TC Council Packet 12-11-2012TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, DECEMBER 11, 2012
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting.12.12.11
Page 3 of 4
PRESIDING OFFICIALS
MAYOR RICH CARROLL
MAYOR PRO TEM TODD GOULDING
COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING CITIZEN AND COMMUNITY INPUT AND PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. CONSENT AGENDA
a. MTRiP 2013 Destination Client Agreement (Kelly Huitt, Budget Analyst) 2013 MTRiP Contract that
provides arrangement for receiving various lodging reports
5. ACTION ITEMS
a. Notice of Appeal with respect to the Partial Real Estate Transfer Tax Exemption Decision by Town of
Avon (Eric Heil, Town Attorney) Review RETT appeal application submitted by Mr. Eustaquio Cortina
b. Eaglebend Dowd Affordable Housing Corporation Request (Scott Wright, Finance Director) Request to
defer payment of a bond issuance fee due the Town in 2011
6. THE VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION ACTION ITEMS
a. Update on Implementation of Settlement Term Sheet (Eric Heil, Town Attorney) Review progress and
status of implementation
b. Public Hearing on Ordinance No. 12- 11, Series of 2012, Second Reading, Ordinance Amending Chapter
3.12 of the Avon Municipal Code Regarding Real Property Transfer Tax (Eric Heil, Town Attorney) Help
implement the settlement term sheet by revising certain regulations in town’s real estate transfer tax
related to the applicability of the tax to long term leases
c. Public Hearing on Resolution No. 12-28, Series of 2012, Resolution Approving the Final Plat, The Village
(at Avon) Subdivision Filing 4 (Justin Hildreth, Town Engineer) A minor subdivision application that will
create two lots, one of which will be transferred to the Upper Eagle Regional Water Authority for the
water storage tank
TOWN OF AVON, COLORADO
AVON REGULAR MEETING FOR TUESDAY, DECEMBER 11, 2012
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting.12.12.11
Page 4 of 4
6. THE VILLAGE (AT AVON) SETTLEMENT IMPLEMENTATION ACTION ITEMS - CONTINUED
d. Resolution No. 12-29, Series of 2012, Resolution Approving the Traer Creek Water Storage Tank
Agreement (Eric Heil, Town Attorney) An agreement that partially implements the settlement term sheet
by setting fort the terms of financial commitments by Traer Creek Metro District to the Upper Eagle River
Water Authority to finance the construction of a water storage tank
e. Resolution No. 12-30, Series of 2012, Resolution Approving the Asphalt Overlay Escrow Agreement (Eric
Heil, Town Attorney) Agreement that establishes the rights and obligations of the town, Traer Creek
Metro District and Traer Creek LLC to deposit funds into escrow account and establishes procedures for
release of such funds for the purpose of conducting asphalt overlays on road in the Village (at Avon)
7. RESOLUTIONS
a. Resolution No. 12-26, Series of 2012, Resolution Levying General Property Taxes for the Year 2012, to
help defray the costs of government for the Town of Avon, Colorado, for the 2013 Budget Year (Scott
Wright, Finance Director)
b. Resolution No. 12-27, Series of 2012, Resolution Levying General Property Taxes for the Year 2012, to
help defray the Costs of government for the Town of Avon General Improvement District No. 1, Avon,
Colorado, for the 2013 Budget Year (Scott Wright, Finance Director)
8. STAFF UPDATES
a. Capital Projects Update (Justin Hildreth, Town Engineer) Review current capital projects
1) Harry A. Nottingham Park Lake Liner Design Update
2) I-70 Transit Facility Construction Project Update
3) Metcalf Drainage Improvements Project Update
9. TOWN MANAGER REPORT
10. MAYOR REPORT
a. Discuss Future Agenda Items
11. EXECUTIVE SESSION
a. Meet with Town Attorney for the purpose of considering purchase, acquisition and sale of real property
pursuant to Colorado Revised Statute §24-6-402(4)(a) and for the purpose of determining positions
relative to matters that may be subject to negotiations pursuant to Colorado Revised Statute §24-6-
402(4)(e) concerning prospective economic development
12. ADJOURNMENT
FUTURE COUNCIL AGENDA DATES & PROPOSED TOPICS:
December 25th: Regular Council Meeting Cancelled in Observance of Holidays
January 8th: Traer Creek Update, 2013 Council Priorities
Heil Law & Planning, LLC Office: 303.993.4608
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: meredith@heillaw.com e-mail: ericheillaw@yahoo.com
HEIL
LAW
TO: Honorable Mayor Carroll and Town Council Members
CC: Virginia Egger, Town Manager
THRU: Eric Heil, Town Attorney
FROM: Meredith Van horn, Assistant Town Attorney
RE: Cortina Real Property Transfer Tax Appeal
DATE: December 5, 2012
Summary: Mr. Eustaquio Cortina submitted a Real Property Transfer Tax Exemption
Application (“Application”) seeking an exemption under Avon Municipal Code (“AMC”)
§3.12.060(5) for the transfer of 3000 Eaglebend Drive, #14 (“Property”) from 9 Vail
Road 2A LLC (“LLC”) to himself. Our office approved a 50% RETT exemption on
October 23, 2012 based upon documentation we received which indicated that Mr.
Cortina was the 50% owner of the Property. Mr. Cortina submitted an appeal pursuant
to the AMC on November 5, 2012. Our office did not have sufficient documentation to
verify that Mr. Cortina was a 100% owner of the Property and the documents show that
the LLC was dissolved in 2010. Mr. Cortina had submitted additional documentation in
response to our requests, including a signed statement from the other member owner of
the LLC that Mr. Cortina owned 100% of the LLC as of 2008.
Although it appears Mr. Cortina is the 100% owner of the Property, the incomplete
LLC paperwork concerning transfer of ownership interest, dissolution of the LLC twenty
months prior to the transfer, and anecdotal information indicating ownership does not
meet the criteria for which our office believes is necessary to find that the Application
qualifies for exemption. However, it also appears that the information demonstrates
that, despite these irregularities, Mr. Cortina was the owner of the 100% owner fo the
Property at the time of transfer because the LLC did not even exist at the time of the
transfer in June, 2012 from the LLC to Mr. Cortina individually and there is no evidence
indicated that any consideration was paid to the other member of the LLC related to the
transfer of the Property from the LLC to Mr. Cortina individually. Therefore, the transfer
appears to meet the spirit and intent of the applicable exemption.
Our office does not have a recommendation to approve or disapprove this appeal.
Our office believes the allowance of a 50% exemption and disallowance of a 50% of the
requested exemption is legally defensible. Finally, our office does not believe that
approval of the appeal (thereby granting the requested exemption) would establish any
negative precedence for the Town of Avon’s ability to impose, administer, collect and
enforce real estate transfer taxes.
There is considerable paperwork. We ask that you draw your attention to the (1)
application, (2) the October 9, 2012 letter from Mr. Cortina also signed by Mr. Banos
stating that Mr. Cortina owns 100% of the LLC and Property, (3) the Statement of
Dissolution filed with the Secretary of State on September 16, 2010, (4) the Affidavit of
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Cortina RPTT Appeal
December 5, 2012
Page 2 of 2
Mr. Cortina signed August 8, 2012, and (5) Quit Claim deed transferring the Property
from the LLC to Mr. Cortina dated June 25, 2012.
AMC §3.12.060(5) Exemption: AMC §3.12.060(5) states “Transfers made pursuant to
capital investment, reorganization, merger, consolidation, liquidation, dissolution or
termination of corporations, partnerships, limited liability companies, trusts or other
business entities recognized in Colorado for no consideration other than acquisition or
cancellation or surrender of stock or percentage ownership interest in such business
entity, to the extent that the relative ownership interest of such persons in the real
property or in the percentage ownership of the business entity are the same after the
transfer as immediately before the transfer and there is no monetary consideration for
that portion of the transfer.” Under this exemption the applicant must demonstrate that
the proportionate individual ownership interest in the legal entity is the same as the
proportionate individual ownership interest in the property after transfer from the legal
entity to the individual.
The Application: This Application was submitted to request an exemption of the RETT
on the transfer of the Property from the LLC to Mr. Cortina individually. The LLC was
dissolved in 2010. Mr. Cortina submitted various documents seeking to demonstrate
that he 100% of the LLC before the transfer. The supporting documentation submitted
with the Application is attached as Exhibit A.
The documentation provided demonstrated that prior to the transfer Mr. Cortina
owned 50% of the LLC, which owned 100% of the property, but that after the transfer
Mr. Cortina owned 100% of the Property individually. This entitled Mr. Cortina to a
partial exemption of 50% of the real estate property tax. The real property transfer tax
due with the 50% exemption is $6,140.00. Our office mailed a partial denial letter on
October 23, 2012, which is attached as Exhibit B.
Appeal: Pursuant to AMC §3.12.070(d), any person whose claim of exemption is
denied may appeal such decision to the Town Council within 30 days of transmittal of
the decision of the Town Manager. On November 5, 2012 Mr. Cortina, through his
attorney, submitted a timely appeal. The appeal documents are attached as Exhibit C.
Conclusion: We believe that the partial denial of the exemption is legally defensible,
but that should the Town Council seek to approve Mr. Cortina’s appeal there will be no
detriment to the Town. We believe that Mr. Cortina did in fact own 100% of the Property
at the time of the transfer from the LLC to Mr. Cortina in June of this year, but that Mr.
Cortina did not retain the proper records demonstrating the transfer of 49% membership
ownership of Mr. Banos to Mr. Cortina in 2005 and the transfer of the remaining 1%
membership ownership interest of Mr. Banos to Mr. Cortina in 2008 and the LLC did not
exist as a legal entity at the time of transfer in 2012 due to its dissolution in 2010.
Thanks, Meredith
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com
HEIL LAW
TO: Honorable Mayor Carroll and Council members
FROM: Eric Heil, Town Attorney
RE: Traer Creek LLC and Traer Creek Metropolitan District Settlement: Follow-Up
Implementation of Settlement Term Sheet
DATE: December 5, 2012
SUMMARY: This memorandum provides an overview of the remaining documents which must be
reviewed and finalized and additional actions which must be completed to fully implement the
Settlement Term Sheet. Several actions have been scheduled for the December 11, 2012 regular
Council meeting. Additional actions required to fully implement the Settlement Term Sheet are
also discussed.
Revisions to the Planned Unit Development Guide as approved by Ordinance No. 12-10 have
been completed and this document has been posted to TOA’s website. The final revisions and
correction of typos to the Consolidated Amendment Restated Annexation and Development
Agreement (“CARADA”) have not yet been completed.
DECEMBER 11, 2012 TOWN COUNCIL ACTION ITEMS: The following items are scheduled for
consideration and approval by the Town Council at the December 11, 2012 regular Town Council
meeting:
Second and Final Reading of Ordinance No. 12-11 Amending the Real Estate Transfer Tax
Regulations: Ordinance No. 12-11 is required to implement the Town of Avon’s (“TOA”)
commitment in the CARADA to revise certain regulations in TOA’s real estate transfer tax related
to the applicability of the tax to long term leases. Please see the accompanying memorandum for
Ordinance No. 12-11.
Resolution No. 12-28 Approving the Water Tank Site Plat: Traer Creek-RP LLC has submitted a
minor subdivision plat to establish the parcel for the water storage tank. Approving this plat will
allow Traer Creek-RP LLC to convey the water tank site in fee simple ownership rather than
conveying an easement. Generally, TOA’s policy is to support fee simple conveyance of property
for public facilities to the appropriate public entity, therefore, the platting of the water tank site
and conveyance to the Upper Eagle River Water Authority is considered preferable to an
easement.
Resolution 12-29: A Resolution Approving the Traer Creek Water Storage Tank Agreement: The
Avon Town Council previously approved the form of the Traer Creek Water Storage Tank
Agreement last spring. The attached agreement contains the exhibits and has been revised for
clarification and to correct typos and errors where appropriate. The Traer Creek Water Storage
Tank Agreement partially implements the Settlement Term Sheet by setting forth the terms of
financial commitments by Traer Creek Metropolitan District to the Upper Eagle River Water
Authority to finance the construction of a water storage tank and by defining the obligations of
Upper Eagle River Water Authority to construct the water storage tank. The agreement to
MEMORANDUM
& PLANNING, LLC
Avon Town Council
Follow-Up Implementation of Settlement Term Sheet
December 5, 2012
Page 2 of 2
construct the water storage tank will resolve the current moratorium on additional development
in The Village (at Avon).
Resolution 12-30: A Resolution Approving the Asphalt Overlay Escrow Agreement: The Asphalt
Overlay Escrow Agreement has been revised several times, including incorporating revisions from
FirstBank, who would serve as the Escrow Agent. The Asphalt Overlay Escrow Agreement
establishes the rights and obligations of TOA, TCMD and Traer Creek LLC to deposit funds into
this escrow account and establishes procedures for release of such funds for the purpose of
conducting asphalt overlays on roads in The Village (at Avon). The CARADA establish obligations
of TOA, TCMD and Traer Creek LLC to provide funding to build a reserve for future asphalt
overlays in order to prevent undue deterioration of public streets in The Village (at Avon).
ADDITIONAL TOWN COUNCIL ACTIONS: The following items are additional action items for the
Avon Town Council to fully implement the Settlement Term Sheet.
The Add-On Retail Sales Fee Collection Services Agreement: TOA has already provided
comments to the Add-On Retail Sales Fee Collection Services Agreement. The Add-On Retail
Sales Fee Collection Services Agreement establishes obligations of the collection agent to collect
the Add-On Retail Sales Fee and remit such funds to TOA as well as establishes rights of TOA to
enforce such obligations. This agreement is expected to be scheduled for a regular Avon Town
Council meeting in January, 2013.
Amendments to the Mixed-Use and Commercial Declarations: Traer Creek LLC has already
provided proposed amendments to the Mixed-Use and Commercial Declarations to impose the
Add-On Retail Sales Fee of .75%, which revenues would be remitted to TOA in accordance with
the terms of the CARADA. The Avon Town Council reviewed the proposed amendments last
spring. Additional revisions were requested by the Town which have not been finalized. The
amendments to the Mixed-Use and Commercial Declarations for The Village (at Avon) is
expected to be finalized in the near future and scheduled for review and approval at a regular
Avon Town Council meeting in January, 2013.
Various Conveyance Documents: Conveyance documents transferring land and assets to TOA are
still under review for title exceptions. Final versions of deeds with title exceptions and title
insurance policies for land parcels is expected to be presented to the Avon Town Council for
review and approval at a regular meeting in January, 2013.
Amendments to the Traer Creek Metropolitan District and The Village Metropolitan District
Service Plans: Both TCMD and The Village Metropolitan District have indicated that they intend
to submit an application to amend their respective Service Plans to address any inconsistencies
between the CARADA, other documents related to fully implementing the Settlement Term
Sheet, and the existing Service Plans. The Avon Municipal Code requires a public hearing with 15
days prior notice for the Town Council to consider amendments to a metropolitan district service
plan. The draft amendments to the TCMD and The Village Metropolitan District Service Plans are
expected in the near future and a public hearing is expected to be scheduled at a regular Avon
Town Council meeting in January, 2013.
Thank you, Eric
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: ericheillaw@gmail.com e-mail: ericheillaw@yahoo.com
HEIL
LAW
TO: Honorable Mayor Carroll and Council members
FROM: Eric Heil, Town Attorney
RE: Second and Final Reading of Ordinance No. 12-11 Amending
Chapter 3.12 of the Avon Municipal Code
DATE: December 5, 2012
SUMMARY: This memorandum provides an overview of Ordinance No. 12-11
Amending Chapter 3.12 of the Avon Municipal Code regarding Real Property Estate
Transfer Tax. Council passed first reading of Ord. No. 12-11 at the November 27, 2012
regular Council meeting. Ord. No. 12-11 is presented for Second and Final Reading
and is scheduled for a public hearing in accordance with Avon’s Home Rule Charter. At
first reading, Council requested optional language to delete the application of the real
estate transfer tax ordinance to long-term leases altogether. Council also requested
additional research concerning other communities experience with administration,
enforcement and impact to commercial leases. These matters are addressed in this
memorandum.
BACKGROUND: The Town’s real property transfer tax applies to leases with terms in
excess of 25 years. The applicability of the Town’s real property transfer tax to existing
long term leases in The Village (at Avon) is one of the pending claims in the current
litigation with Traer Creek LLC and the affiliated Traer Creek Parties. The Traer Creek
Parties brought to the Town’s attention other long term leases in the Town for which the
Town has not imposed and collected real property transfer taxes. As part of the
comprehensive settlement and for the purpose of clarifying the application and
administration of the Town’s real property transfer tax on long term leases, Ordinance
No. 12-11 is presented for Town Council’s consideration.
REVISIONS: Ordinance No. 12-11 adds to the definition of consideration to allow for
the payment of the applicable real property transfer tax when lease payments are paid.
I believe this is more equitable because it ties the amount and timing of the tax to the
lease payments. The definition of consideration based on lease payments
acknowledges that taxes, insurance and common area maintenance fees are not
included in the lease payment amount so that the consideration amount upon which the
tax is calculated is comparable to the purchase price for other real estate transactions.
A new section 3.12.055 Required Reporting of Leases is added so that reporting is
now a requirement for long term leases. This requirement enhances the ability of the
Town to enforce the regulation.
NO RETROACTIVE APPLICATION: Ordinance No. 12-11 is expressly worded to have
no retroactive application to leases entered into before January 10, 2012.
