TC Council Packet 08-13-2013 Retreat
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, AUGUST 13, 2013
RETREAT BEGINS AT 9:00 AM – WALKING MOUNTAINS SCIENCE CENTER – LOWER LEVEL
REGULAR MEETING BEGINS AT 5 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting Agenda 13 08 13 Page 1
PRESIDING OFFICIALS
MAYOR RICH CARROLL
MAYOR PRO TEM TODD GOULDING
COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER,
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS.
GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT, AND COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC.
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MATERIALS.
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY.
THE AVON TOWN COUNCIL MEETS THE 2ND AND 4THTUESDAYS OF EACH MONTH.
______________________________________________________________________________________________________________
9:00 A.M. TOWN COUNCIL RETREAT (MODERATOR: GREG MORRISON, THE MORRISON GROUP)
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. Six Month Review
3.1 Assessment and Critique of the Past Six Months – Accomplishments, Concerns, Relationships,
Meeting Format
3.2 Length of Agendas
3.3 One Meeting/Two Meetings per Month
3.4 Verify Roles and Responsibilities: Council, Mayor, Mayor Pro-tem, Town Manager
3.5 Role and responsibility of subcommittees
3.6 Communication - Council to Council, Council to Manager, Council to Staff, Manager to Council, Staff to
Council, Council to PZC
4. Avon in a Leadership Role
5. Review and Update of the 2013-14 Strategic Plan
6. 2014 Budget: Schedule and Approval Process
7. Avon Businesses – Council Calls to Thank Each Business
8. EXECUTIVE SESSION for Discussion of a Personnel Matter under C.R.S. §24-6-402(2) (F) Concerning Town
Manager Performance Review.
2:00 P.M. ADJOURN (OR EARLIER)
5:00 P.M. REGULAR COUNCIL MEETING
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. EXECUTIVE SESSION
Meet with Town Attorney for the purpose of receiving legal advice pursuant to Colorado Revised
Statute §24-6-402(4)(b) related to settlement matters regarding Town of Avon v Traer Creek
Metropolitan District, 2008 CV 0385 and Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, AUGUST 13, 2013
RETREAT BEGINS AT 9:00 AM – WALKING MOUNTAINS SCIENCE CENTER – LOWER LEVEL
REGULAR MEETING BEGINS AT 5 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting Agenda 13 08 13 Page 2
5:30 PM A VON L IQUOR AUTHORITY MEETING (SEE PAGE 3 FOR DETAILED AGENDA)
5:45 PM REGULAR MEETING RECONVENES
1. PUBLIC COMMENT
2. ACTION ITEMS
2.1. Amendment 64 Use and Regulation of Marijuana
2.1.1. Amendment 64: Review of Town Responsibilities and State of Colorado Actions
(Sam Mamet, Executive Director, CML)
2.1.2. First Reading of Ordinance No. 13-11, Series of 2013, Ordinance establishing A Temporary
Moratorium on the Operation of Marijuana Cultivation, Product Manufacturing and Testing
Facilities, Retail Marijuana Stores and Marijuana Clubs
(Patty McKenny, Assistant Town Manager)
2.2. Recreation Center Phase 2 Expansion and Recreational Amenities
2.2.1. Update – Estimated Costs for Construction and O&M; Activity Programming
2.2.2. Review of an Unlimited Tax General Obligation Voter Question for the November 5, 2013
Ballot (Scott Wright, Finance Director, and Jonathon Heroux, Piper Jaffray)
2.2.3. Action on IGA with Eagle County for Participation in November 5, 2013 Coordinated Mail
Ballot Election (Patty McKenny, Assistant Town Manager)
2.3. Resolution 13-22, Series of 2013, Resolution Approving the Execution and Delivery by Kayak
Affordable Housing Corporation of a Mortgage Loan and Subordinate Notes
(Gerry Flynn, Polar Star Properties)
2.4. Revised Resolution 13-17, Series of 2013, Resolution Approving the Execution and Delivery By
Buffalo Ridge Affordable Housing Corporation of a Mortgage Loan and Subordinate Notes;
Authorizing Subordinate Notes Principal in an Amount not to exceed $850,000 and Authorizing
Incidental Action for the Buffalo Ridge Affordable Housing Corporation HUD Refinance
(Gerry Flynn, Polar Star Properties, Calvin Hanson, Sherman and Howard)
2.5. First Reading for Ordinance No. 13-10, Series of 2013, Ordinance authorizing the execution and
Delivery of a State & Municipal Lease/Purchase Agreement dated August 27, 2013 between the
Town of Avon and Commerce Bank to purchase a loader, forklift and sander pursuant to the Exhibit
A of such Agreement (Scott Wright, Finance Director)
2.6. Review and Action on Railroad Bridge Trestle, Wings and Columns Refurbishment in the
Amount of $98,107 with Monies being provided from the Capital Projects Fund
(Virginia Egger, Town Manager)
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, AUGUST 13, 2013
RETREAT BEGINS AT 9:00 AM – WALKING MOUNTAINS SCIENCE CENTER – LOWER LEVEL
REGULAR MEETING BEGINS AT 5 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting Agenda 13 08 13 Page 3
2.7. Public Hearing on Second Reading of Ordinance 13-09, Series of 2013, Ordinance Amending Title
7 of the Avon Municipal Code, including General Procedures, Planned Unit Development
Amendments, Natural Resource Protection Standards, and Engineering Improvement
Standards (Matt Pielsticker, Senior Planner)
3. VILLAGE AT AVON
3.1. Settlement Update (Eric Heil, Town Attorney)
3.2. Action on Resolution No. 13-23, Series of 2013, a Resolution approving several documents
related to the Village (at Avon) Litigation Settlement, including: the Access Easement
Agreement; the Amended and Restated Nottingham Dam Easement and Assignment
Agreement; the Partial Assignment of amended and Restated Conveyance of Roadways, Parkland
and Easements; and, the Revocable License Agreement for Snow Storage
3.3. Review of Utility Road (or Haul Access Road) Alignment for Grading Permit and Possible
Retaining Wall Permit
3.4. Review of Taxable Bond Structure through 2030 and Status of Bond Documents
4. Town Appointment to the Colorado Municipal League’s Policy Committee
(Virginia Egger, Town Manager)
5. Minutes from July 17, 2013
6. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
6.1. ECO Board Meeting (Buz Reynolds, Councilor)
6.2. UERWA Board Meeting (Todd Goulding, Mayor Pro Tem)
6.3.Channel 5 Meeting Update (Jake Wolf, Councilor)
6.4. 2015 Championship Meeting Update (Jennie Fancher, Councilor)
6.5. EGE Air Alliance Meeting (Rich Carroll, Mayor)
7. COUNCIL COMMENTS
8. MAYOR REPORT AND FUTURE AGENDA ITEMS
9. ADJOURNMENT
FUTURE AGENDA ITEMS: Action on Election for Purposes of Ballot Question for Expansion of Recreation Center and
other Recreation Improvement
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, AUGUST 13, 2013
MEETING BEGINS AT 5:30 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting Agenda 13 08 13 Page 4
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN TODD GOULDING
BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY
ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. RENEWAL LIQUOR LICENSES
4.1. Applicant Name: Y&Z Inc. d/b/a Nozawa Sushi and Kitchen
Address: 240 Chapel Place, Avon, CO 81620
Owner: Yong Hu Yuan
Type of License: Hotel and Restaurant Liquor License
5. MINUTES FROM JULY 17, 2013
6. ADJOURNMENT
Memo: Amendment 64 Page 1
TOWN COUNCIL REPORT
To: Honorable Mayor and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: August 8, 2013
Agenda Topic: Review of Amendment 64 and Ordinance No. 13-11 Establishing a Temporary
Moratorium on the Operation of Marijuana Cultivation, Product Manufacturing and Testing Facilities,
Retail Marijuana Stores and Marijuana Clubs
Please find attached Ordinance No. 13-11, an Ordinance Establishing a Temporary Moratorium on the
Operation of Marijuana Cultivation, Product Manufacturing and Testing Facilities, Retail Marijuana Stores
and Marijuana Clubs as a means of complying with Colorado’s Constitutional requirement of voter-
approved Amendment 64.
The Constitutional mandate is for all local governments to either adopt an ordinance opting out of the
regulatory and licensing provision of Amendment 64 or adopt an ordinance placing a moratorium on the
matter until a final decision is made. At this time, staff recommends that the Town Council adopt the
ordinance that would place a moratorium on the licensing of distinct types of retail marijuana
establishments that would be allowed: 1) retail marijuana stores, 2) retail marijuana cultivation facilities,
3) retail marijuana products manufacturers, 4) retail marijuana testing facilities, and 5) private marijuana
clubs. The moratorium timeframe proposed is one year and would provide ample opportunity to continue
evaluating the implementation of Amendment 64 in Colorado.
There are many facets to this amendment that are being addressed by several groups in Colorado,
including a Governor appointed “Amendment 64 Implementation Task Force”, the Colorado State
Legislature and the Department of Revenue’s new division called the Marijuana Enforcement Division,
similar in its operations to the Liquor Enforcement Division. The State Legislator adopted three state bills
this past spring that have driven a great deal of the implementation of the amendment:
1) HB 13-1317 which established the regulatory framework for both the state and local jurisdictions,
2) HB 13-1318 which addresses the statutory implementation of both a special sales tax and an excise
tax, and
3) SB 13-283 that identified some “consensus items” as developed by the Amendment 64 Task Force.
November Ballot for Colorado Voters: Imposition of Taxes
The follow up required from HB 13-1318 requires a November ballot proposal, Proposition AA Retail
Marijuana Taxes, for State of Colorado voters to decide whether or not a special sales tax and excise tax
would be imposed to raise revenue on the sale of marijuana. If passed by the voters, there is some local
share back of the revenue stream, but it is suggested that communities also evaluate this type of funding
proposal at the local level. Again, staff recommends the moratorium so that more time can be had to
evaluate some of the implementation efforts by the state, other communities, and the results of the
November election and its impacts.
Memo: Amendment 64 Page 2
Eagle County and its municipalities have also been complying with Amendment 64 in various ways; the list
below shows the status of each community:
• Vail - prohibits Medical Marijuana Dispensaries and has a moratorium prohibiting retail sale of
marijuana until January 21, 2014; Vail also currently has a ban on “Private Ski Clubs” until
December 17, 2013 to determine the effects of clubs that clearly covered with the State Law
definitions.
• Minturn adopted a moratorium on the licensing of retail marijuana stores which has since
expired; neither the retail marijuana store nor medical dispensaries are allowed.
• Eagle is currently drafting land use regulations for zoning the use of retail marijuana centers.
They presently have one (1) operating medical marijuana dispensary.
• Eagle County is currently drafting guidelines that would mimic the medical marijuana
dispensary regulations that are currently in effect. They presently have five (5) operating
dispensary centers: two (2) in Edwards and three (3) in Eagle-Vail.
Town Ordinances:
Town Attorney Eric Heil recommends first and second reading of an ordinance occurring the month of
August in order to allow for the 30 day referendum timeframe during the month of September. If the
town does not take action on this matter by October 1, the Marijuana Enforcement Division of the
Department of Revenue will presume the town is considering any applications for business wanting to
locate in Avon, Colorado. The Dept. of Revenue is required to begin accepting licenses on October 1, 2013
from only existing medical marijuana licensees and will begin to accept applications from persons not
licensed for medical marijuana beginning on July 1, 2014. This also speaks to why taking the “wait and see
approach” is reasonable as there would be no applications considered by either the State or the Town
until July 1, 2014.
There will also be another ordinance drafted for the next meeting that will address the personal use of
marijuana per Amendment 64. This action will bring the town’s Code into compliance with the
amendment in terms of what is now specifically authorized for a number of individual activities for persons
21 years of age or older.
It should be noted that the Colorado Municipal League has been monitoring this topic since Amendment
64 passed in November 2012. Sam Mamet, Executive Director of the League will be present next Tuesday
to briefly talk about the amendment and how Colorado communities are addressing it. He will also
provide a brief overview about the services provided by the Municipal League. Staff continues to review
the abundance of material on the topic some of which can be found on a very informative CML webpage
as follows: http://www.cml.org/Marijuana.aspx.
Attachments:
Attachment A: Ordinance No. 13-11, Series of 2013, Ordinance Establishing a Temporary Moratorium on
the Operation of Marijuana Cultivation, Product Manufacturing and Testing Facilities, Retail Marijuana
Stores and Marijuana Clubs
Attachment B: Supplemental Staff Research
Ord 13-11 Temporary Moratorium on Retail Marijuana
August 13, 2013
Page 1 of 4
ATTACHMENT A
TOWN OF AVON, COLORADO
ORDINANCE NO. 13-11
SERIES OF 2013
AN ORDINANCE ESTABLISHING A TEMPORARY MORATORIUM ON
THE OPERATION OF MARIJUANA CULTIVATION, PRODUCT
MANUFACTURING AND TESTING FACILITIES, RETAIL
MARIJUANA STORES AND MARIJUANA CLUBS
WHEREAS, the Town of Avon (“Town”) is a home rule municipal corporation created and
organized pursuant to Article 20 of the Colorado Constitution and the Charter of the Town;
WHEREAS, by virtue of Article 20 of the Colorado Constitution, and as further authorized
by state law, including, but not limited to, Sections 31-15-401 and 31-23-301 of the Colorado
Revised Statutes, the Town has broad authority to exercise its police powers to promote and
protect the health, safety, and welfare of the community and its citizens;
WHEREAS, pursuant to Section 31-23-301 of the Colorado Revised Statutes, such police
powers include the power to regulate the location and use of land within the community for
trade, industry, or other purposes;
WHEREAS, Section 29-20-104 of the Colorado Revised Statutes grants home rule cities the
authority to plan for and regulate the planned and orderly use of land on the basis of the impact
thereof on the community;
WHEREAS, the Town possesses the power and authority to impose a temporary suspension
and delay in the acceptance and processing of certain applications and approvals in order to
study all factors impacting the land use scheme and to develop regulations;
WHEREAS, planning, land use, and general business regulation are well-established as
purely matters of local concern;
WHEREAS, the Town is additionally authorized to manage and control all Town owned or
leased property;
WHEREAS, on November 6, 2012 Colorado voters approved Amendment 64, Personal Use
and Regulation of Marijuana, which adds a new Section 16 to Article XVIII of the Colorado
Constitution;
WHEREAS, pursuant to Amendment 64, a “locality,” defined to include a municipality,
may “prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing
facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an
ordinance;”
Ord 13-11 Temporary Moratorium on Retail Marijuana
August 13, 2013
Page 2 of 4
WHEREAS, pursuant to Amendment 64, the Town may also prohibit or otherwise regulate
the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing
of marijuana on or in Town owned or leased property;
WHEREAS, the Town Council instructs Town staff to review state regulatory provisions,
when available, and assemble information about best practices used by other communities
pertaining to marijuana cultivation facilities, marijuana product manufacturing facilities,
marijuana testing facilities, and retail marijuana stores and thereafter report to Town Council
such information as deemed appropriate;
WHEREAS, the Town Council finds and determines that a moratorium on commercial
marijuana establishments will allow Town staff and Town Council the time to investigate the
Town’s ability to permanently regulate marijuana establishments, and to consider and potentially
develop appropriate regulations as directed by the Town Council;
WHEREAS, the Town Council finds that due to the uncertainty in state regulation, the
complexity of zoning and community planning issues, the complexity of locally regulating retail
marijuana establishments, the need for community input and appropriate public process, and the
need to gather additional data and information concerning the positive and negative impacts
associated with permitting and regulating retail marijuana establishments and other forms of
commercial marijuana uses and businesses, that a temporary moratorium until September 30,
2014 is a reasonable timeframe;
WHEREAS, it is the Town Council’s opinion that the health, safety and welfare of the
citizens of the Town of Avon would be enhanced and promoted by the adoption of this
ordinance; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home
Rule Charter by setting a public hearing in order to provide the public an opportunity to present
testimony and evidence regarding the application and that approval of this Ordinance on first
reading does not constitute a representation that the Town Council, or any member of the Town
Council, supports, approves, rejects, or denies the proposed amendment to the Avon Municipal
Code.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Temporary Suspension and Delay Enacted. Effective as of the effective date of
this Ordinance and no later than September 30, 2013, the Town hereby imposes a temporary
suspension and delay in the acceptance, processing, and approval of all applications for any
Town of Avon permit, license, or any other application pertaining to the operation of marijuana
cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities,
retail marijuana stores, and marijuana clubs (collectively “marijuana establishments”). This
temporary suspension and delay shall automatically terminate at midnight on September 30,
Ord 13-11 Temporary Moratorium on Retail Marijuana
August 13, 2013
Page 3 of 4
2014, unless terminated earlier by the Town Council or extended in its duration by the enactment
of another ordinance. This Ordinance and the temporary suspension and delay imposed hereby
shall be self-executing without further action by the Town or its Town Council.
Section 3. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 4. Effective Date. This Ordinance shall take effect thirty (30) days after public
notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 5. 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 6. No Existing Violation Affected. Nothing in this Ordinance shall be construed to
release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or
affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability
incurred, or any cause or causes of action acquired or existing which may have been incurred or
obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any
such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall
be treated and held as remaining in force for the purpose of sustaining any and all proper actions,
suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and
for the purpose of sustaining any judgment, decree or order which can or may be rendered,
entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or
declaring such penalty or liability or enforcing such right, and shall be treated and held as
remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and
appeals pending before any court or administrative tribunal.
Section 7. 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.
[SIGNATURE PAGE FOLLOWS]
Ord 13-11 Temporary Moratorium on Retail Marijuana
August 13, 2013
Page 4 of 4
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for August 27,
2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on August 13, 2013.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Patty McKenny, Town Clerk Eric J. Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on August 27, 2013.
____________________________
Rich Carroll, Mayor
Published by posting by title in at least three public places in Town.
ATTEST:
__________________________
Patty McKenny, Town Clerk
Attachment B: Staff Report on Amendment 64 Page 1
ATTACHMENT B
RESEARCH REPORT ON AMENDMENT 64 LEGISLATION
INFORMATION COMPILED BY TOWN OF AVON STAFF
Introduction
This is an update regarding recent legislation concerning the regulation of the retail sale of recreational
marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the
licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation, and Senate Bill 13-283 ("SB 283")
addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. This
report is an effort from various department staff as an attempt to provide information and education
surrounding this topic and includes input from the police, finance, community development and town clerk
staff.
Background
Last year, Colorado voters passed Amendment 64, allowing for the personal use of marijuana, a federally
controlled schedule 1 substance. During the 2013, Colorado Legislative Session, state law makers passed
legislation (HB 1317 and HB 1318), which provides the state and municipalities some direction on the
implementation of Amendment 64. Currently, medical marijuana dispensaries are in business in some
jurisdictions in Colorado. In 2010, the Avon Town Council prohibited the establishment of medical marijuana
businesses in the Town, Ordinance 10-12, Chapter 5.04.045. The November 2012 vote on Amendment 64 in
Avon had the following results (Avon’s results include 2 precincts):
Precinct 15: Yes 622; No 186
Precinct 19: Yes 665; No 311
Total: Yes 1287: No 497 - 72% in favor of Amendment 64
Medical Marijuana:
Avon prohibits the licensing of medical marijuana business per Chapter 5.04.045 of the Avon Municipal
Code. Medical marijuana is defined in Section 7.08.010 of the Code which states that “Medical marijuana
business means the use of a property, or portion thereof, for the cultivation, manufacture, storage,
distribution, acquisition or sale of marijuana, including the use of property for medical marijuana
centers, manufacturing of medical marijuana-infused products, or optional premises, as such terms are
defined by Section 12-43.3-104, C.R.S., regardless of whether any such use described herein is for profit or
not for profit.” When considering recreational marijuana in the Town of Avon, the Council should
consider that there will likely be five (5) retail marijuana stores operating within four (4) miles of the
Town boundaries since the County is headed towards approval.
Legislative Highlights:
HB 13-1317
• Gives local jurisdictions ½ of the application fees ($500/$5000).
• First 60 days only existing MMJ can obtain. All can after 1/1/14.
• Must be a Colorado resident for two years prior to application.
• Nonresidents limited to ¼ ounce. Residents limited to 1 ounce.
Attachment B: Staff Report on Amendment 64 Page 2
• Adopts the 1000 foot school buffer but allows local jurisdictions to vary the distance restriction.
• Allows MMJ and RMJ to be sold in the same location (dual operation) if 1) allowed by local jurisdiction and 2)
physically separated.
• Maintains vertical integration without a sunset.
• Makes labeling a matter of statewide concern.
HB 13-1318
• 15% Excise Tax for school capital construction
• 10% State Sales Tax for regulation, enforcement (in addition to 2.9% state sales tax)
• Goes to November Vote
SB-238
• Creates the RMJ responsible vendor program.
• Contracts related to RMJ are not void.
• Creates state agency to adopt list of banned substances in RMJ cultivation and develop good cultivation
practices.
• Requires advanced peace officer training for impaired driving.
• Adds RMJ to statewide smoking ban.
• Created open container offense similar to alcohol in vehicles.
• Creates criminal offenses for those under 21 or those over possession limit. (petty offense, small fines, and
treatment programs).
• Defines “open and public.” Any place open to the general public including highways, places of amusement,
parks, playgrounds, common areas of public buildings, etc.
Public Safety Research submitted by Police Chief Ticer
According to the Healthy and Drug Free Colorado, affiliated with the Colorado Drug Investigators Association,
there were 85 governmental, not for profit organizations, businesses, and state leaders who oppose the
legalization of marijuana listed on their website. http://www.healthydrugfreecolorado.org/. Some of these
groups in opposition are:
• American Academy of Pediatrics
• Boys and Girls Clubs
• Girl Scouts of Colorado
• Roaring Fork School Board of Education
• Colorado State Fire Chiefs Association
• Advocates for Recovery
• Treatment Providers Alliance of Colorado
• Director Sloan, Colorado Bureau of Investigations
• National Latino Peace Officers Association, Colorado Chapter
• County Sheriffs of Colorado
• Colorado Association of Chiefs of Police
• International Association of Chiefs of Police
• Colorado Attorney General Suthers
• Colorado Law Enforcement Officers Association
• National Drug Free Workplace Alliance
• Colorado Association of School Resource Officers
• Teen Challenge of the Rocky Mountains
In 2012, Washington and Colorado became the first two states in the Nation to allow people to use marijuana
for recreational purposes. Since this is new territory, it is difficult to provide data on how marijuana retail
Attachment B: Staff Report on Amendment 64 Page 3
distribution centers will affect public safety. However, the State of Colorado has had medical marijuana
dispensaries present for several years now, so the logical place to start is to examine public safety concerns in
jurisdictions which have these dispensaries. The Town of Avon does not have dispensaries and has a crime
rate at historical lows.
Marijuana Use and Driving - Colorado and Montana have both seen increases in fatal traffic collisions relating
to marijuana impaired drivers since the legalization of the substances for medical reasons. In fact, “Montana
legalized medical marijuana in 2004 and experienced between 2007 and 2010 more than a 100 percent increase
in the detection of marijuana among impaired driving arrestees and in excess of a 180 percent increase in
positive tests for both marijuana and alcohol among those arrestees. There is currently sound evidence that
smoked marijuana is harmful,” and “no sound scientific studies support medical use of marijuana for
treatment in the United States, and no animal or human data support the safety or efficacy of marijuana for
general medical use (Ashton, The Police Chief, May 2013).”
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=2648&issue_id
=4201
In Colorado, there were 600 drivers involved in fatal crashes in 2010, resulting in 449 fatalities; however, there
were drug/alcohol test results reported for only 250 of those 600 drivers, as noted in the 2008-2010 Fatal
Accident Reporting System (FARS) Driver Information. What’s more useful is to calculate the Percentage of
Reported Drivers (All Drugs). Therefore, the Percentage of Reported Drivers (All Drugs) in 2010 was
31.6% (79/250). Using the same logic, a dangerous trend emerges:
% ON DRUGS % ON MARIJUANA
2008 25.7% 11.1%
2009 32.3% 14.6%
2010 31.6% 16.8%
Although the percentage of drivers involved in fatal crashes who were reported to be positive for drugs may
have stabilized at about 32% for the last two years, the percentage of drivers involved in fatal crashes who
were reported to be positive for marijuana continues to increase. The inference that marijuana-impaired
driving is increasing is still a likely valid conclusion from these data (Ed Wood).
With the increase of marijuana use in Colorado, it is important to highlight that the “Office of National
Drug Control Policy (ONDCP) analysis of 2009 data from the National Highway Traffic Safety
Administration’s (NHTSA) FARS census, shows that roughly one in four (23 percent) of fatally injured
drivers who tested positive for drugs were under the age of 25. Additionally, based on data from 2005
to 2009, almost half (42 percent) of fatally injured drivers who tested positive for marijuana were under
the age of 25.” http://www.whitehouse.gov/ondcp
Crime Associated with Dispensaries - The Town of Avon has seen ZERO robberies for the last three years
and is at an all-time low for burglaries. "Across the state, we're seeing an increase in crime related to
dispensaries," said Ernie Martinez, a Denver police detective who is president of the Colorado Drug
Investigators Association. "And that's just the crime that's being reported to us." Medical-marijuana
dispensaries' effect on crime unclear - The Denver Post and
http://www.denverpost.com/news/marijuana/ci_17178820#ixzz2SX3TAca2
Attachment B: Staff Report on Amendment 64 Page 4
There have been many crimes associated with Colorado marijuana dispensaries to include, illegal
narcotic distribution, assaults, burglary, and robbery, but according to research and fluxuations in crime
trends, more research and data collection is necessary to determine crime rates associated with these
businesses. Criminal Organizations/Cartels/Street Gangs will continue to distribute narcotics in
Colorado. It is fair to anticipate that these organizations will set their marijuana costs based upon
supply and demand. There was debate on this at the 64 Task Force Meetings, and municipalities that
allow retail marijuana centers may have increases in cartel narcotic cells operating in their towns/cities
to distribute marijuana at a lesser price. This could cause more street gangs to operate in these cities as
they compete with retailers for the monies associated with the sale of marijuana.
Regulation of Retail Marijuana Centers - This responsibility will fall within the purview of the Medical
Marijuana Enforcement Division of the Department of Revenue, which is understaffed and underfunded.
Finance Considerations submitted by Beth Johnston, Finance
Currently the Town of Avon has a moratorium against Medical Marijuana establishments within Avon
town boundaries. As such, we do not have financial history or data for these types of businesses. To
gather information, an email survey was created and sent to 11 municipalities, both large and small, to
determine how other municipalities have fared with Medical Marijuana establishments located within
their boundaries. The information gathered and presented here is based on Medical Marijuana facilities
only as none of the municipalities have non-medical establishments at this time.
Avon Sales Tax Municipal Code Application - Chapter 3.08 Sales Tax of the Avon Municipal Code allows
taxation on the retail sale of marijuana based on the taxation of tangible personal property and/or food
as outlined in Section 3.08.02, “Taxable Items”. However, under Section 3.08.040 “Exempt Items” it is
our opinion that the sale of Medical Marijuana would be exempt based on the definition of medical
supplies written in the Code.
Medical supplies means drugs, prosthetic medical and dental appliances and special beds for
patients with neuromuscular or similar debilitating ailments, when sold for the direct, personal
use of a specific individual in accordance with a prescription or other written directive issued by
a licensed practitioner of medicine, dentistry or podiatry, et. al.
Obviously, retail sales of marijuana would not fall under this definition and would be subject to Avon
sales tax under the tangible personal property and/or food definitions outlined in the Code as stated
above.
Revenue and Sales Tax Collection: Survey Results - The survey collected data on seven different
questions relating to 1) sales tax licensing and revenue collection, 2) potential revenue sources, and 3)
federal grant issues. Survey highlights are as follows:
Eleven (11) surveys were sent out and nine (9) completed surveys were returned.
Eight of the nine responses were from home rule municipalities
All of the respondents currently have Medical Marijuana establishments within their jurisdictions.
All of the municipalities have retail dispensaries
Two also have optional premise cultivation operations.
One also licenses infused product manufacturing, but does not have any business of that type
currently licensed.
The number of businesses reported in a municipality ranged from 2 to 89, with most having less
than 10.
Attachment B: Staff Report on Amendment 64 Page 5
Two municipalities did not provide revenue numbers due to confidentiality issues.
Of those seven reporting revenues, total annual revenues ranged from $20,000 to $1.1 million with
monthly revenues calculated to be $1,666 to $91,000. When annual and monthly revenues were
divided by the number of facilities in the reporting municipality, annual revenue ranged from $5,000
to $75,000 per facility and monthly revenues were $440 to $6,250 per facility. All of the respondents
reported that they collect the same sales tax rate on Medical Marijuana as for other tangible
personal property.
One respondent reported charging a voter approved 5% excise tax on retail sales resulting in an
additional $25,000 in revenue per year.
1) Sales Tax Licensing Administration and Revenue collection - Respondents reported that tax funds
were paid via check, cash or money order. Banks that Medical Marijuana facilities are using include
Bank of America, E Trade Bank, and The Colorado Bank and Trust, among others. There were no
problems reported with depositing funds into municipalities’ bank accounts. On inquiry, First Bank
of Avon, the Town of Avon’s depository bank, relayed the following:
“Although we have chosen to not bank these retail businesses, we have several other
municipalities that bank with us and deposit sales taxes and other revenues into their accounts
at First Bank derived from medical marijuana operations.”
The majority of respondents do not experience any problems out of the ordinary with filing and
payment of sales tax for Medical Marijuana facilities. Only one respondent reported that these
establishments are repeatedly delinquent, chronic late payers and always a problem.
In summary, licensing of Medical Marijuana businesses varies widely by municipality and there was no
procedure that seemed to stand out as universally adopted. Some municipalities required no additional
fees or licensing requirements for Medical Marijuana businesses, others adopted similar licensing as for
liquor establishments, some adopted higher ($1,000+) licensing fees and/or higher annual renewal fees.
If Council decides to allow marijuana retail sales within Avon, HB13-1317 and HB13-1318 provide some
direction at the State level.
2) Potential Revenue Sources - One-half of the application fee collected by the State will be sent to the
local jurisdiction (HB 13-1317). HB 13-1318 - As stated above, the major marijuana bill of this year’s
session, HB 13-1318, refers a single question to the November statewide ballot with two revenue
components: a 15% excise tax on cultivated marijuana, and a special 10% sales tax imposed over and
above the normal 2.9% state sales tax. Of this 10% special sales tax, 15% would be shared with local
jurisdictions in which the tax is collected. In addition, local governments would still be allowed to collect
and retain any existing local sales taxes.
• Application, operating and/or licensing fees collected by the Town. (Amendment 64 & HB 13-
1317).
• Fifteen percent of the 10% special state sales tax;
• Town of Avon 4.0% sales tax
• Avon voters could approve through a ballot question additional local sales tax to be collected
3) Potential Impact on Federal Grant Monies - Avon currently receives Federal grant monies. Since
marijuana is illegal at a federal level, concerns have been raised about the status of Federal monies
received or the potential to receive those monies in the future if the Town of Avon decides to allow
marijuana establishments within Town boundaries. The current understanding of Town officials is that
Attachment B: Staff Report on Amendment 64 Page 6
the only requirement for receiving federal grants is that the Town has adopted the Drug Free Workplace
Act which requires that federal contractors and grantees provide drug-free workplaces as a
precondition to receiving federal funds. Six survey respondents confirmed that they receive or have
received federal grant monies since their Medical Marijuana facilities have opened and none of them
expressed concern that the sales of marijuana would jeopardize their monies. One respondent reported
that their city “did consider the risk of losing federal grant funds, but did not consider a viable enough
risk to preclude the City Council from authorizing medical marijuana businesses”.
The passage of legislation mandates a 15% excise tax and a 10% special state sales tax on retail marijuana. This
is in addition to the current 2.9% state tax and additional local taxes. The new taxes will have to be approved
by voters in the November 2013 state election. Under HB 1317, currently only medical marijuana dispensaries
will be able to apply for retail license. Since the Town of Avon prohibits medical marijuana dispensaries, new
marijuana retail businesses would not be able to apply for a retail license in the Town of Avon until January 1,
2014. The same bill allows the local authority to enact ordinances or regulations to prohibit such operations.
Amendments to Town Ordinance Sections 9.16.070-9.16.100 required - To be in compliance with the state
statutes, these sections should be evaluated and amended to reflect the person’s constitutional right to
possess 1 ounce of marijuana and six plants. Additionally, this section should reflect the state law prohibiting
the public use of marijuana.
RECREATION AMENITIES:
NOTTINGHAM PARK
- PHASE II RECREATION CENTER EXPANSION
- DESTINATION JUMP, SPLASH, LEARN
- UPPER FIELD IMPROVEMENTS
- ICE RINK/SUMMER ACTIVITY CENTER
- FUNDING OPTIONS, INCLUDING BOND ISSUE
TOWN COUNCIL WORK SESSION
AUGUST 13, 2013
Prepared by: Justin Hildreth, Town Engineer
Matt Pielsticker, Senior Planner
John Curutchet, Interim Recreation Director
Charlie Wolf, Recreation Program Supervisor
William Gray, Building Official
Joe Histed, Parks Supervisor
Scott Wright, Finance Director
Patty McKenny, Assistant Town Manager
Virginia Egger, Town Manager
SOURCES
Town of Avon Comprehensive Plan, February 2006
Master Plan for Harry A. Nottingham Park, November 2008
Avon West Town Center District Investment Plan, August 2007
Town of Avon Comprehensive Transportation Plan, October 2009
DEVELOPMENT PROGRAM FOR RECREATION AMENITIES
TABLE OF CONTENTS
Section 1: Overview & Purpose of Work Session
Section 2: Summary of Meeting Dates on the Recreation Center Phase 2 Expansion, including Funding
Availability, and Other Capital Recreational Amenities
Section 3: Recreation Center Expansion – Phase 2
3.1 Phase 2 Expansion – Programming
3.2 Estimated Cost of Phase 2 Expansion, including Parking
Section 4: Playground & irrigation Ditch: Destination Jump, Splash, Learn
4.1 Playground and Irrigation Ditch Enhancement: Destination Jump, Splash, Learn
• Park Playground Vision
• Preliminary Budget
Section 5: Ice Rink & Upper Field Upgrade Options
5.1 Ice Rink Options
5.2 Upper Field Upgrade Options
5.3 Restroom Renovation
5.4 Estimated O&M Costs
Section 6: Recreation Center Phase 2 Financing and Ballot Question
• Revised Sources and Uses Of Funds
• Residential and Commercial Cost Analysis Based On Market Value Increments Of $100,000.
• Refunding Plan For The Existing Bonds Assuming an Election is Successful
• Election Considerations
• Ballot Question
• Election Campaign
Section 7: Eagle County Intergovernmental Agreement: Coordinated Ballot Election
• Memorandum on Administration and Conduct of a November 5th Coordinated Mail Ballot Election
• Intergovernmental Agreement
SECTION 1 - Page 1 of 2
Section 1: Overview & Purpose of Work Session
Town Council, in adopting the 2013-2014 Strategic Plan, provided direction for work to be done as it pertains
to Economic Development, the 2015 World Alpine Championships and general business practices of the
Town. On May 28th, Town Council met in a Work Session and did a site walk with the purpose of reviewing:
Planning concepts for the development of Town-owned properties;
A preliminary update of Capital Projects Fund improvements expenditures to implement the Wyndham
Mall construction ; other projects tied to the 2015 Alpine World Championships; and, implementation of
special event venues as a key element in attracting, retaining and growing a diverse event calendar; and
The preliminary update of the Capital Projects Funds revenue projections, including the Town’s available
debt funding capacity utilizing existing revenue streams.
The outcomes of that meeting and subsequent Council Work Sessions, which are summarized in Section 2, have
resulted in a focus on major recreational facilities/amenities being considered for the November 5th ballot. The
August 13th Work Session presents more information to assist Council and the public in assessing if improvements
should be considered, and, if yes, what is the best funding approach.
Summary of Recreation Amenities, including the Phase 2 Expansion of the Recreation Center
ESTIMATED COSTS FOR RECREATION FACILITIES/AMENITIES – CAPITAL WITH A 20+ YEAR LIFE
AUGUST 13, 2013
IMPROVEMENT/PROJECT Estimated Cost &
Bond Totals
Status of Improvement in
5-Year CIP - Pay-As-You-Go
Recreation Center $7,700,000 Not included
Parking for Recreation Center/Library 1,450,000 Not included
Destination Jump, Splash/Learn 770,000 2014 - 70,000
2015 - $700,000
Restroom Remodel 275,000 2016 - $25,000
2017 - $250,000
Upper Field - Turf 534,000 Not included
Pumphouse Remodel 50,000 Not included
Ice Rink 230,000 Not included
Shower Remodel 60,000 Not included
Water Slide Replacement 100,000 2016
Heat Recovery/HVAC - For Phase 2 Expansion 100,000 2014-$350,000
Transit Center
SUB-TOTAL $11,269,000
Contingency 10% 1,126,900
TOTAL $12,395,900
Contingency: Parking, Indoor Playground, Other 3,179,000
TOTAL $15,574,900
SECTION 1 - Page 2 of 2
For purposed of the bond analysis the total of $15,574,900 is used although it is believed the $12,400,000
highlighted total is sufficient for the identified projects.
At the $15,574,900 level, the estimated monthly cost to a residential property owner, based on a market value of
$300,000 for 2013 would be $10.46 versus the current payment on bonds which are nearing completion of $6.02.
The estimated monthly cost to a commercial property owner, would be $38.09 versus the current cost of $21.45.
Nottingham Park Stage: No monies are proposed for a stage in Nottingham Park. If a bond question were
offered to the voters and successful, the funds can only be used for “Recreation” projects. Obviously, the
passage of a bond issue for projects scheduled in the 5-Year CIP, such as the playground, would free up funds for
a stage.
WORK SESSION OUTCOMES
1. ACTION REQUIRED: The November 5th election is a mail-in ballot only vote procedure. An
Intergovernmental Agreement (IGA) (See Section 7) with Eagle County is needed for the administration and
conduct of a Coordinated Mail Ballot Election. This agreement must be submitted to the County at least 70
days before the election, as required by § 1-7-116(2), which is August 27, 2013 in order to participate. The
IGA can be cancelled if the Council does not approve/certify a ballot question by September 6th.
2. A determination by Council as to whether additional information is needed to assist in making a decision
on whether a ballot question should be posed to the voters. If Council wishes to continue with
consideration of a ballot question, it would be helpful to have direction on the improvements to
included, contingency percentage, ballot question and general guidance on any kind of election
campaign the Council would like to consider. Section5 of this document provides a comprehensive
review of these key issues.
3. Community Outreach – A press release on the potential for a bond question was sent out on Tuesday of the
week. The importance, of hearing from voters as decision-makers, and users as clients and the buyers of
services, is critical. With Council’s early thought that the Town should not budget/invest the $700,000+
dollars to produce preliminary designs for the Phase 2 expansion, an approach that is not unusual, the
emphasis must be on developing a well-thought out and credible statement and schedule of process, so that
the public feels confident in how decisions will be made with their continuing input once funds are approved.
Staff will draft a recommended outreach program at Council’s direction for the August 27th meeting.
SECTION 2 - Page 1 of 2
Section 2: Summary 2013 Town of Avon Council Meetings – Recreation Facilities/Amenities
SUMMARY
2013 TOWN OF AVON COUNCIL MEETINGS
RECREATION FACILLITIES/AMENITIES
FEBRUARY 16, 2013 – COUNCIL ACTION
• 2013-14 STRATEGIC PLAN ADOPTED BY TOWN COUNCIL
Support Business Vitality
Review Asset And Five-Year Capital Plans
2015 World Alpine Championships (2015wac): Plan And Produce Stellar Events
• Staff Work Plans Developed To Implement
MAY 28, 2013 – WORK SESSION
On May 28th, Town Council met in a Work Session and did a site walk with the purpose of reviewing:
Planning concepts for the development of Town-owned properties;
A preliminary update of Capital Projects Fund improvements expenditures to implement the Wyndham Mall
construction ; other projects tied to the 2015 Alpine World Championships; and, implementation of special event
venues as a key element in attracting, retaining and growing a diverse event calendar; and
The preliminary update of the Capital Projects Funds revenue projections, including the Town’s available debt
funding capacity utilizing existing revenue streams.
While no definite decisions were made or needed to be made at the meeting, Town Council provided direction on three
Town-owned parcels:
Lot 5 and Swift Gulch should not be considered for location of Town Hall services, but be utilized for transit,
fleet, parks and road and bridge operations. It is important to keep “Town Hall” in the core of Avon.
The Main Street project should be developed as a pedestrian way and not planned for vehicles, in the near
future.
In addition, Council did not give strong support to a co-location of Town Hall with other general purpose governments on
sites outside of the core downtown area.
Town Council, during the Work Session, asked for additional information on a number of key planning elements,
including, but not limited to:
1. Parking capacity should be estimated for the current Fire Station/Library and Town sites;
2. Feasibility of locating Town Hall on top of the Recreation Center and as a co-location with the Library on
Nottingham Lake; and validate leases;
3. Modify improvements of the Mall project, including Lettuce Shed Lane, as a pedestrian only use and identify
nodes and improvements.
4. Expand information on Phase 2 Expansion of the Recreation Center, including program, costs and opportunities
for management with WECMR or Eagle-Vail Metro Districts;
5. Provide more detail on artificial turf and ice rink options;
6. Develop bonding schedules and timeframes to advance the master planning and implementation of a facilities
on Town-owned property in the Core; and
7. Feasibility of widening the Railroad Bridge for a pedestrian and/or trolley lane should be assessed.
SECTION 2 - Page 2 of 2
JUNE 25, 2013 – WORK SESSION
• DEVELOPMENT CONCEPTS FOR CAPITAL FACILITIES ONTOWN-OWNED PROPERTIES
Facility location options
Recreation Center Phase II Expansion: bonding capacity, 1996 proposed program, estimated costs of
construction, schedules and ice rink options
Several new details evolved from the work:
1. If the Phase 2 Recreation Center Expansion proceeds, the heat recovery generation capacity is not
sufficient to meet the needs of the Phase 2 Expansion and snowmelt of the Mall, including Avon Station
and Lettuce Shed Lane. The use of the surplus heat from the recovery system at the Recreation Center
is preferable: 1) low infrastructure costs for implementation, and 2) the system is most efficient when
in continual demand versus for a more sporadic use such as snowmelt. Snowmelt of Mall areas and
Avon Station, if desired, should be studied as taps onto existing natural gas service lines in the area.
2. Refinancing of the URA bonds and gaining additional net funds cannot be done until the County
Assessor issues the preliminary Assessed Valuation for the Town. This is provided on or about August
23rd. A bond issue, with URA increment monies, can be extended to 2032 versus 2028, providing
additional revenue, however, a 1.25 times coverage would be required.
3. The development of the Mall from the Recreation Center to Benchmark Road, as a pedestrian way,
with replacement of the asphalt and more simplified augments, including landscaping and placement
of Avon Road bronzes and benches is estimated to cost $1,982,000.
• Direction to staff to continue to refine costs and O&M and to prepare information and documents for a
potential ballot question on November 5th asking voter to consider a mill levy extension to support the
expansion of the recreation center and other recreation amenities. Develop a telephone community survey
for the proposed recreation improvements
JULY 17, 2013 – WORK SESSION
• RECREATION CENTER PHASE II EXPANSION AND RECREATION AMENITIES – BALLOT ISSUE
Council stated a preference, if going to the ballot, for a Unlimited Tax General Obligation issue
Council decided not to pursue a Telephone Survey
Reviewed schedule for actions needed prior to November 5th
ACTION: Council approved notice to Eagle County Clerk and Recorder that the Town intends to
participate in the November 5, 2013 Coordinated Mail Ballot Election. The notice may be rescinded if no
ballot question is proposed.
• Direction to staff to more fully develop costs and summarize programming for the expansion space.
AUGUST 13, 2013 – WORK SESSION
• IGA with Eagle County for a Coordinated Mail Ballot Election (must be signed by August 27th)
• Update on estimated costs for all recreational amenities considered
• Review of activity programming in Phase II Expansion
• Financing and Ballot Question; Election Considerations; Election Campaign Allowances
TBD – DATE OF MEETING(S)
• Certification of ballot question, if desired
• Begin review of URA Bond Refunding and Additional Proceeds in September, including cost estimates for
pedestrian mall improvement
SECTION 3.1 - Page 1 of 1
Section 3.1 : Recreation Center Phase 2 Expansion – Programming
2012 Avon Recreation District Community Survey – Key Findings
1. Cost/timing of programs were the top two deterrents of those that did not use the Avon Recreation
Center (ARC) in the past year. Additional space would help to allow better suited times for users.
2. Those patrons who use the other recreation providers for programs/facilities not provided/or limited
at ARC:
2.1 WECMRD: 71% - Field House; 27% Youth Sports Leagues; 25% Gymnastics; 24% Adult Sports
League; 18% Youth Camps; 14% Ice Arena
2.2 Vail Recreation District: 27% Ice Arena; 24% Adult Sports Leagues; 23% Youth Camps;
19% Nature Center; 18% Gymnastics; 15% Youth Sport Leagues
3. The ARC scored low on the variety of fitness equipment offered; an expansion of the weight/cardio
areas would allow more varied equipment.
4. The lowest satisfaction scores for both ARC adult and fitness programs were for timing and
scheduling; inadequate space is available to meet this interest.
5. Of the patrons who have children and attend the Recreation Center, 91% have children under the age
of 18, indicating the importance of having child specific activities at ARC.
6. Written comment section of the survey:
6.1 Many requests for more yoga, a specific room would allow for more classes and more class
times for each class.
6.2 More volleyball, currently one night per week is offered at the Avon elementary gymnasium,
more times and larger space would allow better opportunities to play; offer leagues or shoot
times.
6.3 More Teen programming
6.4 Requests for racquetball, squash, dance, Pilates - all programs which require appropriate
space or facilities.
SECTION 3.2 - Page 1 of 1
Section 3.2: Estimated Cost of Phase 2 Expansion, including Parking
2013 DESIGN PROGRAM & CONSTRUCTION ESTIMATE
The program, based upon further review of the Avon Recreation District Community
Survey Results, June 2102, staff has recommended the building program at this time
include the spaces itemized below.
Parking has been analyzed by Town Engineer Justin Hildreth and the cost and program
to meet Town requirements are provided.
PHASE 2 RECREATION CENTER PLAN – COST ESTIMATE
SQ. FT. PER SF 70%
(FOOTNOTE 1) TOTAL
GYMNASIUM/MULTI-PURPOSE
SPACE 17,874 $122.59 $208.40 $3,724,995
CLIMBING WALL 2,900 $133.57 $227.07 $658,500
YOGA/OTHER ACTIVITY 1,600 $91.54 $155.62 $248,989
MEETING ROOM 1,600 $102.32 $173.94 $278,310
BASE BUILDING, INCLUDES
EXPANDED FITNESS/CARDIO;
POSSIBLE INDOOR
PLAYGROUND
8,751 $187.28 $318.38 $2,786,108
TOTAL PHASE 2 BUILDING 32,725 $7,696,903
Estimated Site Costs $1,000,000
TOTAL ESTIMATED PHASE 2
BUILDING $8,696,903
PARKING ALTERNATE 1 - UNDER
PHASE 2 (Footnote 2) 1,450,000
TOTAL ESTIMATE
$10,146,903
FOOTNOTE 1: Utilizing data from Engineering News-Record, a well-respected construction journal, shows
construction cost for this region to have increased 70% since 1996.
FOOTNOTE 2: See attached: PARKING ANALYSIS – PHASE 2 RECREATION CENTER EXPANSION & ICE RINK
Note: The Gypsum Recreation Center’s cost of construction for its building, including gymnasium, was
$12,000,000, in 2006. The building is 57,000 square feet, and also includes an indoor gymnastics center, 26 foot
climbing pinnacle, climbing grotto, gymnasium, indoor track and indoor pool.
SECTION 3.2 PARKING ANALYSIS - Page 1 of 2
PARKING ANALYSIS
PHASE 2 RECREATION CENTER EXPANSION & ICE RINK
August 8, 2013
Currently there are 325 public parking spaces in the Town Center West area including the Town Hall,
Fire Station, Library, Lake Street, W. Beaver Creek Blvd, Recreation Center and north of the Season’s
Building parking lots. The current public buildings require 264 spaces assuming 4 spaces/1,000 SF
and a 15% reduction for shared and mixed uses pursuant to §7.28.020(g)(2)(ii), Mixed Use Reduction,
Avon Municipal Code. The 61 spaces not required for the buildings provide parking for H.A.
Nottingham Park.
The expansion of the Recreation Center is planned for the east side of the existing building, in the
east Recreation Center lot, which would result in a net reduction in parking spaces of approximately
56 spaces, depending on the final design of the Recreation Center expansion. A multi-purpose
room/gym, expanded fitness room and flex meeting/yoga room will add approximately 32,750 SF to
the Recreation Center, requiring 76 additional parking spaces for a total of 345 spaces. A total of 76
spaces will be required to replace lost parking spaces and the recreation center expansion.
An ice rink is proposed to be located west of the Recreation Center in the parking lot and grass field.
If constructed, the ice rink will remove 40 parking spaces in the west recreation center lot, requiring
a total of 111 parking spaces to accommodate existing uses, the expanded Recreation Center and ice
rink.
The new additional parking spaces can be installed in several locations including south of the
Recreation Center, under the Recreation Center expansion, Lake Street and Benchmark Road south
of The Seasons.
• Fifty-one (51) spaces can be built under the Recreation Center expansion for approximately
$3.7M.
• A more feasible option is to reconfigure the remaining portion of the Recreation Center lot
with The Season’s north lot and remove Benchmark Road. This will generate approximate 92
spaces, an increase of 36 spaces from what will exist if the Recreation Center is expanded.
• Fifteen parallel parking spaces or 40 to 45 angled paces can be built along Benchmark Road
for about $250,000. The perpendicular spaces will be only 15-feet deep, 2-feet shorter than a
standard angled parking space.
• Up to 38 parking spaces can be built along Lake Street for approximately $400,000.
• These parking configurations would yield a total of 129 parking spaces, 13 more than what is
required for the Recreation Center expansion and the existing facilities in the area.
• If the program does not include the location of an ice rink on the south side of the Recreation
Center, 40 more spaces would be available.
A summation of the parking program is provided in the table below.
SECTION 3.2 PARKING ANALYSIS - Page 2 of 2
PARKING FOR RECREATION CENTER & ICE RINK
Location Parking Spaces Cost
Required Parking
Recreation Center Expansion 76
Plus: Parking Spaces Lost due to Expansion 56
Plus: Parking Spaces Lost due to Ice Rink 40
Minus: Existing Surplus Spaces -61
TOTAL ADDITIONAL REQUIRED SPACES 111
New Parking Options
Recreation Center South 36 $800,000
Benchmark Road, South of Seasons Bldg. 40 to 45 $250,000
Lake Street 38 $400,000
TOTAL 119 $1,450,000
Alternate Parking Option
The H.A. Nottingham Park Master Plan vision included 136 parking spaces located in the current
location of Town Hall, and there are 95 spaces there currently. The plan in 2009 was for Town Hall to
be relocated to the Fire Station site but recently there have been discussions that Town Hall could
also be moved to south of the Recreation Center. In that option, all of the east Recreation Center lot
would be consumed resulting in a loss of 76 Parking spaces. A net increase in parking spaces of 131
to what is required for this option can be accommodated with the additional parking at the Town
Hall site, Benchmark Road, and Lake Street. This, of course, would require the use of Certificates of
Participation to construct Town Hall as reviewed in the June 25, 2012, Development Concepts.
Prepared by Justin Hildreth, Town Engineer
August 8, 2013
SECTION 4.1 - Page 1 of 1
Section 4.1: Playground and Irrigation Ditch Enhancement: Destination Jump, Splash, Learn
Pedro Campos, Landscape Architect & Land Planner with Zehren and Associates, has been closely involved in the
development of Avon’s Master Plan for Harry A. Nottingham Park, November 2008. Pedro was asked to state the vision
from the Master Plan and develop a budget for improvements to the playground and irrigation ditch. As the project has
been discussed internally, the moniker Jump, Slash, Learn has become a way to describe the opportunity for these
improvements. Pedro’s detailed letter and budgets follow this brief summation:
• The improvements are seen as a key family destination. Located closer to the Recreation Center and Lake
Street parking, a signature play structure would be incorporated into the stream area to create an
environmental learning “place”.
• A survey of other significant developed children playgrounds show the new trend of incorporating outdoor
simple fitness equipment for teens and adults in close proximity to the play structures facilitating activity for
those who are tending to children or just want an outdoor workout.
• The preliminary budget for the improvements is $770,000.
• In thinking about Nottingham’s importance to children and families, it offers the opportunity for working in
concert with the Mall improvements as child-based activities, located appropriately, will certainly bring
residents and visitors into this important “venue”. These improvements might include a spray park and
climbing rocks.
ZEHREN
AND ASSOCIATES
August 7, 2013
Virginia Egger / Justin Hildreth
Town of Avon
Post Office Box 975, Avon, CO 81620
Email: vegger@avon.org / jhildreth@avon.org
Phone: 970‐748‐4009
RE: Town of Avon – Nottingham Park Playground – Vision and Preliminary Budget
Dear Virginia and Justin,
Thank you for the opportunity to work with you and staff on the vision and preliminary budget for the
Nottingham Park Playground. This memorandum outlines the vision for the playground and supplements the
preliminary budget we have developed collaboratively over the past month.
As you are aware I was intimately involved in the development of the Nottingham Park Master Plan. A major
improvement recommended by the Master Plan is the replacement and relocation of the existing playground
with a new more modern, diverse, and unique playground sited closer to Lake Street and the Recreation
Center integrated within the area of the park where there are flowing irrigation ditches, mature trees, and
the existing park restrooms. The improvement and relocation of the playground is being considered in
context with other broader improvements through out the west Town Center in order to create a synergy of
activity and uses that will elevate the experience of both visitors and resident alike.
The vision for the playground is to become a key family destination that incorporates environmental
education, new fitness oriented play structures for kids of different age groups, safe surfacing, and
‘playscapes’ utilizing natural materials and features such as boulders, logs, and water. As represented in the
attached illustrations that are included in the Park Master Plan, the concept is to enhance the irrigation
ditches that flow through the east area of the park in concert with the incorporation of a new playground
immersed in the canopy of the existing trees, and accessible by the nearby asphalt paths connecting to Lake
Street and the other park paths and trails. The enhancement of the irrigation ditches is intended to allow
safe interaction of children with water, by creating rock shelves and eddies, and opportunities for contact
and play with water as well as education relative to water conservation and the hydrologic cycle.
Relative to new play structures, equipment, and surfacing several images are attached that show the general
character of new and emerging play equipment that is focused on children’s agility, mobility and strength
development, incorporating climbing features with ropes, bars, and vertical panels. The concept is to
integrate several of these new features geared to different children’s age groups in a creative composition
within the new playground area. They would be placed in a configuration taking advantage of the shade
provided by the canopy of existing trees, and close proximity to the existing picnic shelter and restrooms, also
to be improved hand in hand with the playground improvements. A new surface of crumb rubber mulch, and
2
or rubberized mats will be incorporated to make the playground safe and comfortable for it users. In
addition, as included in the Park Master Plan, naturalistic play areas geared to use across all seasons would
be incorporated such a boulder maze of alternating heights for skipping, climbing, and hopping over during
dry months and also in winter when covered in snow. Lastly, an area with a cluster of outdoor fitness
equipment for use by teens and adults is also proposed as part of the playground complex, and as an
exercise‐oriented use that relates to the path around the Lake used by many as a jogging loop. Some images
of the type of equipment contemplated are also attached for reference.
In association with these improvements a preliminary budget has been prepared that is consistent with the
cost range included in the master plan implementation matrix. The preliminary budget of approximately
$770,000 includes the demolition and reclamation of the existing playground area as additional lawn space to
be used for special events and as an extension to the existing multi‐use field within the park. The preliminary
budget includes all the elements that are contemplated for the new playground, including an additional new
shade structure, new park furnishings, and the site improvements that would be required, including
enhancement of the irrigation ditches. The park restrooms are part of a separate budget and not included as
part of the playground preliminary budget. However the intent is for both playground and restroom
improvements to be planned, designed and installed simultaneously in order to be coordinated and take
advantage of inherent relationships.
Thank you again for the opportunity to address these exciting improvements working with your team. On a
professional level it is very gratifying to give continuity to the vision and ideas that are included in the Park
Master Plan towards its potential fulfillment. Likewise, on a personal level, as a local resident, the
contemplated plans and improvements are very exciting for our family as well as our friends and neighbors.
Please let me know if you have any questions or concerns, and if I can be of further assistance to this effort. I
would look forward to helping present and review some of these ideas in person if it helps explain the vision,
rationale and overall planning and design intent.
Very truly yours,
Pedro Campos, RLA / ASLA
Landscape Architect & Land Planner
Zehren and Associates, Inc.
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SECTION 5.1 -Page 1 of 1
Section 5.1: Ice Rink Options
Nottingham Lake is no longer considered a viable option for an ice rink due to variable winter
conditions, on-going safety concerns, and overall higher maintenance costs. Staff is in the process of
evaluating the feasibility of using the main athletic field during winter months for an ice rink. For the
purpose of this Work Session, the reprogramming of the area in the front (west side) of the
Recreation Center was assessed in more detail.
Approximate location and dimensions of Ice Rink & Turf
Activity Field
Example of ProWall ™ Portable Wall System installation
A portable ice rink wall system was priced out for a 140’ x 64’ rink, with 20’ radius corners. The
panels themselves would be 42” high x 8” wide. The panels would be constructed with molded UV
stabilized polyethylene, and secured together. Price for this type of wall system is $22,000. The cost
for artificial turf in the green highlighted area above is approximately $100,000 (based on $6/per SF).
Included some demolition work and grading, the total project cost for this area is $230,000.
Ice Rink Chiller: To extend the ice season, a 2007 estimate from Trane indicated the cost to be
$245,000. Staff will look to check that charge with other agencies who have installed mechanical ice
freezing systems.
SECTION 5.2 - Page 1 of 1
Section 5.2: Upper Field Upgrade Options
The Upper Field at Nottingham Park has been heavily used and in need of upgrading. The project is
not yet included in the Town’s Five Year Capital Improvements Plan. As the Town looks to attract
additional special events, the field is integral to both sporting and cultural larger scale productions
and tournaments.
Two options have been evaluated:
Rebuild and Replace with Grass: Estimated Cost $350,000
• Pro: Less costly upgrade; easier for placing tents
• Con: Costly to maintain, high water user, higher “wear” from week to week
Rebuild and Replace with Turf $534,000
72,900 sq. ft. @ $6.75/sq. ft.
• Pro: Durable from event to event; are reported to be less costly to maintain; and
opens the field more quickly once sun and warm weather appear
• Con: More costly; a $30,000 cover should be purchased for crowd based events; may
limit size of tents which can be placed on the surface due to anchoring limits
SECTION 5.3 -Page 1 of 1
Section 5.3: Restrooms Renovation
Town Building Official Willey Gray evaluated the Nottingham Park restroom and reported the following:
Current Condition:
• Building is old and in need of paint and upgrades
• Building does not meet current ADA requirements
• Building does not have ventilation
• Building floor drains do not connect to sewer
• Building does not meet current energy conservation requirements
Building Information:
• Building is approximately. 24X24, rounded to 600 sq. ft.
• Building is CMU construction (cinder block) with wood siding and wood frame roof
• Toilets are china and sinks are stainless steel
• Floors are painted concrete, walls are painted CMU’s
• Current fixture count does not fall into an occupancy category, because the park is not an occupancy.
This facility is an amenity not a required building. Current fixture count can stay the same, with
portable toilets meeting high special event counts.
Upgrade Options:
1. Rebuilding the Building with Similar Construction: Based on quick quotes from local suppliers,
Gallegos corp. Edwards Building Center, Elliot Concrete, Granger supply co. and Jerry Sibley plumbing,
costs come in at $300.00 a square foot. These costs are conservative and do not include mechanical
and finishes related to ADA and metal stalls. No excavation or design work have been included.
600sq.ft. X $300 = $180,000.00 + for ADA/energy conservation
2. Upgrade the Building: Utilize higher grade, durable materials.
600sq.ft. X $458 = $275,000 (may be adequate for ADA/energy conservation)
3. Modular: Evaluate quality and price
SECTION 5.4 - Page 1 of 2
Section 5.4: Estimated O&M Costs: Utilities & Maintenance
Total Estimated Utilities, Maintenance and Equipment Replacement: $141,400 - $155,800
Senior Planner Matt Pielsticker developed these estimated annual costs using different methodologies
depending on the expense.
Utilities: $95,900 - $104,700
The operating pro-forma budget for the planned 63,100 sq. ft. Crown Mountain Recreation Center
(CMRC) was prepared by GreenPlay, LLC, experts in recreation facility management and operations. The
CMRC will be constructed in El Jebel, if approved by voters in November.
CMRC staff also took the additional step to request that operators of Glenwood Springs, Carbondale,
Fruita and Gypsum review the operating assumptions and projections, and their input was
incorporated. For purposes of calculating the proposed mill levy increase to support CMRC O&M, Utilities
were calculated at $3.20 per sq. ft. based on the actual 2012 Gypsum Recreation Center utility
expenses. Based on that formula, the estimated Utility costs for Avon Phase II Expansion –
32,725 sq. ft. x $3.20 = $104,720 per year
Staff evaluated the 2012 actual costs for the Avon Recreation Center which totaled $116,332 for the 39,687
sq. ft. of existing space = 2.93 per sq. ft. per year. These costs do not include heat recovery expenses and
therefore Staff is comfortable with this average price per sq. ft.
Estimated Utilities for Avon Phase II Expansion – 32,725 sq. ft. x $2.93 = $95,884per year
Maintenance: $25,500 – $31,100
The operating pro-forma is based on Recreation Center staff keeping building and all equipment clean
during the operational hours of the facility. A contractual janitorial service is included in deep cleaning of
restrooms at a minimum of 5 nights per week. The Maintenance level, as described, is estimated at $.95
per sq. ft. per year.
[John Curutchet, Interim Recreation Director, estimated the cost may be kept to $.75 sq. ft. per year hiring
a full time building attendant versus using contract cleaning services: $25, 543.]
Estimated Maintenance for Avon Phase II Expansion – 32,725 sq. ft. x $.95 = $31,088 per year
[.33 acre Destination Jump, Splash, Learn, with outdoor fitness component would cost an estimated $0.50
per sq. ft. maintenance cost, yielding an annual increase of $7,260. – John Curutchet, Interim Recreation
Director]
Equipment Replacement: $20,000
The fitness area at the Rec Center currently has the following fitness equipment: Adaptive Motion
Trainers (2), Rowers (2), Recumbent Bikes (4), Upright Bikes (4), Step mills (1), Treadmills (5), Ellipticals
(8), and Incline Trainers (2).
These machines have estimated useful lives of 3 years and can range in cost from about $1,500 for rowers
to upwards of almost $9,000 for treadmills with multi-media capabilities. Free weights and circuit weight
SECTION 5.4 - Page 2 of 2
machines are not included because these typically these have a much longer estimated useful life and are
much less expensive.
Total 2012 replacement charges were $38,903 for the above fitness equipment. It is estimated if the
fitness area was doubled in size we could expect have half-again as many fitness machines.
Estimated incremental annual cost of equipment replacement: $20,000 per year.
Estimated Revenues:
Scenario: Phase 2 Revenue Generation Model
Current
% Increase
with Phase 2
Admission Fees $790,000 9% $71,100
Program Fees 40,000 60% 24,000
Fitness Programs 40,000 10% 4,000
Adult Programs 12,000 30% 3,600
Your Programs 109,000 25% 27,250
Event Fees 15,000 30% 4,500
Rentals 10,000
ANNUAL REVENUES $144,450
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: August 8, 2013
Agenda topic: Action on IGA with Eagle County concerning Administration and Conduct of
November 5, 2013 Coordinated Mail Ballot Election
The attached Intergovernmental Agreement (IGA) sets forth the administration and conduct of the November
5, 2013 Coordinated Mail Ballot Election. If the Town Council approves the IGA, the town would participate in
the upcoming November election with a ballot question that proposes funding for Recreation Center Phase II
expansion and recreational amenities. The Town must certify a ballot question by September 6, 2013.
The election will be administered as a coordinated mail ballot election by Eagle County Clerk and Recorder,
Teak Simonton. In my role as Town Clerk, I would serve as the designated election official and work with the
Eagle County Clerk to administer Avon’s portion of the coordinated election, acting as the primary liaison
between the Town and the County Clerk. This arrangement is outlined in the agreement and the Town Code
Section 1.12.020, Town Clerk Duties. This agreement must be submitted to the County at least 70 days before
the election, as required by § 1-7-116(2), which is August 27, 2013 in order to participate.
The IGA addresses such items as follows:
Responsibilities of County Clerk and Political Subdivision Responsibilities: section details responsibilities for
both election officials
Costs: section estimates election costs on a prorated basis based primarily on the number of ballot issues,
active voters, and/or items to be included on the ballot for each political subdivision. On average election
costs have been around $2500.
Call and Notice: section details who is responsible for the election publication
Ballot Certification: section details the town’s role in submitting the ballot text to the county
Preparation of Voter Lists: section details the exchange of the voter lists
Tabor Notice: section details responsibility with regard to the Tabor notices
Street Locator List: section details that the town is to provide an accurate street listing to the county
Election Judges: section details that the county manages the appointment and training of the judges
Canvass of Votes: section details the role of the county in the canvassing of the votes
Cancellation: section details that the town will notify the county if the election is cancelled
There are several exhibits to the agreement including a timeline, street locator list and affidavit.
Attachments:
• Eagle County Intergovernmental Agreement for November 5, 2013 Coordinated Mail Ballot Election
rossing
EagleBend Dowd Affordable Housing Corporation
MEMORANDUM
TO: Town Manager
Town Council
Town of Avon, CO
FROM: Gerry Flynn, President
Eaglebend Dowd Affordable Housing Corporation
dba Kayak Crossing Apartments
DATE: August 5, 2013
RE: Request for updated information
Request for approval of 2013A Refunding Bonds
At the request of the Avon Town Manager, we are providing the following updated information relating
to the pending refinance of Kayak Crossing:
1. Project Summary from 1999
2 . Current Rental Rates, Utilities, unit configurations available at www.kayakcrossing .com
3. 2013 Bond Refunding Terms
4. Previous TOA Discussion Outline
a. Project Agreement dated July 1, 1998
5. Financial Statements as of June 30, 2013
Additionally, the proposed transaction is described in the proposed Town Resolution# 13-_ and the
related cover memorandum from Calvin Hanson at Sherman & Howard. There is also the transcript
from the Town of Avon Work Session discussion on June 11, 2013. We apologize for any redundancy
in this various information provided .
28 2nd Street + Suite 215 + Edwards, CO 81632 + (970) 926-8686 + Fax (970) 926-6890
Kayak Crossing is a 50 unit apartment community located between Eagle-
Vail and Dowd Junction, just 5 miles west of Vail. It consists of 4 buildings
on a 4.5 acre site adjacent to the Eagle River. This stretch of river is very
popular for kayaking during the summer months.
The $9 million project is owned by Eaglebend Dowd Affordable Housing
Corporation (EDAHC) and was financed with tax exempt project revenue
bonds issued on behalf of the Town of Avon. EDAHC was organized as a
6320 non-profit corporation to develop and own the project. Three local
developers collaborated to develop Kayak Crossing and hold the subordinate
series of bonds issued in conjunction with the project.
Corum’s Mountain Office, led by Gerry
Flynn, joined with Wintergreen Homes and
East West Partners in the development of the
project. Construction of the project began in
August 1998 and was completed in
September 1999. Up to 50% of the units are
master-leased to Colorado Mountain Express
(“CME”), a major employer in the area and an
affiliate of East West Partners. CME sub-
leases the units primarily to their van drivers
who provide transportation services to many
of the Colorado resorts. The other half of the
units is leased to qualifying Eagle County
employees at the same affordable rates as the
master lease.
Kayak was fully leased within one month of
completion and has remained 95% to 100%
leased. Its location near Vail, the generous
unit sizes and the appeal of its single-
occupancy bedrooms have been instrumental
in the success of the property.
Kayak’s financing was credit enhanced by
EagleBend Affordable Housing Corporation,
a related non-profit which owns EagleBend
Apartments. EagleBend is another highly
successful affordable housing project located
3 miles to the west of Kayak.
Kayak
Crossing
Eagle-Vail,
Colorado
UNIT TYPE SIZE # UNITS
2 BR / 1 BA 828sf 2
3 BR / 2 BA 1054sf 21
4 BR / 2 BA 1271sf 17
5 BR / 2 BA 1422sf U 10U
U 50
MARKET
50% Seasonal Employee Housing
50% Moderate Income Housing
BUILDINGS
4 Apartment Buildings including Rental Office /
Laundry / Hot Tub
NEARBY ATTRACTIONS
•Vail Ski Resort (5 Min)
•Beaver Creek Ski Resort (10 Min)
•City Market Grocery Store (10 Min)
•Local Restaurants
•7 Valley Golf Courses
•Mountain Biking
•Bus Stop On Premesis
•Fishing & Kayaking
Rates for Eagle County Rentals and Vail Rentals, Kayak
Crossing
PETS: We allow dogs and cats with a $300 refundable deposit and $25 pet rent per month.
2013 RENTAL RATES
2 BedroomRent Utilites TotalDeposit
2 Bedroom$1,140 $180$1,320$1,500
3 BedroomRent Utilites TotalDeposit
3 Bedroom$1,450 $200$1,650$1,800
4 BedroomRent Utilites TotalDeposit
4 Bedroom$1,650 $220$1,870$2,100
4 Bedroom+Den$1,800 $240$2,040$2,200
Amenities
•Furnished units upon request
•Microwave
•Dishwasher
•Garbage disposal
•Large laundry facility
•Ample parking
•Excellent schools
•"Put in" for kayakers
•Bus / public transportation
•On-site maintenance
•Pets allowed
•Wheelchair accessible
•Bilingual staff
•BBQ / picnic areas
Utilities Included:
•Gas heat
•Electricity
•Cable TV (expanded)
•Water / sewer
•Trash removal
•Pest control
Utilities Available:
•Telephone
•High Speed Internet
Page 1of 2Rates for Eagle County Rentals and Vail Rentals, Kayak Crossing
8/5/2013http://www.kayakcrossing.com/units
28 2nd Street ♦ Suite 215 ♦ Edwards, CO 81632 ♦ (970) 926-8686 ♦ Fax (970) 926-6890
EagleBend Dowd Affordable Housing Corporation
2013A Bond Refunding
• Three year bridge financing
• Payoff 2003A Bonds owned by US Bank, in technical default since 2011
Lender / Bond Purchaser: 1stBank
Term / Maturity: 3 years to Sept 1, 2016
Interest rate: 3.1%, double tax exempt (rate lock expires 8/31/13)
Amortization: 30 years
DSC Covenant: 140%
Annual Savings: $185,000 avg, 3 yrs
NPV Savings $83,025
Benefits: Reduces principal over 3 years
Allows NOI to improve to support permanent financing
Eliminates continuing technical default
Closing: August 14, 2013
Refinancing in 2016 (or sooner)
• Extend final maturity to 2039 (tax exempt)
• Reduce annual principal reduction from existing 2003A bond redemption schedule
• Refinance risk in 2018 eliminated
Town of Avon / Kayak Crossing
Prior Discussion Agenda
(June , July 2013)
1) 6320 Non-profit structure
a) Benefits – tax exemption( (debt, property tax, sales tax), lower rents, operates autonomously
b) Allows motivated participants to provide risk capital in return for subordinate “cash flow” bonds
c) TOA has no financial exposure, no capital provided, no other liability; only residual benefit
d) TOA acts as sponsor only, with certain rights to protect its residual interest in assets (see Project
Agreement)
2) History
a) BODs have been very good stewards of these assets
i) Proud of what we have created … affordable housing, equity value … benefits to TOA
b) Private non-profit corporations run by 5-member board
i) Created “on behalf of” TOA, as sponsor; public purpose = provide affordable housing
ii) TOA has always been informed through a designated member of each board
c) TOA original intent (1998,2003) was to allow these corporations to operate autonomously
i) Representation, but not control
ii) Concerned with potential liability
iii) Non-profits were intentionally set up with this goal in mind (see By-Laws)
iv) 23 year history includes Eaglebend success being used a seed money for subsequent projects
3) Status of Kayak
a) Very favorable refi approved by FB (see bond term summary)
i) 3 yr term at 3.1% Interest; buys time for permanent financing
ii) Annual savings of $185,000 + $540,000 principal reduction
b) Could close in July, but need to wait for 8/13 TC approval (TOA approval required for new debt)
c) No requirement for subordinate debt consent (bond structure)
4) Towns Rights / Town Role
a) Our 6320 structure requires that TOA approve any new debt; section 8 of PA.
b) TOA typically would have no objection to refi with PV savings (benefits all parties).
i) Urgency – limited time window imposed by both lender and current bondholder; deadline 8/31
c) Project Agreement (attached) is only agreement between kayak and TOA
EAGLEBEND DOWD AFFORDABLE HOUSING PROJECT
PROJECT AGREEMENT
THIS PROJECT AGREEMENT (the "Agreement") is made as of July 1, 1998,
by and between EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION, a
Colorado nonprofit corporation (the "Corporation") and the TOWN OF AVON, COLORADO
(the "Town").
