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TC Ord. No. 2013-13 Consolidated Amended Restated Annexation and Dev Agreement Village at AvonTOWN OF AVON, COLORADO ORDINANCE 13 -13 SERIES of 2013 AN ORDINANCE APPROVING AMENDMENTS TO THE CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) WHEREAS, the Town of Avon ( "Town "), Traer Creek Metropolitan District ( "TCMD "), Traer Creek LLC, Traer Creek -RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer Creek -HD LLC, Traer Creek -WMT LLC, (collectively the "Traer Creek Parties "), BNP Paribas ( "BNP ") and Eagle County are parties to the consolidated litigation Civil Action No: 2008 CV 385 and Civil Action No: 2010 CV 316, Eagle County District Court ( "Litigation "); WHEREAS, on October 7, 2011 Town, TCMD, the Traer Creek Parties, and BNP entered into the Settlement Term Sheet ( "Settlement Term Sheet ") in an effort to resolve the Litigation; WHEREAS, the Town of Avon approved an Annexation and Development Agreement for the Village (at Avon) by Ordinance No. 98 -17; WHEREAS, the Town of Avon approved the First Amendment to the Annexation and Development Agreement by Ordinance No. 01 -16, the Second Amendment to the Annexation and Development Agreement by Ordinance No. 03 -08, and the Third Amendment to the Annexation and Development Agreement by Ordinance No. 04 -17; WHEREAS, the Town approved the Consolidated, Amended, and Restated Annexation and Development Agreement ( "Development Agreement ") by Ordinance 12 -10; WHEREAS, the Upper Eagle River Water Authority is not able finance and construct the Traer Creek Water Storage Tank in accordance with the terms of the Traer Creek Water Storage Tank Agreement and Second Amendment to the Water Service Agreement ( "Water Tank Agreement ") due to changes in circumstances, including but not limited to increases in interest rates and changes to the design of the Water Tank Project; WHEREAS, TC -RP has offered to provide private financing and to construct the Water Tank pursuant to the terms of an amended Water Tank Agreement and subject to reimbursement by Traer Creek Metropolitan District; WHEREAS, the Town Council previously approved the Receipt and Escrow Agreement Pertaining to the Village (at Avon) Settlement Implementation ( "Closing Escrow Agreement "), which set forth terms for the execution, deposit, recording, effectiveness and potential voiding of documents, including the Development Agreement; Page I of 5 Ord No. 13 -13 Amendments to Development Agreement Oct. 22, 2013 FINAL WHEREAS, the Town of Avon may generally act by ordinance to approve agreements and acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; WHEREAS, the Town Council conducted public hearings on September 24, 2013 and October 22, 2013 at the Avon Town Hall in accordance with Sections 6.5(d) and (e) of the Avon Home Rule Charter; and WHEREAS, the Town Council finds that approval of this Ordinance will approve the terms of private financing by TC -RP for the Traer Creek Water Storage Tank and will enable settlement to be finalized and will thereby promote the preservation of the public health and safety of the people of the Town of Avon. 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. Approval of Development Agreement. The Development Agreement Version 12, is hereby approved and shall replace and supersede the version of the Development Agreement approved by Ordinance No. 12 -10. The Mayor and the Town Clerk and their respective designees are authorized to execute the Development Agreement, attached hereto as Exhibit A, and are authorized to take such as action as necessary to cause the Development Agreement to be deposited with the Escrow Agent in accordance with the terms of the Closing Escrow Agreement. Section 3. Effectiveness of Development Agreement. The effectiveness of the Development Agreement shall be contingent upon and subject to the conditions stated in this Section 3, and at such time that any condition in this Section 3 fails prior to the Implementation Date this Ordinance and the approval of Development Agreement shall become automatically null and void, such conditions are stated as follows: A. Compliance with the terms of the Closing Escrow Agreement, including occurrence of the Implementation Date as such date may be extended by the terms and procedures of the Closing Escrow Agreement. B. Implementation and imposition of the Add -On Retail Sales Fee as defined in the Development Agreement by November 1, 2013 regardless of the Effective Date of the Development Agreement, along with remittance of the total amount of such Add -On Retail Sales Fee to the Town, and the imposition, collection and remittance to Town of such Add -On Retail Sales Fee shall continue from November 1, 2013 until the Implementation Date, in accordance with applicable agreements and procedures for imposition, including but not limited to the Second Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas, First Amendment to the Page 2 of 5 Ord No. 13 -13 Amendments to Development Agreement Oct. 22, 2013 FINAL Declaration of Covenants for The Village (at Avon) Mixed Areas and the Add -On Retail Sales Fee Services Collection Agreement, and such Add -On Retail Sales Fee shall continue on and after the Implementation Date as set forth in the Development Agreement. C. Approval by the Avon Town Council of a revised Water Tank Agreement on or prior to the Implementation Date as defined in and as may be extended by the Closing Escrow Agreement, including approval of the Pledge Agreement as an exhibit to the Water Tank Agreement, which Water Tank Agreement with exhibits include terms and definitions that are essential to and cross - referenced in the Development Agreement. Section 4. Revisions to the Closing Escrow Agreement. The approval of the Closing Escrow Agreement in Section 2 of Ordinance No. 12 -10 is hereby modified as follows: (a) Council may approve an extension of the Implementation Date by motion or resolution and with such conditions as Council deems appropriate. (b) The Town Manager and Town Attorney are authorized to approve revisions and amendments to the Closing Escrow Agreement that are necessary to reconcile the terms, the list of documents identified for deposit and instructions for the release of documents as set forth in the Closing Escrow Agreement with the amended Development Agreement and Amended and Restated Tank Agreement. Section 5. Ordinance No. 12 -10 Not Effected. Other than the approval of the amended Development Agreement, the conditions for effectiveness of the amended Development Agreement and the authorization for extension and revisions to the Closing Escrow Agreement, all other actions and approvals of the Town Council as set forth in Ordinance No. 12 -10 shall remain in full force and effect according to the terms and conditions of such action and approvals set forth therein. Section 6. Correction of Errors. Town Staff is authorized to insert proper dates, references to recording information and make similar changes, and to correct any typographical, grammatical, cross - reference, or other errors which may be discovered in any documents associated with this Ordinance and documents approved by this Ordinance provided that such corrections do not change the substantive terms and provisions of such documents. Section 7. Severability. No provision of this Ordinance shall be severable. If any provision of this Ordinance is for any reason held to be invalid, such invalidity shall affect the entirety of this Ordinance, and all documents and exhibits to documents approved by this Ordinance, and shall render the entire Ordinance invalid, without and void ab initio. Section 8. Effective Date. This Ordinance shall take effect on the day after the last day that a petition for referendum can be submitted to the Town as set forth in Section 8 below, in accordance with Section 6.4 of the Avon Home Rule Charter. Notwithstanding the foregoing, Page 3 of 5 Ord No. 13 -13 Amendments to Development Agreement Oct. 22, 2013 FINAL the effectiveness of this Ordinance, or any of the instruments approved hereby, shall not be recorded against, be binding upon, benefit or burden the property known as The Village (at Avon) or be binding upon any party until the occurrence, if any, of the Implementation Date in accordance with the terms of the Closing Escrow Agreement. 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. 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. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section. 7.16.140(d)(2) of the Avon Municipal Code. Section 11. Right of Referendum. The right of referendum shall run thirty (30) days from the date of publication of the notice that a vested property right has been granted in accordance with Section 7.16.140(d)(2)(iii) of the Avon Municipal Code. [execution page follows] Page 4 of 5 Ord No. 13 -13 Amendments to Development Agreement Oct. 22, 2013 FINAL INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on September 17, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on September 24, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. op� Published by posting i(as� t'threetap Clerk at least seven da to fina l act ATT I . Pat& Mc nnv, T-o—A Clerk Rich Carroll, Mayor places in Town and posting at the office of the Town k by the Town Council. APP VED AS TO O Eric Hei &XweAttorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on October 22, 2013. Published by posting office of the Town Cl A 'Z�7 Rich Carroll, Mayor three public places in Town and posting by title at the Page 5 of 5 Ord No. 13 -13 Amendments to Development Agreement Oct. 22, 2013 FINAL CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to time, this "Development Agreement') is made and entered into as of June 7, 2013 ( "Execution Date ") by and among the Parties and the Limited Parties, and with the consent of the Developer Affiliates, BNP and Lenders. RECITALS This Development Agreement is made with reference to the following facts: A. Initially capitalized words and phrases used in this Development Agreement have the meanings set forth in Exhibit F, which definitions are incorporated herein. B. Pursuant to the Original Agreement, the Town and the Original Owners set forth the terms and conditions upon which the land legally described in Exhibit A of the Original Agreement would be annexed into and developed under the jurisdiction of the Town, such legal description having been updated to reflect the Recording of various subdivision plats subsequent to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the "Property "). C. Town Council approved the Service Plans on August 25, 1998, and on February 3, 1999, TCMD and VMD were legally formed for the general purposes contemplated by the Original Agreement and more specifically described in the Service Plans. D. Subsequent to the Original Effective Date: (i) the other entities comprising the Original Owner were merged into EMD, which became the sole Original Owner; and (ii) pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in writing, the right to amend the Original Agreement as to all of the Property except Planning Area M as designated in the Original PUD Guide and the Original Agreement (now re- designated Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the right to amend the Original Agreement. E. As of the Execution Date, the current fee owners of the real property comprising the Property are, as their respective interests appear of Record: TC -RP; EMD; TC Plaza; TC -WMT; TC -HD; Alkali Company, a Colorado limited partnership; TCMD; the District Directors; the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation; Buffalo Ridge II LLLP, a Colorado limited liability limited partnership; Eagle River Fire Protection District, a quasi - municipal corporation; Eagle County Health Service District, a quasi - municipal corporation; and Department of Transportation, State of Colorado. F. Other than EMD, each of the Developer Affiliates and other Landowners referred to in Recital E acquired title to the portion of the Property it owns subject to the terms and conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original 1044033.12 Agreement. None of the conveyances referred to in Recital E were accompanied by a specific written grant of the power to amend the Original Agreement as provided in Section 1.4 of the Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment described in Recital D), no Landowner or other person or entity has been granted any power to consent or object to any amendment of the Original Agreement (except for the rights of BNP, derived in its capacity as the issuer of an irrevocable direct pay letter 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, to consent to TCMD's execution of any such amendment). As provided in Section 1.4 of the Original Agreement, no person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to execute or acknowledge this Development Agreement as a condition of this Development Agreement being legally effective and binding on all parties to the Original Agreement and all Landowners. G. For ease of administration and in recognition of the fact the ownership of the Property has and will continue to become diverse as the Project develops, the Developer Affiliates have designated Master Developer to act on their behalf for all purposes in connection with this Development Agreement, including but not limited to negotiation and execution of this Development Agreement and any future amendments hereto. H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV 316 (collectively, consolidated as Case No. 2008 CV 385, the "Litigation ") and the parties to the Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered into that certain Settlement Tenn Sheet made and entered into the 7"' day of October, 2011, by and between the Town, BNP, TCMD, TCLLC, TC -RP, TC Plaza, EMD, TC -HD LLC and TC -WMT (the "Settlement Term Sheet "). I. In accordance with the teens and conditions of the Settlement Tenn Sheet, the Parties have entered into this Development Agreement to implement pertinent terns of the Settlement Tenn Sheet, to effect a full and final settlement of all disputes pertaining to the Original Agreement which were the subject of the Litigation, and to resolve other potential disputes related to development entitlements, interpretation of Original Agreement, equitable allocation of responsibilities and rights, and other matters which are addressed in this Development Agreement and related documents. The Town's final non - appealable approval of this Development Agreement establishes and implements specific terms and conditions of the Settlement Tenn Sheet and shall be binding on the Parties hereto and also shall be binding on all parties to the Settlement Tenn Sheet. J. Various circumstances and changed conditions require mutual execution and approval of this Development Agreement in order to: (i) clarify and implement the intent of the parties to the Original Agreement to promote development of the Property; (ii) amend and restate 2 1044033.12 the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate dismissal of the Litigation with prejudice and minimize the potential for future legal disputes. K. During the period between the Original Effective Date and the Execution Date and in reliance on the revenue sharing and infrastructure financing arrangements established by the Original Agreement, the Districts, the PICs, Master Developer and /or the Developer Affiliates have made large investments in Public Improvements located both within the Property and outside of the Property. The foregoing has resulted in: (1) Full satisfaction of the following obligations of TCMD under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) Construction of the Interstate 70 Interchange and the Highway 6 Connector Road as defined in § 4.2 of the Original Agreement; (b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of the Original Agreement, in the amount of $100,000; (c) Construction of the Phase 1 Improvements and the Phase 2 Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement; (d) Construction of the Swift Gulch Road Improvements as defined in § 4.3(c) of the Original Agreement; (e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of the Original Agreement; and (f) Those obligations set forth in § 4.30) of the Original Agreement. (2) Partial satisfaction of the following obligation of TCMD under the terms and conditions of the Original Agreement, with performance of the remaining obligations waived pursuant to the Settlement Term Sheet and the provisions establishing such obligation accordingly deleted from this Development Agreement: (a) Payment of nine (9) installments, in the amount of $200,000 each, of the ten (10) such installments comprising the East Avon Exaction as defined in § 4.3(a)(i) of the Original Agreement, the obligation to make the final installment being extinguished by this Development Agreement as contemplated in the Settlement Term Sheet. (3) Full satisfaction of the following obligations of Original Owners under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) The two property conveyances comprising the Public Works Dedication as defined in § 4.3(d) of the Original Agreement; 3 1044033.12 (b) Reimbursement to the Town of those costs required to be reimbursed pursuant to § 4.3(e) of the Original Agreement. L. The Town has adopted Ordinance No. 12 -10, which approved this Development Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06 -17, and took other actions stated in Ordinance No. 12 -10 to implement in part the Settlement Term Sheet. M. Continued development of the Project will require substantial additional investments in Public Improvements, and completion of these additional Public Improvements will require substantial additional investments by the Districts, the PICs, Master Developer, the Developer Affiliates and /or other Landowners. All such completed and to be constructed Public Improvements will serve the needs of the Project and the Town. Such prior and future investments can be supported only if there are assurances that development of the Project will be permitted to proceed to ultimate completion as contemplated in this Development Agreement and the PUD Guide. N. The Vested Property Rights Statute and the Municipal Code (as in effect on the Execution Date) authorize the Town to enter into development agreements which provide for the vesting of property development rights with a term of greater than three (3) years. O. Town Council has determined that granting Vested Property Rights for the duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment - backed expectations of Landowners and foster cooperation between the public and private sectors in the area of land use planning and development. P. Town Council specifically finds that this Development Agreement provides public benefits including but not limited to the following specific public benefits: (i) development of the Property in accordance with the applicable development standards in the Development Plan and, to the extent not controlled by the Development Plan, the Municipal Code (as amended from time to time); (ii) economic development through construction anticipated to occur in connection with development of the Project; (iii) economic development through the development of various commercial and residential uses that enhance, complement and reinforce the Town's existing economy, commercial base and ad valorem property tax base; (iv) development of housing to meet the needs of the Avon community; (v) development of significant property within the Town's municipal boundaries which promotes economies of scale in the provision of public services; and (vi) establishment of a public - private cooperative arrangement that promotes the availability of capital for Public Improvements and promotes the competitiveness and viability of private development within the Town and the Project. Q. In exchange for these benefits and the other benefits to the Town contemplated by this Development Agreement, together with the public benefits served by the orderly development of the Property, this Development Agreement and the Vested Property Rights established herein are intended to provide assurance to Master Developer, EMD, the Developer Affiliates, other Landowners, the Districts, lenders providing financing for development of the Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued 11 1044033.12 or to be issued by the Districts that development of the Property pursuant to the terms and conditions of the Development Plan and the Approved SSDPs can occur without impediment or impairment of the Vested Property Rights. R. The Limited Parties have executed this Development Agreement only for the limited purposes expressly set forth herein and with the express understanding that the Limited Parties shall not be construed to have any rights, duties, obligations or remedies arising under this Development Agreement except to the extent expressly set forth herein with respect to each Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited Party shall be strictly limited to those expressly set forth in this Development Agreement as a right, duty, obligation or remedy of such Limited Party. S. Lenders have executed this Development Agreement for the sole purpose of evidencing their respective consent and subordination to the Recording of this Development Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any obligation or acquiring any enforcement right or remedy arising under this Development Agreement. T. BNP, while not a Party, has executed a written consent to this Development Agreement in order to affirm BNP's consent to approval of the Financing Plan and related matters addressed in this Development Agreement. Additionally, BNP is an Intended Beneficiary with respect to BNP's right to enforce certain provisions of this Development Agreement, including but not limited to BNP's right to participate on the AURA board of directors with respect to any urban renewal plans for any portion of the Property. U. As between the Town, AURA, TCMD and VMD, this Development Agreement constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29 -1 -203 and 29 -20 -105, and such Parties intend their respective obligations hereunder to be enforceable by specific perfonnance and /or other equitable remedies in addition to any remedies otherwise available at law. V. As between the Town, Master Developer, EMD, Developer Affiliates and other current or future Landowners, this Development Agreement constitutes a development agreement granting Vested Property Rights for a period in excess of three (3) years in accordance with Section 24 -68- 104(2) of the Vested Property Rights Statute. W. The Parties intend this Development Agreement to amend and restate in its entirety the Original Agreement by consolidating the original document and subsequent amendments thereto into a single document for ease of reference, and additionally by incorporating the amendments necessary and desirable to implement applicable terms and conditions of the Settlement Tenn Sheet. AGREEMENT NOW, THEREFORE, in consideration of the terns, conditions and covenants set forth in this Development Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 5 1044033.12 ARTICLE 1 GENERAL PROVISIONS 1.1 Incorporation of Recitals. The Recitals are incorporated into and made substantive provisions of this Development Agreement. 1.2 Effectiveness and Recording of Development Agreement. This Development Agreement shall be effective as of the Effective Date. Any delay or failure to Record this Development Agreement shall not negate or impair the effectiveness of this Development Agreement as between the Parties and any other parties having notice of this Development Agreement. The effectiveness and /or Recording of this Development Agreement shall not be construed to negate the effectiveness of any approvals granted by Town Council prior to the Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other Landowner taken in connection with development of the Project prior to the Effective Date. All such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the Settlement Term Sheet shall be construed to be of no further force or effect, its terms and conditions having been incorporated into and implemented by this Development Agreement, the PUD Guide, the Tank Agreement, the 2013 Reissue Documents, the Pledge Agreement and /or otherwise performed in full. As of the Effective Date, the obligations of each party to the Original Agreement to any other party to the Original Agreement are expressly discharged, terminated and of no further force or effect except to the extent such obligations are expressly incorporated and set forth in this Development Agreement. 1.3 Covenants. Upon Recording, the provisions of this Development Agreement shall constitute covenants and servitudes that touch, attach to and run with the land comprising the Property and, except as otherwise provided in Section 1.5 with respect to amendments to this Development Agreement, the burdens and benefits of this Development Agreement shall bind and inure to the benefit of all estates and interests in the Property and all successors in interest to the Parties, the Developer Affiliates and any other Landowners as of the Effective Date. 1.4 Vesting Term; Term of Development Agreement. Phased development of the Project as contemplated under this Development Agreement and the Development Plan involves significant acreage and density which will require substantial investment and time to complete. (a) Vesting Tenn. Due to the size and phasing of the Project, the potential for development of the Project to be affected by economic and financial cycles, the effect of national and statewide markets with regard to retailers, accommodations industry and builders, and the limitation of absorption rates by the local market conditions, the tern of the Vested Property Rights established pursuant to Section 2.4 shall continue through and including October 20, 2039 ( "Vesting Term "). If the Term expires prior to expiration of the Vesting Term, the Vesting Term shall continue in full force and effect and shall survive expiration of the Tenn in accordance with and subject to the terns, conditions and limitations set forth in this Agreement. On October 21, 2039, the Vested Property Rights shall be deemed terminated and of no further force or effect; provided, however, that such termination shall not affect: (i) annexation of the Property to the Town; C� 1044033.1? (ii) any common -law vested rights obtained prior to such termination; (iii) any right arising from Town building permits, development approvals or other zoning entitlements for the Property or the Project which were granted or approved prior to expiration of the Vesting Term; or, (iv) any obligation of a Party under this Development Agreement that has not been fully performed as of the date on which the Vesting Term expires. (b) Term of Development Agreement. Notwithstanding any prior expiration of the Vesting Term (or survival of the Vesting Term after expiration of the Term), the term of this Development Agreement and the Parties' obligations hereunder shall commence upon the Effective Date and shall terminate upon expiration of the Term. Upon expiration of the Term, the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit. Notwithstanding the foregoing, the Town may elect to extend the Term in accordance with Section 6.1(d). In no event shall the Term expire before the Town's obligation to maintain the Tax Credit in effect has terminated as provided in Section 6.1(b). (c) Obligation to Maintain Tax Credit. Without limitation of the foregoing, the Town's obligation to maintain the Tax Credit in effect pursuant to Sections 4.2(a) and 6.1(b) shall survive expiration of the Vesting Term and shall continue in full force and effect until the conditions set forth in Section 6.1(b) have been fully satisfied. 1.5 Amendment of Development Agreement. This Development Agreement may be amended or terminated only by mutual written consent of the Town, TCMD and Master Developer (but not by their respective successors or assigns or by any non -Party Landowner) following the public notice and public hearing procedures required for approval of this Development Agreement; provided, however: (a) Specific Grant of Amendment Rights. For purposes of this Section 1.5 only, the term "Master Developer" means TCLLC, EMD and those additional parties, if any, to whom TCLLC or EMD has specifically granted, in writing, the power to enter into such amendments. No entity to whom TCLLC or EMD has granted the power to enter into such amendments may further assign or grant such power to another entity except to the extent expressly stated in the grantee's original grant from TCLLC or EMD. (b) Limited Parties. The written consent of a Limited Party (other than EMD in its capacity as Master Developer, as otherwise set forth in this Section 1.5) shall not be required except to the extent the proposed amendment directly and expressly modifies a provision of this Development Agreement that establishes a right, obligation or remedy of such Limited Party. (c) VMD. During any portion of the Tenn in which VMD has outstanding District Debts that VMD issued or incurred as part of or with respect to the Financing Plan, VMD's written consent (not to be unreasonably withheld, conditioned or delayed) shall be required for amendments to the Financing Plan and /or to Section 5.1 to the extent such amendments expressly create additional obligations of VMD and /or expressly modify any rights of VMD that are established in such provisions. VMD's written consent shall not be required N 1044033.12 with respect to amendments to this Development Agreement that are not expressly within the scope of the preceding sentence. (d) BNP. The Parties acknowledge that until such time as there are no outstanding obligations to BNP under the 2013 Reissue Documents, TCMD and /or VMD's agreement to any future amendment to the provisions of this Development Agreement that run in favor of BNP, including without limitation, this Section 1.5(d), Section 1.6, Article 4, Article 6 and Article 7 is subject to BNP Paribas' (or any successor or assignee of BNP Paribas pursuant to Section 8.11) prior written consent. The Parties further acknowledge that until such time as there are no outstanding obligations to BNP under the 2013 Reissue Documents, TCMD and VMD are (or are anticipated to be) required by the provisions of the 2013 Reissue Documents to obtain the consent of BNP (or a written acknowledgement that such consent is not required) to any future amendment to the provisions of this Development Agreement, and failure on the part of TCMD and VMD to obtain such consent prior to entering into any such amendment will be a default under the 2013 Reissue Documents, as to which BNP will have the right to exercise its remedies. 1.6 Cooperation in Defending Legal Challenges. If, after the Execution Date, any legal or equitable action or other proceeding is commenced by a third party challenging the effectiveness of Ordinance No. 12 -10, the effectiveness of this Development Agreement and /or the Development Plan, or the validity of any provision of this Development Agreement and /or the Development Plan, the Parties shall in good faith cooperate in defending such action or proceeding and shall each bear their own expenses in connection therewith. Unless the Parties otherwise agree, each Party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. The Parties acknowledge that the obligations of the Town, VMD and TCMD pursuant to this Section 1.6 are subject to compliance with the requirements of Section 20 of Article X of the Colorado Constitution. Accordingly, the Town, VMD and TCMD shall in good faith take such steps as may be available to theirs in response to the filing of any action or proceeding addressed above to set aside, hold and irrevocably pledge adequate present cash reserves to fund the reasonably anticipated costs of defending such action or proceeding; provided, however, if either the Town, VMD or TCMD is not in a position to fund from present cash reserves all or any portion of the reasonably anticipated costs of defending such action or proceeding, such Party's obligation pursuant to this Section 1.6 shall be subject to annual appropriation. 1.7 Role of Master Developer. For the reasons described in Recital G, the Developer Affiliates have designated Master Developer to act on behalf of themselves and their respective successors in interest with respect to and for all purposes of this Development Agreement. The Developer Affiliates may designate a replacement Master Developer from time to time, or may terminate the role of the Master Developer, by delivery of written notice thereof to the Town, VMD and TCMD which is signed by a majority of the Developer Affiliates owning any part of the Property as of the date of such notice. Any replacement Master Developer must be an entity that is a Developer Affiliate. The designation of a replacement Master Developer or termination of the role of Master Developer by the Developer Affiliates shall not require an amendment to this Development Agreement and shall not require the consent of the Town, VMD, TCMD or BNP. M 1044033.12 1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries. (a) Limited Parties. As more particularly described in Recital R, each Limited Party is executing this Development Agreement solely with respect to a limited obligation of such Limited Party. With respect to each Limited Party, such obligations, rights and remedies are expressly limited as follows: (i) AURA. AURA's obligations arising under this Development Agreement are limited to those set forth in Section 4.3. AURA's rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(i). (ii) EMD. EMD's obligations arising under this Development Agreement are limited to those set forth in Section 5.4. EMD's rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(ii). (iii) The Commercial PIC. The Commercial PIC's obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Commercial PIC's rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iii). (iv) The Mixed Use PIC. The Mixed -Use PIC's obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Mixed -Use PIC's rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iv). (b) Intended Beneficiaries. Except to the extent an Intended Beneficiary undertakes obligations as an Applicant in connection with the development of a Site and /or execution of a Public Improvement Agreement as provided in this Development Agreement, no Intended Beneficiary is subject to any obligation arising solely under this Development Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set forth in Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy arising solely under this Development Agreement. Notwithstanding the foregoing, TC -RP shall have the obligations set forth in Section 5.5. ARTICLE 2 ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS 2.1 Annexation. Annexation of the Property was accomplished in accordance with the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31 -12 -101, et seq.) as in effect in 1998. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies annexation of the Property. 2.2 PUD Zoning. Planned unit development (PUD) zoning of the Property was accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the PUD zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each formal amendment to the PUD Guide and /or PUD Master Plan accomplished prior to the 1044033.1? Effective Date, and ratifies all development that has occurred within the Property pursuant to the Original PUD Guide. Concurrently with Recording of this Development Agreement, the Parties caused Recording of the PUD Guide. Accordingly, the Property is zoned PUD pursuant to and as set forth in the PUD Guide. 2.3 Permitted Uses /Design Standards. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, design standards, road profiles and sections, provisions for reservation or dedication of land for public purposes, the general location of roads and trails, the ability of an Applicant to relocate roads, trails and improvements, and other terms and conditions of development applicable to the Property and the Project shall be those set forth in the PUD Guide and in this Development Agreement. 2.4 Vesting of f Property Rights. The Original Agreement and the Original PUD Guide were Site Specific Development Plans with respect to which the Town granted Vested Property Rights for a term of thirty -five (35) years from the Original Effective Date. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the Vested Property Rights established by the Original Agreement and the Original PUD Guide and, as described in Section 1.4(a), extends the term of such Vested Property Rights (including with respect to future amendments to any such Approved SSDP) through and including October 20, 2039. Approval of the Development Plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter 16, of the Avon Municipal Code as amended. Accordingly, the rights identified below (collectively, the "Vested Property Rights ") are expressly ratified, granted and approved by Town Council: (a) The right to develop, plan and engage in land uses within the Property and the Project in the manner and to the extent set forth in and pursuant to the Development Plan and other Approved SSDPs (if any). (b) The right to develop, plan and engage in land uses within the Property and the Project in accordance with the densities, physical development standards and other physical parameters set forth in the PUD Guide and other Approved SSDPs (if any). (c) The right to develop the Project in the order, at the rate and at the time as the applicable Developer determines appropriate given market conditions and other factors, subject to the terms and conditions of the Development Plan and other Approved SSDPs (if any). (d) The right to develop and complete the development of the Project including, without limitation, the right to receive all Town approvals necessary for the development of the Project with conditions, standards and dedications which are no more onerous than those imposed by the Town upon other developers in the Town on a uniform, non - discriminatory and consistent basis, and subject only to the exactions and requirements set forth in the Development Plan and other Approved SSDPs (if any); provided that such conditions, standards and dedications shall not directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on 10 1044033.12 development, delaying or otherwise adversely affecting any of Master Developer's, EMD's, Developer Affiliates' or any other Landowner's rights set forth in the Development Plan or other approved SSDPs (if any). (e) The right to prevent (by mandamus, mandatory or prohibitory injunction or other form of legal or equitable remedy) the application to the Property or the Project of any Town or citizen initiated zoning, land use or other legal or administrative action that would directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer's, EMD's, Developer Affiliates' or any other Landowner's rights set forth in the Development Plan and /or other Approved SSDPs (if any). Section 7.1 of the Town's Charter precludes citizen - initiated measures regarding certain matters, including the zoning or rezoning of property. In accordance with Section 7.1 of the Town's Charter, no initiated measure shall be permitted that would have the effect of modifying or negating the Town ordinance by which Town Council approved implementation of the Settlement Term Sheet, Ordinance No. 12 -10, or any instrument implementing the Settlement Term Sheet as approved in Ordinance No. 12 -10, including but not limited to the Development Plan. (f) Notwithstanding any additional or contrary provision of the Municipal Code (as in effect from time to time), and notwithstanding any prior expiration of the Term, the Vesting Term with respect to the Development Plan and other Approved SSDPs (if any) shall not expire, be deemed forfeited, or otherwise limited or impaired prior to October 21, 2039. For the avoidance of doubt and notwithstanding any contrary provision of the Municipal Code (as in effect time to time), the scope of Vested Property Rights established by the Development Plan specifically includes the right that all amendments to the Development Plan or other Approved SSDPs (if any) approved by the Town shall be and remain vested through and including October 20, 2039, and includes the right to retain and enjoy the remaining period of the Vesting Term for any amendment to the Development Plan or other Approved SSDPs (if any). Accordingly, during the Vesting Tenn (and notwithstanding any prior expiration of the Tenn) Town Council (or other final decision -maker of the Town) shall not condition approval of any future amendment to the Development Plan or other Approved SSDPs (if any) on, nor shall Town Council (or other final decision -maker of the Town) snake any such approval subject to the Applicant's, Landowner's or Master Developer's consent to, a reduction of the then - remaining Vesting Tenn. 2.5 No Obligation to Develop. (a) Master Developer; Other Landowners. Neither Master Developer nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of the Project, nor shall Master Developer or any Landowner have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Project. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. Neither Master Developer nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of any such phase, notwithstanding the development or non - development of any other phase, and neither Master Developer nor any Landowner shall 11 1044033.12 have any liability to the Town or any other party arising under this Development Agreement for not developing all or any portion of any such phase of the Project. (b) Districts. The Districts' Service Plans establish the scope of the Districts' authorized activities and shall not be construed to constitute an obligation of the Districts to cause the development of any particular Public Improvements, or to provide any particular services or to perform any other function for which the Districts have authorization, nor shall such Service Plans be construed to create any obligation of Master Developer or any Landowner to provide any Public Improvements, any services or to otherwise pay any monies or perform any actions on behalf of or for the benefit of the Districts. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements, nor shall any District have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Public Improvements. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements pertinent to any such phase, notwithstanding the development or non - development of any Public Improvements for any other phase, and no District shall have any liability to the Town or any other party arising under this Development Agreement for not developing all or any portion of the Public Improvements pertinent to any such phase of the Project. The foregoing shall not be construed to relieve any District of any obligation established pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a District as contemplated in Section 3.2(a). (c) Construction and Interpretation. For purposes of this Section 2.5 references to Master Developer, Landowners and the Districts shall be construed to include their respective employees, agents, members, officers, directors, shareholders, consultants, advisors, successors, assigns and similar individuals or entities. 2.6 Compliance with General Regulations. Except as otherwise provided in the Development Plan, the establishment of Vested Property Rights under this Development Agreement shall not preclude the application on a uniform and non - discriminatory basis of Town ordinances and regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Original Effective Date or as amended from time to time), and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations existed on the Original Effective Date or may be enacted or amended after the Effective Date; provided, however, that Town ordinances and regulations newly enacted or amended after the Original Effective Date shall not directly or indirectly have the effect of adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any Landowner's Vested Property Rights. No Landowner shall be deemed to have waived its right to oppose the enactment or amendment of any such ordinances and regulations. 12 1044033.12 ARTICLE 3 PUBLIC IMPROVEMENTS; DEVELOPMENT STANDARDS; EXACTIONS 3.1 Design Review. As contemplated by the Original Agreement and as more particularly described in the PUD Guide, the Design Review Board has been established (and, as required by the Original Agreement, includes a member designated by the Town's Planning and Zoning Commission), the Design Covenant has been Recorded and the Design Review Guidelines have been promulgated. During the Term, the Design Review Board shall continue to consist of not more than five (5) members, one (1) of whom shall be a member of the Town's Planning and Zoning Commission designated by the Town from time to time and the remainder of whom shall be appointed as provided in the governing documents of the Design Review Board. The Design Covenant shall govern matters related to use and development of all or any part of the Property. Where any conflict between the Design Review Covenant and the Development Plan may occur, the most restrictive provision shall govern. The Design Review Board shall refer to the Town's Planning and Zoning Commission, for comment only and not for approval or disapproval: (A) all development proposals submitted to the Design Review Board for portions of the Property located south of Interstate 70; (B) all portions of the Property located north of Interstate 70 other than Planning Areas K and RMF -1 (with respect to which the Design Review Board shall have no obligation to refer to the Town's Planning and Zoning Commission); and (C) all proposed amendments to the Design Covenant. At Master Developer's option, separate design review board(s) may be established with respect to Planning Areas RMF -1 and K. Such separate design review board(s), if any, created for Planning Areas RMF -1 and K shall not be required to include any Town official as a member. 3.2 Allocation of Public Improvement Obligations. Except as otherwise expressly set forth in this Development Agreement, the timing of the design, construction and financing of the Public hnprovements, as well as the designation of the specific entity responsible for such design, construction and financing, will be addressed in the applicable Public Improvement Agreernent(s) as development of the Project takes place in conjunction with the processing of the applicable Development Application (which may or may not be a subdivision application). The Public Improvement obligations described in this Development Agreement are intended to be allocated among, as applicable, the Districts, Master Developer, a Developer and /or an Applicant based on the relationship between the particular Public Improvement(s), the Site owned by the particular Developer and /or Applicant, and the nature of the development occurring on the Site. This Development Agreement does not specifically allocate such Public Improvement obligations (with the exception of the Tank Project, as provided in Section 5.5(b)), it being the Parties' intent that the allocation will be set forth in a Public Improvement Agreement executed in connection with the processing and approval of the applicable Development Application. Public Improvements for which a District does not undertake to finance the design, construction, maintenance and operation shall be undertaken by the applicable Developer and /or Applicant. All such Public Improvements, whether undertaken by a District or undertaken by a Developer and /or Applicant, shall be undertaken and provided in accordance with the teens and conditions of the applicable Public Improvement Agreement executed in connection with approval of the pertinent Development Application (provided that no Public Improvement Agreement shall be required for the Tank Project). 13 104403112 (a) Role of Districts. Subject to the availability of funds therefor, District board of directors authorization, the terms and conditions of this Development Agreement, the Districts' respective Service Plans and state law, and in consideration of the Town's performance of its obligations under this Development Agreement (specifically including but not limited to the Financing Plan), the Districts may from time to time (without obligation to do so arising under this Development Agreement except with respect to the Tank Project, as provided in Section 5.5(b)) undertake to finance the design, construction, maintenance and operation, as applicable, of the Public Improvements as and when reasonably needed to support development of the Project. References to Master Developer, EMD, Developer Affiliates, Developers, Landowners or Applicants in the context of the Public Improvement obligations addressed in this Development Agreement will be construed to mean and include by reference the applicable Districts to the extent particular Districts have undertaken such obligations pursuant to the terms of a Public Improvement Agreement as contemplated in this Development Agreement. This Development Agreement will not be construed as creating an implied obligation for the Districts to finance or construct any particular Public Improvements prior to such District's execution of a Public Improvement Agreement pursuant to which the applicable District undertakes specific obligations regarding specific Public Improvements. Any obligation undertaken by a District pursuant to this Section 3.2 shall not be construed to constitute a multiple fiscal year obligation of such District, but shall be subject to annual budget and appropriation unless otherwise agreed to in writing by such District. (b) Assurance of Completion. The Applicant for any Development Application submitted after the Effective Date will provide an improvement guarantee assuring completion of the Public Improvements as required by the Municipal Code as then in effect (to the extent not inconsistent with an express provision of this Development Agreement or the PUD Guide), and as more particularly described in the applicable Public Improvement Agreement to be executed in connection with future Development Application approvals. 3.3 Public Roads and Access. (a) General. Access, ingress and egress to, from and within the Project shall be provided as generally described in the Development Plan. As generally described in Recital K, prior to the Execution Date TCMD has fully performed all road construction obligations specifically required pursuant to the Original Agreement. The PUD Master Plan graphically depicts the alignments of existing perinanent roads, the aligmments of existing temporary roads, and potential conceptual alignments of some future roads. Subject to the availability of District Revenues not pledged or otherwise encumbered by the obligations of the Districts as set forth herein or under any debt instruments contemplated herein, one or more of the Districts may (as contemplated by and subject to the conditions described in Section 3.2(a)) undertake to finance and /or construct the public roads within the Project. All public roads, whether constructed by or on behalf of a District or a Developer, shall be constructed in accordance with the standards set forth in the PUD Guide and shall be Dedicated to and Accepted by the Town in accordance with Section 3.3(b). Nothing set forth in the preceding sentence shall prohibit or limit a Landowner's right to construct and maintain private roads, or to construct and Dedicate public roads to the Town or to a District (subject to the availability of sufficient District Revenues to maintain such public roads). 14 1044033.12 (b) Dedication; Acceptance and Maintenance of Public Roads and Rights-of- Way. Subject to the specific terms and conditions set forth in Article 4 and Article 6: (i) Existing Public Roads. Contemporaneously with the Effective Date, TCMD conveyed to the Town all of TCMD's right, title and interest in and to the existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder Avenue), together with the road improvements, streetscape improvements, landscape improvements and drainage improvements located within such rights -of -way. The Town granted Final Acceptance of all such roadways and related improvements for maintenance without reservation or condition, whether related to warranty periods or otherwise, and released all warranty collateral related thereto. (ii) Main Street. As of the Execution Date, the temporary alignment and road surface of East Beaver Creek Boulevard within Lot 1 (re- designated in the PUD Guide as Main Street) is located within the easement established by the Easements with Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8, 2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as each pertinent phase of the final alignment thereof is completed as more specifically set forth in the PUD Guide. Dedication of each phase of the pennanent aligmnent of Main Street shall be accomplished pursuant to clause (iii) below. During the period prior to Dedication of each phase of the permanent alignment of Main Street, the Town is and shall remain responsible for snow removal, road maintenance, streetscape maintenance and landscape maintenance within the current East Beaver Creek Boulevard easement. The Parties acknowledge that no streetscape or landscape improvements are located within the East Beaver Creek Boulevard easement as of the Execution Date, but that the Town shall maintain such streetscape or landscape improvements, if any, that may be installed after the Execution Date. Asphalt overlays shall not be required prior to Dedication of each phase of Main Street and, as set forth in Section 4.2(d), the Town shall undertake responsibility for asphalt overlays for each phase of Main Street only after Dedication of each such phase of Main Street. From and after Dedication of each phase of the permanent alignment of Main Street, the teens and conditions of clause (iii) below shall apply to such Dedicated phase. (iii) Future Public Roads and Rights -of -Way. Future public road rights -of -way (including future phases of the pennanent alignments of Main Street and East Beaver Creek Boulevard) shall be Dedicated to the Town by Recording of the pertinent final plat or, if acceptable to the Town, by Recording of a special warranty deed in the form attached as Exhibit B of this Development Agreement upon generally the same teens and conditions as the conveyances referenced in clause (i) above. Upon completion, of construction, Public Improvements located within public road rights -of -way shall be Dedicated to the Town by bill of sale. Concurrently with the Dedication, the Town shall grant Preliminary Acceptance of the pertinent property interests and Public Improvements. Upon expiration of the warranty period and resolution of any warranty matters that might arise during the Preliminary Acceptance period, the Town shall grant Final Acceptance. With respect to the primary road providing access to Planning Area K, the Town and Master Developer acknowledge it is intended that the road will be a public road from the Post Boulevard roundabout located 15 1044033.12 north of Interstate 70 to a point approximately adjacent to the northwest corner of Lot 73 as indicated on the PUD Master Plan in effect as of the Effective Date, and will be a private road from that point through the remaining area of Planning Area K. The final point of demarcation will be established at the timing of final subdivision plat. The Town shall have no maintenance or snow removal responsibility for the portion of such road that is private. (iv) Sidewalk Snow Removal. The Town's obligation pursuant to this Development Agreement to remove snow from sidewalks shall be limited to Post Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment existing as of the Execution Date and the future final Main Street alignment), Swift Gulch Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along public roads shall be in accordance with generally applicable standards set forth the Municipal Code (as amended from time to time) and applied uniformly throughout the Town. (c) Phased Road Improvements. (i) Generally. All roads, including Main Street and East Beaver Creek Boulevard (as such roads are identified on the PUD Master Plan), may be developed in phases in accordance with the road standards set forth in Exhibit F of the PUD Guide and as warranted based on the applicable traffic study. (ii) Main Street. Without limiting the generality of the foregoing, construction of the final aligmment of Main Street shall consist of converting the existing alignement and road surface from temporary to permanent by the phased construction thereof in accordance with the road standards set forth in Exhibit F of the PUD Guide. (iii) East Beaver Creek Boulevard. The Town shall not require completion of East Beaver Creek Boulevard as a through road until the earlier of: (A) such time as it becomes necessary to construct a particular phase of East Beaver Creek Boulevard to provide a means of ingress to and egress from Sites within Lot 1 that are undergoing vertical development and do not otherwise have access to a public street; or (B) such time as a particular development proposal within Lot 1 requires completion of the connection in order to preclude the impact of the approved development proposal from reducing the level of service (LOS) on Main Street below a designation of "C" (estimated to be in the range of approximately 8,000 to 11,000 vehicle trips per day) as established by traffic studies to be provided by a traffic engineer or firm licensed in Colorado in connection with the particular approved development proposal. Subject to review by the Town Engineer, the north/south alignment of East Beaver Creek Boulevard within Planning Areas C and D may be established to include an interim or permanent connection to Main Street (e.g., East Beaver Creek Boulevard can connect to Main Street east of Planning Area A and either continue to the roundabout at the southeast corner of Planning Area F in an interim condition or separate from Main Street and connect to the roundabout at the northeast corner of Planning Area F in either an interim or permanent condition) so long as the easterly (roundabout at Post Boulevard) and westerly (where East Beaver Creek Boulevard enters the Project) connections depicted on the PUD 16 1044033.12 Master Plan are maintained and each segment of Main Street is maintained at not lower than LOS "C" (e.g., if the traffic studies demonstrate that LOS "C" can be maintained on the easterly segment of Main Street with an interim connection as described above, completion of the final through connection alignment of East Beaver Creek Boulevard would not be required). (d) Dry Utilities. In connection with the Dedication of any public road rights -of -way (whether by special warranty deed or by final plat), including those rights -of -way Dedicated pursuant to Section 3.3(b)(i) and subject to such reserved rights, Master Developer or the pertinent Landowner shall have the right to reserve the exclusive right to install, own, operate, maintain, repair, replace and control access to all "Dry Utilities" (as defined in the PUD Guide) located or to be located within Dedicated public road rights -of -way; provided, however, that such activities shall be coordinated with the Town and all such Dry Utilities shall be located in such a manner as to comply with Town requirements regarding separation from public utilities located or to be located within such rights -of -way. 3.4 Municipal Water; Water Rights Dedications. Certain water rights have been conveyed to, or otherwise acquired by, the Authority to be used in connection with the development of the Project and to serve uses within the Project, including some of the water rights and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to the Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights to water supplied by the Colorado River Water Conservation District (together with additional water rights, if any, Dedicated to the Town or to the Authority for such purposes after the Effective Date pursuant to Section 3.4(c), the "Water Rights "). Pursuant to and as more particularly described in the Tank Agreement: (i) as of the Effective Date, TCMD has conveyed to the Town, and the Town has thereafter conveyed to the Authority, certain interests in the Water Rights; (ii) the Water Rights conveyed to the Authority as of the Effective Date are deemed sufficient to provide potable water service up to a maximum of 106.3 acre -feet of consumptive use per year in accordance with depletion factors decreed in Case No. 97CW306; and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide the number of single family equivalents (SFE) of potable water service to the Project that is equivalent to 106.3 acre -feet of consumptive use per year, as more fully set forth in the augmentation plan approved in Case No. 97CW306. The amount of consumptive use attributable to potable water service pursuant to the depletion factors and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306 is calculated as 180.6 acre -feet per year less 74.3 acre -feet per year reserved by the Town for raw water irrigation and lake evaporation purposes [180.6 — 74.3 = 106.3]. The 106.3 acre -feet of consumptive use is referred to for purposes of this Section 3.4 as the "potable water allocation" and the 74.3 acre -feet of consumptive use is referred to herein as the "raw (non - potable) water allocation." Additionally, the Tank Agreement provides that the Town has certain obligations with respect to providing municipal water service to the Project under circumstances where the Authority fails to provide such services due to dissolution or otherwise. (a) Water Bank. Master Developer and the Town shall establish and jointly maintain a cumulative written record (the "Water Bank ") that documents: (i) the total Water Rights, stated as the total "potable water allocation" and the total "raw (non - potable) water allocation;" (ii) the specific portion of the "potable water allocation" that is assigned to particular 17 1044033.12 Sites; (iii) the specific portion of the "raw (non - potable) water allocation" that is assigned to each parcel of irrigated area or lake surface for evaporation replacement within the Property (including such raw water uses as the Town has agreed to serve pursuant to this Development Agreement and the Tank Agreement) and (iv) the "potable water allocation" and the "raw (non - potable) water allocation" remaining available to be assigned for use within the Property. In connection with each final subdivision plat for a Site (whether processed administratively or formally) or building permit (if no water allocation, or insufficient water allocation, has previously been assigned to such Site), and subject to Subsection 3.4(c), Master Developer shall designate the portion of the "potable water allocation" and the "raw (non - potable) water allocation" that is assigned for development of the Site, and concurrently with approval of the pertinent final subdivision plat (or issuance of the pertinent building permit(s)) the Water Bank shall be updated to reflect such allocation and to reflect the corresponding reduction in the "potable water allocation" and the "raw (non - potable) water allocation" remaining available for use within the Property. Lot 1 as it is configured on the Effective Date shall be exempt from the foregoing requirement, but parcels within Lot 1 that are created by further subdivision of Lot 1 for purposes of development shall be subject to the foregoing requirement. The amount of consumptive use required to service development shall be based on the estimated demand, depletion factors and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306. (b) Return of Water Rights to Water Bank. If the amount of the "potable water allocation" and the "raw (non - potable) water allocation" assigned for any particular Site exceeds the amount of the "potable water allocation" and the "raw (non - potable) water allocation" actually required to serve the Site based upon actual development and final build -out thereof (such actual "potable water allocation" and "raw (non - potable) water allocation" demand to be determined in accordance with generally applicable requirements of the Authority and in accordance with the depletion factors decreed in Case No. 97CW306), the excess and unused portion of such water allocation shall be returned to the Water Bank and the Water Bank shall be revised to reflect that such excess and unused portion of such water allocation is available for assignment and is no longer assigned to the original Site. Excess and unused water allocation amounts returned to the Water Bank shall be available for allocation in accordance with Section 3.4(a) as though such water allocation amounts had not previously been allocated from the Water Bank to serve a particular Site. The determination of excess portion of any water allocation shall be determined by the Town and subject to the approval of the Authority, pursuant to their respective generally applicable requirements, and shall be based on consumptive use of the final build -out of any Site in accordance with the depletion factors and other provisions of the decree in Case No. 97CW306. The Town may require water usage restrictions or maintenance requirements to prevent any future increase of consumptive water use above the amount determined necessary to serve the final build -out of any Site. (c) Additional Water Rights. (i) For the Property. Full build out of the Project as contemplated by the Development Plan may require in excess of 180.6 acre -feet of consumptive use. If the aggregate total Water Rights is insufficient to support full development of the Project in accordance with the decree in Case No. 97CW306 and the PUD Guide, and all available water allocations under the Water Rights have been assigned to Sites (whether IN 1044033.12 developed or undeveloped) such that there is no water allocation remaining in the Water Bank, no further development may occur within the Property unless and until, with respect to the water allocation required to support such further development: (A) additional water rights are Dedicated resulting in additional water allocation amounts being available for assignment pursuant to the Water Bank; or (B) payment is made of fees in lieu of additional water rights Dedication; or (C) previously allocated but unused water allocation amounts are re- assigned from the original Site, and /or from raw (non- potable) water uses to potable uses, and returned to the Water Bank in accordance with Section 3.4(b). Acceptance of fees in lieu of additional water rights Dedication shall be subject to the sole discretion of the Town. (ii) For a Specific Site. If the water allocation amounts assigned to a Site in connection with a Development Application are not sufficient to serve the level of development proposed in the Development Application, the Town may condition approval of the Development Application on the Applicant satisfying the water allocation requirements for the Development Application by one or a combination of. (A) obtaining Master Developer's allocation of additional water allocation amounts from the Water Bank; (B) Dedicating such additional water rights (meeting the generally applicable requirements of the Authority and the Town) as may be required to support the proposed level of development; or (C) paying such fees -in -lieu of water rights Dedication as may be required to fully satisfy the water allocation amounts requirement for the Development Application. The Dedication of additional water rights and the payment of fees -in -lieu of water rights Dedication shall be subject to review by the Town in accordance with the Municipal Code, and subject to approval by the Authority or its successor. Under such circumstances, the additional water rights Dedication or payment of fees -in -lieu shall be a condition precedent to, as applicable, issuance of the building pen-nit or Recording of the final subdivision plat. (iii) Under the circumstances addressed in the foregoing clause (i) and clause (ii), which provisions shall be strictly construed against precluding development, the Town shall have no obligation to Record a final subdivision plat or issue a building permit with respect to a particular Site unless the requisite additional water allocation amounts obligation is satisfied in accordance with this Section 3.4(c). The detennination of whether Dedication of additional water rights or payment of fees in lieu shall be in accordance with generally applicable rules and regulations of the Authority and the Town. Dedications of water rights, if required, shall be made in accordance with generally applicable Town rules, regulations and agreements with the Authority as in effect from time to time, it being acknowledged that the Town's generally applicable rules, regulations and agreements with the Authority in effect as of the Effective Date require Dedication to the Town and conveyance of such water rights by the Town to the Authority. (d) Building Permits; Moratoria. The Town shall not withhold issuance of building permits, certificates of occupancy or processing/approval of Development Applications, nor shall the Town impose or enforce any moratorium on development within the Project, on the basis of insufficient Dedication of water rights for development which does not exceed the consumptive use of the water rights that have been Dedicated pursuant to the Tank Agreement 19 1044033.12 (or which does not exceed the consumptive use of any such additional water rights that may subsequently be Dedicated or otherwise conveyed) at such time. (e) Additional Water Tanks. If TCMD, VMD, any Applicant or any other party undertakes to construct one or more water storage tanks at an elevation higher than the water storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any contrary provision of the Municipal Code (as in effect from time to time), the Town shall not require the Applicant to seek a 1041 permit and shall not require the tank site to be a legally subdivided parcel (provided the owner of the water storage tank has an easement for the operation and maintenance thereof, and further provided that the Town may require the tank site easement area to be platted at such time as the pertinent lot(s) or tract(s) within Planning Area K are platted). If construction of any such water storage tank is undertaken independent and in advance of development of the portion of the property to be served by the water storage tank, the Town shall not require execution of a Public Improvement Agreement or monetary collateral (cash escrow, letter of credit or similar mechanism) for assurance of completion of the water storage tank; provided, however, that the Town may require a bond for the purpose of ensuring erosion control, mitigation of safety hazards, fencing and other matters related to properly securing the site if construction is discontinued indefinitely prior to completion. If construction of any such water storage tank is undertaken as a condition of approval of a Development Application for development of a Site with respect to which service will be required to be provided from the to be constructed water storage tank, the Town may require construction of the water storage tank and assurance of completion thereof pursuant to the terms and conditions of a Public Improvement Agreement as otherwise provided in this Development Agreement. The Town shall have no obligation to issue a temporary or final certificate of occupancy for a habitable structure within any Site with respect to which water service cannot be provided without such water storage tank becoming operational until such time as the pertinent water storage tank becomes operational. The foregoing shall not preclude the Town from issuing a building permit prior to completion of such a water storage tank if the Town determines such action to be consistent with public health, safety and welfare under circumstances then pertaining (for example, the water storage tank is reasonably anticipated to be operational prior to completion of the improvements for which the building pen-nit is issued and the issuance of the building pen-nit is conditioned on the water storage tank becoming operational prior to issuance of a temporary or permanent certificate of occupancy). (f) Tap Fees; Town Obligations Upon Assuming AuthoritObligations. If the Town undertakes to provide water service to the Property in connection with dissolution of the Authority or otherwise, the Town shall charge water tap fees and usage charges to users within the Property on a uniform, non - discriminatory basis with other users within the Town. With respect to such water tap fees collected by the Town for providing water service to any user within the Property, the Town shall remit 100% of all such fees on a monthly basis: (A) if collected during the 2013 Bond Repayment Period, to TCMD or to VMD, as required by the 2013 Reissue Documents during the 2013 Bond Repayment Period; or (B) if collected after expiration of the 2013 Bond Repayment Period, either (1) to TCMD, or, (2) if the Town receives written notice from TCMD disclaiming an interest in all or a portion of such fees for a stated period of time and so directing the Town, the stated portion to VMD during the stated period, the stated portion to TCMD during and after the stated period, and in any event in accordance with the terms and conditions set forth in such written notice. The Town's obligation to remit such 20 1044033.12 water tap fees pursuant to this Section 3.4(f) shall be subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution. Alternatively, the Town may direct that all such users remit water tap fees directly to TCMD and or VMD in accordance with clauses (A) and (B) above. The Town expressly disclaims any right, title or interest in or to any water tap fees payable in connection with development within the Property, and acknowledges that all such water tap fees constitute District Revenues, are the property of, and shall be due and payable to TCMD and /or VMD in accordance with clauses (A) and (B) above. 3.5 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary sewer service to the Project. The topography of Planning Area K, the size of the lots contained in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and from the facilities of the Sanitation District, together with the comparative ease of servicing Planning Area K with individual septic tank and leach field systems, render all or designated areas within Planning Area K appropriate for exclusion from the Sanitation District. Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all or any part of Planning Area K, whether initiated by Master Developer or the Developer of such portion of Planning Area K. 3.6 Drainage Plans; Stormwater Management. Drainage plans and stormwater management plans required in connection with the processing of any Development Application shall be in accordance with the terins and conditions of the PUD Guide. Without limitation of the foregoing, in processing any Development Application, the Town shall incorporate the assumptions of the drainage study prepared by David Johnson for the Property with respect to reducing the calculated stormwater flows, management and detention requirements based on the mitigating effect of vegetation within the Property, and the assumptions set forth therein shall govern and control over any conflicting provisions or assumptions in the Town's drainage master plan. However, if the Town amends its drainage master plan, which amendment results in less restrictive or less burdensome provisions than set forth in the David Johnson drainage study, such less restrictive or less burdensome provisions in the Town's drainage master plan shall apply to the Property. 3.7 Land Dedications. As generally described in Recital K, prior to the Execution Date the pertinent Landowner fully performed certain land Dedication obligations specifically required to be performed pursuant to the Original Agreement, and all such Dedications shall be deemed to have been granted Final Acceptance. This Section 3.7 sets forth the sole unperformed and /or additional obligations of Master Developer, EMD, the Developer Affiliates, or any pertinent Landowner to Dedicate land (subject, however, to adjustment pursuant to Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in this Section 3.7. Accordingly, except as otherwise set forth below, during the Tenn and notwithstanding any current or future provision of the Municipal Code to the contrary (except pursuant to Section 3.9(b), if applicable), the Town shall not impose any land Dedication requirement, impact fee requirement or development exaction of any sort, except for the following, the performance of which together with prior land dedications and related exactions fully satisfies and extinguishes any dedication, impact fee and /or development exaction obligations pertaining to or in connection with development of the Project: 21 1044033.12 (a) School Site Dedication. The Original Agreement set forth certain requirements regarding the Dedication of land or cash in lieu thereof to address the impact of the Project on the school system. Pursuant to the Settlement Term Sheet, the school site provision of the Original Agreement has been modified as set forth in this Section 3.7(a) and, as of the Effective Date, Ordinance No. 06 -17 and all conditions and restrictions set forth therein are rendered legally inoperative, void and of no further force or effect. (i) Parcels to be Conveyed. The following conveyances (collectively, the "School Site Dedication ") shall constitute full satisfaction of all requirements under the Municipal Code (as in effect from time to time) and other current or future Town regulations with respect to mitigation of the Project's impact on the school system: (A) Concurrently with the Effective Date, TC -RP conveyed to the Town the approximately 3.536 acre Site designated on the PUD Master Plan as Planning Area E (i.e., Lot 3, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)). Neither TC -RP, Master Developer, TCMD, VMD, any Developer Affiliate nor any Landowner (other than the Town or a state accredited educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public hmprovements or other on -site or off -site improvements for Planning Area E, all such obligations being the sole responsibility of the Town. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area E. (B) EMD (or the Landowner at the pertinent time), shall Dedicate to the Town an approximately 3.764 acre Site within Planning Area I upon Recording of the initial final subdivision plat within Planning Area 1. Neither EMD (or the then - Landowner), TCLLC, TCMD, VMD, any Developer Affiliate, or any other Landowner (other than the Town or a state accredited educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public Improvements for the approximately 3.764 acre Site within Planning Area I. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the Planning Area I Site concurrently with Recording of the conveyance documents and no Acceptance, assurance of completion requirement or warranty period requirements shall apply. Access to the Planning Area I Site from a public street and extension of utilities and other Public hmprovements shall be addressed through the final subdivision plat process. (ii) Use Restriction. Notwithstanding anything to the contrary set forth in the Municipal Code (as in effect from time to time) or any other statute, ordinance, regulation or the like, use of the School Site Dedication parcels shall be restricted to state accredited education facilities serving grades K through 12 (or any portion of such grades). Each special warranty deed conveying a School Site Dedication parcel shall incorporate the foregoing use restriction, which use restriction shall be independently enforceable as a deed restriction and not merged into or construed to preclude enforcement of the use restriction imposed by this Section 3.7(a)(ii). Any use of the 22 10440331? School Site Dedication parcels shall be subject to prior approval by the Design Review Board, including potential future uses including but not limited to pre- school, day care, community education, cultural, and /or are classes, museum, or recreational. (iii) Form of Conveyance. Conveyance of the Planning Area I School Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, shall be without any reversionary clause, subject to all matters of Record other than monetary liens, and shall contain an express use restriction consistent with the foregoing Section 3.7(a)(ii). Conveyance of the Planning Area E School Site Dedication parcel was effected by Recording of a special warranty deed in the form attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens, and containing an express use restriction consistent with the foregoing Section 3.7(a)(ii). (iv) Additional Conditions. (A) Any use undertaken and any improvements constructed or installed within the School Site Dedication parcels shall comply with the terms of the Development Plan and shall be subject to review and approval by the Design Review Board. Prior to development of the School Site Dedication parcels for school purposes, the Town shall be responsible for installing and maintaining any improvements permitted to be made within the School Site Dedication parcels in accordance with the use restriction referenced in Section 3.7(a)(ii). After Dedication of the School Site Dedication parcels to the Town, the Town shall be responsible for controlling all noxious weeds within the School Site Dedication parcels. (B) If Eagle County School District demonstrates a need for a school site within the Project based on the impact of development within the Project, the Town, Master Developer and EMD shall use best efforts to combine the park land dedications contemplated in Section 3.7(d) with the Planning Area I School Site Dedication parcel to create a consolidated site of sufficient size to meet the reasonable needs of the Eagle County School District. The preceding sentence shall not be construed to have the effect of. (i) creating a legal right of Eagle County School District to obtain a school site within Planning Area I or any other area of the Property; (ii) creating any legal obligation of the Town, EMD, Master Developer or any Landowner or Applicant to provide a school site on Planning Area I or any other area of the Property to the Eagle County School District; or (iii) creating a legal obligation of the Town, EMD, Master Developer, any Landowner or any Applicant to combine the park land Dedication with the Planning Area I School Site Dedication parcel. Eagle County School District shall not be construed to be, and the Parties expressly intend that Eagle County School District shall not be, an Intended Beneficiary. (C) The Town may lease or convey such School Site Dedication parcels to educational districts or organizations upon such terns as the Town determines in its sole discretion provided that: (i) such lease or conveyance 23 1044033.12 shall be for nominal consideration; and (ii) such lease or conveyance shall be expressly subject to the use restriction established pursuant to Section 3.7(a)(ii) and the applicable deed restriction as contemplated by Section 3.7(a)(iii). (b) Dedication of Planning Area B. Concurrently with the Effective Date, TC -RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD Master Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)). Neither TC -RP, Master Developer, TCMD, VMD nor any Landowner (other than the Town) shall have any obligation with respect to provision of any Public Improvements or other on -site or off - site improvements for Planning Area B, all such obligations being the sole responsibility of the Town and not of AURA. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area B. Any construction of buildings or facilities or landscaping improvements on Planning Area B, or any Public Improvements required in connection with the Town's development of Planning Area B, shall be subject to prior approval by the Design Review Board. The Town may create a plan for the development and use of Planning Area B, which may be adopted by the Design Review Board, and which shall then serve as a guide for review of uses and development of Planning Area B by the Design Review Board. Any use or plan for use of Planning Area B shall allow and incorporate the ability to construct for storage and /or augmentation purposes a water feature which can provide at least 2 acre feet of water storage (which shall not exceed a total surface area of 0.6 acres, including inflow and outflow on Planning Area B). Notwithstanding the preceding sentence, the Town shall have the right to maintain and operate as public open space all or a portion of Planning Area B which is not yet developed in accordance with this Section. Pursuant to the PUD Guide, the Town shall administratively process and approve subdivision re- platting of Planning Area B to adjust the boundary of Planning Area B in connection with final development of an adjacent Planning Area. The Town shall not unreasonably deny, condition or delay final action with respect to a Development Application to administratively re -plat Planning Areas B as provided herein. Until such time as Planning Area B is developed or improvements are constructed thereupon that preclude use of Planning Area B for snow storage, the Town and Master Developer (or its assignee(s)) shall have the right to use Planning Area B for snow storage in accordance with the terms of the Revocable License Agreement. (c) Planning Areas OS -5 and OS -6. EMD (or the Landowner at the pertinent time) shall convey Planning Areas OS -5 and OS -6 to the Town concurrently with Recording of the initial final subdivision plat for Planning Area I. Neither EMD (or the then - Landowner), Master Developer, VMD nor TCMD shall have any obligation with respect to provision of any Public Improvements for Planning Areas OS -5 and OS -6. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of Planning Areas OS -5 and OS -6 concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. Such conveyance shall be by special warranty deed in the fonn attached as Exhibit B to this Development Agreement, and shall reserve to grantor (or its assigns, including a District) the right to construct a vehicle /pedestrian bridge crossing across Planning Areas OS -5 and /or OS -6 including the ability to construct and maintain bridge abutments and appurtenant roadways. Planning Areas OS -5 and OS -6 shall be conveyed without any reversionary clause, subject to all matters of Record other than monetary liens. The deed shall contain an express use restriction limiting use of the sites to open space and no other purposes 24 1044033.12 (except those uses reserved to grantor as provided above). The Town shall be responsible for installing and maintaining all improvements to be made within the open space parcels (other than those improvements grantor may cause to be installed per the reservation described above). After Dedication to the Town, the Town shall be responsible for controlling all noxious weeds within the open space parcels. Any improvements to be located within Planning Areas OS -5 and /or OS -6 shall be subject to Design Review Board review and approval. (d) Park Site Within Planning Area I, J and /or K. As determined by Master Developer in its sole discretion, Master Developer shall cause the pertinent Developer Affiliate to Dedicate, or EMD (or the Landowner at the pertinent time) shall Dedicate, 5.8 acres of park land to be located within Planning Area I, J and /or K. After Dedication, the Town shall be responsible for improving and maintaining the park lands Dedicated pursuant to this Section 3.7(d) in the Town's sole discretion with regard to timing and appropriations. Neither the then - Landowner, Master Developer, VMD nor TCMD shall have any obligation with respect to provision of any Public Improvements for, or otherwise to improve, such Dedicated park land acreage. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the park land acreage concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. The foregoing obligation may be accomplished by one or more conveyances totaling not less than 5.8 acres in the aggregate. Such conveyance(s) shall be by special warranty deed in the forin attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens. The deed(s) shall contain an express use restriction limiting use of the Site(s) to, as applicable to the particular Site, public park purposes and no other purposes, but which may include trail heads, trail connections, dog park, or natural park (i.e., wetland /natural resource protection area, hillside slopes, view planes, streambed/buffer and similar natural condition preservation areas). The Town shall be responsible for installing and maintaining all improvements to be made within the park site(s), and for controlling all noxious weeds within the park site(s). 3.8 Exactions, Fees and Pa Ments. As generally described in Recital K, prior to the Execution Date development exactions, fees and payments required to be performed and /or made pursuant to the Original Agreement were fully or partially perfonned and, to the extent partially perfonned are hereby waived and extinguished pursuant to the Settlement Term Sheet and this Development Agreement. This Section 3.8 sets forth the sole and exclusive obligations and requirements with respect to exactions, impact fees and payments required in connection with development of the Project during the Tenn (subject, however, to adjustment pursuant to Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in Section 3.7. Accordingly, and notwithstanding any current or future provision of the Municipal Code (except pursuant to Section 3.9(b), if applicable), the Town shall not impose exactions or fees upon development within the Property for impacts related to schools, fire protection, emergency services, municipal facilities, public transit, municipal parks or open space which are in addition to the exactions, fees and payments described in this Development Agreement and /or the PUD Guide, or which have been previously paid or perfonned under the Original Agreement (such exactions, fees and payments fully satisfying and extinguishing any impact fee and /or development exaction obligations in connection with development of the Project). 25 1044033.12 3.9 Other Generally pplicable Taxes, Assessments and Fees. (a) General. All current and future taxes, and all current and future assessments and fees (other than the exactions, development impact fees and payments addressed by Section 3.8), imposed by the Town on a uniform and non - discriminatory basis within the Town and not expressly addressed in this Development Agreement or in the PUD Guide shall apply in the same manner and to the same extent within the Property as within the rest of the Town. (b) Density Increases by PUD Guide Amendment. The land dedication obligations set forth in Section 3.7 and the exaction, fee and payment obligations set forth in Section 3.8 are, as stated in such provisions, the sole and exclusive obligations with respect to such matters; provided, however, that such obligations are predicated on the maximum residential and commercial densities permitted by the PUD Guide in effect as of the Effective Date (including the minimum residential and commercial densities set forth therein for Planning Area I). Accordingly, to the extent the PUD Guide in effect as of the Effective Date is amended after the Effective Date to increase the maximum commercial and /or residential densities permitted by the PUD Guide (as so amended), the Town shall have the right to evaluate the impacts of such increased densities and to condition approval of such PUD Guide amendment on the imposition of additional land dedication and /or exaction, fee or payment obligations that correspond to the increment of increased density approved in such amendment. The additional requirements, if any, shall be based on the Municipal Code requirements in effect as of the submittal date of the pertinent PUD Guide amendment as applied only to the increment of increased density approved in such PUD Guide amendment. By way of example, if a PUD Guide amendment is approved which increases the maximum commercial density within the Project by 100,000 square feet, the maximum additional obligation with respect to matters addressed in Sections 3.7 and 3.8 shall be limited to what would be required to mitigate 100,000 square feet of commercial density under the Municipal Code requirements in effect on the submittal date of the PUD Guide amendment application. With respect to Planning Area I, any future PUD Guide amendment which establishes the minimum residential and commercial densities stated in the PUD Guide in effect as of the Effective Date shall not result in the imposition of any additional obligations with respect to matters addressed in Sections 3.7 and 3.8, but any amendment which has the effect of approving commercial or residential densities for Planning Area I in excess of the minimum densities stated in the PUD Guide in effect as of the Effective Date may require additional mitigation for the increment of increased density in the manner described above. 3.10 Prioritized Capital Projects. The Parties have identified the subset of Public hnprovements set forth in Exhibit D (the "Prioritized Capital Projects ") as having particularly high value in supporting and encouraging the types of development within the areas of the Project that would produce relatively greater District Revenue and Municipal Payment revenues, at relatively less Public Improvement cost, and at a relatively earlier point in'the development sequence. It is the Parties' intent that, subject to market conditions and the terms and conditions of this Development Agreement (including but not limited to Sections 2.5 and 3.3), priority will be placed on supporting and encouraging investment in the Prioritized Capital Projects in order to support and encourage development to occur within Planning Areas A, C, D, F and J such that the Supplemental Bond capacity available pursuant to the Financing Plan is utilized to encourage 26 1044033.12 development that has a relatively greater probability of producing relatively greater increases in District Revenue and Municipal Payments. Accordingly, unless the Town and Master Developer agree otherwise in writing, the following requirements shall be binding: (a) East Beaver Creek Boulevard. Until such time as AURA has fully funded completion of East Beaver Creek Boulevard as contemplated by Section 6.7(g)(i) or such earlier time as East Beaver Creek Boulevard has been completed as a through road, $6,200,000 (adjusted as stated below) of the Credit PIF Cap shall be reserved to fund completion of East Beaver Creek Boulevard in its permanent alignment in the manner contemplated by and subject to the terms, conditions, phasing, design standards and construction timing obligations set forth in the PUD Guide and Sections 3.3(b)(iii) and 3.3(c) of this Development Agreement. The foregoing amount shall be reduced from time to time in an amount equal to the amount of Capital Project Costs (whether utilizing Credit PIF Revenues or TIF Revenues) for each phase of East Beaver Creek Boulevard that is granted Preliminary Acceptance, excluding from such reduction the Capital Project Costs, if any, attributable to any interim connection that is not incorporated into the permanent alignment of East Beaver Creek Boulevard as a through road pursuant to Section 3.3(c)(iii). Any portion of the foregoing reserved amount that has not been utilized upon completion of the penmanent aligmment of East Beaver Creek Boulevard as a through road, or upon a determination that the LOS requirement stated in Section 3.3(c)(iii) has been satisfied upon full build -out of Lot 1, shall be released and made available to fund other Cap Amounts as provided in Section 3.10(c). (b) Other Reserved Funds. Of the total Supplemental Bond capacity available under the Credit PIF Cap, a total of $16,843,441.44 (inclusive of the $6,200,000 reserved pursuant to Section 3.10(a)) shall be reserved to fund Capital Project Costs incurred in connection with construction of the Prioritized Capital Projects. (c) Balance of Supplemental Bond Capacity. The Districts may utilize the balance of the Supplemental Bond Capacity available under the Credit PIF Cap (after reservation and utilization of the funding capacity as described in clauses (a) and (b) above) to fund other Cap Amounts, with the prioritization of the Capital Projects so funded detennined in the applicable District's discretion (but subject to prioritization requirements set forth in any facilities funding agreement as in effect from time to time) and subject to the particular District having been assigned the right to receive and utilize such Credit PIF Revenues pursuant to the PIF Covenants and any applicable agreement regarding the assignment of such Credit PIF Revenues. 3.11 Landscaping/Visual Mitigation for Hurd Lane /Eagle Bend. In order to provide off -site mitigation for the benefit of the residents of Hurd Lane and Eagle Bend, Master Developer will, subject to receiving the right -of -way license or other fonn of approval from the Town and as otherwise subject to the terms and conditions of this Section 3.11, cause the following to be installed, in locations mutually determined by Master Developer and the Town, within the Hurd Lane right -of -way (which is owned by the Town): (i) 75 each of 10' Colorado Spruce Trees (either Blue or Green); (ii) 55 each of 6 -7' Lilacs; and (iii) Irrigation — Drip poly tubing with three emitters per plant. Master Developer will be responsible for the cost of the planting materials, delivery of same to the site, labor and equipment for planting of the plant materials, and for parts and installation of the irrigation system. Installation will be undertaken 27 1044033.12 during the planting season in the spring of the year following the Effective Date. The Town will be solely responsible, at its sole expense, to provide the water tap(s) and water rights (from the Town's water rights inventory) for irrigation of the plant materials, any vaults(s) required for the tap connection, for irrigation of the plant materials, and for maintenance and replacement of the planted materials commencing on the day of installation. Additionally, the Town shall have the obligation to provide a license or other form of legal right as may be necessary to enable Master Developer to perform such plantings, and Master Developer shall have no obligation to perform such plantings unless /until the Town has issued the appropriate license or similar form of approval to perform the work in the right -of -way. From and after the initial installation, Master Developer shall have no further obligation with respect to the plant material or irrigation system, such obligations being fully assumed by the Town as of the date of installation. Master Developer may satisfy this obligation with the Town's consent by tendering a cash payment to the Town in an amount acceptable to the Town for the sole purpose of purchasing and installing the landscaping/visual mitigation described herein, and if the Town receives and accepts such cash payment then the Town shall provide to Master Developer a written acknowledgement and release that Master Developer has satisfied in full its obligations in this Section 3.11. ARTICLE 4 MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA 4.1 Municipal Services. The Town shall have the ongoing responsibility and obligation to provide all municipal services to the Property and the Project including, without limitation, police protection, snow removal and road maintenance, maintenance (including repair and replacement) of streetscape improvements and landscaping within public road rights -of -way, bus transportation services, asphalt overlay of public roads, building code enforcement and other administrative services equivalent (except as expressly modified or qualified by Sections 3.3(b), 3.4, 4.2(c) and 4.2(d)) to those services provided to any other area of the Town on a uniform and non - discriminatory basis (collectively, the "Municipal Services "). The Parties acknowledge the Town provides public transit services as part of the Municipal Services based on a variety of factors including demand, the Town's transit planning policies, funding availability and similar considerations and, accordingly, does not provide public transit service within all areas of the Town or make a representation or commitment regarding when and to what extent the Town may provide public transit service within the Property. As such, the Town shall not deny any Development Application based on a lack of transit services or the inability of the Town to provide transit services, and no approval of a Development Application shall be conditioned upon any party or entity other than the Town providing transit services. The Town's receipt of Municipal Payments during the Term as generally described in Section 6.5, together with the additional revenues described in Section 6.16, is in consideration of the Town's providing Municipal Services. The Municipal Payments and additional revenues described in Section 6.16 shall be conclusively deemed and construed to fully offset the Town's cost of performing its Municipal Services obligations pursuant to this Development Agreement, such that no Party shall assert or claim that such Municipal Payments revenues are either inadequate or excessive, no Party shall assert or claim any right to an increase in or a reduction of such Municipal Payments revenues, and the Town shall not withhold, suspend or terminate the provision of any of the Town's Municipal Services obligations pursuant to this Development Agreement. After expiration of the Term, the Town shall continue to provide Municipal Services in accordance with the Town's general obligation to provide municipal services throughout the Town. 1044033.12 4.2 Town Obligations. Without limiting or negating any Town obligation set forth in another Article of this Development Agreement or narrowing by implication the Town's obligations pursuant to Section 4. 1, the Town shall perform the following obligations: (a) Tax Credit. As contemplated by the Original Agreement and codified at Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the Execution Date), the Town has established the Tax Credit. During the Term, the Town shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Tax Credit from attaching to Taxable Transactions occurring within the Project, including but not limited to enacting any amendment to Sections 3.08.035, 3.12.065 and /or 3.28.075, or to any other provision of the Municipal Code, that would have such effect. (b) Cooperation in Implementation of Add -On RSF. As more particularly set forth in Section 6.5(d), the Town will cooperate with the PICs to effect the implementation of the Add -On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating with the PICs in meetings with representatives of such retailers regarding the nature and purpose of the Add -On RSF; and (iii) such other steps and actions as the PICs may request from time to time. (c) Assumption of TCMD Maintenance Obligations. From and after the Effective Date, the Town shall assume and be responsible for the performance of all of TCMD's and VMD's current and future maintenance, repair and replacement obligations with respect to Public Improvements (including but not limited to all Dedicated and Accepted public road right -of -way landscaping, Nottingham Dam, Nottingham -Puder Ditch, irrigation systems and water wells, the wet well located within PA -F, tree replacements and, subject to Section 3.3(b)(iv), snow removal). The Town shall have sole discretion to determine the appropriate maintenance of Nottingham Dam, which shall include but is not limited to maintenance, repair, replacement, improvement, expansion, decommission, removal and deferral of any activity. Notwithstanding the forgoing, TCMD and /or VMD shall retain responsibility to cause the following obligations to be performed utilizing District Revenues available to them for such purposes: (i) Parking Structures. Maintenance of the existing Traer Creek Plaza public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 (identified as "Unit 1" or the "Parking Unit" in the Condo Plat Map Recorded on the Effective Date) and, except to the extent the Town, TCMD and /or VMD otherwise agree in writing, any additional public parking facilities or structures that TCMD, VMD or another District may construct in the future. (ii) Lot 2 Internal Landscaping. Any landscaping maintenance obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 to the extent arising from a District's status as owner of the Traer Creek Plaza public parking structure located therein (identified as "Unit 1" or the "Parking Unit" in the Condo Plat Map Recorded on the Effective Date). wt 1044033.12 (iii) Tract E. Maintenance of the park and flag pole located within Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007. (d) Asphalt Overlays. Subject to the terms and conditions of the Asphalt Overlay Agreement and Section 6.6, the Town shall perform asphalt overlays for all Dedicated public roads located in the Project subject to the following terms and conditions: (i) Prior to Termination of Joint Funding. Until the shared funding contributions terminate pursuant to Section 6.6(b): (A) The Town shall commence overlays on Dedicated roads within the Project at such time as jointly determined necessary by the Town and TCMD. (B) As more particularly set forth in the Asphalt Overlay Agreement (including but not limited to Section 5(b) thereof regarding deemed consent under certain facts), TCMD and the Town each must provide written approval prior to the release of any funds from the Asphalt Overlay Account. (C) The Town's obligation to perform asphalt overlays shall be limited to the amount accumulated within the Asphalt Overlay Account. (D) The Town's obligation to deposit funds into the Asphalt Overlay Account shall be limited to the portion of the Municipal Payments the Add -On RSF Collection Agent deposits on behalf of the Town pursuant to Section 5.2(c), and the Town shall have no obligation to contribute funds from any other source. (ii) After Termination of Joint Funding. From and after the date upon which the shared funding contributions terminate pursuant to Section 6.6(b): (A) The Town shall be solely responsible for all costs of asphalt overlays for Dedicated public roads in the Project. (B) The Town shall schedule and perform such asphalt overlays in a manner materially consistent and commensurate with other public roads in the Town having similar characteristics in terms of traffic volume, age of road surface and similar factors. (e) Easement for Access to Planning Area I. As of the Execution Date, the Town has acquired fee title to the Forest Service Village Parcel. The Town agrees and covenants that the Town shall provide consent, as the owner of the Forest Service Village Parcel, to EMD (or to the then - Landowner of Planning Area I) to submit a subdivision application for the Forest Service Village Parcel to plat and dedicate a public road right -of -way and to construct a public road in accordance with the applicable procedures and standards set forth in the PUD Guide and the Municipal Code. The Town has executed the Covenant and Temporary Easement Agreement in the form set forth in Exhibit C and shall cause the Covenant and Temporary Easement 30 1044033.12 Agreement to be Recorded on the Effective Date (or as soon thereafter as practicable) and prior to the Town Recording any conservation easement or any other real estate instrument which may limit the ability to plat a public road right -of -way or construct a public road. The Covenant and Temporary Easement Agreement shall run with the land and any conveyance or grant by the Town of any interest in the Forest Service Village Parcel shall be expressly subject to the Covenant and Temporary Easement Agreement. The Town, as owner of the Forest Service Village Parcel, shall cooperate with EMD (or the then - Landowner of Planning Area I) with respect to establishing the alignment and platting of the right -of -way for the public road over the Forest Service Village Parcel. Construction, Dedication and Acceptance of the public road over the Forest Service Village Parcel shall be pursuant to the pertinent Public Improvement Agreement and the Covenant and Temporary Easement Agreement shall terminate upon Final Acceptance of the pertinent Public Improvements on the Forest Service Village Parcel. Should the Town not have acquired the Forest Service Village Parcel prior to such time as access is needed to commence the process for constructing an access road to Planning Area I, the Town agrees to acknowledge, confirm and represent to the owner of the Forest Service Village Parcel that the PUD Master Plan approved by the Town depicts a road crossing the Forest Service Village Parcel to provide access to Planning Area I. (f) Service Plans. The Town has adopted Ordinance No. 12 -10 which amends Chapter 18 of the Municipal Code to state that certain provisions concerning material modification do not apply to TCMD and VMD. During the Term, the Town shall maintain the foregoing amendment to Chapter 18 of the Municipal Code in effect without modification, shall not take any action to explicitly or implicitly repeal, reinstate, alter or re- impose those provisions of Chapter 18 of the Municipal Code from which TCMD and VMD were exempted by operation of Ordinance No. 12 -10, and shall not impose other regulations which would have the effect of establishing definitions, requirements or procedures concerning the determination of material modification as applied to TCMD and VMD that are inconsistent with, more rigorous than or otherwise expand the scope of such determination as set forth in Colorado statues as may be amended from time to time. (g) Urban Renewal. If it is determined that Lot 1 will be included within an urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in accordance with Section 6.7, the Town shall, utilizing all authority legally available to it as a home rule municipality under Colorado law, take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7. 4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in accordance with Section 6.7, AURA shall take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7 and the related obligations set forth in Section 6.17. 31 1044033.12 ARTICLE 5 OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND DEVELOPER AFFILIATES 5.1 Obligations of TCMD and /or VMD. Without limiting or negating any TCMD or VMD obligation set forth in another Article of this Development Agreement, TCMD and /or VMD, as applicable, shall perform the following obligations: (a) Asphalt Overlay. TCMD and /or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period) shall perform the funding obligation with respect to the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iii). (b) Notice of Financings. TCMD and VMD shall give to the Town forty -five (45) days' prior written notice of their respective intent to finance and /or construct any Capital Projects utilizing Supplemental Bonds. (c) Add -On RSF. TCMD and VMD shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add -On RSF. TCMD and VMD will cooperate with the PICs to effect the implementation of the Add -On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating in meetings with representatives of such retailers regarding the nature and purpose of the Add -On RSF; and (iii) such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, neither TCMD nor VMD shall take any action to modify, reduce, terminate, suspend or otherwise prevent the Add -On RSF from attaching to applicable retail sales transactions occurring within the Project. (d) Utilization of Credit PIF Revenues. During the Term, TCMD and VMD shall utilize Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a) and shall apply Credit PIF Revenues in the priority set forth in Sections 6.9(b), 6.9(c) and 6.9(d). 5.2 Obligations of PICs. (a) Credit PIF. During the Tenn, the PICs shall take all legally available actions to maintain the Credit PIF in effect and shall take no action to modify, tenninate, suspend or otherwise interfere with TCMD's and /or VMD's right to receive and utilize their respective portions of the Credit PIF Revenues for the purpose of performing their respective obligations pursuant to this Development Agreement. (b) Add -On RSF. Concurrently with the Effective Date, the board of directors of each PIC has caused the Recording of an amendment to the respective PIF Covenants having the effect of imposing the Add -On RSF. In order to effectuate the Parties' intent regarding the collection and remittance of the Add -On RSF Revenues, each PIC, the Town and the Add -On RSF Collection Agent have executed and legally entered into an Add -On RSF Collection Services Agreement. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, each PIC shall: 32 1044033.12 (i) Collection of Add -On RSF. Pursuant to its authority under and in accordance with the terms and conditions of the PIF Covenants, take all legally available actions to maintain the Credit PIF in effect, continue to impose the Add -On RSF and undertake to cause the collection and remittance of the Add -On RSF Revenues by or to the Add -On RSF Collection Agent for disposition in accordance with the applicable Add - On RSF Collection Services Agreement and the terms and conditions of this Development Agreement. (ii) Remittance of Municipal Payments. (A) Undertake to cause the Add -On RSF Collection Agent to remit to the Town all Municipal Payments as and when due pursuant to the terms and conditions of the applicable Add -On RSF Collection Services Agreement and this Development Agreement. (B) Take no action to modify, terminate, suspend or otherwise interfere with the Town's right to receive and utilize the Municipal Payments in the manner and for the purposes authorized pursuant to this Development Agreement and the applicable Add -On RSF Collection Services Agreement. (c) Asphalt Overlay Account. As more particularly set forth in the Add -On RSF Collection Services Agreement, the PICs (jointly with the Town) shall cause the Add -On RSF Collection Agent to deposit the designated portion of the Municipal Payments into the Asphalt Overlay Account on behalf of the Town as follows: (i) Initial Five Years. Commencing in 2014 and continuing through and including November 1, 2018, the Add -On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by the Add -On RSF Collection Agent. (ii) Subsequent Years. Commencing in 2019 and continuing through and including the date on which termination occurs pursuant to Section 6.6(b), the Add -On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by the Add -On RSF Collection Agent. (iii) Post - Termination. From and after the date on which termination occurs pursuant to Section 6.6(b), the PICs (jointly with the Town) shall cause the Add - On RSF Collection Agent to remit all Municipal Payments directly to the Town as otherwise provided in the Add -On RSF Collection Services Agreement and in accordance with the terms and conditions of Section 5.2(b). 33 1044033.1? 5.3 Obligations of Master Developer. Without limiting or negating any Master Developer obligation set forth in another Article of this Development Agreement, Master Developer shall perform the following obligations: (a) Asphalt Overlay. Master Developer shall perform its obligations with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iv). (b) Conveyance of Park Site in Planning Areas I, J and /or K. Pursuant to Section 3.7(d), Master Developer shall cause the then- current Landowner to convey to the Town such sites within Planning Areas I, J and /or K as may be determined necessary or desirable in satisfying such obligation. (c) Add -On RSF. Master Developer shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add -On RSF. Master Developer will cooperate with the PICs to effect the implementation of the Add -On RSF with respect to existing retail businesses within the Project, including but not limited to assisting in the coordination and implementation of reporting forms, meetings with representatives of such retailers regarding the nature and purpose of the Add -On RSF and such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, Master Developer shall take all legally available action to cause the PICs to impose, collect and remit the Add -On RSF as required pursuant to this Development Agreement, and Master Developer shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add -On RSF from attaching to applicable retail sales transactions occurring within the Project. (d) Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will be included within one or more urban renewal areas, Master Developer shall take such steps, and cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s), subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be construed to constrain any Landowner from pursuing any property tax appeal proceeding or change in tax classification of any portion of the Property, nor shall it be construed to require any Landowner to cause or consent to a change in tax classification of any portion of the Property. (e) LandscapingNisual Miti ag tion. Master Developer shall perfonn its obligations with respect to landscaping and visual mitigation as set forth in Section 3.11. 5.4 Obligations of EMD. Without limiting or negating any EMD obligation set forth in another Article of this Development Agreement, EMD shall perform the following obligations: (a) Conveyance of School Site in Planning Area I. Pursuant to Section 3.7(a)(i)(B), EMD or the then - current Landowner shall convey to the Town an approximately 3.764 acre Site within Planning Area I for school purposes. 34 1044033.12 (b) Potential Combination of Park and School Sites. EMD or the then - current Landowner shall undertake the efforts contemplated pursuant to Section 3.7(a)(iv)(B) regarding a potential consolidated school /park Site within Planning Area I. (c) Conveyance of OS Tracts. Pursuant to Section 3.7(c), EMD or the then - current Landowner shall convey to the Town the parcels designated in the PUD Master Plan as OS -5 and OS -6. (d) Conveyance of Park Site in Planning Area I. Pursuant to Section 3.7(d), EMD or the then - current Landowner shall convey to the Town such sites within Planning Area I as may be determined necessary or desirable in satisfying such obligation. 5.5 Obligations of TC -RP. TC -RP shall perform the following obligations: (a) Add -On RSF. Concurrently with the Effective Date, TC-RP, in its capacity as the "declarant" with respect to the PIF Covenants has caused to be recorded amendments to the PIF Covenants to implement the Add -On RSF. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, TC -RP shall take all legally available action to cause the PICs to impose, collect and remit the Add -On PIF as required pursuant to this Development Agreement, and TC -RP shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add -On RSF from attaching to applicable retail sales transactions occurring within the Project. (b) Tank Project Financing. TC -RP shall provide financing for the construction and completion of the Tank Project (together with any refinancing thereof, "Tank Project Financing ") according to the following terms: (i) Funding of Tank Project Financing. TC -RP shall provide sufficient funds for completion of the Tank Project as and when required pursuant to and otherwise in accordance with the terms and conditions of the Tank Agreement. (ii) Reimbursement From Annual Debt Service Obligation. In accordance with the terms and conditions of the Pledge Agreement, the Districts shall utilize the Annual Debt Service Obligation (in the amount of $500,000 per year for a period of thirty (30) years commencing on, or promptly thereafter as may otherwise be set forth in the Pledge Agreement, the date the Authority permanently rescinds the moratorium on issuance of water taps pursuant to the terms and conditions of the Tank Agreement, such date to be coincident with the date on which the Authority grants "construction acceptance" of that portion of the Tank Project that is required to be Dedicated to and accepted by the Authority) to reimburse TC-RP (and, for purposes of such reimbursement, its successors and /or assigns) for: (A) the principal amount of $7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS), which amount shall be a fixed amount that is not subject to increase or decrease, and shall constitute Capital Project Costs that are Net Proceeds and Cap Amounts; and (B) interest at the rate of 5.673% per annum, which interest payments shall constitute Bond Requirements and Non -Cap Amounts. Such obligations shall be paid in accordance with the priority set forth in Section 6.9(b)(i). TC-RP acknowledges and assumes the risk that 35 1044033.1? its obligation to fund the Tank Project pursuant to Section 5.5(b)(i) may require that TC -RP incur Capital Project Costs in a principal amount that exceeds $7,200,000. TCMD shall have no obligation to reimburse TC -RP for any Capital Project Costs incurred by TC -RP with respect to the Tank Project that exceed $7,200,000, and Credit PIF Revenues shall not be utilized to reimburse TC-RP for any such costs. TCMD and the Town acknowledge that the fixed principal amount of $7,200,000 for the Tank Project is an amount that has been verified as a reasonable and appropriate Capital Project Cost for construction of the Tank Project. Subject to Section 5.5(b)(iv), the foregoing principal amount and interest rate will accomplish full amortization of the obligation utilizing the Annual Debt Service Obligation over the thirty (30) year period of the Annual Debt Service Obligation. The Pledge Agreement shall provide "call protection" such that the Tank Project Financing obligation may not be refinanced or otherwise pre -paid utilizing Annual Debt Service Obligation (as described above) funds without TC -RP's written consent, to be granted or withheld in TC -RP's sole and unilateral discretion; provided, however, that the foregoing "call protection" shall not apply if the refinancing/pre- payment will also fully refinance /prepay any sums of principal (but not accrued interest) then owed and unpaid to TC-RP that are categorized as Deferred Reimbursements pursuant to Section 5.5(b)(iv). If the Tank Project Financing is refinanced or otherwise prepaid as provided above, any interest on a Deferred Reimbursement that has accrued and remains unpaid shall remain payable as a Non - Credit PIF Revenue Reimbursement as provided in Section 5.5(b)(iv)(B)2. (iii) Deferred Reimbursement. TCMD has agreed to pay TC -RP interest on $7,200,00 at the greater of 5.673% or the rate applicable to Additional Developer Advances as of the date on which the Authority, pursuant to the terms and conditions of the Tank Agreement, (I) grants construction acceptance for the portion of the Tank Project required to be dedicated to and accepted by the Authority, and (II) permanently rescinds the moratorium on issuance of water taps. If the applicable Developer Advance interest rate exceeds 5.673 %, then in each calendar year during which payments are due and owing from the Annual Debt Service Obligation, a difference will exist (such difference being a "Deferred Reimbursement ") between the amount of the annual debt service payment (principal and interest) paid each calendar year from the Annual Debt Service Obligation (at the rate of 5.673% per annum as fixed pursuant to Section 5.5(b)(ii)) and the amount of the annual debt service payment (principal and interest) that otherwise would have been paid in such calendar year had the interest rate been the rate applicable to Additional Developer Advances as provided above. For purposes of detennining the amount of such difference in annual debt service payments, the following calculations shall be made as of the date on which both of the Authority actions described in the foregoing clauses (I) and (II) have occurred: (A) the interest rate then applicable to Additional Developer Advances in accordance with Paragraph 6 of Exhibit F (which interest rate shall be fixed as of the pertinent date and shall not subsequently be increased or decreased during the teen of the Annual Debt Service Obligation); (B) the amount of the annual debt service payment (principal and interest) that would, using the interest rate resulting from use of the rate Irg 1044033.12 described in the foregoing clause (A), be required to fully amortize the $7,200,000 Tank Project cost over a 30 -year period; and (C) the amount by which the annual debt service payment (principal and interest) resulting from the foregoing clause (B) exceeds the $500,000 of annual debt service payment resulting from the Annual Debt Service Obligation. If the calculation set forth in the foregoing clause (C) results in a positive number, such amount shall be "capitalized" as a principal Deferred Reimbursement amount and paid, together with accrued interest, in accordance with Section 5.5(b)(iv). (iv) Repayment of Deferred Reimbursement. Payment of each Deferred Reimbursement, and payment of accrued interest on each such Deferred Reimbursement, shall be deferred until such time as TCMD (or its successors and /or assigns) has available funds (from a source other than the Annual Debt Service Obligation) to make such payments in accordance with the prioritization set forth in Section 6.9 and otherwise subject to the following terms and conditions: (A) Additional Developer Advance. Subject to Section 5.5(b)(iv)(B), each such Deferred Reimbursement amount shall initially constitute an Additional Developer Advance, shall constitute Net Proceeds that are a Cap Amount that counts against the Credit PIF Cap pursuant to Section 6.2(b)(iv), and shall be paid in accordance with the priority set forth in Section 6.9(b)(v)(B)I. Interest shall accrue and be paid with respect to such Additional Developer Advances in accordance with Section 5.5(b)(iv)(B)2. (B) Non - Credit PIF Revenue Reimbursement. Amounts (whether principal of or interest on the Deferred Reimbursement amounts) that are payable as a Non - Credit PIF Revenue Reimbursement shall not be payable from Credit PIF Revenues, shall not count against the Credit PIF Cap, and shall be paid in accordance with the priority set forth in Section 6.9(c) Additionally: 1. Conversion to Non - Credit PIF Revenue Reimbursement. TC -RP shall have the right in its sole discretion to convert any Deferred Reimbursement amount that is initially characterized as an Additional Developer Advance pursuant to Section 5.5(b)(iv)(A) to a Non - Credit PIF Revenue Reimbursement. If any amount that is initially payable as an Additional Developer Advance (pursuant to Section 5.5(b)(iv)(A)) is subsequently converted to a Non - Credit PIF Revenue Reimbursement (pursuant to this Section 5.5(b)(iv)(B)), an equal amount shall be added back to the unused portion of the Credit PIF Cap to be utilized for other Capital Project Costs. Once converted to a Non - Credit PIF Revenue Reimbursement, the obligation shall remain a Non - Credit PIF Revenue Reimbursement. 37 1044033.12 2. Interest on Deferred Reimbursement Amounts. Deferred Reimbursements (whether payable as an Additional Developer Advance or payable as a Non - Credit PIF Revenue Reimbursement) shall accrue interest at such rate(s) and shall be payable on such terms as TC -RP and TCMD agree (such interest amounts not being payable from Credit PIF Revenues). ARTICLE 6 FINANCING PLAN 6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD and /or VMD to finance and construct Capital Projects, to repay the District Debts and to be utilized for other Permitted Uses. The Tax Credit is granted in consideration of the above - stated uses of the Credit PIF. (a) Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs have assigned the Credit PIF Revenues to TCMD and /or VMD, and will further assign and /or re- assign to the Districts portions of the Credit PIF Revenues, to enable each of the Districts to utilize their respective portions of the Credit PIF Revenues for the purpose of performing their respective obligations pursuant to the Financing Plan and this Development Agreement. (b) Expiration of Tenn; Termination of Town Tax Credit. Except as otherwise provided in Section 6.1(d), the Districts' right to receive Credit PIF Revenues, the Town's right to receive Municipal Payments, and the Town's obligation to maintain the Tax Credit in effect each shall terminate concurrently with expiration of the Tenn. Upon expiration of the Tenn and termination of the Town's Tax Credit, the Town shall be entitled to impose, receive and retain all Town taxes applicable to Taxable Transactions. (c) Termination of Right to Municipal Payments. The Town's right to receive the Municipal Payments shall terminate concurrently with expiration of the Tenn and the termination of the Town's obligation to maintain the Tax Credit as set forth in Section 6.1(b). If the Declarant (as defined in the PIF Covenants) elects to continue the imposition of the Add -On RSF, in whole or in part, after discontinuation of the PICs' obligation to remit the Municipal Payments to the Town, then the Add -On RSF Revenues may be used for any purpose permitted under the PIF Covenants. Notwithstanding expiration of the Tenn, the Town shall be entitled to receive Municipal Payments amounts resulting from application of the Add -On RSF to Taxable Transactions that occurred prior to the date upon which expiration of the Tenn occurs, such amounts to be collected and remitted in accordance with the terms and conditions of the Add -On RSF Collection Services Agreement. Notwithstanding that the Tenn shall expire upon full payment of the District Debts, the terms and conditions of this Section 6.1(c) shall survive the expiration of the Tenn. (d) Continuation of Town Tax Credit. If, after the Town's obligation to maintain the Tax Credit in effect has been satisfied the Town delivers written notice to the PICs that the Town is precluded from terminating the Tax Credit, and the Town has in good faith pursued and failed to accomplish legally available alternatives for terminating the Tax Credit, 1044033.12 then for so long as the Tax Credit remains in effect the PICs shall continue to impose the Credit PIF and shall remit to the Town on a monthly basis all Credit PIF Revenues actually collected, less the costs and expenses incurred by the PICs in connection with collecting such Credit PIF Revenues. In such event, the Town shall have no right or interest in any Add -On RSF Revenues, and neither the PICs, TCMD, VMD nor Master Developer shall have any obligation to cause any Municipal Payments to be remitted to the Town. The terms of this Section 6.1(d), if applicable, shall survive termination of this Development Agreement until such time as the Town terminates the Tax Credit. 6.2 Tax Credit Use of Credit PIF Revenues. As contemplated by the Original Agreement and to partially offset the impact of the Credit PIF, the Town has established the Tax Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the Credit PIF to each Taxable Transaction. During the Tenn, the Town shall maintain the Tax Credit in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In implementation of the Settlement Tenn Sheet, the following terms specify uses of Credit PIF Revenues: (a) Permitted Uses. During the Term, the Districts may utilize Credit PIF Revenues to pay the Cap Amounts and the Non -Cap Amounts (collectively, the "Permitted Uses ") and for no other purpose. (b) Credit PIF Cap; Cap Amounts. Subject to reduction by not more than $10,000,000 (Ten Million Dollars) in accordance with Section 6.7 and as otherwise set forth below with respect to unfunded Supplemental Bond capacity, the amount of the following obligations to which Credit PIF Revenues can be pledged is $96,000,000 (NINETY SIX MILLION DOLLARS) (the "Credit PIF Cap "). Only Net Proceeds shall be counted against the Credit PIF Cap (as qualified in clause (i) below). If, as of January 2, 2040, the Net Proceeds of all Supplemental Bonds issued on or before January 1, 2040, are less than the otherwise unused portion of the Credit PIF Cap, the Credit PIF Cap will be reduced in equal amount to the unused Credit PIF Cap. The following (collectively, the "Cap Amounts ") shall count against the Credit PIF Cap: (i) $52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS), which is the original amount of the TCMD bonds refunded pursuant to the 2013 Bond Reissue. (ii) $7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS), which is the Net Proceeds of the Tank Project Financing in accordance with Section 5.5(b)(ii). (iii) The Net Proceeds of the Past Developer Advances in the amount stated in Exhibit E. (iv) To the extent issued on or before January 1, 2040: (A) the Net Proceeds of Supplemental Bonds (including Master Developer contributions to the Asphalt Overlay Account only to the extent reimbursable from Credit PIF Revenues); and (B) the amount of any Deferred Reimbursements that are an Additional Developer 39 1044033.12 Advance in accordance with Section 5.5(b)(iv)(A) (any such amounts that arise pursuant to clause (2) of Section 5.5(b)(iv) being expressly included herein notwithstanding that such amounts may arise after January 1, 2040). (v) Capital Project Costs that the Districts fund directly from Credit PIF Revenues budgeted and appropriated for such purpose. (c) Non -Cap Amounts. The following costs (collectively, the "Non -Cap Amounts ") are payable from Credit PIF Revenues but do not count against the Credit PIF Cap: (i) Payments of interest and other Bond Requirements incurred with respect to Cap Amounts and any principal of bond obligations included as District Debts which is in excess of the Cap Amounts. (ii) Except as otherwise provided in Section 6.12, the principal amount and Bond Requirements of any refunding bonds or other debt instruments issued to repay, refund and /or defease, in whole or in part, the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b). (iii) The Avon Receivable and any refunding thereof. (iv) The principal amount and interest of Town cure payments, if any, pursuant to Section 6.13, and any refunding thereof. Account. (v) Deferred Amortization, and any refunding thereof. (vi) Contributions by TCMD and /or VMD to the Asphalt Overlay (vii) The Base O &M Costs. 6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as contemplated in the Original Agreement, the PICs have imposed and shall continue for the duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. Pursuant to the PIF Covenants and in implementation of the Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to impose the Add -On RSF and to collect the Add -On RSF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. (a) Town Real Estate Transfer Tax. In full settlement of any and all claims that could be raised or asserted regarding whether the Town's real estate transfer tax and the PICs' Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal -Mart occupy their present locations within the Project as of the Execution Date or to apply to any extension(s) of such leases: (i) Existing Wal -Mart and Home Depot Leases. The Town's real estate transfer tax shall not be construed to apply to the leases pursuant to which Home .m 1044033.12 Depot and Wal -Mart occupy their present locations within the Project as of the Execution Date or to apply to the election of lessee to exercise its rights to extend such leases in accordance with the terms of the respective original lease documents as in effect on the Execution Date. (ii) Waiver of Claims. Accordingly, the Town hereby fully and irrevocably waives any and all claim or right to impose its real estate transfer tax, and the Commercial PIC hereby fully and irrevocably waives any and all claim or right to impose the Real Estate Transfer Fee, upon the existing leases (together with extensions and options to extend thereunder) for Wal -Mart and Home Depot. (iii) Applicability of Municipal Code. Contemporaneously with the Execution Date, the Town has adopted Ordinance No. 12 -11, pursuant to which it has, effective on the Effective Date, amended Chapter 3.12 of the Municipal Code to clarify various matters relating to the circumstances under which a long term lease constitutes a Taxable Transaction for purposes of triggering an obligation to pay the Town's real estate transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee shall be administered based Chapter 3.12 of the Municipal Code as amended by Ordinance No. 12 -11 (in the form and in substance as adopted contemporaneously with the Execution Date) and in effect on the Effective Date. Transactions subject to the Town's real estate transfer tax shall be subject to the Real Estate Transfer Fee, and payment of the Real Estate Transfer Fee shall result in the automatic and simultaneous application of the Tax Credit. The Real Estate Transfer Fee shall not be construed to be part of the Taxable Transaction, and the Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If, notwithstanding the foregoing, the Town is legally required pursuant to state statute to impose and collect its Real Estate Transfer Tax on the Real Estate Transfer Fee during the Tenn, the Town shall remit 100% of the Real Estate Transfer Tax revenues actually collected to TCMD (unless such revenues are subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan, and in such case to VMD). The Town's obligation to remit such revenues shall be subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution. During the Term, no amendment to Ordinance No. 12 -11 or to Chapter 3.12 of the Municipal Code shall apply to real estate transactions occurring within the Property except with the prior written consent of Master Developer. (iv) Applicability to Lease Amendments. The exemption and waivers of applicability of the Town's real estate transfer tax to long term leases executed prior to the Execution Date also shall apply to any amendment to a long term lease that is executed after the Execution Date that does not have the effect of extending the teen of such lease. With respect only to amendments or modifications of such existing leases that have the effect of extending the term for a period in excess of 25 years or adding new options to extend the term for a period in excess of 25 years: (A) the Town's real estate transfer tax shall apply to such 25 year or greater extension period to the extent required by application of Ordinance No. 12 -11; (B) the consideration upon which the Town's real estate transfer tax calculation is based shall be based only upon the lease payments (exclusive of common area maintenance, taxes, insurance and similar costs) for the period of the extension greater than 25 years (i.e., the original term of such lease, 41 1044033.12 inclusive of all extension rights thereunder, shall be disregarded such that there is no "look back" beyond the date of the extension which triggers the real estate transfer tax obligation); (C) the Tax Credit shall apply to such lease extensions with respect to which the real estate transfer tax otherwise would apply such that the PICs shall impose and collect the Real Estate Transfer Fee and the Town shall collect no real estate transfer tax as otherwise provided in this Agreement, subject to Section 6.18; and (D) the Town and the PICs shall coordinate in advance to establish an agreed upon methodology for calculating the amount and timing of Real Estate Transfer Fee payments due with respect to lease term extensions with respect to which the Town's real estate transfer tax otherwise would apply. (b) Internet Mail Order and Similar Remote Taxable Transactions. The Parties intend that retail sales transactions effected remotely should be subject to the Credit PIF and the Tax Credit whether such remote transactions are effected via the internet, by mail order or otherwise delivered into the Project such that the transaction is a Taxable Transaction. However, due to logistical and practical impediments to causing the Credit PIF and the Tax Credit to attach to such transactions or otherwise tracking and allocating such revenues, it has not heretofore been possible to effect the Financing Plan with respect to such remote transactions. The Parties further recognize that national and state laws and business practices of retailers regarding imposition of state and local sales tax are evolving and soon may require retailers to identify and report the address of the point of purchase for internet based retail sales. The Town agrees that if and when address inforination of the point of sale for retailers is available to the Town such that the Town can determine the internet based retail sales specifically attributable to points of purchase within the Village (at Avon) for which sales taxes are imposed and collected (or another mechanism is identified), the Town shall use best efforts to cooperate with the PICs to impose the Retail Sales Fee and Add -On RSF if possible or, in the alternative if imposition of such fees is not possible, the Town shall cooperate with the PICs to impose, collect and remit the Town's retail sales tax to the PICs in accordance with Section 6.18. If the Parties identify a method of implementing the intent of this Section 6.3(b), such method may be implemented without the requirement of an amendment to this Development Agreement. 6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF Covenants, which require such rates to be set from time to time during the Terin at: (a) Credit PIF Rates: (i) Retail Sales Fee. Except to the extent of an increased sales tax rate approved by the Town for a specific project as set forth in Section 6.4(b)(ii), the same rate as the corresponding Town sales tax rate as in effect from time to time. As of the Execution Date, the Town sales tax and the Retail Sales Fee each are set at the rate of 4.0 %. (ii) Real Estate Transfer Fee. The same rate as the corresponding Town real estate transfer tax rate as in effect from time to time. As of the Execution Date, the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the rate of 2.0 %. 42 1044033.12 (iii) Accommodations /Lodging Fee. Except to the extent of an increased accommodations /lodging tax rate approved by the Town for a specific project as set forth in Section 6.4(b)(ii), the same rate as the corresponding Town accommodations /lodging tax rate as in effect from time to time. As of the Execution Date, the Town accommodations /lodging tax and the Accommodations /Lodging Fee each are set at the rate of 4.0 %. (iv) Use Tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Execution Date, such use tax shall be automatically incorporated into the definition of Taxable Transaction set forth in Exhibit F without the need of any formal action by the Town. The PICs may establish and impose a building materials use fee, which shall be included in the definition of Credit PIF, corresponding to such use tax and applying to the same transactions and at the same rate as such use tax. The Town may amend its Municipal Code to reflect the automatic Tax Credit for use tax as set forth in this sub - section, but such an amendment shall not be required to implement the automatic Tax Credit. The Parties and any party obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the Tax Credit being applied to such transactions in order to offset the effect of the Credit PIF in the same manner and to the same extent as the Tax Credit applies to retail sales transactions, real estate transfer transactions and accommodations /lodging transactions. Prior to adopting any such use tax, the Town shall coordinate with the PICs and other Parties regarding the implementation of any such use taxes and application of the Tax Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall not be deemed to be part of such Taxable Transaction and shall not be subject to application of the corresponding Town use tax. (b) Add -On RSF Rate. As of the Effective Date, the PICs have set the Add -On RSF rate at 0.75 %, to be applied only with respect to retail sales transactions that are Taxable Transactions. The net proceeds (i.e., after payment of the fees to the Add -On RSF Collection Agent pursuant to the Add -On RSF Collection Services Agreement and application of any other adjustments to such revenues as set forth in this Development Agreement and /or the Add -On PIF Collection Services Agreement) of the Add -On RSF Revenues resulting from imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions shall constitute the Municipal Payments. (i) Increase in Town Sales Tax Rate. If the Town increases the Town's retail sales tax rate above 4.0 % during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add -On RSF Revenues which will be construed to be Municipal Payments shall be reduced in the same degree as any Town sales tax rate increase above 4.0 %. For example, if the Town increases its retail sales tax rate by 0.25% (from 4.0% to 4.25 %), the portion of the Add -On RSF Revenues construed to be Municipal Payments shall be that amount equivalent to a reduction of 0.25% in the Add -On RSF rate (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75 %). As of the Effective Date, the PICs have not imposed an Add -On PIF on transactions other than retail sales transactions that are Taxable Transactions or set the Add -On PIF at a rate higher than the rate of the Add -On RSF required pursuant to this Section 6.4(b). 43 1044033.12 (ii) Exception for "Project- Specific " Town Tax Rate Increase. Notwithstanding anything set forth in Sections 6.4(a)(i), 6.4(a)(iii) and 6.4(b)(1) to the contrary and subject to the terms and conditions set forth in this Section 6.4(b)(ii), the Town shall be entitled to retain the revenues resulting from an increase in the Town's 4.0% sales tax rate or 4.0% accommodations tax rate as in effect on the Execution Date to the extent: (A) such tax rate increase is duly adopted by the Town after the Effective Date and applies on a uniform basis throughout all areas of the Town; (B) the proceeds of such tax rate increase are specifically dedicated and pledged solely to a specific project identified in connection with such adoption; (C) the financing period for such specific project does not exceed 30 years; and (D) for the purposes of sales tax and not accommodations tax such increased tax rate does not exceed 0.75 %. For purposes of the foregoing, a "specific project" shall mean only a specific municipal capital project (by way of example, construction of a municipal building; construction of a library; acquisition of specifically identified parcels of real property that are being acquired by the Town for open space, park or construction of a specific municipal capital project to be constructed on such property; or similar purposes), and expressly excludes tax rate increases for the purpose of providing ongoing municipal services (by way of example, to fund ongoing provision of transit services, trash services or similar open -ended municipal services funding obligations) or for general fund purposes. With respect to tax rate increases for a specific project as set forth above, the Tax Credit shall not apply to such increased rate and the corresponding Credit PIF rate shall not be raised to match the increased tax rate, but the Add -On RSF rate shall be reduced correspondingly to the increased tax rate as set forth in Section 6.4(b)(i) with respect to retail sales transactions. With respect to any Town sales tax rate increases that are not for a specific project, the terins and conditions of Section 6.4(b)(i) shall apply. (iii) Increased Add -On PIF Rate. To the extent the PICs at any time after the Effective Date impose an Add -On PIF on transactions other than retail sales transactions that are Taxable Transactions and /or at a rate higher than the Add -On RSF rate, the resulting Add -On PIF Revenues shall not be construed to constitute Add -On RSF Revenues or Municipal Payments. Any Add -On PIF Revenues that do not constitute Municipal Payments pursuant to this Section 6.4(b) may be utilized as set forth in Section 6.5(b)(ii). 6.5 Add -On PIF. In implementation of the Settlement Tenn Sheet, and in consideration of the Town's performance of its obligation to provide Municipal Services in accordance with Section 4.1 and the Town's performance of its obligations pursuant to Section 4.2 and this Article 6: (a) Collection and Remittance. During the Tenn, the PICs shall collect, or cause the Add -On RSF Collection Agent to collect, the Add -On RSF Revenues. In accordance with the terms and conditions of the Add -On RSF Collection Services Agreement, the Add -On RSF Collection Agent shall: (i) Separate Account. Maintain Add -On RSF Revenues in a separate account from Credit PIF Revenues. MA 1044033.12 (ii) Remittance of Municipal Payments. Calculate that portion of Add -On RSF Revenues received during each calendar month which comprises Municipal Payments, and after calculating that portion of the Municipal Payments required to be deposited into the Asphalt Overlay Account: (A) Deposit the required amount of Municipal Payments into the Asphalt Overlay Account; and (B) Remit any remaining Municipal Payments to the Town. (b) Uses. (i) Municipal Payments. During the Term, the Municipal Payments shall be utilized first to satisfy the Town's Asphalt Overlay Account funding obligations as set forth in Section 6.6 and thereafter may be utilized by the Town for any lawful purpose. (ii) Additional Add -On PIF Revenues. To the extent the PICs continue to impose and collect the Add -On RSF on retail sales transactions that are Taxable Transactions after expiration of the Term and /or there are from time to time during the Term Add -On PIF Revenues, including any Add -On RSF Revenues, in excess of the Municipal Payments (for example, due to a reduction in such Municipal Payments pursuant to Section 6.4(b) or due to imposition of an Add -On PIF on transactions other than retail sales that are Taxable Transactions), the PICs may retain and utilize such additional Add -On PIF Revenues for any lawful purpose permitted under the terms and conditions of the PIF Covenants. The Town shall have no right or claim to any such Add -On PIF Revenues, including any Add -On RSF Revenues, that do not constitute Municipal Payments. (c) Duration. The Town's right to receive the Municipal Payments generated through the PICs' imposition of the Add -On RSF shall terminate concurrently with the termination of the Town's obligation to maintain the Tax Credit as set forth in Section 6.1(c) of this Development Agreement. (d) Implementation Period. From and after the Execution Date, the Town will cooperate with the PICs, the Add -On RSF Collection Agent, Master Developer and TC -RP (as "declarant" under the PIF Covenants) in implementing the Add -On RSF with existing retailers within the Project, including but not limited to attending meetings with such retailers upon the request of the PICs and Master Developer (and not independently), coordinating with the PICs and the Add -On RSF Collection Agent with respect to preparation and dissemination of reporting forms and similar matters related to the collection and remittance of the Add -On RSF, and such other matters as the PICs, the Add -On RSF Collection Agent, Master Developer and TC -RP (as "declarant" under the PIF Covenants) reasonably request in connection with implementing and facilitating the collection of the Add -On RSF. (e) Effect of Expiration of Tenn. Except to the extent otherwise set forth in the applicable PIF Covenants, expiration of the Tenn shall not have the effect of terminating the Add -On RSF or the Add -On PIF and, to the extent the PICs continue to impose the Add -On RSF 45 1044033.12 and /or the Add -On PIF and to collect the Add -On RSF Revenues or any other Add -On PIF Revenues after expiration of the Term, all such Add -On PIF Revenues may be utilized as set forth in Section 6.5(b)(ii). 