MEMORANDUM
& PLANNING, LLC
Avon Town Council
Ord. No 12-11 Amending RETT Regulations
December 5, 2012
Page 2 of 3
TABOR CONSIDERATIONS: The Tax Payer’s Bill of Rights does not allow any “tax
policy change” which would increase the tax rate or revenues without approval by the
voters at an election. Attention was given to structure these amendments so as not to
create any increase in taxes or other tax policy change, primarily by retaining the
existing language regarding the definition of consideration and allowing tax payers to
elect to pay based on the amount of lease payments as an option.
OPTIONAL LANGUAGE: The following Avon Municipal Code amendment would
effectively render the Town’s real estate transfer tax inapplicable to long term leases:
AMC 3.12.020 Definitions, amend definition of Consideration as follows:
Consideration means and includes the actual cash paid and/or value of the property
delivered, or contracted to be paid or delivered, in return for the transfer of ownership or
title to, or any other possessory interest in, real property and shall include the amount of
any lien, mortgage, contract indebtedness or other encumbrance, either given to secure
the purchase price, or any part thereof, or remaining unpaid on the property at the time of
sale. The term does not include the amount of any outstanding lien or encumbrance in
favor of the United States, the state or of a municipal or quasi-governmental agency,
corporation or district for taxes, special benefits or improvements. In the event that the
transaction or transfer is by lease agreement not specifically exempted in Section
3.12.060, the consideration shall be computed based upon the capitalization or the current
annual rental for ten (10) years, plus any additional consideration, paid or to be paid.
When it is not possible to determine the annual rental, the tax shall be based upon the
appraised value of the property covered by the lease, and this decision, that the annual
rental cannot be determined, shall be solely at the discretion of the Town Manager.
AMC 3.12.020 Definitions, amend definition of Transfer as follows: Transfer means
any grant, conveyance or alienation of real property, as evidenced by deed, instrument of
conveyance or exchange, or any other writing wherein or whereby title to real property is
granted, conveyed or alienated, or the conveyance of a possessory interest including any
other indicia of ownership without the passing of legal title. (Ord. 07-17 §1; Ord. 85-5
§1; Ord. 83-12 §1; Ord. 81-12 §1;
AMC 3.12.060 Exemptions, amend section (10) as follows: [deleted] Any lease or
other instrument or contract which transfers to the transferee a possessory right in real
property where the possessory right is granted for a period of twenty-five (25) years or
less or where, at the time of assignment thereof, twenty-five (25) years or less of the term
remains. (For purposes of this Chapter, where the initial term of the possessory right is
for a period of less than twenty-five (25) years, but such right may be extended for a
period exceeding twenty-five (25) years, or for periods which in the aggregate exceed
twenty-five (25) years, the term of the possessory right shall be calculated as including
the initial term and all extensions thereof.);
Avon Town Council
Ord. No 12-11 Amending RETT Regulations
December 5, 2012
Page 3 of 3
POLICY CONSIDERATIONS: Council expressed concerns about the negative impact
on commercial leasing that Ord. No 12-11 may create. As of the time of preparing this
memorandum, I have not able to research the experience of other communities. The
likely result from enforcing the imposition of real estate transfer taxes on long term
leases in excess of 25 years is that an incentive will be created for leases with terms of
25 years or less. Neither I nor Town Staff has any direct evidence from commercial real
estate brokers, consultants or prospective commercial leases as to whether imposing a
tax on leases greater than 25 years makes an effective difference on a decision to
locate a business in Avon. The Town has general authority to consider waiving,
crediting, or rebating the imposition of the Town’s real estate transfer tax (or any other
Town tax or fee) at any time for specific projects provided that such action is approved
by ordinance and provided that a finding of public benefit is made. Also, Town may
further revise or amend the Town’s real estate transfer tax regulations at any time after
passage of Ord. No. 12-11. Scott Wright, Finance Director, has indicated that the
WalMart and Home Depot leases would have generated $559,884 and $340,883 in real
estate transfer taxes had the tax been applied and collected.
Based on information which Traer Creek provided, there are seven other commercial
leases in excess of 25 years in addition to the WalMart and Home Depot leases. These
other leases contained initial terms with options to extend that ranged from 28 years (1
lease) to 30 years (the other 6 leases). It appears that simply defining long term leases
as leases in excess of 30 years, rather than 25 years, will adequately accommodate
industry standard for the majority of commercial leases. WalMart and Home Depot
have leases with options to extend that range from 50 years to 75 years. It appears that
large retail format businesses are more likely to seek exceptionally long leases.
I recommend against simply deleting the applicability of real estate transfer tax to
long term leases because there are examples of where large commercial blocks are
leased to multiple buildings and tenants for very long periods (e.g. 100 years), which
transactions are effectively the same as transferring property.
The two options I would recommend for consideration at this time are (1) amend the
definition of long term lease as terms including options to extend in excess of 30 years,
and (2) continue research on the impact of real estate transfer tax on long term leases
before making any further revisions to the Town’s real estate transfer tax regulations.
REQUESTED ACTION: Approve Ordinance No. 12-11 on second and final reading.
Thank you, Eric
Ord 12-11 Amending 3.12 [V3]
Nov. 19, 2012 ejh
Page 1 of 5
TOWN OF AVON, COLORADO
ORDINANCE NO. 12-11
SERIES OF 2012
AN ORDINANCE AMENDING CHAPTER 3.12 OF THE AVON
MUNICIPAL CODE REGARDING REAL PROPERTY TRANSFER TAX
WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation
and body politic organized under the laws of the State of Colorado and possessing the maximum
powers, authority and privileges to which it is entitled under Colorado law and as set forth in the
Home Rule Charter of the Town of Avon; and
WHEREAS, the Town Council finds that the taxation of transfers of real property is a matter
of local concern and further finds that amendments to the definition of consideration as regards
lease payments and the administration of leases which are not exempt from the application of the
real estate transfer tax will improve the implementation and enforcement of Chapter 3.12 with
regard to such leases; and
WHEREAS, the adoption of this Ordinance shall resolve pending disputes related to the
imposition and collection of real estate transfer taxes in the Village (at Avon) as such disputes
are set forth in the Civil Action No 2010 CV 316 consolidated into Civil Action No 2008 CV
385 (“Pending Litigation”) and the Town Council finds that the adoption of this Ordinance is not
an admission fault, liability or change in any legal position asserted in the Pending Litigation;
WHEREAS, it is the Town Council’s opinion that the health, safety and welfare of the
citizens of the Town of Avon will be enhanced and promoted by the adoption of this ordinance;
and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home
Rule Charter by setting a public hearing in order to provide the public an opportunity to present
testimony and evidence regarding the application and that approval of this Ordinance on first
reading does not constitute a representation that the Town Council, or any member of the Town
Council, supports, approves, rejects, or denies the proposed amendment to the Avon Municipal
Code.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Amendment to Definition of Consideration in Section 3.12.020. The definition
of Consideration in Section 3.12.020 of the Avon Municipal Code is hereby amended by adding
the following language, which added language is depicted with double underlining, so that the
definition shall read in its entirety, and is hereby adopted in its entirety, as follows:
Ord 12-11 Amending 3.12 [V3]
Nov. 19, 2012 ejh
Page 2 of 5
“Consideration means and includes the actual cash paid and/or value of the property
delivered, or contracted to be paid or delivered, in return for the transfer of ownership or
title to, or any other possessory interest in, real property and shall include the amount of
any lien, mortgage, contract indebtedness or other encumbrance, either given to secure
the purchase price, or any part thereof, or remaining unpaid on the property at the time of
sale. The term does not include the amount of any outstanding lien or encumbrance in
favor of the United States, the state or of a municipal or quasi-governmental agency,
corporation or district for taxes, special benefits or improvements. In the event that the
transaction or transfer is by lease agreement not specifically exempted in Section
3.12.060, the consideration shall be computed based upon the capitalization or the current
annual rental for ten (10) years, plus any additional consideration, paid or to be paid.
When it is not possible to determine the annual rental, the tax shall be based upon the
appraised value of the property covered by the lease, and this decision, that the annual
rental cannot be determined, shall be solely at the discretion of the Town Manager. The
lessee of any taxable lease may elect to pay the real estate transfer tax based upon actual
lease payments. The amount of tax shall be the real estate transfer tax rate charged
against the amount of the lease payment less the portion of lease payments for taxes,
insurance, common area maintenance and similar costs. Any portion of lease payments
which is attributable to capital improvements shall be included in the amount of the lease
payment subject to the real estate transfer tax. For the purposes of this definition, capital
improvement shall be defined as new construction, remodeling and installation of fixtures
appurtenant to the leased property. The applicable real estate transfer tax shall be due
within thirty (30) days after the lease payment is made for lessees who elect to pay real
estate transfer taxes based upon the amount of actual lease payments. The Town
Manager may permit lessees who elect to pay real estate transfer taxes based upon the
amount of actual lease payments to pay the applicable real estate transfer taxes on an
annual basis for lease payments made during the prior year. The due dates,
delinquencies, penalties and interest set forth in Section 3.12.090 shall otherwise apply to
payments by lessees who elect to pay real estate transfer taxes based upon the amount of
actual lease payments.”
Section 3. Adoption of Reporting Requirement, Section 3.12.055. Chapter 3.12 is hereby
amended by adopting Section 3.12.055 which shall read as follows:
“3.12.055 Required Reporting of Leases. The lessee of any lease which is not exempt
from the applicability of the real estate transfer tax as defined in Section 3.12.060(10)
shall report such lease to the Town within thirty (30) days after execution of such lease in
accordance with forms and procedures established by the Town Manager. The required
reporting information shall include at a minimum the name and contact information of
the lessee, the term of the lease with all possible extensions, and the amount of
consideration to be paid. Failure to report a lease as required in this Section 3.12.055
shall be a violation of this Chapter.”
Section 4. Amendment of Section 3.12.060(10). Section 3.12.060(10) is hereby amended
by adding the following language, which added language is depicted with double underlining, so
that Section 3.12.060(10) shall read in its entirety as follows:
Ord 12-11 Amending 3.12 [V3]
Nov. 19, 2012 ejh
Page 3 of 5
“(10) Any lease or other instrument or contract executed after [30 days after final
adoption], 2012 which transfers to the transferee a possessory right in real property where
the possessory right is granted for a period of twenty-five (25) years or less or where, at
the time of assignment thereof, twenty-five (25) years or less of the term remains. (For
purposes of this Chapter, where the initial term of the possessory right is for a period of
less than twenty-five (25) years, but such right may be extended for a period exceeding
twenty-five (25) years, or for periods which in the aggregate exceed twenty-five (25)
years, the term of the possessory right shall be calculated as including the initial term and
all extensions thereof. Leases which were executed on or prior to January 10, 2012 but
are amended after January 10, 2012 to extend the term of the lease shall be treated as
having been executed after January 10, 2012, provided that the real estate transfer tax
shall be applicable only to the shorter period of (i) the term of such lease in excess of 25
years or (ii) the term of the extension approved by lease amendment after January 10,
2012 which exceeds the term of the lease that existed prior to January 10, 2012;
Section 5. Amendment of Section 3.12.130(a). Section 3.12.130(a) is hereby amended by
adding the following language, which added language is depicted with double underlining, so
that Section 3.12.130(a) shall read in its entirety as follows:
“(a) Any person who fails or refuses to pay any tax due under this Chapter, fails to report
a lease which is not exempt from the applicability of real estate transfer taxes as set forth
in Section 3.12.060(10) or otherwise fails to comply with any provision of this Chapter
3.12 may be punished in accordance with the provisions of Section 1.08.010 of this
Code.”
Section 6. Codification Amendments. The codifier of the Town’s Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations, provided that such correction shall not
substantively change any provision of the regulations adopted in this Ordinance. Such
corrections may include spelling, reference, citation, enumeration, and grammatical errors.
Section 7. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 8. Effective Date. This Ordinance shall take effect thirty (30) days after public
notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Ord 12-11 Amending 3.12 [V3]
Nov. 19, 2012 ejh
Page 4 of 5
Section 9. Safety Clause. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 10. No Tax Policy Change. The amendments to Chapter 3.12 adopted by this
Ordinance are not intended and shall not effect a tax policy change which has the result of
increasing the real estate transfer tax without prior voter approval in accordance with Article X,
Section 20 of the Colorado Constitution or which as the result of violating any other applicable
law. In the event that a court of competent jurisdiction finds that any provision of this Ordinance
is an unlawful tax policy change, then such provision shall be automatically stricken and void
without causing any effect to the remaining provisions of Chapter 3.12.
Section 11. Waiver of Claims of Violation, Rights of Enforcement and Penalties. Upon
the effective date of this Ordinance, this Ordinance shall operate as a complete waiver of any
claims of violation, rights of enforcement or penalties the Town may have had which arose from
leases executed prior to October 26, 2012 which are not exempt from the applicability of real
estate transfer taxes under Section 3.12.060(10) of the Avon Municipal Code.
Section 12. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[Execution Page Follows]
Ord 12-11 Amending 3.12 [V3]
Nov. 19, 2012 ejh
Page 5 of 5
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for December 11,
2012 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on November 27, 2012.
____________________________
_________________, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least six days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Patty McKenny, Town Clerk Eric J. Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on December 11, 2012.
____________________________
_________________, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
__________________________
Patty McKenny, Town Clerk
Res. 12-28 Approving Traer Creek Water Tank Site Final Plat
12-12-05 ejh
Page 1 of 2
TOWN OF AVON
RESOLUTION NO. 12-28
Series of 2012
A RESOLUTION APPROVING THE FINAL PLAT, THE
VILLAGE (AT AVON) FILING 4
WHEREAS, on October 7, 2011 the Town of Avon and other parties entered into the Settlement
Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos. 2008 CV
385 and 2010 CV 316, Eagle County District Court;
WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and
construction of the Traer Creek Water Storage Tank, and the Town of Avon, Traer Creek-RP
LLC and the Upper Eagle River Water Authority desire the fee conveyance of the site for the
water storage tank to the Upper Eagle River Water Authority;
WHEREAS, the Traer Creek-RP LLC submitted a minor subdivision application for the Final
Plat, The Village (at Avon) Filing 4, a Parcel of Land in Section 8, T5S, R81W, 6th PM, Town of
Avon, Eagle County, Colorado (“Water Tank Site Final Plat”);
WHEREAS, the Avon Town Council held a public hearing for the Water Tank Site Final Plat
on December 11, 2012, after posting notice as required by law and considered all comments,
testimony, evidence and staff reports provided by the Town staff prior to taking any action on the
Water Tank Site Final Plat application;
WHEREAS, the Avon Town Council finds the Water Tank Site Final Plat to be in conformance
with the review criteria in Sections 7.16.070(e) Preliminary Plat Review Criteria and
7.16.070(f), Final Plat Review Criteria, of the Avon Municipal Code;
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to The Village (at Avon) Settlement Implementation by Ordinance No. 12-10 which set forth
various terms concerning the execution and deposit of documents and agreements into escrow
and the effectiveness or voiding of such documents and agreements; and,
WHEREAS, approval of this Resolution shall constitute the final action of the Town of Avon in
accordance with Section 7.16.020(f)(5) with regard to the review and approval of the Water Tank
Site Final Plat for the purposes of any appeal of the decision of the Avon Town Council.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Traer Creek Water Tank Site Final Plat, attached hereto as Exhibit A, is
hereby approved by the Town of Avon subject to the terms and conditions of the Receipt and
Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation, and that the
Mayor, Town Manager, Town Attorney and Town Engineer are hereby authorized to collectively
review and approve the completion of blanks in the document, revisions to correct typos,
grammatical errors, cross-references and definitions, completion or revision of exhibits, and
other revisions to the agreement and exhibits which do not constitute substantive changes to the
agreement.
Res. 12-28 Approving Traer Creek Water Tank Site Final Plat
12-12-05 ejh
Page 2 of 2
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
APPROVED AS TO FORM:
By:_________________________________
Eric J. Heil, Town Attorney
Res. 12-29 Approving Traer Creek Water Storage Tank Agreement and Second Amendment to Water
Service Agreement
12-12-05 ejh
TOWN OF AVON
RESOLUTION NO. 12-29
Series of 2012
A RESOLUTION APPROVING THE TRAER CREEK
WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER SERVICE AGREEMENT
WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the
Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos.
2008 CV 385 and 2010 CV 316, Eagle County District Court; and,
WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and
construction of the Traer Creek Water Storage Tank;
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Traer Creek Water Storage Tank Agreement and Second Amendment to
Water Service Agreement, attached hereto as Exhibit A, is hereby approved by the Town of
Avon, and that the Mayor, Town Manager and Town Attorney are hereby authorized to
collectively review and approve the completion of blanks in the document, revisions to correct
typos, grammatical errors, cross-references and definitions, completion or revision of exhibits,
and other revisions to the agreement and exhibits which do not constitute substantive changes to
the agreement.
