NO.23-08
APPROVING A PUBLIC IMPROVEMENT FEES COLLECTION
SERVICES AGREEMENT FOR CONSTRUCTON
WHEREAS, the Town of Avon, Colorado ("Town") is a home rule municipality and political
subdivision of the State of Colorado ("State") organized and existing under a home rule charter
("Charter") pursuant to Article XX of the Constitution of the State; and
WHEREAS, the Village (at Avon) Commercial Public Improvement Company, ("Commercial
PIC"), The Village (at Avon) Mixed -Use Public Improvement Company, ("Mixed -Use PIC"),.and
Traer Creek Metropolitan District ("TCMD") (collectively the "Districts") wish to enter into an
agreement with the Town for the collection of the Districts imposed Public Improvement Fees
(PIF) as it relates to construction materials delivered within the Village; and
WHEREAS, the Town is willing to collect the PIF as it relates to construction materials delivered
within the Village; and
WHEREAS, the Town Council wishes to approve the Construction PIF Collection Services
Agreement and believes that doing so is in the best interests of the Town.
NOW THEREFORE, THE TOWN COUNCIL, HEREBY RESOLVES:
Section 1 The foregoing recitals are incorporated herein as if set forth in full and are adopted
as findings.
Section 2 The Town Council hereby approves the Construction PIF Collection Services
Agreement attached as Exhibit A, authorizes the Town Manager to execute the same.
ADOPTED MAY 9, 2023 by the AVON TOWN COUNCIL
W4��By: Attest:
y Phillips, Mayor
Miguel Jauregui
Page 1 of 1
CONSTRUCTION PIF COLLECTION SERVICES AGREEMENT
(Construction Materials)
THIS CONSTRUCTION PIF COLLECTION SERVICES AGREEMENT (Construction
Materials) ("Agreement") is made as of , 2023 ("Effective Date") by and
among the Town of Avon, a home rule municipal corporation and political subdivision of the State
of Colorado ("Town"), 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 Traer Creek
Metropolitan District, a quasi -municipal corporation and political subdivision of the State of
Colorado ("TCMD").
RECITALS
This Agreement is made with reference to the following facts:
A. Capitalized terms used in this Agreement have the meanings set forth in the
schedule of defined terms attached at Exhibit E. Each of the Exhibits are incorporated into and
made a part of this Agreement.
B. Pursuant to the Commercial Declaration, Commercial Declarant has imposed,
among other matters, the Public Improvement Fees on Taxable Transactions occurring within the
Commercial Property.
C. Pursuant to the Mixed -Use Declaration, Mixed -Use Declarant has imposed, among
other matters, the Public Improvement Fees on Taxable Transactions occurring within the
Mixed -Use Property.
D. Pursuant to and in accordance with their governance documents, the PICs were
organized as Colorado nonprofit corporations, constitute the "Company" under the respective
Declarations and, among other matters the Declarations grant to the PICs the authority to perform,
the PICs have authority to establish the rates of the Public Improvement Fees, to levy and cause
the collection of the Public Improvement Fees, to enter into collection services agreements and the
Fee Assignment Agreements, and to otherwise receive, utilize, assign and administer the revenues
resulting from the levy and collection of the Public Improvement Fees.
E. The Districts were organized pursuant to State law in order to facilitate the
financing, acquisition, construction and completion of certain public improvements and other
services needed for the development of The Village (at Avon). The Districts were established, and
have agreed to work cooperatively, to finance, acquire, construct, and complete the public
improvements in accordance with the Districts' service plans and the CARADA.
F. Pursuant to the Declarations and the Fee Assignment Agreements, the PICs
assigned the Credit PIF Revenues to TCMD and consented to TCMD's assignment of the Credit
PIF Revenues to VMD, to be utilized in connection with financing of public improvements as
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contemplated in the Districts' service plans and the CARADA, including but not limited to the
Series 2020 Bonds, any refinancing or refunding of the Series 2020 Bonds, and any other similar
municipal bond issuances or other fmancing arrangements of either or both of the Districts.
G. Pursuant to the Declarations and the CARADA, the Add -On RSF Revenues are the
property of and are to be remitted to the Town to the extent required to satisfy the Municipal
Payments obligations set forth in the CARADA until the Tax Credit Termination Date occurs.
H. Pursuant to the Add -On PIF Collection Services Agreement, the PICs have engaged
the Add -On RSF Collection Agent to collect and remit the Add -On RSF Revenues and the Add -On
PIF Revenues, if any, in accordance with the terms and conditions of the CARADA and the
Declarations.
I. Pursuant to the Credit PIF Collection Services Agreement, the PICs have engaged
the Credit PIF Collection Agent to collect and remit the Credit PIF Revenues in accordance with
the terms and conditions of the CARADA and the Declarations.
J. Pursuant to its Sales Tax Code, the Town has the legal authority to impose and
collect from Contractors its Sales Tax on the taxable value of Construction Materials delivered
into the Town for use in Construction Activities.
K. To the extent otherwise subject to the Sales Tax pursuant to the Sales Tax Code (or,
if imposed after the Effective Date, Use Tax) as determined by the Town, deliveries into The
Village (at Avon) of Construction Materials ("Village Construction Materials") for use in
Construction Activities within The Village (at Avon) ("Village Construction Activities")
constitute Taxable Transactions with respect to which the PICs have legal authority pursuant to
the Declarations to impose and collect the Public Improvement Fees, and the Tax Credit attaches
upon payment of the Public Improvement Fees as provided in the Sales Tax Code.
L. The Parties have determined that certain logistical impediments render timely and
accurate calculation and collection of the Public Improvement Fees applicable to Village
Construction Materials ("Construction Materials PIF Revenues") inefficient and impractical,
such that it is in the Parties' best interests that the PICs and TCMD engage the Town, acting by
through its Finance Director, as the PICs' and TCMD's agent for collection and disposition of
Construction Materials PIF Revenues ("Construction PIF Collection Agent"), and that the Town
accept such engagement, subject to and in accordance with the terms and conditions of this
Agreement.
M. The Credit PIF and the Add -On RSF (and the additional Add -On PIF, if any, of
which there is none as of the Effective Date) are private fees imposed pursuant to the Declarations,
and are not imposed or collected through the exercise of any Town power. The resulting
Construction Materials PIF Revenues are not tax revenues in any form, are the property of the
PICs, TCMD (as assigned to VMD in connection with the Series 2020 Bonds) and/or the Town
(in its governmental capacity and not in its capacity as Construction PIF Collection Agent), as
applicable, and are pledged and to be used solely for the purposes set forth in the Declarations, the
Fee Assignments and the CARADA. The Town's legal authority to collect Construction Materials
PIF Revenues is derived solely through its appointment as Construction PIF Collection Agent
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pursuant to, and is limited by and will be enforceable only in accordance with the terms and
conditions of, this Agreement. Although not a Parry, VMD has consented to this Agreement.
N. Any indebtedness or other financial obligation of the PICs and of the Districts does
not constitute an obligation, indebtedness or multiple fiscal year financial obligation of the Town,
does not constitute or give rise to a pecuniary liability of the Town or a charge against the Town's
general credit or taxing powers, and the Town has no obligation of any nature arising pursuant to
this Agreement to pay the principal of or interest on the Series 2020 Bonds or any other
indebtedness or other financial obligation of the PICs and the Districts.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual agreements, promises and
covenants herein contained, and other good and valuable consideration, the receipt of sufficiency
are acknowledged, the Parties agree as follows:
SECTION 1
Construction PIF Collection Agent Appointment and Functions
1.1. Appointment of Town as Construction PIF Collection Agent. The PICs and TCMD
appoint the Town as Construction PIF Collection Agent, and the Town accepts such appointment,
for purposes of receiving, collecting, accounting for, administering and disposition of Construction
Materials PIF Revenues that become due and payable during the Term.