6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD and First Bank, Avon Branch, have legally delivered and entered into the Asphalt Overlay Agreement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement, the Town has established with First Bank, Avon Branch, a restricted, segregated account (the "Asphalt Overlay Account") into which the Master Developer, the Town and TCMD and/or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period and /or otherwise subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) shall deposit funds in the amounts and at the times set forth below. Such funds shall be used exclusively to finance asphalt overlays of public roads located in the Project Dedicated to the Town as described in Section 4.2(d). The Asphalt Overlay Account shall be subject to and administered in accordance with the terms and conditions of the Asphalt Overlay Agreement and the following terms and conditions: (a) Joint Funding Obligations. Commencing on the Effective Date and continuing until tenninated pursuant to Section 6.6(b), Master Developer, the Town and TCMD (and /or VMD) each shall contribute funds to the Asphalt Overlay Account as follows: (i) Due Dates. All payments are due and payable on or before November 1 of each year commencing in 2014. (ii) Town Contribution. Utilizing Municipal Payments to be deposited into the Asphalt Overlay Account in accordance with Sections 5.2(c), 6.5(a)(ii)(A) and 6.5(b)(i): (A) For calendar years 2014 through 2018, the Town shall contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) per year. (B) For calendar years 2019 through and including the date on which termination occurs pursuant to Section 6.6(b), the Town shall contribute $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year. (iii) TCMD and /or VMD Contribution. Such contributions being Non -Cap Amounts and using available District Revenues, TCMD and /or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period and /or otherwise subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) shall contribute: (A) For calendar years 2014 through 2018, $40,000.00 (FORTY THOUSAND DOLLARS) per year. .i 1044033.12 (B) For calendar years 2019 through and including the date on which termination occurs pursuant to Section 6.6(b), $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year. (iv) Master Developer Contribution. Such contributions being Cap Amounts only to the extent reimbursable from TCMD and /or VMD using Credit PIT Revenues (and therefore qualifying as Additional Developer Advances): (A) For calendar years 2014 through 2018, Master Developer shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year. (B) Notwithstanding any continuing obligation of the Town and TCMD to contribute funds to the Asphalt Overlay Account after calendar year 2018, Master Developer shall not have any obligation to contribute funds to the Asphalt Overlay Account after satisfying the obligation set forth in the foregoing clause (A). (b) Termination of Joint Funding Obligations. The joint funding obligations of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the Town and TCMD and /or VMD with respect to the Asphalt Overlay Account shall terminate in the earliest calendar year in which one of the following occurs: (i) 80,000 square feet of additional commercial (as defined in the PUD Guide) development have been issued a temporary or permanent cert ificate of occupancy; or (ii) the total annual Taxable Transactions have increased by at least $20,000,000 over the actual total annual Taxable Transactions in 2011. From and after the date that the joint funding obligations terminate as provided herein: (A) the Town shall be and remain solely responsible for perforining and funding asphalt overlays for all public roads within the Project Dedicated to the Town; (B) Master Developer and TCMD and /or VMD shall have no further obligation with respect to funding of asphalt overlays within the Project; (C) the obligations of Master Developer and TCMD and /or VMD to provide such funding shall not be reinstated upon any subsequent reduction of commercial occupancy or reduction of total annual Taxable Transactions; and (D) the expenditures and appropriations by the Town for asphalt overlays in excess of the amounts deposited in the Asphalt Overlay Account shall not be counted against the Credit PIF Cap. 6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In implementation of the Settlement Term Sheet, the Master Developer and the Landowner(s) of the affected Sites within Lot 1 shall provide their timely, full and reasonable cooperation in assisting the Town and AURA in the creation of an urban renewal plan for Lot 1 in accordance with the terms and conditions of this Section 6.7; provided, however, that Master Developer and any other Landowner(s) shall not be required to cooperate in the creation or implementation of such urban renewal plan unless Master Developer has provided its written consent to all terms and conditions of the urban renewal plan prior to its adoption. Master Developer and any other Landowner(s) shall have the right to oppose any urban renewal plan for Lot 1 (or any other area of the Property) that does not include a provision that expressly prohibits the Town or AURA from exercising eminent domain powers or, unless Master Developer has provided its written consent to such urban renewal plan for Lot 1 as contemplated herein, for any other reason permitted under the laws of the State of Colorado. Master Developer or any Landowner(s) of a 47 1044033.12 Site within Lot 1 shall have no obligation to cooperate with the formation of an urban renewal plan area for Lot 1 if Master Developer has not provided prior written consent as required above or if the Town and /or AURA fails to adhere to the following terms and conditions. (a) Limited to Lot 1. The area included within the urban renewal plan is limited to Lot 1 or a portion thereof (b) Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN MILLION DOLLARS) of proceeds available for the payment of Capital Project Costs from bonds or other financial obligations (whether in the form of bonds, direct payments, redevelopment agreement(s) and /or cooperation/funding agreement(s)) issued or incurred by AURA to pay Cap Amounts may be counted against and thereby reduce the remaining Credit PIF Cap; provided, however, that the cost of improvements to or servicing Town -owned properties (by way of example and not limitation, improvements located within, utilities extensions servicing and /or access to and from Planning Area B, Planning Area E, or park/open space areas Dedicated to the Town), whether financed utilizing TIF Revenues or other revenues of the Town or AURA, shall not result in a reduction of the Credit PIF Cap. Nothing in this Section 6.7(b) constitutes a limit on AURA's ability to finance improvements it deems appropriate. The restriction in this Section 6.7(b) relates only to whether bonds issued by AURA to pay for the costs of such improvements count against the Credit PIF Cap. (c) AURA Board Positions. Prior to or concurrently with the effective date of any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an urban renewal plan therefore, the Town and AURA shall take action to appoint an individual designated by Master Developer and shall take action to appoint an individual designated by BNP (subject only to BNP's ability to designate a lawfully eligible individual) to the AURA board. The Master Developer and BNP board members shall be full members of the AURA board with equal rights, duties and responsibilities as other AURA board members with respect to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof) and all AURA activities of any nature that directly or indirectly involve the establishment, implementation and administration of any urban renewal area including or any urban renewal plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with statutory requirements regarding conflicts of interest. If the AURA board for activities affecting Lot 1 is constituted as a separate board from that which operates within other areas of the Town, such BNP and Master Developer board members shall be full members for all purposes having equal standing with other board members. If the AURA board is not constituted as a separate board from that with operates within other areas of the Town, the BNP and Master Developer board members shall have no authority or standing to participate in AURA board activities pertaining to areas of the Town other than Lot 1, and shall recuse themselves from all such proceedings. BNP's right to have a member on the AURA board shall expire and terminate at such time as there are no outstanding obligations to BNP under the 2013 Reissue Documents. (d) TCMD and VMD Taxes. The urban renewal plan for any urban renewal area that includes Lot 1 (or any portion thereof), and all related governing and implementing documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD W. 1044033.12 and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1 (or any portion thereof) within the urban renewal area. No portion of the property tax increment revenues resulting from the Districts' mill levies shall be retained or utilized by AURA for any purpose, and shall specifically not be pledged or utilized by AURA for repayment of any bonds issued or other financial obligations entered into by AURA. (e) TIF Revenues; Uses. The urban renewal plan(s) shall not contain any provision for capturing the increment of municipal sales taxes, and shall be expressly limited to capturing the increment of property taxes within the urban renewal area (subject to Section 6.7(d)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s) containing all or any part of Lot 1 solely within the Project. Improvements undertaken or financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and approval of the Design Review Board where applicable. (f) Funding Agreement(s) with Districts. AURA may enter into enforceable multiple fiscal year cooperation/funding agreements with a District providing that the TIF Revenues will be assigned to the District for the purpose of financing, through the District's issuance of bonds or otherwise, eligible Capital Projects. (g) Priority of Use of TIF Revenues. The priority of AURA's use of TIF Revenues generated from within the urban renewal plan area(s) established within the Property pursuant to this Section 6.7 are: (i) First, until the Credit PIF Cap reduction contemplated by Section 6.7(b) has been accomplished or unless Master Developer and AURA otherwise agree in writing, to fund any then - uncompleted phases of East Beaver Creek Boulevard as a through road in accordance with Section 3.10(a). (ii) Second, to the extent the Credit PIF Cap reduction contemplated by Section 6.7(b) has not been accomplished by satisfaction of the foregoing clause (i), to fund from the remaining amount of Credit PIF Cap reduction contemplated by Section 6.7(b) the Capital Project Costs of any Prioritized Capital Projects within Lot 1 that have not previously been financed and completed. (iii) Third, in a priority to be detennined by AURA: (A) improvements to or servicing Sites that the Town owns within Lot 1 (which may include structured parking within Lot 1 to provide shared public parking for private improvements and public improvements constructed within Planning Area B and other areas of Lot 1); and (B) any other Capital Projects that result in a reduction of the Credit PIF Cap pursuant to the terms and conditions of Section 6.7(b). 6.8 Tank Agreement. Prior to the Effective Date and in implementation of the Settlement Tenn Sheet, certain parties thereto legally delivered and entered into the Tank Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge .• 1044033.12 Agreement has been executed and delivered. As more specifically set forth in the Tank Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i) TCMD is obligated to utilize the Annual Debt Service Obligation to pay debt service on the Tank Project Financing and, subject to refinancing of the Tank Project Financing as provided in Section 5.5(b), to remit the Annual Debt Service Obligation to TC -RP; and (ii) TC -RP is obligated to construct the Tank Project. As of the Effective Date, BNP has provided the original letters of credit securing payment of the 2013 Bond Reissue, consented to this Development Agreement and consented to the Tank Agreement in reliance on the Town's performance of its obligation to maintain the Tax Credit in effect as required pursuant to this Development Agreement, and on the remedies provided for herein for the Town's breach of its obligation to maintain the Tax Credit. 6.9 2013 Bond Reissue; Priority Use of District Revenues. In implementation of the Settlement Term Sheet: (a) 2013 Bond Reissue. Concurrently with the Effective Date and with the consent of BNP and Master Developer, TCMD has caused the 2013 Bond Reissue to be effected. Such actions, and BNP's and Master Developer's consent thereto, were undertaken in reliance on the Town's performance of its obligations pursuant to this Development Agreement (specifically including but not limited to the Town's obligation to maintain the Tax Credit in effect during the Term), and on the remedies provided for herein for the Town's breach of its obligations under this Development Agreement (including but not limited to the right to obtain an order requiring specific performance of the Town's obligation to maintain the Tax Credit). The 2013 Reissue Documents and the Pledge Agreement encumber and, consistent with the Settlement Term Sheet (the Parties acknowledge that utilization of the Annual Debt Service Obligation to accomplish the Tank Project Financing as provided in Section 5.5(b) is consistent with the Settlement Term Sheet notwithstanding that the party responsible for causing completion of the Tank Project is different than contemplated in the Settlement Term Sheet), establish the terms and conditions governing utilization of District Revenues during the 2013 Bond Repayment Period. Prior to the Effective Date, the Town reviewed and approved the 2013 Reissue Documents and the Pledge Agreement for consistency with this Development Agreement. (b) Priority of Use of District Revenues. District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forms of Supplemental Bonds) are to be utilized to meet the following obligations in the following priority: (i) Annual Debt Service Obligation. To TC -RP (or, if there is a refinancing of the Tank Project Financing as provided for in Section 5.5(b), to the applicable party in such refinancing) for the Annual Debt Service Obligation, from such sources, in the amounts and at such times required by the Pledge Agreement. (ii) Other Allowed O&M Expenses. Provided there is no continuing default with respect to a District's obligations pursuant to the 2013 Reissue Documents or the Pledge Agreement, to TCMD in the amount of the Annual Base O &M Amount and to TCMD and /or VMD (as determined by the 2013 Reissue Documents during the 2013 50 1044033.12 Bond Repayment Period) in the amount of TCMD's and /or VMD's contributions to the Asphalt Overlay Account. (iii) 2013 Bond Reissue. To the trustee or the custodian, as applicable, for the 2013 Bond Reissue, to be used for principal repayment or reimbursement and Bond Requirements related to the 2013 Bond Reissue as required by the 2013 Reissue Documents, which may include, without limitation, establishment and, as necessary, replenishment of a required reserve (in an initial amount of $3,000,000) and any refunding bonds issued to repay or defease the 2013 Bond Reissue. (iv) Deferred BNP Letter of Credit Fees and Deferred Amortization. To the trustee or the custodian, as applicable, for the 2013 Bond Reissue, to be used to pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization. The prepayment or refinancing of the 2013 Bond Reissue shall require payment in full of, or other extinguishment in full of the payment obligation with respect to, any such Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be applied in inverse order of maturity. (v) Use of Excess Revenues. (A) Prepayment of 2013 Bond Reissue. In any year in which any District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forms of Supplemental Bonds) remain after the payment of the items set forth in subsections (i) -(iv) above and the Debt Service Coverage Ratio is less than the then - applicable percentage required by the 2013 Reissue Documents, such excess revenues shall be applied to early payment of principal of the 2013 Bond Reissue as and to the extent required pursuant to the 2013 Reissue Documents (such Debt Service Coverage Ratio being initially set at 150% and such early payments initially being applied in inverse order of maturity). (B) Other Obligations. In any year in which any District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forins of Supplemental Bonds) remain after the payment of the items set forth in subsections (i) -(iv) above and the Debt Service Coverage Ratio is equal to or greater than the then - applicable percentage required by the 2013 Reissue Documents: 1. Supplemental Bonds. To the extent Supplemental Bonds have been issued (whether in the form of Additional Developer Advances or municipal bonds), for principal repayment or reimbursement and payment of interest and other Bond Requirements related to such Supplemental Bonds in accordance with the terms and conditions thereof and any refunding bonds issued to repay or defease any such Supplemental Bonds. 51 1044033.12 2. Cure Payments. To the extent the Town has exercised any cure rights pursuant to Section 6.13 to cure a deficiency in payment of principal or the Bond Requirements of the Tank Project Financing or of the 2013 Bond Reissue, to reimburse the Town for the amount of such payments and interest thereon at the non - default interest rate commensurate with the interest paid to bondholders at the time of the cure payment. 3. Past Developer Advances and Avon Receivable. To satisfy payment obligations with respect to the Past Developer Advances (including amounts payable to Buffalo Ridge Affordable Housing Corporation) and the Avon Receivable, subject to the following: 1. The Past Developer Advances (including any Replacement Bonds issued to repay or defease all or a portion of the Past Developer Advances) and the Avon Receivable shall be paid in the order in which such obligations were incurred, with the oldest obligation to be paid first, except to the extent such priority of payment conflicts with the priority and terms of the instrument creating the obligation in which case such priority and terms shall control. With respect to the Past Developer Advances, the obligations shall be deemed to have been incurred as of the dates set forth in the instruments creating the obligations. With respect to the Avon Receivable, the obligation shall be deemed to have been incurred as of the dates on which payments were due under the terms of the Original Agreement and /or any Municipal Service Invoice (as the Original Agreement defined such term). The Past Developer Advances, the Avon Receivable, and the dates on which such obligations were incurred are more particularly described in Exhibit E. 11. Simple interest at the rate of 1.5% shall accrue on the principal amount of the Avon Receivable commencing on the Effective Date and continuing until the expiration of the Term or payment in full, whichever first occurs. 111. Except to the extent stated in this Section 6.9(b)(v)(B)3.111, the interest rate applicable to the Past Developer Advances shall be as stated in the instruments creating such obligations (as identified in Exhibit E). Notwithstanding the foregoing or any contrary provision of the instruments creating such obligations, the interest rate on certain Past Developer Advances payable to Master Developer or any Developer Affiliate shall: (A) with respect to a principal amount equal to the principal amount of the Avon Receivable be limited to 1.5% simple interest per annum, commencing on the Effective Date; and (B) such reduced interest rate shall be applied first to the principal balance 52 1044033.12 of the latest (i.e., most recently executed) such instrument and then to each subsequent (i.e., next most recently executed) instrument until a principal amount equal to the principal amount of the Avon Receivable is obtained. IV. The rate of interest and priority of payment with respect to that portion of the Past Developer Advances payable to Buffalo Ridge Affordable Housing Corporation shall be as set forth in the document creating such obligation, shall not be modified in any manner by the terms and conditions of this Development Agreement, and shall remain in full force and effect in accordance with the existing terms except to the extent as may be modified by mutual agreement of the parties thereto. Such agreement to modify the interest rate, priority of payment or other terms is expressly not a condition of this Development Agreement. (C) Direct Payment of Capital Project Costs. After the obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A) and (v)(B) are fully satisfied and to the extent not expressly precluded by any provision of this Development Agreement, that portion of available Credit PIF Revenues shall be deposited to an escrow account to be used exclusively for direct payment of Capital Project Costs that TCMD and /or VMD has an obligation to pay. (c) Other Legally Permissible Uses of District Revenues. Subject to the limitations in the Service Plans, the Pledge Agreement, the 2013 Reissue Documents and compliance with the priority utilization of District Revenues as set forth in Section 6.9(b), nothing in this Section 6.9 shall be construed as prohibiting the Districts from utilizing District Revenues for any other uses not enumerated above or from imposing a mill levy and retaining the revenues derived therefrom for the purpose of paying for Capital Project Costs (including but not limited to Non - Credit PIF Revenue Reimbursements payable to TC -RP pursuant to Section 5.5(b)(iv)(B)) and/or of paying the Districts' operation, maintenance and administrative expenses to the extent that such costs exceed the Allowed O &M Expenses; provided, however, that the portion of District Revenues comprising Credit PIF Revenues shall be limited solely to the Permitted Uses as set forth in Section 6.2(a). (d) Continuation of Priority of Use. If VMD and /or TCMD issue any form of replacement or refunding bonds for the 2013 Bond Reissue and /or issues Supplemental Bonds, VMD and /or TCMD, as applicable, shall cause the pertinent documentation executed in connection therewith to incorporate the general prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve such documentation at least forty -five (45) days prior to issuance of such replacement or refunding bonds for the limited purpose of confirming conformance with the general prioritization set forth in Section 6.9(b). 6.10 Supplemental Bonds. If one of more of the Districts issue Supplemental Bonds on or before January 1, 2040 (or incur any Deferred Reimbursements obligations that are an Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) and which arise pursuant to clause (2) of Section 5.5(b)(iv), notwithstanding that such obligations may be 53 1044033.12 incurred after January 1, 2040), such District(s) shall continue to receive Credit PIF Revenues until expiration of the Term. If the Districts have not issued Supplemental Bonds prior to January 2, 2040: (i) the Town shall have no further obligation with respect to any unissued Supplemental Bonds capacity (other than with respect to Deferred Reimbursements obligations that are an Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) and which arise pursuant to clause (2) of Section 5.5(b)(iv), notwithstanding that such obligations may be incurred after January 1, 2040); (ii) the Tax Credit shall be maintained in effect until all District Debts payable from Credit PIF Revenues and outstanding as of January 2, 2040 (and, if applicable, all Deferred Reimbursements payable pursuant to Section 5.5(b)(iv)(A)), are fully paid and the Term expires as provided in Section 6.1(b); and (iii) the District(s), as applicable, shall be entitled to retain and utilize all Credit PIF Revenues they have received prior or subsequent to January 2, 2040 (or, as applicable, prior or subsequent to January 2, 2040, with respect to Deferred Reimbursements payable pursuant to Section 5.5(b)(iv)(A)), for servicing District Debts or direct payment of Capital Project Costs. The applicable District shall make commercially reasonable efforts to obtain the lowest cost of borrowing when issuing Supplemental Bonds. The applicable District may issue Supplemental Bonds (other than Additional Developer Advances) at fixed interest rates without the Town's consent so long as the interest rate for such bonds does not exceed the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds being issued, for Baa investment grade fixed interest rate bonds plus 150 basis points. The issuance of Supplemental Bonds (other than Additional Developer Advances) which bear interest at a fixed rate higher than that set forth in the preceding sentence, or which are variable rate bonds, shall require the prior written consent of the Parties. 6.11 Replacement Bonds. Subject to any applicable terms and conditions of the 2013 Reissue Documents, on or after the Effective Date the Districts shall have the ongoing right to issue Replacement Bonds to extinguish, replace, refund or defease Past Developer Advances. The principal amount of the Past Developer Advances being extinguished, replaced, refunded or defeased by such Replacement Bonds shall be deducted from and reduce the amount counted against the Credit PIF Cap. The principal amount of the Replacement Bonds shall not exceed $12.4 million without the Town's prior written approval, and the interest rate of such Replacement Bonds shall bear a lower interest rate than such Past Developer Advances. For the purposes of determining the maximum allowable interest rate of Replacement Bonds, the interest rate of Past Developer Advances which are extinguished, replaced, refunded or defeased with Replacement Bonds (but excluding from such calculation those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II) shall be averaged with regard to the respective interest rate and amount of principal. The interest rate of Past Developer Advances (excluding those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II) shall be as determined by this Development Agreement on the Effective Date. To the extent the accrued and unpaid interest payable under the terms of the Past Developer Advance documents is not capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be carried forward as an accrued and unpaid interest obligation under the terms of the Past Developer Advance documents, the unpaid interest obligation shall not bear any interest, and the unpaid interest obligation shall not be discharged until paid in full. 54 1044033.12 6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the limitations set forth in this Section 6.12, the Districts shall have the ongoing right to issue refunding bonds or other debt instruments to repay, refund and /or defease, in whole or in part, the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b). The principal and Bond Requirements of such refunding bonds or other debt instruments shall not count against the Credit PIF Cap. Notwithstanding the foregoing, if the principal amount of any bonds or other debt instruments issued to repay, refund and /or defease or otherwise refinance the 2013 Bond Reissue exceeds the then outstanding principal amount of the 2013 Bond Reissue, only that portion of the increased principal which is in excess of $52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS) shall be included in the Cap Amounts and count against the Credit PIF Cap. The interest rates on refunding bonds are subject to the requirements governing interest rates for Supplemental Bonds set forth in Section 6.10; provided, however, that the interest rate for refinancing the outstanding balance of any Deferred Reimbursement amounts repayable as an Additional Developer Advance pursuant to Section 5.5(b)(iv)(A) shall be equal to or lower than the interest rate of the Additional Developer Advance being refinanced. Without the Town's prior written consent, the aggregate principal and interest due on fixed rate refunding bonds or other debt instruments with fixed interest rates, from their date of issuance to final maturity (disregarding any option to redeem prior to maturity), shall be less than or equal to the aggregate principal and interest due on the debt to be repaid, refunded, defeased or otherwise refinanced, from the date of the refunding to final maturity (disregarding any option to redeem prior to maturity). 6.13 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the Town shall have the right, but not the obligation, to cure any District's payment default under the Tank Project Financing, the 2013 Bond Reissue or any Supplemental Bonds and to receive reimbursement of any such cure payments in accordance with the terms and conditions of Section 6.9(b)(v)(B)2. 6.14 Town Funding of Credit PIF Cap. At any time after the 2013 Bond Reissue obligations have been fully satisfied (including through payment by the Town pursuant to this Section 6.14), the Town shall have the right, but not the obligation, to pay off all or a portion of the then - outstanding District Debts and /or satisfy the Town's obligation with respect to funding the full Credit PIF Cap as follows: (a) Full Funding of Credit PIF Cap. The Town shall have the right to fully fund the Credit PIF Cap by: (i) paying off all then - outstanding District Debts; and (ii) remitting to TCMD (or, if so directed in writing by Master Developer with TCMD's written consent, to the Commercial PIC (for subsequent assignment to a District for use in accordance with the Financing Plan)) the amount, if any, of available but unutilized Credit PIF Cap capacity as of the date of payoff. The total obligation to the Districts and /or the Commercial PIC shall not exceed the Credit PIF Cap. For example, if the sum of the Net Proceeds of previously retired 2013 Bond Reissue obligations and other District Debts retired by the Town totals $80 million, the amount of unutilized Credit PIF Cap capacity to be paid by the Town to TCMD (or to such other party as may be designated as provided herein) would be $16 million [$96 million - $80 million = $16 million]. Upon remitting the funds to fully fund the payoff amounts pursuant to the foregoing terms and conditions, the Town shall be entitled to terminate the Tax Credit. Simultaneously with Town's exercise of its right to terminate the Tax Credit, the PICs' obligation to cause the 55 1044033.1? Municipal Payments to be remitted to the Town pursuant to the terms and conditions of this Development Agreement, and all right or claim of the Town to receive any portion of the Add -On RSF Revenues imposed after the date which Town exercises its right to terminate the Tax Credit, shall automatically and without the requirement of further action terminate, be of no further force or effect, and be forever extinguished. (b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to pay off the then - outstanding District Debts but not to advance the funds required to fund the unutilized Credit PIF Cap capacity remaining available for utilization as provided in this Financing Plan. In such event and as otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for the duration of the Term, the PICs shall continue to impose the Credit PIF and cause the collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal Payments to be remitted to the Town. All Credit PIF Revenues available (for example, Credit PIF Revenues not otherwise encumbered by and required to service debt on Supplemental Bonds issued after the date of the Town's payoff) to TCMD, or to such other party as may be designated in the manner described in clause (ii) of Section 6.14(a), shall be placed in escrow by TCMD or such designated party and applied from time to time toward Supplemental Bonds and /or direct payment of Capital Project Costs. The Credit PIF Revenues placed into escrow shall be subject to an agreement which grants the Town the right to enforce, restrict and limit the use of such escrow funds for payment of Capital Project Costs. 6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose, collect, receive, retain, expend or utilize Town taxes imposed upon the Public Improvement Fees described in subsections 6.15(a) and 6.15(b). In the event that the Town is legally required by municipal, state or federal law to impose the Town's tax on a Public Improvement fee described in subsections 6.15(a) and /or 6.15(b), the Town shall, subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, remit the full amount of the Town tax imposed upon such Public Improvement Fee to TCMD (unless such revenues are subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) and such revenues shall be included with and be subject to the same terms, conditions and restrictions as Credit PIF Revenues. (a) Use Tax. If the Town enacts and imposes a use tax on building materials, the PICs shall, pursuant to the PIF Covenants and the Financing Plan, impose and apply the Retail Sales Fee to the use of such building materials and the Town shall not impose such Town use tax on the corresponding Retail Sales Fee. (b) Real Estate Transfer Tax. The Town's real estate transfer tax shall not apply to the Real Estate Transfer Fee. 6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain, expend and utilize for any lawful Town purpose in the Town's discretion the following tax revenues: (a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add -On RSF added to each retail sales transaction shall be included in the Taxable Transaction. The Retail W 1044033.12 Sales Fee and Add -On RSF shall be subject to the Town's municipal sales tax and the Town is entitled to collect, receive, retain, expend and utilize such sales tax revenues. (b) Accommodations Tax Applied to PIF. The Accommodations /Lodging Fee shall be included in the Taxable Transaction. The Accommodations /Lodging Fee shall be subject to the Town's accommodations tax and the Town is entitled to collect, receive, retain, expend and utilize such sales tax revenues. (c) Town Ad Valorem Taxes. The Town is entitled to collect, receive, retain, expend and utilize all ad valorem property tax revenues resulting from imposition of the Town's property tax mill levy within the Project. (d) Town Share of Eagle County Sales Taxes. The Town is entitled to collect, receive, retain, expend and utilize any portion of Eagle County's sales tax revenues generated by transactions occurring within the Project that the Town is entitled to receive pursuant to any agreements with Eagle County in effect from time to time. (e) Future Taxes Assessments and Fees. The Town is entitled to collect, receive, retain, expend and utilize in the Town's discretion all future taxes, assessments and fees imposed by the Town and not addressed in this Development Agreement which are imposed uniformly and non - discriminately throughout the Town. 6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall maintain adequate books and records to accurately perform and account for their respective obligations under this Development Agreement. Each such Party or Limited Party shall, upon request of any other such Party or Limited Party, permit representatives of such requesting entity reasonable access during normal business hours to review and, at the requesting entity's expense, audit such books and records in order to permit such requesting entity to determine compliance with the terms of this Development Agreement or the accuracy of any information contained in any statement, notice, invoice or report required to be provided under this Development Agreement. All such Parties and Limited Parties shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any such statement, notice, invoice or report or in such requesting entity's review or audit of the applicable books and records. For so long as BNP is providing a Letter of Credit to secure the 2013 Bond Reissue or any amounts are due and owing to BNP in connection with the 2013 Bond Reissue, BNP shall have the same right to reasonable access to review and audit books and records to determine compliance with the terms of this Development Agreement or the accuracy of any information as set forth above with respect to the Town, AURA, the PICS and the Districts. 6.18 Cooperation Regarding Delinquent Public Improvement Fees. If the PICs are unable to collect any portion of the Public hmprovement Fees due to delinquency, deficiency, or failure to file, the PICs may promptly notify the Town in writing, and the Town shall institute the procedures authorized under the Municipal Code to enforce and collect the corresponding Town tax, interest, penalties and costs. The Town shall then remit, subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, such tax revenues to the PICs or to the District, subject to the following conditions: (a) the Town shall retain an amount equal to its costs incurred in enforcing its collection of taxes under the Municipal Code, 57 1044033.12 as well as an administrative fee equal to 20% of any tax and /or penalty actually collected; (b) the obligation is subject to any prior lien on such Town taxes securing the Town's sales tax revenue bonds outstanding as of the date of the Original Agreement; (c) the Town will have no responsibility to collect Public Improvement Fees which are in excess of the corresponding Town tax or which are assessed against any transaction that is exempt from the corresponding Town tax under the Municipal Code as then in effect; and (d) the Town does not guarantee or insure that it will be able to collect any delinquent or deficient Public Improvement Fees. Under no circumstances shall the Town be subject to any legal liability to the PICs or to the Districts on account of the Town's failure to collect some or all of the delinquent or deficient Public Improvement Fees on behalf of such entities. The Town acknowledges that if the person or entity which failed to timely remit such Public Improvement Fees subsequently remits such Public Improvement Fees to the applicable PIC, such payment shall result in the application of the Tax Credit (if applicable) against such person or entity's corresponding tax obligation (if any), which Tax Credit shall fully satisfy any corresponding tax liability to the Town. The Town shall nevertheless be entitled to recover from the PICs the administrative fee and any costs incurred in the enforcement and recovery of such Public Improvement Fees. 6.19 Creation of Additional PICs and /or Districts. Master Developer reserves the right to create such additional PICs as may be necessary or desirable from time to time. With the prior written consent of BNP (for so long as there are outstanding obligations to BNP under the 2013 Reissue Documents) and Master Developer, the applicable Landowner(s) may petition for the creation of additional Districts to provide services and /or Public Improvements and /or other forms of improvements benefiting all or any portion of the Property. The Town shall reasonably cooperate with Master Developer and such Landowners, as applicable, with respect to the creation of such additional PICs and /or Districts. 6.20 Operation of PICs and Districts. The formation documents of the PICs and the Districts, together with contracts entered into by and between the PICs and the Districts, require the PICs and the Districts to honor their obligations under this Development Agreement, including the obligation of the PICs to cause the Credit PIF Revenues and the Add -On RSF Revenues to be imposed, collected, remitted and utilized as required by the terms of this Development Agreement. The Town shall cooperate with the operation of the Districts, and with implementation of the Financing Plan. 6.21 Dissolution of Districts. Unless Master Developer requests the Town to do so earlier, the Town shall not initiate or pursue any proceeding to dissolve any District until after the earlier to occur of either: (a) the twenty -fifth (25th) anniversary of the first issuance of bonds by either District; or (b) such time as all infrastructure improvements and public amenities contemplated in the service plans for the Districts have been constructed and no issued general obligations or revenue obligations of the Districts remain outstanding with respect thereto. Any dissolution of any District shall be conducted in accordance with the provisions and procedures set forth in Colorado Revised Statutes §§ 32 -1 -701, et seq., as in effect as of the Original Effective Date. 1044033.12 ARTICLE 7 Default; Remedies 7.1 Default by Town. A "breach" or "default" by the Town shall be defined as: (i) any, zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Master Developer's and the affected Landowner's or Landowners' consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise adversely affects any development, use or other rights of the Landowners under this Development Agreement or the Development Plan; or (ii) the Town's failure to fulfill or perform any obligation of the Town that is expressly set forth in this Development Agreement. 7.2 Default by TCMD or VMD. A "breach" or "default" by TCMD or VMD shall be defined as TCMD's or VMD's respective failure to fulfill or perform any obligation of such Party that is expressly set forth in this Development Agreement. 7.3 Default by Master Developer. A "breach" or "default" by Master Developer shall be defined as Master Developer's failure to fulfill or perform any obligation of Master Developer that is expressly set forth in this Development Agreement. 7.4 Default by Limited Part y. A "breach" or "default" by a Limited Party shall be defined as such Limited Party's failure to fulfill or perform any obligation of such Limited Party that is expressly set forth in this Development Agreement. 7.5 No Cross - Defaults. No default by a Party or a Limited Party that is asserted or judicially detennined to exist under this Development Agreement shall be construed to constitute a default of any other Party or Limited Party under this Development Agreement. No default of a Party or a Limited Party that is asserted or judicially determined to exist under this Development Agreement shall be construed to constitute a default of such Party or Limited Party under any other agreement to which such Party or Limited Party is a party. No default of a Party or a Limited Party that is asserted or judicially detennined to exist under another agreement to which such Party or Limited Party is a party shall be construed to constitute a default by such Party or Limited Party under this Development Agreement. 7.6 Notices of Default. In the event of a default by a Party or by a Limited Party under this Development Agreement, a non - defaulting Party, non - defaulting Limited Party and /or Intended Beneficiary may deliver written notice to the defaulting Party or defaulting Limited Party (with a copy to each other Party, Limited Party and Intended Beneficiary) of such default, at the address specified in Section 8.12, and the defaulting Party or defaulting Limited Party shall have 30 days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such 30 -day period and the defaulting Party or defaulting Limited Party gives written notice to each non - defaulting Party, non - defaulting Limited Party and Intended Beneficiary within such 30 -day period that it is actively and diligently pursuing such cure, the defaulting Party or defaulting Limited Party shall have a reasonable period of time given the nature of the default following the end of such 30 -day period to cure such default, provided that such defaulting Party or defaulting Limited Party is at all times within such additional time period actively and diligently pursuing such cure. Failure or delay in the delivery of a notice of default pursuant to this Section 7.6 shall not be construed to constitute a waiver of 59 1044033.12 any such default, and such notice of default may be delivered at any time during which a default has occurred and not been cured. The defaulting Party's or defaulting Limited Party's obligation to cure shall not arise until such notice of default has been delivered as provided herein, and no claim shall be filed with respect to a default prior to delivery of a default notice and expiration of the cure period as set forth above. 7.7 Remedies. (a) General. If any default under this Development Agreement is not cured as described in Section 7.6, any non - defaulting Party, any non - defaulting Limited Party and /or Intended Beneficiary shall, except to the extent otherwise limited by an express provision of this Development Agreement, be entitled to enforce the provisions and any remedy provided in this Development Agreement at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance or damages or a combination may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance of the defaulting Party's or defaulting Limited Party's obligations and /or damages. All of the remedies permitted or available under this Development 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. For the avoidance of doubt and in order to clarify the effect of the foregoing as it relates to the Financing Plan: (i) the Town hereby forever waives and relinquishes any claim or right to terminate the Tax Credit for so long as any District Debts remain outstanding; and (ii) in consideration of this Development Agreement constituting an intergovernmental agreement by and among the Town, AURA, TCMD and VMD pursuant to C.R.S. §§ 29 -1 -203 and 29 -20 -105, each such governmental or quasi governmental entity expressly acknowledges that the Town, AURA, TCMD and VMD each shall have standing to enforce this Development Agreement, including specific perfonnance, and affirms its intent that the obligations of each such governmental or quasi - governmental entity are to be enforced in accordance with their terms and each such entity expressly waives any right to object to or assert any defense against the entry of an order requiring specific perfonnance (or other mandatory or prohibitory injunctive relief) of such obligations. (b) Impairment of Vested Property Rim. The Town acknowledges that this Development Agreement and the Development Plan constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute. In the event of an uncured breach or default by the Town, in addition to any other remedies, Master Developer and any affected Landowner shall be entitled to: (i) recover from the Town the Past Developer Advances and any other damages that would have been specifically available pursuant to C.R.S. § 24- 68- 105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. (ii) cause the Property, or any portion thereof designated by Master Developer and the pertinent Landowner, to be disconnected from the Town. •1 1044033.12 (c) Limited Parties. The Limited Parties' remedies shall be as follows: (i) AURA. AURA shall have no rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party. (ii) EMD. EMD shall have all rights and remedies available to Master Developer. (iii) The Commercial PIC. The Commercial PIC's rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: (A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the Town's obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town's cooperation in implementing the Add -On RSF. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town's obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.5(b), the right to enforce the Town's obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. (iv) The Mixed Use PIC. The Mixed -Use PIC's rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: (A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the Town's obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town's cooperation in implementing the Add -On RSF. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town's obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.5(b), the right to enforce the Town's obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. 61 1044033.12 (d) Intended Beneficiaries. Each of the following Intended Beneficiaries shall have the right to enforce specified provisions of this Development Agreement, as described below. (i) BNP. For so long as there are outstanding obligations to BNP under the 2013 Reissue Documents, BNP shall have all rights and remedies available to a Party with respect to enforcement of the following Town and /or AURA and /or other expressly identified obligations: (A) Generally, the obligations set forth in Article 4 and Article 6. (B) Pursuant to Sections 4.2(a) and 6.2, the Town's obligation to maintain the Tax Credit in effect. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town's obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.7(c), BNP's right to participate on the AURA board of directors with respect to any urban renewal plans for any portion of the Property. (ii) Developer Affiliates and Landowners. Each Developer Affiliate and each Landowner shall have all rights and remedies available to Master Developer. ARTICLE 8 Miscellaneous 8.1 Applicable Law. This Development Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town, Master Developer, AURA, the PICs, the Districts and /or BNP, and nothing contained in this Development Agreement shall be construed as making any of the Parties, Limited Parties and /or Intended Beneficiaries joint venturers or partners. 8.3 Expenses. Except as otherwise provided in this Development Agreement, Master Developer, EMD, TCMD, VMD, each Developer Affiliate, each Limited Party, each Intended Beneficiary and the Town shall each bear their respective costs and expenses associated with entering into, implementing and enforcing the terms of this Development Agreement. 8.4 Waiver. No waiver of one or more of the terms of this Development Agreement shall constitute a waiver of other terms. No waiver of any provision of this Development Agreement in any instance shall constitute a waiver of such provision in other instances. 62 1044033.12 8.5 Town Findings. Town Council hereby finds and determines that execution of this Development Agreement provides a public benefit to the Town and its citizens, is in the best interests of the public health, safety, and general welfare, and the provisions of this Development Agreement are consistent with all applicable development laws, regulations and policies of the Town. Town Council further specifically finds: (i) the Town's approval of this Development Agreement and the Development Plan generally is pursuant to the authority of the Vested Property Rights Statute and the Municipal Annexation Act of 1965 set forth at CRS § 31 -12 -101, et seq., and, to the extent permitted by law, the Town is acting in a proprietary capacity in approving the Financing Plan and therefore shall bind the Town with regard to the Town's rights and obligations during the Term, particularly with regard to the Town's obligation to maintain the Tax Credit in effect, in accordance with the terms and remedies set forth in this Development Agreement; (ii) the Financing Plan and the Town's agreement to forego the collection of sales tax revenues, real estate transfer tax revenues and accommodations /lodging tax revenues by maintaining the Tax Credit in effect during the Term does not constitute the creation of a multiple - fiscal year direct or indirect debt or other financial obligation of the Town, and does not constitute a new tax, tax rate increase or tax policy change directly causing a net tax revenue gain to the Town; and (iii) nothing in this Development Agreement constitutes (A) a pledge of the Town's credit, (B) special legislation under Article V, section 25 of the Colorado Constitution, or (C) a grant in aid under Article XI, sections 1 and 2 of the Colorado Constitution. 8.6 Severability. If a final order issued by a court of competent jurisdiction holds any term, provision, covenant or condition of this Development Agreement to be invalid, void or unenforceable, the remaining provisions of this Development Agreement shall, unless amended or modified as provided in Section 1.5, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom they are being enforced of a material benefit of the bargain under this Development Agreement or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. For the avoidance of doubt, a determination that the Town's obligation to maintain the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a determination that the Town's right to receive the Municipal Payments, is invalid, void, unenforceable or that the remedy of specific performance is not available with respect to the Town's obligations under the Financing Plan or the Town's right to receive the Municipal Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited Parties; and (ii) this Development Agreement shall be deemed void and of no further effect unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner that the Town's obligations and commitments set forth in the Financing Plan, and /or the Town's right to receive Municipal Payments, as applicable, can be materially performed and complied with by alternative means. Unless amended or reformed as provided herein, entry of a final order holding the Town's obligation to maintain the Tax Credit in effect invalid or unenforceable shall entitle Master Developer and affected Landowners to entry of an order enforcing the remedy set forth in Section 7.7(b)(ii) and, correspondingly, entry of a final order holding the Town's right to receive Municipal Payments invalid or unenforceable shall entitle the Town to disconnect the Property. 8.7 Further Assurances. Each Party shall undertake such actions and shall execute and deliver to the other all such other further instruments and documents as may be reasonably 63 1044033.12 necessary to carry out this Development Agreement in order to provide and secure to the other Party the full and complete enjoyment of its rights and privileges under this Development Agreement. 8.8 TCMD and VMD Obligations. Except with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iii) and funding of the Annual Debt Service Obligation, all obligations of TCMD and VMD under this Development Agreement to pay money are subject to annual budget and appropriation, and are subordinate to any bonds issued by TCMD and /or VMD. 8.9 Complete Agreement. This Development Agreement constitutes the final, complete and exclusive statement of the terms of the agreement among the Parties pertaining to the subject matter of this Development Agreement and supersedes all prior and contemporaneous understanding or agreements of the Parties. This Development Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements, including but not limited to the Settlement Term Sheet, the Original Agreement and any oral or written communications exchanged during the public review process leading to approval of this Development Agreement. 8.10 Construction. Each Party has participated fully in the review and revision of this Development Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to interpreting this Development Agreement. The language in this Development Agreement shall be interpreted as to its fair meaning and not strictly for or against any Party. 8.11 Assignment. This Development Agreement shall be binding upon and, except as otherwise provided in this Development Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the Parties. Master Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Development Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long teen ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property, provided that to the extent Master Developer assigns any of its obligations under this Development Agreement, the assignee of such obligations shall expressly assume such obligations. The express assumption of any of Master Developer's obligations under this Development Agreement by its assignee or transferee shall thereby relieve Master Developer of any further obligations under this Development Agreement with respect to the matter so assumed. BNP Paribas shall provide written notice to the Parties of any successor or assignee entity that assumes BNP's rights and obligations pursuant to this Development Agreement. 8.12 Notices. All approvals, consents, notices, objections, and other communications (a "Notice" and, collectively, "Notices ") under this Development 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 M 1044033.12 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 Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748 -4452 Email: veggergavon.org With a required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney Telephone: (970) 748 -4000 Email: townattorney@avon.org To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987 -0835 Email: Ijacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202 -1214 Attn: Mary Jo Dougherty Telephone: (303) 592 -4380 Email: midoui7 herty@mcgeadysislieros.com TO VMD- The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 1044033.12 65 Attn: Lisa Jacoby Telephone: (303) 987 -0835 Email: ljacob gsdmsi.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: mjdou ert�(cr�,mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949 -6776 Email: marcuslindholm cr,traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 3 03.825.8400 Email: munseygottenjolulson.com EMD Limited Liability Company c/o Lava Corporation P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Michael Lindholm, President Telephone: (970) 949 -6776 Email: michaellindholmgtraercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munseygottenjohnson.com $e 1044033.12 To the Limited Parties: Avon Urban Renewal Authority P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748 -4452 Email: vegger@avon.org With a required copy to: Avon Urban Renewal Authority P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney Telephone: (970) 748 -4000 Email: townattome gavon.org The Village (at Avon) Mixed -Use Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987 -0835 Email: lj acoby(�sdmsi. com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munscygottenjohnson.com The Village (at Avon) Commercial Public hmprovement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987 -0835 Email: lj acobygsdmsi. com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers 1044033.12 royA Telephone: 3 03.825.8400 Email: munseygottenjohnson.com To the Intended Beneficiaries: BNP Paribas, an International Bank 787 Seventh Avenue, 91h Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: 212.841.3 607 Email: barbara.eppolito@a,us.bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 -4532 Attn: Brandee Caswell Telephone: (303) 607 -3826 Email: Brandee.Caswellgfaegrebd.com Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact and required copy inforination set forth above.] 8.13 Counterparts. This Development 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. IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this Development Agreement as of the Execution Date, with the intent that this Development Agreement shall be legally binding on each such signatory and legally attach to and encumber the Property upon the occurrence of the Effective Date. [SIGNATURE AND NOTARY PAGES FOLLOW THIS PAGE] :: 1044033.12 Signature and Notary Pages for Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) PARTIES: TOWN: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name:_ ke- V Title: Approved as to legal forrp by: f4­1 AC Eric J. Heil, tsf, Town Attorney STATE OF COLORADO ) ss. COUNTY OF ¢ --- _ } The e oin ins ent was acknowledged before me this l � —day of t _k' 2013, by as of THE TOWN OF AVON, a home rule municipal corporation of the State of rado. Witness my hand and official seal. My commission expires: it I q No u lic (SEAL) �EFt�E !yc Y 2 a • ..c •.•.,off B LONG ;Pao My Commission Expires 45/11/2014 69 1044033.12 Signature and Notary Pages for Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) PARTIES: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By:_ Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by as of THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado. Witness my hand and official seal. My commission expires: (SEAL) :• 1044033.12 Notary Public TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado By:_ Name Title: STATE OF COLORADO COUNTY OF Daniel J. Leary President ss. The foregoing instrument was acknowledged before me this day of , 2013, by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 70 1044033.12 VMD: THE VILLAGE METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President STATE OF COLORADO ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2013, by Daniel J. Leary as President of THE VILLAGE METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 71 1044033.12 MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Michael Lindholm Title: Authorized Signatory STATE OF COLORADO ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2013, by Michael Lindholm as Authorized Signatory of TRAER CREEK LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 72 1044033.12 EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Lava Corporation, a Colorado corporation, its Manager By:_ Name: Title: STATE OF COLORADO ss. COUNTY OF Michael Lindholm President The foregoing instrument was acknowledged before me this day of , 2013, by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 73 1044033.13 LIMITED PARTIES: AURA: THE AVON URBAN RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado By:_ Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney STATE OF COLORADO COUNTY OF ss. The foregoing instrument was acknowledged before me this day of , 2013, by as of THE AVON URBAN RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 74 1044033.12 LIMITED PARTIES: AURA: STATE OF COLORADO ) ss. COUNTY OF ) The Bo going instrument was acknowledged before me this 1'` day of e _ 2013, by -_ as S A--CL of THE AVON URBAN RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. My commission expires: 5/ 1 t t� No ry ubli (SEAL) �,,,,,� .0 COLON FOF 4v (,ommission Expires 05/1112014 74 1944433.12 MIXED USE PIC: THE VILLAGE (AT AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by as of THE VILLAGE (AT AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation. Witness my hand and official seal. My commission expires: (SEAL) 75 1044033.12 Notary Public COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation By: Name: Title: STATE OF COLORADO COUNTY OF ss. The foregoing instrument was acknowledged before me this day of , 2013, by as of THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation. Witness my hand and official seal. My commission expires: Notary Public (SEAL) 76 1044033.12 ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS The undersigned representatives of BNP Paribas, an international bank (as defined in the foregoing Development Agreement, "BNP "), in its capacity as the issuer of irrevocable direct pay letter(s) 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 acknowledge and consent to the foregoing Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon). SNP PARIBAS: By:_ Name: Title: SNP PARIBAS: By:_ Name: Title: STATE OF NEW YORK ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2013, by as Witness my hand and official seal. My commission expires: Notary Public (SEAL) 77 1044033.12 of BNP Paribas. STATE OF NEW YORK ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by as Witness my hand and official seal. My commission expires: (SEAL) 1044033.12 Notary Public of BNP Paribas. EXHIBIT A Legal Description of the Propert y Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 795007; Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 898173; Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon) Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 796831; Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776; and Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 200712166. TOGETHER WITH THE FOLLOWING PARCEL (OS5): That part of the NE 1/4 of Section 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., lying north of the Denver & Rio Grande Western Railroad right -of -way line, described as follows: Beginning at the N 1/4 corner of said Section 17; thence S89 023'36 "E 526.76 feet, along the northerly line of said NE 1/4 of Section 17, to the northerly right -of -way line of the Denver & Rio Grande Western Railroad; thence, departing said northerly line of Section 17, the following two courses along the northerly right -of -way line of the Denver & Rio Grande Western Railroad, said northerly right -of -way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks: (1) S80 036'27 "W 267.66 feet; (2) 263.93 feet along the arc of a curve to the right, having a radius of 2486.03 feet, a central angle of 06 004'58 ", and a chord which bears S83 038'57 "W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N00 °20'55 "W 78.44 feet, along said westerly line, to the point of beginning containing 0.53 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (OS6): That part of the NE 1/4 of Section 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., lying south of the Denver & Rio Grande Western Railroad right -of -way line and north of the centerline of the Eagle River, described as follows: Beginning at the Northeast corner of said Section 17; thence S01 041'49 "E 96.93 feet, along the easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said A -1 1044033.5 easterly line, S01 °41'49 "E 73.07 feet, to the centerline of said Eagle River; thence the following four courses along said centerline (Filum aquce): (1) N89 024'49 "W 1037.9 feet; (2) N86 007'49 "W 472.00 feet; (3) N89 029'49 "W 538.00 feet; (4) S82033'1 VW 595.15 feet, to the westerly line of said NE 1/4; thence N00 020'55 "W 49.18 feet, along said westerly line to the southerly right -of -way line of the Denver & Rio Grande Western Railroad; thence, departing said westerly line of Section 17, the following five courses along the southerly right -of -way line of the Denver & Rio Grande Western Railroad, said southerly right -of -way line being parallel with and 50 feet southerly of the centerline of the existing railroad tracks: (1) 279.72 feet along the arc of a curve to the left, having a radius of 2586.03 feet, a central angle of 06 °11'51 ", and a chord which bears N83 °42'23 "E 279.58 feet; (2) N80 036'27 "E 350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of 3171.27 feet, a central angle of 12 024'07 ", and a chord which bears N86 °48'31 "E 685.10 feet; (4) S86 °59'25 "E 1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a radius of 2549.33 feet, a central angle of 02 031'46 ". and a chord which bears S85 043'31 "E 112.53 feet, to the True Point of Beginning, containing 5.28 acres, more or less. TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL): Those parts of Sections 7, 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 a whole as follows: Beginning at the Northwest corner of said Section 8; thence the following four courses along the northerly line of said Section 8: (1) N88 140'41 "E 1379.49 feet, to the W 1/16 corner of said Section 8 and Section 5 of said Township and Range; (2) N88 040'41 "E 1379.49 feet, to the 1/4 corner of said Sections 8 and 5; (3) N88 °42'58 "E 1385.36 feet, to the E 1/16 corner of said Sections 8 and 5; (4) N88 042'58 "E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and Section 4 of said Township and Range; thence the following four courses along the northerly line of said Section 9: (1) N83 029'30 "E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4; (2) N83 °29'30 "E 1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N83 124'12 "E 1386.30 feet, to the E 1/16 corner of said Sections 9 and 4; (4) N83024'1 2"E 1386.30 feet, to the corner of said Sections 4, 9 and 10 and Section 3 of said Township and Range; thence the following two courses along the northerly line of said Section 10: (1) N86 039'24 "E 1381.29 feet, to the W 1/16 corner of said Sections 10 and 3; (2) N86 039'24 "E 1299.94 feet; thence, departing said northerly line, S01 °34'07 "W 2699.66 feet, to the east -west centerline of said Section 10; thence, along said east -west centerline, S86 132'23 "W 1304.06 feet, to the W 1/16 corner of said Section 10; thence S01 032'50 "W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, to the SW 1/16 corner of said Section 10; thence S86 °32'47 "W 1384.91 feet, along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9; thence S77 °10'15 "W 1413.37 feet, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, to the SE 1/16 corner of said Section 9; thence SO1 °33'02 "W 1475.32 feet, along the easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner of said Section 9 and Section 16 of said Township and Range; thence S72 °20'31 "W 1450.43 feet, along the southerly line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9 and 16; thence N01 034'18 "E 1601.52 feet, to the CS 1/16 corner of said Section 9; thence S86 007'30 "W 1378.19 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 9, to the SW 1/16 corner of said Section 9; thence S01 033'13 "W 1506.37 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 9, to the W 1/16 corner of said Sections 9 and 16; thence N89 055'04 "W 1371.96 feet, along the southerly line of said SW 1/4 SW 1/4 to the section corner of said Sections 8, 9, A -2 1044033.5 16, and 17 of said Township and Range; thence N01 °32'00 "E 3.82 feet, along the westerly line of Section 9, to the northerly right -of -way line of the Denver & Rio Grande Western Railroad, said northerly right -of -way line being parallel with and 50 feet northerly of the centerline of the existing railroad tracks; thence the following two courses along said northerly right -of -way line: (1) 104.48 feet along the arc of a curve to the left, having a radius of 2649.33 feet, a central angle of 02 015'34 ", and a chord which bears N85 °51'36 "W 104.47 feet; (2) N86 °59'25 "W 1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence N00 °51'07 "E 1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8; thence N89 054'54 "W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section 8, to the CS 1/16 corner of said Section 8; thence N89 058'35 "W 1366.46 feet, along the southerly line of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence S00 001'37 "E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, 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 the following ten courses along said northerly right -of -way line: (1) N65 030'20 "W 249.79 feet; (2) N78 °47'50 "W 317.2 feet; (3) N83 008'20 "W 506.7 feet; (4) 772.2 feet along the arc of a curve to the right, having a radius of 1462.0 feet, a central angle of 30 015'52 ", and a chord which bears N54 057'56 "W 763.3 feet; (5) N34 037'50 "W 331.1 feet; (6) N34 044'20 "W 368.5 feet; (7) 804.9 feet along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle of 25 027'04 ", and a chord which bears N51 °29'50 "W 798.3 feet; (8) N68 024'50 "W 399.7 feet; (9) N49 °47'20 "W 213.6 feet; (10) N70 020'50 "W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7; thence the following two courses along said northerly line: (1) N89 050'40 "E 1194.46 feet, to the CE 1/16 corner of said Section 7; (2) N89 050'40 "E 1378.25 feet, to the 1/4 corner of said Sections 7 and 8; thence the following two courses along the westerly line of said Section 8: (1) N0001 0'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N0001 0'53"W 1369.10 feet, to the point of beginning. EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776. Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3 area subtracted. A -3 1044033.5 EXHIBIT B Form of Special Warranty Deed for Conveyances to Town SPECIAL WARRANTY DEED [STATUTORY FORM — C.R.S. § 38 -30 -115] [TRAER CREEK METROPOLITAN DISTRICT, a quasi- municipal corporation and political subdivision of the State of Colorado] ( "Grantor "), whose street address is [141 Union Boulevard, Suite 150, c% Special District Management, Lakewood, CO 80228 -1898, County of Jefferson], State of Colorado, for the consideration of Ten and 00 /100 Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado ( "Grantee "), whose street address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of Colorado ( "Grantee "), the real property that is described on Exhibit A attached hereto and made a part hereof, with all its appurtenances, and warrants the title to the same against all persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof. [TRAER CREEK METROPOLITAN DISTRICT, a quasi- municipal corporation and political subdivision of the State of Colorado] By: _ Name: Title: STATE OF ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by as of Witness my hand and official seal. My commission expires: 1044033.5 Notary Public EXHIBIT A TO SPECIAL WARRANTY DEED Description of the Propert y [insert description of property or property interest to be conveyed] I 1044033.5 EXHIBIT B TO SPECIAL WARRANTY DEED Restrictions and /or Reservations Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to the following restrictions, which restrictions shall be binding on Grantee and all successors and assigns of Grantee, and which Grantor and its successors and assigns shall have the right to enforce by an action for specific performance, mandamus, mandatory or prohibitory injunction or other equitable or legal remedy: 1. [insert applicable use /other deed restrictions or state non applicable] Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to Grantor's reservation of the following rights with respect to the Property: 1. [insert applicable reservations or state non applicable] Exceptions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is subject to the following exceptions: [insert applicable exceptions] !044033.5 EXHIBIT C Form of Covenant and Temporary Easement Agreement COVENANT AND TEMPORARY EASEMENT AGREEMENT THIS COVENANT AND TEMPORARY EASEMENT AGREEMENT (this "Easement Agreement ") is made and entered into as of this day of , 2013 ( "Effective Date "), by and between the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (together with its successors and assigns, "Grantor "); and EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company (together with its successors and assigns, "Grantee "). Recitals A. Grantor is the owner of certain real property located in Eagle County, Colorado, legally described on EXHIBIT A: LEGAL DESCRIPTION OF FS VILLAGE PARCEL attached hereto and incorporated herein by this reference, which property is generally referred to as the Forest Service Village Parcel ( "FS Village Parcel"). B. Grantee is the owner of certain real property located in Eagle County, Colorado, legally described on EXHIBIT B: LEGAL DESCRIPTION OF PLANNING AREA I attached hereto and incorporated herein by this reference, which property is designated as Planning Area I ( "Planning Area I") pursuant to The Village (at Avon) PUD Master Plan, Formal Amendment Two as recorded in the real property records of Eagle County, Colorado on , 2013 at Reception No. ( "PUD Master Plan "). C. Exhibit F of The Village (at Avon) Amended and Restated PUD Guide dated as of , 2013 and recorded in the real property records of Eagle County, Colorado on , 2013 at Reception No. ( "PUD Guide "), establishes the applicable design and improvernent standards ( "Design Standards ") for construction of an extension of Swift Gulch Road as a rural local roadway ( "Planning Area I Access Road ") over, across and through the FS Village Parcel to provide access to Planning Area I from Planning Area J. D. Grantor and Grantee are parties to that certain Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of , 2013 and recorded in the real property records of Eagle County, Colorado on , 2013 at Reception No. ( "Development Agreement "). E. Pursuant to Section 4.2(e) of the Development Agreement: (i) Grantor is legally obligated to execute and deliver this Easement Agreement to Grantee (or to the then - Landowner(s) of Planning Area I) within three (3) business days after acquiring title to the FS Village Parcel, but in any event prior to permitting the recordation of a conservation easement or similar instrument limiting potential development within the FS Village Parcel or any other conveyance by the Town of the FS Village Parcel or any C -1 1044033.5 interest therein; and (ii) this Easement Agreement shall be recorded as a prior interest to any conservation easement or similar instrument, and any such subsequent conveyance or grant by the Town shall be expressly subject and subordinate to this Easement Agreement. F. Prior to actual construction of the Planning Area I Access Road, the alignment of the Planning Area I Access Road and the Temporary Easement (as defined in Paragraph 2) are intended to be conceptual and to assure Grantee's legal right to construct the Planning Area I Access Road in an alignment to be finally established at the time of construction drawing review and approval by Grantor in its governmental capacity in connection with future development application review for Planning Area 1. G. Grantor and Grantee intend that execution, delivery and recording of this Easement Agreement shall constitute satisfaction of Grantor's obligations pursuant to Section 4.2(e) of the Development Agreement and shall be construed and enforced in that manner which enables Grantee's enjoyment of the rights granted to Grantee in this Easement Agreement, including but not limited to the future construction, operation and maintenance of the Facilities (as defined in Paragraph 2) in accordance with the terms and conditions of the Design Standards, the PUD Guide and the Development Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Covenant to Consent to Applications. If Grantor acquires fee title to the FS Village Parcel, Grantor agrees and covenants that Grantor shall provide consent as the owner of the FS Village Parcel to Grantee, including providing a properly acknowledged power of attorney to Grantee, that Grantee may submit a subdivision application pursuant to Avon Municipal Code §7.16.020(b)(1) for the FS Village Parcel to plat and dedicate a public road right -of -way. The grant of this covenant shall not restrict or diminish the Grantor's rights to review a subdivision application and /or application for road construction, an accompanying pedestrian/recreational trail facility or other associated public improvements in accordance with the Design Standards and other applicable standards and procedures of the PUD Guide and the Avon Municipal Code. 2. Grant of Temporary Easement. Grantor hereby grants, bargains, sells and conveys to Grantee, together with its engineers, contractors, employees and similar consultants to Grantee and /or its assigns as may be necessary or desirable (collectively, "Permittees "), a temporary, non - exclusive, easement appurtenant to Planning Area I ( "Temporary Easement ") over, under, through and across that portion of the FS Village Parcel which is graphically depicted in EXHIBIT C: GRAPHIC DESCRIPTION OF TEMPORARY EASEMENT AREA ( "Temporary Easement Area ") for the right to enter upon the Temporary Easement Area and such adjacent areas of the FS Village Parcel thereto as may reasonably be necessary to survey, conduct geotechnical and similar physical investigation related to construction of the Roadway Facilities and the Utility Facilities, as each are defined in Paragraph 3 below (collectively, the C -2 1044033.5 "Facilities "). The Temporary Easement shall commence on the date of execution of this Easement Agreement and shall continue through the date on which the Planning Area I Access Road is constructed and dedicated to the Town in accordance with the applicable provisions of the Development Agreement, the PUD Guide and the Avon Development Code, whereupon the Temporary Easement and this Easement Agreement shall terminate and shall be of no further force and effect. Nothing contained herein shall obligate Grantee to install, or cause to be installed, any or all of the Facilities or to otherwise provide for any such use. 3. Temporary License Agreement. Upon the approval by Grantor of a properly submitted subdivision application establishing and dedicating a public road right -of -way within the FS Village Parcel as contemplated by the Development Agreement and this Easement Agreement, and an approval by Grantor of a properly submitted application and public improvements agreement for construction of the Facilities within such dedicated public road right -of -way, Grantor and Grantee will execute a Temporary License Agreement to allow construction of the Facilities in accordance with the Design Standards and other applicable procedures and standards set forth in the Development Agreement, the PUD Guide and the Avon Development Code. The Temporary License Agreement shall permit the Grantee to enter upon the FS Village Parcel and to: (i) construct and install drive lanes, roadways, landscaping, sidewalks, bike paths, recreational trail, retaining walls, and other access facilities necessary or desirable for such access, and all fixtures and devices reasonably used or useful in the operation of such facilities (collectively, the "Roadway Facilities "); (ii) construct and install water lines, sanitary sewer lines, storm drainage facilities, electrical lines, gas lines, telephone lines, fiber optic lines, cable television lines and similar utilities and utility facilities, together with all sleeves, conduit, junction boxes, vaults, fixtures and devices reasonably used or useful in the operation of such facilities, whether publicly or privately owned (collectively, the "Utility Facilities "); and, (iii) stage construction materials and equipment within designated areas on the Temporary Easement Area as may be approved by the Town. The form of Temporary License Agreement is attached as EXHIBIT D: FORM OF LICENSE AGREEMENT. 4. Entry; Site Investigation; Construction Staging; Restoration of Surface. In conducting the design and construction of the Facilities, including but not limited to surveying, geotechnical testing, other physical inspection and similar matters, it will be necessary or desirable for Grantee and /or the Permittees to enter upon and /or cause disturbances to the surface of the Temporary Easement Area and potentially to the surface of adjacent areas of the FS Village Parcel. Grantee shall provide not less than five (5) business days' written notice to Grantor of any planned entrance upon and /or conduct of physical testing or inspection of the Temporary Easement Area and /or adjacent areas of the FS Village Parcel. Grantor shall coordinate with Grantee regarding the scope, nature and duration of such activities, but shall not unreasonably object to or interfere with Grantee's and /or Permittees' conduct of such activities. To the extent such activities disturb vegetation or otherwise disturb the surface, Grantee shall promptly cause revegetation and /or otherwise cause restoration of the affected area to a condition reasonably consistent with its condition prior to Grantee's and /or Permittees' conduct of such activities. 5. Grantor's Reserved Rights. Grantor reserves the right to grant additional non - exclusive easement interests within the Temporary Easement Area and the FS Village Parcel so long as such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee's C -3 1044033.5 or Permittees' full exercise of Grantee's rights in this Easement Agreement, including but not limited to the rights set forth in the Temporary Easement and the Temporary License Agreement. Grantor reserves the right to use and occupy the FS Village Parcel and the Temporary Easement Area for any and all purposes not inconsistent with the rights and privileges granted herein, including the grant and conveyance of such conservation easements or other real property interests in and to the FS Village Parcel and the Temporary Easement Area so long as all such interests and conveyances are made expressly subject and subordinate to Grantee's rights under this Easement Agreement. 6. Title Matters; No Warranties. This Easement Agreement is subject to all prior easements, restrictions, reservations, rights -of -way, encumbrances and similar matters of record as of the Effective Date. Grantor makes no representations or warranties regarding the status of title to the FS Village Parcel or the Temporary Easement Area as of the Effective Date, and the grant of easements and other rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance. Except with Grantee's prior written consent, all matters affecting title to the FS Village Parcel and the Temporary Easement Area after the Effective Date shall be subordinate to the terms and conditions of this Easement Agreement. 7. Covenants. Each and every benefit and burden of this Easement Agreement shall inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The burdens and benefits hereof shall run with title to the FS Village Parcel and the Temporary Easement Area, and shall run with title to Planning Area I. Any person or entity that acquires any interest in the FS Village Parcel and /or the Temporary Easement Area, and any person or entity that acquires any interest in Planning Area I, shall be bound by the burdens and entitled to the benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement constitute covenants that run with and encumber title to the FS Village Parcel, the Temporary Easement Area and Planning Area I. 8. Assignment. To the extent Traer Creek Metropolitan District or another District (as defined in the Development Agreement) undertakes to construct all or part of the Facilities pursuant to Section 3.2(a) of the Development Agreement, Grantee shall have the right to assign to Traer Creek Metropolitan District or such other District (in whole or in part) its rights and obligations arising pursuant to this Easement Agreement. 9. LetZal Fees and Costs. The prevailing party in any legal action with respect to this Easement Agreement shall be awarded it reasonable costs and attorneys' fees incurred with respect thereto. 10. Counterparts. This Easement Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. C -4 1044033.5 IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as of the date first written above. GRANTOR: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Attest: Rich Carroll, Mayor STATE OF COLORADO ) ss. COUNTY OF EAGLE ) Patty McKenny, Town Clerk The foregoing instrument was acknowledged before me this day of , 2013, by Rich Carroll, as Mayor of the TOWN OF AVON, a home rule municipal corporation of the State of Colorado. Witness my hand and official seal. Notary Public My commission expires: GRANTEE: EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Lava Corporation, a Colorado corporation, its Manager By:_ Name Title: Michael Lindholm President STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013 by Michael Lindholm, President of Lava Corporation, a Colorado corporation, as Manager of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company. Witness my hand and official seal. Notary Public My commission expires: 1044033.5 C -5 EXHIBIT A LEGAL DESCRIPTION OF THE FS VILLAGE PARCEL Sixth Principal Meridian, Colorado T. 5 S. R. 81 W., sec. 8, lots 1 and 2 Cab 1044033.5 EXHIBIT B LEGAL DESCRIPTION OF PLANNING AREA I Planning Area I is that portion of the following legal description which is depicted on the PUD Master Plan and designated as Planning Area 1. TRACT M Those parts of Secceions 8 and ,9, Tvwnslhip 5 Sou-_h, Ratio 81 Wes-- of t e Sixt'll'i Principal Meridian, EacTle Count­ , Crdorado, accor6ing E2 tile -D R ury t'o epn d n -et esl e-v of said Towns.ninp and Rancie, acc-ented Noven-Ler 1, 1943 tn,, the Departmi _­'_ Of tla � Tj-jt,=-­-or Genel:al Land (-',ffice in Washi nqr on, D.C., de s C r 4 oiiows: 1;D, d as a whole as Beginnin-q at the W 1'/16 corner of c-,a--',d Sectlon 9 and Sect-1cm 16 of said T-cwnshi-,a and Range; thence 1,789- - -S' 411 1371.9e feet, along t n 1- ne -- SaiCt S,'A 11' /4 SW 1/44 ��o the Sect.ion corner ofc said Sections 8, 9, and 16 ana Section 17 of said Tow-ns'llln and ter Range; t'nence N01`32 I 0011E 3 . �2 feet, alonq tilt=_ ae cs ly of said Section 9, -110 tllle rlorth,erly -4-ht-cf-way e o_ Denver 1G7ra_nd-_= Western saia� nort1herl-', r i ght, -o f ­v' a y n e heing parallel wit1h and S' fee'�_- .nor ti-ierly of v,ln en-Lerline - of the exiszin� railroad tracks; thence the follow Ing zwo courses _a.. inns L.48 feet alonc� rhe arc o-F said nort__nerly ricfht-of­.'.wv line: a cur-ve to left, having -a radiiuo of ce--trai angle c�_` and a chor,,i wla-Lch bearo N18S_S113611W feet',' i2 N186_'S9'2;_"W _1213.28 ^-' et, ti_, wesrel_-L`',, line of t1le SE 1/4 cE _r£1 of said Secr_io,_,� 6; thence N00- 7'1'7.S'& feet, saila %-:est-erly line; t1l�ence, Cte�j."Ja2:-_Inct said we-zterly 1-ine, a "I - i- S 8 9 'SIS 1 0 4 " E .'x`38 .4c -c e e, t , tip t he e- a c- t er 7 -y 1 i ne co -f r1r] e SW " /4 SW 1? z of -,aid Sectior 9 thence, along said each -cerl­ e, `.'L'1 33 ' 1 _3 " W 7 9 0 . S, 4 f e,�tz- , to =i3 po in beg i nq , c on tla _,n i nci C-7 1044033.5 EXHIBIT C GRAPHIC DEPICTION OF TEMPORARY EASEMENT AREA S CT 10 N 8 41!45 � F xf 5 k i�. EM +IE - *'iL EAxnJS. .i.. E'FL` EXCE TICAS TO THE C,3N-, ERV'A.T1,'F E .SEIl 'i T "The purpose of this agreement for the public road is to have a road from old Planning Area RNIF -1 i current Planning Area J to old Planning Area M i current Planning Area I. Final alitriutlent and platting of the future right -of -way for the public road through the "potential road alimlfeat area" is subject to the applicable procedures and standards set forth in the PUD Guide and the lfunicipal Code. Final aligmite €u is dependent on engineering and economic analysis. concerns and considerations. including review of soils. geologic hazards. slope stability hazards and economic efficiency, as may be determined in the fiiture, with the goal of building the most economically feasible and efficient road. This Exhibit C's depiction is for illustration purposes and is not intended to be inflexible. W 1044033.5 EXHIBIT D FORM OF TEMPORARY LICENSE AGREEMENT AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND FOR THE GRANT OF A TEMPORARY LICENSE TO INSTALL AND CONSTRUCT A ROAD ON TOWN -OWNED PROPERTY 1. Parties. The parties to this agreement ( "Agreement ") are the TOWN OF AVON, COLORADO, a Colorado home rule municipality (the "Town ") and execution by the Licensee indicated below. 2. Recitals and Purpose. (the "Licensee "). This Agreement is effective upon and following execution by the Town Manager on the date (a) The Town is the owner of certain property located in the Town of Avon, Eagle County, Colorado, commonly known as the ( "Town Property "). (b) The Licensee desires to encroach upon and occupy the Town Property for the purpose of installing and constructing certain Roadway Facilities and Utility Facilities (collectively referred to as "Facilities ") as described in the Covenant and Temporary Easement Agreement dated , ( "Easement Agreement "). (c) The Town and Licensee have agreed to enter into this temporary license agreement under the terms and conditions as hereinafter specified in this Agreement provided that nothing in this Agreement shall waive or modify any obligation to seek building permits, variances, or other approval necessary to meet any obligation imposed by law. The Licensee remains obligated to apply for and obtain all necessary permits and approvals, pay all required fees, and comply with all applicable local laws, including but not limited to any applicable provisions of this Agreement, Exhibit F of The Village (at Avon) Amended and Restated PUD Guide dated as of , 20[_] and recorded in the real property records of Eagle County, Colorado on 20[_] at Reception No. , ( "PUD Guide "), and the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of , 20[_] and recorded in the real property records of Eagle County, Colorado on , 20[_] at Reception No. ( "Development Agreement "). 3. Terms and Conditions. (a) License Granted. The Town hereby grants to the Licensee a temporary license for the encroachment and occupation as described in the public improvements agreements approved by the Town to construct the Facilities; provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town of Avon. Except for the encroachment and occupation of the Facilities, no other encroachment, structure, improvement, vehicle, C -9 1044033.5 fence, wall, landscaping, or any other real or personal property shall be erected, installed, constructed, parked, stored, kept, or maintained in any way or fashion on the Town Property. (b) Term and Termination. This Agreement shall continue until the Roadway Facilities are dedicated to the Town and the applicable portions of the Utility Facilities are dedicated to the respective utility providers in accordance with the procedures and timeframes established in the public improvements agreement to construct the Facilities. Upon dedication and final acceptances of the Facilities this Agreement is terminated. In the event that the Licensee fails to comply with the construction timeframe, procedures or other provisions of the public improvements agreement the Town may elect to provide notice of default in writing to the Licensee. If the Town has provided such notice of default and Licensee is unable to cure the default within ninety (90) days after receipt of a notice of default, then Town may terminate this Agreement. In the event that Licensee has failed to complete the Facilities as required by the public improvements agreement and the Town has elected to utilize the financial security to complete the Facilities, then Town may immediately terminate this Agreement. (c) Indemnification. The Licensee expressly agrees to, and shall, indemnify and hold harmless the Town and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and attorney's fee that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any omission or act of commission by the Licensee or any of its employees, agents, partners, or lessees, in encroaching upon the Town Property. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensee shall indemnify the Town for all claims, damages, liability, or court awards, including costs and attorney's fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any claim in whole or in part that all or any portion of the Facilities and encroachment permitted by this Agreement constitutes a dangerous and /or unsafe condition within a public right -of -way. (d) Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an "additional insured ". However, the Licensee's failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Licensee to indemnify or hold the Town harmless in accordance with this Agreement. 4. Assignment. This Agreement shall not be assigned by the Licensee without the prior written consent of the Town which may withhold its consent for any reason; provided that the Town C -10 1044033.5 encourages the Licensee to inform any purchaser of the Licensee's property or interests of the existence of this Agreement and the Town will promptly consider any request by the Licensee for assignment of this Agreement to such subsequent purchaser. 5. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the signature page below, or at such other address as has been previously furnished in writing, to the other party or parties. Such notice shall be deemed to have been given when deposited in the United States Mail. 6. Integration and Amendment. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings; provided, however, the Easement Agreement shall remain in effect in accordance with its terms. This Agreement may be amended only by an instrument in writing signed by the parties. If any other provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke any authorization, whether explicit or implied to the continuing use and occupancy of the Town Property for the Facilities. 7. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado and venue for any action arising under this agreement shall be in the appropriate court for Eagle County, Colorado. 8. Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 9. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 10. Underlying Intent and Scope. It is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the construction, maintenance, or operation of the Facilities and encroachment permitted by this Agreement and that, in all instances, the risk of loss, liability, obligation, damages, and claims associated with the encroachment shall be borne by the Licensee. This Agreement does not confer upon the Licensee any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. C -11 10440335 11. Authority to Bind Party. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of the Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority. 12. Legal Fees and Costs. The prevailing party in any legal action with respect to this Easement Agreement shall be awarded it reasonable costs and attorneys' fees incurred with respect thereto. DATED THIS DAY OF , 20 TOWN OF AVON: ATTEST: Town Clerk or Deputy Town Clerk Town Manger Approved as to Form: For Town Attorney's Office LICENSEE: By: Print Name: Address: STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this , 20 , personally by (SEAL) 1044033.5 Commission expires: C -12 Notary Public day of EXHIBIT D Prioritized Capital Projects Prioritized Capital Projects List Budgetary Cost Estimates Item Lot 1 East Beaver Creek Blvd. Lot 1 Main Street Lot 1 North /South Roads (2) Planning Area J (east) East/West Road General Conditions 750,000 715,000 560,000 280,000 Demolition 39,825 1,726,900 166,650 266,675 Earthwork 1,108,275 119,685 123,390 187,440 Roadway 1,630,990 1,349,930 393,310 719,465 Utilities 894,300 1,129,900 227,600 356,800 Erosion Control 27,000 27,000 16,600 9,500 Landscaping 340,238 311,890 128,800 180,050 Electrical & Lighting 347,280 289,400 115,760 185,216 Roundabouts 000 2,000,000 000 000 Subtotal 5,137,908 7,669,705 1,732,110 2,185,146 20% Contingency 1,027,582 1,533,941 346,422 437,029 Total 6,200,000 9,200,000 2,100,000 2,600,000 D -1 1044033.5 EXHIBIT E Schedule of Past Developer Advances and Avon Receivable Contract Repayment Principal Accrued Priority of Repayment Date Party Amount Interest Total2 Developer Advances Amended and Restated Funding and Reimbursement Agreement 05/08/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211 Facilities Acquisition Agreement 05/29/2002 See Note 3 below 4,029,786 2,193,749 6,223,535 2003 Funding and Reimbursement Agreement, as amended 03/25/2004 Traer Creek LLC 2,560,673 1,672,846 4,233,519 2006 Operation Funding Agreement 01/26/2006 Traer Creek LLC 576,310 249,048 825,358 2007 Operation Funding Agreement 11/30/2006 Traer Creek LLC 841,980 335,769 1,177,749 2008 Operation Funding Agreement 12/14/2007 Traer Creek LLC 279,116 88,079 367,195 2009 Operations Advance 12/14/2007 Traer Creek LLC 87,694 15,161 102,855 2010 Operations Advance 12/14/2007 Traer Creek LLC 122,743 10,188 132,931 2011 Operations Advance 12/14/2007 Traer Creek LLC 72,682 - 72,682 Total Developer advances 12,047,736 7,022,299 19,070,035 Avon Receivable various see 2008 Avon Receivable attached Town of Avon 482,642 - 482,642 various see 2009 Avon Receivable attached Town of Avon 1,064,062 - 1,064,062 various see 2010 Avon Receivable attached Town of Avon 1,126,649 - 1,126,649 various see 2011 Avon Receivable attached Town of Avon 848,956 - 848,956 Total Avon receivable 3,522,309 - 3,522,309 Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344 'The net credit for amounts owed to the District by the Developer for Cable TV Filing 1; Utilities Filing 3; and the Parking Structure (645k) with accumulated interest that were in excess of the additional developer advances not captured above for the Dirt Removal Agreement ($417k) was applied against the accrued interest for the Amended and Restated Funding and Reimbursement Agreement '`All totals are as of December 31, 2011. 3The District's records reflect that the amount outstanding under the Facilities Acquisition Agreement are as follows: Traer Creek -RP LLC $ 2,440,000 $ 1,328,296 $ 3,768,296 Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, LLLP 1,589,786 865,453 2,455,239 Total amount outstanding at December 31, 2011 $ 4,029,786 $ 2,193,749 $ 6,223,535 Repayment of amounts due under the Facilities Acquisition Agreement will be allocated equally (on a pari passu basis) as funds are available after reimbursement to Traer Creek LLC under the Amended and Restated Funding and Reimbursement Agreement dated May 8, 2002, as amended. E -1 1044033.5 Date Obligation Was Priority of Repayment Incurred 2002 Funding and Reimbursement Agreement 5/7/2002 2003 Funding and Reimbursement Agreement 9/17/2003 2003 Funding and Reimbursement Agreement 10/22/2003 2003 Funding and Reimbursement Agreement 11/30/2003 2003 Funding and Reimbursement Agreement 1/19/2004 Facilities Acquisition Agreement 3 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2006 Operation Funding Agreement 2007 Operation Funding Agreement 2007 Operation Funding Agreement 2007 Operation Funding Agreement 2007 Operation Funding Agreement 2007 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Operation Funding Agreement 2008 Avon Receivable 2008 Avon Receivable 2008 Avon Receivable 2008 Operation Funding Agreement 2008 Avon Receivable 2008 Avon Receivable 2008 Operation Funding Agreement 2008 Avon Receivable 2008 Avon Receivable 2008 Operation Funding Agreement 2008 Avon Receivable 2008 Avon Receivable 2008 Avon Receivable 2008 Operation Funding Agreement 2009 Avon Receivable 2009 Avon Receivable 2009 Avon Receivable 2009 Avon Receivable 3/10/2005 4/18/2006 5/24/2006 8/9/2006 9/l/2006 9/19/2006 10/19/2006 11/22/2006 1/8/2007 1/8/2007 1/17/2007 7/20/2007 8/17/2007 10/3/2007 10/30/2007 12/14/2007 1/31/2008 2/28/2008 3/31/2008 4/30/2008 5/31/2008 6/30/2008 7/31/2008 8/31/2008 9/l/2008 9/l/2008 9/l/2008 9/30/2008 10/l/2008 10/l/2008 10/31/2008 11/1/2008 11/112008 11/30/2008 12/1/2008 12/1/2008 12/l/2008 12/31/2008 1/l/2009 1/1/2009 2/l/2009 2/l/2009 Repayment Party Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek -RP LLC Buffalo Ridge Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Traer Creek LLC Town of Avon Town of Avon Town of Avon Traer Creek LLC Town of Avon Town of Avon Traer Creek LLC Town of Avon Town of Avon Traer Creek LLC Town of Avon Town of Avon Town of Avon Traer Creek LLC Town of Avon Town of Avon Town of Avon Town of Avon E -2 1044033.5 Principal Accrued Amount Interest Total 2 $ 3,476,752 $ 2,457,459 $ 5,934,211 860,673 1,672,846 2,533,519 500,000 - 500,000 950,000 - 950,000 250,000 - 250,000 4,029,786 2,193,749 6,223,535 45,016 249,048 294,064 227,197 - 227,197 69,255 - 69,255 66,832 - 66,832 5,842 - 5,842 30,922 - 30,922 80,195 - 80,195 15,505 - 15,505 8,938 - 8,938 26,608 - 26,608 79,980 335,769 415,749 165,980 - 165,980 151,980 - 151,980 152,000 - 152,000 292,040 - 292,040 13,168 88,079 101,247 12,500 - 12,500 12,500 - 12,500 30,450 - 30,450 30,450 - 30,450 30,450 - 30,450 30,450 - 30,450 31,575 - 31,575 EA 46,813 - 46,813 MS 58,206 - 58,206 STSF 37,276 - 37,276 30,450 - 30,450 EBC 58,206 - 58,206 MS 37,276 - 37,276 30,450 - 30,450 MS 58,206 - 58,206 STSF 39,276 - 39,276 12,500 - 12,500 EBC 49,901 - 49,901 MS 58,206 - 58,206 STSF 39,276 - 39,276 14,173 - 14,173 MS 10,920 - 10,920 STSF 39,276 - 39,276 MS 10,920 - 10,920 STSF 39,276 - 39,276 E -3 1044033.5 Date Obligation Was Repayment Principal Accrued Priority of Repayment Incurred Party Amount Interest Total 2 2009 Avon Receivable 3/1/2009 Town of Avon MS 10,920 - 10,920 2009 Avon Receivable 3/1/2009 Town of Avon STSF 39,276 - 39,276 2009 Avon Receivable 4/1/2009 Town of Avon MS 10,920 - 10,920 2009 Avon Receivable 4/1/2009 Town of Avon STSF 39,276 - 39,276 2009 Avon Receivable 5/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 5/1/2009 Town of Avon STSF 39,276 - 39,276 2009 Avon Receivable 6/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 6/1/2009 Town of Avon STSF 39,276 - 39,276 2009 Avon Receivable 7/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 7/1/2009 Town of Avon STSF 39,276 - 39,276 2009 Avon Receivable 8/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 8/l/2009 Town of Avon STSF 186,467 - 186,467 2009 Avon Receivable 9/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 9/1/2009 Town of Avon STSF 54,098 - 54,098 2009 Avon Receivable 9/1/2009 Town of Avon EBC 48,897 - 48,897 2009 Avon Receivable 10/1/2009 Town of Avon MS 48,407 - 48,407 2009 Avon Receivable 10/1/2009 Town of Avon STSF 54,098 - 54,098 2009 Avon Receivable 11/1/2009 Town of Avon MS 3,251 - 3,251 2009 Avon Receivable 11/1/2009 Town of Avon STSF 54,098 - 54,098 2009 Avon Receivable 12/1/2009 Town of Avon MS - - - 2009 Avon Receivable 12/1/2009 Town of Avon STSF 54,099 - 54,099 2009 Operations Advance 12/31/2009 Traer Creek LLC 87,694 15,161 102,855 2010 Avon Receivable 1/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 1/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 2/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 2/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 3/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 3/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 4/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 4/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 5/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 5/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 6/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 6/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 7/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 7/1/2010 Town of Avon STSF 54,098 - 54,098 2010 Avon Receivable 8/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 8/1/2010 Town of Avon STSF 92,181 - 92,181 2010 Avon Receivable 9/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 9/1/2010 Town of Avon STSF 56,403 - 56,403 2010 Avon Receivable 10/1/2010 Town of Avon MS 42,204 - 42,204 2010 Avon Receivable 10/1/2010 Town of Avon STSF 56,403 - 56,403 2010 Avon Receivable 11/1/2010 Town of Avon MS 8,126 - 8,126 2010 Avon Receivable 11/1/2010 Town of Avon STSF 56,403 - 56,403 2010 Avon Receivable 12/1/2010 Town of Avon MS - - - 2010 Avon Receivable 12/1/2010 Town of Avon STSF 56,407 - 56,407 2010 Operations Advance 12/31/2010 Traer Creek LLC 122,743 10,188 132,931 2011 Avon Receivable 1/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 1/1/2011 Town of Avon STSF 56,403 56,403 E -3 1044033.5 E -4 1044033.5 Date Obligation Was Repayment Principal Accrued Priority of Repayment Incurred Party Amount Interest Total 2 2011 Avon Receivable 2/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 2/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 3/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 3/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 4/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 4/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 5/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 5/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 6/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 6/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 7/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 7/1/2011 Town of Avon STSF 56,403 - 56,403 2011 Avon Receivable 8/1/2011 Town of Avon MS 29,725 - 29,725 2011 Avon Receivable 8/1/2011 Town of Avon STSF 42,721 - 42,721 2011 Avon Receivable 9/1/2011 Town of Avon MS 29,724 - 29,724 2011 Avon Receivable 9/1/2011 Town of Avon STSF 57,082 - 57,082 2011 Avon Receivable 10/1/2011 Town of Avon MS 29,724 - 29,724 2011 Avon Receivable 10/1/2011 Town of Avon STSF 57,084 - 57,084 2011 Operations Advance 12/31/2011 Traer Creek LLC 72,682 - 72,682 Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344 E -4 1044033.5 EXHIBIT F Definitions 1. 2013 Bond Reissue means bonds issued by TCMD on or prior to the Effective Date to refund TCMD's Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds, Series 2004, in implementation of the Settlement Term Sheet, including but not limited to any refunding bonds issued by a District to repay or defease bonds as to which BNP is a credit enhancer, letter of credit provider or bondholder. 2. 2013 Reissue Documents means any indenture, custodial agreement, reimbursement agreement or other agreement entered into by a District in connection with the 2013 Bond Reissue that pledges all or any portion of District Revenues to payment of the 2013 Bond Reissue (and /or to the provider of any credit enhancement for the 2013 Bond Reissue). 3. 2013 Bond RepnMent Period means the period commencing on the initial issuance date of the 2013 Bond Reissue and terminating on the earlier to occur of: (i) the date on which all obligations constituting the 2013 Bond Reissue and all District obligations to any purchaser of (and /or provider of credit enhancement for) the 2013 Bond Reissue have been paid in full; or (ii) the date on which the lien on District Revenues in favor of the 2013 Bond Reissue and all District obligations to any purchaser of (and /or provider of credit enhancement for) the 2013 Bond Reissue otherwise have been released. 4. Accept(ed) /Acceptance means the Town's acceptance of Dedicated real property interests and Public Improvements located therein for purposes of ownership and maintenance, consisting of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect from time to time) as modified and or exempted by the Development Plan; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 5. Accommodations /Lodging Fee means the Credit PIF imposed pursuant to the PIF Covenants on accommodations /lodging transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Accommodations /Lodging Fee shall be construed to be part of a Taxable Transaction, and shall be subject to the Town's tax on accommodations /lodging transactions. 6. Additional Developer Advances means funds advanced after the Effective Date for Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner to or on behalf of TCMD, VMD or another District (whether the corresponding Capital Projects are undertaken directly by such District or acquired by such District after construction by the party entitled to reimbursement for the costs thereof), which advances are subject to reimbursement by such District utilizing Credit PIF Revenues, together with simple interest at a rate equal to the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the particular Additional Developer Advance being made, for Baa investment grade bonds on the date of such advance plus 375 basis points, and which are secured by such District's issuance of an instrument (note, bond, funding/reimbursement agreement or similar form of instrument) evidencing such District's financial obligation to repay such advances; provided, however, that F -1 1044033.5 Master Developer's contributions to the Asphalt Overlay Account pursuant to Section 6.6(a)(iv) shall be construed to be Additional Developer Advances only to the extent reimbursable from a District using Credit PIF Revenues. 7. Add -On PIF means that portion of the Public Improvement Fees with respect to which the Tax Credit does not apply or attach. As of the Effective Date, the Add -On PIF consists only of the Add -On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the future to impose the Add -On PIF on other types of transactions and /or at a rate in excess of the Add -On RSF rate required by this Development Agreement. 