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
APPROVED AS TO FORM:
By:_________________________________
Eric J. Heil, Town Attorney
{00268750.DOC / 7}1
TRAER CREEK WATER STORAGE TANK AGREEMENT
AND
SECOND AMENDMENT TO WATER SERVICE AGREEMENT
THIS TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND
AMENDMENT TO WATER SERVICE AGREEMENT (“Tank Agreement”) is made and
entered into as of this ____ day of __________, 201__(“Effective Date”), by and among the
following entities (collectively, the “Parties”):
the UPPER EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the
State of Colorado (the “Authority”);
the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(“Avon”);
the TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado (“TCMD”);
TRAER CREEK LLC, a Colorado limited liability company (“TCLLC”);
TRAER CREEK-RP LLC,a Colorado limited liability company (“TCRP”); and
only for those limited purposes expressly set forth below,BNP PARIBAS, a financial
institution organized under the laws of the Republic of France (“BNP”) and The Village
Metropolitan District, a quasi-municipal corporation and political subdivision of the State of
Colorado (“VMD”) (together, BNP and VMD may be referred to as a “Limited Party”or the
“Limited Parties”).
RECITALS
This Tank Agreement is made with respect to the following facts:
WHEREAS, Avon, TCMD, Master Developer (defined below) and other entities were
parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County
District Court), and have entered into that certain Settlement Term Sheet dated October 7, 2011
(the “Term Sheet”),to resolve various disputes at issue in the litigation; and
WHEREAS, Section 3 of the Term Sheet includes provisions regarding financing and
constructing the Tank Project (defined below)within The Village (at Avon)real estate
development (the “Property”), the legal description of which is attached hereto as Exhibit A;
and
WHEREAS, except for certain smaller parcels owned by third parties (as such interests
appear of record as of the Effective Date), fee ownership of the bulk of the Property is held by
TCRP,EMD Limited Liability Company (“EMD”), Tr aer Creek Plaza LLC, Tr aer Creek-HD
LLC and Tr aer Creek-WM LLC (collectively, together with any other entity with respect to
{00268750.DOC / 7}2
which TCLLC is the managing member and which acquires title to any portion of the Property
after the Effective Date, the “Developer Affiliates”); and
WHEREAS, for ease of administration and in recognition of the fact that ownership of
the Property has and will continue to become diverse as further development occurs, the
Developer Affiliates have designated TCLLC to act on its and their behalf for all purposes in
connection with this Tank Agreement, including but not limited to negotiation and execution of
this Tank Agreement and any future amendments hereto (in such capacity, TCLLC being
“Master Developer”); and
WHEREAS, TCRP is the fee owner of the bulk of the undeveloped portion of the
Property, including that portion of the Property legally described as Tract J, THE VILLAGE (at
AVON) FILING 4 according to the plat recorded December ___, 2012, at Reception No. _____,
COUNTY OF EAGLE, STATE OF COLORADO (the “Tank Site”) upon which the Tank
Project is to be constructed and operated; and
WHEREAS, due to certain regulatory changes and changed circumstances, the plans and
specifications completed to date by the Developer Affiliates and TCMD (the “2005 Plans”)
require certain updates and modifications in order to be ready for bidding and construction;and
WHEREAS, TCMD has agreed to contribute toward the costs of updating the 2005
Plans to be completed in accordance with the terms and conditions of this Tank Agreement (as
updated, the “Bid-Ready Plans”); and
WHEREAS,the Bid-Ready Plans will incorporate all design, engineering and
construction drawing criteria required to bid and construct the following improvements as
depicted, described and/or specified in the Bid-Ready Plans (collectively, the “Tank Project”):
a 2.0 million gallon treated water storage tank, together with related site grading,
retaining walls and similar site improvements (collectively, the “Storage Tank”);
and
a year-round all-weather road between the Storage Tank site and the nearest
dedicated public road which shall provide year-round all-weather access to the
Storage Tank site, portions of which are intended to provide general public access
after it is dedicated to Avon and portions of which are intended to be restricted
from general public use (the “Access Road”); and
those water lines, electric lines and other utilities required to be installed and
connected to provide service to the Tank Site and to connect the Storage Tank to
existing water lines, electrical lines and related utilities.
WHEREAS, the Authority has agreed to undertake and perform the following services in
accordance with the terms and conditions of this Tank Agreement:
coordinating preparation of the Bid-Ready Plans;and
{00268750.DOC / 7}3
securing all required permitting for construction of the Tank Project in accordance
with the Bid-Ready Plans;and
contracting for construction of the Tank Project in accordance with the Bid-Ready
Plans;and
financing the construction of the Tank Project in the name of and under the
Authority’s credit through the sale of its Tank Project Bonds (as defined in
Section 9.b below);and
providing construction management services for the Tank Project; and
making the Storage Tank an operational facility; and
all ongoing operations and maintenance of the Storage Tank and that portion of
the Access Road which is within or provides the Authority with private access to
the Tank Site and which is not intended to be or has not been dedicated to and
accepted by Avon.
WHEREAS, certain of the Parties,or their predecessors in interest,and the Eagle-Vail
Metropolitan District (“EVMD”) entered into a Water Service Agreement, dated May 15, 1997,
as amended by First Amendment to Water Service and Tap Fee Allocation Agreement dated
June 22, 1999 (collectively, as so amended, the “Service Agreement”), in which Section 5, titled
Construction of Water Service Facilities,provided for construction of a water storage tank by
TCMD or a predecessor of Master Developer; and
WHEREAS, the Parties intend this Tank Agreement to amend Section 2 of the Service
Agreement as it provides for the Lease of Water Rights and Section 5 of the Service Agreement
as it provides for construction of the Storage Tank; and
WHEREAS, as now provided in the Service Agreement, Avon is the successor in
interest to the rights, obligations, agreements and benefits of EVMD and, therefore, in
accordance with Section 13(c) of the Service Agreement Avon is fully authorized to approve and
execute the amendments to the Service Agreement effected by this Tank Agreement such that the
approval or consent of EVMD is not required; and
WHEREAS,TCMD has agreed to pledge and assign certain of its revenues to support
the TCMD Bond Resissue and the Pledge Agreement (as such terms are defined in Section 9.a
below); and
WHEREAS, VMD has agreed to pledge and assign certain of its revenues to support the
TCMD Bond Reissue and the Pledge Agreement (as such terms are defined in Section 9.a
below), and is executing this Tank Agreement for the sole and limited purpose of setting forth its
obligations, which are limited to those expressly set forth in Section 9.a of this Tank Agreement,
and its rights and remedies, which are limited to those expressly set forth in Sections 8, 9, 10.b
and 14 of this Tank Agreement; and
{00268750.DOC / 7}4
WHEREAS, as between the Authority, Avon, TCMD and VMD, this Tank Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105 and
Article XIV, Section 18(2) of the Colorado Constitution and each such governmental or quasi-
governmental entity is specifically entitled to seek and be awarded the remedy of specific
performance (if allowed by law against any local government that is a Party) of each such
governmental or quasi-governmental entity’s obligations arising under this Tank Agreement; and
WHEREAS,the Developer Affiliates have undertaken and will undertake certain
obligations and certain investments in reliance on the Authority’s commitment to provide water
service to and issue taps for development of the Property; and
WHEREAS, BNP as a Limited Party has executed this Tank Agreement to affirm BNP’s
approval of and consent to TCMD and VMD undertaking and performing their respective
obligations as described in Section 9.a of this Tank Agreement regarding the TCMD Bond
Reissue and as set forth in the Pledge Agreement and its consent to the Pledge Agreement in the
form attached as Exhibit E hereto; and
WHEREAS, the Developer Affiliates (the “Intended Beneficiaries”) are intended to be
express third-party beneficiaries of the Authority’s and Avon’s obligations under this Tank
Agreement with rights of direct enforcement of such obligations as more particularly set forth in
Section 14 of this Tank Agreement; and
WHEREAS, implementation of the settlement contemplated in the Term Sheet will
require the satisfaction of various mutually dependant conditions, including but not limited to
closing of the TCMD Bond Reissue, such that all documents and instruments required to be
formally delivered and/or recorded to implement the Term Sheet (except for this Tank
Agreement) will be deposited, pursuant to a master escrow agreement (“Escrow Agreement”),
into escrow (the “Escrow”)with Stewart Title as Escrow Agent prior to closing of the TCMD
Bond Reissue; and
WHEREAS, the Escrow Agreement shall generally provide for the deposit of all
documents and instruments required to implement the settlement subject to instructions for
formal delivery and/or recording on the date when closing of the TCMD Bond Reissue occurs
(such date being the “Implementation Date”), or return of all such documents and instruments
without formal delivery or recording, such documents and instruments to be void ab initio and of
no legal effect if the TCMD Bond Reissue has not occurred by a date certain to be specified in
the Escrow Agreement (the “Outside Date”);and
WHEREAS, certain of the Parties’ obligations are to be performed prior to the
Implementation Date and other of the Parties’ obligations are to be performed after the
Implementation Date such that certain provisions of this Tank Agreement are intended to be
legally effective and binding on the Parties as of the Effective Date while other provisions of this
Tank Agreement are intended to be legally effective and binding on the Parties only upon the
occurrence of the Implementation Date.
{00268750.DOC / 7}5
NOW,THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the Parties agree as follows:
AGREEMENT TERMS
1.Settlement Term Sheet; Effective Date; Implementation Date. The terms and
provisions of this Tank Agreement are intended to implement,and as of the Implementation Date
shall be deemed to have implemented,the terms of Section 3 of the Term Sheet. Certain rights,
obligations, waivers and releases of the Parties to this Tank Agreement are described as arising
with reference to the Effective Date and/or by their terms are necessarily to be performed prior to
the Implementation Date in order to enable the Implementation Date to occur. Such matters
attach, are operative and are legally binding on the Parties as of the Effective Date. Certain
rights, obligations, waivers and releases of the Parties to this Tank Agreement are described as
arising with reference to the Implementation Date and/or by their terms are necessarily capable
of being performed only from and after the Implementation Date. Such matters shall be deemed
to have attached, become operative and legally binding on the Parties only upon the occurrence
of, and shall be of no force or effect prior to,the Implementation Date. Accordingly, this Tank
Agreement shall not be required to be deposited into the Escrow, although the executed Pledge
Agreement shall be required to be deposited into the Escrow as provided in Section 9.a below.
2.Service Agreement. From and after the Implementation Date, the terms and
provisions of this Tank Agreement amend the following terms of the Service Agreement:
a.Section 2(b) as the terms of Section 2(b) apply to the ownership of the water
rights to be used to service the Property; and
b.Section 5 as it provides for construction of the Storage Tank.
3.Bid-Ready Plans.
a.Prior to the Effective Date, TCMD and the Authority executed and delivered the
Agreement for Payment of Costs of Water Storage Tank Design attached as
Exhibit C hereto and incorporated herein by this reference (the “Design Costs
Agreement”). Pursuant to the Design Costs Agreement and subject to the terms
and conditions thereof, TCMD has transferred to the Authority the sum of
$66,585.00.The Authority shall have the obligation to contract for and cause
completion of the Bid-Ready Plans, and the Authority shall be responsible for
payment of any costs thereof that exceed $66,585.00 at such time as this Tank
Agreement is fully executed and delivered to the Authority. To the extent such
expenses can be incorporated into the Tank Project Bonds without exceeding the
Annual Debt Service Pledge Amount (as defined in Section 9.a.i below) the
Authority shall first be entitled to reimbursement for its costs incurred in
obtaining completion of the Bid-Ready Plans pursuant to Section 9.b below.
Thereafter, to the extent such expenses can be incorporated into the Tank Project
Bonds without exceeding the Annual Debt Service Pledge Amount (as defined in
Section 9.a.i below), TCMD shall be entitled to reimbursement for its expenses up
{00268750.DOC / 7}6
to $66,585.00 incurred in obtaining completion of the Bid-Ready Plans pursuant
to Section 9.b below.
b.As soon as practicable after the Effective Date, the Authority shall secure
completion of the Bid-Ready Plans by causing updates to the 2005 Plans to be
completed, and shall cause delivery of such completed Bid-Ready Plans to BNP,
TCMD and Master Developer.
c.Upon the earlier to occur of commencement of construction of the Tank Project or
the date on which closing of the Tank Project Bonds occurs, Master Developer
and TCMD shall assign to the Authority, without any representation or warranty,
all of their right, title and interest in and to the Bid-Ready Plans and any and all
work product resulting therefrom.
4.Obligation to Prepare Construction Cost Estimates and to Bid the Tank Project;
Contract Award. After completion and delivery of the Bid-Ready Plans as provided in Section 3
above, which shall include construction cost estimates for the Tank Project based on the Bid-
Ready Plans,the Authority may thereafter, in its sole and absolute discretion,solicit bids on the
Tank Project. The Authority shall follow its normal bidding practices or may utilize an
“integrated project delivery” (Design/Build) process for all or portions of the Tank Project as is
customary for the Authority. Prior to awarding any contracts with respect to the Tank Project,
the Implementation Date shall have occurred and the Authority shall provide to TCMD, BNP
and Master Developer at least ten (10) business days to review and comment upon all bid
proposals. The Authority shall be solely responsible for contracting for the construction of the
Tank Project and shall not be required to secure the approval of any other Party of the bid or the
contract(s) for the Tank Project. TCMD, BNP and Master Developer shall determine to their
satisfaction and then confirm in writing to the Authority that the Tank Project Bonds can be
serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge
Amount (as defined in Section 9.a.i below). In furtherance of Section 9.b, the Authority shall
provide written notice to BNP and TCMD that it is satisfied the Tank Project Bonds can be
serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge
Amount (as defined in Section 9.a.i below) as a condition precedent to the Implementation Date
and the release of the Pledge Agreement from Escrow. In making the foregoing determination,
all “Mandatory Costs” (as defined in Section 9.b below) shall be incorporated, together with such
“Discretionary Costs” (as defined in Section 9.b below), if any, determined pursuant to Sections
3 and 9.b to be desirable and capable of being financed through the Tank Project Bonds.
5.Tank Site, Access Road, Permits and Landscaping. From and after the Effective
Date, the Authority shall be solely responsible for securing all permits for the construction of the
Tank Project,except any 1041 Permit Avon chooses to require or to issue,including any permit
required by the Colorado Department of Public Health and Environment (including without
limitation any and all stormwater discharge permits), and shall have access to any information
previously provided to permitting authorities by TCMD or Master Developer. The Authority
shall not be required to include a 1041 Permit in the scope of work for any contract for any
Engineering & Design Work for the Tank Project. No new or additional studies shall be required
by Avon for the Tank Project. Avon also shall waive all fees, including review fees, for any and
{00268750.DOC / 7}7
all permits it may require for the Tank Project. Avon shall permit the Authority to construct the
Tank Project on the Tank Site and shall not require a subdivision improvement agreement with
respect to the Tank Project. Avon shall not require the posting of any collateral, bond or other
form of assurance of completion with respect to the Tank Project, other than this Tank
Agreement. Avon’s waiver of financial security for the Tank Project shall not extend or apply to
any future water storage tank project which is pursued if this Tank Agreement expires or is
terminated without completion of the Storage Tank, nor shall such waiver apply to any additional
tanks that may be required to serve higher elevations of the Property. If portions of the Access
Road are improved as a public road, such portions shall be dedicated to Avon and accepted by
Avon for maintenance immediately following completion of the same to Avon’s standards for
dedication of a public street then in effect, but neither the Authority nor Avon shall have an y
responsibility to improve the Access Road to such standards. The Authority shall have no further
responsibility for the physical condition of the Access Road after two (2) years from the date the
Authority accepts the Tank Project after the completion of construction. Pending dedication to
and acceptance by Avon of the Access Road, the owner or owners of the property upon which
the Access Road is constructed shall be responsible for maintenance of the Access Road so long
as it remains closed to use by the general public;such maintenance shall not include snow
removal, but must be sufficient to permit continued access to the Storage Tank by the Authority
for operation and maintenance of the Storage Tank. Any Party who uses the Access Road at a
time when snow is present shall be responsible to plow the snow as necessary to permit ingress
and egress so long as the Access Road remains closed to use by the general public. The
Authority shall be solely responsible for approving all progress payments and disbursements to
the contractor or contractors for the Tank Project. Any inspections of construction by Avon shall
be in its discretion and at its sole cost and expense. The landscaping requirements set forth in the
Bid-Ready Plans supersede all previously adopted landscaping requirements and the Authority
shall only be responsible to perform and install those landscaping improvements set forth in the
Bid-Ready Plans,to warrant the same until expiration of two complete growing seasons, and to
thereafter maintain all such landscaping improvements that are installed within the Tank Site.
Master Developer shall, to the extent required by applicable requirements of The Village (at
Avon) Design Review Board, be responsible to obtain such board’s approval of the landscape
requirements set forth in the Bid-Ready Plans. Any additional landscaping that a Party desires
within the Tank Site shall be allowed at the sole expense of such Party, subject to the Authority’s
reasonable determination that such additional landscaping improvements will not impair or
interfere with the Authority’s operation and maintenance of the Storage Tank, and further subject
to review and approval by The Village (at Avon) Design Review Board.
6.Wetlands Mitigation. The Authority shall be solely responsible for obtaining and
maintaining any wetland permits required in order to complete the Tank Project, including the
Access Road. If the Bid-Ready Plans include the switchback design of the Access Road to the
Storage Tank which affords the opportunity for wetlands mitigation unrelated to the Tank Project
that may be completed by Master Developer or TCMD, the actual wetlands mitigation vegetation
replanting for such wetlands mitigation unrelated to the Tank Project shall not be required of the
Authority and shall not be part of the Authority’s permit obligations or construction contract or
included in the construction costs to be financed by the Tank Project Bonds. The Authority shall
have no responsibility for permits or wetlands mitigation requirements for the Property which are
unrelated to the Tank Project and not incorporated in the Bid-Ready Plans.
