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TC Council Packet 08-28-20128/27/2012 1 Eagle Valley Land Exchange Open Space Funding Request August 2012 8/27/2012 2 Project Information •Total Acreage: 1,604 acres •Total Funding: $7,190,000 •United States Forest Service (USFS) receives 840 acres and gives up 7 parcels •Colorado State Land Board (SLB) receives cash and CDOT lot and gives up 640 acre parcel •Town of Avon receives 478 acre and 86 acre parcels and provides $1 million •Eagle River Water & Sanitation District (ERWSD) provides cash for the 3 parcels for the water system and gives 1 parcel back to USFS •Nottingham Family receives cash for 200 acre parcel •Eagle County Open Space receives Cordillera parcel, public access, facilitating the process, and providing funding for the project 8/27/2012 3 8/27/2012 4 Individual Parcel Information •Total Acreage: 478 acres •Location: Lies between Singletree, I-70 and Wildridge •Current Ownership: United State Forest Service •Post Deal Ownership: Town of Avon •The parcel is important to the Town of Avon •The Town will: –Manage the property –Improve access points •There is already an adopted proposed access plan for the property •The trail on site has already been improved •The conservation easement to be conveyed to EVLT West Avon Parcel 8/27/2012 5 Individual Parcel Information West Avon Parcel 8/27/2012 6 Individual Parcel Information West Avon Parcel 8/27/2012 7 Individual Parcel Information West Avon Parcel 8/27/2012 8 Individual Parcel Information •Total Acreage: 86 acres •Location: North side of I-70, Highly visible to Eagle-Vail residents, Surrounded by Traer Creek property in the Town of Avon •Current Ownership: United States Forest Service •Post Deal Ownership: Town of Avon •The parcel is important to the Town of Avon •Would provide a visual buffer •Public access is being reviewed •Portion of property to be protected by conservation easement conveyed to EVLT USFS Village Parcel 8/27/2012 Individual Parcel Information 9 USFS Village Parcel 8/27/2012 Individual Parcel Information 10 USFS Village Parcel 8/27/2012 Individual Parcel Information 11 USFS Village Parcel 8/27/2012 12 Individual Parcel Information •Total Acreage: 167 acres •Location: Adjacent and downhill from lots in Cordillera •Current Ownership: United States Forest Service •Post Deal Ownership: Eagle County •Preservation will: –Protect a view corridor –Provide a development buffer between Cordillera and the Lake Creek Valley –Provide conservation easement to EVLT Cordillera Parcel 8/27/2012 13 Individual Parcel Information Cordillera Parcel 8/27/2012 14 Individual Parcel Information Cordillera Parcel 8/27/2012 15 Individual Parcel Information Cordillera Parcel 8/27/2012 16 Individual Parcel Information Cordillera Parcel 8/27/2012 17 Individual Parcel Information •Total Acreage: 640 acres •Location: Red and White Mountain •Current Ownership: State Land Board •Post Deal Ownership: United States Forest Service •The USFS desires to have this parcel incorporated into the White River National Forest. It’s surround by USFS land. Edwards North Parcel 8/27/2012 18 Individual Parcel Information Edwards North Parcel 8/27/2012 19 Individual Parcel Information Edwards North Parcel 8/27/2012 20 Individual Parcel Information •Total Acreage: 200 acres •Location: Piney Valley •Current Ownership: Nottingham Family •Post Deal Ownership: United States Forest Service •This parcel was added to the project to bring the Cordillera Parcel into the deal and better balance the funds necessary to complete the deal Nottingham Parcel 8/27/2012 21 Individual Parcel Information Nottingham Parcel 8/27/2012 22 Individual Parcel Information Nottingham Parcel 8/27/2012 23 Individual Parcel Information Nottingham Parcel 8/27/2012 24 Individual Parcel Information •Total Acreage: Approximately 7 acres •Location: North of Minturn •Current Ownership: United States Forest Service •Post Deal Ownership: State Land Board •The State Land Board was required to find an alternative site for CDOT equipment storage, in able to redevelop Eagle Vail commercial property CDOT Relocation Parcel 8/27/2012 25 Individual Parcel Information CDOT Relocation Site 8/27/2012 26 Individual Parcel Information CDOT Relocation Site 8/27/2012 27 Individual Parcel Information •Total Acreage: 4 sites, totaling 24 acres •Location: Cordillera Valley Club in Edwards, Red Sandstone in Vail, Mountain Star in Avon (Beard Creek is going back to the USFS from the District) •Current Ownership: United States Forest Service •Post Deal Ownership: Eagle River Water and Sanitation District •The parcels are important to the Eagle River Water and Sanitation District to maintain service levels •The District is paying the costs for the sites Water Tank Sites 8/27/2012 28 Individual Parcel Information Cordillera Valley Club Tank Site 8/27/2012 29 Individual Parcel Information Mountain Star Tank Site 8/27/2012 30 Individual Parcel Information Red Sandstone Tank Site (A) 8/27/2012 31 Individual Parcel Information Red Sandstone Tank Site (B) 8/27/2012 32 Individual Parcel Information Beard Creek Funding Information •Total Acreage: 1,604 acres •Total Open Space Acreage: 1,571 acres •Total Funding: $7,190,000 •Price per acre for all parcels: $4,483 •Price per acre for open space parcels: $3,581 •Up to $300,00 of Federal equalization money •Eagle River Water & Sanitation = $340,000 •State Land Board for CDOT parcel = $225,000 •Town of Avon =$1,000,000 •County Open Space Fund up to $5,300,000 •Funding Partners for Cordillera or W Avon = TBD •TOTAL Local Funding = $7,190,000 8/27/2012 33 Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com HEIL LAW TO: Honorable Mayor Carroll and Town Council Members CC: Patty McKenny , Acting Town Manager; Larry Brooks, Advisor FROM: Eric Heil, Town Attorney RE: CARADA DATE: August 25, 2012 Summary: This memorandum provides an update and overview of the ancillary documents related to the implementation of the Settlement Term Sheet and implementation of the Consolidated and Restated Annexation and Development Agreement (“CARADA”), including exhibits. EXHIBITS TO CARADA: 1. Exhibit A: Legal Description of Property. The existing legal description of the property would be used and there is no proposed change to the legal description. 2. Exhibits B: Form of Special Warranty Deed for Conveyance of Planning Area B and Planning Area E to Town. This form has not yet been prepared. The Town has received a title insurance commitment and has reviewed exceptions. A form of a Roadway Easement Agreement to gain access to Planning Area B is attached along with proposed revisions. 3. Exhibit C: Form of Planning Area I Relocatable Roadway Access Easement. This exhibit and term is still under negotiation between the Town and Developer. 4. Exhibit D: Prioritized Capital Projects. This exhibit is attached. Traer Creek Metropolitan District has stated that they cannot fund the shallow utilities. Further discussion is required on this topic to refine this exhibit. 5. Exhibit E: Schedule of Past Developer Advances. This document has not been finalized. Town understands that the Developer and Traer Creek Metropolitan District are continuing to negotiate matters related to adjustment of the final numbers. 6. Exhibit F: Form of Public Improvements Agreement. A draft form of the Public Improvements Agreement is attached. The Developer has not yet had an opportunity to comment on this document. CONVEYANCE OF TRAER CREEK METROPOLITAN DISTRICT ASSETS TO THE TOWN OF AVON: The following documents would convey assets from TCMD to the Town: 7. Special Warranty Deed to Town and Bill of Sale. This deed will convey Tracts A, B and C, VAA Filing No. 1; Tract D, VAA Filing No. 3; Tract A-1 and A-2, McGrady Acres (for the energy dissipater and outlying tract). The developer intends to propose additional reservations which reserve ownership of cable TV and shallow utilities. 8. Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland and Easements. This document is still subject to further review and revision to insure that the maintenance obligations the Town is assuming do not increase for East Beaver Creek Boulevard as currently exists in its temporary alignment. & PLANNING, LLC Avon Town Council CARADA: Exhibits and Ancillary Documents August 25, 2012 Page 2 of 2 9. Amendment to and Assignment of Nottingham Dam Easement Agreement. The Town has requested revisions to the Nottingham Dam Easement to expand the easement purpose and description to include all anticipated uses associated with the dam. The Developer has not responded to this request. The current form of the easement does not reasonably allow the Town to maintain and administer the dam as may be necessary depending upon available financial resources and contemplated augmentation use. 10. Wet Well Easement Agreement and Bill of Sale. This is an easement which give the Town access to a well and pump which pumps water from the Nottingham-Puder Ditch into the raw water irrigation system. The Town has proposed to expand this access easement so that it connects to Post Blvd such that Town can access the wet well area. 11. Water Dissipater Site Special Warranty Deed and Bill of Sale. This Special Warranty Deed and Bill of Sale would convey Tract G, Filing 3, a water dissipater site to the Town. OTHER DOCUMENTS: 12. Closing Escrow Agreement. The Closing Escrow Agreement sets forth the execution and effectiveness of all related documents. All approvals shall not become effective until all documents are executed and the bonds for the water storage tank and the TCMD reissue bonds are reissued. 13. Amendments to Declarations and Covenants. A draft of the Second Amendment to the Declarations and Covenants of the Village (at Avon) Commercial Areas is attached along with a copy of the original Declarations and Covenants and the First Amendment. This document must be updated for the revisions in definitions in the CARADA. Also, the parties recently discussed enforcement mechanisms and whether the Town should be expressly named as a party or beneficiary to this document in order for the Town to also have the right to enforce this document. 14. Add-On Retail Sales Fee Collection Agreement. A draft of the Add-On Retail Sales Fee Collection Agreement with my comments are attached. 15. Asphalt Overlay Escrow Agreement. This document has been drafted; however, additional revisions are required to incorporate comments from FirstBank. 16. Water Rights Conveyance. Attached are forms of the Special Warranty Deeds conveying water rights which have been revised by Jay Montgomery (Town’s Water Attorney) and Glen Porzak (Water Authority’s attorney). 17. Water Storage Tank Pledge Agreement. Attached is the latest version of the Water Storage Tank Pledge Agreement. Generally, this agreement is the pledge of revenues by TCMD to the Water Authority to secure the repayment of the water storage tank bonds. Town staff and I are working to include the latest versions of documents required to implement the Settlement Term Sheet on the Town’s website. Thanks, Eric HEIL COMMENTS – Aug 25, 2012 1009777.5 ROADWAY EASEMENT AGREEMENT THIS ROADWAY EASEMENT AGREEMENT (this “Easement Agreement”) is made and entered into as of this _____ day of _________________, 2012 (“Effective Date”), by and between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (together with its successors and assigns, “Grantor”); and TRAER CREEK-RP LLC, a Colorado limited liability company (together with its successors and assigns, “Grantee”). Recitals A. Grantor is the owner of certain real property located in Eagle County, Colorado, legally described on Exhibit A attached hereto and incorporated herein by this reference (“Lot 1”). B. Grantor and Grantee are parties to that certain Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of _____________, 2012 and recorded in the real property records of Eagle County, Colorado (the “Records”) on ______________, 2012 at Reception No. ______________ (“Development Agreement”). C. Pursuant to Section 3.8(b) of the Development Agreement, concurrently with the “Effective Date” (as defined in the Development Agreement) of the Development Agreement, Grantor shall dedicate and convey to Grantee certain real property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and incorporated herein by this reference (“Planning Area B”), which property is designated as Planning Area B pursuant to The Village (at Avon) PUD Master Plan, Formal Amendment Two (the “PUD Master Plan”), being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide recorded in the real property records of Eagle County, Colorado on ______________, 2012 at Reception No. ______________ (the “PUD Guide”). D. As of the Effective date, there is no legal access to Planning Area B from a public right-of-way. E. On or about the Effective Date, Grantor has or shall convey and dedicate Planning Area B to Grantee. F. In connection with the conveyance and dedication of Planning Area B to Grantee, Grantor desires to Grant, and Grantee desires to accept, a roadway easement from that certain 80-foot wide right-of-way known as East Beaver Creek Boulevard (as recorded in the Records at Reception No. 795007) to Planning Area B for the purpose of Grantee’s enjoyment of the Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction, operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the terms and conditions of the PUD Guide and the Development Agreement, and as set forth below. 1009777.5 2 Agreement NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to Grantee, together with its engineers, contractors, employees and similar consultants to Grantee and/or its assigns as may be necessary or desirable (collectively, “Permittees”), a perpetual, non- exclusive, 20-foot fifty foot (50’) wide easement appurtenant to Planning Area B (the “Easement”) over, under, through and across that portion of Lot 1 which is legally described and depicted in Exhibit C (the “Easement Area”) for the purposes of (collectively, the “Permitted Uses”): (i) vehicular and pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using, operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks, bike paths, retaining walls and other access facilities necessary or desirable for such ingress and egress, and all fixtures and devices reasonably used or useful in the operation of such facilities (collectively, the “Roadway Facilities”); (iii) constructing, installing, using, operating, maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities, electrical lines, gas lines and similar utilities and utility facilities, excluding the Communications Utilities (defined below), together with all sleeves, conduit, junction boxes, vaults, fixtures and devices reasonably used or useful in the operation of such facilities, whether publicly or privately owned (collectively, the “Utility Facilities,” and together with the Roadway Facilities, the “Facilities”); and (iv) the right to enter upon the Easement Area and such immediately abutting areas of Lot 1 thereto as may reasonably be necessary to survey and conduct geotechnical and similar physical investigations. As set forth in Section 3.8(b) of the Development Agreement and in the PUD Guide, any construction of the Facilities shall be subject to the prior written approval of the “Design Review Board” (as defined in the PUD Guide). Nothing contained herein shall obligate Grantee to install, or cause to be installed, any or all of the Facilities or to otherwise provide for any such use. For purposes of this Easement Agreement, “Communications Utilities” shall mean, collectively, (a) cable television cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals and similar improvements; (b) telephone and communication cables, fiber-optic cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; (c) data cables, fiber-optic cables, wires, lines, plugs, connections, junction boxes, access boxes, vaults, switches, terminals, jacks and similar improvements; and (d) utility conduit, pipe, sleeve, trough or similar enclosures for the purpose of holding, running or containing the facilities described in clauses (a) through (c). 2. Relocation of Easement Area. In connection with future development of Lot 1, including without limitation, the construction of permanent Main Street in the configuration as generally contemplated by the PUD Master Plan or such other final alignment as shall be set forth in the applicable public improvements agreement(s) between the Town and applicable constructing party(ies) (“Future Main Street”), Grantor and Grantee acknowledge that future design, engineering, construction and/or general development of Lot 1 and/or Future Main Street may be inconsistent with the rights granted hereunder in the Easement Area, and that it may be necessary or desirable that the Easement Area be adjusted, repositioned or otherwise relocated to accommodate such future development of Lot 1 and/or Future Main Street. Accordingly, if 1009777.5 3 Grantor determines, in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and configuration or relocation of the Easement Area (the “Relocated Easement Area”) and Grantee shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement substituting the surveyed legal description for the alignment and configuration of the Relocated Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the recordation of such amendment in the Records. Recordation of such amendment in the Records shall have the legal effect of terminating the prior boundaries of the Easement Area and establishing the boundaries of the Relocated Easement Area as the new boundaries of the Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of such amendment, the Design Review Board previously has approved, and Grantee previously has installed and/or constructed, Facilities within the Easement Area, Grantor shall have the obligation, at Grantor’s sole cost and expense, to relocate such Facilities to, or install and/or construct such Facilities within, the Relocated Easement Area. [NOTE: STS states that “TOA shall not unreasonably refuse reasonable requests by Developer to adjust or replat Planning Areas B or C”. Town has proposed that this right should sunset when Planning Area B and the surrounding area has been developed. Developer objects to any sunset of the Developer’s right relocate this easement and amend the plat for Planning Area B.] 3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to design and construction of the Facilities, including but not limited to surveying, geotechnical testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas of Lot 1, Grantee shall provide not less than five (5) business days’ written notice to Grantor of any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature and duration of such activities, but shall not unreasonably object to or interfere with Grantee’s and/or Permittees’ conduct of such activities. To the extent such activities disturb vegetation on the surface or otherwise disturb any improvements upon or within the Easement Area or abutting areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of the affected area and improvements to a condition materially consistent with their condition prior to Grantee’s and/or Permittees’ conduct of such activities. Upon completion of any construction activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the construction activities, including without limitation, restoration or repair to damaged improvements. 4. Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive easements and/or other interests within the Easement Area and Lot 1 so long as such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s or Permittees’ full exercise of the Permitted Uses. Grantor reserves the right to use and occupy Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and privileges granted herein. [NOTE: The reservation of Grantor to occupy the Roadway Easement Access creates potential for conflict between future surface uses of this access easement by the Town and by Grantor.] 1009777.5 4 5. Title Matters; No Warranties. This Easement Agreement is subject to all prior easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record as of the Effective Date. Grantor makes no representations or warranties regarding the status of title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance. 6. Covenants. Each and every benefit and burden of this Easement Agreement shall inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any person or entity that acquires any interest in the Easement Area, and any person or entity that acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement constitute covenants that run with and encumber title to the Easement Area and Planning Area B. 7. Severability. Any provision of this Easement Agreement which is declared by a court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability, without invalidating or otherwise affecting the remaining provisions of this Easement Agreement, each of which shall continue in full force and effect, unless modified by mutual consent of the parties, for so long as their enforcement would not be inequitable to the party against whom they are being enforced under the facts and circumstance then pertaining. 8. Captions. The titles, headings and captions used in this Easement Agreement are intended solely for convenience of reference and shall not be considered in construing any of the provisions of this Easement Agreement. 9. Modification. This Easement Agreement may not be modified, amended or terminated, except by an agreement in writing executed by Grantor and Grantee. 10. Governing Law. The terms and provisions of this Easement Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 11. Counterparts. This Easement Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. [Signature pages follow this page.] 1009777.5 5 IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as of the Effective Date. GRANTOR: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Rich Carroll Title: Mayor GRANTEE: 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 1009777.5 6 STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by Rich Carroll, as Mayor of the TOWN OF AVON, a home rule municipal corporation of the State of Colorado. Witness my hand and official seal. Notary Public My commission expires: ______________________________. STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was acknowledged before me this _________ day of ______________________, 2012 by Marcus Lindholm, as Manager of Traer Creek LLC, a Colorado limited liability company, as Manager of TRAER CREEK-RP LLC, a Colorado limited liability company. Witness my hand and official seal. Notary Public My commission expires: ______________________________. HEIL COMMENTS – Aug 25, 2012 A-1 1009777.5 EXHIBIT A LEGAL DESCRIPTION OF LOT 1 Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A Resubdivision of Lot 1, according to the plat thereof recorded at Reception No. ________________, County of Eagle, State of Colorado. 1009777.5 B-1 EXHIBIT B LEGAL DESCRIPTION OF PLANNING AREA B Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A Resubdivision of Lot 1, according to the plat thereof recorded at Reception No. ________________, County of Eagle, State of Colorado. 1014138.1 C-1 EXHIBIT C LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA [to be inserted] Item East Beaver Creek Boulevard to Fawcett Road Main Street from Chapel Place to Yoder Avenue Lot 1 North South Roads (2) East-West Road through RMF-1 General Conditions 750,000.00$ 715,000.00$ 560,000.00$ 280,000.00$ Demolition 39,825.00$ 1,726,900.00$ 166,650.00$ 266,675.00$ Earthwork 1,108,275.00$ 119,685.00$ 123,390.00$ 187,440.00$ Roadway 1,630,990.00$ 1,349,930.00$ 393,310.00$ 719,465.00$ Utilities 894,300.00$ 1,129,900.00$ 227,600.00$ 356,800.00$ Shallow Utilities 336,000.00$ 336,000.00$ 120,000.00$ 66,000.00$ Erosion Control 27,000.00$ 27,000.00$ 16,600.00$ 9,500.00$ Landscaping 340,238.00$ 311,890.00$ 128,800.00$ 180,050.00$ Electrical & Lighting 347,280.00$ 289,400.00$ 115,760.00$ 185,216.00$ Roundabouts -$ 2,000,000.00$ -$ -$ Subtotal 5,473,908.00$ 8,005,705.00$ 1,852,110.00$ 2,251,146.00$ 20% Contingency 1,094,781.60$ 1,601,141.00$ 370,422.00$ 450,229.20$ TOTAL 6,600,000.00$ 9,600,000.00$ 2,200,000.00$ 2,700,000.00$ TOTAL OF ALL PRIORITY CAPITAL IMPROVEMENTS 21,100,000.00$ Village (at Avon) Prioritized Capital Projects Budgetary Cost Estimates EXHIBIT D FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 1 of 10 [INSERT NAME OF SUBDIVISION OR PROJECT] PUBLIC IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this ________ day of _______, 201___, is by and among ___________________________________ (“Owner” [“District” shall be substituted for Owner when applicable]), and the Town of Avon, a Colorado home rule municipality, by and through its Council (“Town”). RECITALS WHEREAS, the Owner, in connection with the approval [describe approval by Town] for the _______________________, consisting of _______ acres, ____________________, Town of Avon, Eagle County, Colorado (“Project”), desires to enter into a Public Improvements Agreement (“Agreement”) with the Town as provided for by Section 7.32.100 of the Avon Municipal Code, as may be amended from time to time (“Municipal Code”); and WHEREAS, pursuant to the Muncipal Code, the Town desires to make reasonable provisions for completion of certain public improvements (“Public Improvements”) as depicted on the plans approved by the Town for the _______________, dated ________________, (“Approved Plans”) and as set forth in Exhibit A: Approved Plans attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer; and WHEREAS, the Owner is responsible for the completion of the Public Improvements. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Completion of Work. (a) Performance. Owner agrees to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all Public Improvements and work incidental thereto (“Work”) as depicted on the Approved Plans and as set forth in Exhibit A: Approved Plans. Owner further agrees that Owner will be responsible for all costs of Public Improvements as assigned. Said Work shall be performed in accordance with the Approved Plans. (b) Time for Completion of Public Improvements. Owner agrees to complete Public Improvements within two (2) years of the date of this Agreement. FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 2 of 10 Owner agrees to commence construction of Public Improvements prior to the issuance of a building permit for any improvements in the subdivision and to complete the Public Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision served by the Public Improvements. Commencement of construction of Public Improvements shall be deemed to mean the award and execution of contracts for the construction of the Public Improvements as depicted on Exhibit A: Approved Plans. (c) Inspection Procedures. All Work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast or any other utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All Work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or Owner’s agents from any responsibility or obligation to assure that all Work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (d) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in Paragraph 5 below. (e) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Public Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance (“Notice of Non-Compliance”) to the Owner. The Notice of Non- Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non-Compliance must be provided to the Owner within three (3) working days of the date of the inspection. 