RECITALS:
A. The Corporation has been organized under the Colorado Nonprofit
Corporations Act to acquire property in order to provide affordable housing facilities, for the
benefit and on behalf of the Town and its inhabitants.
B. The Corporation shall issue its EagleBend Dowd Affordable Housing
Corporation Multifamily Housing Project Revenue Bonds, Series 1998 (the "Series 1998
Bonds") in an aggregate principal amount not to exceed $11,100,000 for the purpose of
acquiring and constructing real and personal property to be operated by the Corporation and
known as "Kayak Crossing" (the "Project"), located within eight miles of the boundaries of the
Town on the property described in Exhibit A hereto, to provide dwelling accommodations at
rentals within the means of individuals or families of low or moderate income, as determined by
the Board of Directors of the Corporation from time to time.
C. The Series 1998 Bonds shall be issued pursuant to the Trust Indenture
dated as of July 1, 1998 (the "Indenture") between the Corporation and U.S. Bank National
Association, as Trustee (the "Trustee"). The Series 1998 Bonds and any Additional Bonds
issued under the Indenture are referred to hereinafter as the "Bonds."
All capitalized terms used herein, unless otherwise defined, shall have the
meanings ascribed thereto in the Indenture.
TERMS
For good and valuable consideration, the rec~ipt and sufficiency of which is
hereby acknowledged, the Town and the Corporation, on behalf of themselves and their
respective successors and assigns, agree as follows:
Section 1. Project Operation. The Corporation hereby covenants and agrees
to operate the Project at standards required to provide decent, safe, and sanitary housing facilities
at reasonable rental rates, in a sound and economical manner, as provided in the Indenture. In
leasing units of the Project, the Corporation shall give priority to natural persons meeting the
requirements of "Qualified Renters" as defined in the Indenture, and may allow a mark-up of not
exceeding 20% in rental rates charged to subtenants by master lessees to permit the recovery of
\\'\DE-67496/1-0034439.01
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682782 07/1e/1998 10:41A 23 Sara Flaher
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actual administrative costs. Nothing herein or in any resolutions of the Town shall be interpreted
to require the Town to undertake responsibility for operation of the Project. The Corporation
shall indemnify and hold harmless the Town, its officers, agents and employees and members of
its Town Council with respect to any liability or damages arising under actions or claims against'
the Town as a result of the operation of the Project by the Corporation.
Section 2. Town Benefit. The Corporation covenants and agrees that all
activities of the Corporation shall be undertaken for the benefit of the Town. Upon termination
of this Agreement, the Town shall be entitled to acquire title to the Project without cost, as
provided in the Indenture.
Section 3. Right to Acquire. As further provided in Section 14.02 of the
Indenture, the Town is hereby granted the right to obtain, at any time, fee title and exclusive
possession of property (including the Project) financed by obligations of the Corporation
(including the Bonds) free from liens and encumbrances created by the Corporation related to the
Bonds (but subject to other Permitted Encumbrances, as defined in the Indenture), and any
additions to such property, by (1) placing into escrow an amount that will be sufficient to defease
such Bonds and other obligations, (2) paying reasonable costs incident to the defeasance, and
(3) complying with all other requirements of Article XIV of the Indenture. The Town, at any
time before it defeases such obligations, shall not agree or otherwise be obligated to convey any
interest in such property to any person (including the United States of America or its agencies or
instrumentalities) for any period extending beyond or beginning after the Town defeases such
obligations. In addition, the Town shall not agree or otherwise be obligated to convey a fee
interest in such property to any person who was a user thereof (or a related person), before the
defeasance within 90 days after the Town defeases such obligations.
Section 4. Unencumbered Title. If the Town exercises its option under
Section 3, the Corporation shall immediately cancel all encumbrances on such property,
including all leases and management agreements (subject to certain Permitted Encumbrances as
aforesaid). Any lease, management contract, or similar encumbrance on such property will be
considered immediately cancelled if the lessee, management company, or other user vacates such
property within a reasonable time, not to exceed 90 days, after the date the Town exercises its
rights under Section 3.
Section 5. Default Rights. Upon the occurrence of an "Event of Default" as
defined in Section 10.01 of the Indenture, the Corporation shall cause the Trustee, within five
days of such occurrence, to provide notice to the Town, and the Town shall have the option to
cure such Event of Default within 90 days after receipt of such notice. As provided in
Section 1 0.02 of the Indenture, amounts advanced by the Town as a result of the exercise of this
option to cure monetary defaults hereunder and reasonable, direct expenses of the Town
advanced to cure nonmonetary defaults hereunder shall be deemed to be Indebtedness of the
Corporation to the Town.
In addition to the foregoing and consistent with Article XIV of the Indenture, if
pursuant to Article X of the Indenture, the Trustee declares the principal of any Bonds then
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&82762 07/1~/1998 10:41A 23 sa~• Fl•n•~
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outstanding to be due and payable and any foreclosure proceeding or other action is commenced
under the Indenture or the Deeds of Trust, as defined in the Indenture, which could lead to the
sale or other disposition of the property pledged thereunder, the Town is hereby granted an
exclusive option to purchase all such property (including the Project), for the amount of the
outstanding Bonds and other indebtedness of the Corporation and accrued interest to the date of
default. The Town shall have not less than 90 days from the date it is notified by the Trustee of
such action in which to both exercise the option and purchase the property. Nothing herein shall
be construed to create any obligation of the Town to cure any Event of Default.
Section 6. Funds in Indenture. As required under Section 14.02 of the
Indenture, in the event the Town exercises its options under Section 3 or 5 hereof, the Town shall
receive a credit towards its defeasance or purchase costs in the amount of any fund or account
balances held under the Indenture with the exception of (1) the Excess Investment Earnings
Fund, as defined in the Indenture, (2) an amount representing Operation and Maintenance
Expenses, as defined in the Indenture, required by the Corporation's current operating budget
through the date of defeasance or purchase, and (3) any amount needed to pay additional interest
on the Bonds or expenses in connection with such defeasance under Section 14.01 of the
Indenture.
Section 7. Iit.k. . Unencumbered fee title (subject to certain Permitted
Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession
and use thereof will vest in the Town without demand or further action on its part when all
obligations issued under the Indenture (including the Bonds) are discharged. For purposes of this
Section 7, such obligations will be discharged when (a) cash is available at the place of payment
on the date that the obligations are due (whether at maturity or upon call for redemption) and
(b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the
Indenture. All leases, management contracts and similar encumbrances on the Project shall
terminate upon discharge of said obligations. Encumbrances that do not significantly interfere
with the enjoyment of such property, such as the Permitted Encumbrances, are not considered
encumbrances for purposes of this Section.
Section 8. Indenture Rights: Approval of Town. The Corporation hereby
covenants and agrees that the provisions of the Indenture granting any rights to the Town shall
not be amended or modified without the consent of the Town. By execution hereof, the Town
hereby consents to the provisions of the Indenture relating to the rights of the Town and confirms
its approval of the issuance of the Series 1998 Bonds. The Town also consents to and approves
the provisions of the Operating Deficit Agreement dated as of July 1, 1998, among the
Corporation, EagleBend Affordable Housing Corporation, and the respective trustees in respect
of the bonds issued by such corporations.
Section 9. llrm· This Agreement shall terminate upon the vesting of title to
the Project in the Town as herein provided.
Section 10. Burden on Property. This Agreement is a burden upon and runs
with the property described in Exhibit A hereto and is binding upon the Corporation and upon
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3 of 8 R 31.00 D 0.00 N 0.00 Eagle CO
all persons or entities with any right, title or interest to such property or any part thereof. This
Agreement may be released therefrom in the same manner as the release of property under the
Deeds of Trust executed in connection with the issuance of the Bonds.
Section 11. Construction. In the event of any conflict between the terms and
prov1s10ns of this Agreement and the terms and provisions of the Indenture, the terms and
provisions of the Indenture shall govern.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the
day and year first mentioned above.
TOWN OF AVON, COLORADO
By: J~±~~
May
\\IDE-67496/1-0034439.01
[SEAL]
ATTEST:
OWD AFFORDABLE
G CORPORATION
1111111111111111111 Ill IIIII 111111 111111 1111111111111111
662762 07/1!/1998 10:41A 23 Sara Fisher
4 o, I R 31.00 D 0.00 N 0.00 Eagle CO
4
STATE OF COLORADO
) ss.
CITY AND COUNTY OF DENVER )
l
The foregoing instrument was acknowledged before me this ~ ~ay of July, 1998
by Gerald E. Flynn, as President, on behalf of EAGLEBEND DOWD AFFORDABLE
HOUSING CORPORATION, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
My Commission expires: . a~ ?, 02-eJC()
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ...:J. day of July, 1998
by Jack Fawcett, as Mayor, on behalf of the TOWN OF AVON, COLORADO.
WITNESS my hand and official seal.
My Commission expires: __ (\_;._· ....::--z....ccc..=.. __ ·_CI-'S,.__ ___ _
[SEAL] -~---;~
(;
:·:,'· ...... ! .. :~.: • '··-,
.···· ·· ... . ·
(:' f JIJI. ~.-: r
\ \ ! -'• ~· .
\ .r-•, ·--w:-J·.,,.
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-~
r.:; ·: .. ,.--· •· .
1\\DE. 67496/1.0034439 01
1111111111111111111 Ill IIIII 111111 111111 1111111111111111
682782 07/1!/1998 10:41A 23 Sara Flsn•r
e of 8 R 31.00 D 0.00 N 0.00 Eawl• CO
5
EXHIBIT A
Legal Description
PARCEL A:
TRACT A: CLIFFSIDE VILLAGE CONDOMINIUMS, ACCORDING TO THE
EXEMPTION PLAT RECORDED JUNE 29, 1998, RECEPTION NO. 661239 AND AS
MORE PARTICULARLY DESCRIBEO AS FOLLOWS:
A TRACT OF LAND IN THE EAST HALF OF SECTION 16, TOWNSHIP 5 SOUTH,
RANGE 81 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE
OF COLORADO, MORE FULLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SECTION 16; THENCE NORTH 34
DEGREES 08 MINUTES 01 SECONDS WEST, 2348.72 FEET TO THE POINT OF
BEGINNING, SAID POINT BEING ON THE EASTERLY LINE OF THE DENVER AND
RIO GRANDE WESTERN RAILROAD; THENCE NORTHWESTERLY 629.55 FEET ON
THE ARC OF A CURVE TO THE LEFf, WITH A RADIUS OF 1495.71 FEET AND A
CENTRAL ANGLE OF 24 DEGREES 06 MINUTES 57 SECONDS (BEING SUBTENDED
BY A CHORD THAT BEARS NORTH 37 DEGREES 59 MINUTES 19 SECONDS WEST,
A DISTANCE OF 624.91 FEET); THENCE NORTH 84 DEGREES 16 MINUTES 04
SECONDS EAST, 321.88 FEET; THENCE SOUTH 82 DEGREES 32 MINUTES 46
SECONDS EAST, 150.39 FEET; THENCE SOUTH 47 DEGREES 39 MINUTES 16
SECONDS EAST, 122.44 FEET; THENCE SOUTH 33 DEGREES 00 MINUTES 19
SECONDS EAST, 242.45 FEET; THENCE SOUTH 24 DEGREES 53 MINUTES 35
SECONDS EAST, 163.93 FEET; THENCE SOUTH 68 DEGREES 33 MINUTES 19
SECONDS WEST 145.00 FEET; THENCE SOUTH 40 DEGREES 42 MINUTES 45
SECONDS WEST, 32.20 FEET; THENCE NORTH 51 DEGREES 05 MINUTES 45
SECONDS WEST, 240.00 FEET; THENCE SOUTH 08 DEGREES 54 MINUTES 15
SECONDS WEST, 65.00 FEET; THENCE SOUTH 16 DEGREES 05 MINUTES 45
SECONDS EAST, 65.00 FEET; THENCE SOUTH 67 DEGREES 24 MINUTES 15 SECONDS
WEST, 45.00 FEET TO THE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF
COLORADO.
PARCEL B:
PARCEL 1, ACCESS PARCELS, CLIFFSIDE VILLAGE CONDOMINIUMS, ACCORDING
TO THE PLAT RECORDED AUGUST 26, 1992 IN BOOK 587 AT PAGE 778, COUNTY OF
EAGLE, STATE OF COLORADO.
189883 lllllllllllllllllllllllllllllllllllllllllllllllllllllll
662782 07/1e/1998 10:41R 23 Sara Flsner
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Attachments:Page
Balance Sheet 1
NOI Summary and Debt Coverage Ratio 3
Month by Month NOI Summary and Debt Coverage Ratio 4
EagleBend Dowd Affordable Housing
Monthly Financial Statements
for the Month and YTD Ended
June 30, 2013
EagleBend Dowd Affordable Housing Corporation
Balance Sheet
pc:KCA Financials 2013 0630aRevDSCR.xlsx
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BS
Page 1
06/30/13 12/31/12 Change
Assets
Operating Cash
Cash - Operating $9,544 ($749)$10,293
Cash - Depository 15,449 38,728 (23,279)
Cash - Security Deposit 43,931 43,952 (21)
Total Operating Cash 68,924 81,931 (13,007)
Bond Funds
Series A Bond Fund
Series B Bond Fund
Series C Bond Fund
Series A Bond Sinking Fund
Excess Investment Fund 10,175 (10,175)
Replacement Reserve 10,419 10,418 1
Operating Reserve 89,294 89,308 (14)
Insurance Reserve 1,571 1,571
Surplus Fund 100 (100)
Total Bond Funds 101,284 111,572 (10,288)
Total Cash 170,208 193,503 (23,295)
Other Assets
Accounts Receivable - Tenants 7,389 14,407 (7,018)
Accounts Receivable - Other
Deposit
Prepaid Insurance 4,707 14,121 (9,414)
Prepaid Expense 1,215 1,215
Allowance for Doubtful Accounts (3,818)(6,250)2,432
Total Other Assets 9,493 22,278 (12,785)
Investment in Real Estate
Land Costs 1,000,000 1,000,000
Furniture & Fixtures 287,293 287,293
Building 8,498,973 8,498,973
Accumulated Depreciation (2,945,862)(2,839,622)(106,240)
Accum Depr - Furn & Fixtu (287,293)(287,293)
Total Investment in Real Estate 6,553,111 6,659,351 (106,240)
Intangibles
Bond Cost 448,651 448,651
Bond Costs-Refunding 1,067,003 1,067,003
Accum Amort Bond Cost (1,072,366)(1,017,070)(55,296)
Total Intangibles 443,288 498,584 (55,296)
Total Assets $7,176,100 $7,373,716 ($197,616)
ASSETS
EagleBend Dowd Affordable Housing Corporation
Balance Sheet
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06/30/13 12/31/12 Change
Liabilities
Current Liabilities
Accounts Payable $18,587 $27,886 ($9,299)
Security Deposit Payable 82,100 85,600 (3,500)
Other Accruals 178 6,724 (6,546)
Deferred Issuer Fee 26,316 21,169 5,147
Accrued Interest Payable 360,574 297,011 63,563
Prepaid Rent 7,041 9,725 (2,684)
Total Current Liabilities 494,796 448,115 46,681
Long Term Debt
Bonds Payable - A 8,235,000 8,330,000 (95,000)
Bonds Payable - B 600,000 600,000
Bonds Payable - C 1,000,000 1,000,000
Notes Payable - EBAHC 430,000 430,000
Total Long Term Debt 10,265,000 10,360,000 (95,000)
Project Equity
Equity (3,434,399)(3,028,993)(405,406)
Net Income (Loss)(149,297)(405,406)256,109
Total Project Equity (3,583,696)(3,434,399)(149,297)
Total Liabilities and Equity $7,176,100 $7,373,716 ($197,616)
LIABILITIES & PROJECT EQUITY
EagleBend Dowd Affordable Housing Corporation
NOI Summary and Debt Coverage Ratio
pc:KCA Financials 2013 0630aRevDSCR.xlsx
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DebtCov
Page 3
Current Annual
Actual Budget Variance Actual Budget Variance Forecast Budget
Operating Summary
100.0%94.0%6.0%Physical Occupancy % at Month End 98.0%98.3%(0.3%)98.3%96.5%
73.0%75.2%(2.2%)Economic Occupancy %76.5%77.6%(1.1%)78.1%77.9%
Operating Income
$57,518 $59,254 ($1,736)Monthly Rent $361,417 $366,800 ($5,383)$738,532 $736,754
3,263 2,550 713 Other Income 22,124 20,510 1,614 41,214 39,600
60,781 61,804 (1,023)Total Operating Income 383,541 387,310 (3,769)779,746 776,354
Operating Expense
3,755 4,450 695 Administrative 21,380 25,520 4,140 47,347 50,630
2,729 4,095 1,366 Labor 7,794 26,022 18,228 33,814 52,044
1,237 190 (1,047)HVAC/Plumbing 7,157 1,140 (6,017)14,167 8,150
1,438 1,100 (338)Grounds Maintenance 6,120 6,600 480 13,220 12,700
1,789 3,010 1,221 General Repair/Maintenance (10,564)16,460 27,024 6,196 42,910
1,756 1,018 (738)Utilities 12,359 9,799 (2,560)11,437 15,523
594 625 31 Janitorial 2,743 3,050 307 5,893 6,200
4,621 4,666 45 Other Expenses 13,450 12,496 (954)22,858 21,904
17,919 19,154 (1,235)Total Operating Income 60,439 101,087 (40,648)154,932 210,061
$42,862 $42,650 $212 Net Operating Income $323,102 $286,223 $36,879 $624,814 $566,293
$38,409 ($18,479)$56,888 Excess Cash Flow ($4,632)($97,361)$92,729 $109,759 ($70,933)
Debt Service Coverage Ratio Calculation:
$42,862 $42,650 $212 NOI $323,102 $286,223 $36,879 $624,814 $566,293
Less:
(5,147)(15,647)10,500 Owner Expense (12,723)(15,647)2,924 (15,723)(20,731)
Add Back:
8 30 (22)Interest Income 110 180 (70)290 360
$37,723 $27,033 $10,690 NOI - DSR Test $310,489 $270,756 $39,733 $609,381 $545,922
$50,001 $50,001 Annual Debt Service - Series 2003A $300,006 $300,007 ($1)$375,008 $600,014
Annual Debt Service - Series 2013A $162,373
75%54%21%Debt Coverage Ratio - Series 2003A 103%90%13%102%91%
Debt Coverage Ratio - Series 2013A 140%
For the Month and YTD ended June 30, 2013
Monthly YTD
EagleBend Dowd Affordable Housing Corporation
NOI Summary and Debt Coverage Ratio
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DebtCovSumMxM
Page 4
Jan-13 Feb-13 Mar-13 Apr-13 May-13 Jun-13 Jul-13 Aug-13 Sep-13 Oct-13 Nov-13 Dec-13 Year End Annual
Actual Actual Actual Actual Actual Actual Forecast Forecast Forecast Forecast Forecast Forecast Forecast Budget
Operating Summary
Physical Occupancy % at Month End 100.0%100.0%98.0%96.0%94.0%100.0%100.0%100.0%96.0%98.0%98.0%100.0%98.3%96.5%
Economic Occupancy %78.3%74.9%80.6%75.9%76.0%73.0%78.7%78.8%75.9%78.5%82.3%84.5%78.1%77.9%
Operating Income
Monthly Rent $61,676 $59,028 $63,472 $59,825 $59,898 $57,518 $62,018 $62,088 $59,794 $61,844 $64,799 $66,572 $738,532 $736,754
Other Income 4,935 1,900 3,853 3,036 5,137 3,263 2,520 2,550 3,315 3,875 3,580 3,250 41,214 39,600
Total Operating Income 66,611 60,928 67,325 62,861 65,035 60,781 64,538 64,638 63,109 65,719 68,379 69,822 779,746 776,354
Operating Expense
Administrative 3,698 3,572 3,641 3,547 3,177 3,755 3,982 4,073 4,872 4,082 4,160 4,788 47,347 50,630
Labor 1,085 1,164 702 (228)2,342 2,729 4,120 4,072 4,072 4,072 5,612 4,072 33,814 52,044
HVAC/Plumbing 1,902 1,173 1,822 1,023 1,237 190 190 190 4,070 2,180 190 14,167 8,150
Grounds Maintenance 383 1,234 1,867 892 306 1,438 1,100 1,100 1,100 1,600 1,100 1,100 13,220 12,700
General Repair/Maintenance 3,355 3,760 2,284 2,407 (24,159)1,789 3,010 3,010 3,310 2,610 2,410 2,410 6,196 42,910
Utilities 3,230 2,033 2,206 2,707 427 1,756 (42)(572)158 (777)(527)838 11,437 15,523
Janitorial 475 250 414 283 727 594 625 625 525 525 425 425 5,893 6,200
Other Expenses 1,569 1,569 1,569 1,569 2,553 4,621 1,566 1,566 1,566 1,570 1,570 1,570 22,858 21,904
Total Operating Expense 15,697 13,582 13,856 12,999 (13,604)17,919 14,551 14,064 15,793 17,752 16,930 15,393 154,932 210,061
Net Operating Income $50,914 $47,346 $53,469 $49,862 $78,639 $42,862 $49,987 $50,574 $47,316 $47,967 $51,449 $54,429 $624,814 $566,293
Excess Cash Flow $50,475 $40,356 $43,456 $45,119 ($222,457)$38,409 $45,258 $39,755 ($8,167)$8,318 $15,466 $13,770 $109,759 ($70,933)
Debt Service Coverage Ratio Calculation:
NOI $50,914 $47,346 $53,469 $49,862 $78,639 $42,862 $49,987 $50,574 $47,316 $47,967 $51,449 $54,429 $624,814 $566,293
Less:
Owner Expense (5,800)(1,776)(5,147)(3,000)N/A N/A N/A N/A (15,723)(20,731)
Add Back:
Interest Income 11 20 26 39 6 8 30 30 30 30 30 30 290 360
NOI - DSR Test $50,925 $47,366 $47,695 $49,901 $76,869 $37,723 $47,017 $50,604 $47,346 $47,997 $51,479 $54,459 $609,381 $545,922
Annual Debt Service - Series 2003A $50,001 $50,001 $50,001 $50,001 $50,001 $50,001 $50,001 $25,001 $375,008 $600,014
Annual Debt Service - Series 2013A $18,041 $36,083 $36,083 $36,083 $36,083 $162,373
Debt Coverage Ratio - Series 2003A 102%95%95%100%154%75%94%101%102%91%
Debt Coverage Ratio- Series 2013A 140%131%133%143%151%140%
Fiscal 2013 Forecast
MEMORANDUM
To: Virginia Egger – Town Manager
Scott Wright, Assistant Town Manager – Finance
Eric Heil – Town Attorney
Town Council
Town of Avon, Colorado
From: Calvin T. Hanson
Date: August 7, 2013
Re: Refinancing of Kayak Crossing Project
As you are aware, in 1998, EagleBend Dowd Affordable Housing Corporation (the
“Corporation”) issued its Multifamily Housing Project Revenue Bonds, Series 1998 (the “1998
Bonds”) in order to finance the multifamily rental project known as Kayak Crossing (the
“Project”). The 1998A Bonds were refunded in October of 2003 when the Corporation issued its
Multifamily Housing Project Refunding Revenue Bonds, Series 2003A in the aggregate principal
amount of $9,520,000 (the “2003A Bonds”). The 2003A Bonds were purchased by U.S Bank
National Association (“U.S. Bank”) with a stated maturity of December 1, 2018 at which time
the balance of the 2003A Bonds were expected to be refinanced. The 1998 Bonds were issued
pursuant to a Trust Indenture dated as of July 1, 1998 (the “1998 Indenture”). The 2003A Bonds
were issued pursuant to an Amended and Restated Trust Indenture dated as of October 1, 2003
(the “2003 Indenture”). Each series of bonds were approved by the Town for purposes of
qualifying the Bonds as tax-exempt obligations.
Due to lower interest rates the Corporation, with U.S. Bank’s consent, desires to
refinance the Project by the issuing its Multifamily Housing Project Refunding Revenue Bonds,
Series 2013A (the “2013A Bonds”) in the aggregate principal amount of $8,450,000. The
proceeds of the 2013A Bonds will be used to refund the 2003A Bonds. The 2003 Indenture and
the Project Agreement dated as of July 1, 1998 between the Town and the Corporation require
the Town’s prior consent to the refunding.
The 2013A Bonds will be sold to FirstBank. The 2013A Bonds will bear interest at a rate
of 3.10% per annum for a term ending August 1, 2016 at which time the Project is expected to be
refinanced. The interest rate on the 2003A Bonds is 4. 9% per annum. Average annual savings
are represented to be $185,000 over the three year life of the transaction. As part of the
transaction, the Corporation will enter into a Second Amended and Restated Trust Indenture
dated as of August 1, 2013 (the “2013 Indenture”) between the Corporation and UMB Bank as
trustee. In connection with the refunding U.S Bank National Association will release certain
Virginia Egger – Town Manager
Scott Wright, Assistant Town Manager – Finance
Eric Heil – Town Attorney
Town Council
Town of Avon, Colorado
August 7, 2013
Page 2
reserves which will be used by the Corporation to reduce the principal amount of the 2013A
Bonds.
Subsequent to the issuance of the 2013A Bonds, subordinate Series 1998B Bonds and
Series 1998C Bonds (the “Subordinate Bonds”) will remain outstanding under the original 1998
Indenture in the respective principal amounts of $600,000 and $1,000,000. Bond counsel,
Brownstein Hyatt Farber Schreck, LLP, will deliver its opinion that the requirements of the 2003
Indenture have been satisfied and that the refunding of the 2003A Bonds will not impair the tax
exempt status of the outstanding Bonds.
016794\0001\10573550.5
CERTIFIED RECORD OF PROCEEDINGS
OF THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO
APPROVING THE ISSUANCE BY
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION OF ITS
MULTIFAMILY HOUSING PROJECT REFUNDING REVENUE BONDS,
SERIES 2013A
016794\0001\10573550.5
STATE OF COLORADO )
)
COUNTY OF EAGLE ) ss.
)
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in regular session at the
Town Hall in Avon, Colorado, on Tuesday, the 13th day of August, 2013, at the hour of 5:30
p.m.
The Mayor and the following members of the Council were present:
Mayor ____________
Councilor ____________
Councilor ____________
Councilor ____________
Councilor ____________
Councilor ____________
Councilor ____________
The following members were absent:
Not Applicable
The following persons were also present:
Thereupon, ____________________ introduced the Resolution and Councilor
__________ moved the adoption of the following Resolution, which was read by title, copies
thereof having been made available to the Council and the public prior thereto:
1
016794\0001\10573550.5
TOWN OF AVON, COLORADO
RESOLUTION NO. 13-22
SERIES OF 2013A
RESOLUTION APPROVING THE ISSUANCE BY
EAGLEBEND DOWD AFFORDABLE HOUSING
CORPORATION OF MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BONDS, SERIES 2013A, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$8,450,000; APPROVING THE FORM OF A SECOND
AMENDED AND RESTATED TRUST INDENTURE; AND A
SUPPLEMENTAL INDEMNIFICATION AGREEMENT AND
AUTHORIZING INCIDENTAL ACTION.
WHEREAS, Eaglebend Dowd Affordable Housing Corporation (the
“Corporation”) has been duly organized under the provisions of Colorado law governing
nonprofit corporations, for the purpose of acquiring interests in real property and to construct,
install and operate certain improvements in or near the Town of Avon (the “Town”); and
WHEREAS, the Corporation has previously entered into a Trust Indenture dated
as of July 1, 1998 (the “1998 Indenture”) and has issued its Multifamily Housing Project
Revenue Bonds, Series 1998A in an original aggregate principal amount of $9,000,000 (the
“Series 1998A Bonds”), its Multifamily Housing Project Subordinate Revenue Bonds, Series
1998B in an original aggregate principal amount of $600,000 (the “Subordinate Series 1998B
Bonds”), and its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998C in an
original aggregate principal amount of $1,000,000 (the “Subordinate Series 1998C Bonds” and,
together with the Series 1998A Bonds and the Subordinate Series 1998B Bonds, the “Series
1998 Bonds”) to acquire and construct real and personal property, buildings and improvements,
to provide dwelling accommodations at rentals within the means of individuals or families of low
or moderate income (the “Project”), known as “Kayak Crossing” on a site of approximately
4.73 acres in unincorporated Eagle County, Colorado, near the Town; and
WHEREAS, the Town and the Corporation have previously executed and
delivered a Project Agreement dated as of July 1, 1998 (the “Project Agreement”), under the
terms of which the Corporation agrees to operate the Project for the benefit of among others
“Qualified Renters” as defined in the 1998 Indenture until all obligations and Bonds issued under
the 1998 Indenture are retired; and
WHEREAS, the Project Agreement provides that title to the Project shall vest in
the Town at such time as all obligations under the 1998 Indenture (including the Bonds as
defined therein) are discharged; and
WHEREAS, the Corporation issued its Multifamily Housing Project Refunding
Revenue Bonds, Series 2003A in the original aggregate principal amount of $9,520,000 (the
2
016794\0001\10573550.5
“Series 2003A Bonds”) pursuant to an Amended and Restated Trust Indenture dated as of
October 1, 2003 (the “2003 Indenture”) with U.S. Bank National Association, as trustee, and
the used the proceeds of the Series 2003A Bonds to refund, redeem and defease the outstanding
Series 1998A Bonds; and
WHEREAS, the Corporation now desires to refund the Series 2003A Bonds and,
in order to provide funds therefor, the Corporation intends to amend and restate the 2003
Indenture by entering into a Second Amended and Restated Trust Indenture dated as of August 1,
2013 (the “2013 Indenture”) with UMB Bank, n.a., as Trustee (the “2013 Trustee”), and
intends to issue pursuant to such 2013 Indenture its Multifamily Housing Project Refunding
Revenue Bonds, Series 2013A, in an aggregate principal amount not to exceed $8,450,000 (the
“Series 2013A Bonds”); and
WHEREAS, the Series 2003 Indenture requires the consent of the Town to the
refunding of the Series 2003A Bonds; and
WHEREAS, it is desirable to provide for indemnification of the Town by the
Corporation pursuant to a Supplemental Indemnification Agreement dated as of August 1, 2013
(the “Supplemental Indemnification Agreement”); and
WHEREAS, the proposed forms of the (i) 2013 Indenture (including the form of
the Series 2013A Bonds contained therein), and (ii) Supplemental Indemnification Agreement
have been presented before the Town Council (the “Council”) at this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, AS FOLLOWS:
1. Issuance of the Series 2013A Bonds. The Series 2013A Bonds and the
issuance thereof by the Corporation for the purpose of refunding the Series 2003A Bonds are, in
all respects, hereby approved. The Series 2013A Bonds shall be issued solely as fully registered
bonds without coupons in the denominations as provided in the 2013 Indenture. The Series
2013A Bonds shall bear interest payable at the rates and times and will mature in the amounts
and on the dates set forth in the 2013 Indenture, as finally executed.
The Series 2013A Bonds shall be issued and secured as set forth in the 2013
Indenture, and the forms, terms and provisions of the Series 2013A Bonds and the provisions for
their execution, authentication, payment, registration, transfer, exchange, redemption and
number shall be as set forth in the 2013 Indenture. The 2013A Bonds shall: (a) not exceed the
aggregate principal amount of $8,450,000, (b) mature no later than September 1, 2016, (c) bear
interest at a rate not to exceed 3.10% per annum, and (d) be purchased by FirstBank.
The Town hereby designates the Series 2013A Bonds as “qualified tax-exempt
obligations” pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986, as amended,
and represents that the reasonably anticipated amount of tax-exempt obligations (other than
private activity bonds) which will be issued by the Town during the calendar year 2013,
including obligations issued by subordinate entities of the Town and by entities issuing
obligations on behalf of the Town, does not exceed $10,000,000.
3
016794\0001\10573550.5
2. Approval of 2013 Indenture and Supplemental Indemnification
Agreement. The forms, terms and provisions of the 2013 Indenture and the Supplemental
Indemnification Agreement be and they are hereby approved in the form of each such document
presented to the Council at this meeting with only such changes therein as are not inconsistent
herewith.
3. Town Action. The Mayor of the Town, or the Mayor pro tem in his
absence, and the Town Clerk are hereby authorized and directed to take all action necessary or
reasonably required to carry out, give effect to and consummate the transactions contemplated
hereby.
4. No Indebtedness of the Town. No provision of this Resolution or of the
Project Agreement, the 2013 Indenture, the Series 2013A Bonds or any other instrument
executed in connection therewith, shall be construed as creating an obligation on the part
of the Town to pay the principal of, premium, if any, or interest on the Series 2013A Bonds,
nor as creating an indebtedness or financial obligation on the part of the Town within the
provisions or limitations of any statutory or constitutional provision of the laws of the State
of Colorado or any provision of the home rule charter of the Town.
5. Title to Project. In accordance with Revenue Procedure 63-20 of the
Internal Revenue Service and its implementation regulations, as such may be amended, the Town
hereby determines that it will accept title to the Project, including any additions thereto, when all
the obligations issued under the Indenture (including the 2013A Bonds) are fully paid and
discharged.
6. Severability. If any provision of this Resolution should be held invalid,
the invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provisions hereof are severable.
7. Other Actions. The appropriate officers of the Town are hereby
authorized to execute and deliver for and on behalf of the Town, any or all additional certificates,
documents and other papers and to perform all other acts they may deem necessary or
appropriate in order to implement and carry out the matters authorized in this Resolution and in
any resolution of the Corporation.
8. Effective Date Repealer. This Resolution shall take effect immediately
upon its passage, and all acts, orders, resolutions, or parts thereof taken by the Town in conflict
with this Resolution are hereby repealed or modified to the extent of such conflict.
4
016794\0001\10573550.5
ADOPTED AND APPROVED this 13th day of August, 2013.
[SEAL] TOWN OF AVON, COLORADO
By:
Mayor
Attest:
________________________
Town Clerk
5
016794\0001\10573550.5
The motion to adopt the foregoing Resolution was duly seconded by Council
Member _________________, put to a vote and carried upon the following vote:
Those voting YES:
Those voting NO:
Those absent:
Thereupon the Mayor declared the motion had carried and the Resolution duly
passed and adopted. After consideration of other business to come before the Council, the
meeting was adjourned.
[SEAL]
Mayor
Attest:
__________________________
Town Clerk
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
to
UMB BANK N.A.,
as Trustee
SECOND AMENDED AND RESTATED TRUST INDENTURE
Dated as of August 1, 2013
Securing
EagleBend Dowd Affordable Housing Corporation
Multifamily Housing Project Refunding Revenue Bonds
Table of Contents
Page
ARTICLE I DEFINITIONS AND REPRESENTATIONS OF THE
CORPORATION............................................................................................. 4
Section1.01. Definitions ............................................................................................ 4
Section 1.02. Representations of the Corporation ................................................... 13
ARTICLE II THE BONDS ................................................................................................. 14
Section 2.01.Amounts and Terms -Series 2013A Bonds and Other Series ...........14
Section 2.02.Interest Accrual ..................................................................................15
Section 2.03.Bond Registrar and Bond Register ....................................................15
Section 2.04.Registration, Transfer and Exchange .................................................16
Section2.05.Execution ...........................................................................................17
Section 2.06.Authentication ....................................................................................17
Section 2.07.Payment of Principal and Interest; Interest Rights Preserved............18
Section 2.08.Persons Deemed Owners ...................................................................18
Section 2.09.Mutilated, Destroyed, Lost or Stolen Bonds ......................................18
Section 2.10.Temporary Bonds ...............................................................................19
Section 2.11.Cancellation and Destruction of Surrendered Bonds .........................19
ARTICLE III ISSUE OF BONDS ........................................................................................ 19
Section 3.01. Issue of Bonds .................................................................................... 19
Section 3.02. Issue of Additional Bonds .................................................................. 19
Section 3.03. Disposition of Proceeds of Bonds Other Deposits ............................. 21
Section 3.04. Subordinate Obligations Permitted .................................................... 21
Section 3.05. Superior Bonds Prohibited ................................................................. 21
ARTICLE IV PLEDGE OF TRUST ESTATE; REVENUES AND FUNDS ...................... 22
Section 4.01.Pledge of Trust Estate ........................................................................22
Section 4.02.Establishment of Funds ......................................................................22
Section4.03.Bond Fund ..........................................................................................22
Section 4.04.Excess Investment Earnings Fund .....................................................24
Section 4.05.Property Insurance and Award Fund .................................................25
Section 4.06.Revenue Fund, Surplus Account ........................................................28
Section 4.07.Purchase of Bonds ..............................................................................29
ARTICLE V COVENANTS AND AGREEMENTS OF THE CORPORATION ............. 30
Section 5.01. Performance of Covenants ................................................................. 30
Section 5.02. Corporate Existence; Compliance with Laws .................................... 30
Section 5.03. Further Assurances ............................................................................. 30
Section 5.04. Payment of Principal, Interest and Premium; Other Required
Payments............................................................................................ 30
Section 5.05. Conditions Precedent ......................................................................... 31
i
Table of Contents
(continued)
Page
Section 5.06.Financing Statements .........................................................................31
Section 5.07.Construction, Equipping and Operation of the Project ......................32
Section 5.08.Taxes and Other Governmental Charges and Utility Charges...........33
Section 5.09.Maintenance and Management of the Project ....................................33
Section5.10.Liens ...................................................................................................33
Section 5.11.No Liability of Corporation's Officers, Etc .......................................34
Section 5.12.Removal of Project Equipment ..........................................................34
Section 5.13.Installation of the Corporation's Equipment ......................................35
Section 5.14.Tax Covenants ...................................................................................35
Section 5.15.Additional Projects .............................................................................36
Section 5.16.Change of Ownership ........................................................................36
Section 5.17.Environmental Matters .......................................................................36
Section5.18.Insurance ............................................................................................38
ARTICLE VI DAMAGE, DESTRUCTION AND NO CONDEMNATION ......................39
Section 6.01. Corporation to Repair, Replace, Rebuild or Restore .........................39
Section 6.02. Cooperation of the Trustee .................................................................40
ARTICLE VII CORPORATION'S OPTIONS ......................................................................40
Section 7.01. Easements and Release of Real Property ...........................................40
Section 7.02. Prepayment of Payments ....................................................................41
Section 7.03. Satisfaction of Payments ....................................................................41
Section 7.04. Termination Upon Retirement of Bonds ............................................41
ARTICLE VIII SECURITY FOR AND INVESTMENT OR DEPOSIT OF FUNDS...........41
Section 8.01. Deposits and Security Therefor .........................................................41
Section 8.02. Investment or Deposit of Funds .........................................................42
ARTICLE IX REDEMPTION OF BONDS .........................................................................43
Section 9.01. Bonds Subject to Redemption; Selection of Bonds to be Called
forRedemption .................................................................................. 43
Section 9.02. Notice of Redemption ........................................................................ 43
Section 9.03. Payment of Redemption Price ........................................................... 44
Section 9.04. Bonds Redeemed in Part .................................................................... 44
Section 9.05. Bond Redemption Fund for Refunding Issues ................................... 44
ARTICLE X EVENTS OF DEFAULT AND REMEDIES ................................................ 45
Section 10.01. Events of Default Defined ................................................................. 45
Section 10.02. Acceleration and Annulment Thereof ................................................ 46
Section 10.03. Legal Proceeding by Trustee ............................................................. 47
Section 10.04. Discontinuance of Proceedings by Trustee ........................................ 48
Section 10.05. Bondholders May Direct Proceedings ............................................... 48
016794\0001\10596924.3 11
Table of Contents
(continued)
Page
Section 10.06.Limitations on Actions by Bondholders ............................................48
Section 10.07.Trustee May Enforce Rights Without Possession of Bonds ..............49
Section 10.08.Delays and Omissions Not to Impair Rights ......................................49
Section 10.09.Application of Moneys in Event of Default .......................................49
Section 10.10.Trustee and Bondholders Entitled to All Remedies; Remedies
NotExclusive .....................................................................................51
Section 10.11.Trustee's Right to Receiver ...............................................................52
Section 10.12.Bankruptcy Proceedings ....................................................................52
Section10.13.Indemnity ...........................................................................................52
Section 10.14.Certain Additional Provisions With Respect to Bondholder
Remedies, Receipt of Notice and Other Matters ...............................53
ARTICLE XI THE TRUSTEE ............................................................................................. 53
Section 11.01.Acceptance of Trust ...........................................................................53
Section 11.02.No Responsibility for Recitals, etc ....................................................53
Section 11.03.Trustee May Act Through Agents; Answerable Only for
Willful Misconduct or Negligence .....................................................53
Section 11.04.Compensation and Indemnity ............................................................54
Section 11.05.Notice of Default; Right to Investigate ..............................................54
Section 11.06.Obligation to Act on Defaults ............................................................54
Section 11.07.Provision of Monthly Fund Statements .............................................54
Section 11.08.Reliance on Requisition, Counsel, etc ...............................................54
Section 11.09.Trustee May Own Bonds ...................................................................54
Section 11.10.Construction of Ambiguous Provisions .............................................55
Section 11.11.Resignation of Trustee .......................................................................55
Section 11.12.Removal of Trustee ............................................................................55
Section 11.13.Appointment of Successor Trustee ....................................................55
Section 11.14.Qualification of Successor .................................................................55
Section 11.15.Instruments of Succession ..................................................................55
Section 11.16.Merger of Trustee ..............................................................................56
Section 11.17.Appointment of Co-Trustee ...............................................................56
Section 11.18.Intervention by Trustee ......................................................................56
ARTICLE XII ACTS OF BONDHOLDERS: EVIDENCE OF OWNERSHIP OF
BONDS.......................................................................................................... 57
Section 12.01. Acts of Bondholders; Evidence of Ownership ................................... 57
ARTICLE XIII AMENDMENTS AND SUPPLEMENTS ..................................................... 57
Section 13.01, Amendments and Supplements Without Bondholders' Consent....... 57
Section 13.02. Amendments With Bondholders' Consent ........................................ 58
Section 13.03. Amendment of Project Agreement .................................................... 58
016794\0001\10596924.3 111
Table of Contents
(continued)
Page
Section 13.04. Trustee Authorized to Join in Amendments and Supplements;
Relianceon Counsel .......................................................................... 58
ARTICLE XIV DEFEASANCE .............................................................................................. 58
Section 14.01. Defeasance ......................................................................................... 58
Section 14.02. Town's Rights .................................................................................... 59
ARTICLE XV MISCELLANEOUS PROVISIONS ..............................................................60
Section 15.01.No Personal Recourse ........................................................................60
Section 15.02.Deposit of Funds for Payment of Bonds ............................................61
Section 15.03.Relationship of 1998 Indenture, 2003 Indenture and 2013
Indenture............................................................................................61
Section 15.04.No Rights Conferred on Others .........................................................61
Section 15.05.I11ega1, etc. Provisions Disregarded ...................................................61
Section 15.06.Notices to Trustee, Corporation and Town ........................................62
Section 15.07.Successors and Assigns ......................................................................62
Section 15.08.Headings for Convenience Only ........................................................62
Section 15.09.Counterparts .......................................................................................62
Section 15.10.Information Under Commercial Code ...............................................62
Section 15.11.Payments Due On Saturdays, Sundays and Holidays ........................62
Section 15.12.Applicable Law ..................................................................................63
016794\0001\10596924.3 1V
SECOND AMENDED AND RESTATED TRUST INDENTURE dated as of August
1, 2013, between EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION (the
"Corporation"), a nonprofit corporation organized under the laws of the State of Colorado, and
UMB BANK, N.A., as Trustee (the "Trustee"), a national banking association.
RECITALS:
A. The Corporation has been duly organized pursuant to the provisions of the
Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes,
as amended (the "Act"), and is authorized to acquire interests in real property in furtherance of
the interests of the Town of Avon, Colorado (the "Town") and its inhabitants; and
B. The Corporation is authorized to borrow money and issue bonds and other
obligations, and to secure such obligations by mortgage or pledge of all or any part of its
property interests and income; and
C. The Corporation has previously acquired and constructed real and
personal property, buildings and improvements in close proximity to the Town, including all
other work in connection therewith, to provide 50 dwelling accommodations at rentals within the
means of individuals or families of low or moderate income (the "Project"), as determined by
the Board of Directors of the Corporation (the "Board"); and
D. To provide the funds needed to acquire and construct the Project, on July
14, 1998, the Corporation issued $9,000,000 aggregate principal amount of its Multifamily
Housing Project Revenue Bonds, Series 1998A (the "Series 1998A Bonds"), and, on a basis
subordinate thereto, $600,000 aggregate principal amount of its Multifamily Housing Project
Subordinate Revenue Bonds, Series 1998B (the "Series 1998B Subordinate Bonds"), and, on a
basis subordinate thereto, $1,000,000 aggregate principal amount of its Multifamily Housing
Project Subordinate Revenue Bonds, Series 1998C (the "Series 1998C Subordinate Bonds")
(the Series 1998A Bonds, the Series 1998B Subordinate Bonds, and the Series 1998C
Subordinate Bonds are sometimes collectively referred to herein as the "Series 1998A-C
Bonds"), such Bonds issued pursuant to a Trust Indenture dated as of July 1, 1998 (the "1998
Indenture") between the Corporation and U.S. Bank National Association, as prior trustee (the
"Prior Trustee"); and
E. The Corporation amended and restated the 1998 Indenture according to
the terms of an Amended and Restated Trust Indenture dated as of October 1, 2003 (the "2003
Indenture") by and between the Corporation and the Prior Trustee; and
F. The Corporation issued its Multifamily Housing Project Refunding
Revenue Bonds, Series 2003A (the "Series 2003A Bonds") in the original aggregate principal
amount of $9,520,000, currently outstanding in the aggregate principal amount of $8,235,000,
pursuant to the 2003 Indenture and used the proceeds of the Series 2003A Bonds to refund,
redeem and defease the Series 1998A Bonds on an advance refunding basis; and
G. This Second Amended and Restated Trust Indenture ("2013 Indenture")
constitutes a "Supplemental Indenture" for purposes of Section 13.01 of the 2003 Indenture and
the Corporation desires to amend and restate the 2003 Indenture according to the terms of this
Second Amended and Restated Trust Indenture. The 1998 Indenture, the 2003 Indenture, as
amended and restated by this Second Amended and Restated Trust Indenture, is referred to
herein as the "Indenture"); and
H. The Corporation desires to appoint the Trustee as successor to the Prior
Trustee, and the Trustee has accepted such appointment; and
I. The Corporation desires to provide for the refinancing of the Project and
refunding of the Series 2003 A Bonds and, in order to provide the funds therefore, the
Corporation has duly authorized the issuance and sale of $8,450,000 aggregate principal amount
of its Multifamily Housing Project Refunding Revenue Bonds, Series 2013A (the "Series 2013A
Bonds" and together with the Series 1998B Subordinate Bonds, the Series 1998C Subordinate
Bonds and any Additional Bonds issued pursuant to this Indenture, the "Bonds "); and
J. It is anticipated that proceeds of the Series 2013A Bonds will be applied to
the refiinding of the Series 2003A Bonds; and
K. In connection with the issuance of the Series 1998 Bonds, the Corporation
has previously entered into a Project Agreement (the "Project Agreement") dated as of July 1,
1998 with the Town; and
L. The Bonds to be issued hereunder are issued solely on behalf of the Town,
and pursuant to the Project Agreement, the Corporation has provided that upon discharge of the
Bonds, unencumbered fee title to the Project will vest solely in the Town; and
M. The Board has determined that the Project is located within eight miles of
and has a substantial connection with, the Town and will provide safe and sanitary dwelling
accommodations at rentals within the means of individuals or families of low or moderate
income; and
N. The forms of the Series 1998$ Subordinate Bonds and the Series 1998C
Subordinate Bonds shall be as set forth in the 1998 Indenture; and
O. The Series 2013A Bonds are to be in substantially the form set forth in
Exhibit C hereto (with such alterations and variations in the arrangement of paragraphs and the
text to be contained on the face and reverse of each Bond, as may be necessary to comply with
industry standards or requirements for preparation of definitive Bonds):
P. The Corporation has executed and delivered its Deeds of Trust (as defined
herein) to the Public Trustee for Eagle County, Colorado for the benefit of the Trustee as security
for the Bonds.
Q. The execution and delivery of the Bonds and of this Indenture have been
authorized by the Board of i?irectors of the Corporation and all things necessary to make the
Bonds, when executed by the Corporation and authenticated by the Trustee, valid and binding
obligations of the Corporation and to make this Indenture and the Deeds of Trust valid and
binding obligations of the Corporation have been done.
016794\0001\10596924.3 2
R. In connection with the issuance of the Series 2013A Bonds, the
Corporation has executed and delivered notice to the Trustee to call the Series 2003A Bonds for
redemption on August 14, 2013, and the holder of the Series 2003A Bonds have consented to
such redemption at a redemption price equal to 100%.
S. In connection with its purchase of the Series 2013A Bonds, FirstBank, a
Colorado state banking corporation, as the initial purchaser of the Series 2013A Bonds, is
entering into a Supplemental Agreement dated August 14, 2013 (the "Bank Supplemental
Agreement") with the Corporation.
T. In connection with the amendment and restatement of the 2003 Indenture,
certain funds held thereunder (in particular, the Debt Service Reserve Fund, the Construction
Fund, the Operating Fund and the Replacement Reserve Fund, and all accounts therein) are being
released to the Corporation to be applied to any lawful purposes including, in some cases, costs
related to the issuance of the Series 2013A Bonds and refunding of the Series 2003A Bonds.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, the Corporation and the
Trustee have executed this Second Amended and Restated Trust Indenture to amend and restate
the 2003 Indenture, subject to Section 15.03 hereof, and in furtherance thereof, to provide for the
payment of principal or redemption price (as the case may be) in respect of all Bonds issued and
outstanding under this Indenture, together with premium, if any, and interest thereon, the rights
of the Bondholders and the performance of the covenants contained in said Bonds and herein, the
Corporation does hereby sell, assign, transfer, set over and pledge unto, grant and confirm a
security interest in, UMB BANK, N.A., Trustee, its successors in trust and its assigns forever, all
and singular the following described property, franchises and income (collectively, the "Trust
Estate"):
Granting Clause First. All Funds and accounts created under this Indenture except the
Excess Investment Earnings Fund; provided that the Series A Bond Account of the Bond Fund
shall be available for the payment only of the Series 2013A Bonds and Additional Bonds secured
on a parity therewith; and provided that the funds held in such Funds and accounts are to be used
only for the purposes and in accordance with the instructions and provisions set forth in this
Indenture.
Granting Clause Second. All right, title and interest of the Corporation in the Net
Revenues, as hereinafter defined.
Granting Clause Third. Any and all other interests in real and personal property of
every name and nature granted to the Trustee within the Deeds of Trust and from time to time
hereafter by delivery or by writing of any kind specifically mortgaged, pledged or hypothecated
as and for additional security hereunder by the Corporation or by anyone in its behalf or with its
written consent in favor of the Trustee, which is hereby authorized to receive any and all such
property at any and all times and to hold and apply the same subject to the terms hereof.
Granting Clause Fourth. All right, title and interest of the Corporation in the Project
Agreement and the other Project Documents as defined herein.
016794\0001 \ 10596924.3
TO HAVE AND Tq HOLD in trust, nevertheless, for the equal and ratable benefit and
security of all present and future owners of the Bonds issued and to be issued under this
Indenture, without preference, priority or distinction as to lien and in payment or otherwise
(except that the Series 1998B Subordinate Bonds and any Additional Bonds secured on a parity
therewith shall in all respects be junior and subordinate to the Series 2013A Bonds and any
Additional Bonds secured on a parity therewith, and the Series 1998C Subordinate Bonds and
any Additional Bonds secured on a parity therewith shall in all respects be junior and subordinate
to the Series 2013A Bonds, the Series 1998B Subordinate Bonds, and any Additional Bonds
secured on a parity therewith and except as otherwise expressly provided herein), of any one
Bond over any other Bond upon the terms and subject to the conditions hereinafter set forth.
ARTICLE I
DEFINITIONS AND REPRESENTATIONS OF THE CORPORATION
Section 1.01. Definitions. In this Indenture and any indenture supplemental hereto
(except as otherwise expressly provided or unless the context otherwise requires) the singular
includes the plural, the masculine includes the feminine, and the following terms shall have the
meanings specified in the foregoing recitals and in this Article, unless the context otherwise
requires:
"Accountant" means an independent certified public accountant or firm of such
accountants duly licensed to practice and practicing as such under the laws of any state of the
United States or of the District of Columbia.
"Affiliate" means any Person controlling, controlled by, or under common control with,
the Corporation or having a majority of the members of its governing body in common with the
governing body of the Corporation. One Person shall be deemed to control another if it owns
more than 50% of the outstanding voting stock of or other equity interests in the other, or it has
the power to elect more than 50% of the governing body of the other; and such control may be
exercised by one Person over another directly, indirectly through control over a third party, or
jointly with one or more controlled third parties.
"Additional Bonds" means Additional Bonds issued and secured under this Indenture as
provided in Section 3.02 hereof. Additional Bonds does not include Indebtedness owing to the
Town or the owners) of Subordinate Bonds resulting from the exercise by the Town or the
owners) of Subordinate Bonds of their rights provided in Section 10.02 hereof.
"Approved Depository" shall mean FirstBank and its successors appointed by the
Trustee.
"Beneficial Owner" means any person who, through any contract, arrangement or
otherwise, has or shares investment power with respect to any of the Bonds, which includes the
power to dispose, or direct the disposition, of any of the Bonds, and who has filed his or her
name and address with the Trustee for purposes of receiving certain notices hereunder,
016794\0001\105969243 4
"Bondholder" or "holder of Bonds" or "owner of Bonds" means the registered owner
of any Bond and, with respect to the Series 2013A Bonds, the Purchaser or any Beneficial
Owner.
"Bondholder Representative" means the person or persons who are designated by a
Majority Interest of the Series 2013A Bonds to act on behalf of the Bondholders as provided in
Section 4.02 of this Indenture. FirstBanlc, a Colorado state banking corporation, shall be the
initial Bondholder Representative.
"Bond Counsel" means counsel of national recognition in the field of tax-exempt
obligations and public finance reasonably acceptable to the Corporation.
"Bond Fund" means the trust account of that name created pursuant to Section 4.02
hereof,
"Bond Register" and "Bond Registrar," in respect of a particular series Bonds, have the
respective meanings specified in Section 2.03 hereof.
"Bond Year" means the period commencing the day after the principal payment date of
each calendar year and ending on the principal payment date during the next calendar year,
provided that the first such Bond Year as to any series shall commence on the date of the
issuance of the Bonds of such series.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions in (i) the State, or (ii) the State of New York are authorized or
required by law to close or (b) a day on which the New York Stock Exchange is closed.
"Calculation Date" means the first day of each Bond Year and the date of the final
payment of the Tax-Exempt Bonds.
"Closing Date" means the date on which there is an exchange of the Bonds for the
proceeds representing the purchase price of the Bonds.
"Code" means the Internal Revenue Code of 1986, or its successor provisions as
amended at the time in question and the regulations promulgated thereunder.
"Corporation Representative" means the president of the Corporation or other person
designated to act on behalf of the Corporation, as evidenced by a written certificate furnished to
the Trustee containing the specimen signature of such person and signed for the Corporation by
any two of its officers.
"Debt Service" as to a series of Bonds means the scheduled amount of interest and
amortization of principal payable on Outstanding Bonds of 'such series during the period of
computation, including any mandatory sinking fund redemption.
"Debt Service Coverage Ratio" means the ratio of Net Operating Income to annual Debt
Service for the 2013A Bonds.
016794\0001\10596924.3 5
"Deeds of Trust" means collectively, the First Deed of Trust, the Second Deed of Trust,
and the Third Deed of Trust.
"Event of Default" means any of the events described in Section 10.01 hereof.
"Excess Investment Earnings" is as defined in Section 148 of the Code.
"Excess Investment Earnings Fund" means the trust account of that name created by
Section 4.02 of this Indenture.
"First Deed of Trust" means the Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rents and Revenues dated as of October 1, 2003, as amended by
the First Amendment to and Assignment of Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rents and Revenues, dated August 14, 2013, from the Corporation
to the Public Trustee for Eagle County for the benefit of the Trustee, securing the Series 2013A
Bonds, as such First Deed of Trust may be amended or supplemented form time to time.
"Fiscal Year" means each calendar year.
"Full Insurable Value" shall mean, for purposes of Section 4.05(c)(9) hereof, the actual
replacement value exclusive of architectural permits and similar one-time costs and costs of
excavation, foundations and footings, against loss or damage by fire, commotion, vandalism,
malicious mischief, aircraft, vehicles, boiler explosion, smoke and all other risks normally
covered by such insurance,
"Funds" means the Bond Fund, the Revenue Fund, and the Excess Investment Earnings
Fund, and the accounts, if any, established therein.
"Indebtedness" means with respect to liabilities of the Corporation, (a) all liabilities for
borrowed money; (b) all direct or indirect guaranties of the debt of any other Person; (c) the
present value of all payments due under any lease or under any other arrangement for retention
of title (discounted in accordance with generally accepted accounting principles) if such lease or
other arrangement is in substance (i) a financing lease (including any lease under which the
Corporation has or will have an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair market value of such property at
the date of such purchase or the term of which approximates or exceeds the estimated useful life
of the property subject thereto), (ii) an arrangement for the retention of title for security
purposes, or (iii) an installment purchase; and (d) the unpaid amount of any obligation of the
Corporation to public authorities for deferred tap or capacity fees.
"Indenture" means the 1998 Indenture as amended and supplemented by the 2003
Indenture and the 2013 Indenture, and as such Indenture may be amended or supplemented from
time to time.
"Independent" means, with respect to any Person, one which is not and does not have a
partner, director, officer, member or substantial stockholder (each, a "Controlling Person") who
is a member of the board of the Corporation or Affiliate, or an officer or employee of the
Corporation or Affiliate. A Person which is or has a controlling Person who is an officer or
016794\0001\10596924.3 6
member of the board of the Corporation or Affiliate (but not an employee of either) may
nevertheless be deemed Independent, if notice thereof is given to the holders of the Bonds and
the Majority Interest approve such appointment.
"Independent Engineer" means an Independent engineer or architect or engineering or
architectural firm selected by the Corporation and qualified to practice the profession of
engineering or architecture under the laws of the State and who or which is not afull-time
employee of the Corporation.
"Insurance Consultant" means an Independent insurance consultant or agency selected
by the Corporation, who is licensed as such under the laws of the State and who or which is not a
full-time employee of the Corporation.
"Interest Payment Date," in respect of a particular series of Bonds, means the stated
maturity date of an installment of interest on the Bonds of such series.
"Issuance Costs" means all costs incurred in the process of issuing the Bonds including,
but not limited to, the costs and fees of the Corporation, the Town, the Purchaser, and the Trustee
and each of their counsel, Bond Counsel, title insurance fees, the recording fees, and the
Corporation's environmental audit, appraisal, survey and accountants' fees, printing costs of the
Bonds and of the offering memorandum, publication costs associated with the financing
proceedings, and costs of engineering and other studies necessary to the issuance of the Bonds.
"Majority Interest" means (i) during the period of time any Series 2013A Bonds or any
Additional Bonds secured on a parity therewith are putstanding, the Bondholders of at least 51%
in aggregate principal amount of Series 2013A Bonds and Outstanding Additional Bonds secured
on a parity therewith; and (ii) during the period of time no Series 2013A Bonds or Additional
Bonds secured on a parity therewith are Outstanding, the Bondholders of at least 51 % in
aggregate principal amount of the remaining Outstanding Bonds and the Town or certain owners
of Subordinate Bonds if the Town or such owners of Subordinate Bonds have advanced any
moneys pursuant to its rights to cure under Section 10.02 hereof.
"Management Consultant" means any Independent nationally or regionally recognized
individual or firm selected by the Cot~poration possessing significant management consulting
experience with respect to housing.
"Monthly Payments" means, solely with respect to the Series 2013A Bonds, the
monthly payments of principal and interest to be made hereunder with respect to the Series
2013A Bonds, which shall be in the amounts set forth in Section 4.03 hereof, and with respect to
other series of Bonds, monthly payments to be made from time to time by the Corporation
pursuant to the Indenture in an amount equal to the sum of (i) the quotient obtained by dividing
the amount of principal of such Bonds due and payable on the next succeeding payment date for
principal (whether at their stated maturities or by mandatory sinking fund redemption) by six,
and (ii) the quotients obtained by dividing the interest on such Bonds due and payable on the
next succeeding interest Fayment Date by six.
"Mortgaged Property" means any property upon which a lien or security interest is
granted to the Trustee pursuant to the Deeds of Trust or this Indenture.
016794\0001\10596924.3 7
"Net Loss Proceeds" means with respect to any insurance payment or condemnation
award or sale to a potentially taking governmental authority under threat of condemnation, the
amount remaining therefrom after payment of all expenses (including attorneys' fees and any
extraordinary fee or expense of the Trustee) incurred in the collection thereof.
"Net Operating Income" means, for any period, the total aggregate income generated by
the Project, including interest earned on replacement and operating reserves held in accordance
with the Bank Supplemental Agreement, reduced by operating expenses and replacement and
operating reserves held in accordance with the Bank Supplemental Agreement (minus any
amounts expended from such reserves), before interest expense, taxes, depreciation or
amortization, determined in conformity with GAAP.
"Net Revenues" means (a) Project Revenues, less (b) Operation and Maintenance
Expenses; for purposes of determining the Net Revenues to be transferred by the Corporation
each month pursuant to Section 4.06 hereof, Operation and Maintenance Expenses for such
month shall be calculated based upon the monthly budgeted amount in the Operating Budget,
plus any Operating and Maintenance Expenses then due and owing in excess of such budgeted
amount.
"Operating Budget" means the Corporation's budget for Project Revenues and
Operation and Maintenance Expenses, as adopted and revised by the Corporation for each Fiscal
Year.
"Operation and Maintenance Expenses" means such reasonable and necessary current
expenses of the Corporation, paid or accrued, for operation, maintenance and repair of the
Project as maybe determined by the Corporation, and the term may include, except as limited by
contract or otherwise limited by law, without limiting the generality of the foregoing:
(1) legal and overhead expenses of the Corporation directly related and
reasonably allocable to the administration of the Project;
(2) fidelity bond and insurance premiums appertaining to the Project or a
reasonably allocable share of a premium of any blanket bond or policy pertaining to the
Project;
(3) fees for contractual services, management and professional services,
salaries, administrative expenses, and costs of labor appertaining to the Project;
(4) the costs incurred in the collection of all or any part of the Project
Revenues;
(5) any costs of utility services furnished to the Project; and
(6) payments of taxes, payments in lieu of taxes, assessments imposed by any
governmental unit or public corporation, or any monthly deposits to an escrow
established for any such purposes.
"Operation and Maintenance Expenses" does not include:
016794\0001\105969243 g
(a) any allowance for depreciation;
(b) any costs of Froject renewals or replacements, major repairs,
reconstruction, improvements, extensions, or betterments if of the type funded with reserves held
in accordance with the Bank Supplemental Agreement;
(c) any accumulation of reserves for capital replacements;
(d) any reserves for operation, maintenance, or repair of the Project;
(e) any allowance for the redemption of the Bonds, or the payment of any
interest thereon;
(fl any liabilities incurred in the acquisition or improvement of any properties
comprising the Project or any combination thereof; and
(g) any other type of legal liability not based on contract.
"Opinion of Counsel" means a written opinion of Independent legal counsel, who may
be counsel to the Corporation or the Trustee,
"Outstanding" in connection with Bonds (or a series of Bonds) means, as of the time in
question, all Bonds (or all Bonds of such series) authenticated and delivered under the Indenture,
except:
A. Bonds for the payment or redemption of which the necessary amount
shall have been or shall concurrently be deposited with the Trustee or for which provision
for the payment of which shall have been made in accordance with Article XIV hereof
provided that, if such Bonds are being redeemed prior to maturity, the required notice of
redemption shall have been given or provisions satisfactory to the Trustee shall have been
made therefor;
B. Bonds in substitution for which other Bonds have been authenticated and
delivered pursuant to Article II hereof; and
C. For purposes of any consent or other action to be taken by the owners of a
majority or a specified percentage of Bonds hereunder, Bonds held by or for the account
of the Corporation the Corporation or any Person controlling, controlled by or under
common control with any of them.
"Owners" shall have the meaning ascribed to it in Section 2.08 hereof.
"Paying Agent" means, in respect of a particular series of Bonds, the Person or Persons
authorized by the Corporation to pay the principal of (and premium, if any, on), or interest on,
such Bonds on behalf of the Corporation.
"Payments" means the Monthly Payments and the additional payments payable by the
Corporation hereunder pursuant to Section 5.04 hereof.
016794\0001 U 0596924.3 9
"Permitted Encumbrances" means this Indenture, the Project Agreement, and the
Deeds of Trust, and as of any particular time.
(1) liens for taxes and special assessments not then delinquent, or
delinquent but being contested by the Corporation in good faith in accordance with this Indenture
and upon which execution is stayed;
(2) utility, access and other easements and rights-of-way, restrictions
and exceptions that an Independent Engineer and a Management Consultant certify in writing
will not interfere with or impair the operation of the Project (or, if it is not being operated, the
operation for which it was designed or last modified) or the Net Revenues;
(3) any mechanic's, laborer's, materialman's, supplier's, or vendor's,
lien or right in respect thereof if payment is not yet due under the contract in question, or if the
lien or right is being contested by the Corporation in good faith in accordance with this Indenture
and upon which execution is stayed;
(4) such minor defects, irregularities, encumbrances, easements,
rights-of-way and clouds on title as normally exist with respect to properties similar in character
to the Project as shown on Exhibit B to the Deeds of Trust or which do not, in the written
Opinion of Counsel or of an Independent Engineer, individually or in the aggregate, materially
interfere with or impair Net Revenues or the operation of the Project (or, if it is not being
operated, the operation for which it was designed or last modified) the properly affected by the
Indenture for the purpose for which it was acquired or is held by the Corporation;
(5) easements, restrictions and encumbrances shown by the Deeds of
Trust; and
(6) applicable building and zoning laws, ordinances and state and
federal regulations.
"Person" or "Persons" means an individual, firm, corporation, partnership, company,
association, joint stock company, trust, body politic or any other unincorporated organization or
any trustee, receiver, assignee, or other similar representative thereof.
"Plans" means the general plans and specifications for the construction or the restoration
of the Project, as applicable, as approved by the Corporation, and filed in the offices of the
Trustee, together with such modifications thereof and additions thereto as are reasonably
determined by the Corporation to be necessary or desirable for the completion or the restoration
of the Project, as the case may be, as contemplated by this Indenture, and as are approved by the
Bondholder Representative, and filed with the Trustee.
"Project" means (i) the Project Site, (ii) the Project Equipment, (iii) a 50-unit
multifamily rental housing facility located on the Project Site, and (iv) any additions or
alterations thereto which are pei~rnitted herein.
016794\0001\10596924.3 1
"Project Documents" means, for purposes of this Indenture, the Project Agreement, and
the Property Management Agreement dated as of June 1, 2004 between the Corporation and the
Project Manager, as the same maybe amended from time to time.
"Project Equipment" means those items of furniture, machinery, equipment or other
personal property acquired and installed in connection with the Project or which are acquired,
financed or re-financed in whole or in part with proceeds from the sale of the Bonds and any
item of machinery, furniture, equipment or other personal property acquired and installed in
substitution or replacement for any of the foregoing, less such furniture, machinery, equipment
or other personal property as may be released from this Indenture pursuant to this Indenture or
taken by exercise of the power of eminent domain as provided in this Indenture, as such items
may at any time exist, but not including any items of furniture, machinery, equipment or other
personal property hereafter acquired and installed by the Corporation under the provisions of
Section 5.13 of this Indenture,
"Project Manager" means Polar Star Properties, LLC, a Colorado limited liability
company, and its successors appointed by the Corporation; provided that the Corporation may
appoint more than one Person to serve as Project Manager at any one time.
"Project Revenues" means (a) all revenues, income, receipts and money actually
received in any period (other than proceeds of borrowing and interest earned thereon if and to the
extent such interest is required to be excluded by the terms of the borrowing), if any, from rates,
fees, tolls, rentals and charges or any combination thereof for the services or privileges furnished
by, with or from the use of the Project; (b) Net Loss Proceeds; (c) all rights (including proceeds)
from accounts, general intangibles, contract rights and instruments (all as defined in Article 9 of
the Colorado Uniform Commercial Code), choses in action, goodwill, leases, licenses, software
programs, accounting and bool~lceeping records related to the Project; and (d) all income or other
gain, if any, from any investment of Net Revenues and from balances in the Funds and Accounts
established under this Indenture; provided that Project Revenues shall not include any security
deposits required to be held for the benefit of any Project tenants until such time as such amounts
may be lawfully applied by the Corporation to the payment of costs in connection with the
Project.
"Project Site" means the real estate, located in Eagle County, Colorado and more
particularly described in Exhibit A attached hereto.
"Property Insurance and Award Fund" means the trust account of that name created
pursuant to Section 4.02 of this Indenture.
"Purchaser" means FirstBanlc, the initial purchaser of the Series 2013A Bonds, or its
successors and assigns.
"Qualified Renter" means a natural person or persons meeting certain qualifications
established by the Corporation from time to time, needing to occupy dwelling accommodations
in the Project at such rentals within such persons' financial reach that enable such persons to live
in safe and sanitary or uncongested dwelling accommodations and otherwise consistent with the
public purposes of the Housing Authorities Law, CRS §§ 29-4-201 et seq., executing a rental
016794\0001\10596924.3 1 1
agreement with the Corporation obligating such natural person or persons to occupy a dwelling
accommodation included in the Project as their sole place of residence and under which such
natural person or persons represent that he or she shall not sublease all or any part of such
dwelling accommodation or engage in any other business activity on or in such dwelling
accommodation provided that by resolution of the Corporation, units in the Project may be
rented to other than natural persons, including employers in the vicinity of the Town, under such
terms and conditions as are substantially equivalent to those in leases to natural persons who are
members of the general public, in which the corporate or other entity covenants to sublet such
unit or units only to natural persons who meet the current qualifications established by the
Corporation, all subject to the provisions of Section 5.14 hereof.
"Regular Record Date" means, in respect of a particular series of Bonds, the fifteenth
day (whether or not a Business Day) of the calendar month next preceding each Interest Payment
Date.
"Related Affiliate" has the meaning given in Section 2.04 hereof.
"Revenue Fund" means the trust account of that name created by Section 4.02 of this
Indenture.
"Second Deed of Trust" means the Second Deed of Trust, Security Agreement,
Financing, Statement and Assignment of Rent and Leases dated as of July 1, 1998, as amended
by the First Amendment to and Assignment of Second Deed of Trust, Security Agreement,
Financing Statement and Assignment of Rents and Leases dated August 14, 2013, from the
Corporation to the Public Trustee for Eagle County for the benefit of the Trustee, securing the
Series 1998B Subordinate Bonds, as such deed of trust may be amended or supplemented from
time to time.
"Special Record Date" means, in respect of a particular series of Bonds, such date as
may be fixed for the payment of defaulted interest in accordance with Section 2.07 of this
Indenture,
"State" means the State of Colorado.
"Subordinate Bonds" means the Series 1998B Subordinate Bonds, the Series 1998C
Subordinate Bonds and any Additional Bonds issued and secured on a parity with either of such
series of Bonds.
"Surplus Account" means the trust account of that name in the Revenue Fund created
under Section 4.02 of this Indenture,
"Tax-Exempt Bonds" means the Series 1998A-C Bonds, the Series 2003A Bonds, the
Series 2013A Bonds and any other Bonds the interest on which is excludable from gross income
of the holder for purposes of federal income tax.
"Term" means the duration of this Indenture, which is from the execution and delivery
hereof to the date the Corporation has satisfied all of its obligations under this Indenture, unless
sooner terminated in accordance with the provisions hereof.
016794\0001 \ 10596924.3 I Z
"Third Deed of Trust" means the Third Deed of Trust, Security Agreement, Financing
Statement and Assignment of Rents and Leases dated as of July 1, 1998, as amended by the First
Amendment to and Assignment of the Third Deed of Trust, Security Agreement, Financing
Statement and Assignment of Rents and Leases dated August 14, 2013, from the Corporation to
the Public Trustee for Eagle County for the benefit of the Trustee, securing the Series 1998C
Subordinate Bonds, as such deed of trust may be amended or supplemented from time to time.
"Town" means the Town of Avon, Eagle County, Colorado.
"Trustee" means UMB Banlc, n.a., in its capacity as trustee hereunder, and its successor
for the time being in the trust hereunder and any Co-Trustee appointed in accordance with
Section 11.16 of this Indenture.
The words "hereof," "herein," "hereto," "hereby" and "hereunder" (except in the form of
Bond) refer to the entire Indenture.
Every "request," "order," "demand," "application," "appointment," "notice," "statement,"
"certificate," "consent" or similar action hereunder by the Corporation shall, unless the form
thereof is specifically provided, be in writing signed by the Corporation Representative.
Section 1.02. Representations of the Corporation. The Corporation makes the
following representations as the basis for its undertakings herein contained:
(a) The Corporation is a nonprofit corporation duly organized and existing
under the laws of the State, is authorized pursuant to its articles of incorporation and bylaws to
issue the Bonds and to enter into the transactions contemplated by this Indenture, the Project
Agreement, and the Deeds of Trust and to carry out its obligations hereunder and thereunder, and
has duly authorized, executed and delivered this Indenture, the Deeds of Trust and the Other
Project Documents.
(b) The Corporation will utilize the proceeds of the Bonds to provide for the
financing or refinancing of the Project, for the purpose of providing dwelling accommodations at
rentals within the means of persons of low or moderate income, The proceeds of the Series
2013A Bonds will be used for the refunding of the Series 2003A Bonds.
(c) Neither the execution and delivery of the Bonds, this Indenture, the
Project Agreement, the Deeds of Trust, or the other Project Documents, the consummation of the
transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms
and conditions of the Bonds, this Indenture, the Project Agreement, the Deeds of Trust, or the
other Project Documents, conflict with or result in a breach of any of the terms, conditions or
provisions of any restriction or any agreement or instrument to which the Corporation is now a
party or by which it is bound or constitute a default under any of the foregoing or result in the
creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever
upon any of the property or assets of the Corporation under the terms of any instrument or
agreement.
(d) The Corporation will, prior to commencement of construction, hold fee
simple title to the Project free and clear, subject only to Permitted Encumbrances, and such title
016794\0001\10596924.3 13
shall be in and remain in the Corporation, except as permitted by Section 14.02 hereof. The
Corporation further covenants that it has the right to grant and convey its interest in the Trust
Estate, that such interest is unencumbered, and that it will warrant and defend generally the title
to such interest against all claims and demands, subject to Permitted Encumbrances.
(e) The Corporation shall not operate the Project in a manner which would
impair the exclusion of the interest on the Bonds or any original issue discount properly allocable
to any owner thereof, from the gross income of the owners thereof for federal income tax
purposes, The Corporation intends to continue to utilize the Project as dwelling accommodations
at rentals within the means of persons of low or moderate income in accordance with Section
5.14 hereof.
(~ There is no action, suit or proceeding at law or in equity or by or before
any governmental instrumentality or other agency now pending, or, to the best knowledge of the
Corporation, threatened against or affecting the Corporation, or any of its properties or rights,
which, if adversely determined, would affect the validity or enforceability of the Bonds, this
Indenture, the Project Agreement, the Deeds of Trust, or the other Project Documents, or the
Corporation's performance of its obligations hereunder or thereunder, or would materially and
adversely impair its right to carry on business substantially as now conducted or as now
contemplated to be conducted, or would materially and adversely affect its financial condition,
assets, properties or operations, and the Corporation is not in default with respect to any order or
decree of any court or any order, regulation or decree of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect its operation or its
properties or the completion of the construction and equipping of the Project. The Corporation is
not in default in the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument to which it is a party.
(g) The operation and design of the Project in the manner presently
contemplated and as described herein will not conflict with any applicable zoning, water or air
pollution or other ordinance, order, law or regulation relating to zoning, building, safety or
environmental quality, which conflict would materially and adversely affect its operation or the
completion of its construction and equipping.
(h) The Corporation has obtained, or will obtain on or before the date required
therefor, all necessary certificates, approvals, permits and authorizations with respect to the
construction and operation of the Project from applicable local, state, and federal governmental
agencies.
ARTICLE II
THE BONDS
Section 2.01. Amounts and Terms -Series 2013A Bonds and Other Series.
Except as provided in Section 2.10 hereof, the Series 2013A Bonds shall be limited to
$8,450,000 in aggregate principal amount, and shall contain substantially the terms recited in the
form of Bond attached hereto as Exhibit C and incorporated herein. Other series of Bonds
ranking as to source of payment equally and ratably with the Series 2013A Bonds may be issued
016794\0001\10596924.3 1 4
pursuant to Section 3.02 hereof in such aggregate principal amounts and may contain such terms
and be in such form, not contrary to the Indenture, as may be determined by the Corporation and
expressed in such Bonds. The Series 1998B Subordinate Bonds and the Series 1998C
Subordinate Bonds shall be issued in such amount and shall contain such terms as are set forth in
Article II of the 1998 Indenture.
The Bonds do not constitute a debt or indebtedness of the State or of any political
subdivision thereof, including the Town. The Bonds are obligations of the Corporation, payable
from all sources and revenue of the Corporation secured by (i) a pledge of the Funds and Project
Revenues (as defined in and with the exceptions and priorities provided in this Indenture) and,
with the exceptions and priorities provided in this Indenture, all trust accounts created under this
Indenture, and (ii) the lien and security interest on the Project, in each case subject to the
provisions of the respective Deeds of Trust. The Corporation may cause a copy of the text of the
opinion of recognized bond counsel to be printed on or annexed to any of its Bonds, and, upon
deposit with the Trustee of an executed counterpart of such opinion, the Trustee shall certify to
the correctness of the copy appearing on the Bonds by manual or facsimile signature.
The Series 2013A Bonds shall be issuable in fully registered form and in minimum
denominations of $100,000, subject to the further provisions regarding transfer set forth in
Section 2,04 hereof. No Bond shall be issued in any denomination larger than the aggregate
principal amount maturing on the maturity date of such Bond, and no Bond shall be made
payable on more than one maturity date.
The Bonds may bear such other endorsement or legend not unsatisfactory to the Trustee
as may be required to conform to usage or law with respect thereto.
The Series 2013A Bonds shall mature on August 1, 2016 in the aggregate principal
amount of $8,450,000 and shall bear interest at the per annum interest rate of 3.10% to maturity,
unless redeemed prior thereto.
Section 2.02. Interest Accrual, The Bonds of a series shall be dated their date of
authentication and shall bear interest from the Interest Payment Date in respect of that series to
which interest has been paid next preceding the date of authentication, (i) unless the date of
authentication is an Interest Payment Date to which interest has been paid, in which case Bonds
shall be dated and bear interest from the date of authentication, or (ii) unless authenticated after a
Record Date, in which case from such Interest Payment Date or (iii) unless the Bonds are
authenticated prior to the first Interest Payment Date for the Bonds of such series, in which case
such Bonds shall bear interest from the Original Date of such series as shown on the form of the
Bond or as otherwise provided in the supplemental indenture establishing such series. Interest
accrued and unpaid on any Subordinate Bond on the applicable due date shall not bear interest
unless the principal on the Bonds shall have been declared due and payable in which case unpaid
interest shall accrue interest as provided in Section 10.09(b).
Section 2.03. Bond Registrar and Bond Register. The Bonds of a series shall be
registered upon original issuance and upon subsequent transfer or exchange as provided in this
Indenture. Any supplemental indenture may contain such additional provisions regarding the
016794\0001\10596924.3 1 5
registration, transfer and exchange of Bonds of a series as are not inconsistent with this
Indenture.
The Corporation shall designate, in respect of each series of Bonds, a person to act as
"Bond Registrar" for such series, provided that the Bond Registrar appointed for any series of
Bonds shall be either the Trustee or a person which would meet the requirements for
qualification as a Trustee imposed by Section 11.13 hereof. The Corporation hereby appoints the
Trustee its Bond Registrar in respect of the Bonds. Any other person undertaking to act as Bond
Registrar in respect of a series of Bonds shall first execute a written agreement, in form
satisfactory to the Trustee, to perform the duties of a Bond Registrar under this Indenture, which
agreement shall be filed with the Trustee.
The Bond Registrar in respect of each series of Bonds shall act as registrar and transfer
agent for such series. The Corporation shall cause to be kept at an office of the Bond Registrar
for a series of Bonds a register (herein sometimes referred to as the "Bond Register") in which,
subject to such reasonable regulations as it or the Bond Registrar may prescribe, the Corporation
shall provide for the registration of the Bonds of such series and for the registration of transfers
of such Bonds. The Corporation shall cause the Bond Registrar to designate, by a written
notification to the Trustee, a specific office location (which may be changed from time to time,
upon similar notification) at which the Bond Register is kept. The principal corporate trust office
of the Trustee, currently located at UMB Bank, n.a. in [Denver, Colorado], shall be deemed to be
such office in respect of any series of Bonds for which the Trustee is acting as Bond Registrar.
Each Bond Registrar shall, in any case where it is not also the Trustee, forthwith
following each Regular Record Date in respect of the related series of Bonds and at any other
time as reasonably requested by the Trustee, certify and furnish to the Trustee, and to any Paying
Agent for such series as the Trustee shall specify, the names, addresses, and holdings of
Bondholders and any other relevant information reflected in the Bond Register, and the Trustee
and any such Paying Agent shall for all purposes be fully entitled to rely upon the information so
furnished to it and shall have no liability or responsibility in connection with the preparation
thereof.
Section 2.04. Registration, Transfer and Exchange. Upon their execution and
authentication and prior to their delivery, the Bonds shall be registered for the purpose of
payment of principal and interest by the Bond Registrar. To the extent that typewritten Bonds,
rather than printed Bonds, are to be delivered, such modifications to the form of Bond as may be
necessary or desirable in such case are hereby authorized and approved. There shall be no
substantive change to the terms and conditions set fot-th in the form of Bond, except as otherwise
authorized by this Indenture or any amendment thereto.
As provided in Section 2.03 hereof, the Corporation shall cause a Bond Register for each
series of Bonds to be kept at the designated office of the Bond Registrar for such series. Upon
surrender for transfer of any Bond at such office, the Corporation shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees, one or more new fully
registered Bonds of the same series of authorized denomination for the aggregate principal
amount which the registered owner is entitled to receive.
016794\0001\10596924.3 16
At the option of the owner, the Series 2013A Bonds may be exchanged for other Bonds
of such series of any authorized denomination, of a like aggregate principal amount, upon
surrender of the Bonds to be exchanged at any such office or agency. Whenever any Series
2013A Bonds are so surrendered for exchange, the Corporation shall execute, and the Trustee
shall authenticate and deliver, the Bonds which the Bondholder malting the exchange is entitled
to receive.
All Bonds presented for transfer or exchange, redemption or payment (if so required by
the Corporation, the Bond Registrar or the Trustee), shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and with guaranty of
signature satisfactory to the Trustee, duly executed by the owner or by his attorney duly
authorized in writing.
No service charge shall be made for any exchange or transfer of Bonds, but the
Corporation may require payment of a sum sufficient to cover any tax or other governmental
charge that maybe imposed in relation thereto.
Neither the Corporation nor any Bond Registrar on behalf of the Corporation shall be
required (i) to issue, transfer or exchange any Bond during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Bonds selected for
redemption and ending at the close of business on the day of such mailing, or (ii) to transfer or
exchange any Bond so selected for redemption in whole or in part.
New Bonds delivered upon any transfer or exchange shall be valid obligations of the
Corporation, evidencing the same debt as the Bonds surrendered, shall be secured by this
Indenture and entitled to all of the security and benefits hereof to the same extent as the Bonds
surrendered.
By their acceptance of the Bonds, each Bondholder acknowledges that the Bonds are not
being registered under the Securities Act of 1933, as amended, and are not being registered or
otherwise qualified for sale under the "Blue Sky" laws and regulations of any State and that as of
the date of original issuance thereof, they will carry no rating from any rating service. The
Series 2013A Bondholders also acknowledge that their Bonds may be sold, transferred or
otherwise disposed of only in minimum denominations of $100,000 to transferees who have
delivered to the Trustee and the Corporation a duly executed certificate of qualified investor in
the form attached to the form of the Bonds herein. The Trustee shall require and rely upon a
certificate or opinions of counsel from the Series 2013A Bondholder to evidence or confirm
compliance with such restrictions. Copies of any such certificates or opinions shall be delivered
promptly to the Corporation. The Series 2013A Bonds shall not be eligible for deposit with any
securities depository. Notwithstanding the foregoing, the Series 1998B Subordinate Bonds and
the Series 1998C Subordinate Bonds shall be registered and sold, transferred or otherwise
disposed of as set forth in the Section 2.04 of the 1998 Indenture, as the same may be amended
from time to time.
Section 2.05. Execution. The Bonds shall be executed by the manual or facsimile
signature of the President or any Vice President of the Corporation, and the corporate seal of the
016794\0001\10596924.3 17
Corporation or facsimile thereof shall be affixed, imprinted, lithographed or reproduced thereon
and shall be attested by the manual or facsimile signature of the Secretary of the Corporation.
Bonds executed as above provided may be issued and shall, upon request of the
Corporation, be authenticated by the Trustee, notwithstanding that any officer of the Corporation
signing such Bonds shall have ceased to hold office at the time of issuance or authentication or
shall not have held office at the date of the Bond.
Section 2.06. Authentication. No Bond shall be valid for any purpose until the
certificate of authentication shall have been duly executed by the Trustee, and such
authentication shall be conclusive proof that such Bond has been duly authenticated and
delivered under this Indenture and that the owner thereof is entitled to the benefit of the Trust
Estate hereby created.
Section 2.07. Payment of Principal and Interest; Interest Rights Preserved. The
principal and redemption price of any Bond shall be payable as provided in the form of Bonds
attached hereto as Exhibit C and incorporated herein.
Subject to the foregoing provisions of this Section 2.07, each Bond delivered under this
Indenture upon transfer of or exchange for or in lieu of any other Bond shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other Bond.
Section 2.08. Persons Deemed Owners. The Corporation, the Trustee, any Paying
Agent and the Bond Registrar may deem and treat the person in whose name any Bond is
registered as the absolute owner thereof (whether or not such Bond shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by anyone other than
the Corporation, the Trustee, the Paying Agent or the Bond Registrar) for the purpose of
receiving payment of or on account of the principal of (and premium, if any, on), and (subject to
Section 2.07 hereof interest on, such Bond, and for all other purposes, and neither the
Corporation, the Trustee, the Paying Agent nor the Bond Registrar shall be affected by any
notice to the contrary, All such payments so made to any such registered owner, or upon his
order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Bond.
Section 2.09. Mutilated, Destroyed, Lost or Stolen Bonds. If any Bond shall
become mutilated, the Corporation shall execute, and the Trustee shall thereupon authenticate
and deliver, a new Bond of like tenor and denomination in exchange and substitution for the
Bond so mutilated, but only upon surrender to the Trustee of such mutilated Bond for
cancellation, subject to the Trustee and the Corporation being furnished such reasonable
indemnity as either of them may require therefor. If any Bond shall be reported lost, stolen or
destroyed, evidence as to the ownership and the loss, theft or destruction thereof shall be
submitted to the Trustee; and if such evidence shall be satisfactory to it and such indemnity
satisfactory to the Trustee and the Corporation shall be given, the Corporation shall execute, and
thereupon the Trustee shall authenticate and deliver, a new Bond of like series, tenor and
denomination as the original Bond, but carrying such additional marking as will enable the
Trustee to identify such Bond as a replacement Bond. The cost of providing any substitute Bond
under the provisions of this Section shall be borne by the Bondholder for whose benefit such
016794\0001\10596924.3 1 g
substitute Bond is provided. If any such mutilated, lost, stolen or destroyed Bond shall have
matured or be about to mature, the Trustee shall pay to the owner the principal amount of such
Bond upon the maturity thereof and the compliance with the aforesaid condition by such owner,
without the issuance of a substitute Bond therefor.
Every substituted Bond issued pursuant to this Section 2.09 shall constitute an additional
contractual obligation of the Corporation, whether or not the Bond alleged to have been
destroyed, lost or stolen shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Bonds duly
issued hereunder.
All Bonds shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Bonds, and shall preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or investment or other securities without their surrender.
Section 2.10. Temporary Bonds. Pending preparation of definitive Bonds of any
series, or by agreement with the purchasers of all Bonds of any series, the Corporation may issue
and, upon its request, the Trustee shall authenticate in lieu of definitive Bonds one or more
temporary printed or typewritten Bonds in authorized denominations of substantially the tenor
recited above. Upon request of the Corporation, the Trustee shall authenticate definitive Bonds
in exchange for and upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security hereunder as
definitive Bonds.
Section 2.11. Cancellation and Destruction of Surrendered Bonds. Bonds
surrendered for payment, redemption, transfer or exchange, and Bonds purchased from any
moneys held by the Trustee hereunder or surrendered to the Trustee by the Corporation, shall be
canceled and destroyed by the Trustee. The Trustee shall deliver to the Corporation a certificate
of destruction identifying all Bonds so destroyed.
ARTICLE III
ISSUE OF BONDS
Section 3.01. Issue of Bonds. The Corporation may issue the Series 2013A Bonds
following the execution of this Indenture; and the Trustee shall, at the Corporation's request,
authenticate such Bonds and deliver them as specified in the request.
Section 3.02. Issue of Additional Bonds. To (i) acquire, construct, improve or equip
completion of or improvements or additions to the Project, or (ii) refund any series of Bonds, or
(iii) pay for any combination of such purposes after the delivery of the Bonds, the Corporation
and the Trustee may from time to time, upon the conditions stated in this Section 3.02 and with
the consent of the Town, agree upon and approve the issuance and delivery of Additional Bonds,
secured by this Indenture from the revenues and property pledged and appropriated hereunder,
016794\0001\10596924.3 1 9
but bearing such date or dates and interest rate or rates and with such redemption dates and
premiums as maybe agreed upon, but only upon satisfaction of all of the following conditions:
(1) Certified Resolution. A resolution duly adopted by the Corporation,
certified by the President or other Corporation Representative, approving and authorizing the
issuance of the Additional Bonds and the execution and delivery of the amendment or
supplement to the Indenture.
(2) Bondholder Consent. Evidence that a Majority Interest has consented to
the issuance of such Additional Bonds; provided that such consent shall not be required if the
Additional Bonds are being issued to refund any series of Bonds and such refunding will result in
a net present value savings to the Corporation.
(3) Supplemental Bond Indenture. Originally executed counterparts of an
indenture supplemental hereto, designating the new series to be created and prescribing expressly
or by reference to the Bonds of such series:
(a) the principal amount of the Bonds of such series;
(b) the text of the Bonds of such series;
(c) the maturity dates thereof;
(d) the rate or rates of interest and the date from which, and the date or
dates on which, interest is payable;
(e) provisions as to redemption;
(~ any additional security to be provided for the Bonds;
(g) any other provisions necessary to describe and define such series
within the provisions and limitations of this Indenture; and
(h) any other provisions and agreements in respect thereof provided, or
not prohibited, by the Indenture.
(4) Amendments to Deeds of Trust and Project Agreement. Originally
executed counterparts of amendments or supplements to the Deeds of Trust and the Project
Agreement providing for the securing of such Additional Bonds, as necessary.
(5) Accountant's Certificate. A certificate of an Accountant setting forth, for
the last audited Fiscal Year or for any period of 12 consecutive calendar months out of the 18
calendar months next preceding the delivery of such series of Bonds, as determined by the
Accountant, a Debt Service Coverage Ratio greater than 120%; provided that such certificate
shall not be required if the Additional Bonds are being issued to refund any series of Bonds and
such refunding will result in a net present value savings to the Corporation.
(6) Opinion of Bond Counsel. An opinion or opinions of Bond Counsel that:
016794\0001\10596924.3 20
(a) all instruments furnished the Trustee conform to the requirements
of this Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and
deliver the Additional Bonds then applied for;
(b) all laws and requirements with respect to the form and execution
by the Corporation of the supplemental indenture, and the execution and delivery by the
Corporation of the Additional Bonds then applied for, have been complied with;
(c) the Corporation has corporate power to issue such Additional
Bonds and has taken all necessary action for the purpose;
(d) the Additional Bonds then applied for, when issued, will be
secured by the lien of this Indenture;
(e) any exclusion from gross income for federal income tax purposes
of the interest on the Outstanding Bonds and any other tax-exempt Additional Bonds
Outstanding will not be impaired by the issuance of the Additional Bonds then applied for; and
(~ the supplements or amendments to the Deeds of Trust are valid and
binding in accordance with their terms.
Section 3.03. Disposition of Proceeds of Bonds Other Deposits. Proceeds of the
Series 2013A Bonds, net of certain Issuance Costs related to real estate matters in the amount of
$ and $ of accrued interest from the Closing Date of the Series 2013A Bonds
to September 1, 2013, the first interest payment date of the Series 2013A Bonds, are to be
transferred to the Redemption Account to be held and applied in accordance with the Indenture.
Amounts on deposit in funds held by the Trustee under the 2003 Indenture shall be disbursed as
follows:
(a) $ to the Redemption Account to be used to refund, redeem and
defease the Series 2003A Bonds in accordance with the Indenture.
(b) $ to the Costs of Issuance Fund to be applied to payment of
Issuance Costs as directed by a Corporation Representative. Any balance remaining in the Cost
of Issuance Fund after November 1, 2013 shall be transferred to the Surplus Account.
(c) $ to the initial Purchaser, to fund replacement reserve in
accordance with the Bank Supplemental Agreement.
The disposition of the proceeds of any series of Additional Bonds issued pursuant to
Section 3.02 hereof shall be as provided in the supplemental indenture establishing such series.
Section 3.04. Subordinate Obligations Permitted. Nothing in this Indenture
prevents the Corporation from issuing subordinate bonds with the consent of the Town and, if
any Series 2013A Bonds or Additional Bonds secured on a parity therewith are outstanding, of a
Majority Interest, or from incurring other contract obligations having a lien on the Surplus
Account subordinate to the lien thereon of the Bonds, subject to the rights of the Town under the
Project Agreement; provided that any lien on the Surplus Account created in connection with
016794\0001\10596924.3 21
such bonds or other obligations shall terminate upon the occurrence of an Event of Default
hereunder. Any such subordinate obligations may be authorized by resolution or by any other
instrument of the Corporation.
Section 3.05. Superior Bonds Prohibited. Nothing herein permits the Corporation
to issue bonds or incur other contract obligations having a lien on the Project or on Net Revenues
superior to the lien thereon of the Bonds, arid any such superior obligations are hereby
prohibited.
ARTICLE IV
PLEDGE OF TRUST ESTATE; REVENUES AND FUNDS
Section 4.01. Pledge of Trust Estate. Subject only to the rights of the Corporation
to apply amounts under the provisions of this Article IV, a pledge of the Trust Estate to the
extent provided herein is hereby made, and the same is pledged to secure the payment of the
principal of premium, if any, and interest on the Bonds and Indebtedness to the Town. The
pledge hereby made shall be valid and binding from and after the time of the delivery of the first
Bond authenticated and delivered under this Indenture. The security so pledged and then or
thereafter received by the Corporation shall immediately be subject to the lien of such pledge and
the obligation to perform the contractual provisions hereby made shall have priority over any or
all other obligations and liabilities of the Corporation with regard to the Trust Estate, to the
extent provided herein, and the lien of such pledge shall be valid and binding as against all
parties having claims of any kind in tort, contract or otherwise against the Corporation
irrespective of whether such parties have notice thereof.
Section 4.02. Establishment of Funds. The Corporation hereby establishes and
creates the following funds and accounts, which shall be special trust accounts held by the
Trustee:
(a) Bond Fund and therein the Series A Bond Account, the Series B Bond
Account and the Series C Bond Account and within each such Account a Redemption
Subaccount and Sinking Fund Subaccount.
(b) Excess Investment Earnings Fund.
(c) Property Insurance and Award Fund.
(d) Revenue Fund and therein the Surplus Account.
(e) Costs of Issuance Fund.
Section 4.03. Bond Fund. The Trustee shall deposit in the Bond Fund each of the
payments required by Section 5.04 hereof, and any moneys paid to the Trustee under this
Indenture for credit or transfer to the Bond Fund, Moneys in the Series A Bond Account of the
Bond Fund shall be applied to pay the principal of and interest on the Series 2013A Bonds and
Additional Bonds secured on a parity therewith when due. Subject to the last sentence of this
Section 4.03, moneys in the Series B Bond Account of the Bond Fund shall be applied to pay the
016794\0001\10596924.3 22
unpaid principal of and interest on the Series 1998B Subordinate Bonds and Additional Bonds
secured on a parity therewith when due including, at the direction of the Corporation, to pay the
optional redemption price of the Series 1998B Subordinate Bonds and Additional Bonds secured
on a parity therewith, and moneys in the Series C Bond Account of the Bond Fund shall be
applied to pay the unpaid principal of and interest on the Series 1998C Subordinate Bonds and
Additional Bonds secured on a parity therewith when due including, at the direction of the
Corporation, to pay the optional redemption price of the Series 1998C Subordinate Bonds and
Additional Bonds secured on a parity therewith.
When Bonds of a Series are redeemed or purchased, the amount, if any, in the applicable
account of the Bond Fund representing interest thereon shall be applied to the payment of
accrued interest in connection with such redemption or purchase. Whenever the amount in an
account of the Bond Fund is sufficient to redeem all of the Outstanding Bonds of the applicable
Series and to pay interest accrued to the redemption date, the Corporation will cause the Trustee
to redeem all such Bonds on the applicable redemption date specified by the Corporation, Any
amounts remaining in the Bond Fund after payment in full of the principal or redemption price,
premium, if any, and interest on the Bonds (or provision for payment thereo f and the fees,
charges and expenses of the Trustee and any paying agents, shall be paid to the Corporation.
Moneys delivered to the Trustee in contemplation of optional or mandatory redemption
or maturity of the Bonds of a Series shall be deposited in the related Redemption Subaccount and
shall be used by the Trustee to redeem or pay the principal of such Bonds (including any
redemption premium thereon) in accordance with the provisions hereof.
The Trustee shall use the Sinking Fund Subaccount to purchase or redeem Bonds of the
applicable Series as required hereunder,
The Trustee shall deposit the following amounts in respect of principal of the Series
2013A Bonds from Net Revenues, at the times and for the benefit of such Series 2013A Bonds,
in the applicable Sinking Fund Subaccount and apply such amounts to the redemption by lot as
provided in the form of Series 2013A Bonds attached hereto as Exhibit C on the first day of each
month in each of the years set forth below of the Series 2013A Bonds at par, plus accrued
interest:
016794\0001\10596924.3 23
Sinking Fund Sinking Fund Sinking Fund
Redemption Redemption Redemption
Date Amount Date Amount Date Amount
10/1/2013 $14,254 10/1/2014 $14,702 10/1/2015 $15,164
11 / 1 /2013 14,291 11 / 1 /2014 14, 740 11 / 1 /2015 15,203
12/1/2013 14,327 12/1/2014 14,778 12/1 /2015 15,243
1/1/2014 14,364 1/1/2015 14,816 1/1/2016 15,282
2/1/2014 14,402 2/1/2015 14,854 2/1/2016 15,322
3/1/2014 14,439 3/1/2015 14,893 3/1/2016 15,361
4/1/2014 14,476 4/1/2015 14,931 4/1/2016 15,401
5/1/2014 14,513 5/1/2015 14,970 5/1/2016 15,441
6/1/2014 14,551 6/1/2015 15,009 6/1/2016 15,480
7/1/2014 14,589 7/1/2015 15,047 7/1/2016 15,520
8/1/2014 14,626 8/1/2015 15,086 8/1/2016*15,561
9/1/2014 14,664 9/1/2015 15,125
* Stated Maturity
The Trustee shall deposit the amounts in respect of principal of the Series 1998B
Subordinate Bonds and the Series 1998C Subordinate Bonds from Net Revenues, at the times
and for the benefit of such Series 1998B Subordinate Bonds and Series 1998C Subordinate
Bonds, in the applicable Sinking Fund Subaccount and apply such amounts to the redemption by
lot as set forth in Section 4.04 of the 1998 Indenture.
The Trustee shall also establish such sinking funds for any series of additional Bonds as
may be directed in the supplemental indenture establishing such series. The Trustee shall use the
sinking fund for each series to purchase or redeem Bonds of such series. The Corporation may
deliver Bonds purchased by it as a credit against future sinking fund payments in inverse
chronological order; provided that such Bonds so delivered by the Corporation shall be of the
same series and maturity in respect of which the sinking fund payment is to be made and shall be
delivered no less than 45 days before the sinking fund redemption date. Bonds so delivered shall
be credited at the sinking fund redemption price set forth in the form of Bonds. If at any time all
the Bonds of any series shall have been purchased, redeemed or paid, the Trustee shall make no
further transfers to the sinking fund for such series and shall treat any balance then in such fund
as Project Revenues in the Bond Fund.
If any series of Bonds is to be paid or redeemed in full, any balance in any sinking fund
for such series may, at the option of the Corporation, to be exercised at the request of the
Corporation, be applied in whole or in part to the payment or redemption of such series or
transferred to the Bond Fund.
Revenues and investments thereof shall, until applied as provided in this Indenture, be
held by the Trustee for the benefit of the owners of all outstanding Bonds, except that any
portion of the Revenues in the Bond Fund or any sinking fund representing principal or
redemption price of, and premium, if any, and interest on, any matured Bonds, or any Bonds
016794\0001\10596924.3 24
previously called for redemption in accordance with Article IX of this Indenture, shall be held
for the benefit of the owners of such Bonds only.
Three Business Days prior to each Interest Payment Date, the Trustee shall determine
whether there are sufficient moneys credited to the Bond Fund to pay the principal or redemption
price of, and interest due on the Bonds on such Interest Payment Date. If the Trustee determines
that there is a deficiency in the Bond Fund with respect to payments of principal or redemption
price of; or interest on the Series 2013A Bonds and Additional Bonds secured on a parity
therewith, the Trustee shall give written notice thereof within one Business Day of such
determination to the Corporation, the Town and to all owners of the Series 2013A Bonds and
Additional Bonds secured on a parity therewith and any Bondholder who has requested receipt of
such notices of a deficiency. In the event that on the payment date, such deficiency still exists,
the Trustee shall withdraw funds to the extent necessary, to pay the principal of and interest on
the Series 2013A Bonds and Additional Bonds secured on a parity therewith from the following
funds and accounts in the following order of priority: (1) Surplus Account to the extent of any
available balance therein, (2) Series B Bond Account of the Bond Fund and (3) Series C Bond
Account of the Bond Fund. Use of any of such funds or accounts to satisfy such deficiency shall
cure an Event of Default under Section 10.01(A) or (B) hereof, Payment of principal of and
interest on the Subordinate Bonds shall not be made until such deficiency is paid.
Section 4.04. Excess Investment Earnings Fund, This Section 4.04 shall apply
separately to each issue of Tax-Exempt Bonds. Within 60 days after each Calculation Date and
not later than 60 days after the redemption of the last Tax-Exempt Bond, the Corporation shall
compute the Excess Investment Earnings for the year just completed and shall direct the Trustee
to, subject to Section 4.06 hereof, transfer from the Revenue Fund to the Excess Investment
Earnings Fund an amount equal to the amount so computed. If the amount so computed is a
negative number, said amount may be withdrawn from the Excess Investment Earnings Fund and
deposited in the Revenue Fund. All amounts in the Excess Investment Earnings Fund, including
income earned from the investment of such amounts, shall be held by the Trustee free and clear
of the liens described in this Indenture. The Trustee shall pay over to the United States of
America, not later than 60 days after the fifth anniversary of the date of issuance of the Tax-
Exempt Bonds and at least every five years thereafter until the final redemption of the last Bond,
an amount equal to 90% of the net aggregate amount transferred to or earned in the Excess
Investment Earnings Fund during such period and not theretofore paid to the United States of
America and, not later than 60 days after the redemption of the last Tax Exempt Bond, 100% of
the aggregate amount in the Excess Investment Earnings Fund. Notwithstanding the provisions
of this Section 4.04, the Trustee shall at all times maintain and administer the Excess Investment
Earnings Fund in conformity with all applicable federal statutes and regulations as the same may
be amended from time to time.
Section 4.05. Property Insurance and Award Fund.
(a) The Trustee shall deposit all Net Loss Proceeds of a condemnation award,
sale under threat of condemnation or insurance claim receivable by it under Section 6.01 hereof
or any amounts received from the Corporation that are intended for the restoration of the Project
in the Property Insurance and Award Fund, and shall use and withdraw money in this Fund only
016794\0001\10596924.3 25
for the purposes and upon the conditions stated in this Section 4.05; provided, however, that the
proceeds of business interruption insurance shall be deposited in the Revenue Fund.
(b) If all or a portion of the Project is damaged or destroyed or taken by
condemnation or exercise of the power of eminent domain or sale to a potentially taking
governmental authority under threat thereof and the Corporation, with the consent of a Majority
Interest, directs the Trustee to call for redemption all or a portion of the then Outstanding Series
2013A Bonds, the Trustee shall, as soon as possible, cause a notice of redemption of so much of
the Outstanding Series 2013A Bonds as are to be redeemed to be given in accordance with the
provision of Section 9.02 hereof. In the event that such redemption is to occur, and upon receipt
of an opinion of Bond Counsel stating that all steps have been taken as required by this Indenture
for the exercise of such option, the redemption of Bonds and the satisfaction and discharge of
this Indenture, together with duplicate originals of all documents on which such opinion of Bond
Counsel is based, the Trustee shall transfer the Net Loss Proceeds then held in the Property
Insurance and Award Fund to the Bond Fund and use and apply the Net Loss Proceeds, and, if all
Outstanding Series 2013A Bonds are to be redeemed, all other funds in its hands not required for
compensation and reimbursement of the Trustee, to the redemption and payment of Bonds and
interest accrued thereon.
(c) If all or a portion of the Project is damaged or destroyed or taken by
condemnation or exercise of the power of eminent domain or sale to a potentially taking
governmental authority under threat thereof and the Corporation, with the consent of a Majority
Interest, elects to restore the Project, the Trustee shall make disbursement from the Property
Insurance and Award Fund upon receipt by the Trustee of the following items (unless waived by
the consent of a Majority Interest):
(1) Plans (if applicable) or purchase orders for Project Equipment for
restoration of the Project;
(2) fully executed copies of the construction contracts ("Construction
Contracts") for the furnishing of the necessary work and materials required for restoration in
accordance with such Plans;
(3) an Opinion of Counsel satisfactory to the Trustee that any
improvement to be acquired or constructed with the proceeds of such condemnation award or
insurance claim will, upon the acquisition or construction thereof be subject to the lien of the
Deeds of Trust;
(4) a detailed estimate of the cost of construction of the restoration,
indicating the gross costs, including all hard and soft costs, of the entire Project, including,
without limitation, all equipment to be acquired, showing that the moneys in the Property
Insurance and Award Fund, together with the Corporation's estimate of the investment earnings
to be deposited therein are sufficient to pay all costs of completing and restoring the Project
certified by the Corporation Representative to the best of his or her knowledge and belief, upon
due inquiry, to be correct;
016794\0001\10596924.3 2()
(5) a certificate of an Independent Engineer stating that (i) repair of
the Project is practicable and (ii) the labor and materials to be provided for pursuant to
Construction Contracts delivered to the Trustee pursuant to Section 4.05(c)(2) hereof will
collectively be sufficient to complete the Project in accordance with the Plans and the Project
budget;
(6) a copy of the budget for the repair, replacement, rebuilding,
completion and restoration of the Project, showing that the moneys in the Property Insurance and
Award Fund and the Construction Fund, together with the Corporation's estimate of the
investment earnings to be deposited therein, are sufficient to pay all costs of repair, replacement,
rebuilding, restoring and completing the Project accompanied by a certificate of an Independent
Engineer stating that the budget is adequate to provide for repair, replacement, rebuilding,
completion and restoration of the Project;
(7) a copy of the construction schedule for the completion and
restoration of the Project accompanied by a certificate of an Independent Engineer stating that
such schedule is adequate to provide for repair, replacement, rebuilding, completion and
restoration of the Project;
(8) all government permits required to undertake completion and
restoration of the Project;
(9) a certificate satisfactorily evidencing builders' all risk insurance in
an amount not less than the lesser of the total authorized principal amount of the Bonds or the
Full Insurable Value of the improvements to the Project;
(10) a certificate satisfactorily evidencing worker's compensation
insurance in an amount required by the Worker's Compensation Act now or hereafter enacted in
the State;
(11) a certificate satisfactorily evidencing comprehensive general
liability insurance, in amounts not less than $1,000,000 per occurrence and $2,000,000
aggregate, with excess liability coverage of not less than $5,000,000;
(12) a certificate satisfactorily evidencing automobile liability insurance
with a combined single limit amount of not less than $1,000,000;
(13) certificates satisfactorily evidencing owner's protective liability
insurance on the Project for the Corporation, in amounts not less than $1,000,000 per occurrence
and $2,000,000 aggregate;
(14) 100% payment and performance Bonds in connection with
completion and restoration of the Project from a bonding company naming the Corporation and
the Trustee as obligees;
(15) collateral assignments of all plans, specifications, contracts and
agreements described in this subsection (c); and
016794\0001\10596924.3 27
(16) for each draw out of the Property Insurance and Award Fund
(which shall occur not more than monthly), a requisition certificate in the form attached as
Exhibit B hereto and incorporated herein by reference, executed by a Bondholder
Representative.
If the Corporation chooses not to use the Net Loss Proceeds received under this Section
4.05(c) to reconstruct the Project within 180 days of the receipt thereof or if the Corporation is
unable to provide the items provided for in this Section 4.05(c), the Corporation shall direct the
Trustee to call for redemption a portion of the then Outstanding Series 2013A Bonds, and the
Trustee shall, as soon as possible, cause a notice of redemption of so much of the Outstanding
Series 2013A Bonds as are to be redeemed to be given in accordance with the provisions of
Section 9.02 hereof.
(d) After receiving such documents required by Subsection (c) of this Section
4.05, the Trustee shall pay costs of restoration to the Corporation or other persons entitled
thereto, as established by Corporation Representative's certificates and other documentation
required by the requisition certificate attached as Exhibit B hereto, provided that no costs of
restoration as so certified shall be paid until receipt by the Trustee of an Opinion of Counsel
stating that all filings and other steps necessary to perfect the mortgage lien and security interests
created hereby and by the Deeds of Trust in all property, real, personal or mixed, which
constitutes part of the Project as a result of such restoration, as against third panty creditors of or
purchasers for value from the Corporation, have been completed, and that the lien of the Deeds
of Trust is subject to no liens and encumbrances except Permitted Encumbrances. In the event
that the restoration of the Project to substantially the condition existing before a taking by
eminent domain or sale to a potentially taking governmental authority under threat thereof would
require the acquisition of real property or rights or interests in real property additional to or in
substitution for any part or all of that described in Exhibit A hereto, the cost thereof may be
added to the cost of restoration to be reimbursed to the Corporation under the provisions of this
Section 4.05 only if there are filed with the Trustee the following, each in form and substance
satisfactory to the Trustee, (1) evidence of the acquisition of such real property or an interest
therein, (2) evidence of the Corporation's approval of such acquisition, (3) an amendment to the
Deeds of Trust subjecting such additional or substituted real property and rights or interests
therein to the lien of this Indenture and the Deeds of Trust, (4) a policy of title insurance in
relation to such additional or substituted real property and rights or interests therein insuring the
Deeds of Trust to be a first mortgage lien on fee simple title to such additional or substituted real
property, free and clear of all liens and encumbrances except Permitted Encumbrances, said
policy to be in substantially the form of the title policy originally delivered to the Trustee in
connection with the issuance of the Bonds and to contain appropriate endorsements and additions
to coverage included with said earlier title policy, and (5) a Phase I environmental survey
showing the property is free of environmental contamination. Any additional real property or
rights or interests therein so acquired shall be and become part of the Trust Estate as fully as
though originally set forth and described in the Deeds of Trust.
(e) Any Net Loss Proceeds not applied to the redemption of Bonds or
restoration of the Project or deposited in the Revenue Fund shall be remitted to the Town.
016794\0001 \10596924.3 2 g
Section 4.06. Revenue Fund, Surplus Account. Except as otherwise provided
herein, all Net Revenues following receipt thereof from time to time by the Corporation, shall be
deposited on the 20th of each month, commencing September 20, 2013, to the Revenue Fund
with the Trustee or with an Approved Depository. On the 25th day of each month, the Trustee
shall withdraw amounts from the Revenue Fund to make the deposits hereinafter described.
(a) The Revenue Fund shall be administered and the moneys on deposit
therein shall be deposited and applied monthly (except as otherwise provided herein) in the
following order of priority:
(1) First, to the Series A Bond Account of the Bond Fund, until the
amount therein shall equal the Monthly Payments on the Series 2013A Bonds and any Additional
Bonds secured on a parity therewith which have become due through and including the current
calendar month;
(2) Second, if the amounts in the Property Insurance and Award Fund,
together with any investment earnings to be deposited therein, are or are estimated by the Project
budget to be, insufficient to complete the restoration of the Project, subject to approval of
Majority Interest, any remaining moneys up to the amount necessary or estimated to be
necessary to complete such construction or restoration;
(3) Third, to the Excess Investment Earnings Fund, in an amount
equal to any deposits required to be made therein;
(4) Fourth, on each June 1 and December 1, commencing December
1, 2013, to the Town, in an amount equal to 0.0625 percent multiplied by the aggregate principal
amount of the Series 2013A Bonds then Outstanding hereunder;
(5) Fifth, to the Corporation for the purpose of funding all of the
reserves and any other payments required under the Bank Supplemental Agreement, in
accordance with a certificate of a Corporation Representative or the Bondholder Representative;
(6) Sixth, to the Town or any owners) of Subordinate Bonds to
discharge any indebtedness owing under Section 10.02 hereof, in accordance with a certificate of
the Corporation Representative;
(7) Seventh, to the Bond Fund, to be applied or deposited monthly to
the payment of accrued and unpaid interest on the Series 1998B Subordinate Bonds and any
Additional Bonds secured on a parity therewith;
(8) Eighth, to the Bond Fund, to be applied or deposited monthly to
the payment of accrued and unpaid interest on the Series 1998C Subordinate Bonds and any
Additional Bonds secured on a parity therewith;
(9) Ninth, all remaining balances shall be transferred to the Surplus
Account, to be applied in the manner set forth in Section 4.06(b) hereof.
016794\0001\10596924,3 29
(b) On any date, amounts held in the Surplus Account shall be transferred to
and applied, as needed to cure deficiencies in the following funds, in the following order of
priority: Series A Bond Account of the Bond Fund, the Excess Investment Earnings Fund, Series
B Bond Account of the Bond Fund and Series C Bond Account of the Bond Fund. Moneys on
deposit in the Surplus Account shall also be used to the extent necessary to make up any
deficiencies in the Bond Fund as provided in Section 4.04 hereof. The Corporation may direct
the Trustee to transfer moneys from the Surplus Account of the Revenue Fund to the Series B
Account or Series C Account of the Bond Fund to optionally redeem Subordinate Bonds in the
Corporation's sole discretion, in accordance with the optional redemption provisions of such
Subordinate Bonds. In addition, upon certification to the Trustee by the Corporation
Representative that no Event of Default exists hereunder and no amount is then required to be
transferred as described in the immediately preceding sentence, the Corporation may withdraw
funds from the Surplus Account at any time for any other lawful purpose, and may assign and
pledge to others all future balances in the Surplus Account. Any such assignment or pledge shall
not be considered as Indebtedness under this indenture and shall be terminated upon the
occurrence of an Event of Default hereunder. To the extent that funds are available from time to
time in the Surplus Account, the Corporation agrees to consider using such funds to make
payments to EagleBend Affordable Housing Corporation pursuant to a Note of the Corporation
dated October 21, 2003.
Section 4.07. Purchase of Bonds. Pursuant to written request from a Corporation
Representative, and upon deposit by the Corporation in the Bond Fund pursuant to Section 4.03
hereof of a sum, in excess of Payments and other payments then and theretofore required to be so
deposited, sufficient to purchase one or more Outstanding Bonds at a price not exceeding the
amount specified by the Corporation in such request, which shall include accrued interest to the
date of purchase, the Trustee shall endeavor to purchase so many of the Outstanding Bonds as
the sum deposited will permit. For this purpose the Corporation may specify the maximum
purchase price to be paid for the Bonds and the method of purchase, which may include a call for
tenders. The Trustee shall be entitled to be compensated or indemnified by the Corporation for
its expenses before proceeding hereunder. All Bonds purchased by the Trustee pursuant to this
Section 4.07 shall be canceled as soon as received. The Corporation's rights under this Section
4.07 may only be exercised subject to the following conditions: (a) purchases may be made at a
price of no more than par plus accrued interest and only from amounts on deposit in the Surplus
Account; (b) such purchase may not be made to the extent that there is any deficiency in any
fund under the Indenture; (c) any offer to purchase any Bonds must be made in writing to all
owners of Bonds of the Series which are ultimately purchased, and any Bonds secured on a
parity therewith at least 30 Business Days prior to the purchase; and (d) no Bond which has
previously been called for redemption shall be purchased pursuant to this Section 4.07. Upon any
such purchase, the sinking fund schedule for the Bonds purchased shall be credited in inverse
chronological order.
ARTICLE V
COVENANTS AND AGREEMENTS OF THE CORPORATION
Section 5.01. Performance of Covenants. The Corporation covenants that it will
timely and faithfully perform at all times any and all covenants, undertakings, stipulations and
016794\0001\10596924.3 3
provisions contained in this Indenture, the Bank Supplemental Agreement, and the Deeds of
Trust, in any and every Bond and in all proceedings of the Corporation pertaining thereto. The
Corporation covenants, represents, warrants and agrees that it is duly authorized under the
Constitution and laws of the State, to issue the Bonds and to execute this Indenture and the
Deeds of Trust, to pledge the property described herein and in the Deeds of Trust and pledged
hereby or thereby and to pledge the Trust Estate in the manner and to the extent herein and
therein set forth, that all actions on its part required for the issuance of the Bonds and the
execution and delivery of this Indenture and the Deeds of Trust have been duly and effectively
taken or will be duly taken as provided herein, and that this Indenture and the Deeds of Trust are
valid and enforceable instruments of the Corporation and that the Bonds in the hands of the
owners thereof are and will be valid and enforceable obligations of the Corporation according to
the terms thereof.
Section 5.02. Corporate Existence; Compliance with Laws. The Corporation shall
maintain its existence, shall use its best efforts to maintain and renew all its rights, powers,
privileges and franchises; and shall comply with all valid and applicable laws, acts, rules,
regulations, permits, orders, requirements and directions or any legislative, executive,
administrative or judicial body.
Section 5.03. Further Assurances. Except to the extent otherwise provided in this
Indenture, the Corporation shall not enter into any contract or take any action by which the rights
of the Trustee or the Bondholders may be impaired and shall, from time to time, execute and
deliver such further instruments and take such further action as may be required to carry out the
purposes of this Indenture.
Section 5.04. Payment of Principal, Interest and Premium; Other Required
Payments. The Corporation will promptly pay or cause to be paid the principal of, premium, if
any, and interest on all Bonds issued hereunder according to the terms hereof. The Corporation
hereby covenants to provide for the payment of principal of and interest on the Series 2013A
Bonds and Additional Bonds secured on a parity therewith by making Monthly Payments on the
25th day of each calendar month to and including the month prior to the date that all such unpaid
principal of the Bonds shall be paid in full. Monthly Payments shall be credited to the extent
moneys are already on deposit in the applicable account of the Bond Fund for such payment.
The Corporation shall appoint one or more Paying Agents for such purpose, each such
agent to be a national banking association, a bank and trust company or a trust company. The
Corporation hereby appoints the Trustee to act as sole Paying Agent, and designates the principal
corporate trust office of the Trustee as the place of payment, such appointment and designation
to remain in effect until notice of change is filed with the Trustee.
The Corporation agrees to pay the following amounts to the following persons as the
following under this Indenture:
(a) to the Trustee, in advance, all reasonable fees of the Trustee for services
rendered under this Indenture and all reasonable fees and charges of paying agents, registrars,
Bond Counsel, accountants, engineers and others incurred on request of the Trustee in the
performance of services under this Indenture for which the Trustee and such other persons are
016794\0001\10596924.3 3 1
entitled to payment or reimbursement, provided that the Corporation may, without creating a
default hereunder, contest in good faith the reasonableness of any such services, fees or expenses
other than the Trustee's fees for services rendered pursuant to the express provisions of the
Indenture;
(b) to the appropriate party the fees and expenses of any rebate analyst
selected by the Corporation or the Trustee, as and when the same becomes due, upon submission
of a statement thereon; and
(c) to the Trustee all amounts to be deposited to the Excess Investment
Earnings Fund, as and when the same become due as determined pursuant to the Indenture, to the
extent there are no other amounts available to make such deposits, and to cause the Trustee to
apply such funds in compliance with the terms of the Indenture.
In the event the Corporation should fail to make any of the payments required by this
Section, the item or installment in default shall continue as an obligation of the Corporation until
the amount in default shall have been fully paid, and the Corporation agrees to pay the same.
Nothing in the Bonds or in this Indenture shall be considered or construed as pledging any funds
or assets of the Corporation other than these pledged hereby or creating any liability of the
Corporation's members, employees or other agents.
Section 5.05. Conditions Precedent. Upon the date of issuance of any of the Bonds,
the Corporation hereby covenants that all conditions, acts and things required by the laws of the
State or by this Indenture to exist, to have happened or to have been performed precedent to or in
the issuance of the Bonds shall exist, have happened and have been performed.
Section 5.06. Financing Statements. The Corporation shall from time to time cause
this Indenture and the Deeds of Trust or financing statements relating thereto (including, without
limitation, continuation statements) to be filed, in such manner and at such places as may be
required by law fully to protect the security of the owners of the Bonds and the right, title and
interest of the Trustee in and to the Trust Estate or any part thereof. From time to time, as
reasonably requested by the Trustee, the Corporation shall furnish to the Trustee an Opinion of
Counsel setting forth what, if any, actions by the Corporation or Trustee should be taken to
preserve such security. The Corporation shall execute or cause to be executed any and all further
instruments as may be required by law or as shall reasonably be requested by the Trustee for
such protection of the interests of the Trustee and the Bondholders, and shall furnish satisfactory
evidence to the Trustee of filing and refiling of such instruments and of every additional
instrument which shall be necessary to preserve the lien of this Indenture and the Deeds of Trust
upon the Trust Estate or any part thereof until the principal of and premium, if any, and interest
on the Bonds issued hereunder shall have been paid. The Trustee shall execute or join in the
execution of any such further or additional instrument and file or join in the filing thereof at such
time or times and in such place or places as it may be advised by an Opinion of Counsel will
preserve the lien of this Indenture upon the trust estate or any part thereof until the aforesaid
principal shall have been paid.
Section 5.07. Construction, Equipping and Operation of the Project.
016794\0001\10596924.3 32
The Corporation shall:
(a) cause the Project to be acquired and constructed substantially in
accordance with all applicable building code and zoning requirements and substantially in
accordance with the Plans;
(b) maintain and operate the Project in accordance with all governmental
regulations and other restrictions applicable to the Project and at standards required to provide
decent and safe housing facilities at reasonable rental rates, in a sound and economical manner;
(c) provide all improvements, access roads, utilities, and other items required
in the Corporation's reasonable judgment to keep the Project fully operable for the purposes
specified herein;
(d) cause to be acquired and properly installed in the Project such items of
furniture, machinery and equipment and other items of personal property as may be necessary
and desirable in the Corporation's reasonable judgment for operation of the Project;
(e) cause insurance relating to the Project to be procured and maintained in
accordance with Section 5.18 hereof;
(~ cause to be paid when due or provide for the payment of all fees, Costs
and expenses incurred in connection with the acquisition, construction, equipping, operation and
maintenance of the Project;
(g) ask, demand, sue for, levy, recover and receive all those sums of money,
debts and other demands whatsoever which may be due, owing and payable under the terms of
any lease, Contract, order, receipt, writing and instruction in connection with the acquisition,
construction, equipping, operation and maintenance of the Project, and enforce the provisions of
any lease, contract, agreement, obligation, bond or other performance security with respect
thereto; and
(h) establish and enforce rules and regulations governing the operation, care,
repair, maintenance, management, control, occupancy, use and services of the Project.
Section 5.08. Taxes and Other Governmental Charges and Utility Charges. The
Corporation will make, or will cause to be made, promptly all payments due so long as the
Bonds are Outstanding on taxes and special assessments lawfully levied upon or with respect to
the Project, other charges lawfully made by any governmental body for public improvements that
may be or become secured by a lien on the Project, and utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Project, including but not limited to
taxes or governmental charges on any property of the Corporation brought in or upon the Project,
sales and other excise taxes on products thereof, and any taxes levied upon or with respect to
income or profits from the Project which, if not paid, would become a lien upon the Mortgaged
Property. With respect to special assessments or other governmental charges that may lawfully
be paid in installments over a period of years, with or without interest, the Corporation shall be
obligated to pay only such installments and interest as are required to be paid so long as the
Bonds are outstanding. The Corporation may in good faith contest any such taxes, assessments
016794\0001\10596924.3 33
and other charges and, in the event of such contest, may permit the items so contested to remain
unpaid during the period of the contest and any appeal therefrom, provided that the Corporation
shall first furnish to the Trustee, an Opinion of Counsel, addressed to the Trustee, that
nonpayment of any such items will not materially endanger the lien of the Indenture as to any
part of the Project and will not subject the Project or any part thereof to loss or forfeiture. In the
event the Corporation becomes obligated to pay property taxes levied upon or with respect to the
Project, the Trustee shall establish a property tax escrow account within the Operating Fund and
the Corporation shall be obligated to make monthly deposits in an amount equal to the quotient
obtained by dividing the amount of such annual property taxes by 12 in such property tax escrow
account as expenses payable pursuant to Section 4.08(a)(2).
Section 5.09. Maintenance and Management of the Project. So long as the Bonds
are outstanding, the Corporation will keep the Project and all parts thereof in good repair and
good operating condition, malting all repairs thereto and renewals and replacements thereof
necessary for this purpose, so that the Project will remain suitable and efficient for use as a
facility of the character described in and contemplated by this Indenture, or, with the consent of
the Majority Interest, such other uses as are not inconsistent with this Indenture. In furtherance
of such covenant, the Corporation has contracted with the Project Manager to manage the Project
pursuant to the Project Management Agreement dated as of July 1, 1998. The Corporation shall
keep the Project under competent and professional management at all times so long as the Bonds
are Outstanding and may appoint, reappoint, terminate or replace the Project Manager without
the consent of any Bondholders; provided, that the Corporation shall promptly notify the Trustee
and Bondholders of any such appointment, termination or replacement.
Section 5.10. Liens. Except for Permitted Encumbrances, the Corporation will not
permit any mechanics' or other liens to remain outstanding against the Project, including, but not
limited to, liens for labor or materials furnished in connection with completion of the Project, or
any improvements, repairs, renewals or replacements; provided, that if the Corporation shall first
(a) furnish to the Trustee an Opinion of Counsel, addressed to the Trustee and the owners of all
Outstanding Bonds, that nonpayment of any such items will not materially endanger the lien of
the Indenture as to any part of the Project and will not subject the Project or any part thereof to
loss or forfeiture, or (b) obtain a surety bond which shall be sufficient in all respects under
applicable law to require the lien claimant to discharge his lien against the Project, or (c) obtain
title insurance providing coverage with respect to any such lien, the Corporation may in good
faith contest any mechanics' or other liens filed or established and in such event may permit the
items contested to remain undischarged and/or unsatisfied during the period of such contest and
any appeal there from.
Section 5.11. No Liability of Corporation's Officers, Etc. Notwithstanding
anything to the contrary set forth herein, or any other agreement or instrument relating to the
Bonds or the Project, neither the Corporation's officers, directors, employees or agents, nor their
heirs, successors or assigns, shall have any liability, personal or otherwise, for payment or
performance of the covenants or obligations set forth in this Indenture or in any other agreement
or instrument securing the indebtedness and obligations created hereunder.
016794\0001\10596924.3 34
Section 5.12. Removal of Proiect Equipment. The Corporation will not remove or
permit the removal of any Project Equipment from the Project Site except in accordance with the
following provisions
(a) In any instance where the Corporation in its sound discretion determines
that any item of Project Equipment has become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary for the operation of the Project, the Corporation may, at its own
expense, remove and dispose of such item of Project Equipment. In the event the value of such
Project Equipment is in excess of $25,000, except as provided in subsection (b) hereof, the
Corporation shall substitute and install other items of machinery, equipment or other personal
property, not necessarily having the same function, provided that such removal and substitution
shall not impair the operating utility of the Project. Subject to the provisions of Section 5.13, all
substituted items shall be installed free of all liens and encumbrances, other than Permitted
Encumbrances, and shall become a part of the Project as Project Equipment. The Corporation
will cooperate with the Trustee and will pay all costs, including counsel's fees, incurred in
subjecting to the lien and security interest of this Indenture all items so substituted, and the
Trustee will cooperate with the Corporation at the Corporation's expense in securing, if
necessary, release of the property for which the substitution is made under the Deeds of Trust
and in providing such bills of sale or other documents as may be required to facilitate the
removal and substitution.
(b) Upon removal of items of Project Equipment of the type described in
subsection (a) above, and provided the operating utility of the Project is not impaired, the
Corporation may decide not to make any substitution and installation of other items of
machinery, equipment or other personal property, provided that (unless the lien of the Indenture
has been discharged under Article XIV thereof, (1) in the case of the sale of any such Project
Equipment, the Corporation shall deposit the sale proceeds in the Redemption Account, and (2)
in the case of a trade-in of any such Project Equipment for items not to be utilized as a part of the
Project, the Corporation shall account for the credit received by it in the trade-in by depositing an
equivalent amount in the Redemption Account. The Trustee will cooperate with the Corporation
at the Corporation's expense in securing a release of the property to be removed if required under
this Indenture and in securing such bills of sale or other documents as may be required to
facilitate the removal and disposition.
(c) The Corporation shall promptly report to the Trustee by Corporation
Representative's certificate the removal of any Project Equipment pursuant to subsections (a) or
(b) above, and amounts required to be accounted for by the Corporation, if any, shall promptly
be paid to the Trustee for deposit in the Redemption Account after any substitution, sale, trade-in
or other disposition; provided that no certificate need be given or payment made for the removal
and disposition of any item or items of Project Equipment having a market value of less than
$5,000 provided that the market value for any such uncertificated dispositions shall not exceed
$10,000 in any Fiscal Year. When required pursuant to this subsection (c), the certificate
submitted shall specify the items of the Project Equipment removed, the items of property
substituted therefor, if any, and the amount, if any, required to be paid to the Trustee pursuant to
the provisions of this Section 5.12. Where such certificate indicates that substitute items of
property have been acquired and installed, the certificate shall be accompanied by (i) the
financing statement with respect to such substitute items of property and (ii) a certificate of the
016794\0001\10596924.3 3 $
Corporation Representative stating that all steps requisite to perfection of the security interests of
the Trustee in and to such substitute items of Corporation property under this Indenture have
been duly taken. The Corporation will execute all instruments advisable in the Opinion of
Counsel for perfection of the respective security interests as aforesaid.
(d) Any amounts paid by the Corporation to the Trustee for deposit in the
Redemption Account pursuant to the provisions of this Section 5.12 shall be deposited by the
Trustee in the Redemption Account and shall be used on the next succeeding Interest Payment
Date on which Series 2013A Bonds mature or are subject to mandatory sinking fund redemption
toward the payment of the principal of the Series 2013A Bonds and payable, or subject to
mandatory sinking fund redemption, on such Interest Payment Date.
Section 5.13. Installation of the Corporation's Equipment. Nothing in this
Indenture shall prevent the Corporation, after delivery of this Indenture, from purchasing items
to be installed pursuant to this Section 5.13 under a conditional sale or lease-purchase contract,
or subject to a vendors lien or security agreement, as security for the unpaid portion of the
purchase price thereof, provided that no such lien or security interest shall attach to any part of
the Project.
Section 5.14. Tax Covenants. The Corporation covenants with the owners of the
Bonds that, notwithstanding any other provision of this Indenture or any other instrument, it will
make no investment or other use of the proceeds of the Bonds which would cause the Bonds to
be arbitrage proceeds of the Bonds under Section 148 of the Code, and the regulations
thereunder, and it further covenants that it will comply with the requirements of such Section and
regulations. The foregoing covenants shall extend throughout the term of the Bonds, to all funds
created under this Indenture and all moneys on deposit to the credit of any such fund, and to any
other amounts which are Bond proceeds for purposes of Section 148 of the Code, and the
regulations thereunder.
The financing, acquisition, construction, and installation of the Project under the terms
and conditions provided for in this Indenture are necessary, convenient, in furtherance of and
will at all times be used in connection with the Corporation's governmental purposes and
functions and is in the best interests of the citizens of the Town, no portion of the Project will be
used directly or indirectly in any trade or business carried on by any person other than a
governmental unit of the State of Colorado and no portion of the proceeds of the Bonds will be
loaned directly or indirectly to any nongovernmental person.
Each apartment unit included in the Project shall be leased only to Qualified Renters.
The Corporation shall require that each Qualified Renter shall execute a rental agreement in
respect of a rental of a dwelling accommodation representing his or her status as a "Qualified
Renter" hereunder and representing that he or she shall not rent all or any part of such dwelling
accommodation or engage in any other business activity on or in such apartment unit. To the
extent necessary to assure continuing exemption from federal income tax of interest on the
Bonds, the Corporation shall take all actions to comply with legislation which requires setting
aside units or rentals to individuals or families of low or moderate income within the meaning of
the Code.
016794\0001\10596924.3 36
The Corporation will not sell, lease or assign its interest in the Project (except pursuant to
the Deeds of Trust) or enter into any management agreement for the Project or permit any other
person to use the Project if such management agreement or use would cause the Bonds to
become "private activity bonds" under Section 141(a) of the Code. The Corporation will not
take ally action which would cause the interest on the Series 1998B, 1998C and 2013A Bonds to
be included in gross income for federal income tax purposes.
Nothing in this Section 5.14 shall prevent the Corporation from issuing taxable Bonds,
the interest on which is not intended to be excluded from gross income for purposes of federal
income tax.
Section 5.15. Additional Proiects. The Corporation agrees that it shall incur no
indebtedness whether or not related to the Project (except to the Town and owners of
Subordinate Bonds under Section 10.02 as herein provided), or expand or materially alter the
Project or acquire or construct additional facilities riot a pant of the Project, without the consent
of the Majority Interest or as otherwise specifically herein provided.
Section 5.16. Change of Ownership. The Corporation agrees that it will not consent
to any change in ownership of the Project without the consent of owners of a Majority Interest
and the Town and an Opinion of Bond Counsel to the effect that such change in ownership will
not adversely affect the exclusion of interest on the Bonds from gross income for federal income
tax purposes.
Section 5.17. Environmental Matters.
(a) The Corporation covenants and agrees that it will not knowingly conduct
or knowingly allow to be conducted any business, operations or activity on its facilities, or
employ or use its facilities to manufacture, treat, store (except with respect to storage in the
ordinary operation of the Project), or dispose of any hazardous substance (including, without
limitation, petroleum, its derivatives, crude oil or any fraction thereof , or any other substance
the disposal of which is prohibited, controlled or regulated under applicable law, or which poses
a threat or nuisance to safety, health or the environment, including, without limitation, any
business, operation or activity which would violate the Resource Conservation and Recovery Act
of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6901
et seq. ("RCRA"), or cause, or knowingly allow to be caused, a release or threat of release, of a
nondiminimis quantity of hazardous substances on its facilities of the sites thereof as defined by,
and within the ambit of, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. § 9601 et seq., or any similar state, Town, regional or local statute providing for
financial responsibility for cleanup for the release or threatened release of substances provided
for thereunder,
(b) The Corporation covenants and agrees that it shall take all appropriate
response actions, including any removal and remedial actions required by any governmental
entity, in the event of a release, emission, discharge or disposal of hazardous substances in, on,
or under or at its facilities and the site thereof for which the Corporation is liable under state
federal or local environmental rules or regulations.
016794\0001\10596924.3 37
(c) The Corporation shall, as soon as practical and in any event within 15 days
of Corporation's receipt, notify the Trustee of any notice, letter, citation, order, warning,
complaint, claim or demand that (i) the Corporation or any tenants have violated any federal,
state, regional, Town or local environmental, health or safety statute, law, rule, regulation,
ordinance, judgment or order; (ii) there has been a release, or there is a threat of release, of
hazardous substances (including, without limitation, petroleum, its byproducts, crude oil or any
fraction thereo fl from facilities or the site thereof which requires notice to federal, state, or local
government entities under any applicable environmental law; (iii) the Corporation or any tenants
may be or are liable, in whole or in part, for the costs or cleaning up, remediating, removing or
responding to a release of hazardous substances (including, without limitation, petroleum, its
byproducts, crude oil or any fraction thereof ; or (iv) any of the facilities or the sites thereof are
subject to a lien in favor of any governmental entity for any environmental law, rule or
regulation arising from or costs incurred by such governmental entity in response to a release of
a hazardous substance (including, without limitation, petroleum, its byproducts, crude oil or any
fraction thereof .
(d) The Corporation hereby grants, and will cause any tenants to grant, to the
Trustee, its agents, attorneys, employees, consultants and contractors an irrevocable license and
authorization upon reasonable notice to enter upon and inspect the Project at reasonable times
and perform such tests, including, without limitation, subsurface testing, soils and ground water
testing, and other tests which may physically invade the Project, as the Trustee reasonably
determines are necessary to protect or realize upon the lien created by the Deeds of Trust;
provided that the Trustee and the owners of the Bonds agree to minimize any disruption to the
Project arising from tests, and the Corporation shall not be liable to the Trustee or owners of the
Bonds for any claims, losses, liabilities, damages (whether special, consequential or otherwise),
settlements, penalties, interest and expenses (including any professional fees and expenses)
which may be suffered or incurred by any of them relating to, arising out of or resulting from or
by reason of the gross negligence or willful misconduct of Trustee, its agents, attorneys,
consultants and contractors.
(e) The Corporation agrees to protect, defend, hold harmless and indemnify
the Trustee, the Town, and each owner of Bonds, for, from, against and in respect of any and all
claims, losses, liabilities, damages (whether special, consequential or otherwise), settlements,
penalties, interest and expenses (including any professional fees and expenses) which may be
suffered or incurred by any of them relating to, arising out of or resulting from or by reason of
any and all present or future liabilities or obligations under any current federal, state or local law
(including common law), and regulations, orders and decrees relating to pollution control,
environmental protection, health, welfare, public safety, personal injury, property damage or any
other type of claim relating to the Project, with respect to: (i) the handling, storage, use,
transportation or disposal of any hazardous substance by the Corporation in or from the Project;
(ii) the handling, storage, use, transportation or disposal (whether or not known to the
Corporation) of any hazardous substance, which hazardous substance was a product, byproduct
or otherwise resulted from operations conducted on the Project; or (iii) any intentional or
unintentional emission, discharge or release (whether or not known to the Corporation) of any
hazardous substance into or upon the air, surface water, ground water or land or any
manufacturing, processing, distribution, use, treatment, disposal, transport or handling of such
hazardous substance.
016794\0001\10596924.3 3 g
Section 5.18. Insurance. The Corporation shall obtain and maintain the following
insurance and pay all related premiums as they become due:
(a) Casualty. Insurance of the Project against damage or loss by fire,
lightning, and other perils, on an all-risks basis, in an amount equal to the full replacement value
of the improvements, without coinsurance or deducting for depreciation ("Casualty
Insurance").
(b) Liability. Commercial general liability insurance protecting the
Corporation against loss or losses from liability imposed by law or assumed in any agreement,
document, or instrument and arising from bodily injury, death, or property damage with a limit
of liability satisfactory to the Bondholder Representative per occurrence and general aggregate.
Also, "umbrella" excess liability insurance in an amount satisfactory to the Bondholder
Representative. Such policies must be written on an occurrence basis so as to provide blanket
contractual liability, broad form property damage coverage, and coverage for products and
completed operations. In addition, there shall be obtained and maintained business motor
vehicle liability insurance protecting the Corporation against loss or losses from liability relating
to motor vehicles owned, non-owned, or hired used by the Corporation, any contractor, any
subcontractor, or any other Person in any manner related to the Project with a limit of liability
satisfactory to the Bondholder Representative (combined single limit for personal injury
(including bodily injury and death) and property damage).
(c) Flood. A policy or policies of flood insurance in the maximum amount of
flood insurance available with respect to the Project under the Flood Disaster Protection Act of
1973, as amended, unless there is presented evidence satisfactory to the Bondholder
Representative that no portion of the Project is located within an area identified by the U.S.
Department of Housing and Urban Development as having special flood hazards.
(d) Other. All policies for required insurance shall be in form and substance
satisfactory to the Bondholder Representative in its absolute and sole discretion. Unless
otherwise agreed by Purchaser in advance, required insurance may not be provided under any
blanket insurance policy. All required insurance shall be procured and maintained in financially
sound and generally recognized responsible insurance companies selected by the Corporation
and approved by the Bondholder Representative. Such companies must be authorized to write
such insurance in the State of Colorado, Each company shall be rated "A-TX" or better by A.M.
Best Co., in Bests' Key Guide, or such other rating acceptable to Purchaser in Purchaser's
absolute and sole discretion. Coverage under such policies may not be limited due to the acts of
the Corporation. The policies shall provide for at least thirty (30) days prior written notice of the
cancellation or modification thereof to the Bondholder Representative.
(e) Evidence. The original or a certified copy of each insurance policy or, if
acceptable to the Bondholder Representative in its absolute and sole discretion, certificates of
insurance evidencing that such insurance is in full force and effect, shall be delivered to
Purchaser, together with proof of the payment of the premiums thereof. At least thirty (30) days
prior to the expiration of each such policy, the Corporation shall furnish the Bondholder
Representative evidence that such policy has been renewed or replaced in the form of the
original or a certified copy of the renewal or replacement policy or, if acceptable to the
016794\0001\10596924.3 39
Bondholder Representative in its absolute and sole discretion, a certificate reciting that there is in
full force and effect, with a term covering at least the next succeeding calendar year, insurance of
the types and in the amounts required in this Section 5.18.
ARTICLE VI
DAMAGE, DESTRUCTION AND NO CONDEMNATION
Section 6.01. Corporation to Repair, Replace, Rebuild or Restore. (a) If all or
any part of the Project is taken by eminent domain or under the threat thereof or destroyed or
damaged, the Corporation and the Trustee shall follow the procedures set forth in Section 4.05
hereof.
(b) The Corporation shall not, by reason of the payment of any costs of repair,
rebuilding, replacement or restoration, be entitled to any reimbursement from the Trustee or any
abatement or diminution of the Payments or other sums payable by the Corporation hereunder.
Any balance of Net Loss Proceeds remaining after payment of all costs of any repair, rebuilding
replacement or restoration shall be paid into the Revenue Fund.
(c) All buildings, improvements and equipment acquired in the repair,
rebuilding, replacement or restoration of the Project, together with any interests in real property
necessary for such restoration, shall be deemed a part of the Project and available for use and
occupancy by the Corporation without the payment of any amounts other than those provided in
Article IV hereof, to the same extent as if they had been specifically described in this Indenture;
provided that no real property, interest in real property, buildings, improvements or equipment
shall be acquired subject to any lien or encumbrance, other than Permitted Encumbrances.
(d) The Net Loss Proceeds of any (1) insurance or portion thereof attributable
to damage or destruction separately incurred by property of the Corporation not constituting part
of the Project, or (2) condemnation award or portion thereof separately awarded for damages to
or taking of the property of the Corporation not constituting part of the Project shall be and
remain at all times the property of the Corporation not constituting part of the Project.
Section 6.02. Cooperation of the Trustee. The Trustee will cooperate fully with the
Corporation, at the Corporation's expense, in filing any proof of loss with respect to any
insurance policy covering casualties referred to in Section 6.01 and Section 4.05 hereof, in the
handling and conduct of arty litigation arising with respect thereto, and in the handling and
conduct of any prospective or pending condemnation proceedings affecting the Project or any
part thereof, and will, to the extent it may lawfully do so permit the Corporation to litigate in any
such litigation or proceeding in the name and on behalf of the Trustee. Provided that no Event of
Default has occurred and is continuing hereunder, the Trustee will not voluntarily settle or
consent to the settlement of any proceeding arising out of any insurance claim, or any
prospective or pending condemnation proceeding, with respect to the Project or any part thereof
without the prior written consent of the Corporation.
016794\0001\10596924.3 4~
ARTICLE VII
CORPORATION'S OPTIONS
Section 7.01. Easements and Release of Real Property. The Corporation may with
the consent of a Majority Interest (a) convey an easement affecting, or fee title to, any part of the
Project Site to a corporate utility or public body, and the same shall be released from the lien of
this Indenture or (b) direct that the Trustee subordinate the lien of this Indenture thereto, upon
written certification by an Independent Engineer that the conveyance will not impair the
usefulness of the Project for the purposes contemplated in this Indenture or the Net Revenues.
No such conveyance or subordination shall result in any abatement of Payments or other sums
payable by the Corporation under this Indenture. The Corporation shall notify the Bondholders
of the Series 2013A Bonds of any such conveyance or subordination. No such conveyance or
subordination shall become effective until the following items are filed with the Trustee and the
Trustee has executed the instrument described in paragraph (iv) below:
(i) a copy of the conveyance or subordination document executed or to be
executed by the Corporation or the Trustee;
(ii) a plat or survey of the Project Site, prepared and certified by a professional
land surveyor, showing the real property to be conveyed or subjected to the easement as
described in the conveyance, and the location in relation thereto of all buildings, structures and
permanently installed equipment on the land, and all other easements, roads, tracks and utility
installations;
(iii) the certificate of the Independent Engineer referred to above; and
(iv) any instrument to be executed by the Trustee, and a copy thereof for the
files of the Trustee, releasing the land from the lien of this Indenture and the Deeds of Trust or
establishing the easement as a Permitted Encumbrance under the Indenture, as the case maybe.
Section 7.02. Prepayment of Payments. So long as all amounts which have become
due pursuant to Section 5.04 hereof have been paid and the Corporation is not in default
hereunder, and so long as any Bonds to be redeemed with proceeds of the prepayment described
in this Section 7.02 are subject to redemption, the Corporation, with the consent of a Maj ority
Interest, may pay in advance all or part of the amounts to become due pursuant to Section 5.04 if
not less than 45 days prior to such prepayment the Corporation (i) gives the Trustee notice of its
intent to prepay, (ii) deposits with the Trustee an amount sufficient (as determined by a report of
a certified public accountant) to provide the redemption price of the Bonds to be prepaid on the
date established, in accordance with this Indenture, for redemption, and (iii) directs the Trustee
to redeem the Bonds. Such prepayment may result in a prepayment penalty being imposed upon
the Corporation in accordance with the terms and conditions of the Bank Supplemental
Agreement.
Section 7.03. Satisfaction of Payments. If at any time the Corporation deposits with
the Trustee for deposit to the Bond Fund an amount of cash as described in Section 7.02 of this
Indenture which, taking into account any balance which may then be on hand in the Bond Fund,
016794\0001\10596924.3 41
is sufficient to pay all of the then Outstanding Bonds in accordance with Section XIV of the
Indenture, and to pay such interest thereon as is required, and to pay all fees and charges of the
Trustee which are due or to become due on or before the date on which the last of the Bonds to
be so discharged may be redeemed, under circumstances not otherwise resulting in termination
of this Indenture, and if the Corporation is not at the time otherwise in default hereunder, subject
to the rights of the Town under the Project Agreement and the requirements of Section 14.02
hereof, the Corporation shall be entitled to use and occupy the Project from the date on which
such aggregate funds are in the hands of the Trustee until the Bonds are no longer outstanding or
its earlier termination under the provisions hereof, without the further payment of Payments but
otherwise on the terms and conditions herein set forth, provided, however, that the Corporation
shall not be relieved of its obligations under Sections 9.02, 9.03, 5.04(c), and 4.06 hereof.
Section 7.04. Termination Upon Retirement of Bonds. At any time when no
Bonds remain Outstanding, or if the conditions specified in Section 7.03 hereof for the
satisfaction of Payments then exist, and arrangements satisfactory to the Trustee have been made
for the discharge of all other accrued liabilities under this Indenture, this Indenture shall
terminate, provided, however, that the Corporation shall not be relieved of its obligations under
Sections 5.04(c) and 4.06 hereof,
ARTICLE VIII
SECURITY FOR AND INVESTMENT OR DEPOSIT OF FUNDS
Section 8.01. Deposits and Security Therefor. All moneys received by the Trustee
under this Indenture shall, except as hereinafter provided, be deposited as trust funds with the
Trustee, until or unless invested or deposited as provided in Section 8.02. All deposits with the
Trustee (whether original deposits under this Section or deposits or re-deposits in time accounts
under Section 8.02) shall be secured by obligations described in Section 8.02(i), (ii) or (iii)
hereof or by the Federal Deposit Insurance Corporation.
Section 8.02. Investment or Deposit of Funds. The Trustee shall, at the request and
written direction of the Corporation so long as there is no Event of Default under Section 10.01
hereof, invest moneys held in any Fund or Account established under this Indenture exclusively
in the types of obligations described in this Section, or deposit such moneys in time accounts
(including accounts evidenced by time certificates of deposit), which may be maintained with the
commercial department of the Trustee or with its affiliate, secured as provided in Section 8.01
above and under the terms permitted by applicable law; provided that all investments shall
mature, or be subject to redemption by the owner at not less than the principal amount thereof or
the cost of acquisition, whichever is lower, and all deposits in time accounts shall be subject to
withdrawal not later than the date when the amounts will foreseeably be needed for purposes of
this Indenture. The investments permitted under this Section shall include: (i) obligations issued
or the timely payment of principal and interest on which is fully guaranteed by the United States
of America; (ii) obligations issued or the timely payment of principal and interest on which is
fully guaranteed by any person controlled or supervised by and acting as an instrumentality of
the United States of America pursuant to authority granted by the Congress of the United States;
(iii) obligations issued or guaranteed by any state of the United States or the District of Columbia
rated within the highest rating category by Standard & Poor's Corporation and Moody's
016794\0001\10596924.3 42
Investors Service, Inc.; (iv) commercial or finance company paper receiving the highest rating of
Standard & Poor's Corporation and Moody's Investors Service, Inc.; (v) bankers' acceptances
drawn on and accepted by commercial banks having combined capital and surplus of not less
than $50,000,000; (vi) repurchase agreements fully secured by obligations of the type specified
in (i) and (ii) above; (vii) certificates of deposit issued by commercial banks having combined
capital and surplus of not less than $50,000,000; (viii) money market mutual funds invested
primarily in (i), (ii) or (iii), above and rated in one of the two highest rating categories by
Standard & Poor's Corporation and Moody's Investors Service, Inc.; (ix) investment agreements
issued by financial institutions having an unsecured credit rating in one of the top two rating
categories by Moody's Investors Service, Inc. or Standard & Poor's Corporation and providing
for collateralization or replacement in order to maintain such rating in the event that the credit
rating of the issuer of such agreement is withdrawn or reduced below such categories; and (x)
any other investments approved by the Majority Interest. All repurchase agreements shall be
with (a) a registered broker/dealer that is a Primary Dealer or is subject to the Securities
Investors' Protection Corporation jurisdiction, or (b) any bank which is a member of the Federal
Deposit Insurance Corporation and which has combined capital, surplus and undivided profits of
not less than $50,000,000, provided: (1) the securities are held by the Trustee or a third party
acting solely as agent for the Trustee which is (a) a Federal Reserve bank, or (b) a bank which is
a member of the Federal Deposit Insurance Corporation and which has combined capital, surplus
and undivided profits of not less than $25,000,000; (2) a perfected first security interest under the
Uniform Commercial Code, or book entry procedures prescribe at 31 C.F.R. 306.1 et seq, or 31
C.F.R. 350.00 et seq. in such securities is created for the benefit of the Trustee; (3) the
percentage of the fair market value of the securities in relation to the amount of the repurchase
obligation, including principal and interest, is equal to at least: (a) 105%, if the financial
institution has an uninsured, unsecured and unguaranteed obligation rated in one of the top two
rating categories by either Moody's Investors Service, Inc. or Standard & Poor's Corporation, or
(b) 116%, if the financial institution does not carry the ratings specified in (a) above, with the
additional requirements that the repurchase agreement will have a term to maturity of thirty days
or less, and the Trustee will value the collateral securities no less frequently than weekly and will
liquidate the collateral securities if any deficiency in the required collateral percentage is not
restored within two business days of such valuation.
Interest and income received upon investment of moneys in the following funds and
accounts shall be deposited in the Revenue Fund, the Excess Investment Earnings Fund and the
Surplus Account. Interest and income received upon investment of moneys in the Senior Bond
Account and the Subordinate Bond Account of the Bond Fund shall be deposited in the Senior
Bond Account of the Bond Fund. Otherwise, the interest and income received upon such
investments of any Fund or Account and any profit or loss resulting from the sale of any
investment shall be added or charged to such Fund or Account. The Corporation shall restore to
the appropriate Fund or Account all amounts necessary to cover all losses resulting from the sale
of any investments.
Any investment acquired with proceeds of the Bonds, including investment in a
guaranteed investment contract, should be acquired at fair market value within the meaning of
Treas. Reg. § 1148-5(d)(6).
016794\0001\10596924.3 43
REDEMPTION OF BONDS
Section 9.01. Bonds Subiect to Redemption; Selection of Bonds to be Called for
Redemption. The Bonds are subject to redemption prior to maturity as provided in the form of
Bonds attached hereto as Exhibit C and incorporated herein. Unless otherwise provided in
respect of a series of Bonds, if less than all the Bonds of a series or of a maturity are to be
redeemed, the particular Bonds of such series or maturity to be called for redemption shall be
selected by lot by the Trustee in any manner deemed fair and reasonable by the Trustee and in
the case of optional or extraordinary mandatory redemptions, in such order of maturities as shall
be specified by the Corporation Representative so as to best maintain level annual debt service
on the Series 2013A Bonds, Subordinate Bonds and any Additional Bonds issued on a parity
therewith, not including the final payment of principal.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Bonds shall relate, in the case of any Bond redeemed or to be
redeemed only in part, to the portion of the principal of such Bond which has been or is to be
redeemed.
Section 9.02. Notice of Redemption. One Business Days' notice to the Owners of a
series of Bonds shall be required in connection with either optional redemptions or mandatory
redemptions of the Subordinate Bonds and optional redemptions of the Series 2013A Bonds and
Additional Bonds secured on a parity therewith. When required to redeem Bonds under any
other provision of this Indenture, the Trustee shall cause notice of the redemption to be given by
first-class mail, postage prepaid, mailed to all registered owners of Bonds to be redeemed at their
registered address not more than 30 days nor less than 15 days prior to the redemption date. In
addition, the Trustee shall send a copy of such notice by registered or certified mail or overnight
delivery service, return receipt requested, postage prepaid, to each registered securities
depository and nationally recognized information service that disseminates redemption
information, sent at least two Business Days in advance of the mailing of notice to Bondholders.
In addition, the Trustee shall at all reasonable times make available to any interested party
complete information as to Bonds which have been redeemed or called for redemption. Any
such notice shall be given in the name of the Corporation, shall identify the Bonds to be
redeemed (and, in the case of partial redemption of any Bonds, the respective principal amounts
thereof to be redeemed), shall specify the redemption date and the redemption price, shall state
that on the redemption date the Bonds called for redemption will be payable at the principal
corporate trust office of the Trustee that from that date interest will cease to accrue. Failure to
mail any notice or defect in the mailed notice or in the mailing thereof in respect of any Bond
shall not affect the validity of the redemption of any other Bond.
If at the time of mailing of notice of an optional redemption there shall not have been
deposited with the Trustee moneys sufficient to redeem all the Bonds called for redemption, such
notice may state that it is conditional, that is, subject to the deposit of the redemption moneys
with the Trustee not later than the opening of business five Business Days prior to the scheduled
redemption date, and such notice shall be of no effect unless such moneys are so deposited. In
the event sufficient moneys are not on deposit on the required date, then the redemption shall be
016794\0001\10596924.3 44
canceled and on such cancellation date notice shall be mailed to the holders of such Bonds, to be
redeemed in the manner provided in the form of Bonds attached hereto as Exhibit C and
incorporated herein.
Section 9.03. Payment of Redemption Price. If (a) unconditional notice of
redemption has been duly provided or duly waived by the owners of all Bonds called for
redemption or (b) conditional notice of redemption has been so given or waived and the
redemption moneys have been duly deposited with the Trustee, then in either case the Bonds
called for redemption shall be payable on the redemption date at the applicable redemption price.
Payment of the redemption price together with the premium, if any, and accrued interest shall be
made by the Trustee to or upon the order of the owners of the Bonds called for redemption upon
surrender of such Bonds. The redemption price and premium, if any, in respect of Bonds, the
expenses of giving notice and any other expenses of redemption (except accrued interest), shall
be paid out of the Fund from which redemption is to be made or from other moneys which the
Corporation makes available for such purpose. Accrued interest shall be paid out of the Bond
Fund.
Section 9.04. Bonds Redeemed in Part. Any Bond which is to be redeemed only in
part shall be surrendered at a place stated for the surrender of Bonds called for redemption in the
notice provided for in Section 9.02 (with due endorsement by, or a written instrument of transfer
in form satisfactory to the Trustee duly executed by, the owner thereof or his attorney duly
authorized in writing) and the Corporation shall execute and the Trustee shall authenticate and
deliver to the owner of such Bond without service charge, a new Bond or Bonds, of any
authorized denomination as requested by such owner in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Bond so surrendered.
Section 9.05. Bond Redemption Fund for Refunding Issues. Whenever the
Corporation issues Bonds hereunder for refunding purposes, the Corporation may, by
supplemental indenture authorizing the Bonds, direct the Trustee to establish a separate bond
redemption fund and to deposit therein the proceeds of the refunding Bonds. The supplemental
indenture shall specify the investment and application of amounts so deposited including,
without limitation, the transfer thereof to any other fiscal agent or trustee of the Corporation and
the time and conditions for such transfer.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default Defined. Subject to the limitation that nonpayment
of (i) principal of or premium, if any, or interest on any Subordinate Bond or (ii) any amounts
owing to the Town pursuant to the exercise of its rights under Section 10.02 or Section 14.02
hereof or under the Project Agreement shall not constitute alone an Event of Default while any
Series 2013A Bonds or Additional Bonds secured on a parity therewith are Outstanding or
remain unpaid, each of the following shall be an "Event of Default" hereunder:
016794\0001\10596924.3 45
A. If payment of the principal or redemption price of, or any premium on,
any Bond is not made when it becomes due and payable at maturity or upon call for redemption;
or
B. If the required payment is not made into any sinking fund established
pursuant to this Indenture when the same is dtie and payable; or
C. If the payment of any installment of interest on any Bond is not made
when it becomes due and payable; or
D. If any Monthly Payment required under the first paragraph of Section 5.04
hereof with respect to principal of or interest on any Series 2013A Bond or any Additional Bond
secured on a parity therewith is not made when such Monthly Payment is due; or
E. If a default shall be made in the due and punctual observance or
performance of any covenant, contract or other provision in the Bonds, the Deeds of Trust, or
this Indenture contained (other than as referred to in A, B, or C of this Section) and such default
shall continue for a period of 30 days after written notice specifying such default and requiring
the same to be remedied shall have been given to the Corporation by the Trustee; or
F. If an "Event of Default' as defined in the Deeds of Trust occurs; or
G. If a default occurs under the Bank Supplemental Agreement; or
H. If the Corporation shall
(i) admit in writing its inability to pay its debts generally as they
become due; or
(ii) file a petition in bankruptcy to be adjudicated a voluntary bankrupt
or file a similar petition under any insolvency act, or approve or consent to any
such petition filed against it; or
(iii) make an assignment for the benefit of its creditors; or
(iv) consent to the appointment of a receiver of itself or of the whole or
any substantial part of its property; or
(v) on a petition in bankruptcy filed against it, be adjudicated a
bankrupt or if a court of competent jurisdiction shall enter an order or decree
appointing a receiver or trustee of the Corporation or of the whole or substantially
all of its property, and such adjudication, order or decree shall not be vacated or
set aside or stayed within 30 days from the date of the entry thereof.
Any Event of Default described in Sections 10.01(E), (F) or (G) hereof may be waived by
the Trustee with the consent of the Majority Interest if the Corporation is proceeding with all due
diligence to cure such default and the Corporation is not otherwise in default hereunder. Any
016794\0001\l OS96924.3 46
other F,vent of Default hereunder shall be waived by the Trustee only upon direction of the
Majority Interest.
Except for (i) a default under A, B, C, or D of this Section 10.01, or (ii) the failure of the
Corporation to file any financial statements, documents or certificates specifically required to be
filed with the Trustee pursuant to the provisions of this Indenture or the Deeds of Trust, or (iii)
any other event of which the "responsible trust officer" has "actual knowledge" and which event,
with the giving of notice or lapse of time or both, would constitute an Event of Default under this
Indenture, the Trustee shall not be deemed to have notice of any default or event unless
specifically notified in writing of such event by the Corporation, or the owners of at least 25% in
aggregate outstanding principal amount of the Series 2013A Bonds and any Additional Bonds
secured on a parity therewith. The Trustee shall immediately give notice to the Town and the
owners of the Series 2013A Bonds of the occurrence of any default or event of which it has, or is
deemed to have, notice pursuant to the foregoing provisions. As used above, the term
"responsible trust officer" means the trust officer of the Trustee assigned to supervise this
Indenture, and "actual knowledge" means the actual fact or statement of knowing, without any
duty to make any investigation with regard thereto.
Section 10.02. Acceleration and Annulment Thereof. Subject to Section 10.06, if
any Event of Default occurs, the Trustee shall, subject to the rights of the Town set forth in this
Section 10.02, upon request of the Majority Interest, by notice in writing to the Corporation
declare the principal of all Bonds then putstanding to be immediately due and payable; and upon
such declaration the said principal, together with premium, if any, and interest accrued thereon,
shall become due and payable immediately at the place of payment provided therein, anything in
the Indenture or in said Bonds to the contrary notwithstanding; provided that, the principal of all
Bonds shall be deemed to be due and payable without declaration or further notice immediately
upon the occurrence of an Event of Default specified in Section 10.01(H) hereof.
If, after the principal of the Series 2013A Bonds and Additional Bonds issued on a parity
therewith has been so declared to be due and payable, all arrears of interest upon such Bonds
(and interest on overdue installments of interest at the rate borne by such Bonds) are paid or
caused to be paid by the Corporation, and the Corporation also performs or causes to be
performed all other things relating to such Bonds in respect to which it may have been in default
hereunder and pays or causes to be paid any amounts that may have previously been paid by the
Town to cure such default with interest thereon at the highest rate then borne by the Bonds and
the reasonable charges of the Trustee, the Town and the Bondholders, including reasonable
attorney's fees, then, and in every such case, the Majority Interest, by notice to the Corporation
and to the Trustee, may annul such declaration and its consequences and such annulment shall be
binding upon the Trustee and upon all owners of Bonds issued hereunder; but no such annulment
shall extend to or affect any subsequent default or impair any right or remedy consequent
thereon.
Notwithstanding the foregoing, upon the occurrence of an Event of Default, the Trustee
shall within five days of such occurrence, provide notice to the Town and the owners of the
Subordinate Bonds, and the Town (and if the Town fails to act, the owners of the Subordinate
Bonds) shall have the option, to cure such Event of Default within 90 days after receipt of notice;
provided that Bonds may still be declared due and payable as provided in this Indenture prior to
016794\0001\10596924.3 47
the expiration of such 90-day period, but such declaration shall be immediately annulled in the
event the Town or any owner of Subordinate Bonds cures the Event of Default within the 90-day
period. Amounts advanced by the Town or any owner of Subordinate Bonds as a result of the
exercise of this option to cure monetary defaults hereunder and reasonable, direct expenses of the
Town and the owners of the Subordinate Bonds advanced to cure non-monetary defaults
hereunder shall be deemed to be Indebtedness of the Corporation to the Town or any owner of
Subordinate Bonds, subordinate to the Series 2013A Bonds and Additional Bonds issued on a
parity therewith but entitled to payment from the Revenue Fund on a basis superior to the
Subordinate Bonds pursuant to Section 4.06 hereof. Such Indebtedness shall not be secured by
the Deeds of Trust and, so long as the Series 2013A Bonds or any Additional Bonds secured on a
parity therewith are outstanding, the Town or any owner of Subordinate Bonds shall not sue for
unpaid amounts on such Indebtedness without the written consent of the Majority Interest.
Nothing herein shall be construed to create any obligation of the Town or any owner of
Subordinate Bonds to cure any Event of Default.
Section 10.03. Leal Proceeding by Trustee. If any Event of Default has occurred
and is continuing, the Trustee in its discretion may, and upon the written request of the Majority
Interest and receipt of indemnity to its satisfaction, shall, in its own name, or in combination with
the Corporation:
A. By suit, action or proceeding at law or in equity, enforce all rights of the
Bondholders, including the right to require collection of the amounts payable under the Bonds
and to require the carrying out of any other provisions of this Indenture and the Deeds of Trust
for the benefit of the Bondholders;
$. Bring suit upon the Bonds;
C. By action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Bondholders; and
D, Cause the Corporation to retain, at the Corporation's expense, a
Management Consultant to review the Project for the purpose of recommending improvements
thereto.
Section 10.04. Discontinuance of Proceedings by Trustee. If any proceeding taken
by the Trustee on account of any Event of Default is discontinued or is determined adversely to
the Trustee, the Corporation, the Trustee and the Bondholders shall be restored to their former
positions and rights hereunder as though no such proceeding had been taken, but subject to the
limitations of any such adverse determination.
Section 10.05. Bondholders Mav Direct Proceedings. The Majority Interest shall
have the right, by an instrument or concurrent instruments in writing delivered to the Trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the Trustee
hereunder provided that such directions shall not be otherwise than in accordance with the law or
the provisions of this Indenture. Without limitation of the foregoing, any such remedial
proceeding may include forbearance or non-action on the part of the Trustee, the acceptance by
the Trustee, as beneficiary under the Deeds of Trust, of a deed in lieu of foreclosure, the sale of
016794\0001\105969243 4g
the property covered by the Deeds of Trust free of the lien thereof for an amount less than the
amounts due with respect to the Bonds and the waiver of claims or the granting of a covenant not
to sue.
Section 10.06. Limitations on Actions by Bondholders. No Bondholders shall have
any right to pursue any remedy hereunder unless:
(a) the Trustee shall have been given written notice of an Event of Default,
(b) the owners of at least 25% in principal amount of the Series 2013A Bonds
and any Additional Bonds on a parity therewith Outstanding (or, if no Series 2013A Bonds are
Outstanding, at least 25% in principal amount of the Series 1998B Subordinate Bonds and Series
1998C Subordinate Bonds and all Additional Bonds secured on a parity with both Series of
Bonds) respecting which there has been an Event of Default shall have requested the Trustee, in
writing, to exercise the powers hereinabove granted or to pursue such remedy in its or their name
or names,
(c) the Trustee shall have been offered indemnity satisfactory to it against
costs, expenses and liabilities such satisfaction in all respects subject to Section 10.13 hereof,
and
(d) the Trustee shall have failed to comply with such request within a
reasonable time;
provided, however, that nothing herein shall preclude the owner of any Series 2013A Bond with
respect to which an Event of Default under Section 10.01 A, B or C has occurred and is
continuing from bringing an action at law to enforce the right of payment on such Bond,
provided, that the right of any individual Bondholder to receive principal or interest on its Bond
maybe amended pursuant to Section 13.02 hereof.
Notwithstanding the foregoing or any other provision of this Indenture, the Owners of a
Majority Interest shall have the right to take any and all actions to enforce this Indenture and the
Deeds of Trust in their own name or, upon providing reasonable indemnity for costs or liabilities
arising therefrom, in the name of the Trustee. In the event that such Majority Interest owners
elect to take such action, they shall notify the Trustee in writing of their election and any costs
incurred in connection with the taking of such action shall be treated as costs of the Trustee and
shall be subject to the same repayment, lien and security rights.
No owner of any Subordinate Bonds shall have any right to institute any judicial or other
action or remedial proceeding (including, without limitation, bankruptcy or insolvency
proceedings) against the Corporation or against the Project or any of the Corporation's other
lights, interests, assets or properties, to collect any moneys due, to enforce payment on its Bond
or to accelerate payment on its Bond so long as the Series 2013A Bonds remain Outstanding
without the written consent of a Majority Interest. Any action commenced by an owner of any
Subordinate Bonds shall terminate upon annulment of the acceleration of the Series 2013A
Bonds.
016794\0001\10596924.3 49
Section 10.07. Trustee Mav Enforce Rights Without Possession of Bonds. All
rights under the Indenture and the Bonds may be enforced by the Trustee without the possession
of any fonds or the production thereof at the trial or other proceedings relative thereto, and any
proceedings instituted by the Trustee shall be brought in its name for the ratable benefit of the
owners of the Bonds, subject to the priorities and limitations set forth in this Indenture.
Section 10.08. Delays and Omissions Not to Impair Rights. No delay or omission
in respect of exercising any right or power accruing upon any Event of Default shall impair such
right or power or be a waiver of such Event of Default and every remedy given by this Article
may be exercised from time to time and as gften as may be deemed expedient.
Section 10.09. Application of Moneys in Event of Default. Upon the occurrence of
any Event of Default, the Trustee shall not disburse any moneys from any fund or account
established hereunder without the written consent of the Majority Interest. All moneys received
by the Trustee pursuant to any right given or action taken under the provisions of this Article X
or the Deeds of Trust shall be deposited in the Bond Fund and, after payment of the cost and
expenses of the proceedings resulting in the collection of such moneys and of the expenses,
liabilities, and advances incurred, or made by the Trustee or owners of the Series 2013A Bonds
or any Additional Bonds secured on a parity therewith, including reasonable attorneys' fees, and
all other current outstanding fees and expenses of the Trustee, such moneys shall be applied in
the order set forth below:
(a) Unless the principal on all Bonds shall have become or been declared due
and payable, all such moneys shall be applied:
First: To the payment of all installments of interest then due on the Series 2013A
Bonds and Additional Bonds secured on a parity therewith, with interest on such overdue interest
at the rate per annum borne by such Bonds and, if the amount available shall not be sufficient to
pay in full any particular installment together with such interest, then to the ratable payment of
the amounts due on such installment;
Second: To the payment of the unpaid principal of any of the Series 2013A
Bonds and Additional Bonds secured on a parity therewith which shall have become due (other
than Bonds called for redemption for the payment of which moneys are held pursuant to the
provisions of the Indenture), with interest on such Series 2013A Bonds at the rate per annum
borne by such Bonds from the respective dates upon which they become due and, if the amounts
available shall not be sufficient to pay in frill Series 2013A Bonds due on any particular date,
together with such interest, then to the ratable payment of the amounts due on such date;
Third: To the payment to the Town of Indebtedness to the Town under Section
10.02 hereof;
Fourth: To the ratable payment of Indebtedness owing to any owners of
Subordinate Bonds under Section 10.02 hereof;
Fifth: To the payment of all installments of interest then due on the Series 1998B
Subordinate Bonds and Additional Bonds secured on a parity therewith with interest or such
overdue interest at a rate of interest borne thereby, and, if the amount available shall not be
016794\0001 \10596924.3 5
sufficient to pay in full any particular installment together with such interest, then to the ratable
payment of the amounts due on such installment;
Sixth: To the payment of the unpaid principal of any of the Series 1998B
Subordinate Bonds and Additional Bonds secured on a parity therewith called for redemption for
the payment of which moneys are then held pursuant to the provisions of the Indenture, with
interest on such Series 1998B Subordinate Bonds from the respective dates upon which they
became due and, if the amount available shall not be sufficient to pay in full Series 1998B
Subordinate Bonds due on any particular date, together with such interest, then to the ratable
payment of the amounts due on such date;
Seventh: To the payment of all installments of interest then due on the Series
1998C Subordinate Bonds and Additional Bonds secured on a parity therewith with interest or
such overdue interest at a rate of interest borne thereby, and, if the amount available shall not be
sufficient to pay in full any particular installment together with such interest, then to the ratable
payment of the amounts due on such installment;
Eighth: To the payment of the unpaid principal of any of the Series 1998C
Subordinate Bonds and Additional Bonds secured on a parity therewith called for redemption for
the payment of which moneys are then held pursuant to the provisions of the Indenture, with
interest on such Series 1998C Subordinate Bonds from the respective dates upon which they
became due and, if the amount available shall not be sufficient to pay in full Series 1998C
Subordinate Bonds due on any particular date, together with such interest, then to the ratable
payment of the amounts due on such date;
(b) If the principal of all the Bonds shall have become or been declared due
and payable, all such moneys shall be applied (i) first, to the payment of the principal, premium,
if any, and interest then due and unpaid upon the Series 2013A Bonds and any Additional Bonds
secured on a parity therewith with interest on such overdue amounts at the rate of 9%per annum,
without preference or priority as between principal, premium or interest on such Series 2013A
Bonds, ratably according to the amounts due respectively for principal, premium and interest to
the Persons entitled thereto, (ii) second, to payments of Indebtedness due to the Town (with
interest thereon at the highest rate then borne by the Bonds) or to any owner of Subordinate
Bonds arising under Section 10.02 hereof, and (iii) third, to the payment of the principal,
premium, if any, and interest then due and unpaid upon the Series 1998B Subordinate Bonds and
Additional Bonds secured on a parity therewith with interest on such overdue amounts at the rate
of interest borne thereby, without preference or priority as between principal, premium or
interest on such installments of interest or Bonds, ratably according to the amounts due
respectively for principal, premium and interest to the Persons entitled thereto; (iv) fourth, to the
payment of the principal, premium, if any, and interest then due and unpaid upon the Series
1998C Subordinate Bonds and Additional Bonds secured on a parity therewith with interest on
such overdue amounts at the rate of interest borne thereby, without preference or priority as
between principal, premium or interest on such installments of interest or Bonds, ratably
according to the amounts due respectively for principal, premium and interest to the Persons
entitled thereto.
016794\0001\10596924.3 5 1
(c) If the principal on all Bonds shall have been declared due and payable, and
if such declaration shall thereafter have been rescinded under this Article then, subject to
paragraph (b) of this Section in the event that the principal of ail the Bonds shall later become or
be declared due and payable, the moneys shall be applied in accordance with paragraph (a) of
this Section.
Any payment or distribution of assets of the Corporation of any kind or character,
whether in cash, instruments, securities or other property, by set-off or otherwise, to which any
Holder of a Subordinate Bond would be entitled but for the provisions hereof shall be paid by the
Corporation or by any receiver, trustee in bankruptcy, liquidating trustee, agency or other person
malting such payment or distribution, directly to the Trustee for payment to the Holders of the
Series 2013A Bonds and Additional Bonds issued on a parity therewith, to the extent necessary
to pay all amounts then due and payable on such Series 2013A and Additional Bonds in full, in
cash, before any payment or distribution is made in respect of the Subordinate Bonds. In the
event that any payment or distribution of assets of the Corporation of any kind or character,
whether in cash, instruments, securities or other property, shall be received by the Holder of a
Subordinate Bond in respect of the Subordinate Bonds from any source, directly or indirectly,
such payment or distribution shall be held in trust for the benefit of, and shall be immediately
paid over and delivered to, the Trustee for payment to the Holders of the Series 2013A Bonds
and Additional Bonds issued on a parity therewith, to the extent necessary to pay all amounts
then due and payable to such Holders of the Series 2013A and such Additional Bonds.
Whenever moneys are to be applied pursuant to this Section, the Trustee shall fix the date
(which shall be the earliest practical date, in the sole discretion of the Trustee, for which the
requisite notice can be given) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such moneys and
of the fixing of any such date.
Section 10.10. Trustee and Bondholders Entitled to All Remedies; Remedies Not
Exclusive. It is the purpose of this Article to provide to the Trustee and the Bondholders all
rights and remedies as may be lawfully granted under State law; but should any remedy herein
granted be held unlawful, the Trustee and the Bondholders shall nevertheless be entitled to every
remedy permitted under State law. It is further intended that, insofar as lawfully possible, the
provisions of this Article shall apply to and be binding upon any trustee or receiver appointed
under State law.
No remedy herein conferred is intended to be exclusive of any other remedy or remedies,
and each remedy is in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute.
Section 10.11. Trustee's Right to Receiver. The Trustee shall be entitled as of right
to the appointment of a receiver for the Project ex pane and without notice; and the Trustee, the
Bondholders and any receiver so appointed shall have such rights and powers and be subject to
such limitations and restrictions as maybe contained in or permitted by State law.
016794\0001\10596924,3 52
Section 10.12. Bankruptcy Proceedings. The Trustee is hereby authorized and
directed, on behalf of the owners of the Bonds, to file a proof or proofs of claim in any
bankruptcy, receivership or other insolvency proceeding involving the Corporation. With
respect to any matter in any such proceeding which requires the vote of any claimant, the Trustee
is hereby authorized and directed to vote on behalf and in the name of the owners of all Bonds
outstanding hereunder in the manner designated by the Majority Interest. In order to enable the
Trustee to enforce the rights hereunder of the Series 2013A Bonds and Additional Bonds issued
on a parity therewith in any such action or proceeding, the Trustee is irrevocably authorized and
empowered to make and present for and on behalf of the Holders of Subordinate Bonds such
proofs of claims against the Corporation on account of the Subordinate Bonds or other motions
or pleadings as the Trustee may deem, expedient or proper and to vote and take such other
actions, in the name of any Bondholder or otherwise, as the Trustee may deem necessary or
advisable. The Holders of the Subordinate Bonds further agree not to object to, interfere with or
oppose any efforts by the Trustee to obtain relief from the automatic stay under Section 362 of
the United States Bankruptcy Code or any of Trustee's other bankruptcy-related actions.
Section 10.13. Indemnity. Wherever in this Indenture provision is made for
indemnity by the owners of the Series 2013A Bonds, if the owner of the Series 2013A Bonds
providing such indemnity has an aggregate net worth or net asset value of at least $50,000,000,
as set forth in its most recent audited financial statements or as otherwise satisfactorily
demonstrated to the Trustee, the Trustee may not require any indemnity bond or other security
for such indemnity. In any case where more than one owner of the Series 2013A Bonds is
providing indemnity, such indemnity shall be several and not joint and, as to each Owner, such
indemnity obligation shall not exceed its percentage interest of Outstanding Bonds. If provided
indemnity, the Trustee shall utilize counsel or other advisors designated by a Majority Interest of
the indemnifying owners of the Series 2013A Bonds to whom the Tz-ustee has no reasonable
objection and in the event the Trustee requires independent counsel, a budget, acceptable to the
Trustee, shall be established at or about the time of the default for the purpose of paying the costs
and expenses thereof and the Trustee shall have the right for reimbursement against the Trust
Estate or the indemnifying owners of the Series 2013A Bonds tip to the budgeted amount for
such costs and expenses. The fees, costs and expenses of the Trustee arising from any
reasonable disagreement with the indemnifying owners of the Series 2013A Bonds shall not be
subject to such budget cap.
Section 10.14. Certain Additional Provisions With Respect to Bondholder
Remedies, Receipt of Notice and Other Matters. In the event that a Bond is registered to a
nominee or a securities depository holding such Bond on behalf of a beneficial owner, for
purposes of consents to amendments, receipt of reports and notices and other actions hereunder,
and the direction of election of remedies and proceedings (including, without limitation,
acceleration and waiver of acceleration), the beneficial owner of such Bond upon provision of
reasonable evidence of its status as beneficial owner shall be deemed to be the holder hereunder
and shall have the right to give or receive the aforementioned consents, directions, reports and
notices hereunder.
016794\0001\10596924.3 53
ARTICLE XI
THE TRUSTEE
Section ll.pl. Acceptance of Trust. The Trustee accepts and agrees to execute the
trusts hereby created, but only upon the additional terms set forth in this Article, to all of which
the panties hereto and the Bondholders are bound.
Section 11.02. No Responsibility for Recitals, etc. The recitals, statements and
representations in the Indenture or in the Bonds, save only the Trustee's Certificate upon the
Bonds, have been made by the Corporation and not by the Trustee; and the Trustee shall be
under no responsibility for the correctness thereof.
The Trustee shall not be responsible for the validity or adequacy of this Indenture or the
Bonds or for the validity, priority, recording or re-recording, filing or re-filing of any financing
statements, amendments thereto or continuation statements, except as otherwise provided in
Section 5.06 hereof provided that the Trustee shall be responsible for filing continuation
statements for the security interests granted under this Indenture and the Deeds of Trust, or for
insuring the Project or collecting any insurance moneys, or for the Corporation's use of the
proceeds from the Bonds or any money paid to the Corporation or upon the Corporation's
direction under any provision hereof or for the use or application of any money received by any
Paying Agent other than the Trustee, or for the validity of the execution by the Corporation of
this Indenture or of any supplements thereto or instruments of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, or
for the value or title of the Project or as to the maintenance of the security hereof; except that in
the event the Trustee enters into possession of a part or all of the Project pursuant to any
provision of this Indenture it shall use due diligence in preserving such property.
Section 11.03. Trustee Mav Act Through Agents; Answerable Only for Willful
Misconduct or Negligence. The Trustee may exercise any powers hereunder and perform any
duties required of it through attorneys, agents, officers or employees, and shall be entitled to
advice of Counsel concerning all questions hereunder. The Trustee shall not be answerable for
the exercise of any discretion or power under this Indenture nor for anything whatever in
connection with the trust hereunder, except only its own willful misconduct or negligence or that
of its agents, officers and employees.
Section 11.04. Compensation and Indemnity, The Corporation shall pay the Trustee
reasonable compensation for its services hereunder, and also all its reasonable expenses and
disbursements. The Corporation agrees to indemnify the Trustee against any claims arising out
of the exercise and performance of its powers and duties hereunder in good faith and without
negligence.
Section 11.05. Notice of Default; Right to Investigate. The Trustee shall, within five
days after the occurrence thereof, give written notice by first-class mail to owners of Bonds, the
Town, the Purchaser, and the Underwriter of all defaults known to the Trustee and send a copy
of such notice to the Corporation, unless such defaults have been remedied (the term "defaults"
for purposes of this Section is defined to include the events specified in Section 10.01 hereof, not
016794\0001\10596924.3 54
including any notice or periods of grace provided for therein). The Trustee may, however, at any
time require of the Corporation full information as to the performance of any covenant
hereunder; and, if information satisfactory to it is not forthcoming, the Trustee may make or
cause to be made an investigation into the affairs of the Corporation related to this Indenture and
the properties covered hereby.
Section 11.06. Obligation to Act. If any Event of Default shall have occurred and be
continuing, the Trustee, as directed by the owners of the Majority Interest, shall exercise such of
the rights and remedies vested in it by this Indenture and shall use the same degree of care in
their exercise as a prudent man would exercise or use in the circumstances in the conduct of his
own affairs; provided, that if in the opinion of the Trustee such action may tend to involve
expense or liability, it shall not be obligated to take such action unless it is furnished with
indemnity reasonably satisfactory to it.
Section 11.07. Provision of Monthly Fund Statements. The Trustee shall, upon
written request of an owner of Bonds, provide written monthly fiend statements by the 15th day of
each month depicting the balances as of the end of the preceding month in each fund and account
established under this Indenture.
Section 11.08. Reliance on Requisition, Counsel, etc. The Trustee may act on any
requisition, resolution, notice, telegram, request, consent, waiver, certificate, statement, affidavit,
voucher, bond, or other paper or document which it in good faith believes to be genuine and to
have been passed or signed by the proper persons or to have been prepared and furnished
pursuant to any of the provisions of the Indenture; and the Trustee shall be under no duty to
make any investigation as to any statement contained in any such instrument, but may accept the
same as conclusive evidence of the accuracy of such statement.
The Trustee will be entitled to rely upon opinions of Counsel and will not be responsible
for any loss or damage resulting from reliance in good faith thereon, except for its own
negligence or willful misconduct.
Section 11.09. Trustee May Own Bonds. The Trustee may in good faith buy, sell,
own and hold any of the Bonds and may join in any action which any Bondholders may be
entitled to take with like effect as if the Trustee were not a party to the Indenture. The Trustee
may also engage in or be interested in any financial or other transaction with the Corporation or
the Corporation, provided that if the Trustee determines that any such relation is in conflict with
its duties under this Indenture, it shall eliminate the conflict or resign as Trustee.
Section 11.10. Construction of Ambiguous Provisions. The Trustee may construe
any ambiguous or inconsistent provisions of this Indenture, and any such construction by the
Trustee shall be binding upon the Bondholders. In construing any such provision, the Trustee
will be entitled to rely upon opinions of Counsel and will not be responsible for any loss or
damage resulting from reliance in good faith thereon except for its own negligence or willful
misconduct.
Section 11.11. Resignation of Trustee. The Trustee may resign and be discharged of
the trusts created by this Indenture by written resignation filed with the Corporation not less than
Ol 6794\0001 \10596924.3 5 $
60 days before the date when it is to take effect, with copies of such notice to the owners of the
Series 2013A Bonds and Additional Bonds secured on a parity therewith; and Additional Bonds
secured on a parity therewith provided notice of such resignation is mailed by registered or
certified mail to all Bondholders not less than three weeks prior to the date when the resignation
is scheduled to take effect. Such resignation shall take effect only upon the appointment of a
successor trustee.
Section 11.12. Removal of Trustee. Any Trustee hereunder may be removed at any
time by an instrument appointing a successor to the Trustee so removed, executed by the
Majority Interest and filed with the Trustee and the Corporation.
Section 11.13. Appointment of Successor Trustee. If the Trustee or any successor
trustee resigns or is removed (other than pursuant to Section 11.12 hereo f or dissolved, or if its
property or business is taken under the control of any state or federal court or administrative
body, a vacancy shall forthwith exist in the office of the Trustee, and the Corporation (so long as
there is no Event of Default hereunder) shall appoint a successor who shall be acceptable to the
Majority Interest and shall mail notice of such appointment by registered or certified mail to all
Bondholders. If the Corporation fails to make such appointment within 30 days after the date
notice of resignation is filed, if there is an Event of Default hereunder, or if the Trustee is
removed pursuant to Section 11.12 hereof, the Majority interest may appoint a successor Trustee.
Section 11.14. Qualification of Successor, A successor trustee shall be a national
bank with trust powers or a bank and trust company or a trust company organized under the laws
of one of the States of the United States, in each case having capital and surplus of at least
$50,000,000, if there be one able and willing to accept the trust on reasonable and customary
terms.
Section 11.15. Instruments of Succession. Any successor trustee shall execute,
acknowledge and deliver to the Corporation an instrument accepting such appointment
hereunder; and thereupon such successor trustee, without any further act, deed or conveyance,
shall become fully vested with all the estates, properties, rights, powers, trusts, duties and
obligations of its predecessor in the trust hereunder, with like effect as if originally named
Trustee herein and thereupon the duties and obligations of the predecessor shall cease and
terminate. Upon the payment of the fees and expenses owed to the Trustee ceasing to act, the
Trustee ceasing to act hereunder shall pay over to the successor trustee all moneys held by it
hereunder; and, upon request of the successor trustee, the Trustee ceasing to act and the
Corporation shall execute and deliver an instrument transferring to the successor trustee all the
estates, properties, rights, powers and trusts hereunder of the Trustee ceasing to act. The
Corporation shall be provided with a copy of each instrument mentioned herein.
Section 11.16. Merger of Trustee. Any corporation into which any Trustee
hereunder may be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which any Trustee hereunder shall be a party, shall be the
successor trustee under this Indenture, without the execution or filing of any paper or any further
act on the part of the parties hereto, anything herein to the contrary notwithstanding.
016794\0001\10596924.3 56
Section 11.17. Appointment of Co-Trustee. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction (including particularly the laws of the
State) denying or restricting the right of banking corporations or associations to transact business
as Trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and
in particular in case of the enforcement of any such document in default, or in case the Trustee
deems that by reason of any present or future law of any jurisdiction it may not exercise any of
the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in
trust, as herein granted, or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an additional individual or
institution as a separate or Co-Trustee. The following provisions of this Section are adopted to
these ends.
The Trustee may appoint an additional individual or institution as a separate or
Co-Trustee, in which event such and every remedy, power, right, claim, demand, cause of action,
indemnity, estate, title, interest and lien expressed or intended by this Indenture to be exercised
by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or Co-Trustee but only to the extent necessary to enable such separate or Co-
Trustee to exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or Co-Trustee shall run to and be enforceable
by either of them.
Should any deed, conveyance or instrument in writing from the Corporation be required
by the separate or Co-Trustee so appointed by the Trustee for more fully and certainly vesting in
and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and
all such deeds, conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Corporation. In case any separate or Co-Trustee, or a
successor to either, shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate or Co-Trustee, so far as
permitted by law, shall vest in and be exercisable by the Trustee until the appointment of a new
Trustee or successor to such separate or Co-Trustee.
Section 11.18. Intervention by Trustee. In any judicial proceeding to which the
Corporation is a party and which in the opinion of the Trustee and its Counsel has a substantial
bearing on the interests of owners of the Bonds, the Trustee may intervene on behalf of
Bondholders and shall do so if requested in writing by the owners of at least 25% in principal
amount of Bonds then Outstanding and furnished indemnity. The rights and obligations of the
Trustee under this Section are subject to the approval of a court of competent jurisdiction.
ARTICLE XII
ACTS OF BONDHOLDERS: EVIDENCE OF OWNERSHIP OF BONDS
Section 12.01. Acts of Bondholders; Evidence of Ownership. Any action to be
taken by Bondholders may be evidenced by one or more concurrent written instruments of
similar tenor signed or executed by such Bondholders in person or by agent appointed in writing.
The fact and date of the execution by any person of any such insh~ument may be proved by
acknowledgment before a notary public or other officer empowered to take acknowledgments of
016794\0001\10596924.3 57
deeds or by an affidavit of a witness to such execution. Where such execution is by an officer of
a corporation or a member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner which the Trustee deems sufficient. The
ownership of Bonds shall be proved by the Bond Register. Any action by the owner of any Bond
shall bind all future owners of the same Bond in respect of anything done or suffered by the
Corporation or the Trustee in pursuance thereof.
The term Beneficial Owners, for purposes of this Section or any other Section herein
requiring the Trustee to deliver statements, reports or documents to or receive instructions or
requests from the Beneficial Owners, includes any Beneficial Owner who provides to the Trustee
an affidavit of beneficial ownership of the Bonds. The Trustee may rely conclusively upon such
affidavit and shall have no liability to the obligor or any other person in connection with such
reliance.
ARTICLE XIII
AMENDMENTS AND SUPPLEMENTS
Section 13.01. Amendments and Supplements Without Bondholders' Consent.
This Indenture may be amended or supplemented at any time and from time to time, without
notice to or the consent of the Bondholders by a supplemental indenture authorized by a
Certified Resolution filed with the Trustee, and consented to by the Corporation, for one or more
of the following purposes:
A, to set forth any or all of the matters in connection with the issuance of
Additional Bonds required by Section 3.02 hereof;
B. to add additional covenants of the Corporation or to surrender any right or
power herein conferred upon the Corporation;
C. to cure any ambiguity or to cure, correct or supplement any defective
provision of this Indenture in such manner as shall not be inconsistent with this Indenture and
shall not impair the security hereof or adversely affect the Bondholders;
D. to issue the Bonds of any series in coupon form or in form acceptable to
any securities depository, subject in each case to the receipt by the Trustee of an opinion of Bond
Counsel to the effect that any such changes will not adversely affect the exemption of interest on
the Bonds from federal income tax; and
E. to amend or supplement the provisions of this Indenture in a manner that
would not materially and adversely affect the existing owners of Bonds or the security afforded
by this Indenture.
Section 13.02. Amendments With Bondholders' Consent. Other than amendments
permitted under Section 13.01 hereof and amendments with respect to this Article XIII, this
Indenture may be amended from time to time only with the prior written consent of the
016794\0001 \10596924.3 5 $
Corporation, by a supplemental indenture approved by the owners of 66 2/3% in principal
amount of the Series 2013A Bonds and Additional Bonds issued on a parity therewith; provided
that the modification of (1) the principal, premium, if any, or interest payable upon any series of
Bonds or the Town Indebtedness or (2) the dates of maturity or redemption provisions of any
series of Bonds shall require the consent of the Town and 100% in principal amount of the
Outstanding Bonds; and further provided that no amendment shall be made which adversely
affects the Town or any series of Outstanding Bonds without the Consent of the Town, if
affected, or the owners of at least 66 2/3% in principal amount of the Outstanding Bonds of such
series so affected. This Indenture may be amended with respect to this Article XIII only with the
unanimous consent of all owners of Bonds then Outstanding, the Town and the Corporation.
Section 13.03. Amendment of Proiect Agreement. The Project Agreement may be
supplemented and amended as necessary to facilitate the issuance from time to time of the
Bonds, to reflect the redemption of the Bonds, and as otherwise required or requested by the
Corporation from time to time.
Section 13.04. Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel. The Trustee is authorized to join with the Corporation in the execution
and delivery of any supplemental indenture or amendment permitted by this Article XIII and in
so doing shall be fully protected by an Opinion of Counsel that such supplemental indenture or
amendment is so permitted and has been duly authorized by the Corporation and that all things
necessary to make it a valid and binding agreement have been done.
ARTICLE XIV
DEFEASANCE
Section 14.01. Defeasance. When the principal or redemption price (as the case may
be) of, and premium, if any, and interest on, all Bonds issued hereunder, and all other amounts
due under this Indenture have been paid, or provision has been made for payment of the same,
together with all other sums payable hereunder by the Corporation, the Trustees right, title and
interest in this Indenture and the moneys payable hereunder shall thereupon cease and the
Trustee, on demand of the Corporation, shall release this Indenture in respect thereto and shall
execute such documents to evidence such release as may be reasonably required by the
Corporation and shall turn over to the Corporation or its assigns all balances then held by it
hereunder not required for the payment of the Bonds and such other sums. If such payment or
provision therefor has been made with respect to all the Bonds of any one series, the interest of
the Trustee shall cease in respect of such series, and the Trustee shall take similar action for the
release of this Indenture.
Without limiting the generality of the foregoing, provision for the payment of Bonds shall
be deemed to have been made (a) upon the delivery to the Trustee of (i) cash in an amount
sufficient to make all payments specified above, or (ii) non-callable direct obligations of the
United States of America, maturing on or before the date or dates when the payments specified
above shall become due, the principal amount of which and the interest thereon, when due, is or
will be, in the aggregate, sufficient without reinvestment to make all such payments, or (iii) any
combination of cash and such obligations; (b) any Bonds to be redeemed prior to maturity shall
016794\0001 \10596924.3 5 9
have been duly called for redemption or irrevocable instructions to call such Bonds for
redemption shall have been given to the Trustee; and (c) an opinion of Bond Counsel acceptable
to the Trustee that any exclusion from gross income for federal income tax purposes of the
interest on the Outstanding Bonds and any other tax-exempt Additional Bonds Outstanding will
not be impaired by the defeasance. The Trustee shall also receive a report from an Accountant
verifying to the Trustee's satisfaction that the cash and government obligations delivered will be
sufficient to provide for the payment of the Bonds as aforesaid. Neither the obligations nor
moneys deposited with the Trustee pursuant to this Section shall be withdrawn or used for any
purpose other than, and shall be segregated and held in trust for, the payment of the principal or
redemption price of, and premium, if any, and interest, on the Bonds.
Section 14.02. Town's Rights.
(a) The Corporation covenants and agrees that all activities of the Corporation
shall be undertaken for the benefit of the Town. Upon termination of this Indenture, the Town
shall be entitled to acquire title to the Project without cost.
(b) in furtherance of the Project Agreement, the Town is hereby granted the
right to obtain, at any time, fee title and exclusive possession of property (including the Project)
financed by obligations of the Corporation (including the Bonds) free from liens and
encumbrances created by the Corporation related to the Bonds (but subject to other Permitted
Encumbrances), and any additions to such property by (1) placing into escrow an amount that
will be sufficient to defease such Bonds and other obligations, and (2) paying reasonable costs
incident to the defeasance, each as provided in Section 14.01 hereof. The Town, at any time
before it defeases such obligations, shall not agree or otherwise be obligated to convey any
interest in such property to any person (including the United States of America or its agencies or
instrumentalities) for any period extending beyond or beginning after the Town defeases such
obligations. In addition, the Town shall not agree or otherwise be obligated to convey a fee
interest in such property to any person who was a user thereof, (or a related person) before the
defeasance within 90 days after the Town defeases such obligations.
(c) If the Town exercises its option under subsection (b) hereof, the
Corporation shall immediately cancel all encumbrances on such property, including all leases
and management agreements (subject to Permitted Encumbrances as aforesaid). Any lease,
management contract, or similar encumbrance on such property will be considered immediately
canceled if the lessee, management company, or other user vacates such property within a
reasonable time, not to exceed 90 days, after the date the Town exercises its rights under Section
(b) above.
(d) In addition to the foregoing, if pursuant to Article X hereof, the Trustee
declares the principal of any Bonds then Outstanding to be due and payable and any foreclosure
proceeding or other action is commenced under this Indenture or the Deeds of Trust which could
lead to the sale or other disposition of the property pledged thereunder, the Town is hereby
granted an exclusive option to purchase all such property (including the Project) for the amount
of the outstanding indebtedness of the Corporation and accrued interest to the date of default.
The Trustee shall provide notice to the Town of the commencement of any such action within 10
days of the occurrence thereof. The Town shall have 90 days from the date it is notified by the
016794\0001\10596924.3 ()0
Trustee of such action in which to both exercise the option (which shall be exercised by giving
written notice of such exercise to the Trustee and the Corporation) and purchase the property.
The Trustee or any Bondholders responsible for commencing such foreclosure proceeding or
other action shall be required to take any action necessary, including submission of requests for
continuance of foreclosure to the Public Trustee of Eagle County, Colorado, in order to ensure
that the foreclosure sale does not occur prior to the expiration of the 90 day period referred to
herein. Other than the foregoing requirement, the provisions of this Section 14.02 are not
intended and shall not be interpreted so as to limit the Bondholders' rights to pursue their
remedies hereunder and under the Deeds of Trust.
(e) In the event the Town exercises its options under subsection (b) or (d)
hereof, the Town shall receive a credit towards its defeasance or purchase costs in the amount of
any fund or account balances held under this Indenture with the exception of (1) the Excess
Investment Earnings Fund, and (2) any amount needed to pay additional interest on the Bonds or
expenses in connection with such defeasance under Section 14.01 of this Indenture.
(~ Unencumbered fee title (subject to certain Permitted Encumbrances as
aforesaid) to the Project and any additions thereto and exclusive possession and use thereof will
vest in the Town without demand or further action on its part when all obligations issued under
the Indenture (including the Bonds) are discharged. Unless the Bonds are earlier defeased
pursuant to Section 14.01 hereof and subsection (b) of this Section 14.02, for purposes of this
subsection (~, such obligations will be discharged when (1) cash is available at the place of
payment on the date that the obligations are due (whether at maturity or upon call for
redemption) and (2) interest ceases to accrue on the obligations. All leases, management
contracts and similar encumbrances on the Project shall terminate upon discharge of said
obligations. Encumbrances that do not significantly interfere with the enjoyment of such
property, such as most easements granted to utility companies, are not considered encumbrances
for purposes of this Section.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. No Personal Recourse. No recourse shall be had for any claim based
on the Indenture or the Bonds including but not limited to the payment of the principal or
redemption price of, or premium, if any, or interest on, the Bonds, against any member, officer,
agent or employee, past, present or future, of the Corporation or of any successor body, as such,
either directly or through the Corporation or any such successor body, under any constitutional
provision, statute or rule of law or by the enforcement of any assessment or penalty or by any
legal or equitable proceeding or otherwise.
Section 15.02. Deposit of Funds for Payment of Bonds. If there are on deposit with
the Trustee funds (including proceeds of government obligations as provided in Section 14.01)
sufficient to pay the principal or redemption price of any Bonds becoming due, either at maturity
or by call for redemption or otherwise, together with the premium, if any, and all interest
accruing thereon to the due date, all interest on such Bonds shall cease to accrue on the due date
and all liability of the Corporation with respect to such Bonds shall likewise cease, except as
016794\0001\10596924.3 61
hereinafter provided. Thereafter the owners of such Bonds shall be restricted exclusively to the
funds so deposited for any claim of whatsoever nature with respect to such Bonds and the
Trustee shall hold such funds in trust for such owners. Moneys (including proceeds of
government obligations as provided in Section 14.01) so deposited with the Trustee which
remain unclaimed five years after the date payment thereof becomes due shall, if the Corporation
is not at the time, to the knowledge of the Trustee, in default with respect to any covenant in the
Indenture or the Bonds, be paid to the Corporation, unless there is a dispute as to the payment
thereof, upon receipt by the Trustee of indemnity satisfactory to it, and the owners of the Bonds
for which the deposit was made shall thereafter be limited to a claim against the Corporation;
provided, however, that the Trustee, before making payment to the Corporation, may send notice
by registered mail to each owner of Bonds who hasn't claimed such moneys at such owner's last
known address, stating that the moneys remaining unclaimed will be returned to the Corporation
after a specified date.
Section 15.03. Relationship of 1998 Indenture, 2003 Indenture and 2013
Indenture. The 2003 Indenture is hereby amended and restated in its entirety by the 2013
Indenture. Upon the issuance of the Series 2013A Bonds and the redemption of the Series
2003A Bonds, the 2003 Indenture shall no longer be of any force or effect. The 1998 Indenture
shall no longer be of any force or effect; provided, however, that the provisions of Sections 4.04
and Article IX of the 1998 Indenture, to the extent applicable to deposits to be made into the
Sinking Fund Subaccount with respect to the Series 1998B Subordinate Bonds and the Series
1998C Subordinate Bonds and the related mandatory sinking fund redemption of such Series
1998B Subordinate Bonds and the Series 1998C Subordinate Bonds, Article II of the 1998
Indenture to the extent applicable to the Series 1998B Subordinate Bonds and the Series 1998C
Subordinate Bonds, and the form of Series 1998B Subordinate Bonds and the Series 1998C
Subordinate Bonds contained in the 1998 Indenture, shall remain in full force and effect with
respect to Series 1998B Subordinate Bonds and the Series 1998C Subordinate Bonds,
respectively, until redeemed in full.
Section 15.04. No Rights Conferred on Others. Nothing herein contained shall
confer any right upon any person other than the parties hereto, the owners of the Bonds and the
Town.
Section 15.05. Illegal, etc. Provisions Disregarded. In case any provision in this
Indenture or the Bonds shall for any reason be held invalid, illegal or unenforceable in any
respect, this Indenture shall be construed as if such provision had never been contained herein.
Section 15.06. Notices to Trustee, Corporation and Town. Any notice to or
demand upon the Trustee may be served, presented or made at its corporate trust office at UMB
Banlc, n.a., 1670 Broadway, Denver, Colorado 80202, Attention: Corporate Trust Department.
Any notice to or demand upon the Corporation shall be deemed to have been sufficiently given
or served by the Trustee for all purposes by being sent by registered United States mail to
EagleBend Dowd Affordable Housing Corporation, c/o Polar Star Properties, LLC, 28 Second
Street, Suite 215, Edwards, Colorado 81632, Attention: Project Manager, or such other address
as may be filed in writing by the Corporation with the Trustee. Any notice to or demand upon
the Town shall be deemed to have been sufficiently given or served by the Trustee for all
purposes by being sent by registered United States mail to P.O. Box 975, Avon, Colorado 81620,
016794\0001\10596924.3 62
Attention: Town Manager, or such other address as may be filed in writing by the Corporation
with the Trustee.
Section 15.07. Successors and Assigns. All the covenants, promises and agreements
in this Indenture contained by or on behalf of the corporation, or by or on behalf of the Trustee,
shall bind and inure to the benefit of their respective successors and assigns, whether so
expressed or not.
Section 15.08. Headings for Convenience Qnly. The descriptive headings in this
Indenture are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 15.09. Counterparts. This indenture may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 15.10. Information Under Commercial Code. The following information is
stated in order to facilitate filings under the Uniform Commercial Code:
The secured party is UMB Bank, n.a., Trustee. Its address from
which information concerning the security interest may be
obtained is 1670 $roadway, Denver, Colorado 80202, Attention:
Corporate Trust Department. The debtor is EagleBend Dowd
Affordable Housing Corporation, Its mailing address is c/o Polar
Star Properties, LLC, 28 Second Street, Suite 215, Edwards,
Colorado 81632.
Section 15.11. Payments Due On Saturdays, Sundays and Holidays. In any case
where the date of maturity of interest on or principal of the Bonds or the date fixed for
redemption of any bonds shall be a Saturday or Sunday or a legal holiday or a day on which
banking institutions in the city of payment are authorized by law to close, then payment of
interest, premium, if any, or principal or redemption price need not be made on such date but
may be made on the next succeeding business day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest on such payment shall
accrue for the period after such date.
Section 15.12. Applicable Law. This Indenture shall be governed by and construed in
accordance with the laws of the State of Colorado.
016794\0001\10596924.3 63
IN WITNESS WHEREOF, intending to be legally bound, EAGLEBEND DOWD
AFFORDABLE HOUSING CORPORATION, has caused this indenture to be executed by its
President and its corporate seal to be hereunto affixed and attested by its Secretary, UMB
BANK, N.A., as Trustee, has caused this Indenture to be executed by one of its Vice Presidents
or Assistant Vice-Presidents and attested by one of its duly authorized officers, all as of the day
and year first above written.
~AGLEBEND DOWD AFFORDABLE
[SEAL] HOUSING CORPORATION
Attest:
Secretary
Attest:
President
UMB BANK, N.A., as trustee
I:
[Signature Page to Second Amended
and Restated Trust Indenture]
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
On this, the day of August, 2013, before me, the undersigned notary public,
personally appeared Gerald E. Flynn and Jeffery M. Spanel, who acknowledged themselves to be
President and Secretary of EAGLEBEND DOWD AFFORDABLE HOUSING
CORPORATION, that, as such officials, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing and attesting the name of said
Corporation as such officials.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
ss:
CITY AND COUNTY OF DENVER )
On this, the day of August, 2013, before me, the undersigned notary public,
personally appeared and who acknowledged
themselves to be and of UMB BANK, N.A., that, as such
officials, being authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing and attesting the name of said Trustee as such officials.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
[Notary Page to Second Amended
and Restated Trust Indenture]
EXHIBIT A
Description of Project Site
The following real property and all buildings and improvements, and fixtures or
appurtenances, now or hereafter erected thereon:
Parcel A
Tract A: Cliffside Village Condominiums, according to the exemption plat recorded June 29,
1998, Reception No. 661239 and as more particularly described as follows: A tract of land in the
East half of Section 16, township 5 South, Range 81 West of the 6th Principal Meridian, County
of Eagle, State of Colorado, more fully described as follows: Commencing at the Southeast
corner of Section 16; thence North 34 degrees 08 minutes Ol seconds West, 2348.72 feet to the
Point of Beginning, said point being on the Easterly line of the Denver and Rio Grande Western
Railroad; thence Northwesterly 629.55 feet on the arc of a curve to the left, with a radius of
1495.71 feet and a central angle of 24 degrees 06 minutes 57 seconds (being subtended by a
chord that bears North 37 degrees 59 minutes 19 seconds west, a distance of 624.91 feet); thence
North 84 degrees 16 minutes 04 seconds East, 321.88 feet; thence South 82 degrees 32 minutes
46 seconds East, 150.39 feet; thence South 47 degrees 39 minutes 16 seconds East, 122.44 feet;
thence South 33 degrees 00 minutes 19 seconds East 242.45 feet; thence South 24 degrees S3
minutes 35 seconds East, 163.93 feet; thence South 68 degrees 33 minutes 19 seconds West
145.00 feet; thence South 40 degrees 42 minutes 45 seconds West, 32.20 feet; thence North 51
degrees OS minutes 45 seconds West, 240.00 feet; thence South 08 degrees 54 minutes 15
seconds West, 65.00 feet; thence South 16 degrees OS minutes 45 seconds East, 65.00 feet;
thence South 67 degrees 24 minutes 15 seconds West, 45.00 feet to the Point of Beginning,
County of Eagle, State of Colorado.
Parcel B:
Together with the easement rights on, over and across Parcel 1, as granted by the access parcels,
Cliffside Village Condominiums, according to the plat recorded August 26, 1992 in Book 587 at
Page 778 and as granted in Access Road Easement recorded October 19, 1992 in Boolc 591 at
Page 869, County of Eagle, State of Colorado.
Parcel C:
Together with the easement rights as granted by the Declaration of Covenants, Conditions and
Restriction for Rivercliffs recorded August 12, 1999 as Reception No. 705256, as amended by
Amendment to Declaration of Covenants, Conditions, and Restrictions recorded August 12, 1999
as Reception No. 705258, and as granted by Declaration of Easements recorded August 12, 1999
as Reception No. 705257, and as granted by Tract A Easement recorded October 19, 1992 in
Boole 591 at Page 870 as Reception No. 487968, as Amended by First Amendment to Tract A
Easement recorded August 12, 1999 at Reception No. 705259, County of Eagle, State of
Colorado.
016794\0001\10596924.3 !~-1
EXHIBIT B
Form. of Requisition Certificate
Requisition No.Date:
To: The UMB Banlc, n.a., as trustee (the "Trustee"), under a Second Amended and Restated
Trust Indenture ("Indenture") dated as of August 1; 2013, by and between the Trustee
and EagleBend Dowd Affordable Housing Corporation (the "Issuer"), relating to the
Issuer's $8,450,000 EagleBend Dowd Affordable Housing Corporation Multifamily
Housing Project Refunding Revenue Bonds, Series 2013A (the "Bonds").
Attention: Corporate Trust Services
The undersigned Issuer hereby requests that there be paid from the Property Insurance
and Award Fund the sum set forth below, and in that connection with respect to the use of the
proceeds of the Bonds, and hereby certifies to the Trustee as follows:
I. An obligation in each of the amounts set forth below has been incurred in connection
with the restoration of the Project pursuant to Section 4.05 of the Indenture.
II. Each requested payment is a proper charge against the Property Insurance and Award
Fund, pursuant to the Indenture, has not been the basis of any previous withdrawal from the
Property Insurance and Award Fund, and the payee, purpose and amount of such obligation are
described below:
Payee Name and Address Purpose Amount
III. The undersigned has no notice of any vendors' materialmen's, mechanics', suppliers' or
other similar liens or rights to liens, chattel mortgages or conditional sales contracts, or
other contracts or obligations which should be satisfied or discharged before payment of
the above-described obligations is made.
IV. The undersigned covenants and agrees herewith that:
016794\0001\10596924.3 B-1
A. It has complied with all duties and obligations required to date to be carried out
and performed by it pursuant to the terms of the Indenture;
B. No event of default as defined in the Indenture has occurred and is continuing;
C. All funds previously disbursed have been used for the purposes as set forth in the
Indenture;
D. All outstanding claims for labor, materials and/or services furnished prior to this
draw period have been paid;
E. All restoration prior. to the date of this Requisition has been accomplished in
accordance with the plans and specifications;
F. All materials, wherever stored, are covered by insurance;
G. All sums advanced on account of this Requisition shall be used for the sole
purpose of paying obligations owing as shown in the attached documentation; and
H. The party executing this Requisition is duly authorized to make this Requisition,
and understands that the certification contained herein is being made for the
purpose of inducing the Trustee to make an advance to the Issuer, and that in
malting such advance, the Trustee will rely upon the accuracy of the matters
stated herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
016794\0001\10596924.3 B-2
V. The Issuer certifies that the statements made in the Requisition and any documents
submitted herewith or identified herein are true and correct.
ISSUER:
EAGLEBEND DOWD AFFORDABLE
HOUSING CORPORATION, a Colorado
nonprofit corporation
By:
Name:
Title:
Approved
FIRSTBANK, a Colorado state baniting corporation,
as Bondholder Representative
By:
Name:
Title:
016794\0001\10596924.3 B-3
EXHIBIT C
~1C~7~~ : 1]~~
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAS NOT BEEN REGISTERED OR OTHERWISE QUALIFIED FOR
SALE UNDER THE BLUE SKY LAWS AND REGULATIONS OF ANY STATE AND WILL
AS OF THE DATE OF ISSUE CARRY NO RATING FROM ANY RATING SERVICE.
THIS BOND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT 1N MINIMUM DENOMINATIONS OF $100,000 TO TRANSFEREES WHO HAVE
PROVIDED TO THE CORPORATION AND THE TRUSTEE A COMPLETED
CERTIFICATE OF QUALIFIED INVESTOR IN THE FARM ATTACHED TO THIS BOND
(WITH SUCH CHANGES AS MAY BE REQUIRED BY BOND COUNSEL TO REFLECT
CHANGES IN APPLICABLE LAW, AND AS APPROVED BY THE CORPORATION)
DULY EXECUTED BY THE TRANSFEREE.
No. AR-
UNITED STATES OF AMERICA
EAGLE COUNTY STATE OF COLORADO
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BOND
SERIES 2013A
Per Annum Interest Rate Maturity Date Original Date
August 1, 2016 August _, 2013
Registered Owner:
Principal Sum:DOLLARS
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION (the
"Corporation"), a nonprofit corporation organized under the laws of the State of Colorado, for
value received, hereby promises to pay to the Registered Owner (specified above), or registered
assigns, the Principal Sum (specified above) on the Maturity Date (specified above), unless this
Bond shall have been duly called for previous redemption in whole or in part and payment of the
redemption price shall have been duly made or provided for, upon surrender hereof, and to pay to
the person in whose name this Bond is registered at the close of business on the regular record
date for such interest, which shall be the fifteenth day of each calendar month next preceding an
016794\0001 \10596924.3 C-1
interest payment date (the "Regular Record Date"), by check or draft mailed to such person at
his address as it appears on the registration books of the Corporation maintained by the Trustee,
interest an said principal sum at the per annum Interest Rate (specified above) provided that at
the written request of any owner of this Bond received by the Trustee at least one business day
prior to the Regular Record Date, interest hereon shall be payable in immediately available funds
by wire transfer within the United States. Interest in respect of this Bond shall accrue from the
date of issuance and delivery and shall be payable monthly on the first day of each month,
commencing [October 1 ], 2013, at the per annum Interest Rate (specified above), until payment
of said principal sum and (to the extent payment of such interest shall be legally enforceable and
only as provided below and in the Indenture) on any overdue installment of interest.
Any interest not punctually paid shall forthwith cease to be payable to the registered
owner on such Regular Record Date, and may be paid to the person in whose name this Bond is
registered at the close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof being given by first class postage prepaid mail
to registered Bondholders not more than 15 nor less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Bonds may be listed and upon such notice
as may be required by such exchange, all as more fully provided in the Indenture. The foregoing
is subject to the limitation that so long as any of the Series 2013A Bonds (as defined below) or
additional bonds, secured on a parity therewith are outstanding or unpaid, or any amounts are
owed' to the Town or the owners) of any Subordinate Bonds as a result of the exercise of its
option to cure any default under the Indenture, a failure to make a payment of principal of or
interest on any Subordinate Bonds (as defined below) or additional bonds secured on a parity
therewith shall not alone be considered an Event of Default under the Indenture and no such
Special Record Date shall be established, but such Subordinate Bonds and such additional bonds,
shall continue to bear interest at the rate specified therefor, without interest on accrued but
unpaid interest (except as otherwise provided in the Indenture). In addition, no payments will be
made under the Indenture to owners of Subordinate Bonds until payments then due with respect
to the Series 2013A Bonds and additional bonds secured on a parity therewith, and additional
required deposits to funds and accounts described in the Indenture, have been made.
Interest is computed on the basis of a 360-day year of twelve 30-day months. The
principal and any premium due in connection with the redemption of this Bond shall be payable
at the principal corporate trust office of UMB Banlc, n.a. (the "Trustee") currently located at
UMB Bank, n.a, in Kansas City, Missouri. Principal, premium, if any, and interest shall be paid
in any coin or currency of the United States of America which, at the time of payment, is legal
tender for the payment of public and private debts.
The Bonds are issued under and secured by a Second Amended and Restated Trust
Indenture dated as of August 1, 2013 (the "2013 Indenture") between the Corporation and the
Trustee, which amended and restated an Amended and Restated Trust Indenture dated as of
October 1, 2003 (the "2003 Indenture"); which amended and restated a Trust Indenture dated as
of July 1, 1998 (the "1998 Indenture" and together with the 2013 Indenture and the 2003
Indenture, the "Indenture"), in order to refinance certain costs of a project consisting of land
and a 50-unit multifamily residential rental apartment project (the "Project') in Eagle County,
Colorado, near the Town of Avon, Colorado (the "Town") by refunding certain obligations
016794\0001\10596924.3 C-2
previously issued by the Corporation. One duly authorized series of Bonds are being issued by
the Corporation under the Indenture consisting of $8,450,000 principal amount of EagleBend
Dowd Affordable Housing Corporation Multifamily Housing Project Refunding Revenue Bonds,
Series 2013A (the "Series 2013A Bonds"). The Corporation has previously issued under the
1998 Indenture, on a basis subordinate to the Series 2013A Bonds, $600,000 aggregate principal
amount of its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998B (the
"Series 1998B Subordinate Bonds"), and, on a basis subordinate thereto, $1,000,000 aggregate
principal amount of its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998C
(the "Series 1998C Subordinate Bonds" and, together with the Series 1998B Subordinate
Revenue Bonds, the "Subordinate Bonds") (the Series 2013A Bonds and the Subordinate
Bands are collectively referred to hereinafter as the "Bonds").
THIS BOND SHALL NpT BE A DEBT OR INDEBTEDNESS OF THE TOWN OF
AVON, THE STATE OF COLORADO OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE MEANING OF ANY PROVISION OR LIMITATION OF THE
CQNSTITUTION OR STATUTES OF THE STATE OF COLORADO, AND SHALL
NEVER CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE
TOWN, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF OR A CHARGE
AGAINST THEIR GENERAL CREDIT OR TAXING POWERS. THE CORPORATION
HAS NO TAXING PQWER.
If the Corporation deposits or causes to be deposited with the Trustee funds sufficient to
pay the principal or redemption price of any Bonds becoming due at maturity, by call for
redemption, or otherwise, together with the premium, if any, and interest accrued to the due date,
interest on such Bonds will cease to accrue on the due date, and thereafter the owners will be
restricted to the funds so deposited as provided in the Indenture.
If an Event of 1~efault as defined in the Indenture occurs, the principal of all Bonds issued
under the Indenture may be declared due and payable upon the conditions and in the manner and
with the effect provided previously herein and in the Indenture.
No recourse shall be had for the payment of the principal or redemption price of, or
premium, if any, or interest on, this Bond, or for any claim based hereon or on the
Indenture, against any member, officer, agent or employee, past, present or future, of the
Corporation, the Town or of any successor body, as such, either directly or through the
Corporation, the Town or any such successor body, under any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
THIS BOND IS SUBJECT TO REDEMPTION PRIOR TO MATURITY AS
FURTHER DESCRIBED HEREIN.
The Subordinate Bonds and any additional bonds secured on a parity therewith or
subordinate thereto are in all respects junior and subordinate to the Series 2013A Bonds and any
additional bonds secured on a parity therewith, and except as otherwise provided in the
Indenture, all Bonds of a series issued under the Indenture are in all respects equally and ratably
secured thereby.
016794\0001\10596924.3 C-3
The Bonds and any additional bonds are issued under and are secured by and entitled to
the protection of the Indenture, to which reference is made for a description of the respective
priorities and security pledged for payment of the Bonds of each series; the respective rights of
the owners of the Bonds of each series; the rights and obligations of the Corporation; the rights,
duties and obligations of the Trustee; the provisions relating to amendments to and modifications
of the Indenture; and the terms and conditions upon which additional bonds or other
indebtedness may be issued thereunder. Such additional bonds or other indebtedness may be
issued by the Corporation to finance additional facilities under the Indenture and to refund all or
any part of the Bonds. The owner of this Bond shall have no right to enforce the provisions
of the Indenture, or institute action to enforce the covenants thereof or rights or remedies
thereunder, except as provided in the Indenture.
A security interest and lien on the Project refinanced by the proceeds of the Series 2013A
Bonds has been created and granted by the Corporation in favor of the Trustee for the benefit of
the owner or owners of this Bond and of the series of which it forms a part pursuant to a Deed of
Trust, Security Agreement, Financing Statement, and Assignment of Rents and Revenues dated
as of October 1, 2003 as amended by the First Amendment to and Assignment of the Deed of
Trust, Security Agreement, Financing Statement, and Assignment of Rents and Revenues dated
August 14, 2013 from the Corporation to the Public Trustee of Eagle County, Colorado for the
benefit of the Trustee (the "Deed of Trust"). This Bond is an obligation of the Corporation
secured by (a) a pledge of the Funds and Net Revenues (as defined in and with the exceptions
provided in the Indenture) and, with the exceptions and priorities provided in the Indenture, all
trust accounts created under the Indenture, and (b) the lien and security interest on the Project, in
each case subject to the provisions of the Indenture and the Deed of Trust.
Optional Redemption in Whole or in Part. Bonds of this series are subject to
redemption prior to maturity at the option of the Corporation, in whole or in part and if in part by
lot, on any date, upon one Business Day's notice, such redemptions to be made at the redemption
price of 100% of the principal amount thereof, plus interest accrued to the redemption date, plus
the premium, if any, due in accordance with the terms of the Banlc Supplemental Agreement.
Sinking Fund Redemution. Bonds of this series are also subject to mandatory sinking
fund redemption prior to maturity, in pant by lot, on the dates and in the principal amounts
specified below at a price equal to 100% of the principal amount of each Bond so redeemed, plus
interest accrued to the redemption date:
016794\0001\10596924.3 C-4
Sinking Fund Sinking Fund Sinking Fund
Redemption Redemption Redemption
Date Amount Date Amount Date Amount
10/1/2013 $14,254 10/1/2014 $14,702 10/1/2015 15,164
11 / 1 /2013 14,291 11 / 1 /2014 14,740 11 / 1 /2015 15,203
12/ 1 /2013 14,327 12/ 1 /2014 14,778 12/ 1 /2015 15,243
1/1/2p14 14,364 1/1/2015 14,816 1/1/2016 15,282
2/1/2014 14,402 2/1/2015 14,854 2/1/2016 15,322
3/1/2014 14,439 3/1/2015 14,893 3/1/2016 15,361
4/1/2014 14,476 4/1/2015 14,931 4/1/2016 15,401
5/1/2014 14,513 5/1/2015 14,970 5/1/2016 15,441
6/1/2014 14,551 6/1/2015 15,009 6/1/2016 15,480
7/1/2014 14,589 7/1/2015 15,047 7/1/2016 15,520
8/1/2014 14,626 8/1/2015 15,086 8/1/2016 15,561
9/1/2014 14,664 9/1/2015 15,125
At the option of the Corporation, the principal amount of Series 2013A Bonds required to be
redeemed pursuant to mandatory sinking fund payments may be reduced, in inverse
chronological order, by the principal amount of such Bonds which shall have been delivered to
the Trustee for cancellation or which shall have been retired (otherwise than through the
operation of the sinking fund payments).
Extraordinary Mandatory RedemUtion in Whole or in Part. Bonds of this series are
subject to mandatory redemption prior to maturity in whole or in part and if in part by lot, on any
date at a redemption price equal to 100% of the principal amount thereof, plus interest accrued to
the redemption date, if one or more of the following events shall have occurred in accordance
with Section 4.05 of the Indenture:
(a) any damage or destruction to the Project;
(b) any condemnation or taking of the Project.
Any redemption under the preceding paragraphs shall be made as provided in the
Indenture upon not more than 3Q days' nor less than 15 days' notice to the Bondholder. Notice
of the call for any such redemption, identifying the Bonds to be redeemed, will be given by
mailing copies of such notice to the registered owners of Bonds to be redeemed at their addresses
as they appear on the registry books maintained by the Trustee. Ail Bonds so called for
redemption will cease to bear interest on the specified redemption date provided funds for their
redemption price and any accrued interest payable on the redemption date are on deposit at the
principal place of payment at that time. Notice of optional redemption may be conditioned upon
the deposit of moneys with the Trustee before the date fixed for redemption and such notice shall
be of no effect unless such moneys are so deposited and provided further that in the event
moneys sufficient for the redemption are not on deposit five business days prior to the scheduled
redemption date, then the redemption shall be canceled and on such date of cancellation notice
shall be mailed to the holders of such Bonds to be redeemed, by overnight mail, notifying them
that the redemption has been canceled.
016794\0001\10596924.3 C-5
Any moneys deposited and held by the Trustee for the benefit of claimants, if any, for
three years after the date on which payment therefor became due shall be repaid to the
Corporation, unless there is a dispute as to the payment thereof and thereupon and thereafter no
claimant shall have any rights to or in respect of such moneys.
This Bond is transferable by the registered owner hereof or his duly authorized
attorney only in minimum denominations of $100,000 to transferees who have delivered to
the Trustee and the Corporation a duly executed certificate of qualified investor in the
form attached hereto, or as otherwise provided in the Indenture at the principal corporate
trust office of the Trustee, upon surrender of this Bond, accompanied by a duly executed
instrument of transfer in form and with guaranty of signature satisfactory to the Trustee,
subject to such reasonable regulations as the Corporation or the Trustee may prescribe,
and upon payment of any taxes or other governmental charges incident to such transfer.
Upon any such transfer a new registered Bond of the same maturity and in the same
aggregate principal amount will be issued to the transferee. The person in whose name this
Bond is registered shall be deemed the owner hereof for all purposes, and the Corporation
and the Trustee shall not be affected by any notice to the contrary. The Registered Owner
agrees that it will duly note on the Schedule hereto all payments of principal or interest
made hereon on that it will not transfer or otherwise dispose of this Bond unless and until
all such notations have been duly made, which payments shall be verified by the Trustee in
connection with any such transfer.
In any case where the date of maturity of interest on or principal of the Bonds or the date
fixed for redemption of any Bonds shall be a Saturday or Sunday or a legal holiday or a day on
which banking institutions in the city of payment are authorized by law to close, then payment of
interest or principal or redemption price need not be made on such date but may be made on the
next succeeding business day with the same force and effect as if made on the date of maturity or
the date fixed for redemption.
This Bond is not valid unless the Trustee's Certificate of Authentication endorsed hereon
is duly executed,
IN WITNESS WHEREOF, the Corporation has caused this Bond to be executed in its
name by the manual or facsimile signature of its President or any Vice-President and its
corporate seal or a facsimile thereof to be affixed, imprinted, lithographed or reproduced hereon
and attested to by the manual or facsimile signature of its Secretary.
[SEAL]
EAGLEBEND DOWD AFFORDABLE
HQUSING CORPORATION
President
Attest:
Secretary
016794\0001\10596924.3 C-O
[FORM QF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Date of Authentication
This Bond is one of the fonds, of the Series designated herein, described in the within-
mentioned Indenture. Printed hereon or annexed hereto is the complete text of the opinion of
bond counsel, Brownstein, Hyatt, Farber & Schreck, LLP, a signed copy of which, dated the date
of original issuance of such Bonds, is on file with the undersigned.
UMB BANK, N.A.,
Trustee
By
Authorized Representative
016794\0001\10596924.3 C-7
ABBREVIATIONS
The following abbreviations, when used in the Inscription on the face of this Bond, shall
be construed as though they were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIFORM Custodian
GIFT MIN ACT (Gust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
016794\0001\10596924.3 ~;-g
Fo
rights
[FORM OF ASSIGNMENT]
r value received, the undersigned hereby sells, assigns and transfers unto
the within Bond of EagleBend Dowd Affordable Housing Corporation and all
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the said Bond on the Bond Register, with full
power of substitution in the premises,
Dated:
Signature Guaranteed:*
NOTICE: The Assignor's signature to this assignment must correspond with the name as
it appears upon the face of the within Bond in every particular without alteration or any change
whatever,
Signature guaranty must be made by a guarantor institution participating in the Securities
Transfer Agents Medallion (STAMP) Program.
016794\0001 \ 10596924.3 C-9
[SCHEDULE]
Date of Redemption I Amount of Redemption I Principal Amount
016794\0001 \ 10596924.3 C-1 Q
[FORM OF CERTIFICATE OF QUALIFIED INVESTOR]
EagleBend Dowd Affordable Housing Corporation
UMB Banlc, n.a., as Trustee
Town of Avon, Colorado
RE: Eaglebend Dowd Affordable Housing Corporation Multifamily Housing Project
Refunding Revenue Bonds, Series 2013A
("Purchaser") has agreed to purchase the above referenced
bonds (the "Bonds") in the amount of $8,450,000 which were issued in the original aggregate
principal amount of $8,450,p00 by EagleBend Dowd Affordable Housing Corporation (the
"Corporation") bearing interest at the interest rate of 3.10% as set forth in the Second Amended
and Restated Trust Indenture dated as of August 1, 2013 the ("Indenture"), between the
Corporation and UMB Banlc, n,a., as trustee (the "Trustee"). All capitalized terms used herein,
but not defined herein, shall have the respective meanings set forth in the Indenture. The
undersigned, an authorized representative of the Purchaser, hereby represents to you that:
1. The Purchaser has sufficient knowledge and experience in financial and business
matters, including purchase and ownership of municipal and other tax exempt obligations, to be
able to evaluate the risks and merits of the investment represented by the purchase of the Bonds.
2. The Purchaser has authority to purchase the Bonds and to execute this letter and
any other instruments and documents required to be executed by the Purchaser in connection
with the purchase of the Bonds.
3. The undersigned is a duly appointed, qualified and acting representative of the
Purchaser and is authorized to cause the Purchaser to make the certifications, representations and
warranties contained herein by execution of this letter on behalf of the Purchaser.
4. The Purchaser is (a) an affiliate of FirstBanlc, (b) a trust or other custodial
arrangement established by FirstBanlc or one of its affiliates, the owners of the beneficial
interests in which are limited to "qualified institutional buyers" as defined in Rule 144A
promulgated under the Securities Act of 1933, as amended (the "1933 Act") or (c) a qualified
institutional buyer that is a commercial bank with capital and surplus of $5,000,000,000 or more
and is able to bear the economic risks of such investment.
5. The Purchaser understands that no official statement, prospectus, offering
circular, or other comprehensive offering statement is being provided with respect to the Bonds.
The Purchaser has made its own inquiry and analysis with respect to the Corporation, the town of
Avon, Colorado (the "Town"), the Project, the Bonds and the security therefor, and other
material factors affecting the security for and payment of the Bonds.
6. As a sophisticated investor, the Purchaser has made its own credit inquiry and
analysis with respect to the Indenture, the Corporation, the Project, and the Bonds, and has made
an independent credit decision based upon such inquiry and analysis. The Purchaser
acknowledges that it has either been supplied with or been given access to information, including
financial statements and other financial information, regarding the Corporation, to which a
016794\0001 \10596924.3 C-11
reasonable investor would attach significance in making investment decisions, and has had the
opportunity to aslc questions and receive answers from knowledgeable individuals concerning the
Corporation, the Town, the Project, the Bonds and the security therefor, so that as a reasonable
investor, it has been able to make its decision to purchase the Bonds.
7. THE PURCHASER UNDERSTANDS THAT:
(a) NEITHER THE STATE OF COLORADO NOR ANY POLITICAL
SUBDIVISION OR AGENCY OF THE STATE OF COLORADO (INCLUDING
THE TpWN), SHALL BE LIABLE OR OBLIGATED (GENERALLY,
SPECIALLY, MORALLY OR OTHERWISE) TO PAY THE PRINCIPAL OF
THE BONDS OR THE PREMIUM, IF ANY, OR INTEREST THEREON, AND
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE
STATE OF COLORADO, OR ANY POLITICAL SUBDIVISION OR AGENCY
THEREOF (INCLUDING THE TOWN) IS PLEDGED TO PAYMENT OF THE
PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS; AND
(b) THE CORPORATION HAS NO TAXING POWER AND
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST ON THE BANDS IS
PAYABLE SOLELY OUT OF THE MONEYS TO BE RECEIVED BY THE
TRUSTEE FROM THE CORPORATION UNDER THE INDENTURE AND
AMOUNTS ON DEPOSIT IN THE FUNDS AND ACCOUNTS ESTABLISHED
AND PLEDGED UNDER THE INDENTURE.
8. We have been furnished with the Indenture, the Banlc Supplemental Agreement,
[the Pledge Agreement,] the legal opinions and other related documents executed and delivered
in connection therewith.
9. The Purchaser has discussed with its professional, legal, tax and financial advisors
the suitability of an investment in the Bonds for its particular tax and financial situation. The
Purchaser's legal counsel had the opportunity to review and advise the Purchaser on the
Indenture, the Deeds of Trust (as defined in the Indenture) and the Bank Supplemental
Agreement.
10. The Purchaser understands that the Bonds (i) are not registered under the 1933
Act and are not registered or otherwise qualified for sale under the "Blue Sky" laws and
regulations of any state, (ii) are not listed on any stock or other securities exchange, and (iii)
carry no rating from any credit rating agency.
11. The Bonds are being acquired by the Purchaser for investment for its own account
and not with a present view toward resale or distribution, except (i) in full good-faith compliance
with all applicable state and federal securities laws (including, but not limited to, any offer, sale,
transfer, exchange or disposition to an affiliate, fund, trust, pool or other legal entity with
capacity to acquire comparable investment securities) (each a "Transferee"), (ii) with full and
accurate disclosure of all material facts to the prospective Transferee(s), (iii) either under
effective federal and state registration statements (which the Corporation shall not in any way be
obligated to provide) or pursuant to exemptions from such registrations, (iv) in whole, and not in
016794\0001 \10596924.3 C- I Z
part and (v) to Transferee who agrees to sign an investor letter substantially identical to this letter
and otherwise in form satisfactory to the Corporation and Bond Counsel.
All confirmations, affirmations, statements and provisions of the Purchaser in this
Investor Letter are made solely and exclusively for the benefit of the Corporation and Bond
Counsel in connection with its purchase of the Bonds. In no event shall any other panty be
entitled to rely in any way upon any such confirmation, affirmation, statement or provision.
The foregoing representation shall survive the execution and delivery to the Purchaser of
the Bonds and the instruments and documents contemplated thereby
Titl
Address for Notices and payment of principal and interest:
Attention:
Tax ID number:
[END OF BOND FORM)
016794\0001\10596924.3 C-13
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
SUPPLEMENTAL INDEMNIFICATION AGREEMENT
WHEREAS, EagleBend Dowd Affordable Housing Corporation (the "Corporation") has
previously entered into a Project Agreement dated as of July 1, 1998 (the "Project Agreement")
with the Town of Avon, Colorado (the "Town"), in connection with the financing of the costs of
a project consisting of a 50-unit multifamily residential rental apartment project known as
"Kayak Crossing" (the "Project"); and
WHEREAS, the Project Agreement provides that title to the Project shall vest in the
Town at such time as all obligations under the 1998 Indenture (including the Bonds as defined
therein) are discharged; and
WHEREAS, to finance the Project the Corporation has previously entered into a Trust
Indenture dated as of July 1, 1998 and has issued its Multifamily Housing Project Revenue
Bonds, Series 1998A in an original aggregate principal amount of $9,000,000 (the "Series
1998A Bonds"), its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998B in
an original aggregate principal amount of $600,000, and its Multifamily Housing Project
Subordinate Revenue Bonds, Series 1998C in an original aggregate principal amount of
$1,000,000; and
WHEREAS, the Corporation issued its Multifamily Housing Project Refunding
Revenue Bonds, Series 2003A in the original aggregate principal amount of $9,520,000 (the
"Series 2003A Bonds") pursuant to an Amended and Restated Trust Indenture dated as of
October 1, 2003 (the "2003 Indenture") with U.S. Bank National Association, as trustee, and
the used the proceeds of the Series 2003A Bonds to refund, redeem and defease the outstanding
Series 1998A Bonds; and
WHEREAS, the Corporation now. desires to refund the Series 2003A Bonds and,
in order to provide funds therefor, the Corporation intends to amend and restate the 2003
Indenture by entering into a Second Amended and Restated Trust Indenture dated as of August 1,
2013 (the "2013 Indenture") with UMB Bank, n.a., as Trustee (the "2013 Trustee"), and
intends to issue pursuant to such 2013 Indenture its Multifamily Housing Project Refunding
Revenue Bonds, Series 2013A, in an aggregate principal amount not to exceed $8,450,000 (the
"Series 2013A Bonds"); and
WHEREAS, the Series 2003 Indenture requires the consent of the Town to the
refunding of the Series 2003A Bonds; and
WHEREAS, in consideration of its approval of the refunding of the Series 2003A Bonds
the Town has requested indemnification from the Corporation.
NOW, THEREFORE, the Corporation and the Town hereby agree:
The Corporation will indemnify and save harmless the Town and its officers, agents and
employees and members of its Town Council, past, present and future, against all liabilities,
losses, damages (including consequential damages), claims, demands and judgments of any
016794\0001\10607782.1
PUBFIN/1674453.2
nature (together, "Indemnified Matters") arising out of the construction, possession, conduct or
management of the Project, the condition of the site therefor, or the Corporation's undertaking of
the financing and refinancing of the Project through issuance of the 2013A Bonds and any
Additional Bonds (as defined in the 2013 Indenture) and the Town's approval thereof, other than
Indemnified Matters arising from willful misconduct of the Town. If the Corporation receives
prompt notice from the Town that any such Indemnified Matter in the nature of a claim has been
asserted, the Corporation will assume at its expense the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion. If the Town so elects, it may
participate in the defense of such claims, and may be represented by counsel of its own choice, at
its own expense; provided, however, in the event that the Corporation shall assume such defense
and the Town shall be advised by independent legal counsel that there may be legal defenses
available to it that are different from or in addition to those available to the Corporation, then the
Town shall have the right, but not the obligation, to undertake the defense of, and to compromise
or settle the claim or other matter on behalf of, for the account of, and at the risk of, the
Corporation.
This Supplemental Indemnification Agreement is executed on behalf of the Town of
Avon, Colorado, by its Mayor and attested by its Town Clerlc and by EagleBend Dowd
Affordable Housing Corporation by its President this August _, 2013.
[SEAL]
Mayor
Attest:
Town Clerk
EAGLEBEND DOWD AFFORDABLE
HOUSING CORPORATION
President
016794\0001\10607782.1
PUBFIN/1674453.2
MEMORANDUM
TO: Town Manager
Town Council
Town of Avon, CO
FROM: Gerry Flynn, Vice President
Buffalo Ridge Affordable Housing Corporation
DATE: August 5, 2013
RE: Request to modify Town Resolution# 13-17
The amount referenced in section 1 of the above referenced Town Resolution # 13-17 is needs to be
modified to the originally proposed language of" .... Subordinate Notes not to exceed $850,000 in principal
amount ... ". The amount had previously been changed to $822,000, representing the amount owing as of
June 30, 2013, resulting from principal and accrued interest on existing obligations of Buffalo Ridge as of that
date. The closing date of the proposed refinancing has been delayed as a result of a dispute with the
subordinate bondholder resulting in additional accrued interest of $149 per day. Such dispute has since been
resolved and we now expect the HUD refinancing to close prior to the end of August 2013.
Please modify the amount as suggested above. The actual subordinate note amount(s) will be determined by
based on the delayed closing date.
ousing Corporation
28 znd Street + Suite 215 + Edwards Colorado 81632
(970) 926 8686 • fax (970) 926 8690
4851-8994-7668.4
RESOLUTION NO. 13-17
TOWN OF AVON, COLORADO
SERIES OF 2013
RESOLUTION APPROVING THE EXECUTION AND DELIVERY BY
BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION OF A
MORTGAGE LOAN AND SUBORDINATE NOTES; AUTHORIZING
CERTAIN AMENDMENTS; AND AUTHORIZING INCIDENTAL ACTION.
W I T N E S S E T H :
WHEREAS, Buffalo Ridge Affordable Housing Corporation (the “Corporation”) has
been duly organized under the provisions of the Colorado Revised Nonprofit Corporation Act,
Articles 121 through 137 of Title 7, Colorado Revised Statutes, as amended, for the purpose of
acquiring interests in real property and to construct, install and operate certain improvements in
the Town of Avon, Colorado (the “Town”); and
WHEREAS, the Corporation acquired real and personal property and constructed
improvements to provide dwelling accommodations at rentals within the means of individuals or
families of low or moderate income (the “Project”), known as the Buffalo Ridge I Apartments;
and
WHEREAS, in order to finance the Project, the Corporation entered into a Trust
Indenture dated as of May 1, 2002 (as amended on March 8, 2011, the “Indenture”) with Wells
Fargo Bank, N.A., formerly known as Wells Fargo Bank West, National Association, as Trustee
under the Indenture (the “Trustee”) and issued its Multifamily Housing Project Revenue Bonds
(GNMA Mortgage-Backed Securities Program—Buffalo Ridge I Apartments Project), Series
2002, in an aggregate principal amount of $10,315,000 (collectively, the “Bonds”); and
WHEREAS, the Town and the Corporation executed and delivered a Project Agreement
dated as of May 1, 2002, and amended on March 8, 2011 (the “Project Agreement”), under the
terms of which the Corporation is responsible for operating the Project, and, subject to certain
conditions, title to the Project shall vest in the Town upon the end of the term of the Project
Agreement; and
WHEREAS, in order to provide funds for the Project, AMI Capital, Inc. (the “Original
Lender”) originated a mortgage loan to the Corporation insured by the FHA (the “Original
Mortgage Loan”), which loan is currently held by Midland Holdings; and
WHEREAS, in order to evidence its obligations under the Original Mortgage Loan, the
Corporation executed and delivered to the Lender a promissory note in the amount of
$10,315,400 (the “Original Mortgage Note”) and in order to secure its obligations under the
Original Mortgage Note the Corporation executed and delivered to the Lender a deed of trust on
the Project (the “Original Mortgage”) for the benefit of the Lender; and
WHEREAS, the Bonds have been redeemed in full; and
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4851-8994-7668.4
WHEREAS, the Corporation desires to (a) enter into a new mortgage loan (the “New
Mortgage Loan”) with CBRE HMF, Inc. (the “New Lender”) in order to refinance the Original
Mortgage Loan and to pay off certain existing obligations of the Corporation previously
approved by the Town; (b) enter into two subordinate cash flow notes (the “Subordinate Notes”)
to pay off certain existing obligations of the Corporation approved by the Town (the
“Subordinate Notes”); (c) amend and restate the Project Agreement; and (d) terminate the
Indenture; and
WHEREAS, proposed forms of the Note (the “New Mortgage Note), the Multifamily
Deed of Trust Assignment of Leases and Rents and Security Agreement (the “New Mortgage
Deed”) and the U.S. Department of Housing and Urban Development Regulatory Agreement for
Multifamily Housing Projects (the “New Mortgage Regulatory Agreement”) relating to New
Mortgage Loan (collectively, together with any other documents executed in connection
therewith, the “New Mortgage Loan Documents”); Subordinate Notes; Amended and Restated
Project Agreement; and Termination of Indenture (collectively, the “Agreements”) have been
presented before the Town Council at this meeting;
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, AS FOLLOWS:
1. Consent. The Town hereby consents to the Corporation’s execution and delivery
of the Termination of Indenture, the New Mortgage Note, the New Mortgage Deed and the New
Mortgage Regulatory Agreement, substantially in the form presented to Town Council at this
meeting, together with any documents related thereto; provided the New Mortgage Loan does
not exceed $10,100,000 in principal amount, does not bear interest at a rate exceeding 3.5%, and
matures on or before December 31, 2043. Furthermore the Town consents to the execution of
the Subordinate Notes amending and restating certain pre-existing indebtedness of the
Corporation, provided such Subordinate Notes do not exceed $850,000 in principal amount, do
not bear interest at a rate exceeding 7.5% and mature on or before December 31, 2043.
2. Approval. The Town hereby approves the terms of the Amended and Restated
Project Agreement in the form presented to Town Council at this meeting subject to such
changes as approved by the Town Manager.
3. Issuance of Indebtedness. The indebtedness evidenced by the Agreements, with
such changes as may be approved by the Town Manager, are, in all respects, hereby approved.
Such indebtedness shall bear interest payable at the rates and times and will mature in the
amounts and on the dates set forth in the Agreements.
4. Town Action. All actions taken by the members of the Town Council and other
officials of the Town with respect to the Agreements are hereby ratified and confirmed. The
Mayor of the Town (the “Mayor”) and the Town Clerk of the Town (the “Town Clerk”) are
hereby authorized and directed to execute, deliver, acknowledge or consent to, as applicable, the
Agreements and to take all action necessary or reasonably required by the terms of the
Agreements to carry out, give effect to and consummate the transactions contemplated hereby
and thereby, with such variations or revisions thereto deemed necessary or appropriate by the
Deleted: 822
3
4851-8994-7668.4
Town Manager, and the execution and delivery of such incidental closing certificates and
releases as the Town Manager may determine to be necessary.
5. No Indebtedness of the Town. No provision of this Resolution or of the
Agreements or any other instrument executed in connection therewith, shall be construed as
creating an obligation on the part of the Town to pay the principal of, premium, if any, or interest
on indebtedness evidenced by the Agreements, nor as creating an indebtedness or financial
obligation on the part of the Town within the provisions or limitations of any statutory or
constitutional provision of the laws of the State of Colorado.
6. Title to Project. The Town hereby determines that it will accept title to the
Project, including any additions thereto, when the indebtedness evidenced by the Agreements is
fully paid and discharged in accordance with the Agreements.
7. Corporation’s Board of Directors. The Town hereby confirms the following as
the current Board of Directors of the Corporation.
Gerald E. Flynn
Jeffrey Spanel
Larry Brooks
Michele Evans
Craig Ferraro
8. Severability. If any provision of this Resolution should be held invalid, the
invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provisions hereof are severable.
9. Other Actions. The appropriate officers of the Town are hereby authorized to
execute and deliver for and on behalf of the Town, any or all additional certificates,
acknowledgments, documents and other papers and to carry all other acts they may deem
necessary or appropriate in order to implement and carry out the matters authorized in this
Resolution and in the Agreements.
10. Effective Date; Repealer. This Resolution shall take effect immediately upon its
passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in conflict with this
Resolution are hereby repealed or modified to the extent of such conflict.
[Remainder of page intentionally left blank]
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4851-8994-7668.4
INTRODUCED, APPROVED AND ADOPTED the 28th day of May 2013.
[SEAL]
TOWN OF AVON, COLORADO
By
Rich Carroll, Mayor
Attest:
By
Patty McKenny, Town Clerk
5
4851-8994-7668.4
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The Town Council of the Town of Avon, Colorado, held a regular meeting open to the
public at the Town Council Chambers at 400 Benchmark Road, Avon, Colorado, on May 28,
2013, at 5:30 p.m.
The following members of the Town Council, constituting a quorum thereof, were
present:
Council Members:
The following members of the Town Council were absent:
Council Members:
The following persons were also present:
Council Member __________ moved that the Resolution be finally passed and adopted
and numbered 13-16. Council Member __________ seconded the motion, and the question
being upon the final passage and adoption of the Resolution, the roll was called with the
following results:
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4851-8994-7668.4
Council Members Voting “Yes”:
The following Council Members recused due to Conflict of Interest:
The Mayor thereupon declared the Resolution finally passed and adopted and instructed
the Town Clerk to number the same as moved.
After consideration of other business to come before the Town Council, the meeting was
adjourned.
[SEAL]
TOWN OF AVON, COLORADO
By
Rich Carroll, Mayor
Attest:
By
Patty McKenny, Town Clerk
7
4851-8994-7668.4
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
I, Patty McKenny, Town Clerk of the Town of Avon, Colorado, do hereby certify that the
attached copy of Resolution No. 13-16, Series of 2013, is a true and correct copy; that said
Resolution was passed by the Town Council of the Town of Avon, Colorado, at its regular
meeting held at 400 Benchmark Road, Avon, Colorado, the regular meeting place thereof, on
May 28, 2013; that a true copy of said Resolution has been authenticated by the signatures of the
Mayor of the Town of Avon and myself as Town Clerk thereof, sealed with the seal of the Town,
and numbered and recorded in a book kept for that purpose in my office; that the foregoing pages
1 through 6, inclusive, constitute a true and correct copy of the record of the proceedings of said
Town Council at its regular meeting of May 28, 2013, insofar as said proceedings relate to said
Resolution; that said proceedings were duly had and taken, that the meeting was duly held; and
that the persons were present at said meeting as therein shown.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Town of
Avon, Colorado this _____ day of _______, 2013.
[SEAL]
TOWN OF AVON, COLORADO
By
Patty McKenny, Town Clerk
4851-8994-7668.4
EXHIBIT A
AGREEMENTS
1 New Mortgage Note.
2. New Mortgage Deed.
3. New Mortgage Regulatory Agreement.
4. Subordinate Notes.
5. Amended and Restated Project Agreement.
6. Termination of Indenture.
TOWN COUNCIL REPORT
To: Honorable Mayor and Avon Town Council
From: Virginia Egger, Town Manager
Date: August 9, 2013
Agenda Topic: Review and Action Review and Action on Railroad Bridge and Abutments Refurbishment in
the Amount of $98,107 with Monies being provided from the Capital Projects Fund
At Town Council’s work session on May 28, 2013, staff presented a 5-Year Capital Improvement Program Funding
Scenario (see attached), which included certain improvements targeted at the 2015 World Alpine Championships,
recommended as part of the 2014 budget. One of those improvements has been recommended by Councilor Jennie
Fancher - the enhancement of the railroad bridge façade. The preliminary estimated cost for the improvement,
including a portion covered with a stone veneer, was $75,000.
In July, certain east Avon properties were purchased by Hoffmann Properties, including Benchmark Shopping Center,
the Annex, Christie Sports, and Nottingham Station. The new owner has applied for paint color approval for most of
the existing buildings and has already begun to clean-up landscaping. New asphalt overlays are planned in the parking
lot. In our discussions, the owner has asked if the Town would consider improvements to the railroad bridge crossing
this summer so it will coincide with the other upgrades to their East Avon properties.
The Union Pacific Railroad, which owns the bridge but not the façade, allows for maintenance improvements without
prior approval under the existing Town/UPRR agreement. A review by staff indicates the following improvements
are considered maintenance to the bridge façade and, therefore, do not require UPRR approval. The work can be
completed in the next two months:
Retaining walls both sides: stone veneer to match The Westin: $79, 707
Paint entire bridge: trestle and columns 18,400
Total $98,107
Detailed cost estimates are available from Matt Pielsticker, Senior Planner.
The May 28th Funding Scenario showed the improvement could be funded in 2013 instead of 2014 and paid from
Capital Projects Revenue without reducing the $1.5M Reserve. In order for this project to move forward a Minor
Design and Development Plan must be processed by Town staff and the monies must be allocated by the Town
Council.
Motion: If Council would like to approve the enhancements and provide funding, a motion and vote is appropriate.
Attached – 5-Year Capital Improvement Funding Scenario
FROM MAY 28TH WORK SESSION:
OVERVIEW OF TOWN PROPERTIES, SITE WALK AND PRELIMINARY 5-YEAR CAPITAL IMPROVEMENT PROGRAM
FUNDING SCENARIO
5-YEAR CAPITAL IMPROVEMENT PROGRAM
WITH LONG TERM FINANCING
1. Maintain Capital Fund Balance, End of Year of $1,500,000 or more.
2. Implement 5-year Street Pavement Prevention Program for residential and rural roads to extend the
life of the pavements beginning in 2013. Accelerate core asphalt repair schedule for deteriorated street
sections.
3. Discontinue Nottingham Lake as a winter ice skating venue; develop a slab/boards surface on the
athletic field or in front of the Recreation Center.
4. 2015 Alpine World Championships: Plan in the 2014 Budget for the following Capital Improvements:
o Pedestrian Mall URA & Capital Projects Fund $ 359,000
o Heat Recovery Capital Projects Fund $ 350,000
o Recreation Center Shower Remodel Capital Projects Fund $ 100,000
o Recreation Water Slide Replacement Facilities Reserve Fund $ 100,000
o Improve RR Bridge Façade Capital Projects Fund $ 75,000
o Welcome to Avon Monument Capital Projects Fund $ 100,000
o Avon Road Streetscape Improvements Capital Projects Fund $ 200,000
o Transit Stop Improvements Capital Projects Fund $ 75,000
o Rubber Tired Trolley/East West Capital Projects Fund $ 180,000
Connection on Benchmark Road
o Parking Structure – Funded through Public-Private Partnership
5. Projects – Long-Term Financing:
NOTE: Cost Estimates are only best ranges for this preliminary session.
BOND RECEIPTS AND USES 1999 Revenue Bonds GO BONDs URA Refunding
AVAILABLE FUNDS $6.3 - 7.7 M $8.4 - 10.7 $1.1 - 2.8
AVAILABLE PROCEEDS - SCENARIO 1 7,700,000 9,000,000 2,000,000
USES
Town Hall 12,000@400 4,800,000
- Multi-Purpose "Theatre" Costs 700,000
- 34 x 24 tension membrane tent 400,000
Recreation Center Expansion/Refurbishment/Multi-
use "Theatre" costs 7,000,000
Playground Equipment 770,000
Restrooms Remodel 275,000
Upper Athletic Field Remodel 350,000
Pump House Remodel 50,000
Ice Rink 230,000
TOTAL: $3,900,Seasons Pedestrian Mall/Lettuce Shed
Lane/Park Connection (Additional $100,00 from 2014
Capital Projects Fund) 1,800,000 2,000,000
TOTAL 7,700,000 8,675,000 2,000,000
Appendix 2 – Project Descriptions – Page 7
Appendix 3 - Definitions - Page 1
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 1
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Matt Pielsticker, Senior Planner
Date: August 7, 2013
Agenda topic: Second Reading of Ordinance 13‐09, Title 7: Development Code Text Amendments
General Procedures, Natural Resource Protection, and PUD Sections
Summary
The Town Council approved the 2013 Work Plan on February 26, 2013, which includes the
following task: “Identify with the PZC Code Amendments, including “clean‐up” of definitions,
charts, etc. identified through use of the Code over the past year and sections which should be
updated, and sections which should be updated such as the sign code”. In order to prioritize
the review of potential amendments identified by Staff, the Planning and Zoning
Commission (“PZC”), and Council, the list of amendments was broken into “Tier 1” and “Tier
2” amendments by PZC.
The entire list of amendments was presented to the Town Council on April 4, 2013, at which
time Council initiated the formal review process. The attached (Attachment A) Ordinance
and strikethrough code language encompass all of the “Tier 1” amendments.
The Town Council approved First Reading of Ordinance July 17, 2013; at the hearing the
Council discussed the amendments and took public comments. After discussing the
amendments, Staff was directed to schedule the Public Hearing for August 13, 2013 for final
action.
Based on comments received and deliberations on July 17, 2013, Staff was directed to make
additional changes to the code language. The following amendments show up as blue line
strikethrough in the attached Ordinance, and represent the changes since first reading of
Ordinance 13‐09:
1. Findings of Fact Timeframe –While discussing change in timeframe for public
hearings increasing from thirty‐five (35) to sixty‐five (65) days, the Town Attorney
recommended addressing the findings of fact. After a public hearing is conducted,
the PZC/Council will be allowed to formulate findings and a final record of decision
within thirty‐five (35) days.
2. PUD Amendments Process ‐ Continue to process “Minor PUD Amendments” with
Council as deciding body, but with no Ordinance.
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 2
3. Minor Subdivisions– Instead of Minor Subdivisions going to Council, they will be
approved administratively. Minor Subdivisions create four (4) parcels or less and do
not include any public improvements.
Process
The process for Avon Municipal Code (“AMC”) amendments are governed by AMC §7.16.040.
Code text amendments may only be initiated by a property owner, registered elector, or Town
Council. Once initiated, the process follows the usual public hearing review procedure outlined in
the AMC (i.e. Staff recommendation to PZC, PZC recommendation to Council, and final action by
Council with Ordinance).
PZC Review
These AMC Amendments were referred to PZC for review and recommendation. After
holding public hearings, two separate recommendations were forwarded to the Town
Council by PZC for final action by Ordinance. Please find PZC Resolutions 13‐03 and 13‐05
(Attachment C) for your review and consideration.
Proposed Amendments
The proposed modifications outlined in Ordinance 13‐09 will not only provide clarity, but will also
cleanup Development Code (Title 7, AMC) sections that are redundant, contradictory, obsolete,
or have been found to be troublesome for code users. For example, when processing
amendments to a Final PUD plan you are directed to Section 7.16.020(g), Minor Amendment,
AMC; this section is intended to apply to approved development applications and not to
approved zoning standards that are tied to Final PUD plans.
Following is a section by section review, in order of appearance, outlining the changes:
Table 7.16‐1, Development Review Procedures and Review Authority – Page 53
This table is amended to show the newly created Minor and Major PUD review categories.
The other changes to the table are not substantive, but are intended to make the table easier
to read and find the applicable process. The 1041 permit procedure was absent from the table,
and the term “rezoning” was changed to “zoning amendment” in order to provide
consistency with that particular code section (§7.16.050) and process.
Section 7.16.020(e), Step 5: Public Hearings – Pages 57‐58
The PZC or Council can continue a public hearing on its own initiative for a maximum of thirty‐
five (35) days after the date of the first public hearing, or up to ninety‐five (95) days with the
consent of the applicant. During the course of reviewing a highly complex application this
past year PZC expressed the desire to lengthen the time‐frame based on the size or difficulty
of the application. The current thirty‐five (35) day review window provides the PZC up to
three (3) regularly scheduled meeting for review and also allows for the ability to schedule
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 3
special meetings. The ninety‐five (95) day review window provides the PZC up to eight (8)
regularly scheduled meetings and additional special meetings. The PZC recommended
increasing the maximum allotted time‐frame for public hearings, in instances where the
applicant does not provide consent, for up to sixty‐five (65) days to allow up to three (3)
additional hearings. The Town Council discussed this change at first reading and appeared
comfortable with PZC’s recommended change.
While discussing this code section at first reading, the Town Attorney recommended adding
language to permit additional time for the review body to produce written findings of fact and
record of decision. This change has now been incorporated in the strikethrough.
Section 7.16.020(g), Minor Amendment – Pages 59‐60
This section will be removed in its entirety for a variety of reasons. First, the section deals with
amendments to already approved development applications (i.e. changes between approval
and building permit), and these instances are already handled through the Minor Design and
Development Plan process. Secondly, Code users are cross‐referenced to this section only in
the instance of an Amendment to a Final PUD. Staff has found this code section inadequate
and inappropriate in the case of PUD Amendments because it deals with approved
“development applications” and not PUD plans which are two entirely different types of
approval. Furthermore, this section does not contain process requirements or review criteria
which are essential to reviewing a PUD amendment. Since this section does not translate well
to PUD Amendment situations Staff has provided other amendments to §7.16.060, Planned
Unit Development, to deal with those cases. Those changes are discussed further below.
Section 7.16.060(e)(4), Review Criteria – Page 66
Currently, if a PUD amendment is being processed via the Minor Amendment section
mentioned above, there are not a clear set of review criteria for Staff, PZC, or Council to
consider. This amendment clarifies that the same review criteria for a Preliminary and Final
PUD can be used as the basis for the review of a PUD Amendment (Minor or Major).
Section 7.16.060(h), Amendments to a Final PUD – Pages 68‐69
This section is the impetus for some of the other related amendments herein. As stated, the
cross‐reference to §7.16.020(g), Minor Amendment, is removed because that section will be
functionally obsolete with the creation of new Minor and Major amendment language for
PUDs.
This amendment would further delineate PUD amendments into three categories: 1)
Administrative; 2) Minor; and 3) Major. Administrative amendments are intended only to
address corrections to errors or mistakes that are determined to be “non‐substantive” by the
Director. Table 7.16‐1, Development Review Procedures and Review Authority, has included
reference to Administrative PUD Amendments but there was no section to explain what can
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 4
be processed in this fashion. Criteria were added to help distinguish what can be processed as
Minor vs. Major. Lastly, the review procedure is further defined and Major PUDs would
continue to go through a Preliminary and Final stage of review.
Minor PUD Amendments would continue to be processed through the PZC/Council public
hearing process. PZC discussed their desire to allow Minor PUD amendments to only require a
public hearing with PZC and not be required to go to Council with two additional readings of
an Ordinance. Council discussed this recommendation and instead of shifting the final review
authority to PZC, a public hearing and resolution would be required by Council instead of an
Ordinance approval. This approach has been reflected in the attached (Attachment A)
Ordinance. It further streamlines the process for Minor PUD Amendments while maintaining
Council oversight.
Section 7.16.070 Minor Subdivisions – Page 73
At the last hearing regarding these code amendments, public comments (attachment X) were
considered, including changing the review authority for Minor Subdivisions since they are
often tied to Minor PUD Amendments. Minor Subdivisions are defined as subdivisions that
create less than four (4) separate parcels of land, do no not require or propose public
improvements, and/or consolidate two (2) or more lots into a single lot. Condominium and
timeshare subdivisions (also without public improvements caveat) more than four (4) units
are also considered Minor Subdivisions.
In order to further streamline the review process for these subdivision applications, Council
directed Staff to modify this code section to allow for Staff approvals. If a Minor PUD
Amendment is contingent upon a subdivision approval, the subdivision could not be
processed until Council approved the PUD portion of the application.
Section 7.16.080(b)(2) Minor Development Plan – Page 76
As mentioned above, there is redundancy in the Code when processing changes to approved
development plans. Staff has and will continue to process these types of changes to an
approved development plan application via the Minor Development Plan process. This change
clarifies that this section applies not only to changes to an existing developed property, but
also to design approvals that may have changed slightly since PZC approval but have not gone
to building permit. It is typical to have minor changes to approved design plans when
architectural drawings are updated due to engineering or other considerations.
Section 7.16.090, Design Review – Page 78
The reference to the Avon Design Guidelines is being removed as that document was
repealed with the adoption of Title 7 two years ago.
Section 7.28.100(a), Steep Slopes – Pages 171‐174
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 5
This would amend the applicability of the Steep Slopes section to apply to all new
development, except for subdivisions, PUD, or zoning amendments where the amendment
does not result in an increase in density. These regulations have hindered the ability for
property owners to subdivide and amend their development pattern through zoning (i.e. PUD
amendments in Wildridge) when no benefit to upholding the regulations has been identified.
Prior discussions of the PZC have revolved around the original intent of the regulations, and it
was determined that they were never intended to apply to subdivisions where platted lots
contain steep slopes and were intended to apply to newly platted areas or when a property is
“up zoned”.
Another change is the removal of the limit on changes to natural grades. The section limits
changes, raised or lowered, for natural grade to no more than six feet (6’). Since these
regulations will now clearly apply to all development, this restriction was found by Staff to be
overly restrictive when dealing with steeper properties that are found throughout Town.
Furthermore, these regulations contradict the regulations contained within §7.28.070 that
allow the PZC to approve retaining wall in excess of seven feet (7’).
Section 7.32.020, Layout and Design Generally – Pages 200‐201
Currently there are different ‘trigger points’ for the Lots and Building Envelope and Building
Envelope sections. To provide consistency, and to follow through with the direction provided
by Town Council with the approval of a recent Variance application, most of the Building
Envelope requirements have been removed, and the entire Layout and Design Generally
section is restated to apply to all new development. This achieves several goals: 1) Building
Envelopes are no longer required when slopes exceed thirty percent (30%); 2) Minimum
buildable area requirements are retained; 3) Wildlife considerations are retained for steeper
properties; and 4) When lots are “replatted” a property owner who possess steep lots will not
be hindered by regulations that were not in affect prior to the 2010 Development Code
adoption.
Review Criteria
According to §7.16.040(c), Code Text Amendment Review Criteria, the Council shall use the
following review criteria as the basis for recommendations on applications to amend the
text of the Avon Municipal Code:
(1) The text amendment promotes the health, safety, and general welfare of the Avon
Community;
(2) The text amendment promotes or implements the goals and policies of the Avon
Comprehensive Plan;
(3) The text amendment promotes or implements the purposes stated in the
Development Code; or
(4) The text amendment is necessary or desirable to respond to changed conditions,
new planning concepts, or other social or economic conditions.
Ordinance 13‐09 Code Text Amendments
August 13, 2013 Town Council PUBLIC HEARING Page 6
Staff Response: The proposed amendments appear to implement the purposes stated in the
Development Code, including conserving the value of the investments of the people of the Avon
community. The Development Code was intended to streamline development processes, and
not unduly restrict property owners who wish to change their development rights; especially
when there is no increased impacts to the natural environment as would be expected with a
down‐zoning application. The other amendments clearly fall into the “cleanup” category and will
help with the future implementation of the AMC.
Staff Recommendation
Approve Ordinance 13‐09 on Second and Final Reading.
Attachments:
A: Ordinance 13‐09, with Strikethrough Attachment
B: Written Public Comment
C: PZC Resolutions 13‐03 & 13‐05
Page 1 of 4
Ord No. 13-09 Amending Avon Development Code
TOWN OF AVON, COLORADO
ORDINANCE 13-09
SERIES of 2013
AN ORDINANCE AMENDING TITLE 7 OF THE AVON MUNICIPAL CODE,
INCLUDING GENERAL PROCEDURES, PLANNED UNIT DEVELOPMENT
AMENDMENTS, NATURAL RESOURCE PROTECTION STANDARDS, AND
ENGINEERING IMPROVEMENT STANDARDS
RECITALS
WHEREAS, the Town of Avon (“Town”) is a home rule authority municipal corporation
and body politic organized under the laws of the State of Colorado and possessing the maximum
powers, authority and privileges to which it is entitled under Colorado law; and
WHEREAS, the Town adopted Ordinance No. 10-14 adopting the Avon Development Code
(“ADC”);
WHEREAS, the Town Council finds that periodic review and updates to the ADC are
necessary to respond to changing conditions and to provide clarity in review processes; and
WHEREAS, the Town Council initiated amendments to the text of the ADC in accordance
with Avon Municipal Code (“AMC”) §7.16.040 on April 4, 2013; and
WHEREAS, the Planning & Zoning Commission (“PZC”) of the Town of Avon held public
hearings on May 21, 2013, and June 18, 2013, after publishing and posting notice as required by
law, considered all comments, testimony, evidence and staff reports provided by the Town staff,
considered such information prior to formulating a recommendation to the Town Council;
WHEREAS, after conducting these noticed Public Hearings, PZC approved PZC Resolution
13-03 and 13-05, recommending approval of the amendments to the Town Council;
WHEREAS, the Town Council of the Town held public hearings on July 17, 2013 and
August 13, 2013 after posting notice as required by law, considered all comments, testimony,
evidence and staff reports provided by the Town staff prior to taking any action on the
Application;
WHEREAS, pursuant to AMC §7.16.040(c), Review Criteria, the Town Council has
considered the applicable review criteria for a Code Text Amendment;
WHEREAS, the Town Council finds approval of the Application is in compliance with the
mandatory review criteria; and,
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law, the Avon home rule charter and the Avon
Page 2 of 4
Ord No. 13-09 Amending Avon Development Code
Development Code by setting a public hearing in order to provide the public an opportunity to
present testimony and evidence regarding the application and that approval of this Ordinance on
first reading does not constitute a representation that the Town Council, or any member of the
Town Council, supports, approves, rejects, or denies the proposed zoning or other matters in this
Ordinances.
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. Amendments. The ADC is hereby amended as indicated in the attached
(“Attachment A to Ordinance 13-09”) Redline Strikethrough document.
Section 3. 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 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty days after final adoption in
accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. 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 7. 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 at the Avon Town Hall,
Avon Recreation Center and Avon Public Library, which notice shall contain a statement that a
Page 3 of 4
Ord No. 13-09 Amending Avon Development Code
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 AMC §7.16.140(d)(2).
Section 8. Final Action. Approval and final adoption of this Ordinance on second reading
constitutes the Town’s final action for the purposes of any appeal, legal challenge or referendum
seeking reconsideration of the decision of the Town Council with respect to this Ordinance and
matters approved hereby in accordance with AMC §7.16.020(f)(5) and in accordance with
Chapters VI and VII of the Avon Home Rule Charter.
[EXECUTION PAGE FOLLOWS]
Page 4 of 4
Ord No. 13-09 Amending Avon Development Code
INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED
POSTED on July 17, 2013 and a public hearing on this ordinance shall be held at the regular
meeting of the Town Council on August 13, 2013, at 5:30 P.M. in the Council Chambers, Avon
Municipal Building, One Lake Street, Avon, Colorado.
____________________________
Rich Carroll, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Patty McKenny, Town Clerk Eric Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the 13th day of August, 2013.
____________________________
Rich Carroll, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
__________________________
Patty McKenny, Town Clerk
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 53
Chapter 7.16
Development Review Procedures
7.16.010Purpose.
This chapter contains regulations and the procedures for development applications.
§7.16.020 contains regulations that are generally applicable to all development application
review procedures, described in a series of sequential steps. The purpose is to establish uniform
procedures for application types to the extent possible. Subsequent sections identify the
applicability of the common steps to specific procedures, noting any differences between the
common procedures and those for the specific procedure. Specific procedure provisions
supplement, rather than replace, provisions of the common steps, unless the provisions conflict,
in which case the provisions of the specific procedure control. Table 7.16-1 indicates the
specific review and approval procedures of this chapter, with section references.
Table 7.16-1: Development Review Procedures and Review Authority
Procedure DirectorPZC TC
Comprehensive Plan Amendment (§7.16.030) R H-R H-D
Code Text Amendment (§7.16.040) R H-R H-D
Rezoning Zoning Amendment (§7.16.050) R H-R H-D
Planned
Unit
Development
(§7.16.060)
Administrative PUD D A
Minor PUD Amendment R H-R H-D
Major PUD Amendment R H-R H-D
Preliminary PUD R H-R H-D
Final PUD R H-R H-D
Major
Subdivision
(§7.16.070)
Administrative Subdivision (§7.16.070) D A
Minor Subdivision (§7.16.070)RH-D
Preliminary Plan R H-R H-D
Final Plat R H-D
Development
Plan
(§7.16.080)
Minor Development Plan (§7.16.080)D A
Major Development Plan (§7.16.080)R H-D A
Major Development Plan in Town Core
(§7.16.080)R H-R H-D
Design Review (§7.16.090) R H-D A
Special Review Use (§7.16.100) R H-D A
Variance (§7.16.110) R H-D A
Alternative Equivalent Compliance (§7.16.120) R
H-D
or H-
R
A or H-D
Right-of-Way Vacation (§7.16.130) R H-D
Vested Property Right (§7.16.140) R H-R H-D
Location, Character, and Extent (§7.16.150) R H-D A
Appeal (§7.16.160) H-D
Annexation (§7.36) R H-R H-D
1041 Permit (§7.40) R H-R H-D
R=Review/Recommendations; H=Public Hearing;D=Decision; A=Appeal
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 54
7.16.020General Procedures and Requirements.
The following procedures shall apply to all development applications which are reviewed
under this Chapter 7.16.
(a)Step 1: Pre-application Conference. A pre-application conference is required for all
development applications unless waived by the Director. The pre-application conference serves
to assist the applicant with (1) identifying information which must be provided for a complete
development application, (2) understanding the development application review process, (3)
identifying appropriate referral agencies for review and comment, (4) achieving compliance with
development standards, understanding relevant planning issues, and (5) determining appropriate
fees. The Director may include other Town representatives in the pre-application conference as
deemed appropriate. The applicant shall provide sufficient information to the Director at least
five (5) business days prior to a scheduled pre-application conference, unless such time frame is
waived by the Director. Minimum information shall include applicant information, property
description, description of proposed development or nature of development application, and
conceptual site plans or drawings which illustrate the nature of the development application. The
Director may determine that the information provided is insufficient and request additional
information. If the applicant fails to provide sufficient information for a pre-application meeting
and seeks to proceed with the application process, the Director may notify the PZC and Council
of the lack of adequate information submitted at the pre-application conference. The Director
may provide a written letter after the pre-application conference summarizing application
submittal requirements, review procedures, development standards, planning issues, and required
fees. The informal evaluation of the Director and staff provided at the pre-application
conference are not binding upon the applicant or the Town. Critical issues relevant to a
development application may not be apparent at the pre-application conference and may require
additional review, submissions, or studies later in the application process.
(b)Step 2: Application Submittal.
(1)Applicant. The owner of real property, or authorized representative of the owner
with a properly acknowledged power of attorney, may submit a development application. No
development application shall be received for processing or approved, and no application for
a building permit shall be granted, when the applicant is in default under any related or
unrelated agreement or obligation to the Town.
(2)Application Submittal Requirements. The applicant shall submit the application
to the Director. Application submittal requirements for every application type shall be
established by the Director on submittal forms available in the Administrative Manual from
the Department of Community Development or on the Town’s website. The Director may
adopt standards and requirements for three dimensional electronic and graphic information
for application submittal requirements. The Director may waive submission requirements
where appropriate to specific applications; however, the waiver of any submission
requirement shall not preclude the Planning Commission or Town Council from requiring
such information where deemed necessary for evaluation of the development application
with the applicable review criteria. The minimum submittal requirements for all applications
shall include:
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 55
(i)Completed application form;
(ii)Owner’s signature oran acknowledged power of attorney if the owner has
authorized an agent or representative to act as the applicant;
(iii)Title insurance commitment which has been updated within sixty (60) days of the
application submittal along with copies of all documents listed in the exceptions;
(iv)Legal description of the property subject to the development application;
(v)Development application review fees; and
(vi)Survey no more than three (3) years old stamped by a surveyor licensed in the
State of Colorado.
(3)Required Studies and Reports. Reports or studies may be necessary to
adequately evaluate the development application for compliance with the review criteria.
Such reports include but are not limited to: studies of soils, geological hazards, fiscal
impacts, market analysis, traffic impacts, and/or environmental impacts. The applicant shall
furnish the reports or studies needed at the applicant’s sole expense. The Town may require
independent peer review of any report or study provided by the applicant. The applicant and
the Town may agree to retain a mutually acceptable consultant to prepare a report or study,
which cost shall be paid by the applicant. All required reports or studies shall be executed by
professionals or other persons qualified to provide the requested reports. The form and
content of reports or studies may be established by the Director and set forth in the
Administrative Manual.
(4)Concurrent Review Permitted. Where multiple development applications
concern the same property then the Director may permit concurrent review of the
development applications for efficiency and practicality.
(5)Multiple Applications. A single property shall not be permitted to have more than
one (1) application of the same type being processed concurrently.
(6)Fees. Fees shall be paid in accordance with §7.04.100, Fees.
(c)Step 3: Application Processing.
(1)Determination of Completeness. A development application shall be reviewed for
completeness by the Director within ten (10) business days after receipt. If the application is
determined to not be complete then a written communication shall be promptly provided to
the applicant indicating the specific deficiencies in the application. The determination that an
application is complete or the failure to determine an application is incomplete within ten
(10) days shall not preclude the Town from requiring information which is necessary and
relevant to evaluate the development application for compliance with the review criteria. A
determination by the Director that the application is incomplete may be appealed to the Town
Council in accordance with the procedures in §7.16.160, Appeal.
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 56
(2)Referral to Other Agencies. Development applications may be referred to other
agencies for review and comment. The Director shall attempt to identify appropriate referral
agencies and shall consider the comments from referral agencies as part of the staff review
and report. The Planning Commission and Town Council may determine that referral of a
development application to an agency for review and comment is appropriate where such
referral agencies may provide comments relevant to evaluating the development application
for compliance with the review criteria. Referral of development applications to other
agencies shall provide a minimum timeframe for review and comment of fourteen (14) days
for development plans, design review, variances, amendments to text of Development Code,
and minor subdivisions; and twenty-one (21) days for preliminary subdivision, planned unit
development, planned unit development amendments, re-zoning, and 1041 permits; however,
the timeframe for review and comment may be extended if the development application
presents technical issues which require additional review, if additional information is
provided by the applicant, or the application is modified. Referral agencies may include, but
are not limited to:
(i)Any utility, local improvement or service district, or ditch company, when
applicable;
(ii)The Colorado Department of Transportation when the proposed development is
adjacent to or in sufficient proximity to affect a right-of-way, interchange, or other
facility;
(iii)The Colorado Geological Survey for findings and recommendations pertaining
to geologic factors, including geologic hazards, mineralized areas, and sand and gravel
areas that would have a significant impact on the proposed use of the land;
(iv)Any other agency concerned with a matter or area of local interest that could be
affected by the application;
(3)Staff Review and Report. The Director shall review the application in accordance
with the criteria established in this chapter and shall prepare written findings of fact. If
authorized as the decision-making authority, the Director shall inform the applicant in
writing of the findings and determination. If not authorized as the decision-making authority,
the Director shall prepare a recommendation and submit the recommendation and findings to
the appropriate review and decision-making authority.
(4)Required Processing. Applicants shall be required to continuously and diligently
pursue their development applications which shall include responding in a timely manner to
staff comments and requests. An Applicant which fails to respond to staff comments or
requests for a period of four (4) months shall be administratively withdrawn by the Director
unless the Director determines that good cause exists to extend the application timeframe and
approves such extension in writing.
(d)Step 4: Notice. Notice shall be required for all public hearings conducted by the
Planning Commission and Town Council.
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 57
(1)Published and Posted Notice. Notice shall be published in a newspaper of general
circulation within the Town and posted in the designated official places of posting by the
Town at least eleven (11) days prior to the hearing date.
(2)Mailed Notice. For procedures that require mailed notice, notice shall be sent by
first-class mail to all real property owners within three hundred (300) feet of the property
which is the subject of a development application, as measured from the boundary of the
property. If a property within three hundred (300) feet that requires notification is a
condominium project, notice may be mailed to the managing agent, registered agent, or any
member of the board of directors of the project. Mailed notice shall be postmarked at least
eleven (11) days prior to the meeting. Mailed notice shall be sent by the Town at the
applicant’s expense. The Eagle County Assessor’s records may be used to determine the
addresses of real property owners. The Town shall include a certificate of mailing in the
public record.
(3)Notice Content. Every required form of notice shall state the time and place of the
hearing, the name of the applicant, a general description of the subject property indicating its
location (which shall be shown by map), a brief summary of the subject matter of the
hearing, a description of the proposed development, a statement that the application or
information relating to the proposed change or amendment is available in the Director’s
office during regular business hours for review or inspection by the public, and a statement
that written comments may be submitted to the Community Development Department. All
required notices shall be approved by the Director prior to posting or distributing.
(4)Constructive Notice. Minor defects in any notice shall not impair the notice or
invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply
with applicable notice requirements. Minor defects in notice shall be limited to errors in a
legal description or typographical or grammatical errors that do not impede communication
of the notice to affected parties. In all cases, however, the requirements for the timing of the
notice and for specifying the time, date, and place of a hearing shall be strictly construed.
Any person who appears at a public hearing is deemed to have received constructive notice
and waived any grounds to challenge defective notice. If a question arises at the hearing
regarding the adequacy of notice, the reviewing or decision-making body shall make a formal
finding as to whether there was substantial compliance with the notice requirements of this
Code. When the records of the Town document the publication, mailing, and posting of
notices as required by this section, it shall be presumed that notice was given as required by
this Section. If the reviewing or decision-making body takes action to continue a hearing to a
future specified date, time and location, then constructive notice is deemed to have been
provided for such continued hearing date and additional notices shall not be required.
(e)Step 5: Public Hearings. The Director shall schedule a public hearing date before the
PZC and/or Town Council after a complete application has been received, town staff has
completed town staff review and referral agencies have had an opportunity to provide comments.
The Director may delay the scheduling of a public hearing to a subsequent meeting where an
agenda of the PZC or Town Council is full. A complete application shall be scheduled for an
initial public hearing within seventy-five (75) days after the date that the application is
determined to be complete unless the applicant consents to scheduling the public hearing on a
later date. The PZC or Council may continue a public hearing on its own initiative for a
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 58
maximum of thirtysixty-five (365) days after the date of the initial public hearing without the
consent of the applicant. PZC or Council may continue a public hearing for a maximum of
ninety-five (95) days with the consent of the applicant. The reviewing authority shall have thirty-five
(35) days after the close of a public hearing to issue written findings in accordance with Section
7.16.020(f)(3) and adopt a written final record of decision.
(f)Step 6: Review and Decision. The following rules shall apply to review,
recommendations, and decisions conducted at public hearings.
(1)Review Criteria. The reviewing authority shall be Director when the Director has
the authority to administratively approve a development application. The reviewing
authority shall be the PZC and/or Town Council for all development applications which are
subject to public hearing. The reviewing authority shall review development applications for
compliance with all relevant standards and criteria as set forth in the specific procedures for
the particular application in this Development Code as well as the following general criteria
which shall apply to all development applications:
(i)The development application is complete;
(ii)The development application provides sufficient information to allow the
reviewing authority to determine that the development application complies with the
relevant review criteria;
(iii)The development application complies with the goals and policies of the Avon
Comprehensive Plan; and,
(iv)The demand for public services or infrastructure exceeding current capacity is
mitigated by the development application.
(2)Authority to Require Additional Studies. If the reviewing authority finds that the
submittal materials are not adequate to evaluate the development against the review criteria,
it may require additional studies as necessary. In doing so, the reviewing authority shall
indicate the specific consequence(s) or concern(s) for which the standard submittal
requirements fail to provide adequate means of evaluation and the data or information needed
for proper evaluation. The results of any study or analysis shall not dictate either approval or
disapproval of the proposed project.
(3)Findings. The reviewing authority shall adopt written findings which document
that a recommendation or decision is based upon a determination of whether the development
application complies with the applicable review criteria. The written findings shall state the
conditions or mitigation.
(4)Conditions. The reviewing authority may recommend approval, or may approve, a
development application with conditions where such conditions are deemed necessary to
ensure compliance with the applicable review criteria and the purpose and intent of this
Development Code. Conditions shall be in written form and attached to the approved plan,
plat, or permit. Conditions may include specific time limits for performance of any
condition. Conditions may include financial performance guarantees from the applicant
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 59
where the condition requires improvements for mitigation, where deemed necessary to public
health, safety, or welfare, or where deemed necessary to protect adjacent property or public
infrastructure. Financial performance guarantees shall be in the form of an agreement which
is acceptable to the Town and shall be executed by the applicant.
(5)Final Decision. A decision by the Director or the PZC shall become final unless a
written appeal is timely submitted to the Town in accordance with §7.16.160, Appeal. The
date of the decision shall be the date that the reviewing authority renders a decision. The
Town shall mail the written findings and notification of decision to the applicant within five
working days of the decision of the reviewing authority. The Town Council reserves the
authority to render a final decision on all decisions rendered under this Development Code
and only a decision of the Town Council may be subject to legal challenge. The failure to
timely submit a written appeal of a decision of the Director or the PZC shall be deemed to be
a waiver of any right to legally challenge such decision.
(g)Minor Amendment. The applicant may apply to the Director for minor amendments
to an approved development application. Minor amendments to an approved development
application may be approved, approved with conditions, or denied administratively by the
Director. The Director is authorized to approve minor amendments only if the development
approval, as so amended, complies with the standards of the Development Code. The Director
may refer a minor amendment to the decision-making body that was responsible for the original
approval if the Director determines the amendment may result in a material change to the
approved development application. Proposed amendments to an approved development
application which are determined by the Director to not be a minor amendment shall be reviewed
and processed in the same manner as would be required under this Development Code for the
original application for which the amendment is sought and shall include full application fees.
Minor amendments shall consist of any of the following:
(1)Any change to any permit or other form of approval that was originally subject only
to administrative review and was approved by the Director, provided such change would not
have disqualified the original application from administrative review under this Development
Code had it been requested at that time; and provided that the minor amendment does not
result in an increase of more than ten percent (10%) in the amount of square footage of a land
use or structure and does not result in a change in the types of uses in the project.
(2)Correction of any errors caused by mistakes that do not materially alter the
substance of the development plan or plat as represented to the Council.
(3)A change to an approved design which results in a ten percent (10%) or less
increase to lot coverage; ten percent (10%) or less increase to building height; adjustments to
building footprints, access and parking configurations which are less than ten (10) feet;
alterations to the landscaping plan or drainage plan which substantially comply with the
original approval; and, changes to doors, windows, roofs, or building articulation which are
less than two (2) feet and which do not alter or diminish the overall design character as
approved; as are all determined by the Director.
(4)Changes to an approved development application which do not result in:
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 60
(i)An increase in the approved number of dwelling units;
(ii)An increase in the amount of square footage of a non-residential land use or
structure;
(iii)A change in the housing mix or use mix ratio; or,
(iv)A change in the character of the development.
(h)Termination of Approval. All development approvals shall expire and become void
two (2) years after the date of the approval if a building permit has not been issued prior to the
expiration date, except when a different duration is specified in the development approval, a
different duration is specified in the specific procedures for the development approval, or a
request for extension is approved by the reviewing authority which granted the original
development approval. The owner shall submit a written request for an extension to the Director
prior to the expiration date and shall state the reasons and circumstances for such extension
request. The Director and the PZC may provide one (1) extension for a maximum of one (1)
year. Town Council may provide multiple extensions and may provide extensions greater than
one year.
7.16.030Comprehensive Plan Amendment.
This section sets forth procedures for reviewing proposed amendments to the texts and maps
of the Avon Comprehensive Plan. The amendment process is established in order to provide
flexibility in response to changing circumstances, to reflect changes in public policy, and to
advance the general welfare of the Town.
(a)Review Procedures. Applications to amend the Avon Comprehensive Plan shall
follow the general review procedures set forth in §7.16.020, General Procedures and
Requirements. Applications to amend the Comprehensive Plan may be initiated by the Town
Council, any registered voter of the Town of Avon, or any property owner in the Town of Avon.
(b)Review Authority. The PZC shall review applications for amendments to the Avon
Comprehensive Plan and shall provide a recommendation to the Town Council after conducting
a public hearing. The Town Council shall render the final decision on an application to amend
the Avon Comprehensive Plan after conducting a public hearing. Amendments to the Avon
Comprehensive Plan shall be approved by ordinance of the Town Council.
(c)Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications to amend the Avon
Comprehensive Development Plan:
(1)The surrounding area is compatible with the land use proposed in the plan
amendment or the proposed land use provides an essential public benefit and other locations
are not feasible or practical;
(2)Transportation services and infrastructure have adequate current capacity, or
planned capacity, to serve potential traffic demands of the land use proposed in the plan
amendment;
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 61
(3)Public services and facilities have adequate current capacity, or planned capacity, to
serve the land use proposed in the plan amendment;
(4)The proposed land use in the plan amendment will result in a better location or form
of development for the Town, even if the current plan designation is still considered
appropriate;
(5)Strict adherence to the current plan would result in a situation neither intended nor
in keeping with other key elements and policies of the plan;
(6)The proposed plan amendment will promote the purposes stated in this
Development Code; and,
(7)The proposed plan amendment will promote the health, safety or welfare of the
Avon Community and will be consistent with the general goals and policies of the Avon
Comprehensive Plan.
7.16.040Code Text Amendment.
The Council may amend the text of the Development Code, including the adoption,
modification, or replacement of appendices to the Development Code, pursuant to this section.
The purpose of a code text amendment is to address changed conditions, unintended
consequences or changes in public policy, to advance the general welfare of the Town.
(a)Review Procedures. Applications to amend the text of the Development Code shall
follow the general review procedures set forth in §7.16.020, General Procedures and
Requirements. Applications to amend the text of the Development Code may be initiated by the
Town Council, any property owner within the Town of Avon, or any registered elector within the
Town of Avon.
(b)Review Authority. The PZC shall review applications to amend the text of the
Development Code and shall provide a recommendation to the Town Council after conducting a
public hearing. The Town Council shall render the final decision on an application to amend the
text of the Development Code after conducting a public hearing. Amendments to the text of the
Development Code shall be approved by ordinance of the Town Council.
(c)Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications to amend the text of the
Development Code:
(1)The text amendment promotes the health, safety, and general welfare of the Avon
Community;
(2)The text amendment promotes or implements the goals and policies of the Avon
Comprehensive Plan;
(3)The text amendment promotes or implements the purposes stated in this
Development Code; or
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 62
(4)The text amendment is necessary or desirable to respond to changed conditions,
new planning concepts, or other social or economic conditions.
7.16.050Zoning Amendments.
The boundaries of any zone district may be changed, or the zone classification of any parcel
of land may be changed, pursuant to this section. The purpose is not to relieve particular
hardships, nor to confer special privileges or rights on any person, but only to make adjustments
to the Official Zoning Map that are necessary in light of changed conditions or changes in public
policy, or that are necessary to advance the general welfare of the Town.
(a)Review Procedures. Applications for a zoning amendment shall follow the general
review procedures set forth in §7.16.020, General Procedures and Requirements. Applications
for zoning amendments may be initiated by the Town Council or the property owner and may not
be initiated by any other person.
(b)Review Authority. The PZC shall review applications for zoning amendments and
shall provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall render the final decision on an application for zoning amendment after
conducting a public hearing. Zoning amendments shall be approved by ordinance of the Town
Council.
(c)Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications for zoning amendment:
(1)Evidence of substantial compliance with the purpose of the Development Code;
(2)Consistency with the Avon Comprehensive Plan;
(3)Physical suitability of the land for the proposed development or subdivision;
(4)Compatibility with surrounding land uses;
(5)Whether the proposed rezoning is justified by changed or changing conditions in
the character of the area proposed to be rezoned
(6)Whether there are adequate facilities available to serve development for the type
and scope suggested by the proposed zone compared to the existing zoning, while
maintaining adequate levels of service to existing development;
(7)Whether the rezoning is consistent with the stated purpose of the proposed zoning
district(s);
(8)That, compared to the existing zoning the rezoning is not likely to result in adverse
impacts upon the natural environment, including air, water, noise, stormwater management,
wildlife, and vegetation, or such impacts will be substantially mitigated;
(9)That, compared to the existing zoning, the rezoning is not likely to result in
significant adverse impacts upon other property in the vicinity of the subject tract;
Attachment A to Ordinance 13-09
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(10)For rezoning within an existing PUD, consistency with the relevant PUD Master
Plan as reflected in the approval of the applicable PUD; and,
(11)Adequate mitigation is required for zoning amendment applications which result in
greater intensity of land use or increased demands on public facilities and infrastructure.
(d)Mitigation. Zoning amendment applications which propose a greater intensity of land
use or increased demands on public services or infrastructure shall be required to provide
adequate mitigation of such impacts. Greater intensity of land use or increased demands on
public facilities and infrastructure shall include, but are not limited to: transportation, water,
sewer, schools, emergency services, police, parks and recreation, medical, and library. Adequate
mitigation may include providing dedications of land or cash-in-lieu for the proportionate share
of capital investment in public facilities and infrastructure related to the potential incremental
increase of demand created from the existing zoning classification to the proposed zoning
classification.
7.16.060Planned Unit Development (PUD).
(a)Purpose. This section is intended to allow flexible development patterns that are not
specifically provided for in this Development Code. It is the purpose of this section:
(1)To promote and permit flexibility that will encourage innovative and imaginative
approaches in land development and renewal that will result in a more efficient, aesthetic,
desirable, and economic use of land while maintaining density and intensity of use consistent
with the applicable adopted plans, regulations, and policies of the Town;
(2)To promote development within the Town that can be conveniently, efficiently, and
economically served by existing local utilities and services or by their logical extension;
(3)To promote design flexibility including placement of buildings, use of open space,
pedestrian and vehicular circulation systems to and through the site, and off-street parking
areas in a manner that will best utilize potential on-site characteristics such as, topography,
geology, geography, size, and proximity;
(4)To provide for the preservation of historic or natural features where they are shown
to be in the public interest, including but not limited to such features as: drainage ways, flood
plains, existing topography or rock outcroppings, unique areas of vegetation, historic
landmarks, or structures;
(5)To provide for compatibility with the area surrounding the project site;
(6)To provide for usable and suitably located open space such as, but not limited to,
bicycle paths, playground areas, courtyards, tennis courts, swimming pools, planned gardens,
outdoor seating areas, outdoor picnic areas, and similar open space;
(7)To minimize adverse environmental impacts of development;
(8)To improve the design, quality and character of new development; and
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(9)To provide compensating community benefits to offset any impacts of the
development and in recognition of design flexibility.
(b)Eligibility Criteria. All of the following criteria must be met for a property to be
eligible to apply for PUD approval.
(1)Property Eligible. All properties within the Town of Avon are eligible to apply for
PUD approval.
(2)Consistency with Comprehensive Plan. The proposed development shall be
consistent with the Avon Comprehensive Plan.
(3)Consistent with PUD Intent. The proposed development shall be consistent with
the intent and spirit of the PUD purpose statement in §7.16.060(a).
(4)Compatibility with Existing Uses. The proposed development shall not impede
the continued use or development of surrounding properties for uses that are permitted in the
Development Code or planned for in the Avon Comprehensive Plan.
(5)Public Benefit. A recognizable and material benefit will be realized by both the
future residents and the Town as a whole through the establishment of a PUD, where such
benefit would otherwise be infeasible or unlikely.
(6)Preservation of Site Features. Long-term conservation of natural, historical,
architectural, or other significant features or open space will be achieved, where such
features would otherwise be destroyed or degraded by development as permitted by the
underlying zoning district.
(7)Sufficient Land Area for Proposed Uses. Sufficient land area has been provided
to comply with all applicable regulations of the Development Code, to adequately serve the
needs of all permitted uses in the PUD projects, and to ensure compatibility between uses and
the surrounding neighborhood.
(c)Dimensional and Development Standards. The following dimensional and
development standards shall apply to all PUDs.
(1)Overlay District. A PUD shall be an overlay district and shall be applied over an
underlying zone district. If there is no underlying zone district one shall be established prior
to or concurrently with a PUD approval. The rezoning process set forth in §7.16.050 shall be
used to establish the underlying zone district.
(2)Permitted Uses. PUD uses shall be limited to those allowed either as permitted,
accessory, or special review uses in the underlying zone district.
(3)Development Standards. Chapter 7.28, Development Standards, shall apply to
PUD projects.
(d)General Procedures. All PUDs are processed in two stages: 1) the preliminary PUD
and 2) the final PUD. The final PUD can only be filed with the Town for review and processing
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after the preliminary PUD has been approved or conditionally approved by the Town Council.
The filing of a PUD in the office of Community Development shall not constitute the effective
dedication of easements, rights-of-way, or access control, nor shall the filed PUD plan be the
neither the equivalent of nor substitute for the final platting of land. Specific procedures for
preliminary PUD and final PUD are outlined below.
(1)Coordination with Subdivision Review. It is the intent of this Development Code
that subdivision review required under §7.16.070, Subdivisions, if applicable, be carried out
concurrently with the review of PUD development plans under this section. If subdivision
approval is required for the subject property, the PUD plans required under this Section shall
be submitted in a form that satisfies the requirements for preliminary and final subdivision
plat approvals. If any provisions of this section conflict with the subdivision procedures or
standards of this Development Code, the more restrictive or detailed requirements shall be
met, unless specifically altered by the Town Council.
(e)Procedures for Preliminary Planned Unit Development. The general procedures set
forth in §7.16.020 shall apply to preliminary Planned Unit Development applications. Where
subdivision approval will be required to implement development in a proposed PUD, the
applicant shall file a single preliminary PUD plan incorporating the application requirements of
both the PUD and subdivision preliminary plans. The provisions and procedures for public
notice, hearing, and review for a PUD as prescribed in this section shall apply to the application.
(1)PUD Master Plan and Guide Required. The application for PUD rezoning shall
include a preliminary PUD plan. The Director shall require sufficient detail in the
preliminary PUD plan to provide an opportunity for the approving bodies to make informed
decisions and evaluate compliance with the applicable approval criteria. The plan shall
include, at a minimum:
(i)A quantitative summary of existing conditions on the subject property;
(ii)A list of uses to be allowed within the PUD by right, a list of uses to be allowed
only with a special review use permit, and a list of temporary uses;
(iii)Parking analysis based on proposed uses;
(iv)Density of uses proposed;
(v)Location of public and private open space;
(vi)Location of existing and proposed buildings on the site;
(vii)Road, street, and pedestrian networks proposed;
(viii)Drainage facilities;
(ix)Existing or proposed utilities and public services;
(x)If development is to be phased, a description of the phase components and
timing;
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(xi)A statement that development on the site will meet applicable standards of the
underlying zoning district and this Development Code, or a statement specifying the
standards of the underlying district and this Development Code to which modifications
are proposed and the justification for such modifications; and
(xii)A statement specifying the public benefit(s) to be contained in or associated
with the PUD.
(2)Notice. Where subdivision approval will be required to implement development in
a proposed PUD, the public hearing notice requirements for preliminary subdivision plan
approval shall be combined and shall run concurrently with the PUD public notice and
hearing requirements.
(3)Reviewing Authority. The PZC shall review a preliminary PUD applications and
shall provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision on a preliminary PUD application
after conducting a public hearing. Unless otherwise approved by the Town Council,
approval of a preliminary PUD application shall vest no rights to the applicant other than the
right to submit a final PUD development plan.
(4)Review Criteria. The PZC and Town Council shall consider the following criteria
as the basis for a recommendation or decision to rezone a property to PUD Overlay, and
approve a preliminary PUD plan, or process a PUD Amendment:
(i)The PUD addresses a unique situation, confers a substantial benefit to the
Town, and/or incorporates creative site design such that it achieves the purposes of this
Development Code and represents an improvement in quality over what could have been
accomplished through strict application of the otherwise applicable district or
development standards. Such improvements in quality may include, but are not limited
to: improvements in open space provision and access; environmental protection;
tree/vegetation preservation; efficient provision of streets, roads, and other utilities and
services; or increased choice of living and housing environments.
(ii)The PUD rezoning will promote the public health, safety, and general welfare;
(iii)The PUD rezoning is consistent with the Avon Comprehensive Plan, the
purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b);
(iv)Facilities and services (including roads and transportation, water, gas, electric,
police and fire protection, and sewage and waste disposal, as applicable) will be available
to serve the subject property while maintaining adequate levels of service to existing
development;
(v)Compared to the underlying zoning, the PUD rezoning is not likely to result in
significant adverse impacts upon the natural environment, including air, water, noise,
storm water management, wildlife, and vegetation, or such impacts will be substantially
mitigated;
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(vi)Compared to the underlying zoning, the PUD rezoning is not likely to result in
significant adverse impacts upon other property in the vicinity of the subject tract; and
(vii)Future uses on the subject tract will be compatible in scale with uses or potential
future uses on other properties in the vicinity of the subject tract.
(5)Submission Deadline for Final PUD Master Plan. Within six (6) months
following approval of the preliminary PUD plan, the applicant shall initiate the second stage
of their application process by filing with the Director a final PUD plan, and subdivision plat
if necessary, containing in final form all the information required in the preliminary PUD
plan, along with such other documents as may be necessary to implement the plan or to
comply with all applicable requirements of this Development Code. Upon written request by
the applicant prior to the application lapsing, the Planning and Zoning Commission, for good
cause, may extend the period for filing the final PUD plan for a period not to exceed six (6)
months.
(f)Procedures for Final Planned Unit Development Approval. The general procedures
set forth in §7.16.020, General Procedures and Requirements, shall apply to final Planned Unit
Development applications subject to the following exceptions and additions:
(1)Pre-Application Conference. A pre-application conference shall be required,
unless waived by the Director.
(2)Contents of the Final PUD Master Plan. The final PUD master plan shall contain
all of the materials included in the preliminary PUD development plan, together with
revisions, if any, that may be approved by the Planning and Zoning Commission without an
additional public hearing, as described in subsection b. below. In addition to the materials
required in the administration manual, the final PUD master plan shall include the following:
(i)Phasing Program. A document describing any proposed phasing program of
the development for all structures, recreational and other common facilities, and open
space improvements, including time schedule for commencement and completion dates
of construction of each phase. Intermediate phases shall not exceed overall project
density and a pro rata allocation of common open space shall be made as each phase is
developed.
(ii)Common Open Space Agreement. A copy of the formal agreement with a
public agency or private association for the ownership and maintenance of the common
open space is required.
(iii)Plats for Recording. A copy of any subdivision plat, plat of dedication, or plat
of vacation that may be necessary part of the PUD rezoning is required.
(iv)Covenant. A restrictive covenant in a form acceptable to the Town Attorney
limiting development of construction upon the tract as a whole to such development and
construction as shall comply with the final PUD development plan as approved by the
Town Council, which document shall include a provision granting the Town a right to
enforce the same.
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(3)Permitted Minor Changes from a Preliminary PUD Master Plan. Minor
changes in the location, siting, and height of structures, streets, driveways, and open spaces
may be authorized by the PZC to be included in the final PUD master plan in accordance
with the following procedure without additional public hearings, if such changes are required
by engineering or other circumstances not foreseen at the time the preliminary PUD
development plan is approved. No change authorized by this subsection may cause any of
the following:
(i)A change in the use or character of the development;
(ii)An increase by more than one percent (1%) in the overall coverage of
structures;
(iii)An increase in the density or intensity of use;
(iv)An increase in the impacts on traffic circulation and public utilities;
(v)A reduction of not more than one percent (1%) in approved common open
space;
(4)Reviewing Authority. The PZC shall review all final PUD applications and shall
provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision on a final PUD application after
conducting a public hearing.
(5)Review Criteria. The PZC and the Town Council shall review the final PUD
development plan and PUD rezoning according to the same approval criteria listed above for
preliminary PUD development plans.
(g)Recordation. The applicant shall record the approved final PUD, as approved, in the
office of the Eagle County Clerk and Recorder within thirty (30) days after the date of approval.
If the final PUD is not recorded, the approval of the Town Council shall be deemed to have been
withdrawn; and the approval shall be null and void.
(h)Amendments to a Final PUD.The provisions of §7.16.020(g), Minor Amendment, are
applicable to PUDs. Unless a Final PUD contains different amendment procedures, amendments
to a Final PUD are governed by this section. The PUD amendment process is dependent on the
type of amendment.
(1)PUD Amendment Categories. Categories of PUD Amendments are established and
defined as follows for the purpose of determining the appropriate review procedure:
(i)Administrative Amendment. A proposed PUD amendment is considered
administrative if it provides for the correction of any errors caused by mistakes that do
not materially alter the substance of the PUD Development Plan as represented to
Council.
(ii)Minor Amendment. A proposed PUD amendment is considered minor if it
meets the following criteria for decision and has been determined as such by the Director:
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(A)The PUD Amendment does not increase density, increase the amount of
nonresidential land use, or significantly alter any approved building scale and mass of
development.
(B)The PUD Amendment does not change the character of the development,
and maintains the intent and integrity of the PUD.
(C)The PUD Amendment does not result in a net decrease in the amount of
open space or result in a change in character of any of the open space proposed within
the PUD.
(iii)Major Amendment. A PUD Amendment that is not classified as an
administrative or minor amendment is considered a major amendment.
(2)Reviewing Authority
(i)Administrative Amendments. The Director shall review and render decisions
on Administrative Amendments. A decision of the Director may be appealed to the
Town Council pursuant to Section 7.16.160, Appeal.
(ii)Minor Amendments. The general procedures set forth in Section 7.16.020,
General Procedures and Requirements, shall apply to minor PUD amendment
applications. The PZC shall review all minor PUD amendment applications and shall
provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision, through a Resolution, on a minor
PUD amendment application after conducting a public hearing.
(iii)Major Amendments. The general procedures set forth in §7.16.020 shall apply
to major PUD amendment applications. All major PUD Amendment applications shall
be processed as Preliminary PUD and Final PUD applications.
(3)Review Criteria. The PZC and Town Council shall review a PUD amendment
according to the same approval criteria listed above for preliminary PUD development Plan.
(i)Lapse. Unless otherwise provided by Town Council, development of an approved
PUD shall commence within twelve (12) months from the approval of the final PUD plan. If
development has not commenced within twelve (12) months, the Director shall initiate a public
hearing process for the purpose of considering whether to rezone the property back to its prior
zoning classification, or in light of other conditions, to another zoning classification, and
revocation of all permits issued and action taken.
(j)Revocation of a Final PUD. A final PUD may be revoked pursuant to the procedures
and criteria set forth in this section.
(1)Initiation of Revocation Proceedings. Revocation of a PUD may occur if:
(i)The landowner or a majority of the owners of property within the subject PUD,
petition for revocation of such PUD plan in whole or in part;
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(ii)The project falls more than three (3) years behind the phasing plan or schedule
filed with the final PUD;
(iii)Construction and or application for building permits have not commenced
within one (1) year of approval of the final PUD by the Town Council; or
(iv)The construction and provision of landscaping, buffers, open space, and public
streets and facilities that are shown on the final development plan are proceeding at a
substantially slower rate than other project components.
(2)Public Notice Requirements. Prior to the Planning and Zoning Commission
meeting and the Town Council meeting notice shall be given in accordance with the
provisions of §7.16.020(d).
(3)Review Authorities.
(i)Planning and Zoning Commission Public Hearing. The Planning and Zoning
Commission shall hold a public hearing and make a recommendation to revoke the final
PUD, keep the final PUD in force, or postpone the application. The Planning and
Zoning Commission shall not recommend revocation of the final PUD to the Town
Council unless the Planning and Zoning Commission makes the findings required for
revocation. The Planning and Zoning Commission may impose reasonable conditions on
such revocation in order to advance the health, safety, and welfare of the citizens, such as
vacation of the underlying final plat.
(ii)Town Council Public Hearing. The Town Council shall hold a public hearing
and determine whether to revoke, postpone, or keep the final PUD in force. The Town
Council shall not revoke the final PUD unless it makes the findings required for
revocation. The Town Council may impose reasonable conditions on such revocation in
order to advance the health, safety, and welfare of the citizens, such as vacation of the
underlying final plat.
(4)Required Findings for Revocation. The Planning and Zoning Commission shall
not recommend revocation and the Town Council shall not revoke any final PUD unless the
following findings are made:
(i)Revocation proceedings were initiated pursuant to this section; and
(ii)The property owner(s) were notified no less than sixty (60) days prior to
Planning and Zoning Commission action on the revocation; and
(iii)Public notice was mailed prior to the PZC hearing on the revocation and prior to
the Town Council hearing on the revocation pursuant to the provisions of §7.16.020(d);
and
(iv)The PUD is not compatible with the surrounding area; or
(v)There is not a need for the uses in the area included within the PUD plan; or
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(vi)The PUD will have adverse impacts on future development of the area; or
(vii)The traffic generated by the PUD plan will have adverse impacts on the
neighborhood and the surrounding area; or
(viii)The PUD will have adverse impacts on community facilities in the
neighborhood and on the surrounding area, including but not limited to schools, library,
police, and fire protection, recreation facilities, park lands, and open space; or
(ix)The PUD will have adverse impacts on municipal infrastructure in the area,
including but not limited to water service, wastewater service, storm water service,
transportation systems, and street systems; or
(x)The PUD will not comply with the standards and specifications for design and
construction of public improvements in force at the time of the public hearing; or
(xi)The owner or applicant has not met all dates established in the PUD plan for the
commencement of construction of the PUD or for a phase of the PUD plan; or
(xii)The revocation is in conformance with the provisions contained in applicable
sections of this Code, consistency with the adopted comprehensive plan for the Town,
and applicable specific plans and relevant Town policies.
7.16.070Subdivisions.
The purpose of the subdivision review procedures is to ensure compliance with all the
standards and requirements in this development code, and encourage quality development
consistent with the goals, policies, and objectives in the comprehensive plan.
(a)Applicability. The procedures of this section and the standards in Chapter 7.32,
Engineering Improvement Standards, shall apply to all subdivisions or re-subdivisions that result
in the portioning, dividing, combining, or altering of any lot, parcel, or tract of land, including
land used for condominiums, apartments, or any other multiple dwelling units or creation of an
estate in airspace, except any subdivisions that are specifically excluded by state law. If a tract
of land that has been created or subdivided in the past is later described as a single tract in deeds
or plat by the legal or equitable owners, any later subdivisions of that tract, even if along the
lines of the earlier subdivision, shall be subject to the requirements of these regulations. If any
tract of land or airspace has been subdivided as one type of subdivision and thereafter is
subdivided so as to create a different type of subdivision (for example, conversion of a
condominium subdivision to a timesharing subdivision), the conversion shall be subject to the
requirements of this development Code. Unless the method of disposition is adopted for the
purpose of evading the requirements of the Development Code, this procedure shall not apply to
any division of land that:
(1)Is created by a lien, mortgage, deed of trust, or any other security instrument;
(2)Is created by any interest in an investment entity;
(3)Creates cemetery lots;
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(4)Creates an interest or interests in oil, gas, minerals, or water that are severed from
the surface ownership of real property;
(5)Is created by the acquisition of an interest in land in the name of a husband and wife
or other persons in joint tenancy, or as tenants in common of such interest. For the purpose
of this paragraph, any interest in common owned in joint tenancy shall be considered a single
interest;
(6)Creates a leasehold interest with a term of less than twenty (20) years and involves
no change in use or degree of use of the leasehold estate;
(b)Subdivision Categories. Categories of subdivisions are established and defined as
follows for the purpose of determining the appropriate subdivision review procedure:
(1)Major Subdivision. Major subdivisions include all subdivisions which would
create four (4) or more separate parcels of land or which would require or which propose
public improvements.
(2)Minor Subdivisions. Minor subdivisions include all subdivisions which would
create less than four (4) separate parcels of land, subdivisions which do not require or
propose public improvements, subdivisions which consolidate two (2) or more lots into a
single lot in a previously recorded subdivision plat, and subdivisions which move any lot
lines by more than two (2) feet; but shall not include subdivisions which are administrative
subdivisions. Condominium and timeshare subdivisions more than four (4) units which do
not propose public improvements shall be processed as minor subdivisions.
(3)Administrative Subdivisions. Administrative subdivisions are subdivisions which
include dividing a parcel of land for a duplex, subdivisions for the purpose of correcting
survey errors, condominium and timeshare subdivisions up to four (4) units, and subdivisions
which adjust lot lines by two (2) feet or less and which do not change the number of lots.
The Director shall have the authority to determine that an administrative subdivision
application shall be processed as a minor subdivision where the character of the subdivision
application, or multiple applications, presents issues which warrant review and approval by
the Town Council. All administrative subdivisions are exempt from notice requirements
outlined in §7.16.020(d).
(c)Review Procedures. Applications for a subdivision shall follow the general review
procedures set forth in §7.16.020, General Procedures and Requirements. Applications for
subdivision must be initiated by the owner of real property. The Director may combine
preliminary plan and final plat review where the subdivision application can be reviewed
efficiently and effectively with a combined process. Where subdivision approval will be
required to implement development in a proposed PUD, the applicant shall file a single
preliminary plan incorporating the application requirements of both the PUD and subdivision
preliminary plans. The provisions and procedures for public notice, hearing, and review for a
PUD as prescribed in the Development Code shall apply to the application.
(d)Review Authority. The review authority for a subdivision application shall be
determined by the subdivision category.
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(1)Major Subdivision. Major subdivisions shall be required to obtain approval for
preliminary plan and for final plat. The PZC shall review a preliminary plan for a major
subdivision application and shall provide a recommendation to the Town Council after
conducting a public hearing. The Town Council shall render the final decision on a
preliminary plan for a major subdivision application after conducting a public hearing. The
Town Council shall review the final plat for major subdivision applications and render a final
decision after conducting a public hearing. The preliminary plan and final plat for major
subdivisions shall be approved by resolution or ordinance of the Town Council.
(2)Minor Subdivision. Minor subdivisions shall require final plat review and
approval only where no public improvements are proposed; however, the review criteria for a
preliminary plan shall apply to review of minor subdivision final plats in addition to the
review criteria for a final plat. The Town Council shall render the final decision on a minor
subdivision application after conducting a public hearing. Minor subdivisions shall be
approved by resolution or ordinance of the Town Council. Director shall review and render
decisions on minor subdivisions. A decision of the Director may be appealed to the Town
Council pursuant to §7.16.160, Appeal.
(3)Administrative Subdivisions. Administrative subdivisions shall require final plat
review and approval only; however, the review criteria for a preliminary plan shall apply to
review of administrative subdivisions in addition to the review criteria for a final plat.
Director shall review and render decisions on administrative subdivisions. A decision of the
Director may be appealed to the Town Council pursuant to §7.16.160, Appeal.
(e)Preliminary Plan Review Criteria. The reviewing authority will use the following
review criteria as the basis for recommendations and decisions on applications for preliminary
plan subdivision applications:
(1)The proposed subdivision shall comply with all applicable use, density,
development, and design standards set forth in this Development Code that have not
otherwise been modified or waived pursuant to this Chapter and that would affect or
influence the layout of lots, blocks, and streets. Applicants shall not create lots or patterns of
lots in the subdivision that will make compliance with such development and design
standards difficult or infeasible;
(2)The subdivision application shall comply with the purposes of the Development
Code;
(3)The subdivision application shall be consistent with the Avon Comprehensive Plan
and other community planning documents;
(4)The land shall be physically suitable for the proposed development or subdivision;
(5)The proposed subdivision shall be compatible with surrounding land uses;
(6)There are adequate public facilities for potable water supply, sewage disposal, solid
waste disposal, electrical supply, fire protection and roads and will be conveniently located in
relation to schools, police, fire protection and emergency medical services;
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(7)The proposed utility and road extensions are consistent with the utility’s service
plan and are consistent with the Town of Avon Comprehensive Plan & Comprehensive
Transportation Master Plan;
(8)The utility lines are sized to serve the ultimate population of the service area to
avoid future land disruption to upgrade under-sized lines;
(9)The subdivision is compatible with the character of existing land uses in the area
and shall not adversely affect the future development of the surrounding area;
(10)A proposed subdivision for an existing PUD shall be consistent with the relevant
PUD Master Plan as reflected in the approval of that PUD;
(11)Appropriate utilities, including water, sewer, electric, gas and telephone utilities,
shall provide an “conditional capacity to serve” letter for the propose subdivision;
(12)That the general layout of lots, roads, driveways, utilities, drainage facilities, and
other services within the proposed subdivision shall be designed in a way that minimizes the
amount of land disturbance, minimize inefficiencies in the development of services,
maximizes the amount of open space in the development, preserves existing trees/vegetation
and riparian areas, protects critical wildlife habitat, and otherwise accomplishes the purposes
of this Development Code;
(13)Evidence that provision has been made for a public sewage disposal system or, if
other methods of sewage disposal are proposed, adequate evidence that such system shall
comply with state and local laws and regulations;
(14)Evidence that all areas of the proposed subdivision that may involve soil or
topographical conditions presenting hazards or requiring special precautions have been
identified by the applicant and that the proposed use of these areas are compatible with such
conditions or that adequate mitigation is proposed;
(15)The subdivision application addresses the responsibility for maintaining all roads,
open spaces, and other public and common facilities in the subdivision and that Town can
afford any proposed responsibilities to be assumed by the Town;
(16)If applicable, the declarations and owners’ association are established in accordance
with the law and are structured to provide adequate assurance that any site design standards
required by this Development Code or conditions of approval for the proposed subdivision
will be maintained or performed in a manner which is enforceable by the Town; and,
(17)As applicable, the proposed phasing for development of the subdivision is rational
in terms of available infrastructure capacity and financing.
(f)Final Plat Review Criteria. After approval of a preliminary plan, the applicant may
submit an application for a final plat. The following criteria shall apply to review of a final plat
subdivision application:
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(1)The Town Engineer shall compare the legal description of the subject property with
the County records to determine that:
(i)The property described contains all contiguous single ownership and does not
create a new or remaining unrecognized parcel of less than thirty-five (35) acres in size;
(ii)The lots and parcels have descriptions that both close and contain the area
indicated; and
(iii)The plat is correct in accordance with surveying and platting standards of the
state.
(2)The final plat conforms to the approved preliminary plan and incorporates all
recommended changes, modifications, and conditions attached to the approval of the
preliminary plan;
(3)The final plat conforms to all preliminary plan criteria;
(4)The development will substantially comply with all sections of the Development
Code;
(5)The final plat complies with all applicable technical standards adopted by the
Town; and,
(6)Appropriate utilities shall provide an ability to serve letter including, but not limited
to, water, sewer, electric, gas, and telecommunication facilities.
(g)Public Improvements Guarantee. Guarantees for public improvements shall comply
with §7.32.100(c).
(h)Revocation. An approval of a final plat is revoked pursuant to this section.
(1)Recording. The applicant shall cause the final plat and restrictive covenants, if
any, to be recorded within ninety (90) days from the date of approval and acceptance of the
Council. In the event that the plat is not recorded, the approval of the Council shall be
deemed to be void and such plat shall not thereafter be recorded, unless and until the Mayor
executes a written authorization for recording the final plat.
(2)Vacation. The final plat approval shall include a determination of a reasonable
time by which the project should be completed. All plats given final approval shall contain a
notation indicating the date by which a project is expected to be completed, that shall be
prima facie evidence of a reasonable time by which the project should have been completed.
A plat or any portion thereof that has been finally approved by the Council and has been
recorded shall be subject to vacation proceedings if the project that is the subject of the
subdivision is not completed within the time set by the Council.
(3)Extension. Extensions of the time limit for project completion may be obtained
from the Council for good cause shown, upon request by the applicant or owner of the tract,
if made before vacation proceedings are instituted.
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 76
7.16.080Development Plan.
The purpose of the development plan review process is to ensure compliance with the
development and design standards and provisions of this Development Code. It is designed to
encourage quality development reflective of the goals, policies, and objectives of the
Comprehensive Plan.
(a)Applicability. A development plan shall be required for all new development and any
modification to an existing development or development plan.
(b)Development Plan categories. Categories of development plans are established and
defined as follows for the purpose of determining the appropriate development plan review
procedure:
(1)Major Development Plan. Major development plans include all new building
construction over six hundred (600) square feet;
(2)Minor Development Plan.Minor development plans include the following:
(i)All new building construction six hundred (600) square feet or less;
(ii)Modifications to dumpster locations;
(iii)Screen wall modifications;
(iv)Landscape modifications including, but not limited to, removal of existing
vegetation and addition of new vegetation;
(v)Deck modifications including, but not limited to, additions, new construction,
and materials or color modifications;
(vi)Mechanical equipment modifications;
(vii)Modifications to the exterior of an existing building including, but not limited
to, windows, doors, minor architectural details, colors, and materials; and
(viii)Modifications to approved development plans which results in a ten percent
(10%) or less increase to lot coverage; ten percent (10%) or less increase to building
height; ten percent (10%) or less increase to the amount of square footage of a land use or
structure and does not result in a change in the types of uses in the project
(ix)Modifications to approved development plans which do not change the
character of the approved design; and
(x)Other similar changes to a structure or property that do not significantly impact
the site layout or design of a building.
(c)Review Procedures. The general review procedures described in §7.16.020, General
Procedures and Requirements, shall apply to development plan applications. All development
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 77
plan applications shall also comply with the procedures listed in §7.16.090, Design Review.
Specific additions and modifications to the general review procedures are identified below.
(d)Notice and Hearing. Notice and public hearing shall not be required for development
plan review.
(e)Review Authority. The review authority for a development plan application shall be
determined by the subdivision category.
(1)Major Development Plan. The Director shall review and provide a
recommendation to the PZC on all major development plan applications. The PZC shall
render the final decision on a major development plan, unless the application is located
within the Town Core. The decision of the PZC may be appealed to the Town Council
pursuant to §7.16.160, Appeal. If an application is located within the Town Core, the
Director shall review and provide a recommendation to the PZC. The PZC shall review and
provide a recommendation to the Town Council. The Town Council shall render the final
decision on a major development plan within the Town Core.
(2)Minor Development Plan. The Director shall review and render decisions on all
minor development plan applications. The decision of the Director may be appealed to the
PZC pursuant to §7.16.160, Appeal. The Director may refer to the PZC any development
plan application that the Director determines warrants review by the PZC.
(f)Review Criteria. The following review criteria shall be considered as the basis for a
decision on development plan applications:
(1)Evidence of substantial compliance with the purpose of the Development Code as
specified in §7.04.030, Purposes;
(2)Evidence of substantial compliance with the §7.16.090, Design Review.
(3)Consistency with the Avon Comprehensive Plan;
(4)Consistency with any previously approved and not revoked subdivision plat,
planned development, or any other precedent plan or land use approval for the property as
applicable;
(5)Compliance with all applicable development and design standards set forth in this
Code, including but not limited to the provisions in Chapter 7.20, Zone Districts and Official
Zoning Map, Chapter 7.24, Use Regulations, and Chapter 7.28, Development Standards; and
(6)That the development can be adequately served by city services including but not
limited to roads, water, wastewater, fire protection, and emergency medical services.
(g)Expiration. A development plan approval expires pursuant to §7.16.020(h).
(h)Revocation. Approved site plan documents shall be binding upon the applicants and
their successors and assigns. No permit shall be issued for any building or structure or use that is
not in accord with the approved documents or any approved modifications thereto. The
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 78
construction, location, use, or operation of all land and structures within the site shall conform to
all conditions and limitations set forth in the documents. No structure, use, or other element of
approved design review documents shall be eliminated, altered, or provided in another manner
unless an amended site plan is approved. Any deviation from the approved development plan as
approved shall be grounds for revocation of the development plan approval.
7.16.090Design Review.
The purpose of the design review process is to ensure compliance with the development and
design standards of the Development Code and conformance with the Avon Design Guidelines
prior to the issuance of a building permit or concurrent with other required permits, and to
encourage quality development reflective of the goals and objectives of the Avon
Comprehensive Plan.
(a)Purpose. Specific purposes of design review include:
(1)To prevent excessive or unsightly grading of property that could cause disruption of
natural watercourses or scar natural landforms;
(2)To ensure that the location and configuration of structures, including signs and
signage, are visually harmonious with their sites and with surrounding sites and structure and
that there shall be conformance to the Comprehensive Plan of the Town;
(3)To ensure that the architectural design of structures and their materials and colors
are visually harmonious with the Town’s overall appearance, with natural and existing
landforms, and with officially approved development plans, if any, for the areas in which the
structures are proposed to be located; and
(4)To ensure that plans for the landscaping of property and open spaces conform with
adopted rules and regulations and to provide visually pleasing settings for structures on the
same site and on adjoining and nearby sites.
(b)Applicability. A design review application shall be required for all new development
and improvements as well as any modification to an existing development or improvement.
(c)Review Procedures. The design review process shall be a supplemental review for all
development plan applications.
(d)Notice and Hearing. Public notice and hearing shall not be required for this
application type.
(e)Reviewing Authority. All design review applications shall be subject to the review
authority of the accompanying development plan application.
(f)Review Criteria. The PZC and Town Council shall apply the following review criteria
for the basis of recommendations and decisions on design review:
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 171
(vi)Parking structures shall be oriented to provide pedestrian access to adjacent
public walkways, public buildings, and public plazas; however, to avoid
pedestrian/vehicle conflicts, placing major access points along the area’s primary
street network shall be avoided where an alternate access point is possible.
7.28.100Natural Resource Protection
(a)Steep Slopes
(1)Purpose. The purpose of this subsection is to:
(i)Prevent soil erosion and landslides;
(ii)Protect the public by preventing or regulating development in locations with
steep slopes;
(iii)Provide safe circulation of vehicular and pedestrian traffic to and within
hillside areas and to provide access for emergency vehicles necessary to serve the
hillside areas;
(iv)Encourage only minimal grading that relates to the natural contour of the
land and reduce necessity of retaining walls;
(v)Discourage mass grading of large pads and excessive terracing; and
(vi)Require revegetation and reclamation of slopes disturbed during
development.
(2)Applicability. The standards in this section shall apply to all new development,
with the exception of administrative and minor subdivisions and all other subdivision,
PUD and zoning amendment processes that do not result in an increase in density. any
new subdivision, PUD, or zoning amendment when any portion of the lot contains
naturally-occurring slopes of thirty percent (30%) or greater.
(3)Standards. Development subject to these standards shall comply with the
following standards:
(i)Development on natural slopes of forty percent (40%) or greater is
prohibited.
(ii)Grading Permits. No grading, excavation, or tree/vegetation removal shall
be permitted, whether to provide for a building site, for on-site utilities or services, or
for any roads or driveways, prior to issuance of a building permit in accordance with
a grading and excavation plan and report for the site approved by the Town Engineer.
(iii)Open Space. One hundred percent (100%) of areas with a slope greater
than forty percent (40%) shall remain in natural private or public open space, except
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 172
as expressly allowed in this section. This area may be credited toward open space
requirements and minimum lot area requirements.
(iv)Minimum Lot Size. Where a lot contains a natural slope area of greater
than thirty percent (30%) that is larger than two-thousand and five-hundred (2,500)
square feet, the lot shall be a minimum of one (1) acre in size with a minimum street
frontage of one hundred and fifty (150) linear feet. Lots shall not be mass-graded to
avoid this section.
(v)Limits on Changes to Natural Grade. The original, natural grade shall not
be raised or lowered more than six (6) feet at any point for construction of any
structure or improvement. Retaining walls must comply with the requirements set
forth in this section.
(vi)Limits on Graded or Filled Man-Made Slopes
(A)Grading of slopes to twenty-five percent (25%) or less is greatly
encouraged wherever possible.
(B)Graded or filled man-made slopes shall not exceed a slope of fifty
percent (50%).
(C)Cut man-made surfaces or slopes shall not exceed a slope between
twenty-five percent (25%) and fifty percent (50%) unless it is substantiated, on
the basis of a site investigation and submittal of a soils engineering or
geotechnical report prepared and approved by the Town Engineer, that a cut at a
steeper slope will be stable and will not create a hazard to public or private
property.
(D)Bedrock which is exposed in a cut slope may exceed the maximum cut
slope. The cut surface of the bedrock should be “sculptured” to create an
irregular profile which approximates natural rock outcroppings on the site.
Planting pockets may be created in the “sculptured” rock for grasses and forbs.
(E)All cut, filled, and graded slopes shall be re-contoured to the natural,
varied contour of the surrounding terrain pursuant to paragraph (G), below and
§7.28.050,Landscaping.
(vii)Natural Design
(A)Sharp angles shall be rounded off, in a natural manner, at the top and
ends of cut and fill slopes (within approximately five (5) feet of the sharp angle).
Where this would damage tree root systems, the amount of rounding off may be
reduced and shrubs used instead to hide the transition.
(B)Slopes providing a transition from graded areas into natural areas should
be varied in percent grade both up-slope and across the slope, in the undulating
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 173
pattern of surrounding natural slopes; so that the top or the toe (or both) of the cut
or fill slope will vary from a straight line in plan view.
(C) Natural grade at the lot lines shall be maintained.
(viii)Separate Pads
(A)Cutting and grading to create benches or pads for buildings or structures
shall be avoided to the maximum extent feasible.
(B)Separate building pads for accessory buildings and structures other than
garages, such as tennis courts, swimming pools, outbuildings, and similar
facilities, shall not be allowed except where the natural slope is twenty percent
(20%) or less.
(ix)Parking Areas. Parking areas should be constructed on multiple levels and
follow natural contours as necessary to minimize cut and fill.
(x)Retaining Walls.Retaining walls may be used to minimize cut and fill.
Retaining walls shall comply with the standards of §7.28.070, Retaining Walls.
(xi)Natural Drainage Patterns
(A)Site design shall not change natural drainage patterns.
(B)To the maximum extent feasible, development shall preserve the natural
surface drainage pattern unique to each site as a result of topography and
vegetation. Grading shall ensure that drainage flows away from all structures,
especially structures that are cut into hillsides. Natural drainage patterns may be
modified on site only if the applicant shows that there will be no significant
adverse environmental impacts on site or on adjacent properties. If natural
drainage patterns are modified, appropriate stabilization techniques shall be
employed.
(C)Development shall mitigate all negative or adverse drainage impacts on
adjacent and surrounding sites.
(D)Standard erosion control methods shall be used during construction to
protect water quality, control drainage, and reduce soil erosion. Sediment traps,
small dams, or barriers of straw bales shall be located wherever there are grade
changes to slow the velocity of runoff.
(xii)Revegetation Required. Any area exposed in new development shall be
landscaped or revegetated pursuant to the standards and provisions of
§7.28.100(c)(6),Revegetation Plan.
(xiii)Streets, Roads, and General Site Access
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 174
(A)Applies to all site access except three (3) unit, single family or duplex
lots.
(B)Access to a building or development site shall be by road, street, or
private access road only.
(C)Streets, roads, private access roads, and other vehicular routes shall
comply with all requirements of the Town of Avon municipal code and design
specifications.
(D)Streets, roads, private access roads, and other vehicular routes shall not
be allowed to cross slopes between thirty (30) and fifty (50) percent unless
specifically authorized by the PZC after finding that all of the following
conditions and constraints are applicable:
(1)No alternate location for access is available; and
(2)No significant adverse visual, environmental, or safety impacts will
result from the crossing, either by virtue of the design and construction of the
street, road, private access road, or other vehicular route as originally
proposed or as a result of incorporation of remedial improvements provided
by the developer to mitigate such impacts.
(E)Under no circumstances shall any street, road, private access road, or
other vehicular route cross slopes greater than fifty percent (50%).
(F)Streets, roads, private access roads, and other vehicular routes shall, to
the maximum extent feasible, follow natural contour lines.
(G)Grading for streets, roads, private access roads, and other vehicular
routes shall be limited to the asphalt portion of the right-of-way, plus up to an
additional ten (10) feet on either side of the asphalt as needed, except that when
developing access on slopes in excess of twenty percent (25%), only the asphalt
portion of the right-of-way shall be graded plus the minimum area required for
any necessary curb, gutter, or sidewalk improvements. The remainder of the
access right-of-way shall be left undisturbed to the maximum extent feasible.
(H)Roads, other vehicular routes, or trails may be required to provide access
or maintain existing access to adjacent lands for vehicles, pedestrians, emergency
services, and essential service and maintenance equipment.
(b)Stream, River, Waterbody, and Wetlands
(1)Purpose. This section is intended to minimize erosion, stabilize stream banks,
protect and improve water quality, preserve fish and wildlife habitat, and preserve the
natural aesthetic value of streams, rivers, water bodies, and wetland areas of the Town of
Avon.
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 200
(2)Generally applicable development and design standards (Chapter 7.28).
7.32.020Layout and Design Generally
(a)Applicability. The regulations of this subsection shall apply to all development
and all subdivision applications.
(b)Name of Subdivision. The title under which the subdivision will be recorded shall
not duplicate the name of any existing subdivision in the County.
(c)Compliance with the Development Code. All subdivisions must be designed to
create legal building sites meeting all applicable requirements of the Development Code and
the applicable zone district.
(d)Natural Hazard Areas. Land subject to hazardous conditions such as landslides,
mud flows, earth subsidence, rock falls, snow drifts, possible mine subsidence, mine shafts,
shallow water table, open quarries, floods, and polluted or non-potable water supply shall be
identified and shall not be subdivided until the hazards have been mitigated or will be
mitigated by the subdivision and construction plans. The use of building envelopes shall be
used to avoid unmitigated hazards, and areas with unmitigated hazards shall be platted as
open space
(e)Adjoining Subdivisions. A proposed subdivision shall be designed in such a
manner as to be coordinated with adjoining subdivisions with respect to the alignment of
street right-of-ways, utility and drainage easements, open space, and pedestrian/bicycle paths.
(f)Lots
(1)Applicability. The regulations of this subsection shall apply to all new lots,
replats of lots, tracts, and blocks with the exception of condominium and duplex
subdivisions that are in conformance with their preliminary plan.
(2)Floodplains.No residential lot or parcel intended for residential or
nonresidential occupancy shall include any land included within the one-hundred (100)
year floodplain, as determined by the Town Engineer. Lot layout shall be in
conformance with §7.28.100(d), Flood Damage Prevention.
(3)Conformity with Residential Design Standards. All lots created for single-
family residential development are required to meet all adopted residential design
requirements of §7.28.090(d) and §7.20.090(f) that are applicable to the development.
(4)Commercial and Industrial Lots.Depth and width of properties reserved or
laid out for commercial and industrial purposes shall be adequate to provide for off-street
parking, landscaping or planting area, and loading areas required by the type of use and
development contemplated as described in §7.28.090(j), Mixed-Use and Non-Residential
Design Standards.
Attachment A to Ordinance 13-09
1st Tier Title 7 Amendments 2013 Update August 13, 2013 Page 201
(5)Multiple Frontage and Flag Lots
(i)Double frontage lots shall not be permitted adjacent to local streets, and
should be avoided where practicable along collector and arterial streets.
(ii)Triple frontage lots and flag lots are prohibited, unless special consideration
by the Planning and Zoning Commission allows for their placement. Where
permitted, flag lots shall have a minimum width of thirty (30) feet at the property
frontage
(6)Buildable Area. Every lot must have a buildable area large enough to be
consistent with the zoning for the lot. The buildable area cannot include areas with
slopes steeper than forty percent (40%), should be located to avoid natural hazard areas,
critical wildlife habitats and floodplains unless properly mitigated.
(7)Building Envelopes
(i)Applicability. The regulations of this subsection shall apply to all lots with
natural hazards, floodplains, and slopes steeper than thirty percent (30%).
(ii)All lots with natural hazards, floodplains and slopes steeper than thirty
percent (30%) shall have platted building envelopes which restricts development to
areas without natural hazards, floodplains and slopes steeper than thirty percent
(30%).
(iii)All building envelopesThe buildable area for each structure shall be no
smaller than twenty-five hundred (2,500) square feet and have a minimum dimension
greater than twenty-five (25) feet wide.
(iv)All building envelopes shall neither contain nor be affected by unmitigated
natural hazards
(v)If the access to the buildable area crosses slopes steeper than thirty percent
(30%), the developer will have to demonstrate that the access to the buildable area
can meet all other standards in this Code.
(vi)All building improvements above or below grade shall not extend beyond
the extents of the building envelope.
(vii)Building envelopes shall be sited to minimize impact to wildlife habitats.
(8)Access to Public Streets. All lots shall have access to a dedicated public street.
If the plat provides for indirect access (i.e., over intervening private drives), access
easements benefitting all lots with indirect access shall be provided and recorded before
any building permit is issued for a lot with indirect access. Indirect access to single-
family detached subdivisions from public streets may be provided by means of a court
drive as described below.
Attachment A to Ordinance 13-09
1
Matt Pielsticker
Subject:FW: Ordinance 13-09
From: Dominic Mauriello [mailto:dominic@mpgvail.com]
Sent: Friday, July 12, 2013 3:26 PM
To: Avon Council Web
Cc: Virginia Egger; Matt Pielsticker; Allison Kent; Eric Heil
Subject: Ordinance 13-09
Dear Mayor, Council-members, and staff:
I wanted to write you to express my support of the code changes proposed in Ordinance 13-09. I believe these
changes clarify the intent of the code re-write process that occurred a few years ago. I think staff has done a
great job identifying the issues that need immediate attention.
There are a couple of additional items I think you should consider making when voting on this ordinance as
summarized below:
Minor PUD Amendments. Consider having minor PUD amendments approved by the P&Z
as the final review authority. This makes for an expedited process for applicants, decreases
the political nature of such minor amendments, while still allowing an applicant or the
Town Council to appeal/call‐up the approval.
Minor Subdivisions. For the reasons stated in the previous bullet, minor subdivisions
should be approved by the P&Z as the final review authority. Subdivisions would be
approved by motion in this case. In most cases a minor PUD amendment is going to require
a minor subdivision and why not have them both track in the process together. I don't see
an issue with the P&Z chair signing the plat (there are no dedications; they do it that way in
Vail for example).
Under section 7.16.050 Zoning Amendments, subsection d Mitigation: I have run into the
issue in the past where the Avon Comprehensive Plan actually recommends that certain
parcels be "up‐zoned." Where someone is implementing a policy of the Comprehensive
plan and specific direction provided therein, they should not have to "mitigate" for that
change in zoning. I would recommend adding something to the affect of "except where
greater intensity of land use specifically implements policies of the Comprehensive Plan."
Thanks,
Attachment B
to 8.7.13 Report
Attachment C
to 8.7.13 Report
Resolution 13-03, Code Text Amendment for Natural Resource Protection 2
Exhibit A to PZC Resolution 13-03
Section 1. Amendment to Section 7.28.100(a), Steep Slopes. Section 7.28.100(a), Steep
Slopes, of the ADC is hereby amended with the following modifications:
The Applicability for Steep Slopes will be amended as follows:
(2) Applicability. The standards in this section shall apply to all new development,
with the exception of administrative subdivisions and all other subdivision, PUD and zoning
amendment processes that do not result in an increase in density. any new subdivision, PUD, or
zoning amendment when any portion of the lot contains naturally-occurring slopes of thirty
percent (30%) or greater.
Subsection Limits on Graded or Filled Man-Made Slopes, will be removed in its entirety:
(v) Limits on Changes to Natural Grade. The original, natural grade shall not be
raised or lowered more than six (6) feet at any point for construction of any structure or
improvement. Retaining walls must comply with the requirements set forth in this section.
The Applicability of Streets, Roads, and General Site Access, is modified by removing
reference to specific building types as follows:
(A) Applies to all site access except three (3) unit, single family or duplex lots.
Section 2. Amendment to Section 7.32.020, Layout and Design Generally. Section
7.32.020, Layout and Design Generally, ADC is hereby amended with the following
modifications:
An Applicability statement is added to the front end of the Engineering Improvement
Standards Chapter:
(a) Applicability. The regulations of this subsection shall apply to all development
and all subdivision applications.
The Applicability statement in the Lots subsection is removed as follows:
(1) Applicability. The regulations of this subsection shall apply to all new lots,
replats of lots, tracts, and blocks with the exception of condominium and duplex subdivisions
that are in conformance with their preliminary plan.
The Applicability statement in the Building Envelopes subsection is removed as follows:
(i) Applicability. The regulations of this subsection shall apply to all lots with
natural hazards, floodplains, and slopes steeper than thirty percent (30%).
Attachment C
to 8.7.13 Report
Resolution 13-03, Code Text Amendment for Natural Resource Protection 3
The statement restricted any development on areas steeper than forty percent (40%) is
removed, and the wildlife habitat statement is moved from Building Envelopes to
Buildable Area as follows:
(1) Buildable Area. Every lot must have a buildable area large enough to be
consistent with the zoning for the lot. The buildable area cannot include areas with slopes
steeper than forty percent (40%), should be located to avoid natural hazard areas, critical wildlife
habitats, and floodplains, unless properly mitigated.
The Building Envelope subsection is removed, and the pertinent sections related to
minimum size of a buildable area and protecting wildlife habitat are moved into the
Buildable Area subsection as follows:
(1) Building Envelopes
(i) Applicability. The regulations of this subsection shall apply to all lots with
natural hazards, floodplains, and slopes steeper than thirty percent (30%).
(ii) All lots with natural hazards, floodplains and slopes steeper than thirty percent
(30%) shall have platted building envelopes which restricts development to areas without natural
hazards, floodplains and slopes steeper than thirty percent (30%).
(iii) All building envelopes The buildable area for each structure shall be no smaller
than twenty-five hundred (2,500) square feet and have a minimum dimension greater than
twenty-five (25) feet wide.
(iv) All building envelopes shall neither contain nor be affected by unmitigated
natural hazards
(v) If the access to the buildable area crosses slopes steeper than thirty percent
(30%), the developer will have to demonstrate that the access to the buildable area can meet all
other standards in this Code.
(vi) All building improvements above or below grade shall not extend beyond the
extents of the building envelope.
(vii) Building envelopes shall be sited to minimize impact to wildlife habitats.
Attachment C
to 8.7.13 Report
Attachment C
to 8.7.13 Report
Attachment C
to 8.7.13 Report
Development Review Procedures 2013 Update June 18, 2013 Page 52
Chapter 7.16
Development Review Procedures
7.16.010 Purpose.
This chapter contains regulations and the procedures for development applications.
§7.16.020 contains regulations that are generally applicable to all development application
review procedures, described in a series of sequential steps. The purpose is to establish uniform
procedures for application types to the extent possible. Subsequent sections identify the
applicability of the common steps to specific procedures, noting any differences between the
common procedures and those for the specific procedure. Specific procedure provisions
supplement, rather than replace, provisions of the common steps, unless the provisions conflict,
in which case the provisions of the specific procedure control. Table 7.16-1 indicates the
specific review and approval procedures of this chapter, with section references.
Table 7.16-1: Development Review Procedures and Review Authority
Procedure DirectorPZC TC
Comprehensive Plan Amendment (§7.16.030) R H-R H-D
Code Text Amendment (§7.16.040) R H-R H-D
Rezoning Zoning Amendment (§7.16.050) R H-R H-D
Planned
Unit
Development
(§7.16.060)
Administrative PUD D A
Minor PUD Amendment R H-R H-D
Major PUD Amendment R H-R H-D
Preliminary PUD R H-R H-D
Final PUD R H-R H-D
Major
Subdivision
(§7.16.070)
Administrative Subdivision (§7.16.070) D A
Minor Subdivision (§7.16.070) R H-D
Preliminary Plan R H-R H-D
Final Plat R H-D
Development
Plan
(§7.16.080)
Minor Development Plan (§7.16.080) D A
Major Development Plan (§7.16.080) R H-D A
Major Development Plan in Town Core
(§7.16.080) R H-R H-D
Design Review (§7.16.090) R H-D A
Special Review Use (§7.16.100) R H-D A
Variance (§7.16.110) R H-D A
Alternative Equivalent Compliance (§7.16.120) R
H-D
or H-
R
A or H-D
Right-of-Way Vacation (§7.16.130) R H-D
Vested Property Right (§7.16.140) R H-R H-D
Location, Character, and Extent (§7.16.150) R H-D A
Appeal (§7.16.160) H-D
Annexation (§7.36) R H-R H-D
1041 Permit (§7.40) R H-R H-D
R=Review/Recommendations; H=Public Hearing;D=Decision; A=Appeal
Attachment C
to 8.7.13 Report
Development Review Procedures 2013 Update June 18, 2013 Page 53
7.16.020 General Procedures and Requirements.
The following procedures shall apply to all development applications which are reviewed
under this Chapter 7.16.
(a) Step 1: Pre-application Conference. A pre-application conference is required for all
development applications unless waived by the Director. The pre-application conference serves
to assist the applicant with (1) identifying information which must be provided for a complete
development application, (2) understanding the development application review process, (3)
identifying appropriate referral agencies for review and comment, (4) achieving compliance with
development standards, understanding relevant planning issues, and (5) determining appropriate
fees. The Director may include other Town representatives in the pre-application conference as
deemed appropriate. The applicant shall provide sufficient information to the Director at least
five (5) business days prior to a scheduled pre-application conference, unless such time frame is
waived by the Director. Minimum information shall include applicant information, property
description, description of proposed development or nature of development application, and
conceptual site plans or drawings which illustrate the nature of the development application. The
Director may determine that the information provided is insufficient and request additional
information. If the applicant fails to provide sufficient information for a pre-application meeting
and seeks to proceed with the application process, the Director may notify the PZC and Council
of the lack of adequate information submitted at the pre-application conference. The Director
may provide a written letter after the pre-application conference summarizing application
submittal requirements, review procedures, development standards, planning issues, and required
fees. The informal evaluation of the Director and staff provided at the pre-application
conference are not binding upon the applicant or the Town. Critical issues relevant to a
development application may not be apparent at the pre-application conference and may require
additional review, submissions, or studies later in the application process.
(b) Step 2: Application Submittal.
(1) Applicant. The owner of real property, or authorized representative of the owner
with a properly acknowledged power of attorney, may submit a development application. No
development application shall be received for processing or approved, and no application for
a building permit shall be granted, when the applicant is in default under any related or
unrelated agreement or obligation to the Town.
(2) Application Submittal Requirements. The applicant shall submit the application
to the Director. Application submittal requirements for every application type shall be
established by the Director on submittal forms available in the Administrative Manual from
the Department of Community Development or on the Town’s website. The Director may
adopt standards and requirements for three dimensional electronic and graphic information
for application submittal requirements. The Director may waive submission requirements
where appropriate to specific applications; however, the waiver of any submission
requirement shall not preclude the Planning Commission or Town Council from requiring
such information where deemed necessary for evaluation of the development application
with the applicable review criteria. The minimum submittal requirements for all applications
shall include:
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(i) Completed application form;
(ii) Owner’s signature or an acknowledged power of attorney if the owner has
authorized an agent or representative to act as the applicant;
(iii)Title insurance commitment which has been updated within sixty (60) days of the
application submittal along with copies of all documents listed in the exceptions;
(iv) Legal description of the property subject to the development application;
(v) Development application review fees; and
(vi) Survey no more than three (3) years old stamped by a surveyor licensed in the
State of Colorado.
(3) Required Studies and Reports. Reports or studies may be necessary to
adequately evaluate the development application for compliance with the review criteria.
Such reports include but are not limited to: studies of soils, geological hazards, fiscal
impacts, market analysis, traffic impacts, and/or environmental impacts. The applicant shall
furnish the reports or studies needed at the applicant’s sole expense. The Town may require
independent peer review of any report or study provided by the applicant. The applicant and
the Town may agree to retain a mutually acceptable consultant to prepare a report or study,
which cost shall be paid by the applicant. All required reports or studies shall be executed by
professionals or other persons qualified to provide the requested reports. The form and
content of reports or studies may be established by the Director and set forth in the
Administrative Manual.
(4) Concurrent Review Permitted. Where multiple development applications
concern the same property then the Director may permit concurrent review of the
development applications for efficiency and practicality.
(5) Multiple Applications. A single property shall not be permitted to have more than
one (1) application of the same type being processed concurrently.
(6) Fees. Fees shall be paid in accordance with §7.04.100, Fees.
(c) Step 3: Application Processing.
(1) Determination of Completeness. A development application shall be reviewed for
completeness by the Director within ten (10) business days after receipt. If the application is
determined to not be complete then a written communication shall be promptly provided to
the applicant indicating the specific deficiencies in the application. The determination that an
application is complete or the failure to determine an application is incomplete within ten
(10) days shall not preclude the Town from requiring information which is necessary and
relevant to evaluate the development application for compliance with the review criteria. A
determination by the Director that the application is incomplete may be appealed to the Town
Council in accordance with the procedures in §7.16.160, Appeal.
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(2) Referral to Other Agencies. Development applications may be referred to other
agencies for review and comment. The Director shall attempt to identify appropriate referral
agencies and shall consider the comments from referral agencies as part of the staff review
and report. The Planning Commission and Town Council may determine that referral of a
development application to an agency for review and comment is appropriate where such
referral agencies may provide comments relevant to evaluating the development application
for compliance with the review criteria. Referral of development applications to other
agencies shall provide a minimum timeframe for review and comment of fourteen (14) days
for development plans, design review, variances, amendments to text of Development Code,
and minor subdivisions; and twenty-one (21) days for preliminary subdivision, planned unit
development, planned unit development amendments, re-zoning, and 1041 permits; however,
the timeframe for review and comment may be extended if the development application
presents technical issues which require additional review, if additional information is
provided by the applicant, or the application is modified. Referral agencies may include, but
are not limited to:
(i) Any utility, local improvement or service district, or ditch company, when
applicable;
(ii) The Colorado Department of Transportation when the proposed development is
adjacent to or in sufficient proximity to affect a right-of-way, interchange, or other
facility;
(iii) The Colorado Geological Survey for findings and recommendations pertaining
to geologic factors, including geologic hazards, mineralized areas, and sand and gravel
areas that would have a significant impact on the proposed use of the land;
(iv) Any other agency concerned with a matter or area of local interest that could be
affected by the application;
(3) Staff Review and Report. The Director shall review the application in accordance
with the criteria established in this chapter and shall prepare written findings of fact. If
authorized as the decision-making authority, the Director shall inform the applicant in
writing of the findings and determination. If not authorized as the decision-making authority,
the Director shall prepare a recommendation and submit the recommendation and findings to
the appropriate review and decision-making authority.
(4) Required Processing. Applicants shall be required to continuously and diligently
pursue their development applications which shall include responding in a timely manner to
staff comments and requests. An Applicant which fails to respond to staff comments or
requests for a period of four (4) months shall be administratively withdrawn by the Director
unless the Director determines that good cause exists to extend the application timeframe and
approves such extension in writing.
(d) Step 4: Notice. Notice shall be required for all public hearings conducted by the
Planning Commission and Town Council.
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(1) Published and Posted Notice. Notice shall be published in a newspaper of general
circulation within the Town and posted in the designated official places of posting by the
Town at least eleven (11) days prior to the hearing date.
(2) Mailed Notice. For procedures that require mailed notice, notice shall be sent by
first-class mail to all real property owners within three hundred (300) feet of the property
which is the subject of a development application, as measured from the boundary of the
property. If a property within three hundred (300) feet that requires notification is a
condominium project, notice may be mailed to the managing agent, registered agent, or any
member of the board of directors of the project. Mailed notice shall be postmarked at least
eleven (11) days prior to the meeting. Mailed notice shall be sent by the Town at the
applicant’s expense. The Eagle County Assessor’s records may be used to determine the
addresses of real property owners. The Town shall include a certificate of mailing in the
public record.
(3) Notice Content. Every required form of notice shall state the time and place of the
hearing, the name of the applicant, a general description of the subject property indicating its
location (which shall be shown by map), a brief summary of the subject matter of the
hearing, a description of the proposed development, a statement that the application or
information relating to the proposed change or amendment is available in the Director’s
office during regular business hours for review or inspection by the public, and a statement
that written comments may be submitted to the Community Development Department. All
required notices shall be approved by the Director prior to posting or distributing.
(4) Constructive Notice. Minor defects in any notice shall not impair the notice or
invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply
with applicable notice requirements. Minor defects in notice shall be limited to errors in a
legal description or typographical or grammatical errors that do not impede communication
of the notice to affected parties. In all cases, however, the requirements for the timing of the
notice and for specifying the time, date, and place of a hearing shall be strictly construed.
Any person who appears at a public hearing is deemed to have received constructive notice
and waived any grounds to challenge defective notice. If a question arises at the hearing
regarding the adequacy of notice, the reviewing or decision-making body shall make a formal
finding as to whether there was substantial compliance with the notice requirements of this
Code. When the records of the Town document the publication, mailing, and posting of
notices as required by this section, it shall be presumed that notice was given as required by
this Section. If the reviewing or decision-making body takes action to continue a hearing to a
future specified date, time and location, then constructive notice is deemed to have been
provided for such continued hearing date and additional notices shall not be required.
(e) Step 5: Public Hearings. The Director shall schedule a public hearing date before the
PZC and/or Town Council after a complete application has been received, town staff has
completed town staff review and referral agencies have had an opportunity to provide comments.
The Director may delay the scheduling of a public hearing to a subsequent meeting where an
agenda of the PZC or Town Council is full. A complete application shall be scheduled for an
initial public hearing within seventy-five (75) days after the date that the application is
determined to be complete unless the applicant consents to scheduling the public hearing on a
later date. The PZC or Council may continue a public hearing on its own initiative for a
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maximum of thirty-five sixty-five (3565) days after the date of the initial public hearing without
the consent of the applicant. PZC or Council may continue a public hearing for a maximum of
ninety-five (95) days with the consent of the applicant.
(f) Step 6: Review and Decision. The following rules shall apply to review,
recommendations, and decisions conducted at public hearings.
(1) Review Criteria. The reviewing authority shall be Director when the Director has
the authority to administratively approve a development application. The reviewing
authority shall be the PZC and/or Town Council for all development applications which are
subject to public hearing. The reviewing authority shall review development applications for
compliance with all relevant standards and criteria as set forth in the specific procedures for
the particular application in this Development Code as well as the following general criteria
which shall apply to all development applications:
(i) The development application is complete;
(ii) The development application provides sufficient information to allow the
reviewing authority to determine that the development application complies with the
relevant review criteria;
(iii) The development application complies with the goals and policies of the Avon
Comprehensive Plan; and,
(iv) The demand for public services or infrastructure exceeding current capacity is
mitigated by the development application.
(2) Authority to Require Additional Studies. If the reviewing authority finds that the
submittal materials are not adequate to evaluate the development against the review criteria,
it may require additional studies as necessary. In doing so, the reviewing authority shall
indicate the specific consequence(s) or concern(s) for which the standard submittal
requirements fail to provide adequate means of evaluation and the data or information needed
for proper evaluation. The results of any study or analysis shall not dictate either approval or
disapproval of the proposed project.
(3) Findings. The reviewing authority shall adopt written findings which document
that a recommendation or decision is based upon a determination of whether the development
application complies with the applicable review criteria. The written findings shall state the
conditions or mitigation.
(4) Conditions. The reviewing authority may recommend approval, or may approve, a
development application with conditions where such conditions are deemed necessary to
ensure compliance with the applicable review criteria and the purpose and intent of this
Development Code. Conditions shall be in written form and attached to the approved plan,
plat, or permit. Conditions may include specific time limits for performance of any
condition. Conditions may include financial performance guarantees from the applicant
where the condition requires improvements for mitigation, where deemed necessary to public
health, safety, or welfare, or where deemed necessary to protect adjacent property or public
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infrastructure. Financial performance guarantees shall be in the form of an agreement which
is acceptable to the Town and shall be executed by the applicant.
(5) Final Decision. A decision by the Director or the PZC shall become final unless a
written appeal is timely submitted to the Town in accordance with §7.16.160, Appeal. The
date of the decision shall be the date that the reviewing authority renders a decision. The
Town shall mail the written findings and notification of decision to the applicant within five
working days of the decision of the reviewing authority. The Town Council reserves the
authority to render a final decision on all decisions rendered under this Development Code
and only a decision of the Town Council may be subject to legal challenge. The failure to
timely submit a written appeal of a decision of the Director or the PZC shall be deemed to be
a waiver of any right to legally challenge such decision.
(g) Minor Amendment. The applicant may apply to the Director for minor amendments
to an approved development application. Minor amendments to an approved development
application may be approved, approved with conditions, or denied administratively by the
Director. The Director is authorized to approve minor amendments only if the development
approval, as so amended, complies with the standards of the Development Code. The Director
may refer a minor amendment to the decision-making body that was responsible for the original
approval if the Director determines the amendment may result in a material change to the
approved development application. Proposed amendments to an approved development
application which are determined by the Director to not be a minor amendment shall be reviewed
and processed in the same manner as would be required under this Development Code for the
original application for which the amendment is sought and shall include full application fees.
Minor amendments shall consist of any of the following:
(1) Any change to any permit or other form of approval that was originally subject only
to administrative review and was approved by the Director, provided such change would not
have disqualified the original application from administrative review under this Development
Code had it been requested at that time; and provided that the minor amendment does not
result in an increase of more than ten percent (10%) in the amount of square footage of a land
use or structure and does not result in a change in the types of uses in the project.
(2) Correction of any errors caused by mistakes that do not materially alter the
substance of the development plan or plat as represented to the Council.
(3) A change to an approved design which results in a ten percent (10%) or less
increase to lot coverage; ten percent (10%) or less increase to building height; adjustments to
building footprints, access and parking configurations which are less than ten (10) feet;
alterations to the landscaping plan or drainage plan which substantially comply with the
original approval; and, changes to doors, windows, roofs, or building articulation which are
less than two (2) feet and which do not alter or diminish the overall design character as
approved; as are all determined by the Director.
(4) Changes to an approved development application which do not result in:
(i) An increase in the approved number of dwelling units;
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(ii) An increase in the amount of square footage of a non-residential land use or
structure;
(iii) A change in the housing mix or use mix ratio; or,
(iv) A change in the character of the development.
(h) Termination of Approval. All development approvals shall expire and become void
two (2) years after the date of the approval if a building permit has not been issued prior to the
expiration date, except when a different duration is specified in the development approval, a
different duration is specified in the specific procedures for the development approval, or a
request for extension is approved by the reviewing authority which granted the original
development approval. The owner shall submit a written request for an extension to the Director
prior to the expiration date and shall state the reasons and circumstances for such extension
request. The Director and the PZC may provide one (1) extension for a maximum of one (1)
year. Town Council may provide multiple extensions and may provide extensions greater than
one year.
7.16.030 Comprehensive Plan Amendment.
This section sets forth procedures for reviewing proposed amendments to the texts and maps
of the Avon Comprehensive Plan. The amendment process is established in order to provide
flexibility in response to changing circumstances, to reflect changes in public policy, and to
advance the general welfare of the Town.
(a) Review Procedures. Applications to amend the Avon Comprehensive Plan shall
follow the general review procedures set forth in §7.16.020, General Procedures and
Requirements. Applications to amend the Comprehensive Plan may be initiated by the Town
Council, any registered voter of the Town of Avon, or any property owner in the Town of Avon.
(b) Review Authority. The PZC shall review applications for amendments to the Avon
Comprehensive Plan and shall provide a recommendation to the Town Council after conducting
a public hearing. The Town Council shall render the final decision on an application to amend
the Avon Comprehensive Plan after conducting a public hearing. Amendments to the Avon
Comprehensive Plan shall be approved by ordinance of the Town Council.
(c) Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications to amend the Avon
Comprehensive Development Plan:
(1) The surrounding area is compatible with the land use proposed in the plan
amendment or the proposed land use provides an essential public benefit and other locations
are not feasible or practical;
(2) Transportation services and infrastructure have adequate current capacity, or
planned capacity, to serve potential traffic demands of the land use proposed in the plan
amendment;
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(3) Public services and facilities have adequate current capacity, or planned capacity, to
serve the land use proposed in the plan amendment;
(4) The proposed land use in the plan amendment will result in a better location or form
of development for the Town, even if the current plan designation is still considered
appropriate;
(5) Strict adherence to the current plan would result in a situation neither intended nor
in keeping with other key elements and policies of the plan;
(6) The proposed plan amendment will promote the purposes stated in this
Development Code; and,
(7) The proposed plan amendment will promote the health, safety or welfare of the
Avon Community and will be consistent with the general goals and policies of the Avon
Comprehensive Plan.
7.16.040 Code Text Amendment.
The Council may amend the text of the Development Code, including the adoption,
modification, or replacement of appendices to the Development Code, pursuant to this section.
The purpose of a code text amendment is to address changed conditions, unintended
consequences or changes in public policy, to advance the general welfare of the Town.
(a) Review Procedures. Applications to amend the text of the Development Code shall
follow the general review procedures set forth in §7.16.020, General Procedures and
Requirements. Applications to amend the text of the Development Code may be initiated by the
Town Council, any property owner within the Town of Avon, or any registered elector within the
Town of Avon.
(b) Review Authority. The PZC shall review applications to amend the text of the
Development Code and shall provide a recommendation to the Town Council after conducting a
public hearing. The Town Council shall render the final decision on an application to amend the
text of the Development Code after conducting a public hearing. Amendments to the text of the
Development Code shall be approved by ordinance of the Town Council.
(c) Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications to amend the text of the
Development Code:
(1) The text amendment promotes the health, safety, and general welfare of the Avon
Community;
(2) The text amendment promotes or implements the goals and policies of the Avon
Comprehensive Plan;
(3) The text amendment promotes or implements the purposes stated in this
Development Code; or
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(4) The text amendment is necessary or desirable to respond to changed conditions,
new planning concepts, or other social or economic conditions.
7.16.050 Zoning Amendments.
The boundaries of any zone district may be changed, or the zone classification of any parcel
of land may be changed, pursuant to this section. The purpose is not to relieve particular
hardships, nor to confer special privileges or rights on any person, but only to make adjustments
to the Official Zoning Map that are necessary in light of changed conditions or changes in public
policy, or that are necessary to advance the general welfare of the Town.
(a) Review Procedures. Applications for a zoning amendment shall follow the general
review procedures set forth in §7.16.020, General Procedures and Requirements. Applications
for zoning amendments may be initiated by the Town Council or the property owner and may not
be initiated by any other person.
(b) Review Authority. The PZC shall review applications for zoning amendments and
shall provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall render the final decision on an application for zoning amendment after
conducting a public hearing. Zoning amendments shall be approved by ordinance of the Town
Council.
(c) Review Criteria. The PZC and Town Council shall use the following review criteria
as the basis for recommendations and decisions on applications for zoning amendment:
(1) Evidence of substantial compliance with the purpose of the Development Code;
(2) Consistency with the Avon Comprehensive Plan;
(3) Physical suitability of the land for the proposed development or subdivision;
(4) Compatibility with surrounding land uses;
(5) Whether the proposed rezoning is justified by changed or changing conditions in
the character of the area proposed to be rezoned
(6) Whether there are adequate facilities available to serve development for the type
and scope suggested by the proposed zone compared to the existing zoning, while
maintaining adequate levels of service to existing development;
(7) Whether the rezoning is consistent with the stated purpose of the proposed zoning
district(s);
(8) That, compared to the existing zoning the rezoning is not likely to result in adverse
impacts upon the natural environment, including air, water, noise, stormwater management,
wildlife, and vegetation, or such impacts will be substantially mitigated;
(9) That, compared to the existing zoning, the rezoning is not likely to result in
significant adverse impacts upon other property in the vicinity of the subject tract;
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(10) For rezoning within an existing PUD, consistency with the relevant PUD Master
Plan as reflected in the approval of the applicable PUD; and,
(11) Adequate mitigation is required for zoning amendment applications which result in
greater intensity of land use or increased demands on public facilities and infrastructure.
(d) Mitigation. Zoning amendment applications which propose a greater intensity of land
use or increased demands on public services or infrastructure shall be required to provide
adequate mitigation of such impacts. Greater intensity of land use or increased demands on
public facilities and infrastructure shall include, but are not limited to: transportation, water,
sewer, schools, emergency services, police, parks and recreation, medical, and library. Adequate
mitigation may include providing dedications of land or cash-in-lieu for the proportionate share
of capital investment in public facilities and infrastructure related to the potential incremental
increase of demand created from the existing zoning classification to the proposed zoning
classification.
7.16.060 Planned Unit Development (PUD).
(a) Purpose. This section is intended to allow flexible development patterns that are not
specifically provided for in this Development Code. It is the purpose of this section:
(1) To promote and permit flexibility that will encourage innovative and imaginative
approaches in land development and renewal that will result in a more efficient, aesthetic,
desirable, and economic use of land while maintaining density and intensity of use consistent
with the applicable adopted plans, regulations, and policies of the Town;
(2) To promote development within the Town that can be conveniently, efficiently, and
economically served by existing local utilities and services or by their logical extension;
(3) To promote design flexibility including placement of buildings, use of open space,
pedestrian and vehicular circulation systems to and through the site, and off-street parking
areas in a manner that will best utilize potential on-site characteristics such as, topography,
geology, geography, size, and proximity;
(4) To provide for the preservation of historic or natural features where they are shown
to be in the public interest, including but not limited to such features as: drainage ways, flood
plains, existing topography or rock outcroppings, unique areas of vegetation, historic
landmarks, or structures;
(5) To provide for compatibility with the area surrounding the project site;
(6) To provide for usable and suitably located open space such as, but not limited to,
bicycle paths, playground areas, courtyards, tennis courts, swimming pools, planned gardens,
outdoor seating areas, outdoor picnic areas, and similar open space;
(7) To minimize adverse environmental impacts of development;
(8) To improve the design, quality and character of new development; and
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(9) To provide compensating community benefits to offset any impacts of the
development and in recognition of design flexibility.
(b) Eligibility Criteria. All of the following criteria must be met for a property to be
eligible to apply for PUD approval.
(1) Property Eligible. All properties within the Town of Avon are eligible to apply for
PUD approval.
(2) Consistency with Comprehensive Plan. The proposed development shall be
consistent with the Avon Comprehensive Plan.
(3) Consistent with PUD Intent. The proposed development shall be consistent with
the intent and spirit of the PUD purpose statement in §7.16.060(a).
(4) Compatibility with Existing Uses. The proposed development shall not impede
the continued use or development of surrounding properties for uses that are permitted in the
Development Code or planned for in the Avon Comprehensive Plan.
(5) Public Benefit. A recognizable and material benefit will be realized by both the
future residents and the Town as a whole through the establishment of a PUD, where such
benefit would otherwise be infeasible or unlikely.
(6) Preservation of Site Features. Long-term conservation of natural, historical,
architectural, or other significant features or open space will be achieved, where such
features would otherwise be destroyed or degraded by development as permitted by the
underlying zoning district.
(7) Sufficient Land Area for Proposed Uses. Sufficient land area has been provided
to comply with all applicable regulations of the Development Code, to adequately serve the
needs of all permitted uses in the PUD projects, and to ensure compatibility between uses and
the surrounding neighborhood.
(c) Dimensional and Development Standards. The following dimensional and
development standards shall apply to all PUDs.
(1) Overlay District. A PUD shall be an overlay district and shall be applied over an
underlying zone district. If there is no underlying zone district one shall be established prior
to or concurrently with a PUD approval. The rezoning process set forth in §7.16.050 shall be
used to establish the underlying zone district.
(2) Permitted Uses. PUD uses shall be limited to those allowed either as permitted,
accessory, or special review uses in the underlying zone district.
(3) Development Standards. Chapter 7.28, Development Standards, shall apply to
PUD projects.
(d) General Procedures. All PUDs are processed in two stages: 1) the preliminary PUD
and 2) the final PUD. The final PUD can only be filed with the Town for review and processing
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after the preliminary PUD has been approved or conditionally approved by the Town Council.
The filing of a PUD in the office of Community Development shall not constitute the effective
dedication of easements, rights-of-way, or access control, nor shall the filed PUD plan be the
neither the equivalent of nor substitute for the final platting of land. Specific procedures for
preliminary PUD and final PUD are outlined below.
(1) Coordination with Subdivision Review. It is the intent of this Development Code
that subdivision review required under §7.16.070, Subdivisions, if applicable, be carried out
concurrently with the review of PUD development plans under this section. If subdivision
approval is required for the subject property, the PUD plans required under this Section shall
be submitted in a form that satisfies the requirements for preliminary and final subdivision
plat approvals. If any provisions of this section conflict with the subdivision procedures or
standards of this Development Code, the more restrictive or detailed requirements shall be
met, unless specifically altered by the Town Council.
(e) Procedures for Preliminary Planned Unit Development. The general procedures set
forth in §7.16.020 shall apply to preliminary Planned Unit Development applications. Where
subdivision approval will be required to implement development in a proposed PUD, the
applicant shall file a single preliminary PUD plan incorporating the application requirements of
both the PUD and subdivision preliminary plans. The provisions and procedures for public
notice, hearing, and review for a PUD as prescribed in this section shall apply to the application.
(1) PUD Master Plan and Guide Required. The application for PUD rezoning shall
include a preliminary PUD plan. The Director shall require sufficient detail in the
preliminary PUD plan to provide an opportunity for the approving bodies to make informed
decisions and evaluate compliance with the applicable approval criteria. The plan shall
include, at a minimum:
(i) A quantitative summary of existing conditions on the subject property;
(ii) A list of uses to be allowed within the PUD by right, a list of uses to be allowed
only with a special review use permit, and a list of temporary uses;
(iii) Parking analysis based on proposed uses;
(iv) Density of uses proposed;
(v) Location of public and private open space;
(vi) Location of existing and proposed buildings on the site;
(vii) Road, street, and pedestrian networks proposed;
(viii) Drainage facilities;
(ix) Existing or proposed utilities and public services;
(x) If development is to be phased, a description of the phase components and
timing;
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(xi) A statement that development on the site will meet applicable standards of the
underlying zoning district and this Development Code, or a statement specifying the
standards of the underlying district and this Development Code to which modifications
are proposed and the justification for such modifications; and
(xii) A statement specifying the public benefit(s) to be contained in or associated
with the PUD.
(2) Notice. Where subdivision approval will be required to implement development in
a proposed PUD, the public hearing notice requirements for preliminary subdivision plan
approval shall be combined and shall run concurrently with the PUD public notice and
hearing requirements.
(3) Reviewing Authority. The PZC shall review a preliminary PUD applications and
shall provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision on a preliminary PUD application
after conducting a public hearing. Unless otherwise approved by the Town Council,
approval of a preliminary PUD application shall vest no rights to the applicant other than the
right to submit a final PUD development plan.
(4) Review Criteria. The PZC and Town Council shall consider the following criteria
as the basis for a recommendation or decision to rezone a property to PUD Overlay, and
approve a preliminary PUD plan, or process a PUD amendment:
(i) The PUD addresses a unique situation, confers a substantial benefit to the
Town, and/or incorporates creative site design such that it achieves the purposes of this
Development Code and represents an improvement in quality over what could have been
accomplished through strict application of the otherwise applicable district or
development standards. Such improvements in quality may include, but are not limited
to: improvements in open space provision and access; environmental protection;
tree/vegetation preservation; efficient provision of streets, roads, and other utilities and
services; or increased choice of living and housing environments.
(ii) The PUD rezoning will promote the public health, safety, and general welfare;
(iii) The PUD rezoning is consistent with the Avon Comprehensive Plan, the
purposes of this Development Code, and the eligibility criteria outlined in §7.16.060(b);
(iv) Facilities and services (including roads and transportation, water, gas, electric,
police and fire protection, and sewage and waste disposal, as applicable) will be available
to serve the subject property while maintaining adequate levels of service to existing
development;
(v) Compared to the underlying zoning, the PUD rezoning is not likely to result in
significant adverse impacts upon the natural environment, including air, water, noise,
storm water management, wildlife, and vegetation, or such impacts will be substantially
mitigated;
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(vi) Compared to the underlying zoning, the PUD rezoning is not likely to result in
significant adverse impacts upon other property in the vicinity of the subject tract; and
(vii) Future uses on the subject tract will be compatible in scale with uses or potential
future uses on other properties in the vicinity of the subject tract.
(5) Submission Deadline for Final PUD Master Plan. Within six (6) months
following approval of the preliminary PUD plan, the applicant shall initiate the second stage
of their application process by filing with the Director a final PUD plan, and subdivision plat
if necessary, containing in final form all the information required in the preliminary PUD
plan, along with such other documents as may be necessary to implement the plan or to
comply with all applicable requirements of this Development Code. Upon written request by
the applicant prior to the application lapsing, the Planning and Zoning Commission, for good
cause, may extend the period for filing the final PUD plan for a period not to exceed six (6)
months.
(f) Procedures for Final Planned Unit Development Approval. The general procedures
set forth in §7.16.020, General Procedures and Requirements, shall apply to final Planned Unit
Development applications subject to the following exceptions and additions:
(1) Pre-Application Conference. A pre-application conference shall be required,
unless waived by the Director.
(2) Contents of the Final PUD Master Plan. The final PUD master plan shall contain
all of the materials included in the preliminary PUD development plan, together with
revisions, if any, that may be approved by the Planning and Zoning Commission without an
additional public hearing, as described in subsection b. below. In addition to the materials
required in the administration manual, the final PUD master plan shall include the following:
(i) Phasing Program. A document describing any proposed phasing program of
the development for all structures, recreational and other common facilities, and open
space improvements, including time schedule for commencement and completion dates
of construction of each phase. Intermediate phases shall not exceed overall project
density and a pro rata allocation of common open space shall be made as each phase is
developed.
(ii) Common Open Space Agreement. A copy of the formal agreement with a
public agency or private association for the ownership and maintenance of the common
open space is required.
(iii) Plats for Recording. A copy of any subdivision plat, plat of dedication, or plat
of vacation that may be necessary part of the PUD rezoning is required.
(iv) Covenant. A restrictive covenant in a form acceptable to the Town Attorney
limiting development of construction upon the tract as a whole to such development and
construction as shall comply with the final PUD development plan as approved by the
Town Council, which document shall include a provision granting the Town a right to
enforce the same.
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(3) Permitted Minor Changes from a Preliminary PUD Master Plan. Minor
changes in the location, siting, and height of structures, streets, driveways, and open spaces
may be authorized by the PZC to be included in the final PUD master plan in accordance
with the following procedure without additional public hearings, if such changes are required
by engineering or other circumstances not foreseen at the time the preliminary PUD
development plan is approved. No change authorized by this subsection may cause any of
the following:
(i) A change in the use or character of the development;
(ii) An increase by more than one percent (1%) in the overall coverage of
structures;
(iii) An increase in the density or intensity of use;
(iv) An increase in the impacts on traffic circulation and public utilities;
(v) A reduction of not more than one percent (1%) in approved common open
space;
(4) Reviewing Authority. The PZC shall review all final PUD applications and shall
provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision on a final PUD application after
conducting a public hearing.
(5) Review Criteria. The PZC and the Town Council shall review the final PUD
development plan and PUD rezoning according to the same approval criteria listed above for
preliminary PUD development plans.
(g) Recordation. The applicant shall record the approved final PUD, as approved, in the
office of the Eagle County Clerk and Recorder within thirty (30) days after the date of approval.
If the final PUD is not recorded, the approval of the Town Council shall be deemed to have been
withdrawn; and the approval shall be null and void.
(h) Amendments to a Final PUD. The provisions of §7.16.020(g), Minor Amendment, are
applicable to PUDs. Unless a Final PUD contains different amendment procedures, amendments
to a Final PUD are governed by this section. The PUD amendment process is dependent on the
type of amendment.
(1) PUD Amendment Categories. Categories of PUD Amendments are established and
defined as follows for the purpose of determining the appropriate review procedure:
(i) Administrative Amendment. A proposed PUD amendment is considered
administrative if it provides for the correction of any errors caused by mistakes that do
not materially alter the substance of the PUD Development Plan as represented to
Council.
(ii) Minor Amendment. A proposed PUD amendment is considered minor if it
meets the following criteria for decision and has been determined as such by the Director:
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(A) The PUD Amendment does not increase density, increase the amount of
nonresidential land use, or significantly alter any approved building scale and mass of
development.
(B) The PUD Amendment does not change the character of the development,
and maintains the intent and integrity of the PUD.
(C) The PUD Amendment does not result in a net decrease in the amount of
open space or result in a change in character of any of the open space proposed within
the PUD.
(iii) Major Amendment. A PUD Amendment that is not classified as an
administrative or minor amendment is considered a major amendment.
(2) Reviewing Authority
(i) Administrative Amendments. The Director shall review and render decisions
on Administrative Amendments. A decision of the Director may be appealed to the
Town Council pursuant to Section 7.16.160, Appeal.
(ii) Minor Amendments. The general procedures set forth in Section 7.16.020,
General Procedures and Requirements, shall apply to major PUD amendment
applications. The PZC shall review all minor PUD amendment applications and shall
provide a recommendation to the Town Council after conducting a public hearing. The
Town Council shall review and render a final decision on a minor PUD amendment
application after conducting a public hearing.
(iii) Major Amendments. The general procedures set forth in §7.16.020 shall apply
to major PUD amendment applications. All major PUD Amendment applications shall
be processed as a Preliminary PUD and Final PUD applications.
(3) Review Criteria. The PZC and Town Council shall review a PUD amendment
according to the same approval criteria listed above for preliminary PUD development Plan.
(i) Lapse. Unless otherwise provided by Town Council, development of an approved
PUD shall commence within twelve (12) months from the approval of the final PUD plan. If
development has not commenced within twelve (12) months, the Director shall initiate a public
hearing process for the purpose of considering whether to rezone the property back to its prior
zoning classification, or in light of other conditions, to another zoning classification, and
revocation of all permits issued and action taken.
(j) Revocation of a Final PUD. A final PUD may be revoked pursuant to the procedures
and criteria set forth in this section.
(1) Initiation of Revocation Proceedings. Revocation of a PUD may occur if:
(i) The landowner or a majority of the owners of property within the subject PUD,
petition for revocation of such PUD plan in whole or in part;
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(ii) The project falls more than three (3) years behind the phasing plan or schedule
filed with the final PUD;
(iii) Construction and or application for building permits have not commenced
within one (1) year of approval of the final PUD by the Town Council; or
(iv) The construction and provision of landscaping, buffers, open space, and public
streets and facilities that are shown on the final development plan are proceeding at a
substantially slower rate than other project components.
(2) Public Notice Requirements. Prior to the Planning and Zoning Commission
meeting and the Town Council meeting notice shall be given in accordance with the
provisions of §7.16.020(d).
(3) Review Authorities.
(i) Planning and Zoning Commission Public Hearing. The Planning and Zoning
Commission shall hold a public hearing and make a recommendation to revoke the final
PUD, keep the final PUD in force, or postpone the application. The Planning and
Zoning Commission shall not recommend revocation of the final PUD to the Town
Council unless the Planning and Zoning Commission makes the findings required for
revocation. The Planning and Zoning Commission may impose reasonable conditions on
such revocation in order to advance the health, safety, and welfare of the citizens, such as
vacation of the underlying final plat.
(ii) Town Council Public Hearing. The Town Council shall hold a public hearing
and determine whether to revoke, postpone, or keep the final PUD in force. The Town
Council shall not revoke the final PUD unless it makes the findings required for
revocation. The Town Council may impose reasonable conditions on such revocation in
order to advance the health, safety, and welfare of the citizens, such as vacation of the
underlying final plat.
(4) Required Findings for Revocation. The Planning and Zoning Commission shall
not recommend revocation and the Town Council shall not revoke any final PUD unless the
following findings are made:
(i) Revocation proceedings were initiated pursuant to this section; and
(ii) The property owner(s) were notified no less than sixty (60) days prior to
Planning and Zoning Commission action on the revocation; and
(iii) Public notice was mailed prior to the PZC hearing on the revocation and prior to
the Town Council hearing on the revocation pursuant to the provisions of §7.16.020(d);
and
(iv) The PUD is not compatible with the surrounding area; or
(v) There is not a need for the uses in the area included within the PUD plan; or
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(vi) The PUD will have adverse impacts on future development of the area; or
(vii) The traffic generated by the PUD plan will have adverse impacts on the
neighborhood and the surrounding area; or
(viii) The PUD will have adverse impacts on community facilities in the
neighborhood and on the surrounding area, including but not limited to schools, library,
police, and fire protection, recreation facilities, park lands, and open space; or
(ix) The PUD will have adverse impacts on municipal infrastructure in the area,
including but not limited to water service, wastewater service, storm water service,
transportation systems, and street systems; or
(x) The PUD will not comply with the standards and specifications for design and
construction of public improvements in force at the time of the public hearing; or
(xi) The owner or applicant has not met all dates established in the PUD plan for the
commencement of construction of the PUD or for a phase of the PUD plan; or
(xii) The revocation is in conformance with the provisions contained in applicable
sections of this Code, consistency with the adopted comprehensive plan for the Town,
and applicable specific plans and relevant Town policies.
7.16.070 Subdivisions.
The purpose of the subdivision review procedures is to ensure compliance with all the
standards and requirements in this development code, and encourage quality development
consistent with the goals, policies, and objectives in the comprehensive plan.
(a) Applicability. The procedures of this section and the standards in Chapter 7.32,
Engineering Improvement Standards, shall apply to all subdivisions or re-subdivisions that result
in the portioning, dividing, combining, or altering of any lot, parcel, or tract of land, including
land used for condominiums, apartments, or any other multiple dwelling units or creation of an
estate in airspace, except any subdivisions that are specifically excluded by state law. If a tract
of land that has been created or subdivided in the past is later described as a single tract in deeds
or plat by the legal or equitable owners, any later subdivisions of that tract, even if along the
lines of the earlier subdivision, shall be subject to the requirements of these regulations. If any
tract of land or airspace has been subdivided as one type of subdivision and thereafter is
subdivided so as to create a different type of subdivision (for example, conversion of a
condominium subdivision to a timesharing subdivision), the conversion shall be subject to the
requirements of this development Code. Unless the method of disposition is adopted for the
purpose of evading the requirements of the Development Code, this procedure shall not apply to
any division of land that:
(1) Is created by a lien, mortgage, deed of trust, or any other security instrument;
(2) Is created by any interest in an investment entity;
(3) Creates cemetery lots;
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(4) Creates an interest or interests in oil, gas, minerals, or water that are severed from
the surface ownership of real property;
(5) Is created by the acquisition of an interest in land in the name of a husband and wife
or other persons in joint tenancy, or as tenants in common of such interest. For the purpose
of this paragraph, any interest in common owned in joint tenancy shall be considered a single
interest;
(6) Creates a leasehold interest with a term of less than twenty (20) years and involves
no change in use or degree of use of the leasehold estate;
(b) Subdivision Categories. Categories of subdivisions are established and defined as
follows for the purpose of determining the appropriate subdivision review procedure:
(1) Major Subdivision. Major subdivisions include all subdivisions which would
create four (4) or more separate parcels of land or which would require or which propose
public improvements.
(2) Minor Subdivisions. Minor subdivisions include all subdivisions which would
create less than four (4) separate parcels of land, subdivisions which do not require or
propose public improvements, subdivisions which consolidate two (2) or more lots into a
single lot in a previously recorded subdivision plat, and subdivisions which move any lot
lines by more than two (2) feet; but shall not include subdivisions which are administrative
subdivisions. Condominium and timeshare subdivisions more than four (4) units which do
not propose public improvements shall be processed as minor subdivisions.
(3) Administrative Subdivisions. Administrative subdivisions are subdivisions which
include dividing a parcel of land for a duplex, subdivisions for the purpose of correcting
survey errors, condominium and timeshare subdivisions up to four (4) units, and subdivisions
which adjust lot lines by two (2) feet or less and which do not change the number of lots.
The Director shall have the authority to determine that an administrative subdivision
application shall be processed as a minor subdivision where the character of the subdivision
application, or multiple applications, presents issues which warrant review and approval by
the Town Council. All administrative subdivisions are exempt from notice requirements
outlined in §7.16.020(d).
(c) Review Procedures. Applications for a subdivision shall follow the general review
procedures set forth in §7.16.020, General Procedures and Requirements. Applications for
subdivision must be initiated by the owner of real property. The Director may combine
preliminary plan and final plat review where the subdivision application can be reviewed
efficiently and effectively with a combined process. Where subdivision approval will be
required to implement development in a proposed PUD, the applicant shall file a single
preliminary plan incorporating the application requirements of both the PUD and subdivision
preliminary plans. The provisions and procedures for public notice, hearing, and review for a
PUD as prescribed in the Development Code shall apply to the application.
(d) Review Authority. The review authority for a subdivision application shall be
determined by the subdivision category.
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(1) Major Subdivision. Major subdivisions shall be required to obtain approval for
preliminary plan and for final plat. The PZC shall review a preliminary plan for a major
subdivision application and shall provide a recommendation to the Town Council after
conducting a public hearing. The Town Council shall render the final decision on a
preliminary plan for a major subdivision application after conducting a public hearing. The
Town Council shall review the final plat for major subdivision applications and render a final
decision after conducting a public hearing. The preliminary plan and final plat for major
subdivisions shall be approved by resolution or ordinance of the Town Council.
(2) Minor Subdivision. Minor subdivisions shall require final plat review and
approval only where no public improvements are proposed; however, the review criteria for a
preliminary plan shall apply to review of minor subdivision final plats in addition to the
review criteria for a final plat. The Town Council shall render the final decision on a minor
subdivision application after conducting a public hearing. Minor subdivisions shall be
approved by resolution or ordinance of the Town Council.
(3) Administrative Subdivisions. Administrative subdivisions shall require final plat
review and approval only; however, the review criteria for a preliminary plan shall apply to
review of administrative subdivisions in addition to the review criteria for a final plat.
Director shall review and render decisions on administrative subdivisions. A decision of the
Director may be appealed to the Town Council pursuant to §7.16.160, Appeal.
(e) Preliminary Plan Review Criteria. The reviewing authority will use the following
review criteria as the basis for recommendations and decisions on applications for preliminary
plan subdivision applications:
(1) The proposed subdivision shall comply with all applicable use, density,
development, and design standards set forth in this Development Code that have not
otherwise been modified or waived pursuant to this Chapter and that would affect or
influence the layout of lots, blocks, and streets. Applicants shall not create lots or patterns of
lots in the subdivision that will make compliance with such development and design
standards difficult or infeasible;
(2) The subdivision application shall comply with the purposes of the Development
Code;
(3) The subdivision application shall be consistent with the Avon Comprehensive Plan
and other community planning documents;
(4) The land shall be physically suitable for the proposed development or subdivision;
(5) The proposed subdivision shall be compatible with surrounding land uses;
(6) There are adequate public facilities for potable water supply, sewage disposal, solid
waste disposal, electrical supply, fire protection and roads and will be conveniently located in
relation to schools, police, fire protection and emergency medical services;
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(7) The proposed utility and road extensions are consistent with the utility’s service
plan and are consistent with the Town of Avon Comprehensive Plan & Comprehensive
Transportation Master Plan;
(8) The utility lines are sized to serve the ultimate population of the service area to
avoid future land disruption to upgrade under-sized lines;
(9) The subdivision is compatible with the character of existing land uses in the area
and shall not adversely affect the future development of the surrounding area;
(10) A proposed subdivision for an existing PUD shall be consistent with the relevant
PUD Master Plan as reflected in the approval of that PUD;
(11) Appropriate utilities, including water, sewer, electric, gas and telephone utilities,
shall provide an “conditional capacity to serve” letter for the propose subdivision;
(12) That the general layout of lots, roads, driveways, utilities, drainage facilities, and
other services within the proposed subdivision shall be designed in a way that minimizes the
amount of land disturbance, minimize inefficiencies in the development of services,
maximizes the amount of open space in the development, preserves existing trees/vegetation
and riparian areas, protects critical wildlife habitat, and otherwise accomplishes the purposes
of this Development Code;
(13) Evidence that provision has been made for a public sewage disposal system or, if
other methods of sewage disposal are proposed, adequate evidence that such system shall
comply with state and local laws and regulations;
(14) Evidence that all areas of the proposed subdivision that may involve soil or
topographical conditions presenting hazards or requiring special precautions have been
identified by the applicant and that the proposed use of these areas are compatible with such
conditions or that adequate mitigation is proposed;
(15) The subdivision application addresses the responsibility for maintaining all roads,
open spaces, and other public and common facilities in the subdivision and that Town can
afford any proposed responsibilities to be assumed by the Town;
(16) If applicable, the declarations and owners’ association are established in accordance
with the law and are structured to provide adequate assurance that any site design standards
required by this Development Code or conditions of approval for the proposed subdivision
will be maintained or performed in a manner which is enforceable by the Town; and,
(17) As applicable, the proposed phasing for development of the subdivision is rational
in terms of available infrastructure capacity and financing.
(f) Final Plat Review Criteria. After approval of a preliminary plan, the applicant may
submit an application for a final plat. The following criteria shall apply to review of a final plat
subdivision application:
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(1) The Town Engineer shall compare the legal description of the subject property with
the County records to determine that:
(i) The property described contains all contiguous single ownership and does not
create a new or remaining unrecognized parcel of less than thirty-five (35) acres in size;
(ii) The lots and parcels have descriptions that both close and contain the area
indicated; and
(iii) The plat is correct in accordance with surveying and platting standards of the
state.
(2) The final plat conforms to the approved preliminary plan and incorporates all
recommended changes, modifications, and conditions attached to the approval of the
preliminary plan;
(3) The final plat conforms to all preliminary plan criteria;
(4) The development will substantially comply with all sections of the Development
Code;
(5) The final plat complies with all applicable technical standards adopted by the
Town; and,
(6) Appropriate utilities shall provide an ability to serve letter including, but not limited
to, water, sewer, electric, gas, and telecommunication facilities.
(g) Public Improvements Guarantee. Guarantees for public improvements shall comply
with §7.32.100(c).
(h) Revocation. An approval of a final plat is revoked pursuant to this section.
(1) Recording. The applicant shall cause the final plat and restrictive covenants, if
any, to be recorded within ninety (90) days from the date of approval and acceptance of the
Council. In the event that the plat is not recorded, the approval of the Council shall be
deemed to be void and such plat shall not thereafter be recorded, unless and until the Mayor
executes a written authorization for recording the final plat.
(2) Vacation. The final plat approval shall include a determination of a reasonable
time by which the project should be completed. All plats given final approval shall contain a
notation indicating the date by which a project is expected to be completed, that shall be
prima facie evidence of a reasonable time by which the project should have been completed.
A plat or any portion thereof that has been finally approved by the Council and has been
recorded shall be subject to vacation proceedings if the project that is the subject of the
subdivision is not completed within the time set by the Council.
(3) Extension. Extensions of the time limit for project completion may be obtained
from the Council for good cause shown, upon request by the applicant or owner of the tract,
if made before vacation proceedings are instituted.
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7.16.080 Development Plan.
The purpose of the development plan review process is to ensure compliance with the
development and design standards and provisions of this Development Code. It is designed to
encourage quality development reflective of the goals, policies, and objectives of the
Comprehensive Plan.
(a) Applicability. A development plan shall be required for all new development and any
modification to an existing development or development plan.
(b) Development Plan categories. Categories of development plans are established and
defined as follows for the purpose of determining the appropriate development plan review
procedure:
(1) Major Development Plan. Major development plans include all new building
construction over six hundred (600) square feet;
(2) Minor Development Plan. Minor development plans include the following:
(i) All new building construction six hundred (600) square feet or less;
(ii) Modifications to dumpster locations;
(iii) Screen wall modifications;
(iv) Landscape modifications including, but not limited to, removal of existing
vegetation and addition of new vegetation;
(v) Deck modifications including, but not limited to, additions, new construction,
and materials or color modifications;
(vi) Mechanical equipment modifications;
(vii) Modifications to the exterior of an existing building including, but not limited
to, windows, doors, minor architectural details, colors, and materials; and
(viii) Modifications to approved development plans which results in a ten percent
(10%) or less increase to lot coverage; ten percent (10%) or less increase to building
height; ten percent (10%) or less increase to the amount of square footage of a land use or
structure and does not result in a change in the types of uses in the project
(ix) Modifications to approved development plans which do not change the
character of the approved design; and
(x) Other similar changes to a structure or property that do not significantly impact
the site layout or design of a building.
(c) Review Procedures. The general review procedures described in §7.16.020, General
Procedures and Requirements, shall apply to development plan applications. All development
Attachment C
to 8.7.13 Report
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com
H EIL L AW
TO: Honorable Mayor Carroll and Town Council Members
FROM: Eric J. Heil, Town Attorney
RE: Village (at Avon) Settlement Implementation Update
DATE: August 9, 2013
Summary: This memorandum provides an update on the settlement implementation for the Village (at
Avon) litigation. Attached to this memorandum is the Status Report filed by the Upper Eagle River Water
Authority.
Bond Issuance: We have received revised bond documents for a taxable bond issuance by Traer Creek
Metropolitan District which is currently under review. A meeting is scheduled for Wednesday, August 14
with the various parties attorneys to review the bond documents.
Water Tank Project: There continues to be insufficient funds to construct the water storage tank project.
The current shortfall is projected at $1.2 million. Revised road plans submitted by Marcin Engineering have
not achieved the savings which were projected. A meeting has been scheduled for Monday discuss the
contingency costs and options for funding the shortfall for the water storage tank.
Remaining Documents for Town Approval: Resolution No. 13-23 presents several documents for Town
Council approval, including: (1) the Access Easement Agreement, (2) Nottingham Dam Easement
Agreement, (3) the Partial Assignment of Roadway Easements, and (4) Revocable License Agreement for
Snow Storage. Resolution No. 13-23 is presented by separate memorandum.
Requested Action: No Council action is requested at this time.
Thank you, Eric
M EMORANDUM
& PLANNING, LLC
UPPER EAGLE REGIONAL WATER AUTHORITY
846 Forest Road • Vail, Colorado 81657 • (970) 476-7480
FAX (970) 476-4089 • vvww.erwsd.org
UPDATED STATUS REPORT
August 7, 2013
E-FILED
TO: Honorable R. Thomas Moorhead
Eagle County District Court
FROM: Linn Brooks, General Manager, Upper Eagle Regional Water Authority
("UERWA" or "Authority"), James P. Collins, UERWA General Counsel,
and Eric C. Jorgenson, Collins Cockrel & Cole PC
RE: Settlement of Civil Action No. 08CV385
The Authority hereby updates its prior Status Reports since the last Status Conference on
July 31, 2013.
Construction Cost Savings
The Low Bidder, Flatiron Constructors, Inc. (Flatiron) has provided Alternative Cost
Estimates to the Authority in response to the value engineering efforts by TCMD and the
Authority. A copy of the Opinion of Probable Construction Cost for Lower Road Alternates is
attached to this Status Report
The Marcin Alternate for a re-aligned Access Road achieves certain cost savings, but also
produces additional expenses. According to Flatiron, this "alternate will likely increase the
construction costs above those for the original roadway."
Flatiron has also provided a Cost Estimate for a Haul Road Alternate and has concluded
that this "alternate will likely reduce the construction costs by as much as $500,000."
Project Financing
The Authority's Underwriter, Piper Jaffray, modeled this financing again on August 5,
2013. Interest rates have increased by another 25 basis points and the new amount of the
Projected Project Fund is 7.634 Million Dollars. This figure should be compared to the
projected Project Fund on June 10, 2013 of 8.263 Million Dollars. Since the date the Bids were
due, the Project Fund has lost $629,000.
WATER OPERATIONS
Arrowhead Metropolitan District • Town of Avon • Bachelor Gulch Metropolitan District
Beaver Creek Metropolitan District • Berry Creek Metropolitan District
Cordillera Metropolitan District • Eagle-Vail Metropolitan District • Edwards Metropolitan District
Page 2
In order to determine if either the Marcin Alternate or the Haul Road Alternate achieve
the necessary cost savings, it is necessary to compute the "Mandatory Costs" as defined in
Section 9.b of the Tank Agreement. The costs of issuance of and reserve requirements for the
Tank Project Bonds have already been deducted in determining the size of the Projected Project
Fund.
Flatiron Base Bid, 06/11/2013: $ 9,210,890.00
Maximum Estimated Cost Savings from Haul Road Alternate: ($ 1,500,000.00)
Estimated Cost of Construction Management Services $ 434,000.00
(Third Party Consultants Only)
Contingencies (as Estimated by Authority in June 2013) $ 761,000.00
Mandatory Costs $ 8,905,890.00
Conclusion: Even the Cost Savings estimated for the Access Hall Alternate ($ 1,500,000) is not
enough to close the gap created by the current size of the projected Project Fund. The gap
remaining is currently estimated to be 1.272 Million Dollars.
Summary
1.The Cost Savings from either the Marcin Alternate or the Haul Road Alternate are not
enough to close the gap which persists in the available funding for this Project.
2.The Authority is satisfied that all reasonable opportunities for value engineering have
been exhausted, at least on the scale required to achieve the savings necessary to
completely close the gap as currently estimated.
3.Unless the Parties are prepared to consider increasing the size of the Pledge Amount, or
to consider making cash contributions to the Project Fund sufficient to close this gap, the
Authority cannot recommend to the Court that this portion of this settlement process be
continued.
Page 3
Mary Jo Dougherty
Munsey Ayers
Michael Repucci
Ben Ocha
cc: Eric Heil, Avon Town Attorney
Dean C. Heizer
Brandee L. Caswell
Frances A. Koncilja
Kathy Kanda
(all via email on August 7, 2013)
Build the Best. Be the Best. FLATIRON
Flatiron Constructors, Inc.
10188 E. 1-25 Frontage Road
Firestone, CO 80504
303 485 4050 MAIN
303 776 0072 FAX
www.flatironcorp.com
August 7, 2013
Jim Boyd
Eagle River Water & Sanitation District
846 Forest Road
Vail, CO 81657
RE: Traer Creek WST — Opinion of Probable Construction Cost for Lower Road
Alternates
Dear Mr. Boyd:
Per your request, we have analyzed the two proposed road alternates that would
replace Traer Creek Run shown on the bid plan set. The first alternate, henceforth
referred to as the Marcin Alternate, presented in drawings from Marcin Engineering LLC
would construct Swift Gulch Road from the south side of the roundabout adjacent to the
Project, and proceed to climb to the Tank Access Road by constructing Road E. The
second alternate, henceforth referred to as the Haul Road Alternate, would construct a
fourteen foot wide haul road with 2:1 side slopes from the existing gravel access road
skirting the toe of the hillside along a more or less direct path until it intercepts the Tank
Access Road. Following is an analysis and preliminary conclusions based upon the
limited available information.
The Marcin Alternate saves approximately $275,000 by eliminating the lower two box
culverts as well as another $325,000 by eliminating the original alignment roadway cut
and deep fills. However, this is more than offset by the addition of greater quantities of
deep fills which must meet a stringent specification including one hundred percent
compaction as well as a significant quantity of material that must be wasted in the
existing gravel roadway because it is unsuitable for these deep fills. Assuming that the
geotechnical studies show that an adequate source of borrow is available on-site with
minimal processing, this will add over $675,000. In addition, the Marcin Alternate
includes a three-tiered MSE wall with a long reinforcement zone driving up wall material
costs and necessitating the import of select fill. These walls add approximately
$350,000. This alternate will likely increase the construction costs above those for the
original roadway. Greater savings could be realized by altering the deep fill
specification to accommodate the native material without processing or borrowing,
reducing the compaction to 95% standard Proctor, and by eliminating the MSE wall
system either through roadway relocation, sloping, or the enclosure of the creek.
A HOCHTIEF Company
The Haul Road Alternate saves approximately $275,000 by eliminating the lower two
box culverts as well as another $325,000 by eliminating the original alignment roadway
cut and deep fills. The alignment as depicted on the Flatiron rendering appears to
balance the roadway and does not appear to require any deep fills greater than ten feet.
The relatively shallow cuts and fills allow the roadway to be constructed out of native
unprocessed materials. This alternate will likely reduce the constructions costs by as
much $500,000.
The analysis of both of the above alternatives is based on leaving stockpiles of all
excess material generated on-site including soil, rock, and topsoil in accordance with
Bid Alternate #2. Given current information, it appears that the Marcin Alternate
including Bid Alternate #2 will reduce project cost by approximately $600,000 from Base
Bid, while the Haul Road Alternate including Bid Alternate #2 will reduce project cost by
approximately $1,500,000 from Base Bid.
The numbers above are projections only. A final cost analysis will be required with
complete plans and specifications clearly delineating the new scope of work. Flatiron
Constructors, Inc. is not making any recommendations with regard to design decisions
and cost assessments are not final.
Please contact me should you need any further analysis.
Sincerely,
pi--
Justin D. Anderson
Estimator
Flatiron Constructors, Inc.
Heil Law & Planning, LLC Office: 303.993.4608
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: meredith@heillaw.com e-mail: ericheillaw@yahoo.com
HEIL LAW
TO: Honorable Mayor Carroll and Town Council Members
CC: Virginia Egger, Town Manager
FROM: Eric Heil, Town Attorney
RE: Resolution No. 13-23 Approving Remaining Settlement Documents
DATE: Aug 8, 2013
Summary: Resolution No. 13-23 approves four documents which are discussed below. These
documents constitute the remaining asset conveyance documents which require Town Council approval.
Access Easement Agreement: The Access Easement Agreement provides legal access from East
Beaver Creek Boulevard to Lot 2 being conveyed to the Town. Council previously approved the Access
Easement Agreement with the modification that the easement “include” rather than “exclude” the right of
the Town to install telecommunication lines. Traer Creek has not signed that form of the Access Easement
Agreement and has submitted a revised Access Easement Agreement which deleted all language related
to communication utilities, thus neither expressly including nor excluding communication utilities. The
Access Easement Agreement as written allows the Town to install water, sewer, drainage, electric, gas and
“similar utilities.” Whether the term “similar utilities” is intended to include or exclude telephone, cable and
internet is not clear. Options include (1) approving the revised Access Easement Agreement as presented,
(2) approving the revised Access Easement Agreement with the words, “telephone lines, cable lines, fiber
optic lines” after gas lines and before similar utilities, or (3) delete approval of the revised Access Easement
Agreement from Resolution No. 13-23 and use the form of the Access Easement Agreement as previously
approved by Council and signed by the Town.
Amended and Restated Nottingham Dam Easement Agreement: The Amended and Restated
Nottingham Dam Easement Agreement has been revised so that Town’s financial maintenance obligation
is subject to annual budget and appropriation (Paragraph 7). There have been many revisions and
versions so I have prepared and attached a comparison of this final version of the Nottingham Dam
Easement Agreement to the version approved last fall in Ordinance No. 12-10.
Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland and Easements:
This Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland and Easements
(“Partial Assignment”) assigns the non-exclusive temporary road easements for Chapel Place and East
Beaver Creek Boulevard from TCMD to the Town.
In 2002 Traer Creek, LLC Wal-Mart and Home Depot approved the Easements with Covenants and
Restrictions Affecting Land which required Traer Creek, LLC to provide TCMD with non-exclusive
temporary road easements in Chapel Place and East Beaver Creek Boulevard. In 2002, the Amended and
Restated Conveyance of Roadways, Parkland and Easements conveyed these easements to TCMD. On
June 7, 2013 Traer Creek, LLC and TCMD recorded the First Amendment to Amended and Restated
Conveyance of Roadways, Parkland and Easement which retains an Exclusive Use Right for the Developer
to install, own, or finance private electric or gas utilities and telecommunications, data, and cable television
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Resolution No. 13-23
August 8, 2013
Page 2 of 2
cables all across the property subject to the Filing 1 Plat; however, the reservation in this First Amendment
is to be extinguished by a Second Amendment.
The Partial Assignment of the Amended and Restated Conveyance of Roadways, Parkland and
Easement was original approved by the Town in Ordinance 12-10. The substantive revisions to the Partial
Assignment include the addition of a recital that refers to the recordation of the First Amended and
Restated Conveyance of Roadways, Parkland and Easements, the Second Amendment and addition of
indemnification and insurance provisions. Section 3 requires that the Town indemnify TCMD, Traer
Creek, LLC and Traer Creek-RP, LLC against any and all claims, excluding those claims “caused by
negligence or willful misconduct of” TCMD, Traer Creek, LLC and Traer Creek-RP, LLC. Non-substantive
revisions include the reworking of a number of sentences and the inclusion of consent signature blocks for
Traer Creek-RP and Traer Creek, LLC.
Revocable License Agreement for Snow Storage: The attached form of the Revocable License
Agreement for Snow Storage was prepared to expand the license area to all of Lot 2 per the request of
Traer Creek. The parties were revised to include just Traer Creek-RP LLC as a party and not include EMD-
CM LLC because the Development Agreement states that rights and obligations can only be assigned to
parties with a real estate interest in the Village (at Avon) and we are not aware of that EMD-CM LLC meets
this qualification. A comparison to the version approved by the Town Council in March is included with this
memorandum.
PROPOSED MOTION: I move to approve Resolution No. 13-23 A RESOLUTION APPROVING SEVERAL
DOCUMENTS RELATED TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT, INCLUDING:
THE ACCESS EASEMENT AGREEMENT; THE AMENDED AND RESTATED NOTTINGHAM DAM
EASEMENT AND ASSIGNMENT AGREEMENT; THE PARTIAL ASSIGNMENT OF AMENDED AND
RESTATED CONVEYANCE OF ROADWAYS, PARKLAND AND EASEMENTS; AND, THE
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
Thanks, Eric
Res. 13-18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 1 of 2
TOWN OF AVON
RESOLUTION NO. 13-23
Series of 2013
A RESOLUTION APPROVING SEVERAL DOCUMENTS RELATED
TO THE VILLAGE (AT AVON) LITIGATION SETTLEMENT,
INCLUDING: THE ACCESS EASEMENT AGREEMENT; THE
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT; THE PARTIAL ASSIGNMENT OF
AMENDED AND RESTATED CONVEYANCE OF ROADWAYS,
PARKLAND AND EASEMENTS; AND, THE REVOCABLE LICENSE
AGREEMENT FOR SNOW STORAGE
WHEREAS, on October 7, 2011 the Town of Avon and other parties entered into the Settlement
Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation No. 2008 CV
385 and 2010 CV 316, Eagle County District Court;
WHEREAS, as partial implementation of the Settlement Term Sheet, the Avon Town Council
approved the Consolidated, Amended and Restated Annexation and Development Agreement
(“Development Agreement”) by Ordinance No. 12-10 which states in Section 4.2(c) that the
Town of Avon will assume certain maintenance obligations of Traer Creek Metropolitan
District;
WHEREAS, the Town, Traer Creek Metropolitan District, Traer Creek development entities
and other parties to the litigation desire to clarify and document the transfer public improvement
assets to the Town for which the Town accepts responsibility to maintain according to the
Development Agreement and desires to adopt various agreements which address additional
details concerning the rights and obligations of parties to those agreements;
WHEREAS, Section 4 of Ordinance 12-10 authorizes the Town Council to approve
amendments and/or revisions to the documents conveying property to the Town in Section 4 of
Ordinance No. 12-10 by resolution;
WHEREAS, the Town of Avon may generally act by resolution to approve agreements and
acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; and,
WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining
to the Village (at Avon) Settlement Implementation (“Closing Escrow Agreement”) by
Ordinance No. 12-10 which set forth various terms concerning the execution and deposit of
documents and agreements into escrow and the effectiveness or voiding of such documents and
agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON:
Res. 13-18 Approving Several Documents Related to The Village (at Avon) Litigation Settlement
August 13, 2013
Page 2 of 2
Section 1. The following agreements and asset conveyances are hereby approved by the
Town of Avon subject to the terms and conditions of the Closing Escrow Agreement:
(a) The Access Easement Agreement, attached hereto as Exhibit A;
(b) The Amended and Restated Nottingham Dam Easement and Assignment Agreement,
attached hereto as Exhibit B;
(c) The Partial Assignment of Amended and Restated Conveyance of Roadways, Parkland
and Easements, attached hereto as Exhibit C; and
(d) The Revocable License Agreement for Snow Storage, attached hereto as Exhibit D.
ADOPTED on August 13, 2013
TOWN COUNCIL ATTEST:
By:_________________________________ By:________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
1014138.9 – FINAL, Aug 8, 2013
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
ACCESS EASEMENT AGREEMENT
THIS ACCESS 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, “Grantee”); and TRAER CREEK-RP LLC, a Colorado
limited liability company (together with its successors and assigns, “Grantor”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado,
legally described on Exhibit A attached hereto and incorporated herein by this reference (“Lot
1”).
B. Grantor and Grantee are parties to that certain Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) made and entered
into as of _____________, 2013 and recorded in the real property records of Eagle County,
Colorado (the “Records”) on or about even date herewith (“Development Agreement”).
C. Pursuant to Section 3.7(b) of the Development Agreement, concurrently with the
“Effective Date” (as defined in the Development Agreement) of the Development Agreement,
Grantor shall dedicate and convey, or has dedicated and conveyed, to Grantee certain real
property located in Eagle County, Colorado, legally described on Exhibit B attached hereto and
incorporated herein by this reference (“Planning Area B”), which property is designated as
Planning Area B pursuant to The Village (at Avon) PUD Master Plan (the “PUD Master Plan”),
being Exhibit B to that certain The Village (at Avon) Amended and Restated PUD Guide
recorded in the real property Records on or about even date herewith (the “PUD Guide”).
D. As of the Effective date, there is no legal access to Planning Area B from a public
right-of-way.
E. In connection with the conveyance and dedication of Planning Area B to Grantee,
Grantor desires to Grant, and Grantee desires to accept, an access easement from that certain 80-
foot wide right-of-way known as East Beaver Creek Boulevard (as recorded in the Records at
Reception No. 795007) to Planning Area B for the purpose of Grantee’s enjoyment of the
Permitted Uses (as defined in Paragraph 1), including but not limited to the future construction,
operation and maintenance of the Facilities (as defined in Paragraph 1) in accordance with the
terms and conditions of the PUD Guide and the Development Agreement, and as set forth below.
EXHIBIT A TO RESOLUTION 13-23
2
1014138.9 – FINAL, Aug 8, 2013
Agreement
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, a perpetual, non-exclusive, forty (40)-foot wide easement appurtenant to Planning
Area B (the “Easement”) over, under, through and across that portion of Lot 1 which is legally
described and depicted in Exhibit C attached hereto and incorporated herein by this reference
(the “Easement Area”) for the purpose of Grantee’s, together with its engineers, contractors,
employees and similar consultants to Grantee and/or its assigns (collectively, “Permittees”),
conducting of the following activities (collectively, the “Permitted Uses”): (i) vehicular and
pedestrian ingress to and egress from Planning Area B; (ii) constructing, installing, using,
operating, maintaining, repairing and replacing drive lanes, roadways, landscaping, sidewalks,
bike paths, retaining walls and other access facilities necessary or desirable for such ingress and
egress, and all fixtures and devices reasonably used or useful in the operation of such facilities
(collectively, the “Roadway Facilities”); (iii) constructing, installing, using, operating,
maintaining, repairing and replacing water lines, sanitary sewer lines, storm drainage facilities,
electrical lines, gas lines and similar utilities and utility facilities (collectively, the “Utility
Facilities,” and together with the Roadway Facilities, the “Facilities”); and (iv) the right to enter
upon the Easement Area and such immediately abutting areas of Lot 1 thereto as may reasonably
be necessary to survey and conduct geotechnical and similar physical investigations. As set forth
in the PUD Guide and Section 3.7(b) of the Development Agreement, any construction of the
Facilities shall be subject to the prior written approval of the “Design Review Board” (as defined
in the PUD Guide). Nothing contained herein shall obligate Grantee to install, or cause to be
installed, any or all of the Facilities or to otherwise provide for any such use.
2. Termination or Relocation of Easement Area. In connection with future
development of Lot 1, including without limitation, the construction of permanent Main Street in
the configuration as generally contemplated by the PUD Master Plan or such other final
alignment as shall be set forth in the applicable Public Improvements Agreement(s) (as defined
in the PUD Guide) between the Town and applicable constructing party(ies) (“Future Main
Street”), Grantor and Grantee acknowledge that future design, engineering, construction and/or
general development of Lot 1 and/or Future Main Street may be inconsistent with the rights
granted hereunder in the Easement Area, and that it may be necessary or desirable that the
Easement Area be, in whole or in part, adjusted, repositioned, relocated or terminated to
accommodate such future development of Lot 1 and/or Future Main Street, provided that at no
time shall Planning Area B be without legal access to Future Main Street or another public right-
of-way. Grantor and Grantee further acknowledge and agree that, as generally contemplated by
the PUD Master Plan, the configuration of Future Main Street abuts Planning Area B and could
provide direct legal access from Future Main Street to Planning Area B without the necessity of
any easement or grant of other right to provide for such access. Accordingly, if Future Main
Street or other public right-of-way is designed and constructed in a manner that provides direct
legal access from Future Main Street or other public right-of-way to Planning Area B, upon the
Town’s preliminary acceptance pursuant to the applicable Public Improvements Agreement of
the street improvements for the portion of Future Main Street or other public right-of-way that
EXHIBIT A TO RESOLUTION 13-23
3
1014138.9 – FINAL, Aug 8, 2013
provides such legal access to Planning Area B, this Agreement and the Easement granted
hereunder shall automatically terminate and be extinguished and of no further force or effect
without any further act of either Grantor or Grantee. Notwithstanding the foregoing, upon and
after such termination at the written request of Grantor, Grantee shall deliver to Grantor an
executed termination of this Agreement in recordable form, which Grantor may record against
the Easement Area to provide record notice of such termination. Further, if Grantor determines,
in its sole discretion, that it is necessary or desirable that the Easement Area be relocated for
purposes of accommodating future development of Lot 1 and/or Future Main Street, Grantor and
Grantee agree (a) Grantor shall have the right to provide for an alternative alignment and
configuration or relocation of the Easement Area (the “Relocated Easement Area”) and Grantee
shall not unreasonably deny, condition or delay approval with respect to the Relocated Easement
Area; (b) Grantor and Grantee shall each execute an amendment to this Easement Agreement
substituting the surveyed legal description for the alignment and configuration of the Relocated
Easement Area as Exhibit C to this Easement Agreement; and (c) Grantor shall cause the
recordation of such amendment in the Records. Recordation of such amendment in the Records
shall have the legal effect of terminating the prior boundaries of the Easement Area and
establishing the boundaries of the Relocated Easement Area as the new boundaries of the
Easement Area for all purposes under this Easement Agreement. If, prior to the recordation of
such amendment, the Design Review Board previously has approved, and Grantee previously has
installed and/or constructed, Facilities within the Easement Area, Grantor shall have the
obligation, at Grantor’s sole cost and expense, to relocate such Facilities to, or install and/or
construct such Facilities within, the Relocated Easement Area.
3. Entry; Site Investigation; Restoration. In conducting the Permitted Uses related to
design and construction of the Facilities, including but not limited to surveying, geotechnical
testing, other physical inspection and similar matters, if it is necessary or desirable for Grantee
and/or the Permittees to enter upon and/or cause disturbances to the surface of the abutting areas
of Lot 1, Grantee shall provide not less than five (5) business days’ written notice to Grantor of
any planned entrance upon and/or conduct of physical testing or inspection of the Easement Area
and/or abutting areas of Lot 1. Grantor shall coordinate with Grantee regarding the scope, nature
and duration of such activities, but shall not unreasonably object to or interfere with Grantee’s
and/or Permittees’ conduct of such activities. To the extent such activities disturb vegetation on
the surface or otherwise disturb any improvements upon or within the Easement Area or abutting
areas of Lot 1, Grantee shall promptly cause revegetation and/or otherwise cause restoration of
the affected area and improvements to a condition materially consistent with their condition prior
to Grantee’s and/or Permittees’ conduct of such activities. Upon completion of any construction
activities within the Easement Area, Grantee shall promptly cause revegetation and/or restoration
of any areas of Lot 1 located outside of the Easement Area that have been disturbed by the
construction activities, including without limitation, restoration or repair to damaged
improvements.
4. Grantor’s Reserved Rights. Grantor reserves the right to grant additional
non-exclusive easements and/or other interests within the Easement Area and Lot 1 so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s
or Permittees’ full exercise of the Permitted Uses. Grantor reserves the right to use and occupy
Lot 1 and the Easement Area for any and all purposes not inconsistent with the rights and
privileges granted herein, including without limitation, snow dumping and storage.
EXHIBIT A TO RESOLUTION 13-23
4
1014138.9 – FINAL, Aug 8, 2013
5. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to Lot 1 or the Easement Area as of the Effective Date, and the grant of easements and other
rights pursuant to this Easement Agreement is in the nature of a bargain and sale conveyance.
6. Indemnity. Grantee shall indemnify, protect, defend and hold Grantor (and its
officers, directors, employees, consultants and representatives) harmless from and against any
and all claims (including, without limitation, claims for mechanic’s liens or materialmen’s liens),
causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) in
connection with or arising out of Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area; provided, however, such indemnity shall exclude any Claims
caused by negligence or willful misconduct of Grantor or its officers, directors, employees and
representatives.
7. Insurance. At all times while this Easement Agreement is in effect, Grantee shall
obtain, keep in force and maintain liability insurance protecting against bodily injury and
property damage claims relating to Grantee’s exercise of its rights hereunder and use and
enjoyment of the Easement Area, which coverage shall have a minimum limit of $1,000,000
each occurrence; provided, however, that Grantor shall have full benefit of any greater limits
maintained by Grantee. Such insurance policy shall name Grantor as an additional insured, shall
apply on a primary and non-contributory basis and shall be endorsed with a clause providing that
the insurer waives all rights of subrogation which such insurer might have against Grantor.
8. Covenants. Each and every benefit and burden of this Easement Agreement shall
inure to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the Easement Area and Planning Area B. Any
person or entity that acquires any interest in the Easement Area, and any person or entity that
acquires any interest in Planning Area B, shall be bound by the burdens and entitled to the
benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the Easement Area and Planning Area B.
9. Severability. Any provision of this Easement Agreement which is declared by a
court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable shall be
ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability,
without invalidating or otherwise affecting the remaining provisions of this Easement
Agreement, each of which shall continue in full force and effect, unless modified by mutual
consent of the parties, for so long as their enforcement would not be inequitable to the party
against whom they are being enforced under the facts and circumstance then pertaining.
10. Captions. The titles, headings and captions used in this Easement Agreement are
intended solely for convenience of reference and shall not be considered in construing any of the
provisions of this Easement Agreement.
11. Modification. This Easement Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by Grantor and Grantee.
EXHIBIT A TO RESOLUTION 13-23
5
1014138.9 – FINAL, Aug 8, 2013
12. Governing Law. The terms and provisions of this Easement Agreement shall be
construed and enforced in accordance with the laws of the State of Colorado.
13. Counterparts. This Easement Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[Signature pages follow this page.]
EXHIBIT A TO RESOLUTION 13-23
6
1014138.9 – FINAL, Aug 8, 2013
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the Effective Date.
GRANTEE:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name: Rich Carroll
Title: Mayor
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.
Notary Public
My commission expires: ______________________________.
EXHIBIT A TO RESOLUTION 13-23
7
1014138.9 – FINAL, Aug 8, 2013
GRANTOR:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a
Colorado limited liability company, as Manager of TRAER CREEK-RP LLC, a Colorado
limited liability company.
Witness my hand and official seal.
Notary Public
My commission expires: ______________________________.
EXHIBIT A TO RESOLUTION 13-23
A-1
1014138.9 – FINAL, Aug 8, 2013
EXHIBIT A
LEGAL DESCRIPTION OF LOT 1
Lot 1, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
EXHIBIT A TO RESOLUTION 13-23
B-1
1014138.9 – FINAL, Aug 8, 2013
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA B
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, County of Eagle, State of Colorado.
EXHIBIT A TO RESOLUTION 13-23
C-1
1014138.9 – FINAL, Aug 8, 2013
EXHIBIT C
LEGAL DESCRIPTION AND DEPICTION OF EASEMENT AREA
EXHIBIT A TO RESOLUTION 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 1 of 11
20130728 20130728
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT (“Agreement”) is made and entered into as of this ____ day of
__________, 2013 (“Effective Date”) by and between TRAER CREEK-RP LLC, a Colorado
limited liability company (“Developer”), whose address is P.O. Box 9429, 0101 Fawcett Road,
Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT, a quasi-
municipal corporation and political subdivision of the State of Colorado (“TCMD”) c/o Special
District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood, Colorado
80228, and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado
(“Town”), whose address is P.O. Box 75, 1 Lake Street, Avon, CO 81620 (collectively, the
“Parties”).
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, (“Original Easement Agreement”);
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado (“STS”). The STS includes, among other terms, an obligation of Town to assume
certain maintenance obligations of TCMD, including assumption of TCMD’s maintenance
obligations related to the Nottingham Dam, which maintenance obligations to be assumed by
Town are defined as stated in Section 4.2(c) of the Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon), dated ____________, 2013
(“Development Agreement”); and
WHEREAS, for the purpose of implementing the pertinent terms of the STS and the
Development Agreement related to Town’s assumption of TCMD’s maintenance obligations for
the Nottingham Dam, Developer and TCMD desire to amend certain terms of the Original
Easement Agreement, as more fully set forth herein, and TCMD desires to assign all of its rights,
title, interests and obligations in, under and to the Original Easement Agreement to Town, and
Town desires to assume all such rights, title, interests and obligations from TCMD as amended
and stated herein, and Developer desires to consent to such assignment in accordance with the
terms stated herein.
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 2 of 11
20130728 20130728
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its rights, title, interests and obligations to
Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement, that Developer and Town hereby release any
rights and obligations of the Original Easement Agreement which are inconsistent with this
Agreement, and that the intent and effect is that this Agreement shall replace and supersede the
Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns a non-exclusive easement on, over, across, upon and through the Nottingham Dam
property, in the location generally depicted on Exhibit A attached hereto (“Nottingham Dam
Easement”) to access, maintain, repair, replace, improve, reconstruct, expand, reduce,
decommission and/or remove the Nottingham Dam and impoundment area. The Nottingham
Dam Easement shall also include a non-exclusive easement on, over, across, upon and through
such additional real property located adjacent to the real property described on Exhibit A as may
be reasonably necessary for Town to exercise its rights herein. Notwithstanding the foregoing or
any other provision of this Agreement, Developer and Town agree that Town’s obligations
assumed by Town under this Agreement shall be construed, interpreted and applied such that
Town shall have sole discretion to determine the appropriate maintenance of the Nottingham
Dam provided that any such maintenance by Town shall be in compliance with dam regulations
of the Colorado Division of Water Resources and any other applicable state or federal agency
with regulatory authority over the Nottingham Dam. Town’s maintenance discretion shall
include but not be limited to maintenance, repair, replacement, improvement, reconstruction,
expansion, reduction, decommission, removal and deferral of the Nottingham Dam and any
activity related to the Nottingham Dam in accordance with Section 4.2(c) of the Development
Agreement. Developer acknowledges that Town is not the current designated owner of the
Nottingham Dam according to the records of the Dam Safety Branch, Division of Water
Resources, and Developer agrees to reasonably cooperate with Town as necessary (including, but
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 3 of 11
20130728 20130728
not limited to, the Developer applying, Developer using best efforts to cause the owner of the
Nottingham Dam to apply, or Developer or owner of the Nottingham Dam authorizing Town to
apply on behalf of the owner to the applicable regulatory agency) to allow Town to work directly
with the Division of Water Resources or other applicable regulatory agency with regard to
maintenance of the Nottingham Dam and performance of Town’s duties under this Agreement.
Developer further acknowledges and agrees that Town shall not be liable or responsible for
maintenance of the Nottingham Dam to the extent that Developer, The Piney Valley Ranches
Trust, or other owner of the Nottingham Dam fails to reasonably cooperate or unreasonably
interferes with Town’s actions to work directly with the Division of Water Resources (and any
other applicable state or federal agency with regulatory authority) and such failure to cooperate
or interference inhibits, restricts or prohibits Town’s ability to maintain the Nottingham Dam in
accordance with the terms of this Agreement. Town agrees to promptly provide to Developer
any correspondence to or from the Division of Water Resources (and any other applicable state
or federal agency with regulatory authority) and agrees to invite a representative of Developer to
any meetings with the Division of Water Resources to the extent such correspondence or
meetings are related to the Nottingham Dam. Town acknowledges that this Nottingham Dam
Easement is non-exclusive and that Developer may seek to develop areas located uphill and
downhill of the Nottingham Dam Easement; therefore, this Agreement shall not be construed to
restrict Developer’s right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. If Town proposes to
decommission the Nottingham Dam, Town shall first provide at least ninety (90) days prior
written notice to Developer along with plans for decommissioning which are acceptable to the
Division of Water Resources and any other applicable regulatory agency. After receiving notice
of Town’s proposal to decommission the Nottingham Dam and prior to the expiration of ninety
(90) days, Developer may elect to terminate this Agreement by tendering written notice of such
election to terminate to Town. If Developer elects to terminate, Developer shall then assume all
maintenance responsibilities for the Nottingham Dam and Town shall affirmatively extinguish
the Nottingham Dam Easement, convey to Developer any and all water rights associated with the
Nottingham Dam, including the water storage right decreed in Case No. 94CW113, Water
Division No. 5, and this Agreement shall terminate. If Town decommissions the Nottingham
Dam then Town shall affirmatively extinguish the Nottingham Dam Easement and this
Agreement shall terminate upon receipt of confirmation by the Division of Water Resources (and
any other applicable state or federal agency with regulatory authority) that all applicable
requirements for decommissioning the Nottingham Dam have been satisfied..
4. Subjacent and Lateral Support. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements including, without limitation, improvements to
the dam, outlet structure(s), spillway and spillway channel, impoundment area and any other
improvement deemed necessary in the reasonable discretion of Town or as required by the
Division of Water Resources over the Nottingham Dam and related improvements. Developer
shall not take any action which would impair the lateral or subjacent support for said
improvements.
5. Access. The Nottingham Dam Easement includes a non-exclusive right of reasonable
vehicular and pedestrian ingress, egress and access, for use by Town and its employees, agents
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 4 of 11
20130728 20130728
and contractors in connection with the Nottingham Dam, on, over, upon, across and along the
existing dirt road located on the Nottingham Dam property and the adjacent property in the
location generally depicted on Exhibit A attached hereto (“Nottingham Dam Access
Easement”).
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, the Nottingham Dam Easement does not
include any right to construct any new roads, improvements or structures, on, over,
across, through or upon any portion of the Nottingham Dam Easement property or the
adjacent property. Any such construction shall be subject to the prior written consent of
Developer, which consent shall not be unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam Easement property and the adjacent property and the right to
construct improvements and structures within the Nottingham Dam Easement property
and the adjacent property, including the right to construct roads on, across, over or under
the Nottingham Dam structure and improvements, so long as any such Developer
improvements or structures do not degrade the structural integrity of the Nottingham
Dam structure or otherwise unreasonably interfere with the Nottingham Dam Easement
or the Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Easement. Town, and its successors and assigns,
shall maintain the Nottingham Dam Easement in accordance with the minimum requirements of
the Division of Water Resources, including repairing any damage to any portion of the
Nottingham Dam, other than any damage resulting from the acts or omissions of Developer.
Town, and its successors and assigns, shall be solely responsible for, and bear the entire cost and
expense of, any such maintenance, repair and/or replacement associated with the Nottingham
Dam. In addition, Town shall keep the Nottingham Dam and its banks in an attractive condition
and shall re-grade and remove vegetation and debris from the banks of the Nottingham Dam.
Town’s obligations in this Paragraph 7 shall be subject to the limitations of Town’s obligations
stated in Paragraph 3 above and as stated in Section 4.2(c) of the Development Agreement.
Town’s obligations in this Paragraph 7 shall be subject to annual budget and appropriation by
Town and Town acknowledges and agrees that annual budget and appropriation shall be
considered in good faith. In the event that the Division of Water Resources or other applicable
regulatory agency mandates an emergency repair expenditure for the Nottingham Dam and such
expenditure is not included in Town’s draft budget for the succeeding calendar year which is
submitted to the Avon Town Council in accordance with applicable requirements of the Avon
Home Rule Charter and state budget law, then Town shall promptly provide notice to Developer
upon submitting the draft budget to the Avon Town Council. The failure of Town to budget and
appropriate funds, in whole or in part, as necessary to perform Town’s obligations stated in this
Paragraph 7 shall not constitute a default or breach of this Agreement provided such decision of
the Town concerning annual budget and appropriation is made in good faith. In the event that
Town fails to timely budget and appropriate an expenditure and timely conduct emergency
repairs which are mandated by the Division of Water Resources or other applicable regulatory
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 5 of 11
20130728 20130728
agency, then Developer may, but is not obligated to and shall have no liability related to or
arising from its election, proceed to perform such emergency repair and Town shall reimburse
Developer for such expense provided that Town’s obligation to reimburse Developer shall be
subject to annual budget and appropriation and the good faith failure of Town to budget and
appropriate funds to reimburse Developer, in whole or in part, shall not constitute a default or
breach of this Agreement. In the event of any dispute between Town and Developer concerning
the timing, specific emergency repair activity, expenditure and/or compliance with an emergency
repair mandate by the Division of Water Resources or other regulatory agency, either Town or
Developer may elect to submit such dispute to the Judicial Arbiter’s Group (“JAG”) or other
mutually acceptable arbitrator for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Easement, the adjacent property or the
Nottingham Dam Access Easement to the general public or for the general public or for any
public purpose whatsoever, it being the intent of the Parties that the Nottingham Dam Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument
executed by the Developer.
9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the Parties hereto. Notwithstanding the foregoing and
subject to Paragraph 23, if any party sells all or any portion of its interest in property subject to
this Agreement, such party shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it after the
sale and conveyance of title but shall remain liable for all obligations arising under this
Agreement prior to the sale and conveyance of title. The new owner of any such property or
portion thereof (including, without limitation, anyone who acquires its interest by foreclosure,
trustee sale or otherwise) shall be liable for all obligations arising under this Agreement with
respect to such property or portion thereof after the date of sale and conveyance of title.
10. Covenants. Developer, TCMD and Town each covenant for and on behalf of each of the
other Parties that they have taken or performed all requisite acts or actions which may be
required by their organizational or operational documents to confirm their respective authority to
execute, deliver and perform each of their obligations under this Agreement.
11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam Easement is granted and the adjacent property in fee simple and has full power
and lawful authority to grant, sell, and convey the same in manner and form as aforesaid.
Developer, for itself, its heirs, personal representatives, successors and assigns, does covenant
and agree that it shall warrant and forever defend Town in its quiet and peaceful possession of
the Nottingham Dam Easement and the Nottingham Dam Access Easement against all and every
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 6 of 11
20130728 20130728
person or persons lawfully claiming title to the property, whether in whole or in part, by, through
or under Developer.
12. Default. A party shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non-defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30-day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days, which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam hereunder.
13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 12 above, the non-breaching party
shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief in the
nature of specific performance or damages or both may be awarded, subject to the provisions of
the laws of the State of Colorado. The prevailing party in any legal or administrative action shall
be awarded its reasonable costs and expenses of such action, through all appeals, including
without limitation, reasonable attorneys’ fees.
14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its direct and indirect affiliates, and their respective
agents, managers, members, officers, directors, servants, consultants, advisors and employees of
and from any and all reasonable costs, expenses (including, without limitation, reasonable
attorneys’ fees), liability, claims, liens, demands, actions and causes of action whatsoever arising
out of or related to any loss, cost, damage or injury, including death of any person or damage to
property of any kind, which damage, loss or injury is caused by the acts or negligent acts, errors
or omissions of Town, its subcontractors or any person directly or indirectly employed by Town.
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 7 of 11
20130728 20130728
With regards to this Agreement, Developer agrees to indemnify, defend and hold harmless Town
and its officers, agents and employees of and from any and all reasonable costs, expenses
(including, without limitation, reasonable attorneys’ fees), liability, claims, liens, demands,
actions and causes of action whatsoever arising out of or related to any loss, cost, damage or
injury, including death of any person or damage to property of any kind, which damage, loss or
injury is caused by the acts or negligent acts, errors or omissions of Developer, its respective
subsidiaries and affiliates, and their respective agents, managers, members, officers, directors,
servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given either in
person to the authorized representative of the noticed party or by registered or certified United
States mail, return receipt requested, with such notice being addressed as specified in the
introductory paragraph of this Agreement. Unless otherwise stated in this Agreement, notice
deposited in the mail, in accordance with the provisions hereof, shall be effective from and after
the fourth (4th) day following the date postmarked on the envelope containing such notice, or
when actually received, whichever is earlier. Notice given in any other manner shall be effective
only if and when received by the party to be notified. By giving the other party at least seven (7)
days written notice thereof, the Parties shall have the right to change their respective addresses
and specify as their respective addresses for the purposes hereof any other address in the United
States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 10 and 11 of
this Agreement, no representations or warranties of any nature have been made by the Parties,
and none of the Parties hereto have entered into this Agreement in reliance upon any such
representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter described herein, and further replaces and supersedes all prior
agreements, rights and obligations between the Parties with respect to the subject matter hereof.
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the Parties.
23. Assignment. This Agreement shall not be assigned by Town without the prior written
consent of Developer, which consent shall not be unreasonably withheld. Any assignment
without the prior written consent of the Developer shall be null and void, though, as mentioned
in the preceding sentence, such consent shall not be unreasonably withheld. The express
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 8 of 11
20130728 20130728
assumption, in writing, of this Agreement shall thereby relieve the applicable assignor to the
matters so assumed by the assignee.
24. Legal Fees and Costs. Except for arbitration as set forth in paragraph 25 below, in the
event that a party institutes an action or proceeding for a declaration of rights of Town and
Developer under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions contemplated
hereby, the prevailing party shall be entitled to its actual reasonable costs and attorneys’ fees.
Pursuant to Section 1, TCMD shall not be a party to any legal or arbitration proceeding that
doesn’t regard anything before the Effective Date. Town and Developer agree to waive their
respective rights to a jury trial in any civil legal proceeding.
25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be the
State District Court in and for the County of Eagle, Colorado. Each party shall also have the
right to obtain a declaratory judgment, whether the issue is ripe or not. If a court will not issue a
declaratory judgment, because the issue is not ripe, the Town and Developer agree to submit any
disputes under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding resolution in
accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1, TCMD shall not
be a party to any legal or arbitration proceeding that doesn’t regard anything before the Effective
Date.
26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Parties within seven (7)
days of receipt of said facsimile copy.
[SIGNATURE PAGES FOLLOW]
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 9 of 11
20130728 20130728
DEVELOPER:
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited liability
company, its Manager
By:_______________________________
Name: Marcus Lindholm
Title: Manager
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
2013, by Marcus Lindholm, as Manager of Traer Creek LLC, a Colorado limited liability
company and Manager of Traer Creek-RP LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 10 of 11
20130728
TRAER CREEK 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 Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit B to Resolution 13-23
Amended and Restated Nottingham Dam Easement and Assignment Agreement
July 26, 2013
Page 11 of 11
20130728
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____, by ____________________, as ____________________ of ____________________
[and by ____________________ as ____________________ of ____________________].
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit B to Resolution 13-23
Exhibit B to Resolution 13-23
1044369.3
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
THIS PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE
OF ROADWAYS, PARKLAND AND EASEMENTS (“Assignment”) is made and entered into
as of this ____ day of __________, 20___ (“Effective Date”) by and between TRAER CREEK
METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the
State of Colorado (“Assignor”), and the TOWN OF AVON, a home rule municipal corporation
of the State of Colorado (“Assignee”) (collectively, the “Parties”).
RECITALS
WHEREAS, Traer Creek LLC, a Colorado limited liability company (“Traer”), Wal-
Mart Real Estate Business Trust and Home Depot, U.S.A., Inc., entered into that certain
Easements with Covenants and Restrictions Affecting Land dated April 24, 2002 and recorded in
the Eagle County real property records (“Records”) at Reception No. 795009 (“ECR”);
WHEREAS, pursuant to Section 4(j) of the ECR, Traer agreed to convey to the Assignor
via a separate instrument, non-exclusive temporary road easements for certain rights-of-way to
be known as Chapel Place and East Beaver Creek Boulevard;
WHEREAS, Traer Creek-RP LLC, a Colorado limited liability company (“TCRP”), and
Traer (collectively, “Developer”) and Assignor entered into that certain Amended and Restated
Conveyance of Roadways, Parkland and Easements dated effective May 8, 2002 and recorded in
the Records on January 27, 2005 at Reception No. 904568 (the “Original Agreement”);
WHEREAS, Developer and Assignor entered into that certain First Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective
May 8, 2002 and recorded in the Records on June 7, 2013 at Reception No. 201311801 (the
“First Amendment”);
WHEREAS, the Developer and Assignor entered into that certain Second Amendment to
Amended and Restated Conveyance of Roadways, Parkland and Easements dated effective May
8, 2002 and recorded in the Records on _____________, 2013 at Reception No. _____________
(the “Second Amendment”);
WHEREAS, the Original Agreement as amended by the First Amendment and the
Second Amendment is referred to herein as the “Agreement;”
WHEREAS, pursuant to the ECR, Developer granted Assignor certain easement rights
over a portion Lot 1, The Villages (at Avon) Filing 1, County of Eagle, State of Colorado (the
“Plat”), for an 80’ non-exclusive temporary road easement (“East Beaver Creek Boulevard
Easement”) and a 50’ non-exclusive temporary road easement (“Chapel Place Easement”)
(collectively, the East Beaver Creek Boulevard Easement and Chapel Place Easement are
referred to herein as the “Easements”) as depicted on the Plat for the location, construction and
maintenance of roadways to be known as, respectively, East Beaver Creek Boulevard and Chapel
Place; and
Exhibit C to Resolution No 13-23
2
1044369.3
WHEREAS, Assignor desires to partially assign, on a non-exclusive basis, its rights, title,
interests and obligations in, under and to the Agreement with respect to the Easements only to
Assignee; Assignee desires to assume all such rights, title, interests and obligations from
Assignor with respect to the Easements; and Developer, pursuant to Section 12 of the
Agreement, desires to consent to such assignment as evidenced by Developer’s execution hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the Assignor and the Assignee agree as follows:
COVENANTS AND AGREEMENTS
1. Partial Assignment and Assumption. As of the Effective Date and subject to the
reservations and rights set forth in Section 2, the Assignor hereby transfers, assigns, sells and
conveys to the Assignee all of the Assignor’s right, title, interest, duties and obligations in and to
the Agreement with respect only to the Easements without representation or warranty and subject
to all of the terms, covenants and conditions of the Agreement. As of the Effective Date, the
Assignee hereby accepts such assignment and agrees to assume and be responsible for all of the
covenants and obligations of the Assignor under the Agreement with respect to the Easements
only. Nothing contained herein shall be deemed an acceptance by the Assignee of any roadway
improvements located within the Easements as a public right-of-way of the Town of Avon nor of
any obligation to reconstruct or repair any improvements located within the Easements,
including, but not limited to, any obligation for asphalt overlay payments or obligations.
2. Reservation of Easement and Right to Construct. Notwithstanding anything to the
contrary contained herein, Assignor hereby reserves a non-exclusive easement in, to, through,
over, under and across the Easements for purposes of construction and installation of the
“Roadway Improvements” (as defined in the Agreement) for East Beaver Creek Boulevard and
Chapel Place. Assignee acknowledges and agrees that notwithstanding anything to the contrary
contained in the Agreement, any obligation of the Assignor to construct the Roadway
Improvements within the Easements shall only be to the extent that the Assignor has budgeted
and appropriated funds therefor.
3. Indemnity. Assignee shall indemnify, protect, defend and hold Assignor, Traer
and TCRP (and their respective officers, directors, employees, consultants and representatives)
harmless from and against any and all claims (including, without limitation, claims for
mechanic’s liens or materialmen’s liens), causes of action, demands, obligations, losses,
damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable
attorneys’ fees) (collectively, “Claims”) in connection with or arising out of Assignee’s exercise
of its rights hereunder and use and enjoyment of the Easements; provided, however, such
indemnity shall exclude any Claims caused by negligence or willful misconduct of Assignor,
Traer or TCRP (or their respective officers, directors, employees and representatives).
Developer shall be a third-party beneficiary of this Section 3.
4. Insurance. At all times while this Assignment is in effect, Assignee shall obtain,
keep in force and maintain liability insurance protecting against bodily injury and property
damage claims relating to Assignee’s exercise of its rights hereunder and use and enjoyment of
the Easements, which coverage shall have a minimum limit of $1,000,000 for each occurrence;
Exhibit C to Resolution No 13-23
3
1044369.3
provided, however, that Assignor and Developer shall have full benefit of any greater limits
maintained by Assignee. Such insurance policy shall name Assignor, Traer and TCRP as
additional insureds, shall apply on a primary and non-contributory basis and shall be endorsed
with a clause providing that the insurer waives all rights of subrogation which such insurer might
have against Assignor, Traer or TCRP.
5. Ratification. Assignee hereby agrees to and ratifies each of the terms, provisions,
representations, covenants and conditions of the Agreement.
6. Covenants. The Assignor and Assignee each covenant for and on behalf of the
other Party that they have taken or performed all requisite acts or actions which may be required
by their organizational or operational documents to confirm their respective authority to execute,
deliver and perform each of their obligations under this Assignment and the Agreement.
7. Execution. This Assignment may be executed in counterparts, each of which is
deemed an original for all purposes hereunder, and all of which shall constitute collectively one
agreement.
8. Entire Agreement. This Assignment contains the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof, and all prior
negotiations, agreements and understandings, oral or written, are merged herein and superseded
hereby.
9. Successor and Assigns. This Assignment and the Agreement and all rights and
obligations of Assignee and Assignor hereunder and under the Agreement shall be binding upon
and inure to the benefit of Assignor and Assignee and their respective heirs, successors and
assigns.
10. Miscellaneous. This Assignment shall be governed by and construed under the
applicable laws of the State of Colorado.
[SIGNATURES ON FOLLOWING PAGES]
Exhibit C to Resolution No 13-23
4
1044369.3
IN WITNESS WHEREOF, the Parties hereto have executed this Assignment as of the
date first set forth above.
ASSIGNOR:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____, by ____________________, as ____________________ of ____________________
[and by ____________________ as ____________________ of ____________________].
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit C to Resolution No 13-23
5
1044369.3
ASSIGNEE:
TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:______________________________________
Name:____________________________________
Title:_____________________________________
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20_____, by ____________________, as ____________________ of ____________________
[and by ____________________ as ____________________ of ____________________].
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit C to Resolution No 13-23
6
1044369.3
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20___, by ____________________ as ____________ of Traer Creek LLC, a Colorado limited
liability company, as Manager of TRAER CREEK-RP LLC, a Colorado limited liability
company.
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit C to Resolution No 13-23
7
1044369.3
DEVELOPER CONSENT
TO
PARTIAL ASSIGNMENT OF AMENDED AND RESTATED CONVEYANCE OF
ROADWAYS, PARKLAND AND EASEMENTS
TRAER CREEK LLC, a Colorado limited
liability company
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20___, by ____________________ as ____________ of TRAER CREEK LLC, a Colorado
limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
Exhibit C to Resolution No 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 1 of 9
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
TRAER CREEK-RP LLC FOR THE GRANT OF A REVOCABLE
LICENSE AGREEMENT FOR SNOW STORAGE
1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage
(“Agreement”) dated as of __________, 20____ (“Execution Date”) are the Town of
Avon, a home rule municipal corporation of the State of Colorado (“Town” and
“Party”) and Traer Creek-RP LLC, a Colorado limited liability company (“Traer
Creek,” “Licensee” and “Party”) (collectively referred to as the “Parties”).
2.0 RECITALS AND PURPOSE.
2.1 The Town is the fee owner of certain property located in the Town of Avon,
County of Eagle, State of Colorado, as more particularly described in EXHIBIT
A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated
herein by this reference (“Property”); and
2.2 The Town and Traer Creek are also parties to the Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon)
dated as of ________________, 20___ and recorded on _____________, 20___
in the real property records of the Clerk and Recorder for Eagle County, Colorado
(“Records”) at Reception No. ___________ (“Development Agreement”),
which is hereby incorporated by this reference; and
2.3 Master Developer caused Traer Creek to convey the Property to the Town in
accordance with Section 3.7(b) of the Development Agreement which provides
that until such time that the Property is developed or improvements are
constructed thereupon that would preclude use of the Property for snow storage,
the Town and Master Developer (as “Master Developer” is defined in the
Development Agreement) shall have the right to use the Property for snow
storage; and
2.4 The Master Developer has the right to assign any portion of its rights under the
Development Agreement to third parties acquiring an interest or estate in the
Property pursuant to Section 8.11 of the Development Agreement and has elected
to assign its rights to this Agreement to Traer Creek; and
2.5 The Town desires to grant, and the Licensee desire to accept, a revocable license
for the purpose of snow storage upon the Property consistent with the terms of the
Development Agreement.
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 2 of 9
3.0 LICENSE TERMS AND CONDITIONS.
3.1 Grant of License. The Town hereby grants to Licensee a revocable license for
snow storage purposes (“Snow Storage License”) on, over and upon the
Property.
3.2 Hazardous Materials. The Licensee agrees to use reasonable commercial efforts
to avoid the dumping or release of Hazardous Materials (defined below) on the
Property, provided that the Town acknowledges and agrees that Licensee intends
to store snow on the Property that has been removed from streets, drive lanes,
parking lots and other paved vehicular travel and storage surfaces, and, in
connection therewith, there may occur incidental dumping of the by-products of
such surfaces and vehicles, such as petroleum, gasoline products, products
associated with snow removal such as cinders and magnesium chloride. The term
“Hazardous Materials” as used herein includes, without limitation, gasoline,
petroleum products, explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or
related or similar materials, asbestos or any material containing asbestos, or any
other substance or material as may be defined as a hazardous or toxic substance
by any Federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section
1801, et seq.) the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.) and in the regulations adopted and publications promulgated
pursuant thereto.
3.3 Term; Termination. This Agreement and the Snow Storage License granted to
Licensee shall commence on the Effective Date (as “Effective Date” is defined in
the Development Agreement) and terminate on the date the Property is so
developed or such improvements are constructed thereupon that preclude use of
the Property for snow storage (“Snow Storage Termination Date”). Any and all
improvements constructed on the Property are subject to approval by the Design
Review Board (as defined in the Development Agreement) pursuant to the terms
of the Development Agreement. Pursuant to paragraph 5 below, the Town shall
give Licensee sixty (60) days prior written notice of the Town’s commencement
of development or commencement of construction of such improvements on the
Property that preclude use of the Property for snow storage. The Town’s notice
of termination in any given year must be received by September 30, so that
Licensee can enter into contracts for snow storage for the upcoming snow season.
For clarification purposes, grading the Property does not in itself make the
Property unsuitable for snow storage use. The Snow Storage License may be
earlier revoked only if the Town Council of the Town has made a legislative
determination at a duly noticed public hearing that revocation of the Snow
Storage License is necessary to protect the public health, safety and welfare of the
Town; provided, however, the Town shall give Licensee written notice specifying
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 3 of 9
the nature of public health, safety and welfare concern and Licensee shall have
thirty (30) days from such written notice to cure or correct such concern (or such
longer time as is reasonably necessary to cure or correct such concern so long as
Licensee has in good faith commenced and is diligently pursuing efforts to correct
the condition specified in such notice). If Licensee fails to cure or correct such
concern within such timeframe, the Town shall thereafter give Licensee written
notice of revocation of the Snow Storage License. The Town may summarily
suspend the Snow Storage License granted to Licensee if Licensee dumps or
releases Hazardous Materials in excess of incidental dumping of the by-products
of streets, drive lanes, parking lots and other paved vehicular travel and storage
surfaces and vehicles as described in paragraph 3.2 above until such time as
Licensee repairs the damage caused by such dumping or release of Hazardous
Materials or the Town takes legislative action to revoke the Snow Storage License
according to the procedures stated in this paragraph 3.3. From and after the Snow
Storage Termination Date, Licensee shall have no right to use the Property for
snow storage purposes, the Snow Storage License shall automatically be revoked
and this Agreement shall terminate and be of no further force or effect, provided
that Licensee’s obligation to repair any damage to the Property caused by
Licensee as set forth in paragraph 3.5 below shall survive the termination of this
Agreement.
3.4 Indemnity. To the extent permitted by law, Licensee expressly agrees to, and
shall, indemnify and hold harmless the Town, as licensor, and any of its officers,
agents, or employees from any and all claims, damages, liability, or court awards,
including reasonable 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 (collectively, the “Claims”), in connection with or arising out of any
act or omission by Licensee or any of its respective employees, agents, partners,
or lessees, in exercising their rights under this Agreement; provided, however,
such indemnity and hold harmless shall not extend to any Claims in connection
with or arising out of the negligence or willful misconduct of the Town. In
particular and without limiting the scope of the foregoing agreement to indemnify
and hold harmless, Licensee shall, to the extent permitted by law, indemnify the
Town from all Claims in connection with or arising out of any claim in whole or
in part that all or any portion of the snow storage permitted by this Agreement
constitutes a dangerous and/or unsafe condition within a public right-of-way;
provided, however, such indemnity shall not extend to any Claims in connection
with or arising out of the negligence or willful misconduct of the Town.
3.5 Damage; Environmental Conditions. During the term of this Agreement,
Licensee shall promptly repair, at no cost to the Town, any damage caused by
Licensee to the Property and improvements thereon, including without limitation,
the dumping or release of Hazardous Materials, and shall return the Property and
such improvements to the condition existing immediately prior to the occurrence
of the damage. In no event, however, shall the Town claim the Property or the
improvements thereon are damaged due to the dumping or release of Hazardous
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 4 of 9
Materials associated with the snow dumping operation, unless the Town can
prove such dumping or release of Hazardous Materials are in excess of what is
considered commercially reasonable. Upon termination of this Agreement,
Licensee agrees to repair, at no cost to the Town, any damage to the Property
caused by Licensee, including without limitation, removal and/or remediation of
any Hazardous Materials placed on the Property by Licensee, and the Town
hereby grants an encroachment license to Licensee for the limited purpose of
performing such repair, removal and clean up, if any, which encroachment license
shall survive termination of this Agreement.
3.6 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
Property in the minimum amount of $600,000.00 per occurrence. Such policy or
policies shall name the Town as an “additional insured.” However, Licensee’s
failure to take such steps to obtain such insurance shall not waive, affect, or
impair any obligation of Licensee to indemnify or hold the Town harmless in
accordance with this Agreement.
3.7 Spring Trash Clean-Up. Licensee agrees to pick-up and properly dispose of any
litter, trash or debris in snow dumping piles each spring promptly after such snow
dumping piles melt.
4.0 ASSIGNMENT. This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, Traer Creek shall have the right to assign or
transfer all or any portion of its interests, rights or obligations under this Agreement to
any related parties or any third parties acquiring an interest or estate in the property
legally described in Exhibit A to the Development Agreement, and generally known as
The Village (at Avon), including, but not limited to, purchasers or long term ground
lessees of individual lots, parcels, or of any improvements now or hereafter located
within such property, provided that to the extent Traer Creek assigns or transfers any of
their respective obligations under this Agreement, the assignee or transferee of such
obligations shall expressly assume such obligations. The express assumption of any of
Traer Creek’s obligations under this Agreement by its assignee or transferee shall thereby
relieve Traer Creek of any further obligations under this Agreement with respect to the
matter so assumed. Additionally, and under the same terms and conditions just outlined,
Traer Creek may assign or transfer its rights herein to any successors in interest, heirs,
assigns, transferees, etc.
5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a
Party desires or is required to give to the other Party shall be in writing and either
personally delivered, sent by registered or certified United States mail, postage prepaid,
or sent by overnight courier. Notices shall be deemed effective: (i) if personally
delivered, when actually given and received; or (ii) if by overnight courier service, on the
next business day following deposit with such courier service; or (iii) if by registered or
certified United States mail, postage prepaid, return receipt requested, three (3) business
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 5 of 9
days after mailed. Notices shall be addressed as follows (or to such other address as may
be subsequently specified by notice given in accordance herewith):
To Traer Creek:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
Telephone: 970.949.6776
With Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 303.825.8400
To Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Manager
Telephone: 970.748.4000
With Copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Attorney
Telephone: 970.748.4000
6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between
the Parties as to the subject matter of this Agreement and no prior representations or
statements, verbal or written, shall modify, supplement or change the terms of this
Agreement. This Agreement may not be amended, modified or supplemented except in
writing executed by all the Parties (or their successors or assigns, as applicable).
7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado.
8.0 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 any Party. No waiver of one or more of the terms of this
Agreement shall constitute a waiver of other terms. No waiver of any provision of this
Agreement in any instance shall constitute a waiver of such provision in other instances.
9.0 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.
10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful
misconduct of the Town, it is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the Snow Storage License granted by this
Agreement and that the risk of loss, liability, obligation, damages, and claims associated
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 6 of 9
with the Snow Storage License shall be borne by the Licensee. This Agreement does not
confer upon 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. In addition, it is the
intent of this Agreement to be consistent with the terms of the Development Agreement
to provide for snow storage for Licensee, as so bargained for in the Development
Agreement and in this Agreement.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of their respective Parties and
to bind their respective Parties and that the Parties may rely upon such representation of
authority.
12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below,
in the event that a Party institutes an action or proceeding for a declaration of rights of the
Parties under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions
contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs
and attorney’s fees.
13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
under the laws of the State of Colorado. Venue for any legal action relating to this
Agreement shall be the State District Court in and for the County of Eagle, Colorado.
Each Party shall also have the right to obtain a declaratory judgment, whether the issue is
ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe,
the applicable Parties agree to submit any disputes under this Agreement to the Judicial
Arbiter’s Group (“JAG”) for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
14.0 RECORDING. This Agreement may be recorded by any Party in the Records.
15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership
exists between Traer Creek and Town, and nothing contained in this Agreement shall be
construed as making Traer Creek and/or the Town joint venturers or partners.
16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be
construed to create any third party beneficiaries or confer any rights on any person or
entity not named as a party hereto.
[signature pages follow]
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 7 of 9
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
TOWN:
Town of Avon, a home rule municipal
corporation of the State of Colorado
By: ____________________________ Attest:_________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
Town of Avon
Approved as to Form:
_______________________________
Eric Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ______ day of _____________,
20___, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town
of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL)
Notary Public
Commission Expires:
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 8 of 9
LICENSEE:
TRAER CREEK:
Traer Creek-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By: ________________________________
Marcus Lindholm, Manager
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ______ day of _____________,
20___, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited
liability company.
(SEAL)
Notary Public
Commission Expire:
EXHIBIT D TO RESOLUTION 13-23
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 9 of 9
EXHIBIT A
Legal Description of the Property
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a
Resubdivision of Lot 1, Eagle County, Colorado.
EXHIBIT D TO RESOLUTION 13-23
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 1 of 12
20130728
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Town of Avon
P.O. Box 975
Avon, CO 81620
attn: Patty McKenny, Town Clerk
AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT
AND ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED NOTTINGHAM DAM EASEMENT AND
ASSIGNMENT AGREEMENT (“Agreement”) is made and entered into as of this ____ day of
__________, 20122013 (“Effective Date”) by and between TRAER CREEK-RP LLC, a
Colorado limited liability company (“Developer”), whose address is P.O. Box 9429, 0101
Fawcett Road, Suite 210, Avon, CO 81620, TRAER CREEK METROPOLITAN DISTRICT,
a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”) c/o
Special District Management Services, Inc., 141 Union Boulevard, Suite 150, Lakewood,
Colorado 80228, and the TOWN OF AVON, a home rule municipal corporation of the State of
Colorado (“Town”), whose address is P.O. Box 75, 1 Lake Street, Avon, CO 81620
(collectively, the “Parties”).
RECITALS
WHEREAS, Developer and TCMD entered into that certain Nottingham Dam Easement
Agreement, dated June 9, 2004 and recorded August 25, 2004 at Reception No. 888905 of the
real property records of Eagle County, Colorado, (the “(“Original Easement Agreement”); and
WHEREAS, Developer, TCMD, Town and certain other parties entered into a Settlement
Term Sheet, dated October 7, 2011, to settle and resolve various legal claims asserted in
consolidated cases 2008 CV 384 and 2010 CV 316 in the district court for Eagle County,
Colorado, which included (“STS”). The STS includes, among other terms, an obligation of the
Town to assume certain maintenance obligations of TCMD, including assumption of TCMD’s
maintenance obligations related to the Nottingham Dam, which maintenance obligations to be
assumed by Town are defined as stated in Section 4.2(c) of the Consolidated, Amended and
Restated Annexation and Development Agreement for theThe Village (at Avon), dated
_____________, 2012____________, 2013 (“Development Agreement”); and
WHEREAS, for the purpose of implementing the pertinent terms of the Settlement Term
SheetSTS and the Development Agreement related to the Town’s assumption of TCMD’s
maintenance obligations for the Nottingham Dam, the Developer and TCMD desire to amend
certain terms of the Original Easement Agreement, as more fully set forth herein, and TCMD
desires to assign all of its rights, title, interests and obligations in, under and to the Original
Easement Agreement to Town, and Town desires to assume all such rights, title, interests and
obligations from TCMD as amended and stated herein, and Developer desires to consent to such
assignment in accordance with the terms stated herein.
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 2 of 12
20130728
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENT
1. Assignment. TCMD hereby assigns all of its of rights, title, interests and obligations to
the Town as set forth and established in the Original Easement Agreement, Developer hereby
consents and agrees to such assignment of the Original Easement Agreement, and Town hereby
accepts such assignment of the Original Easement Agreement, subject to the terms and
conditions set forth in this Agreement. By this Agreement becoming effective, Developer,
TCMD and Town hereby agree that TCMD shall have no further rights, title, interests or
obligations under the Original Easement Agreement.
2. Amended and Restated Nottingham Dam Easement Agreement. Developer hereby
amends and restates the Original Easement Agreement in its entirety as stated in this Agreement,
and Town agrees and accepts the rights, title, interests and obligations to the Nottingham Dam as
stated in this Agreement. To the extent the Original Easement Agreement established any rights,
title, interests or obligations which are more or less than as stated in this Agreement, Developer
and Town agree that the rights, title, interests and obligations conveyed to and assumed by Town
shall only be to the extent stated in this Agreement and that the intent, that Developer and Town
hereby release any rights and obligations of the Original Easement Agreement which are
inconsistent with this Agreement, and that the intent and effect is that this Agreement shall
replace and supersede the Original Easement Agreement in its entirety.
3. Grant of Easement. Developer grants, sells and conveys to Town, its successors and
assigns, a non-exclusive, easement on, over, across, upon and through the Nottingham Dam
Propertyproperty, in the location generally depicted on Exhibit A attached hereto (the
“(“Nottingham Dam Rehabilitation Easement”).”) to access, maintain, repair, replace,
improve, reconstruct, expand, reduce, decommission and/or remove the Nottingham Dam and
impoundment area. The Nottingham Dam Rehabilitation Easement shall also include a non-
exclusive, easement on, over, across, upon and through such additional real property located
adjacent to the real property described on Exhibit A as may be reasonably necessary for Town’s
construction staging activities associated with the “Nottingham Dam Rehabilitation Project” (as
hereinafter defined). The Nottingham Dam Rehabilitation Easement may be used by
Town,Town to exercise its employees, agents and contractors in accordance with the terms of
this Agreement and only in connection with the rehabilitation of the spillway, outlet and dam
crest of the Nottingham Dam as approved by the State of Colorado in Water Division 5,
DAMID: 370119, Construction File No. C-1610A (the “Nottingham Dam Rehabilitation
Project”).rights herein. Notwithstanding the foregoing or any other provision of this
Agreement, Developer and Town agree that Town’s obligations assumed by Town under this
Agreement shall be construed, interpreted and applied such that Town shall have the sole
discretion to determine the appropriate maintenance of Nottingham Dam, whichthe Nottingham
Dam provided that any such maintenance by Town shall be in compliance with dam regulations
of the Colorado Division of Water Resources and any other applicable state or federal agency
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 3 of 12
20130728
with regulatory authority over the Nottingham Dam. Town’s maintenance discretion shall
include but not be limited to maintenance, repair, replacement, improvement, reconstruction,
expansion, reduction, decommission, removal and deferral of the Nottingham Dam and any
activity related to the Nottingham Dam in accordance with Section 4.2(c) of the Development
Agreement. This Agreement shall constitute a non-exclusive, permanent easement for the
operation, maintenance, repair and replacement of the improvements constructed, or to be
constructed, if any, as partDeveloper acknowledges that Town is not the current designated
owner of the Nottingham Dam according to the records of the Dam Safety Branch, Division of
Water Resources, and Developer agrees to reasonably cooperate with Town as necessary
(including, but not limited to, the Developer applying, Developer using best efforts to cause the
owner of the Nottingham Dam to apply, or Developer or owner of the Nottingham Dam
Rehabilitation Project authorizing Town to apply on behalf of the owner to the applicable
regulatory agency) to allow Town to work directly with the Division of Water Resources or other
applicable regulatory agency with regard to maintenance of the Nottingham Dam and
noperformance of Town’s duties under this Agreement. Developer further easement will be
required. In the event that the Town decommissions or abandons the Nottingham Dam,
Developer may request that Town releaseacknowledges and terminate this Agreement in writing
and agrees that Town shall not unreasonably refuse such request.be liable or responsible for
maintenance of the Nottingham Dam to the extent that Developer, The Piney Valley Ranches
Trust, or other owner of the Nottingham Dam fails to reasonably cooperate or unreasonably
interferes with Town’s actions to work directly with the Division of Water Resources (and any
other applicable state or federal agency with regulatory authority) and such failure to cooperate
or interference inhibits, restricts or prohibits Town’s ability to maintain the Nottingham Dam in
accordance with the terms of this Agreement. Town agrees to promptly provide to Developer
any correspondence to or from the Division of Water Resources (and any other applicable state
or federal agency with regulatory authority) and agrees to invite a representative of Developer to
any meetings with the Division of Water Resources to the extent such correspondence or
meetings are related to the Nottingham Dam. Town acknowledges that this Nottingham Dam
Easement is non-exclusive and that Developer may seek to develop areas located uphill and
downhill of the Nottingham Dam Easement; therefore, this Agreement shall not be construed to
restrict Developer’s right to cross the Nottingham Dam Easement area created by this Agreement
provided that Developer does not damage the Nottingham Dam structure. If Town proposes to
decommission the Nottingham Dam, Town shall first provide at least ninety (90) days prior
written notice to Developer along with plans for decommissioning which are acceptable to the
Division of Water Resources and any other applicable regulatory agency. After receiving notice
of Town’s proposal to decommission the Nottingham Dam and prior to the expiration of ninety
(90) days, Developer may elect to terminate this Agreement by tendering written notice of such
election to terminate to Town. If Developer elects to terminate, Developer shall then assume all
maintenance responsibilities for the Nottingham Dam and Town shall affirmatively extinguish
the Nottingham Dam Easement, convey to Developer any and all water rights associated with the
Nottingham Dam, including the water storage right decreed in Case No. 94CW113, Water
Division No. 5, and this Agreement shall terminate. If Town decommissions the Nottingham
Dam then Town shall affirmatively extinguish the Nottingham Dam Easement and this
Agreement shall terminate upon receipt of confirmation by the Division of Water Resources (and
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 4 of 12
20130728
any other applicable state or federal agency with regulatory authority) that all applicable
requirements for decommissioning the Nottingham Dam have been satisfied..
4. Subjacent and Lateral Support. Town shall have the right of subjacent and lateral
support for the Nottingham Dam improvements including, without limitation, improvements
constructed and/or installed as part of the Nottingham Dam Rehabilitation Projectto the dam,
outlet structure(s), spillway and spillway channel, impoundment area and any other improvement
deemed necessary in the reasonable discretion of Town or as required by the Division of Water
Resources over the Nottingham Dam and related improvements. Developer shall not take any
action which would impair the lateral or subjacent support for said improvements.
5. Access. The Nottingham Dam Rehabilitation Easement includes a non-exclusive right of
reasonable vehicular and pedestrian ingress, egress and access, for use by Town and its
employees, agents and contractors in connection with the Nottingham Dam Rehabilitation
Project, on, over, upon, across and along the existing dirt road located on the Nottingham Dam
Propertyproperty and the adjacent property in the location generally depicted on Exhibit A
attached hereto (“Nottingham Dam Access Easement”).
6. Improvement of the Nottingham Dam Property.
A. Except as specifically set forth herein, and except as reasonably required in
connection with the Nottingham Dam Rehabilitation Project, the Nottingham Dam
Rehabilitationthe Nottingham Dam Easement does not include any right to construct any
new roads, improvements or structures, on, over, across, through or upon any portion of
the Nottingham Dam PropertyEasement property or the adjacent property. Any such
construction shall be subject to the prior written consent of Developer, which consent
shall not be unreasonably withheld or delayed.
B. Developer, and its respective successors and assigns, shall have the right to use
the Nottingham Dam PropertyEasement property and the adjacent property and the right
to construct improvements and structures within the Nottingham Dam PropertyEasement
property and the adjacent property, including the right to construct roads on, across, over
or under the Nottingham Dam structure and improvements, so long as any such
Developer improvements or structures do not degrade the structural integrity of the
Nottingham Dam structure or otherwise unreasonably interfere with the Nottingham Dam
Rehabilitation Project, the Nottingham Dam Rehabilitation Easement,Easement or the
Nottingham Dam Access Easement.
7. Maintenance of the Nottingham Dam Rehabilitation Easement. Town, and its
successors and assigns, shall maintain the Nottingham Dam Rehabilitation Easement in a safe
condition,accordance with the minimum requirements of the Division of Water Resources,
including repairing any damage to any portion of the Nottingham Dam altered as part of the
Nottingham Dam Rehabilitation Project from any source or cause whatsoever, other than any
damage resulting from the acts or omissions of Developer, all for the stated purpose and intent of
protecting the Nottingham Dam Property and all properties located down-gradient of the
Nottingham Dam Property that may be affected by a dam failure.. Town, and its successors and
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 5 of 12
20130728
assigns, shall be solely responsible for, and bear the entire cost and expense of, any such
maintenance, repair and/or replacement associated with the Nottingham Dam Rehabilitation
Project.. In addition, Town shall keep the Nottingham Dam and its banks in an attractive
condition and shall re-grade and remove vegetation and debris from the banks of the Nottingham
Dam following completion of the Nottingham Dam Rehabilitation Project.. Town’s obligations
in this Paragraph 7 shall be subject to the limitations of Town’s obligations stated in Paragraph 3
above and as stated in Section 4.2(c) of the Development. Town’s obligations in this Agreement,
including but not limited to Town’s obligations stated in this Paragraph 7 and Town’s obligations
to provide reimbursement stated below in Paragraph 13, shall be subject to annual budget and
appropriation by the Town. The failure of Town to budget and appropriate funds in order to
perform the Town’s obligations stated in this Agreement shall not constitute a default or breach
of this Agreement. Agreement. Town’s obligations in this Paragraph 7 shall be subject to
annual budget and appropriation by Town and Town acknowledges and agrees that annual
budget and appropriation shall be considered in good faith. In the event that the Division of
Water Resources or other applicable regulatory agency mandates an emergency repair
expenditure for the Nottingham Dam and such expenditure is not included in Town’s draft
budget for the succeeding calendar year which is submitted to the Avon Town Council in
accordance with applicable requirements of the Avon Home Rule Charter and state budget law,
then Town shall promptly provide notice to Developer upon submitting the draft budget to the
Avon Town Council. The failure of Town to budget and appropriate funds, in whole or in part,
as necessary to perform Town’s obligations stated in this Paragraph 7 shall not constitute a
default or breach of this Agreement provided such decision of the Town concerning annual
budget and appropriation is made in good faith. In the event that Town fails to timely budget
and appropriate an expenditure and timely conduct emergency repairs which are mandated by the
Division of Water Resources or other applicable regulatory agency, then Developer may, but is
not obligated to and shall have no liability related to or arising from its election, proceed to
perform such emergency repair and Town shall reimburse Developer for such expense provided
that Town’s obligation to reimburse Developer shall be subject to annual budget and
appropriation and the good faith failure of Town to budget and appropriate funds to reimburse
Developer, in whole or in part, shall not constitute a default or breach of this Agreement. In the
event of any dispute between Town and Developer concerning the timing, specific emergency
repair activity, expenditure and/or compliance with an emergency repair mandate by the Division
of Water Resources or other regulatory agency, either Town or Developer may elect to submit
such dispute to the Judicial Arbiter’s Group (“JAG”) or other mutually acceptable arbitrator for
binding resolution in accordance with the Colorado Uniform Arbitration Act.
8. No Interference with Nottingham Dam Rehabilitation Project. Developer, for itself
and its successors and assigns, agrees that it shall not interfere with or otherwise obstruct the
Nottingham Dam Rehabilitation Project without the prior written consent of Town. Such
consent shall not be unreasonably withheld or delayed.
9.8. No Public Dedication. Nothing contained in this Agreement shall be deemed to be a
dedication of any portion of the Nottingham Dam Property, the Nottingham Dam Rehabilitation
Easement, the adjacent property or the Nottingham Dam Access Easement to the general public
or for the general public or for any public purpose whatsoever, it being the intent of the
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 6 of 12
20130728
partiesParties that the Nottingham Dam Property, the Nottingham Dam Rehabilitation Easement,
the adjacent property and the Nottingham Dam Access Easement are and shall continue to be
private unless and until all or any portion of the same are dedicated by separate instrument.
executed by the Developer.
10.9. Covenant Running With the Land. Each and every obligation of the Parties contained
herein is made for the benefit of the other. All of the provisions of this Agreement shall be
deemed a covenant running with the land pursuant to applicable law, and shall be binding upon
the successors and assigns of each of the partiesParties hereto. Notwithstanding the foregoing
and subject to Paragraph 23, if any party sells all or any portion of its interest in property subject
to this Agreement, such party shall thereupon be released and discharged from any and all
obligations arising under this Agreement and in connection with the property sold by it arising
under this Agreement after the sale and conveyance of title but shall remain liable for all
obligations arising under this Agreement prior to the sale and conveyance of title. The new
owner of any such property or portion thereof (including, without limitation, anyone who
acquires its interest by foreclosure, trustee sale or otherwise) shall be liable for all obligations
arising under this Agreement with respect to such property or portion thereof after the date of
sale and conveyance of title.
11.10. Covenants. The Developer, TCMD and Town each covenant for and on behalf of each
of the other partyParties that they have taken or performed all requisite acts or actions which may
be required by their organizational or operational documents to confirm their respective authority
to execute, deliver and perform each of their obligations under this Agreement.
12.11. Title. Developer represents and warrants that it owns the property upon which the
Nottingham Dam PropertyEasement is granted and the adjacent property in fee simple and has
full power and lawful authority to grant, sell, and convey the same in manner and form as
aforesaid. Developer, for itself, its heirs, personal representatives, successors and assigns, does
covenant and agree that it shall warrant and forever defend Town in its quiet and peaceful
possession of the Nottingham Dam Rehabilitation Easement and the Nottingham Dam Access
Easement against all and every person or persons lawfully claiming ortitle to claim the property,
whether in whole or anyin part thereof, by, through or under Developer.
13.12. Default. A party shall be deemed in default of this Agreement only upon the expiration
of thirty (30) days from receipt of written notice from the non-defaulting party specifying the
particulars on which such party has failed to perform its obligations under this Agreement.
However, such party shall not be deemed to be in default if such failure (except the failure to pay
money) cannot be rectified within said 30-day period and such party is using good faith and all
reasonable efforts to rectify the particulars specified in the notice of default and in fact completes
the cure of such default within a reasonable period of time not to exceed ninety (90) days., which
ninety (90) day period may be extended, in the event the party in default is exercising good faith
and reasonable efforts, to a maximum of two hundred seventy (270) days. Notwithstanding the
foregoing, in the event an emergency occurs necessitating immediate repair or maintenance of
the Nottingham Dam, any party may undertake such repairs or maintenance without such thirty
(30) day written notice and shall be entitled to reimbursement for all reasonable costs and
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 7 of 12
20130728
expenses incurred from the party otherwise responsible for repair or maintenance of the
Nottingham Dam Rehabilitation Easement hereunder.
14.13. Remedies. Upon breach of any provision of this Agreement, delivery of written notice
and the expiration of thirty (30) days as set forth in Paragraph 1312 above, the non-breaching
party shall be entitled to enforce the provisions of this Agreement, in law or in equity, and relief
in the nature of specific performance or damages or both may be awarded, subject to the
provisions of the laws of the State of Colorado. The prevailing party in any legal or
administrative action shall be awarded its reasonable costs and expenses of such action, through
all appeals, including without limitation, reasonable attorneys’ fees.
15.14. Waiver. The failure of a party to insist upon strict performance of any of the provisions
contained in this Agreement shall not be deemed a waiver of any rights or remedies that such
party may have, and shall not be deemed a waiver of any subsequent breach or default of the
performance of any of the obligations contained herein for the same or any other party.
16.15. Estoppel Certificate. Each party, so long as it has an interest in the property encumbered
by this Agreement, agrees upon receipt of written request from the other party to certify in
writing for a prospective purchaser or lienholder that this Agreement is in full force and effect,
that it has not been amended, except as set forth in such certificate, and that the other party is not
in default of any of the terms, covenants, conditions, or agreements contained in this Agreement
(or, if a default does exist, specifying the nature of such default).
16. Indemnity. With regards to this Agreement, Town agrees to indemnify, defend and hold
harmless Developer, its subsidiaries and its direct and indirect affiliates, and their respective
agents, managers, members, officers, directors, servants, consultants, advisors and employees of
and from any and all reasonable costs, expenses (including, without limitation, reasonable
attorneys’ fees), liability, claims, liens, demands, actions and causes of action whatsoever arising
out of or related to any loss, cost, damage or injury, including death of any person or damage to
property of any kind, which damage, loss or injury is caused by the acts or negligent acts, errors
or omissions of Town, its subcontractors or any person directly or indirectly employed by Town.
With regards to this Agreement, Developer agrees to indemnify, defend and hold harmless Town
and its officers, agents and employees of and from any and all reasonable costs, expenses
(including, without limitation, reasonable attorneys’ fees), liability, claims, liens, demands,
actions and causes of action whatsoever arising out of or related to any loss, cost, damage or
injury, including death of any person or damage to property of any kind, which damage, loss or
injury is caused by the acts or negligent acts, errors or omissions of Developer, its respective
subsidiaries and affiliates, and their respective agents, managers, members, officers, directors,
servants, consultants, advisors and employees.
17. Notices. All notices to be given hereunder shall be in writing, and may be given, served
or made by depositing the same either in the person to the authorized representative of the
noticed party or by registered or certified United States mail, return receipt requested, with such
notice being addressed as specified in the introductory paragraph of this Agreement, postpaid
and registered or certified with return receipt requested or by delivering the same in person to
the said authorized representative of such party. Notice. Unless otherwise stated in this
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 8 of 12
20130728
Agreement, notice deposited in the mail, in accordance with the provisions hereof, shall be
effective unless otherwise stated in the Agreement from from and after the thirdfourth (4th) day
next following the: date postmarked on the envelope containing such notice, or when actually
received, whichever is earlier. Notice given in any other manner shall be effective only if and
when received by the party to be notified. By giving the other party at least seven (7) days
written notice thereof, the parties heretoParties shall have the right to change their respective
addresses and specify as their respective addresses for the purposes hereof any other address in
the United States of America.
18. Headings. The headings of the various paragraphs of this Agreement have been inserted
for convenience of reference only and shall not have the effect of modifying, amending or
changing the express terms and provisions of this Agreement.
19. Severability. If any of the provisions of this Agreement or any paragraph, sentence,
clause, phrase, word or section, or the application thereof, is in any circumstances invalidated,
such invalidity shall not affect the validity of the remainder of this Agreement, and the
application of such provision in any other circumstances shall not be affected thereby.
20. No Representations or Warranties. Other than as set forth in Paragraphs 1110 and 1211
of this Agreement, no representations or warranties of any nature have been made by the parties
heretoParties, and none of the partiesParties hereto have entered into this Agreement in reliance
upon any such representations or warranties, except as expressly set forth herein.
21. Entire Agreement. This Agreement constitutes the entire agreement between the
partiesParties with respect to the subject matter described herein, and further replaces and
supersedes all prior agreements, rights and obligations between the partiesParties with respect to
the subject matter hereof.
22. Amendment. No variations or modifications of, or amendments to, the terms of this
Agreement shall be binding upon the parties unless reduced to writing and signed by the parties
heretoParties.
23. Governing Law, Interpretation and Venue. It is the intention of the parties hereto that
all questions with respect to the construction and interpretation of this Agreement and the rights
and liabilities of the parties hereunder Assignment. This Agreement shall not be determined in
accordance with the assigned by Town without the prior written consent of Developer, which
consent shall not be unreasonably withheld. Any assignment without the prior written consent of
the Developer shall be null and void, though, as mentioned in the preceding sentence, such
consent shall not be unreasonably withheld. The express assumption, in writing, of this
Agreement shall thereby relieve the applicable assignor to the matters so assumed by the
assignee.
24. Legal Fees and Costs. Except for arbitration as set forth in paragraph 25 below, in the
event that a party institutes an action or proceeding for a declaration of rights of Town and
Developer under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions contemplated
EX-D-7 Amended and Restated Nottingham Dam Easement and Assignment Agreement, Oct. 22, 2012
July 26, 2013
Page 9 of 12
20130728
hereby, the prevailing party shall be entitled to its actual reasonable costs and attorneys’
fees. Pursuant to Section 1, TCMD shall not be a party to any legal or arbitration proceeding that
doesn’t regard anything before the Effective Date. Town and Developer agree to waive their
respective rights to a jury trial in any civil legal proceeding.
23.25. Governing Law and Venue. This Agreement shall be governed and construed under the
laws of the State of Colorado. In addition, Venue for any legal action relating to this
Agreement shall be deemed to have been prepared jointly by the parties. The forum for
resolution of any and all disputes arising hereunder shall be theState District Court in and for
Eaglethe County, State of Eagle, Colorado. Each party shall also have the right to obtain a
declaratory judgment, whether the issue is ripe or not. If a court will not issue a declaratory
judgment, because the issue is not ripe, the Town and Developer agree to submit any disputes
under this Agreement to the Judicial Arbiter’s Group (“JAG”) for binding resolution in
accordance with the Colorado Uniform Arbitration Act. Pursuant to Section 1, TCMD shall not
be a party to any legal or arbitration proceeding that doesn’t regard anything before the Effective
Date.
24.26. Execution. This Assignment may be executed in counterparts as originals or by
facsimile copies of executed originals; provided however, if executed and evidence of execution
is made by facsimile copy, then an original shall be provided to the other Party and the Service
ProviderParties within seven (7) days of receipt of said facsimile copy.
[SIGNAUTRE PAGE FOLLOWS]SIGNATURE PAGES FOLLOW]
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 1 of 13
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON, AND
TRAER CREEK-RP LLC AND EMD-CM LLC FOR THE GRANT OF A
REVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE.
1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage (this
“(“Agreement”) dated as of __________, 20____ (the “(“Execution Date”) are the
Town of Avon, a home rule municipal corporation of the State of Colorado (the
“(“Town” and a
“Party”),”) and Traer Creek-RP LLC, a Colorado limited liability company (“Traer
Creek” a,” “Licensee” and a “Party”), and EMD-CM LLC, aka Trees of Colorado, a
Colorado limited liability company (“EMD” a “Licensee” and a “Party”), together with
Traer Creek, the “Licensees.” Within this Agreement,”) (collectively referred to as the
“Parties” is the plural of the defined term “Party” but does not necessarily include all the
parties (the Town, Traer Creek and EMD).”).
2.0 RECITALS AND PURPOSE.
2.1 The Town is the fee owner of certain property located in the Town of Avon,
County of Eagle, State of Colorado, as more particularly described in EXHIBIT
A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated
herein by this reference (the “(“Property”); and
2.2 The Town and Traer Creek are also certain of the parties to that certainthe
Consolidated, Amended and Restated Annexation and Development Agreement
for The Village (at Avon) dated as of ________________, 20___ and recorded on
_____________, 20___ in the real property records of the Clerk and Recorder for
Eagle County, Colorado (the “(“Records”) at Reception No. ___________ (the
“(“Development Agreement”), which is hereby incorporated by this reference;
and
2.3 Master Developer caused Traer Creek to convey the Property to the Town in
accordance with Section 3.7(b) of the Development Agreement which provides
that until such time that the Property is developed or improvements are
constructed thereupon that would preclude use of the Property for snow storage,
the Town and Master Developer (as “Master Developer” is defined in the
Development Agreement) shall have the right to use the Property for snow
storage; and
2.4 The Master Developer has the right to assign any portion of its rights under the
Development Agreement to third parties acquiring an interest or estate in the
Property pursuant to Section 8.11 of the Development Agreement and has elected
to assign its rights to this Agreement to Traer Creek and EMD; and
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 2 of 13
2.5 The Town desires to grant, and the LicenseesLicensee desire to accept, a
revocable license for the purpose of snow storage upon the Property consistent
with the terms of the Development Agreement.
3.0 LICENSE TERMS AND CONDITIONS.
3.1 Grant of License. The Town hereby grants to LicenseesLicensee a revocable
license for snow storage purposes (the “(“Snow Storage License”) on, over and
upon the Property for the area depicted in EXHIBIT B: SNOW STORAGE
AREA, which is subject to change pursuant to Section 3.7(b) of the Development
Agreement..
3.2 Hazardous Materials. The applicable Licensee or Licensees agreeagrees to use
reasonable commercial efforts to avoid the dumping or release of Hazardous
Materials (defined below) on the Property, provided that the Town acknowledges
and agrees that Licensees intendLicensee intends to store snow on the Property
that has been removed from streets, drive lanes, parking lots and other paved
vehicular travel and storage surfaces, and, in connection therewith, there may
occur incidental dumping of the by-products of such surfaces and vehicles, such
as petroleum, gasoline products, products associated with snow removal such as
cinders and magnesium chloride. The term “Hazardous Materials” as used
herein includes, without limitation, gasoline, petroleum products, explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, polychlorinated biphenyls or related or similar materials, asbestos or
any material containing asbestos, or any other substance or material as may be
defined as a hazardous or toxic substance by any Federal, state or local
environmental law, ordinance, rule, or regulation including, without limitation,
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (42 U.S.C. Section 1801, et seq.) the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 1251, et seq.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.) and in the
regulations adopted and publications promulgated pursuant thereto.
3.3 Term; Termination. This Agreement and the Snow Storage License granted to the
Licensees herebyLicensee shall commence on the Effective Date (as “Effective
Date” is defined in the Development Agreement) and terminate on the date the
Property is so developed or such improvements are constructed thereupon that
preclude use of the Property for snow storage (the “(“Snow Storage Termination
Date”). Any and all improvements constructed on the Property are subject to
approval by the Design Review Board (as defined in the Development
Agreement) pursuant to the terms of the Development Agreement. Pursuant to
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 3 of 13
paragraph 5 below, the Town shall give the LicenseesLicensee sixty (60) days
prior written notice of the Town’s commencement of development or
commencement of construction of such improvements on the Property that
preclude use of the Property for snow storage. The Town’s notice of termination
in any given year must be received by September 30, so that the Licensees
Licensee can enter into contracts for snow storage for the upcoming snow season.
For clarification purposes, grading the Property does not in itself make the
Property unsuitable for snow storage use. The Snow Storage License may be
earlier revoked only if the Town Council of the Town has made a legislative
determination at a duly noticed public hearing that revocation of the Snow
Storage License is necessary to protect the public health, safety and welfare of the
Town; provided, however, the Town shall give the LicenseesLicensee written
notice specifying the nature of public health, safety and welfare concern and the
LicenseesLicensee shall have thirty (30) days from such written notice to cure or
correct such concern (or such longer time as is reasonably necessary to cure or
correct such concern so long as the Licensees haveLicensee has in good faith
commenced and areis diligently pursuing efforts to correct the condition specified
in such notice). If the Licensees failLicensee fails to cure or correct such concern
within such timeframe, the Town shall thereafter give LicenseesLicensee written
notice of revocation of the Snow Storage License. The Town may summarily
suspend the Snow Storage License granted to LicenseesLicensee if Licensees
dumpLicensee dumps or releasereleases Hazardous Materials in excess of
incidental dumping of the by-products of streets, drive lanes, parking lots and
other paved vehicular travel and storage surfaces and vehicles as described in
paragraph 3.2 above until such time as Licensees repairLicensee repairs the
damage caused by such dumping or release of Hazardous Materials or the Town
takes legislative action to revoke the Snow Storage License according to the
procedures stated in this paragraph 3.3. From and after the Snow Storage
Termination Date, the LicenseesLicensee shall have no right to use the Property
for snow storage purposes, the Snow Storage License shall automatically be
revoked and this Agreement shall terminate and be of no further force or effect,
provided that Licensees’Licensee’s obligation to repair any damage to the
Property caused by LicenseesLicensee as set forth in paragraph 3.5 below shall
survive the termination of this Agreement.
3.4 Indemnity. To the extent permitted by law, the applicable Licensee or Licensees
expressly agreeagrees to, and shall, indemnify and hold harmless the Town, as
licensor, and any of its officers, agents, or employees from any and all claims,
damages, liability, or court awards, including reasonable 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 (collectively, the “Claims”), in
connection with or arising out of any act or omission by the LicenseesLicensee or
any of theirits respective employees, agents, partners, or lessees, in exercising
their rights under this Agreement; provided, however, such indemnity and hold
harmless shall not extend to any Claims in connection with or arising out of the
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 4 of 13
negligence or willful misconduct of the Town. In particular and without limiting
the scope of the foregoing agreement to indemnify and hold harmless, the
LicenseesLicensee shall, to the extent permitted by law, indemnify the Town from
all Claims in connection with or arising out of any claim in whole or in part that
all or any portion of the snow storage permitted by this Agreement constitutes a
dangerous and/or unsafe condition within a public right-of-way; provided,
however, such indemnity shall not extend to any Claims in connection with or
arising out of the negligence or willful misconduct of the Town. Notwithstanding
the foregoing, EMD shall have no liability for any Claims arising by or through
the actions or inactions of Traer Creek and Traer Creek shall have no liability for
any Claims arising by or through the actions or inactions of EMD and the Town
agrees to look solely to the applicable Licensee hereunder with respect to any
Claim and hold harmless hereunder the other Licensee not the cause of the Claim.
3.5 Damage; Environmental Conditions. During the term of this Agreement, the
applicable Licensee or Licensees shall promptly repair, at no cost to the Town,
any damage caused by the applicable Licensee or Licensees to the Property and
improvements thereon, including without limitation, the dumping or release of
Hazardous Materials, and shall return the Property and such improvements to the
condition existing immediately prior to the occurrence of the damage. In no
event, however, shall the Town claim the Property or the improvements thereon
are damaged due to the dumping or release of Hazardous Materials associated
with the snow dumping operation, unless the Town can prove such dumping or
release of Hazardous Materials are in excess of what is considered commercially
reasonable. Upon termination of this Agreement, the applicable Licensee or
Licensees agreeagrees to repair, at no cost to the Town, any damage to the
Property caused by the LicenseesLicensee, including without limitation, removal
and/or remediation of any Hazardous Materials placed on the Property by the
applicable Licensee or Licensees, and the Town hereby grants an encroachment
license to LicenseesLicensee for the limited purpose of performing such repair,
removal and clean up, if any, which encroachment license shall survive
termination of this Agreement. Notwithstanding the foregoing, Traer Creek shall
have no liability for any damage arising by or through the actions or inactions of
EMD and EMD shall have no liability for any damage arising by or through the
actions or inactions of Traer Creek and the Town agrees to look solely to the
applicable Licensee hereunder with respect to any damage and hold the other
Licensee that did not cause the damage harmless hereunder.
3.6 Insurance. The applicable Licensee or Licensees agreeagrees to procure and
maintain, at theirits own cost, a policy or policies of insurance protecting against
injury, damage or loss occurring on the Property in the minimum amount of
$600,000.00 per occurrence. Such policy or policies shall name the Town as an
“additional insured.” However, the applicable Licensee or Licensees’Licensee’s
failure to take such steps to obtain such insurance shall not waive, affect, or
impair any obligation of the applicable Licensee or Licensees to indemnify or
hold the Town harmless in accordance with this Agreement. If applicable,
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 5 of 13
Licensees agree to apportion the cost of any such insurance between them on a
commercially reasonable basis.
3.7 Spring Trash Clean-Up. Licensee agrees to pick-up and properly dispose of any
litter, trash or debris in snow dumping piles each spring promptly after such snow
dumping piles melt.
4.0 ASSIGNMENT. This Agreement shall not be assigned by any of the Partieseither Party
without the prior written consent of all the Partiesother Party, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, however, Traer Creek and
EMD shall have the right to assign or transfer all or any portion of their respectiveits
interests, rights or obligations under this Agreement to any related parties or any third
parties acquiring an interest or estate in the property legally described in Exhibit A to the
Development Agreement, and generally known as The Village (at Avon), including, but
not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any
improvements now or hereafter located within such property, provided that to the extent
Traer Creek or EMD assigns or transfers any of their respective obligations under this
Agreement, the assignee/assignees or transferee/transferees of such obligations shall
expressly assume such obligations. The express assumption of any of Traer Creek’s or
EMD’s respective obligations under this Agreement by their respectiveits
assignee/assignees or transferee/transferees shall thereby relieve Traer Creek and EMD of
any further obligations under this Agreement with respect to the matter so assumed.
Additionally, and under the same terms and conditions just outlined, Traer Creek or EMD
may assign or transfer their respectiveits rights herein to any successors in interest, heirs,
assigns, transferees, etc.
5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a
Party desires or is required to give to the other PartiesParty shall be in writing and either
personally delivered, sent by registered or certified United States mail, postage prepaid,
or sent by overnight courier. Notices shall be deemed effective: (i) if personally
delivered, when actually given and received; or (ii) if by overnight courier service, on the
next business day following deposit with such courier service; or (iii) if by registered or
certified United States mail, postage prepaid, return receipt requested, three (3) business
days after mailed. Notices shall be addressed as follows (or to such other address as may
be subsequently specified by notice given in accordance herewith):
To Traer Creek:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
Telephone: 970.949.6776
To EMD:
With Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 303.825.8400
With Copy to:
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 6 of 13
EMD-CM LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: EMD Limited Liability
Company, Manager
Telephone: 970.949.6776
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 303.825.8400
To Town:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Manager
Telephone: 970.748.4000
With Copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Attorney
Telephone: 970.748.4000
6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between
the Parties as to the subject matter of this Agreement and no prior representations or
statements, verbal or written, shall modify, supplement or change the terms of this
Agreement. This Agreement may not be amended, modified or supplemented except in
writing executed by all the Parties (or their successors or assigns, as applicable).
7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado.
8.0 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 any Party. No waiver of one or more of the terms of this
Agreement shall constitute a waiver of other terms. No waiver of any provision of this
Agreement in any instance shall constitute a waiver of such provision in other instances.
9.0 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.
10.0 UNDERLYING INTENT AND SCOPE. Except in the event of negligence or willful
misconduct of the Town, it is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the Snow Storage License granted by this
Agreement and that the risk of loss, liability, obligation, damages, and claims associated
with the Snow Storage License shall be borne by the LicenseesLicensee. This Agreement
does not confer upon the LicenseesLicensee any other right, permit, license, approval, or
consent other than that expressly provided for herein and this Agreement shall not be
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 7 of 13
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.
In addition, it is the intent of this Agreement to be consistent with the terms of the
Development Agreement to provide for snow storage for LicenseesLicensee, as so
bargained for in the Development Agreement and in this Agreement.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of their respective Parties and
to bind their respective Parties and that the Parties may rely upon such representation of
authority.
12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below,
in the event that a Party institutes an action or proceeding for a declaration of rights of the
Parties under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions
contemplated hereby, the prevailing Party shall be entitled to its actual reasonable costs
and attorney’s fees.
13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
under the laws of the State of Colorado. Venue for any legal action relating to this
Agreement shall be the State District Court in and for the County of Eagle, Colorado.
Each Party shall also have the right to obtain a declaratory judgment, whether the issue is
ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe,
the applicable Parties agree to submit any disputes under this Agreement to the Judicial
Arbiter’s Group (“JAG”) for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
14.0 RECORDING. This Agreement may be recorded by any Party in the Records.
15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership
exists between Traer Creek, EMD and the Town, and nothing contained in this
Agreement shall be construed as making Traer Creek, EMD and/or the Town joint
venturers or partners.
16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be
construed to create any third party beneficiaries or confer any rights on any person or
entity not named as a party hereto.
[signature pages follow]
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 8 of 13
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
TOWN:
Town of Avon, a home rule municipal
corporation of the State of Colorado
By: ____________________________ Attest:_________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
Town of Avon
Approved as to Form:
_______________________________
Eric Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF ______________EAGLE )
The foregoing instrument was acknowledged before me this ______ day of _____________,
20___, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk, of the Town
of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 9 of 13
LICENSEESLICENSEE:
TRAER CREEK:
Traer Creek-RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
By: ________________________________
Marcus Lindholm, Manager
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ______ day of _____________,
20___, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited
liability company.
(SEAL)
Notary Public
Commission Expires: Expire:
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 10 of 13
LICENSEES (continued):
EMD:
EMD-CM LLC, a Colorado limited liability
company
By: EMD Limited Liability Company, a Colorado
limited liability company, its Manager
By: Lava Corporation, a Colorado
corporation, its Manager
By: ________________________________
Michael Lindholm, President
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of _____________,
20___, personally by Michael Lindholm as President of Lava Corporation, a Colorado
corporation.
(SEAL)
Notary Public
Commission Expires:
Traer EMD Revisions_20130225
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 1 of 13
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 2 of 13
EXHIBIT A
Legal Description of the Property
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a
Resubdivision of Lot 1, Eagle County, Colorado.
Revocable License Agreement for Snow Storage
July 19, 2013 FINAL
Page 3 of 13
EXHIBIT B
Snow Storage Area
TOWN COUNCIL REPORT
To: Honorable Mayor and Avon Town Council
From: Virginia Egger, Town Manager
Date: August 9, 2013
Agenda Topic: Town Appointment to the Colorado Municipal League’s Policy Committee
Each member municipality, with a population under 100,000, is entitled to designate one representative and
one alternate to the Colorado Municipal League’s Policy Committee. Larger municipalities are entitled to two
appointees, and one alternate. The appointment is for a one year term and maybe an elected, appointed or an
employee. From CML Deputy Director Kevin Bommer:
The Policy Committee has significant policy development responsibilities. The Committee is responsible for
reviewing legislative and policy proposals and then recommending specific position to the CML Executive
Board. Prior to each June’s Annual Conference, the Committee may also propose revisions to the League’s
Policy Statement that guides its positions on policy issues affecting municipalities.
CML asks that appointments be made by August 16th.
Executive Director Sam Mamet will be attending the August 13th Council meeting and will be available to answer
questions on the Policy Committee and any other question.
Meeting Dates: in Denver – 10:00 a.m.
Confirmed Dates:
• October 18th
• December 6th
Tentative Date:
• February 14th
• Mid-May
Motion: Should Council decide to appoint a representative and alternate, a motion and vote would be
appropriate.
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Avon Council Meeting 13.07.17.Minutes Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Carroll called the meeting to order at 5:10 PM. A roll call was taken and Council members present
were Dave Dantas, Jennie Fancher, Todd Goulding, and Jake Wolf. Councilor’s Chris Evans, Todd Goulding
and Buz Reynolds were absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil,
Deputy Town Clerk Debbie Hoppe, Finance Director Scott Wright, Senior Planner Matt Pielsticker and
Planner II Jared Barnes, Town Engineer Justin Hildreth, as well as other staff members and the public.
2. APPROVAL OF AGENDA
Mayor Carroll noted the following changes to the agenda:
1. Addition of letter to the US Forest Service stating support for USFS 7-779 to be “open to all vehicles” as
shown on the 2013 Motor Vehicle Use Map, which is currently under review (Dave Neely, USFS)
2. May need some flexibility with timeframes as the Winterwondergrass Request discussion would
need to occur at 7:30 pm
3. PUBLIC COMMENT
There were no comments made at this time.
4. EXECUTIVE SESSION BEGINS AT 5 PM (THIS MEETING IS NOT OPEN TO THE PUBLIC)
Mayor Carroll moved to meet in executive Session at 5:12 pm for the purpose of receiving legal advice
pursuant to Colorado Revised Statute §24-6-402(4)(b) related to settlement matters regarding Town of Avon
v Traer Creek Metropolitan District, 2008 CV 0385 and Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316.
Councilor Dantas seconded the motion and the members met in Executive Session. Mayor Carroll noted that
the discussion would be confined only to the purposes of the executive session as stated above and that if at
any time during the executive session anyone believes that the discussion does not concern the topic and
purpose of the executive session, to please raise your objection immediately.
The following people were present during the executive session: Mayor Rich Carroll, Councilor Dave Dantas,
Councilor Jennie Fancher, Mayor Pro Tem Todd Goulding, , Councilor Jake Wolf, Town Manager Virginia
Egger, Town Attorney Eric Heil. Councilor Chris Evans and Councilor Buz Reynolds were absent. Town
Attorney Eric Heil noted that this executive session was for the purpose of providing legal advice on specific
legal questions, and requested that the Town Clerk cease recording the executive session at this time.
Mayor Carroll noted that the executive session adjourned at 5:56 PM and the meeting now reconvened in
regular session. He asked if any Town Council member believed that any discussion in executive session was
inappropriate and not related to the topic and purpose of the executive session to please state the
objections at this time; there were no objections.
5. AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 6:05 PM AND ADJOURNED AT 6:15 PM (LIQUOR BOARD
MINUTES DRAFTED SEPARATELY)
6. ACTION ITEMS
6.1. Action on a letter to the US Forest Service stating support for USFS 7-779 to be “open to all vehicles”
as shown on the 2013 Motor Vehicle Use Map, which is currently under review (Dave Neely, USFS)
Dave Neely, USFS, spoke about the public input received on this topic. Council supported sending a letter to
the USFS regarding the Eagle-Holy Cross 2013 Motor Vehicle Use Map (“MVUM”) in support of the updates
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to this map as the area is accessed directly from the Wildridge neighborhood. Councilor Fancher moved to
authorize the Mayor to sign a letter in support of the USFS Eagle-Holy Cross 2013 Motor Vehicle Use Map;
Councilor Wolf seconded the motion and it passed unanimously by those present (Councilors Evans,
Goulding and Reynolds absent).
6.2. Approval of Minutes from June 25, 2013
Councilor Dantas moved to approve the minutes from June 25, 2013; Councilor Fancher seconded the
motion and it passed unanimously by those present (C ouncilors Evans, Goulding and Reynolds absent).
6.3.Public Hearing on Amplified Sound Permits (Patty McKenny, Assistant Town Manager)
6.3.1. TEAM Unlimited LLC for Start of Xterra Mountain Championship Race on July 20th
(Trey Garman, XTERRA)
The applicant presented the event application for the XTERRA race. After some discussion, Mayor
Carroll opened the public hearing, no comments were heard, and the hearing was closed. Councilor
Wolf moved to approve the amplified sound permit for TEAM Unlimited LLC for Start of Xterra
Mountain Championship Race on July 20 ; Councilor Fancher seconded the motion and the permit was
approved unanimously by those present (Councilors Evans, Goulding and Reynolds absent).
6.3.2. Vail Valley Charitable Fund for BecTri Duathalon on August 3rd (Michelle Maloney, BecTri)
Patty McKenny presented the application on behalf of the applicant. Mayor Carroll opened the public
h earing, no comments were heard, and the hearing was closed. Councilor Wolf moved to approve the
amplified sound permit for Vail Valley Charitable Fund for BecTri Duathalon on August 3rd ; Councilor
Fancher seconded the motion and the permit was approved unanimously by those present (Councilors
Evans, Goulding and Reynolds absent).
6.4. Action on 2013 Intergovernmental Agreement with Eagle County for GIS Services (Matt
Pielsticker, Senior Planner)
The IGA for GIS services with Eagle County was presented in an effort to assist the town with its needs
for routine datalayer updates, maintenance of digital information and special projects and mapping.
With a vacancy in the position, staff determined there was no longer a need for full time work in this
area, thus it was determined that outsourcing this function with the county made sense. After some
discussion, Councilor Wolf moved to approve the IGA with Eagle County for GIS services; Councilor
Dantas seconded the motion and it passed unanimously by those present (Councilors Evans, Goulding
and Reynolds absent).
6.5. Public Hearing on Second Reading of Ordinance 13-0 8, Series of 2013, An Ordinance Approving
the Amended Final Plat, A Replat of Lot 61, Block 2, Benchmark at Beaver Creek, Town of Avon,
Eagle County, Colorado (Justin Hildreth, Town Engineer)
It was noted that there were some minor changes to the plat along with minor modifications to title
certificate per information provided by Dominic Mauriello, representing applicant Syndham Vacation
Resorts, Inc. as the applicant. The changes were reviewed by staff and the Town attorney Dominic
Mauriello presented the revised final plat showing the modification to the lot lines, etc.
Councilor Fancher moved to approve Ordinance 13-08, Series of 2013, on second reading, an Ordinance
Approving an Amended Final Plat, a Replat of Lot 61, Block 2, Benchmark at Beaver Creek subject to the
revisions provided by the applicant at second reading which include:
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• modifications to the exceptions in the title certificate;
• the clarification of the language of note 6, so that this plat appropriately re-dedicates the
transportation hub easement;
• the addition of a new note 8 which vacates all previous amended plats affecting the property (a
relocation and clarification of the previous title certificate note 18);
• extending the 20' wide transportation hub easement westward to the new right-of-way for Lettuce
Shed Lane;
• correcting the adjacent property owner names on the plat; and
• any other technical changes or corrections required by Town staff
• and finding that the approval of the Application is in compliance with the mandatory review criteria
for Final Plat Major Subdivision found in the Avon Municipal Code Section 7.16.070(f).
Councilor Wolf seconded the motion and it passed unanimously by those present (Councilors Evans,
Goulding and Reynolds absent). Since the hearing was not opened earlier, Mayor Carroll opened the
public hearing, no comments were made, the hearing was closed.
6.6. First Reading of Ordinance 13-09, Series of 2013, Ordinance Amending Title 7 of the Avon
Municipal Code, including General Procedures, Planned Unit Development Amendments,
Natural Resources Protection Standards, and Engineering Improvement Standards
(Matt Pielsticker, Senior Planner)
The memo was presented from the Council packet that included a description of the items included in
Ordinance No. 13-09 in response to the Council’s 2013 strategic plan. There was a prioritizing of the
topics with a list of amendments broken into “Tier 1” and “Tier 2” amendments by PZC. A review of the
Proposed Amendments was made noting that the proposed modifications outlined would not only provide
clarity, but would also cleanup Development Code (Title 7, AMC) sections that are redundant, contradictory,
obsolete, or have been found to be troublesome for code users. The following sections were addressed:
Table 7.16-1, Development Review Procedures and Review Authority – Page 52
Section 7.16.020(e), Step 5: Public Hearings – Pages 56-57
Section 7.16.020(g), Minor Amendment – Pages 58-59
Section 7.16.060(e)(4), Review Criteria – Page 65
Section 7.16.060(h), Amendments to a Final PUD – Pages 67-68
Section 7.16.080(b)(2) Minor Development Plan – Page 75
Section 7.16.090, Design Review – Page 77
Section 7.28.100(a), Steep Slopes – Pages 170-173
Section 7.32.020, Layout and Design Generally – Pages 199-200
There was discussion and input on the ordinance as follows:
Discussion about hearings and timeframe for rendering final decisions
Delete minor amendments; defines administrative amendments, clarification on review criteria
Discussion about calling up PZC items by the Town Council
Public input was received from both Avon resident Michael Cacioppo and Dominic Mauriello who submitted
some comments addressing minor PUD amendments, Minor subdivisions, and Zoning Amendments.
Councilor Fancher moved to approve on first reading Ordinance 13-09, Series of 2013, Ordinance
Amending Title 7 of the Avon Municipal Code, including General Procedures, Planned Unit
Development Amendments, Natural Resources Protection Standards, and Engineering Improvement
Standards and schedule a public hearing and second reading of the Ordinance for August 13, 2013. It was
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also agreed that a change to minor subdivision would be made to allow for it to be approved
administratively. Councilor Wolf seconded the motion and it passed unanimously by those present
(Councilors Evans, Goulding and Reynolds absent).
6.7. Review and Action on Dates and Seed Funding Request for WinterWonderGrass Festival, a 3-day
music event in Nottingham Park, February 21 – 23, 2012 (Virginia Egger, Town Manager)
Virginia Egger, Town Manager, presented an introduction to the topic by providing information about
the town’s 2013/14 strategic plan that supports increasing special events including the addition of three
music events each year in Avon. It was noted that an RFQ was released and three responses were
received. Scotty Stoughton, event promoter, presented his concept for a WinterWonderGrass Festival
for Avon Colorado. (Councilor Goulding arrived at 7:40 pm.) He reviewed his presentation with
information about their vision, format of festival, future of the event, details, partnerships with Avon
and Beaver Creek and businesses, promoter information, the marketing and branding benefits for
Avon, and their request for seed funding. There was success with the event in Edwards last year, but
he sees an opportunity in hosting the event in Avon that would allow future growth opportunities as
wells as a safe and promising venue.
Mayor Carroll invited those in the audience to give input:
Tom Beaver, Montana’s, encouraged Avon to support this kind of event, better market to pursue,
also commented on the police presence,
Tony Karen, Ft. Lauderdale, loves Avon, former CFO, and supports this kind of event
Liz Farren, Montana’s, supports the music festival to help promote community, people are afraid to
come to avon becuz of the law enforcement
Jake Wolf: commented on their discussion w/ Chief Ticer about not including police inside this
venue
Kent Bidel, Loaded Joes, sees this has a huge opportunity to host more events, with store in vail,
towns operate differently, vail operate events year round with great success for them, this event
could be a huge opportunity, avon is missing it, there hasn’t been a spirit for hosting the events in
avon,
Jonathan Levine: hummers of vail and local limo service, police service has improved over the years,
this type of event would attract visitors, asked council to strongly consider this event, did see
conflict with snowbowl with their business, think about: prefer it only go until 9 pm to transition to
local establishments,
Michael Caccioppo, resident, retired music promoter, supports ticket fee that town could collect,
great promoter, bad event in snowball, better demographic, great ongoing event for avon,
comparing vail to avon vail funds promoters don’t have ticket fees, avon getting a better deal
Brandt, Loaded Joes, supported Scotty Stoughton and the kinds of things they did with snowball
were great
Council commented on a number of items as follows:
Could be a great event for Avon and the park
Some discussion about how festivals and police interface
Great time to try out an event before 2015 championships
Discussion about crowds number maximums, some supported higher numbers; promoter wanted
to keep it manageable at around 3000
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Avon Council Meeting 13.07.17.Minutes Page 5
Discussion about sponsors role and ticket fees and need to understand financial information, some
preferred to keep it a business partnership
Councilor Wolf moved to approve the following parameters of WinterWonderGrass – 3 day music
festival:
• Approval of event dates for February 21-23, 2013
• Approval of in-kind up to $25,000
• Approval of $50,000 in musician support to be paid from the CIP – Economic Development line item
($750,000 budgeted)
• Approval of ticket sales not to exceed 4,000 per day
• Approval of the Town Manager to sign an agreement for production, including but not limited to all
planning and producer performance dates, insurance, indemnification, deposits, marketing plan,
security and law enforcement plan, demographic data collection and other metrics as may be
determined, and reporting requirements
• Direct staff to research and prepare legislation for a Special Event Ticket Fee in the amount of $2.00
per ticket/per day.
Councilor Fancher seconded the motion and it passed unanimously by those present (Councilors Evans
and Reynolds absent).
6.8. Approval of Street Improvement Contracts based upon the Lowest Qualified Bid
(Justin Hildreth, Town Engineer)
The Bid Opening for both Projects is July 18th. Due to scheduling of the next Town Council meeting on Aug
13th and the desire to begin construction as soon as possible after Bid Opening on July 18th, staff is requesting
that Council preauthorize issuance of Notice of Award for both contracts provided the lowest, qualified bid
for each project does not exceed the approved Town of Avon 2013 Capital Projects Fund budgeted amounts
as shown in Table 1 of packet: 1) Asphalt Overlay Project which includes milling, crack repair, and asphalt
overlay of Draw Spur and Beaver Creek Point in the Wildridge Subdivision, and 2) the Slurry Seal Project
which consists of crack repair, application of an asphalt sealer containing fine aggregate, and striping. Roads
included in the Slurry Seal Project are: Saddle Ridge Loop, Old Trail Road, Beartrap Road, Shepherd Ridge,
and Ked Spur in Wildridge and Nottingham Road (west from Swift Gulch). The proposed work is anticipated
to begin in early August and be completed by the end of September. There was discussion about the bike
lane evaluation on Metcalf Road as not a viable project because there is not enough road to accommodate
the uphill bike lane. Councilor Dantas moved to authorize the Town Manager to award Asphalt Overlay and
Slurry Seal contracts to the lowest, qualified bidder for each project provided that the bid does not exceed
the budgets as approved in the Town of Avon 2013 Capital Projects Fund; with the condition that the number
is $551,553 which would include completing the parking spaces at the new Avon West Preserve, and that the
Town Manager is further authorized to amend the project scope, if needed, after evaluating as bids per the
available funds. Councilor Fancher seconded the motion and it passed unanimously by those present
(Councilors Evans and Reynolds absent).
6.9. Notice of Award for Recreation Center Membrane Roof Replacement (Justin Hildreth, Town
Engineer)
It was noted that the Recreation Center flat EPDM roofs leak and there was a need to replace ithis year
as part of the CIP Fund budget. Staff noted that the lowest bidder Horizon Roofing of Eagle should be
selected to complete the project, bid amount of $116K. Councilor Dantas moved to award the
construction contract for the Recreation Center Flat Roofs Replacement project to Horizon Roofing in
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Avon Council Meeting 13.07.17.Minutes Page 6
the amount of $116,680, and allow Town Manager to approve amendment to the contract if changes
are within the budget. Mayor Pro Tem Goulding seconded the motion and it passed unanimously by
those present (Councilors Evans and Reynolds absent).
6.10. Phase II Recreation Center Expansion and Recreational Improvements
6.10.1. Review of Ballot Schedule and Draft Question for Phase II Expansion and other
Recreation Improvements (Scott Wright, Finance Director)
The report on the Phase II Recreation Center Expansion and Recreation Improvements was presented
to the town council. It was noted that a final decision would be need prior to September 6th as that is
the last day to certify the ballot content to Eagle County for the election. A number of topics were
reviewed:
Proposed costs are being fine tune to be presented at the next meeting
It was noted that there must be an understanding of recreation center and programming trends
Discussion about surveying the community to obtain feedback about this topic
A review of the ballot materials was made by Dee Wisor, Sherman and Howard
It was agreed that more discussion was need at the August 13th meeting.
6.10.2. Action on Telephone Survey Questions – (Virginia Egger, Town Manager)
There was consensus to delay the telephone survey.
6.10.3. Action to Notice Eagle County Clerk of Town Participation in November 5, 2013
Coordinated Mail Ballot Election – ballot question [May be rescinded if no ballot
question is completed] (Patty McKenny, Assistant Town Manager)
There was direction to notice Eagle County that the Town would participate in the November 5, 2013
election in light of a possible ballot question.
7. WORK SESSION
7.1. Economic Development Report:
7.1.1. Trimester Report from Department’s on Economic Activity (Scott Wright, Finance Director)
The information presented shows positive economic trends at this time; the URA refinancing is moving
forward, and there was support for this kind of information with a staff analysis of the data to be
included in the report.
7.1.2 Council Review: Draft Economic Development Plan, Including Council Review Direction
on RFP for Town of Avon Branding and Marketing Initiative; and Hiring a Director of Economic
Development Initiatives (Virginia Egger, Town Manager)
Discussion focused on the some of the following topics:
Business community support of the economic development efforts and direction suggested by
the town
Town takes the lead and then hands it over to business community
Consider holding a business summit
Discussion about funding the position from general fund or capital fund
Market position in ski resorts and Denver Colorado
The Town Council supported hiring the position taking time to conduct the interview process to hire
the right person; staff was directed to draft the hiring process for their consideration. Town Council
also supported releasing an RFP for services to assist in brand development and marketing
implementation strategies for the town.
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Avon Council Meeting 13.07.17.Minutes Page 7
1.1. 2nd Quarter 2013-14 Strategic Plan Report (Virginia Egger, Town Manager)
It was noted that this report would also be used as a discussion document during the upcoming
retreat.
1.2. Review of August 13 Retreat Agenda: Walking Mountain Science Center (Virginia Egger, Town
Manager)
It was noted that an agenda would be drafted and if there were any other topics of interest to forward
to town manager and the Morrison Group would continue providing the facilitation services for the
meeting.
1.3. Village at Avon Update (Eric Heil, Town Attorney)
The outstanding Village at Avon settlement issues were reviewed per the memo as the 1) taxable vs.
tax-exemption bond situation, 2) the Nottingham Ditch Maintenance Obligations, and 3) the timetable
for November 13, 2013 as the deadline date to mee.
2. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
There updates pres ented on the following meetings:
2.1. EGE Air Alliance (Rich Carroll, Mayor)
2.2. Eagle County School District Meeting with Superintendent (Rich Carroll, Mayor)
2.3. Eagle County Regional Collaboration Meeting on Transportation (Rich Carroll, Mayor)
Some comments were made in light of the email from Buffalo Ridge Apartments about h ow to address
the lack of transit services to that l ocation and Nottingham Road
3. EXECUTIVE SESSION CONTINUED FROM EARLIER IN THE DAY (THIS MEETING IS NOT OPEN TO THE PUBLIC)
At 11:25 pm Mayor Carroll moved to meet in Executive Session for the purpose of receiving legal advice
pursuant to Colorado Revised Statute §24-6-402(4)(b) related to settlement matters regarding Town of Avon
v Traer Creek Metropolitan District, 2008 CV 0385 and Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316.
Mayor Pro Tem Goulding seconded the motion and the members met in Executive Session. Mayor Carroll
noted that the discussion would be confined only to the purposes of the executive session as stated above
and that if at any time during the executive session anyone believes that the discussion does not concern the
topic and purpose of the executive session, to please raise your objection immediately.
The following people were present during the executive session: Mayor Rich Carroll, Councilor Dave Dantas,
Councilor Jennie Fancher, Mayor Pro Tem Todd Goulding, Councilor Jake Wolf, Town Manager Virginia
Egger, Town Attorney Eric Heil. Councilor Chris Evans and Councilor Buz Reynolds were absent. Town
Attorney Eric Heil noted that this executive session was for the purpose of providing legal advice on specific
legal questions, and requested that the Town Clerk cease recording the executive session at this time.
Mayor Carroll noted that the executive session adjourned at 12:40 PM and the meeting now reconvened in
regular session. He asked if any Town Council member believed that any discussion in executive session was
inappropriate and not related to the topic and purpose of the executive session to please state the
objections at this time; there were no objections.
TOWN OF AVON, COLORADO
MINUTES FROM REGULAR MEETING FOR WEDNESDAY, JULY 17, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.07.17.Minutes Page 8
There being no further business to come before the Council, the regular meeting adjourned at 12:40 PM.
RESPECTFULLY SUBMITTED:
_________________________________
Patty McKenny, Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Todd Goulding ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________