{00268750.DOC / 7}8
7.Conveyance of Water Rights. Section 2(b) of the Service Agreement provided for
the lease by Master Developer’s predecessor to Avon for sublease without cost to the Authority
certain water rights sufficient to replace the consumptive use associated with the development of
the Property as ultimately decreed by the Water Court. By the terms of a Water Lease, dated
November 4, 2002, certain TCMD water rights (Exhibit 2 thereto), certain historic consumptive
use credits dedicated to the plan for augmentation approved in Case No. 97CW306 (Exhibit 3
thereto), and 10.8 acre-feet of Wolford Mountain Reservoir contract water were leased by
TCMD to Avon. By the terms of a Water Sublease, dated November 4, 2002, Avon subleased
the same water rights to the Authority. In consideration of the undertakings of the Authority
pursuant to this Tank Agreement,on the Effective Date the following instruments shall be
executed for deposit to the Escrow:
a.TCMD shall assign and convey to Avon by Special Warranty Deed in
substantially the form attached hereto as Exhibit D-1,all of its right, title and
interest in and to the water rights described therein (collectively, the “Water
Rights”), free and clear of all liens and encumbrances, together with all diversion
ditches, pipelines, headgates and structures, pumps, casings and other
improvements and easements associated or used in connection with the Water
Rights as becomes necessary from time to time in order for the Authority to
provide municipal water service to the Property (“Appurtenances”), reserving
unto TCMD all rights of access and use of the Appurtenances to the extent not
required to provide municipal water service for the Property.
b.Concurrently with the conveyance described in subparagraph 7.a above, Avon
shall assign and convey by Special Warranty Deed in substantially the form
attached hereto as Exhibit D-2, the Water Rights and Appurtenances to the
Authority, subject to a right of reverter to Avon in the event the Authority fails to
provide water service to the Property (excepting temporary cessation of water
service due to reasonable maintenance requirements or emergency conditions or
actions by the Authority as authorized by its Rules and Regulations).
c.TCMD and Master Developer shall, without further action or documentation,be
deemed to have waived any ownership interest in the thirty (30) acre-feet of Eagle
Park Reservoir water previously obtained by the Authority in its name using funds
provided by TCMD.
d.Any obligation to lease water rights to Avon or the Authority and any obligation
of TCMD or Master Developer to construct a water storage tank to serve
approximately 2,800 SFEs (single family equivalents) under the terms of the
Service Agreement, the Water Lease or the Water Sublease shall be considered
satisfied in full once the Water Rights and Appurtenances have been conveyed to
the Authority as provided herein and once the Storage Tank has been constructed
and is fully operational as provided herein. However, the obligation to fund the
construction of the Storage Tank and all appurtenant facilities shall continue until
the Tank Project Bonds are paid in full and the Pledge Agreement has been
terminated.This paragraph shall not be construed to relieve TCMD, Master
{00268750.DOC / 7}9
Developer, or any other owner of the Property, or portion thereof, from the
obligation to provide additional water rights to serve development on the Property
in excess of what is approved by the decree of the District Court in and for Water
Division No. 5 in Case No. 97CW306.
e.The Authority shall undertake the ongoing responsibility for any Water Court
filings necessary to continue and/or to make absolute the Metcalf Ditch Headgate
and Raw Water Booster Pump conditional rights decreed in Case No. 97CW306.
TCMD and the Authority shall continue to cooperate with each other in all Water
Court matters involving the rights decreed in Case No.97CW306. The Authority
shall file any application necessary to maintain and/or make absolute the Metcalf
Ditch Headgate and Raw Water Booster Pump. In the sole and absolute
discretion of the Authority, the Authority may require TCMD to file as a co-
applicant.
In connection with the development of the Property, the Parties acknowledge that the
Appurtenances may need to be modified, piped, buried or otherwise improved at TCMD’s or
Master Developer’s sole cost and discretion. The instruments effecting the foregoing assignment
and conveyance of the Water Rights and Appurtenances (the “Water Instruments”) shall be
deposited into the Escrow not later than thirty (30) days after the Effective Date, but shall not be
deemed legally effective or operative until formally delivered and/or recorded on the
Implementation Date.
8.Moratorium. For a number of years the Authority has imposed a moratorium upon
further water service within the Property. From and after formal delivery from the Escrow of the
Water Instruments, the Special Warranty Deed to the Tank Site, the Easement Agreement and
the Pledge Agreement on the Implementation Date:
a.the moratorium shall be rescinded by Resolution adopted by the Board of
Directors of the Authority, effective upon release of the Pledge Agreement, the
Deeds and the Easement Agreement from the Escrow; and
b.the Authority, without need of further action, legally binds itself to:
i.construct the Storage Tank as soon as practicable after the Authority has
completed the issuance of the Tank Project Bonds and given Notice to
Proceed to the contractor for the Tank Project; thereafter,no delay or
problem (foreseen or unforeseen) in completing construction of the
Storage Tank shall relieve the Authority of its obligation to provide
potable water service to the Property pursuant to its Rules and Regulations
and any delay in completing construction of the Storage Tank shall not be
a basis for re-imposing the moratorium rescinded pursuant to Section 8.a
hereof, except if the Authority is delayed in completing construction of the
Storage Tank by the acts or omissions of the other Parties or Limited
Parties;and
{00268750.DOC / 7}10
ii.provide potable water service to the Property, subject to the terms of the
decree of the District Court in and for Water Division No. 5,Case No.
97CW306,up to a maximum of 106.3 consumptive acre feet per year, and
further subject to the improvements to be constructed, or improvements
previously constructed,within the area of the Property physically capable
of being served by the Storage Tank (at elevations one-hundred-forty
(140) feet below the base of the Storage Tank, or above such elevation
upon construction of additional pumping and/or tank storage capacity
above such elevation); and
iii.issue taps for potable water service as described in subparagraph 8.b.ii
above upon payment of any applicable fees,compliance with generally
applicable engineering/technical requirements for connection to the
Authority’s water distribution system and compliance with the conditions
for service as set forth in the Authority’s Rules and Regulations; and
c.any development within the Property located at an elevation higher than the
property that can be served by the Storage Tank will require additional treated
water storage to be constructed by someone other than the Authority or Avon at
elevations higher than the Storage Tank elevation if such development is to be
served by the Authority; and
d.the Authority’s commitment to provide potable water service pursuant to the
terms of the decree in Case No. 97CW306 up to 106.3 consumptive acre feet per
year and to issue taps therefore as set forth in this Section 8 shall inure to the
benefit of TCMD; and
e.as of the Effective Date, an SFE is equivalent to 714 gallons of treated water
storage and if TCMD wants the Authority to provide water service to more than
2,800 SFEs, TCMD will have to provide additional treated water storage; or, if
water service is proposed to development located above the service area of the
Storage Tank, TCMD shall be required to construct and dedicate an additional
water storage tank or tanks to the Authority; however, this provision shall not be
construed to imply that the decree in Case No. 97CW306 permits service to
approximately 2,800 SFEs, and shall not modify the provisions of subparagraph
8.f set forth below; and
f.if any Party wants the Authority to provide service in excess of what is authorized
by the decree in Case No. 97CW306, the Party first needs to provide additional
water rights and pay all costs incurred by the Authority to adjudicate the
necessary water rights to provide the increased level of service; and
g.each Party and Limited Party shall have direct rights to enforce the terms and
conditions of this Section 8.
{00268750.DOC / 7}11
9.Public Financing of the Tank Project. The Tank Project public financing shall be
accomplished by the following actions of TCMD, the Authority and Avon:
a.Pledge; TCMD Bond Reissue. As soon as practicable after the Effective Date,but
in any event prior to the Implementation Date, the Authority, BNP, TCMD and
VMD shall mutually execute and deposit into the Escrow a pledge agreement in
substantially the form attached hereto as Exhibit E and incorporated herein by this
reference (the “Pledge Agreement”). The Pledge Agreement shall, in accordance
with its terms and conditions,become legally operative and binding on each party
thereto only upon formal delivery from the Escrow on the Implementation Date.
From and after the Effective Date, TCMD and VMD shall coordinate with BNP to
cause the reissue of TCMD’s existing bonded indebtedness on the Implementation
Date (the “TCMD Bond Reissue”) so as to enable performance of TCMD’s and
VMD’s obligations under the Pledge Agreement. Without limiting of the terms of
the TCMD Bond Reissue documents or the Pledge Agreement,the terms and
conditions of which shall control over any descriptive language herein (which
shall not be used to interpret or modify the terms and conditions of the Pledge
Agreement in any manner whatsoever):
i.The Pledge Agreement sets forth the pledge of TCMD and VMD to pay to
the Authority $500,000 or such lesser amount as may be necessary to fully
pay the annual debt service on the Tank Project Bonds (as defined in the
Pledge Agreement, the “Annual Debt Service Pledge Amount”). If such
amount is not sufficient to fully pay the annual debt service on the Tank
Project Bonds, the Authority shall not be required to issue the Bonds or
construct the Tank and the Authority shall be released from such
obligations and BNP shall be released from any obligation it may have to
cause the TCMD Bond Reissue to occur.
ii.The term of the Pledge Agreement (and of the obligation to remit the
Annual Debt Service Pledge Amount) shall commence not later than the
issue date of the Tank Project Bonds, and shall terminate on the date on
which the Tank Project Bonds are paid in full.
iii.During the term of the Pledge Agreement, the Pledged Revenue (as
defined in the Pledge Agreement) shall be applied to payment of the
Annual Debt Service Pledge Amount on a periodic basis on the terms and
conditions set forth in the Pledge Agreement.
b.Tank Project Bonds. Concurrently with the closing of the TCMD Bond Reissue,
the Authority shall issue bonds to finance construction of the Tank Project (as
defined in the Pledge Agreement, the “Tank Project Bonds”). The Tank Project
Bonds will be issued (i)in a par amount sufficient to pay the “Mandatory Costs”
described in this Section below and (ii) with annual debt service which can be
fully paid by the Annual Debt Service Obligation payable by the Districts
pursuant to the Pledge Agreement.The par amount of the Tank Project Bonds will
{00268750.DOC / 7}12
be increased to include as much of the “Discretionary Costs” described in this
Section below as possible without increasing the annual debt service on the Tank
Project Bonds above the Annual Debt Service Obligation payable by the Districts
in the Pledge Agreement. For purposes of this Section 9.b, “Mandatory Costs”
means:(iii)the estimated costs (including construction costs,contingencies and
the cost of construction management services to be provided by the Authority) of
the Tank Project, plus (iv)the costs of issuance of and reserve requirements for
the Tank Project Bonds. For purposes of this Section 9.b, “Discretionary Costs”
means the following costs: (v)$134,119.23 presently due to the Authority from
TCMD as described in Section 10 below,and (vi)as described in Section 3 above,
the Authority shall first be entitled to reimbursement for its costs incurred in
obtaining completion of the Bid-Ready Plans and thereafter TCMD shall be
entitled to reimbursement for its expenses up to $66,585.00 incurred in obtaining
completion of the Bid-Ready Plans (with all such TCMD reimbursed expenses to
utilized for payment of debt service to BNP). Once the Authority has completed
the issuance of the Tank Project Bonds and given Notice to Proceed to the
contractor for the Tank Project, the Authority shall proceed to complete the
Storage Tank and make it operational as soon as possible.
c.Avon Actions. In consideration of the undertakings of the other Parties to this
Tank Agreement and other benefits to Avon from implementation of the Term
Sheet, as of the Effective Date and without the requirement of further action,
Avon: (i)waives and releases any claim to revenues of TCMD and VMD required
to pay the Annual Debt Service Pledge Amount; (ii) covenants that it will exercise
the right of reverter set forth in the Water Instruments upon a triggering event as
described in Section 7 above; and (iii)covenants that it will undertake and be
responsible for the provision of water service to the Property in the event of a
dissolution of the Authority or otherwise upon exercising the right of reverter
described in Section 7 above.
10.Other Consideration.
a.Immediately upon formal delivery of the Pledge Agreement on the
Implementation Date, and without the requirement of any further action, the
Authority shall be deemed to have irrevocably released TCMD from any
obligation to pay the sum of $20,387.22 due for the remainder of the Authority’s
professional fees incurred in adjudicating a plan for augmentation and exchange
to allow the Authority to use 10.8 acre-feet of storage in Wolford Mountain and
Ruedi Reservoirs acquired from the Traer Creek entities.
b.If the amount presently due to the Authority ($134,119.23) from TCMD pursuant
to the Agreement dated November 4, 2002, is paid in full or in part by TCMD or
Master Developer (Master Developer having no legal obligation to make such
payment), or if the amount due is able to be refinanced (in whole or in part) as
part of the Tank Project Bonds, immediately upon such payment or refinancing
and without the requirement of any further action the Authority shall be deemed
{00268750.DOC / 7}13
to have irrevocably released TCMD to the extent of such payment or refinancing,
or both, from the obligation to pay that portion of the obligation to the Authority.
If the amount due is not paid in full or cannot be fully re-financed as part of the
Tank Project Bonds, TCMD shall continue to make annual payments to the
Authority in September of each year in the amount of $11,880 until the
$134,119.23 obligation is satisfied in full. The Authority hereby agrees no other
professional fees are owed to it by TCMD, VMD or Master Developer and the
Authority hereby expressly releases any other such claims for fees through the
Effective Date.
11.Conveyance of the Tank Site; Easement Agreement. The Storage Tank shall be
constructed and operated by the Authority on the Tank Site. The Tank Site shall be conveyed to
the Authority by TCRP by Special Warranty Deed in substantially the form attached hereto as
Exhibit B, free and clear of all monetary liens and other encumbrances (the “Tank Site Deed”)
which shall include all areas required for ingress and egress,temporary construction easements,
maintenance, repairs or replacement of facilities, retaining walls, slope maintenance and snow
storage and otherwise meeting the minimum requirements of the Avon Municipal Code. TCRP
agrees that it has or will submit the Final Plat for the Tank Site to Avon for approval as a minor
subdivision as soon as possible and Avon agrees to process and approve such application in a
timely manner. Accordingl y:
a.By the Effective Date, TCRP and the Authority shall execute and deposit the
Tank Site Deed into the Escrow pursuant to the Escrow Agreement.
b.By the Effective Date, TCRP and the Authority shall execute and deposit the
Easement Agreement in substantially the form attached hereto as Exhibit F,
granting a non-exclusive easement to the Authority for construction and use of the
Access Road as described therein.
c.TCRP shall grant to the Authority at no cost to the Authority,such non-exclusive
easements, if any, as may reasonably be required within the Access Road
alignment and right-of-way, or which otherwise are specifically described in
Exhibit F, to connect the Storage Tank to existing water lines and electric lines
anywhere on the Property to be mutually agreed upon by TCRP and the
Authority, including any pumping station and facilities reasonably necessary to
the operations of the Storage Tank.
d.TCRP shall grant to the Authority at no cost to the Authority, temporary
construction easements and staging areas at a site or sites specifically described in
Exhibit F or at the Stolport (in the area recently used as a construction staging
area by Xcel Energy and/or near the current recycling area) and/or at a location or
locations adjacent to the Access Road as designated by the Authority or its
contractor for a staging area or areas,and for all utilities being installed by the
Authority to serve the Tank Project.
{00268750.DOC / 7}14
12.Construction and Ownership of Storage Tank.The Authority agrees to commence
construction of the Tank Project as soon as possible after the Implementation Date, except if
circumstances beyond its control limit its ability to issue or preclude the issuance of the Tank
Project Bonds,or to bid and construct the Tank Project. The Authority shall own the Storage
Tank and all capacity therein for treated water storage and shall provide all maintenance and
operation services for the Storage Tank and the Tank Site at its sole cost and expense. The
Parties acknowledge that the Tank Project anticipates and will be designed to accommodate and
connect to future water storage tank(s) to be located uphill from the Storage Tank.
13.Prior Agreements Not Fully Superseded; No Cross-Defaults. Except to the extent
that Section 2(b) and Section 5 of the Service Agreement are amended and/or superseded by the
express terms of this Tank Agreement, the Service Agreement and any other agreement
referenced in this Tank Agreement that was executed prior to the Effective Date (“Prior
Agreement(s)”) shall continue in effect in accordance with such agreements’terms, and the
parties thereto shall maintain all of their rights, duties and obligations set forth therein.
Notwithstanding the foregoing, and not withstanding anything to the contrary in any Prior
Agreement,no default under this Tank Agreement shall be construed to be a default under any
Prior Agreement and no default under any Prior Agreement shall be construed to be a default
under this Tank Agreement.