2. Guarantee for Public Improvements. (a) Form of Guarantee. The Owner shall provided financial security to the Town to secure the completion of the Public Improvements in this Agreement in accordance with the acceptable methods of providing a guarantee set forth in Section 7.32.100(e)(1) of the Municipal Code (“Guarantee”). The form of Guarantee is attached hereto as Exhibit C: Form of Guarantee. (b) Amount of Guarantee for Completion of Public Improvements. Owner shall deliver to the Town a Guarantee in an amount equal to one hundred percent (100%) of the amount of the cost estimate for the Public Improvement FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 3 of 10 as approved by the Town Engineer plus a percentage of the estimated costs as an overrun allowance as set forth in Section 7.32.100(d) of the Municipal Code. (c) Partial Release of Guarantee. The amount of Guarantee may be reduced periodically upon completion of itemized Public Improvements for which cost estimates have been set forth in Exhibit B: Cost Estimates and upon receipt of the Certifications as specified in Paragraph 9 below verifying that itemized portions of the Public Improvements have been completed provided that Owner is not in default under this Agreement and provided that the remaining amount of Guarantee shall be at least one hundred and ten percent (110%) of the estimated costs of completion of all remaining Public Improvements. The Town shall release the remaining Guarantee amount less the amount described in Paragraph 3 below for security during the warranty period within five (5) business days of (i) completion of all Work related to the Public Improvements and (ii) acceptance by the Town and Utilities of the Public Improvements, provided that the Owner is not in default under this Agreement. (d) Default by Owner. In the event of a default in whole or in part by Owner in the performance of this Agreement, the Town shall be authorized to draw on the Guarantee for the purpose of undertaking completion or remediation work on the Public Improvements or otherwise curing Owner’s default hereunder after providing thirty (30) days’ advance written notice of default and providing an opportunity during such period for Owner to cure the default. The Town shall be entitled to draw on the Guarantee after adoption of a resolution of the Town Council stating (i) that Owner is in default and describing the nature of the default, and (ii) that funds are required to complete or correct the Work on the Public Improvements or to otherwise cure Owner’s default. 3. Warranty Period. The Public Improvements shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the Work by the Town. In the event of any such defect, the Town may require Owner to correct the defect in material or workmanship. The Town shall retain a portion of the Guarantee as a financial security during the warranty period. The amount of the Guarantee during the warranty period shall be a percentage of the total actual cost of completion of Public Improvements in the amount set forth in Section 7.32.100(i) of the Municipal Code. In the event any corrective work is performed during the two (2) year warranty period then the warranty on such corrected work shall be extended for two (2) years from the date on which the corrected work is completed. Guarantee equal to one hundred and ten percent (110%) of the cost of any corrected work, as estimated by the Town Engineer, shall be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 4 of 10 with Section 7.32.100(i), for a period of two (2) years from the date of completion of the corrected work. 4. Engineering Certification. Upon completion of portions of the Public Improvements, Owner will cause Owner’s engineers (who shall have been actively engaged in observing the construction of the Public Improvements and shall be registered engineers in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on-site observation, review of sufficient construction-observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Public Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as-constructed plans and other supporting documentation shall be submitted with the certification. The as-constructed plans shall be submitted on paper and in one of the following digital formats: AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 5. Inspection Fees. Fees for inspections, if any, shall be paid by the Owner within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such inspection fees exceed five percent (5%) of the actual costs for Public Improvements. 6. No Obligation of Town to Complete Improvements. Owner agrees that in the event Owner shall fail to perform its obligations as set forth herein, the Town shall be under no obligation to complete any of the said Public Improvements or to issue permits for development served by the Public Improvements. 7. Non-Liability of Town; Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said Work. To the extent permitted by law, Owner hereby agrees to indemnify and hold harmless the Town, and any of its officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Owner, as hereinbefore stated. Furthermore, the Owner shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 5 of 10 8. Rights of Town in Event of Default. In the event that Owner defaults in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Owner of such default during which period of time the Owner fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Public Improvements specified on Exhibit A: Approved Plans. All costs paid by the Town to correct or complete the Public Improvements, including cost of personnel, equipment, materials, studies, legal and other amounts expended by the Town to perform the Public Improvement construction responsibilities of Owner, together with an administrative fee in the amount of fifteen percent (15%) of the total costs incurred by Town shall be paid by Owner. Any such costs relating to the Public Improvements, which have not been reimbursed by Owner, shall be a debt of Owner. In addition to other remedies stated in this Agreement, if the Owner is in default of this Agreement, the Town may withhold the acceptance or processing of development applications and may withhold the approval of development permits for or on any property which would be served by the Public Improvements until such time as the Public Improvements are completed. 9. Letter Certifying Completion and Final Acceptance of Improvements. When all Public Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that Owner is not in default under any of its obligations to the Town under this Agreement, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Owner under this Agreement have been satisfied. 10. Non-Liability of Town for Indirect or Consequential Damages or Lost Profits. The Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits, which result or arise from the Town’s declaration that Owner is in default of the Agreement, so long as the Town acts in good faith. 11. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 12. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Owner without the express written consent of the Town Council of the Town. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council of the Town. No assignment shall release the Owner from performance of any duty, obligation, or FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 6 of 10 responsibility unless such release is clearly expressed in such written document of assignment. 13. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-consultant or sub-contractor of the Owner. Absolutely no third party beneficiaries are intended by this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 14. Amounts Past Due. Any amounts due to the Town of Avon under this Agreement which are past due shall bear interest at the rate set forth in Chapter 3.32 of the Municipal Code. 15. Applicability of Municipal Code. All references to the Municipal Code shall mean the Municipal Code as in effect as of the date of entering into this Agreement. Any amendments to sections of the Municipal Code which are referenced in this Agreement and which are adopted after the date of entering into this Agreement shall not be applicable to this Agreement. 16. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 17. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. 18. Venue. Venue for any litigation arising out of this Agreement shall be in the District Court for Eagle County, Colorado. [Signature Page Follows] FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 7 of 10 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. TOWN OF AVON BY:_____________________________ ATTEST:____________________________ Mayor Town Clerk APPROVED AS TO FORM: ___________________________ Town Attorney OWNER BY:__________________________ Owner FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 8 of 10 EXHIBIT A: APPROVED PLANS APPROVED PLANS: ______________________________ Construction Drawings __________________, Town of Avon, Colorado _______________, 20__ Sheets 1 through __ Release Date: _______________, 20__ Prepared by: FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 9 of 10 EXHIBIT B: COST ESTIMATE PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT – Aug. 19, 2012 Heil Page 10 of 10 EXHIBIT C: FORM OF GUARANTEE [Insert Form of Guarantee] DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234362.DOCX v:2 } SPECIAL WARRANTY DEED [STATUTORY FORM – C.R.S. § 38-30-115] TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Grantor”), whose street address is c/o Special District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood, Colorado 80228-1898, for the consideration of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose street address is One Lake Street, P.O. Box 975, Avon, Colorado 81620, County of Eagle, State of Colorado, the real property that is described on Exhibit A attached hereto and made a part hereof, with all its appurtenances, and warrants the title to the same against all persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof. TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by ___________________________, as ____________________ of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234362.DOCX v:2 } A-1 EXHIBIT A TO SPECIAL WARRANTY DEED Description of the Property Tracts A, B, and C, The Village (at Avon) Filing No. 1 according to the Final Plat thereof recorded on May 8, 2002 at Reception No. 795007 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract D, The Village (at Avon) Filing No. 3 according to the Final Plat thereof recorded on June 29, 2004 at Reception No. 882176 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract A-1, A Resubdivision of Tract A, Lots 1, 2, 3, 4, 5 and Part of Lot 6, McGrady Acres and Part of Lots 1 and 2, Nottingham Cottages P.U.D., and Part of (Corrected) Final Plat – Condominium Map Sun River Condominiums, according to the Final Plat thereof recorded on December 30, 2005 at Reception No. 941958 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract A-2, A Resubdivision of Tract A, Lots 1, 2, 3, 4, 5 and Part of Lot 6, McGrady Acres and Part of Lots 1 and 2, Nottingham Cottages P.U.D., and Part of (Corrected) Final Plat – Condominium Map Sun River Condominiums, according to the Final Plat thereof recorded on December 30, 2005 at Reception No. 941958 in the office of the Clerk and Recorder of Eagle County, Colorado; all in the Town of Avon, County of Eagle, State of Colorado. DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234362.DOCX v:2 } B-1 EXHIBIT B TO SPECIAL WARRANTY DEED Restrictions and/or Reservations Restrictions: Conveyance of the property pursuant to the foregoing Special Warranty Deed is subject to the following restrictions, which restrictions shall be binding on Grantee and all successors and assigns of Grantee, and which Grantor and its successors and assigns shall have the right to enforce by an action for specific performance, mandamus, mandatory or preliminary injunction or other equitable or legal remedy: 1. All restrictions of record, including, but not limited to, those certain rights of reverter as contained in that certain Amended and Restated Conveyance of Roadways, Parkland and Easements recorded on January 27, 2005 at Reception No. 904568 in the real property records of Eagle County, Colorado. Reservations: Conveyance of the property pursuant to the foregoing Special Warranty Deed is subject to Grantor’s reservation of the following rights with respect to the Property: 1. None. DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234410.DOC v:1 } BILL OF SALE (ROAD IMPROVEMENTS) KNOW ALL BY THESE PRESENTS that TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Grantor”), for and in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the TOWN OF AVON, a home rule municipal corporation of the State of Colorado, whose address is One Lake Street, P.O. Box 975, Avon, Colorado, 81620 (“Grantee”), its successors and assigns, all of Grantor's right, title and interest in and to the facilities, personal property and improvements described on Exhibit A attached hereto and incorporated herein by this reference (“Road Improvements”), located or installed within or on the real property described on Exhibit B attached hereto and incorporated herein by this reference (“Property”). TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns forever. IN WITNESS WHEREOF, Grantor executes this Bill of Sale this _____ day of ________________, 2012. TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by ___________________________, as ____________________ of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234410.DOC v:1 } A-1 EXHIBIT A Road Improvements All road, streetscape, landscape and drainage improvements, including but not limited to: roads, curbs, gutters, roundabouts, sidewalks, street lights, street signs and irrigation systems, along with other appurtenant facilities installed by or on behalf of Grantor located within or adjacent to the right-of-way. DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234410.DOC v:1 } B-1 EXHIBIT B Property Tracts A, B, and C, The Village (at Avon) Filing No. 1 according to the Final Plat thereof recorded on May 8, 2002 at Reception No. 795007 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract D, The Village (at Avon) Filing No. 3 according to the Final Plat thereof recorded on June 29, 2004 at Reception No. 882176 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract A-1, A Resubdivision of Tract A, Lots 1, 2, 3, 4, 5 and Part of Lot 6, McGrady Acres and Part of Lots 1 and 2, Nottingham Cottages P.U.D., and Part of (Corrected) Final Plat – Condominium Map Sun River Condominiums, according to the Final Plat thereof recorded on December 30, 2005 at Reception No. 941958 in the office of the Clerk and Recorder of Eagle County, Colorado; Tract A-2, A Resubdivision of Tract A, Lots 1, 2, 3, 4, 5 and Part of Lot 6, McGrady Acres and Part of Lots 1 and 2, Nottingham Cottages P.U.D., and Part of (Corrected) Final Plat – Condominium Map Sun River Condominiums, according to the Final Plat thereof recorded on December 30, 2005 at Reception No. 941958 in the office of the Clerk and Recorder of Eagle County, Colorado; all in the Town of Avon, County of Eagle, State of Colorado. DRAFT McGeady Sisneros, P.C. June 11, 2012 {00234458.DOCX v:2 } PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF ROADWAYS, PARKLAND AND EASEMENTS THIS PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF ROADWAYS, PARKLAND AND EASEMENTS (“Assignment”) is made and entered into as of this ____ day of __________, 2012 (“Effective Date”) by and between TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Assignor”) and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Assignee”) (collectively, the “Parties”). RECITALS WHEREAS, Traer Creek LLC, a Colorado limited liability company (“Traer”) and Wal- Mart Real Estate Business Trust and HomeDepot, U.S.A., Inc., entered into that certain Easements with Covenants and Restrictions Affecting Land (“ECR”) dated April 24, 2002 and recorded in the Eagle County real property records at 795009; WHEREAS, pursuant to Section 4(j) of the ECR, Traer agreed to convey to the Assignor via a separate instrument, non-exclusive road easements for Chapel Place and East Beaver Creek Boulevard; WHEREAS, Traer Creek and Traer Creek-RP, LLC, a Colorado limited liability company (collectively, “Developer”) and Assignor entered into that certain Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective May 8, 2002 and recorded January 27, 2005 at Reception No. 904568 of the real property records of Eagle County, Colorado, (the “Agreement”); and WHEREAS, pursuant to the ECR, Developer granted Assignor certain easement rights over Lot 1, The Villages (at Avon) Filing No. 1 (the “Property”), for an 80’ Easement (“East Beaver Creek Boulevard Easement”) and a 50’ Easement (“Chapel Place Easement”) (collectively, the East Beaver Creek Boulevard Easement and Chapel Place Easement are referred to herein as the “Easements”) for the location, construction and maintenance of roadways to be known as Chapel Place and East Beaver Creek Boulevard; and WHEREAS, Assignor desires to partially assign, on a non-exclusive basis, its rights, title, interests and obligations in, under and to the Agreement with respect to the Easements only to Assignee; Assignee desires to assume all such rights, title, interests and obligations from Assignor with respect to the Easements and Developer, pursuant to Section 12 of the Agreement, desires to consent to such assignment. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the Assignor and the Assignee agree as follows: {00234458.DOCX v:2 } 2 COVENANTS AND AGREEMENTS 1. Partial Assignment and Assumption. As of the Effective Date, the Assignor hereby transfers, assigns, sells and conveys to the Assignee all of the Assignor’s right, title, interest, duties and obligations in and to the Agreement with respect only to the Easements without representation or warranty and subject to all of the terms, covenants and conditions of the Agreement. As of the Effective Date, the Assignee hereby accepts such assignment and agrees to assume and be responsible for all of the covenants and obligations of the Assignor under the Agreement with respect to the Easements only. 2. Reservation of Right to Construct. Notwithstanding anything to the contrary contained herein, Assignor hereby reserves the right to continue to access the Easements for purposes of construction and installation of East Beaver Creek Boulevard and Chapel Place. Developer and Assignee acknowledge and agree that notwithstanding anything to the contrary contained in the Agreement, any obligation of the District to construct roadways within the Easements shall only be to the extent that the District has budgeted and appropriated funds therefor. 3. Ratification. Assignee hereby agrees to and ratifies each of the terms, provisions, representations, covenants and conditions of the Agreement. 4. Covenants. The Assignor and Assignee each covenant for and on behalf of the other Party that they have taken or performed all requisite acts or actions which may be required by their organizational or operational documents to confirm their respective authority to execute, deliver and perform each of their obligations under this Assignment and the Agreement. 5. Execution. This Assignment may be executed in counterparts as originals or by facsimile copies of executed originals; provided however, if executed and evidence of execution is made by facsimile copy, then an original shall be provided to the other Party and the Service Provider within seven days of receipt of said facsimile copy. 6. Entire Agreement. This Assignment contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof, and all prior negotiations, agreements and understandings, oral or written, are merged herein and superseded hereby. 7. Successor and Assigns. This Assignment and all rights and obligations of Assignee and Assignor hereunder shall be binding upon and inure to the benefit of Assignor, Assignee and the heirs, successors and assigns of each such party. 8. Miscellaneous. This Assignment shall be governed by and construed under the applicable laws of the State of Colorado. This Assignment may be executed in counterparts. IN WITNESS WHEREOF, the Parties hereto have executed this Assignment as of the date first set forth above. {00234458.DOCX v:2 } 3 SIGNTATURES ON FOLLOWING PAGES {00234458.DOCX v:2 } 4 DEVELOPER: TRAER CREEK-RP LLC, a Colorado limited liability company By:_______________________________ Name:_____________________________ Title:______________________________ TRAER CREEK, LLC, a Colorado limited liability company By:________________________________ Name:_____________________________ Title:_______________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public {00234458.DOCX v:2 } 5 ASSIGNOR: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By:______________________________________ Name:____________________________________ Title:_____________________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public {00234458.DOCX v:2 } 6 ASSIGNEE: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By:______________________________________ Name:____________________________________ Title:_____________________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234769.DOCX v:1 } SPECIAL WARRANTY DEED [STATUTORY FORM – C.R.S. § 38-30-115] TRAER CREEK-RP, LLC, a Colorado limited liability company (“Grantor”), whose street address is, P.O. Box 640, Vail, Colorado 81658, for the consideration of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose street address is One Lake Street, P.O. Box 975, Avon, Colorado 81620, County of Eagle, State of Colorado, the real property that is described on Exhibit A attached hereto and made a part hereof, with all its appurtenances, and warrants the title to the same against all persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof. TRAER CREEK-RP, LLC, a Colorado limited liability company By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by ___________________________, as ____________________ of Traer Creek-RP, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234769.DOCX v:1 } A-1 EXHIBIT A TO SPECIAL WARRANTY DEED Description of the Property Tract G, Villages (at Avon) Filing No. 3, according to the plat thereof recorded on June 29, 2004 at Reception No. 882176 in the office of the Clerk and Recorder of Eagle County, Colorado DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00234769.DOCX v:1 } B-1 EXHIBIT B TO SPECIAL WARRANTY DEED Restrictions and/or Reservations Restrictions: Conveyance of the property pursuant to the foregoing Special Warranty Deed is subject to the following restrictions, which restrictions shall be binding on Grantee and all successors and assigns of Grantee, and which Grantor and its successors and assigns shall have the right to enforce by an action for specific performance, mandamus, mandatory or preliminary injunction or other equitable or legal remedy: 1. Reservations: Conveyance of the property pursuant to the foregoing Special Warranty Deed is subject to Grantor’s reservation of the following rights with respect to the Property: 1. DRAFT McGEADY SISNEROS, P.C. June 14, 2012 {00234811.DOC v:1 } BILL OF SALE (WATER DISSIPATER) KNOW ALL BY THESE PRESENTS that TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Grantor”), for and in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the TOWN OF AVON, a home rule municipal corporation of the State of Colorado, whose address is One Lake Street, P.O. Box 975, Avon, Colorado, 81620 (“Grantee”), its successors and assigns, all of Grantor's right, title and interest in and to the facilities, personal property and improvements described on Exhibit A attached hereto and incorporated herein by this reference (“Water Dissipater Improvements”), located or installed within or on the real property described on Exhibit B attached hereto and incorporated herein by this reference (“Property”). TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns forever. IN WITNESS WHEREOF, Grantor executes this Bill of Sale this _____ day of ________________, 2012. TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by ___________________________, as ____________________ of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 14, 2012 {00234811.DOC v:1 } A-1 EXHIBIT A Water Dissipater Improvements Water Dissipater and other appurtenant facilities. DRAFT McGEADY SISNEROS, P.C. June 14, 2012 {00234811.DOC v:1 } B-1 EXHIBIT B Tract G, Villages (at Avon) Filing No. 3, according to the plat thereof recorded on June 29, 2004 at Reception No. 882176 in the office of the Clerk and Recorder of Eagle County, Colorado Town of Avon, County of Eagle, State of Colorado. DRAFT McGeady Sisneros, P.C. June 11, 2012 {00234417.DOCX v:2 } AMENDMENT TO AND ASSIGNMENT OF NOTTINGHAM DAM EASEMENT AGREEMENT THIS AMENDMENT TO AND ASSIGNMENT OF NOTTINGHAM DAM EASEMENT AGREEMENT (“Assignment”) is made and entered into as of this ____ day of __________, 2012 (“Effective Date”) by and between TRAER CREEK-RP LLC, a Colorado limited liability company (“Developer”), TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Assignor”) and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Assignee”) (collectively, the “Parties”). RECITALS WHEREAS, Developer and Assignor entered into that certain Nottingham Dam Easement Agreement dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the real property records of Eagle County, Colorado, (the “Agreement”); and WHEREAS, Developer and Assignor desire to amend certain terms of the Agreement as more fully set forth herein; WHEREAS, Assignor desires to assign all of its rights, title, interests and obligations in, under and to the Agreement to Assignee; Assignee desires to assume all such rights, title, interests and obligations from Assignor and Developer desires to consent to such assignment. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the Assignor and the Assignee agree as follows: COVENANTS AND AGREEMENTS 1. Amendment. Section 1 of the Agreement is hereby modified to provide that the Agreement shall constitute a non-exclusive, permanent easement for the operation, maintenance, repair and replacement of the improvements constructed, or to be constructed, if any, as part of the Nottingham Dam Rehabilitation Project and no further easement will be required. 2. Assignment and Assumption. As of the Effective Date, the Assignor hereby transfers, assigns, sells and conveys to the Assignee all of the Assignor’s right, title, interest, duties and obligations in and to the Agreement without representation or warranty and subject to all of the terms, covenants and conditions of the Agreement. As of the Effective Date, the Assignee hereby accepts such assignment and agrees to assume and be responsible for all of the covenants and obligations of the Assignor under the Agreement. 3. Ratification. Assignee hereby agrees to and ratifies each of the terms, provisions, representations, covenants and conditions of the Agreement. 4. Covenants. The Assignor and Assignee each covenant for and on behalf of the other Party that they have taken or performed all requisite acts or actions which may be required {00234417.DOCX v:2 } 2 by their organizational or operational documents to confirm their respective authority to execute, deliver and perform each of their obligations under this Assignment and the Agreement. 5. Execution. This Assignment may be executed in counterparts as originals or by facsimile copies of executed originals; provided however, if executed and evidence of execution is made by facsimile copy, then an original shall be provided to the other Party and the Service Provider within seven days of receipt of said facsimile copy. 6. Entire Agreement. This Assignment contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof, and all prior negotiations, agreements and understandings, oral or written, are merged herein and superseded hereby. 7. Successor and Assigns. This Assignment and all rights and obligations of Assignee and Assignor hereunder shall be binding upon and inure to the benefit of Assignor, Assignee and the heirs, successors and assigns of each such party. 8. Miscellaneous. This Assignment shall be governed by and construed under the applicable laws of the State of Colorado. This Assignment may be executed in counterparts. IN WITNESS WHEREOF, the Parties hereto have executed this Assignment as of the date first set forth above. SIGNTATURES ON FOLLOWING PAGES {00234417.DOCX v:2 } 3 DEVELOPER: TRAER CREEK-RP LLC, a Colorado limited liability company By:_______________________________ Name:_____________________________ Title:______________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public {00234417.DOCX v:2 } 4 ASSIGNOR: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By:______________________________________ Name:____________________________________ Title:_____________________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public {00234417.DOCX v:2 } 5 ASSIGNEE: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By:______________________________________ Name:____________________________________ Title:_____________________________________ STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of __________, 20_____, by ____________________, as ____________________ of ____________________ [and by ____________________ as ____________________ of ____________________]. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 11, 2012 {00035844.DOC v:3 } WET WELL EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (“Agreement”) is entered into as of this day of , 2012, by and between TRAER CREEK-RP LLC, a Colorado limited liability company, whose address is P.O. Box 640, Vail, CO 81658 (the “Grantor”) and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado, whose address is One Lake Street, P.O. Box 975, Avon, Colorado 81620 (the “Grantee”). 1. Grant. FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged by the Grantor, the Grantor hereby grants, bargains, sells, and conveys to Grantee and its successors and assigns a perpetual non-exclusive easement (the “Easement”), in, to, through, over, under and across that certain parcel of real property located in Eagle County, Colorado, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Premises”) for (i) vehicular and pedestrian ingress and egress and (ii) to construct, reconstruct, operate, use, maintain, repair, replace and/or remove certain water lines and mains, manholes, conduits, ventilators, access doors, cables, landscaping improvements, wells, well casings, tanks, motors, pumps, electrical facilities and apparatus, meters, and related improvements and appurtenances thereto (collectively, the “Improvements”) in, to, through, over, under and across the Premises, subject and pursuant to the terms and conditions set forth herein. 2. Limitations on Use. The Grantor shall not construct or place any structure or building, fencing, streetlight, power pole, yard light, mailbox or sign, whether temporary or permanent, or plant or locate any landscaping features, trees or shrubs, on any part of the Premises without having first obtained the prior written consent of the Grantee, which consent shall not be unreasonably withheld if Grantor's proposed improvements will not interfere with the Improvements or the Grantee's use of the Easement granted hereby. Any structure or building, fencing, streetlight, power pole, yard light, mailbox or sign, whether temporary or permanent, or any landscaping features, trees or shrubs situated on the Premises as of the date of this Agreement or subsequently placed thereon without such prior written consent may be removed by the Grantee without liability for damages arising therefrom. Additionally, if the Grantor violates these restrictions or if Grantor's actions cause damage to Grantee's Improvements, the Grantor will be liable for the cost to correct such violation or damage. 3. Access. The Grantee, its agents, contractors, successors and assigns, shall have the right of perpetual ingress and egress in, to, through, over, under, and across the Premises for any purpose necessary and at any and all times necessary or convenient for the full enjoyment of the rights granted to it in this Agreement. {00035844.DOC v:3 } 2 4. Restoration; Surface Impact. Upon completion of any of its activities which disturb the surface of the Premises, the Grantee shall restore the Premises to the condition it was in immediately prior to such disturbance, except as otherwise provided herein or as necessarily modified to accommodate the Improvements. Grantor expressly acknowledges that certain of the Improvements, including but not limited to vent pipe(s) and access door(s) may, from time to time, be on or above the surface of the Premises. 5. Maintenance. Grantee shall maintain the Improvements at its sole cost and expense. 6. Insurance; Indemnity. (a) Insurance. The Grantee shall require that all of its contractors entering upon the Premises obtain and maintain in effect for the duration of their respective periods of work (i) workers’ compensation insurance with statutory limits, and (ii) public liability insurance with commercially reasonable limits as may be required by Grantee from time to time as part of its capital construction and maintenance program. (b) Indemnity. To the extent permitted by law, the Grantee agrees to indemnify, defend and hold the Grantor harmless from and against all losses, claims, damages, liabilities or expenses, including reasonable attorneys' fees arising from Grantee’s negligent construction, operation or maintenance of the Improvements or the negligent use of the Premises by Grantee, its successors and assigns. 7. Termination of Easements. If Grantor believes the Easement has been abandoned by Grantee or that the Easement is not being used as described in Section 1 above, Grantor shall give written notice to Grantee. If Grantee agrees with Grantor, Grantee shall promptly execute all documents necessary to reconvey the Easement to Grantor. However, if Grantee disagrees with Grantor's assertion that the Easement is no longer being used for its intended purpose, Grantee shall give Grantor written notice within forty-five (45) days of the Grantee's receipt of Grantor's notice stating that Grantee requires arbitration of the dispute. The dispute shall be settled by binding arbitration before any retired Colorado Supreme Court Justice or Colorado Court of Appeals Judge employed by JAG. The arbitration proceeding shall be conducted in accordance with the Colorado Rules of Civil Procedure then in effect. Each party to the dispute shall deliver to the other party, within ten (10) days of the Grantee's demand for arbitration, a complete, concise statement of issues to be arbitrated. Grantor and Grantee shall select a single JAG arbitrator in accordance with the applicable rules of JAG. The arbitration proceedings shall be conducted at JAG in Denver, Colorado, and shall continue in the absence of any party who, after notice given pursuant to this Section, fails to participate in the proceedings. The decision of the arbitrator shall be final and binding upon the parties to this Agreement whether such party(ies) participate in the proceedings or not, and a judgment thereon may be entered in any court having jurisdiction. {00035844.DOC v:3 } 3 8. No Dedication. Nothing contained in this Agreement shall be deemed to be a dedication to the general public, or to any other person or entity of the fee interest of the property underlying any easement interest hereby granted and conveyed, it being the intent of the parties that Grantor's fee interest in the Premises shall continue to be private unless and until Grantor, at its sole option and election, completes the dedication of such interest to an eligible governmental or quasi- governmental entity or other third party, in accordance with all applicable laws, rules, regulations and ordinances. 9. Notices. All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of same in person to the addressee or by courier delivery via Federal Express or other nationally recognized overnight air courier service or by depositing same in the United States mail, postage prepaid, addressed as follows: To Grantee: Town of Avon One Lake Street P.O. Box 975 Avon, Colorado 81620 Attention: Town Manager With a copy to: Town of Avon One Lake Street P.O. Box 975 Avon, Colorado 81620 Attention: Town Attorney To Grantor: Traer Creek-RP LLC Attn: Magnus Lindholm Physical: 322 E. Beaver Creek Blvd. Avon, CO 81620 Mailing: P.O. Box 640 Vail, CO 81658 With a copy to: Michael J. Repucci Johnson & Repucci LLP 2521 Broadway, Suite A Boulder, CO 80304 All notices, demands, requests or other communications shall be effective upon such personal delivery or one (1) business day after being deposited with Federal Express or other {00035844.DOC v:3 } 4 nationally recognized overnight air courier service or three (3) business days after deposit in the United States mail. By giving the other party hereto at least ten (10) days written notice thereof in accordance with the provisions hereof, each of the parties shall have the right from time to time to change its address. 10. Certain Reserved Rights. Except as otherwise provided in this Agreement, the Grantor reserves the rights to use the Premises and to grant further easement interests in the Premises to other grantees so long as such interests and uses do not materially or unreasonably interfere with the use of the Grantee, its successors and assigns as permitted herein. 11. Subjacent and Lateral Support; Earth Cover. The Grantee shall have the right of subjacent and lateral support for the Improvements. The Grantor shall not take any action which would impair the lateral or subjacent support for the Improvements or the earth cover over any installed lines, mains or other underground Improvements. Grantor may request Grantee's specific written permission to modify the earth cover over any installed underground lines, mains or other Improvements but recognizes that such written permission may be withheld by the Grantee in its sole and absolute discretion. If Grantee renders such specific written permission, it shall be conditioned upon, among other things, the reimbursement to the Grantee for the cost of any alterations to any of its Improvements made necessary by such earth cover modification. 12. Assignment. The Grantee shall have the right and authority to assign to any appropriate local governmental entity any and all rights to use, and all obligations associated with, the Easement as are granted to and accepted by the Grantee herein. 13. Title. The Grantor represents and warrants that it owns the Premises in fee simple and has full power and lawful authority to grant, bargain, sell, and convey the same in manner and form as aforesaid. The Grantor, for itself, its heirs, personal representatives, successors and assigns, does covenant and agree that it shall warrant and forever defend the Grantee in its quiet and peaceful possession of the Premises against all and every person or persons lawfully claiming or to claim the whole or any part thereof, by, through or under Grantor. 14. Inurement; Runs With Land. Each and every one of the benefits and burdens of this Agreement shall inure to and be binding upon the parties and their respective legal representatives, heirs, administrators, successors and assigns. The rights and responsibilities set forth in this Agreement are intended to be covenants on the Premises and are to run with the land. {00035844.DOC v:3 } 5 15. Attorneys' Fees. In the event either party seeks to enforce its rights hereunder through litigation, arbitration or another legal proceeding, the court or panel shall award to the prevailing party in such litigation, arbitration or other legal proceeding, as part of its judgment or award, its reasonable attorneys' fees and costs. 16. Section Headings. The section headings contained herein are included for reference purposes only. 17. Governing Law. The terms, covenants and provisions hereof shall be governed by and construed under the applicable laws of the State of Colorado. 18. Special Provisions Regarding Relocation. The parties agree that the special provisions contained in this Section 14 shall supersede and control over any conflicting provisions of this Agreement. Grantor has advised Grantee that future development of the real property within which the Premises is located may necessitate the relocation of the Improvements or portions thereof to other real property owned by Grantor. Grantee shall reasonably cooperate with respect to any necessary relocation, provided that (i) Grantor shall give Grantee written notice of such proposed relocation not less than ninety (90) days before any such relocation is to occur, (ii) the relocation site(s) must be reasonably acceptable to the Grantee and shall, at a minimum, reasonably accommodate the integration of the Improvements of and into the balance of the Grantee’s non-potable water system, and (iii) Grantor and Grantee shall execute and deliver an amended or replacement easement agreement wherein the easement premises is the relocation site, with such amended or replacement easement agreement and the title burdens to the relocation site being reasonably acceptable to the Grantee and its legal counsel. The parties agree that the costs for such relocation shall be reasonably negotiated at the time of relocation. In the event of any such relocation, the Grantee agrees to execute and deliver to the Grantor an instrument in recordable form evidencing the termination of the Easement as to the portion of the Premises no longer necessary to accommodate the Improvements. {00035844.DOC v:3 } 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first set forth above. GRANTOR: TRAER CREEK-RP LLC, a Colorado limited liability company By: Traer Creek LLC, a Colorado limited liability company, its manager By:__________________________ Magnus Lindholm, Manager GRANTEE: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By:_______________________________ Name:_____________________________ Title:______________________________ {00035844.DOC v:3 } 7 STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day of __________, 2012, by ___________________, as ____________ of Traer Creek LLC, a Colorado limited liability company, as Manager of Traer Creek-RP LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public [ S E A L ] STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day of __________, 2012, by ____________________, as __________________ and ____________________, as ______________ of the Town of Avon, of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public [ S E A L ] {00035844.DOC v:3 } EXHIBIT A Premises DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234413.DOC v:1 } BILL OF SALE (WET WELL IMPROVEMENTS) KNOW ALL BY THESE PRESENTS that TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“Grantor”), for and in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the TOWN OF AVON, a home rule municipal corporation of the State of Colorado, whose address is One Lake Street, P.O. Box 975, Avon, Colorado, 81620 (“Grantee”), its successors and assigns, all of Grantor's right, title and interest in and to the facilities, personal property and improvements described on Exhibit A attached hereto and incorporated herein by this reference (“Wet Well Improvements”), located or installed within or on the real property described on Exhibit B attached hereto and incorporated herein by this reference (“Property”). TO HAVE AND TO HOLD the same unto the Grantee, its successors and assigns forever. IN WITNESS WHEREOF, Grantor executes this Bill of Sale this _____ day of ________________, 2012. TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF ______________________ ) The foregoing instrument was acknowledged before me this _____ day of _______________, 2012, by ___________________________, as ____________________ of Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234413.DOC v:1 } A-1 EXHIBIT A Wet Well Improvements Wet well, pumps, electrical lines, and other appurtenant facilities. DRAFT McGEADY SISNEROS, P.C. June 8, 2012 {00234413.DOC v:1 } B-1 EXHIBIT B Property Lot 1, The Village (at Avon) Filing No. 1 according to the Plat thereof recorded on May 8, 2002 at Reception No. 795007 in the office of the Clerk and Recorder of Eagle County, Colorado, Town of Avon, County of Eagle, State of Colorado. HEIL Comments Aug 20, 2012 1015310.2 RECEIPT AND ESCROW AGREEMENT PERTAINING TO THE VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION This RECEIPT AND ESCROW AGREEMENT PERTAINING TO THE VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION (“Escrow Agreement”) is entered into and effective as of _________________, 2012 (“Effective Date”) by and among Escrow Agent and the Parties (as defined in Paragraph 16 below). RECITALS This Escrow Agreement is made with respect to the following facts: A. Initially capitalized words and phrases used in this Escrow Agreement have the meanings set forth in Exhibit I. B. The Litigation Parties have executed the Settlement Term Sheet in order to set forth their agreement concerning resolution of various disputes at issue in the Litigation. C. Implementation of the settlement contemplated by the Settlement Term Sheet requires the satisfaction of various mutually dependent conditions prior to occurrence of the Outside Date, including but not limited to occurrence of the Bond Closings and disposition of the Settlement Implementation Documents on the Implementation Date in accordance with the terms and conditions of the Document Disposition Instructions and this Escrow Agreement. D. In implementation of the Settlement Term Sheet, the Parties have, as of the Effective Date, and will have, between the Effective Date and the Implementation Date or the Outside Date (whichever first occurs), prepared, approved, entered into and deposited the Settlement Implementation Documents into Escrow in accordance with the terms and conditions of this Escrow Agreement. E. Recording of the Recordable Instruments, the Recordable Instruments attaching to and becoming binding upon the Property, delivery of the Deliverable Instruments, and the Parties’ rights and obligations arising pursuant to the various Settlement Implementation Documents each are intended to occur on the Implementation Date concurrently with the occurrence of the Bond Closings; provided, however, if the Outside Date (as extended in accordance with the terms and conditions of this Escrow Agreement, if applicable) should occur prior to the Implementation Date occurring then the Parties intend that all Settlement Implementation Documents shall be deemed void ab initio and returned to the Party(ies) designated in the Document Disposition Instructions to receive such documents and instruments. F. Accordingly, the Parties desire that Escrow Agent receive, hold, assemble, Record and/or distribute the Settlement Implementation Documents in the manner set forth in this Escrow Agreement, and Escrow Agent desires to undertake the obligation of acting in such capacity, all in accordance with and subject to the terms and conditions set forth in this Escrow Agreement. 1015310.2 2 NOW, THEREFORE, in consideration of the foregoing, the Parties’ respective covenants set forth in this Escrow Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals are materially true and accurate, and are incorporated herein by this reference as if fully set forth; provided, however, nothing stated in the Recitals shall be deemed or construed to modify or be used to interpret the individual Settlement Implementation Documents, the terms and conditions of which shall control as written. 2. Term. The term of this Escrow Agreement shall commence on the Effective Date and shall continue through and including, and shall terminate and be of no further force or effect, upon the earlier to occur of: (a) Escrow Agent’s full and complete performance of its obligations as set forth in Section 6(a) and any other obligations that may or are required pursuant to the terms and conditions of this Escrow Agreement to be performed by Escrow Agent (whether in its capacity as Escrow Agent or in its capacity as Title Company) on or after occurrence of the Implementation Date; or (b) Escrow Agent’s full and complete performance of its obligations as set forth in Section 6(b) and any other obligations that may be or are required pursuant to the terms and conditions of this Escrow Agreement to be performed by Escrow Agent (whether in its capacity as Escrow Agent or in its capacity as Title Company) on or after occurrence of the Outside Date. 3. Exhibit List. The following exhibits are attached to this Escrow Agreement and are incorporated into this Escrow Agreement by reference as if fully set forth herein: EXHIBIT A: Document Deposit List EXHIBIT B: Document Receipt List EXHIBIT C: Document Disposition Instructions EXHIBIT D: Form of Implementation Notice EXHIBIT E: Form of Termination Notice EXHIBIT F: Form of Outside Date Extension Notice EXHIBIT G: Form of Bond Closing Notice EXHIBIT H: Proforma Title Insurance Policies EXHIBIT H: Notice Addresses and Authorized Representatives EXHIBIT I: Defined Terms 4. Deposit of Settlement Implementation Documents; Document Deposit List. The Document Deposit List identifies each Settlement Implementation Document that is to be deposited into Escrow in accordance with the terms and conditions of this Escrow Agreement, the number of original instruments to be deposited into Escrow, the number of copies (if applicable) to be deposited into Escrow and the Party or Parties responsible for executing and/or causing the deposit of their respective counterpart original(s) and/or copies of each Settlement Implementation Document. 1015310.2 3 5. Escrow Agent’s Receipt of Settlement Implementation Documents; Updating of Document Receipt List. Escrow Agent shall receive and deposit the Settlement Implementation Documents into Escrow, and shall receive, update and provide Notice of updates to the Document Receipt List (as applicable), in accordance with the following terms and conditions: (a) The Document Receipt List shall reflect, as updated from time to time and acknowledged in writing by Escrow Agent in accordance with Section 5(c), those Settlement Implementation Documents Escrow Agent has received into Escrow and those Settlement Implementation Documents Escrow Agent has not received into Escrow. (b) As of the Effective Date: (i) The Parties have deposited some but not all of the Settlement Implementation Documents into Escrow. (ii) The Document Receipt List dated as of the Effective Date identifies those Settlement Implementation Documents Escrow Agent has received into Escrow and those Settlement Implementation Documents Escrow Agent has not received into Escrow. (iii) Each Party by its execution of this Escrow Agreement confirms that it has reviewed, confirmed the accuracy of and approved the Document Receipt List dated as of the Effective Date. (c) After the Effective Date: (i) From time to time after the Effective Date as the applicable Party or Parties fully and formally approve(s) and/or execute(s) each Settlement Implementation Document that was not deposited into Escrow as of the Effective Date, such Party or Parties shall cause the deposit of such Settlement Implementation Document into Escrow. In connection with the tender of such Settlement Implementation Documents for deposit into Escrow after the Effective Date: (A) Each Party that is a party to a Settlement Implementation Document to be deposited into Escrow after the Effective Date, or whose execution of a Settlement Implementation Document to be deposited into Escrow after the Effective Date is required, shall: (1) In accordance with the requirements set forth in the Document Deposit List, execute and cause the deposit into Escrow of the required number of original counterpart(s) and/or copies of each such Settlement Implementation Document, notarized if applicable, complete with all appropriate exhibits which have also been review and approved by the Parties to the particular Settlement Implementation Document, on or before the Implementation Date. 1015310.2 4 (2) Coordinate with the counterparty(ies) to such Settlement Implementation Document(s), if any, or if there is no such counterparty(ies) individually act, to draft and deliver to Escrow Agent, concurrently with tendering such Settlement Implementation Document(s) for deposit into Escrow, a proposed form of updated Document Receipt List dated as of the date on which such Settlement Implementation Document(s) are tendered for deposit into Escrow and executed by an Authorized Representative of each Party. (ii) Concurrently with the Parties’ tender from time to time after the Effective Date of additional Settlement Implementation Documents, together with a proposed form of updated Document Receipt List as required pursuant to Paragraph 5(c)(i)(A)(2), Escrow Agent shall promptly verify the accuracy of the tendered updated Document Receipt List and: (A) If the tendered updated Document Receipt List is accurate, Escrow Agent shall: (1) execute and date the tendered updated Document Receipt List as of the date on which Escrow Agent deposits such additional Settlement Implementation Document(s) into Escrow; (2) deposit the tendered Settlement Implementation Document(s) into Escrow; (3) remove the then-current Document Receipt List from Escrow Agent’s copy of the Escrow Agreement, insert the updated Document Receipt List into Escrow Agent’s copy of the Escrow Agreement, and retain the prior version of the Document Receipt List (together with all prior versions) in a file established and maintained by Escrow Agent for such purpose; and (4) provide Notice to all Parties of Escrow Agent’s deposit of the tendered Settlement Implementation Document(s) into Escrow and insertion of the updated Document Receipt List by providing each Party with a copy of the updated Document Receipt List. (B) If the tendered updated Document Receipt List is inaccurate, Escrow Agent (or if so indicated below, the pertinent Party(ies)) shall: (1) nonetheless deposit the tendered Settlement Implementation Document(s) into Escrow; (2) make notations on the tendered Document Receipt List correcting and/or describing the inaccuracy(ies) contained therein; 1015310.2 5 (3) remove the then-current Document Receipt List from Escrow Agent’s copy of the Escrow Agreement, insert the notated Document Receipt List into Escrow Agent’s copy of the Escrow Agreement, and retain the prior version of the Document Receipt List (together with all prior versions) in a file established and maintained by Escrow Agent for such purpose; (4) provide Notice to all Parties of Escrow Agent’s deposit of the tendered Settlement Implementation Document(s) into Escrow and disapproval of the tendered updated Document Receipt List by providing each Party with a copy of the Document Receipt List as notated pursuant to clause (2) above; (5) upon receipt of the Notice required pursuant to clause (4) above, the Party(ies) that tendered the pertinent updated Document Receipt List shall coordinate with Escrow Agent to promptly correct, fully execute and date the updated Document Receipt List; (6) promptly upon complying with the obligations set forth in clause (5) above, the pertinent Party(ies) shall tender the corrected Document Receipt List to Escrow Agent; (7) upon receipt of the corrected Document Receipt List, Escrow Agent shall remove the previously notated Document Receipt List from Escrow Agent’s copy of the Escrow Agreement, insert the corrected Document Receipt List into Escrow Agent’s copy of the Escrow Agreement, and retain the notated version of the Document Receipt List (together with all prior versions) in a file established and maintained by Escrow Agent for such purpose; and (8) provide Notice to all Parties of Escrow Agent’s approval and acceptance of the corrected Document Receipt List by providing each Party with a copy of the corrected Document Receipt List. 6. Escrow Agent’s Disposition of the Settlement Implementation Documents; Document Disposition Instructions. The Document Disposition Instructions set forth the obligations of Escrow Agent upon the occurrence of the Implementation Date or upon the occurrence of the Outside Date. In accordance with the instructions set forth in the Document Disposition Instructions, Escrow Agent shall Record and/or otherwise disburse the Settlement Implementation Documents as follows: (a) Required Actions Upon Occurrence of the Implementation Date: (i) Not later than [ten (10)] business days prior to the anticipated Implementation Date, the Authorized Representatives of TCMD, BNP and the Authority 1015310.2 6 shall execute an Implementation Notice (using the form attached as Exhibit D) and shall give Notice to Escrow Agent and to each of the other Parties by causing delivery of a copy of the Implementation Notice to be made in accordance with Section 18. (ii) At any time after delivery of an Implementation Notice but prior to the occurrence of the Implementation Date as designated in the previously delivered Implementation Notice, TCMD, BNP and the Authority may extend the Implementation Date up to a maximum of thirty (30) days by delivery of a revised Implementation Notice in the manner described in clause (i) above provided that any such extension of the Implementation Date shall not exceed the Outside Date. (iii) Promptly upon receipt of an Implementation Notice, Escrow Agent shall review the Escrow and the most current Document Receipt List to confirm that all Settlement Implementation Documents listed in the Document Receipt List are in Escrow, to determine whether Escrow Agent is otherwise prepared (or will be prepared) to Close Escrow on the Implementation Date stated in the Implementation Notice and, not later than [five (5)] business days after receipt of the Implementation Notice: (A) if all documents listed in the Document Receipt List are in Escrow and Escrow Agent otherwise will be in a position to Close Escrow on the Implementation Date stated in the Implementation Notice, shall provide Notice thereof by delivery to each Party of a copy of the current Document Receipt List, together with a letter stating that each document or instrument listed therein is in Escrow and Escrow Agent is prepared to Close Escrow upon receipt of the Bond Closing Notice on the anticipated Implementation Date set forth in the Implementation Notice, in which case TCMD, BNP and the Authority shall be entitled to proceed to consummate the Bond Closings transactions on the anticipated Implementation Date set forth in the Implementation Notice in reliance upon Escrow Agent’s representation; or (B) if not all documents listed in the Document Receipt List are in Escrow and/or Escrow Agent otherwise will not be in a position to Close Escrow on the Implementation Date stated in the Implementation Notice, shall provide Notice of such deficiency by delivery to each Party of a copy of the current Document Receipt List, together with a letter identifying which of the documents or instruments listed therein have not been deposited in Escrow and/or the reasons, if any, Escrow Agent otherwise will not be in a position to Close Escrow on the Implementation Date stated in the Implementation Notice and, therefore, Escrow Agent is not prepared to Close Escrow on the Implementation Date set forth in the Implementation Notice, in which case Escrow Agent shall nonetheless prepare to Close Escrow on the Implementation Date stated in the Implementation Notice (or in any subsequent Implementation Notice) subject to receipt of the items constituting the deficiency as set forth in Escrow Agent’s deficiency Notice. (C) Upon receipt of a deficiency Notice pursuant to clause (B) above, TCMD, BNP, the Authority, the other Parties and Escrow Agent shall 1015310.2 7 promptly cooperate in good faith, employing their respective best efforts, to cure the deficiency(ies) stated in Escrow Agent’s deficiency Notice, and to deliver an updated Implementation Notice designating the same Implementation Date as the prior Implementation Notice or any later date mutually agreed to among TCMD, BNP, the Authority and Escrow Agent. (iv) Upon receipt of the Bond Closing Notice, and provided any deficiency Notice provided pursuant to Section 6(a)(iii)(B) has been remedied in accordance with Section 6(a)(iii)(C), Escrow Agent shall promptly commence all actions required in accordance with the terms and conditions of this Escrow Agreement to Close Escrow on the Implementation Date and to complete such actions on or as quickly following the Implementation Date as may be feasible exercising commercially reasonable diligence. Such actions shall include, but shall not be limited to, in accordance with the terms and conditions stated in the Document Disposition Instructions with respect to Escrow Agent’s actions upon the occurrence of the Implementation Date: (A) causing the Recordable Instruments to be Recorded in the required sequence as set forth in the Document Disposition Instructions and with the requisite Recording information, dates and other information filled in; and (B) causing the Deliverable Instruments to be delivered with the requisite Recording information, dates and other information filled in. [Need to determine whether Title Commitments are “Deliverable Instruments” or are handled separately in definitions and otherwise.] (b) Required Actions Upon Occurrence of the Outside Date: (i) Not earlier than [ten (10)] business days nor later than [five (5)] business days prior to the occurrence of the Outside Date (as extended, if applicable), and assuming the Implementation Date has not previously occurred, the Authorized Representatives of TCMD, BNP and the Authority shall execute a Termination Notice (using the form attached as Exhibit E) and shall give Notice thereof to Escrow Agent and to each of the other Parties by causing delivery of a copy of the Termination Notice to be made in accordance with Section 18. (ii) Upon receipt of a properly executed Termination Notice, Escrow Agent shall prepare the Settlement Documents that have been deposited into Escrow for distribution to the Parties, without Recording or formal delivery to any counterparty, in accordance with the instructions set forth in the Document Disposition Instructions regarding Escrow Agent’s required actions upon the occurrence of the Outside Date. Provided Escrow Agent has not received an Outside Date Extension Notice pursuant to Section 6(c), Escrow Agent shall disburse the Settlement Implementation Documents on the Outside Date to the Parties and in the manner set forth in the Document Disposition Instructions. (iii) The Parties intend the effect of Escrow Agent’s distribution of the Settlement Documents pursuant to a properly delivered Termination Notice in accordance with clause (ii) above to be that such documents and instruments shall be construed for all purposes to be void ab initio and of no legal effect. 1015310.2 8 (c) Extension of Outside Date: (i) At any time and from time to time prior to occurrence of the then-current Outside Date, the Outside Date may be extended by delivery of a fully completed, executed and dated Outside Date Extension Notice in the form attached as Exhibit E. (ii) In order to be effective and binding on the Parties and Escrow Agent, any Outside Date Extension Notice must be signed by an Authorized Representative of not less than three (3) of the following Parties, which Parties each of the other Parties hereby irrevocably designates to be authorized on behalf of all Parties to determine whether, when and to what date to extend the Outside Date: (A) BNP; (B) TCMD; (C) the Authority; (D) the Town; or (E) Master Developer. (iii) Any such Outside Date Extension Notice shall be delivered to each non-signing Party and to Escrow Agent in compliance with the Notice requirements set forth in Section 18. 7. Title Commitments; Title Policies. In addition to Escrow Agent’s obligations with respect to the Escrow, Escrow Agent also is acting in the capacity of Title Company in connection with certain transactions and conveyances to be accomplished in connection with the recording of certain of the Recordable Instruments and with respect to which Title Company has issued the following title commitments (collectively, the “Commitments”): [Note: Foregoing definitions are not incorporated into Defined Terms exhibit. Deeds (and certain other Title Documents such as Deed of Trust releases) go into Escrow and become Recordable Instruments. Other requirements from Sch A are Title Documents may or not be in Escrow and may or not be Recordable Instruments or Deliverable Instruments. In order to Close Escrow, Title Company will need to be in a position to issue binding commitments to issue title policies. This section will require further consideration, discussion and revision to account for timing issues and properly account for which documents must be incorporated into Exhibits A – C, etc.] [The Special Warranty Deeds for parcels and tracts to be conveyed Town should include reference to the title exceptions to the extent approved by the Town as part of the CARADA and then the Town would expect that there would be no additions to the accepted title exceptions or any additional encumbrances on the properties to be conveyed between the Effective Date and Implementation Date] (a) File Number ___________________, revision ____, dated _______________, 2012 (the “PA-B Commitment”) relating to the property described therein ( “PA-B”), (b) File Number __________________, revision ____, dated _______________, 2012 (the “PA-E Commitment”) relating to the property described therein ( “PA-E”), and (c) File Number _______________________, revision ____, dated _______________, 2012 (the “Tank Site Easement Commitment”) relating to the property 1015310.2 9 described therein (the “Tank Site”). [Note: Will need to conform if changed to fee conveyance. Add commitment for relocatable easement?] [Note: Provision below may need to be added to Section 6(a)(iii)] Escrow Agent, in its capacity as a Title Company, is immediately upon its receipt of the Implementation Notice (or will be not later than the Implementation Date stated therein) unconditionally and irrevocably committed to issue to the insured parties described in each of the Proforma Title Insurance Policies that are listed on Exhibit G hereto, the title insurance policies (the “Policies”) that are identical to the Proforma Policies [placeholder for gap insurance, if necessary]. 8. Escrow Fees and Closing Costs. [Placeholder to address how and when Escrow Agent fees and, if any, title insurance premiums and charges, documentary fees, release fees, recording fees and any other cost associated with closing will be paid, such fees referred to as the “Escrow Fees” and “Closing Costs.”] 9. Reliance; Standard of Care. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, reasonably believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such writing or instrument, and may assume that any Authorized Representative purporting to give any writing, Notice, advice or instructions on behalf of the applicable Party in connection with the provisions hereof has been duly authorized by such Party to do so. In performing any of its duties hereunder, Escrow Agent shall not incur any liability to any Party or to any third party for any damages, losses or expenses, except to the extent arising from, directly or indirectly, Escrow Agent’s willful or negligent default under this Escrow Agreement. 10. Escrow Agent Actions in Event of Dispute Among Parties; Interpleader. (a) Notwithstanding any provision of this Escrow Agreement to the contrary, if Escrow Agent reasonably determines that the Parties are in disagreement about the interpretation of this Escrow Agreement or about the rights and obligations of the other Parties hereto, or the propriety of any action contemplated by Escrow Agent hereunder, Escrow Agent shall deliver Notice to each Party, with a description of the disagreement, and if the disagreement is not resolved within three (3) business days after delivery of the Notice, Escrow Agent shall have the right, but not the obligation to: (i) suspend all or any part of its activities under this Escrow Agreement until Escrow Agent receives Notice by delivery of joint written instructions from all of the affected Parties that the disagreement has been resolved among the Parties; or (ii) file an action pursuant to Section 10(b). (b) If Escrow Agent and its legal counsel, in good faith, are uncertain as to Escrow Agent’s obligations under this Escrow Agreement and/or Escrow Agent receives conflicting direction from the Parties and/or if there is a dispute among the Parties that is not resolved pursuant to clause (a) above, and if Escrow Agent is unable to obtain the Parties’ written agreement resolving such matters, Escrow Agent may bring a declaratory or interpleader action, naming the Parties as respondents or defendants, in order to resolve such uncertainty. 1015310.2 10 11. Costs and Attorneys’ Fees. If any Party brings an action against any other Party(ies) to determine the respective rights and obligations of the Parties under this Escrow Agreement, the Party or Parties prevailing in such action shall be awarded its or their costs of such action and reasonable attorneys’ fees incurred in connection with such action. If Escrow Agent files an action pursuant to Section 10(b), the Parties shall pay Escrow Agent’s reasonable attorneys’ fees and costs, the amounts of which and relative allocation of payment responsibility among the Parties shall be fixed in the judgment to be rendered by the court in such suit. 12. Indemnity. To the fullest extent permitted by law, the Parties shall jointly and severally indemnify Escrow Agent, its officers and directors, and hold them harmless from and against any and all damages, costs, claims, liabilities, losses, expenses, fees or other charges of any character or nature which Escrow Agent may incur or with which it may be threatened by reason of its performance of its obligations under this Escrow Agreement, except to the extent arising from, directly or indirectly, Escrow Agent’s willful or negligent default under this Escrow Agreement. 13. Agency Not Revocable. This Escrow Agreement and the agency created in Escrow Agent hereby are coupled with an interest of each of the respective Parties hereto and shall be binding upon and enforceable against the respective successors, legal representatives and assigns of each Party. Except upon a termination pursuant to Section 2, This Escrow Agreement and Escrow Agent’s agency authority granted herein are irrevocable. 14. Entire Agreement. This Escrow Agreement contains the entire contract, understanding, and agreement by and among the Parties and Escrow Agent with respect to the subject matter hereof; provided, however, as between the Parties, this Escrow Agreement shall not be construed or interpreted to modify or negate any right or obligation of the Parties pursuant to the any Settlement Document. 15. Amendment of Escrow Agreement and Exhibits. (a) This Escrow Agreement supersedes all prior instructions to Escrow Agent, written and oral. This Escrow Agreement (excluding the Exhibits hereto, amendment of which is addressed in clause (b) below) may be amended only by a writing signed by all Parties and Escrow Agent. All Settlement Implementation Documents shall be deemed submitted irrevocably by the Parties upon tender to Escrow Agent for deposit into Escrow and shall be released from Escrow only in accordance with the terms and conditions of this Escrow Agreement. (b) Notwithstanding any provision herein to the contrary, Escrow Agent is obligated and authorized from time to time to update the Document Receipt List in accordance with Section 5(c), such amendments to the Document Receipt List to be effective upon Escrow Agent’s delivery to the Parties in accordance with Section 5(c). Amendments or updates to the Document Deposit List, the Document Disposition Instructions, or any other Exhibit not specifically addressed in this clause (b) also may be made in the manner stated in Section 5(c); provided, however, that any proposed amendment or update must be signed by all Parties. No amendment or update to an Exhibit pursuant to this clause (b) shall require an amendment to the body of this Escrow Agreement. 1015310.2 11 16. State Law; Venue. This Escrow Agreement shall be construed and enforced in accordance with the laws of the State of Colorado without regard to conflicts of laws statutes. Venue for any action filed with respect to this Escrow Agreement shall be in the Eagle County district court. 17. Calculation of Days; Business Days. If the last day for any act, deadline, expiration of a right, or date to provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of Colorado as set forth in C.R.S. §24-11-101, then the next business day which is not a Saturday, Sunday or such legal holiday shall be deemed the last day. [This is language used in other agreements]. If the final date of performance by any Party or by Escrow Agent of any condition or obligation hereunder falls upon a non-business day (i.e., Saturday, Sunday, national holiday or local holiday recognized by major Colorado banks), the final date for performance of such condition or obligation shall be extended automatically and without Notice until the next succeeding business day. For the purposes of calculating business days under any provision of this Escrow Agreement, intervening non-business days shall not be counted. 18. Notices. (a) All Notices and communications required or permitted under this Escrow Agreement shall be in writing to the Parties’ and Escrow Agent’s respective addresses set forth in Exhibit F and shall be served by: (i) depositing the same in the United States mail, postage prepaid and certified, with return receipt requested; (ii) delivering the same in person; (iii) delivering same by confirmed facsimile or email (with the original sent within 24 hours by one of the other delivery methods permitted herein); or (iv) nationally recognized overnight parcel delivery service, postage prepaid (producing a delivery receipt). (b) Notice given in accordance herewith shall be effective upon the earlier of: (i) actual receipt of Notice; (ii) on the third (3rd) day following deposit of same in the United States mail; or (iii) on the next day following delivery of same to an overnight carrier, regardless of whether same is actually received. (c) Each of the Parties hereby authorizes its Authorized Representative(s), to authorize any action and to make or receive any Notice, communication, and delivery of documents relative to the Settlement Implementation Documents, the transactions contemplated thereunder and this Escrow Agreement. (d) Any Party or Escrow Agent may change its Notice address or designate additional or replacement Authorized Representative(s) by providing Notice thereof to each other Party and Escrow Agent in the form of an updated version of Exhibit F. 19. Counterparts. This Escrow Agreement may be executed in multiple counterparts and, when counterparts of this Escrow Agreement have been executed and delivered by each of the Parties and Escrow Agent, shall be fully effective and binding upon the Parties and Escrow Agent notwithstanding that all Parties and Escrow Agent have not signed the same counterpart. The Effective Date shall be the date of Escrow Agent’s receipt of the last signed counterpart, upon receipt of which Escrow Agent shall write such date into the blank in the initial paragraph 1015310.2 12 of this Agreement provided for such purpose and shall deliver a copy of the complete, signed original of this Escrow Agreement to each of the Parties in accordance with Section 18. [SIGNATURE PAGES FOLLOW] 1015310.2 13 BNP: BNP PARIBAS, an international bank By: Name: Barbara Eppolito Title: Director and By: Name: Matthew Mulligan Title: Vice President MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Marcus Lindholm Title: Manager COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: [insert] Title: [insert] MIXED USE PIC: THE VILLAGE (AT AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: [insert] Title: [insert] 1015310.2 14 TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President VMD: THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President AUTHORITY: THE UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: [insert] Title: [insert] TOWN: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Rich Carroll Title: Mayor HEIL Comments Aug 20, 2012 1015310.2 EXHIBIT A Document Deposit List [We need to clarify which documents are subject to Town’s reivew and approval prior to finalizing and executing if the Town is not a party to such documents, particularly documents which affect documents approved by the Town.] Party Designations: For purposes of this Document Deposit List, the Parties are identified using the defined term for such Party. Additionally, certain non-parties to the Escrow Agreement are required to execute and/or cause the deposit into Escrow of a limited number of documents or instruments. Such non-parties are identified for purposes of this Document Deposit List as follows: Alpine: Alpine Bank [need for DOT Releases] Alkali: Alkali [Need to add for BNP director qualification Deeds?] County: Eagle County [need for Motion to Dismiss] SDM: Special District Management Services, Inc. [need for Collection Agmts] VMD: The Village Metropolitan District [need for BNP board position – is this required?] Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Consolidated, Amended and Restated Annexation and Development Agreement for The Village (At Avon) (“Development Agreement”) Town, TCMD, TCLLC, AURA, EMD, Mixed Use PIC, Commercial PIC 8 n/a Town Ordinance No. _________ (approving Development Agreement) Town 1 6 Town Amended and Restated PUD Guide for The Village (At Avon) (“PUD”) n/a 1 1 Town Ordinance No. _________ (approving PUD) Town 1 1 Town Condominium Plat/Map Town, TC Plaza 1 2 Town Resolution No. _________ (Approving Condominium Plat) Town 1 2 Town Traer Creek Plaza Condominium Declaration TC Plaza 1 2 TC Plaza Release of Deed of Trust as to Parking Unit [Bank?] 1 2 TC Plaza Quit Claim Deed to TCMD for Parking Unit TC Plaza 1 2 TC Plaza Re-Plat of Lot 1 Town, TC-RP 1 1 Town Resolution No. _________ (Approving Replat of Lot 1) Town 1 3 Town 1015310.2 16 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Release of Deed of Trust as to Lot 2 (PA-B) [Bank?] 1 2 TC-RP Special Warranty Deed Conveying Lot 2 (PA-B) to Town TC-RP 1 2 TC-RP Release of Deed of Trust as to Lot 2 (PA-B) [Bank?] 1 2 TC-RP Special Warranty Deed Conveying Lot 3 (PA-E) to Town TC-RP 1 2 TC-RP Relocatable Access Easement (to Planning Area I) Town EMD 1 2 Town Resolution No. _________ (Approving Relocatable Access Easement) Town 1 1 Town Resolution No. _________ (Rescinding Water Service Moratorium) Authority 1 3 Authority Special Warranty Deed Conveying Water Rights to Town TCMD 1 2 TCMD Special Warranty Deed Conveying Water Rights to Authority Town 1 2 Town Water Storage Tank Easement TC-RP, Authority 1 2 TC-RP Access Road Easement TC-RP, Authority 1 2 TC-RP Temporary Construction and Staging Easement TC-RP, Authority 1 2 TC-RP Special Warranty Deed to Town for Public Road Tracts TCMD 1 3 TCMD Special Warranty Deed (Conveying easement rights pertinent to E. Beaver Creek and Chapel Place to Town) TCMD 1 3 TCMD Amendment to Commercial PIF Covenants Commercial PIC 1 1 Commercial PIC Amendment to Mixed-Use PIF Covenants Mixed-Use PIC 1 1 Mixed-Use PIC Asphalt Overlay Escrow Account Agreement Alpine, TCMD, Town, Master Developer 4 n/a Town Resolution No. _________ (approving Asphalt Overlay Agreement) Town 1 3 Town Property Conveyances Bill of Sale to Town for Public TCMD 1015310.2 17 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Road Tracts Special Warranty Deed to Town for Wet Well, Pump and Other PIs (real property) [Grantor?] SWD or Bill or Sale – from TC-RP or TCMD? Bill of Sale to Town for Wet Well, Pump and Other PIs TCMD 1 2 TCMD Agreement to Terminate Parking Facility Easement Agreement TMD, TCP Agreement to Terminate Common Easement Agreement TMD, TCP Add-On PIF Collection Services Agreement PIC-C, PIC-M, SDM Revised Point-Of-Sale Placards SDM Revised PIF Return Forms, Instructions and Notice to Retailers SDM Revised Town Sales Tax Return (if necessary) Town BNP’s Blanket Consent to Settlement Transactions BNP Pledge Agreement (Water Storage Tank Project) BNP, TCMD, VMD Should this be in Escrow? Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Purchase and Sale Agreement (qualifying BNP representative to TCMD and VMD Boards) ALK, BNP Resolution Appointing BNP to TCMD Board TCMD 1 1 TCMD Resolution Appointing BNP to VMD Board VMD 1 1 VMD Second Amendment to 2003 Funding and Reimbursement Agreement EMD, TCLLC, TMD Should all of these this be in Escrow, or just the ones requiring interest rate adjmnt? Second Amendment to 2002 TCLLC, VMD 1015310.2 18 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Operation Funding Agreement First Amendment to 2006 Operation Funding Agreement TCLLC, VMD Second Amendment to 2007 Operation Funding Agreement TCLLC, VMD First Amendment to 2008 Operation Funding Agreement TCLLC, VMD Second Amendment to Second Amendment to Phase II Construction Management Agreement TCLLC, TCMD First Amendment to Dirt Removal Reimbursement Agreement Should this be in Escrow? Stipulated Motion to Dismiss Litigation BNP, Town, TCMD, County, TCLLC, TC-RP, TC-HD, TC-WMT, TC Plaza, EMD 1 n/a TCMD Do we need to add any Title Documents (e.g. Sch. A requirements) to go along w/ Deeds for Lot 2, Lot 3, Road Tracts and Easements? HEIL Comments Aug 20, 2012 1015310.2 B-1 EXHIBIT B Document Receipt List Party Designations: For purposes of this Document Receipt List, the Parties are identified using the defined term for such Party. Additionally, certain non-parties to the Escrow Agreement are required to execute and/or cause the deposit into Escrow of a limited number of documents or instruments. Such non-parties are identified for purposes of this Document Receipt List as follows: Alpine: Alpine Bank [need for DOT Releases] Alkali: Alkali [Need to add for BNP director qualification Deeds?] County: Eagle County [need for Motion to Dismiss] SDM: Special District Management Services, Inc. [need for Collection Agmts] VMD: The Village Metropolitan District [need for BNP board position – is this required?] Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Consolidated, Amended and Restated Annexation and Development Agreement for The Village (At Avon) (“Development Agreement”) Town, TCMD, TCLLC, AURA, EMD, Mixed Use PIC, Commercial PIC 8 n/a Town Ordinance No. _________ (approving Development Agreement) Town 1 6 Town Amended and Restated PUD Guide for The Village (At Avon) (“PUD”) n/a 1 1 Town Ordinance No. _________ (approving PUD) Town 1 1 Town Condominium Plat/Map Town, TC Plaza 1 2 Town Resolution No. _________ (Approving Condominium Plat) Town 1 2 Town Traer Creek Plaza Condominium TC Plaza 1 2 TC Plaza 1015310.2 2 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Declaration Release of Deed of Trust as to Parking Unit [Bank?] 1 2 TC Plaza Quit Claim Deed to TCMD for Parking Unit TC Plaza 1 2 TC Plaza Re-Plat of Lot 1 Town, TC-RP 1 1 Town Resolution No. _________ (Approving Replat of Lot 1) Town 1 3 Town Release of Deed of Trust as to Lot 2 (PA-B) [Bank?] 1 2 TC-RP Special Warranty Deed Conveying Lot 2 (PA-B) to Town TC-RP 1 2 TC-RP Release of Deed of Trust as to Lot 3 (PA-E) [Bank?] 1 2 TC-RP Special Warranty Deed Conveying Lot 3 (PA-E) to Town TC-RP 1 2 TC-RP Relocatable Access Easement (to Planning Area I) Town EMD 1 2 Town Resolution No. _________ (Approving Relocatable Access Easement) Town 1 1 Town Resolution No. _________ (Rescinding Water Service Moratorium) Authority 1 3 Authority Special Warranty Deed Conveying Water Rights to Town TCMD 1 2 TCMD Special Warranty Deed Conveying Town 1 2 Town 1015310.2 3 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Water Rights to Authority Water Storage Tank Easement TC-RP, Authority 1 2 TC-RP Access Road Easement TC-RP, Authority 1 2 TC-RP Temporary Construction and Staging Easement TC-RP, Authority 1 2 TC-RP Special Warranty Deed to Town for Public Road Tracts TCMD 1 3 TCMD Special Warranty Deed (Conveying easement rights pertinent to E. Beaver Creek and Chapel Place to Town) TCMD 1 3 TCMD Amendment to Commercial PIF Covenants Commercial PIC 1 1 Commercial PIC Amendment to Mixed-Use PIF Covenants Mixed-Use PIC 1 1 Mixed-Use PIC Asphalt Overlay Escrow Account Agreement Alpine, TCMD, Town, Master Developer 4 n/a Town Resolution No. _________ (approving Asphalt Overlay Agreement) Town 1 3 Town Property Conveyances Bill of Sale to Town for Public Road Tracts TCMD Special Warranty Deed to Town for Wet Well, Pump and Other PIs (real property) [Grantor?] SWD or Bill or Sale – from TC-RP or TCMD? Bill of Sale to 1015310.2 4 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Town for Wet Well, Pump and Other PIs TCMD 1 2 TCMD Agreement to Terminate Parking Facility Easement Agreement TCMD, TCP Agreement to Terminate Common Easement Agreement TCMD, TCP Add-On PIF Collection Services Agreement PIC-C, PIC- M, SDM Revised Point-Of- Sale Placards SDM Revised PIF Return Forms, Instructions and Notice to Retailers SDM Revised Town Sales Tax Return (if necessary) Town BNP’s Blanket Consent to Settlement Transactions BNP Pledge Agreement (Water Storage Tank Project) BNP, TCMD, VMD Should this be in Escrow? Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Purchase and Sale Agreement (qualifying BNP representative to TCMD and VMD [Alkali - need to add?], BNP 1015310.2 5 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Boards) Resolution Appointing BNP to TCMD Board TCMD 1 1 TCMD Resolution Appointing BNP to VMD Board VMD 1 1 VMD Is this required ? Second Amendment to 2003 Funding and Reimbursement Agreement EMD, TCLLC, TCMD Should all of these this be in Escrow, or just the ones requiring interest rate adjmnt? Second Amendment to 2002 Operation Funding Agreement TCLLC, VMD First Amendment to 2006 Operation Funding Agreement TCLLC, VMD Second Amendment to 2007 Operation Funding Agreement TCLLC, VMD First Amendment to 2008 Operation Funding Agreement TCLLC, VMD Second Amendment to Second Amendment to Phase II Construction Management Agreement TCLLC, TCMD First Amendment to Dirt Removal Reimbursement Agreement Should this be in Escrow? 1015310.2 6 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Stipulated Motion to Dismiss Litigation BNP, Town, TCMD, County, TCLLC, TC-RP, TC-HD, TC-WMT, TC Plaza, EMD 1 n/a TCMD [Add Signature Blocks/Dates for Initial and Updates] EXHIBIT C Document Disposition Instructions Party Designations: For purposes of these Document Disposition Instructions, the Parties are identified using the defined term for such Party. Additionally, certain non-parties to the Escrow Agreement are required to execute and/or cause the deposit into Escrow of a limited number of documents or instruments. Such non-parties are identified for purposes of these Document Disposition Instructions as follows: Alpine: Alpine Bank [need for DOT Releases] Alkali: Alkali [Need to add for BNP director qualification Deeds?] County: Eagle County [need for Motion to Dismiss] SDM: Special District Management Services, Inc. [need for Collection Agmts] VMD: The Village Metropolitan District [need for BNP board position – is this required?] RECORDABLE INSTRUMENTS [NOTE – Following to be broken in to Recordable and Deliverable sections, with corresponding changes to column headings. Also, will be organized to reflect actions to be taken on the Implementation Date and actions to be taken on the Outside Date.] [The sequence of recording should be desigated also. I suspect that additional detail may be required for the instructions in this Exhibit.] Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Consolidated, Amended and Restated Annexation and Development Agreement for The Town, TCMD, TCLLC, AURA, EMD, Mixed Use 8 n/a Town 1015310.2 D-2 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Village (At Avon) (“Development Agreement”) PIC, Commercial PIC Ordinance No. _________ (approving Development Agreement) Town 1 6 Town Amended and Restated PUD Guide for The Village (At Avon) (“PUD”) n/a 1 1 Town Ordinance No. _________ (approving PUD) Town 1 1 Town Condominium Plat/Map Town, TC Plaza 1 2 Town Resolution No. _________ (Approving Condominium Plat) Town 1 2 Town Traer Creek Plaza Condominium Declaration TC Plaza 1 2 TC Plaza Release of Deed of Trust as to Parking Unit [Bank?] 1 2 TC Plaza Quit Claim Deed to TCMD for Parking Unit TC Plaza 1 2 TC Plaza Re-Plat of Lot 1 Town, TC-RP 1 1 Town Resolution No. _________ (Approving Replat of Lot 1) Town 1 3 Town Release of Deed of Trust as to Lot 2 (PA-B) [Bank?] 1 2 TC-RP Special Warranty Deed Conveying Lot 2 (PA-B) to Town TC-RP 1 2 TC-RP Release of Deed of Trust as to Lot 3 [Bank?] 1 2 TC-RP 1015310.2 D-3 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd (PA-E) Special Warranty Deed Conveying Lot 3 (PA-E) to Town TC-RP 1 2 TC-RP Relocatable Access Easement (to Planning Area I) Town EMD 1 2 Town Resolution No. _________ (Approving Relocatable Access Easement) Town 1 1 Town Resolution No. _________ (Rescinding Water Service Moratorium) Authority 1 3 Authority Special Warranty Deed Conveying Water Rights to Town TCMD 1 2 TCMD Special Warranty Deed Conveying Water Rights to Authority Town 1 2 Town Water Storage Tank Easement TC-RP, Authority 1 2 TC-RP Access Road Easement TC-RP, Authority 1 2 TC-RP Temporary Construction and Staging Easement TC-RP, Authority 1 2 TC-RP Special Warranty Deed to Town for Public Road Tracts TCMD 1 3 TCMD Special Warranty Deed (Conveying easement rights pertinent to E. Beaver Creek and Chapel Place to Town) TCMD 1 3 TCMD Amendment to Commercial PIF Covenants Commercial PIC 1 1 Commercial PIC 1015310.2 D-4 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Amendment to Mixed-Use PIF Covenants Mixed-Use PIC 1 1 Mixed-Use PIC Asphalt Overlay Escrow Account Agreement Alpine, TCMD, Town, Master Developer 4 n/a Town Resolution No. _________ (approving Asphalt Overlay Agreement) Town 1 3 Town Property Conveyances Bill of Sale to Town for Public Road Tracts TCMD Special Warranty Deed to Town for Wet Well, Pump and Other PIs (real property) [Grantor?] SWD or Bill or Sale – from TC-RP or TCMD? Bill of Sale to Town for Wet Well, Pump and Other PIs TCMD 1 2 TCMD Agreement to Terminate Parking Facility Easement Agreement TCMD, TCP Agreement to Terminate Common Easement Agreement TCMD, TCP Add-On PIF Collection Services Agreement PIC-C, PIC- M, SDM Revised Point-Of- Sale Placards SDM Revised PIF Return Forms, Instructions and Notice to Retailers SDM 1015310.2 D-5 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd Revised Town Sales Tax Return (if necessary) Town BNP’s Blanket Consent to Settlement Transactions BNP Pledge Agreement (Water Storage Tank Project) BNP, TCMD, VMD Should this be in Escrow? Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Resolution Appointing BNP and Developer Representatives to AURA Board AURA, BNP Purchase and Sale Agreement (qualifying BNP representative to TCMD and VMD Boards) [ALKALI - NEED TO ADD?], BNP Resolution Appointing BNP to TCMD Board TCMD 1 1 TCMD Resolution Appointing BNP to VMD Board VMD 1 1 VMD Is this required ? Second Amendment to 2003 Funding and Reimbursement Agreement EMD, TCLLC, TCMD Should all of these this be in Escrow, or just the ones requiring interest rate adjmnt? Second Amendment to 2002 Operation Funding Agreement TCLLC, VMD 1015310.2 D-6 Document or Instrument to be Deposited To Be Signed By # Originals to be Deposited # Copies to be Deposited To Be Deposited By Received (Y or N) Date Rcvd First Amendment to 2006 Operation Funding Agreement TCLLC, VMD Second Amendment to 2007 Operation Funding Agreement TCLLC, VMD First Amendment to 2008 Operation Funding Agreement TCLLC, VMD Second Amendment to Second Amendment to Phase II Construction Management Agreement TCLLC, TCMD First Amendment to Dirt Removal Reimbursement Agreement Should this be in Escrow? Stipulated Motion to Dismiss Litigation BNP, Town, TCMD, County, TCLLC, TC-RP, TC-HD, TC-WMT, TC Plaza, EMD 1 n/a TCMD HEIL Comments Aug 20, 2012 1015310.2 D-1 EXHIBIT D Form of Implementation Notice HEIL Comments Aug 20, 2012 1015310.2 E-1 EXHIBIT E Form of Termination Notice [To be drafted and inserted] HEIL Comments Aug 20, 2012 1015310.2 F-1 EXHIBIT F Form of Outside Date Extension Notice [To be drafted and inserted] HEIL Comments Aug 20, 2012 1015310.2 G-1 EXHIBIT G Proforma Title Insurance Policies [To be drafted and inserted] HEIL Comments Aug 20, 2012 1015310.2 H-1 EXHIBIT H Notice Addresses and Authorized Representatives [To be drafted and inserted] HEIL Comments Aug 20, 2012 1015310.2 I-1 EXHIBIT I Defined Terms 1. Authority means The Upper Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado. 2. Authorized Representative(s) means, which respect to each Party, the individual(s) designated in Exhibit H as having the authority to execute any instrument and/or otherwise act on behalf of such Party in all matters pertaining to this Escrow Agreement. 3. BNP means BNP Paribas, an international bank. 4. Bond Closings means the concurrent closings of the TCMD Bond Reissue and the Tank Project Bonds. 5. Close Escrow means Escrow Agent’s performance of its obligations pursuant to Section 6(a). 6. Closing Conditions means [insert – all Settlement Implementation Docs confirmed in Escrow and in form suitable for recording, if applicable, all Title Documents received, approved and in form suitable for recording if applicable, Closing Fees paid, etc.] [this seems like it may be a long list – would an exhibit and reference be more practical?] 7. Closing Costs means, collectively, the Escrow Fees and the Title Costs. 8. Commercial PIC means The Village (at Avon) Commercial Public Improvement Company, a Colorado non-profit corporation. 9. Deliverable Instruments means that subset of the designated Settlement Implementation Documents consisting of documents or instruments that Escrow Agent is expressly directed to not to record pursuant to the Document Disposition Instructions, but instead is required to deliver to the specified Party or Parties the applicable original(s) and copy(ies) in the manner set forth in the Document Disposition List.. 10. Developer Affiliates means, collectively, TC Plaza, TC-WMT, TC-HD, TC-RP and EMD. 11. Document Deposit List means, as set forth in Exhibit A, the list of Settlement Implementation Documents to be deposited into Escrow from time to time in accordance with the terms and conditions of Paragraph 4. 12. Document Disposition Instructions means, as set forth in set forth in Exhibit C, the instructions to Escrow Agent regarding the sequence of recording of the Recordable Instruments and the disposition of the Deliverable Instruments upon the occurrence of the Implementation Date, and the disposition of the Settlement Implementation Documents upon the occurrence of the Outside Date, which instructions Escrow Agent shall comply with in accordance with the terms and conditions of Section 6. 1015310.2 D-2 13. Document Receipt List means, as set forth in Exhibit B, the list of Settlement Implementation Documents the Parties have deposited into Escrow from time to time and which Escrow Agent has acknowledged receipt of in accordance with the terms and conditions of Paragraph 5. 14. Effective Date has the meaning stated in the initial paragraph of this document. 15. EMD means EMD Limited Liability Company, a Colorado limited liability company. 16. Escrow means Escrow Agent’s retention of the Settlement Implementation Documents in trust for the benefit of the Parties in accordance with the terms and conditions of the Escrow Agreement. 17. Escrow Fees means the fees charged by Escrow Agent with respect to the performance of it obligations and duties pursuant to the Escrow Agreement. 18. Escrow Agent means [Stewart Title of Colorado, Inc., a Colorado corporation], acting in its capacity as escrow agent pursuant to the Escrow Agreement. 19. Escrow Agreement has the meaning stated in the initial paragraph of this document. 20. Exhibit(s) means, individually or collectively, and unless otherwise stated, the exhibits to the Escrow Agreement. 21. Implementation Date means the date designated in the Implementation Notice, upon which Escrow Agent shall Close Escrow. 22. Implementation Notice means the Notice, in the form set forth in Exhibit D, to be delivered to Escrow Agent in accordance with Section 6(a). 23. Litigation means Case Nos. 2008 CV 385 and 2010 CV 316, collectively consolidated as Case No. 2008 CV 385 in Eagle County District Court. 24. Litigation Parties means, collectively, BNP, TCMD, Master Developer, Developer Affiliates and the Town. 25. Master Developer means TCLLC, which the Developer Affiliates have designated to act or thereon their respective behalves with respect to the execution and performance of Master Developer and Developer Affiliate obligations established pursuant to the Escrow Agreement. 26. Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company, a Colorado non-profit corporation. 27. Notice(s) means the delivery of any document or instrument to a Party or Escrow Agent in the manner set forth in Section 18. 1015310.2 D-3 28. Outside Date means June 30, 2013. [June 30, 2013], or such later date as may be designated in an Outside Date Extension Notice delivered to Escrow Agent pursuant to Section 6(c), upon the occurrence of which Escrow Agent shall return the originals and all copies of the Settlement Implementation Documents in accordance with Section 6(b). 29. Outside Date Extension Notice means the Notice, in the form set forth in Exhibit F, which may be delivered to Escrow Agent in accordance with Section 1(a)6(c). 30. Party(ies) means, individually or collectively as the context dictates, BNP, Master Developer, the Commercial PIC, the Mixed Use PIC, TCMD, VMD, the Authority and the Town. 31. Property means the real property described in any of the Recordable Instruments. 32. Recordable Instruments means, as more particularly set forth in the Document Disposition List, that subset of the Settlement Implementation Documents which Escrow Agent shall, upon the occurrence of the Implementation Date, cause to be recorded in the real property records of the Eagle County, Colorado, Clerk and Recorder’s office in the sequence specified in the Document Disposition List. 33. Recital(s) means, individually or collectively, and unless otherwise stated, the recitals set forth in the Escrow Agreement. 34. Record(ed)(ing) means the filing of a document or instrument with the office of the Eagle County Clerk and Recorder. 35. Section(s)/subsection(s) means, individually or collectively, and unless otherwise stated, the sections or subsections of the Escrow Agreement. 36. Settlement Implementation Documents means, collectively and as more particularly the documents set forth in Exhibit A to this Escrow Agreement, consisting of the Recordable Instruments and the Deliverable Instruments. 37. Settlement Term Sheet means that certain Settlement Term Sheet dated October 7, 2011, executed by and among the Litigation Parties. 38. Tank Project Bonds means [tie to definition in Pledge Agreement]. 39. TC-HD means Traer Creek-HD LLC, a Colorado limited liability company. 40. TCLLC means Traer Creek LLC, a Colorado limited liability company. 41. TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 42. TCMD Bond Reissue means TCMD’s restructuring of its Variable Rate Revenue Bonds, Series 2002, and Variable Rate Revenue Bonds, Series 2004. [Note: Need to tie to definition in Pledge Agreement.] 1015310.2 D-4 43. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company. 44. TC-RP means Traer Creek-RP LLC, a Colorado limited liability company. 45. TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company. 46. Termination Notice means the Notice, in the form set forth in Exhibit E, to be delivered to Escrow Agent in accordance with Section 6(b). 47. Title Company means [Stewart Title of Colorado, Inc., a Colorado corporation], acting in its capacity as title insurance company as referenced in Section 7. 48. Town means the Town of Avon, Colorado, a home rule municipal corporation of the State of Colorado. 49. VMD means The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 1012717.1 1 When recorded, return to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. Attn: Munsey Ayers 950 17th St., Ste. 1600 Denver, CO 80202 SECOND AMENDMENT TO DECLARATION OF COVENANTS FOR THE VILLAGE (AT AVON) COMMERCIAL AREAS THIS SECOND AMENDMENT TO DECLARATION OF COVENANTS FOR THE VILLAGE (AT AVON) COMMERCIAL AREAS (this “Amendment”) is made as of ______________, 20___, with the consent of TRAER CREEK-RP LLC, a Colorado limited liability company (“Declarant”). Except as otherwise defined in this Amendment, all capitalized terms used in this Amendment have the meaning given for them in the Declaration. Recitals A. Traer Creek LLC, a Colorado limited liability company, as the original “Declarant,” executed and recorded that certain Declaration of Covenants for The Village (at Avon) Commercial Areas dated as of May 8, 2002 and recorded in the real property records of Eagle County, Colorado (the “Records”) on May 8, 2002 at Reception No. 795012 (“Original Declaration”). B. By virtue of that certain Special Warranty Deed dated as of May 8, 2002 and recorded in the Records on May 8, 2002 at Reception No. 795023, Declarant is the successor to Traer Creek LLC as “declarant” under the Original Declaration. C. The Original Declaration subsequently was amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas dated as of June 5, 2008 and recorded in the Records on June 10, 2008 at Reception No. 200812111 (the “First Amendment”). D. The Original Declaration as amended by the First Amendment is referred to herein as the “Declaration.” E. The purpose of this Amendment is to implement certain terms and conditions of the Annexation and Development Agreement (as defined in Section 1(a) below) pertaining to the implementation and imposition of a retail sales fee to be applied to Taxable Transactions occurring within the Property, which fee does not result in an offsetting credit against the Town’s Sales Tax obligation. F. Pursuant to Section 13.1(f) of the Declaration, subject to certain restrictions, the Declaration may be amended by the affirmative vote or written consent of the Owners of Units to which more than 67% of the votes in the Company are allocated, provided that during the Declarant Control Period any such amendment shall also require the approval of Declarant. 1012717.1 2 G. This Amendment has been submitted to the Owners of the Units for their written consent and has been consented to in writing by Owners of Units to which more than 67% of the votes in the Company are allocated. In addition, Declarant desires to consent to this Amendment as indicated by the Declarant consent attached to this Amendment. Amendment NOW, THEREFORE, the Declaration is amended as follows and pursuant to the following provisions: 1. Amendments. (a) Definitions. (i) Annexation and Development Agreement. Section 2.6 of the Declaration is hereby deleted in its entirety and in its place inserted the following: 2.6 Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of _____________, 20____ by and between the Town, the Service District, Declarant and EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority, the Company and The Village (at Avon) Mixed-Use Public Improvement Company, all as limited parties, and Recorded on or about even date herewith, as amended from time to time. (ii) New Definitions. Article 2 of the Declaration is hereby amended by the insertion of the following definitions: Add-On Retail Sales Fee. The Retail Sales Fee described in Section 7.4. Add-On Retail Sales Fee Collection Agreement. Is defined in the Annexation and Development Agreement. Add-On Retail Sales Fee Rate. The Retail Sales Fee Rate described in Section 7.5(c). Credit Retail Sales Fee. The Retail Sales Fee described in Section 7.4. Credit Retail Sales Fee Rate. The Retail Sales Fee Rate described in Section 7.5(c). District Obligations. Is defined in the Annexation and Development Agreement. 1012717.1 3 Municipal Services Revenues. Is defined in the Annexation and Development Agreement. Permitted Uses. Is defined in Section 7.10. Project Costs. Is defined in Section 7.10. (b) Retail Sales Fee. Section 7.4 of the Declaration is hereby amended by inserting as a new first sentence to Section 7.4 the following: The Retail Sales Fee is comprised of the following two components: (a) the “Credit Retail Sales Fee,” which is the portion of the Retail Sales Fee that, when applied to and collected on Taxable Transactions in accordance with this Article 7, shall result in an offsetting credit against the Sales Tax obligation pursuant to the terms of the Annexation and Development Agreement; and (b) the “Add-On Retail Sales Fee,” which is the portion of the Retail Sales Fee that, when applied to and collected on Taxable Transactions in accordance with this Article 7, shall not result in an offsetting credit against the Sales Tax obligation. (c) Retail Sales Fee Rate. Section 7.5(c) of the Declaration is hereby deleted in its entirety and in its place inserted the following: (c) Retail Sales Fee Rate. The percentage rate(s) of the Retail Sales Fee (the “Retail Sales Fee Rate”) shall be established by the Company from time to time and may vary as applied to the Credit Retail Sales Fee and as applied to the Add-On Retail Sales Fee. The Retail Sales Fee Rate of the Credit Retail Sales Fee (the “Credit Retail Sales Fee Rate”) shall, without the prior written approval of the Service District and, during the Declarant Control Period, Declarant, be set at the same rate as the percentage tax rate imposed by the Town pursuant to the Sales Tax. The Retail Sales Fee Rate of the Add-On Retail Sales Fee (the “Add-On Retail Sales Fee Rate”) shall, without the prior written approval of the Declarant during the Declarant Control Period, not be greater than 0.75%. (d) Discontinuation of the Fees. Section 7.9 of the Declaration is hereby deleted in its entirety and in its place inserted the following: 7.9 Discontinuation of the Fees. The Company shall be obligated and authorized to levy and collect the Fees pursuant to this Article 7 for so long as the Town maintains the Tax Credit in full force and effect and any District Obligations (as defined in the Annexation and Development Agreement) remain outstanding pursuant to [Section 6.2(a)] of the Annexation and Development Agreement; provided, however, the Company shall be further authorized to levy and collect the Add-On Retail Sales Fee pursuant to this Article 7 upon and after the Town terminates the Tax Credit. Notwithstanding the foregoing, if the Company is authorized to discontinue collecting the Fees pursuant to this Section 7.9 and the 1012717.1 4 Town desires to begin imposing any tax under the Municipal Code that is equivalent to any such Fee, excluding the Add-On Retail Sales Fee (e.g., the Real Property Transfer Tax would be considered the equivalent of the Real Estate Transfer Fee) but is prevented from collecting such tax due to Article X, Section 20, of the Constitution of the State of Colorado, the Company shall not discontinue collecting such Fee (excluding the Add-On Retail Sales Fee) and shall remit the payments collected pursuant to such Fee to the Town as required by the Annexation and Development Agreement. (e) Add-On Retail Sales Fees. Article 7 of the Declaration is hereby amended by inserting a new Section 7.10 into Article 7 of the Declaration as follows: 7.10 Use of Add-On Retail Sales Fees. The revenues generated by the Add-On Retail Sales Fee imposed pursuant to this Article 7 may be used for the payment of (a) Municipal Services Revenues (as defined in the Annexation and Development Agreement) to the Town for the purposes stated in [Section 6.5] of the Annexation and Development Agreement; (b) the “Project Costs” (as defined below); and (c) other matters as otherwise expressly provided for in this Declaration and/or the Annexation and Development Agreement (collectively, the “Permitted Uses”). By accepting title to a Unit or a Leasehold Estate, each Owner and Leasehold Owner acknowledges: (i) that the Company, the Service District, the Town and/or the Declarant, as applicable, will use the revenues generated by the Add-On Retail Sales Fee for the Permitted Uses, which will benefit the Units and the Property; and (ii) that the obligation to pay the Add-On Retail Sales Fees pursuant to this Declaration touches and concerns the Property and the Units and is a real covenant running with the land as well as a personal contractual obligation of Owners and Leasehold Owners. For purposes of this Article 7, the “Project Costs” shall mean and include the costs and expenses to provide or undertake the following with respect to the Property: (A) on-site and off-site public and private infrastructure improvements and amenities benefitting the Property and the Units, which may include, but are not limited to, streets, parking lots and facilities, sidewalks, utilities (wet and dry), storm water and water quality management facilities, trail systems, landscaping, project and directional signage, right-of-way and easement acquisitions, open space, project lighting, traffic control devices, and similar improvements and amenities as determined by Declarant, and/or the Company; (B) economic development activities with respect to the Property, including, without limitation, provision of incentives to retain existing retailers and service providers within and attracting new retailers and service providers to the Property; (C) ongoing maintenance and related services that Declarant or the Company may undertake for the common benefit of the Property at the direction of Declarant, including, but not limited to, general common area maintenance and the installation and maintenance of landscaping, lighting, signage, marketing and promotional programs for the Property, and 1012717.1 5 similar functions, including without limitation, engaging consultants in connection with such services, that will benefit the Property, and that will benefit the Owners and Leasehold Owners; (D) planning, designing, engineering, construction engineering, financing, acquiring, construction surveying, constructing, managing construction of and installing the on- site and off-site public and private infrastructure improvements and amenities benefitting the Property and the Units, together with all land or interests in land necessary for the completion of the same, and all other costs and expenses incurred or advanced in connection with the financing, acquisition, construction and completion of the on-site and off-site public and private infrastructure improvements and amenities benefitting the Property and the Units, including, without limitation, maintenance, repair and replacement costs incurred therefor; (E) any other functions the Company is authorized to perform under its governing documents or under the terms and conditions of this Declaration as amended from time to time in accordance with its terms; and (F) the Company’s organization and/or management. (f) Amendments Concerning the Fees. Section 13.3 of the Declaration is hereby deleted in its entirety and in its place inserted the following: 13.3 Amendments Concerning Fees. Notwithstanding any provision of this Declaration to the contrary, (a) neither Article 7 of this Declaration, nor any other provision of this Declaration nor the Fee Assignment Agreement may be amended without the prior written consent of the Service District and the LOC Issuer in any manner that would materially impact or impair the ability or authority of the Company to collect any of the Fees (excluding the Add-On Retail Sales Fees) and remit the same to the Service District in accordance with the terms and conditions of this Declaration and the Fee Assignment Agreement; and (b) neither Article 7 of this Declaration, nor any other provision of this Declaration nor the Add-On Retail Sales Fee Collection Services Agreement (as defined in the Annexation and Development Agreement) may be amended without the prior written consent of the Town in any manner that would materially impact or impair the ability or authority of the Company to collect that portion of the Add-On Retail Sales Fees comprising the Municipal Services Revenues (as defined in the Annexation and Development Agreement) and remit the same to the Town in accordance with the terms and conditions of this Declaration, the Annexation and Development Agreement and the Add-On Retail Sales Fee Collection Services Agreement. 2. Effect. Except as expressly modified herein, the Declaration is unmodified, is hereby ratified and affirmed and will remain in full force and effect in accordance with its terms. If there is any inconsistency between the terms of the Declaration and the terms of this Amendment, the provisions of this Amendment will govern and control. 1012717.1 6 3. Counterparts. This Amendment may be executed in multiple counterparts, the individual signatures pages of which may be collated together to form one original fully executed version of this Amendment for the purpose of Recording. 4. Recording. This Amendment and the certificate included as a part of this Amendment shall be Recorded in the Records, as required by Section 13.2(c) of the Declaration. [Company Certificate Follows This Page] 1012717.1 7 Company Certificate IN WITNESS WHEREOF, _________________________, as President of The Village (at Avon) Commercial Public Improvement Company, a Colorado nonprofit corporation, certifies that this Amendment has been consented to in writing by the requisite number of Owners pursuant to Section 13.1(f) of the Declaration. Such written consents are available for review by any interested party at the principal offices of the company located at 0101 Fawcett Road, Suite 210, Avon, CO 81620. THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: President STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ___ day of _______________, 20___, by _______________________, as President of The Village (at Avon) Commercial Public Improvement Company, a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: . Notary Public 1012717.1 8 Declarant Consent IN WITNESS WHEREOF, Traer Creek-RP, LLC, a Colorado limited liability company, in its capacity as Declarant, hereby consents to this Amendment as required by Section 13.1(f) of the Declaration. TRAER CREEK-RP LLC, a Colorado limited liability company By: Traer Creek LLC, a Colorado limited liability company, its Manager By: Name: By: Manager STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ___ day of ________________, 20___, by ______________________, as Manager of Traer Creek LLC, a Colorado limited liability company, as Manager of Traer Creek-RP LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: . Notary Public Heil Comments – Aug. 20, 2012 1013284.1 ADD-ON RETAIL SALES FEE COLLECTION SERVICES AGREEMENT THIS ADD-ON RETAIL SALES FEE COLLECTION SERVICES AGREEMENT (this “Agreement”) dated as of the ____ day of ____________, 20___ (“Effective Date”), is entered into by and among SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation (“SDMS”); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Commercial PIC”); THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Mixed-Use PIC”); and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Town”). [General Comment: There are several terms throughout this document which may require updating based on terms used in Annexation Agreement] RECITALS This Agreement is made with reference to the following facts: A. Capitalized terms used in this Agreement have the meanings set forth in Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this Agreement. B. Pursuant to the Commercial Declaration (i) Commercial Declarant has imposed a Retail Sales Fee on certain sales, provision of goods or services, construction activities and certain other transactions occurring within the Commercial Property; and (ii) the Retail Sales Fee consists of two components, the Credit Retail Sales Fee (as defined in the Commercial Declaration) and the Add-On Retail Sales Fee. C. Pursuant to the Mixed-Use Declaration (i) Mixed-Use Declarant has imposed a Retail Sales Fee on certain sales, provision of goods or services, construction activities and certain other transactions occurring within the Mixed-Use Property; and (ii) the Retail Sales Fee consists of two components, the Credit Retail Sales Fee (as defined in the Mixed-Use Declaration) and the Add-On Retail Sales Fee. D. Commercial Declarant, Mixed-Use Declarant, the Commercial PIC, the Mixed- Use PIC, the Town and certain other Persons previously have entered into the Annexation and Development Agreement. E. Pursuant to the Annexation and Development Agreement and the Commercial Declaration, the Town’s and the Commercial PIC’s receipt of and use of the Add-On RSF Revenues derived from the Commercial Property are subject to the terms and conditions of the Annexation and Development Agreement and the Commercial Declaration. F. Pursuant to the Annexation and Development Agreement and the Mixed-Use Declaration, the Town’s and the Mixed-Use PIC’s receipt of and use of the Add-On RSF Revenues derived from the Mixed-Use Property are subject to the terms and conditions of the Annexation and Development Agreement and the Mixed-Use Declaration. Heil Comments – Aug. 20, 2012 1013284.1 2 G. The PICs wish to appoint SDMS, and SDMS wishes to accept such appointment, as their agent to collect, receive, disburse and account for all Add-On RSF Revenues, if any, in accordance with the terms and conditions of, as applicable, the Commercial Declaration, the Mixed-Use Declaration and the Annexation and Development Agreement, as set forth in this Agreement, and the Town wishes to consent to such appointment. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements, promises and covenants herein contained, the Parties mutually undertake, promise, and agree for themselves, their respective representatives, successors and assigns, as follows: SECTION 1 Add-On RSF Collection Agent Functions 1.1. Appointment of SDMS as Agent of the PICs and the Town. (a) Appointment and Acceptance. The PICs hereby appoint SDMS as their and the Town’s agent, the Town hereby consents to such appointment, and SDMS hereby accepts such appointment, for purposes of (i) receiving, collecting, accounting for and administering all Add-On RSF Revenues paid by Add-On RSF Obligors, and (ii) remitting and disbursing all Add-On RSF Revenues to the Commercial PIC, the Mixed-Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town, or as otherwise required pursuant to this Agreement), during the term of and subject to the terms and conditions of this Agreement. By the execution of this Agreement, SDMS accepts the responsibility of receiving the Add-On RSF Revenues from Add-On RSF Obligors and depositing such Add-On RSF Revenues in the Commercial PIC Add-On RSF Account, the Mixed-Use PIC Add-On RSF Account, the Town Add-On RSF Account and/or the Asphalt Overlay Account, as applicable, within seven business days after receipt thereof, subject to the terms and conditions of this Agreement. (b) Agency Relationship. SDMS is not the agent of any Person other than the PICs and the Town and will have only those responsibilities expressly set forth in this Agreement. (c) Ownership of Add-On RSF Revenues. Notwithstanding the appointment of SDMS as the PICs’ and the Town’s agent for the purposes and subject to the limitations set forth in this Agreement, (i) the Commercial PIC and the Town are the lawful beneficiaries of the Add-On RSF Revenues derived from the Commercial Property in accordance with the terms of the Commercial Declaration and the Annexation and Development Agreement; and (ii) the Mixed-Use PIC and the Town are the lawful beneficiaries of the Add-On RSF Revenues derived from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration and the Annexation and Development Agreement. SDMS hereby acknowledges that, as more fully set forth in this Agreement, the Add-On RSF Revenues collected pursuant to this Agreement are the property of the PICs and the Town and that SDMS will distribute the Add-On RSF Heil Comments – Aug. 20, 2012 1013284.1 3 Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement) in accordance with the terms of this Agreement. 1.2. Notification to SDMS of Add-On RSF Obligors. The Commercial PIC and the Mixed-Use PIC will employ commercially reasonable efforts to provide SDMS with prior written notice of each new Add-On RSF Obligor engaging or intending to engage in Add-On RSF Retail Activities of which the Commercial PIC and/or Mixed-Use PIC, as applicable, has knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such Add-On RSF Obligor. Additionally, SDMS will coordinate with the [Director of Finance] to obtain notification from the Town of each new Sales Tax license or business license issued to an Add-On RSF Obligor within the Property. SDMS will maintain a written list of each active Add-On RSF Obligor within the Commercial Property and the Mixed-Use Property (a “Add-On RSF Obligor List”). SDMS will include a current copy of the Add-On RSF Obligor List within each Monthly Add-On RSF Report, and will coordinate with the Director of Finance to ensure that the Add-On RSF Obligor List is updated to reflect each Add-On RSF Obligor which then holds a valid Sales Tax license or business license issued by the Town. In preparing and updating the Add-On RSF Obligor List, SDMS will be entitled to rely exclusively on the information provided by the PICs and the Director of Finance with no independent obligation of SDMS to investigate or verify the information. 1.3. Remittance of Add-On RSF Revenues to SDMS. In performing its obligations under this Agreement, SDMS will be entitled to rely on all reports furnished pursuant to this Section 1.3 without any obligation to investigate or independently verify the information in such reports. For so long as the Add-On Retail Sales Fee is imposed pursuant to the terms and conditions of the Commercial Declaration, each Add-On RSF Obligor is obligated to: (i) calculate the Add-On Retail Sales Fee amount due and payable on Add-On RSF Retail Activities conducted by such Add-On RSF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS an Add-On RSF Reporting Form covering all transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On RSF Revenues due for such Reporting Period; and (iii) remit such Add-On RSF Revenues to SDMS, together with the corresponding Add-On RSF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On Retail Sales Fee is imposed pursuant to the terms and conditions of the Mixed-Use Declaration, each Add-On RSF Obligor is obligated to: (i) calculate the Add-On Retail Sales Fee amount due and payable on Add-On RSF Retail Activities conducted by such Add-On RSF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS an Add-On RSF Reporting Form covering all transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On RSF Revenues due for such Reporting Period; and (iii) remit such Add-On RSF Revenues to SDMS, together with the corresponding Add-On RSF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. 1.4. Deposit of Add-On RSF Revenues by SDMS. Not later than the seventh business day after receipt of any Add-On RSF Revenues from Add-On RSF Obligors, SDMS will deposit such Add-On RSF Revenues as follows: (a) Establishment of Accounts. Heil Comments – Aug. 20, 2012 1013284.1 4 1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account will be established with Alpine Bank, Avon Branch, subject to the following: The Asphalt Overlay Account will be established by EMD Limited Liability Company, Traer Creek LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and conditions of the Annexation and Development Agreement and the Asphalt Overlay Agreement. The only signatories to the Asphalt Overlay Account will be those parties expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and SDMS will not be a signatory on the Asphalt Overlay Agreement or have authority to transfer funds from or draw checks on the Asphalt Overlay Agreement. The Asphalt Overlay Account may be moved from Alpine Bank, Avon Branch, to another bank or another branch location of Alpine Bank in accordance with the terms and conditions of the Asphalt Overlay Agreement and only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. 2. Town Add-On RSF Account. Initially, the Town Add-On RSF Account will be established with _______________________, subject to the following: The Town Add-On RSF Account will be established by the Town upon such terms as it deems appropriate using the Town’s Federal Employer Identification Number. The Town’s authorized representative(s), or such designees as the Town in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on Town Add-On RSF Account or have authority to transfer funds from or draw checks on Town Add-On RSF Account. The Town may move Town Add-On RSF Account from ______________________ to another bank or another branch location of _______________________ only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. [I don’t understand the need for the Town to establish a separate bank account for receipt of the Add-On RSF revenues. The funds should be simply sent to the Town directly for deposit in the Town’s general fund]. 3. PIC Add-On RSF Account. Initially, the PIC Add-On RSF Account will be established with _______________________, subject to the following: The PIC Add-On RSF Account will be established by the PICs upon such terms as the PICs deem appropriate using the PICs’ Federal Employer Identification Numbers. Each of the PIC’s authorized representative(s), or such designees as each of the PICs in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on the PIC Add-On RSF Account or have authority to transfer funds from or draw checks on the PIC Add-On RSF Account. The PICs may move the PIC Add-On RSF Account from ______________________ to another bank or another branch location of _______________________ only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. (b) Deposit. SDMS initially will deposit the Add-On RSF Revenues in a separate account from any other funds, including without limitation, the Credit Retail Sales Fee Revenues. Thereafter, SDMS will transfer the Add-On RSF Revenues from such segregated account and deposit the Add-On RSF Revenues as follows, and, upon depositing such funds, SDMS will have no further obligation with respect to such Heil Comments – Aug. 20, 2012 1013284.1 5 Add-On RSF Revenues (except with respect to the preparation, distribution and retention of relevant records, reports and audits as required by other provisions of this Agreement): 1. Asphalt Overlay Account. SDMS will deposit all or a portion of the Municipal Services Revenues into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (A) Initial Five Years. Commencing in 2012 and continuing through and including November 1, 2016, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Services Revenues actually received by SDMS. (B) Subsequent Years. Commencing in 2017 and continuing through and including the date on which the Funding Termination occurs, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of Municipal Services Revenues actually received by SDMS. The PICs and the Town will deliver joint written notice to SDMS (“Joint Notice”), which Joint Notice will specify the date of the Funding Termination. SDMS will be entitled to rely on the accuracy of the date of the Funding Termination contained in the Joint Notice without obligation to investigate or independently verify the such date. No deposits of Add-On RSF Revenues will be made in the Asphalt Overlay Account from and after the day after the date of the occurrence of the Funding Termination. 2. Town Add-On RSF Account. After deposit of the applicable portion of the Municipal Services RevenuesPayments in the Asphalt Overlay Account, if any, in accordance with Subsection 1 above, SDMS will deposit the remaining portion of the Municipal Services RevenuesPayments, if any, actually received by SDMS into the Town Add-On RSF Account on a monthly basis continuing through and including the date on which the Tax Credit Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit Termination. SDMS will be entitled to rely on the accuracy of the date of the Tax Credit Termination contained in the Joint Notice without obligation to investigate or independently verify the such date. No deposits of Add-On RSF Revenues, including without limitation, the Municipal Services RevenuesPayment, will be made in the Town Add-On RSF Account from and after the day after the occurrence of the Tax Credit Termination, and the PICs (or their designees) will thereafter be entitled to receive all Add-On RSF Revenues. 3. PIC Add-On RSF Account. SDMS will deposit any portion of the Add-On RSF Revenues not comprising the Municipal Services Revenues andPaymentsand actually received by SDMS into the PIC Add-On RSF Account on a monthly basis. Heil Comments – Aug. 20, 2012 1013284.1 6 1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial PIC and/or the Mixed-Use PIC, SDMS will obtain and thereafter maintain in full force for so long and in such amount as set forth in such written request, a fidelity bond in a form and from an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of SDMS to be paid by the PICs. SECTION 2 Preparation and Disbursement of Reports; Audits 2.1. Preparation and Delivery of Monthly Add-On RSF Reports by SDMS. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On RSF Report containing all information required therein with respect to all Add- On RSF Revenues received within such month. SDMS will retain the original of each Monthly Add-On RSF Report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each Monthly Add-On RSF Report to the PICs and the Town. 2.2. Reliance on Add-On RSF Obligors’ Reports. In preparing the Monthly Add- On RSF Reports, SDMS will be entitled to rely on the accuracy of the information contained in the Add-On RSF Reporting Forms received from Add-On RSF Obligors from time to time without obligation to investigate or independently verify the information contained therein. 2.3. Provision of Add-On RSF Information. Within 10 days after receipt of written notice from the Commercial PIC and/or the Mixed-Use PIC, and on or before January 1 of each calendar year, SDMS will provide each Add-On RSF Obligor listed on the Add-On RSF Obligor List with (i) all then-current Information or policies and procedures adopted by the Commercial PIC or Mixed-Use PIC, as applicable, regarding the calculation, payment and reporting of Add- On RSF Revenues, and (ii) all then-current Add-On RSF Reporting Form(s), procedures and other instructions concerning the collection and remittance of Add-On RSF Revenues to SDMS, including all information required under the Commercial Declaration or the Mixed-Use Declaration, as applicable. In performing the foregoing obligation, SDMS will be entitled to rely on information supplied to it by the PICs and the Director of Finance, and will coordinate with the PICs and the Director of Finance to update all Information and relevant forms prior to distributing them to Add-On RSF Obligors. If the PICs change such reporting forms, procedures or other instructions, the PICs promptly will communicate such changes to SDMS and the Town, and SDMS will provide notice thereof to all RSF Add-On Obligors then listed on the Add-On RSF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will be substantially similar in form to those used or required by the Town for remittance of Sales Taxes. SDMS will function as the primary contact for Add-On RSF Obligors with respect to Information and other forms, procedures and instructions pertinent to collection and remittance of Add-On RSF Revenues, and will coordinate with the PICs and the Town with respect thereto. 2.4. Delinquency Notices for Retail Fee Obligors. (a) First Delinquency Notices. Not later than the 15th day following the applicable Fee Remittance Date, SDMS will send a first delinquency notice by certified mail to any Add-On RSF Obligor that: (i) fails to remit Add-On RSF Revenues during Heil Comments – Aug. 20, 2012 1013284.1 7 the immediately preceding or any other prior Reporting Period; or (ii) SDMS has reasonably determined based solely on information contained in the Add-On RSF Obligor’s Add-On RSF Reporting Forms, without obligation to investigate or independently verify the accuracy of such information, to have remitted an incorrect amount for any prior Reporting Period. In making any such delinquency determination, SDMS will coordinate with the Director of Finance as reasonably necessary. Such delinquency notice will state that Delinquency Costs (as defined in the Commercial Declaration or Mixed-Use Declaration, as applicable) apply. SDMS will send copies of all first delinquency notices to the PICs and the Town, together with a report listing the name of each Add-On RSF Obligor to whom a first delinquency notice was sent, the amount of such delinquency, and the period for which such Add-On RSF Obligors are delinquent. (b) Second Delinquency Notices. Not later than the 15th day following SDMS’ issuance of the first delinquency notice as required by Section 2.4(a), SDMS will send a second delinquency notice by certified mail to any Add-On RSF Obligor that has not paid any delinquent amount of Add-On RSF Revenues as specified in the first delinquency notice. SDMS will send copies of such second delinquency notices to the PICs and the Town, together with a report listing the name of each Add-On RSF Obligor to whom a second delinquency notice was sent, the amount of such delinquency, and the period for which such Add-On RSF Obligors are delinquent. SDMS will not be obligated to distribute additional delinquency notices to any Add-On RSF Obligor after the second delinquency notice. (c) Other Actions. In addition to the first and second delinquency notices provided for in Sections 2.4(a) and 2.4(b), SDMS will, upon receipt of a written request therefor by the Commercial PIC, Mixed-Use PIC or the Town, send a written notice to any Add-On RSF Obligor whom the Commercial PIC, Mixed-Use PIC or the Town believes has not fully complied with its obligations under the Commercial Declaration or Mixed-Use Declaration, as applicable, specifying the nature and extent of such Add-On RSF Obligor’s non-compliance and requesting that such Add-On RSF Obligor immediately remedy such non-compliance. The requesting Person will provide SDMS with information sufficient to enable SDMS to prepare and send such notice, and SDMS will provide a copy of all such notices to the PICs and the Town. In sending the notice required by this Section 2.4(c), SDMS may rely upon the information furnished by the Person requesting the notice without any obligation to investigate or independently verify such information. Other than the obligation to send the notices provided for in Sections 2.4(a) and 2.4(b) and this Section 2.4(c), SDMS will have no obligation to undertake any enforcement action of any nature. 2.5. Confidentiality of Add-On RSF Reporting Forms. Except to the extent required to be included in any report or to be made available for review and audit as required or permitted under the terms of this Agreement, SDMS will maintain in confidence all reports, information or data concerning Taxable Transactions or Add-On RSF Revenues received by SDMS from Add-On RSF Obligors unless otherwise required to be made public by law. All such information will be used only for purposes of collecting the Add-On RSF Revenues, enforcing Add-On RSF Obligors’ obligations under the Commercial Declaration and Mixed-Use Heil Comments – Aug. 20, 2012 1013284.1 8 Declaration, as applicable, monitoring compliance with the provisions of the Commercial Declaration and Mixed-Use Declaration, complying with SDMS’ reporting obligations under this Agreement to the PICs and the Town, or as otherwise may be authorized under the Commercial Declaration or Mixed-Use Declaration. 2.6. Audits. Within 30 calendar days after the end of each calendar year, SDMS will prepare and deliver to an auditor approved in writing by the PICs all materials necessary for preparation of an audit of SDMS’ accounting of all Add-On RSF Revenues received and disbursed in the immediately preceding calendar year, which audit procedures are generally described in Exhibit E. SDMS will exercise commercially reasonable efforts to cause the auditor to provide to SDMS an annual audited report setting forth the Add-On RSF Revenues received and disbursed by SDMS for the preceding calendar year for delivery to the PICs and the Town within 90 calendar days after the end of the preceding calendar year. In compiling the information to be provided for the audit, SDMS may rely on information provided as required or permitted under this Agreement without any further obligation to investigate or independently verify the accuracy of such information. The PICs will reimburse SDMS for its reasonable costs and expenses incurred in performing and delivering the annual audit, which reimbursement amount is a Collection Expense which will be paid from Add-On RSF Revenues (the Municipal Services Revenues deposited in the Town Add-On RSF Account will be net of Collection Expenses as provided in paragraph 32 of Exhibit A). At reasonable times during regular business hours, the PICs and the Town are hereby authorized to audit, or cause audits to be conducted of, SDMS’ books and records with respect to the collection and disbursement of Add- On RSF Revenues. If an independent audit uncovers any deficiency in SDMS’ performance of its obligations under this Agreement, SDMS will promptly cure such deficiency and, to the extent such deficiency consists of SDMS’ failure to disburse Add-On RSF Revenues to the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, due to the negligence or misconduct of SDMS, SDMS will, within 6010 days after notice from the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, pay the full amount of such deficiency to the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, together with interest thereon at a rate equal to 2% above the prime rate published in the Wall Street Journal on the date of discovery of such deficiency and notice thereof to SDMS. The partyParty(ies) performing any such audit will bear the full costs and expense of performing such audit. The PICs will reimburse SDMS for its reasonable costs and expenses incurred in connection therewith, which reimbursement amount will be a Collection Expense which will be paid from Add-On RSF Revenues (the Municipal Services Revenues deposited in the Town Add-On RSF Account will be net of Collection Expenses as provided in paragraph 32 of Exhibit A); provided, however, that SDMS will be responsible for all costs and expenses of any audit which discloses a material deficiency in SDMS’ performance of its obligations under this Agreement to the extent such deficiency is due to the negligence or misconduct of SDMS. SECTION 3 General 3.1. Covenants of the Parties. (a) Representations and Warranties. Each Party hereby represents and warrants to and for the benefit of the other Parties: Heil Comments – Aug. 20, 2012 1013284.1 9 1. That it has full power and legal authority to enter into this Agreement; 2. That it has taken or performed all acts or actions that may be required by statute or charter to confirm its authority to execute, deliver and perform each of its obligations under this Agreement; and 3. That neither the execution and delivery of this Agreement, nor compliance with any of the terms, covenants or conditions of this Agreement will result in a violation of or default under any other agreement or contract to which it is a party or by which it is bound. (b) Information. Each Party will provide such information reasonably requested by the other Parties from time to time to allow such Parties to fulfill their respective obligations under this Agreement, the Commercial Declaration and the Mixed- Use Declaration, as applicable. (c) Cooperation. The Parties will cooperate with each other and will undertake any reasonably necessary action that is required to support or assist in the collection, remittance and reporting of all Add-On RSF Revenues payable by Add-On RSF Obligors pursuant to the Commercial Declaration and the Mixed-Use Declaration. 3.2. Nature of Add-On RSF. The Parties acknowledge and understand that: (i) the Add-On Retail Sales Fee is a charge imposed pursuant to the Commercial Declaration and the Mixed-Use Declaration for the benefit of the Commercial PIC and the Mixed-Use PIC, respectively, and other beneficiaries specified therein and not through the exercise of any power by the Town; (ii) the Add-On RSF Revenues are not tax revenues in any form; (iii) all Add-On RSF Revenues are the property of the PICs and the Town to be used for the purposes set forth in the Annexation and Development Agreement, the Commercial Declaration and the Mixed-Use Declaration; and (iv) SDMS’ role in assisting the PICs to collect the Add-On RSF Revenues is derived through this Agreement and is limited by and will be exercised only in accordance with the terms of this Agreement. 3.3. Bankruptcy of Add-On RSF Obligors. If any Party receives actual notice in writing with respect to any action in the bankruptcy of any Add-On RSF Obligor, such Party will, as soon as practicable, give notice or convey copies of such notice which it received to the other Parties. 3.4. Limitation of SDMS Duties. The duties and responsibilities of SDMS are limited to those expressly and specifically stated in this Agreement. SDMS will not be liable or responsible for any loss resulting from any investment or reinvestment made pursuant to this Agreement and made in compliance with the provisions hereof. SDMS will not be personally liable or responsible for any act which it may do or omit to do hereunder, while acting with commercially reasonable care, except for duties expressly imposed upon SDMS hereunder or as otherwise expressly provided herein. SDMS will neither be under any obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commercial PIC, the Mixed-Use PIC or the Town of any of their respective obligations under this Agreement, the Heil Comments – Aug. 20, 2012 1013284.1 10 Annexation and Development Agreement, the Commercial Declaration or the Mixed-use Declaration, nor will SDMS be responsible in any manner for the recitals, statements or provisions contained in this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, or in any proceedings taken in connection therewith, such recitals, statements and provisions being made solely by the Commercial PIC, the Mixed-Use PIC and the Town, as applicable. Nothing in this Agreement creates any obligation or liability on the part of SDMS to anyone other than the PICs and the Town. 3.5. Compensation. In consideration of SDMS’ performance of services under this Agreement, SDMS will receive such fees, reimbursable expenses and extraordinary reimbursable expenses as determined by the Parties and described in Exhibit F. The rates described in Exhibit F will be subject to annual adjustment by the written mutual consent of the PICs and the Town, which adjustment shall not require an amendment to this Agreement. No new fee schedule will become effective until 30 days after SDMS has given the PICs written notice thereof. Except with respect to specific matters expressly addressed in other provisions of this Agreement to the contrary, the PICs will pay all fees and expenses owed to SDMS for its services pursuant to this Agreement, which fees and expenses are a Collection Expense which will be paid from Add-On RSF Revenues (the Municipal Services RevenuesPayments deposited in the Town Add-On RSF Account will be net of Collection Expenses as provided in paragraph 32 of Exhibit A). Payment will be made to SDMS on a monthly basis for the prior month’s fees and charges within 30 days after receipt of SDMS’ statement therefor. Without limitation of the foregoing: (a) The PICs will be solely responsible for payment of SDMS’ costs and expenses for administration of the Add-On RSF Revenues pursuant to this Agreement. (b) The PICs will be solely responsible for payment of SDMS’ reasonable costs and expenses, including attorneys’ fees, incurred prior to execution of this Agreement for negotiation of this Agreement and for activities in furtherance of entering into this Agreement, such payment to be made within 30 days after receipt of SDMS’ invoice therefor. [Is the legal invoice to be deducted from the Add-On RSF?] 3.6. Resignation; Removal. SDMS may resign as the PICs’ and the Town’s agent under this Agreement by submitting a written notice of resignation to the PICs and the Town, given not less than three (3) months before the date upon which such resignation is intended to take effect. SDMS’ resignation will be effective on the resignation date set forth in such notice. The PICs, with prior written consent of the Town, may remove SDMS as the PICs’ and the Town’s agent for collection of the Add-On RSF Revenues at any time with or without cause. Any such removal action will be effective immediately upon delivery of written notice by the PICs of such removal to SDMS unless the notice specifies a later removal date. Notwithstanding any provision to the contrary in this Agreement, SDMS’ obligation to remit to the PICs and the Town any and all Add-On RSF Revenues received by SDMS pursuant to the terms and conditions of this Agreement will survive any such resignation or removal until all such Add-On RSF Revenues have been remitted to the PICs and/or the Town or control over such funds has been transferred to a successor RSF Collecting Agent. No resignation or removal of SDMS will take effect until a successor RSF Collecting Agent has been appointed by the PICs and the Heil Comments – Aug. 20, 2012 1013284.1 11 Town; provided, that if no successor is appointed by the end of 90 days after delivery of written notice to SDMS of such removal, SDMS may petition a court of competent jurisdiction to appoint a successor. 3.7. Assignment; Binding Effect. Except for the collateral assignment of this Agreement by the Commercial PIC and/or the Mixed-Use PIC to any secured lender of the Commercial PIC or the Mixed-Use PIC, as applicable, which assignment will not require the consent of any other Party, this Agreement will not be assigned by any Party for any reason other than to a successor by operation of law or with the prior written consent of the other Parties. This Agreement will inure to the benefit of and will be binding upon the Parties and their duly authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the Mixed-Use PIC, the Town or SDMS is named or is referred to, such provision is deemed to include any successor of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, respectively, immediate or intermediate, whether so expressed or not. Any corporation or other legal entity into which a Party may be merged or converted or with which a Party may be consolidated or any corporation or other legal entity resulting from any merger, conversion, sale, consolidation or transfer to which that Party may be a party or any corporation or other legal entity to which a Party may sell or transfer all or substantially all of its assets will be the successor to such Party without the execution or filing of any document or any further act, anything herein to the contrary notwithstanding. All of the stipulations, obligations, and agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS contained in this Agreement (a) will bind and inure to the benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board, council, agent, or instrumentality to whom or to which there will be transferred by or in accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, or of their respective successors. 3.8. Amendment. This Agreement may only be amended, changed, modified or altered by an instrument in writing duly executed by each Party. 3.9. Computation of Time. In computing a period of days, the first day will be excluded and the last day will be included. If the last day of any period is not a business day, the period will be extended to include the next succeeding business day. If a number of months is to be computed by counting the months from a particular day, the period will end on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period will end on the last day of that month. 3.10. Payments Due on a Day other than a Business Day. If the date for making any payment or the last day for performance of any act or the exercising of any right as provided in this Agreement will be a day other than a business day, such payment may be made, or such act performed, or such right may be exercised on the next succeeding business day with the same force and effect as if done on the nominal date provided in this Agreement. 3.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof and this Agreement will be reformed to most completely effectuate Heil Comments – Aug. 20, 2012 1013284.1 12 the intent of the Parties as reflected in the Agreement prior to such severance, including the intent of the severed provision to the extent such provision may be so reformed to cure the invalidity or unenforceability. 3.12. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 3.13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 3.14. No Indemnification by SDMS. SDMS will have no obligation to indemnify, hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever. 3.15. Indemnification by PICs and the Town. The PICs, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened under this Agreement arising from or out of any claim in connection with the performance of any of the obligations of SDMS to be performed under this Agreement (for purposes of this Section 3.15, collectively, “Liabilities”) except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees. To the extent permitted by applicable law, the Town, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all Liabilities except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees. 3.16. Relationship to Declarations and Annexation and Development Agreement. The Commercial PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement, that the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement. The Mixed-Use PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement, that the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement. The Town acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Declarations and the Annexation and Development Agreement, that the terms and conditions of the Declarations and the Annexation and Development Agreement will control over any Heil Comments – Aug. 20, 2012 1013284.1 13 conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Declarations and the Annexation and Development Agreement. As such, SDMS is authorized to presume that all actions taken by the PICs and the Town in connection with this Agreement comply with the terms and conditions of the Declarations and the Annexation and Development Agreement and to act accordingly in performing its obligations under this Agreement. 3.17. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provision or Section of this Agreement. 3.18. Time of the Essence. Time is of the essence in the performance of the obligations from time to time imposed upon SDMS by this Agreement. 3.19. Notice. Any notice or other information to be given hereunder will be delivered personally or mailed postage prepaid, return receipt requested, to the following addresses: If to SDMS: Special District Management Services, Inc. 141 Union Boulevard Suite 150 Lakewood, Colorado 80228 Attn: __________________________ With a required copy to: Krendl Krendl Sachnoff & Way, P.C. 370 17th Street, Suite 5350 Denver, Colorado 80202 Attn: Cathy S. Krendl If to Commercial PIC: The Village (at Avon) Commercial Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Munsey L. Ayers Heil Comments – Aug. 20, 2012 1013284.1 14 If to Mixed-Use PIC: The Village (at Avon) Mixed-Use Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Munsey L. Ayers If to Town: Town of Avon P.O. Box 975 400 Benchmark Road One Lake Street Avon, Colorado 81620 Attention: Town Manager With required copy to: Town of Avon P.O. Box 975 400 Benchmark Road Avon,Heil Law & Planning LLC 2696 S. Colorado 81620 Blvd., Suite 550 Denver, CO 80222 Attn: Tow n AttorneyEric J. Heil or such other address as a Party may, by written notice to the other Party or Parties, hereafter specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in writing, a different method for conveying notices or information. 3.20. Dispute Resolution. Any dispute arising under this Agreement that is not resolved by the applicable Parties, within 45 days or such other period as may be specifically set forth in this Agreement may be submitted by any of the Parties, including SDMS, for binding arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver, Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be mutually agreed upon by the applicable Parties or, if the Parties are not able to agree, as directed by the arbiter. The arbiter’s decision will be final and non-appealable to the courts. Except to the extent such fees and costs are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees, the PICs will pay all of SDMS’ reasonably attorneys’ fees and costs arising from an arbitration, which is a Collection Expense which will be paid from Add-On RSF Revenues (the Municipal Services Revenues deposited in the Town Add-On RSF Account will be net of Collection Expenses as provided in paragraph 32 of Exhibit A). [Signature Pages Follow This Page] Heil Comments – Aug. 20, 2012 1013284.1 15 IN WITNESS WHEREOF, the Commercial PIC, the Mixed-Use PIC, the Town and SDMS have caused this Agreement to be executed as of the day and year first above written. COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: Heil Comments – Aug. 20, 2012 1013284.1 16 MIXED-USE PIC: THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: Heil Comments – Aug. 20, 2012 1013284.1 17 TOWN: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney Heil Comments – Aug. 20, 2012 1013284.1 18 SDMS: SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation By: Name: Title: Heil Comments – Aug. 20, 2012 1013284.1 A-1 EXHIBIT A Definitions [Many of the definitions are defined in the Annexation Agreement and in the Declarations. This Agreement states that the terms of Annexation Agreement and Declarations supersede where inconsistent, which I assume includes definitions. Although it may render this document more convenient to recopy the same definitions, I believe the SDMS must be in receipt of an Annexation Agreement and Declarations. Therefore, I believe it would be preferrable for definitions to cross-reference the applicable definition in the Annexation Agreement and Declarations to avoid any potential for inconsistent definitions.] For purposes of the attached Add-On RSF Collection Services Agreement, the following terms have the following meanings, unless the context requires otherwise. Further, unless the context requires otherwise, the singular of any term includes the plural, and any reference to a Section or Exhibit is to a Section or Exhibit of the attached Add-On RSF Collection Services Agreement. 1. Add-On Retail Sales Fee. In accordance with the Declarations, the component of the Retail Sales Fee (as defined in the Declarations), which is set at rate(s) to be established by the Commercial PIC and the Mixed-Use PIC, as applicable, as declarant under the Commercial Declaration and the Mixed-Use Declaration, respectively, in accordance with the terms, limitations and conditions of the Commercial Declaration or the Mixed-Use Declaration, as applicable, and the Annexation and Development Agreement, and which shall be applied to Taxable Transactions (retail sales transactions only and no other Taxable Transactions) initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the Property, but which is not offset by a credit against the Sales Tax. For purposes of communications to Add-On RSF Obligors and/or the general public, the PICs may designate the Add-On Retail Sales Fee as the “Retail Sales Fee” or “RSF” or such other term as the PICs may determine and designate in writing to SDMS, in which case the applicable forms will be modified to reflect the desired terminology and the term Add-On Retail Sales Fee as used in this Agreement will be construed in all instances to refer to such term as the PICs have designated from time to time. 2. Add-On RSF Collecting Agent. The entity engaged by the PICs and the Town as the collecting agent for disbursement and accounting of the Add-On RSF Revenues pursuant to this Agreement as in effect from time to time, and which is authorized to undertake the duties of the “Add-On RSF Collecting Agent” as described in the Annexation and Development Agreement. 3. Add-On RSF Obligor List. As defined in Section 1.2. 4. Add-On RSF Obligor(s). Any Person(s) who, by virtue of being the seller in an Add-On RSF Retail Activity transaction is obligated to collect and remit an Add-On Retail Sales Fee pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as applicable. Heil Comments – Aug. 20, 2012 1013284.1 A-2 5. Add-On RSF Reporting Form. A report of Add-On RSF Revenues payable by each Add-On RSF Obligor, in substantially the form set forth in Exhibit C (or as otherwise required by the Information from time to time, a copy of which form is delivered to SDMS by the PICs in advance of its effective date) which, together with remittance of the Add-On RSF Revenues payable and a copy of the corresponding Town Sales Tax report, is to be prepared by the Add-On RSF Obligor and delivered to SDMS on or before each Fee Remittance Date for the immediately preceding Reporting Period. 6. Add-On RSF Retail Activity(ies). The following retail sales transactions which are subject to the Add-On Retail Sales Fee pursuant to the Declarations: any exchange of goods or services for money or other media of exchange that is a Taxable Transaction (retail sales transactions only and no other Taxable Transactions) and is initiated, consummated, conducted, transacted or otherwise occurs from or within any portion of the Property. 7. Add-On RSF Revenues. The revenues generated from imposition and collection of the Add-On Retail Sales Fee pursuant to the terms of the Declarations, together with all interest earned thereon while on deposit with SDMS. 8. Agreement. As defined in the introductory paragraph, this Add-On Retail Sales Fee Collection Services Agreement between the Parties, as amended and supplemented from time to time. 9. Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of _____________, 20____ and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority and the PICs, all as limited parties, and recorded in the real property records of the Clerk and Recorder for the county in which the Property is located on or about even date herewith, as amended from time to time. 10. Asphalt Overlay Account. The restricted escrow account established pursuant to the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays of public roads in the Property in accordance with the terms and conditions set forth in the Annexation and Development Agreement and the Asphalt Overlay Agreement. 11. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account Agreement dated as of __________, 20____ and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and Alpine Bank (Avon Branch), which establishes the terms and conditions upon with funds shall be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account. 12. Collection Expense. Any and all fees, costs, expenses, compensation, reimbursements and other charges due and owing to SDMS in connection with and pursuant to the terms of this Agreement. 13. Commercial Declarant. Traer Creek-RP, LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Commercial Property for the purpose of development and/or sale and is designated as Declarant Heil Comments – Aug. 20, 2012 1013284.1 A-3 in a instrument recorded in the real property records of the Clerk and Recorder for the county in which the Commercial Property is located, as more particularly set forth in the Commercial Declaration. 14. Commercial Declaration. That certain Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the real property records of the Clerk and Recorder for the county in which the Commercial Property is located on May 8, 2002 at Reception No. 795012, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 15. Commercial PIC. As defined in the introductory paragraph of this Agreement. 16. Commercial Property. The property identified as the “Commercial Property” in Exhibit B and legally described in Exhibit B, upon which the Commercial Declarant and its affiliates are developing and intend to further develop a phased, commercial and retail development. 17. Credit Retail Sales Fee. As defined in Recital B and Recital C, as applicable. 18. Credit RSF Revenues. The revenues generated from the imposition of the Credit Retail Sales Fee (as defined in the Declarations). 19. Declarations. Collectively, the Commercial Declaration and the Mixed-Use Declaration. 20. Director of Finance. The director of finance for the Town, or any successor to the functions that are being performed by the Director of Finance as of the date of this Agreement. [Note—need to confirm/identify the Town representative having responsibility to coordinate sales tax and retail sales fee collection matters.]The Director of Finance for the Town or the Town Manager or Town Manager’s designee. The Avon Home Rule Charter and Municipal Code designate the Town Manager as the ultimate authority for all departments and all staff functions; therefore, if there is no a Finance Director for any reason, then the applicable person shall be the Town Manager or the person designated by the Town Manager]. 21. Effective Date. As defined in the introductory paragraph of this Agreement. 22. Exhibits. Individually, one of the following Exhibits to this Agreement and/or, collectively, all of the following Exhibits to this Agreement, as the context dictates, which Exhibits are incorporated into and made a part of this Agreement: Exhibit A: Definitions Exhibit B: Legal Description of the Property Exhibit C: Form of Add-On RSF Reporting Form Exhibit D: Form of Monthly Add-On RSF Report Heil Comments – Aug. 20, 2012 1013284.1 A-4 Exhibit E: Audit Procedures Exhibit F: SDMS Fee Schedule 23. Fee Remittance Date. With respect to Add-On RSF Revenue payments to be made by Add-On RSF Obligors, the date on which the corresponding Sales Tax amount is due and payable to the Town. 24. Funding Termination. The occurrence of the earlier of: (i) 80,000 square feet of additional development of “Commercial Uses” (as defined in the Amended and Restated PUD Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and Development Agreement) have increased by at least $20,000,000 over the actual total annual Taxable Transactions (as defined in the Annexation and Development Agreement) in the year 2011, all as more particularly set forth in the Annexation and Development Agreement. 25. Information. Any written information or guidelines, as amended and supplemented from time to time, prepared by the PICs and the Town, with the approval of the Commercial Declarant and the Mixed-Use Declarant, regarding the calculation, payment and reporting of the Add-On Retail Sales Fee. 26. Joint Notice. As defined in Section 1.4(b)1(B). 27. Mixed-Use Declarant. Traer Creek LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Mixed-Use Property for the purpose of development and/or sale and is designated as Declarant in a instrument recorded in the real property records of the Clerk and Recorder for the county in which the Mixed-Use Property is located, as more particularly set forth in the Mixed-Use Declaration. 28. Mixed-Use Declaration. That certain Declaration of Covenants for The Village (at Avon) Mixed-Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the real property records of the Clerk and Recorder for the county in which the Mixed-Use Property is located on May 8, 2002 at Reception No. 795013, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 29. Mixed-Use PIC. As defined in the introductory paragraph of this Agreement. 30. Mixed-Use Property. The property identified as the “Mixed-Use Property” in Exhibit B and legally described in Exhibit B, upon which the Mixed-Use Declarant and its affiliates are developing and intend to further develop a phased, mixed-use development. 31. Monthly Add-On RSF Report. The written report that SDMS is required under the terms of this Agreement to prepare for each calendar quarter during the term of this Agreement and distribute to the PICs and the Town, which report will be in the form and contain the information set forth in Exhibit D. Heil Comments – Aug. 20, 2012 1013284.1 A-5 32. Municipal Services RevenuesPayments. The portion of the Add-On RSF Revenues which the Town is entitled to receive and are actually collected by SDMS as more particularly described in the Annexation and Development Agreement. The Municipal Services Revenues are calculated as follows: As of the Effective Date, the rate of the Add-On Retail Sales Fee is 0.75%. The net proceeds after adjustment for (deduction of) the Collection Expenses and application of any other adjustments to the Add-On RSF Revenues as set forth in the Annexation and Development Agreement of the Add-On RSF Revenues resulting from imposition of the 0.75% rate to retail sales transactions occurring within the Property shall constitute the Municipal Services Revenues. If the Town increases the Sales Tax rate on retail sales transactions above 4.0% during any period for which Municipal Services Revenues are to be remitted to the Town, the portion of the Add-On RSF Revenues which will be construed to be Municipal Services Revenues will be reduced in the same degree as any Sales Tax rate on retail sales transactions increase above 4.0%. For example, if the Town increases its Sales Tax rate on retail sales transactions by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSF Revenues construed to be Municipal Services Revenues shall be that amount equivalent to a reduction of 0.25% in the rate of the Add-On Retail Sales Fee (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75%). 33. Party(ies). Individually, a signatory to this Agreement and, collectively, theall signatories to this Agreement. 34. Person. Any individual, partnership, corporation, limited liability company, association, trust or other type of entity or organization. 35. PIC Add-On RSF Account. The bank account to be established for the benefit of the PICs for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On RSF Revenues received from Add-On RSF Obligors who have engaged in Add-On RSF Retail Activities within the Property within the applicable Reporting Period. 36. PICs. Collectively, the Commercial PIC and the Mixed-Use PIC. 37. Property. Collectively, the Commercial Property and the Mixed-Use Property. 38. Reporting Period. Pursuant to applicable Town regulations, the period of time (which may be monthly, quarterly or such other frequency as the applicable regulations may require) with respect to which a Sales Tax obligor is required to file a periodic report of Taxable Transactions and remit Sales Taxes thereon. 39. Retail Sales Fee or RSF. Is defined in the Declarations. 40. Sales Tax(es). The tax levied by the Town pursuant to the Sales Tax Regulation. 41. Sales Tax Regulation. Chapter 3.08 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 42. SDMS. As defined in the introductory paragraph of this Agreement, Special District Management Services, Inc., a Colorado corporation, together with its successors and any Heil Comments – Aug. 20, 2012 1013284.1 A-6 of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to this Agreement, is the Add-On RSF Collecting Agent as contemplated in the Annexation and Development Agreement. 43. Taxable Transaction. Any transaction by which a Person acquires for any consideration or uses within the Town any tangible personal property or service that is subject to the Sales Tax or would be subject to the Sales Tax but for any credit of such tax the Town may make pursuant to the Annexation and Development Agreement and, in addition, any other transaction for, or the use of, any personal property or service that the Commercial PIC and/or the Mixed-Use PIC may designate from time to time as a Taxable Transaction. If the Town stops levying the Sales Tax generally, the term “Taxable Transaction” shall mean any transaction by which a Person acquires for any consideration or uses within the Town any tangible personal property or service that would have been subject to the version of the Sales Tax last in effect (but for any credit of such tax the Town may have been making pursuant to the Annexation and Development Agreement) and, in addition, any other transaction for, or the use of, any personal property or service that the Commercial PIC and/or Mixed-Use PIC may designate from time to time as a Taxable Transaction. [This definition may require further review as it relates to the unresolved issue of internet and remote sales] 44. Tax Credit Termination. The occurrence of the termination of the Town’s obligation to provide tax credits to offset the effect of, among other matters, the Credit Retail Sales Fee (as defined in the Declarations) as more particularly described in the Annexation and Development Agreement, which obligation is implemented by and codified in the Town Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 45. Town. As defined in the introductory paragraph of this Agreement. 46. Town Add-On RSF Account. The bank account to be established for the benefit of the Town for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On RSF Revenues received from Add-On RSF Obligors who have engaged in Add-On RSF Retail Activities within the Property within the applicable Reporting Period. Heil Comments – Aug. 20, 2012 1013284.1 B-1 EXHIBIT B Legal Description of the Property Legal Description of the Commercial Property: [to be inserted] Legal Description of the Mixed-Use Property: [to be inserted] Heil Comments – Aug. 20, 2012 1013284.1 C-1 EXHIBIT C Form of Add-On RSF Reporting Form [Follows this Page] [to be inserted] Heil Comments – Aug. 20, 2012 1013284.1 D-1 EXHIBIT D Form of Monthly Add-On RSF Report [to be inserted] Heil Comments – Aug. 20, 2012 1013284.1 E-1 EXHIBIT E Audit Procedures  Obtain listing of all Sales Tax and business licenses obtained by businesses within the Property from the Director of Finance and obtain the Add-On RSF Obligor List as of the end of the applicable calendar year required to be maintained by SDMS and perform the following: ¤ Compare the businesses reflected on the listing provided by the Director of Finance to the businesses included on the Add-On RSF Obligor List; and ¤ Compare the dates of the business licenses that were obtained for each business according to the Town’s records to those dates provided on the Add-On RSF Obligor List.  Randomly select a sample of Add-On RSF Reporting Forms from each Add-On RSF Obligor submitted to SDMS and perform the following: ¤ Determine if each Add-On RSF Reporting Form and related Add-On RSF Revenues were submitted on or before the Fee Remittance Date for the applicable Reporting Period; ¤ Determine, if the Add-On RSF Reporting Forms were not remitted on or before the Fee Remittance Date, SDMS sent a first delinquency notice by certified mail to the Add-On RSF Obligor not later than the 15th day following the applicable Fee Remittance Date; ¤ Mathematically recalculate the Add-On Retail Sales Fee amounts due and payable based on the Add-On RSF Retail Activities reported by each Add-On RSF Obligor for each Add-On RSF Reporting Form; ¤ Reconcile the Add-On RSF Revenues remitted by each Add-On RSF Obligor to bank deposit receipts prepared by SDMS; and ¤ Review the bank deposit slips prepared by SDMS for evidence that the Add-On RSF Revenues were correctly deposited in Asphalt Overlay Account, the Town Add-On RSF Account, the Commercial PIC Add-On RSF Account and the Mixed-Use PIC Add-On RSF Account, as applicable, not later than the seventh business day after receipt of any Add-On RSF Revenues from Add-On RSF Obligors. Heil Comments – Aug. 20, 2012 1013284.1 F-1 EXHIBIT F SDMS Fee Schedule [The fee for collection must be defined and discussed. I understood the rate generally charged to the PICs was an hourly rate not to exceed 1% of actual revenue collection. The Settlement Term Sheet stated that “Avon will receive the revenues resulting from a .75% “Add-on PIF” and did not expressly contemplate a collection fee to be deducted from the amount. It is my impression that the Avon Town Council is receptive to a reasonable collection fee which is the same as generally paid by the PICs to SDMS; however, I have not yet confirmed that position.] For performance of services SDMS fees are billed monthly. The current hourly rate at the execution of this Agreement is $___________ per hour. A minimum monthly charge of two (2) hours will be billed as a stand-by fee and will be waived if actual time spent exceeds two (2) hours. The hourly rate will increase annually in accordance with the Denver/Boulder Consumer Price Index. There also may be charges for out-of-pocket expenses, such as postage, facsimiles, letterhead, envelopes, printing, etc. Receipts for such purchases will be provided with the monthly billing. 52216 SPECIAL WARRANTY DEED This Special Warranty Deed dated this ______ day of September, 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 and up to 68.9 consumptive acre feet from the Water Rights to irrigate with raw water up to 38.27 acres of public lands specified in paragraph 7(E) 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. TRAER CREEK METROPOLITAN DISTRICT, a quasi municipal corporation and political subdivision of the State of Colorado By: ______________________________________ Name: ____________________________________ Title: _____________________________________ 52216 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 52 2 1 6 EX H I B I T A De s c r i p t i o n o f W a t e r R i g h t s ST R U C T U R E Ad j u d i c a t i o n Da t e Ap p r o p r i a t i o n Da t e Us e * * De c r e e d Am o u n t Am o u n t Ow n e d Am o u n t Co n v e y e d Amount Re t a i n e d b y EM D L L C Case No. No t t i n g h a m a n d P u d e r Di t c h - O r i g i n a l Co n s t r u c t i o n (D i t c h N o . 9 7 ) 03 / 0 5 / 1 9 0 1 0 4 / 0 2 / 1 8 8 9 D, M , C , N , F P , I , R , P, F W , R E , A 10 . 0 c f s a b s . 7 . 5 c f s 4 . 6 3 0 2 . 8 7 0 3 8 5 , 9 7 C W 3 0 6 Pu d e r D i t c h * (D i t c h N o . 7 2 ) 06 / 2 9 / 1 8 9 4 1 0 / 0 1 / 1 8 9 2 D, M , C , N , F P , I , R , P, F W , R E , A 1. 4 c f s a b s . a l l 0 . 8 6 4 0 . 5 3 6 2 9 4 , 9 7 C W 3 0 6 No t t i n g h a m D i t c h * (D i t c h N o . 7 6 ) 06 / 2 9 / 1 8 9 4 1 1 / 0 3 / 1 8 9 2 D, M , C , N , F P , I , R , P, F W , R E , A 2. 0 c f s c o n d . (m a d e a b s . i n Ca s e N o . 9 6 3 ) al l 1 . 2 3 5 0 . 7 6 5 2 9 4 , 9 7 C W 3 0 6 No t t i n g h a m D i t c h * (D i t c h N o . 9 3 ) 03 / 0 5 / 1 9 0 1 0 5 / 2 6 / 1 8 8 7 D, M , C , N , F P , I , R , P, F W , R E , A 2. 0 c f s a b s . a l l 1 . 2 3 5 0 . 7 6 5 3 8 5 , 9 7 C W 3 0 6 Tr a e r N o . 1 D i t c h (D i t c h N o . 1 3 8 ) 06 / 0 4 / 1 9 0 7 0 8 / 3 0 / 1 8 9 0 D, M , C , N , F P , I , R , P, F W , R E , A 0. 9 c f s a b s . a l l 0 . 5 5 6 0 . 3 4 4 4 4 6 , 9 7 C W 3 0 6 Tr a e r N o . 2 D i t c h (D i t c h N o . 1 3 7 ) 06 / 0 4 / 1 9 0 7 1 1 / 0 1 / 1 9 0 5 D, M , C , N , F P , I , R , P, F W , R E , A 0. 3 c f s a b s . a l l 0 . 1 8 5 0 . 1 1 5 4 4 6 , 9 7 C W 3 0 6 Me t c a l f D i t c h He a d g a t e * * * 12 / 3 1 / 1 9 9 7 1 2 / 3 1 / 1 9 9 7 D, M , C , N , F P , I , R , P, F W 3. 6 c f s c o n d . a l l a l l n o n e 9 7 C W 3 0 6 Ra w W a t e r B o o s t e r Pu m p * * * 12 / 3 1 / 1 9 9 7 1 2 / 3 1 / 1 9 9 7 D, M , C , N , F P , I , R , P, F W 3. 6 c f s c o n d . a l l a l l n o n e 9 7 C W 3 0 6 * I n d i c a t e s t h a t t h e s e w a t e r r i g h t s h a v e b e e n t r a n s f e r r e d t o n e w po i n t s o f d i v e r s i o n a t N o t t i n g h a m Di t c h H e a d g a t e s N o s . 1 , 2 , 3 a n d 4 a / k / a t h e N o t t i n g h a m D i t c h S y s t e m . Th e s e h e a d g a t e s a r e a l l a l t e r n a t e p o i n t s o f d i v e r s i o n f o r e a c h o t h e r . ** D = D o m e s t i c ; M = M u n i c i p a l ; C = C o m m e r c i a l ; N = In d u s t r i a l ; F P = F i r e P r o t e c t i on ; I = I r r i g a t i o n ; R = R e c r e a t i o n ; P = P i s c a t o r i a l ; F W = F i s h & W i l d l i f e ; R E = R e p l a c e m e n t o f Re s e r v o i r E v a p o r a t i o n ; A = A u g m e n t a t i o n ** * 0 . 2 5 7 c f s o f t h e M e t c a l f D i t c h H e a d g a t e a n d 0 . 2 6 7 c f s o f t h e R a w W a t e r B o o s t e r P u m p m a d e a b s o l u t e i n C a s e N o . 0 7 C W 8 3 f o r D o me s t i c , M u n i c i p a l , C o m m e r c i a l , F i r e Pr o t e c t i o n a n d I r r i g a t i o n u s e s . 52 2 1 6 EX H I B I T B Hi s t o r i c C o n s u m p t i v e U s e C r e d i t s D e d i c a t e d t o Pl a n f o r A u g m e n t a t i o n i n C a s e N o . 9 7 C W 3 0 6 DI T C H S Y S T E M Wa t e r R i g h t & Ap p r o p r i a t i o n D a t e Po r t i o n o f H i s t o r i c C o n s u m p t i v e U s e ( a f ) D e d i c a t e d t o 9 7 C W 3 0 6 Decreed Amount (cfs) Ma y J u n e J u l y A u g u s t S e p t . O c t . T o t a l No t t i n g h a m & P u d e r Sy s t e m No t t i n g h a m & P u d e r D i t c h ; 04 / 0 2 / 1 8 8 9 19 . 4 2 2 . 1 2 5 . 2 2 4 1 8 . 4 1 0 . 5 1 1 9 . 6 4 . 6 3 0 No t t i n g h a m D i t c h Sy s t e m Pu d e r D i t c h ; 10 / 0 1 / 1 8 9 2 1. 3 2 . 1 1 . 9 1 . 7 0 . 8 0 . 4 8 . 2 0 . 8 6 4 No t t i n g h a m N o . 7 6 ; 11 / 0 3 / 1 8 9 2 1. 2 2 1 . 8 1 . 5 0 . 8 0 . 4 7 . 7 1 . 2 3 5 No t t i n g h a m N o . 9 3 ; 05 / 2 6 / 1 8 8 7 1. 8 3 2 . 7 2 . 4 1 . 1 0 . 6 1 1 . 6 1 . 2 3 5 To t a l f o r S y s t e m 4 . 3 7 . 1 6 . 4 5 . 6 2 . 7 1 . 4 2 7 . 5 Tr a e r D i t c h S y s t e m Tr a e r N o . 1 ; 08 / 3 0 / 1 8 9 0 1. 6 2 1 . 9 0 . 9 0 . 6 0 . 2 7 . 2 0 . 5 5 6 Tr a e r N o . 2 ; 11 / 0 1 / 1 9 0 5 0. 3 0 . 4 0 . 4 0 . 2 0 . 1 0 . 1 1 . 5 0 . 1 8 5 To t a l f o r S y s t e m 1 . 9 2 . 4 2 . 3 1 . 1 0 . 7 0 . 3 8 . 7 To t a l f o r a l l D i t c h e s 2 5 . 6 3 1 . 6 3 3 . 9 3 0 . 7 2 1 . 8 1 2 . 2 1 5 5 . 8 52216 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, S00°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°50’40”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 S01º33’13”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, N89º55’04”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°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, 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°51’07”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°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 52216 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 N76º32’02”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°51’55”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 N64º47’55”W 28.04 feet; (10) N64°22’00”W 377.10 feet; thence, departing said northerly right-of-way line, S25°38’00”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°59’00”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°58’08”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°01’52”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°55’02”W 268.23 feet (record distance and bearing of N25°10’03”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 N00°11’27”W 1321.54 feet (record distance and bearing of N00º10’14”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. 52216 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, N83º24’12”E 2772.60 feet, to the Northwest corner of said Section 10; thence, along the northerly line of said Section 10, N86°39’24”E 2681.23 feet; thence, departing said northerly line, S01º34’07”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, S01°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, S86º32’47”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, S77º10’15”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, S01º33’02”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, S72º20’31”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, N01°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, S86º07’30”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, S01º33’13”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 1593.20 feet; (5) N56°30’00”W 1274.62 feet, to the True Point of Beginning, containing 922.16 acres, more or less. 52215 SPECIAL WARRANTY DEED This Special Warranty Deed dated this ______ day of September, 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 68.974.3 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 Cspecified in paragraph 7(E) 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). TOWN OF AVON, a home rule municipal of the State of Colorado By: ______________________________________ 52215 Name: ____________________________________ Title: _____________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _____ day of ___________________, 2012 by _____________________________ on behalf of the Town of Avon. Witness my hand and official seal. My commission expires: _________________. [SEAL] ___________________________________ Notary Public 52 2 1 5 EX H I B I T A De s c r i p t i o n o f W a t e r R i g h t s ST R U C T U R E Ad j u d i c a t i o n Da t e Ap p r o p r i a t i o n Da t e Us e * * De c r e e d Am o u n t Am o u n t Ow n e d Am o u n t Co n v e y e d Amount Re t a i n e d b y EM D L L C Case No. No t t i n g h a m a n d P u d e r Di t c h - O r i g i n a l Co n s t r u c t i o n (D i t c h N o . 9 7 ) 03 / 0 5 / 1 9 0 1 0 4 / 0 2 / 1 8 8 9 D, M , C , N , F P , I , R , P, F W , R E , A 10 . 0 c f s a b s . 7 . 5 c f s 4 . 6 3 0 2 . 8 7 0 3 8 5 , 9 7 C W 3 0 6 Pu d e r D i t c h * (D i t c h N o . 7 2 ) 06 / 2 9 / 1 8 9 4 1 0 / 0 1 / 1 8 9 2 D, M , C , N , F P , I , R , P, F W , R E , A 1. 4 c f s a b s . a l l 0 . 8 6 4 0 . 5 3 6 2 9 4 , 9 7 C W 3 0 6 No t t i n g h a m D i t c h * (D i t c h N o . 7 6 ) 06 / 2 9 / 1 8 9 4 1 1 / 0 3 / 1 8 9 2 D, M , C , N , F P , I , R , P, F W , R E , A 2. 0 c f s c o n d . (m a d e a b s . i n Ca s e N o . 9 6 3 ) al l 1 . 2 3 5 0 . 7 6 5 2 9 4 , 9 7 C W 3 0 6 No t t i n g h a m D i t c h * (D i t c h N o . 9 3 ) 03 / 0 5 / 1 9 0 1 0 5 / 2 6 / 1 8 8 7 D, M , C , N , F P , I , R , P, F W , R E , A 2. 0 c f s a b s . a l l 1 . 2 3 5 0 . 7 6 5 3 8 5 , 9 7 C W 3 0 6 Tr a e r N o . 1 D i t c h (D i t c h N o . 1 3 8 ) 06 / 0 4 / 1 9 0 7 0 8 / 3 0 / 1 8 9 0 D, M , C , N , F P , I , R , P, F W , R E , A 0. 9 c f s a b s . a l l 0 . 5 5 6 0 . 3 4 4 4 4 6 , 9 7 C W 3 0 6 Tr a e r N o . 2 D i t c h (D i t c h N o . 1 3 7 ) 06 / 0 4 / 1 9 0 7 1 1 / 0 1 / 1 9 0 5 D, M , C , N , F P , I , R , P, F W , R E , A 0. 3 c f s a b s . a l l 0 . 1 8 5 0 . 1 1 5 4 4 6 , 9 7 C W 3 0 6 Me t c a l f D i t c h He a d g a t e * * * 12 / 3 1 / 1 9 9 7 1 2 / 3 1 / 1 9 9 7 D, M , C , N , F P , I , R , P, F W 3. 6 c f s c o n d . a l l a l l n o n e 9 7 C W 3 0 6 Ra w W a t e r B o o s t e r Pu m p * * * 12 / 3 1 / 1 9 9 7 1 2 / 3 1 / 1 9 9 7 D, M , C , N , F P , I , R , P, F W 3. 6 c f s c o n d . a l l a l l n o n e 9 7 C W 3 0 6 * I n d i c a t e s t h a t t h e s e w a t e r r i g h t s h a v e b e e n t r a n s f e r r e d t o n e w po i n t s o f d i v e r s i o n a t N o t t i n g h a m Di t c h H e a d g a t e s N o s . 1 , 2 , 3 a n d 4 a / k / a t h e N o t t i n g h a m D i t c h S y s t e m . Th e s e h e a d g a t e s a r e a l l a l t e r n a t e p o i n t s o f d i v e r s i o n f o r e a c h o t h e r . ** D = D o m e s t i c ; M = M u n i c i p a l ; C = C o m m e r c i a l ; N = In d u s t r i a l ; F P = F i r e P r o t e c t i on ; I = I r r i g a t i o n ; R = R e c r e a t i o n ; P = P i s c a t o r i a l ; F W = F i s h & W i l d l i f e ; R E = R e p l a c e m e n t o f Re s e r v o i r E v a p o r a t i o n ; A = A u g m e n t a t i o n ** * 0 . 2 5 7 c f s o f t h e M e t c a l f D i t c h H e a d g a t e a n d 0 . 2 6 7 c f s o f t h e R a w W a t e r B o o s t e r P u m p m a d e a b s o l u t e i n C a s e N o . 0 7 C W 8 3 f o r D o me s t i c , M u n i c i p a l , C o m m e r c i a l , F i r e Pr o t e c t i o n a n d I r r i g a t i o n u s e s . 52 2 1 5 EX H I B I T B Hi s t o r i c C o n s u m p t i v e U s e C r e d i t s D e d i c a t e d t o Pl a n f o r A u g m e n t a t i o n i n C a s e N o . 9 7 C W 3 0 6 DI T C H S Y S T E M Wa t e r R i g h t & Ap p r o p r i a t i o n D a t e Po r t i o n o f H i s t o r i c C o n s u m p t i v e U s e ( a f ) D e d i c a t e d t o 9 7 C W 3 0 6 Decreed Amount (cfs) Ma y J u n e J u l y A u g u s t S e p t . O c t . T o t a l No t t i n g h a m & P u d e r Sy s t e m No t t i n g h a m & P u d e r D i t c h ; 04 / 0 2 / 1 8 8 9 19 . 4 2 2 . 1 2 5 . 2 2 4 1 8 . 4 1 0 . 5 1 1 9 . 6 4 . 6 3 0 No t t i n g h a m D i t c h Sy s t e m Pu d e r D i t c h ; 10 / 0 1 / 1 8 9 2 1. 3 2 . 1 1 . 9 1 . 7 0 . 8 0 . 4 8 . 2 0 . 8 6 4 No t t i n g h a m N o . 7 6 ; 11 / 0 3 / 1 8 9 2 1. 2 2 1 . 8 1 . 5 0 . 8 0 . 4 7 . 7 1 . 2 3 5 No t t i n g h a m N o . 9 3 ; 05 / 2 6 / 1 8 8 7 1. 8 3 2 . 7 2 . 4 1 . 1 0 . 6 1 1 . 6 1 . 2 3 5 To t a l f o r S y s t e m 4 . 3 7 . 1 6 . 4 5 . 6 2 . 7 1 . 4 2 7 . 5 Tr a e r D i t c h S y s t e m Tr a e r N o . 1 ; 08 / 3 0 / 1 8 9 0 1. 6 2 1 . 9 0 . 9 0 . 6 0 . 2 7 . 2 0 . 5 5 6 Tr a e r N o . 2 ; 11 / 0 1 / 1 9 0 5 0. 3 0 . 4 0 . 4 0 . 2 0 . 1 0 . 1 1 . 5 0 . 1 8 5 To t a l f o r S y s t e m 1 . 9 2 . 4 2 . 3 1 . 1 0 . 7 0 . 3 8 . 7 To t a l f o r a l l D i t c h e s 2 5 . 6 3 1 . 6 3 3 . 9 3 0 . 7 2 1 . 8 1 2 . 2 1 5 5 . 8 52215 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, S00°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°50’40”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 S01º33’13”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, N89º55’04”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°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, 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°51’07”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°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 52215 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 N76º32’02”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°51’55”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 N64º47’55”W 28.04 feet; (10) N64°22’00”W 377.10 feet; thence, departing said northerly right-of-way line, S25°38’00”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°59’00”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°58’08”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°01’52”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°55’02”W 268.23 feet (record distance and bearing of N25°10’03”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 N00°11’27”W 1321.54 feet (record distance and bearing of N00º10’14”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. 52215 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, N83º24’12”E 2772.60 feet, to the Northwest corner of said Section 10; thence, along the northerly line of said Section 10, N86°39’24”E 2681.23 feet; thence, departing said northerly line, S01º34’07”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, S01°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, S86º32’47”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, S77º10’15”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, S01º33’02”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, S72º20’31”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, N01°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, S86º07’30”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, S01º33’13”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 1593.20 feet; (5) N56°30’00”W 1274.62 feet, to the True Point of Beginning, containing 922.16 acres, more or less. S&H June 15, 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 2 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. 3 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)”. 4 (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. (l) “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 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. 5 (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 full 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 April 26, 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 6 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 Annual 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. 7 Section 2.03. Imposition of 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 by law 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 8 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 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 Date 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. 9 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 a lien 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 180 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 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; 10 (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. (j) 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. 11 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. 12 (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 13 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. 14 Section 4.04. Limitation of Actions. Pursuant 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, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Pledge Agreement shall be in writing and 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 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 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) 897-0835 Email: ljacoby@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 15 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) 897-0835 Email: ljacoby@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 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 January 1, 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 16 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. (j) 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. 17 [Signatures appear on following page.] 18 IN WITNESS WHEREOF, the Districts and the Authority have executed this Agreement as of the day and year first above written. TRAER CREEK METROPOLITAN DISTRICT By: President ATTEST: Secretary THE VILLAGE METROPOLITAN DISTRICT By: President ATTEST: Secretary UPPER EAGLE REGIONAL WATER AUTHORITY By: President ATTEST: Secretary 19 EXHIBIT A (Attach Annual Debt Service Schedule) 20 PUBFIN\1514212.11 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: