TC Res. No. 2012-29 Trear Creek Water Storage TankTOWN OF AVON
RESOLUTION NO. 12 -29
Series of 2012
A RESOLUTION APPROVING THE TRAER CREEK
WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER SERVICE AGREEMENT
WHEREAS, on October 7, 2011 Traer Creek Plaza, LLC ( "TCP ") , the Town of Avon, and
other parties entered into the Settlement Term Sheet ( "Settlement Term Sheet ") in an effort to
resolve pending litigation Nos. 2008 CV 385 and 2010 CV 316, Eagle County District Court;
WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and
construction of the Traer Creek Water Storage Tank; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to The Village (at Avon) Settlement Implementation by Ordinance No. 12 -10 which set forth
various terms concerning the execution and deposit of documents and agreements into escrow
and the effectiveness or voiding of such documents and agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Traer Creek Water Storage Tank Agreement and Second Amendment to
Water Service Agreement ( "Tank Agreement "), attached hereto as Exhibit A, is hereby approved
by the Town of Avon, and that the Mayor, Town Manager and Town Attorney are hereby
authorized to collectively review and approve the completion of blanks in the document,
revisions to correct typos, grammatical errors, cross - references and definitions, completion or
revision of exhibits, other revisions to the Tank Agreement and exhibits which do not constitute
substantive changes to the Tank Agreement, the sequence of recording of the Tank Agreement
and its exhibits in relationship to other documents which may affect the Tank Agreement and its
exhibits in a manner acceptable to the Upper Eagle River Water Authority ( "Authority "), the
form of water rights conveyance from Traer Creek Metropolitan District to the Town of Avon in
a form which is acceptable to the Authority, revisions to Exhibit E Pledge Agreement which are
acceptable to Dee Wisor and the Authority, and Exhibit F Easement Agreement.
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL -�
By:
R' arroll, Mayor`
APPRO AS TO FO
By:
Eric J. He' , Me Xt—torney
A
Res. 12 -29 Approving Traer Creek Water Storage Tank Agreement and Second Amendment to Water
Service Agreement
12 -12 -11 FINAL
TOWN OF AVON
RESOLUTION NO. 12 -29
Series of 2012
A RESOLUTION APPROVING THE TRAER CREEK
WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER SERVICE AGREEMENT
WHEREAS, on October 7, 2011 Traer Creek Plaza, LLC ( "TCP ") , the Town of Avon, and
other parties entered into the Settlement Term Sheet ( "Settlement Term Sheet ") in an effort to
resolve pending litigation Nos. 2008 CV 385 and 2010 CV 316, Eagle County District Court;
WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and
construction of the Traer Creek Water Storage Tank; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to The Village (at Avon) Settlement Implementation by Ordinance No. 12 -10 which set forth
various terms concerning the execution and deposit of documents and agreements into escrow
and the effectiveness or voiding of such documents and agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Traer Creek Water Storage Tank Agreement and Second Amendment to
Water Service Agreement, ( "Tank Agreement'), attached hereto as Exhibit A, is hereby
approved by the Town of Avon, and that the Mayor, Town Manager and Town Attorney are
hereby authorized to collectively review and approve the completion of blanks in the document,
revisions to correct typos, grammatical errors, cross - references and definitions, completion or
revision of exhibits, and -other revisions to the agreement and exhibits which do not constitute
substantive changes to the agree nentTank Agreement, the sequence of recording of the Tank
Agreement and its exhibits in relationship to other documents which may affect the Tank
Agreement and its exhibits in a manner acceptable to the Upper Eagle River Water Authority
( "Authority"), and the form of water rights conveyance from Traer Creek Metropolitan District
to the Town of Avon in a form which is acceptable to the Authority.
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL
ATTEST:
By: By:
Rich Carroll, Mayor
APPROVED AS TO FORM:
By:
Eric J. Heil, Town Attorney
Patty McKenny, Town Clerk
Res. 12 -29 Approving Traer Creek Water Storage Tank Agreement and Second Amendment to Water
Service Agreement
12 -12 -05 ejh
JKJ ('
,P
S &H December 4, 2012 Draft
WATER TANK BONDS PLEDGE AGREEMENT
This WATER TANK BONDS PLEDGE AGREEMENT (the "Agreement' or
"Pledge Agreement "), is made and entered into and dated as of _, 2012 by and
between TRAER CREEK METROPOLITAN DISTRICT ( "TCMD ") a quasi - municipal
corporation and political subdivision of the State of Colorado (the "State "), THE VILLAGE
METROPOLITAN DISTRICT ('`VMD," and together with TCMD, the "Districts ") a
quasi - municipal corporation and political subdivision of the State, and UPPER EAGLE
REGIONAL WATER AUTHORITY (the "Authority "), a political subdivision of the State.
RECITALS
WHEREAS, TCMD has previously issued its Variable Rate Revenue Bonds, Series 2002
and its Variable Rate Revenue Bonds, Series 2004 (collectively, the "Outstanding TCMD
Bonds "); and
WHEREAS, payment of the Outstanding TCMD Bonds is secured by certain revenues of
the Districts, and also by an irrevocable letter of credit issued by BNP PARIBAS, San Francisco
Branch ('`BNP "); and
WHEREAS, TCMD and other entities are parties to that certain litigation (consolidated
civil action Case No. 2008CV385, Eagle County District Court), and have entered into that
certain Settlement Term Sheet dated October 7, 2011 (the "Term Sheet "), to set forth the
agreement of the parties concerning resolution of various disputes at issue in the litigation; and
WHEREAS, TCMD, the Authority, the Town of Avon (the "Town ") and Traer Creek
LLC have entered into that certain Traer Creek Water Storage Tank Agreement and Second
Amendment to Water Service Agreement, dated as of _, 2012 (the "Water Tank
Agreement ") to implement certain provisions of the Term Sheet relating to the construction of a
water tank (as more particularly described in the Water Tank Agreement, the "Tank Project "),
and to address other related matters; and
WHEREAS, the Term Sheet and the Water Tank Agreement contemplate that the
Authority will issue bonds to finance the construction of the Tank Project (the "Tank Project
Bonds "), and that TCMD and VMD will pledge and pay to the Authority the "Annual Debt
Service Obligation" (as more particularly defined and described herein); and
WHEREAS, the revenues pledged herein to pay the Annual Debt Service Obligation (as
defined herein) have been pledged to pay all amounts due to BNP (the `BNP Pledge ") under the
Amended and Restated Reimbursement Agreement, dated as of June 1, 2004, by and among the
Districts and BNP (the "Reimbursement Agreement "), and BNP has agreed to consent to
release the amount necessary to pay the Annual Debt Service Obligation from the BNP Pledge;
and
WHEREAS, TCMD, VMD and the Authority are entering into this Pledge Agreement for
the purpose of obligating TCMD and VMD to pay the Annual Debt Service Obligation to the
Authority and for the Authority to agree to issue the Tank Project Bonds; subject to the
conditions and limitations set forth herein; and
j00305348,DOC /; PUBFIN/ 1514212.12
Section 1.02. Definitions. As used herein, unless the context expressly indicates
otherwise, the words capitalized throughout the text of this Agreement shall have the respective
meanings set forth below or parenthetically defined elsewhere in this Agreement.
(a) "Annual Debt Service" means scheduled principal payments (including
mandatory sinking fund payments) and interest payments due in any calendar year on the j1
Tank Project Bonds. ,h I i
(b) "Annual Debt Service Obligation" means, for each calen 'ar year or
portion of a calendar year in which any Tank Project Bonds are Outs tanding,1 thirty
(30) years following the date of issuance of the Tank Project Bonds, f
,GQ.G�the amount set forth for each such calendar year or portion of a calendar year on {
the then applicable Annual Debt Service Schedule. Once the Annual Debt Service
Obligation is established by the issuance of Tank Project Bonds, it shall not be increased
(but may be decreased) due to a refunding of the Tank Project Bonds without the written
consent of TCMD and BNP (so long as BNP is the provider of liquidity or credit
enhancement on TCMD Refunding Bonds or any amounts are due and owing to BNP by
TCMD in connection with such TCMD Refunding Bonds or the Outstanding TCMD
Bonds). In the event that any payment due to the Authority is not made when due, the
Annual Debt Service Obligation shall also include interest, attorney's fees and costs as
herein provided.
(c) "Annual Debt Service Schedule" means the schedule to be attached as
Exhibit A to this Pledge Agreement upon the issuance of any Tank Project Bonds and
other circumstances set forth herein, in accordance with Section 2.10 hereof. To the
extent an issue of Tank Project Bonds refunds or repays all or a portion of a prior issue of
Tank Project Bonds, then the Annual Debt Service Schedule shall be substituted or
revised, as more particularly described in Section 2.10.
(d) "Authority" means Upper Eagle Regional Water Authority, or its
successors or assigns.
(e) "Business Day" means a day on which banks or trust companies in
Denver, Colorado, are not authorized or required to remain closed and on which the New
York Stock Exchange is not closed.
(f) `Declaration (Commercial Areas)" means the Declaration of Covenants
for The Village (at Avon) Commercial Areas dated May 8, 2002 executed by Traer Creek
LLC, as the same may be amended or supplemented from time to time.
(g) "Declaration (Mixed Use)" means the Declaration of Covenants for The
Village (at Avon) Mixed -Use Areas dated May 8, 2002 executed by Traer Creek LLC
and EMD Limited Liability Company, as the same may be amended or supplemented
from time to time.
(h) "Declarations" means the Declaration (Commercial Areas) and the
Declaration (Mixed Use) ".
{00305848.DOC / 13
PUBFIN /1514212.12
as the same, respectively, become due. Said taxes, when collected, shall be applied only
to the payment of the amounts to be paid hereunder.
(f) Said taxes shall be levied, assessed, collected, and enforced at the time and
in the form and manner and with like interest and penalties as other general taxes in the
State.
(g) Each District shall pursue all reasonable remedies to collect, or cause the
collection of, delinquent ad valorem taxes within its boundaries.
Section 2.04. Pledge of TCMD Revenues by TCMD. TCMD hereby pledges the
TCMD Revenues to the Authority to further secure the payment of the Annual Debt Service
Obligation. The Annual Debt Service Obligation shall constitute a first and prior irrevocable lien
on the TCMD Revenues. TCMD shall pay or cause to be paid to the Authority TCMD Revenues
to the extent necessary to cause the balance in the Senior Payment Fund to equal the Semi -
Annual Obligation due on the next Payment Date. When one or both of the Districts have
imposed a Senior Required MiII Levy sufficient to generate Tank Project Property Tax Revenues
in amount to pay the Annual Debt Service Obligatio or when the balance in the Senior l 1 c . J
Payment Fund equals the Semi - Annual Obligation due on the next Payment Date, the TCMD ��; t,,,jam
Revenues may be used by TCMD for other legal purposes; provided that if the Semi - Annual .� d
Obligation is not paid in full on a Payment Date, all TCMD Revenues shall thereafter be 1
deposited to the Senior Payment Fund until the amount due on such Payment Date is paid in fuII, ,
with interest as provided in Section 3.02 hereof. (, I, r
n ,1
Section 2.05. Limitations on Annual Debt Service Obligation. In no event shall the 6
total or annual obligations of either District hereunder exceed the maximum amounts permitted VY�
under its electoral authority and any other applicable law. The entire Annual Debt Service sty
Obligation will be deemed defeased and no longer outstanding with respect to both Districts
upon the earlier of: (1) the payment by each District of such amount; or (ii) the Termination Date. , r
Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums �f
herein required to pay the amounts due from the Districts hereunder are hereby appropriated for
that purpose, and said amounts for each year shall be included in the annual budget and the
appropriation resolution or measures to be adopted or passed by the Board of Directors of each
District in each year while any of the obligations herein authorized are outstanding and unpaid.
No provisions of any constitution, statute, resolution or other order or measure enacted after the
execution of this Agreement shall in any manner be construed as limiting or impairing the
obligation of the Districts to pay the Annual Debt Service Obligation as provided herein.
Section 2.07. Limited Defenses. It is understood and agreed by the Districts that their (,
obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated
herein, and so long as any obligation of a District hereunder remains unfulfilled, such District
agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert
any rights of setoff, counterclaim, estoppel, or other defenses to its Annual Debt Service
Obligation, or take or fail to take any action which would delay a payment to the Authority or the
Authority's ability to receive payments due hereunder.
{00305848.DOC / 18
PUBFIN /1514212.12
provision shall be replaced, to the extent possible, with a legal, enforceable, and valid
provision that is as similar in tenor to the stricken provision as is legally possible.
(d) The Districts find that the total Annual Debt Service Obligation evidenced
by this Agreement is in excess of $500,000 and is assignable or transferable only in
whole and, as a result, is exempt from the registration requirements of the Colorado
Municipal Bond Supervision Act, Title 11, Article 59, C.R.S.
(e) This Pledge Agreement shall be governed by and construed under the
applicable laws of the State.
(f) This Pledge Agreement may be amended or supplemented by the parties;
but any such amendment or supplement must be in writing and must be executed by all
parties and consented to by BNP so long as BNP is the provider of liquidity or credit
enhancement on TCMD Refunding Bonds or any amounts are due and owing to BNP by
TCMD in connection with the TCMD Refunding Bonds or the Outstanding TCMD
Bonds.
(g) It is intended that there be no third party beneficiaries of this Pledge
Agreement; except that BNP (at any time it is the provider of liquidity or credit
enhancement for the TCMD Bonds or TCMD Refunding Bonds or any amounts are due
and owing to BNP by TCMD in connection with such TCMD Refunding Bonds or the CY-,
Outstanding TCMD Bonds) is a third party beneficiary of this Agreement but solely to 1
the e_xtteent that BNP is expressly provided consent rights herein. Nothing contained
herein, expressed or Imp led, is intended to give to any person other than the Authority t�
any claim, remedy, or right under or pursuant hereto, and any agreement, condition,
covenant, or term contained herein required to be observed or performed by or on behalf
of any party hereto shall be for the sole and exclusive benefit of the other party.
(h) Venue for any and all claims brought by any party to this Pledge
Agreement to enforce any provision of this Agreement shall be the District Court in and
for the County of Eagle and State of Colorado.
(i) If the date for making any payment hereunder or performing any action
hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are
authorized or required by law to remain closed, such payment may be made or act
performed on the next succeeding day which is not a legal holiday or a day on which
banks in Denver, Colorado are authorized or required by law to remain closed.
0) Each party has participated fully in the review and revision of this Pledge
Agreement. Any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in interpreting this Pledge Agreement. The
language in this Pledge Agreement shall be interpreted as to its fair meaning and not
strictly for or against any party.
(k) This Pledge Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same
instrument.
{00305848.DOC /116
PUBFIN /1514212.12
MEMORANDUM
TO Honorable Mayor Carroll and Council members
FROM: Eric Heil, Town Attorney
RE: Traer Creek LLC and Traer Creek Metropolitan District Settlement: Follow -Up
Implementation of Settlement Term Sheet
DATE: December 5, 2012
SUMMARY: This memorandum provides an overview of the remaining documents which must be
reviewed and `finalized and additional actions which must be completed to fully implement the
Settlement Term Sheet. Several actions have been scheduled for the December 11, 2012 regular
Council meeting. Additional actions required to fully implement the Settlement Term Sheet are
also discussed.
Revisions to the Planned Unit Development Guide as approved by Ordinance No. 12 -10 have
been completed and this document has been posted to TOA's website. The final revisions and
correction of typos to the Consolidated Amendment Restated Annexation and Development
Agreement ( "CARADA'l have not yet been completed.
DECEMBER 11, 2012 TOWN COUNCIL ACTION ITEMS: The following items are scheduled for
consideration and approval by the Town Council at the December 11, 2012 regular Town Council
meeting:
Second and Final Reading of Ordinance No. 12 -11 Amending the Real Estate Transfer Tax
Regulations: Ordinance No. 12 -11 is required to implement the Town of Avon's ( "TOA ")
commitment in the CARADA to revise certain regulations in TOA's real estate transfer tax related
to the applicability of the tax to long term leases. Please see the accompanying memorandum for
Ordinance No. 12 -11.
Resolution No. 12 -28 Approving the Water Tank Site Plat: Traer Creek -RP LLC has submitted a
minor subdivision plat to establish the parcel for the water storage tank. Approving this plat will
allow Traer Creek -RP LLC to convey the water tank site in fee simple ownership rather than
conveying an easement. Generally, TOA's policy is to support fee simple conveyance of property
for public facilities to the appropriate public entity, therefore, the platting of the water tank site
and conveyance to the Upper Eagle River Water Authority is considered preferable to an
easement.
Resolution 12 -29: A Resolution Approving the Traer Creek Water Storage Tank Agreement: The
Avon Town Council previously approved the form of the Traer Creek Water Storage Tank
Agreement last spring. The attached agreement contains the exhibits and has been revised for
clarification and to correct typos and errors where appropriate. The Traer Creek Water Storage
Tank Agreement partially implements the Settlement Term Sheet by setting forth the terms of
financial commitments by Traer Creek Metropolitan District to the Upper Eagle River Water
Authority to finance the construction of a water storage tank and by defining the obligations of
Upper Eagle River Water Authority to construct the water storage tank. The agreement to
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E -Mail: ericheillaw @gmaii.com
Avon Town Council
Follow -Up Implementation of Settlement Term Sheet
December 5, 2012
Page 2 of 2
construct the water storage tank will resolve the current moratorium on additional development
in The Village (at Avon).
Resolution 12 -30: A Resolution Approving the Asphalt Overlay Escrow Agreement: The Asphalt
Overlay Escrow Agreement has been revised several times, including incorporating revisions from
FirstBank, who would serve as the Escrow Agent. The ,Asphalt Overlay Escrow Agreement
establishes the rights and obligations of TOA, TCMD and Traer Creek LLC to deposit funds into
this escrow account and establishes procedures for release of such funds for the purpose of
conducting asphalt overlays on roads in The Village (at Avon). The CARADA establish obligations
of TOA, TCMD and Traer Creek LLC to provide funding" to build a reserve for :future asphalt
overlays in order to prevent undue deterioration of public streets in The Village (at Avon).
ADDITIONAL TOWN COUNCIL ACTIONS: The following items are additional action items for the
Avon Town Council to fully implement the Settlement Term Sheet.
The Add -On Retail Sales Fee Collection Services Agreement: TOA has already provided
comments to the Add -On Retail Sales Fee Collection Services Agreement. The Add -On Retail
Sales Fee Collection Services Agreement establishes obligations of the collection agent to collect
the Add -On Retail Sales Fee and remit such funds to TOA as well as establishes rights of TOA to
enforce such obligations. This agreement is expected to be scheduled for a regular Avon Town
Council meeting in January, 2013.
Amendments to the Mixed -Use and Commercial Declarations: Traer Creek LLC has already
provided proposed amendments to the Mixed -Use and Commercial Declarations to impose the
Add -On Retail Sales Fee of .75 %, which revenues would be remitted to TOA in accordance with
the terms of the CARADA. The Avon Town Council reviewed the proposed amendments last
spring. Additional revisions were requested by the Town which have not been finalized. The
amendments to the Mixed -Use and Commercial Declarations for The Village (at Avon) is
expected to be finalized in the near future and scheduled for review and approval at a regular
Avon Town Council meeting in January, 2013.
Various Conveyance Documents: Conveyance documents transferring land and assets to TOA are
still under review for title exceptions. Final versions of deeds with title exceptions and title
insurance policies for land parcels is expected to be presented to the Avon Town Council for
review and approval at a regular meeting in January, 2013.
Amendments to the Traer Creek Metropolitan District and The Village Metropolitan District
Service Plans: Both TCMD and The Village Metropolitan District have indicated that they intend
to submit an application to amend their respective Service Plans to address any inconsistencies
between the CARADA, other documents related to fully implementing the Settlement Term
Sheet, and the existing Service Plans. The Avon Municipal Code requires a public hearing with 15
days prior notice for the Town Council to consider amendments to a metropolitan district service
plan. The draft amendments to the TCMD and The Village Metropolitan District Service Plans are
expected in the near future and a public hearing is expected to be scheduled at a regular Avon
Town Council meeting in January, 2013.
Thank you, Eric
TOWN OF AVON
RESOLUTION NO. 12 -29
Series of 2012
A RESOLUTION APPROVING THE TRAER CREEK
WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER SERVICE AGREEMENT
WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the
Settlement Term Sheet ( "Settlement Term Sheet ") in an effort to resolve pending litigation Nos.
2008 CV 385 and 2010 CV 316, Eagle County District Court; and,
WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and
construction of the Traer Creek Water Storage Tank;
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Traer Creek Water Storage Tank Agreement and Second Amendment to
Water Service Agreement, attached hereto as Exhibit A, is hereby approved by the Town of
Avon, and that the Mayor, Town Manager and Town Attorney are hereby authorized to
collectively review and approve the completion of blanks in the document, revisions to correct
typos, grammatical errors, cross - references and definitions, completion or revision of exhibits,
and other revisions to the agreement and exhibits which do not constitute substantive changes to
the agreement.
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL
By:
Rich Carroll, Mayor
APPROVED AS TO FORM:
By:
Eric J. Heil, Town Attorney
ATTEST:
By:
Patty McKenny, Town Clerk
Res. 12 -29 Approving Traer Creek Water Storage Tank Agreement and Second Amendment to Water
Service Agreement
12 -12 -05 ejh
TRAER CREEK WATER STORAGE TANK AGREEMENT
AND
SECOND AMENDMENT TO WATER SERVICE AGREEMENT
THIS TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER 'SERVICE AGREEMENT ( "Tank Agreement ") is made and
entered into as of this day of , 201_ ( "Effective Date "), by and among the
following entities (collectively, the "Parties "):
the UPPER EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the
State of Colorado (the "Authority ");
the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
( "Avon ");
the TRAER CREEK METROPOLITAN DISTRICT, a quasi - municipal corporation and
political subdivision of the State of Colorado ( "TCMD ");
TRAER CREEK LLC, a Colorado limited liability company ( "TCLLC ");
TRAER CREEK -RP LLC, a Colorado limited liability company( "TCRP "); and
only for those limited purposes expressly set forth below, BNP PARIBAS, a financial
institution organized under the laws of the Republic of France ( "BNP ") and The Village
Metropolitan District, a quasi - municipal corporation and political subdivision of the State of
Colorado ( "VMD ") (together, BNP and VMD may be referred to as a "Limited Party" or the
"Limited Parties ").
RECITALS
This Tank Agreement is made with respect to the following facts:
WHEREAS, Avon, TCMD, Master Developer (defined below) and other entities were
parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County
District Court), and have entered into that certain Settlement Term Sheet dated October 7, 2011
(the "Term Sheet "), to resolve various disputes at issue in the litigation; and
WHEREAS, Section 3 of the Term Sheet includes provisions regarding financing and
constructing the Tank Project (defined below) within The Village (at Avon) real estate
development (the "Property "), the legal description of which is attached hereto as Exhibit A;
and
WHEREAS, except for certain smaller parcels owned by third parties (as such interests
appear of record as of the Effective Date), fee ownership of the bulk of the Property is held by
TCRP, EMD Limited Liability Company ( "EMD "), Traer Creek Plaza LLC, Traer Creek -HD
LLC and Traer Creek -WM LLC (collectively, together with any other entity with respect to
{00268750.DOC / 7}
which TCLLC is the managing member and which acquires title to any portion of the Property
after the Effective Date, the "Developer Affiliates "); and
WHEREAS, for ease of administration and in recognition of the fact that ownership of
the Property has and will continue to become diverse as further development occurs, the
Developer Affiliates have designated TCLLC to act on its and their behalf for all purposes in
connection with this Tank Agreement, including but not limited to negotiation and execution of
this Tank Agreement and any future amendments hereto (in such capacity; TCLLC being
"Master Developer "); and
WHEREAS, TCRP is the fee owner of the bulk of the undeveloped portion of the
Property, including that portion of the Property legally described as Tract J, THE VILLAGE (at
AVON) FILING 4 according to the plat recorded December , 2012, at Reception No. ,
COUNTY OF EAGLE, STATE OF COLORADO (the "Tank Site ") upon which the Tank
Project is to be constructed and operated; and
WHEREAS, due to certain regulatory changes and changed circumstances, the plans and
specifications completed to date by the Developer Affiliates and TCMD (the "2005 Plans ")
require certain updates and modifications in order to be ready for bidding and construction; and
WHEREAS, TCMD has agreed to contribute toward the costs of updating the 2005
Plans to be completed in accordance with the terms and conditions of this Tank Agreement (as
updated, the "Bid -Ready Plans "); and
WHEREAS, the Bid -Ready Plans will incorporate all design, engineering and
construction drawing criteria required to bid and construct the following improvements as
depicted, described and /or specified in the Bid -Ready Plans (collectively, the "Tank Project'):
a 2.0 million gallon treated water storage tank, together with related site grading,
retaining walls and similar site improvements (collectively, the "Storage Tank ");
and
• a year -round all- weather road between the Storage Tank site and the nearest
dedicated public road which shall provide year -round all- weather access to the
Storage Tank site, portions of which are intended to provide general public access
after it is dedicated to Avon and portions of which are intended to be restricted
from general public use (the "Access Road "); and
those water lines, electric lines and other utilities required to be installed and
connected to provide service to the Tank Site and to connect the Storage Tank to
existing water lines, electrical lines and related utilities.
WHEREAS, the Authority has agreed to undertake and perform the following services in
accordance with the terms and conditions of this Tank Agreement:
• coordinating preparation of the Bid -Ready Plans; and
{00268750.DOC / 7} 2
• securing all required permitting for construction of the Tank Project in accordance
with the Bid -Ready Plans; and
ib contracting for construction of the Tank Project in accordance with the Bid -Ready
Plans; and
financing the construction of the Tank Project in the name of and under the
Authority's credit through the sale of its Tank Project Bonds •(as defined in
Section 9.b below); and
providing construction management services for the Tank Project and'
• making the Storage Tank an operational facility; and
all ongoing operations and maintenance of the Storage Tank and that :portion of
the Access Road which is within or provides the Authority with private access to
the Tank Site and which is not intended to be or' has not 'been dedicated to and
accepted by Avon.
WHEREAS, certain of the Parties, or their predecessors in interest, and the Eagle -Vail
Metropolitan District ( "EVMD" )' entered into a Water Service Agreemeri't, dated May 15, 1997,
as amended by First Amendment to Water Service and Tap Fee Allocation Agreement dated
June 22, 1999 (collectively, as so amended, the "Service Agreement "), in which Section 5, titled
Construction of Water Service Facilities, provided for construction of a water storage tank by
TCMD or a predecessor of Master Developer; and
WHEREAS, the Parties intend this Tank Agreement to amend Section 2 of the Service
Agreement as it provides for the Lease of Water Rights and Section 5 of the Service Agreement
as it provides for construction of the Storage Tank; and
WHEREAS, as now provided in the Service Agreement, Avon is the successor in
interest to the rights, obligations, agreements and benefits of EVMD and, therefore, in
accordance with Section 13(c) of the Service Agreement Avon is fully authorized to approve and
execute the amendments to the Service Agreement effected by this Tank Agreement such that the
approval or consent of EVMD is not required; and
WHEREAS, TCMD has agreed to pledge'and assign certain of its revenues to support
the TCMD Bond Resissue and the Pledge Agreement (as such terms are defined in Section 9.a
below); and
WHEREAS, VMD has agreed to pledge and assign certain of its revenues to support the
TCMD Bond Reissue and the Pledge Agreement (as such terms are defined in Section 9.a
below), and is executing this Tank Agreement for the sole and limited purpose of setting forth its
obligations, which are limited to those expressly set forth in Section 9.a of this Tank Agreement,
and its rights and remedies, which are limited to those expressly set forth in Sections 8, 9, 1O.b
and 14 of this Tank Agreement; and
{00268750.DOC / 7} 3
WHEREAS, as between the Authority, Avon, TCMD and VMD, this Tank Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29 -1 -204 and 29 -20 -105 and
Article XIV, Section 18(2) of the Colorado Constitution and each such governmental or quasi -
governmental entity is specifically entitled to seek and be awarded the remedy of specific
performance (if allowed by law against any local government that is a Party) of each such
governmental or quasi - governmental entity's obligations arising under this Tank Agreement; and
WHEREAS, the Developer Affiliates have undertaken and will undertake certain
obligations and certain investments in reliance on the Authority's commitment to provide water
service to and issue taps for development of the Property; and
WHEREAS, BNP as a Limited Party has executed this Tank Agreement to affirm BNP's
approval of and consent to TCMD and VMD undertaking and performing their ;,respective
obligations as described in Section 9.a of this Tank Agreement regarding the TCMD Bond
Reissue and as set forth in the Pledge Agreement and its consent to the Pledge Agreement in the
form attached as Exhibit E hereto; and
WHEREAS, the Developer Affiliates (the "Intended Beneficiaries ") are intended to be
express third -party beneficiaries of the Authority's and Avon's obligations under this Tank
Agreement with rights of direct enforcement of such obligations as more particularly set forth in
Section 14 of this Tank Agreement; and
WHEREAS, implementation of the settlement contemplated in the Term Sheet will
require the satisfaction of various mutually dependant conditions, including but not limited to
closing of the TCMD Bond Reissue, such that all documents and instruments required to be
formally delivered and /or recorded to implement the Term Sheet (except for this Tank
Agreement) will be deposited, pursuant to a master escrow agreement ( "Escrow Agreement "),
into escrow (the "Escrow ") with Stewart Title as Escrow Agent prior to closing of the TCMD
Bond Reissue; and
WHEREAS, the Escrow Agreement shall generally provide for the deposit of all
documents and instruments required to implement the settlement subject to instructions for
formal delivery and /or recording on the date when closing of the TCMD Bond Reissue occurs
(such date being the "Implementation Date "), or return of all such documents and instruments
without formal delivery or recording, such documents and instruments to be void ab initio and of
no legal effect if the TCMD Bond Reissue has not occurred by a date certain to be specified in
the Escrow Agreement (the "Outside Date "); and
WHEREAS, certain of the Parties' obligations are to be performed prior to the
Implementation Date and other of the Parties' obligations are to be performed after the
Implementation Date such that certain provisions of this Tank Agreement are intended to be
legally effective and binding on the Parties as of the Effective Date while other provisions of this
Tank Agreement are intended to be legally effective and binding on the Parties only upon the
occurrence of the Implementation Date.
{00268750.DOC / 71 4
.NOW; THEREFORE, in °consideration of the foregoing- and ,other good and valuable
consideration, the Parties agree as follows:
AGREEMENT TERMS
1: Settlement Term Sheet; . Effective- Date; Implementation :Date. The terms and
provisions of this Tank Agreement are intended to implement, and as of the Implementation Date
shall be - deemed to have implemented, the terms of Section 3 of the Term Sheet: ' Certain rights,
obligations, waivers and releases of the Parties to this Tank .Agreement are described as arising
with reference to the Effective Date and /or by their terms are necessarily to be performed prior to
the Implementation Date in order to enable the Implementation Date to occur. Such matters
attach, are operative 'arid are Iegally binding on the Parties as of the Effective Date. Certain
rights, obligations, waivers and releases of the Parties to this Tank Agreement are described as
arising with reference to the Implementation Date and /or by their terms are necessarily capable
of being performed only from and after the Implementation Date.. Such matters shall be deemed
to have attached, become operative and legally binding on the Parties only upon the occurrence
of, and shall be of no force or effect prior to, the Implementation Date. Accordingly, this Tank
Agreement shall not be required to be deposited into the Escrow, although the executed Pledge
Agreement shall be required to be deposited into the Escrow as provided in Section 9.a below.
2. Service Agreement. From and after the 1 Implementation Date, the terms and
provisions of this Tank Agreement amend the following terms of the Service Agreement:
a. Section 2(b) as the terms of Section 2(b) apply to the ownership of the water
rights to be used to' service the Property; and
•b. Section 5. as it provides for construction of the Storage Tank.
3. Bid -Read Py lans.
a. Prior to the Effective Date, TCMD and the Authority executed and delivered the
Agreement for Payment of Costs of Water Storage; Tank Design attached as
Exhibit C hereto and incorporated herein by this reference (the "Design Costs
Agreement'). Pursuant to the Design. Costs._ Agreement and subject to the terms
and conditions thereof, TCNM has transferred to the Authority the sum of
$66,585.00. The Authority shall have the obligation to contract for Nand cause
completion of the Bid -Ready Plans, and ,the .Authority shall ,be responsible for
payment of any costs thereof that exceed $66,585.00 at such time as this Tank
Agreement is fully executed and delivered to the Authority. To the extent such
expenses can be incorporated into the Tank Project Bonds without exceeding the
Annual Debt Service Pledge Amount (as defined ; in Section 9.a.i below) the
-Authority shall first be entitled to reimbursement for its costs .incurred .. in
obtaining completion of the .Bid -Ready .Plans pursuant to Section 9.b below.
Thereafter, to the extent such expenses can be incorporated into the Tank Project
Bonds without exceeding the Annual Debt Service Pledge Amount (as defined in
Section 9.a.i below), TCMD shall be entitled to reimbursement for its expenses up
{00268750.DOC / 7}
to $66,585.00 incurred in obtaining ;completion of the Bid -Ready Plans pursuant
to Section 9.b below.
b. As soon as practicable after the Effective Date, the Authority shall secure
completion of the Bid -Ready Plans by causing updates to the 2005 Plans to be
completed, and shall cause delivery of such completed Bid -Ready Plans to BNP,
TCMD and Master Developer.
c. Upon the earlier to occur of commencement of construction of the Tank Project or
the date on which closing of the Tank Project Bonds occurs, Master Developer
and shall assign to the Authority, without any representation or warranty,
all of their right, title and interest in and to the Bid -Ready Plans and any and all
work product resulting therefrom.
4. Obligation to Prepare Construction Cost Estimates and to Bid the Tank Project;
Contract Award. After completion and delivery of the Bid -Ready Plans as provided in Section 3
above, which shall include construction cost estimates for the Tank Project based on the Bid -
Ready Plans, the Authority may thereafter, in its sole and absolute discretion, solicit bids on the
Tank Project. The Authority shall follow its normal bidding practices or may utilize an
"integrated project delivery" (Design/Build) process for all or portions of the Tank Project as is
customary for the Authority. Prior to awarding any contracts with respect to the Tank Project,
the Implementation Date shall have occurred and the Authority shall provide to TCMD, 13NP
and Master Developer at least ten (10) business days to review and comment upon all bid
proposals. The Authority shall be solely responsible for contracting for the construction of the
Tank Project and shall not be required to secure the approval of any other Party of the bid or the
contract(s) for the Tank Project. TCMD, BNP and Master Developer shall determine to their
satisfaction and then confirm in writing to the Authority that the Tank Project Bonds can be
serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge
Amount (as defined in Section 9.a.i below). In furtherance of Section 9.b, the Authority shall
provide written notice to BNP and TCMD that it is satisfied the Tank Project Bonds can be
serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge
Amount (as defined in Section 9.a.i below) as a condition precedent to the Implementation Date
and the release of the Pledge Agreement from Escrow. In making the foregoing determination,
all "Mandatory Costs" (as defined in Section 9.b below) shall be incorporated, together with such
"Discretionary Costs" (as defined in Section 9.b below), if any, determined pursuant to Sections
3 and 9.b to be desirable and capable of being financed through the Tank Project Bonds.
5. Tank Site, Access Road, Permits and Landscaping. From and after the Effective
Date, the Authority shall be solely responsible for securing all permits for the construction of the
Tank Project, except any 1041 Permit Avon chooses to require or to issue, including any permit
required by the Colorado Department of Public Health and Environment (including without
limitation any and all stormwater discharge permits), and shall have access to any information
previously provided to permitting authorities by TCMD or Master Developer., The Authority
shall not be required to include a 1041 Permit in the scope of work for any contract for any
Engineering & Design Work for the Tank Project. No new or additional studies shall be required
by Avon for the Tank Project. Avon also shall waive all fees, including review fees, for any and
{00268750.DOC / 71
all permits it may require for the Tank Project. Avon shall permit the Authority to construct the
Tank Project on the Tank Site and shall not require a subdivision improvement agreement with
respect to the Tank Project. Avon shall not require the posting of any collateral, bond or other
form of assurance of completion with respect to the Tank Project, other than this Tank
Agreement. Avon's waiver of financial security for the Tank Project shall not extend or apply to
any future water storage tank project which is pursued if this Tank Agreement expires or is
terminated without completion of the Storage Tank, nor shall such waiver apply to any additional
tanks that may be required to serve higher elevations of the Property. If portions of the Access
Road are improved as a °public road, such portions `shall be dedicated to Avon and accepted by
Avon for maintenance immediately following completion of the same to Avon's standards for
dedication of a public street then in effect, but neither the Authority nor Avon shall have any
responsibility to improve the Access Road to such standards. The Authority shall have no further
responsibility for the physical condition of the Access Road after two (2) years from the date the
Authority accepts the Tank Project after the completion of construction. Pending dedication to
and acceptance by Avon of the Access Road, the owner or owners of the property upon which
the Access Road is constructed shall be responsible for maintenance of the Access Road so long
as it remains closed to use by the general public; such maintenance shall not include snow
removal, but must be sufficient to pen-nit continued access to the Storage Tank by the Authority
for operation and maintenance of the Storage Tank. Any Party who uses the Access Road at a
time when snow is present shall be responsible to plow the snow as necessary to permit ingress
and egress so long as the Access Road remains closed to use by the general public. The
Authority shall be solely responsible for approving all progress payments and disbursements to
the contractor or contractors for the Tank Project. Any inspections of construction by Avon shall
be in its discretion and at its sole cost and expense. The landscaping requirements set forth in the
Bid -Ready Plans supersede all previously adopted landscaping requirements and the Authority
shall only be responsible to perform and install those landscaping improvements set forth in the
Bid -Ready Plans, to warrant the same until expiration of two complete growing seasons, and to
thereafter maintain all such landscaping improvements that are installed within the Tank Site.
Master Developer shall, to the extent required by applicable requirements of The Village (at
Avon) Design Review Board, be responsible to obtain such board's approval of the landscape
requirements set forth in the Bid -Ready Plans. Any additional landscaping that a Party desires
within the Tank Site shall be allowed at the sole expense of such Party, subject to the Authority's
reasonable determination that such additional landscaping improvements will not impair or
interfere with the Authority's operation and maintenance of the Storage Tank, and further subject
to review and approval by The Village (at Avon) Design Review Board.
6. Wetlands Mitigation. The Authority shall be solely responsible for obtaining and
maintaining any wetland permits required in order to complete the Tank Project, including the
Access Road. If the Bid -Ready Plans include the switchback design of the Access Road to the
Storage Tank which affords the opportunity for wetlands mitigation unrelated to the Tank Project
that may be completed by Master Developer or TCMD, the actual wetlands mitigation vegetation
replanting for such wetlands mitigation unrelated to the Tank Project shall not be required of the
Authority and shall not be part of the Authority's permit obligations or construction contract or
included in the construction costs to be financed by the Tank Project Bonds. The Authority shall
have no responsibility for permits or wetlands mitigation requirements for the Property which are
unrelated to the Tank Project and not incorporated in the Bid -Ready Plans.
{00268750.DOC / 7} 7
7. Conveyance of Water Rights. Section 2(b) of the Service Agreement provided for
the lease by Master Developer's predecessor to Avon for sublease without cost to the Authority
certain water rights sufficient to replace the consumptive use associated with the development of
the Property as ultimately decreed by the Water Court: By the terms,of a Water Lease, dated
November 4, 2002, certain TCMD water rights (Exhibit 2 thereto), certain historic consumptive
use credits dedicated to the plan for augmentation approved in Case No. 97CW306 (Exhibit 3
thereto), and 10.8 acre -feet Hof Wolford Mountain Reservoir contract water were leased by
TCMD to Avon. By the terms of a Water Sublease, dated November 4, 2002, Avon subleased
the same water "rights to the Authority. In consideration of the undertakings of the Authority
pursuant to this Tank Agreement, on the Effective Date the following instruments shall be
executed for deposit to the Escrow:
a. TCMD shall assign and convey to Avon by. Special Warranty Deed in
substantially the form attached hereto as Exhibit D -1, all of its right, title and
interest in and to the water rights described therein (collectively, the "Water
Rights"), free and clear of all liens -and encumbrances, together with all diversion
ditches, pipelines; headgates and structures, pumps; casings - and other
improvements and easements associated or =used in connection with the Water
Rights as becomes necessary from time to time in order for the Authority to
provide municipal water service to the Property ( "Appurtenances "), reserving
unto TCMD all rights of access and use of the Appurtenances to the extent not
required to provide municipal water service for the Property.
b. Concurrently with the conveyance described in subparagraph Ta above, Avon
shall assign and 'convey by Special Warranty Deed in' substantially the form
attached hereto as Exhibit D -2, the Water -Rights and Appurtenances to the
Authority, subject to a right of reverter to Avon in the event the Authority fails to
provide water service to the Property (excepting temporary cessation of water
service due to reasonable maintenance requirements or emergency conditions or
actions by the Authority as authorized by its Rules and Regulations).
c. TCMD and Master Developer shall, without further action or documentation, be
deemed to have waived any ownership interest in the thirty (30) acre -feet of Eagle
Park Reservoir water previously obtained by the Authority in its name using funds
provided by TCMD.
d. Any obligation to lease water rights to Avon or the Authority and any obligation
of TCMD or Master Developer to construct a water storage tank to serve
approximately 2,800 SFEs (single family equivalents) under the terms of the
Service Agreement, the Water Lease or the Water Sublease shall be considered
satisfied in full once the Water Rights and Appurtenances have been conveyed to
the Authority as provided herein and once the Storage Tank has been constructed
and is fully operational as provided herein. However; the obligation to fund the
construction of the Storage Tank and all appurtenant facilities shall continue until
the Tank Project Bonds are paid in full and the Pledge Agreement has been
terminated. This paragraph shall not be construed to relieve TCMD, Master
{00268750.DOC / 7} 8
Developer, or any other; owner of the Property, or portion thereof, from the
obligation to provide additional water .rights to serve development on the Property
in excess of what is approved by the .decree of the District Court in and for Water
Division No. 5 in Case-No: 97CW3O6
e. The Authority shall ,undertake the ongoing responsibility for any Water Court
filings necessary to continue and/or-to make absolute the Metcalf Ditch Headgate
and Raw Water Booster Pump conditional rights decreed in Case No., 97CW306.
TCMD. and the Authority shall continue to cooperate with each other in all Water
Court matters,involving.the rights decreed in Case No. 97CW306. The Authority
shall file any application necessary to maintain and/or make absolute the. Metcalf
Ditch Headgate and Raw Water Booster Pump. In the sole and absolute
discretion of the Authority, the Authority may require TCMD to file as a co-
applicant:
In connection with the development of the Property, the Parties acknowledge that the
Appurtenances may need to be modified, piped, buried or otherwise improved, at TCMD's or
Master Developer's sole cost and discretion. The instruments effecting the foregoing assignment
and conveyance of the Water Rights and Appurtenances (the "Water Instruments ") shall be
deposited into the Escrow not later than thirty (30) days after the Effective Date, but shall not be
deemed legally effective or operative until formally delivered and /or recorded on the
Implementation Date.
8. Moratorium. For a number of years, the Authority has imposed a moratorium upon
further water, service within the Property. From and after formal delivery from the Escrow of the
Water Instruments, the Special Warranty Deed to the Tank Site, the Easement Agreement and
the Pledge Agreement on the Implementation Date:
a. the, moratorium .shall be rescinded by Resolution adopted by the Board of
Directors of the Authority, effective upon release of the Pledge Agreement, the
Deeds and the Easement Agreement from the Escrow; and
b. the Authority, without need of further action, legally binds itself to:
construct the Storage Tank as soon as practicable after the Authority has
completed the issuance of the Tank Project Bonds and given Notice to
Proceed to the contractor for the Tank Project; thereafter, no delay or
problem (foreseen or unforeseen) in completing construction of the
Storage Tank shall relieve the Authority of its obligation to provide
potable water service to the Property pursuant to its Rules' and Regulations
and any delay in completing construction of the Storage Tank shall not be
,a basis for re- imposing the moratorium rescinded pursuant to Section 8.a
hereof, except if the Authority is delayed in completing construction of the
Storage Tank by the acts or omissions of the other Parties or Limited
Parties; and
{00268750.DOC / 7} 9
ii. provide potable water service to the Property, subject to the terms of the
decree of the ,District Court in and .for Water Division No. 5, Case,No.
97CW306, up to a maximum of 106.3 consumptive acre feet per year, and
further subject to .the improvements to be constructed, `.or improvements
previously constructed, within the area of the Property - physically capable
of being served by the Storage Tank (at elevations one- hundred -forty
:(140) feet below the base of the Storage Tank, or above such elevation
upon construciion of additional pumping and /or tank storage capacity
above such elevation); and
iii. issue taps for potable water service as .described in subparagraph 8.b.ii
above upon payment of any applicable fees, compliance with generally
applicable engineering /technical requirements for connection to the
Authority's water distribution system and compliance with the conditions
for service as set forth in the Authority's Rules and Regulations; and
c. any development within the Property located at an elevation higher than the
property that can be served by the Storage Tank will require additional treated
water storage to be constructed by someone other than the Authority or Avon at
elevations higher than the Storage Tank elevation if such development is to be
served by the Authority; and
d. the Authority's„ commitment to provide potable. water service pursuant to the
terms of the decree in Case No. 97CW306 up to 106.3 consumptive acre feet per
year and to issue taps, therefore as set forth in this Section 8 shall inure to the
benefit of TCMD; and
e. as of the Effective Date, an SFE is equivalent to 71.4 gallons of treated water
storage and if TCMD wants the Authority to provide water service to more than
2,800 SFEs, TCMD will have to provide additional treated water storage; or, if
water service is proposed to development located above the service area of the
Storage Tank, TCMD shall be required to construct and dedicate an additional
water storage tank or tanks to the Authority; however, this provision shall not be
construed to imply that the decree in Case No. 97CW306 permits service to
approximately 2,800,,SFEs, and shall not modify the .provisions of subparagraph
8.f set forth below; -and
f. if any Party wants the Authority to provide service in, excess of what is authorized
by the decree in Case No. 97CW3O6, the Party first needs to provide additional
water; rights and pay all costs incurred by the Authority to adjudicate the
necessary water rights to provide the increased level of service; and
g. each Party and Limited Party shall have direct rights to enforce the terms and
conditions of this Section 8.
{00268750.DOC / 71 10
=9. Public Financing of the Tank Project: The Tank Project public financing shall be
accomplished by the following actions of TCMD, the Authority and Avon:
a. Pledge; TCMD Bond Reissue As soon as practicable after the Effective Date, but
iri any event prior to the Implementation :Date, the Authority, BNP, TCMD and
VMD shall ;mutually. execute and deposit into the Escrow a pledge agreement in
substantially the form attached hereto as ,Exhibit E and incorporated herein by this
reference (the "Pledge Agreement "). The Medge Agreement shall, in accordance
with its terms and conditions, become legally operative and binding on each party
thereto only upon formal delivery from the Escrow on the Implementation Date.
From and after the Effective Date, TCMD and VMD shall coordinate with BNP to
cause the reissue of TCMD's existing bonded indebtedness on the Implementation
Date (the "TCMD Bond Reissue ") so as to enable performance of TCMD's and
VMD's obligations under the Pledge Agreement. Without limiting of the terms of
the TCMD Bond Reissue documents nor the Pledge Agreement, the terms and
conditions of which shall control over any descriptive language herein (which
shall not be used to'interpret or modify the terms and conditions of the Pledge
Agreement in any manner whatsoever):
i. The Pledge Agreement sets forth the pledge of TCMD and VMD to pay to
the Authority $500,000 or such lesser amount as may be necessary to fully
pay the annual debt service on the Tank Project Bonds (as defined in the
Pledge Agreement, the "Annual Debt Service Pledge Amount "). If such
amount is not sufficient to fully pay the annual debt service on the Tank
Project Bonds, the Authority shall not be required to issue the Bonds or
construct the Tank and the Authority shall be released from such
obligations and BNP shall be released from any obligation it may have to
cause the TCMD Bond 'Reissue to occur.
ii. The term of the Pledge Agreement (and of the obligation to remit the
Annual Debt Service Pledge Amount) shall commence not later than the
issue date of the Tank Project Bonds, and shall terminate on the date on
which the Tank Project Bonds are paid in full.
iii. During the Pterm of the Pledge Agreement, the Pledged Revenue (as
defined in the Pledge Agreement) shall be applied to payment of the
Annual Debt Service Pledge Amount on a periodic basis on the terms and
conditions set forth in the Pledge Agreement.
b. Tank Project Bonds. Concurrently with the closing of the TCMD Bond Reissue,
the Authority shall issue bonds to finance construction of the Tank Project (as
defined in the Pledge Agreement, the "Tank Project Bonds "). The Tank Project
Bonds will be issued (i) in a par amount sufficient to pay the "Mandatory Costs"
described in this Section below and (ii) with annual debt service which can be
fully paid by the Annual Debt Service Obligation payable by the Districts
pursuant to the Pledge Agreement. The par amount of the Tank Project Bonds will
{00268750.DOC / 7} 11
be ;increased to include .as much -of the ".Discretionary Costs" described in this
Section below as possible without increasing the annual debt service on the Tank
Project Bonds .above the. Annual Debt Service Obligation payable by the Districts
in the Pledge Agreement. For purposes of this Section 9.b, "Mandatory Costs"
means: (iii) -the estimated costs (including construction costs,` contingencies and
the cost of construction management services to be provided by the Authority) of
the Tank Project, plus (iv) the costs of issuance of and reserve requirements for
the Tank Project-Bonds: For purposes of this Section 9.b, "Discretionary Costs"
means the following costs: (v) $134,119.23 presently due to the Authority from
TCMD as described in Section 10 below, and (vi) as described in Section 3 above,
the Authority--:'Shall first be entitled to reimbursement for its .costs incurred in
obtaining completion of the Bid -Ready Plans and thereafter TCMD shall be
entitled to reimbursement for its expenses up to $66,585.00 incurred in obtaining
completion of the Bid -Ready Plans (with all such TCMD reimbursed'expenses to
utilized for payment of debt service to BNP). Once the Authority has completed
the issuance of the Tank Project Bonds and given Notice to Proceed to the
contractor for the Tank Project, the Authority' shall proceed to complete the
Storage Tank and make it operational as soon as possible.
c. Avon Actions. In consideration of the undertakings of the other Parties to this
Tank Agreement and other benefits to Avon from implementation of the Term
Sheet, as of the Effective Date- and without the requirement of further action,
Avon: (i) waives and releases any claim to revenues of TCMD and VMD required
to pay the Annual Debt Service Pledge Amount; (ii) covenants that it will exercise
the right of reverter set forth in the Water Instruments upon a triggering event as
described in Section 7 above; and (iii) covenants that it' will undertake and be
responsible for the provision of water service to the Property in the event of a
dissolution of the Authority or otherwise upon'exercising the right of reverter
described in Section 7 above.
10. Other Consideration.
a. Immediately upon formal delivery of the Pledge Agreement on the
Implementation Date, and without the requirement of any further action, the
Authority shall be deemed -to have irrevocably released TCMD from any
obligation to pay the sum of $20,387.22 due for the remainder of the Authority's
professional fees incurred in adjudicating a plan for augmentation and exchange
to allow the Authority to use 10.8 acre -feet of storage in Wolford Mountain and
Ruedi Reservoirs acquired from the Traer Creek entities.
b. If the amount presently due to the Authority ($134,119.23) from TCMD pursuant
to the Agreement dated November 4, 2002, is paid in full or in part by TCMD or
Master Developer (Master Developer having no legal obligation to make such
payment), or if the amount due is able to be refinanced (in whole or in part) as
part of the Tank Project Bonds, immediately upon such payment or refinancing
and without the requirement of any further action the Authority shall be deemed
{00268750.DOC / 7} 12
to have irrevocably released TCMD to the extent of such payment or refinancing,
or both, from the obligation to pay that portion of the obligation to the Authority.
If the amount due' is not paid in full or - cannot be fully re- financed as part of the
Tank Project Bonds, TCMD shall continue to make annual payments to the
Authority in September of each year in the amount of $11,880 until the
$134,11923 obligation.>is satisfied in full. The Authority hereby agrees no other
professional fees are owed to it by TCMD VMD or Master Developer and the
Authority' hereby expressly releases any other such claims for fees through the
Effective Date:
I L Conveyance of the Tank Site; Easement Agreement. The Storage Tank shall be
constructed and operated by the Authority on the Tank Site. The Tank Site shall be conveyed to
the Authority .by TCRP by Special Warranty Deed in substantially the form attached hereto as
Exhibit.B, free and clear of all monetary liens and other encumbrances (the "Tank Site Deed ")
which shall include all areas required for ingress and egress, temporary construction easements,
maintenance, repairs or replacement .of facilities;, retaining walls; slope . maintenance and snow
storage and otherwise meeting the minimum requirements of the Avon Municipal Code. TCRP
agrees that it has or will submit the Final Plat for the Tank Site to. Avon for approval as a minor
subdivision as soon as possible and Avon agrees to process and approve such application in a
timely manner. Accordingly:
.a. By the Effective Date, TCRP and the Authority shall execute .and deposit the
Tank Site Deed into the Escrow pursuant to the Escrow Agreement.
b. By the Effective Date, TCRP and the Authority shall execute and deposit the
Easement Agreement in substantially the form attached hereto as Exhibit F,
granting a non - exclusive easement to the Authority for construction and use of the
Access Road as described therein.
TCRP shall grant to the Authority at no cost to the Authority, such non - exclusive
easements, if any, as may reasonably be required within the Access Road
alignment and right -of -way, or which otherwise are specifically described in
Exhibit F, to connect the Storage Tank to existing water lines and electric lines
anywhere on the Property to be mutually agreed .upon by TCRP and the
Authority, including any pumping ,station and facilities reasonably necessary to
the operations of the Storage Tank.
d. TCRP, shall grant to the Authority at no , cost to the Authority, temporary
construction easements and staging areas at a site or sites specifically described in
Exhibit F or at the Stolport (in the area recently used as a construction staging
area by Xcel Energy and /,or near the current recycling area) and /or at a location or
locations adjacent to the Access Road as designated by the Authority or its
contractor for a staging area or areas, and for all utilities being ;installed by the
Authority to serve the Tank Project.
{00268750.DOC / 71 13
12. Construction and Ownership of Storage _Tank. The Authority agrees to commence
construction of the Tank Project as soon as possible after the Implementation Date, except if
circumstances beyond its control limit its ability to issue or preclude the issuance of the Tank
Project Bonds, or to bid and construct the Tank Project. The Authority shall own the Storage
Tank and all capacity therein for treated water storage and shall provide all maintenance and
operation services for the Storage Tank and the Tank Site at its sole cost and expense. The
Parties acknowledge that the Tank Project anticipates and will be designed to accommodate and
connect to future water storage tank(s) to be located uphill from the Storage Tank.
13. Prior Agreements Not Fully Superseded; No Cross - Defaults. Except to the extent
that Section 2(b) and Section 5 of the Service Agreement are amended and /or superseded by the
express terms of this Tank Agreement, the Service Agreement and any other agreement
referenced in this Tank Agreement that was executed prior to the Effective Date ( "Prior
Agreement(s) ") shall continue in effect in accordance with such agreements' terms, and the
parties thereto shall maintain all of their rights, duties and obligations set forth therein.
Notwithstanding the foregoing, and not withstanding anything to the contrary in any Prior
Agreement, no default under this Tank Agreement shall be construed to be a default under any
Prior Agreement and no default under any Prior Agreement shall be construed to be a default
under this Tank Agreement.
14. Default; Remedies; Rights of Limited Parties and Intended Beneficiaries.
a. Default of a Party. A default by a Party is a failure by such Party to fully perform
any of its duties and obligations set forth in this Tank Agreement.
b. Default of either Limited Party. The obligations of BNP and VMD under this
Tank Agreement are expressly limited to those set forth in Section 9.a above, and
BNP and VMD shall have no liability arising pursuant to this Tank Agreement to
any Party or any Intended Beneficiary except to the extent of BNP's or VMD's
failure to fully perform their respective duties and obligations as expressly set
forth in Section 9.a above.
c. Cure Period. Default will not occur until a non - defaulting Party provides the
defaulting Party thirty (30) days written notice describing the default, and the
defaulting Party is given the opportunity during such time to cure the default.
d. Remedies.
i. Parties and Limited Parties. Upon the occurrence and continuance of an
uncured default, any non - defaulting Party and /or any non - defaulting
Limited Party shall, except to the extent limited by an express provision of
this Tank Agreement, be entitled to enforce the provisions and any remedy
provided in this Tank Agreement at law or in equity, and relief in the
nature of injunctive relief, mandamus, specific performance (if allowed by
law against any local government that is a Party) or damages or a
combination thereof may be awarded. The remedies available shall
{00268750.DOC / 7) 14
include, but not be limited to; _ex parte applications for temporary
restraining orders; preliminary in and permanent injunctions and
actions for specific, performance (if allowed by law ;against any local
government that is a Party) of the defaulting Party's or Limited Party's
obligations and /or damages. All of the remedies permitted or available
under this Tank Agreement; at law, by statute: or in equity , shall be
cumulative and not in the alternative, and - invocation of any such right or
remedy shall not constitute >a waiver or election -of remedies with - respect
to any other permitted or available right or remedy. Additionally, in
consideration of this Tank Agreement constituting an intergovernmental
Agreement by and among Avon, the Authority, TCMD and VMD, each
such governmental or quasi- governmental entity expressly affirms its
intent that `the obligations of each such governmental or quasi=
governmental 'entity ate to be enforced in accordance with their terms.
i i . Intended,Beneficiaries..
1. The Developer Affiliates shall have the right to enforce the
Authority's obligations pursuant to Section 8,, together with, the
right to enforce any right of Master Developer and pursue any
remedy available to Master Developer in the :event of a default by
another of the Parties.
2. Except with respect to those expressly stated rights the Intended
Beneficiaries have under this Tank Agreement, no Developer
Affiliate 'is subject to any obligation nor has it acquired any
enforcement right or remedy arising solely, under this Tank
Agreement.
15. Assi ng_ ment. Any Party or Limited Party may assign its rights, duties and
obligations under this Tank Agreement upon the prior written consent of the other Parties and the
Limited Parties, such consent not to be unreasonably withheld, conditioned or delayed. In
addition, the assignor shall provide the other Parties and Limited Parties with copies of all
relevant documentation' of such assignment.
16. No Waiver; Governmental Immunity; Annual Appropriation. Any Party's or
Limited Party's waiver of, or failure to pursue any available remedy for, a breach of any term or
provision of this Tank Agreement shall not operate or be construed as a waiver of any
subsequent breach by any Party or Limited Party. Additionally, and notwithstanding any
provision of this Tank Agreement to the contrary, no term or condition of this Tank Agreement
shall be construed or interpreted as a waiver, either express or implied, of any of the immunities,
rights, benefits or protection provided to TCMD, VMD, the Authority and Avon under the
Colorado Governmental Immunity Act, §§ 24 -10 -101 et seq., C.R.S. The obligations of the
Authority and Avon hereunder are subject to the annual appropriation of funds necessary for the
performance thereof, which appropriations shall be made in the "sole discretion of the Authority's
Board of Directors or the Avon Town Council as applicable.
(00268750.DOC / 7) 15
17. Amendment; Modification. This Tank Agreement may be modified only by the
signed, written agreement of the Parties or ;their respective agents, successors and assigns. The
prior written consent of the Limited Parties shall not be required except to the :extent the
proposed modification directly and expressly affects a right or obligation of the Limited Parties,
and such consent shall not be unreasonably withheld, conditioned or delayed. Additionally, the
Parties and the Limited Parties acknowledge that the TCMD Bond Reissue documentation is
anticipated to preclude TCMD and /or VMD from entering into any modification of this Tank
Agreement without the prior written consent of BNP, which consent BNP shall not unreasonably
withhold, condition or delay.
18. Further Cooperation. The Parties and Limited Parties shall reasonably cooperate
with one another to effectuate the intent of the Parties and Limited Parties as described herein,
including without limitation, executing any and all further instruments and documents, and doing
and performing such further and additional acts and things necessary or proper to effectuate or
further evidence the terms and provisions of this Tank Agreement.
19. Proper Authority. The Parties and the Limited Parties represent and warrant that
they have full right and capacity to enter into this Tank Agreement and have taken any and all
actions required and have any and all necessary approvals to enter into this Tank Agreement.
20. Attorneys' Fees. The prevailing Party or Limited Party in any action concerning
the enforcement or interpretation of this Tank Agreement shall be awarded, in addition to any
damages or other form of relief awarded, all reasonable costs incurred in connection therewith,
including attorneys' fees and costs through all appeals.
21. Governing Law. This Tank Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado. Any action brought to enforce this Tank
Agreement or arising out of this Tank Agreement shall be brought in the State of Colorado,
Eagle County District Court, as the exclusive venue and forum.
22. Severability. If any term, provision, covenant or condition of this Tank
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Tank Agreement shall, unless amended or modified as provided in
Section 17 above, continue in full force and effect so long as enforcement of the remaining
provisions would not deprive the Party(ies) or Limited Parties against whom they are being
enforced of a material benefit of the bargain under this Tank Agreement or otherwise be
inequitable to such Party or Limited Party under the facts and circumstances then pertaining.
23. Entire Agreement. From and after the Implementation Date, this Tank Agreement
shall be construed to constitute the entire agreement between the Parties and Limited Parties with
respect to the matters set forth herein and to supersede all previous oral or written
communications, representations, understandings, undertakings, or agreements between the
Parties and Limited Parties, except as otherwise stated herein, specifically including Section 3 of
the Term Sheet except as it pertains to the 1041 Permit.
t00268750.DOC / 71 16
24. .Counterpart - Execution.: This 'Tank Agreement may be signed in 'multiple
counterparts; with facsimile• signatures permitted, and each counterpart when taken with the.other
executed °counterpart shall constitute a binding agreement among the Parties and the Limited
Parties as of -the Effective Date (with respect to those provisions that are effective as of the
Effective Date) of as of the Implementation Date (with respect to those provisions that are
effective only upon occurrence of the Implementation Date).
25. Notices. .All approvals, consents, .notices, .objections; and other communications
(a "Notice" and, collectively, "Notices ") under this Tank Agreement shall be in writing and, shall
be deemed properly given and received when personally delivered, or sent by overnight courier,
or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to
the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as
set forth below. Notices shall be deemed °effective: =(i) if personally .delivered, When actually
given and received; or.(ii) if by overnight courier service',T:on the next business day - following
deposit with such courier service; or (iii) if by email :(pdf), on the - -same day if sent before 5:00
P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or
(iv) if by registered or certified United States mail, postage prepaid, three (3) business days after
mailed. All Notice's shall be addressed as follows (or to such other address as may be
subsequently specified by Notice given in accordance" herewith):
To the Authori
Upper Eagle Regional Water Authority
846 Forest Road
Vail, CO 81657
Attention: General Manager
Telephone: (970) 477 -5444
Email: lbrooks @erwsd. org
With a required copy to:
Collins, Cockrel & Cole, P.C.
390 Union Boulevard, Suite 400
Denver, Colorado 80228 -1556
Attn: Jim Collins
Telephone: (303) 986 -1551
Email: jcollins @cccfirm.com
To Avon:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attention: Town Manager
Telephone: (970) 748 -4452
Email: vegger @avon.org
(00268750.DOC / 7) 17
With a required copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, Colorado 81620
Attn: Town Attorney
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987 -0835
Email: Ijacoby@sdmsi.com
With a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202 -1214
Attn: Mary Jo Dougherty
Telephone: (303) 592 -4380
Email: mjdougherty @mcgeadysisneros.com
To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
Telephone: (970) 949 -6776
Email: marcuslindholm @traercreek.com
With a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 3 03.825.8400
Email: munsey @ottenjohnson.com
{00268750.DOC / 7} 18
To Traer Creek -RP LLC:
c/o Traer Creek LLC
[Utilizing the Master Developer contact information set forth above.]
With a required copy o:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers
Telephone: 303.825.8400
Email: munsey @ottenjohnson.com
To the Limited Parties:
The Village Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987 -0835
Email: Ijacoby@sdmsi.com
With a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202 -1214
Attn: Mary Jo Dougherty
Telephone: (303) 592 -4380
Email: mjdougherty @mcgeadysisneros.com
BNP Paribas
Value Preservation Group
787 Seventh Avenue, 9th Floor
New York, NY 10019
Attn: Barbara Eppolito
Telephone: (212) 841 -3607
Email: Barbara.eppolito @bnpparibas.com
With a required copy to:
Faegre Baker Daniels
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203 -4532
Attn: Brandee Caswell
Telephone: (303) 607 -3826
{00268750.DOC / 71 19
Email: Brandee.caswell @faeg"rebd.com
To the Intended. Beneficiaries'
Developer Affiliates
c/o Traer Creek LLC
[Utilizing the Master Developer contact information set forth above.]
26. Escrow; Escrow Instructions. As quickly as is practicable after the Parties' and
Limited Parties' mutual approval and execution of this Tank Agreement, each Party and the
Limited Parties will deposit a signed original of such documents as each is required to deposit in
the Escrow subject to the Escrow Instructions.
27. Rights Upon Occurrence. of Outside Date. If the Outside Date occurs without the
Implementation Date having occurred, this Tank Agreement shall be deemed void ab initio and
of no further force or effect;_ provided, however, to the extent the failure of the Implementation
Date to occur results from a failure of a Party or Limited Party to perform (whether by action or
inaction) an obligation of such Party or Limited Parties that arose under this Tank Agreement as
of the Effective Date, the other Parties, Limited Parties and any applicable Intended Beneficiary
may pursue all of their respective remedies under this Tank Agreement with respect to such
breach, which remedial rights the Parties and the Limited Parties expressly intend to survive and
be legally enforceable notwithstanding this Tank Agreement being otherwise deemed inoperative
under the circumstance described above.
28. Successors and Assigns. This Tank Agreement shall be binding upon the Parties,
the Limited Parties and upon their heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties and
by the Limited Party as of the Effective Date.
PARTIES:
THE AUTHORITY:
THE UPPER EAGLE REGIONAL WATER
AUTHORITY, a quasi- municipal corporation and
political subdivision of the State of Colorado
By:_
Name:
Title:
{00268750.DOC / 7} 20
AVON:
THE TOWN OF AVON, a home rule
municipal corporation of the State of
Colorado
By:
Name:
Title.
TCMD:
TRAER CREEK METROPOLITAN
DISTRICT, a quasi - municipal corporation
and political subdivision of the State of
Colorado
By:
Name: Daniel J. Leary
Title: President
Attest:
Secretary
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited
liability company
By:
Name: Marcus Lindholm
Title: Manager
{00268750.DOC / 7} 21
{00268750.DOC / 7} 22
TCRP:
TRAER CREEK -RP LLC, a Colorado
limited liability company
By: TRAER CREEK LLC, a Colorado
limited liability company, its Manager
By
Name: Marcus Lindholm
Title: Manager
LIMITED PARTIES:
VMD:
THE VILLAGE METROPOLITAN
DISTRICT, a quasi - municipal corporation
and political subdivision of the State of
Colorado
By:
Name: Daniel J. Leary
Title: President
Attest:
Secretary
BNP PARIBAS, a financial institution
organized under the laws of the Republic of
France
By:
Name:
Title:
By:
Name:
Title:
{00268750.DOC / 7} 23
Exhibit A
Legal Description of the Property
[Source: Exhibit A to Service Agreement, May 15, 1997]
(00268750.DOC / 71 A -1
Exhibit B
Special Warranty Deed to the Tank Site
{00268750.DOC / 7} B -1
Parties;
Exhibit C
Design Costs Agreement
AGREEMENT
FOR PAYMENT OF COSTS OF
WATER STORAGE TANK DESIGN
Upper Eagle Regional Water Authority (the "Authority")
# Traer Creek Metropolitan District ( "TCMD ")
Terms:
i, In satisfaction of TCMD's obligation under the Traer Water Storage Tank
Agreement to be entered into by and among the Authority, the District, the Town
of Avon, Colorado, and Traer Creek LLC (the "Storage Tank Agreement ") to
fund certain costs related to the design, plans and specifications (`Engineering &
Design Work ") for the 2.0 million gallon water storage tank (the "Storage Tank ")
to be constructed in accordance with the Storage Tank Agreement, TCMD shall
wire trasfer $66,585 to the Authority to be held by the Authority as a Restricted:
Fund Account to be disbursed by the Authority for the costs incurred for the
Engineering & Design Work and for no other purpose or Authority expense.
The Authority will enter into such agreements with engineers and other
consultants ( "Consultants ") as are necessary to °complete the Engineering &
Design Work and shall own all work product pt duced by the Consultants.
2, TCMD shall have no obligations under the agreements between the Authority and
the Consultants.
3. The Authority will submit to TCMD (or designated TCMD representative) for
TCMD's review and approval copies of all Consultant invoices, which approval
shall not be unreasonably withheld. TCMD's approval or objection must be made
and communicated to the Authority within five (5) business days or TCMD's
waiver of objection shall be presumed. Upon TCMD's written approval of, or
waiver of objection to, any Consultant invoice, the Authority Shall release the
applicable amount from the Restricted Fund Account for payment of same. In the
event tbAtTCMD objects to or otherwise disputes any invoice, 1 e Authority shall
prow &e ch information and/or. documentation as may be reasonably requested
by TCMD in support of the amount requested for payment and the Parties shall
reasonably cooperate to resolve such objection or dispute.
4. Upog,expenditure and release oral) of the Restricted Fund Account, TCMD's
funding obligation for the Engineering & Design Work shall be satisfied and any
Engineering & Design Work costs in excess of $66,585 shall be paid by-the
Authority, subject to the right of the Authority to [reimbursed for its
expettditiiies for such purposes from the proceeds 4 ny bonds issued by the
(00269750.DOC /7)1007365.7 C- I
Authority to pay the costs of construction of the Storage Tank; provided,
however, that the right of the Authority and the District to receive reimbursement
for Design & Engineering Work costs from such bond proceeds shall be subject to
the terms and conditions of the Storage Tank Agreement and the bond documents.
5. If the Engineering & Design Work costs are less than $66,585, the remainder of
the Restricted Fund Account shall be released to the Authority for costs related to
the constriction of the Storage Tank.
5.. The Authority shall not be obligated to pay any of the costs of the Engineering &
Design Work from its own funds, until and unless (i) the District transfers
$66,585 to the Authority in accordance with the terms of this agreement and (ii)
the Storage Tank Agreement is fully executed and delivered to the Authority,-
This Agreement is entered into and effective as of March 2012.
Traer Creek Metropolitan District:
By' J. awyj
Its: President
:Upper Eagle Regional Water Authority.,
By Linn Bran
I General Manager
{00268750.DOC / 711007365,7 C-2
Exhibit D -1
Special Warranty Deed
TCMD to Avon
{00268750.DOC / 7)1007365.7 D- I
�k
Exhibit D -2
Special Warranty Deed
Avon to Authority
C
{00268750.DOC / 7)1007365.7 D -2
Exhibit E
Pledge Agreement
100268750.DOC / 7} E -1
Exhibit F
Easement Agreement
{00268750.DOC / 7} F -1
SPECIAL WARRANTY DEED
[Statutory Form — C.R.S. § 38 -30 -115]
TRAER CREEK -RP LLC, a Colorado limited liability company, whose street
address is 101 Fawcett Road, Suite 210, Avon, Colorado 81620, County of Eagle, State
of Colorado ( "Grantor "), for the consideration of ten dollars ($10.00) in hand paid and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, bargains, sells, conveys and confirms unto UPPER
EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the State of
Colorado, whose street address is 846 Forest Road, Vail, CO 81657, County of Eagle,
State of Colorado ( "Grantee "), and Grantee's successors and assigns forever, a fee
simple determinable estate, for so long as the Property is used for the
construction/operation of a water storage tank, but after seventy -five (75) years this
restriction shall terminate, in the following real property ( "Property "):
Tract J, THE VILLAGE (at AVON) FILING 4 according to the plat
recorded December , 2012, at Reception No. ,
COUNTY OF EAGLE, STATE OF COLORADO.
TOGETHER WITH all its appurtenances, and the reversion and reversions, remainder
and remainders, rents, issues and profits thereof, and all the estate, right, title, interest,
claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the
Property, subject to all matters of record, but free and clear of all liens and encumbrances
except as noted below.
TO HAVE AND TO HOLD the Property above bargained and described with the
appurtenances, unto Grantee and Grantee's successors and assigns forever. Grantor, for
Grantor and Grantor's successors and assigns, does covenant and agree that Grantor shall
and will WARRANT AND FOREVER DEFEND the above bargained Property in the
quiet and peaceable possession of Grantee and Grantee's successors and assigns, against
all and every person or persons claiming the whole or any part of the Property, by,
through or under Grantor, except taxes and assessments for the current year, payable in
2013; and < TBD >
IN WITNESS WHEREOF, the Grantor has executed this Special Warranty Deed
on the date set forth above.
GRANTOR:
TRAER CREEK -RP, LLC
By:
Title:
{00287064.D0CX / 21
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2012, by as of TRAER CREEK -RP LLC, a
Colorado limited liability ,company.
Witness my hand and official seal.
My commission expires:
Notary Public
{00287064.DOCX / 21
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this day of December, 2012, is from the Traer
Creek Metropolitan District, a quasi municipal corporation and political subdivision of the State
of Colorado ( "Grantor "), to the Town of Avon,,a home rule municipal corporation of the State of
Colorado ( "Grantee "), whose address is P.O. Box 975, One Lake Street, Avon, Colorado 81620.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants, bargains, sells and conveys to Grantee all of Grantor's
right, title and interest in and to the following described water rights and related interests located
in Eagle County, Colorado (the "Water Rights "), free and clear of all liens and encumbrances:
(a) the water rights described in Exhibit A, together with all associated rights and
benefits of the plan for augmentation and exchange decreed by the District Court in and for
Water Division No. 5 in Case No. 97CW306 (the "Augmentation Plan "), together with all
associated changes of water rights decreed therein;
(b) the historic consumptive use credits dedicated to the Augmentation Plan and
described in the attached Exhibit B; and
Together with all diversion ditches, pipelines, headgates and structures, pumps, casings
and other improvements and easements associated or used in connection with the Water Rights
(including without limitation rights of access thereto) as becomes necessary from time to time to
provide water service to the Property described in the attached Exhibit C ( "Appurtenances "),
reserving unto Grantor all rights of access and use of the Appurtenances to the extent not
required to provide municipal water service or raw water irrigation service for the Property.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
TRAER CREEK METROPOLITAN DISTRICT,
a quasi municipal corporation and political subdivision
of the State of Colorado
By: _
Name:
Title:
{00305850.DOCX /157732
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The :foregoing instrument was acknowledged before me this day of
2012 by on behalf of the Traer
Creek Metropolitan District.
Witness my hand and official seal. My commission expires:
[SEAL]
Notary Public
{00305850.DOCX / 157732
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EXHIBIT C
PARCEL 1 DESCRIPTION
That part of the E 1/2 of Section 12, Township 5 South, Range 82 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey and Survey of said
Township and Range, accepted September 7, 1977 by the Department of the Interior Bureau of
Land Management in Washington, D.C., together with parts of Sections 7, 8, 9 & 17, Township
5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to
the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the
Department of the Interior General Land Office in Washington, D.C., described as a whole as
follows:
Beginning at the Northwest corner of said Section 7; thence along the northerly line of said
Section 7, N88 °49'24 "E 2791.46 feet, to the North 1/4 corner of said Section 7; thence,
departing said northerly line, along the easterly line of the NW 1/4 of said Section 7,
S000 11' 12 "E 2621.00 feet, to the northerly right -of -way line of Interstate Highway No. 70, as
described in the deed recorded in Book 223 at Page 982 in the office of the Eagle County,
Colorado, Clerk and Recorder; thence, along said northerly right -of -way line, S69 °28'35 "E
196.48 feet, to the northerly line of the SE 1/4 of said Section 7; thence, along said northerly line,
N89 050'40 "E 2572.71 feet, to the West 1/4 corner of said Section 8; thence, along the westerly
line of said Section 8, NOVI O'53 "W 2738.19 feet to the Northwest corner of said Section 8;
thence, along the northerly line of said Section 8, N88 040'41 "E 2758.98 feet, to the North 1/4
corner of said Section 8; thence, continuing along said northerly line, N88 °42'58 "E 850.00 feet;
thence, departing said northerly line, S56 °30'00 "E 1274.62 feet; thence S17 °38'30 "E 1593.20
feet; thence S27 °39'30 "W 2121.59 feet; thence South 899.93 feet; thence East 2595.53 feet, to
the easterly line of the SW 1/4 SW 1/4 of said Section 9; thence, along said easterly line
SO] 033'13"W 603.34 feet, to the Southeast corner of said SW 1/4 SW 1/4; thence, along the
southerly line of said Section 9, N89 °55'04 "W 1371.96 feet, to the Southwest corner of said
Section 9; thence, along the easterly line of said Section 17, S01 °41'49 "E 170.00 feet, to the
centerline of the Eagle River; thence the following four courses along said centerline (Filum
aquce): (1) N89°24'49 "W 1037.90 feet; (2) N86 007'49 "W 472.00 feet; (3) N89 °29'49 "W
538.00 feet; (4) S82"13'1 1"W 595.15 feet, to the westerly line of the NE 1/4 of said Section 17;
thence, along said westerly line, N00 °20'55 "W 227.74 feet, to the North 1/4 corner of said
Section 17; thence, along the northerly line of said Section 17, S89 °23'36 "E 1316.69 feet, to the
Southwest corner of the SE 1/4 SE 1/4 of said Section 8; thence, along the westerly line of said
SE 1/4 SE 1/4, N00 051'07 "E.1398.90 feet, to the SE 1/16 corner of said Section 8; thence, along
the southerly line of the NW 1/4 SE 1/4 of said Section 8, N89 °54'54 "W 1333.58 feet, to the CS
1/16 corner of said Section 8; thence, along the southerly line of the NE 1/4 SW 1/4 of said
Section 8, N89 °58135 "W 1366.46 feet, to the SW 1/16 corner of said Section 8; thence, along the
easterly line of the SW 1/4 SW 1/4 of said Section 8, S00 °01'37 11E 1376.08 feet, to the Southeast
corner of said SW 1/4 SW 1/4; thence, along the southerly line of said Section 8, N89 °32'28 "W
529.28 feet, to the northerly right -of -way line of the Denver and Rio Grande Western Railroad;
thence the following ten courses along said northerly right -of -way line: (1) 132.91 feet along the
arc of a curve to the right, having a radius of 2033.48 feet, an internal angle of 03 °44'42 ", and a
chord that bears N70 °30'09 "W 132.89 feet; (2) N68 °37'48 "W 527.88 feet; (3) 231.12 feet along
the arc of a curve to the left, having a radius of 5779.70 feet, an internal angle of 02 °17'28 ", and
100305850.DOCX /157732
a chord that bears N69 °46'32 "W 231.09 feet; (4) S00 °14131 11E 21.20 feet; (5) 1142.50 feet along
the arc of a curve to the left, having a radius of 5759.70 feet, an internal angle of 11'21'55", and
a chord that bears N76 °32'02 "W 1140.63 feet; (6) N82 °1 3'00 "W 1136.53 feet; (7) 548.06 feet
along the arc of a curve to the right, having a radius of 1880.00 feet, an internal angle of
16'42'10", and a chord that bears N73'5 1'55"W 546.11 feet; (8) N009 2'23"W 22.04 feet; (9)
28.04 feet along the arc of a curve to the right, having a radius of 1860.00 feet, an internal angle
of 00 °51'50 ", and a chord that bears N6 4 °47'55 "W 28.04 feet; (10) N64 °22'00 "W 377.16 feet;
thence, departing said northerly right -of -way line, S25'3 8'00"W 100.00 feet, to the southerly
right -of -way line of the Denver and Rio Grande Western Railroad, also being on the existing
Town of Avon Boundary; thence, along said southerly right -of -way line and existing Town of
Avon Boundary the following three courses along the northerly line of the parcel annexed to the
Town of Avon: by Ordinance 86 -10: (1) N64 °22'00 "W 2064.00 feet; (2) 968.59 feet along the
arc of a curve to the left, having a radius of 34327.50 feet, an internal angle of 01 °37'00 ", and a
chord that bears N65 °1 0'30 "W 968.56 feet; (3) N65 059'00 "W 527.60 feet; thence, continuing
along said southerly right -of -way line and existing Town of Avon Boundary the following
course along the northerly line of the parcel annexed to the Town of Avon by Ordinance 81 -38,
N65 058'08 "W 677.83 feet; thence, departing said southerly right -of -way line and continuing
along the boundary of the parcel annexed to the Town of Avon by Ordinance 81 -38,
N24 °0 1'52 "E 100.00 feet, to the northerly right -of -way line of the Denver and Rio Grande
Western "Railroad and the Southeast corner of Lot 22, Benchmark of Beaver Creek; thence,
departing said northerly right -of -way line and continuing along the existing Town of Avon
Boundary the following two courses along the easterly line of the parcel originally incorporated
as the Town of Avon as defined in Ordinance 78 -4: (1) NI 8'59'40"E 995.99 feet; (2) a
calculated distance and bearing of N23 °55'02 "W 268.23 feet (record distance and bearing of
N2501 0'03"W 235.72 feet), to the southerly line of the NE 1/4 NE 1/4 of said Section 12;
thence, along said southerly line and existing Town of Avon Boundary the following course
along the southerly line of the parcel annexed to the Town of Avon by Ordinance 81 -20, a
calculated distance and bearing of S89 °58'41 "E 1192.32 feet (record distance and bearing of
S89 °57'07 "E 1184.14 feet), to the westerly line of said Section 7; thence, along said westerly
line and existing Town of Avon Boundary the following course along the easterly line of the
parcels annexed to the Town of Avon by Ordinance 81 -20 and Ordinance 81 -34, a measured
distance and bearing of N009 1'27"W 1321.54 feet (record distance and bearing of
N00 °10'14 "W 660.82 feet per Ordinance 81 -20 and record distance and bearing of
N00 °10' 14 "W 660.83 per Ordinance 81 -34), to the point of beginning, containing 967.07 acres,
more or less,
EXCEPTING FROM the foregoing parcel description all portions of the described property that
constitute the Interstate Highway No. 70 Right -of -Way and the Denver Rio Grande Western
Railroad Right -of -Way, which portions contain 99.24 acres, more or less. The net area of the
parcel being included in this annexation is 867.83 acres, more or less.
{00305850.DOCX /; 57732
PARCEL 2 DESCRIPTION
That part of Sections 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as follows:
Beginning at the North 1/4 corner of said Section 8; thence along the northerly line of said
Section 8, N88 °42'58 "E 850.00 feet, to the True Point of Beginning; thence, continuing along
said northerly line, N88 °42'58 "E 1920.72 feet, to the Northwest corner of said Section 9; thence,
along the northerly line of said Section 9, N83 °29'30 "E 2773.27 feet, to the North 1/4 corner of
said Section 9; thence, continuing along said northerly line, N83 °24' 12 "E 2772.60 feet, to the
Northwest corner of said Section 10; thence, along the northerly line of said Section 10,
N86 039'24 "E 2681.23 feet; thence, departing said northerly line, SO1 034'07 "W 2699.66 feet, to
southerly line of the SE 1/4 NW 1/4 of said Section 10; thence, along the southerly line of said
SE 1/4 NW 1/4, S86 °32'23 "W 1304.06 feet, to the Center West 1/16 corner of said Section 10;
thence, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, SO1 °32'50 "W 1349,33
feet, to the Southwest 1/16 corner of said Section 10; thence, -along the southerly line of said NW
1/4 SW 1/4, S86 032'47 "W 1384.91 feet, to the South 1/16 corner of said Sections 9 & 10;
thence, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, S77 °10' 15 "W 1413.37
feet, to the Southeast 1/16 corner of said Section 9; thence, along the easterly line of the SW 1/4
SE 1/4 of said Section 9, SOl °33'02 "W 1475.32 feet, to the East 1/16 corner of said Section 9
and Section 16 of said Township 5 South, Range 81 West of the Sixth Principal Meridian;
thence, along the southerly line of said SW 1/4 SE 1/4, S72 °20'31 "W 1450.43 feet, to the South
1/4 corner of said Section 9; thence, along the westerly line of said SW 1/4 SE 1/4, NO1 °34'18 "E
1601.52 feet, to the Center South 1/16 corner of said Section 9; thence, along the southerly line
of the NE 1/4 SW 1/4 of said Section 9, S86 007'30 "W 1378.19 feet, to the Southwest 1/16 corner
of said Section 9; thence, along the easterly line of the SW 1/4 SW 1/4 of said Section 9,
SO1033'13"W 903.02 feet, to the existing Town of Avon Boundary; thence, departing said
easterly line, the following five courses along said existing Town of Avon Boundary: (1) West
2595.53 feet; (2) North 899.93 feet; (3) N27 °39'30 "E 2121.59 feet; (4) N17 038'30 "W 1593.20
feet; (5) N56 °30'00 "W 1274.62 feet, to the True Point of Beginning, containing 922.16 acres,
more or less.
{00305850.DOCX /,157732
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this day of December, 2012, is from the Town
of Avon, a home rule municipal corporation of the State of Colorado ( "Grantor "), to the Upper
Eagle Regional Water Authority, a quasi municipal corporation and political subdivision of the
State of Colorado ( "Grantee "), whose address is 846 Forest Road, Vail, Colorado 81657.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants,` bargains, sells and conveys to Grantee all of Grantor's
right, title and interest in and to the following described water rights and related interests located
in Eagle County, Colorado (the "Water Rights "), free and clear of all liens and encumbrances:
(a) the water rights described in Exhibit A, together with all associated rights and
benefits of the plan for augmentation and exchange decreed by the District Court in and for
Water Division No. 5 in Case No. 97CW306 (the "Augmentation Plan"), together with all
associated changes of water rights decreed therein;
(b) the historic consumptive use credits dedicated to the Augmentation Plan and
described in the attached Exhibit B; and
Together with all diversion` ditches, pipelines, headgates and structures, pumps, casings
and other improvements and easements associated or used in connection with the Water Rights
(including without limitation rights of access thereto) as becomes necessary from time to time to
provide water service to the Property described in the attached Exhibit C ( "Appurtenances "),
reserving unto Grantor rights of access and use of the Appurtenances to the extent not required to
provide municipal water service for the Property and also reserving unto Grantor up to 74.3
consumptive acre feet from the Water Rights to irrigate with raw water up'to 38.27 acres of
public lands and to replace out -of- priority evaporation from lakes on the Property with a total
surface area of up to 2.7 acres in accordance with Schedules A, B and C of the Augmentation
Plan.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
The foregoing conveyance is subject to a right of reverter to Grantor in the event the
Grantee fails to provide water service to the Property (excepting temporary cessation of water
service due to reasonable maintenance requirements or emergency conditions or actions by the
Grantee as authorized by its Rules and Regulations).
(00305853.DOCX /) 57731
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Avon.
TOWN OF AVON, a home rule municipal of the
State of Colorado
By: _
Name:
Title:
The foregoing instrument was acknowledged before me this day of
, 2012 by on behalf of the Town of
Witness my hand and official seal. My commission expires:
[SEAL]
Notary Public
{00305853.DOCX / }57731
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EXHIBIT C
PARCEL 1 DESCRIPTION
That part of the E 1/2 of Section 12, Township 5 South, Range 82 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey and Survey of said
Township and Range, accepted September 7, 1977 by the Department-of the Interior Bureau of
Land Management in Washington, D.C., together with parts of Sections 7, 8; 9 & 17, Township
5 South, Range 81 West of the Sixth Principal Meridian, Eagle County, Colorado, according to
the Dependent Resurvey of said Township and Range, accepted November 1, 1943 by the
Department of the Interior General Land Office in Washington, D.C., described as a whole as
follows:
Beginning at the Northwest corner of said Section 7; thence.:along the northerly line of said
Section 7, N88 °49'24 "E 2791.46 feet, to the North 1/4 corner of said Section 7; thence,
departing said northerly line, along the easterly line of the NW 1/4 of said Section 7,
S000 11' 12 "E 2621.00 feet, to the northerly right -of -way line of Interstate Highway No. 70, as
described in the deed recorded in Book 223 at Page 982 in the office of the Eagle :County,
Colorado, Clerk and Recorder; thence, along said northerly right -of- way line, S6028'35 "E
196.48 feet, to the northerly line of the SE 1/4 of said Section 7; thence, along said northerly line,
N89 050'40 "E 2572.71 feet, to the West 1/4 corner of said Section 8; thence, along the westerly
line of said Section 8, N00 °10'53 "W 2738.19 feet to the Northwest corner of said Section 8;
thence, along the northerly line of said. Section 8, N88 °40'41 "E 2758.98 feet, to the North 1/4
corner of said Section 8; thence, continuing along said northerly line, N88 °42'58 "E 850.00 feet;
thence, departing said northerly line, S56 °30'00 "E 1274.62 feet; thence S17 °38'30 "E 1593.20
feet; thence S27 °39'30 "W 2121.59 feet; thence South 899.93 feet; thence East 2595.53 feet, to
the easterly line of the SW 1/4 SW 1/4 of said Section 9; thence, along said easterly line
SO1 °33' 13 "W 603.34 feet, to the Southeast corner of said SW 1/4 SW 1/4; thence, along the
southerly line of said Section 9, N89 °55'04 "W 1371.96 feet, to the Southwest corner of said
Section 9; thence, along the easterly line of said Section 17, SO1 °41'49 "E 170.00 feet, to the
centerline of the Eagle River; thence the following four courses along said centerline (Filum
aquce): (1) N89 °24'49 "W 1037.90 feet; (2) N86 °07'49 "W 472.00 feet; (3) N89 °29'49 "W
538.00 feet; (4) S82 °33' 11"W 595.15 feet, to the westerly line of the NE 1/4 of said Section 17;
thence, along said westerly line, N00 °20'55 "W 227.74 feet, to the North 1/4 corner of said
Section 17; thence, along the northerly line of said Section 17, $89 °23'36 "E 1316.69 feet, to the
Southwest corner of the SE 1/4 SE 1/4 of said Section 8; thence, along the westerly line of said
SE 1/4 SE 1/4, N00 °5 1'07 "E 1398.90 feet, to the SE 1/16 corner of said Section 8; thence, along
the southerly line of the NW 1/4 SE 1/4 of said Section 8, N89 °54'54 "W 1333.58 feet, to the CS
1/16 corner of said Section 8; thence, along the southerly line of the NE 1/4 SW 1/4 of said
Section 8, N89 °58'35 "W 1366.46 feet, to the SW 1/16 corner of said Section 8; thence, along the
easterly line of the SW 1/4 SW 1/4 of said Section 8, S00 °01'37 "E 1376.08 feet, to the Southeast
corner of said SW 1/4 SW 1/4; thence, along the southerly line of said Section 8, N89 °32'28 "W
529.28 feet, to the northerly right -of -way line of the Denver and Rio Grande Western Railroad;
thence the following ten courses along said northerly right -.of -way line: (1) 132.91 feet along the
arc of a curve to the right, having a radius of 2033.48 feet, an internal angle of 03 °44'42 ", and a
chord that bears N70 030'09 "W 132.89 feet; (2) N68 °37'48 "W 527.88 feet; (3) 231.12 feet along
the arc of a curve to the left, having a radius of 5779.70 feet, an internal angle of 02 °17'28 ", and
{00305853.DOCX /)57731
a chord that bears N69 °46'32 "W 231.09 feet; (4) S00 °14'31 "E 21.20 feet; (5) 1142.50 feet along
the arc of a curve to the left, having a radius of 5759.70 feet, an internal angle of 11 °21'55 ", and
a chord that bears N76 °32'02 "W 1140.63 feet; (6) N82 °13'00 "W 1136.53 feet; (7) 548.06 feet
along the arc of a curve to the right, having a radius of 1880.00 feet, an internal angle of
16'42'10", and a chord that bears N73'5 1'55"W 546.11 feet; (8) N00° 12'23 "W 22.04 feet; (9)
28.04 feet along the arc of a curve to the right, having a radius of 1860.00 feet, an internal angle
of 00 °51'50 ", and a chord that bears N64 047'55 "W 28.04 feet; (10) N64 °22100 "W 377.10 feet;
thence, departing said northerly right -of -way line, S25 038'00 "W 100.00 feet, to the southerly
right -of -way line of the Denver and Rio Grande Western Railroad, also being on the existing
Town of Avon Boundary; thence, along said "southerly right -of -way line and existing Town of
Avon Boundary the following three courses along the northerly line of the parcel annexed to the
Town of Avon: by Ordinance 86 -10: (1) N64 °22'00 "W 2064.00 feet; (2) 968.59 feet along the
arc of a curve to the left, having a radius of 34327.50 feet, an internal angle of 01 °37'00 ", and a
chord that bears N65 °10'30 "W 968.56 feet; (3) N65 059'00 "W 527.60 feet; thence, continuing
along said southerly right -of -way line and existing Town of Avon Boundary the following
course along the northerly line of the parcel annexed to the Town of Avon by Ordinance 81 -38,
N65 058'08 "W 677.83 feet; thence, departing said southerly right -of -way line and continuing
along the boundary of the parcel annexed to the Town of Avon by Ordinance 81 -38,
N2400 1'52"E 100.00 feet, to the northerly right -of- -way line of the Denver and Rio Grande
Western Railroad and the Southeast corner of Lot 22, Benchmark at Beaver Creek; thence,
departing said northerly right -of -way line and continuing along the existing Town of Avon
Boundary the following two courses along the easterly line of the parcel originally incorporated
as the Town of Avon as defined in Ordinance 78 -4: (1) N18 °59'40 "E 995.99 feet; (2) a
calculated distance and bearing of N23 055'02 "W 268.23 feet (record distance and bearing of
N25 010'03 "W 235.72 feet), to the southerly line of the NE 1/4 NE 1/4 of said Section 12;
thence, along said southerly line and existing Town of Avon Boundary the following course
along the southerly line of the parcel annexed to the Town of Avon by Ordinance 81 -20, a
calculated distance and bearing of S89 °58'41 "E 1192.32 feet (record distance and bearing of
S89 057'07 "E 1184.14 feet), to the westerly line of said Section 7; thence, along said westerly
line and existing Town of Avon Boundary the following course along the easterly line of the
parcels annexed to the Town of Avon by Ordinance 81 -20 and Ordinance 81 -34, a measured
distance and bearing of N00 °11'27 "W 1321.54 feet (record distance and bearing of
N00 °10' 14 "W 660.82 feet per Ordinance 81 -20 and record distance and bearing of
N000 10' 14 "W 660.83 per Ordinance 81 -34), to the point of beginning, containing 967.07 acres,
more or less,
EXCEPTING FROM the foregoing parcel description all portions of the described property that
constitute the Interstate Highway No. 70 Right -of -Way and the Denver Rio Grande Western
Railroad Right -of -Way, which portions contain 99.24 acres, more or less. The net area of the
parcel being included in this annexation is 867.83 acres, more or less.
f 00305853.DOCX / }57731
PARCEL 2 DESCRIPTION
That part of Sections '8, 9 &c 10, Township 5 'South, Range 81 West of the Six_ th Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1; 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as follows:
Beginning at the North 1/4 corner of said Section 8; thence along the northerly line of said
Section 8,. N88 °42'58 "E 850.00 feet, to the True Point of Beginning; thence, continuing along
said northerly line, N88 °42'58 "E 1920.72 feet, to the Northwest corner of said Section 9; thence,
along the northerly line of said Section 9, N83 029'30 "E 2773.27 feet, to the North 1/4 corner of
said Section 9; thence, continuing along said northerly line, N83'24'1 2 "E 2772.60 feet, to the
Northwest ;corner of said Section 10; thence, along the northerly line of said Section 10,
N86 039'24 "E 2681.23 feet; thence, departing said northerly line, SO1 °34'07 "W 2699.66 feet, to
southerly line of the SE.1 /4 NW .1/4 of said Section 10; thence, along the southerly line of.said
SE 1/4 NW 11/4, S86 032'23 "W 1304.06 feet, to.the Center West 1/16 corner.of said Section 10;
thence, along the easterly.line of the NW 1/4 SW 1/4 of said Section 10, SO1 032'50 "W.1349.33
feet, to the Southwest 1/16 corner of said Section 10; thence, along the southerly line of said NW
1/4 SW 1/4, S86 0.32'47 "W 1384.91 feet, to the South 1/16 corner of said Sections 9 &.10;
thence, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, S77°10' 15 "W 14113.37
feet, to ,the,Southeast 1, /16 corner of said Section 9; thence, along the easterly line of the SW 1/4
SE 1/4 of said Section 9;, SOl °33'02 "W 1475.3,2 feet, to the East 1/16 corner of said Section 9
and Section 16 of said Township 5 South, Range 81 West of the Sixth Principal Meridian;
thence, along the southerly line of said SW 1/4 SE 1/4, S72 920'31 "W 1450.43 feet, to the South
1/4 corner of said Section 9; thence, along the westerly line of said SW 1/4 SE 1/4, NO1 °34' 18 "E
1601.52 feet, to the Center South 1/16 corner of said Section 9,; thence, along the;southerly line
of the NE 1/4 SW 1/4 of said Section 9, S86 007'30 "W 1378.19 feet, to the Southwest 1/16 corner
of said Section 9; thence, along the easterly line of the SW 1/4 SW 1/4 of said Section 9,
S01033' 13"W 903.02 feet, to the existing Town of Avon Boundary; thence, departing said
easterly line, the following five courses along said existing Town of Avon Boundary: (1) West
2595.53 feet; (2) North 899.93 feet; (3) N27 °39'30 ".E .2121.59 feet; (4) N17 °38'30 "W 1,593.20
feet; (5) N56 °30'00 "W 1274.62 feet, to the True Point of Beginning, - containing 922:16 acres,
more or less.
{00305853.DOCX /157731
S &H December 4, 2012 Draft
WATER TANK BONDS PLEDGE AGREEMENT
This WATER TANK BONDS PLEDGE AGREEMENT (the "Agreement' or
"Pledge Agreement'), is made and entered into and dated as of 2012 by and
between TRAER CREEK METROPOLITAN DISTRICT ( "TCMD ") a quasi - municipal
corporation and political subdivision of ;the State of Colorado (the "State "), THE VILLAGE
METROPOLITAN DISTRICT ( "VMD," and together with TCMD, the "Districts ") a
quasi - municipal corporation and political subdivision of the State, and UPPER EAGLE
REGIONAL WATER AUTHORITY (the "Authority"), a political subdivision of the State.
RECITALS
WHEREAS, TCMD has previously issued its Variable Rate Revenue Bonds, Series 2002
and its Variable Rate Revenue Bonds, Series 2004 (collectively, the "Outstanding TCMD
Bonds "); and
WHEREAS, payment of the Outstanding TCMD Bonds is secured by certain revenues of
the Districts, and also by an irrevocable letter of credit issued by BNP PARIBAS, San Francisco
Branch (`BNP "); and
WHEREAS, TCMD and other entities are parties to that certain litigation (consolidated
civil action Case No. 2008CV385, Eagle County District Court), and have entered into that
certain Settlement Term Sheet dated October 7, 2011 (the "Term Sheet"), to set forth the
agreement of the parties concerning resolution of various disputes at issue in the litigation; and
WHEREAS, TCMD, the Authority, the Town of Avon (the "Town ") and Traer Creek
LLC have entered into that certain Traer Creek Water Storage Tank Agreement and Second
Amendment to Water Service Agreement, dated as of 2012 (the "Water Tank
Agreement') to implement certain provisions of the Term Sheet relating to the construction of a
water tank (as more particularly described in the Water Tank Agreement, the "Tank Project'),
and to address other related matters; and
WHEREAS, the Term Sheet and the Water Tank Agreement contemplate that the
Authority will issue bonds to finance the construction of the Tank Project (the "Tank Project
Bonds "), and that TCMD and VMD will pledge and pay to the Authority the "Annual Debt
Service Obligation" (as more particularly defined and described herein); and
WHEREAS, the revenues pledged herein to pay the Annual Debt Service Obligation (as
defined herein) have been pledged to pay all amounts due to BNP (the `BNP Pledge ") under the
Amended and Restated Reimbursement Agreement, dated as of June 1, 2004, by and among the
Districts and BNP (the "Reimbursement Agreement'), and BNP has agreed to consent to
release the amount necessary to pay the Annual Debt Service Obligation from the BNP Pledge;
and
WHEREAS, TCMD, VMD and the Authority are entering into this Pledge Agreement for
the purpose of obligating TCMD and VMD to pay the Annual Debt Service Obligation to the
Authority and for the Authority to agree to issue the Tank Project Bonds, subject to the
conditions and limitations set forth herein; and
{00305848.DOC /}PUBFIN /1514212.12
WHEREAS, implementation of the settlement contemplated by the Term Sheet requires
the satisfaction of various mutually dependent conditions, including but not limited to the
restructuring of the Outstanding TCMD Bonds in accordance with the Term Sheet (such
restructuring being referred to herein as the "TCMD Bond Reissue" and the bonds issued in
connection therewith being referred to as the "TCMD Refunding Bonds ") in a manner
sufficient to, among other things, facilitate the performance by TCMD and VMD of this Pledge
Agreement; and,
WHEREAS, certain documents required to implement the Term Sheet are to be deposited
pursuant to a master escrow agreement (the "Escrow Agreement ") into escrow (the "Escrow "),
subject to release, delivery and recording upon closing of the TCMD Bond Reissue; and
WHEREAS, the Districts have determined and hereby determine that the execution of
this Pledge Agreement is in the best interests of the Districts and the residents, property owners,
users and taxpayers thereof.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the promises and the mutual covenants
and stipulations herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Interpretation. Unless otherwise provided herein, this Agreement takes
effect on the Implementation Date and ends on the Termination Date. In this Agreement, unless
the context expressly indicates otherwise, the interpretations and meanings set forth below shall
apply:
(a) The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any
similar terms, refer to this Agreement as a whole and not to any particular article, section,
or subdivision hereof, the term "heretofore" means before the date of execution of the
Agreement; and the term "hereafter" means after the date of execution of this Agreement.
(b) All definitions, terms, and words shall include both the singular and the
plural.
(c) Words of the masculine gender include correlative words of the feminine
and neuter genders, and words importing the singular number, include the plural number
and vice versa.
(d) The captions or headings of this Agreement are for convenience only, and
in no way define, limit, or describe the scope or intent of any provision, article, or section
of this Agreement.
(e) All schedules, exhibits, and addenda referred to herein are incorporated
herein by this reference.
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Section 1.02. Definitions. As used herein, unless the context expressly indicates
otherwise, the words capitalized throughout the text of this Agreement shall have the respective
meanings set forth below or parenthetically defined elsewhere in this Agreement._
(a) "Annual Debt Service" means scheduled principal payments (including
mandatory sinking fund payments) and interest payments due in any calendar year on the
Tank Project Bonds.
(b) "Annual Debt Service Obligation" means, for each calendar year or
portion of a calendar year in which any Tank Project Bonds are Outstanding, or for thirty
(30) years following the date of issuance of the Tank Project Bonds, whichever first
occurs, the amount set forth for each such calendar year or portion of a calendar year on
the then applicable Annual Debt Service Schedule. Once the Annual Debt Service
Obligation is established by the issuance of Tank Project Bonds, it shall not be increased
(but may be decreased) due to a refunding of the Tank Project Bonds without the written
consent of TCMD and BNP (so long as BNP is the provider of liquidity or credit
enhancement on TCMD Refunding Bonds or any amounts are due and owing to BNP by
TCMD in connection with such TCMD Refunding Bonds or the Outstanding TCMD
Bonds). In the event that any payment due to the Authority is not made when due, the
Annual Debt Service Obligation shall also include interest, attorney's fees and costs as
herein provided.
(c) "Annual Debt Service Schedule" means the schedule to be attached as
Exhibit A to this Pledge Agreement upon the issuance of any Tank Project Bonds and
other circumstances set forth herein, in accordance with Section 2.10 hereof. To the
extent an issue of Tank Project Bonds refunds or repays all or a portion of a prior issue of
Tank Project Bonds, then the Annual Debt Service Schedule shall be substituted or
revised, as more particularly described in Section 2.10.
(d) "Authority" means Upper Eagle Regional Water Authority, or its
successors or assigns.
(e) "Business Day" means a day on which banks or trust companies in
Denver, Colorado, are not authorized or required to remain closed and on which the New
York Stock Exchange is not closed.
(f) "Declaration (Commercial Areas)" means the Declaration of Covenants
for The Village (at Avon) Commercial Areas dated May 8, 2002 executed by Traer Creek
LLC, as the same may be amended or supplemented from time to time.
(g) "Declaration (Mixed Use)" means the Declaration of Covenants for The
Village (at Avon) Mixed -Use Areas dated May 8, 2002 executed by Traer Creek LLC
and EMD Limited Liability Company, as the same may be amended or supplemented
from time to time.
(h) "Declarations" means the Declaration (Commercial Areas) and the
Declaration (Mixed Use) ".
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PUBFIN/1514212.12
(i) ".Districts" means TCMD and VMD. -
(j) "Implementation.Date" means the. first Business Day on which both of the
following conditions are occurring or have occurred: the Water Tank Agreement is
executed and delivered by the parties thereto, and all of the conditions -of Section 2.09
hereof are satisfied.
(k) "Interest Payment Date" means, in connection with the Tank Project
Bonds, June 1 and December 1 of each , year while the : +Tank Project Bonds are
Outstanding. ,
(1) "Outstanding' -' means all Tank - Project Bonds that have been executed and
delivered, except -(i) Tank Project Bonds theretofore cancelled by the Authority or the
registrar or paying agent for the Tank Project Bonds •or delivered for cancellation because
of payment at maturity or prior redemption, (ii) Tank Project Bonds that have been
defeased pursuant to the terms of the resolution, indenture,or other document pursuant to
which such Tank Project Bonds were issued, and (iii) Tank Project Bonds ,in lieu of
which other Tank Project Bonds have been executed and delivered as a result of the
transfer and exchange of Tank Project Bonds or the replacement of mutilated, lost, stolen
or, destroyed Tank Project Bonds.
(m) "Payment Date" means May 1 and November 1 of each year, commencing
with the first May 1 or November 1 occurring after the .Implementation Date.
(n) "Semi - Annual Obligation" shall mean the amount of the Annual Debt
Service Obligation coming due on the Interest. Payment Date for the. Tank Project Bonds
which immediately succeeds a Payment Date, as set forth in the Annual Debt Service
Schedule.
(o) "Senior Payment Fund means the Senior Payment Fund created pursuant
to this Agreement and held by TCMD for the purpose of providing for the payment of the
Annual Debt Service Obligation.
(p) "Senior Required. Mill Levy" means an, ad valorem mill levy (a mill being
equal to 1 /10 of 1 cent) imposed upon all taxable property of the Districts each year in an
amount necessary as determined by the Districts, to generate Tank Project Property Tax
Revenues . sufficient, together with amounts on deposit in the Senior for Payment Fund on the
date the Senior Required Mill Levy .is, certified by -the Districts to pay the Annual Debt
Service Obligation as the same becomes due and payable, but not in excess of 50 Mills;
provided however, that TCMD shall not be obligated to levy taxes pursuant to this
Agreement until the assessed .valuation of taxable property in TCMD is at least
$1,000,000. So long as the Senior Required Mill Levy is less than the 50 mills, the total
mill. levy set by one or both of the Districts may include additional mills required by the
BNP Pledge or for other lawful purposes of the Districts.
(q) "State" means the State of Colorado.
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PUBFIN/1514212.12
(r) "Supplemental Act" means the "Supplemental Public Securities Act,"
being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended.
(s) "Tank Project' ' has the meaning assigned it in the Water Tank Agreement.
(t) "Tank Project Bonds" means, -notes, bonds or other obligations issued by the
Authority for the purpose of financing costs of the Tank Project, and any refundings thereof.
(u) "Tank Project Property Tax Revenues" means all moneys derived from
imposition of the Senior Required Mill Levy by the Districts and payable to the Authority
or its designees in accordance with this Pledge Agreement.
(v) "TCMD" means Traer Creek Metropolitan District.
(w) "TCMD Revenues" means the Credit Retail Sale Fees described in Section
9.4 of the Declaration (Mixed Use) and Section 7.4 of the Declaration (Commercial
Areas).
(x) "Termination Date" means, the earlier of (a) the date that is thirty years
after the date of issuance of the first Tank Project Bonds issued; or (b) the date that the
Tank Project Bonds are paid in frill or defeased in accordance with Section 2.02(e)
hereof; and
(y) "VMD" means The Village Metropolitan District.
(z) "Water Tank Agreement" means the Traer Creek Water Storage Tank
Agreement and Second Amendment to Water Service Agreement, dated as of ,
2012, entered into among TCMD, the Authority, the Town of Avon and Traer Creek
LLC.
ARTICLE II
ANNUAL DEBT SERVICE OBLIGATION
Section 2.01. No Additional Electoral Approval Required. The authorization for
issuance of debt, fiscal year spending, revenue collections and other constitutional matters
requiring voter approval for purposes of this Agreement, was approved at elections held by each
of TCMD and VMD on November 6, 2001 and November 5, 2002, in accordance with law and
pursuant to due notice. The performance of the terms of this Agreement by the Districts requires
no further electoral approval. The Districts have determined that, for purposes of appropriately
allocating their respective electoral debt authorization to the Annual Debt Service Obligation
herein, the Annual Debt Service Obligation shall be characterized as a debt in the principal
amount equal to the principal amount of the Tank Project Bonds (when initially issued), issued
for the purpose of funding costs of water system infrastructure. The Districts shall be obligated
to provide for the annual repayment costs of such debt in an amount equal to the Annual Debt
Service Obligation and for a term not to exceed 30 years. Furthermore, because the Districts
cannot determine the precise amount of Annual Debt Service on the Tank Project Bonds that will
be funded by each of the Districts, each of the Districts shall allocate the full principal amount of
{00305848.DOC /15
PUBFIN /1514212.12
the Annual Debt Service Obligation (i.e., the principal amount of the Tank Project Bonds) to its
electoral debt authorization.
Section 2.02. Annual Debt Service Obligation; Limited Tax General Obligation.
(a) In exchange for the undertakings of the Authority set forth in the Water
Tank Agreement, TCMD and VMD jointly and severally agree to pay or cause to be paid
the Annual Debt Service Obligation to the Authority by paying the Semi - Annual
Obligation to the Authority on the Payment Dates. The Districts jointly and severally
agree to deposit or cause to be deposited into the Senior Payment Fund the Tank Project
Property Tax Revenues or other legally available' revenues of the Districts, including, in
the case of TCMD, the TCMD Revenues, in an amount sufficient to pay the Semi - Annual
Debt Service Obligation due on each Payment Date as set forth in the Amlual Debt
Service Schedule.
(b) The joint and several obligation of the Districts to pay the Annual Debt
Service Obligation shall constitute a limited tax obligation of each District payable from
the Tank Project Property Tax Revenues or other legally available revenues of the
Districts, including, in the case of TCMD, the TCMD Revenues. This Agreement and the
obligation to pay the Annual Debt Service Obligation shall constitute a first and prior
irrevocable lien upon the Tank Project Property Tax Revenues, the TCMD Revenues and
the Senior Payment Fund. The Districts hereby elect to apply all of the provisions of the
Supplemental Act to this Pledge Agreement.
(c) There is hereby established and created a fund of TCMD to be designated
the "Traer Creek Metropolitan District Senior Payment Fund" (the "Senior Payment
Fund "), which shall be established as a depository account owned by TCMD. The
Senior Payment Fund shall not be maintained at BNP nor shall the amounts held in the
Senior Payment Fund be invested with BNP. TCMD hereby agrees to maintain the Senior
Payment Fund from and after the Implementation Date until the Termination Date. The
Tank Project Property Tax Revenues, the TCMD Revenues or other legally available
revenues of the Districts shall be credited to the Senior Payment Fund so that on or before
each Payment Date the balance of the Senior Payment Fund is sufficient to pay the
portion of the Semi - Annual Obligation due on such Payment Date. On or before each
Payment Date, commencing on the Payment Date occurring after the Tank Project Bonds
are issued, TCMD shall pay to the Authority the portion of the Semi - Annual Obligation
due on such Payment Date.
(d) All amounts payable by the Districts hereunder to the Authority shall be
paid in lawful money of the United States of America by check mailed or delivered, or by
wire transfer, to the Authority or to its designee, in accordance with its written
instruction.
(e) The Districts may, at any time, pay to the Authority an amount sufficient
to defease the Tank Project Bonds in accordance with the provisions of the resolution,
indenture or other document pursuant to which the Tank Project Bonds were issued.
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Section-2.03. Imposition df =Senior Required Mill Levy:
(a) In order to pay the Annual Debt Service Obligation, commencing with the
year in which the Implementation Date occurs, each District agrees to levy on all of the
taxable property in such District, in addition to all other taxes, direct annual taxes in each
year so long as the Tank Project Bonds remain Outstanding, in the amount of the
applicable Senior Required Mill Levy; provided that TCMD shall not be obligated to levy
taxes pursuant to this Agreement until the assessed valuation of taxable property in
TCMD is at least $1,000,000. Nothing herein shall be construed to require a District to
impose an ad valorem property tax levy for the payment of the Annual Debt Service
Obligation in excess of the Senior Required Mill Levy or after the Termination Date.
(b) In order to facilitate the determination of the Senior Required Mill Levy
by VMD, TCMD shall provide to VMD: (i) on or before September 30 of each year, the
preliminary certification of assessed value for the VMD provided by the Eagle County
Assessor; (ii) no later than one 'day after receipt by TCMD, the final certified assessed
value for VMD, provided by the Eagle County Assessor (expected to be provided by;the
Eagle County Assessor no later than December 10 of each year); and (iii) no later than
December 10 of each year, the amount then on deposit in the Senior Payment Fund. In
-accordance with the definition of Senior Required Mill Levy set forth herein, TCMD
shall preliminarily determine, and provide to VMD, the Senior Required Mill Levy for
each District no later' than October 15 of each year, and shall finally determine, and
provide to VMD, the Senior Required Mill Levy for each District no later than December
12 of each year.
(c) Each District acknowledges that (i) it has actively participated in the
development'of the calculation for determining the Senior Required Mill Levy, that such
calculation is designed to relate to (A) the mutual benefit to the Districts of the Water
Tank Project and (B) the relative ability of each District, given the relative stage of
development therein, to fund the Annual Debt Service Obligation from Tank Project
Property Tax Revenues (if not funded from other legally available revenues of the
Districts) in any given year and that, (ii) so long as made in accordance with the
foregoing and the definition of Senior Required Mill Levy herein, the determinations of
TCMD as to the Senior Required Mill Levy shall be final and binding upon both
Districts.
(d) This Section 2.03 is hereby declared to be the certificate of the Districts to
the Board of County Commissioners indicating the aggregate amount of taxes to be
levied for the purposes of paying the Annual Debt Service Obligation due hereunder.
(e) It shall be the duty of each District annually at the time and in the manner
provided bylaw for the levying 'of its taxes, if such action shall be necessary to 'effectuate
the provisions of this Agreement, to ratify and carry out the 'provisions 'hereof with
reference to the levy and collection of the ad valorem property taxes herein specified, and
to require the officers of such District to cause the appropriate officials of Eagle County,
to levy, extend and collect said ad valorem taxes in the 'manner provided `by law for the
purpose of providing funds for the payment of the amounts to be paid hereunder promptly
{00305848.DOC / }7
PUBFIN/1514212.12
as the same, respectively, become due. Said taxes, when collected, shall be applied only
to the payment of the amounts to be paid hereunder.
(0 Said taxes shall be levied, assessed, collected, and enforced at the time and
in the form and manner and with like interest and , .penalties as other general taxes in the
State.
(g) Each District shall pursue all, reasonable remedies to collect, or cause the
collection. of, delinquent ad valorem, taxes within its boundaries.
Section 2.04. _Pledge of TCMD Revenues, by TCMD. TCMD hereby pledges the
TCMD Revenues to the Authority to further secure the payment of the Annual Debt Service
Obligation. The Annual Debt Service Obligation shall constitute a first and prior irrevocable lien
on the TCMD Revenues. TCMD shall pay or cause to be paid to the Authority TCMD Revenues
to the extent necessary to cause the balance :in the Senior Payment. Fund to :equal the Semi -
Annual Obligation due on the next Payment Date. When one or both of the Districts have
imposed a Senior Required Mill Levy sufficient to generate Tank Project Property Tax Revenues
in ,amount to pay the Annual Debt Service Obligation, or when the balance in the Senior
Payment Fund equals the Semi - Annual Obligation due on the next Payment Date, the TCMD
Revenues may be used by TCMD for other legal purposes; provided that if the Semi - Annual
Obligation is not paid in full on a Payment Date, all TCMD - Revenues shall thereafter be
deposited to the Senior Payment Fund until, the amount due on such Payment pate is paid in full,
with interest as provided in Section 3.02 hereof.
Section 2.05. Limitations on Annual Debt Service Obligation. In no event shall the
total or annual obligations of either District hereunder exceed the maximum amounts permitted
under its electoral authority and any other applicable law., The entire Annual Debt Service
Obligation will be ;deemed defeased and no longer outstanding with .respect to both Districts
upon the earlier of: (i) the payment by each District of such amount; or (ii) the Termination Date.
. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums
herein required to pay the amounts due from the Districts hereunder are hereby appropriated for
that purpose, and said amounts ,for each year shall be included in the annual budget and the
appropriation resolution or measures to be adopted or,passed by the Board of,Directors of each
District in each year while any of the obligations herein authorized are outstanding and, unpaid.
No provisions of any constitution, statute, resolution or other order or measure enacted after the
execution of this Agreement shall in any manner be construed as limiting or impairing the
obligation of the Districts to pay, the Annual Debt Service Obligation as provided herein. .
Section 2.07. Limited Defenses. It is understood and agreed by the Districts that their
obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated
herein, and so long as any obligation of a District hereunder remains unfulfilled, such_ District
agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will, not assert
any rights of setoff, counterclaim, estoppel, or other defenses to its Annual Debt Service
Obligation, or take or fail to take any action which would delay a payment to the Authority or the
Authority's ability to receive payments due hereunder.
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Section 2.08. Additional Covenants.
(a) The Districts will not issue or incur bonds, notes, or other obligations
payable in whole or in part from, or constituting a lien upon, the Tank Project Property
Tax Revenues, the TCMD Revenues, or the Senior Payment Fund without the prior
consent of the Authority; provided, however, that the Districts may issue obligations with
alien on the TCMD Revenues which is subordinate to the lien of this Agreement without
the consent of Authority so long as no Event of Default exists under this Agreement.
(b) At least once a year as required by applicable State law, each of the
Districts will cause an audit to be performed of the records relating to revenues and
expenditures of the Districts, and the Districts shall use their best efforts to have such
audit report completed no later than 210 days after the end of any calendar year. The
foregoing covenant shall apply notwithstanding any State law audit exemptions that may
exist. In addition, at least once a year as required by applicable State law, each District
will cause a budget to be prepared and adopted. Copies of the budget and the audit will
be filed and recorded in the places, time, and manner as required by applicable State law.
(c) Each District covenants that it will not take any action or fail to take any
action which action or failure to act would release any property which is included within
the boundaries of the District at any time from liability for the payment of amounts due
under this Agreement.
(d) Each District covenants that it shall not take any action or that it shall not
fail to take any action which action or failure to act would result in a material impairment
of the rights of the Authority under this Agreement and that it will diligently, in good
rn
faith, and with best efforts seek to prevent, to the fullest extent permitted by law the
taking of such action.
(e) Each District will at all times preserve and maintain its existence, rights
and privileges in the State.
(f) Not later than January 15 in each year, each District shall provide the
Authority a certificate of an authorized officer of the District setting forth (A) the amount
of the Senior Required Mill Levy certified in December of the immediately preceding
year for collection in the current year and (B) the balance of the Senior Payment Fund as
of the date of certification.
Section 2.09. Conditions to Implementation Date. All of the conditions set forth
below shall have been satisfied on or before the Implementation Date.
(a) Execution of this Pledge Agreement by TCMD, VMD and the Authority;
(b) Release and delivery of this Pledge Agreement in accordance with the
terms of the Escrow Agreement;
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PUBFIN /1514212.12
(c) Delivery of an opinion from Kutak Rock LLP, in form and substance
satisfactory to the Authority, addressed to the Authority to the effect that this Agreement
is a valid and binding obligation of the Districts;
(d) Issuance by TCMD of the TCMD Refunding Bonds;
(e) Issuance by the Authority of Tank Project Bonds with an Annual Debt
Service which does not exceed $500,000, or for any period which is a portion of a
calendar year, the pro rata portion of $500,000 which is allocable to such portion of the
year;
(f) The attachment to this Pledge Agreement and , delivery to the Districts of
an Annual Debt Service Schedule in accordance with Section 2.09 hereof; and
(g) BNP executes and delivers the acknowledgement and consent in
substantially the form attached hereto as Exhibit B.
(h) The Districts have deposited to the Senior Payment Fund an amount
sufficient to make all payments due on each Payment Date occurring in the same year as
the Implementation Date.
(i) Evidence, in form and substance satisfactory to the Authority, is provided
to the Authority that each of WalMart and Home Depot have leased the stores operated
by each of them in VMD through at least January 1, 2027.
0) A written agreement for the benefit of the Authority from Traer Creek
LLC and EMD Limited Liability Company to the effect that the Declarations shall not be
amended in a manner which materially adversely affects the ability of TCMD to perform
its obligations under this Agreement.
Section 2.10. Annual Debt Service Schedule. On the date of issuance of the Tank
Project Bonds, the Authority shall provide to the Districts and attach as Exhibit A to this Pledge
Agreement a schedule describing the Annual Debt Service to come due on such Tank Project
Bonds including the Semi- Annual Obligations due on each Interest Payment Date. In the event
that the Authority subsequently issues additional Tank Project Bonds for the purpose of
refinancing all or any portion of any previously issued Tank Project Bonds, or otherwise redeems
or defeases Tank Project Bonds in a manner that would reduce the Annual Debt Service as
shown on the then current Annual Debt Service Schedule attached to this Pledge Agreement in
each remaining period, the Authority shall replace promptly the prior Annual Debt Service
Schedule with the new Annual Debt Service Schedule reflecting the new Annual Debt Service to
come due on the Tank Project Bonds then Outstanding, and shall provide a copy of the same to
the Districts. Any Annual Debt Service Schedule required to be provided in accordance with this
Section 2.09 shall not be considered delivered for purposes of this Pledge Agreement unless and
until accompanied by a certification of an authorized representative of the Authority stating that
such Annual Debt Service Schedule represents the true and correct Annual Debt Service of the
Tank Project Bonds then Outstanding. Once the Annual Debt Service Obligation is established
by the initial Annual Debt Service Schedule, it shall not be increased (but may be decreased) due
to a refunding of the Tank Project Bonds.
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Section 2.11. Representations and Warranties of the Districts. Each of TCMD and
VMD hereby makes the following representations and warranties as of the Implementation Date:
(a) The District is a quasi - municipal corporation and political subdivision
duly organized and validly existing under the laws of the State.
(b) There are no liens on the Tank Project Property Tax Revenues, the TCMD
Revenues, or the Senior Payment Fund senior to or on parity with the liens created by this
Pledge Agreement.
(c) The District has all requisite corporate power and authority -to execute,
deliver, and to perform its obligations under this Pledge Agreement. The .District's
execution, delivery, and performance of this Pledge Agreement have been duly
authorized by all necessary action.
(d) The District is not in violation of any of the applicable provisions of law
or any order of any court having jurisdiction in the matter, which violation could
reasonably be expected to materially adversely affect the ability of the District to perform
its obligations hereunder. The execution, delivery and performance by the District of this
Pledge Agreement (i) will not violate any provision of any applicable law or regulation or
of any order, writ, judgment or decree of any court, arbitrator, or governmental authority,
(ii) will not violate any provision of any document or agreement constituting, regulating,
or otherwise affecting the operations or activities of the District in a manner that could
reasonably be expected to result in a material adverse effect, and (iii) will not violate any
provision of, constitute a default under, or result in the creation or imposition of any lien,
mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the
revenues or other assets of the District pursuant to the provisions of any mortgage,
indenture, contract, agreement, or other undertaking to which the District is a party or
which purports to be binding upon the District or upon any of its revenues or other assets
which could reasonably be expected to result in a material adverse effect.
(e) The District has obtained all consents and approvals of, and has made all
registrations and declarations with any governmental authority or regulatory body
required for the execution, delivery, and performance by the District of this Pledge
Agreement.
(f) Except as described in the recitals hereof, there is no action, suit, inquiry,
investigation, or proceeding to which the District is a party, at law or in equity, before or
by any court, arbitrator, governmental or other board, body, or official which is pending
or, to the best knowledge of the District threatened, in connection with any of the
transactions contemplated by this Pledge Agreement nor, to the best knowledge of the
District is there any basis therefor, wherein an unfavorable decision, ruling, or finding
could reasonably be expected to have a material adverse effect on the validity or
enforceability of, or the authority or ability of the District to perform its obligations
under, this Pledge Agreement.
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(g) This Pledge Agreement constitutes the legal, valid, and binding limited tax
general obligation of each District, -enforceable against the District in accordance with its
terms (except as such enforceability may be limited by bankruptcy, moratorium, or other
similar laws affecting creditors' rights generally and provided that the application of
equitable remedies is subject to the application of equitable principles).
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES
Section 3.01. Events of Default. The occurrence or existence of any one or more of the
following events shall be an "Event of Default" hereunder:
(a) The Districts fail to pay any Semi - Annual Obligation when due on any
Payment Date;
(b) The Districts fail to levy, collect and apply Tank Project Property Tax
Revenues as required by the terms of this Pledge Agreement;
(c) TCMD fails to collect and apply the TCMD Revenues as required by the
terms of this Pledge Agreement;
(d) TCMD fails to apply amounts in the Senior Payment Fund as required by
the terms of this Pledge Agreement;
(e) Any representation or warranty made by the Districts in this Pledge
Agreement proves to have been untrue or incomplete in any material respect when made
and which untruth or incompletion would have a material adverse effect upon any other
party;
(f) Any District fails in the performance of any other of its covenants in this
Pledge Agreement, and such failure continues for sixty (60) days after written notice
specifying such default and requiring the same to be remedied is given by the Authority;
or
(g) (i) Either District shall commence any case, proceeding, or other action
(A) under any existing or future law of any jurisdiction relating to bankruptcy,
insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered
with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition, or other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, or other similar official for itself or for any substantial part of
its property, or either District shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against either District any case, proceeding, or
other action of a nature referred to in clause (i) and the same shall remain not dismissed
within ninety (90) days following the date of filing; or (iii) there shall be commenced
against either District any case, proceeding, or other action seeking issuance of a warrant
of attachment, execution, distrait, or similar process against all or any substantial part of
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its property which results in the entry of an order for any such relief which shall not have
been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from
the entry thereof, or (iv) either District shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in ;clause (i), (ii) or
(iii) above; or (v) either District shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due.
Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance
of an Event of Default, the Authority may proceed to protect and enforce its rights against the
Districts, by mandamus or such other suit, action, or special proceedings in equity or at law, in
any court of competent jurisdiction, including an action for specific performance. In the event of
any litigation or other proceeding to enforce any of the terms, covenants or conditions hereof, the
prevailing party in such litigation or other proceeding shall obtain, as part of .its judgment or
award, its reasonable attorneys' fees and costs. Upon the occurrence and continuance of an Event
of Default, all amounts due and owing but unpaid by the Districts to the Authority hereunder
shall bear interest until paid in full (i) for the thirty day period beginning on the date of the Event
of Default at a per annum interest rate equal to the sum of the net effective interest rate on the
Tank Project Bonds plus 200 basis points and (ii) thereafter at the maximum rate permitted under
the District's electoral authorization.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Pledge. The creation, perfection, enforcement, and priority of the pledge
of revenues to secure or pay the Annual Debt Service Obligation shall be governed by Section
11 -57 -208 of the Supplemental Act and this Pledge Agreement. The Tank Project Property Tax
Revenues, the TCMD Revenues, and the Senior Payment Fund shall immediately be subject to
the lien of such pledge without any physical delivery, filing, or further act. The lien of such
pledge shall be valid, binding, and enforceable as against all persons having claims of any kind
in tort, contract, or otherwise against the Districts irrespective of whether such persons have
notice of such liens.
Section 4.02. No Recourse against Officers and Agents. Pursuant to Section
11 -57 -209 of the Supplemental Act, if a member of the Boards of Directors of the Districts or the
Authority, or any officer or agent of the Districts or Authority acts in good faith, no civil
recourse shall be available against such member, officer, or agent for, with respect to the
obligations of the Districts or the Authority hereunder. Such recourse shall not be available
either directly or indirectly through the Authority or the Districts, or otherwise, whether by virtue
of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance
of this Pledge Agreement and as a part of the consideration hereof, the Authority and the
Districts each specifically waives any such recourse.
Section 4.03. Conclusive Recital. Pursuant to Section 11 -57 -210 of the Supplemental
Act, this Pledge Agreement contains a recital that it is entered into pursuant to certain provisions
of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity
of this Pledge Agreement after its delivery for value.
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Section 4.04. Limitation of Actions. Pursuatlt to Section11 -57 -212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in- connection with
the = authorization; execution, or delivery of this Pledge Agreement shall be commenced more
than thirty days after the authorization of this Pledge Agreement.
Section 4.05. Notices. All approvals; conk its, notices, objections, . and other
communications (a "Notice" and, collectively, "Notices ") under this Pledge Agreement shall be
in writing acid shall be deemed properly given and received when personally delivered, or sent by
overnight courier, ,or by emailed (pdf), or by registered or certified United States mail, postage
prepaid, addressed to the respective party at their respective addresses as set forth below.
Notices shall be deemed effective: (i) if personally delivered; when actually given and received;
or (ii) if by 'overnight courier service, on'theT next business day following deposit with'such
courier service; or (iii) if by email (pdf), on the same day if sent before 5;00 P.M. Mountain
Time, or on the next business day if sent after 5:00 P.M.- Mountain Time; or.(iu) if by -registered
or certified United States mail, postage prepaid, three (3) business --days after mailed. All Notices
shall be addressed as follows (or to such other address as may be subsequently, specified by
Notice given-in accordance herewith):
To the Authority:
Upper Eagle Regional Water Authority
846 Forest Road
Vail, CO 81657
Attention: General Manager
Telephone: (970) 477 -5444
Email: lbrooks @erwsd.org
With a required copy to:
Collins; Cockrel & Cole, P.C.
390 Union Boulevard, Suite 400
Denver, Colorado 80228 -1556
Attn: Jim Collins
Telephone: (303) 986 -1551
Email: jcollins @cccfirm.com
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987 -0835
Email: lj acoby@sdmsi.com
With a required copy to,:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202 -1214
Attn: Mary Jo Dougherty
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Telephone: (303) 592 -4380
Email: mjdougherty @mcgeadysisneros.com
The Village Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987 -0835
Email: ljacoby @sdmsi.com
With a required copy to:
NlcGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, Colorado 80202 -1214
Attn: Mary Jo Dougherty
Telephone: (303) 592 -4380
Email: mjdougherty @mcgeadysisneros.com
Section 4.06. Escrow; Escrow Instructions. As quickly as is practicable after the
mutual approval and execution by the parties hereto of this Pledge Agreement, each Party will
deposit a signed original of this Pledge Agreement into the Escrow subject to the instructions set
forth in the Escrow Agreement. If the Implementation Date does not occur by November 13,
2013, this Pledge Agreement shall be deemed void ab initio and of no further force or effect.
Section 4.07. Miscellaneous.
(a) Neither District may assign its obligations under this Agreement without
the prior written consent of the Authority.
(b) This Pledge Agreement constitutes the final, complete, and exclusive
statement of the terms of the agreement between the parties pertaining to the subject
matter of this Pledge Agreement and supersedes all prior and contemporaneous
understandings or agreements of the parties. This Pledge Agreement may not be
contradicted by evidence of any prior or contemporaneous statements or agreements. In
the event of any conflict between provisions of this Pledge Agreement and any other
agreement between the District and the Authority, provisions of this Pledge Agreement
shall control. No party has been induced to enter into this Pledge Agreement by, nor is
any party relying on, any representation, understanding, agreement, commitment, or
warranty outside those expressly set forth in this Pledge Agreement.
(c) If any term or provision of this Pledge Agreement is determined to be
illegal, unenforceable, or invalid in whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge
Agreement, and such provision shall not affect the legality, enforceability, or validity of
the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge
Agreement is stricken in accordance with the provisions hereof, then such stricken
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provision shall be replaced, to the extent possible, with a legal, enforceable, and valid
provision that is as similar in tenor to the stricken provision as is legally possible.
(d) The Districts find that the total Annual Debt Service Obligation evidenced
by this Agreement is in excess of $500,000 and is assignable or transferable only in
whole and, as a result, is exempt from the registration requirements of the Colorado
Municipal Bond Supervision Act, Title 11, Article 59, C.R.S.
(e) This Pledge Agreement shall be governed by and construed under the
applicable laws of the State.
(f) This Pledge Agreement may be amended or supplemented by the parties,
but any such amendment or supplement must be in writing and must be executed by all
parties and consented to by BNP so long as BNP is the provider of liquidity or credit
enhancement on TCMD Refunding Bonds or any amounts are due and owing to BNP by
TCMD in connection with the TCMD Refunding Bonds or the Outstanding TCMD
Bonds.
(g) It is intended that there be no third party beneficiaries of this Pledge
Agreement; except that BNP (at any time it is the provider of liquidity or credit
enhancement for the TCMD Bonds or TCMD Refunding Bonds or any amounts are due
and owing to BNP by TCMD in connection with such TCMD Refunding Bonds or the
Outstanding TCMD Bonds) is a third party beneficiary of this Agreement but solely to
the extent that BNP is expressly provided consent rights herein. Nothing contained
herein, expressed or implied, is intended to give to any person other than the Authority
any claim, remedy, or right under or pursuant hereto, and any agreement, condition,
covenant, or term contained herein required to be observed or performed by or on behalf
of any party hereto shall be for the sole and exclusive benefit of the other party.
(h) Venue for any and all claims brought by any party to this Pledge
Agreement to enforce any provision of this Agreement shall be the District Court in and
for the County of Eagle and State of Colorado.
(i) If the date for making any payment hereunder or performing any action
hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are
authorized or required by law to remain closed, such payment may be made or act
performed on the next succeeding day which is not a legal holiday or a day on which
banks in Denver, Colorado are authorized or required by law to remain closed.
0) Each party has participated fully in the review and revision of this Pledge
Agreement. Any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in interpreting this Pledge Agreement. The
language in this Pledge Agreement shall be interpreted as to its fair meaning and not
strictly for or against any party.
(k) This Pledge Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the Districts and the Authority have executed this Agreement
as of the day and year first above written.
ATTEST:
ATTEST:
Secretary
Secretary
TRAER CREEK METROPOLITAN DISTRICT
President
THE VILLAGE METROPOLITAN DISTRICT
C
President
UPPER EAGLE REGIONAL WATER
AUTHORITY
li
President
ATTEST:
Secretary
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EXHIBIT A
(Attach Annual Debt Service Schedule)
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EXHIBIT B
ACKNOWLEDGEMENT AND CONSENT
The undersigned representative of BNP Paribas ( "BNP "), in its capacity as the issuer of
irrevocable direct pay letters of credit securing the Traer Creek Metropolitan District Variable
Rate Revenue Bonds, Series 2002 and the Traer Creek Metropolitan District Variable Rate
Revenue Bonds, Series 2004, hereby acknowledges and consents to the foregoing Water Tank
Bonds Pledge Agreement (the "Pledge Agreement ") and represents that as of the
Implementation Date, BNP will not have a lien on the Tank Project Property Tax Revenues (as
defined in the Pledge Agreement) or the Senior Payment Fund (as defined in the Pledge
Agreement) and will not have a lien on the TCMD Revenues (as defined in the Pledge
Agreement) which is on a parity with or prior to the pledge pursuant to the Pledge Agreement..
Date:
BNP PARIBAS
By:
Name:
Title:
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