14.Default; Remedies; Rights of Limited Parties and Intended Beneficiaries.
a.Default of a Party. A default by a Party is a failure by such Party to fully perform
any of its duties and obligations set forth in this Tank Agreement.
b.Default of either Limited Party. The obligations of BNP and VMD under this
Tank Agreement are expressly limited to those set forth in Section 9.a above, and
BNP and VMD shall have no liability arising pursuant to this Tank Agreement to
any Party or any Intended Beneficiary except to the extent of BNP’s or VMD’s
failure to fully perform their respective duties and obligations as expressly set
forth in Section 9.a above.
c.Cure Period. Default will not occur until a non-defaulting Party provides the
defaulting Party thirty (30) days written notice describing the default, and the
defaulting Party is given the opportunity during such time to cure the default.
d.Remedies.
i.Parties and Limited Parties. Upon the occurrence and continuance of an
uncured default, any non-defaulting Party and/or any non-defaulting
Limited Party shall, except to the extent limited by an express provision of
this Tank Agreement,be entitled to enforce the provisions and any remedy
provided in this Tank Agreement at law or in equity, and relief in the
nature of injunctive relief, mandamus,specific performance (if allowed by
law against any local government that is a Party) or damages or a
combination thereof may be awarded. The remedies available shall
{00268750.DOC / 7}15
include, but not be limited to, ex parte applications for temporary
restraining orders, preliminary injunctions and permanent injunctions and
actions for specific performance (if allowed by law against any local
government that is a Party) of the defaulting Party’s or Limited Party’s
obligations and/or damages. All of the remedies permitted or available
under this Tank Agreement,at law,by statute or in equity shall be
cumulative and not in the alternative, and invocation of any such right or
remedy shall not constitute a waiver or election of remedies with respect
to any other permitted or available right or remedy. Additionally, in
consideration of this Tank Agreement constituting an intergovernmental
agreement by and among Avon, the Authority, TCMD and VMD, each
such governmental or quasi-governmental entity expressly affirms its
intent that the obligations of each such governmental or quasi-
governmental entity are to be enforced in accordance with their terms.
ii.Intended Beneficiaries.
1.The Developer Affiliates shall have the right to enforce the
Authority’s obligations pursuant to Section 8, together with the
right to enforce any right of Master Developer and pursue any
remedy available to Master Developer in the event of a default by
another of the Parties.
2.Except with respect to those expressly stated rights the Intended
Beneficiaries have under this Tank Agreement, no Developer
Affiliate is subject to any obligation nor has it acquired any
enforcement right or remedy arising solely under this Tank
Agreement.
15.Assignment. Any Party or Limited Party may assign its rights, duties and
obligations under this Tank Agreement upon the prior written consent of the other Parties and the
Limited Parties, such consent not to be unreasonably withheld, conditioned or delayed. In
addition, the assignor shall provide the other Parties and Limited Parties with copies of all
relevant documentation of such assignment.
16.No Waiver; Governmental Immunity; Annual Appropriation. Any Party’s or
Limited Party’s waiver of, or failure to pursue any available remedy for, a breach of any term or
provision of this Tank Agreement shall not operate or be construed as a waiver of any
subsequent breach by any Party or Limited Party. Additionally, and notwithstanding any
provision of this Tank Agreement to the contrary, no term or condition of this Tank Agreement
shall be construed or interpreted as a waiver, either express or implied, of any of the immunities,
rights, benefits or protection provided to TCMD, VMD, the Authority and Avon under the
Colorado Governmental Immunity Act, §§ 24-10-101 et seq., C.R.S. The obligations of the
Authority and Avon hereunder are subject to the annual appropriation of funds necessary for the
performance thereof, which appropriations shall be made in the sole discretion of the Authority’s
Board of Directors or the Avon Town Council as applicable.
{00268750.DOC / 7}16
17.Amendment; Modification. This Tank Agreement may be modified only by the
signed, written agreement of the Parties or their respective agents, successors and assigns. The
prior written consent of the Limited Parties shall not be required except to the extent the
proposed modification directly and expressly affects a right or obligation of the Limited Parties,
and such consent shall not be unreasonably withheld, conditioned or delayed. Additionally, the
Parties and the Limited Parties acknowledge that the TCMD Bond Reissue documentation is
anticipated to preclude TCMD and/or VMD from entering into any modification of this Tank
Agreement without the prior written consent of BNP, which consent BNP shall not unreasonably
withhold, condition or delay.
18.Further Cooperation. The Parties and Limited Parties shall reasonably cooperate
with one another to effectuate the intent of the Parties and Limited Parties as described herein,
including without limitation, executing any and all further instruments and documents, and doing
and performing such further and additional acts and things necessary or proper to effectuate or
further evidence the terms and provisions of this Tank Agreement.
19.Proper Authority. The Parties and the Limited Parties represent and warrant that
they have full right and capacity to enter into this Tank Agreement and have taken any and all
actions required and have any and all necessary approvals to enter into this Tank Agreement.
20.Attorneys’ Fees. The prevailing Party or Limited Party in any action concerning
the enforcement or interpretation of this Tank Agreement shall be awarded, in addition to any
damages or other form of relief awarded, all reasonable costs incurred in connection therewith,
including attorneys’ fees and costs through all appeals.
21.Governing Law. This Tank Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado. Any action brought to enforce this Tank
Agreement or arising out of this Tank Agreement shall be brought in the State of Colorado,
Eagle County District Court, as the exclusive venue and forum.
22.Severability. If any term, provision, covenant or condition of this Tank
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of this Tank Agreement shall, unless amended or modified as provided in
Section 17 above, continue in full force and effect so long as enforcement of the remaining
provisions would not deprive the Party(ies)or Limited Parties against whom they are being
enforced of a material benefit of the bargain under this Tank Agreement or otherwise be
inequitable to such Party or Limited Party under the facts and circumstances then pertaining.
23.Entire Agreement. From and after the Implementation Date, this Tank Agreement
shall be construed to constitute the entire agreement between the Parties and Limited Parties with
respect to the matters set forth herein and to supersede all previous oral or written
communications, representations, understandings, undertakings, or agreements between the
Parties and Limited Parties, except as otherwise stated herein, specifically including Section 3 of
the Term Sheet except as it pertains to the 1041 Permit.
{00268750.DOC / 7}17
24.Counterpart Execution. This Tank Agreement may be signed in multiple
counterparts, with facsimile signatures permitted, and each counterpart when taken with the other
executed counterpart shall constitute a binding agreement among the Parties and the Limited
Parties as of the Effective Date (with respect to those provisions that are effective as of the
Effective Date) or as of the Implementation Date (with respect to those provisions that are
effective only upon occurrence of the Implementation Date).
25.Notices. All approvals, consents, notices, objections, and other communications
(a “Notice” and, collectively, “Notices”) under this Tank Agreement shall be in writing and shall
be deemed properly given and received when personally delivered, or sent by overnight courier,
or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to
the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as
set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually
given and received; or (ii) if by overnight courier service, 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
Va il, CO 81657
Attention: General Manager
Te lephone: (970) 477-5444
Email: lbrooks@erwsd.org
Wi th a required copy to:
Collins, Cockrel & Cole, P.C.
390 Union Boulevard, Suite 400
Denver, Colorado 80228-1556
Attn: Jim Collins
Te lephone: (303) 986-1551
Email: jcollins@cccfirm.com
To Av on:
To wn of Av on
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attention: To wn Manager
Te lephone: (970) 748-4452
Email: vegger@avon.org
{00268750.DOC / 7}18
Wi th a required copy to:
To wn of Av on
P.O. Box 975
One Lake Street
Av on, Colorado 81620
Attn: To wn Attorney
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Av on, CO 81620
Attn: Marcus Lindholm, Manager
Te lephone: (970) 949-6776
Email: marcuslindholm@traercreek.com
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
{00268750.DOC / 7}19
To Tr aer Creek-RP LLC:
c/o Traer Creek LLC
[Utilizing the Master Developer contact information set forth above.]
Wi th a required copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ay ers
Te lephone: 303.825.8400
Email: munsey@ottenjohnson.com
To the Limited Parties:
The Vi llage Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn:Lisa Jacoby
Te lephone: (303) 987-0835
Email: ljacoby@sdmsi.com
Wi th a required copy to:
McGeady Sisneros, P.C.
450 E. 17th Av enue, Suite 400
Denver, Colorado 80202-1214
Attn: Mary Jo Dougherty
Te lephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
BNP Paribas
Va lue Preservation Group
787 Seventh Av enue, 9th Floor
New Yo rk, NY 10019
Attn: Barbara Eppolito
Te lephone: (212) 841-3607
Email: Barbara.eppolito@bnpparibas.com
Wi th a required copy to:
Faegre Baker Daniels
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203-4532
Attn: Brandee Caswell
Te lephone: (303) 607-3826
{00268750.DOC / 7}20
Email: Brandee.caswell@faegrebd.com
To the Intended Beneficiaries:
Developer Affiliates
c/o Tr aer Creek LLC
[Utilizing the Master Developer contact information set forth above.]
26.Escrow; Escrow Instructions. As quickly as is practicable after the Parties’ and
Limited Parties’mutual approval and execution of this Tank Agreement, each Party and the
Limited Parties will deposit a signed original of such documents as each is required to deposit in
the Escrow subject to the Escrow Instructions.
27.Rights Upon Occurrence of Outside Date. If the Outside Date occurs without the
Implementation Date having occurred, this Tank Agreement shall be deemed void ab initio and
of no further force or effect; provided, however, to the extent the failure of the Implementation
Date to occur results from a failure of a Party or Limited Party to perform (whether by action or
inaction) an obligation of such Party or Limited Parties that arose under this Tank Agreement as
of the Effective Date, the other Parties, Limited Parties and any applicable Intended Beneficiary
may pursue all of their respective remedies under this Tank Agreement with respect to such
breach, which remedial rights the Parties and the Limited Parties expressly intend to survive and
be legally enforceable notwithstanding this Tank Agreement being otherwise deemed inoperative
under the circumstance described above.
28.Successors and Assigns. This Tank Agreement shall be binding upon the Parties,
the Limited Parties and upon their heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF,this Agreement has been duly executed by the Parties and
by the Limited Party as of the Effective Date.
PARTIES:
THE AUTHORITY:
THE UPPER EAGLE REGIONAL WATER
AUTHORITY, a quasi-municipal corporation and
political subdivision of the State of Colorado
By:
Name:
Title:
{00268750.DOC / 7}21
AVON:
THE TOWN OF AVON,a home rule
municipal corporation of the State of
Colorado
By:
Name:
Title:
TCMD:
TRAER CREEK METROPOLITAN
DISTRICT, a quasi-municipal corporation
and political subdivision of the State of
Colorado
By:
Name: Daniel J. Leary
Title: President
Attest:
Secretary
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited
liability company
By:
Name: Marcus Lindholm
Title: Manager
{00268750.DOC / 7}22
TCRP:
TRAER CREEK-RP LLC, a Colorado
limited liability company
By:TRAER CREEK LLC, a Colorado
limited liability company, its Manager
By:
Name:Marcus Lindholm
Title: Manager
{00268750.DOC / 7}23
LIMITED PARTIES:
VMD:
THE VILLAGE METROPOLITAN
DISTRICT, a quasi-municipal corporation
and political subdivision of the State of
Colorado
By:
Name: Daniel J. Leary
Title: President
Attest:
____________________________________
Secretary
BNP:
BNP PARIBAS, a financial institution
organized under the laws of the Republic of
France
By: _________________________
Name: _______________________
Title: ________________________
By: _________________________
Name: _______________________
Title: ________________________
{00268750.DOC / 7}A-1
Exhibit A
Legal Description of the Property
[Source: Exhibit A to Service Agreement, May 15, 1997]
{00268750.DOC / 7}B-1
Exhibit B
Special Warranty Deed to the Tank Site
{00268750.DOC / 7}1007365.7 C-1
Exhibit C
Design Costs Agreement
{00268750.DOC / 7}1007365.7 C-2
{00268750.DOC / 7}1007365.7 D-1
Exhibit D-1
Special Warranty Deed
TCMD to Avon
{00268750.DOC / 7}1007365.7 D-2
Exhibit D-2
Special Warranty Deed
Avon to Authority
{00268750.DOC / 7}E-1
Exhibit E
Pledge Agreement
{00268750.DOC / 7}F-1
Exhibit F
Easement Agreement
{00287064.DOCX / 2}
SPECIAL WARRANTY DEED
[Statutory Form –C.R.S. § 38-30-115]
TRAER CREEK-RP LLC, a Colorado limited liability company, whose street
address is 101 Fawcett Road, Suite 210, Avon, Colorado 81620, County of Eagle, State
of Colorado (“Grantor”), for the consideration of ten dollars ($10.00) in hand paid and
other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,hereby grants, bargains,sells,conveys and confirms unto UPPER
EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the State of
Colorado, whose street address is 846 Forest Road, Vail, CO 81657, County of Eagle,
State of Colorado (“Grantee”), and Grantee’s successors and assigns forever, a fee
simple determinable estate, for so long as the Property is used for the
construction/operation of a water storage tank, but after seventy-five (75) years this
restriction shall terminate,in the following real property (“Property”):
Tract J, THE VILLAGE (at AVON) FILING 4 according to the plat
recorded December ____, 2012, at Reception No. ______________,
COUNTY OF EAGLE, STATE OF COLORADO.
TOGETHER WITH all its appurtenances,and the reversion and reversions, remainder
and remainders, rents, issues and profits thereof; and all the estate, right, title, interest,
claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the
Property,subject to all matters of record, but free and clear of all liens and encumbrances
except as noted below.
TO HAVE AND TO HOLD the Property above bargained and described with the
appurtenances, unto Grantee and Grantee’s successors and assigns forever. Grantor, for
Grantor and Grantor’s successors and assigns, does covenant and agree that Grantor shall
and will WARRANT AND FOREVER DEFEND the above bargained Property in the
quiet and peaceable possession of Grantee and Grantee’s successors and assigns, against
all and every person or persons claiming the whole or any part of the Property, by,
through or under Grantor, except taxes and assessments for the current year, payable in
2013; and ______< TBD >__________.
IN WITNESS WHEREOF, the Grantor has executed this Special Warranty Deed
on the date set forth above.
GRANTOR:
TRAER CREEK-RP, LLC
By:
Title:
{00287064.DOCX / 2}
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
{00305850.DOCX /}57732
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this ______ day of December, 2012, is from the Traer
Creek Metropolitan District, a quasi municipal corporation and political subdivision of the State
of Colorado (“Grantor”),to the Town of Avon,a home rule municipal corporation of the State of
Colorado (“Grantee”),whose address is P.O. Box 975, One Lake Street, Avon, Colorado 81620.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants, bargains, sells and conveys to Grantee all of Grantor’s
right, title and interest in and to the following described water rights and related interests located
in Eagle County,Colorado (the “Water Rights”), free and clear of all liens and encumbrances:
(a)the water rights described in Exhibit A, together with all associated rights and
benefits of the plan for augmentation and exchange decreed by the District Court in and for
Water Division No. 5 in Case No. 97CW306 (the “Augmentation Plan”), together with all
associated changes of water rights decreed therein;
(b)the historic consumptive use credits dedicated to the Augmentation Plan and
described in the attached Exhibit B; and
Together with all diversion ditches, pipelines, headgates and structures, pumps, casings
and other improvements and easements associated or used in connection with the Water Rights
(including without limitation rights of access thereto) as becomes necessary from time to time to
provide water service to the Property described in the attached Exhibit C (“Appurtenances”),
reserving unto Grantor all rights of access and use of the Appurtenances to the extent not
required to provide municipal water service or raw water irrigation service for the Property.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
TRAER CREEK METROPOLITAN DISTRICT,
a quasi municipal corporation and political subdivision
of the State of Colorado
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
{00305850.DOCX /}57732
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of
___________________, 2012 by _____________________________ on behalf of the Traer
Creek Metropolitan District.
Witness my hand and official seal. My commission expires: _________________.
[SEAL]
___________________________________
Notary Public
{00305850.DOCX /}57732
EXHIBIT A
Description of Water Rights
STRUCTURE Adjudication
Date
Appropriation
Date Use**Decreed
Amount
Amount
Owned
Amount
Conveyed
Amount
Retained by
EMD LLC
Case No.
Nottingham and Puder
Ditch -Original
Construction
(Ditch No. 97)
03/05/1901 04/02/1889 D, M, C, N, FP, I, R,
P, FW, RE, A 10.0 cfs abs.7.5 cfs 4.630 2.870 385, 97CW306
Puder Ditch*
(Ditch No. 72)06/29/1894 10/01/1892 D, M, C, N, FP, I, R,
P, FW, RE, A 1.4 cfs abs.all 0.864 0.536 294, 97CW306
Nottingham Ditch*
(Ditch No. 76)06/29/1894 11/03/1892 D, M, C, N, FP, I, R,
P, FW, RE, A
2.0 cfs cond.
(made abs. in
Case No. 963)
all 1.235 0.765 294, 97CW306
Nottingham Ditch*
(Ditch No. 93)03/05/1901 05/26/1887 D,M, C, N, FP, I, R,
P, FW, RE, A 2.0 cfs abs.all 1.235 0.765 385, 97CW306
Traer No. 1 Ditch
(Ditch No. 138)06/04/1907 08/30/1890 D, M, C, N, FP, I, R,
P, FW, RE, A 0.9 cfs abs.all 0.556 0.344 446, 97CW306
Traer No. 2 Ditch
(Ditch No. 137)06/04/1907 11/01/1905 D, M, C, N, FP, I, R,
P, FW, RE, A 0.3 cfs abs.all 0.185 0.115 446, 97CW306
Metcalf Ditch
Headgate***12/31/1997 12/31/1997 D, M, C, N, FP, I, R,
P, FW 3.6 cfs cond.all all none 97CW306
Raw Water Booster
Pump***12/31/1997 12/31/1997 D, M, C, N, FP, I, R,
P, FW 3.6 cfs cond.all all none 97CW306
*Indicates that these water rights have been transferred to new points of diversion at Nottingham Ditch Headgates Nos. 1, 2, 3 and 4 a/k/a the Nottingham Ditch System.
These headgates are all alternate points of diversion for each other.
**D=Domestic; M=Municipal; C=Commercial; N=Industrial; FP=Fire Protection; I=Irrigation; R=Recreation; P=Piscatorial; FW=Fish &Wildlife; RE = Replacement of
Reservoir Evaporation; A=Augmentation
***0.257 cfs of the Metcalf Ditch Headgate and 0.267 cfs of the Raw Water Booster Pump made absolute in Case No. 07CW83 for Domestic, Municipal, Commercial, Fire
Protection and Irrigation uses.
{00305850.DOCX /}57732
EXHIBIT B
Historic Consumptive Use Credits Dedicated to Plan for Augmentation in Case No. 97CW306
DITCH SYSTEM Water Right &
Appropriation Date
Portion of Historic Consumptive Use (af) Dedicated to 97CW306 Decreed
Amount
(cfs)May June July August Sept.Oct.Total
Nottingham & Puder
System
Nottingham & Puder Ditch;
04/02/1889 19.4 22.1 25.2 24 18.4 10.5 119.6 4.630
Nottingham Ditch
System
Puder Ditch;
10/01/1892 1.3 2.1 1.9 1.7 0.8 0.4 8.2 0.864
Nottingham No. 76;
11/03/1892 1.2 2 1.8 1.5 0.8 0.4 7.7 1.235
Nottingham No. 93;
05/26/1887 1.8 3 2.7 2.4 1.1 0.6 11.6 1.235
Total for System 4.3 7.1 6.4 5.6 2.7 1.4 27.5
Traer Ditch System
Traer No. 1;
08/30/1890 1.6 2 1.9 0.9 0.6 0.2 7.2 0.556
Traer No. 2;
11/01/1905 0.3 0.4 0.4 0.2 0.1 0.1 1.5 0.185
Total for System 1.9 2.4 2.3 1.1 0.7 0.3 8.7
Total for all Ditches 25.6 31.6 33.9 30.7 21.8 12.2 155.8
{00305850.DOCX /}57732
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
{00305850.DOCX /}57732
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.
{00305850.DOCX /}57732
PARCEL 2 DESCRIPTION
That part of Sections 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as follows:
Beginning at the North 1/4 corner of said Section 8; thence along the northerly line of said
Section 8, N88°42’58”E 850.00 feet, to the True Point of Beginning; thence, continuing along
said northerly line, N88°42’58”E 1920.72 feet, to the Northwest corner of said Section 9; thence,
along the northerly line of said Section 9, N83°29’30”E 2773.27 feet, to the North 1/4 corner of
said Section 9; thence, continuing along said northerly line, 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.
{00305853.DOCX /}57731
SPECIAL WARRANTY DEED
This Special Warranty Deed dated this ______ day of December, 2012, is from the Town
of Avon, a home rule municipal corporation of the State of Colorado (“Grantor”),to the Upper
Eagle Regional Water Authority, a quasi municipal corporation and political subdivision of the
State of Colorado (“Grantee”),whose address is 846 Forest Road, Vail, Colorado 81657.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby grants, bargains, sells and conveys to Grantee all of Grantor’s
right, title and interest in and to the following described water rights and related interests located
in Eagle County, Colorado (the “Water Rights”), free and clear of all liens and encumbrances:
(a)the water rights described in Exhibit A, together with all associated rights and
benefits of the plan for augmentation and exchange decreed by the District Court in and for
Water Division No. 5 in Case No. 97CW306 (the “Augmentation Plan”), together with all
associated changes of water rights decreed therein;
(b)the historic consumptive use credits dedicated to the Augmentation Plan and
described in the attached Exhibit B; and
Together with all diversion ditches, pipelines, headgates and structures, pumps, casings
and other improvements and easements associated or used in connection with the Water Rights
(including without limitation rights of access thereto) as becomes necessary from time to time to
provide water service to the Property described in the attached Exhibit C (“Appurtenances”),
reserving unto Grantor rights of access and use of the Appurtenances to the extent not required to
provide municipal water service for the Property and also reserving unto Grantor up to 74.3
consumptive acre feet from the Water Rights to irrigate with raw water up to 38.27 acres of
public lands and to replace out-of-priority evaporation from lakes on the Property with a total
surface area of up to 2.7 acres in accordance with Schedules A, B and C of the Augmentation
Plan.
Grantor, for itself, its successors and assigns, covenants and agrees that it will warrant
title and forever defend the Water Rights and Appurtenances in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person or persons
claiming the whole or any part thereof, by, through, or under Grantor.
The foregoing conveyance is subject to a right of reverter to Grantor in the event the
Grantee fails to provide water service to the Property (excepting temporary cessation of water
service due to reasonable maintenance requirements or emergency conditions or actions by the
Grantee as authorized by its Rules and Regulations).
{00305853.DOCX /}57731
TOWN OF AVON, a home rule municipal of the
State of Colorado
By: ______________________________________
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
{00305853.DOCX /}57731
EXHIBIT A
Description of Water Rights
STRUCTURE Adjudication
Date
Appropriation
Date Use**Decreed
Amount
Amount
Owned
Amount
Conveyed
Amount
Retained by
EMD LLC
Case No.
Nottingham and Puder
Ditch -Original
Construction
(Ditch No. 97)
03/05/1901 04/02/1889 D, M, C, N, FP, I, R,
P, FW, RE, A 10.0 cfs abs.7.5 cfs 4.630 2.870 385, 97CW306
Puder Ditch*
(Ditch No. 72)06/29/1894 10/01/1892 D, M, C, N, FP, I, R,
P, FW, RE, A 1.4 cfs abs.all 0.864 0.536 294, 97CW306
Nottingham Ditch*
(Ditch No. 76)06/29/1894 11/03/1892 D, M, C, N, FP, I, R,
P, FW, RE, A
2.0 cfs cond.
(made abs. in
Case No. 963)
all 1.235 0.765 294, 97CW306
Nottingham Ditch*
(Ditch No. 93)03/05/1901 05/26/1887 D,M, C, N, FP, I, R,
P, FW, RE, A 2.0 cfs abs.all 1.235 0.765 385, 97CW306
Traer No. 1 Ditch
(Ditch No. 138)06/04/1907 08/30/1890 D, M, C, N, FP, I, R,
P, FW, RE, A 0.9 cfs abs.all 0.556 0.344 446, 97CW306
Traer No. 2 Ditch
(Ditch No. 137)06/04/1907 11/01/1905 D, M, C, N, FP, I, R,
P, FW, RE, A 0.3 cfs abs.all 0.185 0.115 446, 97CW306
Metcalf Ditch
Headgate***12/31/1997 12/31/1997 D, M, C, N, FP, I, R,
P, FW 3.6 cfs cond.all all none 97CW306
Raw Water Booster
Pump***12/31/1997 12/31/1997 D, M, C, N, FP, I, R,
P, FW 3.6 cfs cond.all all none 97CW306
*Indicates that these water rights have been transferred to new points of diversion at Nottingham Ditch Headgates Nos. 1, 2, 3 and 4 a/k/a the Nottingham Ditch System.
These headgates are all alternate points of diversion for each other.
**D=Domestic; M=Municipal; C=Commercial; N=Industrial; FP=Fire Protection; I=Irrigation; R=Recreation; P=Piscatorial; FW=Fish &Wildlife; RE = Replacement of
Reservoir Evaporation; A=Augmentation
***0.257 cfs of the Metcalf Ditch Headgate and 0.267 cfs of the Raw Water Booster Pump made absolute in Case No. 07CW83 for Domestic, Municipal, Commercial, Fire
Protection and Irrigation uses.
{00305853.DOCX /}57731
EXHIBIT B
Historic Consumptive Use Credits Dedicated to Plan for Augmentation in Case No. 97CW306
DITCH SYSTEM Water Right &
Appropriation Date
Portion of Historic Consumptive Use (af) Dedicated to 97CW306 Decreed
Amount
(cfs)May June July August Sept.Oct.Total
Nottingham & Puder
System
Nottingham & Puder Ditch;
04/02/1889 19.4 22.1 25.2 24 18.4 10.5 119.6 4.630
Nottingham Ditch
System
Puder Ditch;
10/01/1892 1.3 2.1 1.9 1.7 0.8 0.4 8.2 0.864
Nottingham No. 76;
11/03/1892 1.2 2 1.8 1.5 0.8 0.4 7.7 1.235
Nottingham No. 93;
05/26/1887 1.8 3 2.7 2.4 1.1 0.6 11.6 1.235
Total for System 4.3 7.1 6.4 5.6 2.7 1.4 27.5
Traer Ditch System
Traer No. 1;
08/30/1890 1.6 2 1.9 0.9 0.6 0.2 7.2 0.556
Traer No. 2;
11/01/1905 0.3 0.4 0.4 0.2 0.1 0.1 1.5 0.185
Total for System 1.9 2.4 2.3 1.1 0.7 0.3 8.7
Total for all Ditches 25.6 31.6 33.9 30.7 21.8 12.2 155.8
{00305853.DOCX /}57731
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
{00305853.DOCX /}57731
a chord that bears N69°46’32”W 231.09 feet; (4) S00°14’31”E 21.20 feet; (5) 1142.50 feet along
the arc of a curve to the left, having a radius of 5759.70 feet, an internal angle of 11°21’55”, and
a chord that bears 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.
{00305853.DOCX /}57731
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 December 4, 2012 Draft
{00305848.DOC /}PUBFIN/1514212.12
WATER TANK BONDS PLEDGE AGREEMENT
This WATER TANK BONDS PLEDGE AGREEMENT (the “Agreement” or
“Pledge Agreement”), is made and entered into and dated as of ______ __, 2012 by and
between TRAER CREEK METROPOLITAN DISTRICT (“TCMD”) a quasi-municipal
corporation and political subdivision of the State of Colorado (the “State”), THE VILLAGE
METROPOLITAN DISTRICT (“VMD,” and together with TCMD, the “Districts”) a
quasi-municipal corporation and political subdivision of the State, and UPPER EAGLE
REGIONAL WATER AUTHORITY (the “Authority”), a political subdivision of the State.
RECITALS
WHEREAS, TCMD has previously issued its Variable Rate Revenue Bonds, Series 2002
and its Variable Rate Revenue Bonds, Series 2004 (collectively, the “Outstanding TCMD
Bonds”); and
WHEREAS, payment of the Outstanding TCMD Bonds is secured by certain revenues of
the Districts, and also by an irrevocable letter of credit issued by BNP PARIBAS, San Francisco
Branch (“BNP”); and
WHEREAS, TCMD and other entities are parties to that certain litigation (consolidated
civil action Case No. 2008CV385, Eagle County District Court), and have entered into that
certain Settlement Term Sheet dated October 7, 2011 (the “Term Sheet”), to set forth the
agreement of the parties concerning resolution of various disputes at issue in the litigation; and
WHEREAS, TCMD, the Authority, the Town of Avon (the “Town”) and Traer Creek
LLC have entered into that certain Traer Creek Water Storage Tank Agreement and Second
Amendment to Water Service Agreement, dated as of _____ __, 2012 (the “Water Tank
Agreement”) to implement certain provisions of the Term Sheet relating to the construction of a
water tank (as more particularly described in the Water Tank Agreement, the “Tank Project”),
and to address other related matters; and
WHEREAS, the Term Sheet and the Water Tank Agreement contemplate that the
Authority will issue bonds to finance the construction of the Tank Project (the “Tank Project
Bonds”), and that TCMD and VMD will pledge and pay to the Authority the “Annual Debt
Service Obligation” (as more particularly defined and described herein); and
WHEREAS, the revenues pledged herein to pay the Annual Debt Service Obligation (as
defined herein) have been pledged to pay all amounts due to BNP (the “BNP Pledge”) under the
Amended and Restated Reimbursement Agreement, dated as of June 1, 2004, by and among the
Districts and BNP (the “Reimbursement Agreement”), and BNP has agreed to consent to
release the amount necessary to pay the Annual Debt Service Obligation from the BNP Pledge;
and
WHEREAS, TCMD, VMD and the Authority are entering into this Pledge Agreement for
the purpose of obligating TCMD and VMD to pay the Annual Debt Service Obligation to the
Authority and for the Authority to agree to issue the Tank Project Bonds, subject to the
conditions and limitations set forth herein; and
{00305848.DOC /}2
PUBFIN/1514212.12
WHEREAS, implementation of the settlement contemplated by the Term Sheet requires
the satisfaction of various mutually dependent conditions, including but not limited to the
restructuring of the Outstanding TCMD Bonds in accordance with the Term Sheet (such
restructuring being referred to herein as the “TCMD Bond Reissue” and the bonds issued in
connection therewith being referred to as the “TCMD Refunding Bonds”) in a manner
sufficient to, among other things, facilitate the performance by TCMD and VMD of this Pledge
Agreement; and,
WHEREAS, certain documents required to implement the Term Sheet are to be deposited
pursuant to a master escrow agreement (the “Escrow Agreement”) into escrow (the “Escrow”),
subject to release, delivery and recording upon closing of the TCMD Bond Reissue; and
WHEREAS, the Districts have determined and hereby determine that the execution of
this Pledge Agreement is in the best interests of the Districts and the residents, property owners,
users and taxpayers thereof.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the promises and the mutual covenants
and stipulations herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Interpretation. Unless otherwise provided herein, this Agreement takes
effect on the Implementation Date and ends on the Termination Date. In this Agreement, unless
the context expressly indicates otherwise, the interpretations and meanings set forth below shall
apply:
(a)The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof” and any
similar terms, refer to this Agreement as a whole and not to any particular article, section,
or subdivision hereof; the term “heretofore” means before the date of execution of the
Agreement; and the term “hereafter” means after the date of execution of this Agreement.
(b)All definitions, terms, and words shall include both the singular and the
plural.
(c)Words of the masculine gender include correlative words of the feminine
and neuter genders, and words importing the singular number include the plural number
and vice versa.
(d)The captions or headings of this Agreement are for convenience only, and
in no way define, limit, or describe the scope or intent of any provision, article, or section
of this Agreement.
(e)All schedules, exhibits, and addenda referred to herein are incorporated
herein by this reference.
{00305848.DOC /}3
PUBFIN/1514212.12
Section 1.02. Definitions. As used herein, unless the context expressly indicates
otherwise, the words capitalized throughout the text of this Agreement shall have the respective
meanings set forth below or parenthetically defined elsewhere in this Agreement.
(a)“Annual Debt Service” means scheduled principal payments (including
mandatory sinking fund payments) and interest payments due in any calendar year on the
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)”.
{00305848.DOC /}4
PUBFIN/1514212.12
(i)“Districts” means TCMD and VMD.
(j)“Implementation Date” means the first Business Day on which both of the
following conditions are occurring or have occurred:the Water Tank Agreement is
executed and delivered by the parties thereto, and all of the conditions of Section 2.09
hereof are satisfied.
(k)“Interest Payment Date” means, in connection with the Tank Project
Bonds, June 1 and December 1 of each year while the Tank Project Bonds are
Outstanding.
(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.
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PUBFIN/1514212.12
(r)“Supplemental Act” means the “Supplemental Public Securities Act,”
being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended.
(s)“Tank Project” has the meaning assigned it in the Water Tank Agreement.
(t)“Tank Project Bonds” means, notes, bonds or other obligations issued by the
Authority for the purpose of financing costs of the Tank Project, and any refundings thereof.
(u)“Tank Project Property Tax Revenues” means all moneys derived from
imposition of the Senior Required Mill Levy by the Districts and payable to the Authority
or its designees in accordance with this Pledge Agreement.
(v)“TCMD” means Traer Creek Metropolitan District.
(w)“TCMD Revenues” means the Credit Retail Sale Fees described in Section
9.4 of the Declaration (Mixed Use) and Section 7.4 of the Declaration (Commercial
Areas).
(x)“Termination Date” means, the earlier of (a) the date that is thirty years
after the date of issuance of the first Tank Project Bonds issued; or (b) the date that the
Tank Project Bonds are paid in 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 _______,
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
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PUBFIN/1514212.12
the Annual Debt Service Obligation (i.e., the principal amount of the Tank Project Bonds) to its
electoral debt authorization.
Section 2.02. Annual Debt Service Obligation; Limited Tax General Obligation.
(a)In exchange for the undertakings of the Authority set forth in the Water
Tank Agreement, TCMD and VMD jointly and severally agree to pay or cause to be paid
the Annual Debt Service Obligation to the Authority by paying the Semi-Annual
Obligation to the Authority on the Payment Dates. The Districts jointly and severally
agree to deposit or cause to be deposited into the Senior Payment Fund the Tank Project
Property Tax Revenues or other legally available revenues of the Districts, including, in
the case of TCMD, the TCMD Revenues, in an amount sufficient to pay the Semi-Annual
Debt Service Obligation due on each Payment Date as set forth in the 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.
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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
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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 Paym ent 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.
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Section 2.08. Additional Covenants.
(a)The Districts will not issue or incur bonds, notes, or other obligations
payable in whole or in part from, or constituting a lien upon, the Tank Project Property
Tax Revenues, the TCMD Revenues, or the Senior Payment Fund without the prior
consent of the Authority; provided, however, that the Districts may issue obligations with
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 210 days after the end of any calendar year. The
foregoing covenant shall apply notwithstanding any State law audit exemptions that may
exist. In addition, at least once a year as required by applicable State law, each District
will cause a budget to be prepared and adopted. Copies of the budget and the audit will
be filed and recorded in the places, time, and manner as required by applicable State law.
(c)Each District covenants that it will not take any action or fail to take any
action which action or failure to act would release any property which is included within
the boundaries of the District at any time from liability for the payment of amounts due
under this Agreement.
(d)Each District covenants that it shall not take any action or that it shall not
fail to take any action which action or failure to act would result in a material impairment
of the rights of the Authority under this Agreement and that it will diligently, in good
faith, and with best efforts seek to prevent, to the fullest extent permitted by law the
taking of such action.
(e)Each District will at all times preserve and maintain its existence, rights
and privileges in the State.
(f)Not later than January 15 in each year, each District shall provide the
Authority a certificate of an authorized officer of the District setting forth (A) the amount
of the Senior Required Mill Levy certified in December of the immediately preceding
year for collection in the current year and (B) the balance of the Senior Payment Fund as
of the date of certification.
Section 2.09. Conditions to Implementation Date. All of the conditions set forth
below shall have been satisfied on or before the Implementation Date.
(a)Execution of this Pledge Agreement by TCMD, VMD and the Authority;
(b)Release and delivery of this Pledge Agreement in accordance with the
terms of the Escrow Agreement;
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(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.
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Section 2.11. Representations and Warranties of the Districts. Each of TCMD and
VMD hereby makes the following representations and warranties as of the Implementation Date:
(a)The District is a quasi-municipal corporation and political subdivision
duly organized and validly existing under the laws of the State.
(b)There are no liens on the Tank Project Property Tax Revenues, the TCMD
Revenues, or the Senior Payment Fund senior to or on parity with the liens created by this
Pledge Agreement.
(c)The District has all requisite corporate power and authority to execute,
deliver, and to perform its obligations under this Pledge Agreement. The District’s
execution, delivery, and performance of this Pledge Agreement have been duly
authorized by all necessary action.
(d)The District is not in violation of any of the applicable provisions of law
or any order of any court having jurisdiction in the matter, which violation could
reasonably be expected to materially adversely affect the ability of the District to perform
its obligations hereunder. The execution, delivery and performance by the District of this
Pledge Agreement (i) will not violate any provision of any applicable law or regulation or
of any order, writ, judgment or decree of any court, arbitrator, or governmental authority,
(ii) will not violate any provision of any document or agreement constituting, regulating,
or otherwise affecting the operations or activities of the District in a manner that could
reasonably be expected to result in a material adverse effect, and (iii) will not violate any
provision of, constitute a default under, or result in the creation or imposition of any lien,
mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the
revenues or other assets of the District pursuant to the provisions of any mortgage,
indenture, contract, agreement, or other undertaking to which the District is a party or
which purports to be binding upon the District or upon any of its revenues or other assets
which could reasonably be expected to result in a material adverse effect.
(e)The District has obtained all consents and approvals of, and has made all
registrations and declarations with any governmental authority or regulatory body
required for the execution, delivery, and performance by the District of this Pledge
Agreement.
(f)Except as described in the recitals hereof, there is no action, suit, inquiry,
investigation, or proceeding to which the District is a party, at law or in equity, before or
by any court, arbitrator, governmental or other board, body, or official which is pending
or, to the best knowledge of the District threatened, in connection with any of the
transactions contemplated by this Pledge Agreement nor, to the best knowledge of the
District is there any basis therefor, wherein an unfavorable decision, ruling, or finding
could reasonably be expected to have a material adverse effect on the validity or
enforceability of, or the authority or ability of the District to perform its obligations
under, this Pledge Agreement.
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(g)This Pledge Agreement constitutes the legal, valid, and binding limited tax
general obligation of each District, enforceable against the District in accordance with its
terms (except as such enforceability may be limited by bankruptcy, moratorium, or other
similar laws affecting creditors’ rights generally and provided that the application of
equitable remedies is subject to the application of equitable principles).
ARTICLE III
EVENTS OF DEFAULT AND REMEDIES
Section 3.01. Events of Default. The occurrence or existence of any one or more of the
following events shall be an “Event of Default” hereunder:
(a)The Districts fail to pay any Semi-Annual Obligation when due on any
Payment Date;
(b)The Districts fail to levy, collect and apply Tank Project Property Tax
Revenues as required by the terms of this Pledge Agreement;
(c)TCMD fails to collect and apply the TCMD Revenues as required by the
terms of this Pledge Agreement;
(d)TCMD fails to apply amounts in the Senior Payment Fund as required by
the terms of this Pledge Agreement;
(e)Any representation or warranty made by the Districts in this Pledge
Agreement proves to have been untrue or incomplete in any material respect when made
and which untruth or incompletion would have a material adverse effect upon any other
party;
(f)Any District fails in the performance of any other of its covenants in this
Pledge Agreement, and such failure continues for sixty (60) days after written notice
specifying such default and requiring the same to be remedied is given by the Authority;
or
(g)(i) Either District shall commence any case, proceeding, or other action
(A)under any existing or future law of any jurisdiction relating to bankruptcy,
insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered
with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition, or other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, or other similar official for itself or for any substantial part of
its property, or either District shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against either District any case, proceeding, or
other action of a nature referred to in clause (i) and the same shall remain not dismissed
within ninety (90) days following the date of filing; or (iii) there shall be commenced
against either District any case, proceeding, or other action seeking issuance of a warrant
of attachment, execution, distrait, or similar process against all or any substantial part of
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its property which results in the entry of an order for any such relief which shall not have
been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from
the entry thereof, or (iv)either District shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or
(iii) above; or (v) either District shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due.
Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance
of an Event of Default, the Authority may proceed to protect and enforce its rights against the
Districts, by mandamus or such other suit, action, or special proceedings in equity or at law, in
any court of competent jurisdiction, including an action for specific performance. In the event of
any litigation or other proceeding to enforce any of the terms, covenants or conditions hereof, the
prevailing party in such litigation or other proceeding shall obtain, as part of its judgment or
award, its reasonable attorneys’ fees and costs. Upon the occurrence and continuance of an Event
of Default, all amounts due and owing but unpaid by the Districts to the Authority hereunder
shall bear interest until paid in full (i) for the thirty day period beginning on the date of the Event
of Default at a per annum interest rate equal to the sum of the net effective interest rate on the
Tank Project Bonds plus 200 basis points and (ii) thereafter at the maximum rate permitted under
the District’s electoral authorization.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Pledge. The creation, perfection, enforcement, and priority of the pledge
of revenues to secure or pay the Annual Debt Service Obligation shall be governed by Section
11-57-208 of the Supplemental Act and this Pledge Agreement. The Tank Project Property Tax
Revenues, the TCMD Revenues, and the Senior Payment Fund shall immediately be subject to
the lien of such pledge without any physical delivery, filing, or further act. The lien of such
pledge shall be valid, binding, and enforceable as against all persons having claims of any kind
in tort, contract, or otherwise against the Districts irrespective of whether such persons have
notice of such liens.
Section 4.02. No Recourse against Officers and Agents. Pursuant to Section
11-57-209 of the Supplemental Act, if a member of the Boards of Directors of the Districts or the
Authority, or any officer or agent of the Districts or Authority acts in good faith, no civil
recourse shall be available against such member, officer, or agent for, with respect to the
obligations of the Districts or the Authority hereunder. Such recourse shall not be available
either directly or indirectly through the Authority or the Districts, or otherwise, whether by virtue
of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance
of this Pledge Agreement and as a part of the consideration hereof, the Authority and the
Districts each specifically waives any such recourse.
Section 4.03. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Act, this Pledge Agreement contains a recital that it is entered into pursuant to certain provisions
of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity
of this Pledge Agreement after its delivery for value.
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Section 4.04. Limitation of Actions. 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) 987-0835
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
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Telephone: (303) 592-4380
Email: mjdougherty@mcgeadysisneros.com
The Village Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987-0835
Email: ljacoby@sdmsi.com
With a required copy to:
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 November 13,
2013, this Pledge Agreement shall be deemed void ab initio and of no further force or effect.
Section 4.07. Miscellaneous.
(a)Neither District may assign its obligations under this Agreement without
the prior written consent of the Authority.
(b)This Pledge Agreement constitutes the final, complete, and exclusive
statement of the terms of the agreement between the parties pertaining to the subject
matter of this Pledge Agreement and supersedes all prior and contemporaneous
understandings or agreements of the parties. This Pledge Agreement may not be
contradicted by evidence of any prior or contemporaneous statements or agreements. In
the event of any conflict between provisions of this Pledge Agreement and any other
agreement between the District and the Authority, provisions of this Pledge Agreement
shall control. No party has been induced to enter into this Pledge Agreement by, nor is
any party relying on, any representation, understanding, agreement, commitment, or
warranty outside those expressly set forth in this Pledge Agreement.
(c)If any term or provision of this Pledge Agreement is determined to be
illegal, unenforceable, or invalid in whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge
Agreement, and such provision shall not affect the legality, enforceability, or validity of
the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge
Agreement is stricken in accordance with the provisions hereof, then such stricken
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provision shall be replaced, to the extent possible, with a legal, enforceable, and valid
provision that is as similar in tenor to the stricken provision as is legally possible.
(d)The Districts find that the total Annual Debt Service Obligation evidenced
by this Agreement is in excess of $500,000 and is assignable or transferable only in
whole and, as a result, is exempt from the registration requirements of the Colorado
Municipal Bond Supervision Act, Title 11, Article 59, C.R.S.
(e)This Pledge Agreement shall be governed by and construed under the
applicable laws of the State.
(f)This Pledge Agreement may be amended or supplemented by the parties,
but any such amendment or supplement must be in writing and must be executed by all
parties and consented to by BNP so long as BNP is the provider of liquidity or credit
enhancement on TCMD Refunding Bonds or any amounts are due and owing to BNP by
TCMD in connection with the TCMD Refunding Bonds or the Outstanding TCMD
Bonds.
(g)It is intended that there be no third party beneficiaries of this Pledge
Agreement; except that BNP (at any time it is the provider of liquidity or credit
enhancement for the TCMD Bonds or TCMD Refunding Bonds or any amounts are due
and owing to BNP by TCMD in connection with such TCMD Refunding Bonds or the
Outstanding TCMD Bonds) is a third party beneficiary of this Agreement but solely to
the extent that BNP is expressly provided consent rights herein. Nothing contained
herein, expressed or implied, is intended to give to any person other than the Authority
any claim, remedy, or right under or pursuant hereto, and any agreement, condition,
covenant, or term contained herein required to be observed or performed by or on behalf
of any party hereto shall be for the sole and exclusive benefit of the other party.
(h)Venue for any and all claims brought by any party to this Pledge
Agreement to enforce any provision of this Agreement shall be the District Court in and
for the County of Eagle and State of Colorado.
(i)If the date for making any payment hereunder or performing any action
hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are
authorized or required by law to remain closed, such payment may be made or act
performed on the next succeeding day which is not a legal holiday or a day on which
banks in Denver, Colorado are authorized or required by law to remain closed.
(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.
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IN WITNESS WHEREOF, the Districts and the Authority have executed this Agreement
as of the day and year first above written.
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
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EXHIBIT A
(Attach Annual Debt Service Schedule)
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EXHIBIT B
ACKNOWLEDGEMENT AND CONSENT
The undersigned representative of BNP Paribas (“BNP”), in its capacity as the issuer of
irrevocable direct pay letters of credit securing the Traer Creek Metropolitan District Variable
Rate Revenue Bonds, Series 2002 and the Traer Creek Metropolitan District Variable Rate
Revenue Bonds, Series 2004, hereby acknowledges and consents to the foregoing Water Tank
Bonds Pledge Agreement (the “Pledge Agreement”) and represents that as of the
Implementation Date, BNP will not have a lien on the Tank Project Property Tax Revenues (as
defined in the Pledge Agreement) or the Senior Payment Fund (as defined in the Pledge
Agreement) and will not have a lien on the TCMD Revenues (as defined in the Pledge
Agreement) which is on a parity with or prior to the pledge pursuant to the Pledge Agreement..
Date: _____________________
BNP PARIBAS
By:
Name:
Title:
Res. 12-30 Approving Asphalt Overlay Escrow Account Agreement
12-12-05 ejh
TOWN OF AVON
RESOLUTION NO. 12-30
Series of 2012
A RESOLUTION APPROVING THE ASPHALT OVERLAY
ESCROW ACCOUNT AGREEMENT
WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the
Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos.
2008 CV 385 and 2010 CV 316, Eagle County District Court;
WHEREAS, the Avon Town Council approved the Consolidated, Amended and Restated
Annexation and Development Agreement (“CARADA”) by Ordinance No. 12-10 which set
forth obligations in section 6.6 of the CARADA for the Town, Traer Creek Metropolitan District
and the Master Developer (as “Master Developer” is defined in the CARADA) to establish an
Asphalt Overlay Escrow Account Agreement (defined in the CARADA as the “Asphalt Overlay
Agreement”) and also set forth that the Asphalt Overlay Agreement would occur concurrently
with the Effective Date of the CARADA (as the “Effective Date” is defined in the CARADA);
and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to The Village (at Avon) Settlement Implementation by Ordinance No. 12-10 which set forth
various terms concerning the execution and deposit of documents and agreements into escrow
and the effectiveness or voiding of such documents and agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Asphalt Overlay Escrow Account Agreement, attached hereto as Exhibit A,
is hereby approved by the Town of Avon subject to the terms and conditions of the Receipt and
Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation and that the
Mayor, Town Manager and Town Attorney are hereby authorized to collectively review and
approve the completion of blanks in the document, revisions to correct typos, grammatical errors,
cross-references and definitions, completion or revision of exhibits, and other revisions to the
agreement and exhibits which do not constitute substantive changes to the agreement.
ADOPTED DECEMBER 11, 2012
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
APPROVED AS TO FORM:
By:_________________________________
Eric J. Heil, Town Attorney
Exhibit A to Resolution No. 12-30 Approving Asphalt Overlay Escrow Account Agreement
EXHIBIT A:
ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT
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ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT
THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT (“Asphalt Overlay
Agreement”) is made and entered into as of _________________, with an Effective Date of
_______________________ [insert Implementation Date as defined in Receipt and Escrow
Agreement] by and between FirstBank Escrow Services, LLC (“Escrow Agent”); the Town of
Avon, a home rule municipal corporation of the State of Colorado (“Town”); Traer Creek
Metropolitan District, a quasi-municipal corporation and political subdivision of the State of
Colorado (“TCMD”); and Traer Creek LLC, a Colorado limited liability company (“Master
Developer”) (individually referred to as “Party” and collectively as “Parties”).
RECITALS
A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the
Consolidated, Amended and Restated Annexation and Development Agreement for the
Village (at Avon) (“Development Agreement”).
B. Master Developer, Town and TCMD seek to enter into this Asphalt Overlay Agreement in
order to duly satisfy all provisions in the Development Agreement concerning the
establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of
the Development Agreement.
C. Master Developer, Town and TCMD are entering into this Asphalt Overlay Agreement with
Escrow Agent in order to establish a restricted escrow account (as required by and defined in
the Section 6.6 of the Development Agreement, the “Asphalt Overlay Account”) for the
purpose of the deposit, administration and disbursement of their respective shares of certain
funds (“Funds”) to be deposited, held and disbursed in accordance with the terms and
conditions of this Asphalt Overlay Agreement.
D. In consideration of the payment of its fees and the performance of the respective obligations
of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay
Agreement, to administer the Asphalt Overlay Account and to perform its duties and
obligations as set forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing, the Parties’ performance of
their respective obligations hereunder, and other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the Parties agree as follows:
1. Asphalt Overlay Account.
(a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay Account,
which is a restricted non-interest bearing internal escrow account compliant with C.R.S.
§24-75-601.1 regarding investment of public funds, at FirstBank, Avon Branch, located at
11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow Services, LLC,
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Asphalt Overlay Account No. _________________.
(b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town,
TCMD and Master Developer to be used by the Town exclusively for asphalt overlay of
constructed public roads in the Project which have been dedicated to and accepted by the
Town in accordance with the terms of the Development Agreement.
(c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this
Asphalt Overlay Agreement.
(d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non-
interest bearing, internal escrow account in the name of Town, entitled “Village (at
Avon) Asphalt Overlay Escrow Account,” which shall be segregated from other escrow
accounts or assets held by the Escrow Agent.
(e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent
which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt
Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds
placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt
overlays for certain public roads dedicated to the Town in the Village (at Avon) as
described in the Development Agreement.
2. Fees. Master Developer, Town and TCMD agree to pay the Escrow Agent’s fees and to
reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as
follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution
of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree
that such fees will be deducted from Funds upon commencement of the Escrow Account and
on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for
each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be
deducted from the Funds upon issuance of each check.
3. Contributions. The Master Developer, Town and TCMD will deposit their individual
contribution as required by Section 6.6 of the Development Agreement, which contributions
shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the
obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance
with the terms of the Development Agreement. The Parties’ individual contributions are
defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent
shall not be liable for the failure of any Party to contribute their respective contribution to the
Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall
not be construed to modify the Parties’ respective obligations pursuant to the Development
Agreement, shall not be used as parole evidence with respect to any dispute among the
parties to the Development Agreement, and shall not be construed to impose any obligation
on Party with respect to the timing or amount of any Party’s obligation to cause the deposit
of its respective share of Funds (it being the intent of the foregoing only to describe the
Parties’ obligations pursuant to the Development Agreement and not to create now or
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additional obligations arising solely pursuant to this Section 3.