8. Add -On PIF Revenues means the gross revenues actually collected from imposition of the Add -On PIF in accordance with the PIF Covenants, which may consist of Add -On RSF Revenues, Municipal Payments and other revenues derived from imposition of the Add -On PIF on transactions other than retail sales that are Taxable Transactions or at rates in excess of the Add -On RSF rate. 9. Add -On RSF means the imposition of the Add -On PIF only to retail sales transactions that are Taxable Transactions at the rate set forth in Section 6.4(b) and in accordance with the terms and conditions of the Financing Plan. 10. Add -On RSF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Add -On RSF Revenues on behalf of the PICs. 11. Add -On RSF Collection Services Agreement(s) means one or more agreements entered into from time to time by and among the PICs, the Town and the Add -On RSF Collection Agent providing for the administration, collection and distribution of the Add -On RSF Revenues. 12. Add -On RSF Revenues means the gross revenues actually collected from imposition of the Add -On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments to be remitted to the Town during the Tenn as set forth in Section 6.5 and the remainder of which (including any such revenues the PICs continue to collect after the Tenn) shall be utilized for other lawful purposes otherwise authorized by the PIF Covenants. 13. Allowed O &M Expenses means the amount of District Revenues to be remitted to and retained by TCMD in each calendar year during the Tenn for payment o£ (i) TCMD's annual contribution to the Asphalt Overlay Account; (ii) the Annual Debt Service Obligation; and (iii) the Annual Base O &M Amount. For each full calendar year during the Term, the Allowed O &M Expenses shall be: (A) for calendar years 2014 through 2018, $1,000,000 (One Million Dollars); (B) for calendar year 2019 and each subsequent calendar year including the calendar year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $1,025,000 (One Million Twenty -Five Thousand Dollars); and (C) for each calendar year after the year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $950,000 (Nine Hundred Fifty Thousand Dollars) per year. 14. Annual Base O &M Amount means $460,000 per year for each of calendar years 2013 through 2017, and $450,000 per calendar year for each calendar year thereafter. F -2 1044033.5 15. Annual Debt Service Obli ag tion has the meaning and is subject to the terms, conditions, restrictions and requirements set forth in the Pledge Agreement. 16. Ap lip cant means the Landowner of the real property comprising the Site for which a Development Application is submitted, or an individual or entity whom the Landowner has designated in writing as its authorized representative for the purpose of representing the Landowner and /or acting upon any Development Application or submittal for development of the pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple ownership of the Site or portion thereof with the fee owner's written consent to any such application or submittal, or which may be an owners' association for a condominium project or like common interest ownership project). Notwithstanding any additional or conflicting provision of the Municipal Code (whether as in effect on the Execution Date or as amended from time to time), the definition of "Applicant" shall not be construed to mean any person or entity owning, holding or possessing an easement interest, a leasehold interest, a license, a security interest or any other form of interest in the Site, whether possessory or otherwise, other than fee simple ownership of the Site as reflected in the official records of the Eagle County Tax Assessors office. 17. Approved SSDP(s) means, individually or collectively: (i) the Development Agreement; (ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date, Town Council approves (or otherwise approved by the Town including, for example, an administratively approved final plat, an administratively approved amendment to the PUD Guide or similar previously approved Site Specific Development Plan) and designates as a Site Specific Development Plan that establishes Vested Property Rights, together with amendments (if any) to such approved Development Applications. 18. Article refers to a numbered Article of the Development Agreement, unless otherwise stated. 19. Asphalt Overlay greement means that certain Asphalt Overlay Escrow Account Agreement entered into concurrently with the Effective Date by and among the Town, TCMD and First Bank, Avon Branch and which establishes the terms and conditions upon which funds shall be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account as generally provided in Section 6.6. 20. Asphalt Overlay Account means a restricted escrow account established pursuant to the Asphalt Overlay Agreement into which Master Developer, the Town and TCMD and /or VMD shall deposit funds for asphalt overlays of public roads in the Project in accordance with the terms and conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii) and 6.6. 21. AURA means the Avon Urban Renewal Authority, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. 22. Authority means the Upper Eagle Regional Water Authority, a quasi - municipal corporation and political subdivision of the State of Colorado, together with any successor water service provider (whether pursuant to dissolution of the Authority or otherwise). F -3 1044033.5 23. Avon Receivable means TCMD's past due payment obligation to the Town in the principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with interest thereon as provided in Section 6.9(b)(v)(13)3.II (such principal amount inclusive of $98,798.46 of expenses incurred by the Town in connection with design work for the East Beaver Creek Boulevard Phase 3 obligation as defined in the Original Agreement, which East Beaver Creek Boulevard Phase 3 obligation is extinguished by this Development Agreement). 24. BNP means BNP Paribas, an international bank, together with its successors and assigns. 25. Bond Requirements means the following costs incurred in connection with the issuance of any District Debts other than principal payments (including mandatory sinking fund payments): (a) interest payments on the outstanding principal of District Debts; (b) payments to replenish bond reserve accounts, provided that a bond reserve for any District Debts shall not exceed maximum annual debt service on such District Debts; (c) periodic fees related to credit enhancements (including, without limitation, the Deferred Fees, if any); (d) prepayment premiums; (e) arbitrage rebate payments; (f) fees and expenses of any bond trustee, bond registrar, paying agent, authenticating agent, rebate analyst or consultant, calculation agent, remarketing agent; (g) payments to any rating agency for maintaining a rating on the District Debt; (h) payments due to any provider of an interest rate swap or interest rate cap; and (i) any other amount approved by the Town. Notwithstanding the foregoing, Bond Requirements on the Tank Project Financing shall be limited as provided in the Pledge Agreement. Bond Requirements does not include any such costs which are capitalized and paid with the Net Proceeds of District Debts. 26. Cap Amounts has the meaning set forth in Section 6.2(b). 27. Capital Projects means: (i) Public Improvements required by the Town as a condition of approving a Development Application (for example, public streets; wet utilities such as water, sewer, storm drainage; related grading and landscaping, etc.), and specifically including the Prioritized Capital Projects; (ii) the Tank Project and (iii) even if not specifically required as a condition of approving a Development Application, Public Improvements that serve or benefit the Project and which are eligible to be financed by the Districts and /or AURA under applicable laws. 28. Capital Project Costs means all costs and expenses incurred in connection with the design and construction of Capital Projects, including but not limited to design, engineering, surveying, soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant fees, and application and permit fees related thereto, but not including, if any, Bond Requirements or any costs described in the first sentence of the definition of Bond Requirements which are capitalized and incurred in connection with issuance of District Debts with respect to such Capital Projects. 29. Commercial PIC means The Village (at Avon) Commercial Public Improvement Company, a Colorado non -profit corporation. F -4 1044033.5 30. Credit PIF means, collectively, the Real Estate Transfer Fee, the Accommodations /Lodging Fee and the Retail Sales Fee with respect to each of which the Tax Credit applies and attaches in accordance with Section 6.1, as implemented by Sections 3.08.035 (with respect to sales tax), 3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with respect to public accommodations tax) of the Municipal Code (as in effect on the Execution Date), and a building materials use fee if adopted in accordance with Section 6.4(a)(iv). 31. Credit PIF Cap has the meaning set forth in Section 6.2(b). 32. Credit PIF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Credit PIF Revenues on behalf of the PICs. 33. Credit PIF Collection Services Agreement(s) means one or more agreements entered into from time to time by and among the Credit PIF Collection Agent, the PICs and /or the applicable District(s) providing for the administration, collection and distribution of the Credit PIF Revenues. 34. Credit PIF Revenues means the gross revenues actually collected (but net of the costs incurred in collecting such revenues) from imposition of the Credit PIF. 35. Debt Service Coverage Ratio has the meaning assigned to it in the applicable 2013 Reissue Documents. 36. Dedicate(d) /Dedication means the conveyance, whether by plat or by special warranty deed in the form attached as Exhibit B, to the Town or other appropriate governmental or quasi - govermnental entity of real property for a specified purpose, together with Public Improvements installed thereupon, if any, free and clear of all monetary liens and those non - monetary encumbrances that are not materially inconsistent with the purpose(s) for which Town or other governmental or quasi - governmental entity is acquiring the real property and related Public Improvements. 37. Deferred Amortization has the meaning assigned to it in the applicable 2013 Reissue Documents. 38. Deferred Fees has the meaning assigned to it in the applicable 2013 Reissue Documents. 39. Deferred Reimbursement has the meaning set forth in Section 5.5(b)(iii). 40. Design Covenant means the Declaration of Master Design Review Covenants For The Village (at Avon) dated May 8, 2002 and Recorded on May 8, 2002 at Reception No. 795011, as amended by the First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated June 4, 2008 and Recorded on June 10, 2008 at Reception No. 200812112 and by the Second Amendment and Ratified First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and Recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended from time to time. F -5 1044033.5 41. Design Review Board means The Village (at Avon) Design Review Board as appointed or elected in accordance with the Design Covenant. 42. Design Review Guidelines means the sole and exclusive architectural design, landscape design, urban design and Site design and use standards applicable within the Property as set forth in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011, together with any amendment(s) the Design Review Board may approve after providing notice thereof in accordance with Section 3.1, as prepared, approved and promulgated by the Design Review Board from time to time. 43. Developer(s) means, with respect to any Site, the individual or entity which is causing the development of infrastructure and /or or vertical improvements within such Site to be performed. 44. Developer Affiliate(s) means, individually or collectively as the context dictates, TC -RP, TC Plaza, TC -HD and TC -WMT, together with any other entity with respect to which TCLLC or EMD is the managing member and which acquires title to any portion of the Property after the Execution Date. 45. Development Agreement has the meaning set forth in the initial paragraph of the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) to which this Exhibit F is attached and incorporated into. 46. Development Application means any form of application or submittal to the Town for review and approval of any form of development within the Property, including but not limited to an application or submittal regarding an amendment to the PUD Guide, an amendment to the PUD Master Plan, a preliminary subdivision plan, a final subdivision plat, a grading pennit, a building permit or similar matters. 47. Development Plan means, collectively: (a) the Development Agreement; and (b) the PUD Guide. 48. Districts means, individually or collectively as the context dictates, TCMD, VMD and any additional metropolitan district(s) that may be fonned subsequent to the Execution Date for the purpose of providing services and /or Public Improvements and or other forms of improvements benefiting all or any portion of the Property. 49. District Debts means, collectively, the following financial obligations of the Districts (and any refunding thereof accomplished in accordance with the Development Agreement), the full payment of which shall result in expiration of the Term (unless the Town elects to continue the Tax Credit pursuant to Section 6.1(d)): (i) the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b); and (ii) the Deferred Amortization. 50. District Director(s) means, individually or collectively, the individuals who from time to time hold a seat on the board of directors of a District. F -6 (044033.5 51. District Revenues means, collectively, the Credit PIF Revenues, the Project Ad Valorem Taxes (and related specific ownership taxes), proceeds of Supplemental Bonds (other than Additional Developer Advances), proceeds from Additional Developer Advances and any other lawful revenues of the Districts, including but not limited to revenues from service charges, development fees, impact fees, tap fees (net of amounts required to be remitted to Eagle -Vail Metropolitan District) or similar sources of revenue to the Districts, if any. 52. Effective Date means the date on which the Development Agreement is Recorded. 53. EMD means EMD Limited Liability Company, a Colorado limited liability company. 54. Execution Date has the meaning set forth in the initial paragraph of the Development Agreement. 55. Exhibit means the following exhibits to the Development Agreement, all of which are incorporated by reference into and made a part of the Development Agreement: Exhibit A - Legal Description of Property Exhibit B - Form of Special Warranty Deed for Conveyances to the Town Exhibit C - Form of Covenant and Temporary Easement Agreement Exhibit D - Prioritized Capital Projects Exhibit E - Schedule of Past Developer Advances and Avon Receivable Exhibit F - Definitions 56. Final Acceptance means the Town's undertaking of full responsibility for all operations maintenance, repair, and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights -of -way, managernent of noxious weeds and similar matters in accordance with Town's generally applicable procedures and standards) with respect to Dedicated Public Improvements upon expiration of the warranty period and resolution of any warranty matters arising during the period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 57. Financing Plan means the arrangements, obligations and rights set forth in Article 6 with respect to the financing and /or refinancing of Capital Projects and other Public Improvements in the manner and for the purposes described in the Development Agreement. 58. Forest Service Village Parcel means that parcel of land located between Planning Areas I and J which, as of the Execution Date, is owned by the Town. 59. Intended Beneficiar (Y ies) means, as more particularly described in and subject to the terms and limitations of Section 1.8(b), BNP, Developer Affiliates and Landowners other than F -7 10440335 those who are Parties. No other party or entity shall be construed to be an intended beneficiary or to have any legal right to enforce or rely on any provision, obligation, term or condition of the Development Agreement. 60. Landowner(s) means the fee owner of any real property comprising the Property or any portion thereof. 61. Lenders means those entities having a security interest in any portion of the Property as of the Execution Date, which entities have executed a form of consent and subordination to this Development Agreement that is to be recorded concurrently with this Development Agreement. 62. Limited Party(ies) means, individually or collectively as the context dictates and as more particularly described in and subject to the terms and limitations of Section 1.8(a), AURA, EMD, the Commercial PIC and the Mixed -Use PIC. 63. Litigation has the meaning set forth in Recital H. 64. Lot 1 means Lot 1, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof Recorded at Reception No. 898173, and amended by The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date). 65. Master Developer means EMD (with respect to Planning Area I only) and TCLLC (in all other respects), which entities (or any successor entities), as more specifically described in Section 1.7, are designated and authorized to act on behalf of all Developer Affiliates. 66. Mixed -Use PIC means The Village (at Avon) Mixed -Use Public Improvement Company, a Colorado non - profit corporation. 67. Municipal Code means the Town's municipal code as in effect from time to time unless otherwise stated in the Development Agreement. 68. Municipal PaMent(s} means, as more particularly described in Sections 6.4(b) and 6.5 and in implementation of the Settlement Term Sheet, that portion of the Add -On RSF Revenues (net of the costs of collection as set forth in the Add -On RSF Collection Services Agreement) derived from application of the Add -On RSF to retail sales transactions only (and not to any other Taxable Transactions) which the Town requires to provide a reliable revenue source with growth potential to compensate the Town, and which the Town is entitled to receive, for: (i) providing Municipal Services (whether prior to or after the Effective Date); (ii) releasing TCMD (and all other parties to the Litigation) from the sales tax indemnity obligations (as such obligations were set forth in the Original Agreement); and (iii) assuming TCMD's maintenance obligations pursuant to Section 4.2(c). 69. Municipal Services has the meaning set forth in Section 4.1. 70. Net Proceeds has the following meanings: (i) for the Tank Project Financing, (a) pursuant to Section 6.2(b)(ii), $7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS), and (b) with respect to Deferred Reimbursement amounts payable as 1044033.5 Additional Developer Advances pursuant to Section 5.5(b)(iv)(A), the amount capitalized and counted as principal against the Credit PIF Cap pursuant to clause (B) of Section 6.2(b)(iv); (ii) for Past Developer Advances and any Additional Developer Advances (other than Deferred Reimbursement amounts pursuant to Section 5.5(b)(iv)(A)), the full amount of the advances made to TCMD, VMD or another District for Capital Project Costs; and (iii) for Supplemental Bonds issued in the form of obligations other than Additional Developer Advances, the Total Repayment Cost Comparison amount calculated as follows: (A) if the Total Repayment Cost Comparison amount is a positive number, the Net Proceeds of such Supplemental Bonds shall be defined as the amount that is equal to the amount of the proceeds available from such Supplemental Bonds for payment of Capital Project Costs; and (B) if the Total Repayment Cost Comparison amount is a negative number, the Net Proceeds of such Supplemental Bonds shall defined as the amount that is equal to the sum of the amount of bond proceeds available from such Supplemental Bonds for payment of Capital Project Costs plus the Total Repayment Costs Comparison amount expressed as a positive number. 71. Non -Cap Amounts has the meaning set forth in Section 6.2(c). 72. Non - Credit PIF Revenue Reimbursement means the amount of any Deferred Reimbursement and interest thereon that, as generally provided in Sections 5.5(b)(iv)(B) and 6.9(c), is not payable from Credit PIF Revenues and does not count against the Credit PIF Cap. 73. Original Agreement means that certain Annexation and Development Agreement executed by and between the Town and the Original Owners as of October 13, 1998 and Recorded on November 25, 1998 at Reception No. 67774, as amended by: (i) pursuant to Ordinance 01 -16, the First Amendment to Annexation and Development Agreement dated as of November 13, 2001, and Recorded on December 10, 2001 at Reception No. 779049; (ii) pursuant to Ordinance 03 -08, the Second Amendment to Annexation and Development Agreement dated as of May 27, 2003, and Recorded on July 30, 2003 at Reception No. 842248; and (iii) pursuant to Ordinance 04 -17, the Third Amendment to Annexation and Development Agreement dated as of October 26, 2004, and Recorded on December 22, 2004 at Reception No. 901429. 74. Original Effective Date means October 13, 1998. 75. Original Owners means EMD, PVRT NOTT I LLC, a Colorado limited liability company, PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III LLC, a Colorado limited liability company, which entities owned the Property as of the execution date of and were defined as "Owners" in the Original Agreement (TCLLC being the successor entity to the PVRT entities as described in the Third Amendment of the Original Agreement). 76. Original PUD Guide means The Village (at Avon) PUD Guide dated October 13, 1998 and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at Reception No. 677744, as amended by: (i) PUD Development Plan Administrative Amendment No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439; (ii) PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the F -9 1044033.5 real property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254; (iii) PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806; (iv) PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805; and (v) Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25, 2007, and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at Reception No. 200705491. 77. Part ies means, individually or collectively as the context dictates, the Town, TCMD, VMD and Master Developer. 78. Past Developer Advance(s) means, collectively and as more specifically set forth in Exhibit E, the following TCMD obligations incurred prior to the Effective Date: (i) the principal payable to certain of the Developer Affiliates, together with interest thereon at the rate set forth in the documents creating such obligations; and (ii) the principal balance payable to the Buffalo Ridge Affordable Housing Corporation, together with interest thereon at the rate set forth in the documents creating such obligation 79. Permitted Uses has the meaning set forth in Section 6.2(a). 80. PIC (s) means, individually or collectively as the context dictates, the Commercial PIC and /or the Mixed -Use PIC and /or any other public improvement company established for the Property from time to time. 81. PIF Covenants means, collectively and as amended from time to time (specifically including those amendments to be Recorded contemporaneously with the Effective Date), the Declaration of Covenants for The Village (at Avon) Commercial Areas Recorded May 8, 2002 at Reception No. 795012 and the Declaration of Covenants for The Village (at Avon) Mixed Use Areas Recorded May 8, 2002 at Reception No. 795013. 82. Planning Area(s) means the portion(s) of the Property described in the PUD Guide and depicted in the PUD Master Plan as "Planning Areas" or identified therein as "PA -[x]." 83. Pledge Agreement means that certain Tank Project Financing Pledge Agreement made and entered into by and among TCMD, VMD and TC -RP, and having an effective date concurrent with the Effective Date. 84. Preliminary Acceptance means the Town's Acceptance of ownership of Dedicated Public Improvements (including real property interests and /or improvements constructed thereupon) and undertaking of full responsibility for all operations maintenance, repair and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights -of -way, management of noxious weeds and similar matters in accordance with Town's generally applicable procedures and standards) with respect to Dedicated Public Improvements, subject to the warranty period (as set forth in the Municipal Code as in effect from time to time) and the applicable Developer's or District's resolution of F -10 1044033.5 any warranty matters arising during such period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 85. Prioritized Capital Projects has the meaning set forth in Section 3.10. 86. Project means the mixed -use project proposed to be developed on the Property with the uses, densities and development standards more particularly described in the Development Plan. 87. Project Ad Valorem Taxes means the tax revenues resulting from imposition of the respective mill levies of TCMD and VMD, net of the costs of collection retained by the Eagle County treasurer. 88. Property has the meaning set forth in Recital B. 89. Public Improvement(s) has the meaning ascribed to such term in the PUD Guide, and includes but is not limited to all such improvements specifically or generally described in the Service Plans. 90. Public Improvement Agreement(s) means a public improvement agreement (as such term generally is used in Section 7.32.100 of the Municipal Code (as in effect from time to time), subject to the terins and conditions of the Development Plan modifying and /or exempting application of said Section 7.32.100) that is executed, either prior or subsequent to the Effective Date, in connection with the proposed development of a portion of the Property. 91. Public Iinprovement Fee(s) means the Credit PIF, the Add -On RSF and any future Add -On PIF other than the Add -On RSF, which are privately imposed fees (and not taxes) imposed on Taxable Transactions (and such other transactions as may be set forth in the PIF Covenants from time to time) in accordance with the terms and conditions of the PIF Covenants and the Development Agreement. 92. PUD Master Plan means The Village (at Avon) P.U.D. Development Plan/Sketch Plan dated November 7, 2012, attached as Exhibit B of the PUD Guide, as amended from time to time, which constitutes the approved sketch plan and master plan for development within the Property. 93. PUD Guide means the Amended and Restated PUD Guide for the Property (and all exhibits thereto, including but not limited to the PUD Master Plan) dated November 7, 2012, as amended from time to time. 94. Real Estate Transfer Fee means the Credit PIF imposed pursuant to the PIF Covenants on real estate transfer transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Real Estate Transfer Fee shall not be construed to be part of a Taxable Transaction, and shall not be subject to the Town's tax on real estate transfer transactions. 95. Recitals means, individually or collectively as the context dictates, the inforination set forth in the provisions of the "Recitals" section of the Development Agreement. F -11 1044033.5 96. Record(ed /ing) means to file, having been filed or appearing in the real property records of the Eagle County Clerk and Recorder's office. 97. Replacement Bonds means bonds that one or more of the Districts may issue after the Effective Date for the purpose of extinguishing, replacing, refunding or defeasing all or portions of the Past Developer Advances which: (i) bear a lower effective interest rate than the effective interest rate of the Past Developer Advances, (ii) are not secured by (and cannot be paid from) Credit PIF Revenues; and (iii) unless otherwise agreed to by the Town in writing, do not exceed a par value of $12.4 million in principal; and (iv) do not result in an increase of, or count against, the Credit PIF Cap. 98. Retail Sales Fee means the Credit PIF imposed pursuant to the PIF Covenants on retail sales transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions and, pursuant to Section 6.4(a)(iv), shall be imposed on the use of building materials within the Project to the extent the Town in the future enacts a municipal use tax on building materials. 99. Revocable License Agreement means that certain Revocable License Agreement for Snow Storage executed concurrently with the Effective Date by and among EMD -CM LLC, a Colorado limited liability company, TC -RP (such entities being assignees of Master Developer's rights pursuant to Section 3.7(b)) and the Town, with respect to the rights and obligations of the parties thereto regarding the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)) for snow storage. 100. Sanitation District means the Eagle River Water & Sanitation District. 101. School Sites Dedication has the meaning set forth in Section 3.7(a). 102. Section refers to a numbered section of the Development Agreement, unless otherwise stated. 103. Service Plan(s) means, individually or collectively as the context dictates and as have been or may be amended from time to time, the Service Plan(s) for TCMD and VMD, each dated August 25, 1998, and approved by the Town Council in accordance with Part 2, Article 1, Title 32, C.R.S., together with any other service plan(s) that Town Council may approve for such additional District(s) as may be organized for the Project in the future. 104. Settlement Term Sheet has the meaning set forth in Recital H. 105. Site has the meaning ascribed to such term in the PUD Guide. 106. Site Specific Development Plan means a "site specific development plan" as defined in the Vested Property Rights Statute, but for avoidance of doubt shall not be construed to include a preliminary plat, a grading permit, a building permit, or the continuation of a temporary use beyond the term contemplated therefor in the approval. F -12 ]0440335 107. Supplemental Bonds means additional financial obligations of one of more of the Districts in a cumulative amount up to the portion of the otherwise unfunded portion of the Credit PIF Cap (including bonds issued by one or more Districts and /or Additional Developer Advances) issued at any time during the period commencing on the Effective Date and continuing through and including January 1, 2040 (expressly including, however, and notwithstanding that such obligations may be incurred after January 1, 2040, Deferred Reimbursement obligations that are an Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) and which arise pursuant to clause (2) of Section 5.5(b)(iv)): (i) which are payable in whole or in part from Credit PIF Revenues; and (ii) some or all of the proceeds of which are utilized to finance Capital Projects and /or to refund and defease Replacement Bonds. 108. Tank Agreement means, as amended from time to time, that certain Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Storage Tank Agreement (such instrument amending and restating that certain Traer Creek Water Storage Tank Agreement and Second Amended Water Service Agreement having an "Effective Date" (as defined therein) of December 26, 2012) entered into by and among the Authority, the Town, TCMD, Master Developer, TC -RP and certain "Limited Parties" (as defined therein). 109. Tank Project has the meaning set forth in the Tank Agreement. 110. Tank Project Financing has the meaning set forth in Section 5.5(b). 111. Tax Credit means the Town's obligation to provide tax credits as described in Section 4.2(a) and in Article 6, which obligation is implemented by and codified in the Municipal Code (as in effect on the Execution Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 112. Taxable Transaction(s) means a retail sales transaction, a real estate transfer transaction, or an accommodations /lodging transaction occurring within the Property which, subject to application of the Tax Credit as set forth in the Development Agreement, is subject to the Town's sales tax, the Town's real estate transfer tax or the Town's accommmodations /lodging tax. If the Town imposes any use tax on building materials during the Tenn that is not in effect as of the Execution Date such use tax shall be automatically and without the need of any formal action incorporated into the foregoing defmition. 113. TC -HD means Traer Creek -HD LLC, a Colorado limited liability company. 114. TCLLC means Traer Creek LLC, a Colorado limited liability company. 115. TCMD means Traer Creek Metropolitan District, a quasi - municipal corporation and political subdivision of the State of Colorado. 116. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company. 117. TC -RP means Traer Creek -RP LLC, a Colorado limited liability company. 118. TC -WMT means Traer Creek -WMT LLC, a Colorado limited liability company F -13 1044033.5 119. Term means the period commencing on the Effective Date and continuing through and including the date upon which payment in full of all issued and outstanding District Debts occurs (or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to Section 6.14(a)); provided, however, the Term shall not be deemed to have expired prior to January 2, 2040, unless, prior to January 2, 2040: (i) (A) one or more Districts have issued Supplemental Bonds up to the full amount of the Credit PIF Cap; and (B) all such Supplemental Bonds and all other District Debts have been fully paid; or (ii) the Town has exercised its option to fully fund the Credit PIF Cap pursuant to Section 6.14(a). 120. TIF Revenues means the net revenues actually received by AURA from the property tax increment resulting from creation of one or more urban renewal area(s) including all or any part of Lot 1. For purposes hereof, the term "net revenues" means the revenues remaining available for use by AURA after remitting: (i) to the Districts, 100% of the tax increment revenues resulting from the Project Ad Valorem Taxes; and (ii) to any other taxing authorities having territory within the Property, such portions of the tax increment revenues resulting from the mill levies of the other taxing authorities as AURA may be required to remit pursuant to the terms of separate agreements with such taxing authorities, if any. 121. Total Repayment Cost Comparison means the Total Repayment Costs of Additional Developer Advances minus the Total Repayment Cost of Supplemental Bonds issued in the form of obligations other than Additional Developer Advances. 122. Total Repayment Cost of Additional Developer Advance means (i) the amount available to pay Capital Project Costs from the proceeds of the Supplemental Bonds for which the Total Repayment Cost Comparison is being calculated plus (ii) the total amount of interest which would accrue from the date of issuance of such Supplemental Bonds to the respective maturity dates of such Supplemental Bonds calculated by multiplying the Principal Amount Maturing by the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds being issued, for Baa investment grade bonds on the date of issuance of such Supplemental Bonds plus 375 basis points. For purposes of this calculation, Principal Amount Maturing means the principal amount maturing on each maturity date for such Supplemental Bonds multiplied by the percentage obtained by dividing the amount available to pay Capital Project Costs from such Supplemental Bonds by the total principal amount of such Supplemental Bonds. For purposes of this calculation, a maturity date is the date on which principal is scheduled to be paid including a mandatory sinking fund date. 123. Total Repayment Cost of Supplemental Bonds means, with respect to Supplemental Bonds issued in the form of obligations other than Additional Developer Advances, the surn of: (i) the total principal amount of such Supplemental Bonds less the amount of the principal, if any, representing capitalized interest as identified in the indenture of trust or other financing document governing the payment of such Supplemental Bonds, plus (ii) the total amount of interest to accrue on the Supplemental Bonds from their date to their respective maturities calculated by multiplying the principal amount maturing on each maturity date by the applicable TRC Interest Rate, plus (iii) the sum of any other known Bond Requirements that will be required to administer the Supplemental Bonds. F -14 1044033.5 124. Town means the Town of Avon, a home rule municipal corporation of the State of Colorado. 125. Town Council means the Town Council of the Town. 126. TRC Interest Rate means, with respect to Supplemental Bonds issued in the form of obligations other than Additional Developer Advances: (i) if the interest rate is fixed during the term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable (subject to the Town's consent as set forth in Section 6.10), the 30 -year average, as of the issuance /closing date, of the interest rate index used to determine the variable rate on such Supplemental Bonds as stated in the documents governing the issuance of such Supplemental Bonds plus any adjustment or spread to such index. 127. Vested Property Rights Statute means C.R.S. §§ 24 -68 -101 et seq. as in effect on the Original Effective Date. 128. Vested Property Rights has the meaning set forth in Section 2.4. 129. Vesting Term has the meaning set forth in Section 1.4(a). 130. VMD means The Village Metropolitan District, a quasi - municipal corporation and political subdivision of the State of Colorado. 131. Water Bank has the meaning set forth in Section 3.4(a). 132. Water Rights has the meaning set forth in Section 3.4. F -15 1044033.5