(a) Limited Agency. The Construction PIF Collection Agent is not the agent of any
Person other than the PICs and TCMD, and will have only those responsibilities expressly stated
in this Agreement. The Construction PIF Collection Agent's obligations under this Agreement do
not constitute a multiple fiscal year direct or indirect debt or other financial obligation of the Town.
Except to the extent such costs are for services compensated by the Collection Fee, or are
reimbursable to the Construction PIF Collection Agent or otherwise payable from Construction
Materials PIF Revenues pursuant to this Agreement, the payment of any costs incurred or to be
incurred by the Town in performing its Construction PIF Collection Agent obligations will be
subject to annual appropriation by Town Council.
(b) Term of Agency. The term of this Agreement and of the Construction PIF
Collection Agent's obligations pursuant to this Agreement ("Term") will commence on the
Effective Date and will continue through and including the earlier to occur of: (i) the date on
which the Construction PIF Collection Agent has collected and disbursed, pursuant to the terms
and conditions of this Agreement, all Construction Materials PIF Revenues that become due and
payable by Contractors prior to the Tax Credit Termination Date; and (ii) the date on which the
Parties terminate this Agreement by resignation or replacement in accordance with Section 3.5.
1.2. Ownership and Disposition of Construction Materials PIF Revenues. Pursuant to the
Declarations, the Fee Assignment Agreements and the CARADA, as applicable, and unless TCMD
and the PICs otherwise deliver Notice to the Construction PIF Collection Agent, the lawful
beneficiaries and legal owners of the components of the Construction Materials PIF Revenues are
as follows:
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(a) CreditPlFRevenues; Credit PIF Component, Net CreditPlFRevenues. Subject
to the terms and conditions of TCMD's assignment to VMD of Credit PIF Revenues in connection
with the Series 2020 Bonds, and further subject to the PICs' reversionary interest in the Credit PIF
Revenues, TCMD is the lawful beneficiary and legal owner of the Credit PIF Revenues and such
Credit PIF Revenues are required to be remitted to the Credit PIF Collection Agent for disposition
by the Credit PIF Collection Agent in accordance with the terms and conditions of the Credit PIF
Collection Services Agreement. Accordingly:
1. Credit PIF Com op nent. TCMD is the lawful beneficiary and legal owner
of the Credit PIF Component and, after deduction of the Collection Fee, the Net Credit PIF
Revenues are required to be remitted to the Credit PIF Collection Agent for disposition by
the Credit PIF Collection Agent in accordance with the terms and conditions of the Credit
PIF Collection Services Agreement.
2. Net Credit PIF Revenues. Therefore, during the Term, the Construction PIF
Collection Agent will collect the Credit PIF Component and, after deducting the Collection
Fee from such Credit PIF Component revenues, will remit the Net Credit PIF Revenues to
the Credit PIF Collection Agent pursuant to the terms and conditions of this Agreement.
(b) Add -On RSFRevenues, Add -On RSF Component; Municipal Payments. Subject
to the terms and conditions of the CARADA and the Declarations, the Town (in its governmental
capacity, and not in its capacity as Construction PIF Collection Agent) is the lawful owner of that
portion of the Add -On RSF Revenues which is required to satisfy the Municipal Payments
obligation. As of the Effective Date but subject to adjustment as set forth below, 100% of the
Add -On RSF Revenues is required to satisfy the Municipal Payments obligation. Accordingly:
1. Municipal Payments Methodology. The portion of the Add -On RSF
Component which is required to satisfy the Municipal Payments obligation is required to
be determined pursuant to the following methodology ("Municipal Payments
Methodology"):
(A) As of the Effective Date, the Town's Sales Tax rate is 4.0% and the
Add -On RSF rate is 0.75%.
(B) For so long as the Town's Sales Tax rate remains (or, if applicable,
Use Tax rate is established and remains) at 4.0%, the amount of the Municipal
Payments derived from Construction Materials PIF Revenues will equal the gross
proceeds resulting from imposition of the 0.75% Add -On RSF rate to Village
Construction Materials that are Taxable Transactions.
(C) If the Town increases the Sales Tax (or, if applicable, Use Tax) rate
above 4.0% during any period for which Municipal Payments are to be remitted to
the Town, the amount of Municipal Payments derived from the Add -On RSF
Component will be reduced in the same degree as any Sales Tax (or, if applicable,
Use Tax) rate increase above 4.0%.
(D) By way of example, if the Town increases its Sales Tax (or, if
applicable, Use Tax) rate by 0.25% (from 4.0% to 4.25%), the portion of the
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Add -On RSF Component revenues required to satisfy the Municipal Payments
obligation will be that amount equivalent to a reduction of 0.25% in the rate of the
Add -On RSF as applied to Village Construction Materials (i.e., the revenue realized
from a rate of 0.50% rather than the revenue realized from a rate of 0.75%);
provided, however, the foregoing modification to the calculation of Municipal
Payments will not be construed as requiring the PICs to implement a corresponding
reduction of the Add -On RSF rate, and any portion of Add -On RSF Component
revenues in excess of the amount required to satisfy the Municipal Payments
obligation, as so modified, will constitute Add -On PIF Component revenues which
are the property of, as applicable, TCMD or the applicable PICs.
2. Add -On RSF Component. As of the Effective Date, the Town is the lawful
beneficiary and legal owner of the Add -On RSF Component, 100% of which is required to
satisfy the Municipal Payments obligation, and such Municipal Payments are required to
be remitted to the Town for utilization in accordance with the terms and conditions of the
CARADA. The percentage of Add -On RSF Component revenues required to satisfy the
Municipal Payments obligations is subject to adjustment from time to time pursuant to the
Municipal Payments Methodology.
3. Municipal Payments. Therefore, during the Term and pursuant to the terms
and conditions of this Agreement, the Construction PIF Collection Agent will collect and
retain from the Add -On RSF Component, and will transfer to the Town (in its governmental
capacity), the portion of the Add -On RSF Component which is required to satisfy the
Municipal Payments obligation, the amount of which will be determined for each
Reporting Period pursuant to the Municipal Payments Methodology.
(c) Add -On PIF Revenues, Add -On PIF Component; Net Add -On PIF Revenues.
As of the Effective Date, the Add -On PIF consists only of the Add -On RSF, there are no Add -On
PIF Revenues other than or in addition to the Add -On RSF Revenues which are required to satisfy
the Municipal Payments obligations, 100% of the Add -On RSF Component is required to satisfy
the Municipal Payments obligation, and there is no Add -On PIF Component. If, pursuant to the
Declarations and after the Effective Date, the Add -On PIF is imposed at a rate in excess of the
Add -On RSF rate and/or the Add -On RSF rate produces revenues in amounts greater than are
required to satisfy the Municipal Payments obligations, such excess Add -On RSF Component
revenue will, together with any revenues resulting from imposition of the Add -On PIF at a rate in
excess of the Add -On RSF rate, constitute Add -On PIF Revenues. Subject to the terms and
conditions of the Fee Assignment Agreements, the lawful beneficiaries and legal owners of the
Add -On PIF Revenues, if any, that are in excess of the Add -On RSF Component revenues required
to satisfy the Municipal Payments obligation will be the Commercial PIC (with respect to such
Add -On PIF Revenues generated from the Commercial Property pursuant to the Commercial
Declaration) and the Mixed -Use PIC (with respect to such Add -On PIF Revenues generated from
the Mixed -Use Property pursuant to the Mixed -Use Declaration). Accordingly:
1. Add -On PIF Component. The Add -On PIF Component will be comprised
of the following revenues, if and as applicable: (A) if and at such time as application of
the Municipal Payments Methodology establishes that Add -On RSF Component revenues
are collected in amounts which are in excess of the Municipal Payments obligation, the
portion thereof which is in excess of the Municipal Payments obligation; and (B) if and at
such time as either or both of the PICs impose the Add -On PIF at a rate in excess of the
Add -On RSF rate, 100% of revenues collected from imposition of such Add -On PIF rate.
The lawful beneficiaries and legal owners of such Add -On PIF Component revenues, if
any, will be the Commercial PIC (with respect to such Add -On PIF Component revenues
generated from the Commercial Property pursuant to the Commercial Declaration) and the
Mixed -Use PIC (with respect to such Add -On PIF Component revenues generated from
the Mixed -Use Property pursuant to the Mixed -Use Declaration).
2. Net Add -On PIF Revenues. Therefore, during the Term and pursuant to the
terms and conditions of this Agreement, the Construction PIF Collection Agent will collect
the Add -On PIF Component revenues (inclusive of the Add -On RSF Component
revenues), will determine the portion, if any, of the Add -On RSF Component revenues that
constitute Add -On PIF Component and, after deducting the Collection Fee from such
Add -On PIF Component revenues, will remit the Net Add -On PIF Revenues to the Add -On
RSF Collection Agent.
1.3. Calculation of Construction Materials PIF Revenues Payable by Contractors. At the
time required pursuant to Section 1.4(b), the Construction PIF Collection Agent will determine
whether and at what value Village Construction Materials are Taxable Transactions which are
subject to the Public Improvement Fees. The Construction PIF Collection Agent will make such
determinations utilizing the same methodology the Town utilizes for determining whether and at
what value Construction Materials are Taxable Transaction which are subject to Sales Taxes (or,
if applicable, Use Taxes). The Construction PIF Collection Agent will determine the amount of
Construction Materials PIF Revenues due and payable by the applicable Contractor(s) by applying
the Public Improvement Fees rates in effect at the time required pursuant to Section 1.4(b) to the
value of Village Construction Materials that constitute the Taxable Transactions.
(a) Applicable Public Improvement Fees and Rates. As of the Effective Date, the
Public Improvement Fees, and rates thereof, applicable to Village Construction Materials which
are Taxable Transactions are set forth in the Schedule of Public Improvement Fees Rates attached
at Exhibit A.
(b) Modifications to Schedule of Public Improvement Fees Rates. Pursuant to the
Declarations, the PICs may, from time to time, modify the rates of the Public Improvements Fees.
Not less than thirty (30) days prior to implementing a rate modification, the PICs will deliver
Notice thereof to the Construction PIF Collection Agent. The Notice will include the required
effective date of the rate modification and an updated Exhibit A. which updated Exhibit A will
amend, supersede and replace the schedule of Public Improvement Fees rates set forth in the prior
Exhibit A and be incorporated into and made a part of this Agreement (which will not require an
amendment to this Agreement). The Construction PIF Collection Agent will apply such modified
rates to the value of Village Construction Materials which constitute Taxable Transactions that
occur on and after the stated effective date of the rate modification.
1.4. Collection of Construction Materials PIF Revenues. Unless otherwise supplemented or
modified from time to time by the PICs' and/or TCMD's delivery of Notice to the Construction
PIF Collection Agent (which will not require an amendment to this Agreement), the Construction
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PIF Collection Agent will utilize procedures for the collection, segregation, delinquencies and
reporting (but not for the calculation, which is governed by Section 1.3) of Construction Materials
PIF Revenues that are substantially similar to the procedures the Town utilizes from time to time
for Sales Taxes (or, if applicable, Use Taxes) as applied to Construction Materials that are Taxable
Transactions. Consistent with such Town procedures in effect as of the Effective Date, the Parties
anticipate the Construction PIF Collection Agent will utilize procedures substantially consistent
with those described below.
(a) Applicability of Public Improvement Fees. The Public Improvement Fees will
apply to all Village Construction Materials which are Taxable Transactions that occur prior to the
Tax Credit Termination Date, and the Construction PIF Collection Agent will collect the resulting
Construction Materials PIF Revenues from Contractors during the Term. No Public Improvement
Fees will be imposed on Taxable Transactions that occur after the Tax Credit Termination Date.
The Sales Tax Code (or, if applicable, the Town's applicable Use Tax provisions and regulations)
will govern the determination of whether Village Construction Materials are Taxable Transactions,
and the Town's determination will be dispositive for purposes of the Construction PIF Collection
Agent's obligation to collect Construction Materials PIF Revenues that are due and payable on
such Taxable Transactions.
(b) Fee Remittance Date. The Fee Remittance Date on which Contractors' obligation
to remit the Construction Materials PIF Revenues to the Construction PIF Collection Agent arises,
and on which the Construction PIF Agent will be obligated to collect such Construction Materials
PIF Revenues, will be established substantially as set forth below.
1. At Permit Issuance. If the Town collects Sales Taxes (or, if applicable, Use
Taxes) on Construction Materials in connection with and prior to the Town's issuance of
Permits for Construction Activities, the applicable Fee Remittance Date will be the date on
which Town would require payment of applicable Sales Taxes (or, if applicable, Use
Taxes). The Town will not issue Permits for Village Construction Activities prior to the
applicable Contractors' payment in full to the Construction PIF Collection Agent of the
Construction Materials PIF Revenues applicable to Village Construction Materials that are
Taxable Transactions.
2. Periodically. Alternatively, if the Town collects Sales Taxes (or, if
applicable, Use Taxes) on Construction Materials on a monthly (or other periodic) basis
after issuance of Permits for the related Construction Activities and requires Contractors
to file reports for that purpose within applicable Reporting Periods, the Town will require
Contractors to file Contractor Reports with, together with payment in full of the
Construction Materials PIF Revenues applicable to Village Construction Materials that are
Taxable Transactions during the applicable Reporting Period to, the Construction PIF
Collection Agent within the same Reporting Periods and on the same Fee Remittance Date.
3. Adjustments and Corrections. In a manner consistent with the Town's
generally applicable procedures and requirements for such matters in connection with Sales
Taxes (or, if imposed after the Effective Date, Use Taxes) imposed and collected on
Construction Materials utilized in Construction Activities, a Contractor will have the right
to file with the Construction PIF Collection Agent true and complete copies of revised
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reports, returns, statements and records in regard to an adjustment (including without
limitation refunds, additions or other modifications) to information contained in a
previously filed Contractor Report. The Construction PIF Collection Agent will review
and verify proposed adjustments to Construction Materials PIF Revenues previously paid
or payable by a Contractor in a manner substantially similar to the process followed by the
Town for an adjustment of Sales Tax (or Use Tax, if applicable) payments made with
respect to Construction Materials utilized in connection with Construction Activities.
Upon verifying the validity and accuracy of the proposed adjustment, the Construction PIF
Collection Agent will deliver written confirmation thereof to the Contractor. If the verified
adjustment results in an increase to or reduction in the amount of Construction Materials
PIF Revenues the Contractor paid in a prior Reporting Period, the Contractor will include
the additional amount in, or deduct the overpayment amount from, Construction Materials
PIF Revenues payable in the next subsequent Reporting Period, will reflect such
adjustment in the corresponding Contractor Report, and the Construction PIF Collection
Agent will reflect such adjustments in the next Monthly Report. If the Construction PIF
Collection Agent verifies that a Contractor made an overpayment but the related
Construction Activities have been completed such that the Contractor will not file a
subsequent Contractor Report against which the overpayment can be credited, the
Construction PIF Collection Agent will submit to the Credit PIF Collection Agent (for
overpayment of Credit PIF Component revenues) and/or the Add -On RSF Collection
Agent (for overpayment of Add -On RSF Component revenues), as applicable, with copies
to the PICS and TCMD by Notice, a written request (which may be incorporated into or
submitted with the pertinent Monthly Report) for a refund of such overpayment from
Construction Materials PIF Revenues previously remitted with prior Monthly Reports,
which written request must include a statement by the Construction PIF Collection Agent
that it has reviewed and verified the validity of the refund being requested. The Town will
be solely responsible for refunds of Add -On RSF Component revenues it previously
received in satisfaction of the Municipal Payments obligation. The Construction PIF
Collection Agent will retain all reports and back-up documentation regarding such
adjustments for a period of at least three (3) years from the date of submission thereof and
such materials will be subject to audit during such period pursuant to Section 2.3.
1.5. Disposition of Construction Materials PIF Revenues. The Construction PIF Collection
Agent will receive Construction Materials PIF Revenues remitted by each Contractor and will
separately account for the portions thereof that comprise, respectively: (i) Credit PIF Component
revenues; (ii) Add -On RSF Component revenues required to satisfy the Municipal Payments
obligation; and (iii) Add -On PIF Component revenues, if any. By the twentieth (20'h) day of the
subsequent month after receipt, the Construction PIF Collection Agent will remit or transfer:
(A) the Net Credit PIF Revenues to the Credit PIF Collection Agent; (B) that portion of the
Add -On RSF Component revenues required to satisfy the Municipal Payments obligation to the
Town; and (C) Net Add -On PIF Revenues, if any, to the Add -On RSF Collection Agent.
SECTION 2
Preparation and Disbursement of Reports; Audits
2.1. Preparation and Delivery of Reports.
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(a) Contractor List. From time to time but not later than the last day of each calendar
month during the Term, each of the Parties, to the extent it has actual knowledge thereof, will
provide to the other Parties a list of the name and address of each Contractor who is actively
engaged in Village Construction Activities. Each Party will deliver Notice of such information in
substantially the manner described below.
1. PICs. The PICs will seek to coordinate with and obtain from The Village
(at Avon) Master Design Review Board ("DRB") a list of each development project for
which the DRB has approved an application involving Village Construction Activities,
together with the name of and contact information for the applicant, the legal description
of the site on which such approved Village Construction Activities will occur, and
information available to the DRB, if any, regarding the Contractors anticipated to be
engaged, or anticipated to be engaged, in such approved Village Construction Activities
("DRB Information"). To the extent obtained from the DRB, the PICs will provide such
DRB Information to the Construction PIF Collection Agent and the other Parties.
2. Town/Construction PIF Collection Agent. In connection with issuance of
Permits for Village Construction Activities, the Town will seek to obtain and will provide
to the Construction PIF Collection Agent a list of Contractors actively engaged in Village
Construction Activities. The Construction PIF Collection Agent will consolidate the DRB
Information it receives from the PICs and Districts with information it receives in
connection with the Town's issuance of Permits for Village Construction Activities, will
create, maintain and update on a monthly basis a current listing of such Contractors
("Contractor List"), and will deliver a copy of the Contractor List to each of the PICs and
Districts.
(b) Contractor Reports. The Construction PIF Collection Agent will provide to each
Contractor identified in the then -current Contractor List report substantially in the form and
containing substantially the information set forth in Exhibit B or as otherwise mutually agreed
upon in writing by the Parties, which will not require an amendment to this Agreement
("Contractor Report"). The Construction PIF Collection Agent will require each such Contractor
to submit a fully completed Contractor Report, together with the Construction Materials PIF
Revenues due and payable for such Reporting Period to the Construction PIF Collection Agent on
the then -applicable Fee Remittance Date pursuant to Section 1.4(b), in a manner consistent with
the Town's generally applicable procedures for collection of Sales Taxes (or, if applicable, Use
Taxes) on Construction Materials utilized in connection with Construction Activities, regarding
the dollar value of Village Construction Materials that are Taxable Transactions during the
applicable Reporting Period and total Public Improvements Fees due and payable thereon.
(c) Monthly Reports. Based on the Contractor Reports and the total amount of
Construction Materials PIF Revenues the Construction PIF Collection Agent received in the
immediately preceding month, the Construction PIF Collection Agent will prepare a written report
substantially in the form and containing substantially 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 ("Monthly Report"). On or before the 20th day of each month, the Construction
PIF Collection Agent will deliver the Monthly Report covering the immediately preceding month
to TCMD, to each of the PICs and, as applicable, to the Credit PIF Collection Agent (with respect
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to Credit PIF Component revenues), and the Add -On RSF Collection Agent (with respect to
Add -On RSF Component revenues and Add -On PIF Component revenues, if any).
(d) Annual Reports. Within ninety (90) days after the end of each calendar year, the
Construction PIF Collection Agent will deliver to each PIC, TCMD, the Credit PIF Collection
Agent and the Add -On RSF Collection Agent an unaudited report substantially in the form
attached at Exhibit D or as otherwise mutually agreed upon in writing by the Parties, which will
not require an amendment to this Agreement ("Annual Report").
2.2. Delinquency Notices. Not later than the 151h day following the applicable Fee Remittance
Date, the Construction PIF Collection Agent will send a delinquency notice by certified mail (the
cost of which will be a reimbursable expense pursuant to Section 3.3(b)) and by email to any
Contractor which: (i) fails to submit a Contractor Report and/or fails to remit Construction
Materials PIF Revenues during the immediately preceding or any other prior Reporting Period; or
(ii) the Construction PIF Collection Agent has reasonably determined based solely on information
contained in the then -current Contractor List and/or Contractor Form submitted by such
Contractor, 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, the Construction PIF Collection Agent 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.
The Construction PIF Collection Agent will deliver Notice, including copies of all delinquency
notices (together with a report listing the name of each Contractor to whom a delinquency notice
was sent, the amount of such delinquency, and the period for which such Contractors are
delinquent), to each of the PICs, TCMD and, until the occurrence of the Tax Credit Termination,
the Town with respect to only delinquent Add -On RSF Revenues that comprise any portion of the
Municipal Payments.
2.3. Audit Procedures. Within 60 calendar days after the end of each calendar year, the
Construction PIF Collection Agent will prepare and deliver to an auditor approved in writing by
the PICs and TCMD all materials necessary for preparation of an audit of the Construction PIF
Collection Agent's accounting of all Construction Materials PIF Revenues received and disbursed
in the immediately preceding calendar year. In compiling the information to be provided for the
audit, the Construction PIF Collection Agent 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. The Construction PIF Collection Agent's reasonable
costs and expenses incurred in performing and delivering the annual audit are reimbursable
expenses, and will be paid from Construction Materials PIF Revenues in the manner and
percentages set forth in Section 3.3(b). At reasonable times during the Town's regular business
hours, TCMD, the PICs and/or their designee(s) are authorized to audit, or cause audits to be
conducted of, the Construction PIF Collection Agent's books and records with respect to the
collection, accounting for, and disposition of Construction Materials PIF Revenues. If an
independent audit uncovers any deficiency in the Construction PIF Collection Agent's remittance
of Construction Materials PIF Revenues (to the extent actually received from Contractors
obligated to remit such revenues) to the Credit PIF Collection Agent or Add -On PIF Collection
Agent, as applicable, the Construction PIF Collection Agent will, within sixty (60) days after
Notice from the Party(ies) conducting the audit, remit the full amount of such deficiency to the
10
Credit PIF Collection Agent or Add -On PIF Collection Agent, as applicable, together with interest
thereon (subject to appropriation by the Town Council) at the rate five percent (5%) per annum.
2.4. Confidentiality; Not Public Records. 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, the Construction PIF Collection Agent will maintain in confidence all reports,
information, data, and other written materials that are required or contemplated by this Section 2
or other provisions of this Agreement and which it receives and collects in performing its
obligations under this Agreement for the benefit of the PICs and TCMD, which Parties are the
beneficial owners of such information, including but not limited to (collectively, "PIF
Information"): any such information concerning Village Construction Materials that constitute
Taxable Transactions; Contractor Lists; Contractor Reports; Monthly Reports; Annual Reports;
delinquency notices; Construction Materials PIF Revenues; Credit PIF Component revenues;
Add -On RSF Component revenues applied to satisfaction of the Municipal Payments obligation;
and Add -On PIF Component revenues, if any. All PIF Information will be used only for purposes
of collecting Construction Materials PIF Revenues, monitoring and enforcing Contractors'
obligations under the applicable Declarations to remit the Construction Materials PIF Revenues,
complying with the Construction PIF Collection Agent's reporting obligations under this
Agreement and as otherwise may be authorized under this Agreement and the Declarations. The
PIF Information will be produced, maintained, retained, and otherwise possessed by the
Construction PIF Collection Agent for the benefit of the PICs and TCMD, which Parties are the
beneficial owners of such information, and not by the Town in its governmental capacity. For
purposes of the Colorado Open Records Act, the Parties consider such materials to be
presumptively excluded from the definition of "public records" of the Town in its governmental
capacity and/or as being subject to the Colorado Open Records Act's mandatory nondisclosure
provisions (e.g., C.R.S. § 24-72-204(3)(a)(IV), pertaining to confidential commercial and financial
information). Accordingly, if the Town receives a request for inspection of any purported Town
public records pertaining to the PIF Information pursuant to the Colorado Open Records Act, the
custodian will, prior to producing such material or otherwise responding to such request, deliver
Notice thereof to the PICs and TCMD, and the PICs and TCMD will have the right to take steps
to protect PIF Information from disclosure to the extent permitted under State law.
SECTION 3
General Provisions
3.1. Intergovernmental Agreement. As described in Section 1.2, the Recitals and other
provisions of this Agreement, and subject to the terms and conditions of the Declarations, the Fee
Assignments and the CARADA, TCMD and/or the Town are the lawful beneficiaries and legal
owners of specified revenues derived from imposition of the Public Improvements Fees. Such
Public Improvements Fees revenues are to be used by TCMD and the Town, as applicable, for
their respective governmental purposes as otherwise described in this Agreement and this
Agreement is entered into for the purpose of facilitating the efficient collection and disposition of
the Construction Materials PIF Revenues in order to advance such governmental purposes. As
between and among such governmental Parties, this Agreement constitutes an intergovernmental
agreement as authorized pursuant to C.R.S. § 29-1-203 and such other authority as such
governmental Parties possess under State law and their respective governance documents.
11
3.2. Covenants of the Parties.
(a) Representations and Warranties. Each Parry represents and warrants to and for
the benefit of the other Parties that:
1. It has fully power and legal authority to enter into this Agreement.
2. It has taken or performed all acts or actions that may be required by statute,
charter, its governance documents, or otherwise, to confirm its authority to execute, deliver
and perform each of its obligations under this Agreement.
3. 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 CARADA and the Declarations, 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 Construction Materials PIF Revenues that are or become due and payable by
Contractors.
3.3. Collection Fee and Reimbursable Expenses. In consideration of its performance of
collection services hereunder, the Construction PIF Collection Agent will be paid the Collection
Fee and certain reimbursable expenses as follows:
(a) Collection Fee. The Construction PIF Collection Agent will deduct and retain the
Collection Fee from the total dollar amount, excluding interest and penalties, of the following
components of the Construction Materials PIF Revenues:
1. pursuant to Section 1.2(a), the Credit PIF Component revenues it
collects and, after deduction of the Collection Fee, remits the Net Credit PIF Revenues to
the Credit PIF Collection Agent; and
2. pursuant to Section 1.2(c), the Add -On PIF Component revenues, if
any, it collects and, after deduction of the Collection Fee, remits the Net Add -On PIF
Revenues to the Add -On RSF Collection Agent.
Pursuant to Section 1.2(b), the Collection Fee will not apply to the Add -On RSF Component
revenues that are required to satisfy the Municipal Payments obligations, and the Town will be
solely responsible for the costs incurred in connection with the Construction PIF Collection
Agent's obligations under this Agreement with respect to Add -On RSF Component revenues that
are require to satisfy the Municipal Payments obligations. For avoidance of doubt, the Collection
Fee and the Construction PIF Collection Agent's collection of the Construction Materials PIF
Revenues pursuant to this Agreement are not an implementation of, and are expressly distinct from
and do not implicate, the Town's cooperation regarding delinquent Public Improvement Fees
12
pursuant to Section 6.18 of the CARADA (e.g., collection of the corresponding Town tax, interest,
penalties and costs, and retention of a 20% administrative fee, etc.).
(b) Reimbursable Expenses. In addition to its Collection Fee, the Construction PIF
Collection Agent will be entitled to be reimbursed for the proportionate amount of reimbursable
expenses it has incurred with respect to the Credit PIF Component and Add -On PIF Component
revenues (the Town being responsible for the portion of such expenses incurred with respect to the
Add -On RSF Component revenues required to satisfy the Municipal Payments obligation). The
Town will be solely responsible for the percentage of such expenses in the same percentage as the
Add -On RSF Component revenues that are required to satisfy the Municipal Payments obligations
are of the total Construction Materials PIF Revenues in the period for which reimbursement is
requested.
(c) Start -Up Costs. Within 30 days after the Effective Date, the PICs and TCMD
approve and authorize a one-time payment to the Construction PIF Collecting Agent in the amount
of $2,500 to compensate the Construction PIF Collecting Agent for start-up costs incurred for
activities in furtherance of entering into this Agreement, including internal costs and attorneys'
fees incurred prior to execution of this Agreement for negotiation of this Agreement. TCMD will
cause such payment to be made (to the Town) from Credit PIF Revenues and, upon receipt, will
constitute full and final payment for the Construction PIF Collecting Agent's start-up costs
incurred prior to the Effective Date prior to Credit PIF Component and/or Add -On PIF Component
revenues being available for deduction of the Collection Fee.
3.4. Sovereign Powers and Immunities of Town; Collection of Sales Taxes (or Use Taxes).
Nothing in this Agreement will be construed as diminishing, delegating or otherwise restricting
any of the sovereign powers or immunities of the Town. Without limitation of the foregoing, no
provision of this Agreement will be construed or interpreted as affecting in any manner the Town's
authority pursuant to the Sales Tax Ordinance (or, if applicable, Use Tax regulations) to impose
and collect tax revenues derived from application of the Sales Tax (or, if applicable, Use Tax) to
Village Construction Materials that are Taxable Transactions to the extent the Tax Credit does not
attach (e.g., pursuant to the CARADA, due to a Contractor's failure or refusal to pay the applicable
Construction Materials PIF Revenues) or to the extent the Construction Materials PIF Revenues
paid by a Contractor are themselves Taxable Transactions that are not offset by the Tax Credit.
3.5. Resignation; Removal.
(a) General. Notwithstanding any provision of this Agreement which could be
interpreted to the contrary, the Term will not expire, this Agreement will remain in effect, and the
Construction PIF Collection Agent's obligation to remit to any and all Construction Materials PIF
Revenues it receives pursuant to the terms and conditions of this Agreement will survive any
resignation or removal of the Construction PIF Collection Agent pursuant to this Section 3.5 until
the Construction PIF Collection Agent has remitted all such Construction Materials PIF Revenues
to the Credit PIF Collection Agent or the Add -On RSF Collection Agent, as applicable, or control
over such funds has been transferred to a successor Construction PIF Collection Agent. No
resignation or removal of the Construction PIF Collection Agent will take effect until a successor
Construction PIF Collection Agent has been appointed by the PICs and TCMD, with the consent
of the Town (as to the Add -On RSF Component required to satisfy the Municipal Payments
13
obligation only); provided, however, if no successor is appointed by the end of 90 days after
delivery of Notice to the Construction PIF Collection Agent of such removal, the Construction PIF
Collection Agent may petition a court of competent jurisdiction to appoint a successor.
(b) Resignation. The Town may resign as the Construction PIF Collection Agent
under this Agreement by delivering Notice of resignation to the PICs and TCMD, given not less
than 90 days before the date upon which such resignation is intended to take effect. Subject to
Section 3.5(a), the Town's resignation will be effective on the resignation date set forth in such
Notice. Notwithstanding the foregoing, except in the event the PICS and/or TCMD have rejected
requests for reimbursement of its expenses in whole or in part pursuant to Section 3.3(b), if the
Construction PIF Collection Agent's reimbursable expenses have not been paid for a period of
three consecutive months, the Town may resign as the Construction PIF Collection Agent under
this Agreement by delivering Notice of resignation to the PICs and TCMD, given not less than 30
days before the date upon which such resignation is intended to take effect and the Town's
resignation will be effective on the resignation date set forth in such notice; provided, however, if
the PICs and/or TCMD cause the cure of such default within such 30-day period, the Town's
Notice of resignation will be deemed null and void and of no further force or effect.
(c) Removal. The PICs and TCMD may remove the Town as the Construction PIF
Collection Agent at any time with or without cause. Subject to Section 3.5(a), any such removal
action will be effective immediately upon delivery of Notice by each of the PICs and TCMD of
such removal to the Construction PIF Collection Agent unless the Notice specifies a later removal
date.
3.6. Bankruptcy of Contractor. Any Party which receives actual written notice of any action
in the bankruptcy of any Contractor will, as soon as practicable, give Notice and convey copies of
such notice which it received to the other Parties.
3.7. Assignment. This Agreement may 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 non -assigning Parties.
3.8. No Third -Party Beneficiaries. Enforcement of the terms and conditions of this
Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties
and their duly authorized successors and assigns, and nothing contained in this Agreement will
give or allow any such claim or right of action by any other Person with respect to this Agreement.
3.9. Binding Effect. This Agreement will inure to the benefit of and be binding upon the
Parties and their duly authorized successors and assigns.
3.10. Amendment. This Agreement may only be amended, changed, modified or altered by an
instrument in writing duly executed by each Party.
3.11. 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, the period will be
extended to include the next succeeding business day. 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
14
are not that many days in the concluding month, in which case the period will end on the last day
of that month.
3.12. Payments Due on a Day other than a Business Day. 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 will be a day other than a business day, such payment may be made, or such act
performed, or such right may be exercised on the next succeeding business day with the same force
and effect as if done on the nominal date provided in this Agreement.
3.13. 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 of this Agreement.
3.14. Applicable Law. This Agreement will be governed by and construed in accordance with
the laws of the State.
3.15. Indemnification. To the extent authorized by State law, each Party will indemnify, defend
and hold the other Parties (including such Party's officers, directors, members and employees)
harmless from any and all claims, liabilities, losses, actions suits or proceedings at law or in equity,
and any other expenses, fees, or charges of any character or nature, which such other Parties may
incur or with which such other Parties may be threatened under this Agreement to the extent arising
from or out of any claim in connection with the performance of any of such other Parties'
obligations under the Agreement, except to the extent such liabilities arise or result from such other
Parties' negligence, willful misconduct or material breach of this Agreement.
3.16. Default; Remedies. If any Party fails to perform any of its responsibilities,
obligations or agreements to be performed in accordance with the terms and provisions of this
Agreement, and if such failure of performance continues for a period of thirty (30) days following
notice of default from another Party (or such additional period of time as may be reasonably
necessary to cure such default as long as the curative action is commenced within such 30-day
period and is diligently and continuously pursued to completion), such failure will constitute a
default by such Party. If any dispute arising under this Agreement is not resolved by the applicable
Parties within the foregoing thirty (30) day period (or such other period as may be specifically set
forth in this Agreement), a non -defaulting Parry may initiate a court action (i) to enjoin such failure
of performance, (ii) to recover damages, and (iii) to seek any other remedy available at law or in
equity, including an action for specific performance. Each Party in any court action will bear and
be responsible for its costs and attorney fees; provided, however, and except to the extent arising
from negligence, willful misconduct or material breach of this Agreement by the Construction PIF
Collection Agent or its officers or employees, the Construction PIF Collection Agent's reasonable
attorneys' fees and costs will constitute reimbursable expenses payable from Credit PIF
Component and Add -On PIF Component revenues pursuant to Section 3.3(b). All rights and
remedies under this Agreement are cumulative, and the exercise of any one or more of such rights
and remedies will not preclude the exercise of any other right or remedy for any default at the same
or a different time. Any delay in asserting any right or remedy under this Agreement will not
operate as a waiver of any such right or limit such right in any manner.
15
3.17. Captions. The captions and headings in this Agreement are for convenience only and in
no way define, limit or describe the scope or intent of any provisions or Sections of this Agreement.
3.18. Notice(s). All notices, deliveries and other communications required or otherwise
contemplated in this Agreement to be given ("Notice(s)") must be in writing and will be deemed
given when delivered in person; by prepaid overnight express mail; by a national overnight courier
service; mailed by certified or registered mail, postage prepaid; or by email (pdf or similar format),
with confirmation of receipt, in each case addressed as follows:
To the Town: Town Manager
Town of Avon
P.O. Box 975
100 Mikaela Way
Avon, Colorado 81620
Telephone: 970.748.4004
Email: eheilgavon.org
with copies to: Finance Director
Town of Avon
P.O. Box 975
100 Mikaela Way
Avon, Colorado 81620
Telephone: 970.748.405 5
Email: swright&avon.org
Town Attorney
Town of Avon
P.O. Box 975
100 Mikaela Way
Avon, Colorado 81620
Telephone: 970.945.2261
Email: kjhgmountainlawfirm.com
To TCMD: Traer Creek Metropolitan District
Attn: Denise Denslow, CliftonLarsonAllen LLP
8390 E. Crescent Parkway, Suite 300
Greenwood Village, CO 80111
Telephone: 303.779.5710
Email: denise.denslowkclaconnect.com
with copies to: Spencer Fane LLP
Attn: David S. O'Leary
1700 Lincoln Street, Suite 2000
Denver, CO 80203
Telephone: 3 03.8 3 9.93 52
Email: doleary@spencerfance.com
LGel
To both PICs The Village (at Avon) Commercial Public Improvement
Company
P.O. Box 9429 [Mail]
0101 Fawcett Road, Suite 210 [Physical]
Avon, CO 81620
Attn: Dan Leary
Telephone: 970.949.6776
Email: danleary�ic ,traercreek.com
The Village (at Avon) Mixed -Use Public Improvement
Company
P.O. Box 9429 (Mail)
0101 Fawcett Road, Suite 210 (Physical)
Avon, CO 81620
Attn: Dan Leary
Telephone: 970.949.6776
Email: danlega@traercreek.com
with copies to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17t" Street, Suite 1600
Denver, CO 80202
Attn: Kimberly Martin [220101/220104]
Telephone: 303.825.8400
Email: kmartinkottenjohnson.com
The Parties may by Notice designate any additional or different address to which subsequent
Notices will be sent. The Parties may also specify, in writing, a different method for conveying
Notices or information.
3.19. Execution in Counterparts. This Agreement may be executed in several counterparts,
each of which will be deemed an original and all of which will constitute one and the same
instrument.
[Signature Pages and Exhibits Follow This Page]
17
ATTEST:
Secretary
TRAER CREEK METROPOLITAN DISTRICT,
a quasi -municipal corporation and political
subdivision of the State of Colorado
am
President
TCMD Signature Page to Construction PIF Collection Services Agreement
19
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY,
a Colorado nonprofit corporation
By:
Name:
Title:
Commercial PIC Signature Page to Construction PIF Collection Services Agreement
20
THE VILLAGE (AT AVON) MIXED -USE
PUBLIC IMPROVEMENT COMPANY,
a Colorado nonprofit corporation
By:
Name:
Title:
Mixed -Use PIC Signature Page to Construction PIF Collection Services Agreement
21
Consent of VMD
to Construction PIF Collection Services Agreement
The Village Metropolitan District consents to the Parties' entering into of the foregoing
Construction PIF Collection Services Agreement and acknowledges that the terms and conditions
of the Declarations and the Fee Assignment Agreements do not require that it be a Party to and/or
have enforcement rights under the Construction PIF Collection Services Agreement. The Village
Metropolitan District further acknowledges that it is not a parry to the Credit PIF Collection
Services Agreement or the Add -On PIF Collection Services Agreement, pursuant to which
agreements the Credit PIF Collection Agent is to receive and process the Net Credit PIF Revenues
and the Add -On RSF Collection Agent is to receive and process the Net Add -On PIF Revenues, if
any, which components of the Construction Materials PIF Revenues the Construction PIF
Collection Agent is to collect and disburse pursuant to the Construction PIF Collection Services
Agreement.
THE VILLAGE METROPOLITAN DISTRICT,
a quasi -municipal corporation and political
subdivision of the State of Colorado
an
ATTEST:
Secretary
President
Mixed -Use PIC Signature Page to Construction PIF Collection Services Agreement
22
EXHIBIT A
Schedule of Public Improvement Fees Rates
Credit PIF Rate:
2. Add -On RSF Rate
3. Add -On PIF Rate
RSF rate.
4.0%
0.75%.
There is no Add -On PIF rate other than or in excess of the Add -On
A-1
EXHIBIT B
Form of Contractor Report
[To be inserted prior to execution]
EXHIBIT C
Form of Monthly Report
[To be inserted prior to execution]
C-1
EXHIBIT D
Form of Annual Report
[To be inserted prior to execution]
D-1
EXHIBIT E
Schedule of Defined Terms
For purposes of the Construction PIF Collection Services Agreement (Construction
Materials) to which this Exhibit E is attached, the following terms have the meanings stated in this
Exhibit E.
Add -On PIF has the meaning stated in the CARADA and, as of the Effective Date, consists only
of the Add -On RSF.
Add -On PIF Collection Services Agreement means and refers to, as amended, supplemented or
replaced from time to time, that certain Add -On PIF Collections Services Agreement having an
effective date (as defined therein) of January 1, 2015, by and among CLA, the Commercial PIC
and the Mixed -Use PIC, which agreement also constitutes the Add -On RSF Collection Services
Agreement as the CARADA defines such term.
Add -On PIF Component means that portion of the total Construction Materials PIF Revenues, if
any (there being none as of the Effective Date), derived from application to Village Construction
Materials of the Add -On PIF (inclusive of the Add -On RSF) at a rate which yields an amount
greater than the amount required to satisfy the Municipal Payments obligation.
Add -On PIF Revenues has the meaning stated in the CARADA, although as of the Effective Date
(subject to adjustment after the Effective Date pursuant to the Municipal Payments Methodology)
there are no Add -On PIF Revenues in excess of the amount of the Add -On RSF Revenues required
to satisfy the Municipal Payments obligations.
Add -On RSF has the meaning stated in the CARADA.
Add -On RSF Collection Agent has the meaning stated in the CARADA, such agent being, as of
the Effective Date, CLA pursuant to the Add -On PIF Collection Services Agreement.
Add -On RSF Component means that portion of the Construction Materials PIF Revenues derived
from application of the Add -On RSF to Village Construction Materials.
Add -On RSF Revenues has the meaning stated in the CARADA.
Agreement has the meaning stated in the introductory paragraph of the
Construction PIF Collection Services Agreement (Construction Materials), as amended and
supplemented from time to time, to which this Exhibit E is attached.
Annual Report has the meaning stated in Section 2.1(d).
CARADA means, as amended from time to time, the Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon) 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 and, as limited parties, Avon Urban Renewal
Authority, the PICs and, with respect to certain portions of the Property, EMD Limited Liability
Company, and recorded in the Records on August 1, 2014 at Reception No. 201412777.
E-1
CLA means CliftonLarsonAllen LLP, a Minnesota limited liability partnership, together with its
successors and any of its assigns as permitted under the terms and conditions of the Add -On PIF
Collections Services Agreement and the Credit PIF Collection Services Agreement.
Collection Fee means the fee payable during any Reporting Period to the Construction PIF
Collection Agent, in an amount equal to five percent (5%), excluding interest and penalties, of the
total dollar amount the Construction PIF Collection Agent actually collects in accordance with the
terms and conditions of the Agreement of the following: (i) the Credit PIF Component, and (ii) the
Add -On PIF Component (e.g. expressly excluding the Add -On RSF Component, with respect to
which the Collection Fee does not apply). By way of example, if the Construction PIF Collection
Agent collects $100,000.00 in Credit PIF Component revenue and $0.00 in Add -On PIF
Component revenue for a total dollar amount of $100,000.00 subject to application of the 5% fee,
the resulting Collection Fee would be $5,000.00.
Commercial Declarant means 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.
Commercial Declaration means, as amended, supplemented or replaced from time to time in
accordance with the terms and conditions set forth therein, that certain Amended and Restated
Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 28, 2019
by Traer Creek -RP LLC, a Colorado limited liability company, as declarant, and recorded in the
Records on May 29, 2019 at Reception No. 201907781.
Commercial PIC had the meaning stated in the introductory paragraph of the Agreement.
Commercial Property means and refers to the real property that is defined as the "Property" in
the Commercial Declaration and legally described in Exhibit A to the Commercial Declaration.
Construction Activities means any activity for which the Town requires application for and
issuance of a Permit.
Construction Materials means any article, material or supply used or incorporated into a building
or project by a Contractor in connection with Construction Activities.
Construction Materials PIF Revenues has the meaning stated in Recital L.
Construction PIF Collection Agent has the meaning stated in Recital L and, as used within the
Agreement, means and refers to the Town, acting by and through its Finance Director, in its
capacity as Construction PIF Collection Agent separate and as distinguished from its governmental
capacity.
Contractor(s) means any general contractor, subcontractor or similar Person which is licensed by
the Town or licensed by the State to engage, and which engages, in Construction Activities.
Contractor List has the meaning stated in Section 2.1(a)2.
E-2
Contractor Report(s) has the meaning stated in Section 2.1(b).
Credit PIF has the meaning stated in the CARADA.
Credit PIF Collection Agent has the meaning stated in the CARADA, such agent being, as of the
Effective Date, CLA pursuant to the Credit PIF Collection Services Agreement.
Credit PIF Collection Services Agreement means and refers to, as amended, supplemented or
replaced from time to time, that certain TCMD Collection Services Agreement having an effective
date (as defined therein) of January 1, 2015, by and among CLA and TCMD, which agreement
also constitutes the Credit PIF Collection Services Agreement as the CARADA defines such term.
Credit PIF Component means that portion of the total Construction Materials PIF Revenues
derived from application of the Credit PIF to Village Construction Materials.
Credit PIF Revenues has the meaning stated in the CARADA.
Declarations means, collectively, the Commercial Declaration and the Mixed -Use Declaration.
Districts mean, collectively, TCMD and VMD.
DRB has the meaning stated in Section 2.1(a)1.
DRB Information has the meaning stated in Section 2.1(a)1.
Effective Date has the meaning stated in the introductory paragraph of the Agreement.
Exhibits means, individually, one of the following Exhibits to the Agreement and/or, collectively,
all of the following Exhibits to the Agreement, as the context dictates, which Exhibits are
incorporated into and made a part of the Agreement:
Exhibit A:
Schedule of Public Improvement Fees Rates
Exhibit B:
Form of Contractor Report
Exhibit C:
Form of Monthly Report
Exhibit D:
Form of Annual Report
Exhibit E
Schedule of Defined Terms
Fee Assignment Agreements means and refers to, as amended, supplemented or replaced from
time to time: (i) that certain Amended and Restated Fee Assignment Agreement by and between
the Commercial PIC and TCMD, having an effective date as defined therein of August 1, 2014, as
further assigned by TCMD to VMD in connection with VMD's issuance of the Series 2020 Bonds
as described in that certain Consent of Commercial PIC to TCMD's Assignment of Assigned
Revenues effective as of the date on which closing of the Series 2020 Bonds occurred; and (ii) that
certain Amended and Restated Fee Assignment Agreement by and between the Mixed -Use PIC
and TCMD, having an effective date as defined therein of August 1, 2014, as further assigned by
E-3
TCMD to VMD in connection with VMD's issuance of the Series 2020 Bonds as described in that
certain Consent of Mixed -Use PIC to TCMD's Assignment of Assigned. Revenues effective as of
the date on which closing of the Series 2020 Bonds occurred.
Fee Remittance Date means, as further described in Section 1.4(b), the date on which Contractors
are required to remit Construction Materials PIF Revenues payments to the Construction PIF
Collection Agent, which date will be the date on which the corresponding Sales Tax (or, if
applicable, Use Tax) amount is, or would be but for application of the Tax Credit, due and payable
to the Town.
Finance Director means and refers to the Town's director of finance or such person's designee,
provided that if there is no director of finance for the Town at any time for whatever reason, the
Finance Director for all purposes under this Agreement will refer to the Town Manager or the
person the Town Manager designates in a Notice delivered to the PICs and TCMD.
Mixed -Use Declarant means Traer Creek -RP 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.
Mixed -Use Declaration means, as amended, supplemented or replaced from time to time in
accordance with the terms and conditions set forth therein, that certain Amended and Restated
Declaration of Covenants for The Village (at Avon) Mixed -Use Areas made as of May 28, 2019
by Traer Creek -RP LLC, a Colorado limited liability company, as declarant, and recorded in the
Records on May 29, 2019 at Reception No. 201907752.
Mixed -Use PIC has the meaning stated in the introductory paragraph of the Agreement.
Mixed -Use Property means and refers to the real property that is defined as the "Property" in the
Mixed -Use Declaration and legally described in Exhibit A to the Mixed -Use Declaration.
Monthly Report(s) has the meaning stated in Section 2.1(c).
Municipal Payments has the meaning stated in the CARADA and, for purposes of this
Agreement, means and refers to the portion of the Add -On RSF Component which the
Construction PIF Collection Agent is obligated to transfer to the Town (in its governmental
capacity) in satisfaction of the Municipal Payments obligation, as determined pursuant to the
Municipal Payments Methodology.
Municipal Payments Methodology has the meaning stated in Section 1.2(b)1.
Net Add -On PIF Revenues means, for any applicable Reporting Period, the amount which equals
the total amount of the Add -On PIF Component, if any, minus the Collection Fee.
Net Credit PIF Revenues means, for any applicable Reporting Period, the amount which equals
the total amount of the Credit PIF Component minus the Collection Fee.
Notice(s) has the meaning stated in Section 3.18.
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Party(ies) means, individually, a signatory to the Agreement and, collectively, all signatories to
the Agreement.
Permit(s) means a building permit, electrical permit, plumbing permit, mechanical permit or
similar permit for which the Town requires Contractors apply for and receive prior to engaging in
Construction Activities.
Person means any individual, partnership, corporation, limited liability company, association,
trust or other type of entity or organization.
PICs means, collectively, the Commercial PIC and the Mixed -Use PIC.
PIF Information has the meaning stated in Section 2.4.
Public Improvement Fee(s) has the meaning stated in the CARADA and, as of the Effective Date,
consists of the Credit PIF and the Add -On RSF.
Recital(s) means and refers, unless otherwise stated, to a paragraph set forth under the Recitals
heading of the Agreement.
Records means the real property records of the Clerk and Recorder for Eagle County, Colorado.
Reporting Period means, if and as applicable from time to time, the period of time with respect
to which Contractors are required to file Contractor Reports and remit applicable Construction
Materials PIF Revenues to the Construction PIF Collection Agent, which period of time will be
the same as that established pursuant to the Sales Tax Code (or, if applicable, regulations
implementing Use Taxes) and related Town regulations (which may be monthly, quarterly or such
other frequency as the applicable regulations may require) for Contractors to file reports regarding
Sales Taxes (or, if applicable, Use Taxes) with respect Construction Materials utilized in
Construction Activities in areas of the Town outside The Village (at Avon).
Sales Tax(es) means the tax levied by the Town pursuant to its Sales Tax Code.
Sales Tax Code means and refers to Chapter 3.08 of the Town's Municipal Code, as amended,
restated or replaced from time to time, and all regulations promulgated thereunder.
Section(s) means and refers, unless otherwise stated, to a numbered section or subsection of the
Agreement.
Series 2020 Bonds means and refers to The Village Metropolitan District Special Revenue and
Limited Property Tax Refunding and Improvement Bonds, Series 2020, together with any
refunding or refinancing thereof.
State means and refers to the State of Colorado, inclusive of any regulatory agencies and
departments thereof.
Tax Credit has the meaning stated in the CARADA, and which is implemented by and codified
in the Town's Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with
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respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect
to public accommodations).
Tax Credit Termination Date means the date on which, pursuant to the CARADA, the Town's
obligation to provide the Tax Credit occurs.
Taxable Transaction(s) has the meaning stated in the Declarations and, for purposes of the
Agreement, means and refers to Village Construction Materials that the Town determines are
subject to, and not exempt from, application of Sales Tax (or, if the Town imposes such tax after
the Effective Date, Use Tax) but for and to the extent of the Tax Credit attaching thereto.
Term has the meaning stated in Section 1.1(b).
The Village (at Avon) means and refers, for purposes of the Agreement, to all of the real property
that comprises the Commercial Property and the Mixed -Use Property.
Town has the meaning stated in the introductory paragraph of the Agreement and, as used within
the Agreement means and refers to the Town acting in its governmental capacity separate and as
distinguished from its capacity as Construction PIF Collection Agent.
Town Council means and refers to the "Council" as such term is defined in the Town's home rule
charter.
TCMD has the meaning stated in the introductory paragraph of the Agreement.
Use Tax(es) means, for purposes of this Agreement and as generally referenced in Section 6.15(a)
of the CARADA, any use tax the Town enacts and imposes on Construction Materials (however
defined in such enacted regulations) after the Effective Date (there being no such tax in effect as
of the Effective Date).
Village Construction Activities has the meaning stated in Recital K.
Village Construction Materials has the meaning stated in Recital K.
VMD means and refers to The Village Metropolitan District, a quasi -municipal corporation and
political subdivision of the State of Colorado.
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