4. Standard of Care and Liabilities. During the Term the Escrow Agent shall have the
following standard of care and liabilities:
(a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the
Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties
or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent.
This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent
and the other parties hereto in connection with the subject matter of the Funds placed into
escrow, and no other agreement entered into between the parties, or any of them, shall be
considered as adopted or binding, in whole or in part, upon the Escrow Agent
notwithstanding that any such other agreement may be referred to herein or deposited
with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow
Agent’s rights and responsibilities shall be governed solely by this Asphalt Overlay
Agreement.
(b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or
expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not
incur any such liability with respect to (i) an action taken or omitted in good faith upon
advice of its counsel given with respect to any questions relating to the duties and
responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (ii) any
action taken or omitted in reliance upon any instrument, including written notices
provided for herein, not only as to its due execution and the validity and effectiveness of
its provision, but also as to the truth and accuracy of any information contained therein,
which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts
hereunder as a depository only, and is not responsible or liable in any manner whatsoever
for the sufficiency, correctness, genuineness or validity of the subject matter of this
Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or
for the identity of authority of any person executing or depositing such subject matter.
(c) The Escrow Agent shall hold Funds in trust for the benefit of the Town, TCMD and the
Master Developer, and has a fiduciary duty to preserve and account for all Funds in the
Asphalt Overlay Account.
(d) The Escrow Agent shall make and maintain such records as expressly required in this
Asphalt Overlay Agreement and those records which are required by law .
(e) In the event Funds are lost by reason of the Escrow Agent’s breach of its fiduciary duty,
then the liability of the Escrow Agent to Master Developer, Town and/or TCMD shall be
limited to the Master Developer’s, Town’s and/or TCMD’s direct damages, which shall
be computed by determining:
(i) the amount of Funds contributed by each Party;
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(ii) less the amount of any Escrow Fees previously paid;
(iii) less the amount of Funds previously released pursuant to the terms of this Asphalt
Overlay Agreement; and
(iv) less the balance available in the Asphalt Overlay Account.
(f) The Escrow Agent shall not be liable to Master Developer, Town and/or TCMD for
indirect, punitive, special or consequential damage or loss, including, but not limited to,
lost profits.
(g) Escrow Agent shall have no liability for the failure of any Party to contribute their
respective portion of the Funds, and shall have no obligation to notify any Party of such
Party’s or another Party’s failure to deposit Funds, it being the Parties’ intent that each
Party shall be responsible for the timely deposit of its pro rata share of the Funds at the
times and in the amounts required by the Development Agreement, and each Party shall
be responsible to monitor the other Parties’ performance of their respective obligations to
deposit Funds based on their review of the statements and other financial records required
to be delivered pursuant to Section 6.
(h) Master Developer, Town and TCMD agree that the Escrow Agent (i) shall be obligated
only for the performance of the duties set forth in this Asphalt Overlay Agreement and
any other duties or obligations imposed by law, (ii) may rely on written notice, direction
and instruction jointly from Master Developer, Town and TCMD regarding the Funds,
including, without limitation, wire transfer instructions, (iii) may rely on any documents
from the Town, Master Developer or TCMD which appear to the Escrow Agent, in the
exercise of its fiduciary duty, to be genuine and to have been authorized by the Town,
Master Developer or TCMD and (iv) unless the documents appear questionable, the
Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or
validity of same.
(i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being
shared equally among the Town, TCMD and Master Developer in the event of any
dispute or question as to the construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and shall be fully protected in acting in
accordance with the advice of such counsel.
5. Release of Funds. The Escrow Agent shall release funds to the Town according to the
following procedures:
(a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a
joint written request to Escrow Agent (“Joint Instruction”) for the release of Funds, or
portion thereof, for the asphalt overlay project which request shall include: (i) the amount
of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or
segment of public road for which an asphalt overlay will occur within the Village (at
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Avon) project area (as defined in the Development Agreement), and (iii) instruction for to
whom the monies released from the Asphalt Overlay Account should be paid.
(b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly
executed by Town and TCMD, the Escrow Agent is authorized and directed to deliver the
Funds in accordance with such instruction.
6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account
statements to Master Developer, Town, and TCMD on a monthly basis. The Escrow Agent,
upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all
financial records of the Asphalt Overlay Account to the requesting Party by the end of the
second (2nd) business day after the date that a written request for financial records is received.
Statements shall be sent via the United States Postal Service’s standard delivery.
7. Audit. The Master Developer, Town and TCMD shall each have the right to audit the
Asphalt Overlay Account and any of Escrow Agent’s financial records related thereto at any
time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three
(3) business days after the date on which Escrow Agent receives the request, make all records
pertaining to the Asphalt Overlay Account available during normal business hours to the
Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own
expenses in connection therewith unless the audit discloses any instance of Escrow Agent’s
non-compliance with the terms and conditions of this Asphalt Overlay Agreement, in which
case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable
costs in expenses in connection therewith, including but not limited to the costs and expenses
of any such Party(ies) employees, agents and consultants engaged in and/or performing the
audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with
any such audit.
8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by
one of the following methods (“Term”):
(a) The Master Developer has fulfilled all obligations of the Master Developer to contribute
funds, the obligation of Town and TCMD to contribute funds is terminated, the Town
assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in
accordance with Section 6.6(b) of the Development Agreement and the Master
Developer, Town and TCMD send written notification to Escrow Agent that the
requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met,
provides instructions for the release and disbursement of Funds, and includes an
indemnification of the Escrow Agent for releasing such Funds as requested in the joint
written notice to terminate have been met and such agreement is thereby terminated; or,
(b) the Town, Master Developer, and TCMD provide a joint written notice to terminate this
Asphalt Overlay Agreement, which is: (i) signed by Town, Master Developer and
TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of
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Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds
as requested in the joint written notice to terminate; or
(c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below.
9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all
Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after
receiving joint written notice from the Town, Master Developer and TCMD that Asphalt
Overlay Agreement may be terminated in accordance with Section 6.6(b) of the
Development Agreement. The written notice shall include a statement that the Town
assumes all responsibility and liability for future asphalt overlays in accordance with the
terms of the Development Agreement and shall be copied to the Master Developer and
TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting
claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.
10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its
obligations under this Asphalt Overlay Agreement as follows:
(a) The Escrow Agent shall deliver a written and dated resignation to the other Parties.
(b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of
sixty (60) days from the date of the resignation or (ii) the date upon which Escrow Agent
completes transfer of the Funds to the Successor EA (defined below) pursuant to Section
10(d).
(c) It shall be joint duty of Master Developer, Town and TCMD to promptly secure a
Successor Escrow Agent (“Successor EA”) and notify the Escrow Agent of the name and
address of the Successor EA no later than the effective date of Escrow Agent’s
resignation under this Section 10. Master Developer, Town, and TCMD agree to
cooperate in a prompt, diligent and professional manner to secure a Successor EA.
Master Developer, Town, and TCMD each agree that consent and approval of a
Successor EA shall not be unreasonably withheld.
(d) The current Escrow Agent shall retain physical custody and control of the Funds until it
receives (i) written notification by Master Developer, Town, and TCMD of the name and
address of the Successor EA, and (ii) written notification from the Successor EA stating
that the Successor EA has accepted the appointment. Upon receipt of the written
notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the
Successor EA within three (3) business days. In the event that the Escrow Agent does
not receive both the written notification from the Master Developer, Town, and TCMD
regarding the name and address of the Successor EA and the acceptance of the
appointment by the Successor EA by the end of the sixtieth (60th) day after the date of the
written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding
the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow
Agent shall hold the Funds in accordance with Section 11. below.
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(e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA
nor shall Escrow Agent any liability for the failure of Master Developer, Town, and
TCMD to appoint a Successor EA.
(f) Town shall promptly, but no later than ten (10) days from the effective date of the new
agreement, forward a copy of the new executed asphalt overlay escrow agreement
entered into by Master Developer, Town, TCMD, and the Successor EA to the Escrow
Agent.
11. Conflicting Claims. In the event of any disagreement between any of the Parties to this
Asphalt Overlay Agreement, or between any of them and any other person, resulting in
adverse claims or demands being made in connection with the matters covered by this
Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as
to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply
with any claims or demands on it, or refuse to take any other action hereunder, so long as
such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not
be or become liable in any way or to any person for its failure or refusal to act, and Escrow
Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested
parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or
(ii) all differences shall have been adjudged and all doubt resolved by agreement amount all
of the interested persons, and Escrow Agent shall have been notified thereof in writing
signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its
discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow
Agent is hereby authorized in its sole discretion, to comply with and obey any such orders,
judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative
of all other rights which it may have by law or otherwise.
12. Indemnification. To the extent permitted by law, Master Developer, Town, and TCMD,
jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers,
directors, employees, and agents from any and all “Claims” and “Losses” as defined in this
Section 12., as a result of or in connection with the Escrow Agent’s acts under this Asphalt
Overlay Agreement, other than claims made by Master Developer, Town, and/or TCMD for
gross negligence of Escrow Agent, or willful misconduct of Escrow Agent.
(a) “Claims” shall mean all claims, lawsuits, causes of action, or other legal actions and
proceedings of whatever nature brought against the Escrow Agent or any officer, director,
employee, or agent, whether by way of direct action, counterclaim, cross action, or
impleader, even if such claim is groundless, false, or fraudulent, so long as the claim,
lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or
indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i)
acts or omissions of Master Developer, Town, or TCMD, (ii) appointment of the Escrow
Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the
Escrow Agent of its powers and duties under this Asphalt Overlay Agreement.
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(b) “Losses” shall mean losses, costs, damages, expenses, judgments, and liabilities of
whatever nature (including, but not limited to, attorneys, accountants, and other
professional’s fees, litigation and court costs and expenses, and amounts paid in
settlement), directly or indirectly resulting from, arising out of, or relating to one or more
Claims. Upon the written request of Escrow Agent or any officer, director, employee, or
agent of Escrow Agent, Master Developer, Town, and TCMD agrees to jointly assume
the investigation and defense of Escrow Agent against any Claims or Losses, including
the employment of counsel acceptable to Escrow Agent and the payment of all expenses
related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have
the right, and Master Developer, Town, and TCMD agree to pay the costs and expense, to
employ separate counsel with respect to any such Claim and to participate in the
investigation and defense thereof. Master Developer, Town and TCMD and Escrow
Agent shall use all reasonable efforts to fully cooperate with each other in the defense of
any Claims or Losses.
13. Notices. Any notice or communication, exclusive of periodic statements, required under this
Asphalt Overlay Agreement between the Parties must be in writing, and may be given either
personally or by registered or certified mail, return receipt requested. If given by registered
or certified mail, the same shall be deemed to have been given and received on the first to
occur of (a) actual receipt by any of the addressees designated below as the Party to whom
notices are to be sent, or (b) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United States mail. If
personally delivered, a notice shall be deemed to have been given when delivered to the party
to whom it is addressed. Any Party hereto may at any time, by giving written notice to the
other Party hereto as provided in this Section 13, designate additional persons to whom
notices or communications shall be given, and designate any other address in substitution of
the address to which such notice or communication shall be given. Such notices or
communications shall be given to the Parties at their addresses set forth below:
To Escrow Agent:
FirstBank Escrow Services, LLC
1707 N Main St.
Longmont, CO 80501
Attn: Carol Croft
With a Required Copy to:
To Master Developer:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
With a Required Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti,
P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq. and
Kimberly Martin, Esq.
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To Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Manager
With a Required Copy to:
Heil Law & Planning, LLC
2696 S. Colorado Blvd., Suite 550
Denver, CO 80222
Attn: Eric J. Heil, Esq.
To TCMD:
Traer Creek Metropolitan District
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
With a Required Copy to:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, CO 80203
Attn: Mary Jo Dougherty, Esq.
14. Funds Unencumbered.
(a) Master Developer, Town and TCMD each warrant to the others that the respective Funds
placed in the Asphalt Overlay Account are not subject to, nor will they become subject
to, any claims of creditors of the Party contributing such Funds. Master Developer,
Town and TCMD each agree that each Party will not use the Funds as security for any
transaction, nor will Master Developer, Town or TCMD pledge the Funds or list the
Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real
or personal property.
(b) Master Developer, Town and TCMD each warrant that, during the term of this Asphalt
Overlay Agreement, the Funds shall remain unencumbered by any legal interest that
would violate the Asphalt Overlay Agreement.
(c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any
security interest exists in any Funds in the Asphalt Overlay Account.
(d) The Escrow Agent will promptly notify the other Parties within two (2) business days if
there is an attempt to encumber the Funds.
15. Third-Party Beneficiary. Nothing contained in this Asphalt Overlay Agreement is intended
to or shall create a contractual relationship with, cause of action in favor of, or claim for
relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely
no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third-party
receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended
beneficiary only.
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16. Survival of Terms and Conditions. The Parties understand and agree that all terms and
conditions of this Asphalt Overlay Agreement that require continued performance,
compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall
survive such termination date and shall be enforceable in the event of a failure to perform or
comply.
17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or
benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party
without the express written consent of the other Parties. Any written assignment shall
expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties,
obligations, responsibilities, or benefits so assigned, and shall not be effective unless
approved in writing, signed and notarized by the other Parties, and with respect to an
assignment of a Party’s obligations or responsibilities shall be expressly assumed in writing
by the assignee. Any attempted assignment without written consent by all other Parties to
this Asphalt Overlay Agreement shall be void ab initio and unenforceable.
18. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town and
TCMD are subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties
do not intend to violate the terms and requirements of TABOR by the execution of this
Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay
Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the
meaning of TABOR and, therefore, notwithstanding anything in this Asphalt Overlay
Agreement to the contrary, all payment obligations of the Town and TCMD are expressly
dependent and conditioned upon the continuing availability of funds beyond the term of the
Town’s and TCMD’s current fiscal period ending upon the next succeeding December 31.
Financial obligations of the Town and TCMD payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise made
available in accordance with the rules, regulations, and resolutions of the Town and of
TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish,
supplement or supersede the provisions in the Development Agreement concerning default
for non-payment of by Town and/or TCMD in the performance of their respective
obligations to deposit Funds into the Asphalt Overlay Account.
19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be
governed by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Asphalt Overlay Agreement shall be in the appropriate court for
Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the
resolution of disputes under this Asphalt Overlay Agreement, the Parties hereby waive any
and all right either may have to request a jury trial in any civil action relating primarily to the
enforcement of this Asphalt Overlay Agreement.
20. Construction and Interpretation. The Parties agree that the rule that ambiguities in a
contract are to be construed against the drafting party shall not apply to the interpretation of
this Asphalt Overlay Agreement. If there is any conflict between the language of this
Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt
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Overlay Agreement shall govern. If there is any conflict between the language of this
Asphalt Overlay Agreement and the Development Agreement, then language in the
Development Agreement shall control between the Town, TCMD and Master Developer, so
long as such interpretation does not affect the rights or obligations of the Escrow Agent, and
the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and
any of the Parties.
21. No Waiver of Rights. A waiver by any Party to this Asphalt Overlay Agreement of the
breach of any term or provision of this Asphalt Overlay Agreement shall not operate or be
construed as a waiver of any subsequent breach by any Party. No covenant or term of this
Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing
signed by a person expressly authorized to sign such waiver for such Party and any written
waiver of a right shall not be construed to be a waiver of any other right or to be a continuing
waiver unless specifically stated. Notwithstanding any provision to the contrary in this
Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as
a waiver, either express or implied, of any immunities, rights, benefits or protections
provided to the Town and TCMD under the Colorado Governmental Immunity Act.
22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter herein, and is
intended as the Parties’ final expression and complete and an exclusive statement of the
terms thereof, superseding all prior or contemporaneous agreements, representations,
promises and understandings, whether written or oral. This Asphalt Overlay Agreement may
be amended or modified only by an instrument in writing signed by all Parties with express
approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement
are incorporated herein by reference.
23. Force Majeure. Escrow Agent shall not be liable to the Town, TCMD or Master Developer
for any loss or damage arising out of any acts of nature, strikes or transmission line failure,
war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow
Agent.
24. Calculation of 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.
25. Counterparts. This Asphalt Overlay 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. All joint written instructions from the Town and
TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts.
[SIGNATURE PAGE FOLLOWS]
Asphalt Overlay Agreement – V9
December 3, 2012 Heil
Page 12 of 13
IN WITNESS WHEREOF, Escrow Agent, Master Developer, Town and TCMD have
executed this Asphalt Overlay Agreement as of the date first written above.
THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE
UNDERSIGNED PARTIES:
Escrow Agent: FirstBank Escrow Services, LLC
By:________________________
[Carol Croft, Escrow Officer]
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ___________________
2011, by [insert name, title].
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires:
Master Developer: Traer Creek LLC
By:________________________
Marcus Lindholm, Manager
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ___________________
2011, by Marcus Lindholm, Manager.
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires:
Asphalt Overlay Agreement – V9
December 3, 2012 Heil
Page 13 of 13
Town: Town of Avon, Colorado
By:________________________ Attest:_________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ___________________
2011, by Rich Carroll, Mayor.
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires:
Traer Creek Metropolitan District
By:________________________
Dan Leary, President
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ____ day of ___________________
2011, by Dan Leary, President Traer Creek Metropolitan District.
WITNESS MY HAND AND OFFICIAL SEAL.
_____________________________
NOTARY PUBLIC
My commission expires: